Expanded Access to Environmental Information – The New Era of Transparency and Its Risks and Opportunities

Posted on March 11, 2013 by Dean Calland

Over the past several years, EPA has created or upgraded a number of new informational tools that enable the public to gain access to environmental data.  This is part of the agency’s efforts to increase “transparency” regarding private and public sector environmental compliance and enforcement efforts.  As expressed in a recent press release, EPA believes that “transparency and access to information at all levels help to drive improvements in environmental performance.” 

A couple of very recent examples are worth noting.  Earlier this year, EPA announced the creation of new interactive state dashboards and comparative maps.  These online tools are components of EPA’s Enforcement and Compliance History Online (ECHO) website, and contain air, water and hazardous waste data for the previous five years.  According to EPA, such information includes “the number of completed inspections, types of violations found, enforcement actions taken, and penalties assessed by state.”  Users of the site can customize their searches to view just state activity, EPA activity, or both.  

A second example is EPA’s program to increase the transparency of chemical information under the Toxic Substances Control Act (TSCA).  Just last month, EPA released the 2012 Chemical Data Reporting (CDR) information for more than 7,600 chemicals.  The data can be used to identify important trends and analyses, such as determining the number of workers exposed to a particular chemical, the top 20 chemicals used in children’s products, the top 20 chemicals used in consumer products and the top industrial sectors that processed and used reportable chemicals.  EPA modified the CDR rule (formerly known as the Inventory Update Reporting rule) in 2011 to require that manufacturers and importers submit CDR information electronically.  Accordingly, the CDR information is added to the agency database and made publicly available much faster than ever before.  Stakeholders such as the American Chemistry Council and the Environmental Defense Fund applauded the recent changes to the CDR rule to increase the amount of information available to the public and thereby improve public understanding and confidence.

With appropriate controls, greater transparency is laudable for a variety of readily apparent reasons, and there is little doubt that federal and state agencies will increase both the number of tools available to the public and the usability of these tools to interpret data in the coming years.  Environmental stakeholders should evaluate these new tools and determine the risks and opportunities presented by them. 

For example, industry practitioners are quite familiar with the increasing scrutiny that has been placed on corporate decision-making in recent years by major investors and shareholders regarding such matters as the impact of the corporation’s activities on issues like greenhouse gas emissions and sustainability.  Some of these entities are using the new information tools and others like them to identify trends and determine how the corporation “measures up” against industry norms and political or governmental expectations.  Similarly, corporations are finding that their outside financial auditors are reviewing environmental databases to “check on” the environmental and safety disclosures that the companies are putting forth during the audit period.  Indeed, company management and counsel have sometimes been surprised by their auditors’ independently-gathered information that one or more of the company’s plants are listed on EPA or state databases as “non-compliant” with environmental requirements. 

In the same way, increased access to environmental and safety information brings with it new opportunities to gather meaningful information that can be extremely useful in preparing business plans for future activities and for claims and litigation related to environmental exposures.  Manufacturers and suppliers of environmental products and services, plaintiffs’ counsel, expert witnesses, environmental groups, public and governmental relations firms and insurance companies are just a small subset of the universe of interested parties for whom easier access to environmental and safety information can be helpful.  And now such data can be gathered more quickly and at a fraction of the costs that would have been required in the past.  Environmental stakeholders would do well to monitor the development of these transparency tools and to assess the risks and opportunities that they present.



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