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The Planet

November 1997, Volume 4, number 9

Skeletons in the Dumpster

Right-to-Know-Nothing Laws Boon to Polluters

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)

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;

Back to The Planet (November 1997)

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