By Peter Boyle
MELBOURNE — The Australian Chemical Industry Council released a code of practice on "Community Right To Know" on July 13. In the wake of major chemical disasters, community groups here have been demanding legislation to provide greater access to information about the industry's activities. Many see the new code as an effort to pre-
empt such legislation.
Paul Adams of the Hazardous Materials Action Group (HAZMAG) told Green Left Weekly that the code is inadequate because it is not binding, has many escape clauses, is reactive and does not cover all of the industry.
HAZMAG urged the ACIC to prove its seriousness by signing a legal agreement with environmental groups and trade unions guaranteeing enforcement of its own code. The ACIC refused.
Community right to know legislation has been shown in both Europe and the United States to be a useful tool in monitoring industry and promoting pollution prevention and clean production, according to HAZMAG. Community right to know is the first step to understanding and acting on risks posed by industrial chemicals.
These laws usually have three major components:
1) Toxic chemical release reporting. Industries must report major toxic (some 330 chemicals) releases to air, water and land.
2) Community right to know. Members of the public can find out what chemicals a company is using.
3) Emergency planning and notification. Members of the community can participate in local chemical safety planning.
According to HAZMAG, since the introduction of the US Emergency Planning and Community Right to Know Act
1986, releases of toxic chemicals have decreased approximately 20%. In California chemical companies have completely stopped emitting six listed chemicals, and emissions have decreased for two-thirds of all chemicals for which data is available.
Public disclosure also captures the attention of high level industrial decision makers and strengthens the role of environmental managers in companies.
As a result of right to know legislation, communities are producing reports that identify toxic pollution problems and advocate solutions — negotiating directly with industry to change industrial practices, compelling enforcement of existing regulations, suing to bolster compliance and to establish pollution prevention plans.
Federal and state governments in the US are using right to know information to judge the success or failure of environmental protection laws. Unions have used it to achieve the phasing out of some chemicals, to develop cleaner production processes and to eradicate unsafe work practices.
Australia has no community right to know legislation, and limited worker right to know laws. Public or community right to know would mean that information relating to toxic or hazardous materials and their use is publicly available through an independent, centralised data collection body.
"The Commonwealth Environment Protection Authority has plans for a national pollution inventory", says Adams. "Such a register will provide independent, consistent and comprehensive information to individuals or groups seeking to understand whether or not their interests are being compromised by industrial activities. However, federal right to know legislation is not enough. To be truly effective we need complementary state legislation."
The final report of the independent Coode Island Review Panel (March 1992) recommended that "the government agree in principle to a legislated Community Right to Know to assist public understanding of hazardous materials and production processes". To date there has been no commitment to this
recommendation from either of the major state political parties.
The ACIC wants the public to believe that its "Responsible Care Program" can provide sufficient information to satisfy community interests. HAZMAG says that studies of such programs in the US and Australia found that self-regulation is not as effective as industry claims.
In 1992, the US Public Interest Research Group called 192 members of the US equivalent to the Australian Chemical Industries Association, the Chemical Manufacturers Association, in 28 states and asked nine basic questions. The response was very poor, with 83% of the companies called giving no or unsatisfactory responses.
Friends of the Earth UK in late 1991 and early 1992 surveyed 43 chemical companies to see if they were willing to provide information on their toxic releases in the UK and elsewhere. Eleven companies agreed to provide the data, while others indicated that they would do so only if forced to by legislation.
This project also revealed that a few large European facilities are releasing larger quantities of xylene, benzene and other toxics into the water than the whole 26,000 US firms put together (FoE 1992).
A similar study for HAZMAG by RMIT students in 1992 found the chemical industry equally unwilling to respond directly to community requests for information. Of 30 companies surveyed, only eight responded. No non-ACIC companies and only 53% of ACIC companies responded, and many of those that did supplied only limited information.
Of all chemical accidents in Melbourne's western suburbs in 1991, 60% (19 out of 32) involved ACIC members. Clearly there are problems with self-regulation.
"Given the track record of the chemical industry, it is very difficult to see the latest ACIC code of practice as other than a well-orchestrated public relations exercise", said Adams.
"One of the key successes of US legislation has been the ability to produce a national score card of polluting industries, which in turn puts pressure on polluters to clean up their act. The [ACIC] code of practice has no provisions for a centralised toxic release inventory or pollution inventory. ACIC has suggested that it will undertake these activities, which is akin to the fox guarding the hen house."
The ACIC code is not binding, so the community is dependent on the "good will" of the chemical industry, Adams said.
An excuse often given for refusing to provide detailed information has been the need for commercial secrecy. This excuse is built into the ACIC code: "Members will not disclose information which is commercially confidential or is a trade secret; or is otherwise protected by law or legal obligation to a third party".
In most instances it is only the company that is in a position to decide what should be secret; the community has no say. It is quite possible that every request for information could be claimed as commercially confidential.
The voluntary code lacks coverage because many companies which use toxic chemicals are not members of the ACIC. There are an estimated 800 chemical facilities in Australia; only 300 of them are members of ACIC.
Adams says: "The code outlines that companies should respond to concerns in the community rather than taking a pro-active stance towards communication and prevention of risks. Finally, the code lacks a consistent approach to dispute resolution. If there is a dispute under the code, the code calls for an independent mediator to be appointed. This approach will promote inconsistency and uncertainty."