Summary of Environmental Law in the United States

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5 Environmental Information

 

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5.1 Public Access to Environmental Information

 

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Under the Freedom of Information Act (FOIA), all federal government records not falling within certain exemptions must be made available to the public upon request. Citizens may ask the agency to provide copies of all documents dealing with a particular subject. Records exempted from disclosure include, for example, records relating to national security, foreign policy, internal personnel practices and files, commercial trade secrets, inter-agency memoranda, ongoing enforcement matters, sensitive information from financial institutions, and certain geophysical information relating to wells. Agencies must respond to any request within ten days, informing the requestor whether the agency will provide the information and how the requestor may appeal the decision to the head of the agency or to a court. 5 U.S.C. sec. 552.

The Government in Sunshine Act, 5 U.S.C. sec. 552b, requires that all meetings of commissions or other formal agencies headed by more than one person must be open to the public. The public must be provided notice of the time, place, and subject of any meeting at least one week in advance. The exceptions are similar, though not identical, to the exceptions in FOIA. The act only requires public observation, not participation, in the meetings.

Many federal environmental statutes also provide specifically for public access to environmental information. Examples of the kind of information available to the public include: (i) an inventory of toxic releases, see Section 5.2: Industry Reporting Requirements; (ii) the amount and location of hazardous chemicals stored at a facility, see the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. sec. 11022, and Section 14.2: Emergency Response and Preparedness; (iii) monitoring results under most environmental permits; (iv) the results of certain environmental or public health studies, for example toxicological profiles under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. sec. 9604, or certain health and safety studies submitted under the Toxic Substances Control Act, 15 U.S.C. sec. 2613(b); or (v) information relating to accidental spills and releases, see Section 14: Environmental Emergencies. Federal government agencies are required to disclose toxic chemical use, emergency planning measures, and pollution prevention data under Executive Order 12856 issued by President Clinton. In addition, a number of laws require disclosure of specific types of information to protect particular categories of persons. See Section 13.5: Transfer Restrictions and Requirements; and OSHA's (Occupational Health and Safety Act) Hazard Communication Standard which protects workers by requiring the disclosure of chemical hazards, see Section 24.4: Occupational Health and Safety.

There are also numerous state and federal government efforts to distribute information. These include informational telephone numbers, databases, published reports, and library collections. For example, the Environmental Protection Agency (EPA) runs a series of "hotlines" to answer specific questions regarding federal environmental laws and regulations, and New Jersey's Department of Health makes health and safety information on over 1000 hazardous substances available on its "Right-to-Know Net." In addition, The Sector Facility Indexing Project (SFIP), a pilot program developed by the EPA and released in May 1998, is a database of environmental records on 653 industrial facilities from five industrial sectors, including: automobile assembly; pulp manufacturing; petroleum refining; iron and steel production; and the primary smelting and refining of aluminum, copper, lead and zinc. The database provides environmental data about each facility such as the number of inspections, compliance with federal regulations, enforcement actions taken, chemical releases, and spills. In a separate project, the federal government is moving to publish various environmental indexes designed to track trends in environmental conditions.

State Access to Information Laws

Every state has an access to information law analogous to FOIA.

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5.2 Industry Reporting Requirements

 

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See also 14.1: Emergency Notification and Reporting Requirements.

The federal government has taken three general approaches to requiring industry reporting of environmental information. First, almost every federal environmental law or permit includes specific provisions requiring the collection, submission to the government, and public disclosure of certain types of environmental information aimed at monitoring compliance with, and enforcing, environmental standards. Most of these provisions allow companies to protect confidential business information or trade secrets from disclosure.

Secondly, the federal government requires disclosure of a wide range of information to aid in preparing for, and responding to, emergencies. See Section 14: Environmental Emergencies. Finally, the federal government has enacted broad "right-to-know" laws that require the disclosure of certain routine information not necessarily related to obtaining permits or to monitoring compliance with specific environmental standards. Foremost among these is the Toxic Release Inventory. Other routine reports required by the federal government include the Emergency and Hazardous Chemical Inventory Forms, discussed in Section 14.2, and the Toxic Chemical Reduction and Recycling Report, discussed in Section 12.1.

The Toxic Release Inventory (TRI) is a computerized database that includes information from over 65,000 industrial facilities within the United States. Most manufacturing industries having more than ten full-time employees are covered. Covered facilities must report in any year if they manufacture, import, or process more than 25,000 pounds, or use more than 10,000 pounds, of certain listed toxic chemicals. See 40 C.F.R. pt. 372. There are several exemptions from TRI reporting, including, for example, trade secret information, chemicals used in laboratories, or chemicals present in the structure of the facility or in an article. See 42 U.S.C. secs. 11023, 11042.

In addition to requiring industry reporting of environmental information, the EPA issued a policy statement in 1995 entitled, Audit Policy: Incentives for Self-Policing. This policy encourages regulated entities to voluntarily discover, disclose and correct violations of environmental requirements. The incentives include eliminating or substantially reducing the gravity component of civil penalties and not recommending cases for criminal prosecution where specified conditions are met for those who voluntarily self-disclose and promptly correct violations.

State Environmental Reporting Requirements

Many states also have environmental reporting requirements. In addition, states began enacting environmental self-audit laws in 1993. Such laws allow for reduced penalties or immunity from state enforcement actions for violations found through audits that subsequently are corrected voluntarily and reported to regulators on a timely basis. Some states also treat environmental audit reports as privileged information that may not be introduced as evidence in legal proceedings over compliance with environmental laws. The main differences between many state laws and EPA's policy are state privilege provisions. EPA does not treat environmental audit reports as privileged. Because federal common law of privilege applies in Federal Court, the state privilege laws do not affect the EPA's ability to enforce environmental violations. Further, state immunity laws also tend to be broader than EPA's policy. If the EPA is not satisfied with a state's enforcement of federal environmental regulations, it may override the state by taking its own enforcement action.

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2003