Environmental goals suffer when right-to-know laws go wrong

by Alexander Volokh
Greater Milwaukee Business Journal, October 5, 1996

As part of his new environmental agenda, President Clinton has pledged to expand environmental "right-to-know" laws to enhance "Americans' right to know about toxics in their community."

As Clinton told his Kalamazoo, Mich., audience, his plan would include "a comprehensive monitoring system with computers linked to schools, libraries, community centers, and home computers."

Conventional environmental wisdom holds that right-to-know legislation is a fundamental component of environmental quality -- one that works without any need for regulation and fulfills the basic moral mission of informing Americans about dangerous chemicals in their communities.

Conventional wisdom, however, is wrong.

Right-to-know laws, featuring the Toxics Release Inventory (TRI), have little to do with actual harm, and relying on them may tell us little about environmental impacts. Worse, relying on the TRI may hurt other environmental goals, like recycling.

Here is a story about how "right-to-know" laws can go wrong.

Two environmental groups, Wisconsin Citizen Action and Citizens for a Better Environment, earlier this year accused Charter Steel of Saukville of being one of Wisconsin's worst polluters. Based on 1993 TRI data, Charter Steel discharged 2.65 million pounds of toxic waste. For this number, the groups ranked Charter Steel among Wisconsin's "Dirty Dozen."

Understanding TRI

The TRI is a public database of certain businesses' chemical releases. These releases include emissions -- to air, land, surface water, or groundwater -- as well as transfers of chemicals to off-site recycling, energy recovery, treatment, or disposal facilities. In 1990, a broad production-related waste category was added, which also includes on-site recycling, energy recovery, treatment, and disposal.

To file a TRI report, a business has to belong to an Environmental Protection Agency-defined list of industries, hire at least 10 people and "manufacture, process, or otherwise use" some listed chemical in a quantity above an EPA threshold.

A business may "manufacture" (intentionally or unintentionally) or "process" (incorporate into a commercial product) only 25,000 pounds of a toxic chemical [before becoming subject to the reporting requirement]. The threshold for "other use" is 10,000 pounds.

How does the TRI work?

Suppose you paint cars, and your paint contains xylene and a lead-based pigment. Xylene and lead are both on the TRI list.

You "process" the lead -- it goes onto the car and into commerce. The xylene, a solvent, is "otherwise used" -- it dissolves into the air, where it may be captured by pollution control equipment, or released through the stack.

If you "otherwise use," say, 15,000 pounds of xylene and "process" 50,000 pounds of lead, you have to report your releases of xylene or lead in the TRI.

This is where it gets confusing.

The 50,000 pounds of lead make you qualify for filing a TRI report, but they aren't your "toxic releases." What you report are your emissions, transfers, or production-related waste. These are quite different and may be zero if you're really efficient, or, let's say, 1,000 pounds.

On the other hand, suppose your competitor only "processes" 24,000 pounds of lead, but is wasteful and releases 20,000 pounds. Since 24,000 pounds is below the threshold, he reports nothing.

The most important question, of course, is: What does the TRI tell us about the environment?

Well, the TRI reports suggest that you're more wasteful than your competitor, so that's misleading from the start.

Suppose, also, that you report releases of 1,000 pounds of lead and 3,000 pounds of xylene. Does that make 4,000 pounds of "toxic waste"? Yes and no.

All toxic waste isn't the same. Some substances are more hazardous than others. Some are handled safely; others are handled recklessly. But the TRI, which just reports pounds, connotes that everything is equally harmful.

Recycling Chemicals Safely

Some chemicals are safely recycled. Charter Steel generates a waste called pickle liquor, which it gives to sewage treatment plants, including the Milwaukee Metropolitan Sewerage District, to remove phosphates from sewage water.

MMSD normally pays for sewage-treatment chemicals, but Charter Steel's free pickle liquor saves the district $300,000 per year. Charter Steel provides 5 percent of the sewer districts' waste pickle liquor. This is different than dangerously dumping one's chemicals. Calling this a toxic release is highly misleading. But TRI reports don't make this distinction.

This indiscriminate reporting of emissions discourages all beneficial uses of hazardous waste, including recycling, since it creates bad publicity for anyone who releases listed materials.

The situation may get worse. Recently, the EPA expanded the number of listed chemicals to 650 from 364. Soon the EPA may increase the list of industries that file reports to include waste management facilities, materials recovery and recycling, electric utilities, materials extraction facilities, airports, and warehouses.

And the EPA may expand the list of reportable activities from just releases to actual use -- including starting and ending inventories, and the amount of the chemical that's shipped in the product.

The TRI doesn't force anyone to change their processes. But according to the EPA, "What gets measured gets done." Require companies to report shameful- sounding chemical uses, and under pressure from the public and environmental groups, companies will reduce those uses.

But the volume of releases -- which treats safe and dangerous releases alike and pretends that a pound of this is equivalent to a pound of that -- has little relation to hazard. When there's no hazard, reducing releases is costly and serves no purpose. How much more so when one reports not just releases but internal uses.

Being for a better environment isn't the same as knowing what's environmentally sound. The environment is hard to define, and environmental quality isn't a one-dimensional measurement. Actions designed to help the environment may backfire and harm it. Actions that help one environmental indicator may harm another.

So it is with the Toxics Release Inventory, as Charter Steel of Saukville has discovered, and as President Clinton would do well to learn.

Alexander Volokh is an assistant policy analyst at the Reason Foundation, a public policy think tank based in Los Angeles.