USE OF PUBLIC DISCLOSURE IN ENVIRONMENTAL PROTECTION PROGRAMS TO ENHANCE COMPLIANCE AND CHANGE BEHAVIOR IN THE UNITED STATES

PAUL G. KEOUGH ¹ and NORMAN L. WILLARD ²

¹ Deputy Regional Administrator, Region I, U.S. Environmental Protection Agency, John F. Kennedy Federal Building, Boston, Massachusetts, 02203 (USA)

² Environmental Protection Specialist, Air, Pesticides & Toxics Management Division, Region I, U.S. Environmental Protection Agency, John F. Kennedy Federal Building, Boston, Massachusetts, 02203 (USA)

SUMMARY

Public disclosure of environmental information is a cornerstone of the regulatory process of the United States. Virtually every piece of national legislation requires self monitoring, and the full and open reporting of environmental data by the regulated community. It is increasingly clear that the public disclosure of this data is playing an important role in achieving compliance and in fostering improved environmental management.

There are several points that are highlighted in this paper: (1) the public has clear and specific access to virtually all of the self-monitoring data submitted at the state and national level, (2) public access to data like that filed under the Toxics Release Inventory program has led to dramatic reductions in emissions and a growing participation in voluntary reduction programs, (3) public notice can be an important enforcement tool in statutes like the Safe Drinking Water Act and the Clean Water Act, (4) using press releases and publicity about violations and enforcement actions serves as a deterrent and can lead to improved compliance rates, (5) data integrity is of great significance, (6) public notification can help stimulate pollution prevention efforts on the part of the business industry.

1 PUBLIC ACCESS TO COMPLIANCE MONITORING DATA

In the United States, data furnished by the regulated community is relied upon not only to determine compliance status, i.e. is the source in or out of compliance with applicable regulations, but also to analyze compliance patterns, target compliance inspections and focus enforcement actions at the state and national level. Self-monitoring in some instances is required through legislative action or in some cases, self-monitoring is required under rulemaking authority of the state or national agency. Since there are hundreds of thousands of sources to be regulated in the United States, self-monitoring and the reporting of that data to the responsible agency is the underpinning of this nation's environmental control program. It simply is not possible to have inspectors check each and every facility.

Virtually all of the self-reported information in the United States is available to the media and the public, and the regulated community submitting data is well aware of this. The mere fact that this data can be subjected to public scrutiny in and of itself can act as a powerful motivator. It helps make sure that business and industry files all of the required information and in a growing number of instances acts as an incentive for industry to go beyond mere compliance with the applicable law or regulation.

Regulatory agencies at the Federal and State level undertake proactive programs in order to make sure that the public has access to the data filed by the regulated community.

Under the Clean Water Act, for example, sources holding an EPA permit to discharge into waterways must implement as a permit condition sampling and testing programs. These discharge monitoring reports give detailed data including facts on whether or not the source is in compliance with all of its requirements and, if not, how the source intends to correct the problem. Quarterly non-compliance reports are routinely prepared and sent to individuals and groups on a mailing list. Individuals wishing to receive this data can simply write to EPA and be added to the list.

EPA often is required to file annual reports to the U.S. Congress on certain pieces of data that it collects under the various statutes. The agency routinely releases these reports to the public as well.

In many Regions of EPA press releases are issued, briefings are held and reports released on data submitted by various companies. The key objective is to make sure that the data obtained by a public agency actually reaches the public. Often, however, the data released as part of a proactive effort is cumulative in nature - it gives a general picture of the data from a Regional or national viewpoint - it is not industry specific.

Many representatives of the public want more specific information that pertains to an individual company or companies in a carefully defined geographic area. In the U.S., thousands of requests for data of this kind are released to the public under the Freedom of Information Act or a comparable state statute. These laws were established to ensure that the public has total access to regulatory agencies' files.

At the national level, the Freedom of Information Act was passed in 1978 and it is clear from its history that it was intended as a disclosure law, not a withholding law. In our Region as well as in all of the other parts of EPA, there is a presumption in favor of releasing information.

Only a few exemptions are allowed. First, a business or industry can request that certain pieces of data be withheld because it contains trade secrets that would hurt them and/or one or more of their competitors. Such a request is not automatically guaranteed. EPA must rule on a case by case basis that it contains confidential information that should not be released. If such an exemption is granted, the confidential business information must be handled very differently than other data filed by the regulatory community.

In a Region like ours, only a handful of people who have certain security clearances and who have passed a required annual test have access to such information. This group also must sign documents pledging that they will not divulge this confidential information and the penalties for violating that pledge are very serious. This high level of security is necessary in order to make sure that this confidential data is not inadvertently released.

Second, draft documents and working papers are also exempt from public access as are sensitive enforcement information, individual personnel records, matters of national defense or foreign policy, internal agency rules and information exempted under any other statute.

Handling the requests that come in under this act can be extremely resource intensive. In our Region, for example, some 1900 requests for various pieces of data were received in 1991.

When the request comes in it must be logged in, assigned a number and input into the computer for tracking purposes. This is critical since under the law, the agency has 10 working days to respond to the request. The request then has to be reviewed by the person in charge of that information as well as by an attorney. In most instances it is determined that the information can be immediately released. In our Region, in about 15 percent of the cases, it is determined that portions, or all of the request must be denied because the information is exempted under the law. EPA must notify the requestor of that denial and state specifically why that data can not be released. The requestor does have appeal rights and in some instances the information ends up being released.

Once a positive determination is made, the information must be copied and sent back to the requestor. Often the files are voluminous and it takes a good deal of effort to complete that copying process. Under the law, EPA can charge a requestor a specified amount for that task. The Agency must notify the requestor of the estimated cost before the copying gets underway. In many instances the Agency is asked to waive those costs since release of the data would clearly be "in the public interest". Those waivers are granted for the most part except in cases where the requestor is gaining the information for a profit making venture (such as requests from environmental consulting firms that are trying to get information to augment its business contacts).

2 PUBLIC DISCLOSURE OF ENVIRONMENTAL RELEASES

One telling example of a disclosure law in the United States yielding unexpected benefits, is the Toxics Release Inventory (TRI) program under the Emergency Planning and Community Right to Know Act of 1986 (EPCRA). This law requires manufacturers who discharge/use more than 10,000 pounds of any of 300 chemicals or chemical categories, to record and report to the U.S. Environmental Protection Agency on any releases and off-site transfers. TRI is essentially a reporting and public disclosure instrument.

Since 1987, EPA has issued an annual public report on the data contained in the Toxics Release Inventory submitted by more than 22,000 facilities all across the United States. When the first report was issued, U.S. regulators, reporting corporate officials and the general public at large were stunned at the high volume of toxics being released into the environment or being transferred off site. This was the first comprehensive report of its kind and it showed that more than 7 billion pounds of toxics were being released or transferred off site by U.S. facilities. The public was in an uproar and the release of this data had a profound impact on the regulated community.

It should be noted that, under TRI, a company is not required to reduce their emissions, but because of the negative publicity resulting from full disclosure of the TRI data, many U.S. corporations have embarked on aggressive programs to minimize waste, to use smaller amounts of toxic materials, and to substitute less toxic constituents in their processes.

Even where the use and release of toxic chemicals is legally permissible per agency standards and legal requirements, public disclosure of the amounts of these releases by EPA has prompted major action by sources to reduce such use and releases. No facility wants to be identified as a major emitter or user of chemicals even when their actions are completely legal.

The public release of the TRI data is accomplishing its intended goal. Each year there has been an overall decrease in total releases and transfers. For example, there has been an 11 percent decrease in TRI releases and transfers in the last two years.

This simple act of reporting and the public disclosure of self-generated data has had a persuasive and dramatic effect at U.S. facilities that use and release chemicals.

As a direct result of the release of the TRI data, national legislation was enacted in 1990 (the Pollution Prevention Act) that expanded EPA's role in encouraging industrial source reduction and recycling in all of its regulatory and non-regulatory programs by requiring sources to report on what efforts they have underway to reduce, recycle, reuse or treat each chemical reported on a TRI form.

The publication of this data has also produced an avalanche of legislation at the state level requiring more specific information reporting from companies. Approximately 16 states, through legislation, now variously require sources to report to regulating agencies on how they plan to reduce their emissions, reduce their use of toxics materials, reduce waste streams and prevent pollution.

The TRI data base is completely computerized and the public has full access to that information. EPA, in many Regional Offices, has undertaken training problems on how to access the data. In the New England Region, for example, training courses for environmental newspaper, radio and television reporters were held. That Region has also trained environmental group leaders and staff members of elected officials. This type of training is critical to ensure wide public dissemination of the material contained in TRI.

3 PUBLIC NOTICE AS AN ENFORCEMENT TOOL

In many instances the release of self generated data can be very useful in returning a violator to compliance or in actually generating a formal enforcement action.

As noted earlier, under the Clean Water Act, summaries of the discharge monitoring reports filed by business and industry are routinely circulated. Citizen groups also review EPA files to determine if any violators of the Clean Water Act have been reported by those holding permits.

As a result, over the years, groups have brought a number of suits against companies for violation of these permits. Approximately 100 cases a year have been brought under the Clean Water Act citizen suit provisions. In 1991, nearly $5 million in penalties were imposed as a result of these citizen suits. The previous year was also a record where nearly $3 million was collected. It is clear then that under the Clean Water Act, a company's own data is being used to generate enforcement action. This certainly acts as an incentive for companies to stay in compliance.

It should be noted that in many instances these citizen suits have been filed because the government at the Federal or state level has been unwilling or unable to take enforcement action. In some instances these suits have helped the government improve its compliance roles.

Another form of public disclosure can be found in the Safe Drinking Water Act. Under this law, water suppliers must routinely sample drinking water, typically once a month, obtain independent laboratory certification of contaminant levels, keep records and report compliance status on a monthly basis to the regulatory agency. Depending on the seriousness of the violations, sources must make a full disclosure to the appropriate regulatory agency within forty-eight hours.

In addition, if monitoring reveals serious non-compliance, water supply customers must be notified by radio/television broadcast, newspapers and/or by direct mail within specified time frames. Naturally, such disclosure of problems with a water supply can lead to a lot of pressure on the supplier to immediately correct the deficiency. The consumers will demand quick response. Once such contamination is reported, subsequent remediation or corrective action must also be publicly noticed and reported regularly to the agency until water quality is restored.

Water suppliers take extra steps to ensure a safe water supply knowing full well that there will be full public disclosure of any problems.

4 THE POWER OF THE PRESS

As noted earlier, the press has access to much of the self-generated environmental data required of the regulated community. This can act as an incentive for sources to provide data required by the government in a complete accurate and timely fashion. Non reporting in and of itself can be damaging to a company's public image and can lead to civil or criminal liability.

In the U.S., as in many other countries, the fear of adverse publicity acts as a strong deterrent to non-compliance with environmental requirements. Having a positive image in a society of environmentally concerned citizens/consumers is important to regulated sources. In the U.S., companies want to be known as "green" companies they do not want to be labelled "polluters." Because public disclosure of non-compliance is damaging, this mechanism is used deliberately as a tool by lawmakers, courts, agencies and environmental groups to obtain compliance.

In the U.S., State and Federal environmental agencies commonly issue press releases about non-compliance by individual sources. Agency records of non-compliance, even when based on source-furnished data, are available to the public and often are publicly disclosed.

In the U.S., EPA's national and regional offices routinely issue press releases and news stories about enforcement actions and penalties assessed against non-complying sources. The same is true of state environmental agencies.

EPA annually issues an Enforcement Accomplishment Report which includes individual case summaries. This is widely disseminated to citizens throughout the country. The agency also reports on its efforts to Congress and this data is also available to the public.

Members of the press and environmental groups commonly review compliance information in agency files that has been supplied by sources. This too can lead to press related stories and even citizen law suits against non-complying sources.

Corporations in the U.S. fear bad publicity. It is bad for their image. It can hurt their sales and a damaged reputation can sometimes put a company out of business. The fear of a negative image is very real, and therefore, many companies knowing that there will be public disclosure of data they are providing, go out of their way to ensure compliance.

Business and industry also utilize the press. When monitoring and data show improvements or significant reductions in pollution levels, U.S. industry routinely contacts the media to get that message out. Industry has come to recognize that being more open and releasing information on a timely fashion can be to their advantage.

In our Region, we have found that the press can be a major ally in helping to improve compliance. Often after publicizing an enforcement case, we will hear from other companies who may be having a problem and want to talk to us about how they can resolve their non-compliance. Companies have often asked us to withhold the issuance of a press release or have asked us if they can review such a release before it is sent out to the press. In our Region, we issue a release on every enforcement action. Whether to issue a release or not is non-negotiable. We do not allow a company to review a press release before it is issued, however, if a facility is cooperating with us and moving quickly to correct the problem, we will give them credit for that activity in our release. We also have received "tips" about similar compliance problems from people who read or hear about an enforcement action in the press. We send inspectors out to follow-up on these complaints. We are the only Region (among the 10 EPA Regions) that issues a release on every action. We certainly feel that making this information available to the media - and therefore the public - helps make business and industry want to comply with the law. The press can be a powerful ally.

5 INTEGRITY OF DATA IS KEY

In order to have full and complete disclosure, EPA as well as state agencies undertake a number of programs to ensure data integrity.

First and foremost, it is important to make sure that all sources that are required to file self-monitoring data, do exactly that. The agency does take action against those who fail to file the required information and there are stiff monetary penalties for those who refuse to cooperate. For example, under the TRI program, more than $16 million in penalties for not filing timely reports has been assessed. Tracking is done under the Clean Water Act to make sure that the required discharged monitoring reports are filed. When a report is not filed on a timely basis penalties can be assessed.

Making sure that the data is complete and accurate is also important. EPA relies heavily on data generated by the regulated community. The Agency takes a number of steps to make sure that what is being filed is accurate information. Surprise audits of a company's discharge are undertaken for example.

The penalties for filing false or inaccurate data are very severe and can even result in criminal actions. In our Region we have initiated criminal actions against several companies we believed filed false data in order to avoid a showing of non-compliance. The Agency has shown its willingness to use every enforcement tool at its disposal to guarantee the integrity of its data.

6 PUBLIC DISCLOSURE HAS LED TO MAJOR POLLUTION PREVENTION EFFORTS

Having a good environmental record is of primary importance to many U.S. businesses and industry. The regulated community also has come to recognize that a heavy emphasis on enforcement at the State and Federal level has made it very costly to go out of compliance.

Businesses are well aware that the data they submit to regulators will be open to public scrutiny. As a result, many corporations, particularly major ones, have begun to implement ambitious pollution prevention programs. Instead of cleaning up pollution at the end of the pipeline, businesses have begun to implement programs to prevent pollution from occurring in the first place. They therefore, in their report to the regulating agencies, will show progress. Many businesses and industries in order to get full credit for their efforts, issue press releases or progress reports on their efforts. It is the regulated community itself that utilizes public disclosure when there is a good story to tell. Many U.S. corporations have recognized the importance of disclosing environmental success stories and this has led to more awareness that it is necessary to implement pollution prevention programs.

7 CONCLUSION

Full and open public disclosure of virtually all data supplied to the government by the regulated community is a somewhat unique feature of the U.S. regulatory process. While some in the regulated community may not like it, the fact is that disclosure has brought many benefits to environmental management in the U.S. The public has come to expect full and open disclosure as part of the regulatory process.