Ignorance is Toxic Bliss: The Secret War on Our Right-To-Know

A Report by Clean Water Fund Contact: Lynn Thorp (202) 895-0420 Mineral Policy Center Contact: Alan Septoff (202) 887-1872 OMB Watch Contact: Rick Blum (202) 234-8494 U.S. Public Interest Research Group Contact: Jeremiah Baumann (202) 546-9707 Working Group on Community Right To Know Contact:Paul Orum (202) 544-9586 The public has woefully inadequate information with which to identify chemicals we are exposed to in everyday activities and with which to hold accountable government and industry. While there are islands of information -- such as the highly successful Toxics Release Inventory (TRI) and emerging community-based monitoring efforts -- the public flounders in a sea of ignorance about environmental threats. This report documents recent attacks on the public’s right-to-know and the undermining of key right-to-know principles. Sometimes these attacks are up-front and recognized. Many times, however, the assaults on the public’s right-to-know occur out of the public’s eye but erode the government’s ability to inform the public and take action to enforce environmental laws. The Public’s Right-To-Know: Current Trends and Underlying Principles Over the last decade, with the advent of the Internet and greater access to information about toxic chemical releases, this should be a renaissance of government, citizen and private efforts to identify and classify environmental and public health problems. Right-to-know is grounded on the premise that a healthy democracy depends on a well-informed, active public that participates in important decisions affecting society. The right to know, in turn, creates several principles that should guide government and the public’s actions:1
  • In our democracy, all members of the public have an enforceable right to anonymous, timely, and unfiltered access to government information at low or no cost.
  • Government has a duty to identify and collect data and information to protect and benefit the public, spur efficiency, ensure accountability, and strengthen democratic processes.
  • Government has an affirmative responsibility to make information broadly available to the public in an equal and equitable manner and in formats that are timely, easily located, understandable, and useful. Those who seek to withhold information carry the burden of proof to justify their position.
  • Government should strive to ensure that the information it releases is complete and accurate; however, questions about completeness or accuracy should not be permitted to restrict the free flow of information.
  • Citizens have a right to participate in government decision making about public information access policies and strategies.
  • Citizens have a right to hold the government accountable for enforcing policies requiring public dissemination of information.
  • Government should embrace electronic media without disadvantaging those without access.
  • Government efforts to provide equal and equitable access to government information are not competitive with the private sector.
  • Government has a responsibility to manage, over its entire life-cycle, the information it creates or collects, including documents, records, electronic files, and databases.
  • Government has an obligation to ensure the public can determine national trends and indicators to benefit the public interest.
Ignorance in the Information Age Unfortunately, these principles are under attack. Key issues are currently being debated that could frustrate the public’s right to know and advance industry secrecy and government silence about environmental and human health threats. Consider this:
  • Lead. The Bush Administration has frozen a new rule that would have required thousands of industrial facilities to newly report toxic lead pollution released to air, land and water. The new rule -- already finalized by EPA in January -- lowers the threshold for reporting lead discharges under the Toxics Release Inventory. Due to the persistence of lead in the environment and its high toxicity, a very small amount of lead can do a great deal of damage, especially to children. Lead exposure causes decreased intelligence, learning disabilities and behavior problems. Previously, industrial facilities that used less than 10,000 pounds of lead avoided reporting of lead releases to the public. The Administration is facing coordinated, well-organized pressure roll back this approach to force reporting of lead pollution.
  • Mining. The mining industry has launched a legal challenge to current requirements that force mining companies to disclose the toxic results of their mining operations, and it is unclear whether EPA will defend these existing requirements. Mining activities are estimated to contaminate 40% of the headwaters of western watersheds with mining-related toxics. Mining companies argue they are simply digging out the earth and moving piles of rock, but this activity allows toxic chemicals such as arsenic to contaminate rivers, streams and groundwater.
  • Now that the arsenic standards are weakened, the public may also not be told if arsenic shows up in drinking water. The Administration's highly publicized withdrawal of a new regulation for arsenic in drinking water may also make it harder for consumers to learn about potentially dangerous levels of arsenic in their drinking water. A less controversial part of the new regulation required drinking water utilities to inform their consumers about arsenic levels that, while not in violation of the new standard, might pose serious health effects. Under those provisions, if public water systems find arsenic in the drinking water supply in amounts greater than 5 parts per billion (one-half the new Maximum Contaminant Level or enforceable standards), they would have to include special language in their annual Consumer Confidence Reports. Water utilities send these “right-to-know reports” to community water system customers, enabling people to make informed decisions and press for stronger safeguards, improvements in treatment, pollution prevention and source water protection. The status of these important provisions of the new arsenic regulation are uncertain given the recent withdrawal and proposed review period.
  • Chemical accident threats. In 1999, the chemical industry successfully convinced Congress to restrict public access to industry information on the potential for chemical accidents to harm people where we live, work or play. The Bush Administration recently withdrew plans to carry out legal mandates that would have eased public access to data on potential chemical fires and spills. Last year, EPA and the Justice Department issued a rule intended to keep the accident information from the Internet and forcing the public to go to extraordinary lengths to view "public" information. Lost in this proposal, of course, is the potential of such information to save lives, reduce pollution and protect property. In Allentown, Pennsylvania, for example, an explosion rocked a chemical processing facility, killing five people and damaging a nursery school just hours after the children had left for the day. "We need to know," one parent told reporters. "Obviously, no one knew what they did there." A recent Greenpeace/Working Group on Community Right To Know report found that hundreds of thousands could be affected by a potential worst-case accident at industrial facilities in Louisiana.2 At the same time, site security is woefully inadequate. One government report stated that site security at chemical plants ranges from fair to very poor.3 Sympathetic with the concerns of the parent in Allentown and other members of other communities, OMB Watch posted to The Right-To-Know Network (RTK NET) industry-written summaries of the risk management plans filed with EPA.4 Many of these summaries (which were exempt from the restrictions imposed by Congress) contained detailed descriptions of the worst possible chemical accident at particular facilities. Based on RTK NET access to this worst-case scenario information, stories were filed by journalists around the country highlighting the risks posed by chemical plants to American communities.
  • Data "Objectivity." The huge, omnibus appropriations bill that passed Congress last year included a small but very significant provision. The language, which has the force of law, requires federal agencies to follow guidelines to be issued by September 30, 2001 from the Office of Management and Budget on "the quality, integrity and objectivity" of information disseminated to the public by federal agencies.5 Industry lobbyists such as Jim Tozzi and his Center for Regulatory Effectiveness have sought to push objectivity as a criteria for agency information products.6 While the guidelines have yet to be circulated for public comment, any one-size fits-all guidelines could hamper EPA’s ability fulfill its environmental protection mission. EPA research into threats to fragile ecosystems and endangered wetlands might be hampered if they are prevented from conducting research that some may criticize as "not objective."
  • More appropriations riders. Industry also succeeded in attaching report language to an appropriations bill the previous year that pressures EPA to roll back its right-to-know efforts. While not having the full force of law, the report language suggests that EPA subject all new information products to lengthy, costly bureaucratic notice and comment processes — just as it does for rulemakings. The language also suggests that public access to EPA’s environmental information be subject to judicial review; in other words, industry should be able to sue EPA for its right-to-know initiatives. And finally, the language recommends easing industry’s ability to claim confidential business information (CBI), thus allowing data to be hidden from public view.
  • Applying the federal Freedom of Information Act to nonprofit organizations. Industry has made a concerted effort to synthesize its information agenda with its anti-regulatory efforts. Usually, this involves pushing information as a substitute for regulation. But in this case, industry mounted a direct assault against the source of their problem — scientists. Upset over a study by the Harvard School of Public Health that pointed the way to new clean air standards, industry successfully pushed an appropriations rider extending the Freedom of Information Act (FOIA) to nonprofit organizations that receive federal grants. The rider potentially opens the door for industry to harass those conducting important environmental research in an effort to impede needed regulation. On its web site, the Chamber of Commerce declared, "In the Regulatory Reform Arena, There May Never Be A More Important Issue!"
  • National safe drinking water. EPA’s implementation of right-to-know provisions of the Safe Drinking Water Act (SDWA) so far ensures access to so-called Consumer Confidence Reports at the local level only. The agency has not yet assembled a national database of information on drinking water quality that would enable any person to identify on a home computer the contaminants in tap water – and compare this information to any other water system in the country. At the same time, EPA estimates that 88 percent of all SDWA violations go unreported to the federal drinking water database.7
  • More state control over data collected under federal statutes. States provide information to EPA and, as such, are part of the community subject to EPA and other federal regulations. The Environmental Council of the States, or ECOS, is an organization representing the environmental commissioners from each of the 50 states. ECOS and EPA are working in a collaborative relationship unique from EPA’s relationships with other interested parties, such as citizen groups, industry, national environmental organizations, and local governments. ECOS is working in partnership with EPA’s information office on a new National Environmental Information Exchange Network. As part of this effort, EPA is establishing a $25 million grant program designed to improve the exchange of data between EPA and the states. It remains unclear how this money will be spent and how EPA plans to track state progress in providing more and better data in a timely manner. This special relationship between EPA and the states could potentially erode the agency’s ability to ensure EPA is receiving complete, accurate and timely information from states as required under federal law. At the same time, states receive delegated authority to collect environmental information. The 88% of drinking water violations that go unnoticed by EPA systems originate in state databases. It remains to be seen how the ECOS-EPA partnership will be used to help fill these large data gaps.
  • Bad ideas for burden reduction. Last year, EPA floated a number of ominous ideas to reduce the burden of right-to-know requirements on industry. This includes moving from annual TRI reporting to reporting every other year, staggering reporting deadlines, and allowing industry to re-file its previous year’s TRI report on an "if it’s close enough" basis. While these ideas were not followed through on because, in part, they did not provide significant burden reductions for industry, these ideas severely undermine the public’s confidence in EPA’s commitment to right-to-know. As an alternative to reducing the amount of information collected, new technologies and integrated reporting could reduce burden of reporting, allow collected information to be shared between agencies and "recycled" to better protect the environment, and improve public access to collected information. Currently, agencies collect information in separate databases under separate reporting laws (e.g., the Emergency Planning and Community Right-To-Know Act, the Clean Air Act, Safe Drinking Water Act).8 The information is collected for different purposes. As a result, these databases were not designed to be combined or to easily identify the owners of industrial facilities releasing toxic substances. The existing databases are often not very flexible and do not meet the public’s needs. For example, the main database of Superfund sites allows users to easily search for particular Superfund sites in specific locations, but the database does not allow the public to easily find all the Superfund sites for which a company is potentially responsible. The federal government should be experimenting with new technologies, such as distributed databases and other e-government tools, to integrate information systems, improve public access to government information, and reduce the burden of reporting and accessing government information.
Conclusion Despite the growing opportunities that new technology and the “information age” provide for strengthening the free flow of information in our democratic society, the public’s right to know is under attack from industry and parts of government. These attacks, taken separately, are individual policy battles that occur on a number of fronts: in Congress, in federal agencies, within state governments, and in the courts. Taken together, they threaten to undermine hard-earned advances and shortchange future efforts to arm the public with the information needed to make individual choices about everyday activities and work with government and industry to protect the environment upon which life depends. 1For a more complete discussion of these principles and the ideas behind them, see OMB Watch, "A Citizen’s Platform for Our Environmental Right-To-Know" (March 2001), available online at /files/rtk/platform. 2 Greenpeace USA and the Working Group on Community Right To Know, "Bhopal in the Bayou: Are Chemical Accidents a Trade Secret?" March 22, 2001, http://www.greenpeaceusa.org/media/press_releases/01_03_22a.htm 3 Agency for Toxic Substances and Disease Registry, "Industrial Chemicals and Terrorism: Human Health Threat Analysis, Mitigation and Prevention," April 1999, http://www.atsdr.cdc.gov/OFP/terrorism/indterr.html 4 See http://www.rtknet.org for industry-written executive summaries of facility Risk Management Plans. RTK NET provides free online access to numerous databases on the environment, including the Toxics Release Inventory. 5 FY 2001 Consolidated Appropriations Act (P.L. 106-554). The Office of Management and Budget is an office within the Executive Office of the President. OMB oversees agency budgets and federal regulatory activities, and all agency information collections and regulations must be approved by OMB. 6 For a summary of recent legal challenges to federal regulations by The Center for Regulatory Effectiveness, see http://www.thecre.com/cre-litigation/index.html. 7 "Data Flawed on Drinking Water Quality," USA Today, September 2, 1999, A-1. 8 For a guide to environmental statutes and regulations that affect public access to government information, see Appendix C of OMB Watch, "A Citizen’s Platform for Our Environmental Rihgt-To- Know" (March 2001), available online at http://www.ombwatch.org/node/342.
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