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RIGHT TO KNOW Fact Sheet # 3
Loopholes in the Right to Know Law

Source: Environmental Action Foundation
1525 New Hampshire Ave., NW
Washington, DC 20036


The Emergency Planning and Community Right to Know Act (Right to Know), like most laws, was the product of many political compromises. Loopholes in the law enable polluters to under-report total toxic releases. In addition, thousands of companies are exempt from toxic chemical release reporting under Section 313. As a result, Right to Know data does not accurately reflect the real amount of toxics being dumped into the air, land and water. The loopholes and exemptions in the law hinder citizen efforts to promote toxics use reduction. This fact sheet describes Right to Know exemptions and loopholes that distort the real toxic threat in our communities. "Loopholes in the Right to Know Law" is the third in a series of five fact sheets pertaining to understanding and using the Right to Know Act and is designed for people who are familiar (already using) with the Right to Know Act.

Many polluting industries are not required to report. Only manufacturing facilities with Standard Industrial Classification (SIC) codes 20-39 are required to submit toxic release inventory forms (Form R's) under Section 313 of the RTK law. Many polluting facilities are exempt from reporting their toxic releases into the environment. For example, a fuel storage facility in Maryland located next door to an elementary school releases thousands of pounds of benzene, toluene, and xylene into the air each year. Since the facility is not a manufacturer, it is not required to report its toxic releases. The public has a need and right-to-know about all pollution sources in their communities.

Exempt facilities include the following:

The Recycling Loophole: Pollution through the back door. Under EPA regulatory policy, toxic chemicals shipped to off-site "recycling" facilities are exempt from Section 313 reporting requirements. Although recycling usually strikes up positive images, toxic chemical recycling can have devastating impacts on human health and the environment. The recycling loophole allows toxics to be burned as fuels which creates significant pollution problems due to air emissions and ash residue. In addition, recycling toxics perpetuates the toxics cycle instead of reducing the toxics used at facilities.

In their March 1991 report, The "Recycling" Loophole in the Toxics-Release Inventory, the authors explained:

"The bulk of these off-site recycling shipments are known to be burned in cement kilns, blast furnaces and industrial boilers. Large amounts are also sent off-site to solvents or metals recovery operations.

"This reporting loophole undermines the public's right-to-know about shipments of toxic wastes and reduces the usefulness of right -to-know data for monitoring industrial pollution prevention activities. In addition, despite new hazardous waste regulations, most industrial boilers, to which some of these materials are sent for burning, will remain less stringently regulated than hazardous waste incinerators.

"Problems regularly caused by hazardous waste recycling include worker exposure, site contamination, air emissions, transportation accidents, fires, spills, incomplete combustion and other failures and releases. The following example shows the relationship between toxic pollution and shipments passing through the recycling loophole:

"A Formosa Plastics facility in Point Comfort, Texas, ships over 14 million pounds of ethylene dichloride (EDC) each year to PPG Industries in Lake Charles, Louisiana, for "recycling" without reporting these transfers under the Right to Know Act. Both Formosa Plastics and PPG Industries have seriously contaminated the environment around their facilities with EDC."

Right to Know does not require reporting for all chemicals.

Facilities must report their use of approximately 320 EPA OlistedO chemicals under Section 313. However, there are currently over 60,000 chemicals used by industry in the U.S. Companies may release unlimited amounts of chemicals that are not listed without being subject to Right to Know reporting.

EPA is responsible for adding new chemicals or removing (delisting) chemicals from the list. (Delisting means EPA has taken the chemical off the list of Section 313 chemicals considered toxic. If a chemical is delisted, industry is no longer required to report its releases.) Industry has successfully petitioned EPA to OdelistO several chemicals. During 1990, EPA denied American Cyanamid's petition to delist sulfuric acid.

The "delisting" of chemicals has enabled companies to claim reductions in toxic releases. For example, in 1988 EPA delisted sodium sulfate. In 1987, sodium sulfate accounted for 55% of the 21.3 billion pounds of total toxic chemical releases reported pursuant to the Right to Know Act. After sodium sulfate and several other chemicals were delisted, the apparent reduction in emissions was approximately 12 billion pounds, even though these delisted substances continue to pour into the air, land and water.

High threshold limits mean significant releases go reported.

Companies are only required to report toxic chemical releases for chemicals they:

1. "Otherwise use" in quantities greater than 10,000 pounds.

2. "Manufacture" or "Process" in quantities greater than 25,000 pounds.

Quantities of toxic chemicals otherwise used, manufactured or processed below these threshold limits need not be reported under Section 313. For example, a printing press in Virginia generates approximately 35,000 pounds of hazardous waste each year and emits approximately 160,000 pounds of volatile organic compounds into the air each year. Because the facility does not otherwise use, manufacture or process a Section 313 chemical above the threshold quantities, their toxic releases go unreported.

Small facilities don't have to report.

Companies with fewer than 10 employees are exempt from reporting their toxic chemical releases pursuant to Section 313. Small facilities may use large quantities of toxic chemicals that pose a significant threat to workers and the environment. For example, one Maryland company with only 12 employees reported that they emitted over 100,000 pounds of toxics into the air and shipped off-site over 500,000 pounds of hazardous waste. If the company had less than 10 employees, their toxic releases would have remained undisclosed to the public.

Non-reporters: Inadequate enforcement.

In addition to the many loopholes in the law that obscure the real amount of toxics released into the environment, thousands of companies required to report their releases have failed to do so. An EPA study estimated that as many as one third of all facilities that need to report their toxic releases have not reported. EPA's enforcement staff is only able to process a handful of Right to Know cases each year. Non-reporting means that citizens have an incomplete database when they are trying to assess total toxic pollution loading figures. Citizen enforcement of the Right to Know Act has proven to be an effective way to deter non-compliance. For information regarding how to identify Right to Know violators and how to enforce the Right to Know Act, see Environmental Action Foundations fact sheet four.

The future of Right to Know.

While environmentalists and labor organizations worked to secure a comprehensive Right to Know Act, industry fought the law and did everything possible to weaken it. As a result of industrial lobbying, several loopholes in the Right to Know Act exempt major sources of toxic pollution from reporting their emissions to the public. As groups try to improve the Right to Know law to close the loopholes and expand the universe of facilities that must report, citizens can get the real toxics story by conducting additional research under the Clean Air Act, Clean Water Act, and Resource Conservation and Recovery Act. EAF's fourth fact sheet entitled, "How to Identify Right to Know Violators and Get the Real Toxics Story" describes research strategies citizens can employ to document the total toxic releases from facilities and identify non-reporting facilities.

Other Right to Know Fact Sheets Available:

For more information regarding the Right to Know Law and/or additional Fact Sheets contact:

Environmental Action Foundation
1525 New Hampshire Ave., NW
Washington, DC 20036
(202) 745-4870

Source: RTK Net, Washington, DC

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