POISONOUS PROCEDURAL “REFORM”:
In Defense of Environmental Right to Know

John D. Echeverria & Julie B. Kaplan
Georgetown Environmental Law and Policy Institute, Georgetown University Law Center
4nov02

[ For complete paper go to offsite news release ]

About the Authors

John Echeverria is the Executive Director of the Georgetown Environmental Law and Policy Institute and Julie Kaplan is a Staff Attorney with the Institute. John Echeverria is the former General Counsel of the National Audubon Society and former General Counsel and Conservation Director of American Rivers. He served as law clerk to the Honorable Gerhard A. Gesell and is a graduate of Yale Law School and Yale School of Forestry and Environmental Studies. Julie Kaplan worked for many years in the Environment and Natural Resources Division, U.S. Department of the Justice, enforcing federal environmental statutes. She is a graduate of Yale Law School and served as law clerk to the Honorable Marvin Katz.

The Georgetown Environmental Law and Policy Institute conducts research and education on legal and policy issues relating to protection of the environment and conservation of natural resources. The Institute publishes papers and reports by leading academics and practitioners applying rigorous analysis to contemporary environmental and natural resource law issues. The views expressed in Institute publications do not necessarily reflect the views of the Institute’s board of advisers or of Georgetown University.

I. INTRODUCTION AND SUMMARY

Information disclosure has become a widely used and highly valued government tool for protecting public health and the environment.1 Disclosure, or “right to know,” programs are credited with bolstering traditional regulatory approaches and helping achieve significant reductions in pollution levels.2 They also educate citizens about public health and environmental issues and empower them to take more active roles in addressing threats to their communities.3 At the same time, information disclosure programs have been the focus of increasing criticism, principally by representatives of the industries whose facilities, emissions, and products are subjected to public scrutiny as a result of these programs. One leading critic of disclosure programs is the Coalition for Effective Environmental Information ("CEEI"), which "includes representatives from the chemical, automobile, forest products, energy, electronics, petroleum, pharmaceutical, aerospace and consumer products industries” 4 CEEI has produced numerous position papers and other materials critiquing information disclosure programs, including a widely circulated "White Paper From Industry Coalition to EPA on Concerns Over Information Programs."5

Another group, the Center for Regulatory Effectiveness ("CRE"), a pro-business advocacy and consulting organization,6 has called for new restrictions on information disclosure and other reforms of EPA’s information polices.7 CRE was a leading supporter of the controversial “data quality rider,” which we discuss in some detail below.8 Another group, the American Chemistry Council (formerly the Chemical Manufacturers Association), has advocated greater restrictions on commercially valuable business information and on the disclosure of information which could create risks to national security.9

The critics do not challenge the legitimacy or value of information disclosure programs per se. Instead, they criticize the administration of the programs by federal agencies (the Environmental Protection Agency (EPA) in particular), as well as the scope and volume of the information disclosed to the public. They contend that the use of information disclosure has become so important in advancing environmental protection goals that it should be subject to many of the same kind of restraints which apply to regulatory programs. Collectively, the industry critics have advocated three basic limitations on government disclosure of environmental information: (1) greater procedural rights to comment on and otherwise influence the information federal agencies disclose to the public related to private firms’ facilities, emissions and products, including tighter controls on the “quality” of the data agencies disclose to the public; (2) more opportunities to go to court to challenge the administration of disclosure programs; and (3) new substantive restrictions on the disclosure of commercially valuable business information and information which may involve national security issues.

The purpose of this paper is to evaluate the industry criticisms of information disclosure programs and industry’s agenda for reform. The basic conclusion is that many of the industry proposals related to administrative procedures and judicial review would undermine information disclosure programs in order to address unwarranted or exaggerated concerns about the possible adverse effects of information disclosure. In general, industry has not substantiated the premise of its proposals that environmental data disclosed to the public are of poor quality or that disclosures of environmental data have inflicted unfair harm on private firms. Moreover, the proposed reforms would likely have serious adverse consequences for the effectiveness of disclosure programs. Greater procedural hurdles to information disclosure and more frequent judicial review would delay the disclosure of information to the public, divert agency resources from information disclosure activities to costly and time-consuming internal reviews, and enhance opportunities for industry to influence specific decisions about whether and how environmental information should be disclosed. Thus, seemingly innocuous “procedural” reforms would impede the flow of information to the public, defeating the important public objectives which the programs were set up to advance.

Industry proposals for new substantive limitations on information disclosure present a more complicated issue. Private firms which sell products to the public or which emit pollutants into the environment do not have an absolute legal right to block dissemination of information about their products or facilities to the public, even if such information can be classified as a “trade secret” or some other type of commercially valuable business information. Thus, determining whether to disclose this type of information ultimately requires a balancing of competing policy considerations. In our view, sound public policy will generally dictate public disclosure when it can reasonably be expected to advance an important public health or environmental protection goal.

On the other hand, in the aftermath of September 11, industry has raised some valid and important questions about whether the disclosure of certain environmental data, in particular related to releases of hazardous chemicals, needs to be more tightly controlled. The EPA and other agencies already have taken a number of steps to control access to information which might aid domestic or foreign terrorists. Nonetheless, there is a need for balance in this sensitive area as well. Disclosure of most kinds of environmental data does not raise a legitimate national security concern. Furthermore, over the long-term, the greater danger may well be created, not by public knowledge of the risks associated with potential releases of hazardous substances at certain facilities, but by the failure to eliminate or minimize the hazards and the lack of emergency response plans. Because public awareness of hazards can be a powerful spur to corrective action, disclosure of certain hazard information might ultimately do more to reduce risks than shielding the information from public view.

Two current controversies highlight the critical legal and policy issues raised by the debate over environmental information disclosure. First, federal agencies are in the process of implementing the “data quality rider,” a piece of substantive federal legislation adopted as a rider to the FY 2001 Treasury Department appropriations bill.10 The rider was reportedly added to the appropriations bill at the instigation of Representative Jo Ann Emerson,11 with the support and encouragement of the Center for Regulatory Effectiveness. The rider advances some key elements of the industry agenda to obtain greater opportunities to intercede in and challenge the administration of disclosure programs. At the same time, there is significant uncertainty about how far this legislation goes, in particular with respect to judicial review of agency determinations to disclose information. In February 2002, the Office of Management and Budget promulgated guidelines to assist federal agencies in implementing the rider,12 and individual federal agencies are in the process of developing their own agency-specific guidelines.

Second, Congress is considering a variety of legislative proposals to limit public access to environmental (and other) information in response to September 11. Two types of legislative proposals are being debated. One approach is to shield more information about potentially vulnerable plants and other facilities from public view. Another, not necessarily inconsistent approach, is to mandate that operators of vulnerable facilities take direct steps to minimize the risk of a disaster due to an accident or a terrorist attack. These issues may be thrashed out in the 107th Congress in the context of the debate over “homeland security” legislation.

Section II of this paper provides an overview of current environmental "right to know" programs. Section III explains, in theoretical terms, the functions and values served by information disclosure. Section IV is a thumbnail sketch of industry’s reform agenda. Sections V through VII analyze and critique the three major elements of the industry’s reform agenda. Finally, section VIII applies the analysis developed in the previous sections to comment on the data quality rider and information-related provisions of proposed national security legislation.

II. INTRODUCTION TO ENVIRONMENTAL INFORMATION DISCLOSURE PROGRAMS.

The primary reason information disclosure has recently emerged as an important environmental protection tool is that it is especially well adapted to an era in which massive quantities of information can be transmitted around the globe at lightening speed and at minimal cost. Computer technology makes information ever cheaper to “sift, analyze, and use,"13 allowing diverse users to assemble environmental data to suit their particular needs.14 On the other hand, industry critics also cite modern computer technology as one of the grounds for their concern about information disclosure policies. As observed by one commentator, "Through the Internet the government can now deliver a message about a company, product or facility to an unlimited number of world-wide customers instantaneously."15

The following is a concise summary of the leading government (and private) right to know programs. (Readers thoroughly familiar with the existing programs may wish to skip ahead to the next section).

_____________A. Federal Right to Know Programs.

_____________Toxics Release Inventory (TRI). The TRI, probably the best known environmental disclosure program, is a national, electronic database providing public access to large volumes of pollution data. The Emergency Planning and Community Right-to-Know Act (EPCRA), which authorized the creation of the TRI, requires companies to report to EPA on their annual releases of toxic chemicals, facility by facility, chemical by chemical, and for all environmental media (land, air, and water).16 EPA personnel transfer the data into the TRI database, making the information accessible from any public or private computer. EPA’s “TRI Explorer” website allows the public to access TRI data by facility, chemical, year, industry type, or geographic area.17

The primary impetus for the creation of the TRI was public concern about the hazards associated with industrial chemicals following the 1984 disaster at a Union Carbide plant in Bhopal, India, and several other, less publicized chemical accidents in the United States in 1985.18 In addition, the federal legislation helped promote a uniform national standard for toxic release reporting.19

The TRI has made enormous quantities of new information available to the public, and provided some firms with information that they themselves had not previously collected.20 One widely cited statistic is that the TRI was associated with a 44 percent reduction in reported releases of listed chemical over the first eight years of reporting after 1988,21 strongly suggesting that the availability and dissemination of TRI data spurred significant new public and private pollution control and prevention efforts.22 Another illustration of the TRI’s impact is that the head of the Monsanto corporation, upon learning about the large volume of chemical releases by the company recorded in the TRI, pledged that the company would reduce its releases by 90 percent within four years.23

TRI data reportedly serve a wide variety of purposes.24 Congress has relied on TRI data in developing environmental legislation, such as the Clean Air Act Amendments of 1990. EPA uses TRI data to monitor companies’ compliance with environmental standards, to target enforcement efforts, and to help assess whether new regulations are needed to address environmental problems. Educators and researchers use TRI data to study chemical compounds and develop technologies to prevent toxic releases. Labor unions use TRI data to press for safer working conditions. Public interest and community groups publish reports based on the data, and use the information to attempt to persuade private firms to reduce their emissions or press the government to impose new regulatory controls. The TRI also helps alert industry to unnecessary losses of raw materials in its production processes.25

OSHA Hazard Communication Standard. Another federal disclosure program, administered by the Occupational Safety and Health Administration (OSHA), requires employers to identify and warn their workers about chemical hazards.26 OSHA’s Hazard Communication Standard, which was established by agency rule in 1983,27 mandates the posting of warning notices in the workplace, training for chemical safety, and labeling requirements for containers and conduits.28 Employers are required to post in the workplace Material Safety Data Sheets (MSDS), which describe the toxicity of chemical substances, primary routes of chemical entry or exposure, and applicable regulatory provisions and safety precautions as well as appropriate emergency first aid procedures.29

Clean Air Act Section 112. Section 112 of the Clean Air Act directs EPA to promulgate regulations requiring facilities which handle large amounts of extremely hazardous chemicals to prepare and implement “risk management” plans to prevent accidental releases of these chemicals and to mitigate the potential adverse effects of releases on public health and the environment.30 The regulations cover all regulated sources under the Clean Air Act which handle more than threshold amounts of hazardous substances.

The statute provides that a risk management plan must include (1) a hazard assessment and an evaluation of the potential consequences of releases for surrounding communities, including “worst case accidental releases;” (2) a prevention program; and (3) an emergency response plan. Covered facilities are required to file their risk management plans with EPA, which in turn is required to make the plans available to the public. As discussed in greater detail below, in response to a public controversy over making the plans available to the public, Congress imposed a one-year moratorium on posting of off-site consequence analysis information on the internet,31 and EPA later revised its procedures to permit public access to the “worst-case” information only in designated reading rooms under tight restrictions.32 After September 11, EPA imposed even tighter restrictions on access to portions of the plans.

Safe Drinking Water Act.

The Safe Drinking Water Act amendments of 1996 require public water companies to inform their customers when they violate contamination standards, fail to follow a treatment requirement or mandatory testing procedure, or neglect to perform required monitoring.33 When a violation “has the potential to have serious adverse effects on human health as a result of short-term exposure,” companies must follow detailed procedures for alerting citizens about the dangers and the remedial steps being taken.34 In addition, the statute requires each community water system to mail to customers an annual “consumer confidence report” describing the level of contaminants in the system’s water and the health concerns associated with each contaminant.35 The Act’s reporting structure -- the first of its kind -- is described as a “dual” notification system, requiring reporting that is both local and direct as well as national and electronic.

Beach Bill.

Another example of a right to know program at the federal level, also with a dual reporting structure, is the “Beach Bill.” In 2000, Congress amended the Clean Water Act to require states to notify the public when contamination levels make beach water unsafe for swimming, surfing, and other recreational activities.36 The legislation also requires coastal states to adopt minimum health-based criteria for water quality, and to comprehensively test recreational beach waters for pathogens. In addition, EPA is required to maintain a national database of contaminated waters. According to reports by the Natural Resources Defense Council, the number of beach closings and public warnings of beach contamination more than doubled over the past two years.37 NRDC attributes most of the rise to increased monitoring, better testing and more thorough reporting. The bill’s supporters maintain that the bill should provide an incentive for states and local communities to clean up their coastal waters and ultimately lead to a reduction in the number of required public warnings.

B. State Right to Know Programs.

Proposition 65.

At the state level, the most prominent right to know measure is Proposition 65, the Safe Drinking Water and Toxic Enforcement Act, adopted by California voters at the ballot box in 1986.38 Proposition 65 uses public disclosure both as a public education tool and as an incentive for the establishment of strict controls on toxic releases. Proposition 65 requires firms which “knowingly and intentionally” expose any individual to chemicals on a state-maintained list to either eliminate the exposures or provide “clear and reasonable warning” to exposed individuals.39 Both the government and citizens can enforce these obligations through civil enforcement actions. In order to avoid having to provide the required warnings, firms can choose to eliminate their toxic releases. However, Proposition 65 also provides an avenue for firms to obtain regulatory authorization to make limited releases of listed chemicals without public warnings. To obtain this authorization, the firms must demonstrate that the proposed exposure levels pose “no significant risk” of cancer and will have no “observable effect” in terms of reproductive toxicity.40 Thus, in contrast to the usual incentives created by environmental laws for firms to resist the establishment of regulatory standards, Proposition 65 actually creates an incentive for firms to support the establishment of standards.41

Proposition 65 is credited with producing substantial reductions in releases of listed chemicals, such as lead.42 Proposition 65 "has been especially effective in the consumer marketplace. Because consumer demand can be extremely sensitive to disclosure of adverse health and safety information, . . . many businesses have elected to reformulate their products rather than provide warnings and risk significant sales losses."43

Other State Laws.

States also have adopted a broad range of right to know programs. A number of states have adopted disclosure programs which are similar to the TRI.44 Some of these states enacted disclosure laws before Congress enacted EPCRA in1986.45 A few states have gone beyond federal law. For example, in Massachusetts and New Jersey manufacturers are required to report “materials accounting” information, that is, data about all the chemicals they use in their production processes.46 The collection and reporting of materials accounting information are credited with identifying opportunities for firms to achieve significant cost savings and to measure their progress in pollution prevention.47 EPA has considered expanding the TRI database to include material accounting information,48 but has not adopted this approach to date.

C. Private Environmental Information Programs.

The numerous government right to know programs have spawned various private information projects which utilize and build on the federal databases. The environmental advocacy organization Environmental Defense has established the “Scorecard” program which allows citizens to obtain information about sources of pollution in their own communities, and their possible health effects, by entering their zip codes into their home computer.49 Another non-governmental program, “RTK Net,” run by OMB Watch, allows the public to search EPA databases for information on chemical accidents by facility, chemical, or geographic area.50

CONCLUSION

Information disclosure has emerged as a vital tool in the government grab basket of tools for protecting public health and the environment. Right to know programs represent a self evidently useful, low-cost approach for improving public health and environmental quality. They also are consistent with broadly held views about the importance of democratic process and individual autonomy. Perhaps for these reasons, industry representatives have avoided a direct attack on disclosure programs, preferring instead to challenge them indirectly, making at least superficially attractive appeals based, for example, on due process values and the nation’s need for security. But there should be no mistake that these indirect attacks have the potential to

REFERENCES

1 See David Case, “The Law and Economics of Environmental Information as Regulation,” 31 Envtl.L.Rep. 10773 (2001); Bradley C. Karkkainen, “Information as Environmental Regulation: TRI and Performance Benchmarking, Precursor to a New Paradigm,” 89 Geo. L. J. 257, 290 (2001).

2 See Mark A. Cohen, “Information as a Policy Instrument in Protecting the Environment: What Have We Learned?” 31 Envtl.L.Rep. 10425 (2001); EPA, “Addition of Reporting Elements; Toxic Chemical Release Reporting: Community Right-to-Know,” 61 Fed. Reg. 51322 (1996) (“EPA considers Right-to-know to be among its most effective strategies for improving environmental performance.”).

3 See Stephen M. Johnson, “Economics v. Equity: Do Market-Based Environmental Reforms Exacerbate Environmental Injustice?” 56 Wash.& Lee L.Rev. 111, 150 (1999); Cass R. Sunstein, “Informational Regulation and Informational Standing: Akins and Beyond,” 147 U.Pa.L.Rev 613, 625 (1999).

4 See Letter from Mark Greenwood, CEEI, to Susan Wyatt, EPA (December 13, 1999) (on file at Georgetown Environmental Law and Policy Institute). See also id. (stating that CEEI is "a group of major companies and business organizations which share a common interest in federal policy on the collection, use and dissemination of environmental information").

5 See Mark Greenwood, “White Paper from Industry Coalition to EPA on Concerns Over Information Program,” reprinted in Daily Environment Reporter (BNA), E-1 (May 4, 1999) (hereafter cited as “White Paper”).

6 The Center has been described in published reports as “industry-supported,” see Bureau of National Affairs, Daily Environment Report, at A-1 (November 26, 2001), and as “conservative [and] business oriented.” See Cynthia Skrzycki, “The Regulators,” The Washington Post, at E-1 (April 24, 2001). The Center’s leader on right to know issues, Jim Tozzi, was the Deputy Administrator at the Office of Management and Budget from 1972 to 1983. See id. The Center’s web address is www.thecre.com. (last visited September 19, 2002).

7 See, e, g., Letter from Jim Tozzi to Mr. Edwin A Levine, EPA (May 2, 2000) (petitioning EPA to issue regulations to involve the public in development, maintenance, and modification of information products, and to ensure prompt correction of data errors in EPA internet resources); Letter from Jim Tozzi, CRE, to Brooke Dickson, OMB (August 10, 2001) (commenting on OMB’s proposed guidelines implementing the data quality rider) (on file at Georgetown Environmental Law and Policy Institute).

8 See Jim Tozzi, “The Federal Information Triangle,” Risk Policy Report (September 18, 2001) (describing CRE’s role in developing and promoting the data quality rider). See also Andrew Revkin,“Law Revises Standards for Scientific Study,” The New York Times (March 21, 2002) (describing data quality legislation as “supported, and largely written, by industrybacked groups”); Robert Gellman, “What? You Haven’t Heard About Section 515?” 20 Government Computer News, No. 24 (August 20, 2001) (“Rumor has it that a lobbyist dreamed up the original idea [of the data quality rider] and sold it to a paying client and a gullible member of Congress.”).

9 See, e.g., Comments of American Chemistry Council to EPA on EPA’s Advance Notice of Proposed Rulemaking on Public Information and Confidentiality (June 13, 2001); Letter from American Chemistry Council to Christine Todd Whitman, EPA (October 3, 2001) (on file at Georgetown Environmental Law and Policy Institute). The Council also submitted comments to EPA on the agency’s proposed data quality guidelines. See EPA Docket # OEI- 10014 at www.epa.gov/oei/qualityguidelines/ dockets/docketsposted.htm (last visited September 19, 2002.)

10 FY 2001 Consolidated Appropriations Act, P.L. No. 106-554.

11 See OMB Watch, “Background on Data Quality Guidelines” (May 28, 2002), www.ombwatch.org/article/articleview/773/1/1/ (last visited September 19, 2002). See also www.thecre.com (documenting Representative Emerson’s advocacy of data quality guidelines) (last visited September 9, 2002).

12 “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies; Republication,” 67 Fed. Reg. 8452- 8460.

13 Daniel Esty, “Toward Optimal Environmental Governance,” 74 N.Y.U.L. Rev. 1495, 1540 (1999).

14 Mary Graham, “Structuring Disclosure as Environmental Regulation” 7 (2000) (unpublished manuscript, on file at Georgetown Environmental Law and Policy Institute). See also Karkkainen, supra note 1, at 290 ("TRI multiplies the information value of reported data, allowing previously dispersed, fragmentary, and little-used bits of information to be assembled, manipulated, analyzed, and put to a variety of powerful new uses by environmental regulators, other public officials, interested community residents, investors, workers, and firms themselves").

15 White Paper at E-1.

16 42 U.S.C. § 11023; 40 C.F.R. § 372.1 et seq.

17 See http://www.epa.gov/triexplorer/reports.htm (last visited September 19, 2002).

18 See 131 Cong.Rec. H11204 (Daily ed., Dec. 5, 1985) (statement of Rep. Sikorksi) (referring to the Bhopal incident and the alcicarb and oxime releases at Institute, West Virginia); id. at S11665 (Daily ed., Sept. 18, 1985) (statement of Senator Lautenberg) (referring to “a series of less serious, but significant releases in the United States that suggest that we are far from immune from such dangers”).

19 More than 25 states and numerous local governments had adopted community right to know laws at the time EPCRA was passed. Susan G. Hadden, A Citizen’s Right-to-Know, 76 (1989).

20 See Office of Pollution Prevention and Toxics, “EPA Issues Paper #2: Expansion of the TRI to Gather Chemical Use Information: TRI-Phase 3: Use Expansion” (1995) (http://www.epa.gov/tri/programs/p3-ip2.htm) (last visited September 23, 2002); (hereafter “EPA Issue Paper #2"). At the close of the Clinton administration, the TRI was expanded by lowering the threshold for mandatory reporting of lead pollution. See “Lead and Lead Compounds: Lowering of Reporting Thresholds; Community Right-to-Know Toxic Chemical Release Reporting,” 66 Fed. Reg. 4499-4547 (2001).

21 See EPA, “Addition of Reporting Elements; Toxic Chemical Reporting; Community Right-to-know,” 61 Fed. Reg. 51322 (1996). According to EPA, the year 2000 TRI reports showed an eight percent decline in toxic releases posing serious health risks. Eric Pianin, “EPA Reports Decline in Pollution,” The Washington Post, at 2 (May 24, 2002). However, environmental groups argue that this decline was more than offset by increases in productionrelated wastes. See id.

22 See EPA, “Proof Positive: TRI Success Stories,” Chemicals in the Environment: Public Access Information, EPA 749-96-001b (Fall 1997) (describing companies who have decreased emissions and increased recycling based in whole or in part on the TRI program) (on file at Georgetown Environmental Law and Policy Institute).

23 Graham, supra note 14, at 8.

24 See OMB Watch, A Citizen’s Platform for Our Environmental Right-To-Know 36 (March 2001) (on file at Georgetown Environmental Law and Policy Institute).

25 Susan Hazen, “The History of TRI,” Chemicals in the Environment: Public Access Information, EPA 749-R-96-001b (Fall, 1997) (on file at Georgetown Environmental Law and Policy Institute).

26 29 C.F.R. § 1910.1200 (2001).

27 48 Fed. Reg. 53280 (1983). The program also benefits industry by establishing a uniform federal standard. See id. at 53281.

28 29 C.F.R. §§ 1910.1200(a),(b),(d)(2),(d)(5) (requirement to report adverse health effects), 1920.1200(g) (material safety data sheets); 1910.1200(h) (worker training) (2001).

29 Id. at § 1200(g).

30 42 U.S.C.§ 7412(r)(K).

31 The Clean Air Act defines “off-site consequence analysis information” to include “those portions of a risk management plan, excluding the executive summary of the plan, consisting of an evaluation of 1 or more worst-case release scenarios or alternative release scenarios . . .” 42 U.S.C. § 7412 (7) (H) (I) (III).

32 See “Distribution of Off-Site Consequence Information,” 65 Fed.Reg. 48132 (2000), 40 C.F.R. § 1400.1 et seq.

33 42 U.S.C. § 300g-3(c)(1)©).

34 42 U.S.C. § 300g-3(c)(2)©).

35 42 U.S.C. § 300g-3(c)(4)©).

36 P.L. No. 106-284, Beaches Environmental Assessment and Coastal Health Act of 2000 (codified at 33 U.S.C. §§ 1346, 1375a).

37 Natural Resources Defense Council, “Testing the Waters: A Guide to Beach Water Quality at Vacation Beaches” (August 8, 2001); Natural Resources Defense Council, “Testing the Waters (2002): A Guide to Beach Water Quality at Vacation Beaches” (July 2002). (www.nrdc.org/water/oceans/ttw/titinx.asp) (last visited September 19, 2002).

38 California Health and Safety Code, §§ 25249.5 to 25249.13 (West 1999 & Supp.2001).

39 Id. at § 25249.6

40 Id. at § 25249.10.

41 Karkkainen, supra note 1, at 345.

42 Id. at 345 & n. 369. See also Clifford Rechtschaffen, “How to Reduce Lead Exposures with One Simple Statute: The Experience of Proposition 65,” 29 Envtl. L. Rep.10581, 10583 (1999) (Proposition 65 reportedly led companies to "shift[] long-standing means of production to avoid or minimize the use of lead”).

43 Rechtschaffen, supra note 42, at 10591.

44 See, e.g., Worker and Community Right-to-Know Act, N.J. Stat. Ann, §§ 34:5A-1 to 34:5A-31 (West 2000); Pennsylvania Worker and Community Right-to-Know Act, Pa. Stat. Ann., tit. 35, §§ 7301-7320.

45 Hadden, supra note 19, at 45.

46 See David Case, “Legal Considerations in Voluntary Corporate Environmental Reporting,” 30 Envtl. L. Rep. 10375 (2000) (discussing Toxics Use Reduction Act, Mass. Gen. Laws Ann. Ch. 21I §§ 1-23 (West 1991 and Supp. 2001), and Worker and Community Right-to- Know Act, N.J. Stat. Ann, §§ 34:5A-1 to 34:5A-31 (West 2000)).

47 EPA Issues Paper #2, supra note 20; Carl Bruch & Roman Czebiniak, “Globalizing Environmental Governance: Making the Leap from Regional Initiatives on Transparency, Participation, and Accountability in Environmental Matters,” 32 Envtl. L. Rep. 10428 (2002).

48 See EPA, “Addition of Reporting Elements: Toxic Chemical Release Reporting, Community Right-to-Know,” 61 Fed. Reg. 51322 (1996).

49 See www.scorecard.org (last visited September 19, 2002). 50 See http://www.rtknet.org/rtkdata.html (last visited September 19, 2002).

source: http://www.law.georgetown.edu/gelpi/papers/poisonpaper.pdf  10novv02