For the first time since 1999, the Environmental Protection Agency (EPA) has added chemicals to the list of toxic substances that must be reported to the Toxics Release Inventory (TRI). The TRI program tracks toxic pollution from thousands of facilities nationwide. The move is an overdue step in the right direction for this crucial right-to-know program and represents a welcome break from the previous administration's attempts to weaken TRI.

On Nov. 26, EPA finalized a rule adding 16 toxic chemicals to the list of substances that must be reported under the TRI program. The 16 chemicals are classified by the National Toxicology Program (NTP) as "reasonably anticipated to be a human carcinogen." The new requirements go into effect for the reporting year beginning January 1, 2011.

OMB Watch supports this move by EPA. In comments submitted to EPA, we stated, "An expansion of the list of chemicals covered by the TRI program has been needed for years. The chemicals EPA has selected for this expansion are appropriate, and their inclusion will strengthen the TRI program." The list of the 16 chemicals may be found here. According to EPA, most of the facilities that will be reporting on these newly added chemicals "are from industry sectors that manufacture basic organic chemicals, dyes, pigments, plastics and resins. Reports are also expected from petroleum refineries."

Yet despite the need for action like this, it is still a very modest response to a pressing need for more information on toxic pollution.

Although there are now more than 84,000 chemicals manufactured or processed in the U.S., only 666 chemicals and chemical categories are reported under TRI. The agency's new rule will boost that number to 682. It is likely that not all of the 84,000 plus chemicals need to be covered by TRI, but the agency's action proves that there is room for expansion.

Considering EPA was able to find 16 more chemicals to add to TRI, how many more are being dumped into our environment unnoticed? In this action, EPA only considered possible carcinogens, and only those classified as such by one source, the NTP's 11th Report on Carcinogens.

However, the law authorizes EPA to also consider chemicals that cause reproductive or neurological problems, genetic mutations, and other chronic problems in humans. EPA can also consider a chemical's toxicity to the environment.

EPA should undertake regular reviews of chemicals to consider adding to the TRI program, and the agency should consider much more than just likely carcinogens. To tackle the vast number of toxics we are confronted with, the agency should set up a system to prioritize which chemicals are evaluated first. Such a regular process would hopefully prevent yet another decade from going by with no new additions to the program.

Additional reporting gaps limit the public's ability to use TRI. Entire industries are excluded from having to disclose their toxic pollution under TRI. For example, the oil and gas extraction industry does not have to report pollution from drilling rigs. With the rapidly expanding and controversial natural gas drilling in the Marcellus shale in the northeast and elsewhere, the public needs to know – and has a right to know – what harmful substances these facilities are releasing. And let's not forget a certain oil well in the Gulf of Mexico. BP is not required to report to TRI releases from the wrecked Deepwater Horizon. These egregious loopholes must be closed. EPA should review what industries are not now required to report and identify those that should be added to the program.

Recent years have seen a number of changes in industrial processes and new chemicals, as well as new scientific information exposing previously unknown chemical hazards. EPA's TRI program has a significant amount of ground to cover to meet the needs of the public for information on these evolving threats. Hopefully this new action by the agency portends more and greater actions in the near future.
 

Open government advocates have raised serious concerns over a little-noticed provision in the new financial reform legislation that severely restricts the public's access to records held by the Securities and Exchange Commission (SEC). The new provision exempts certain SEC records from the Freedom of Information Act (FOIA). The aim of the new legislation is to increase transparency in the financial sector, but without access to enforcement records and other regulatory documents, the public loses a vital tool for holding our financial system regulators accountable.

The offending provision, found in Section 929I of the Dodd-Frank Wall Street Reform and Consumer Protection Act, was first flagged by Fox Business Network. The news network sued the SEC last year for failing to produce documents related to SEC's investigation of Bernie Madoff. According to Fox, the SEC recently cited the new law in its FOIA response.

The new financial reform law protects from FOIA disclosure "such records or information [that] have been obtained by the Commission for use in furtherance of the purposes of this title, including surveillance, risk assessments, or other regulatory and oversight activities" (see page 482 of the 848-page bill).

In response to the new provision, one former SEC attorney-turned-whistleblower remarked, "It allows the SEC to block the public's access to virtually all SEC records." The whistleblower had accused the agency of thwarting an investigation into a hedge fund in 2005 and had relied heavily on FOIA in a lawsuit against the SEC.

Considering the economic destruction wrought by the financial sector's poor behavior and equally poor regulations and enforcement, both companies and the public would benefit from as much transparency and accountability as possible.

In a letter to Rep. Barney Frank and Sen. Christopher Dodd, SEC chairman Mary Schapiro asserted that FOIA has hindered the SEC's ability to obtain information needed to enforce securities law and protect investors. Regulated entities "not infrequently refused to provide Commission examiners with sensitive information due to their fears that it ultimately would be disclosed publicly."

In their own letter to Rep. Frank and Sen. Dodd, eleven good government groups (including OMB Watch) counter that the provision is unnecessary to protect sensitive information and that the SEC's poor record implementing FOIA does not warrant being rewarded with even more authority to withhold information from the public.

In response to Chairman Schapiro's defense of the provision, the letter states, "These arguments do not adequately describe the SEC's existing regulatory authority, and they fail to acknowledge that the Freedom of Information Act (FOIA) already provides sufficient exemptions to protect against the release of sensitive and proprietary information."

An audit last year by the SEC's Office of Inspector General (OIG) revealed a wide range of problems related to the SEC’s FOIA operations. Among the OIG's findings: there are few written policies available to guide FOIA officers, the SEC Chief FOIA Officer was not operating in compliance with Executive Order 13392 or the OPEN Government Act, and the SEC's FOIA release rate was "significantly lower when compared to all other federal agencies." Moreover, the OIG's recommendations for fixing FOIA at SEC are yet to be implemented. It would seem additional restrictions on disclosure at SEC are needed like a hole in the head.

The open government advocates also note that SEC can subpoena records, so allegations that public disclosure laws dissuade regulated businesses from providing needed documents fail to recognize that the agency can demand the records it needs whether the businesses want to comply or not. SEC seems to think it needs expansive new exemptions from disclosure laws "to gain access in a timely fashion to information and data that it otherwise may not receive" from those it regulates. According to OMB Watch and the others, "We think such a blanket exemption fosters an environment that defers to the entities it regulates and is unadvisable."

The good government organizations call on the bill's sponsors "to repeal the unnecessary FOIA exemption in Section 929I, examine the SEC's current record on withholding information, and take whatever steps are necessary to ensure that the SEC isn't given any additional authority to keep its records under a veil of secrecy."

UPDATE: On Aug. 10, 35 good government groups, including OMB Watch, sent a letter to Sen. Patrick Leahy (D-VT) in support of S. 3717, a bill that would strike the troubling FOIA exemption provisions from the Wall Street Reform and Consumer Protection Act. The groups said that S. 3717 "sends a clear message that public access is vital to accountability and that ... existing FOIA exemptions can adequately protect confidential business information provided by newly regulated entities." The groups concluded, "In the aftermath of the recent financial crisis, the need for greater transparency in our financial system and in regulatory oversight is all too apparent."

Yesterday the Senate Homeland Security and Government Affairs Committee (HSGAC) failed to take action to protect the public, instead choosing to let millions of Americans remain at unnecessary risk of chemical disasters. The committee members chose to gut a House-passed bill that would have reduced the consequences of a terrorist attack on chemical plants and water treatment facilities. The committee also refused to consider a similar bill from Sen. Frank Lautenberg (D-NJ). Both the House bill and the Lautenberg bill would have protected workers and communities by driving the adoption of safer, cost effective technologies that eliminate the threat of an intentionally released cloud of poison gas from a chemical plant.

Almost nine years after terrorists made a mockery of conventional security measures on 9/11, the HSGAC senators continue to do the chemical industry's bidding and block measures that would actually eliminate threats. In a unanimous vote, the committee extended for three years an existing, wholly inadequate chemical security program now housed at the Department of Homeland Security (DHS). This existing program exempts approximately 2,400 drinking water and wastewater treatment plants and about 500 port facilities, including 125 of 150 U.S. refineries. The current program prohibits DHS from requiring specific security measures, including the adoption of safer technologies that hundreds of facilities have already adopted to eliminate risk. Along with these and many other weaknesses, the current program also is devoid of any meaningful accountability measures that would help ensure the program actually did what little it is required to do.

Despite committee chairman Joe Lieberman's (I-CT) flaccid and disingenuous statement of concern, he and his committee ignored these problems – and ignored the estimated 110 million people whose security is at risk – and voted for the three-year extension proposed by ranking member Sen. Susan Collins (R-ME).

It seems clear that the members of HSGAC would rather wait until a chemical disaster sends dozens, hundreds, or even tens of thousands of people to hospitals and morgues before they will act to eliminate unnecessary risks from chemical plants and water treatment facilities.

Little has been learned by the committee from the BP oil spill. Worst case scenarios do happen. The best way to prepare for a worst case scenario at a chemical or water plant is to eliminate the threat wherever possible. Both the House bill and Sen. Lautenberg's bill would have pushed companies to assess safer technologies and, where feasible and cost effective, required the most dangerous facilities to implement the technologies that the facilities themselves had identified.

We have criticized the Lautenberg legislation and the House bill for a dangerous lack of transparency and accountability. However, the existing chemical security program is drastically worse. It operates within a secret black box that conceals vital information needed by the public to ensure the program is working, hold the government and facilities accountable, and drive the adoption of safer processes that eliminate threats.

Another chemical security bill introduced by Sen. Lautenberg that covers drinking water and wastewater treatment plants is now in the Senate Environment and Public Works committee (EPW), which held a hearing on the issue yesterday. The committee is being encouraged to hold a vote on the Lautenberg bill before the Senate recess begins on August 9. A prompt vote is crucial to salvaging the remnants of comprehensive chemical security legislation. Citizens can take action and urge EPW chairman Sen. Barbara Boxer to schedule a vote as soon as possible. Click here to take action.

And be sure to express your displeasure to the members of the HSGAC: Joseph I. Lieberman, Carl Levin, Daniel K. Akaka, Thomas R. Carper, Mark L. Pryor, Mary L. Landrieu, Claire McCaskill, Jon Tester, Roland Burris, Edward E. Kaufman, Susan M. Collins, Tom Coburn, Scott Brown, John McCain, George V. Voinovich, John Ensign, and Lindsey Graham.
 

Today the U.S. Environmental Protection Agency (EPA) and the Department of Homeland Security (DHS) took steps to increase the transparency of the response to BP's catastrophic oil spill in the Gulf of Mexico. The oil company's actions have been criticized for failing to disclose or monitor important information about the spill, including the quantity of oil erupting into the Gulf, the potential health impacts of the oil and the chemicals used to disperse it, and water and air quality information. The actions by EPA and DHS, although belated, are needed, welcome, and hopefully portend a higher standard for transparency that is enduring and comprehensive, not limited to responses to colossal disasters.

In a letter to BP CEO Tony Hayward, DHS secretary Janet Napolitano and EPA administrator Lisa Jackson criticized BP's response to the spill:

In his May 17, 2010 testimony before the Senate Committee on Homeland Security and Governmental Affairs, Mr. Lamar McKay, Chairman and President of BP America, claimed that BP was making every effort to keep the public and government officials informed. Those efforts, to date, have fallen short in both their scope and effectiveness.

The letter calls on Hayward and BP to make publicly available "any data and other information related to the Deepwater Horizon oil spill that you have collected, or that will be collected in the future." A three-page attachment to the letter spells out what and how the information is to be disclosed (i.e., within 24 hours, online, type of format).

In a separate action, EPA ordered BP to identify and use a less toxic and more effective dispersant on the spill. Dispersants are chemicals used to break up oil into small droplets so that they are more easily degraded. BP has one day to identify a less toxic alternative, and then 72 hours to put it into use. BP has been criticized for using a chemical to disperse the oil that is more toxic and less effective than available alternatives, and which has been linked to harmful health effects in workers using the chemical.

EPA has also begun posting online the results from the ongoing monitoring of BP's use of underwater dispersants. According to the agency, these steps are being taken because "BP is using this dispersant in unprecedented volumes and, last week, began using it underwater at the source of the leak – a procedure that has never been tried before."

Many view the use of the dispersant as a trade-off between damage caused by oil and chemicals deep in the water and damage caused by oil that reaches shore. It seems unlikely the use of dispersants will be suspended any time soon, and more than 600,000 gallons have already been dumped in the water. It is therefore crucial that the public know what was used, where, how much, and where it went. This means disclosing the identities of the chemical ingredients comprising any dispersant that BP uses – a step that EPA does not seem to be considering.

In the letter to BP, the government states "Although DHS and EPA are not aware of any data or information that you would have that is Confidential Business Information (CBI), any claim of CBI will be handled in accordance with applicable law." Although I would fully expect them to make the claim, in this situation it is hard to understand how these polluters could be allowed to use trade secrets privileges to hide data from the public.

EPA today also launched a Spanish-language version of its BP spill response website, "to inform the Spanish-speaking public about the spill's impact on the environment and the health of nearby residents." The agency is working on a Vietnamese translation to accommodate the large Vietnamese population along the Gulf coast.

In their letter to BP, the EPA and DHS claim that because the spill "impacted the lives and livelihoods of countless people," then "it is critical that all actions be conducted in a transparent manner." I hope this logic is applied much more broadly. Big Oil's actions – along with actions by numerous other industries and the federal government – frequently impact "the lives and livelihoods of countless people," but the transparency has been missing from both the industry and the government.

For years the oil and gas industry has enjoyed far too much leniency from regulators, too many handouts from government, and has been exempted from the accountability measures that apply to the majority of other industries. The oil and gas drilling industry does not have to report its pollution to the Toxics Release Inventory – the bedrock right-to-know law. Natural gas drillers are exempt from reporting what toxic chemicals they use which threaten our drinking water supply. Numerous other exemptions from other environmental laws are on the books.

This tragedy in the Gulf must be the end of Big Oil's exemption from accountability.

• More information on the monitoring of the dispersants may be found on EPA's website.
• Monitoring results for air, water, and sediment are also available on the site.