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Community Right To Know Mark Parnell B Comm, LLB, MRUP Solicitor, Environmental Defenders Office (SA) Inc. Lecturer in Public Health Law, Flinders University of South Australia Chair, Mitcham Council Local Agenda 21 Advisory Committee Introduction The Environmental Defender Office (SA) Inc. (EDO) is embarking on an ambitious law reform campaign aimed at increasing the right of citizens to access information about the environment. The concept of ‘Community Right To Know’ (CRTK) is not new. Much environmental and public health legislation already enshrines CRTK in various forms such as the Environment Protection Authority’s (EPA’s) public register, or the registers of Development Applications and approvals held by local Councils. Whilst the cloak of secrecy is slowly being lifted from some government departments and agencies, there are still many areas of public administration where information is difficult to come by other than through the expensive and lengthy processes under the Freedom of Information Act 1991 ("FoI"). Even where CRTK is given force of law, it is often watered down with discretions. Some statutory authorities are known to always exercise their discretion against the public’s right to access information. The simple technique of refusing to provide (or even sell) photocopies of documents is one technique used to make public participation as difficult as possible, even if the agency can’t prevent citizens from physically inspecting the material. Anyone who has sat in the reception area of the Development Assessment Commission (DAC) on North Terrace laboriously copying out long-hand the details of publicly-advertised Development Applications, will understand this point. Hiding behind the myth of the "floodgates" argument (where frivolous, vexatious and information-hungry citizens overwhelm officials with voluminous requests for photocopies), agencies such as DAC appear to resent the right that citizens have to participate in the regulatory or policy process. The EDO’s CRTK campaign will focus on the legislation and policy of a range of government agencies known to hold information about the environment. As well as the EPA and DAC, we are also surveying local Council planners about their practices in dealing with objectors and other community stakeholders. Whilst some Councils appear to go that extra mile and consult with a broader range of people than they are required to, other Councils work strictly by the rules. There are many agencies holding information about public and environmental health that have rarely before been subject to public scrutiny. These include the Department of Industrial Affairs (administering the Dangerous Substances Act 1979) and SA Water (regulating the disposal of trade waste to sewer). Part of the EDO’s CRTK campaign will be to put these agencies to the test. The legislation under which they operate is silent as to what information should be publicly available. Perhaps they will turn out to be anxious to share all they know with the community, or perhaps they will only respond to FoI requests? A key objective of this campaign is to try to encourage a culture within government agencies and statutory authorities that accepts CRTK as the norm and secrecy as the exception. FoI provides a useful fall-back, however the EDO believes that real citizen participation in the work of government is more likely to be accepted when agencies routinely and voluntarily make information available to the community as part of their core business, without the formal and reluctant imposition of FoI. Sources of Information about the environment in South Australia Information about public and environment health is fragmented across society. Some information is held in private hands, whilst other information is held by Government Agencies. Appendix 1 to this paper sets out a list of the main statutes impacting on public and environmental health and outlines what information is publicly available. In all cases, the access to information is through government departments or agencies, even if the material has been originally provided by the private sector. It must be pointed out that this information is only the minimum that must be provided to the public. Most agencies provide considerably more information than stated in this list. Barriers to CRTK Probably the main impediment to CRTK is that our system of representative democracy does not inherently provide any role for citizen participation outside three or four-yearly visits to the ballot box. Whilst the common law may be invoked to ensure "natural justice" is dispensed in our dealings with the state, or that "due process" is followed, most of our rights come from legislation and are carefully measured so as to ensure that the will of government cannot be easily over-ridden. From a bureaucrat’s point of view, CRTK can be seen as a real or imagined threat to efficient government. It is much easier for the regulator and the regulated to deal directly with each other without the interference of the community clamouring for information and then, armed with that information, expecting to be able to influence outcomes. When it comes to information about individuals or companies, CRTK must be balanced by the competing rights of privacy, commercial confidentiality and protection of intellectual property. In the area of pollution and toxic substances, the clear preference of industry is for voluntary codes of conduct, or soft "policy" rather than legislated rights and obligations. So far, this preference has been largely accepted by governments. An example of the voluntary approach is the Plastic & Chemicals Industries Association’s "Responsible Care" program. Under this program, participating companies in these industries agree to provide a range of information (on request) including materials used and stored, industrial processes, pollution and emergency procedures. The Association claims an 80% participation rate. Interestingly, most of the information available is information that is already legally required to be provided to government agencies such as Workcover or the EPA. However, whereas these government agencies have legal options to insist on the information being provided, the community must rely on the good will of the participating company. Failure to provide complete or accurate information would potentially lead to criminal prosecution at the suit of the regulators, however citizens are asked to pursue an internal industry grievance procedure. This can be contrasted with the situation in the United States, where citizens can bring legal action to enforce CRTK. This is discussed further below. The reluctance of governments to legislate for CRTK has been a source of frustration for conservation groups involved in negotiations for a National Pollutant Inventory (NPI). A major thrust of the Greenpeace campaign was the need for enforceable legislation. "A voluntary National Pollutant Inventory is unacceptable to environmental groups. Without clear uniform and enforceable rules for collection of information the NPI will not fulfil its potential as tool to prevent or minimise pollution and waste or give the community the right to know." [Greenpeace 1997] Another potential barrier to CRTK is the increasing trend of all governments to privatise or outsource functions that were previously undertaken by public servants. This means that much of the information that was potentially accessible through government, will now be in private hands and therefore immune from FoI. This adds weight to the call for legislated CRTK that includes both public and private sectors. Access to pollution data CRTK and the US EPA One of the first countries to legislate for CRTK in respect of pollution was the United States. The "USA Toxic Release Inventory" was established under the Emergency Planning and Community Right-To-Know Act (EPCRA) of 1986. This Act followed widespread community concern over the 1984 Union Carbide accident at Bhopal, India, in which a deadly cloud of methyl isocyanate killed around 6,500 people in the world’s worst industrial accident. Shortly thereafter there was a serious chemical release at a sister plant in West Virginia. These incidents underscored demands by industrial workers and communities in several American States for greater information on hazardous materials. [USA EPA web site] The primary purpos of EPCRA is to inform the public about chemical hazards in their areas. Under the Act’s mandatory reporting requirements, businesses must report the locations and quantities of more than 600 designated toxic chemicals stored on-site as well as the transport, use and disposal of those chemicals. The resulting data is stored in an on-line, publicly accessible national computerized Toxics Release Inventory (TRI). Included on the EPA’s TRI web site are annual reports, trend calculations and a series of powerful databases that enable the user to click on a State, postcode, street address, company name, chemical type or other variables to access any of the 80,000 annual reports that are submitted to EPA by more than 20,000 manufacturing facilities and 200 Federal facilities. The EPA believes that with this information, communities have more power to hold companies accountable. "TRI is a public "report card" for the industrial community, creating a powerful motivation for waste reduction. This annual accounting of the nation's management of industrial toxic chemical wastes is a valuable source of information for concerned individuals and communities. Citizens can use TRI to evaluate local facilities through comparisons...determine how toxic chemicals are used...and, with other information, evaluate potential health risks for their community. Organizations can use TRI information as a starting point for constructive dialogue with manufacturing businesses in the area." [US EPA web site] Under the Emergency Planning and Community Right-to-Know Act, citizens have the right to sue facilities that are required to report their toxic releases to the Toxic Release Inventory and fail to do so. The EPA appear to actively encourage this type of community involvement by publishing details of cases on its web site. many of these cases seem to result in negotiated environment improvement programmes for the industries concerned. Out-of-court settlements have also resulted in agreements by industry to donate funds to local communities or environmental groups. [EPA web site] CRTK in Australia South Australia The main legislated source of information about pollution in South Australia is the "Public Register" created under s.109 of the Environment Protection Act 1998. The Register consists of certain mandated information such as copies of pollution licences (Environmental Authorisations) as well as information provided at the discretion of the EPA. Most pollution emission data falls within the discretionary category. Regulation 15 of the Environment Protection (General) Regulations provides that: 15. (1) For the purposes of section 109(1) of the Act, the following further information is required to be recorded in the register: (a) such information as the Authority considers appropriate as to the results of tests or monitoring or evaluation undertaken in compliance with conditions of an environmental authorisation under section 52 of the Act; At the request of the Environmental Defenders Office, the EPA has recently considered this issue and determined that pollution monitoring data undertaken by companies as a condition of an EPA licence will routinely be included on the public register from 1st July 1998. [Stephen Walsh QC, EPA Chairperson, pers. comm. May 1998] This is an important development in CRTK in South Australia in that citizens now have the right to the same information as the EPA in the form of audited raw and interpreted pollution data. Whilst many community groups and individuals are likely to be satisfied with the EPA’s response to this data, there are other groups which will want to undertake their own independent analysis of the figures. Conservation or residents groups may even want to follow the lead of their United States counterparts in publishing "top 10" or "dirty dozen" lists of local polluters. Indications from the US are that the availability of pollution data and the subsequent publicity that poor figures can generate for industry have been influential in reducing reported toxic pollution releases by around 40% since 1988. [Greenpeace 1997] One important category of information that is not necessarily held by the South Australian EPA relates to chemical storage. Under the Environment Protection Act (Sch.1), companies are not required to be EPA-licensed for chemical storage unless total capacity exceeds 1 million litres in containers larger than 200 litres. Dangerous chemical storage is still regulated mainly by the Department of Industrial Affairs under the Dangerous Substances Act 1979. There are no CRTK provisions under that Act. Commonwealth NEPC NEPM NPI The most significant recent development in relation to CRTK in Australia is the new National Environment Protection Measure (NEPM) for the National Pollutant Inventory (NPI). According to the media release issued at the time of the endorsement of the NPI, this is a "landmark agreement for all Australians" under which " local communities will now have access to comprehensive information on the pollutants released into the environment by industry in their area." [See Appendix 2 for full text of Media Release] The system is similar to the US TRI regime described above but with a number of significant limitations. The number of reportable chemicals under the NPI is a few dozen in the first reporting year 1998/9, with a few dozen more to be added in the second and third reporting years. This compares with over 600 chemicals required to be reported under the US system. Environment groups were unsuccessful in their attempts to have the list expanded. One contentious point was over the treatment of particulate matter. Whilst stack emissions from fuel burning are covered, fugitive and other emissions do not have to be reported. The NEPC cited the cost and difficulty of reporting as a reason to exclude this form of pollution. Environment groups were also unsuccessful in getting pm2.5 recognised as reportable in addition to pm10. Perhaps the most divisive issue during the negotiations over the NPI was the question of "transfers". Transfers are the movement of otherwise reportable pollution off-site to landfill, tailings dams, sewer or recycling facilities. These are important reporting events under the US system, but in Australia, industry was successful in arguing that transfers shouldn’t be counted. The "contained nature" of these disposal methods was the primary reason for not requiring notification. The environment groups on the other hand argued that not requiring companies to declare transfers effectively hid the pollution and made it impossible to later identify the source of subsequent landfill leaks or toxic sewage discharges. Ultimately, the environmental groups on the NEPC’s consultative group walked out of the process in response to their loss on this point. Conclusion The acceptance by the South Australian EPA of the community’s right to access pollution data and the development of the NPI are two positive steps towards CRTK in Australia. Whilst neither system is perfect, both partially fill a policy void. Australia is many years behind the US in development of CRTK policy and law, however the first steps have been taken and the commitment to public reporting via the internet is to be welcomed. Appendix 1: Sources of information about the environment in SA The list below sets out what information relating to public and environmental health is routinely available to the public under South Australian legislation. These include rights to access information either on application or through a "public register". Where there are no specific provisions for accessing information held by government, it may be necessary to use the procedures established under the Freedom of Information Act 1991 (SA). Pollution The Environment Protection Act 1993 (SA) requires the keeping of a "public register" of information (s.109) containing:
The Register can be inspected at the offices of the Environment Protection Authority, 77 Grenfell Street, Adelaide (Ph: 8204 2000). A small fee applies to the inspection of the Register and the taking of copies. Public and Environmental Health Act Each local council is required to submit a report each year to the South Australian Health Commission on their work under the Public and Environmental Health Act 1987. (s.44) The report outlines the state of environmental and public health in the local council area and details of measures taken by the council to address any problems. The Health Commission is also responsible for the keeping of a register of licences and registrations granted under the Radiation Protection and Control Act 1982 (SA). This register contains such information as where unsealed radioactive substances are handled and kept, who has a licence to mine or mill radioactive ores and who has a licence to use or handle radioactive substances. This information can be inspected at the South Australian Health Commission, City Centre, 11 Hindmarsh Square, Adelaide, 5000. (Ph: 8226 6000). Development The Development Regulations 1993 require local Councils and the Development Assessment Commission to keep a register of applications for consent, approval or assignment of building classifications under the Development Act 1993 (SA). (Reg 98). Where a development is of a type that requires neighbour or public notice (category 2 or 3), certain additional information such as plans and specifications, must also be made available for public inspection. (Reg 34) Council offices are listed in the telephone directory and the Development Assessment Commission is located on the 5th Floor, Dame Roma Mitchell Building, 136 North Terrace, Adelaide (Ph: 8303 0717) Copies of Development Plans (including reviews and amendments), are available from the relevant local council or from the internet at http://devplans.dhud.sa.gov.au Local councils The following documents are available for public inspection at Council Offices and copies are available on request:
The following documents are available for "inspection only" at Council Offices:
Environment, Resources and Development Court The Environment, Resources and Development Court must allow any member of the public, on application, to inspect certain documents.(Environment, Resources and Development Court Act 1993 (SA) (s.47 (1)). These include any process relating to proceedings and forming part of the Court's records, a transcript of evidence taken by the Court in any proceedings and any documentary material admitted into evidence in any proceedings. Decisions or orders of the Court are available, however some other documents can only be inspected with the permission of the Court. (s.47 (2)). It will cost $8.00 to inspect this information and an additional charge of $4.50 per page is made for copies. The Environment, Resources and Development Court is in the Sir Samuel Way Building, Victoria Square, Adelaide. (Ph: 8204 0300) General Access to Legislation and Cases Legislation and other government information can be obtained from the State Information Centre, 77 Grenfell Street, Adelaide (Ph: 8204 1900). South Australian legislation and case law is also available on the Internet at: http://www.austlii.edu.au/index.html
Appendix 2: National Environment Protection Council Communique - National Environment Protection Measure - National Pollutant Inventory 27 February 1998 LANDMARK AGREEMENT FOR ALL AUSTRALIANS Local communities will now have access to comprehensive information on the pollutants released into the environment by industry in their area. The National Environment Protection Council has agreed to the establishment of a National Pollutant Inventory (NPI). From 1 July 1998, larger Australian industrial facilities will be required to estimate and report annually their emissions of the chemicals listed on the NPI. This information, along with estimates of emissions from facilities using less than the specified amount of the chemicals listed, will be on the Internet. Governments will also estimate emissions that arise from the community such as nutrient emissions to our inland waterways and everyday activities, like driving to work and mowing the lawn. Information explaining where the substances listed on the NPI are emitted from, what they are used for, and the risks to human health and the environment associated with them, will be included on the database. Federal Environment Minister Robert Hill says the Inventory increases the access of local communities to information that affects their families and their lifestyles. "The National Pollutant Inventory is based on our belief that the community has a right to know what pollutants are being put into their local environment - whether they are emitted into the air, land or water. This information will now be as a close as the nearest computer. People anywhere in Australia will be able to go into their local library or community centre and log into the NPI Internet site. From there they will be able to identify the pollutants being released into their local environment in some cases even down to street level. The data will also help governments and industry design better and more effective control programs." The data from the first year are expected to be available in early 2000. Data from trials of the NPI are currently on the Internet at www.environment.gov.au/net/npi.html Senator Hill said the NPI data would become a valuable tool for governments at all levels to use in environmental policy and management. To help industry report for the NPI, handbooks are being developed as a step-by-step guide to estimating emissions. Industry is being consulted to ensure the handbooks meet its needs. Facilities are not required to report until a handbook has been produced for their sector. With funding from the Commonwealth, States and Territories will work with industry and the community to estimate and compile the NPI data. Environment Australia will make this information available on the Internet database. For further information: Senator Hill's Office: Matt Brown - 0419 693 515 NEPC: Bruce Kennedy - 08 8419 1200 References National Pollutant Inventory For a list of publications about the NPI, see http://www.nepc.gov.au/npi/npi_publications.html The NPI home page is at: http://www.environment.gov.au/net/npi.html The full text of the NPI is at http://www.nepc.gov.au/npi/npi_nepm.2.98.html NEPC 1998Summary of submissions received by the National Environment Protection Council in relation to the National Environment Protection Measure and Impact Statement for the National Pollutant Inventory and National Environment Protection Council’s responses to those submissions 27 February 1998 http://www.nepc.gov.au/npi/npi_resp.3.98.html Greenpeace 1997, Submission to the National Environment Protection Council (NEPC) on the National Environment Protection Measure (NEPM) for the National Pollutant Inventory (NPI), prepared by Matt Ruchel for Greenpeace Australia Ltd, August 1997 US EPA’s TRI For an overview of the TRI system, see http://www.epa.gov/enviro/html/tris/tris_overview.html To search the whole US EPA web site, see http://www.epa.gov/epahome/search.html For toxicological and other data on specific chemicals, see http://mountain.epa.gov/enviro/html/emci/chemref/ Other PAICIA (undated brochure) Plastics & Chemicals Industries Association, Your Rights Under Community Right to Know, Responsible Care |