Texas Environment Agency, EPA Clash Again

Published December 1, 1997

Responding to the Environmental Protection Agency’s plan to make available on the Internet detailed information on the environmental performance of hundreds of producers of petroleum products, paper, steel, other metals, and automobiles, Barry McBee, chairman of the Texas Natural Resource Conservation Committee (TNRCC), sent a letter to the Environmental Exchange Council of the States (ECOS) expressing “serious concerns” about the so-called Sector Facility Indexing Project.

EPA Administrator Carol Browner lauded the Project as a needed extension of the Clinton administration’s “community right-to-know” program. “I believe in the end that the public can always be trusted with information. They are far brighter and more sophisticated than, unfortunately, some in the industry give them credit for,” she told The New York Times on August 16. But industry spokespersons, including Josephine S. Cooper of the American Forest and Paper Association, are concerned “that the data that is in there, if not accurate and properly characterized, can mislead and misinform the public.”

According to McBee, TNRCC believes the Project is “redundant of other EPA enforcement-driven initiatives contained in their ‘national polluters’ strategy, such as the ‘any credible evidence’ rule and community and industry sector-based prioritization.” Moreover, notes McBee, EPA has “not provided adequate justification for this project and has undertaken this initiative without any statutory or Congressional mandate to do so.” It also appears, McBee said, “that they circumvented the usual oversight channels, such as by the Office of Management and Budget or by Congress.”

“By not soliciting comments from those who will be affected by the new policy,” McBee wrote, “EPA has chosen a ‘top down’ approach that harkens back to the earliest days of environmental regulation.” He called the entire process “fundamentally flawed” and said TNRCC objects to EPA developing the methodology “with no input or recommendations from the states other than requesting states to quality check their data.” This, he continued, “is at odds with the partnership concept” often espoused by Browner.

Finally, McBee argued that the use of Toxic Release Inventory data is inappropriate for such an initiative because it can be misleading. “Using TRI numbers that are multiplied by toxicity weights can give an inaccurate picture of actual health risk to the public and will not affect a company’s compliance status.”

McBee’s comments formed part of the rationale for an ECOS resolution that calls on EPA to put the Sector Facility Indexing Project on hold and not to release any facility-specific data “until the methodology review has been completed and an appropriate methodology agreed to.” ECOS also supports a review by EPA’s Scientific Advisory Board of the appropriateness of the proposed utilization of the Project’s toxicity weighting approach. They further recommend development of methodology to calculate noncompliance rates that would differentiate non-substantial versus substantial violations and take into consideration length of time in violation.

The problem for Texas and the states is that they apparently have no real clout to stop EPA from proceeding as planned, even though one lobbyist–Jim J. Tozzi of Multinational Business Services–has filed a petition with OMB seeking a delay in release of Project information. Environmental advocates, whose influence in the Clinton-Gore-Browner EPA is illustrated by EPA’s refusal to back off from restrictive ozone and particulate matter regulations and President Clinton’s strong support for the climate change treaty, are backers of the Project.

Environmental Defense Fund researcher Lois Epstein says the Project “would give the public and the regulators, both at the federal and state level, the ability to assess a facility holistically.” And Linda Greer of the National Resources Defense Council and Tom Natan of the Environmental Information Center, both of whom serve on EPA’s Sector Facility Indexing Project advisory panel, issued a joint statement contending that “We should not underestimate the ability of the public to come to grips with technical information such as this, especially if the information is accompanied by an explanation of its usefulness and limitations.”

This essay first appeared in the August 28, 1997 issue of Environmental Insider.