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November 1997, Volume 4, number 9
Skeletons in the Dumpster
by Jenny Coyle
They say that what you don't know can't hurt you, but when it comes to
industry pollution, what you don't know can kill you -- or give you respiratory illnesses,
or cause your children to develop cancer, or contaminate your water supply.
In order to monitor polluters and force them to clean up after themselves, citizens
need access to the facts. But while there's an increase in laws protecting our "right
to know" -- public access to information on the toxic chemicals routinely released by
companies -- pollution secrecy laws are also on the rise.
More than 20 states have passed audit privilege laws, or "dirty secrets
laws," as they are called by environmentalists. If polluters confess violations they
discover during self-audits to regulating agencies and clean them up
"expeditiously," they are allowed to keep any documents related to the violation
under lock and key. This guaranteed secrecy, or "privilege," blocks public and,
in the event of a lawsuit, judicial access to details of the violation, leaving downstream
neighbors who may have been affected by the violation no recourse.
Some states also have provisions for immunity, which frees polluters from penalties --
even in the event of criminal acts like the intentional dumping of hazardous waste. Some
states have passed laws that include either immunity or privilege, but most provide for
both.
"Ironically, as law-enforcement officials take steps to get tougher on individual
criminals, lawmakers are protecting white-collar polluters by allowing them to hide
information about their violations of environmental laws under this cloak of
secrecy," said Mark Woodall, the Club's Audit Privilege Task Force chair. "The
companies -- which operate with permits granted by us citizens via government agencies --
decide what we know about how they're operating. This is a fundamental wrong in a
democratic society."
The Charleston, W. Va., Gazette illustrated the implications of pollution secrecy this
way: "More than 4,000 people were killed in Bhopal, India, by a leak at the Union
Carbide plant in 1984. If such a tragedy ever occurred at a Carbide plant in West Virginia
-- God forbid -- we're sure the company would love to be able to hide information about
conditions leading up to the accident."
The state laws are a step backward from gains made by federal right-to- know
legislation, which guarantees public access to information about pollutants -- and
polluters. For example, in May the U.S. Environmental Protection Agency added seven
industries to those that must report their toxic emissions and transfers of toxic
chemicals for the Toxic Release Inventory.
One EPA document states that the agency "supports environmental self-auditing, but
generally opposes audit privileges, which invite secrecy rather than the openness needed
to build public trust in industry's ability to self-police." But Woodall and others
are appalled that the EPA hasn't been tougher on some states; in Texas, for instance, the
pollution secrecy law extends the privilege to health and safety violations and includes
an anti-whistleblower provision making it a crime for employees or government officials to
divulge anything from the audit files.
In Missouri, where dirty-secrets legislation has been beaten back two years in a row,
Club program director Ken Midkiff has some advice for activists: "Hit the hometowns
of the bill's sponsors and supporters. In letters to the editor, press releases and op-ed
pieces, present it in terms of 'locking up information on polluters,' and remind the press
that access to public documents is sacred. Organize a phone bank or letter-writing
campaign urging activists to contact 'those who place corporate polluters' profits above
public health and safety.' Local radio ad campaigns are very effective as well."
The battle may soon be played out at the federal level: Senate Majority Leader Trent
Lott (R-Miss.) co-sponsored S. 866, the Environmental Protection Partnership Act, which is
the standard audit-privilege bill plus a provision prohibiting the EPA from taking action
against states that pass even the worst form of secrecy and immunity laws. Sen. Kay Bailey
Hutchison (R-Tex.) is the lead sponsor.
Ross Vincent, the Club's Environmental Quality Strategy Team chair, whose home state of
Colorado has an especially insidious audit-privilege law, said, "Progress in reducing
pollution is directly a function of publicly available information. People discover why
they're suffering and who's poisoning them, and they insist it stop. Because
audit-privilege legislation limits access to information, such proposals are a giant step
backward."
Rate Your State (Source: U.S. EPA)
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Companies are granted immunity from fines and other penalties in:
New Jersey, South Dakota |
Companies are allowed to keep their pollution records secret in:
Arkansas, Illinois, Indiana, Oregon |
Companies enjoy both protections in:
Alaska, Colorado, Idaho, Kansas, Kentucky, Michigan, Minnesota, Mississippi, Montana,
Nevada, New Hampshire, Ohio, Rhode Island, South Carolina, Texas, Utah, Virginia, Wyoming |
| For more information: Contact your state legislative program or Mark Woodall,
Chair of the Audit Privilege Task Force, P.O. Box 185, Woodland, GA 31836; (706) 846-2281;
mark.woodall@sierraclub.org |
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