If you have an ACS member number, please enter it here so we can link this account to your membership. (optional)

ACS values your privacy. By submitting your information, you are gaining access to C&EN and subscribing to our weekly newsletter. We use the information you provide to make your reading experience better, and we will never sell your data to third party members.



On Or Off Track?

Critics say EPA's voluntary program rewards polluters with fewer inspections

by Cheryl Hogue
September 11, 2006 | A version of this story appeared in Volume 84, Issue 37

On Course
Credit: John Rossino/Lockheed Martin
Johnson is shown at the Lockheed Martin facility in Marietta, Ga., which is a member of EPA's Performance Track program.
Credit: John Rossino/Lockheed Martin
Johnson is shown at the Lockheed Martin facility in Marietta, Ga., which is a member of EPA's Performance Track program.

Environmental activists are wondering why some industrial facilities that are spewing out increasingly more toxic chemicals are rewarded with fewer Environmental Protection Agency inspections.

Those plants happen to have voluntarily joined EPA's National Environmental Performance Track program. EPA says those plants have earned the rewards because they go beyond mere compliance with regulations and have worked to improve their environmental performance. But environmental groups question how releasing more pollutants qualifies as protecting public health and the environment.

Begun in June 2000, the agency's Performance Track program "recognizes and rewards facilities that consistently exceed regulatory requirements, work closely with their communities, and excel in protecting the environment and public health," according to EPA.

Private and federal facilities that have clean environmental records can apply to become members of Performance Track. Choosing from several broad pollution-control or resource-conserving categories, such as reducing air emissions or reducing water use, a facility sets three or four specific environmental goals it must meet over a three-year membership period. Examples include reducing greenhouse gas emissions or curbing the use of water or a raw material, either by a fixed percentage or by a unit of output.

To qualify for Performance Track membership, plants must have a system in place for environmental management, such as the chemical industry's Responsible Care program. They must have a relatively clean enforcement history with EPA, which means that applicants must have had no more than two significant civil violations in the past three years and no criminal violations in the past five years. And they must provide information to the local community about their environmental activities.

Those accepted for membership must submit to EPA an annual report of their activities that "demonstrates compliance certification and progress on environmental commitments," according to the agency.

In return, Performance Track facilities get fewer EPA inspections and, according to the agency's website, "increased access to senior EPA officials." Among the other benefits touted by EPA are articles written and placed by the agency about Performance Track companies in trade journals.

About 390 facilities scattered across 46 states and Puerto Rico are currently members of the program, says Daniel J. Fiorino, director of the Performance Track program. The agency's public database of Performance Track members lists 48 chemical plants and 26 rubber and plastic manufacturing facilities.

EPA Administrator Stephen L. Johnson sees Performance Track as emblematic of the Bush Administration's approach to pollution control.

"From Wall Street to Main Street, President Bush and EPA are changing the way individuals and organizations think about their role in protecting our shared environment," Johnson said in an Aug. 16 statement on Performance Track. "By committing to conservation, America's leading companies are proving that doing what's good for the environment is also good for business."

Among their criticisms, environmental activists fault EPA for painting entire companies with a green Performance Track brush when just one or only a handful of their plants are actually members of the program.

Environmental groups aren't totally against Performance Track. According to John D. Walke, clean air director for the Natural Resources Defense Council, "Encouraging regulated industries to go beyond compliance and recognizing companies that do so are worthy goals." But Walke is critical of what he calls EPA's "fixation" with the incentives of reduced inspections and partial deregulation-such as reduced monitoring of air emissions-and its preference for voluntary efforts, such as environmental management systems.

Environmental organizations are particularly troubled over some Performance Track facilities' increased discharge of chemicals listed on EPA's Toxics Release Inventory (TRI). A January letter to EPA from 32 environmental groups said, "Emissions data available online from EPA may occasionally be incomplete or out-of-date, but that only underscores the need for better information on the actual performance of Performance Track members."

They added, "Without an honest accounting, the public will lose confidence in the program, and it may eventually be dismissed as little more than a public relations front for some of the country's biggest polluters."

Earlier this year, the Environmental Integrity Project (EIP) issued a report saying some Performance Track facilities are releasing more pollution than they did before joining the program. "The data suggest that instead of leading the pack, some Performance Track members may be falling further behind," the report says.

One facility targeted in the EIP report is a 3M plant in Guin, Ala., that makes reflective materials for highway and transportation uses. A charter member of Performance Track, this facility reduced solid waste, energy use, and emissions of volatile organic compounds (VOCs) per unit of product during its first three years in the program. When it renewed its membership in 2004, it committed to reduce solid and hazardous waste, energy use, and VOC emissions per unit of product.

The EIP report points out that between 2000 and 2004, the Guin plant's emissions of ethylbenzene, as reported to the TRI, more than doubled.

The increase in ethylbenzene emissions at the Guin plant was due to a 60% increase in production, says 3M spokesman Bill Nelson. During the same time, the site saw a reduction in its overall TRI releases and a 25% drop in its VOC emissions, he says.

Eric Schaeffer, director of EIP, criticizes EPA for establishing no link between what a facility offers to do, such as recycling its cardboard boxes and thus reducing its solid waste, and what it gets: fewer inspections. Instead, plants are invited to define their environmental goal for themselves, says Schaeffer, who is a former director of the EPA Office of Regulatory Enforcement.

EIP and environmental groups are particularly critical when it comes to violations of EPA regulations. They maintain that the agency imposes no membership consequences on Performance Track plants that violate environmental rules.

EIP analyzed EPA's enforcement databases and found that since they joined the program, about 50 of the member facilities have each had three significant violations, problems that would trigger an agency enforcement action and likely involve a fine.

Yet EPA is "pretty much advertising these companies as perfect," regardless of whether they run afoul of environmental requirements, Schaeffer says. "We're asking for a bit more honesty."

"It's hard to stay in compliance," Schaeffer acknowledges. He suggests that if a Performance Track plant has a significant violation, the facility should be temporarily suspended from the program or placed in a special category of membership until it corrects the noncompliance.

Fiorino responds that EPA generally will reject applications for Performance Track membership if facilities have pending or unresolved environmental enforcement actions. And some Performance Track members have run into compliance problems. The key factors in how EPA reacts are whether these violations are minor, identified through the facility's environmental management system, and resolved quickly, he says.

EPA did not renew the Performance Track memberships of eight facilities because of compliance issues, Fiorino adds.

Facilities that join Performance Track must demonstrate that they meet the membership criteria, Fiorino says. "You don't sign up and get a lifetime pass," he says. Performance Track officials check all annual performance reports and conduct site visits at about 10% of the program's member facilities each year.

In addition to not renewing the membership of several plants with unresolved compliance problems, EPA has asked 35 to 40 facilities to resign from the program. A common problem among these is failure to turn in required annual progress reports, Fiorino says.

Schaeffer also faults EPA for having no defined health or ecological improvement goals for the program, such as lowering overall emissions of hazardous air pollutants while staying in compliance. Instead, he says, Performance Track is based on a process: having plants go beyond what they are required to do to comply with EPA regulations.

Nelson, the 3M spokesman, disagrees. "Performance Track is doing what it was designed to do—reduce emissions," he says.

Walke of NRDC, among others, remains skeptical. He believes Performance Track can "run the real risk of being perceived as a government-administered cottage industry for industry-driven flexibilities, deregulation, and reduced oversight under the guise of environmental leadership pretensions that are neither evaluated nor verified."

Credit: Ciba Specialty Chemicals
Credit: Ciba Specialty Chemicals

One Plant's Experience

Ciba Facility Sees Benefits

Ciba Specialty Chemicals' pigment manufacturing facility in Newport, Del., is a charter member of the Environmental Protection Agency's National Environmental Performance Track.

Ciba values the recognition from EPA for the plant's participation in Performance Track, spokeswoman Donna M. Jakubowski tells C&EN. "It's good for business," she says.

The Newport site signed up for Performance Track after it received recognition from the Occupational Safety & Health Administration for outstanding efforts on worker health and safety, she says. Performance Track rounded out the plant's record of accomplishments by adding environmental achievements, she explains.

Publicly available documents that Ciba filed with EPA describe the plant's Performance Track goals during its first three years of membership. It pledged to reduce energy use, emissions of nitrogen oxides—chemicals that are precursors of ground—level ozone, or smog-and generation of solid waste. It also volunteered to curb releases of air toxics, which it did by opening a state-of-the-art synthesis facility for quinacridone (a type of pigment) and closing an older one. The new facility was designed to boost production efficiency and decrease emissions.

When the Newport site renewed its membership in 2004, it signed up to reduce water use by 15% in three years, a goal that dovetails with a Ciba corporate policy to decrease water consumption per ton of finished product by 10%.

Similarly, the plant agreed to cut greenhouse gas emissions from its steam-generating boilers by optimizing processes and capacity potential, according to documents the site filed with EPA. This goal reflects Ciba's global mandate to lower the amount of carbon dioxide it generates by 10% per ton of finished product, those documents note.

In addition, the Newport plant pledged to reduce its discharges of total suspended solids to water and its generation of hazardous waste.

These Performance Track goals, Jakubowski says, help the facility manage its operational costs.


This article has been sent to the following recipient:

Chemistry matters. Join us to get the news you need.