July 29, 2004

Still Above The Law: Don't Ask Don't Tell

Don't Ask, Don't Tell

"Access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state."

— California State Government Code, Section 6250 [7]

Both federal and state laws require collection and reporting of air pollution violation and enforcement data, not only because the public has a right to information about contaminants in the air we breathe, but public disclosure helps hold corporations accountable to the community. Public disclosure of violation and enforcement data is not just a matter of bookkeeping. The ultimate goal is to make the air cleaner to protect the health and safety of all Californians.

But anyone who sets out to research clean air violations in California quickly learns that getting clear, reliable and current data is not easy.

Detailed, facility-level information is not available from either the U.S. EPA or the state Air Resources Board, but is kept by 35 local air quality districts. Some of the districts are large, sprawling bureaucracies employing dozens of inspectors; some have only a few employees. There are differences in the way these individual districts inspect facilities, report violations and assess fines — the South Coast's fewer violations and higher fines approach vs. the Bay Area's more violations and lower fines being only the most significant example. As a result, even officials of the districts often acknowledge that the publicly available data are less than fully reliable or hard to understand.

To begin our analysis, we first looked at EPA's databases of enforcement records by California air districts. They were useless for our purpose: Citing a disagreement over reporting methodology, the Bay Area Air Quality Management District had not provided any penalty data to the EPA since 1999. (The district recently agreed to resume reporting to EPA after a five-year delay.)

We then requested the enforcement data directly from the air districts. The Sacramento and San Joaquin districts complied without significant delay. The Bay Area district responded slowly, and would only release some of its data after its legal staff had completed a line-by-line review of penalty amounts.

The South Coast district refused to turn over detailed penalty information, citing concerns both over the quality of the data and EWG's ability to interpret them accurately. To obtain the data used in this report, we had to download from the Internet 63 monthly reports to the district's board.

The issue, of course, is not what EWG had to do to obtain and analyze the data, but the technical and financial obstacles faced by the average Californian or community group who wants to know about the sources of air pollution in their community. The Legislature and ARB must take steps to improve both the quality of data and citizens' access to it.