Debate Over How to Punish Repentant Polluters

Issue of public's right to know about polluters also divides administration, states.

When a company discovers it's inadvertently violating some environmental regulation, but takes quick steps to resolve the problem, should it be slapped with a big fine anyway?

Do people living next to that plant - people whose health or property values may be at stake - have the right to know every detail about the toxic waste being created there?

These questions are the essence of a major environmental debate gaining steam across the country and on Capitol Hill. It pits Uncle Sam against state governments, communities against manufacturers, and it involves basic political issues and competing fundamental rights.

Over the past three years, 24 states have passed laws granting certain polluting companies "privilege" or "immunity" (or both) if they conduct internal audits to look for environmental problems.

What this means is that business records can be kept secret and there will be no punishment as long as such companies have broken no other laws, admit there's a problem, and clean up.

Sen. Kay Bailey Hutchison (R) of Texas is sponsoring a bill that would extend the practice nationwide. "By ensuring companies that they will not be dragged into court for being honest, the bill encourages companies to find and fix violations and report them to the Environmental Protection Agency [EPA]," she says. And with Senate majority leader Trent Lott (R) of Mississippi as an enthusiastic co-sponsor, chances are the measure will move expeditiously in Congress.

But this effort to loosen regulations while encouraging voluntary cleanup has run smack into a key Clinton administration goal: making more (not less) information about pollution and waste available to the public.

"We believe that one of the most important tools we can give people is the 'right-to-know' about toxic pollutants in their own neighborhoods - so they can take steps to protect themselves and their families, and so they can take action to reduce pollution in their communities," EPA administrator Carol Browner told the Congressional Black Caucus.

The administration has nearly doubled (to 643) the number of chemicals that companies must report annually under the Toxics Release Inventory program. It has increased by 30 percent (to more 31,000) the number of industrial facilities required to make such information public, and it proposed putting pollution information on several key industries - oil products, steel and other metals, autos, and paper - on the Web.

The administration has cracked down on illegal polluters by issuing record fines. And while it has encouraged companies to comply with antipollution laws by lowering or waiving such fines in many cases, it strongly opposes what Assistant Attorney General Lois Schiffer called a "polluter secrecy act."

Law-enforcement officials around the country also are against any self-audit policy that could hide wrong-doing.

Representing the National District Attorneys Association, District Attorney General Victor Johnson of Nashville, Tenn., told a Senate subcommittee: "Prosecutors need to be free to pursue the environmental outlaw."

Privileged information, as defined by law, should remain limited to husbands and wives, attorneys and clients, members of the clergy and their parishioners, says another official with the district attorneys group.

The push for privilege and immunity began in 1993 when the Coors Brewing Co. in Golden, Colo., discovered it was emitting much more air pollution than regulators had thought. Even though it volunteered the information, Coors was fined $1 million (later cut to $237,000).

That year, Oregon passed the first self-audit law designed to protect companies in that circumstance, and Colorado quickly followed as the first state to grant both privilege and immunity.

Meanwhile, there also has been growing opposition to the trend. In Cincinnati, for example, a largely African-American community has been fighting a landfill suspected of being responsible for toxic gas and other pollutants.

"This is a matter of environmental justice," says the Rev. Solomon Lundy, a community leader fighting efforts by the landfill owner to withhold information under Ohio's privilege law.

At the same time, the EPA has been threatening to limit state government authority in enforcing such federal laws as the Clean Water Act, the Clean Air Act, and the Superfund law governing toxic wastes. In five states - Colorado, Idaho, Michigan, Ohio, and Texas - critics have formally petitioned the EPA to do so.

In some cases, threats have led to actions. Three weeks ago, Ms. Browner ordered Louisiana to stop issuing air permits for a new chemical plant in the low-income town of Convent, which is predominately African-American.

This kind of power play by Uncle Sam has rankled state officials, particularly since a Democratic administration is butting heads with the Republicans who dominate most state houses.

"The way the federal-state relationship is evolving, it's still very much a parent-child relationship," Allan Bedwell, deputy commissioner of the Massachusetts Department of Environmental Protection, told the National Journal. "Not only are we being told to clean up our rooms, but we're being told how to [do it]."

Clinton administration officials point to the record of the Toxics Release Inventory (TRI) program as proof that making more information available to the public helps reduce pollution. Since the TRI program began in 1988, says Browner, "industrial facilities required to report their toxic releases have reduced their emissions by 46 percent."

Another EPA administrator adds that "an audit privilege invites secrecy and breeds distrust."

Senator Hutchison disagrees. Her bill "does not mean that companies that pollute go scot-free.... There is no protection for willful and intentional violators, companies that do not promptly cure violations, companies asserting the law fraudulently, or companies trying to evade an imminent or ongoing investigation."

According to a Price Waterhouse survey, about three-quarters of US businesses now conduct environmental audits, and 81 percent of those try to keep the results secret. So the debate over privilege versus the public's right to know is far from over.


* Four states allow businesses to keep their records secret if they clean up environmental violations quickly:

Illinois, Indiana, Oregon, Arkansas

* Two states forgo fines on businesses that clean up the problem quickly:

New Jersey, South Dakota

* Other states have both protections:

Alaska, Colorado, Idaho, Kansas, Kentucky, Michigan, Minnesota, Mississippi, Montana, Nevada, New Hampshire, Ohio, Rhode Island, South Carolina, Texas, Utah, Virginia, Wyoming

Source: Environmental Protection Agency

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