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Beyond the Right to Know - Fighting for the Right to Act
by Rick Engler, Director, New Jersey Work Environment Council
October 28, 2001
Our collective success over the past two decades in winning worker and community chemical Right to Know laws, as well as collective bargaining and “good neighbor” agreements, has provided a wide array of important information about hazardous substances and toxic releases. But information is not power, it is a prerequisite to power. Right to Know does not require clean up of dumpsites, reduction of chemical emissions, installation of workplace ventilation systems, or toxics use reduction.
By the mid 1980’s, labor and environmental activists focused on a new approach, one which Tony Mazzocchi of the Oil, Chemical, and Atomic Workers Union (who also coined the phrase “right to know”) called the “right to act.”
This approach, which has taken many forms, was based on the idea of direct neighborhood and/or worker empowerment and avoiding reliance on traditional government regulation. It presumed that even if government agencies were truly committed to protecting community and worker health, that complete reliance on traditional means of government regulation – standards and inspectors – will fail. There simply can never be enough standards and “outside” inspectors to prevent hazards at hundreds of thousands of workplaces and sites where there are potential dangers. While right to act is not a substitute for effective government enforcement or for needed laws to regulate what toxics can be produced, it is a vital complement.
Therefore, an effective strategy must empower workers and residents to act at the workplace and neighborhood level through achievement of new rights to inspect workplaces, to negotiate preventive measures, and to take other forms of action.
There are many precedents for the right to act approach:
· Many unions have won safety and health committees in local contract agreements with the power to meet regularly (on employer time), inspect the workplace, investigate accidents, and direct temporary cessation of hazardous jobs.
· Western European countries and Canadian provinces enacted legislation codifying these rights in their occupational health and safety laws.
· Communities have negotiated Good Neighbor Agreements that include community inspections (with accompanying independent experts), third party audits, and other advances.
· Under the Occupational Safety and Health Act, union representatives have the right to accompany agency inspectors. Under the Surface Mining Reclamation Act, community members have the right to accompany reclamation inspectors.
But limited rights under federal law or ad-hoc community or workplace efforts, while useful precedents, are inadequate solutions.
We need state and national policies that, like many right to know laws, provide new rights to all, regardless of whether they are in a union or not or whether they have a powerful community organization that could force concessions from a facility in their midst.
In the last 10 years, there have been two attempts to win right to act laws in New Jersey.
After winning New Jersey’s Worker and Community Right to Know Act in 1983, arguably the nation’s most comprehensive chemical right to know law, key leaders in that campaign – buoyed by their success -- carefully planned a new initiative. They launched a four-year statewide, grassroots campaign for a right to act law spearheaded by the Industrial Union Council, AFL-CIO (IUC) and the NJ Right to Know and Act Coalition, with 160 endorsing labor, community, and environmental organizations. This bill, entitled HELP – the Hazard Elimination through Local Participation Act – used Local Emergency Planning Committees, already established under federal and state law, to inspect local facilities, with accompaniment by neighborhood representatives. HELP also created Hazard Prevention Committees in workplaces with 50 or more employees. These committees were composed of management and workers. Committee members received training, and conducted periodic inspections.
The state business and chemical industry associations made defeat of HELP their top priority. Despite release of HELP from key legislative committees, the Senate President and Assembly Speaker (both Democrats) never posted the bill for final vote. Industry spent an estimated $200,000 in campaign contributions to defeat this legislation and suggested that its passage would cause plants to shutdown, devastating the state’s economy.
In September 1998, after three chemical incidents within a few months including a leak that forced hospitalization of more than 50 Paterson elementary students and school personnel, the Passaic County, NJ Freeholders (the county’s governing body) rapidly and unanimously enacted a right to act law written by the Work Environment Council. The legislation required the County Health Department, upon petition of 25 adult residents, to set up a Neighborhood Hazard Prevention Committee of community members for a particular facility. The committee, which could also include management, union, and municipal representatives, would meet to advise management on how to correct hazards. Most important, it could conduct on-site inspections – we called them “surveys” – accompanied by technical experts of the committee’s own choosing. To-date, no other local legislation had existed in the United States giving neighbors such authority.
Industry knew nothing of the vote until it was over – and most of the Freeholders probably had not read the bill. The industry backlash, to say the least, was fast and furious and included the same state powerful business associations that defeated HELP. Since there had been no time to build a grassroots campaign for the laws’ passage, it wasn’t surprising when the Freeholder Board voted in August 1999 to substitute a very much weaker resolution eliminating community inspections without employer permission. It is arguable that even with sufficient time to build a major grassroots campaign, that we still could not have won community inspection rights given the power imbalance between industry and our side.
The clear lesson of both campaigns is that labor and community forces simply do not currently have the political power to win far-reaching right to act statutes, especially ones that include community inspection rights, even if they had only the limited mandate to make recommendations.
What would it take to win strong worker/community right to act legislation in New Jersey and perhaps elsewhere today?
·
It would require that environmental, labor, and
community constituencies all understood that corporate power was a common enemy
– and that to win meaningful change required commitment to a common
strategy. Without broad support, not only are the chances of winning reduced, but
“unilateralist” environmental campaigns that do not address job fear among
workers or lack at least some union support can set back attempts to build a
more powerful movement.
· Stronger commitments and campaign organization would be needed. For example, the depth of support from workers and their unions worried about job loss – including unemployment perceived to stem from environmental regulation -- would have to be far greater. Similarly, strong backing from people of color organizations and urban communities would be essential. And the more mainstream environmental groups, as well as the bigger unions, would have to decide that greater public oversight of industry was a true priority – and a litmus test for candidate endorsements.
· The impact of money in politics would have to be successfully countered. During the New Jersey campaign, the Senate President and the Assembly Speaker controlled the fate of HELP – and industry bought their decision not to post the legislation. As many have argued, campaign finance reform may be the change that makes other reforms possible.
Despite difficult defeats in two initiatives, the New Jersey Work Environment Council remains committed to local, state, and ultimately national right to act strategies that remain a key element of any successful approach to preventing toxic exposures to workers and communities.
It is highly unlikely that either state or federal environmental and OSHA inspection workforces are going to dramatically expand in the future. And more and more federal responsibilities are being devolved to states. Perhaps most critically, struggles for the right to act – like past right to know campaigns – still offer potential to unite community, environmental, and labor constituencies
By the time of this right to know conference, New Jersey will have a new Governor. Democrats may control the Assembly and/or Senate for the first time in many years.
If Democrat Jim McGreevey wins the election, WEC will present him with a set of policy proposals addressing the right to know and act, environmental justice, healthy school environments, and the impact of workplace downsizing. These proposals have been endorsed by 70 labor, community, and environmental organizations to-date. Almost all of them don’t require legislation; some necessitate formal regulatory changes.
WEC and our allies are still debating one new, hopefully non-legislative, proposal to apply the extensive – but under utilized -- right to know information available about facilities that release toxic substances. This proposal in its current form would require our state’s Department of Environmental Protection (DEP) to:
· hold open public meetings with a small subset of companies to discuss their Toxic Release Inventory reports. The DEP would select facilities based on certain criteria but also in response to petitions by residents or workers.
· inspect these facilities to make recommendations for prevention.
· encourage both local residents and union representatives to accompany DEP inspections. (However, facility management could still deny the right of community accompaniment. Hopefully, precedents for future mandatory policies would emerge from those facilities that allowed such “walkaround” representatives).
· develop draft and final public reports to recommend ways that these facilities could prevent toxic releases and exposures to workers and community members.
At each stage of this process, DEP would have to work with our state Health Department to consider occupational health impacts.
The text of this proposal (Draft 2) appears on pages 5-6.
Getting your criticisms and suggestions for how to
improve this proposal is the focus of a strategy workshop at this
conference. We encourage you to participate
in that session.
Please send comments on this paper to Rick Engler
References
Collective Bargaining for Health and Safety; A
Handbook for Unions, Labor Occupational Health Program, University of California,
Berkeley, 2000.
The Neighborhood Inspection, by Richard Youngstrom, in
Fighting Toxics; A Manual for Protecting Your Family, Community, and Workplace,
Edited by Gary Cohen and John O’Connor, National Toxics Campaign, 1990
Good Neighbor Agreements: A Tool for Environmental
and Social Justice, by Sanford Lewis and Diane Henkels, Social Justice, Volume 23, Number
4, 1996.
Precedents for Corporate-Community Compacts and Good
Neighbor Agreements, by Sanford Lewis, Good Neighbor Project for Sustainable Industries,
March 1996 (at http://gnp.enviroweb.org/compxpr2.html)
Fighting for the Right to Act in New Jersey, a report on the nation’s
first state Labor/Environmental “right to act” legislative campaign to win new
rights for workers and neighbors to prevent toxic and other hazards, by Rick
Engler, 1992. This comprehensive
analysis, which includes legislative text, is available from the NJ Work
Environment Council, 1543 Brunswick Avenue, Lawrenceville, NJ 08648 for $25. A shorter version of this analysis appeared in New Solutions,
Summer 1994.
Passaic Communities Get the Right to Act, Interview with Freeholder
Lois Cuccinello, Working Notes on Community Right to Know, September-October
1998.
Resolutions
R-40 (September
8, 1998), R-11 (December 8, 1998), and R-35 (August 17, 1999),
of the Passaic County Freeholders, Paterson, New Jersey.
1) By September 1st
of each year, the New Jersey Department of Environmental Protection (DEP) shall
review the prior year’s Toxic
Release Inventory (TRI) Form R
filings and Pollution Prevention
Act submissions (DEQ 114) and
shall designate at least 10 facilities for the follow-up activities specified
in this memorandum.
2) DEP’s
designation of these facilities shall be based on the following criteria:
a)
Volume and
toxicity of TRI releases.
b)
Proximity and
vulnerability of surrounding communities.
c)
Potential
impact on the safety and health of workers at facility (such as from impact of
fugitive emissions), which shall be determined in consultation with the New
Jersey Department of Health and Senior Service’s (DHSS) Occupational Health
Program.
d)
Whether such
facilities are also regulated by the
NJ Toxic Catastrophe Prevention Act/Clean Air Act Section 112r.
Facility selection
shall also be considered with reference to DEP policy on Environmental Equity and the facility’s history of compliance
with environmental and occupational health and safety laws and regulations.
3) In addition, if DEP receives a written
petition stating a reasonable concern about a potential environmental or public
health hazard at any facility covered by the N.J. Worker and Community Right to Know Act (which covers over 40,000 private and public sector facilities) from
20 or more adult residents living or working within the county of a facility of
concern, the following process shall be triggered.
4) Prior to
November 1 or within thirty days of receipt of a petition, DEP shall:
a) schedule a local public hearing to
discuss current efforts by management and DEP to prevent toxic releases at the
facility.
b) issue a press
release (in appropriate languages) to local media outlets concerning the
purpose, date, time, and location of the hearing and shall post this
information on its website.
c) invite, by
letter, the following parties to participate in the hearing: 1) Representatives
of facility management; 2) representatives of the NJ Department of Health; c)
representatives of the local health department and county health officer; d)
representatives of the local environmental commission (if any), e) employee
representatives of designated bargaining agents (if any); and e)
representatives of local community and environmental organizations.
5) At the hearing,
DEP shall distribute a written summary of the facility TRI report, the Pollution Prevention Plan Summary, and other relevant documents.
6) At the hearing,
the DEP shall present a summary of its concerns and shall take testimony from
all parties and the public. There shall be a section of the meeting when
questions can be asked by any hearing attendee of all those who presented
testimony. DEP shall prepare a written transcript
within 30 days of the hearing.
7)
Within 60 days of the hearing, DEP shall schedule an inspection of the facility
in order to make recommendations to prevent TRI releases, to reduce use of
toxics, and to address related petitioner concerns. (Nothing in this policy shall be construed to relieve the DEP of
its duty to enforce existing law). For
inspections that may involve potential occupational health hazards, the DEP
inspector shall be accompanied by a representative of the DHSS Occupational
Health Program.
8) DEP shall encourage both appropriate local
community and designated union representatives to accompany their inspection.
9)
Based on DEP’s review of all relevant documents, public hearing
testimony, and
the
facility inspection, DEP, in consultation with the DHSS, shall prepare a draft
report with recommendations concerning prevention of toxic releases in and from
the facility.
10)
The report shall address the following factors when developing
recommendations to
prevent
toxic releases:
-impact
of proposed changes on community and employee health and safety
-availability
of less hazardous substitute materials
-reduction
of inventory
-potential
alternative design of processing units
-employee
and contractor training
-maintenance
scheduling
-adequacy
of ongoing monitoring methods
-impact
of number of jobs at the facility
-cost
impact
11) The draft report shall be distributed for
public comment.
12) The final report shall include a section for
written public comments, including those of facility management.
13) If there is interest by facility management,
the community, or designated union representatives, the DEP shall facilitate
follow-up meetings to discuss ways to prevent TRI releases, pollution, or
related environmental or public health hazards at the facility. Representatives of management, the DHSS and
union representatives (if any) must be notified and invited to these meetings.
14) DEP shall develop a program to monitor
toxic releases, specifically from the facilities designated in this program,
with public distribution of monitoring results.
Your comments and suggestions about this proposal are encouraged. Please e-mail them to Rick Engler, Director, NJ Work Environment Council, at rickengler@aol.com
This background paper was issued by the New Jersey Work Environment Council (WEC), 1543 Brunswick Avenue, Lawrenceville, New Jersey 08648-4627 (609) 695-7100; FAX (609) 695-4200. Website: www.njwec.org.
CWA 38010/AFL-CIO
Participatory Activity on
a Proposed State Policy
From Right
to Know to Right to Act?
1)
To help environmental, community, and labor organizations in New Jersey
develop a meaningful policy proposal on right to know and act for their new
Governor.
2)
To improve the proposal so that it can win the greatest support from
three constituencies: labor, environmental, and community.
3) To assure that the proposal can be adopted by the Governor without major new legislation that would be difficult or impossible to win.
Task
Please read the text of the draft policy proposal. Then discuss the following questions in your
small groups:
1) This is what I
like about this proposal:
2) This is what I
don’t like about this proposal:
3) This is how this
proposal could be improved:
We
encourage you to hand in this comment sheet at the sessions end so we can
further consider your views. Thank you.