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Disclosing toxic inventories. Public `right to know' at center of tough new law

Thousands of small businesses - especially hardware stores, warehouses, and funeral parlors - soon will have to tell the public what hazardous chemicals they stock. That requirement is part of the most complex and far-reaching federal law yet to deal with the threat of hazardous and toxic substances. It is Title III (the Emergency Planning and Community Right to Know Act of 1986) of the Superfund reauthorization.

Governors around the United States have been required to form chemical emergency response commissions and are under tight deadlines for policy actions aimed at preventing or mitigating the effects of a serious chemical accident.

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Almost every commercial and industrial facility that produces, uses, or stores hazardous chemicals will be affected.

``The act has the potential to reshape the regulatory and legislative debate of environmental, health, and safety issues,'' says Andrew B. Waldo of the Synthetic Organic Chemical Manufacturers Association.

Among the law's provisions:

Community residents must be notified of toxic releases into the environment.

The public must have broad access to company files regarding the types, quantities, and locations of chemicals at local facilities.

The Environmental Protection Agency (EPA) must establish an inventory of toxic chemical emissions for industrial and commercial plants.

The new emergency response commissions must define local emergency planning districts in their states by July 17 and must appoint local emergency planning committees by Aug. 17. Each local committee is to develop an emergency response plan by Oct. 17, 1988. Each committee must provide the public with notice of its activities and establish procedures for handling public requests for hazardous and toxic chemical information.

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The EPA has identified 402 substances that it says are ``extremely hazardous.'' These will become the focus of local committee planning activities. Threshold quantities of hazardous substances have been set. Any facility producing, using, or storing any of the listed chemicals in quantities greater than thresholds is subject to emergency planning requirements.

Facilities subject to the law must identify themselves to their state commissions by May 17.

Industry and regulatory officials are concerned, however, that because of the scope and comprehensiveness of the new law many companies are unaware they must comply. This could be especially true of small to medium-size manufacturers and firms in the service sector.

Hardware stores with large inventories of hydrochloric acid, funeral homes using formaldehyde, and large commercial warehouses storing toxic chemicals are a few examples of facilities that may have new reporting requirements under Title III. The EPA estimates that at least 1.5 million facilities will have at least one ``extremely hazardous'' substance in amounts above the agency's planning threshold of two pounds.

Failure to comply with the provisions by the deadlines could result in fines of up to $25,000 a day. The new law allows the public, the EPA, state and local governments, and emergency planning groups to sue facility owners or operators who violate the statute. Jail terms or fines up to $75,000 a day can be levied against persons who fail to report chemical releases.

Under the new law's emergency notification provisions, community residents now have to be notified if a hazardous chemical is released into the environment. Reporting is not required, however, for a release confined to a plant site.

At the heart of the new law are the community right-to-know provisions, giving the general public access to company data on the types, quantities, and locations of hazardous and toxic substances at almost every place where it is produced, used, or stored. Annual chemical inventories have to be submitted to state emergency response commissions, local emergency planning committees, and local fire departments. These groups can request additional information from the facility, and any citizen can petition the state commissions for access to this data.

While clashes between local citizens and companies producing hazardous chemicals seem inevitable, the overall outcome is likely to be positive, says James L. Makris, director of the EPA's Preparedness Staff Office of Solid Waste and Emergency Response.

``I think the ultimate effect of this will be an increase in chemical safety [through] collegial relationships between the community and industry,'' he says.

Although the law does not address accident prevention, it does have ``preventive overtones,'' Mr. Makris says. ``The first protection is being informed,'' he adds, noting that the very act of public disclosure by companies of their chemical stockpiles would put pressure on these firms to reduce their inventories.

Similarly, disclosure is likely to result in reductions in toxic and hazardous releases into the environment, says Dr. Robert Ginsburg of the Chicago-based Citizens for a Better Environment. He reasons that once a company reveals the type and extent of its toxic chemical emissions, it starts worrying about future regulations and issues of liability. A key section of the new law requires companies to provide the EPA and state officials with annual accountings of toxic chemicals routinely released to the environment.

Existing laws, such as the Clean Water Act and the Clean Air Act, address ``end of the pipe'' or ``end of the stack'' emissions. But provisions in Title III seek data on the toxic constituents of the waste streams that companies produce during routine operations.

``This is much more comprehensive and detailed reporting,'' says Claire M. Boccella, an attorney at Rohm & Hass, a Fortune 200 specialty chemical company. She notes that the requirements of Title III will mean coordination among almost all company departments, from environmental managers to purchasing.

The EPA estimates that 350,000 industrial facilities will spend $1 billion over 10 years to comply with the right-to-know aspects of the law. The paperwork is expected to be enormous.

Collection of emissions data, which will be stored in EPA computers, is expected to aid toxic chemicals regulation. Regulators and local environmental groups will soon be able to identify those facilities that are the worst polluters and then go after them, either with enhanced regulatory efforts or through court action.

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