[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
THE CHEMICAL SAFETY INFORMATION AND SITE SECURITY ACT OF 1999
=======================================================================
HEARINGS
before the
SUBCOMMITTEE ON
HEALTH AND ENVIRONMENT
of the
COMMITTEE ON COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
H.R. 1790
__________
MAY 19 and 26, 1999
__________
Serial No. 106-24
__________
Printed for the use of the Committee on Commerce
U.S. GOVERNMENT PRINTING OFFICE
57-442CC WASHINGTON : 1999
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON COMMERCE
TOM BLILEY, Virginia, Chairman
W.J. ``BILLY'' TAUZIN, Louisiana JOHN D. DINGELL, Michigan
MICHAEL G. OXLEY, Ohio HENRY A. WAXMAN, California
MICHAEL BILIRAKIS, Florida EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas RALPH M. HALL, Texas
FRED UPTON, Michigan RICK BOUCHER, Virginia
CLIFF STEARNS, Florida EDOLPHUS TOWNS, New York
PAUL E. GILLMOR, Ohio FRANK PALLONE, Jr., New Jersey
Vice Chairman SHERROD BROWN, Ohio
JAMES C. GREENWOOD, Pennsylvania BART GORDON, Tennessee
CHRISTOPHER COX, California PETER DEUTSCH, Florida
NATHAN DEAL, Georgia BOBBY L. RUSH, Illinois
STEVE LARGENT, Oklahoma ANNA G. ESHOO, California
RICHARD BURR, North Carolina RON KLINK, Pennsylvania
BRIAN P. BILBRAY, California BART STUPAK, Michigan
ED WHITFIELD, Kentucky ELIOT L. ENGEL, New York
GREG GANSKE, Iowa THOMAS C. SAWYER, Ohio
CHARLIE NORWOOD, Georgia ALBERT R. WYNN, Maryland
TOM A. COBURN, Oklahoma GENE GREEN, Texas
RICK LAZIO, New York KAREN McCARTHY, Missouri
BARBARA CUBIN, Wyoming TED STRICKLAND, Ohio
JAMES E. ROGAN, California DIANA DeGETTE, Colorado
JOHN SHIMKUS, Illinois THOMAS M. BARRETT, Wisconsin
HEATHER WILSON, New Mexico BILL LUTHER, Minnesota
JOHN B. SHADEGG, Arizona LOIS CAPPS, California
CHARLES W. ``CHIP'' PICKERING,
Mississippi
VITO FOSSELLA, New York
ROY BLUNT, Missouri
ED BRYANT, Tennessee
ROBERT L. EHRLICH, Jr., Maryland
James E. Derderian, Chief of Staff
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Health and Environment
MICHAEL BILIRAKIS, Florida, Chairman
FRED UPTON, Michigan SHERROD BROWN, Ohio
CLIFF STEARNS, Florida HENRY A. WAXMAN, California
JAMES C. GREENWOOD, Pennsylvania FRANK PALLONE, Jr., New Jersey
NATHAN DEAL, Georgia PETER DEUTSCH, Florida
RICHARD BURR, North Carolina BART STUPAK, Michigan
BRIAN P. BILBRAY, California GENE GREEN, Texas
ED WHITFIELD, Kentucky TED STRICKLAND, Ohio
GREG GANSKE, Iowa DIANA DeGETTE, Colorado
CHARLIE NORWOOD, Georgia THOMAS M. BARRETT, Wisconsin
TOM A. COBURN, Oklahoma LOIS CAPPS, California
Vice Chairman RALPH M. HALL, Texas
RICK LAZIO, New York EDOLPHUS TOWNS, New York
BARBARA CUBIN, Wyoming ANNA G. ESHOO, California
JOHN B. SHADEGG, Arizona JOHN D. DINGELL, Michigan,
CHARLES W. ``CHIP'' PICKERING, (Ex Officio)
Mississippi
ED BRYANT, Tennessee
TOM BLILEY, Virginia,
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Hearings held:
May 19, 1999................................................. 1
May 27, 1999................................................. 81
Testimony of:
Billings, Hon. Leon G., Member, Maryland House of Delegates.. 91
Burnham, Robert M., Chief, Domestic Terrorism Section,
Federal Bureau of Investigation............................ 37
Fields, Timothy, Jr., Acting Assistant Administrator, Office
of Solid Waste and Emergency Response, Environmental
Protection Agency.......................................... 32
Fong, Ivan K., Deputy Associate Attorney General, Department
of Justice................................................. 29
Gablehouse, Timothy R., Chair, Jefferson County LEPC......... 61
Grumet, Jason S., Executive Director, NESCAUM................ 94
Kinsey, Kathy M., Assistant Attorney General, State of
Maryland................................................... 102
McMasters, Paul K., First Amendment Ombudsman, Freedom Forum,
on behalf of the American Society of Newspaper Editors..... 108
Natan, Thomas, Research Director, National Environmental
Trust...................................................... 104
Orum, Paul, Coordinator, Working Group on Community Right-To-
Know....................................................... 53
Pfeifer, Martin, Sergeant, Metropolitan Police Department,
and Elected Trustee, the National Board of Directors,
Fraternal Order of Police.................................. 57
Sloan, Thomas W., Director and State Librarian, Delaware
Division of Libraries, on behalf of the American Library
Association................................................ 65
Southwell, Donna J., Ann Arbor City LEPC Member, Assistant
Emergency Coordinator, Washtenaw County LEPC, Environmental
Health, Education and Outreach Manager for Washtenaw
County, Michigan........................................... 98
Strader, Lowell P., International Representative, Pace
Workers International Union................................ 69
Susman, Thomas M., on behalf of Chemical Manufacturers
Association................................................ 48
Wheatley, Mark S., Assistant Chief, Fairfax County Fire and
Rescue Department, on behalf of International Association
of Fire Chiefs............................................. 45
Material submitted for the record by:
National Conference of State Legislatures, prepared statement
of......................................................... 126
(iii)
THE CHEMICAL SAFETY INFORMATION AND SITE SECURITY ACT OF 1999
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WEDNESDAY, MAY 19, 1999
House of Representatives,
Committee on Commerce,
Subcommittee on Health and Environment,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:24 p.m., in
room 2123, Rayburn House Office Building, Hon. Michael
Bilirakis (chairman) presiding.
Members present: Representatives Bilirakis, Stearns, Deal,
Bilbray, Whitfield, Cubin, Pickering, Bryant, Bliley (ex
officio), Brown, Waxman, Pallone, Green, Strickland, DeGette,
Barrett, and Dingell (ex officio).
Staff present: Anthony Habib, legislative clerk; Joe
Stanko, majority counsel; Bob Meyers, majority counsel; and
Alison Berkes, minority counsel.
Mr. Bilirakis. The hearing will coming to order.
I would like to, first, thank our witnesses for appearing
today to discuss H.R. 1790, the legislation concerning the
Internet posting of chemical worst-case release scenarios.
This legislation was introduced by Full Committee Chairman
Bliley at the request of the administration. It is my
understanding that the bill was developed only after weeks of
interagency discussions between the Environmental Protection
Agency, the Department of Justice, the Federal Bureau of
Investigation, and other Federal entities. Therefore, I believe
it is fair to state that this legislation represents a
consensus of the administration on this issue, and that by
submitting this bill to Congress, the administration has
requested us to act on behalf of the security interests of this
Nation and to protect the general public from harm. So I,
therefore, take this legislative request by the administration
very seriously.
At our hearing of February 10, the administration opposed
third parties making worst-case scenario information available
in a searchable, electronic format. The FBI has indicated that
such information, and I quote, ``can directly be used as a
targeting mechanism in a terrorist or criminal incident.''
Since present law will not prevent the public dissemination of
this information to all corners of the world via the Internet,
H.R. 1790 represents a necessary, indeed, unavoidable change in
the law.
I must say at the outset, however, that while this bill
represents a consensus among various agencies and departments
of the Federal Government, it is not--as my ranking member just
recently said--a perfect product.
As we will hear today, there are elements of this
legislation which will require additional action by the
administration, in terms of regulations and guidance.
Furthermore, there are elements of this legislation which
we may want to carefully consider and revise before sending a
final product to the President for signature. Whenever we
establish new Federal law, we must take care to draft
provisions carefully and to thoroughly consider the
ramifications.
But it is also equally clear that we just plainly do not
have much time. Since H.R. 1790 was not transmitted to Congress
until May 7, we have a little over 4 weeks from today to
complete all of the necessary procedural steps in the House and
the Senate. I don't think I need to remind members that
committee reports, floor consideration, and conference
committee are necessary. All require substantial amounts of
efforts, so we must then act with all reasonable speed.
In this regard, I intend to work with my colleagues from
both sides of aisle--we have done some great things up here the
last 2 or 3 years of working together--and with the
administration to ensure the legitimate concerns with the
legislation are addressed. But I do not intend to let the clock
run out while we are still talking and not acting, and I want
to make that clear.
In summation, the legislation before us attempts to create
a finely honed exception to the general provision of risk
management plan data to the public, based on FBI's analysis of
terrorist threats and based on month's-long review and
discussion by governmental experts in law, law enforcement, and
environmental policy.
As such, the legislation is a narrow measure, based on
wide-ranging interagency review, which is essentially designed
to avert a defined threat. We should, therefore, resist any
temptation to expand this legislation beyond its essential
purpose and to work to perfect this legislation, while not
making the perfect--the enemy of the good.
The Chair now recognizes Mr. Brown for an opening
statement.
Mr. Brown. I thank you, Mr. Chairman.
We are meeting today to receive testimony on the Chemical
Safety Information and Site Security Act, H.R. 1790.
The Clean Air Act requires chemical facilities to file risk
management plans which include information on the consequences
of serious chemical accidents, known as the worst-case scenario
or offsite consequence analysis data.
The information was all intended to be publicly available
to allow communities to prepare for accidents, but concerns
have been raised that terrorists could use it to plan attacks
on chemical facilities.
We are here to examine the administration's legislative
proposal which would greatly restrict access to that data on
potential chemical accidents.
H.R. 1790 raises a number of complicated issues that
deserve close scrutiny. It is unfortunate that this hearing was
called only a few days ago, thus making it difficult for
interested parties to thoroughly review this very complicated
issue. Some of the witnesses requested by the minority were not
invited or were not able to attend on short notice.
I want to thank Chairman Bilirakis for his good-faith
efforts in trying to accommodate, in the next week, the
minority, and I think we will probably hear a little more on
that later.
We have been receiving expressions of interest and concern
from a number of important stakeholders who will not be
represented here today. For example, the National Association
of Attorneys General has expressed surprise and concern that
H.R. 1790 would preempt State freedom of information and public
record laws and could subject State officials and employees to
criminal sanctions if they permit unauthorized access to worst-
case scenario data.
Included with my opening statement, which I will submit for
the record, is a list of agencies and organizations that have
expressed interest in disclosure of worst-case scenario
information.
I would like, also, Mr. Chairman, to highlight several of
my concerns with H.R. 1790. The bill permits the EPA to provide
the data on chemical accidents to State and local officials.
However, volunteer firefighters and many members of local
emergency planning committees are not considered State or local
officials and would not be allowed to receive this crucial, to
them, information, and to their communities, information from
the EPA.
While many chemical companies are taking a responsible
approach and will continue to share information directly with
their local emergency planning committees, it is important to
address this issue in the legislation.
Second, workers at chemical facilities have a significant
stake in this matter. Public information on risk management
plans and accident scenarios provide opportunity for workers
who are on the front lines when accidents occur to learn more
about the facilities where they work ahead of time and to
discuss safety improvements with their employers. H.R. 1790
would great hamper this exchange.
Furthermore, if the concern is for terrorist attacks on
chemical facilities, H.R. 1790 should contain substantive
measures to encourage chemical facilities to reduce hazards and
increase security.
I recommend to deal with that consideration a proposal by
my colleague, Mr. Waxman, along these lines.
Along with my opening statement, Mr. Chairman, I request
unanimous consent to submit three letters to the record. The
first dated March 25 of this year is from Mr. Dingell, Mr.
Klink, and me, to David Walker, the Controller General of the
GAO.
Mr. Bilirakis. Without objection.
[The information referred to follows:]
U.S. House of Representatives
Committee on Commerce
March 25, 1999
The Honorable David M. Walker
Comptroller General
General Accounting Office
441 G Street, N.W.
Washington, D.C. 20548
Dear Comptroller General Walker: Last month, the Committee on
Commerce held a hearing entitled ``Internet Posting of Chemical `Worst
Case Scenario' Data: A Road Map for Terrorists?'' The hearing focused
on 112(r) of the Clean Air Act, which mandates that approximately
66,000 facilities handling dangerous chemicals are required to file
with the Environmental Protection Agency (EPA) by June 21, 1999, a risk
management plan (RMP) containing an off-site consequences analysis--or
``worst case scenario''--that could result from the release of those
chemicals. The scenarios will contain the amount of the chemicals on
each site and the potential effects of a total release both inside and
outside the facility. The RMP will also include a prevention and a
response program. When Congress passed this provision in 1990, its
stated purpose was ``prevent the accidental release and to minimize the
consequences of any such release . . .'' P.L. 101-549 112(r)(1).
On the day before the hearing, Chairman Bliley held a press
conference. He described the plan as a ``reckless'' move and an
``emerging national security threat'' that would result in terrorist
bombings of chemical facilities and said that he would introduce
legislation to address with his concerns within the next few weeks.
Senator Inhofe, who held a hearing recently, has also indicated that he
is considering legislation that would restrict dissemination of this
information.
While there may well be reason for concern, there were also sound
reasons for congressional action in 1990. Congress required that the
RMPs be made available to the public to encourage the public to work
with the facilities to create an effective response plan, mitigate any
potential effects and reduce the amount of dangerous chemicals on site.
Accidental chemical releases are a major health and safety problem and
economic cost in the U.S. Every year, more than 250 people--mostly
workers and first responders--die in chemical accidents. According to
the Chemical Safety and Hazard Investigation Board (CSB), ``Commercial
chemical incidents occur tens of thousands of times each year, often
with devastating and exorbitantly expensive consequences.'' Another
2,300 persons are injured, many seriously. These accidents occur ``all
over the country, in every state, on railways, highway and waterways,
and in all kinds of industry, government and commercial facilities.
During the period 1987-1996, chemical incidents were recorded in 95%
(3,145) of the nearly 3,300 United States counties.'' Approximately
one-third of the U.S. population, or 85 million people, live within
five miles of a regulated source.
At our hearing, some witnesses testified that, although the public
had the right to know the worst case scenario and assist in efforts to
reduce the risk of chemical accidents, they should not have access to
this information on the Internet because terrorists might use the
information to attack chemical facilities. Several of them cited a
``security study'' funded by the EPA as supporting their position that
the information would result in increased risk of terrorism at chemical
facilities. However, that study, which apparently was never completed,
appears to have serious methodological errors that cause us to question
any reliance on its conclusions by EPA or the Congress.
Enclosed is a staff memorandum to us raising numerous questions
about the study that we are referring to the General Accounting Office
(GAO) for review. These include (1) a failure to establish the required
baseline risk of attack and then quantify the incremental increase, if
any, of releasing the worst case scenario; (2) the use of questionable
methodology throughout the study; (3) the claim that risk of death in
chemical facilities by terrorist action equals the risk of death by
accidental releases in those same facilities, even though not a single
person has ever died from terrorist causes in a chemical facility while
dozens die every year from chemical accidents; and (4) the attempt to
demonstrate potential risk by citing an alleged incident of chemical
facility terrorism that has been publicly known since 1991 to have been
an insurance scam, not a terrorist attack.
By this letter, we are requesting that GAO review the study and
address the questions listed in the attachment to the staff memorandum.
If your staff has any questions or would like to discuss this further,
please contact Edith Holleman, Commerce Committee minority counsel, at
(202) 226-3407.
Sincerely,
John D. Dingell, Ranking Member,
Committee on Commerce
Ron Klink, Ranking Member,
Subcommittee on Oversight and Investigations
Sherrod Brown, Ranking Member
Subcommittee on Health and Environment
Enclosure
The Honorable Tom Bliley, Chairman
Committee on Commerce
The Honorable Michael Bilirakis, Chairman
Subcommittee on Health and Environment
The Honorable Fred Upton, Chairman
Subcommittee on Oversight and Investigations
______
March 25, 1999
MEMORANDUM
TO: The Honorable John D. Dingell, Ranking Member; The Honorable Ron
Klink, Ranking Member, Oversight & Investigations Subcommittee;
The Honorable Sherrod Brown, Ranking Member, Health &
Environment Subcommittee
FROM: Commerce Committee Democratic Staff
SUBJECT: Public Dissemination of Risk Management Plans
On June 21, 1999, approximately 66,000 facilities which handle
dangerous chemicals and inflammables are required to file a risk
management plan (RMP) with the Environmental Protection Agency which by
law must be made available to the public. The plans are expected to
encourage the facilities and the public to work together to more safely
handle these chemicals. Included in each plan is a ``worst case
scenario'' or off-site consequences analysis (OCA) which attempts to
predict the extent of impact of a release of these chemicals. Section
112(r) of the Clean Air Act, which requires the filing, was a
compromise which allowed industry to avoid mandatory regulation of
these chemicals in exchange for full disclosure.
Under ``e-FOIA'' provisions passed in 1996, EPA had intended to
place all of this information on the Internet so that the public would
have full access to it. However, in 1997, the Accident Prevention
Subcommittee of the Clean Air Act Advisory Committee, at the behest of
the Chemical Manufacturers Association and the Federal Bureau of
Investigation, requested a study to determine whether the inclusion of
the worst case scenario information on the Internet would increase the
risk of a terrorist attack on chemical facilities. ICF Consulting, one
of EPA's support contractors, contracted with Aegis Research
Corporation to do the study. A study outline was provided, and Aegis
was specifically instructed to quantify the increased risk.
As far as we can tell, Aegis never provided a final product as
required by the contract. The study outline was not followed. The
baseline risk varied from section to section; the methodology was
unclear in the draft report. The report was not peer-reviewed either
outside or inside EPA, and it appears that its author continued to do
manipulations of his model after his submission to EPA. These
deficiencies are described more fully below.
Moreover, agency officials and members of the Accident Prevention
Subcommittee have told staff that the report was not credible. A May
1998 letter from the ICF Consulting's senior vice president stated that
Aegis Research used a ``subjective scoring system'' to evaluate risk,
and that its approach is ``not susceptible to empirical validation in
its present application.''
The contractor's senior vice president proceeded to conclude that
it would be ``grossly inappropriate`` to use the relative risk
projections in the study to question the merit of EPA's plan to make
the RMP data available on the Internet for the following reasons:
1. ``The significance of relative risk, in the absence of a
measure of absolute risk, is unknown.''
2. Any potential increases in terrorist risk ``must be
evaluated in transposition with the overall reduction in risk
brought about by virtue of the dissemination of information to
the public at large--I am absolutely convinced that the latter
effect overwhelmingly outweighs the former.''
Based on his experience with the Emergency Planning and Community
Right-to-Know Act, he further stated to EPA:
I know of no influence that motivates industry leaders to
reduce the risks attendant to their plant operations anywhere
near comparable to knowledge that their workers and their
neighbors are well informed about those risks. (emphasis added)
\1\
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\1\ Letter dated May 1, 1998, from Howard Dugoff, senior vice
president, ICF Consulting Group, to James Makris, director, Chemical
Emergency Preparedness and Prevention Office, EPA.
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The stated purpose of the report was to quantify the incremental
change in risk of a terrorist incident at a chemical plant if the
``worst case scenario'' under Section 112(r) of the Clean Air Act were
placed on the Internet. This incremental change was to be calculated by
establishing a baseline risk resulting from similar information
obtained from other Internet sources and through other government data
bases. If the incremental risk of a terrorist incident based on
Internet distribution was determined ``significant,'' the contractor
was to compare the risks of other means of public distribution. Aegis
was also to compare the potential ``cost'' of putting the information
on the Internet versus the potential ``benefit'' in reducing chemical
accidents.
A review of the study, with its uncertain methodology, and the
comments of Subcommittee members, indicate that the contractor was
unable to answer the questions posed. Numerous errors and questionable
methodology and conclusions--too many to outline here--are immediately
evident. For example, in the draft study, the baseline risk was not the
risk of a terrorist event at a chemical facility based on currently
available public information, but what the contractor arbitrarily
decided was the risk of an American dying in the terrorist bombing of a
building. The methodology for calculating this risk was inaccurate at
best. It resulted in the unsupportable conclusion that more people will
die every year in terrorist bombings than in chemical accidents. This
calculation became, however, one of the critical elements in the
Chemical Manufacturers Association' argument against putting the Risk
Management Plans on the Internet.
How did Aegis draw this conclusion? Because there was no Internet-
related chemical facility terrorism from which to develop a
baseline,\2\ Aegis decided to use the bombings at the World Trade
Center and Oklahoma City Federal Building--both public buildings with
free access which are not comparable to private chemical facilities. By
taking the number of deaths in these two incidents (six in 1993 and 167
in 1995) and dividing them by seven, Aegis made the totally
unsubstantiated assumption that every seven years, 173 people die in
bombings of buildings, for an average of 25 persons per year.\3\ The
baseline chosen for death by chemical ``accidents'' was 20 deaths per
year. There was no identified source for this number, and it was
admitted to be a ``soft'' number. The contractor was then able to
conclude that the risk of being killed by a terrorist bomb in a
building--although minuscule--is nonetheless greater than that of being
killed in a chemical release accident.\4\
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\2\ Since 1992, the military intelligence community has been
writing about the possibility of terrorists using the already available
"facility environmental files'' as ``target folders'' (see, Walker, K.
``Enviro-Terrorism'' SARA Title III and its Impact on National
Security,'' Military Intelligence, July-Sept. 1992, p. 20), there has
been only one potential ``terrorist'' plot that has targeted a chemical
facility in the United States. It was planned by a small, local group
of poverty-stricken Klu Klux Klan members who were going to blow up a
refinery tank as a diversion while they robbed an armored car. They
used none of the publicly available information to select their target,
but relied on their own observations and knowledge of the security and
chemical contents of the refinery. The attack was not carried out
because one of the conspirators contacted the Federal Bureau of
Investigations. They also did not have the necessary explosives.
\3\ It is unclear why seven years was used except that the desired
result was obtained. No reputable statistician would select arbitrarily
two end points and extrapolate mortality rates without some stated
justification.
\4\ No attempt was made to control for deaths per number of persons
employed in the various facilities or by numbers of persons who could
be expected to have access to those facilities.
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However, according to the Chemical Safety Board, from 1987 through
1996, an average of 33 persons were killed each year in ``fixed
facility'' chemical accidents.\5\ When that number is used in Aegis'
formula, and the bombing deaths are averaged over the same 10-year
period which is still a questionable assumption--a different conclusion
is reached. It becomes almost twice as likely for Americans to die in a
chemical release accident than in a terrorist bombing of a public
building. If the same ten-year period included actual deaths caused by
terrorist bombings of chemical handling facilities, the baseline would
be zero for death by bombing, compared to the much greater, documented
risk of death caused by chemical releases.
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\5\ ``The 600K Report,'' Exhibit C, ``Chemical Incidents, Deaths,
Injuries by Type, 1987-1996.'' The majority of deaths result from
transportation-related chemical incidents.
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Then, apparently in mid-study, Aegis decided the incremental risk
it was quantifying was the risk of easily selecting a chemical facility
as a target, not the risk of an actual attack. Aegis assumed that the
terrorist's objective was to select a chemical facility ``to be used as
a chemical weapon in carrying out an NBC [nuclear-biological-chemical]
attack against the United States.'' (emphasis added) \6\ Then, using
some unexplained selection process and ranking system, Aegis evaluated
nine factors and determined that the ``incremental increase'' in risk
was ten times higher with availability of all of the RMP/OCA data on
the Internet--even though it was supposed to consider only the worst
case scenario data.
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\6\ This scenario would take the threat out of the domestic-amateur
terrorist realm that the Subcommittee was most concerned about into
state-sponsored international terrorism even though the Subcommittee
had previously concluded that terrorists of that type already knew how
to obtain this information.
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In its report, Aegis acknowledged that the essential elements in
carrying out a terrorist attack could not be obtained from the RMP/OCA
filings; These are: 1) knowledge of security; 2) knowledge of chemical
location; and 3) knowledge of facility layout. However, since it was no
longer quantifying the risk of actual attack, the fact that the
terrorist would not obtain the necessary information from the RMP/OCA
to actually carry out an attack apparently was not deemed significant.
Because of the significance of this report to the debate thus far,
and because of ongoing concerns about the EPA's use of studies, we
recommend further analysis by the General Accounting Office. Attached
is a list of questions that the General Accounting Office should answer
about the Aegis study.
ATTACHMENT
1. From the various EPA and Aegis documents reviewed by staff, it is
difficult to know exactly what incremental ``risk'' Aegis was
expected to quantify or if the definition changed in the middle
of the study. Was the Aegis study designed to quantify:
(a) the increased risk of death at a U.S.-based chemical facility by
terrorist activities that would result from the posting of
worst case scenarios on the Internet versus the baseline
risk resulting from similar information already available
from the Internet sources?
(b) the increased risk of a terrorist attack on a U.S.-based chemical
facility based on the posting of worst case scenarios on
the Internet versus the baseline risk resulting from
similar information already available from other Internet
sources?
(c) the increased risk that the use of worst case scenario
information on the Internet as part of the decision-making
process used by a terrorist would result in a chemical
facility target as opposed to other targets versus the
baseline risk already posed by similar information already
available from other Internet sources?
(d) the increased risk of a terrorist who has already determined to
target a U.S.-based chemical facility to use the worst case
scenario on the Internet to choose a specific target
compared to the baseline risk resulting from similar
information already available on the Internet?, or
(e) some other undefined risk?
2. What was the baseline risk number?
3. What methodology did Aegis use to quantify the selected risk? Was it
generally accepted methodology for risk measurement? What is
the band of confidence around the results?
4. What documentation did Aegis use to conclude that the ``Adversary
Strategy'' developed by the U.S. Special Operations Command
provided the appropriate decision-making grid for either
domestic, amateur or foreign terrorists?
5. What is the basis for the ``probability of completion'' numbers
Aegis used to evaluate different sources of information? What
mathematical formula did Aegis use to conclude that posting
worst case scenarios on the Internet would provide the most
assistance to terrorists who wanted to select a chemical
facility as a target? Is this a generally accepted methodology?
6. Recently, the Chemical Safety and Hazard Investigation Board (CSB)
issued a report based on reviews of five different federal
databases which concluded that, on average, over 250 people die
every year in chemical release accidents. Of that total, 33 die
in ``fixed facility'' chemical accidents. CSB does not believe
that these numbers represent all of the persons who die every
year in chemical accidents. On what data did Aegis base its
projection that only 20 people are killed annually from
chemical release accidents?
7. What was the basis for Aegis dividing the number of persons killed
in the World Trade Center bombing and the Oklahoma City bombing
by seven and concluding that an average of 25 people die from
terrorist bombings every year? Is this a credible methodology
to obtain an annual risk of death by terrorist bombs? What is
the normal method used to calculate future risk for an event
which has occurred only twice in the last 100 years?
8. In a study that purports to quantify the risks of terrorism at
private chemical facilities and refineries, is it appropriate
to use as a baseline terrorist-caused deaths in public
buildings?
9. When Aegis wrote its report, was it aware that the 1991 alleged
``terrorist'' incidents at chemical facilities that it cited
was not the work of a terrorist, but an insurance scam by the
owner of the chemicals which was well-reported in the press? If
not, why not?
10. It appears that Aegis began with the assumption that a terrorist,
despite all the other available targets such as easily
accessible public buildings, highways and public transportation
would select a private chemical facility as a target. For
example, it stated that ``[t]aken together, the primary utility
of the unrestricted RMP and OCA data to a terrorist emerges
from the capability to scan across the entire country for the
`best' targets.'' On what basis did Aegis make this assumption
that private chemical facilities would be on the list of
``best'' targets for either local or international terrorists?
11. Aegis stated that a key knowledge element to planning a terrorist
attack was determining facility security measures, information
available only through insider knowledge or observation of a
particular facility. The RMP/OCA report does not provide this
information. Did Aegis evaluate the risk of a terrorist attack
with and without this key element?
12. Was a final draft of the study ever received from Aegis?
13. Did anyone inside or outside of EPA peer-review the Aegis study or
its model?
Mr. Brown. Thank you, Mr. Chairman.
The second is dated May 19, of 1999. It is from William
Pound, executive director of the National Conference of State
Legislators, to me.
And the third is dated May 18, 199. It is from Heidi
Heitkamp, attorney general of North Dakota, and my attorney
general, Betty Montgomery, of Ohio, on behalf of the National
Association of Attorneys General, written to the chairman--to
Chairman Bilirakis.
And the following have expressed interest in the issue of
disclosure of worst-case scenario information and this is a
list that I would also like to submit for the record. I ask
unanimous consent----
Mr. Bilirakis. Without objection.
[The information referred to follows:]
National Conference of State Legislatures
May 19, 1999
The Honorable Sherrod Brown
Ranking Member
Health and Environment Subcommittee
House Commerce Committee
201 Cannon House Office Building
Washington, DC 20515
RE: H.R. 1790, The Chemical Safety Information and Site Security Act of
1999
Dear Representative Brown: I understand that the Subcommittee on
Health and the Environment of the House Commerce Committee is holding a
hearing on H.R. 1790, the Chemical Safety Information and Site Security
Act of 1999. I respectfully request that you hold another hearing in
order to give the National Conference of State Legislatures and other
state and local government officials an opportunity to comment on H.R.
1790.
After a quick review of this bill, I have determined that it
contains provisions that preempt state law. Although NCSL understands
the bill's intent to protect human health and the environment, I feel
that we need time to thoroughly review this bill to determine the
extent of the preemption. We would like to work with you to craft the
best possible language to achieve the goals of this bill without
sidestepping state law.
Please do not hesitate to contact Michael Bird or Melinda Cross at
(202) 624-5400 should you have any questions.
Thank you for your attention to this matter.
Sincerely,
William Pound,
Executive Director
Mr. Brown. [continuing] and then thank the chairman for his
patience.
Mr. Bilirakis. Without objection.
Mr. Brown. Thank you.
[The information referred to follows:]
National Association of Attorneys General
May 18, 1999
Honorable Michael Bilirakis
Chairman
Subcommittee on Health and the Environment
United States House of Representatives
Washington, DC 20515
Dear Chairman Bilirakis: We have just learned that your
Subcommittee will hold a hearing on May 17 on the ``Chemical Safety
Information and Site Security Act of 1999.'' Further we understand that
similar language was added to S. 669, which has been favorably reported
from the Senate Committee an Environment and Public Works.
We are surprised by this legislation that would preempt state FOIA/
public record laws and subject state officials and/or employees to
possible criminal sanctions. Before action occurs on such a sweeping
proposal, there should be extensive consultation with Attorneys
General, Governors, legislators and other affected individuals. We have
not had time to review the details of this proposal. While the goals of
this proposed legislation--to prevent unnecessary risks to public
safety that might result through the broad electronic dissemination of
off-site consequence analysis (OCA) data--may be laudable, states
should be fully involved in the development of any legislation that
would preempt state laws and subject state officials to possible
criminal penalties. Concern about misuse of OCA data need to be
balanced with public access to information about potential releases of
hazardous substances in their communities. This is a delicate balance
that will require extensive consultation with the states.
A representative of the Association was not invited to testify on
Wednesday, nor could we at this late date. We therefore respectfully
request that you schedule another hearing, inviting representatives of
the National Association of Attorneys General and other state
associations to testify, and that it serve as a beginning of an
extensive, ongoing dialogue to resolve our concerns. Please contact
Lynne Ross, NAAG's Deputy Director and Legislative Director at (202)
326-6054 if you or your staff have any questions.
Sincerely,
Heidi Heitkamp, Attorney General of North Dakota
Vice Chair, NAAG Environmental Committee
Betty Montgomery
Attorney General of Ohio
cc: Representative Tom Bliley
Representative Sherrod Brown
Representative John Dingell
Attorney General Mike Moore
Mr. Bilirakis. Without objection, the opening statements,
of course, of all members of the subcommittee will be make a
part of the record. And for oral statements, let's see, Mr.
Whitfield?
Mr. Whitfield. Thank you, Mr. Chairman. I will file my
opening statement with the record, but I am pleased that you
are holding these hearings on this important subject matter.
And I know that we have a panel of witnesses who have some
real expertise in this area, so I simply look forward to their
testimony, and want to thank you, again, for the hearing.
Mr. Bilirakis. I thank the gentleman.
Mr. Waxman, for an opening statement?
Mr. Waxman. Yes, Mr. Chairman; thank you for recognizing
me.
We are going to receive testimony today from administration
witnesses and others regarding H.R. 1790, the Chemical Safety
Information and Site Security Act of 1999.
This legislative proposal was developed by Department of
Justice, EPA, and the FBI over a very short timeframe. And,
frankly, I am concerned that it raises a number of issues that
have not been adequately considered. Most interested and
affected parties have only learned of this proposal in the last
few days and have not had an opportunity to review the proposal
and to comment on it.
It is important that this subcommittee receive testimony
from all affected parties before going forward, that is why I
am concerned about the manner in which this hearing has been
put together. The minority was given notice at the last
possible moment, as were many of the witnesses. Some of the
witnesses before us were not contacted by the subcommittee
staff until Friday afternoon or Monday morning. This, of
course, is Wednesday. And, oddly, some groups which have a
direct interest in this issue, like the National Association of
Attorneys General were not even invited. In fact there are no
witnesses today representing the point of view of the States.
The threat of terrorism is one we should approach with the
utmost seriousness. Historically, terrorists have focused their
attacks on public buildings due to the symbolic value of
attacking a Government entity. Regardless, we should limit the
risk of terrorist attack whenever and wherever it makes sense
to do so. And I am concerned about the approach of this bill.
I have to point out that since 1997, many of us have
pressed for legislation so that the public would have a right
to know about potential accidents in their communities. This
bill would raise significant obstacles to informing the public
about what might harm them in the neighborhood and the
community in which they live.
This legislation could also make it significantly more
difficult, if not impossible, to conduct the kind of studies
that would help reduce the hazard of chemical facilities across
the board.
I can tell that the administration has made efforts to
ensure that all chemical safety information remains publicly
available. This is critically important, and I don't believe
any of our witnesses today will testify that the public should
not have this information. I would vigorously oppose any effort
to strip the public of their right to know about potential
accidents in their communities. However, H.R. 1790 proposes the
extraordinary measure of extending criminal penalties to State
and local officers and employees who provide the public with
information that is otherwise publicly available. Can you
imagine that if you are a local employee and you get the
information, if you tell the public about it, you can maybe go
to jail? I am interested in hearing the administration's
rationale for this unusual approach.
I think the subcommittee should take a step back and put
the issue in perspective. So far, the debate has centered
exclusively on public access to accident planning and
prevention data. Well, I am concerned about restricting the
availability of information regarding accidental chemical
releases as a sole approach to addressing the threat of
terrorist attacks on chemical plants. This approach may
sacrifice the public's right to know, while ignoring more
direct approaches to reducing the risks posed by terrorism.
The potential for terrorist attacks on chemical facilities
deserves a more comprehensive approach--one which examines all
aspects of the issue, including chemical plant security
equipment and personnel and the value of establishing buffer
zones between hazardous chemical operations and residential
areas, schools, transportation routes, and other public
centers. Only through such a comprehensive analysis, can we
identify the steps we need to take and their relative priority.
Site security measures may likely emerge as more important
in reducing terrorist risk than information security measures.
In other words, it may be more important where we site
facilities that could pose a risk if they are the subject of a
terrorist attack than keeping the public from knowing about the
risks that they may be exposed to.
If past experience with right-to-know laws is any
indication, when the public knows about dangers, it encourages
chemical plants to adopt inherently safer practices which would
reduce the hazard associated with these facilities to both
terrorist attack and to accidents.
Mr. Chairman, on July 29, 1999, I wrote Attorney General
Janet Reno and EPA Administrator Carol Browner regarding this
issue, and I sent them draft legislative language for their
comments. I am hoping the witnesses can address that. This
draft language would seek to reduce the risk of terrorist
attack on chemical facilities by directing the Department of
Justice to convene a task force to perform just such a
comprehensive analysis of the risk of terrorist attacks and to
recommend necessary protective measures. I haven't received a
response from them.
It is my hope that we can move in this subcommittee
together on a bipartisan manner to address the risks associated
with these chemical facilities. If members of the subcommittee
are truly interested in addressing the threat of terrorism, we
must take a comprehensive approach.
I would ask, Mr. Chairman, if we could have unanimous
consent to put in the record my letter to Janet Reno with the
proposal that I submitted to her?
Mr. Bilirakis. Without objection.
[The information referred to follows:]
Congress of the United States
House of Representatives
April 29, 1999
The Honorable Janet Reno
Attorney General
Department of Justice
10th Street and Constitution Avenue, NW
Washington, DC 20530
The Honorable Carol M. Browner
Administrator
U.S. Environmental Protection Agency
Washington, DC 20460
Dear Attorney General Reno and Administrator Browner: I am writing
to you regarding an important issue currently being debated in Congress
and to request your views on the attached legislative language.
The Federal Bureau of Investigation has recently testified before
Congress regarding the threat of terrorist attack on the nation's
chemical facilities. I am concerned about this risk. Historically,
terrorists have focused their attacks on public buildings due to the
symbolic value of attacking a government entity. Setting that aside,
limiting the risk of terrorist attacks is a prudent course of action.
Unfortunately, the debate so far has centered exclusively on public
access to accident planning and prevention data. I am concerned that
restricting the availability of information regarding accidental
releases of chemicals as a sole approach to addressing the threat of
terrorist attacks on chemical plants may sacrifice the public's right-
to-know while ignoring more direct approaches to reducing the risks
posed by terrorism.
The issue of terrorist attacks on chemical facilities deserves a
more comprehensive approach, one which examines all aspects of the
issue, including chemical plant security equipment and personnel, the
``hardness'' of chemical operations against bombing attacks, and the
value of establishing protective buffer zones between hazardous
chemical operations and residential areas, schools, transportation
routes, and other public centers.
Only through such a comprehensive analysis can we identify the
steps we need to take and their relative priority. Site security
measures may likely emerge as more important in reducing terrorist risk
than information security measures. Additionally, if past experience
with right-to-know laws is any indication, public disclosure will
likely encourage chemical plants to adopt inherently safer practices
which would reduce the hazard associated with these facilities to both
terrorist attack and to accidents.
It would be very helpful to receive your views on the attached
legislative language. This language would seek to reduce the risk of
terrorist attack on chemical facilities by directing the Department of
Justice to convene a task force to perform the comprehensive analysis
discussed above, and to recommend the necessary protective measures.
The legislation would then direct the EPA to implement those measures
in consultation with the Department of Justice.
I appreciate your attention to this matter and look forward to
receiving your comments.
Sincerely,
Henry A. Waxman
Member of Congress
[GRAPHIC] [TIFF OMITTED] T7442.001
[GRAPHIC] [TIFF OMITTED] T7442.002
[GRAPHIC] [TIFF OMITTED] T7442.003
Mr. Waxman. And, second, we have a letter from the U.S.
Government Printing Office to the Honorable John H. Chaffee,
regarding the extraordinary nature of the proposal that is
before us. And I think it would be important to have that
letter in the record.
Mr. Bilirakis. Without objection, that is made a part of
the record.
[The information referred to follows:]
United States Government Printing Office
Office of the Public Printer
May 12, 1999
The Honorable John H. Chafee
Chairman, Committee on Environment and Public Works
U.S. Senate
Room 410, Dirksen Office Building
Washington, DC 20510
Dear Mr. Chairman: I am writing to express my serious concern over
proposed language included in S. 880, providing for public disclosure
of certain chemical hazard information compiled by the Environmental
Protection Agency (EPA). This language would impose restrictions within
Federal depository libraries on the public's use of this information.
The Government printing Office (GPO) and its Federal Depository Library
Program (FDLP) wants to be as supportive as possible of the Senate's
intent to provide for public access to this important information.
However, the restrictions proposed for S. 880 appear to me to be
fundamentally antithetical to the mission and established
administrative practice of the FDLP, which is to promote comprehensive
and equitable public access to Federal Government information without
limitations on its use. Moreover, the proposed restrictions would be
costly and administratively burdensome to enforce.
Federal Depository Program. Under the FDLP, Government
publications, ``except those determined by their issuing components to
be required for official use only or for strictly administrative or
operational purposes which have no public interest or educational
values and publications classified for reasons of national security,
shall be made available through the facilities of the Superintendent of
Documents for public information.'' 44 U.S.C. 1902. The Superintendent,
an officer of the Government Printing Office (GPO), distributes the
publications to libraries designated as Federal depositories according
to law, 44 U.S.C. 1905. Depository libraries are required to ``make
Government publications available for the free use of the general
public.'' 44 U.S.C. 1911. The Superintendent of Documents periodically
inspects the libraries to ``make a firsthand investigation of
conditions for which need is indicated,'' primarily to assure that
public access is being maintained, 44 U.S.C. 1909.
GPO's responsibility for the operation of the FDLP is primarily
ministerial. As long as Government publications requisitioned from GPO
in print or electronic form (or produced by other agencies and made
available to GPO) meet the requirements established by 44 U.S.C. 1902,
GPO distributes the publications to the libraries. GPO makes Government
information available to the libraries in electronic format via the
distribution of CD-ROM copies and dissemination by GPO Access, GPO's
online Internet information service. Once in the libraries, GPO
requires that the publications be made available to the public free of
charge and without further restriction. Beyond inspecting the libraries
to ensure their compliance with statutory requirements, GPO does not
impose any further requirements on the libraries. GPO does not regulate
how the public uses Government publications. The libraries bear the
burden of housing the documents and making them available for use,
including providing staff assistance to public users.
Problems with Proposed Restrictions. The restrictions that have
been proposed for S. 880 would be problematic for several reasons:
There is a proposal to prohibit the copying of certain EPA
information, whether made available in paper or electronic
form, in depository libraries. GPO has virtually no experience
with administering such a restriction. To the best of my
knowledge, of the thousands of publications distributed each
year, there is only one case in which the FDLP has put out a
notice restricting printing out or photocopying a Government
information product--the Foreign Broadcast Information Service,
currently issued on CD-ROM. The restriction is due to copyright
limitations on the material in this publication, not security
considerations. Enforcement of this restriction relies on
notice being provided to users by librarians. Otherwise,
Government publications whose use is restricted because they
are considered ``for official use only or for strictly
administrative or operational purposes which have no public
interest or educational value'' or information that is
``classified for reasons of national security'' are not
included in the FDLP. It is not clear how enforcing the
prohibition on copying contained in S. 880 would be carried
out--by GPO, or by depository librarians themselves.
There is a proposal that appears to require GPO to ensure that
risk management plans made available in electronic form do not
provide an electronic means of ranking stationary sources based
on off-site consequence analysis information. Since the EPA is
the issuing component for this information, GPO would not be
able to ``ensure'' that the prohibited capability is not made
available, particularly if the electronic form is put up on the
Internet by the EPA itself and not via GPO Access. If it is
made available for dissemination to depository libraries via
GPO Access, GPO would not be able to restrict the ability of
users to download and manipulate the ranking data other than to
decline to disseminate the information altogether. Requiring
GPO to edit information selectively so as to prevent public
access would be beyond the scope of responsibilities
contemplated by the depository library provisions of Title 44
and a century of administrative practice in the FDLP.
There is a proposal to authorize appropriations to the Public
Printer to implement these restrictions. Funding for the FDLP
is provided by the annual Salaries and Expenses Appropriation
of the Superintendent of Documents, under the Legislative
Branch Appropriations bill. The Salaries and Expenses
appropriation has remained relatively flat in recent years, and
GPO has been in a downsizing mode in terms of authorized full-
time equivalent employment (FTE's). It is not clear whether
this authorization would provide additional funding to GPO, or
whether it would simply impose an additional requirement on the
limited resources currently funded by the Salaries and Expenses
Appropriation.
There is a proposal for the Administrator of the EPA to
collect and maintain records ``that reflect the identity of
individuals and other persons seeking access'' to the
information. It appears that this would require the GPO to
collect and maintain these records, either directly or by
requiring depository librarians to perform it. GPO does not
collect information on individuals utilizing depository
collections and does not have the administrative ability to do
so, and in my view this requirement would be vigorously opposed
by the library community. Librarians are staunch supporters of
user privacy and as a result would be very unlikely to
cooperate in this requirement. Moreover, it would be extremely
difficult and costly to administer. Thousands of individuals
utilize depository collections each week. Tracking those who
use the EPA information would impose a significant
administrative burden.
There is language stating that an officer or employee of the
United States, or an officer or employee of a State or local
government, who knowingly violates these restrictions may be
punished under the provisions of Title 18. As Federal
employees, GPO personnel working in the FDLP could be held
liable under this provision. Since the FDLP and its statutory
authorizing language do not contemplate the administration of
restrictions on the public's use of Government information
distributed to the libraries, there is genuine risk of
inadvertent liability for FDLP employees under this provision.
To the extent that depository librarians are employees of
State-run universities or public libraries, there is a similar
risk of liability.
In fact, the proposed restrictions, including the requirement to
collect names and the provisions for legal liability, are very likely
to be strong disincentives for depository librarians to participate in
making the targeted EPA information available to the public. By law,
the vast majority of depository libraries are ``selective''
depositories, meaning they choose from among the items made available
by GPO according to the needs of their users. Of the more than 1,350
libraries in the FDLP, only 53--the regional depositories--accept
everything distributed by GPO. The restrictions proposed for S. 880,
the requirement to take names, and the possibility of legal liability
would most likely result in very few depository librarians selecting
the EPA information, thus undermining the intent of this legislation to
use the FDLP as an effective vehicle for making the information
available to the public.
The proposed language for S. 880 clearly states that the EPA
information may be made available to certain officials, such as State
or local government officers or employees, for ``official use.'' This
specific designation, accompanied by restrictions on public access and
use, strongly implies that the EPA materials do not meet the criteria
for free access to Government information. As I stated, GPO will be as
supportive as possible of the Senate's intent to provide public access
to this important information. However, in my view the restrictions on
public access and use proposed in S. 880 would actually have a negative
impact on public use of this information.
If there is any way that I can assist you further in this matter,
please do not hesitate to contact me on 512-2034.
Sincerely,
Michael F. DiMario
Public Printer
cc: The Honorable Max Baucus
Ranking Member
Committee on Environment and Public Works
U.S. Senate
Mr. Bilirakis. Before the Chair yields to the chairman of
the full committee, Mr. Bliley, I wish to announce that we will
have a further hearing on this subject next Wednesday
afternoon, consistent with our discussions.
Mr. Waxman. Thank you very much, Mr. Chairman.
Mr. Bilirakis. Mr. Bliley, for an opening statement.
Chairman Bliley. Mr. Chairman, I would ask unanimous
consent to insert my opening statement in the record.
Mr. Bilirakis. Without objection.
Chairman Bliley. I would like to respond to the gentleman
from California, Mr. Waxman, on this issue of the timing of
this hearing.
Months ago, we contacted the administration about this
problem. We asked them to come forward with recommendations for
a legislative solution because we are faced with a June 21
deadline. They did not come forward until 12 days ago.
Consequently, we had to schedule a hearing quickly because we
have to attempt to move a piece of legislation through this
subcommittee, through the full committee, through the Rules
Committee, through the floor, through the Senate, and get it to
the President by June 21. Given the fact, further, that the
Congress, this House, will be out of session from next Thursday
night, May 27, until June 8, this is a Herculean task, and that
is why we had to schedule this hearing when we did.
And I thank the chairman for yielding me the time, and I
yield back.
[The prepared statement of Hon. Tom Bliley follows:]
Prepared Statement of Hon. Tom Bliley, Chairman, Committee on Commerce
Thank you, Mr. Chairman for holding this important hearing on the
Administration's proposal to address the national security concerns
that would result if we do not act by June 21st to stop widespread
posting of electronic worst-case scenario chemical release data.
I first raised this issue last September, when the June 21st
deadline for filing the worst-case scenarios was nine months away. In
October, EPA agreed that posting this information on the Internet
raised national security concerns and that EPA would not put worst-case
scenarios on its own website. EPA was silent about giving out the
electronic database to third parties. In February, before this
subcommittee, EPA said that it opposed third parties having the worst-
case scenario information in electronic format. EPA also said that it
would solve that problem. Finally, some 12 days ago, the Administration
proposed a solution, and I introduced that proposal by request.
The Administration's proposal seeks to prevent the widespread
circulation of electronic worst-case scenarios data. EPA, FBI and DOJ
all agree that would pose a threat to national security. The proposal
also seeks to ensure that local officials have the risk information
they need to plan and protect citizens, and that individuals have
access to information concerning the risks associated with local
chemical facilities.
Like many legislative proposals, however, there are some issues
that require fine tuning. For example, we must ensure that citizens who
perform public duties, such volunteer firefighters and the LEPC
members, have access to the data they need. The criminal liability
provision of this bill need careful review. The Committee must examine
potential restrictions on library materials. These flaws can and should
be fixed, let us work together to address these issues.
Let me stress that no one here is advocating that we keep the
worst-case scenario information locked up or away from those
communities nearby chemical facilities. I, for one, certainly support
making sure that these communities have access to all information about
the risks associated with their facilities. But we also must ensure
that the way this information is provided does not end up harming the
very people that Congress intended to protect. While no plan is
foolproof, we certainly shouldn't do anything to make it easier for
those who want to harm our nation and our neighbors.
Because we can achieve both of these goals without sacrificing the
other, I believe we must achieve both. The penalty for inaction is
that, on June 21st, our national security will be compromised by the
release of a national, electronic targeting tool available for use by
terrorists from anywhere in the world.
I look forward to hearing from our distinguished panelists.
Thank you, Mr. Chairman.
Mr. Bilirakis. And I thank the gentleman.
Mr. Dingell, for an opening statement?
John, please pull the microphone closer.
Mr. Dingell. As you will note, we have addressed the
concerns of the committee with regard to section 112 of the
Clean Air Act in February of this year. At that time, I urged
that we carefully examine legislation proposed in this matter.
At that time, my good friend, Mr. Bliley, the chairman, had
stated his intention to introduce legislation which he has now
done at the request of the administration.
We are here today to examine the legislation, but I note we
are missing a number of witnesses whose insight I believe would
be valuable to the subcommittee. In fact, I believe their views
are essential. I am strongly urging that State witnesses such
as the National Association of Attorneys General, that have not
been invited, should be invited to testify on the preemption
State FOIA and public records laws. These witnesses I believe
have important interests and concerns in provisions that may
affect State issues and State officials, with regard to
possible criminal sanctions.
I believe that we need to have experts on constitutional
law who may answer my questions pertaining to the first
amendment and due process concerns. I believe strongly that we
need to have a Freedom of Information Act expert or at least a
Privacy Act expert here to discuss important components of
statutes cited in this bill.
It is my understanding that the administration has obtained
the view of virtually no outside stakeholders in developing the
proposal they sent to the Speaker last week. In the short time
since the administration's language saw the light of day, few
people outside the administration have had the opportunity to
scrutinize it. The bill has not been printed since my good
friend, Mr. Bliley, introduced it last week.
Mr. Chairman, this is not a simple bill; it is complex, and
it raises a host of issues in its different provisions.
I am intrigued by the provision that allows the
Administrator of the EPA to produce guidance which would set
forth the parameters of criminal sanctions. This is probably an
extraordinary section. By the provisions of this bill, the
guidance is not judicially reviewable, nor is it subject to
public review and comment. The rationale we have heard for this
mechanism of imposing criminal sanctions is simply expediency.
Indeed, that is a major concern of mine, and I believe it is
one that will be shared throughout the committee.
Are we in such a hurry to forestall the hypothetical
terrorists that we must compromise the rights of our citizens?
And to what degree? And, why?
Our citizens are entitled to understand exactly what
actions are punishable by imprisonment. Librarians,
firefighters, police officers, or even State and local
officials cannot easily negotiate a system of EPA-guidance
documents. As a matter of fact, knowing EPA, they will be
obscure and will be drafted to best suit the concerns of EPA
and not the concerns of the public at large. In fact, people in
the hinterlands, hire K Street lawyers to locate these gems in
the bowels of EPA. Sometimes, I might note, they are
successful. Members on both sides of the aisle have often
complained that these documents are not binding on any party.
EPA will tell you so, that these kinds of documents have had
enormous impact on American industry, and the American economy.
This bill proposes we impose criminal sanctions in this
way. I am curious to know, what witness today can give us any
examples of Congress having previously taken such an action.
This bill goes to great lengths and great detail to lessen the
possibility that information vital to public safety may,
nevertheless, be used to harm the public. The truth is, we
cannot predict the intent of all who view this information, no
matter how we craft the legislation.
We have not documented any examples of terrorism associated
with this type of information, but we cannot say that it will
never happen. But we have documented examples of chemical
instances, far too many--estimates that there are some 60,000
chemical and industrial incidents which occur each year.
Between 1987 and 1997, many of these incidents resulted in
death, and we can predict with great certainty that there will
probably be more deadly instances of such events in the
following year.
Mr. Chairman, I do not deem the assurance of public safety
an easy task, but it is our task to balance the public's right
to understand the risks to the community and to address, to
prepare for, and to reduce these risks, with the law
enforcement goal of protecting the public from undue harm. I
understand that this bill was intended to strike that balance,
but I believe that it creates some new problems and possibly
new precedents that we must be very careful to consider.
I am aware of the fast-approaching deadline for submissions
of the information required by section 112. That does not
compel me, however, to act without full understanding of a
legislative proposal, particularly one which imposes criminal
sanctions upon the recommendations of EPA in a guidance
document. We should hear from the people who have a large stake
or great expertise in the matter. We should allow them to
participate in the process to improve this bill, and we should
act only when we are confident that this legislation which we
enact allows for public disclosure in an appropriate fashion
which is consistent with the appropriate magnitude of the risk.
I would hope, Mr. Chairman, that we will have appropriate
additional hearings to hear the concerns of the Attorneys
Generals and the others that we have suggested to the Chair. I
believe that that is very important for the handling of this
legislation in a proper fashion.
And I would note that the minority has a chapter--rather,
has a rule 11--letter on the desk, which we will be withholding
if we receive proper assurances from the Chair that we would be
having adequate opportunity to present the necessary witnesses
and to gather the necessary information on this very difficult
and technical question.
Mr. Bilirakis. The Chair has already publicly stated that
that will take place next Wednesday afternoon.
The Attorney Generals, by the way, were invited to come
testify, through the National Attorneys General Association.
They were not able to make it here today, but certainly we
agree that it is significant that we hear what they have to
say.
Obviously, this deadline was imposed upon us; it was not of
our doing, nor of the minority's doing. And so that is what has
basically resulted in----
Mr. Dingell. I want the Chair to know that my comments
are----
Mr. Bilirakis. [continuing] trying to put this on the fast
track.
Mr. Dingell. I want the Chair to know that my comments are
made with respect and affection.
Mr. Bilirakis. Thank you, sir.
Mr. Dingell. And that I intend to indicate no wrongdoing on
the part of the Chair or any member of this committee. But it
is very important we receive the necessary testimony----
Mr. Bilirakis. Yes, sir.
Mr. Dingell. [continuing] and understanding of what it is
we are about to do.
And, again, I do not allege that this is wrongdoing on the
part of the Chair or my colleagues in the majority. But it just
is very important, because, after all, we are here dealing with
the EPA.
Mr. Bilirakis. The gentleman's points are well taken. This
Chair yields to Mr. Bryant, from Tennessee.
Mr. Bryant. Thank you, Mr. Chairman.
I, too, join in expressing my appreciation for your calling
this hearing and also indicating you will hold a second hearing
next week to ensure that all the stakeholders have at least the
opportunity to make a presentation before this committee.
I look forward to these panels of witnesses today, adding
to what already we know about this very important issue.
The concern I think we all share in this room is public
safety in this situation. And it seems to be expressed
primarily from the standpoint of public safety from accidents
through just normal conduct of business, but there is a very
big issue, also, in that area of public safety, with the
potential for terrorism. As we have seen in this country in a
fairly recent series of events, this is something that didn't
happen too often in the past, but, unfortunately, we have to
consider it is a very real possibility today.
I know since our last hearing in February, various
agencies, including the FBI and the EPA and the Department of
Justice and others, have been working very hard to strike that
balance, in terms of public safety between accidental
situations and the public's right to know, and protecting the
public through law enforcement against intentional acts of
terrorism, and the very serious harm that that can do to public
safety. They have been working at that, trying to find a
balance there, and I believe and understand this bill that
Chairman Bliley has submitted is a result of that.
As has been said by our chairman in this committee, this is
not a perfect bill--and I think he was quoting someone else
when he said that--I would agree that there are some very
important details that need to be worked out, and I simply look
forward to the addition of your very valuable testimony today
in ironing out those details, and us reaching a final bill very
shortly.
We are under a--not only a public safety dilemma, but we
are also under a very important time dilemma, also.
Thank you, Mr. Chairman.
Mr. Bilirakis. I thank the gentleman from Tennessee.
Mr. Pallone, for an opening statement?
Diana was here first--Ms. DeGette.
Ms. DeGette. Thank you, Mr. Chairman.
Mr. Chairman, I am very happy to welcome back Tim
Gablehouse, who is an attorney from Denver, and has testified
on this subject before this committee before. As you know, Tim
is a member of the Colorado Emergency Planning Commission and
serves as chair of the Governor's Interagency Advisory Group on
Hazardous Materials. He is also a member of the Clean Air Act
Advisory Subcommittee on Accident Prevention, and I think he
will be a good witness today on the State perspective.
I also look forward to the hearing next Wednesday and hope
we can get some of these other groups in.
As I stated in our previous hearing on this issue in
February, I believe the position taken by the Department of
Justice in the legislation before us today is a solution in
search of a problem. Planning for a response to a chemical
incident demands the communication and cooperation of the
impacted public, first response agencies, facilities, and local
emergency planning commissions. Yet, this bill would
criminalize that process.
I am concerned about this legislation because I believe it
may unintentionally compromise a community's right to know
worst-case scenarios. This legislation includes provisions that
have unclear, perhaps, unintentional, and, certainly, untold
consequences on libraries, State and local officials, and
industry.
For example, the Government Printing Office has stated that
the proposed regulations, including the requirement to collect
names in the provisions for legal liability, are very likely to
be strong disincentives for depository librarians to
participant in making the targeted EPA information available to
the public.
H.R. 1790 creates the probability that a State or local
officer who is able to receive the worst-case scenario data
cannot disclose this information to the very people that
officer is charged to protect, without fear of incarceration of
up to 1 year. This provision would be a violation of the
Emergency Planning and Community Right-to-Know Act that
requires dissemination to the public, as well as State laws,
including the law of my own State, Colorado. Much of this
information is being disclosed and discussed today, yet this
legislation would curtail it.
I believe that broad, public availability of these plans is
essential to provide communities with the most accurate and
timely information regarding toxic chemicals and the offsite
consequences of accident scenarios. This is information
communities need to make intelligent decisions on how to
prepare for chemical accidents. Many of these communities are
in rural areas with volunteer fire departments, without the
specialized equipment or training to safely respond to
hazardous waste fires. And chemical accidents are not rare. The
Chemical Safety and Hazard Investigation Board estimates that
each year chemical accidents kill over 250 people.
And, Mr. Chairman, private industry which is having to do
these plans isn't really worried that some terrorist is going
to get this information--or at least shouldn't be. And in my
own district, we have an area, Commerce City, which has a great
concentration of petroleum companies and other companies with
highly hazardous materials. They are getting their plans ready
right now. And just in the Sunday, May 16, Denver Rocky
Mountain News, John Bennitt, who works for Conoco, said, ``Some
feel it is silly to give a blueprint of a company's vulnerable
points to potential terrorists and sabotagers, but,'' says
Bennitt, ``any terrorist group worth its gunpowder probably
already has that kind of knowledge.'' And that is why we have
to strike a very careful balance between a community's right to
know and any small risk that we might find of terrorists or
other improper uses of this information.
Mr. Chairman, I am glad we are having this hearing. I look
forward to working in a bipartisan way on sensible legislation.
And I am particularly looking forward to the hearing we are
going to have next Wednesday. I hope we will be able to have
the NCSL, the Attorneys General, and other concerned groups to
come before us as well.
And I will yield back the balance of my time.
Thank you.
Mr. Bilirakis. I appreciate that.
Mr. Stearns, for an opening statement.
Mr. Stearns. Thank you, Mr. Chairman.
I think most of us are, as obviously pointed out,
interested in hearing from our panelists about the consequences
resulting from releasing the complete version of the worst-case
scenario reports. I think that has heightened all of our
interests.
But, in thinking about this problem, it doesn't seem to me
that it is real complicated. I know the White House has offered
their plan, but this information in its total comprehensive,
electronic presentation represents a threat, obviously, and I
think somehow we should just amend the Clean Air Act, just to
make it a classified information, and put it, and parts of it,
into some type of top-secret code so that it cannot be
released.
I would be interested if the panelists think that you could
take this information, and once you receive it--if the Congress
so legislated it--that it would become immediately top secret
and fall under the FBI Confidential Rules, which would mean
that you could not, under the Freedom of Information Act, get
access to this information. Because I think most of us realize
the United States is a potential target for terrorists, and we
have had past attacks that have made that clear to us. So no
one of us wants to see all this information on the Internet.
So I think--I hope the panel will consider maybe some
simple kind of solution here of just classifying this and
moving it into some kind of confidential category, so that the
real worry is that someone can get access through the Freedom
of Information Act, and promulgate this on the Internet, and
provide a security risk.
So, Mr. Chairman, I commend you for your hearing and look
forward to hearing the witnesses.
And I yield back the balance of my time.
Mr. Bilirakis. I thank the gentleman.
Mr. Pallone.
Mr. Pallone. Thank you, Mr. Chairman.
Mr. Chairman, I was going to express my concerns about the
process in which the hearing was scheduled, and about the
witnesses who have been selected, but I know that you indicated
now that you will hold another hearing on the topic, so I am
not going to go into that in all the detail.
I did want to say, though, that I hope that at this other
hearing, we will have a State witness and also, a more
representative environmental witness, as well.
Regarding the latter, I received a letter with over four
pages of signatures from environmental organizations opposing
this bill's attempts to roll back the public's right to know
about chemical accident risks in communities nationwide. And If
I could submit that letter for the record as well as another
letter for the record on the first amendment issue from the
Newspaper Association of America.
Mr. Bilirakis. Without objection.
[The information referred to follows:]
Oppose Efforts to Roll Back the Public's Right to Know
May 7, 1999
Dear Member of Congress, We urge you to oppose efforts to roll back
the public's Right to Know about chemical accident risks in communities
across the country. Every fifteen minutes one chemical fire, spill or
explosion is reported to the federal government. Each year chemical
accidents in the U.S. kill as many Americans as would fit in two fully
loaded 737 passenger jets.
In 1990, Congress empowered citizens to learn about potential
chemical accidents in order to encourage companies to reduce chemical
accident hazards in communities. The Clean Air Act, Section 112(r),
requires some 66,000 facilities that use extremely hazardous substances
to report what could happen and who could be affected by a chemical
accident, from the most-likely accident to a worst-case scenario.
Facilities must submit this information by June of this year as part of
a larger Risk Management Plan (RMP). By law, this is public
information--intended to be disseminated broadly in order to prevent
pollution, save lives, and protect property.
Unfortunately, the chemical industry is pressing for legislation to
roll back current law by limiting public access to this vital
information on accident risks. These attempts to limit the public's
Right to Know rely on an unfounded argument that public access to this
information creates a national security threat of increased
``terrorism.'' In reality, EPA has specifically prohibited facilities
from including classified information in their RMP, and RMPs include no
data on tank or process location, site security, or other similar
information.
Furthermore, if security is a concern, then it is the chemicals at
facilities, not the information about their hazards, that pose a
threat. Keeping the public in the dark about chemical hazards does
nothing to reduce the risks associated with operating chemical
facilities in and near America's communities and ignores the real
threat of chemical accidents: 600,000 incidents resulting from the
everyday use of hazardous and toxic chemicals were reported to the
federal government between 1987 and 1996. Communities are made safer by
eliminating risky operations and reducing the use of hazardous
chemicals, not by limiting the public's understanding of those risks.
In order to honor the public's Right to Know and spur meaningful
steps to reduce hazards, complete national RMP data, including worst-
case scenarios, must be made readily accessible to all citizens. A
model for using public information to empower citizens and encourage
voluntary reductions in chemical hazards is provided by the Toxics
Release Inventory (TRI), established by Congress in 1986 to document
routine releases of toxic chemicals. Since the creation of the TRI, the
U.S. has seen a 46 percent reduction in reported toxic releases. The
creation of a similar inventory for accidental release risks could
provide the same public benefit. At the local level, access to such an
inventory empowers citizens to compare accident potential between
facilities and areas, and to protect themselves from accidents and to
work with local facilities to reduce risks. At the national level, news
media and labor and public interest organizations can compare accident
potential geographically and across and within industries. This
``public spotlight'' encourages voluntary reductions in the hazards
posed by chemical facilities in communities.
Proposals that would block national access to complete worst-case
scenario information cannot fulfill the needs of the public.
Specifically, proposals to omit facility names from a national database
prevent the information from providing its intended public benefit.
Proposals that allow only local and state agencies to acquire and
disseminate the information create an unreasonable burden for these
agencies financially and practically. Local Emergency Planning
Committees (LEPCs) are always under-funded, often inactive, and
sometimes non-existent.
We, the undersigned organizations, call on Congress to set aside
the false choice between protecting potential victims of terrorism and
protecting the known victims of chemical accidents. Instead, Congress
must join together behind the only course of action that can unify all
concerned parties: real and meaningful steps to reduce the hazards that
chemical-using facilities bring to our communities. Such actions
include setting and meeting targeted reductions in chemical risks,
including eliminating hazardous chemicals and processes. Complete
national RMP data, made publicly available, would encourage chemical-
using facilities to voluntarily reduce the hazards they pose.
Our organizations urge you to oppose legislative efforts that roll
back the public's Right to Know about chemical accidents and instead to
support meaningful measures to reduce chemical hazards.
Sincerely,
Robert L. Oakley, Washington Affairs Representative, American
Association of Law Libraries; Carol C. Henderson, Executive Director,
Washington Office, American Library Association; Fran Du Melle, Deputy
Managing Director, American Lung Association; Jerry Berman, Executive
Director, Center for Democracy and Technology; David Zwick, Executive
Director, Clean Water Action; Jackie Savitz, Executive Director, Coast
Alliance; Mary Ellen Fise, General Counsel, Consumer Federation of
America; Jean Halloran, Director, Consumer Policy Institute/Consumers
Union; Fred Krupp, Executive Director, Environmental Defense Fund;
Kenneth Cook, President, Environmental Working Group; Brent
Blackwelder, President, Friends of the Earth; Frank D. Martino,
President, International Chemical Workers Union Council of the UFCW;
Alan Reuther, Legislative Director, International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America,
UAW; Jay Feldman, Executive Director, National Coalition Against the
Misuse of Pesticides; Philip E. Clapp, President, National
Environmental Trust; John Adams, Executive Director, Natural Resources
Defense Council; Gary Bass, Executive Director, OMB Watch; Boyd Young,
President, Paper, Allied/Industrial, Chemical, and Energy Workers
International Union; Robert K. Musil, Ph.D., Executive Director,
Physicians for Social Responsibility; Joan Claybrook, President, Public
Citizen; Carl Pope, Executive Director, Sierra Club; John Chelen,
Executive Director, Unison Institute; Dr. Thom White Wolf Fassett,
General Secretary, United Methodist General Board of Church and
Society; and William J. Klinefelter, Legislative and Political
Director.
______
Newspaper Association of America
Washington, DC 20045-1402
May 19, 1999
The Honorable Michael Bilirakis
Chairman, Subcommittee on Health and Environment
U.S. House of Representatives
2369 Rayburn House Office Building
Washington, DC 20515
Dear Chairman Bilirakis: I write to express the Newspaper
Association of America's concern with H.R. 1790, the Chemical Safety
Information and Site Security Act of 1999, which is the subject of a
Subcommittee hearing today. The bill, which was introduced less than a
week ago, proposes, among other things, to create an exemption under
the Freedom of Information Act. The Newspaper Association of America
and the various First Amendment press groups have not had an adequate
time to study and ascertain the impact of this legislation on FOIA.
In the past, we have resisted efforts to amend FOIA to address
concerns with specific governmental information because the law is
designed to be general and apply to all types of information in the
possession of federal departments and agencies. The 104th Congress
enacted amendments to the Act, commonly referred to as EFOIA, which
were designed to foster greater access to information collected,
maintained and developed by the government. This bill would appear to
reverse this trend.
Neither NAA nor any of its press brethren were given an opportunity
to comment on H.R. 1790. We ask that at a minimum we be given that
opportunity.
Respectfully submitted,
E. Molly Leahy,
Legislative Counsel.
cc: Representative Sherrod Brown
Mr. Pallone. Thank you, Mr. Chairman.
Let me also say that groups from my home State, such as the
New Jersey Environmental Federation, have also contacted me and
said that they would have liked an opportunity to weigh in on
this legislation. However, they didn't even have time to
thoroughly review the bill, let alone provide testimony. And so
I hope that when we have this hearing that, you know, we will
be consulted on some of these witnesses, particularly, the
environmental witnesses.
Let me just say, if I could, that I believe that the bill--
Mr. Bliley's bill--would roll back the public's right to know.
There is no question about that in my mind.
It also would allow and require the U.S. EPA to issue
guidance without judicial review and public comment, and again,
would subject State and local officials to criminal penalties,
as has been mentioned, if they violated this guidance. It is
difficult for me to see how binding penalties can be imposed
for violations of guidance that is nonbinding.
I also understand--and I know it has been mentioned--that
the libraries do not want to be in the policing business--
another flaw in the bill. And yet I understand that chemical
facility security is critical. We do have threats of terrorist
attacks that are real and must be addressed. However, public
access to accident planning and prevention data also remain
vitally important.
And I hope that we can take the time to avoid the pitfalls
currently in this bill that I am mentioning and that some of my
colleagues on this side of the aisle have mentioned. I would
also urge members on both sides of the aisle and other
interested parties to take into consideration alternative
measures such as those being circulated by Mr. Waxman. For
example, the requirements for site security equipment and
personnel, and requirements establishing protective buffer
zones between hazardous chemical operations and residential
areas, schools, and other public centers.
Now I know that a lot has been mentioned about this
deadline of June 21. But, again, you know the deadline may have
been put forth, but the bottom line is that the majority here
in the House of Representatives decides when we have these
breaks, and we didn't originally have this week-break after
Memorial Day that now we are told we are going to have. And
then we found out this morning that we are going to have next
Friday off. And I am beginning to think how many days that--you
know, we have off--maybe all of next week or a good part of
next week is off, plus the following week, but we are not the
ones that say that. That is the majority. And so, you know, if
we have to make time to have these hearings, you know, it is
the majority's responsibility to go back and demand that the
time be made.
I think we have to have a thorough and properly run
hearing, or hearings, with witnesses representing people on all
sides of this issue. And I hope that, even though I appreciate
what the chairman said about having the hearing, I think that
the majority has to improve their efforts to try to make these
hearings more broad-based, as we proceed to address this
important issue.
Thank you, Mr. Chairman.
Mr. Bilirakis. I thank the gentleman.
Mrs. Cubin, for an opening statement.
Mrs. Cubin. Thank you, Mr. Chairman, for holding this
important and timely hearing today on the Internet posting of
chemical worst-case scenario release data, as opposed by the
administration.
I am glad that we will have two distinguished panels, and I
look forward to hearing from them.
In recent months, I have heard from dozens of propane
dealers in my State of Wyoming about the potential threat posed
by widespread Internet dissemination of worst-case scenario
data. Their concerns focus on the possibility of terrorist
attacks on their facilities, should chemical release data be
accessible on the Internet.
While I am pleased to hear that the EPA has decided not to
place this data on its website, I am still concerned that third
parties will post this sensitive information on their websites,
which means that we still have a major threat to national
security.
I do realize, of course, that individuals have safety
concerns about chemical sites in their local communities, and
they have a right to access the worst-case scenario data.
Coming from a State like Wyoming, where we have more volunteer
fire departments and more volunteer emergency service workers
than we do professional, I absolutely recognize the need for
these communities to have access to that information, and I
want to promote that. But I do question whether or not placing
this sensitive information in Federal depository libraries is
the best way to grant access, despite the restrictions that are
listed in the bill.
One aspect that I am concerned about is the fact that the
administration wants to put the information in the Federal
Depository Libraries, but then restrict it, but the libraries
don't currently place such restrictions on any information. And
they are not equipped to enforce these restrictions. And so I
wonder what kind of a system are we setting up? And is that
what we really need to do? At this point, I fail to see how we
could adequately safeguard this information if it were
available in the libraries.
Then, I would like to make a brief comment on the fact that
H.R. 1790 is not the only aspect of the risk management program
that has caused concerns among constituents and industry
members in my district. Constituents continue to write in--
large numbers--on this issue, and while they are concerned
about the posting of worst-case data on the Internet, they are
still primarily concerned about the inclusion of propane under
the RMP. Industries that produce fuel oil, natural gas, and
gasoline, for example, are not subject to the RMP, and they are
just as volatile. And I am a chemist, and some of them are more
volatile than propane--but as I said, they are not included in
the RMP. And so by the propane industry having to submit an RMP
to EPA, propane dealers in Wyoming will most assuredly be
forced to switch to an alternative fuel.
So this is a timely hearing, and I look forward to learning
a lot about it, and I thank everyone for being here.
And I thank you, Mr. Chairman.
Mr. Bilirakis. I thank the gentlelady.
Let's see--Mr. Barrett.
Mr. Barrett. Thank you, Mr. Chairman.
I just want to thank you for calling this hearing. I have
the same concerns that some of my colleagues have already
voiced about the process, so I am doubly pleased that we will
have a second hearing next week. I do think it is important to
hear from State officials, since these provisions certainly
would have impact on them. And rather than being guilty of just
simply mandating something and handing it down to the States, I
think we should work as partners to address their concerns.
Thank you, and I yield back the balance of my time.
Mr. Bilirakis. I thank the gentleman.
Mr. Pickering, for an opening statement.
Mr. Pickering. Mr. Chairman, I just want to commend you for
having this hearing, and I look forward to hearing the panel.
This is a critically important issue, as we look at public
health and public safety and disclosure, and the appropriate
balance of how we maximize the intent here, and that is for the
safety of the public.
So, again, I commend you for this hearing, and look forward
to hearing the panels' testimony.
Mr. Bilirakis. Thank you, sir.
Mr. Green.
Mr. Green. Mr. Chairman, I have a full statement I would
like to put in your record.
Mr. Bilirakis. Without objection.
Mr. Green. I would like to thank you for allowing for the
additional hearing next week.
As one who believes in the consumer right-to-know
legislation that we have on the books, I am concerned that the
bill we have presently drafted is not that middle ground that
we are looking for. So, hopefully, after next week's hearing,
we will see more of that middle ground.
Thank you, Mr. Chairman.
Mr. Bilirakis. I thank the gentleman.
Let's see--I think that completes the opening statements
from the members of the subcommittee.
As we have already said, opening statements of all members
can be made a part of the record, without objection.
The Chair calls for the first panel--the honorable Ivan K.
Fong, Deputy Associate Attorney General, with the U.S.
Department of Justice here in Washington, DC; Mr. Timothy
Fields, Jr., Acting Assistant Administrator, Office of Solid
Waste and Emergency Response, Environmental Protection Agency;
and Mr. Robert Burnham, Chief, Domestic Terrorist Section,
Federal Bureau of Investigation.
Gentlemen, your written statements are a part of the
record. I would appreciate your trying to sort of complement
those, or supplement those, if you would, orally. Take anywhere
from 5 to 10 minutes. I don't really want to cut you off,
because what you have to tell us is very significant.
Let's kick it off with Mr. Fong.
Mr. Fong, please proceed, sir.
STATEMENTS OF IVAN K. FONG, DEPUTY ASSOCIATE ATTORNEY GENERAL,
DEPARTMENT OF JUSTICE; TIMOTHY FIELDS, JR., ACTING ASSISTANT
ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE,
ENVIRONMENTAL PROTECTION AGENCY; AND ROBERT M. BURNHAM, CHIEF,
DOMESTIC TERRORISM SECTION, FEDERAL BUREAU OF INVESTIGATION
Mr. Fong. Thank you, Mr. Chairman. Good afternoon.
Because my statement is short, I would like to go ahead and
read it into the record.
Mr. Bilirakis. Feel free to do so, sir.
Mr. Fong. My name is Ivan Fong; I am a Deputy Associate
Attorney General at the Department of Justice. The Office of
the Associate Attorney General is responsible, among other
things, for the management and oversight of the Department's
Office of Information and Privacy, as well as its civil
litigating components, which include the Antitrust, Civil,
Civil Rights, Environment and Natural Resources, and Tax
Divisions. In our office, I have particular responsibility for
civil litigation, environmental, and technology policy issues.
I am pleased to have this opportunity this afternoon to discuss
H.R. 1790, the Chemical Safety Information and Site Security
Act of 1999.
Let me say at the outset that this proposal reflects, at
bottom, a very careful weighing and balancing of two critically
important public interests.
First, as you are well aware, statutes such as the Clean
Air Act and the Freedom of Information Act require certain
information to be made available to the public. For chemical
facility risk management information submitted pursuant to
EPA's Clean Air Act regulations, including the offsite
consequence analysis data, that are the subject of this
proposal, these disclosure requirements promote public safety,
not only by empowering citizens so that they can work with
industry and others to minimize the risk of accidental release
of toxic or flammable chemicals, but also by ensuring that
Federal, State, and local officials can work with their
communities to prepare for and, if necessary, respond to such
accidents.
By the same token, however, the widespread dissemination of
this type of information, particularly if a nationwide data
base of such information were made available in electronic
form, could increase the risk of intentional release as a
result of a terrorist attack. Indeed, the Federal Bureau of
Investigation, the National Security Council, and other law
enforcement components of the Federal Government have
determined that broad electronic dissemination of OCA data
would raise the risk of terrorists using such information to
target particular chemical facilities for attack. The OCA data
would provide them with information on locations around the
country where the greatest damage to human health and the
environment would occur if a facility were sabotaged.
Balancing our commitment to reduce the risk of accidental
release through public disclosure, on the one hand, and the
need to minimize the risk of terrorist attack arising from
broad electronic dissemination of such information, on the
other, is neither easy nor obvious. We believe, however, that
our proposed legislation strikes such an appropriate balance.
It is a reasonable and prudent proposal, and we accordingly
urge its prompt enactment.
To summarize briefly, because of the law enforcement and
security concerns that have been raised, our proposal exempts
OCA data from FOIA requirements and prohibits Federal officials
and employees from providing this information to the public in
electronic form. The proposal, however, permits EPA to make OCA
data available in paper form, and the Administrator is to
determine the conditions for such dissemination in guidance.
Our proposal also requires EPA to make risk management
plans available for public inspection, but not copying, in
paper or electronic form, at locations such as Federal
depository libraries around the country.
To impede use of such information by potential terrorists,
the OCA data may not be provided in an electronic format that
would allow ranking of facilities for damage potential.
In addition, our proposal allows OCA data to be provided
electronically to State and local officials for official use.
If such officials request this information in paper form, it
will be provided for facilities located in their State. To
further protect the information, the legislation allows
additional dissemination of the OCA data by State and local
officials only to the extent Federal officials and employees
are permitted to do so.
Finally, we share the view of many in Congress that site
security measures are as important as information security
measures in reducing terrorist attacks. The legislation,
therefore, authorizes the Attorney General to review industry
security practices and the effectiveness of the act to
determine the need, if any, for improved security practices for
the types of facilities covered by the RMP requirements.
We acknowledge the importance and complexity of this issue
on a variety of different levels, and we are prepared to work
closely with members of this subcommittee and other interested
parties to enact balanced and effective legislation in a timely
fashion.
We believe our proposal strikes an appropriate balance, and
we look forward to working with you to ensure its enactment.
Thank you.
[The prepared statement of Ivan K. Fong follows:]
Prepared Statement of Ivan Fong, Deputy Associate Attorney General,
Department of Justice.
Good afternoon, Mr. Chairman and Members of the Subcommittee. My
name is Ivan Fong. I am a Deputy Associate Attorney General at the
Department of Justice. The Office of the Associate Attorney General is
responsible, among other things, for management and oversight of the
Department's Office of Information and Privacy, as well as its civil
litigating components, which include the Antitrust, Civil, Civil
Rights, Environment and Natural Resources, and Tax Divisions. In our
office, I have particular responsibility for civil litigation,
environmental, and technology policy issues. I am pleased to have this
opportunity to discuss H.R. 1790, the ``Chemical Safety Information and
Site Security Act of 1999.''
Let me say at the outset that this proposal reflects, at bottom, a
careful weighing and balancing of two very important public interests.
First, as you are well aware, statutes such as the Clean Air Act, 42
U.S.C. Sec. Sec. 7401-7642, and the Freedom of Information Act
(``FOIA''), 5 U.S.C. Sec. 552, require certain information to be made
available to the public. For chemical facility risk management
information submitted pursuant to EPA's Clean Air Act regulations (such
as off-site consequence analysis (``OCA'') data), these disclosure
requirements promote public safety, not only by empowering citizens so
that they can work with industry and others to minimize the risk of
accidental release of toxic or flammable chemicals, but also by
ensuring that federal, state, and local officials can work with their
communities to prepare for and, if necessary, respond to such
accidents.
By the same token, however, the widespread dissemination of this
type of information--particularly if a nationwide database of such
information were made available in electronic form--could increase the
risk of intentional release as a result of terrorist attack. Indeed,
the Federal Bureau of Investigation, the National Security Council, and
other security and law enforcement components of the federal government
have determined that broad electronic dissemination of OCA data would
raise the risk of terrorists using such information to target
particular chemical facilities for attack. The OCA data would provide
them with information on locations around the country where the
greatest damage to human health and the environment would occur if a
facility were sabotaged.
Balancing our commitment to reduce the risk of accidental release
through public disclosure, on the one hand, and the need to minimize
the risk of terrorist attack arising from broad electronic
dissemination of such information, on the other, is not easy or
obvious. We believe, however, that our proposed legislation strikes
such an appropriate balance. It is a reasonable and prudent proposal,
and we accordingly urge its prompt enactment.
Because of the law enforcement and security concerns that have been
raised, our proposal exempts OCA data from FOIA requirements and
prohibits federal officials and employees from providing this
information to the public in electronic form. The proposal, however,
permits EPA to make OCA data available in paper form, and the
Administrator is to determine the conditions for such dissemination in
guidance. Our proposal also requires EPA to make risk management plans
(``RMP's'') available for public inspection, but not copying, in paper
or electronic form, at locations such as federal depository libraries
located around the country. To impede use of such information by
terrorists, the OCA data may not be provided in an electronic format
that would allow ranking of facilities for damage potential.
In addition, our proposal allows OCA data to be provided
electronically to state and local officials for official use only. If
such officials request this information in paper form, it will be
provided only for facilities located in their State. To further protect
the information, the legislation allows additional dissemination of the
OCA data by state and local officials only to the extent federal
officials and employees are permitted to do so.
Finally, we share the view of many in Congress that site security
measures are as important as information security measures in reducing
terrorist risks. The legislation therefore authorizes the Attorney
General to review industry security practices and the effectiveness of
the Act to determine the need, if any, for improved security practices
for the types of facilities covered by the RMP requirements.
We acknowledge the importance and complexity of this issue on a
variety of different levels, and we are prepared to work closely with
Members of the Subcommit-
tee and other interested parties to enact balanced and effective
legislation on this issue in a timely fashion. We believe our proposal
strikes an appropriate balance, and we look forward to working with you
to ensure its enactment.
Mr. Bilirakis. Thank you, Mr. Fong.
Mr. Fields, I am not sure how much time your testimony will
take.
We have been just been noticed there is a 15-minute vote on
the floor, and it can be followed by 4 or 5 5-minute votes,
which means it will be awhile, probably about 40 minutes at
least, before the members could be back. So let's see if we can
get through at least Mr. Fields' testimony.
STATEMENT OF TIMOTHY FIELDS, JR.
Mr. Fields. Thank you, Mr. Chairman.
I will briefly summarize my testimony. Today, at EPA, I am
responsible for the Agency's Counterterrorism Program, as well
as the implementation of section 112(r) of the Clean Air Act.
I am pleased to be here to discuss H.R. 1790, the Chemical
Safety Information and Site Security Act of 1999.
We agree with the Department of Justice and the FBI that
this bill would preserve important public health and safety
benefits that public access to risk information has been shown
to achieve, while protecting against a potential threat from
terrorists.
The proposed legislation addresses the issue that arose as
a part of EPA's implementation of section 112(r). This section
specifically provides that risk management plans are to include
a hazard assessment, including information on the potential
consequences of worst-case releases, an accident prevention
program, and an emergency response program.
In view of the large number of covered facilities and the
amount of information that must be reported in risk management
plans, a FACA subcommittee consisting of representatives of
industry, State and local government, academia, and
environmental groups unanimously recommended that EPA develop
an electronic system for submission and management of risk
management plans. EPA developed the recommended system for
managing and handling this data.
Potential Internet dissemination of the worst-case
scenarios information, however, in risk management plans, has
raised concerns about a potential threat from terrorists.
The administration's proposed legislation addresses those
concerns, while preserving public access to worst-case scenario
information.
Preserving public access to offsite consequence analysis
information is vitally important because we expect to produce
public safety benefits through this mechanism. EPA's experience
with the Toxic Release Inventory Program, under the EPCRA,
suggests that public access to information on toxic emissions
creates an incentive for facilities to reduce those emissions.
EPA expects public access to OCA data similarly will stimulate
and achieve risk reduction through safer practice and
technologies.
Public access to RMP information, including OCA data, is
expected to provide added impetus to accident prevention.
The law recognizes that communities located near these
facilities have a fundamental right to be told of the hazards
and to find out what steps facilities are taking to prevent
accidental releases. OCA data will give citizens information
about the risks of chemical accidents. OCA data from local
facilities will inform citizens about the risks they face in
their community, while OCA data from similar facilities in
other locations will provide insight into what risk reductions
could be achieved locally by those mechanisms.
EPA believes that States and local emergency planning
committees have a critical role to play in chemical accident
risk reduction. Providing States and local governments with
electronic access in management of the RMP information is key
to the ability to manage this program.
The goal of the legislative proposal that is before us
today is to provide benefits of public access of OCA data,
while minimizing the potential risks of Internet access to that
data.
Our approach to this dilemma is to restrict the manner in
which Government officials may distribute OCA data, so as to
make it extremely difficult for anyone to create a national
electronic data base that includes OCA. The legislation also
considers the need for additional site security to make sure
that facilities are taking adequate steps to reduce their
vulnerability.
The proposed legislation calls on EPA to develop guidance
to implement the bill's restrictions and requirements. EPA will
work with the interagency task force that developed this
legislation and will consult with other stakeholders, including
State officials, local emergency planning committees, public
advocacy groups, and industry, to develop appropriate guidance.
We recognize that this legislation may need some
modification, as addressed by concerns of members. We are
willing to work with this subcommittee, as necessary, to make
appropriate revisions to this bill quickly to address member
concerns.
EPA will work with its partners in chemical safety to find
appropriate ways to ensure that the information is used by
individuals to reduce the risk of chemical accidents in their
neighborhoods. On the other hand, we are on balance--EPA is
confident that the benefits of public access significantly
outweigh whatever risk may remain.
We support this legislation before this committee, pledge
to work with you to address any continuing concerns, and hope
that a bill can be sent to the President soon for signature
that we all can accept.
Thank you, Mr. Chairman.
[The prepared statement of Timothy Fields, Jr. follows:]
Prepared Statement of Timothy Fields, Jr., Acting Assistant
Administrator for Solid Waste and Emergency Response, Environmental
Protection Agency
Mr. Chairman, and Members of the Subcommittee, I am Tim Fields,
Acting Assistant Administrator in the Office of Solid Waste and
Emergency Response, U.S. Environmental Protection Agency (EPA). My
office has primary responsibility for the Risk Management Program under
Section 112(r) of the Clean Air Act (CAA) and Federal implementation of
several sections of the Emergency Planning and Community Right-to-Know
Act (EPCRA). I also am responsible for the Agency's counter-terrorism
program and the associated coordination with other Federal partners,
State and local governments, and the private sector.
I am pleased to have this opportunity to discuss the
Administration's proposed bill, ``The Chemical Safety Information and
Site Security Act of 1999.'' We agree with the Department of Justice
(DOJ) that, if enacted, the bill would preserve the important public
health and safety benefits that public access to risk information has
been shown to achieve, while protecting against a potential threat from
terrorists.
The Risk Management Program
Public awareness of the potential danger from accidental releases
of hazardous chemicals has increased over the years as serious chemical
accidents have occurred around the world. Public concern intensified
following the 1984 release of methyl isocyanate in Bhopal, India, that,
to date, has killed many more than the 2,000 people originally
reported, with many thousands more injured by the chemical release.
The proposed legislation addresses an issue that arose as part of
EPA's efforts to implement CAA section 112(r). Following the tragic
chemical accident in Bhopal, India, Congress added section 112(r) to
the CAA in 1990 to reduce the risk of accidental releases of extremely
hazardous substances. Section 112(r) establishes a general duty on
industry to handle extremely hazardous substances safely, and calls on
EPA to establish a regulatory program that requires facilities with
large quantities of such substances to prepare and implement risk
management plans (RMPs).
Section 112(r) specifically provides that RMPs are to include a
hazard assessment, including information on the potential consequences
of worst-case releases, an accident prevention program and an emergency
response program. It further requires that RMPs be submitted to States
and local emergency planning and response officials and made available
to the public. Section 112(r) demonstrates the importance Congress
placed on informing State and local officials and the public about
chemical risks in their communities.
EPA issued regulations implementing section 112(r) in 1994 and
1996. The 1994 rule provided industry with a list of covered substances
and their threshold quantities. The 1996 rule requires any facility
with more than a threshold quantity of a listed hazardous substance to
submit an RMP by June 21, 1999. A recently issued court order stayed
the rule with respect to propane, but EPA estimates that 36,000
facilities still must submit RMPs by the June deadline. To the extent
the stay is eventually lifted, an additional 33,000 facilities will be
required to submit RMPs.
In view of the large number of covered facilities and the amount of
the information that must be reported in RMPs, a Federal Advisory
Committee Act (FACA) subcommittee consisting of representatives of
industry, State and local governments, academia and environmental
groups unanimously recommended that EPA develop an electronic system
for submission and management of RMPs. Most members of the subcommittee
also recommended that EPA electronically disseminate RMPs to the public
over the Internet. EPA developed the recommended system for
electronically handling RMPs.
Potential Internet dissemination of the worst-case scenario
information in RMPs, however, raised concerns about a potential threat
from terrorists. The Administration's proposed legislation addresses
those concerns while preserving public access to worst-case scenario
information.
What Is Off-Site Consequence Analysis Data?
OCA data is based on analyses of the potential off-site
consequences of hypothetical worst-case and alternative case accidental
releases. The data include how far dangerous concentrations of a
released chemical can travel (``distance to endpoint''), how many
people live in the circle defined by the distance to endpoint, and what
types of ``public and environmental receptors'' (e.g., schools,
hospitals, state or national parks) are within that circle. It does NOT
include information on where the chemicals are stored, what would cause
a release or what site security measures a facility has in place.
The parameters for worst-case release analyses are mostly
established by regulation, so results of such analyses provide a rough
basis for comparing the intrinsic risk posed by facilities as a result
of the amount of chemicals stored and the passive (i.e., no energy or
human action required) accident mitigation measures in place.
Alternative case analyses account for active as well as passive
accident mitigation measures a facility has in place, and therefore
provide a way to compare the efficacy of prevention programs.
Benefits of Public Access to Information
Preserving public access to Off-Site Consequence Analysis (OCA)
information is vitally important because we expect it to produce public
safety benefits. EPA's experience with the Toxic Release Inventory
(TRI) under the Emergency Planning and Community Right-To-Know Act
(EPCRA) suggests that public access to information on toxic emissions
creates an incentive for facilities to reduce those emissions. EPA
expects public access to OCA data similarly will stimulate and achieve
risk reduction through safer practice and technologies.
In fact, EPA has built public access to RMPs into its
implementation of section 112(r). Instead of creating a command-and-
control program, the RMP rule calls on every facility to develop and
implement an accident prevention program that addresses the particular
chemical risks present at the facility. Public access to RMP
information, including OCA data, is expected to provide added impetus
for accident prevention.
The law recognizes that communities located near these facilities
have a fundamental right to be told of the hazards and to find out what
steps facilities are taking to prevent an accidental release. Through
this information, communities located near these facilities can make
risk-based decisions regarding the responsibility of these facilities
to operate safely. It has been said that the facility has a social
contact with the community that can be lost if the facility does not
operate safely and does not communicate effectively with the community.
Once informed, citizens can engage in constructive dialogue with
facilities to address any concerns. OCA data will give citizens
information about the risks of chemical accidents. OCA data from local
facilities will inform citizens about the risks they face in their
community, while OCA data from similar facilities in other locations
will provide insight into what risk reductions could be achieved
locally. Information drives action.
Managing the Data
To be useful, OCA data must be managed electronically. More than
69,000 facilities potentially are subject to the RMP program. Every
covered facility must submit at least one worst-case scenario, and the
vast majority of facilities also must submit at least one alternative
release scenario at the facility. Collectively, for the nation and for
most States, facilities' RMP data, including OCA data, cannot be
reasonably managed in paper form.
Many State and local governments have told EPA that they lack the
resources to manage the volume of information expected to be submitted
by facilities under the RMP program. Already, some State and many local
governments have not been able to make full use of facility hazard
information submitted to them under EPCRA. Representatives of State and
local governments have indicated that if they do not get help managing
RMP information, they are unlikely to use it. States also have
emphasized the need to share this information with all stakeholders and
the public to foster risk reduction.
EPA believes that States and Local Emergency Planning Committees
(LEPCs) have a critical role to play in chemical risk reduction.
Providing states and local governments with electronic access and
management of the RMP data is key to their ability to play that role.
As I noted earlier, a FACA subcommittee unanimously recommended
that EPA collect and manage RMP information electronically. EPA
accordingly developed an electronic system that promises to ease the
paperwork burden for industry and State and local governments. The
subcommittee also emphasized the need for RMP information to be
accessible to the public, so citizens could be partners in risk
reduction efforts.
Internet Availability Could Pose A Security Risk
While EPA is required to make RMPs, including OCA data, available
to the public, there have been security concerns over making national
OCA data available over the Internet. The Federal Bureau of
Investigation (FBI) and others advised us that Internet access to a
searchable national database of OCA information could pose a security
risk.
In response to FBI's advice, on November 6, 1998, the Agency
announced it would not post OCA information on the Internet and agreed
to work with FBI to minimize the risk of others posting that data.
Freedom of Information Act Concerns
Following EPA's decision, however, concerns were raised that the
Freedom of Information Act (FOIA) might force the Agency to make OCA
data available electronically and even might require EPA to post that
data on the Internet. EPA worked with an interagency task force
consisting of representatives of DOJ, the Office of Management and
Budget (OMB), the National Security Council and other Federal agencies
to determine what effect FOIA could have on dissemination of OCA
information and to respond accordingly.
DOJ concluded that requests for OCA information under FOIA could
force EPA to make OCA data available electronically. The interagency
group considered whether there were any legal bases for exempting the
data from FOIA and concluded there probably were none, except to the
extent such information was confidential business information (CBI). In
general, however, OCA data are not expected to qualify as CBI. The
group then developed the legislative proposal that has been forwarded
to you.
Proposed Legislation
The goal of the Administration's proposed legislation is to protect
the benefits of public access to OCA data while minimizing the
potential risks of Internet access to that data. As I stated earlier,
experience suggests that public availability of chemical risk
information results in risk reduction. We believe strongly that the
risk reduction benefits of public access to OCA data must be preserved.
We also recognize that so long as there is any public access to OCA
data, there can be no absolute guarantee that OCA data will not
eventually get on the Internet. Our approach to this dilemma is to
restrict the manner in which government officials may distribute OCA
information, so as to make it extremely difficult for anyone to create
a national electronic database that includes OCA. The legislation also
considers the need for additional site security to make sure that
facilities are taking adequate steps to reduce their vulnerability.
Specifically, the Administration proposal would:
Prohibit Federal, State, and local government officials from
disseminating OCA data with facility identifiers in electronic
form to the public;
Provide the public with access to OCA data in paper form, but
direct EPA, in consultation with other Federal agencies, to
determine appropriate limits on paper access so that the
potential for compiling a national database, even in paper
form, is minimized;
Ensure public access to full OCA data by making the data
available for review, but not copying, in reading rooms across
the country;
Allow EPA, in consultation with other Federal agencies, to
make available to the public an electronic version of the data
without facility identification or location information; and
Authorize the Attorney General to study current industry
security practices, and the need for and effectiveness of the
provisions of the legislation, and make appropriate
recommendations.
The proposed legislation calls on EPA to develop guidance to
implement the bill's restrictions and requirements. EPA will work with
the interagency task force that developed this legislation, and will
consult with all stakeholders, including public advocacy groups and
industry, to develop the guidance.
The Safety Potential of RMPs
With all the attention being paid to the OCA issue, we must not
lose sight of the real improvements in chemical safety the RMP program
as a whole will achieve. Since the RMP rule was issued nearly three
years ago, industry already has invested much time and effort to
achieve risk reduction at their facilities. At a recent meeting
convened by the Wharton School at the University of Pennsylvania,
several industry representatives indicated that the development of RMPs
had indeed resulted in accident risk reduction and safer operations.
Many facility representatives also have told us that while they were at
first skeptical of the benefits of the accident prevention program,
completing a RMP has led to many unexpected safety improvements at
their facilities.
EPA also wants to emphasize that while not every company must
complete an RMP, under the ``General Duty'' provisions of the Clean Air
Act (section 112(r)(l)), every company has an obligation to understand
the hazards, operate safely, prevent accidents, and minimize the
consequences of accidental releases of any quantity of any extremely
hazardous substance, whether EPA has listed the substance or not.
Similar to the chemical industry's own Responsible Care code of safe
operating practices, the General Duty clause (GDC) specifies no list of
chemicals or threshold quantities for applicability.
Conclusion
We believe the proposed legislation strikes a balance between
preserving public access to OCA information and addresses the potential
threat that may be posed by Internet access to that information.
The restrictions and requirements that the legislation would
establish ensure adequate public access to the information while
reducing the risk of anyone posting a searchable database on the
Internet. EPA will work with its partners in chemical safety to find
appropriate ways to ensure the information is used by individuals to
reduce the risk of chemical accidents in their neighborhoods. In light
of this balance, EPA is confident that the benefits of public access
significantly outweigh whatever risk may remain. We support this
legislation, pledge to work with the Congress to address any continuing
concerns, and hope a bill can be sent to the President for signature
soon.
Mr. Bilirakis. Thank you, Mr. Fields.
And I apologize, first, to all three of you and to the next
panel, but, unfortunately, we are going to have to get over for
those votes.
So we will break--your testimony will take properly more
than 5 minutes, will it not, Mr. Burnham?
Mr. Burnham. I can probably limit it to 5 minutes. I am
just----
Mr. Bilirakis. Well, your testimony is important, though. I
don't think we ought to worry about limiting it at this point.
We are just going to break until about 4 o'clock, and that
is 40 minutes. And it is probably not too likely we will finish
up by then, but we will do our best.
Thank you very much. Again, I apologize; it can't be
helped.
[Brief recess.]
Mr. Bilirakis. Well, hopefully, a minority member will be
here before long, and a few more from this side.
Mr. Burnham, why don't we just go ahead and start off with
you, sir? Go ahead.
STATEMENT OF ROBERT M. BURNHAM
Mr. Burnham. Good afternoon now, Mr. Chairman.
My name is Robert Burnham; I am the Domestic Terrorism
Section Chief of the FBI. I have testified up here on one
occasion before and one time in the Senate. I am pleased to
have this opportunity to address the committee today with
respect to whether H.R. 1790, the Chemical Safety Information
Site Security Act of 1999, satisfies concerns that the FBI has
previously expressed regarding electronic dissemination over
the Internet of worst-case scenario data.
The FBI supports the Clean Air Act and the spirit of the
community right-to-know legislation. We understand the benefits
of providing the necessary information to the community, which
allows them to make informed decisions on local planning and
preparedness issues, and we acknowledge that right-to-know laws
create incentives for facilities to reduce risks relating to
chemical manufacturing and storage processes.
At the same time, we are concerned about the need to limit
the risk associated with the distribution of information that
can be used against those same communities in a criminal
manner. The FBI has worked with the EPA to identify those
sections of the risk management plans that we believe could be
directly utilized as a targeting mechanism in a terrorist or
criminal incident.
I have earlier testified before this committee and provided
a threat analysis regarding the effect of unfettered release of
worst-case scenario data over the Internet. I have also
provided written answers to questions submitted by the
committee, and I have also testified before the Senate
Subcommittee on Clean Air and Wetland, Private Property, and
Nuclear Safety on the same issues.
In our discussions with EPA over the last 18 months, the
FBI has repeatedly asserted, from a threat analysis viewpoint,
that the FBI opposed the unrestricted release of worst-case
scenario information in electronic format to anyone other than
Federal, State, and local government agencies who are
responsible for emergency management and planning. These
agencies are the primary end-users for this type of
information, and the availability of this information to these
agencies is expected to produce positive results in the future.
In our discussions with the EPA, other Federal agencies,
and affected parties, we have tried to balance our security
concerns and give communities and State and local agencies the
appropriate access to this information. The FBI has
consistently maintained that the potential release of this
worst-case scenario data in an uncontrolled manner would
provide targeting tools and new ideas for criminals and
terrorists. Under the Freedom of Information Act, this
information would have to be released in the form maintained by
EPA, including electronic format.
The bill being considered prevents disclosure of the worst-
case scenario information under the FOIA, but also allows
disclosure under certain circumstances.
The Department's Office of Legal Counsel has reviewed the
disclosure limitations contained in this legislation and has
concluded that they are consistent with the first amendment.
The FBI believes the proposed legislation addresses the
concerns that we have consistently raised.
And in that regard, I would like to mention I have heard
much about the fact that the FBI is leading the worst-case
scenario data with the threat of----
Mr. Bilirakis. Pull the microphone a little closer, will
you please, Mr. Burnham, because we can hear you all right
here, but I am afraid maybe----
Mr. Burnham. Okay.
Our actual involvement of this goes back--starts in
December 1997 when we first became aware at that time that this
type of information was going out over the Internet. At that
time, it was all going out over the Internet, with unrestricted
access.
At the time, the FBI worked with the interagency law
enforcement community; we worked with the CIA, with
representatives from the Treasury Department, the Secret
Service, ATF, in a working group, and arrived at a consensus
that this information going out uncontrolled over the Internet
did present potential problems from a threat analysis
standpoint.
Thereafter, we worked with EPA extensively, and EPA, after
working with them, agreed that the information should not go
out over the Internet in an uncontrolled manner.
It was then in October of last year, in further discussions
with EPA, that we also expressed concerns that not only the
fact that we did not--that from a threat analysis standpoint,
that it should not go out over the Internet, but we also first
raised at that time, concerns that it may go out under third-
party disseminations, specifically, with the FOIA. In fact, we
reported that to this committee at that time in a report in
October 1998 that that was one of our concerns, that
potentially the information could go out under the Freedom of
Information Act.
That being said, we think this present bill we strongly
support for prompt consideration by Congress and speedy
enactment.
And I am available for any questions that the committee may
have.
Thank you.
[The prepared statement of Robert M. Burnham follows:]
Prepared Statement of Robert M. Burnham, Chief, Domestic Terrorism
Section, Federal Bureau of Investigation
Good afternoon Mr. Chairmen and Members of the Subcommittee, my
name is Robert M. Burnham, and I am the current Chief of the Domestic
Terrorism Section at FBI Headquarters. My current responsibilities
include national oversight and management of the Domestic Terrorism
Operations, Weapons of Mass Destruction and Special Events Management
Programs for the FBI. I am pleased to have this opportunity to address
the committee today with respect to whether HR-1790, the Chemical
Safety Information and Site Security Act of 1999, satisfies concerns
the FBI has previously expressed regarding electronic dissemination
over the Internet of Worst Case Scenario data.
The Clean Air Act (CAA) mandates that chemical facilities provide
to EPA a Risk Management Plan (RMP), detailing their risk prevention
mitigation plans. It includes the worst case scenario data and
alternative release data for both toxic and flammable materials. The
data require calculations regarding distances to end points, as well as
the populations that would be affected, which would provide information
about the size of a plume from release and the potential casualties
from the plume.
The FBI supports the CAA and the spirit of community right-to-know
legislation. We understand the benefits of providing the necessary
information to the community, which allows them to make informed
decisions on local planning and preparedness issues, and we acknowledge
that right-to-know laws create incentives for facilities to reduce
risks relating to chemical manufacturing and storage processes. At the
same time, we are concerned about the need to limit the risk associated
with the distribution of information that can be used against those
same communities in a criminal manner. The FBI has worked with the EPA
to identify those sections of the Risk Management Plans (RMP) that we
believe could be directly utilized as a targeting mechanism in a
terrorist or criminal incident.
I have earlier testified before this committee and provided a
threat analysis regarding the affect of unfettered release of the Worst
Case Scenario data over the Internet. I have also provided written
answers to questions submitted by the committee and have also testified
before the Senate Subcommittee on Clean Air and Wetland, Private
property and Nuclear Safety on the same issue. In our discussions with
EPA over the last eighteen months the FBI has repeatedly asserted, from
a threat analysis view point, that the FBI opposed the unrestricted
release of Worst Case Scenario information in electronic format to
anyone other than federal, state, and local government agencies who are
responsible for emergency management and planning. These agencies are
the primary end users for this type of information, and the
availability of this information to these agencies is expected to
produce positive results in the future. In our discussions with the
EPA, other federal agencies and affected parties, we have tried to
balance our security concerns and give communities and state and local
agencies the appropriate access to this information. The FBI has
consistently maintained that the potential release of this Worst Case
Scenario data in an uncontrolled manner would provide targeting tools
and new ideas for criminals and terrorists. Under the Freedom of
Information Act (FOIA), this information would have to be released in
the form maintained by EPA, including electronic format.
The bill being considered prevents disclosure of the ``Worst Case''
Scenario information under the FOIA, but allows disclosure under
certain circumstances. The Department's Office of Legal Counsel (OLC)
has reviewed the disclosure limitations contained in this legislation
and has concluded that they are consistent with the First Amendment.
The FBI believes the proposed legislation addresses the concerns that
we have consistently raised. We therefore strongly support its prompt
consideration by the Congress and its speedy enactment.
Thank you for this opportunity to appear before you today. I would
be happy to answer any questions you may have.
Mr. Bilirakis. Thank you. Thank you very much, sir.
Mr. Fields, your statement indicates that EPA supports this
legislation and hopes that a bill can be sent to the President
``soon.'' You used that word very specifically. Can you
elaborate for the committee what you mean when you say
``soon?''
Mr. Fields. We would like to address the issues that have
been raised by members of this subcommittee in the previous
statements and work toward getting a piece of legislation that
could be worked on together with the Senate sent to the
President and signed--prior to June 21 of this year.
So we want to quickly work with you to resolve issues with
the bill that I have heard some of the members indicate in
their opening statements, issues of criminal versus civil
sanctions, issues of voluntary firefighters and local emergency
planning committees and getting access to information, and
guidance versus rule. I think those issues can be addressed
very easily and quickly.
And we believe that, with your support, Mr. Chairman, we
can get a piece of legislation that we can all support and move
forward to get it signed by the President in the next month.
Mr. Bilirakis. All right. Well, if, for instance, as a
result of a lack of time and things of that nature, even
stonewalling which I trust is not taking place, not even
intended to take place, if no legislative action is taken by
that June 21 date, what are you concerned with?
Mr. Fields. Well, we made several things very clear. We
will not post the OCA information on the Internet. RMP
information, including OCA data must be submitted by June 21,
1999. We believe that information must still be submitted,
including OCA. Second, if we get a FOIA, Freedom of Information
Act request, we have 30 days after that to act on that request.
Mr. Bilirakis. Isn't it true that you already----
Mr. Fields. The FOIA request does not actually have to
happen by June 21.
Mr. Bilirakis. Haven't you already received some Freedom on
Information requests for this data, at EPA----
Mr. Fields. We have no pending Freedom of Information Act
requests at the current time. We received more than 1,000 risk
management plans, voluntarily, to date. These facilities have
submitted risk management plans prior to June 21, but we don't
have----
Mr. Bilirakis. No requests?
Mr. Fields. No pending FOIA requests; that is correct.
Mr. Bilirakis. Mr. Burnham----
Mr. Fields. Mr. Chairman, I should clarify----
Mr. Bilirakis. Oh, I am sorry; go ahead, Mr. Fields.
Mr. Fields. While we don't have any pending FOIA requests,
one was submitted and was subsequently withdrawn. So there is
no pending request.
Mr. Bilirakis. One was submitted, but----
Mr. Fields. One was submitted, and it was withdrawn.
Mr. Bilirakis. Yes.
Well now, Mr. Burnham, what kind of--within the bounds, of
course, of public testimony, obviously, can you tell us what
types of threats that the FBI has been concerned about over the
last year and a half which caused you to consistently argue for
restrictions on the electronic dissemination of this data, this
type of data?
Mr. Burnham. Well, again, the consensus among the law
enforcement community and the FBI was--I think I have
characterized it as if this type of information went out----
Mr. Bilirakis. Pull the microphone closer, please, sir. I
just want to make sure that everybody can hear you.
Mr. Burnham. Again, this is the consensus of not only FBI--
while I have testified for the law enforcement community--but
also among the law enforcement community, the fact that this
type of information, if disseminated, could be--I think I have
characterized it as a ``blueprint'' for potential terrorist
attack.
Again, what you are doing, you are putting out on the
Internet, in an unfettered, uncontrolled fashion, the distance
to end population, if a target was attacked, how many people
could be killed. It could be downloaded anywhere in the world.
That was a concern, not only among us, but to the law
enforcement interagency working group that was looking at this.
Mr. Bilirakis. Well, sir, you can't be unaware, of the
criticisms and arguments that have been leveled at attempts to
exert some control over the OCA data.
Later today, Mr. Orum will paint a scenario under which a
citizen is frustrated at every turn in trying to obtain
information about dangerous conditions in her community.
So taking that as an example, or an illustration, how would
you respond to arguments that this legislation unduly restricts
public access? I mean I think you have all indicated that you
are concerned about balancing concerns. How would you respond
to that?
Mr. Burnham. I would say this; I--again, my testimony is
consistent with and has--been limited to a threat analysis
standpoint, if the information does go out. In fact, I can even
tell you, I think I prefaced it by the fact that I am here, to
say this does satisfy from a threat analysis standpoint that
the information would not go out.
I think in reading this, when I read it, I think there was
provisions in there, as I stated in my opening statement, also,
that we are concerned with, but that this information should go
out to first responders and to law enforcement--I mean in the
State and local communities.
I think it does provide for that in this particular
legislation. And, again, as for the drafting of it, I would
defer to DOJ, with respect to the provisions in the act itself.
Mr. Bilirakis. Well let me ask Mr. Fields that same
question.
How would you respond to arguments that this legislation
unduly restricts public access? Do you think that it does?
Mr. Fields. We don't believe that it unduly restricts
public access. We do support public right-to-know and access to
critical information. The people who live around communities
need to have access to information about threats in their
community, including OCA data.
But we do agree that there is a potential threat from
terrorists that needs to be considered, and we believe that
this bill, this legislation, strikes a proper balance between
giving information to people who need to have the information,
and minimizing the potential for that information to be posted
on the Internet where it could be a tool for terrorists in this
country.
Mr. Bilirakis. Yes.
Mr. Fields. So we think that the restrictions that are in
the bill, regarding dissemination of this information, strike a
proper balance and are appropriate to make sure that people
have access to data that they need, while at the same time,
minimizing the potential threat of a terrorist attack in this
country.
Mr. Bilirakis. Thank you, Mr. Fields.
Mr. Brown, to inquire.
Mr. Brown. Thank you, Mr. Chairman.
I just have a couple of questions on--Mr. Burnham, if a
facility is located on the Wisconsin--near the Michigan/
Wisconsin border, but in Wisconsin, can State officials
electronically share the offsite consequence data with local
officials in Michigan under H.R. 1790?
Mr. Burnham. Again, on the drafting, I would defer to DOJ,
with respect to provisions in that, and why certain provisions
were put in there.
Again, what I looked at in this--okay, from the threat
analysis standpoint, does this satisfy the concerns I have
expressed both in previous testimony here as well as in
writing? And I would defer to DOJ.
Mr. Fong. If I might have an opportunity to clarify. I have
a pastor who says that God is in the details.
And I think the same applies to this proposal.
I don't believe there is an undue restriction. Paper
versions of this information are going to be made available
under (c)(6) in the libraries that we have heard about, and
under (c)(3), in response to requests from the public, subject
to guidance from EPA. It will----
Mr. Brown. So can they be made available to another State?
Mr. Fong. By whom? By State and local officials? Or by----
Mr. Brown. By local officials, say.
Mr. Fong. Local officials may retransmit, consistent with
official use, and if it falls within that categorization, then
it would be permissible.
Mr. Brown. And the public has access, then, too? Or, no?
Mr. Fong. Well, not necessarily. It depends on what you
mean by ``it.'' What the legislation, or the proposed
legislation, is most concerned with is the national data base
in electronic form, and that is what would be restricted.
Other forms of dissemination are not restricted, so the
paper forms would not. Analyses or mere discussion about
information contained in these plans would not be restricted.
Indeed, our Office of Legal Counsel undertook a
constitutional analysis, and the general rule is that the
Government may not place restrictions on the dissemination of
information by individuals once they are in lawful possession
of that information. So once it is out in the public, it would
be very difficult to restrict the information from spreading
without constitutional problems. But this proposal does not do
that.
This proposal draws a distinction between State and local
officials who are given this information for official use, and
in that sense, restricts the national, searchable part, which
is of most concern, as you have heard.
Mr. Brown. Okay.
I would like to yield to my friend from Colorado, Ms.
DeGette.
Ms. DeGette. Thank you very much.
I have just got a couple of quick questions for Mr.
Burnham, but others who might know the answers can answer them.
As I read this bill, it clearly preempts State laws and
subjects State and local employees to criminal sanctions for
violation. I guess I would like to know what the process of
consulting Governors, State legislators, attorneys general, or
anyone else at the State level about this legislation.
Mr. Burnham. Again, on this, as I just mentioned to the
previous question, I was not privy to a lot of the
deliberations on this. This was drafted by the Department of
Justice which we reviewed from a threat-analysis standpoint.
Did it allay or address our previous concerns? And I would
defer to the Department of Justice with respect to that
particular question.
Mr. Fong. May I?
Ms. DeGette. Please.
Mr. Fong. I was not personally involved in the drafting of
this proposal, but it is my understanding that there was an
extensive interagency effort that did involve outreach and
input from a variety of affected constituencies. We are
obviously looking forward to and will commit to working with
those interests and as we move forward with this proposal.
Ms. DeGette. I guess I would ask unanimous consent to have
this answer supplemented in writing. If you folks could let us
know exactly who was consulted and what the process was. You
know I appreciate your goodwill toward thinking people were
consulted, but I would like to know exactly what happened.
Mr. Fong. Can I----
Ms. DeGette. And in particular----
Mr. Fong. Can I----
Ms. DeGette. Excuse me--in particular, I am concerned
because in Colorado, we have an open record statute that makes
all of the information possessed by the local emergency
planning committees public information and, therefore,
accessible to the public. And I know many other States have
laws like that, too.
Are you aware of that, Mr. Fong?
Mr. Fong. Yes, and we believe those laws are very
important. However, to the extent those laws would require
dissemination of the offsite consequence analysis portion of
the RMP's, they would be preempted----
Ms. DeGette. Right.
Mr. Fong. [continuing] and the reason is that it makes no
sense to restrict the dissemination in one arena and then have
it simply disclosed in another forum.
Ms. DeGette. Well----
Mr. Fong. So, therefore, it is a necessary consequence of
the threat that we are talking about.
Ms. DeGette. Well, I understand what your rationale is, but
I think the States might have a different rationale. And I am
wondering if you can provide to the subcommittee by June 7,
copies of all of the State statutes, the open record statutes
that will be preempted by this legislation?
Mr. Bilirakis. If the gentlelady would yield?
Ms. DeGette. I would be happy to.
Mr. Bilirakis. I would ask the three gentlemen if they
would be willing to receive questions, you know, in writing
from us, and then respond in writing to us?
Now please keep in mind, however, the June 21 date. And
June 21 means get through all the Congress, as well as signed
into law by the President, which, you know, makes it pretty
darned difficult. So, is that all right, Diana?
Let's do it that way; you would--responding to your
question.
Ms. DeGette. Yes.
Mr. Bilirakis. [continuing] and additionally to any others
that we would offer.
Ms. DeGette. Mr. Chairman, I don't think it should be
difficult, for given this June 21 date and given the fact that
we are not going to be in session for a while, I think it would
be helpful to get this information, the information about which
State laws would be preempted by June 7, and then any other
questions that the committee wants to submit in writing I think
would be fine.
I don't see how we can do a bill by June 21.
Mr. Bilirakis. If that is the unanimous consent request,
and if the gentlemen are amenable, then the answer is ``yes,
without objection.''
Mr. Brown. And, Mr. Chairman, I would like to ask that the
record be kept open for, say, 24 hours so that other
questions--I have a couple other questions----
Mr. Bilirakis. Yes.
Mr. Brown. [continuing] which we don't have time for, and
other members----
Mr. Bilirakis. Yes, that is the point. I know we all have
many questions.
Mr. Brown. And they could answer as many of the questions
by next week.
Mr. Bilirakis. You have been very helpful. I just--I am
sorry that we have had such a thing here running back and
forth, but that is the way it goes up here.
And now we have a vote on the floor, so let's--we will
excuse this panel.
Thank you very much for your indulgence and for your
cooperations.
And I would hope that the next panel maybe can start lining
up so that we can move on when we get back.
[Brief recess.]
Mr. Deal. [presiding] We want to welcome you back for the
second panel, and I will introduce those panel members at this
time.
Mr. Timothy Gablehouse, who is from Denver, Colorado, the
Jefferson County LEPC; Mr. Lowell Strader, who is representing
PACE Workers International Union, from Fairfax, Virginia; Mr.
Paul Orum, who is coordinator of the Working Group of Community
Right-to-Know, in Washington, DC; Mr. Martin Pfeifer, a
sergeant with the Metropolitan Police Department here in
Washington, and speaking on behalf of the Fraternal Order of
Police; Mr. Thomas Susman, who is here on behalf of the
Chemical Manufacturers Association; Mr. Tom Sloan, who is here
on behalf of the American Library Association; and Mr. Mark
Wheatley, who is the assistant chief of the Fairfax County Fire
and Rescue Department, who is speaking on behalf of the
International Association of Fire Chiefs.
I realize you are not in the order in which I introduced
you. But we will proceed in the order in which you are seated.
And, Mr. Wheatley, we will ask you--and I would ask each of
you, if you would please, to try to keep your remarks to a
summary of 5 minutes if at all possible, and we will have
questions following that.
Mr. Wheatley.
STATEMENTS OF MARK S. WHEATLEY, ASSISTANT CHIEF, FAIRFAX COUNTY
FIRE AND RESCUE DEPARTMENT, ON BEHALF OF INTERNATIONAL
ASSOCIATION OF FIRE CHIEFS; THOMAS M. SUSMAN, ON BEHALF OF
CHEMICAL MANUFACTURERS ASSOCIATION; PAUL ORUM, COORDINATOR,
WORKING GROUP ON COMMUNITY RIGHT-TO-KNOW; MARTIN PFEIFER,
SERGEANT, METROPOLITAN POLICE DEPARTMENT, AND ELECTED TRUSTEE,
THE NATIONAL BOARD OF DIRECTORS, FRATERNAL ORDER OF POLICE;
TIMOTHY R. GABLEHOUSE, CHAIR, JEFFERSON COUNTY LEPC; THOMAS W.
SLOAN, DIRECTOR AND STATE LIBRARIAN, DELAWARE DIVISION OF
LIBRARIES, ON BEHALF OF THE AMERICAN LIBRARY ASSOCIATION; AND
LOWELL P. STRADER, INTERNATIONAL REPRESENTATIVE, PACE WORKERS
INTERNATIONAL UNION
Mr. Wheatley. Good afternoon, Mr. Chairman, members of the
subcommittee.
I am Mark Wheatley, assistant chief of the Fairfax County,
Virginia, Fire and Rescue Department. I am here today on behalf
of the International Association of Fire Chiefs, and I am also
chairman of the Fairfax County Joint Local Emergency Planning
Committee.
I trust that you have been provided a copy of my testimony
and that you will have an opportunity to review it. My remarks
today are a summation of my written testimony.
The IAFC very much appreciates the opportunity to appear
before you today. The subject of this hearing is of vital
importance to the America's fire and emergency services
personnel.
You have heard testimony regarding to EPA's risk management
program rule and a requirement to report worst-case scenarios.
If a chemical release were to occur, these scenarios provide
detailed information, including the estimated injury and loss
of life, potential damage to the structures and the
environment. In the wrong hands, this information could be used
to target our Nation's communities for a terrorist attack.
After hearing our testimony earlier this year, the IAFC
appreciates EPA's decision not to publish offsite consequence
analysis on the Internet.
Now a second and equally important issue arises. The IAFC
has grave concerns regarding the appropriate use of worst-case
scenarios, given that it is still possible for a private
citizen and organizations to obtain such information from the
EPA through a FOIA request. Even though the EPA has decided not
to post this information on the Web, others may be likely to do
so and, thus, circumvent our communities' security interest.
With regard to emergency planning efforts, detailed worst-
case scenario is of absolutely vital importance to local
governments. It is imperative that public safety officials have
timely and unimpeded access to this information on a continuous
basis, and not be confronted with impractical or time delaying
procedures. Furthermore, Federal statutes should not prohibit
the sharing of this information with other fire and emergency
organizations.
Realizing the importance of this information to local
authorities, and given our concerns for the misuse, the IAFC
supports the spirit and intent of congressional action that
would allow the EPA to grant requests for information on a
restricted basis, while providing direct access by local
firefighters and other public safety officials.
When considering H.R. 1790 or similar legislation, it is
important that the language be clear in its intent and explicit
with regard to the required activities. Moreover, the term
``local official'' should be explicitly defined to include
emergency response planners, public safety officials, and all--
and I all reiterate ``all''--fire service organizations:
career, volunteer, or combination departments, alike.
From my personal perspective, as the chair of a local LEPC,
and in light of the criminal penalties that may be imposed, I
am asking that the Administrator of the EPA be directed to
provide clear and concise guidance which outlines the
conditions under which offsite consequence analysis information
may be released to the public.
In conclusion, the offsite consequence analysis or worst-
case scenario is extremely valuable information for emergency
response personnel and is vitally important for local emergency
planning purposes.
Second, Federal statutes should assure that dissemination
of offsite consequence analysis be controlled and protected
from mass distribution. Moreover, local fire and emergency
organizations should not become a repository for such
information for the purposes of disseminating it to the public,
particularly in light of the criminal penalties.
And, finally, in recognizing the complexities of the
situation before us, the proposed Chemical Safety Information
and Site Security Act of 1999 or similar legislation should be
quickly enacted. However, there needs to be additional
clarification of existing language, including the resolution of
the outstanding issues presented here today.
On behalf of the International Association of Fire Chiefs,
I thank you for this opportunity to explain our concerns, and I
am available to respond to any questions you may have.
[The prepared statement of Mark S. Wheatley follows:]
Prepared Statement of Mark S. Wheatley, Assistant Chief, Fairfax County
Fire and Rescue Department on behalf of the International Association
of Fire Chiefs
Good afternoon Mr. Chairman, members of the subcommittee, I am Mark
Wheatley, Assistant Fire Chief of the Fairfax County, Virginia Fire and
Rescue Department. I am also the Chairman of the Fairfax Joint Local
Emergency Planning Committee, a committee responsible for hazardous
materials emergency response planning for four jurisdictions in
Virginia.
My remarks today are on behalf of the International Association of
Fire Chiefs (IAFC). The IAFC is a professional association founded over
125 years ago in service to chief fire officers and managers of
emergency service organizations throughout the international community.
We very much appreciate the opportunity to appear before you today.
The subject of today's hearing is of vital importance to America's fire
and emergency services personnel. We are the first responders to fires,
medical emergencies, hazardous materials incidents, technical rescues,
natural disasters and terrorist incidents.
As the subcommittee is aware, the Clean Air Act requires the
Environmental Protection Agency (EPA) to implement a program to assist
in the prevention of chemical accidents. We believe it is a good law.
The EPA responded to this statute by publishing its Risk Management
Program rule in June 1996. That rule requires some 66,000 facilities
that store and use chemicals to develop a Risk Management Plan (RMP)
and file it with the EPA. Part of the Risk Management Plan is an
Offsite Consequence Analysis (OCA) which includes worst case data
elements-or ``worst case'' scenarios. These worst case scenarios (WCS)
contain detailed information about the chemicals stored at the
facility, estimated injury and loss of life predictions, potential
damage to structures and the anticipated environmental impact. They are
a prediction of disaster for the specific facilities of interest.
The Clean Air Act further requires the EPA to make this information
available to the public. Last year, we learned that the EPA proposed to
make this information, including worst case scenarios, available to the
public on the internet. We expressed our concern, shared by the FBI as
well as other law enforcement and national security agencies, that
making worst case scenarios available on the internet may increase the
risk of terrorist attacks. The IAFC and the American fire service were
pleased that the EPA agreed not to publish offsite consequence analysis
data elements on the internet. This was a very responsible action by
that agency and one which is greatly appreciated by fire and emergency
services.
Now, a second and equally important issue arises. The IAFC has
grave concerns regarding the inappropriate use of WCS information given
that it is still possible for private citizens and organizations to
obtain such information from the EPA and other agencies through federal
and state Freedom of Information Act (FOIA) requests. These persons
could then post the worst case scenarios on the internet. Our concern
now is that even though the EPA has decided not to post worst case
scenarios on the internet, others are likely to do so. It is our
understanding that currently a FOIA request could require the EPA to
turn over the entire database electronically or in paper format. The
same might be true of documents and information held by localities for
planning purposes.
Detailed worst case scenario information is vital to local
governments for emergency planning purposes. It is imperative that
local emergency responders have timely, unimpeded access to this
information on a continuous basis. Local emergency responders should
not be confronted with impractical barriers or time delays in accessing
such critical information as a result of statutory or regulatory
action.
Given the importance of this information to local authorities and
yet our concern for its misuse, we support congressional action that
would allow the EPA to grant requests for information on a restricted
basis as proposed in the ``Chemical Safety Information and Site
Security Act of 1999.'' This proposed bill would allow local emergency
planners, fire and emergency services professionals and citizens within
a given community to obtain this important information without creating
a one-stop shop for those that might use the information for sinister
purposes.
When considering H.R. 1790 or similar legislation it is important
that the specific language is clear in its intent and explicit in
regard to required activities. Specifically, the use of the words
``local official'' should be explicitly defined to include emergency
planners, fire and emergency services personnel. Otherwise, some
confusion may exist as to who the intended local recipients of
information are and their responsibilities regarding the use and
dissemination of Offsite Consequence Analysis data. In addition, it
should be clear that information is accessible by all fire and
emergency service organizations regardless of whether the organization
is a career, volunteer or combination department.
And, from my personal perspective as the chair of a local emergency
planning committee, I would ask that the Administrator of the
Environmental Protection Agency be directed to provide clear and
concise guidance which outlines the conditions under which Offsite
Consequence Analysis information may be released to the public,
particularly in light of the proposed criminal penalties which may be
imposed for violating provisions of this Act.
In conclusion: 1. The Offsite Consequence Analysis-or ``worst
case'' scenario data is very valuable information for fire and
emergency service responders. It is vital for local emergency planning
and response purposes. 2. The Federal statutes should not prohibit
sharing of access to worst case scenario information between fire and
emergency service personnel from other jurisdictions involved in joint
planning. Furthermore 3. Local fire and emergency services should not
become a repository of the worst case scenario information for the
purpose of disseminating it to the public. Federal statute should
ensure this. 4. The dissemination of the Offsite Consequence Analysis
data should be controlled and protected from mass distribution. Finally
5. The proposed Chemical Safety Information and Site Security Act of
1999 or similar legislation should be enacted quickly. However, there
needs to be additional clarification of existing language which
addresses the outstanding issues presented here today regarding the use
and dissemination of worst case scenario information.
On behalf of the International Association of Fire Chiefs, I thank
you for the opportunity to explain our concerns. I am available to
respond to any questions you may have.
Mr. Deal. Thank you, sir.
Mr. Susman.
STATEMENT OF THOMAS M. SUSMAN
Mr. Susman. Thank you, Mr. Chairman.
I am here today on behalf of the Chemical Manufacturers
Association which represents over 90 percent of the domestic
capacity for producing basic chemicals. CMA, incidentally,
supported the Clean Air Act amendments of 1990 and its risk
management provision, and its members have been working in
communities for quite some time to communicate on these local
issues.
I am going to summarize the three points made in my formal
testimony today, and also take leave to address three other
points that were raised by members' opening comments, in case
we get tied up with the bells again.
The bill attempts to achieve a balance between public
right-to-know and the obligation of Government to protect
public safety. And it is important to remember that the balance
is not right-to-know versus no-right-to-know, but right-to-know
versus public safety. And the language of the legislation
submitted by the administration has a few serious flaws that
can be corrected, but they are flaws that Congress and this
subcommittee need to address.
The first flaw is the proposed electronic dissemination
through depository libraries. You have a library community
witness this morning who will address that issue, generally,
but I would point out that this provision imposes upon GPO and
the Nation's 1,300 depository libraries responsibilities,
burdens, and requirements that are simply unrealistic and
unworkable. Woe to the public librarian who allows someone to
photocopy in the public reading room an OCA and thereby
becomes, under this statute, a criminal.
CMA urges the committee simply address this problem by
deleting reference to depository library dissemination from the
bill.
The second major flaw is the bill's failure to require,
and, indeed, its inhibition, on identification of persons
requesting OCA data. The bill doesn't require a written request
for OCA information. Every agency in Government requires
written request for every--even the most trivial Freedom of
Information Act request, yet this bill does not. And it only
authorizes, it does not mandate the Administrator to keep track
of requesters. Furthermore, even that light touch is undermined
by the provision that the Administrator can maintain identity
information, only to the extent that collection is relevant and
necessary to accomplish a legal purpose required to be
accomplished by a statute.
Mr. Chairman, I know of no statute, Federal or State, which
imposes such a requirement, and CMA, thus, urges the committee
both to insert the word ``written'' before the word ``request''
in the statute so that it does require a written request, and
to delete the qualification that appears to allow maintenance
of requester data only if required to be accomplished.
The third flaw is the bill's dependence upon guidelines
that are set by unreviewable and standardless agency
discretion. The Administrator has the authority, through
guidelines, to set limits on the maximum number of requests,
but there is no indication on the part of the administration in
transmitting the bill or so far on the part of any Member of
Congress as to what that standard ought to be. Are we talking
about one request per year for up to three sites of offsite
consequence data? Or are we talking about 50 requests per year
for up to 100 or 500 sites per requests? These are very, very
different, in terms of their implications of requests for
individual copies being used ultimately to get this information
on the Internet.
This is an important issue and Congress ought to indicate
what it thinks the answer is. CMA suggests one request for
three facilities plans per year, but obviously we are talking
about a relatively modest number.
And the second problem is that these important questions
are to be answered by not notice in comment rulemaking, but by
guidelines that are not judicially reviewable. So while the
Administrator must consult with unnamed appropriate Federal
agencies, and EPA assures us that they will talk to the public
and State and local governments, for 50 years, the
Administrative Procedure Act has told us that the way to ensure
both accountability of the agency and public participation and
confidence in the setting of standards is through notice and
comment rulemaking, and that can be done without delay.
Now the additional problems that aren't dealt with in my
testimony but have been raised this morning, let me touch on
just a moment.
This legislation will preempt State freedom of information
and open records laws. While it certainly will--the answer to
the question earlier asked to the Justice Department official,
``How many?'' The answer is ``All of them, we hope.'' This is
not unusual; this is not unprecedented. Every time Congress
goes to protect records, the Buckley Amendment of 1974 relating
to school records, criminal information, history through
Federal legislation, Medicaid information, healthcare
information--whenever Congress enacts an statute where
information flows to the States, it proscribes State
redissemination without restriction. While it is perfectly
constitutional, the commerce clause contemplates it. These
statutes have been upheld against constitutional challenge, and
the States can avoid preemption. They simply don't have to
obtain the information.
What about dealing with access to volunteer firefighters or
LEPC members who aren't employees. It seems to me a simple
amendment could handle that, or they could be considered
consultants or agents of the State, already dealt with through
the legislation.
And, finally, let me return to what I consider is really
the basic issue, that this will roll back the public's right to
know. This right was originally created by Congress. It is a
right to know that the manufacturers of chemicals, along with
environmental advocates and Government agencies, all support.
But it is a right that has to be tempered, as I said in my
opening. Tempered by an equal right to protection against the
traumas caused by a terrorist attack on a nearby chemical
facility. And so the legislation needs to be designed not just
to look at the access part, but the protection part--and I
understand, no right to Internet-accessible, electronically
searchable data that is necessary to allow the community to
understand, work with, and respond to potential chemical
hazards.
Thank you, Mr. Chairman. I will be pleased to participate
in responding to any further problems with this legislation
that might arise.
[The prepared statement of Thomas M. Susman follows:]
Prepared Statement of Thomas M. Susman on behalf of the Chemical
Manufacturers Association
Good afternoon, Mr. Chairman and members of the Subcommittee. My
name is Tom Susman, and I am a partner with the law firm of Ropes &
Gray. I appear before you this afternoon on behalf of the Chemical
Manufacturers Association. CMA is a trade association that represents
over 90% of the domestic capacity for producing basic industrial
chemicals.
I am here today to comment on the Administration's proposal,
H.R.1790, as introduced by Chairman Bliley. This proposal is intended
to deal with the issue of dissemination of worst case scenario data via
the Internet. I would like to commend Chairman Bliley for his
leadership on this important matter. Thanks are also due Subcommittee
Chairmen Bilirakis and Upton, as well as other members of the Commerce
Committee, for their excellent work.
As you know, worst case scenario data provide a graphic depiction
of the worst possible incident that could occur at a manufacturing
facility. An unintended consequence of the dissemination of this data
is that it will provide what the intelligence community refers to as
``targeting quality'' data. This data will assist terrorists in
choosing their targets.
This language was produced by an interagency work group led by the
Department of Justice. The process achieved important results. It
established a framework which brought all affected agencies--Department
of Justice, National Security Council, FBI and EPA (and others) to the
table to discuss the unintended consequences of government information
dissemination programs, particularly those which could facilitate
terrorist activities. It also placed primary responsibility for dealing
with these issues in the hands of the Department of Justice and other
security agencies--where it belongs.
The process focused all stakeholders on the need to achieve a
balance between public right-to-know and the obligation of government
to ensure that sensitive information does not get into the wrong hands,
that is, to ensure that communities are both safe and informed. The
importance of this process and its success in bringing the right
parties together to undertake a cross-cutting look at these issues
cannot be overstated. CMA supports the Administration's effort.
The language proposed by the work group, however, has some serious
flaws which I will describe in detail. I stress that these shortcomings
can be fixed and that they must be fixed so that this bill can be
signed into law before June 21, 1999--the date by which worst case
scenario must be submitted to EPA. After providing a brief overview of
the background on this issue, I will proceed to discuss those areas
where the bill needs to be improved.
background.
CMA supported the Clean Air Act Amendments of 1990 and the Risk
Management Plan (RMP) provisions of Section 112(r). CMA worked closely
with EPA in the development of its RMP regulations, and it has
conducted extensive and early community-based outreach to make sure
that its members are prepared to comply with the rule. Indeed, many of
them began communicating with their local communities about these
issues several years ago.
CMA believes that the public has a right to know about the risks,
as well as the benefits, associated with the operation of those
facilities. Ever since Congress began considering the concept of Risk
Management Plans in the late 1980s, our central concern has been to
ensure a balance between two important public policy goals: ensuring
that communities are both safe and informed.
In the last year or so, however, agencies charged with assuring our
nation's internal security--the Department of Justice, the National
Security Council, and the FBI (to name a few), expressed serious
concerns about one aspect of EPA's planned implementation of the RMP
rules. That aspect was EPA's plan to put offsite consequence analyses
(OCAs), including those involving worst-case scenario releases, into an
electronically searchable database that would be accessible via the
Internet. These agencies concluded that such an arrangement would allow
terrorists and other criminals to easily identify promising targets and
to rank those facilities by the scale of their worst case offsite
consequences. Prompted by the experts at the security agencies, the
Administration initiated an interagency review process to evaluate this
threat, and to develop new ways to address it and still serve the
public's right to know.
The first step of this process was EPA's decision early this year
not to post a searchable electronic database of OCA data on the
Internet. CMA commended EPA for making this tough decision.
The second step of the process was to ensure that EPA's decision
could not be undermined by third parties who could obtain the
electronic data under the Freedom of Information Act (FOIA). Again, the
security agencies, EPA and the Department of Justice thought carefully
about how to accomplish this goal without making changes to FOIA
itself. The result was the bill currently before this Committee.
major flaws.
There are three major problems with the bill. I will briefly touch
on each one. All of these are straightforward. They can be remedied in
a prompt manner. Recommended changes are also provided.
Electronic dissemination through depository libraries.
The bill recognizes that risk management plans will be made
available at thousands of EPA, state and local government offices
throughout the nation. It also mandates that every risk management
plan, including OCA data, be ``available in paper or electronic form
for public inspection, but not copying, during normal business hours,''
from EPA. On top of that, however, the bill requires every risk
management plan to be similarly available from Government Printing
Office depository libraries. This provision imposes upon the GPO and
the nation's thousands of federal depository libraries
responsibilities, requirements, and burdens that are unrealistic,
undesirable, and, in the end, unworkable. Let me explain why:
First, federal depository libraries are not exclusively, or
even primarily, federal institutions. They may be private (for
example, university libraries), or public (for example, local
libraries). There are over 3000 of them in all 50 states, D.C.,
and the territories. Present law and regulations require that
depository libraries make government publications, paper and
electronic, available to the public without charge and without
restrictions. Thus, the entire depository system is grounded
upon principles running counter to the objectives and
requirements of the bill.
Second, depository libraries do not have the personnel or
resources to monitor whether a person copies paper records or
prints or copies electronic records. Nor does GPO have the
ability to enforce such restrictions. Library computer
workstations ordinarily allow patrons to make copies of online
materials, and they are not necessarily located where
supervision is possible. Libraries would have to invest in
facilities or equipment or both to enforce the requirements of
the bill. Moreover, even as to paper copies of OCAs, libraries
locate copying facilities to make it easy for patrons to
photocopy reference materials; mandating segregated, access-
controlled ``read but don't copy rooms'' in libraries simply is
not feasible.
Third, the library community historically has opposed
restricting or monitoring access; the American Library
Association was a lead plaintiff challenging federal
restrictions on access to indecent material on the Internet.
Libraries have shown a disinclination to, and cannot
effectively, monitor copying of CDRoms or paper or disks, as
would be required by the bill.
Fourth, ``GPO Access''--the program for dissemination of
electronic online information to depository libraries--is an
open system available to the public generally. Currently, no
system is in place for secured transmission of information
solely to depositories. Nor is one just around the corner.
Fifth, library systems and shelves are not secure. The goal of
libraries is to get information out freely and expeditiously to
the public, not to restrain or censure it. Sending OCA data
electronically to potentially hundreds or thousands of
depository libraries is an invitation to disaster.
Accordingly, CMA urges that the Committee strike the phrase ``,
including in Government Printing Office depository libraries' from page
5, lines 18-19 of the bill.
Identifying requesters.
The second major flaw with the bill is its failure unambiguously to
require the system to identify persons requesting OCA data. First,
section 2(c)(3)(A) does not require a ``written'' request--``any
request for off-site consequence analysis information'' seemingly will
do. Even FOIA--which would not apply under this bill--requires a
written request for information.
Second, section 2(c)(9) merely provides that ``the Administrator
may collect and maintain records that reflect the identity of'' those
seeking access to OCA data. This is permissive, not mandatory. More
importantly, even the authority to maintain records of requesters'
identities is severely undermined by the qualification that the
Administrator may do so ``only to the extent that such collection is
relevant and necessary to accomplish a legal purpose . . . that is
required to be accomplished by statute or by executive order of the
President.'' I am not aware of such a requirement in any statute.
Presumably it may be inferred from this bill, via the bill's command
that EPA establish conditions for release of OCA information that
include the maximum number of requests any single requestor can make.
After all, the agency could not effectively enforce such a limitation
without keeping records of requesters. But once any time period
contemplated by the guidelines has expired (for example, one year if
the guidelines allow three requests per year), the agency would no
longer have even an implied ``requirement'' to maintain this
information. Additionally, few if any State statutes require collection
of requester identity information, so this qualification may prevent
States from acquiring information deemed useful to guarding against
misuse of the data, even to the extent of causing public harm.
Finally, the bill's reference to the Privacy Act makes no sense,
since the Privacy Act exempts from its protections any request for
personal information disclosable under the FOIA, and FOIA in turn has
been read uniformly to require disclosure of requests for information
of this kind. (For example, FOIA requests are routinely disclosed under
FOIA.) Hence, any suggested protection of requester identity records is
ephemeral. The bill should be clear that there is no such protection--
one of its fundamental purposes is to allow agencies to track who is
requesting OCA data. This could enable EPA to determine if someone is
about to cause an imminent hazard by posting electronically a stolen
copy of the entire OCA database. It could also help identify the
perpetrators of a terrorist act, if one occurs at an RMP facility.
Accordingly, CMA urges the Committee to insert the word ``written''
before the word ``request'' on page 3, line 19 and to delete the
qualification in both clauses of subsection 2(c)(8) that appear to
allow maintenance of requester identity only if ``required to be
accomplished by statute or by executive order of the President.''
Unreviewable and standardless agency discretion.
The third major flaw in the bill has two parts: its failure to
require EPA to go through rulemaking to establish conditions on access
to OCA data, and its failure to establish any standards to guide EPA in
this exercise.
Section 2(c)(3)(A) allows the Administrator to restrict access to
paper OCAs, and this restriction is binding on States and local
government employees under section 2(c)(5). Yet these provisions give
absolutely no hint of standards for EPA to follow. (Nor do the Justice
Department's transmittal letter or section-by-section analysis.) May
the Administrator limit the maximum number of request or facilities
that may be requested to one per requester, period? To 1000 facilities
or 50 requests per requester each year? Congress should certainly care
about these questions, given the time and energy it is investing in
this legislation. The underlying purposes of the legislation could be
achieved with a limitation to one request for three facility plans per
year; why authorize more?
Moreover, these important questions are to be answered not by
notice and comment rulemaking, but only by guidelines that, under
section 2(d)(1), will be unreviewable. True, the Administrator must
consult with unnamed ``appropriate Federal agencies.'' But it need not
consult with the public, State or local governments, or affected
industry. And whatever the consultation process, there is no
opportunity for public comment or for judicial review.
Accordingly, CMA urges the Committee to combine paragraphs 2(d)(1)
and 2(d)(2) in such a way that EPA must conduct notice and comment
rulemaking to establish the access conditions required by the bill.
This rulemaking could be expedited; for example, these rules could be
proposed within 45 days and finalized 45 days later. CMA also
recommends the Committee specifically name the Department of Justice as
among the ``appropriate Federal agencies'' with which EPA must consult
(page 8, line 1).
other issues.
Two other features of the bill raise questions, although neither
rises to the level of the three concerns just discussed.
Enforcement. The bill is unclear about how its limitations on
disseminating OCA data would be enforced. While criminal
penalties are included under section 2(c)(8), there may be
nothing to penalize if the guidelines allow nearly unfettered
disclosure of OCAs. For example, is a violation of the
guidelines a violation of ``a restriction or prohibition
established by this section?'' And woe unto the public library
employee (a local government employee) who commits a criminal
act by failing to stop a patron from copying an OCA in the
reference room.
Order authority. The purpose of section 2(f) is even more
unclear. Presumably it would allow EPA to issue an order
preventing someone from posting on the internet a stolen copy
of the OCA database, or that person's own reconstruction of the
database. If so, that is probably useful. But whether the
Administration envisioned this or something else is unclear.
conclusion.
The FBI and other law enforcement and national security agencies
have determined that unrestricted access to OCA information, especially
electronic data, would facilitate terrorist targeting of chemical
facilities in the United States. EPA agreed. Yet these agencies, State
and local governments, environmental and union advocates, and the
chemical industry also agree that some form of public access to this
information is highly desirable.
Mr. Chairman, H.R. 1790 is an important attempt to balance and
reconcile these two goals. This bipartisan bill represents the
collaborative effort of affected agencies. The bill has flaws that
could result in it failing to accomplish its important purpose, but
these flaws can be readily addressed by the solutions CMA has outlined
above. We urge the Committee to adopt them, so that Congress can
promptly enact this vital legislation.
Mr. Deal. Thank you.
Mr. Orum.
STATEMENT OF PAUL ORUM
Mr. Orum. Thank you.
I am Paul Orum, the coordinator of the Working Group on
Community Right-to-Know, environmental and public interest
groups; I have held that job for 10 years.
Today we are here to consider ways to reduce the risks of
catastrophic chemical releases, whether resulting from
terrorism or so-called everyday accidents.
The Clear Air Act gives us two basic tools to do that:
right-to-know and regulation. The proposed bill seriously
impedes the public's right to know and yet presents no other
tools to fight terrorism or reduce chemical accidents.
We can't pretend that just restricting right-to-know,
alone, will somehow solve either the terrorism or chemical
safety problems. Yet, that is what this bill does. And by
restricting right-to-know, it threatens to maintain what I
would call a ``know nothing, do nothing'' relationship between
Government and industry in which we end up with the worst of
both worlds--no effective right to know, and no real action to
protect public safety.
If Congress is serious about reducing the risk of
terrorism, I would propose a prevention hierarchy parallel to
that used in the Pollution Prevention Act, a multiple barriers
approach, if you will.
First, reduce the problem at the source, wherever feasible.
Here in Washington, DC, sitting right here, the Blue Plains
Sewage Treatment Plant has enough chlorine gas onsite to affect
us if it were all released. If they switched to sodium
hypochlorite, bleach, they would not have that offsite capacity
to cause harm. So you reduce the problem at the source through
inherently safer technologies where you can. Where you can't,
go to secondary containment. Where that might fail, improve
site security. Where those measure might fail, establish
adequate buffer zones. It is a multiple barriers approach.
If Congress believes, and the industry believes, that the
threat of terrorism justifies restrictions on the public's
right to know, then both are obligated to take real steps to
remedy those hazards.
Effective right-to-know laws make companies, workers, and
communities more careful and vigilant. The toxics release
inventories and offsite--as an example, credited with a 43-
percent reduction in releases over a 10-year period.
We could have similar benefits in rearouse of reducing the
risks of catastrophic chemical releases, through accidents or
terrorism. A TRI-equivalent reduction of 43 percent in deaths
over a recent 10-year period would be 1,100 lives saved.
Let's look, though, exactly or more precisely at what
this--how this law would restrict public information. Imagine
that 6 months from now, and one of your constituents has a
basic question. Could facilities near her home have a
catastrophic chemical release due to a year 2000 computer
failures?
She walks into your office and tells the following story.
She started with EPA's online data base, RMP information,
but she could learn only that there were dangerous chemicals
nearby but couldn't learn, without further inquiry, whether a
chemical spill could hurt her family at home. So she had to
inquire, using facility-specific request to EPA--guesses
really--which facilities in her town might affect her. But she
quickly ran out of the facility-specific requests because they
were limited.
She couldn't get the information, nor was she able,
therefore, to learn about hazards elsewhere, where her parents
lived, where her children go to school, or where she might want
to move to.
So, in my scenario, she asked her husband to make further
requests, but he didn't want to pay the fees. And, further, he
objected to the fact that the Government was tracking and
limiting his access to information.
So she asked her neighbor, a volunteer firefighter who
served on the LAPC, but he said the State law made him an
employee, and he was afraid to go to jail if he gave her the
information.
He suggested the library, but the librarian said they had
decided not to give it out because they didn't want to police
their patrons' use of information; they didn't have staff.
He said, call the company. So he called a friend who worked
at a refinery, and he said they didn't put out vulnerability
circles anymore because the Governments says it is a security
risk. He said, ``Call EPA.''
So she tried the EPA regional reading room, but the data
base there didn't include any information that would help her
to identify the decisionmaker who was causing the hazards.
So she called the research at the university, and he
couldn't get full information either, through basic studies.
This bill creates big disadvantages for citizens who seek
basic information, including needless expenses, intrusion on
personal information, and high opportunity costs. The question
is how to preserve the public's right to know, while making
progress against terrorism.
We propose a two-part strategy. First, any company that
wants to withhold information from the Internet should, for a
limited period of time, have to request a waiver to do so and
renew it annually. For any company that requests a waiver, they
should have to enter a hazard reduction and site security
program using the multi-barriers approach above.
With that approach, Congress would ensure that no company
falls through the cracks. Every company addresses the risks of
hazards, and all the companies are on the track to fully honor
the public's right to know.
I would be pleased to answer any questions and also point
out this example from 1993 was in a newspaper of what it looks
like when worst-case scenarios are published in a newspaper.
[The prepared statement of Paul Orum follows:]
Prepared Statement of Paul Orum, Working Group on Community Right-to-
Know
My name is Paul Orum. I am the coordinator of the Working Group on
Community Right-to-Know, a network of public interest organizations
concerned with the public's right-to-know and freedom to communicate
about toxic pollution and chemical hazards. I testified before this
subcommittee on February 10, 1999, and submitted answers to follow-up
questions on March 31, 1999. In those materials I described the public
purposes served by a complete, national database of chemical hazard
information. I appreciate this opportunity to address the proposed
``Chemical Safety Information and Site Security Act of 1999'' (H.R.
1790).
Today we are considering ways to reduce the risks of catastrophic
chemical releases, whether resulting from ``terrorism'' or ``everyday''
accidents. The Clean Air Act, section 112(r), contains two basic
strategies to reduce chemical releases: right-to-know and regulation.
The proposed bill seriously impedes the public's right-to-know and
presents no other significant measures to fight terrorism or reduce
chemical accidents.
This bill impedes the public's right-to-know. It requires the
government to track citizens' information-request behavior. It limits
citizens' opportunities to request public information. It threatens to
jail librarians, police, and fire fighters if they warn people about
the worst hazards. It restricts citizens' ability to communicate about
chemical hazards. It shields those who create hazards from public
scrutiny. It establishes new fees and poses high opportunity costs. And
it denies researchers basic access to ``right-to-know'' information.
At the same time, this bill offers no serious, practical steps for
companies to reduce these chemical threats to public safety, for
example by using inherently safer technologies, adding safety
equipment, improving site security, or establishing buffer zones to
protect surrounding populations.
We cannot suppose that restricting right-to-know alone will somehow
solve either terrorism or chemical safety problems. Yet by restricting
right-to-know the proposed bill threatens to maintain a ``know-nothing,
do nothing'' relationship between government and industry. We may end
up with the worst of two worlds--with no effective right-to-know and no
real action to protect public safety.
I. Real Steps to Reduce Hazards: A Multiple-Barriers Approach
If Congress is serious about reducing chemical releases--whether
caused by ``terrorists'' or ``ordinary'' events--then we propose a
prevention hierarchy parallel to that used in the Pollution Prevention
Act:\1\
---------------------------------------------------------------------------
\1\ The Pollution Prevention Act of 1990, Section 6602(b),
establishes as the national policy of the United States a hierarchy for
the prevention and management of toxic chemicals in production waste.
1. Adopt inherently safer technologies where feasible that eliminate
the possibility of a catastrophic chemical release (such as
replacing chlorine disinfectant with sodium hypochlorite--
bleach--at water treatment plants).\2\
---------------------------------------------------------------------------
\2\ Incorporating ``technology options analyses'' into research and
development before major changes that require a facility to submit an
updated Risk Management Plan can identify such prevention
opportunities. See Ashford, et. al., The Encouragement of Technological
Change for Preventing Chemical Accidents: Moving Firms From Secondary
Prevention and Mitigation to Primary Prevention, U.S. Environmental
Protection Agency, July 1993.
---------------------------------------------------------------------------
2. Use secondary containment, control, or mitigation equipment
(including hardening facilities against attack) where feasible
to address vulnerabilities that cannot be reduced through
inherently safer technologies;
3. Improve site security where feasible to address vulnerabilities that
cannot be reduced through inherently safer technologies and
secondary safety controls;
4. Establish adequate buffer zones between facilities and surrounding
populations (including residences, schools, hospitals, senior
centers, shopping malls, stadiums, and other population
centers) to address vulnerabilities that cannot be addressed
through safer technologies, secondary safety controls, or site
security.
This ``multiple-barriers approach'' provides a context for action
by the public, government, and industry to protect public safety at the
federal, state, and local level.\3\
---------------------------------------------------------------------------
\3\ Diverse constituencies with an interest in chemical hazard
information include: educators, researchers, and university-based
hazard reduction centers; national and local news media; the general
public; community groups, resource centers, and citizen advisory
councils; social justice, environmental, and labor organizations;
facility environmental managers (in large and small businesses);
investors, lenders, and insurers; physicians networks, health
departments, nursing homes, and hospitals; emergency responders
(police, fire, medical services, and emergency planners); school
officials and parent-teacher associations; planning commissions, zoning
boards, and public works departments; elected officials, and others.
---------------------------------------------------------------------------
If the chemical industry believex that the threat of terrorism
justifies restrictions on the public's right-to-know, then the industry
is obligated to take real steps to remedy those hazards. If Congress
believes that the threat of terrorism justifies new restrictions on the
public's right-to-know, then Congress is obligated to take meaningful
steps to ensure public safety.
II. Right-to-Know: What Gets Measured Gets Managed
Effective right-to-know laws make companies, workers, and
communities more careful and vigilant. For example, publication of
Toxics Release Inventory data has prodded companies to improve
environmental performance. The U.S. EPA last week announced that
reported toxic releases to the environment have declined some 43
percent under the TRI program since 1988. However, it is important to
remember that citizen organizations and the news media with access to
well-organized data serve as an important link to the public.\4\
---------------------------------------------------------------------------
\4\ Frances Lynn, Jack Kartez, and Cheryl Connelly, The Toxics
Release Inventory: Environmental Democracy in Action, U.S. EPA
(document number 700-F-92-001), 1992.
---------------------------------------------------------------------------
Effective access to RMP information, in conjunction with a hazard
reduction and site security program, could similarly reduce the risk of
catastrophic chemical releases, whether caused by ``terrorists'' or
``ordinary'' events. (For comparison, a TRI-equivalent 43 percent
reduction in deaths from chemical accidents would have saved over 1,100
lives between 1987 and 1996.\5\) People would be more vigilant, and
companies would maintain fewer hazards and be better prepared to
address hazards that remain. However, the proposed bill truly impedes
such effective access.
---------------------------------------------------------------------------
\5\ The Chemical Safety and Hazard Investigation Board reported
2,565 deaths from chemical accidents in The 600K Report: Commercial
Chemical Incidents in the United States, 1987-1996, February 1999.
---------------------------------------------------------------------------
III. Restrictions on Right-to-Know: A Hide and Seek Odyssey
Imagine the odyssey of a person who wants basic information under
the proposed bill (H.R. 1790). It's six months from now and one of your
constituents has a basic question: could facilities near her home have
a catastrophic chemical release due to year-2000 computer failures? She
walks into your office and tells the following tale of frustration.
She started with EPA's on-line database, RMP*Info. But she learned
only that there are dangerous chemical practices nearby, but could not
learn (without further inquiry) whether a chemical spill could hurt her
family at home. So she therefore had to inquire, using facility-
specific requests to EPA, which facilities in her town might affect her
family--but was allowed only a limited number (as yet unspecified) of
information requests. When she exceeded EPA's information-request
allowance, she was not able to learn about hazards where her elderly
mother lives, where the children go to school, or where her family
looked at buying a new home. (Her mother, on fixed-income disability,
couldn't get or understand the information herself.) So she asked her
husband to make further requests. But EPA charges information request
fees, and he balked at what he called an expensive game of hide-and-
seek over chemical industry hazards. Further, he didn't want to
participate in a ``right-to-know'' program that required the government
to track and limit his information-request behavior.
So she asked her neighbor, the volunteer fire fighter, who serves
on the Local Emergency Planning Committee (LEPC). But he said that
state law made him a public employee, and that he was afraid of going
to jail if he told her about the most dangerous facilities, because he
didn't think the state had an official policy to give out the
information. He suggested the library. But the librarian said they
decided not to provide the data because they objected to policing
patron's use of information. The librarian suggested calling the
companies directly. So she called a friend who works in a refinery, but
he said that they didn't put out vulnerability circles anymore because
the government says it's a security risk. He suggested EPA. So she
drove 250 miles--one way--to the EPA regional office reading room. But
the database didn't have facility identifying information and so now
she couldn't identify the decision-maker causing the hazard (and EPA
had decided not to identify the most dangerous Y2K facilities).
She called a researcher at the university. He said that he thought
that nearby chemical facilities were depressing housing values--but
couldn't get complete data to find out. He couldn't even find out which
companies had successful company-wide inherent safety policies, or even
which companies had successfully reduced hazards.
So now she's in your office asking whether you, as her
representative, can get her the information about potentially dangerous
Y2K facilities.
The bill creates immense disadvantages for citizens who seek basic
information, including needless expenses, intrusion on personal
information, and high opportunity costs.
IV. The Right-to-Know Standard: Disclose and Ensure Safety
The question is how to preserve the public's right-to-know while
making progress against terrorism. We propose the following strategy:
First, require RMP facilities to that want to withhold worst-
case scenario information from the national, on-line RMP*Info
database to file an annual waiver request (only for a limited
number of years) with the U.S. EPA. Without a waiver request,
EPA automatically puts full information on-line in RMP*Info.
Second, require facilities that file such a waiver request to
enter a ``hazard reduction and site security program'' until
the facility is safe enough to talk about on the Internet
(following the prevention hierarchy listed above).
With this approach, Congress would ensure that companies address
the risk of terrorism, while putting all facilities on a track to fully
honor the public's right-to-know.
I would be pleased to answer any questions.
Mr. Deal. Thank you.
Mr. Pfeifer.
STATEMENT OF MARTIN PFEIFER
Mr. Pfeifer. Good afternoon, Mr. Chairman, and,
distinguished members of the House Subcommittee on Health and
Environment.
My name is Sergeant Marty Pfeifer, and I am a 26-year
veteran with the Metropolitan Police Department in Washington,
DC. I currently serve as the elected trustee from the District
of Columbia on the National Board of Directors for the
Fraternal Order of Police, which is the largest organization of
law enforcement professionals in the Nation, representing over
277,000 men and women.
I am here this afternoon at the request of Gilbert
Gallegos, national president of the Fraternal Order of Police,
to express our concern about an important public health and
safety issue. As the Nation's largest law enforcement
organization, our members, along with other emergency
responders, have front-line responsibility for protecting the
public from incidents involving hazardous materials, including
those initiated by terrorist organizations.
The Fraternal Order of Police is strongly opposed to the
dissemination of sensitive data over the Internet which can be
useful to terrorists. Our most recent concerns with respect to
this issue center on worst-case scenario data that the
Environmental Protection Agency will collect from 66,000
facilities as part of its risk management program under the
Clean Air Act.
The data describes, in graphic detail, the worst possible
incident that could occur at a manufacturing facility.
The Clean Air Act amendments of 1990 required EPA to
disseminate worst-case scenario data to the public and to the
local emergency responders, but did not specify how this data
would be provided. After pressure from the intelligence
community and Congress, the EPA reconsidered their initial plan
to post this sensitive data on the Internet. In fact, at a
recent congressional hearing, EPA objected to any party placing
the worst-case scenario data on the Internet.
Now, despite EPA's objections, certain third-party interest
groups have indicated they will use Federal information access
procedures to obtain this national electronic worst-case
scenario data base from EPA and then place it on the Internet.
We are very much alarmed by these irresponsible pronouncements,
as should all Americans.
The bill before the subcommittee today, H.R. 1790, the
Chemical Safety Information and Site Security Act of 1999,
addresses the need for appropriate controls and safeguards on
the dissemination of sensitive worst-case scenario data. The
legislation would make such data available to the public, but
would not permit Federal, State, or local governments from
making the information available on the Internet or in an
electronic form which could be easily collected and utilized by
terrorists.
We do believe, however, that such sensitive data, which
could be exploited with catastrophic results, needs to be
subjected to greater control by law enforcement agencies
responsible for protecting national security.
Specifically, the legislation would permit worst-case
scenario data to be available to the Government Printing Office
depository libraries, in addition to EPA, State, and local
government offices around the country. Federal depository
libraries are not always Federal institutions and include many
local, public, and university libraries, all of which are
required by current law to make Government publications, in
paper and electronic format, available to the public.
Depository libraries do not have the personnel or the resources
to be able to properly supervise persons accessing the data to
ensure it is not copied in any format. Library shelves and
online systems are not secure and are designed to make access
to all information easily accessible for patrons--which is
precisely the scenario we are trying to avoid. Their mission
runs counter to the aims of the legislation, this subcommittee,
the EPA, the Department of Justice, and other law enforcement
agencies.
The legislation does not consider the online information
system's GPO Access, which disseminates information directly to
depository libraries via the Internet. The system is open to
the public and has no safeguards in place to transmit
information securely, and no system for the secure transmission
of such data is currently under consideration by GPO.
We also believe that the bill would be substantially
improved by requiring the identification of all persons
requesting access to worst-case scenario data. The bill, in its
current form, does not require written request for access--but
specifies ``any'' request. The Fraternal Order of Police
strongly supports mandating the submission of a written request
before access to information with this degree of sensitivity is
granted. Information of this nature should be accessible only
under controlled conditions.
In the same vein, the bill provides only that the
Administrator may collect data and maintain records that
reflect the identify of persons seeking access to the worst-
case scenario data. Further, the bill qualifies this authority
by stating that maintaining data of the requesters' identities
should only be collected if relevant and necessary to
accomplish a legal purpose, by statute or executive order.
While it can be assumed that such recordkeeping would be
required under regulations setting a maximum number of requests
from one individual, we believe that maintaining records is
absolutely necessary to maintain control of this sensitive data
and deter its potential misuse.
Law enforcement and national security agencies are correct
in their determination that unrestricted access to worst-case
scenario data on chemical facilities, especially via the
Internet, would allow terrorists to chose with great precision
and accuracy targets for their attack.
The EPA is now in agreement with this assessment, and we
should all be proud of the strong bipartisan cooperation with
which Congress and the administration have approached this
issue.
We must strike the correct balance between public access to
this information for legitimate purposes and the very real need
to protect American citizens from the real threats of
terrorism. Appropriate and necessary restriction of the worst-
case scenario information by law enforcement and/or national
security authorities, along with recordkeeping on requesters,
will greatly improve this legislation which accurately
identifies the problem, but does not provide an adequate
solution.
On behalf of National President Gallegos and the membership
of the Fraternal Order of Police, I would like to applaud
Congressman Bliley for his leadership on this issue.
I sincerely hope that my testimony here today will improve
H.R. 1790 and allow it to protect our Nation's chemical
facilities from terrorist attack without compromising the
public's right to know.
I want to thank you, Mr. Chairman, and the members of this
distinguished subcommittee, for the opportunity to share with
you the views of the Fraternal Order of Police on this
important matter.
I would be pleased to answer questions.
[The prepared statement of Martin Pfeifer follows:]
Prepared Statement of Sgt. Marty Pfeifer, National Trustee, Grand
Lodge, Fraternal Order of Police
Good afternoon, Mr. Chairman and distinguished Members of the House
Subcommittee on Health and Environment. My name is Sergeant Marty
Pfeifer and I am a 26 year veteran with the Metropolitan Police
Department in Washington, D.C. I currently serve as the elected Trustee
from the District of Columbia on the National Board of Directors for
the Fraternal Order of Police, which is the largest organization of law
enforcement professionals in the nation, representing over 277,000 men
and women.
I am here this afternoon at the request of Gilbert G. Gallegos,
National President of the Fraternal Order of Police, to express concern
about an important public health and safety issue. As the nation's
largest law enforcement organization, our members, along with other
emergency responders, have front-line responsibility for protecting the
public from incidents involving hazardous materials, including those
initiated by terrorist organizations.
The F.O.P. is strongly opposed to the dissemination of sensitive
data over the Internet which can be useful to terrorists. Our most
recent concerns with respect to this issue center on worst case
scenario data that the Environmental Protection Agency (EPA) will
collect from 66,000 facilities as part of its Risk Management Program
under the Clean Air Act. This data describes in graphic detail the
worst possible incident that could occur at a manufacturing facility,
and includes the size of the surrounding area and the ``public
receptors,'' such as schools, hospitals and office buildings that would
be impacted by a terrorist event. The F.O.P. agrees with the Federal
Bureau of Investigation (FBI) and other law enforcement agencies that a
national searchable database of worst-case scenario information would
enable terrorists to choose targets with a precision heretofore unknown
with potentially catastrophic consequences. If this national database
were on the Internet, it would be a targeting tool accessible by
terrorists from anywhere in the world.
The Clean Air Act Amendments of 1990 required EPA to disseminate
worst case scenario data to the public and to local emergency
responders, but did not specify how this data would be provided.
Nevertheless, in January of 1998, EPA considered placing all of the
Risk Management Program data, including the worst-case scenario
information, on the Internet. Pressure from the intelligence community
and Congress led EPA to agree not to do so.
In a recent Congressional hearing, EPA objected to any party
placing the worst-case scenario data on the Internet. Now, despite
EPA's objections, certain third party interest groups have indicated
that they will use Federal information access procedures to obtain this
national electronic worst-case scenario database from EPA and then
place it on the Internet. We are very much alarmed by these
irresponsible pronouncements, as should all American citizens.
The bill before the Subcommittee today, H.R. 1790, the ``Chemical
Safety Information and Site Security Act of 1999,'' addresses the need
for appropriate controls and safeguards on the dissemination of
sensitive worst-case scenario data. The legislation would make such
data available to the public, but would not permit Federal, State or
local governments from making the information available on the Internet
or in an electronic form which would be easily collected and utilized
by terrorists. We do believe, however, that such sensitive data, which
could be exploited with catastrophic effect, needs to be subjected to
greater control by law enforcement and agencies protecting responsible
for national security.
Specifically, the legislation would permit the worst case scenario
data to be available to Government Printing Office depository
libraries, in addition to EPA and State and local government offices
around the country. Federal depository libraries are not always Federal
institutions and include many local public and university libraries,
all of which are required by current law to make government
publications, paper and electronic, available to the public. Depository
libraries do not have the personnel or resources to be able to properly
supervise persons accessing the data to ensure that it is not copied in
any format. Library shelves and on-line systems are not secure, and are
designed to make access to all information easily accessible for
patrons--which is precisely the scenario we are trying to avoid. Their
mission runs counter to the aims of the legislation, this Subcommittee,
the EPA, the Department of Justice, and other law enforcement agencies.
The legislation also does not consider the online information
system ``GPO Access,'' which disseminates information directly to
depository libraries via the Internet. The system is open to the public
and has no safeguards in place to transmit information securely, and no
system for the secure transmission of such data is currently under
consideration by GPO.
We also believe that the bill would be substantially improved by
requiring the identification of all persons requesting access to the
worst case scenario data. The bill in its current form does not require
a written request for access--but ``any'' request. The F.O.P. strongly
supports mandating the submission of a written request before access to
information with this degree of sensitivity is granted.
In the same vein, the bill provides only that the Administrator
``may collect data and maintain records that reflect the identity of'
persons seeking access to the worst case scenario data. Further, the
bill qualifies this authority by stating that maintaining data of the
requesters' identities should only be collected if ``relevant and
necessary to accomplish a legal purpose . . . by statute or executive
order.'' While it can be assumed that such record keeping would be
required under regulations setting a maximum number of requests from
one individual, we believe that maintaining records is absolutely
necessary to maintain control of this sensitive data and deter its
potential misuse.
Law enforcement and national security agencies are correct in their
determination that unrestricted access to worst case scenario data on
chemical facilities, especially via the Internet, would allow
terrorists to chose with great precision and accuracy targets for their
attacks. The EPA is now in agreement with this assessment, and we
should all be proud of the strong bipartisan cooperation with which
Congress and the Administration have approached this issue.
We must strike the correct balance between public access to this
information for legitimate purposes and the very real need to protect
American citizens from the real threats of terrorism. Appropriate and
necessary restriction of the worst case scenario information by law
enforcement and/or national security authorities and record-keeping on
requesters will greatly improve legislation that accurately identifies
the problem, but does not provide a solution.
On behalf of our National President Gil Gallegos and the membership
of the Fraternal Order of Police, I would like to applaud Congressman
Bliley for his leadership on this issue. I sincerely hope that my
testimony here today will improve H.R. 1790 to protect our nation's
chemical facilities from terrorist attack without compromising the
public's right to know.
I would like to thank you, Mr. Chairman and the members of this
distinguished Subcommittee for the opportunity to share with you the
views of the F.O.P. on this important matter. If you have questions, I
would be pleased to answer them.
Mr. Deal. Thank you, Sergeant.
Mr. Gablehouse.
STATEMENT OF TIMOTHY R. GABLEHOUSE
Mr. Gablehouse. Mr. Chairman, and, members of the
subcommittee, thank you very much for the opportunity to
testify yet again before you on this matter.
I am testifying today as the chair of the LEPC for
Jefferson County, Colorado, and as Representative DeGette
indicated, I am also involved in some other activities in
Colorado.
I am greatly concerned with the impact of this proposal on
the normal, routine operations of local emergency planning
committees. LEPC's are very much about communication. They are
about local discussions on accident prevention and emergency
management. Criminal sanctions for communication is an
inherently chilling proposition.
We have also not talked about the Emergency Planning
Community Right-to-Know Act. EPCRA contains independent
provisions for public access to information, independent of
FOIA. This proposal creates an absolute conflict between those
provisions and the provisions that would apply here. That is a
problem for an LEPC.
It is important to understand what LEPC's do, because
LEPC's are no longer simply related to the very limited kinds
of activities that happen under EPCRA. They do that certainly,
but many function as the local emergency medical council. Many
function as a disaster and emergency preparedness agency. Many
function in wildfire management; they function in zoning and
land use activities. They deal with cross-boundaries issues. I
mean, frankly, I have recent conversations with Wyoming LEPC's
about cross-boundary incidents. They communicate with the
hazardous materials' teams and fire departments. Many of them
are active in enforcement of fire code issues in their local
communities. They do their own kinds of calculations on
accident scenarios today, because accident scenarios are a
relevant part of all those sorts of activities. You cannot do
relevant emergency planning if you do not have a sense of what
kind of scenario you are going to face. Otherwise, you are
walking into a dark room--not advisable.
People belong to these LEPC's because they are interested
in these issues. A large variety of folks belong. Press--radio,
TV, print journalists belong to LEPC's. Members of industry
belong to LEPC's. My LEPC is almost a third, industry
representatives. Members of the general public, environmental
activists, community activists--and, yes, even State and local
officials belong to my LEPC.
Who attends our meetings? Darn near anybody shows up at
meetings. We get Federal people at our meetings; we get members
of the public walking in because they are lost; we get all
sorts of folks. Okay?
If I look at this bill, I have to conclude that, perhaps, I
can't hold public meetings. Are we going to preempt open
meeting laws in States, as well as public records laws? Can I
have a conversation about an RMP? Can I distribute copies
within my LEPC to discuss? Not at all clear that I can,
especially if members of the public are there--people who are
not officially members of the committee; they just happen to be
interested that day. That is a problem.
Many, I suspect, will resign from the LEPC, rather than
take the risk of criminal sanctions for their activities. If,
for example, it is clear that LEPC members are going to be
State and local officials, industry representatives are going
to have a very difficult time, then, going out and talking to
affected communities about what is in their own company's risk
management plan.
If State and local officials aren't represented by LEPC
members, then, it is going to be very difficult for us to get
any kind of meaningful information to conduct the kind of
planning activities that we ought to be conducting.
I recognize that there is some reliance on the fact that
supposedly what LEPC's do is a Federal task, in order to avoid
first amendment issues with this bill. In fact, I think that
reliance is well-misplaced. In fact, what LEPC's do is much,
much broader than the activities defined by EPCRA. We engage in
many, many activities that are outside the scope of what that
statute suggests we should do.
Does that mean I can no longer go talk to the planning
board or the school district about the risks associated with
certain kinds of land use and zoning? I certainly trust not.
But if so, then I am very likely in violation of these
provisions, which I think is not appropriate.
I think I need to talk briefly about what is and is not in
worst-case scenarios and offsite consequences. They are not
recipes for causing incidents. There is no information here
that would tell anybody how to do anything. Frankly, as the
Denver Post article that was talked about earlier today
suggests, you need not be a rocket scientist to understand that
propane tanks explode, that large tanks containing flammable
placards probably have stuff inside that will burn. This is not
an inherently mysterious thing.
Information is very important to the public. People want to
understand what risks they face.
We have a choice. Either we can have reliable information,
we could have information that comes from a Government program
in a data base accessible by people who are interested, or we
could have rampant speculation and guesswork. I have faced
rampant speculation and guesswork about accident scenarios. I
have listened to people describe to planning and zoning
commissions outrageous possible incidents that can occur from
facilities.
Absent access to a reliable data base, I have no good way
to refute that, other than calculating the worst-case scenario,
myself--which I am capable of doing; I can do that under this
rule. I can do the same thing a company does, but I am not at
all certain that I can, then, publicly discuss that without
being a criminal. That is a significant problem.
I want to close by saying that there is an obligation of
the Clean Air Act called the ``general duty clause.'' Risk
management plan is only a small subset of how a company might
demonstrate its compliance with the general duty clause.
Companies are clearly required for their own facility's
security to prevent accidents, to take the other steps and
measures they need to, to keep accidents from happening. Okay?
I am terribly troubled by the concept that what we are
doing here is, in fact, enhancing facility security. In fact,
the bulk of facility security issues, accident prevention
issues, emergency management issues are inherently local. They
are a conversation between our HAZMAT team--which is, by the
way, a 501(c)(3), so I don't know that I could discuss this
stuff with them--and that facility, and the LEPC in that
facility.
If I don't have access to information, if I am not certain
what is going on in that facility, then you are going to need
something else, much along the lines of what has been suggested
by Representative Waxman. And I certainly don't believe that we
ought to substitute command and control programs on that scale,
of what is inherently a local matter.
Thank you. I would be happy to take questions.
[The prepared statement of Timothy R. Gablehouse follows:]
Prepared Statement of Timothy R. Gablehouse, Chair, Jefferson County
Colorado Local Emergency Planning Committee and Member, Colorado
Emergency Planning Commission
Mr. Chairman and Members of the Subcommittee, I very much
appreciate this opportunity to testify regarding the proposed bill,
``The Chemical Safety Information and Site Security Act of 1999.'' My
comments today will focus on the practical problems and difficulties a
Bill such as this will create for the men and women who work and live
in the communities of this nation and are engaged in emergency
preparedness and response.
As with the Emergency Planning and Community Right-to-Know Act, the
burden and responsibility of understanding and working with the federal
emergency planning and response programs falls to the people at the
local level. It is at this local level that Local Emergency Planning
Committees operate. LEPC members include government employees, members
of the public, representatives of facilities, consultants and even the
press. I have been a member of the Jefferson County Committee since it
was formed in 1987 and have been its chair for over four years.
As an LEPC chair I am required to discuss emergency planning and
preparedness issues with a wide range of individuals and groups. These
include elected officials, response agencies, emergency medical
services groups, hospitals, schools, the business community and the
public. The Emergency Planning and Community Right-to-Know Act requires
me to disseminate emergency planning information to the public. The
Colorado open records statute also makes all of the information
possessed by the LEPC public information and accessible to the public.
Possible accident scenarios are an important part of the emergency
planning and preparedness information that needs to be communicated. We
need to anticipate and plan for the type of incident that can occur at
a facility. Either through the work of the response agencies, our own
calculations or by direct request to the facility, we obtain and
communicate accident scenario information for preparedness purposes.
While not necessarily identical to the off-site consequence information
of the EPA Risk Management Planning Program, the information has the
same intent and is quite similar.
When it comes to risk management plan information we already have
members of the public asking for off-site consequence data. Some have
even made efforts to calculate it themselves from other information
already available. The off-site consequence data will be of great value
for emergency planning and preparedness and it should be expected that
responders, planners and public will be interested and want the
information.
This proposed Bill will greatly complicate this process and will
interfere with this communication. If passed, I am likely to be in
violation and subject to its sanctions. At the very least this Bill
will be in direct conflict with the requirements imposed on LEPCs by
other statutes, federal and state. This is not a statement made out of
some zealotry, but rather a statement of the problems I and other LEPC
chairs and members will face from the conflicts of law this Bill
creates.
Some examples are appropriate:
--It is very uncertain whether or not an LEPC chair or its members are
State or local officers. They are typically not employees.
--We cannot tell whether or not ``official uses'' include our emergency
planning and preparedness functions under the Emergency
Planning and Community Right-to-Know Act nor whether or not it
includes discussions with responders, the public and others.
--As an LEPC we will want to obtain all of the risk management plans
for facilities in our area and all of the plans for facilities
that have off-site consequences that impact our area, including
those that cross state boundaries. This bill does not
necessarily provide a mechanism where we will actually obtain
the information.
--An LEPC will want to manage this information electronically. It is
very unclear whether an LEPC can convert the information to
electronic form and then disseminate the information to all the
various groups that use the information.
--If I am in possession of risk management plan information, regardless
of how it was obtained, I am apparently barred from disclosing
the information, which would be a violation of the Emergency
Planning and Community Right-to-Know Act as well as State
statutes. It would appear that a violation potentially occurs
even if the information is obtained directly from the facility
or when our LEPC meets to discuss emergency preparedness
matters.
--LEPCs in State border areas are apparently barred from talking to
each other about cross-boundary emergencies. They are already
working on these issues and this Bill could bring these efforts
to a halt.
--We have no idea what ``an electronic means of ranking stationary
sources'' means and so it would be very difficult to know if
our electronic database would be lawful.
--If I as an LEPC chair calculated off-site consequence information
from other data supplied by a company, or if the company
supplies me the information directly, I am apparently barred
from communicating this information to a community group or
school as part of shelter-in-place or evacuation discussions.
It is not possible to have a meaningful conversation with
community groups about how to protect themselves if we do not
discuss the accident scenarios they may face. We have these
conversations now and they will undoubtedly continue. It is
frankly unbelievable that Congress would attempt to restrict my
``speech'' on these topics especially if I generated the
information.
--Apparently I have to follow EPA guidance on how to disseminate
information or suffer sanctions under this Bill. There is no
provision made in this Bill regarding how I will learn of this
guidance, be able to comment on its development or otherwise
determine when or how I might violate this guidance. It is very
troubling that I might be subject to criminal sanctions for not
following something as ephemeral as guidance. It is
additionally troubling that this guidance will not even be
subject to judicial review regarding fundamental issues
relating to due process.
--Many LEPCs include as their members representatives of companies that
are preparing risk management plans. Under this Bill those
members appear to be subject to criminal sanctions for
disclosing the information in their plans to the LEPC or the
public.
It also is appropriate to point out to Congress that this sort of
information is already being disclosed by LEPCs and facilities. In the
Denver Post for this past Sunday there was a lengthy article on the
risk management plan program as being implemented in Adams County,
which is next to Jefferson County and runs across the Northern part of
the Denver Metro area. In this article, the LEPC and facilities discuss
worst case scenarios and report on a video they have made to depict
these scenarios.
The intent of this project is reported by the LEPC Chair as ``an
attempt to educate the public and allay unwarranted fears.'' An
industry spokesman is quoted as describing his facilities' worst case
scenario as ``If the leak happened on a day during a temperature
inversion with light winds, a tear-shaped gas plume could spread as far
a s15 miles.'' He went on to say ``Some feel its silly to give a
blueprint of a company's vulnerable points to potential terrorists and
saboteurs, but any terrorist group worth its gunpowder probably already
has that kind of knowledge.''
Rather than promote this sort of communication, it appears that
this Bill would not only prevent this exchange but probably criminalize
it. This is not consistent with the position I heard industry
representatives take before this Subcommittee. In fact, I believe that
those representatives agreed that the LEPC was a key player in
understanding and using risk management plan information.
It seems that the people proposing this Bill believe that there is
no legitimate reason for members of the public to know about the
accidents scenarios, prevention plans and emergency response procedures
practiced in the rest of the country or even the next county or State.
In my part of the country it is the public that is performing the
function of accident preparedness and prevention. It is the public that
are members of volunteer fire departments and local emergency planning
committees. There is no valid distinction between members of the public
at large and the people that perform these functions.
We learn from what we see others doing. It is precisely the
information that we can obtain from other States and companies that
helps us improve. We use this information to prepare better plans and
to ask better questions of facilities about accident prevention
techniques.
The fundamental truth, that is sometimes lost in this debate, is
that facilities are responsible for their own security and accident
prevention. The study I have conducted of this issue leads me to the
conclusion that there is nothing in the 112r program and potential
posting of information on the Internet that interferes with a
facility's ability to perform these functions. The information
submitted under the 112r program does not describe how to cause a
chemical accident. The information does not describe the security
systems that facilities have in place.
If this Bill is adopted it we will lose the impact of public
awareness and involvement in the accident prevention arena. Instead of
a program that relies on local people interacting with local facilities
to provide an impetus to accident prevention, we will have a void.
While my preference is local cooperation a viable program is dependant
upon public access to information, the only other obvious approach is
command and control. In that case it would be important to adopt
something along the lines of the ``Chemical Security Act of 1999''
proposed by Representative Waxman.
EPA has already decided not to post the off-site consequence
information on the Internet. I am prepared to live with that decision
only because the full information will be available at the State and
local level. This Bill destroys that potential. Off-site consequence
information is desired and any vacuum will be filled. I believe that it
is more dangerous to promote misinformation than it is to take the risk
that someone will misuse accurate information. This Bill is unnecessary
and inappropriate.
Mr. Deal. Thank you.
Mr. Sloan.
STATEMENT OF THOMAS W. SLOAN
Mr. Sloan. Thank you, Mr. Chairman.
I am Tom Sloan, State librarian of Delaware. It is an honor
to be here today, and I am here on behalf of the American
Library Association.
My remarks relate to section 2, the distribution of EPA
information to libraries that participate in the Federal
Depository Library Program.
The issues addressed in this bill regarding public access
to Government information are extremely important to libraries
and the people and communities we serve. If enacted, H.R. 1790
would require that Federal depository libraries provide
qualified or limited access to the EPA information on risk
management plans and other EPA information that would be
authorized to be publicly available.
In its current form, H.R. 1790 would cause serious problems
for the Nation's depository libraries because this EPA material
would not be available to library users, as required under USC
title 44.
Since the establishment of the Federal Depository Library
Program in the early-19th century, this unique program has
evolved to become one of the most effective, efficient, and
successful partnerships between the Federal Government and
America's libraries. The depository program provided nearly 15
million copies of over 40,000 publications to more than 1,300
Federal depository libraries in fiscal year 1998. There is at
least one Federal depository library in almost every
congressional district. These libraries choose materials based
upon the local needs of the people and the communities they
serve. Fifty-three depository libraries are regional
depositories and must accept all materials provided through the
depository program.
Title 44 of the U.S. code provides for a wide array of
Government publications to be provided to depository libraries
for public access. Section 1902 requires that all Government
publications of public interest and educational value be made
available to depository libraries except those classified for
national security or those required for official use only or
for strictly administrative or operational purposes.
Participating libraries agree to provide free access to
Federal Government information required through the depository
programs. Libraries expend substantial local resources in
processing, organizing, disseminating, and preserving Federal
Government information. Library costs include providing highly
trained staff, adequate space, necessary supplemental
materials, costly equipment, and Internet connections. You can
see that the infrastructure of our Nation's libraries and the
specialized expertise and network of Federal depository
libraries is a special national resource for the dissemination
of Federal Government information.
These depository libraries are part of a partnership
between the Federal Government and local institutions and
communities that assure public access to U.S. Government
information.
I will make several key points in my testimony regarding
the provisions for public access to EPA information.
First, as librarians, we oppose any restriction on the
access to or use of information by library users, nor would we
agree to the collection or maintenance of records identifying
individuals who access or use such information.
Second, with many other groups, we have supported the
public's right to chemical accident information. We believe
that the American public is entitled to access chemical hazard
information that will be collected and compiled by the EPA.
Third, restrictions on the use of Government information
result in barriers between users and the information they need.
H.R. 1790 mandates providing chemical hazard information in
Federal depository libraries, but it does not allow it to be
copied. No policy is going to stop the reality of copying
occurring in 1,351 different libraries across this country.
H.R. 1790 authorizes the collection and maintenance of
records that reflect the identity of individuals and persons
seeking chemical hazard information. Such a procedure is likely
in violation of many State statutes protecting the privacy and
confidentiality of the records of library users. For example,
in my State, the Delaware code protects the confidentiality of
library records that identify users and the materials that they
use. In Delaware, a court order is required for any exception
to this provision. This is typical of many other States.
To make Government information available in depository
libraries and yet not allow for copying or certain kinds of
uses that would otherwise be legitimate is simply not possible
to implement and enforce in 1,300 libraries across the country.
Nor is it feasible to limit access only to paper copies when
electronic formats may be available.
Depository libraries do not have the ability to control
legitimate user behavior of Government information. For
example, how does a library staff member answer the question
of, is this official use or unofficial use of the information?
Further, it is not appropriate to put depository librarians and
other library employees at risk of liability and fines or jail
time for perceived failure to comply with the requirements of
this bill.
I am not aware in the 16 years that I have worked in
Federal depository libraries of any previous item which has
been provided through this program with such restrictions. The
restrictions in this bill will set a very disturbing and
dangerous precedent.
In the 1,352 Federal depository libraries located in nearly
every congressional district, we provide your constituents with
equitable, ready, and no-fee access to Federal Government
information. The library community is committed to upholding
the principles we share with you in providing public access to
Government information.
We urge you to uphold the requirements of the Federal
Depository Program which states that depository materials
should not be compromised by the imposition of fees or by any
other conditions or restrictions regarding their use.
We offer to share with you further information about the
many practical problems depository libraries will face in
implementing H.R. 1790.
In summary, as proposed, this bill places unreasonable
restrictions on the use of library materials and may violate
State statutes protecting library user information. Further,
infractions of H.R. 1790 place depository librarians and other
library employees at the risk of liability and fines or jail
time.
We stand ready to work with all stakeholders involved with
the critical issues identified in H.R. 1790.
Thank you for this opportunity to speak.
[The prepared statement of Thomas W. Sloan follows:]
Prepared Statement of Thomas W. Sloan, Director, Delaware Division of
Libraries on Behalf of the American Library Association
Good afternoon. I am Tom W. Sloan, Director of the Delaware State
Library, and I am honored to appear before the House Subcommittee on
Health and Environment today on behalf of the American Library
Association. ALA is a nonprofit educational organization of 57,000
members, including librarians, library educators, information
specialists, library trustees, and friends of libraries representing
public, school, academic, state, and specialized libraries.
I have been invited to appear before you today to address
provisions of H.R. 1790, the Chemical Safety Information and Site
Security Act of 1999, that relate to Section 2 (c) and the distribution
of offsite consequence analysis information to libraries that
participate in the Federal Depository Library Program.
The issues addressed in this bill regarding public access to
government information and the public's righttoknow are extremely
important to libraries and the communities we serve. If enacted, H.R.
1790 would require that Federal depository libraries provide qualified
or limited access to the EPA information on risk management plans and
other information that would be authorized to be publicly available. In
its current form, H.R. 1790 would cause serious problems for the
nation's depository libraries because this material, under U.S.C. Title
44, should be freely and fully available to all depository library
users. This proposal will not work in the 1,351 Federal depository
libraries across the country.
The principles of access to government information were first
articulated and endorsed by our Nation's founders who believed them to
be inherent to our democratic society and a necessary means of enabling
our citizens, as taxpayers, to hold their government accountable. Since
the establishment of the Federal Depository Library Program (FDLP) in
the early 19th century, this unique program has evolved to become one
of the most effective, efficient and successful partnerships between
the Federal government and the American public.
The FDLP program provided nearly 15 million copies of over 40,000
publications to the 1351 libraries in the depository program in FY'98.
There is at least one selective depository library in almost every
congressional district that choose materials based upon their local
needs and specialized collections. Fifty-three depository libraries are
``regional'' depositories and must accept ALL materials provided
through the FDLP.
Title 44 of the U.S. Code provides for a wide array of government
publications to be provided to depository libraries for public access.
Section 1902 requires that all government publications of public
interest and educational value, except those classified for national
security, or those required for official use only or for strictly
administrative or operational purposes, be made available to depository
libraries.
Participating libraries agree to provide FREE access to the federal
information they receive at no cost, but, they must provide the
resources to receive and process the materials, catalog and organize
the materials for effective use within their institutions by their
clientele, and then assist people in the process of identifying and
locating the information they need.
You can see that the infrastructure of our nation's libraries, the
specialized expertise of librarians, and the network of federal
depository libraries, are a special national resource for the
dissemination of Federal government information. These depository
libraries are part of the partnership between the Federal government
and local institutions and communities that assure public access to the
information produced by the U.S. government.
I will make three key points in my testimony regarding the
provisions for public access to risk management plans submitted to the
Environment Protection Agency (EPA):
First, as information specialists and public access advocates, we
believe that the American public is entitled to the information related
to chemical hazards that will be collected and compiled by the EPA.
Second, as librarians, we would oppose any restrictions on the
access to or use of information products by our patrons, nor would we
agree to the collection or maintenance of records identifying
individuals who accessed or used such information.
Third, as librarians serving the public in Federal depository
libraries, we know first-hand, on a daily basis, the importance and
impact that government information has on the health and lives of all
Americans, on the economic wellbeing of our nation and on the
preservation of our democracy.
Regarding the first point, with many other groups, we have
supported the public's right to know about chemical accident risks. We
believe that the American public is entitled to the information related
to chemical hazards collected and compiled by the EPA.
Regarding our second point, restrictions on the use of government
information place service and other barriers between users and the
information they need, and may inhibit users from going through special
procedures to ask for them. Having to ask whether a potential user
meets required qualifications in order to use certain government
information would be in violation of most libraries' own policies. It
may well be in violation of state statutes protecting the
confidentiality of library records identifying users. Almost all states
have adopted such statutes.
For instance, the Delaware Code protects the confidentiality of
library records that identify users, and requires a court order for any
exceptions to this provision. This is typical of many state statutes.
To make government information available in depository libraries,
and yet not allow for copying or certain kinds of uses that would
otherwise be legitimate is simply not possible. Nor it is feasible to
limit access only to paper copies when electronic formats may be
available. Depository libraries do not have the ability to control
legitimate user behavior of government information they make publicly
available in their collections, which raises the question of who
defines and what is ``official use''? And, the imposition of any type
of fees violates the principles of ``no-fee'' public access.
Further, it is not appropriate to put depository librarians and
other library employees at risk of liability and fines or jail time,
for perceived failure to comply with the requirements of this bill.
I am not aware of any previous item that has come through the
Federal depository library program with such restrictions. The
restrictions in this bill would set a very disturbing and dangerous
precedent are are unworkable at a very practical level.
Third, public access to government information is a basic right of
the American public based on principles that Congress and the library
community have long affirmed are essential to our democratic society.
As stated by Thomas Jefferson in 1816, ``If we are to guard against
ignorance and remain free, it is the responsibility of every American
to be informed.'' Since the establishment of the Federal Depository
Library Program (FDLP) in the early 19th century, this unique program
has evolved to become one of the most effective, efficient and
successful partnerships between the Federal government and the American
public. Your constituents have equitable, ready, efficient and nofee
access to Federal government information, created with their tax
dollars, through the collections and services provided by their local
depository libraries.
The success of the FDLP cannot be measured without acknowledging
the substantial costs that participating depository libraries expend in
order to provide your constituents access to federal government
information in both print and electronic formats. These costs include
providing highly trained staff, adequate space, necessary additional
materials, costly equipment, and Internet connections. In addition,
depository librarians are committed to upholding the principles of
public access and the requirements of the Program that unequivocally
state that access to depository materials should not be by compromised
by the imposition of fees or any other conditions or restrictions about
their use.
We stand ready to work with all stakeholders involved with this
critical issue as debate on this moves forward. Thank you for the
opportunity to be here today.
Mr. Deal. Thank you.
Mr. Strader.
STATEMENT OF LOWELL P. STRADER
Mr Strader. Mr. Chairman, members of the committee, I will
try to make my remarks very brief and without being repetitive
of what has already been said.
My name is Lowell Strader; I am an international
representative of the PACE International Union, which stands
for the Paper, Allied-Industrial, Chemical, and Energy Workers
International Union.
Our union represents 320,000 workers who are employed
nationwide in the paper, allied-industrial, chemical,
pharmaceutical, oil refining, and nuclear industries.
Thank you very much for the opportunity to appear before
you today.
Our organization is deeply concerned about the discussions
and proposed legislation surrounding the issue of the
Environmental Protection Agency not providing full disclosure
of risk management plans which contain the worst-case
scenarios.
In order to have effective, ongoing hazard reduction, we
feel these plans must be fully disclosed in any form needed to
encourage safer technologies, protect the public's right to
know, and to overcome the complacency of the chemical industry.
In the past, industry has not been required to produce any
serious plan and timetable to reduce hazards. Yet, about 85
million people live within a 5-mile radius of a risk management
plan facility.
The Clean Air Act requires the EPA to make this information
available to the public. Members of our organization are the
very first respondents to the site of a manufacturing accident
that occurs in a facility where they work.
We feel there has not been enough effort placed on hazard
reduction to allow us to readily accept limited disclosure
about hazard materials that our members work with.
Year after year, large numbers of people are killed or
injured in chemical accidents, not to mention the number of
others that suffer long-term consequences by being exposed to
the dangerous chemicals.
As recent as last Thursday at the Coastal Corporation
Refinery in Corpus Cristi, Texas, an explosion hospitalized at
least 10 people. The emergency management officials advised the
local residents to shut their doors and windows and to remain
inside.
The TV news reports aired interviews with members of the
community who voiced concern that they were unable to find out
what chemical agents they had been exposed to. At least one
news agency indicated to the viewing public that these concerns
would end in June when the law would require full disclosure of
this type of information to the public. Little did they know or
report that there was proposed legislation which would not
require full disclosure.
We believe that there are many valid and important uses for
risk management plan information by people who work and live
and conduct business well beyond the immediate community where
a facility is located. On the other hand, we do not believe
that this disclosure would jeopardize or increase the risk of
sabotage or terrorism. Industry has agreed that keeping this
information off the Internet would not deter a professional
terrorist.
Risk management plans containing worst-case scenarios do
not include any information about how an industrial facility
may be sabotaged. There is no technical data about how to cause
a worst-case event. There is no tank locations listed. In
addition, there is no plant security information; there is no
classified information contained. Anyone can get readily
available information regarding the largest and most dangerous
facilities that store chemicals without using the Internet. In
addition, keeping worst-case scenarios off the Internet offers
no real protection to the communities. They can only be
protected by industry using safer chemicals, reduce dangerous
storage, widen the buffer zones, and provide full information.
Chemical accidents have no respect for geographic
boundaries. We must have the freedom to communicate risk
management plans across State lines to educate and help protect
our members in the community.
Mr. Chairman, members of the committee, let us remind
ourselves that it is not the knowledge that is harmful, rather
it is the lack of knowledge that is deadly to the people that
we should all be interested in protecting.
Thank you again for allowing me the opportunity to speak on
behalf of the PACE International Union to explain our position
on this very important issue.
Thank you.
[The prepared statement of Lowell P. Strader follows:]
Prepared Statement of Lowell Preston Strader on Behalf of the Paper,
Allied-Industrial, Chemical and Energy Workers International Union
Mr. Chairman, Members of the Committee, my name is Lowell Preston
Strader. I am an International Representative of the Paper, Allied-
Industrial, Chemical and Energy Workers International Union, better
known as PACE. Our union represents 320,000 workers who are employed
nationwide in the paper, allied-industrial, chemical, pharmaceutical,
oil refining and nuclear industries. Thank you for the opportunity to
appear before you today.
Our organization is deeply concerned about the discussions and
proposed legislation surrounding the issue of the Environmental
Protection Agency (EPA) not providing full disclosure of Risk
Management Plans (RMPs). The question of full disclosure of Risk
Management Plans is of vital importance to our organization, our
members and the communities in which they live. In order to have
effective, ongoing hazard reduction, we feel these plans must be fully
disclosed to encourage safer technologies, protect the public's right
to know and to overcome the complacency of the chemical industry. In
the past, industry has not been required to produce any serious plan
and timetable to reduce hazards.
The Clean Air Act requires the EPA to implement a program to assist
in the prevention of chemical accidents. As a result, EPA developed the
Risk Management Program Rule. This rule requires approximately 66,000
facilities that manage sufficient amounts of hazardous materials to
develop a RMP and file it with the EPA. These facilities include
chemical manufacturers, refineries, water treatment facilities, ammonia
refrigeration, propane storage, and semi-conductor fabrication. About
85 million people live within a five-mile radius of a RMP facility.
The Clean Air Act also requires the EPA to make this information
available to the public. Our organization became very concerned when we
discovered that EPA had made the decision on November 6, 1998 to not
allow full access to RMP information. Through joint correspondence with
other groups to EPA Administrator Carol Browner, we have expressed our
concern about EPA's unwillingness to provide full access to Risk
Management Plans.
The members of our organization are the first respondents to the
site of a manufacturing accident that occurs in the facility where they
work. Their worksite may also be next door, across the street, or miles
away from a site where an incident occurs, but still close enough to be
affected. We feel there has not been enough effort placed on hazard
reduction to allow us to readily accept limited disclosure about
hazardous materials that our members work with and/or live near.
There is also the issue of manufacturing security. It is to our
advantage, as an organization that represents workers in this arena, to
be able to say to workers, their families and their communities that
these facilities have nothing to hide. We would like nothing better
than to be able to honestly tell workers that these facilities are
working to reduce hazards and that their RMPs are available in any form
necessary in order to prove that the facilities are really working
towards true hazard reduction.
Although the numbers may vary depending on the source of statistics
and period of time examined, there is no doubt about the effects of
chemical accidents on the human body. Year after year, large numbers of
people are killed or injured, not to mention the number of others that
suffer long-term consequences by being exposed to certain substances.
As of February 3, 1999, the Chemical Safety Board was reviewing or
investigating accidents in Arizona, Arkansas, California, Florida,
Georgia, Idaho, Iowa, three in Louisiana, two each in Maryland,
Michigan, Missouri, New Jersey, New York, Ohio, Oklahoma, Oregon,
Pennsylvania, South Dakota, Texas, and Washington State.
As recent as last Thursday an explosion at the Coastal Corporation
refinery in Corpus Christi Texas hospitalized at least 10 people.
Emergency management officials advised local residents to shut their
doors and windows and remain indoors. TV news reports aired interviews
with members of the community who voiced concern that they were unable
to find out what chemical agents they had been exposed to. At least one
news agency indicated to the viewing public that these concerns should
end in June when the law would require that this type of information be
made public. Little did they know or report that there was legislation
proposed to not require full disclosure.
We believe that there are many valid and important uses for RMP
information by people who live, work and conduct business well beyond
the immediate community where a facility is located. RMP information
can be useful in the following ways:
Successful hazard reduction at one facility can be used to
lower the hazards at similar facilities in different states;
Verify reported information by comparing data submitted
elsewhere;
Hold government accountable for reducing hazards nationwide;
Develop studies on chemical hazards;
Develop effective accident prevention programs;
Conduct effective education and training programs;
Link other worker safety and health databases; and
Determine which facilities might pose ``Year 2000'' risks.
We strongly believe that our members, their families and the
communities they reside in will be made safer by these full disclosures
or the RMPs. We do not believe that this disclosure would jeopardize or
increase the risk of these facilities to sabotage or terrorism.
In earlier discussions with the EPA, the industry agreed that a
``professional terrorist'' would not be deterred by keeping this
information off the Internet. (For earlier discussion, see www.epagov/
swcrccpp/pubs/rmp-rpt.html and look under Section 2.B. ``Location of
RMP* Info (Internet Issues).
Risk Management Plans do not include any information about how an
industrial facility may be sabotaged. There is no technical data about
how to cause a ``worst case'' event and no tank locations are listed.
In addition, there is no plant security information, and no classified
information. Anyone can get readily available information regarding the
largest and most dangerous facilities that store chemicals, without
using the Internet. Also, keeping worst case scenarios off the Internet
offers no real protection to communities. Communities can only be
protected when companies use safer chemicals, reduce dangerous storage,
widen buffer zones and provide full information.
Chemical accidents have no respect for geographic boundaries. We
must have the freedom to communicate concerning chemical hazards, if we
are to have real hazard education. Only with full disclosure of
information and opportunities to act can facilities, employees and
communities reduce chemical hazards.
In conclusion, I would like to reiterate the following points:
Industry should and must create a serious quantifiable plan
and timeline to reduce hazards; and
Full disclosure of RMPs is the essential key to access the
impact of hazard reduction programs and activities.
Mr. Chairman, Members of the Committee, let us remind ourselves
that it is not the knowledge that is harmful, rather, it is the lack of
knowledge that is deadly to the people that we all should be interested
in protecting.
Thank you again for allowing me the opportunity to speak on behalf
of the PACE International Union to explain our position to you today on
this very important issue.
Mr. Deal. Thank you.
Thanks to all the panel members.
We will start the questioning.
Mr. Wheatley--or Chief Wheatley--as I understand it, you
generally support the administration's bill, but believe there
needs to be some fine-tuning in order to make certain as to
what information is available to local emergency responders. Is
that generally correct?
Mr. Wheatley. Generally, sir, that is correct.
Mr. Deal. And that further refining, with regard to what is
and is not going to be a criminal violation of any provisions
under the bill?
Mr. Wheatley. Yes. The term ``guidance'' needs to be
further defined to explicitly determine what is and what is not
a criminal activity.
Mr. Deal. Do you feel that reasonable definitions and
restraints can be placed in this with some additional language
in the bill?
Mr. Wheatley. We do.
Mr. Deal. All right. So you generally support the concept
of the legislation, I assume?
Mr. Wheatley. We do.
Mr. Deal. Mr. Susman, you have expressed the same concern
that we have heard the Justice Department and others express,
with regard to the fact that if we don't do something by the
June 21 deadline, as I understand it, that there exists the
possibility of the worst-case scenario information being placed
on the Internet by others than through the official channels.
Do you have that very real concern?
Mr. Susman. Yes.
Mr. Chairman, the Government agencies involved looked at
this over quite some time to try to figure out whether it was
possible under present administrative mechanisms to create
obstacles to what they consider the worst-case disclosure
scenario, which is electronic, universal availability of the
offsite consequence data.
There is no way to prevent that under present law. The
Clean Air Act, operating along with the Freedom of Information
Act, will require disclosure in electronic format after the
21st, if Congress doesn't act.
Mr. Deal. Did I understand you to further say you would
propose that EPA go through a formal rulemaking process as a
way for providing some further definitions in some of these
areas that are unclear?
Mr. Susman. Yes, sir. The bill is unclear as to when EPA
should use rulemaking. It allows it to use guidance for
everything and then says, ``Oh, by the way; you can make rules,
also.'' The main difference, of course, is that rulemaking
requires advanced publication, public comment, and an
opportunity for judicial review. And all of this can be
compressed; there are procedures where this can be done
quickly, procedures for interim final rules that would allow
all of the due process and judicial review without undue delay.
Mr. Deal. All right. Thank you.
Mr. Brown.
Mr. Brown. Thank you, Mr. Chairman.
Mr. Gablehouse, welcome back for your quarterly trip to
this committee on this issue.
We heard testimony during the February oversight hearing
that some local emergency planning officials, State emergency
planning officials, and even private citizens can construct
worst-case scenarios utilizing information that is available to
the public today like toxic release inventory information. And
some have already posted that information on the Internet. In
other words, worst-case scenario information can be created
independent of the section 112 submissions. It is already out
there; it is perfectly legal, apparently, to put it on the
Internet. Correct?
Mr. Gablehouse. Yes, sir; that is correct. It can be done.
It is done.
Mr. Brown. Why is it fair, then, to subject State and local
officials to criminal sanctions for electronically distributing
this specific worst-case scenario information given to them
under section 112, but not anyone else who may construct and
electronically distribute their own worst-case scenarios
utilizing other information they might gather?
Mr. Gablehouse. Well, it is certainly not fair, nor is it
likely constitutional to do that. I think that, as a practical
matter, we are trying to promote with the LEPC's, communication
with communities on accident prevention and emergency response,
be it shelter-in-place requirements or zoning and land use
requirements. And I think it does not make sense to penalize
the local folks who are trying do this work in communicating
with the people at the local level who are interested.
Mr. Brown. Mr. Strader, I appreciate your comments about
potential accidents at chemical plants. And the Chemical Safety
Board estimates that 600,000 chemical incidents occurred over a
10-year period between 1987 through 1996. Your testimony states
that, ``large numbers of people are killed or injured in
chemical accidents.''
Can you provide us with some idea of the numbers of workers
who have been injured or who have died in work-related chemical
accidents?
Mr Strader. Off the top of my head, the last 3 months of
1998, we lost 20 people--20 workers--as a result of industrial
chemical accidents.
And in the plant that I came out of, we lost several
people, because our job was to produce TNT, nitroglycerine
missile propellent, for the Government, and we lost several
individuals there because of that.
Mr. Brown. Can you tell us about that?
Mr Strader. Well, at that time, this--the company that was
in charge when I worked there, they would not work with the
workers as far as sharing information.
Mr. Brown. This was where and when?
Mr Strader. This was at the Radford Army Ammunition Plant,
in Radford, Virginia. I worked there for 24 years, from 1966
until 1990--from 1966 until 1990.
As a good example, a father of seven children who I worked
with closely every day on the same shift, he was in a building
which contained two tanks of nitroglycerine--each tank
containing 2,500 pounds of nitroglycerine. I live with this
incident; it is a very emotional incident with me, because that
was my job. And 3 months prior to that, I did, through another
part of the plant under the contract, and he took over my job.
This building containing the tanks of nitroglycerine exploded.
The tremendous amount of heat that is generated by that type of
explosion destroyed the facility as well as the employee, and
my good friend.
The scenario that was put out by the industry at that time
was that a suspicion of sabotage and that he had climbed the
fence and left the plant.
It took an act of the General Assembly of the State of
Virginia to finally get this gentleman declared dead so that
his family could get the insurance money and his benefits.
The employees had to watch for birds to pick up pieces of
burnt flesh that looked like wood and tried to get the birds to
turn that loose so it could be turned over to pathologists to
determine that it was human.
I was a pallbearer at that funeral, and if anyone has been
a pallbearer at a funeral and knows what a casket weighs with a
body in it versus one with very small fragments, and especially
when it is a friend, it imprints in your mind forever. I live
with that guilt because he died instead of me of my working
life, but I doubt if the industry has lost one night of sleep
over it.
The bottom line is we now have another contractor in that
plant who works very closely--shares all the information,
whether it be worst-case scenario or what. We have developed
training programs together with labor and the company and--
knock on wood--we have been very successful in preventing
accidents since that time.
Mr. Brown. Could I ask for unanimous consent for an extra
minute, Mr. Chairman?
Mr. Deal. Yes.
Mr. Brown. Thank you.
So this--you feel like you have the information you need to
make this plant safer?
Mr Strader. Under the law that will have--go in effect in
June, we thought we would have.
Under this bill, we definitely feel we would be very
restricted. And we feel like that even the companies that want
to work with us will feel like they no longer can.
Mr. Brown. If--you have 320,000 members of your union?
Mr Strader. Yes, sir.
Mr. Brown. Actually, that is all OCAW in a merger with you?
Mr Strader. It was the former OCAW and the United
Paperworkers----
Mr. Brown. Right.
Mr Strader. [continuing] which merged into PACE in January
of this year.
Mr. Brown. Have any of your union workers, to your
knowledge, ever been injured in a terrorist attack on a
chemical facility?
Mr Strader. Not to my knowledge; no, sir. I know of none.
Mr. Brown. Okay. Thank you.
Mr. Deal. Mr. Bilbray.
Mr. Bilbray. Thank you, Mr. Chairman.
I guess I am sort of having feelings of deja vu, seeing
that in 1984, I took over the disaster preparedness for a
county in San Diego which was small--group of 2.8 million.
But I guess I would have to refer to the law enforcement.
One of the concerns that I was always confronted with by law
enforcement was this issue of the right to know and the
appropriate use of it.
Now we talk about terrorists as if they are somebody way
out there, somebody coming in from a foreign country. But I
would just ask the representative of law enforcement, you know,
over the last few months, haven't we learned a little bit about
the fact that the problem may not be something that is external
that comes into our country, but may be misguided individuals
who are in our community? A good example would be young men and
women that may be using the Internet for access to this
information to create havoc?
Mr. Pfeifer. Yes, sir; that is precisely one of our
concerns.
We can probably never eliminate risk, but we can certainly
try to minimize risk. And one of the ways we can do that is to
keep this sensitive information restricted to those that have a
need to know it and will apply it in a the proper way.
I don't believe it is the intent of the legislation to make
it difficult for law enforcement, emergency medical services,
or the fire service to train, to handle one of these situations
when they come up. But, certainly, we need to understand that
this information is very sensitive.
In the wrong hands, it can be very dangerous. And we used
the term here ``professional terrorist'' today. I am not sure I
know what a professional terrorist is, but I do know the harm
and the damage that someone can do with information in an
average intellect. And we have seen that happen before.
Unfortunately, we will probably see it happen again. My concern
is to limit the number of times it happens, and to enable us to
deal with it when it does happen.
Mr. Bilbray. Well, let me just tell you as a father of five
children. You can talk all you want about professional
terrorism, but I know the ability of young people to get
information--the ability to acquire it and to apply it. And,
frankly, I think there is a gross underestimating of just, you
know, what our young people can do if they are misguided,
especially when you have mental illness problems, substance
abuse problems, and everything else. And we are not talking
openly and frankly about that, and I think we ought to talk
about it. We are not talking about professionals who have been
trained outside of this country. We are talking about, you
know, individuals who are living with us, right in our
community.
I would--Orum, is it? Mr. Orum?
The administration has brought this legislation forward
because they identified what they think is a problem. And I
have worked with groups much like yours about trying to work
out these balances.
First of all, do you mind if I ask you what your background
is? Is it in environmental science?
Mr. Orum. I have a degree in political science from the
University of Oregon. I have worked for 10 years as coordinator
of the Working Group on Community Right-to-Know. My full-time
job is working with these right-to-know issues, and before
that, I worked with Clean Water Action as their Chesapeake
organizer for 3 years.
Mr. Bilbray. So, are you trained in the law profession?
Mr. Orum. No.
Mr. Bilbray. Political science?
Mr. Orum. Yes.
Mr. Bilbray. Okay.
I try to encourage people not to get into political science
if they want to get into politics, but that is my personal
hangup, because my brother was in political science, and he
ended up being a lawyer which was even worse.
The issue--I guess the issue of right to know and
reducing--how much of this do you see, working directly with
source reduction? And how much do you see where you have
basically people that make their money filing lawsuits under
this--you know, different clauses, like this right to know?
How many groups that you know basically have most of their
activity or most of their public--is in source reduction, as
opposed to the litigation side?
Mr. Orum. We work with about 1,500 different groups on and
off and depending on their intensity of involvement with
particular issues involving right-to-know around the country.
And it is almost always involved in somehow addressing the
actual problem at the site, as opposed to litigation.
I don't know of how this legislation would assist with
litigation. I really don't work on that side.
Mr. Bilbray. Well, that is to your credit.
Mr. Chairman, I yield back.
Mr. Deal. Mr. Waxman.
Mr. Waxman. Thank you very much, Mr. Chairman.
Under the law, chemical companies are supposed to let the
public know about their plans for an accident. And the accident
could be an explosion at the facility that could happen, or it
could be like we had in Bhopal, India--some chemicals getting
into the air and going into the surrounding community and
poisoning people.
These are accidents we don't want ever to have happen, and
one of the ways of preventing it is to ask the chemical
companies to come up with ideas on how to deal with this. If
the public has access to this information, it is real pressure
on the chemical companies to think through how to avoid this
sort of thing from happening. That is the purpose of the law.
Now what we are being told is, if the public gets this
information, terrorists will get the information. And I can see
that argument, but, on the other hand, we had a hearing last
week about .50 caliber sniper rifles. And these .50 caliber
sniper rifles can accurately fire armor-piercing incendiary
bullets several thousand feet, maybe as much as a mile away.
And these weapons are easily obtainable by people as young as
18, if they can afford it. It is obtainable, and terrorists,
presumably, can afford these things.
Now if you had a chemical facility--Mr. Susman, I guess I
should address this to you--the location of chemical plants are
not that hard to find out. And if there is a large propane fuel
tank, you don't have to have a lot of special expertise to
identify it. And if you are a terrorist, it is not going to
take that much to realize that you can do a lot of damage, that
some of these facilities are vulnerable. And this is all
publicly available already.
So, my question to you is, shouldn't we be doing more to
plan, to protect the sites that may be vulnerable to terrorism?
And that can be done through looking at security at the site,
screening of personnel, buffer zones to protect the surrounding
community, what is called ``hardening'' these facilities. I
mean these are important things to do in and of themselves.
We suggested that there be a task force convened to look at
how to protect these sites. Now, I would presume you would
think that would be a good idea?
We sent you a letter outlining our proposal. Did you----
Mr. Susman. Yes, Congressman. And, in fact, section 3 of
the legislation we are considering has a very comparable
approach for law enforcement agencies to drive that process of
looking at security issues.
Mr. Waxman. Well, the reason I would go to the stronger
provision is that the bill has a discretionary study. I would
mandate a task force.
But there is another point that I am trying to get to. And
I am thinking through this issue--is why should we set up the
most incredible roadblock for a lot of the public to get
information that is important for them to have for fear of
terrorism when what we ought to be addressing is how to protect
these facilities that may be vulnerable to a terrorist attack?
I mean I wouldn't want the public not to know about a
potential leak of poisonous gas from a chemical facility for
fear that a terrorist would know about it. And, yet, here is
the facility, and a terrorist would know here is a facility
that might be vulnerable. They may have one of these .50
caliber sniper rifles that can send an incendiary bullet in
there and blow the thing up.
So I am trying to balance out what we are accomplishing
with this legislation.
What I know we are accomplishing with this legislation is
we are going to make people who have the information possibly
criminally liable if they let the public know about it, and
that doesn't strike me as reasonable. I know with this
legislation, we are going to do something that is completely
unprecedented. We are going to have the information filed with
the libraries, but if anybody at the library allows a citizen
to copy the information in the library, they can be criminally
liable. This is--this doesn't strike me to be at the heart of
the first amendment, and also the purpose of the right-to-know
laws, which is the public ought to be participating in
information by getting information that will empower them to
see whether these facilities are doing what is necessary to
protect them.
Anybody want to respond to this?
Do we need to stop the public from knowing what you are
doing at the chemical plants, Mr. Susman, to protect them, in
order to stop terrorists, when terrorists have such an easy
target? And because they know where the chemical plants are,
shouldn't we be putting our focus on protecting those chemical
facilities that may be vulnerable to terrorists without their
ever having that knowledge of what is in a library?
Mr. Susman. Two answers--the first and most direct one is
that the public, locally, will have access under this
legislation. They will be able to get copies of the plans. They
will be able to look--they can get them from EPA or the State
government. We are not--we may be limiting the ability of a
national organization to go online and look at all of the
plans, but we specifically contemplate and CMA supports local
disclosure.
More importantly, Congressman, it seems to me that you are
setting this up as a--we have a problem here and why look
elsewhere? When we go to fight crime, just as when we go to
fight pollution, we try to approach--and Congress has
traditionally tried to approach the subject--by looking at a
variety of ways of dealing with it. With crime, we don't say,
``Well, let's raise penalties,'' and that is all we have to do.
We also try to put more police on the street. We also try to go
after gun issues. We also have disclosure laws like Megan's
Law. We fight crimes by a variety of different approach.
We now have an issue here of chemical plant safety or the
local population, two threats. One is disclosure through
accidents----
Mr. Waxman. Yes, but it seems to me----
Mr. Susman. [continuing] another is terrorism disclosure--
--
Mr. Waxman. [continuing] you are going----
Mr. Susman. [continuing] we ought to address both of them.
Mr. Waxman. You want to address both of them, but I am
worried that in addressing the issue of the community's right-
to-know, you are going over too glibly the ability of the
people in the community to really know this information.
Maybe Mr. Gablehouse could comment on that, because I want
to get a balance----
Mr. Susman. Sure.
Mr. Waxman. [continuing] of views on this, as we try to
make up our minds.
Will the public really get this information that everybody
seems to think they are entitled to?
Mr. Gablehouse. I think it is rather doubtful, frankly. For
example, it is not at all clear to me under this bill, that
even the local emergency planning committee can obtain the
information electronically. It is very difficult to manage if I
don't it electronically. It, obviously, impairs communication
of the information if I am not able to manage it in some sort
of an electronic format.
I think there is grave doubt here as to whether or not I
can share that information, in a photocopy, at a public
meeting, with members of the public present, and as has been I
think very poignantly testified to earlier. You know, there is
people right at the scene that are going to be most immediately
impacted. They are people that really do need to be a
participant in the accident prevention. So I believe,
Congressman, your point is very well taken.
Mr. Waxman. Is it the ``official use'' idea not being
defined? Is that the problem?
Mr. Gablehouse. Two issues that are problematic. One,
whether or not an LEPC is, in fact, a State or local official--
--
Mr. Waxman. Yes.
Mr. Gablehouse. or employee. And the second one is what
constituents ``official use?'' So I think there are a couple of
issues here that legally create difficulty for me.
Mr. Waxman. Mr. Chairman, my time is up, but I did want Mr.
Susman to be able to respond, if you would permit----
Mr. Deal. Without objection.
Mr. Waxman. [continuing] because I did interrupt him to get
another view.
Mr. Susman. I must be reading a different bill, because it
seems relatively clear that when the language says, ``the
Administrator may make available in electronic form offsite
consequence analysis information to a State or local government
officer.'' It is difficult to say I don't understand how States
can get hold of electronic information.
And when the bill says, ``that information may be paper
form, may be given out under restrictions, but may be given for
the State in which the office is located.'' I don't understand
how one can say that that is not provided in the bill.
So, either we are looking at different--this one is
numbered 1790. Either we are looking at different bills, or I
believe that these are sort of hypotheticals that aren't
included in the legislation.
Mr. Waxman. Well, I guess our fear is that the criminal
penalties that would be imposed on local officials who give out
information would keep them from ever giving anybody any
information for fear that they are going to be hauled into
court. That is a pretty chilling idea that you might be
breaking the law and be prosecuted for giving information to
the people we ultimately want to be sure they have the
information.
So I think we ought to continue to look at this issue,
because it is a troubling one. And maybe we are talking about
the same thing, but maybe we are not.
Thank you, Mr. Chairman.
Mr. Deal. I want to thank all the members of the panel for
their time today. We apologize for the delays because of the
votes. We do thank you for being patient and for your
testimony. Thank you for being with us.
The committee is adjourned.
[Whereupon, at 6:08 p.m., the subcommittee was adjourned.]
THE CHEMICAL SAFETY INFORMATION AND SITE SECURITY ACT OF 1999
----------
WEDNESDAY, MAY 26, 1999
House of Representatives,
Committee on Commerce,
Subcommittee on Health and the Environment,
Washington, DC.
The subcommittee met, pursuant to notice, at 2 p.m., in
room 2322, Rayburn House Office Building, Hon. Michael
Bilirakis, (chairman) presiding.
Members present: Representatives Bilirakis, Burr, Bryant,
Brown, Waxman, Pallone, Stupak, Green, DeGette, Barrett, Capps,
and Hall.
Staff present: Joseph Stanko, majority counsel; Anthony
Habib, legislative clerk, and Alison Berkes, minority counsel.
Mr. Bilirakis. The hearing will come to order.
Good afternoon. On behalf of Mr. Brown and myself, I would
like welcome our panel of witnesses to today's hearing on H.R.
1790, the Chemical Safety Information and Site Security Act of
1999. Today's hearing continues the subcommittee's examination
of H.R. 1790, and represents the second hearing that has been
held on this legislation.
Previously the subcommittee held a joint hearing on
February 10, with the Subcommittee on Oversight and
Investigations, concerning Internet postings of worst-case
scenarios. As I stated during our last hearing, it is my intent
to thoroughly examine the legislation drafted by the
administration; and yet to also meet the June 21 deadline of
enactment of this very important bill. This will require a lot
of hard work. But if we can work productively together--and I
am emphasize ``together''--the June 21 deadline presents an
achievable goal. It may be a difficult goal; but it is far from
an impossible goal, given the past history of this committee in
meeting its obligations to the full House, and to the American
people.
In this regard, efforts are already underway at the
committee's staff level to clarify drafting issues, and to
solicit changes from the administration concerning technical
language of this bill. I am hopeful that today's hearing will
provide further information and perspective concerning this
legislation, and will be helpful to the process of bringing the
bill to markup. I must reiterate: I have to be responsible,
here. We are running out of time.
Despite best efforts following last week's hearing--and
there have been many efforts for the past few days on the part
of both the minority and the majority--we did not have one
proposed change to H.R. 1790, which has been fully cleared by
the administration. Even though the administration spent
several months drafting the proposed measure; and even though
many changes did not touch upon the issues that will be
addressed by today's hearing, this situation clearly must
change. The administration must give this measure the priority
it deserves, and live up to the testimony it presented to this
subcommittee just last week.
This being said, I look forward to receiving today's
testimony, and acting quickly with regard to any additional
changes to H.R. 1790 which may become necessary. Obviously the
perspective of State and local government, as well as
interested citizens, is of great importance to our
consideration of H.R. 1790. Again, I want to thank our
witnesses for being here on relatively short notice. I would
now yield to Mr. Brown for an opening statement.
Mr. Brown. Thank you very much, Mr. Chairman. I am pleased
we are holding this additional hearing on the Chemical Safety
Information and Site Security Act, H.R. 1790. I am pleased to
be joined today by additional panelists to discuss the
complicated issues raised by this legislation. I want to thank
our witnesses, all of you, for coming on short notice;
especially Ms. Southwell, who I know overcame many challenges
to be here out of deep concern for the implications of this
bill for local emergency planning committees and citizens.
In my statement at last week's hearing, I outlined several
issues in H.R. 1790 that concerned many of us. Last week we
lacked a State perspective on the implications of this bill,
and the importance of community access to worst-case scenario
information. This hearing will help fill that gap. In addition
to testimony from the witnesses who are here, we have written
testimony for the record from local officials, including
Roxanne Qualls, Mayor of Cincinnati. Along with my opening
statement, I request unanimous consent, Mr. Chairman, to submit
a letter of testimony and two editorials for the record. The
letter, dated May 26, is from the Mayor of Cincinnati, as I
said. The letter is to the chairman and to me. The testimony is
from John Steiner, Vice Chairman of the Nebraska State
Emergency Response Commission. The two editorials are the May
20 and May 21 editorials from the Las Vegas Review Journal.
Mr. Bilirakis. Without objection.
[The information referred to follows:]
City of Cincinnati
Office of the Mayor
May 26, 1999
The Honorable Michael Bilirakis, Chairman
The Honorable Sherrod Brown, Ranking Member
Subcommittee on Health and Environment
Committee on Commerce
U.S. House of Representatives
Room 2125 Rayburn House Office Building
Washington, D.C. 20515-6115
Dear Congressmen Bilirakis and Brown: Thank you for inviting me to
speak before the committee today. I am sorry I am unable to attend the
meeting to testify in person, but the hearing conflicts with the
regularly scheduled meeting of the Cincinnati City Council. I
appreciate the opportunity to submit written comments regarding H.R.
1790, the Chemical Safety Information and Site Security Act of 1999.
The City of Cincinnati estimates that about a dozen Cincinnati
businesses maintain the threshold quantities of regulated substances
and therefore must submit their Risk Management Plans (RMP) to the EPA
next month.
The City of Cincinnati has worked hard to lay the groundwork for
the release of this information. The City realized early on that
communities could be stunned by the descriptions of the worse case
scenarios which could take place in their midst. We acted early to
prepare our community for the release of these reports.
On February 5, 1997, I proposed that the City of Cincinnati
establish a fund to provide technical assistance for communities to
review the Risk Management Plans. To help citizens better understand
the information in the RMPs, the City hosted four (4) workshops this
April for interested community groups. These workshops were geared to
help citizens understand the requirements of the EPA rule and to equip
community leaders to review and ask informed questions about
facilities' RMPs.
The City of Cincinnati is also researching the possibility of
compiling all of the RMP for the tri-state area and making these
available to the public at the local library.
The total impact of H.R. 1790 on these community education and
involvement initiatives is unclear. Most of the details regarding the
ability of local elected officials and staff members to communicate
honestly with citizens would be developed as part of the EPA's guidance
document, however, there is little doubt our public education and
awareness efforts would be significantly hampered.
I have four major concerns about the proposed legislation I hope
the committee will consider.
1. Cincinnati is part of a tri-state area comprised of Southwest
Ohio, Northern Kentucky and Southeast Indiana. It seems that Section 2
(c)(4) of H.R. 1790 would restrict the ability of these areas to work
together to address major concerns. It is unclear if the RMPs of
facilities in Kentucky and Indiana would even be made available to
environmental and safety personnel in the City of Cincinnati and vice
versa. This could greatly reduce our ability to prepare for any
potential accident and could increase the impact such a spill or leak
might create.
2. Criminal penalties for the release of information place local
staff and elected officials in a precarious position. It would be
unprecedented for local elected officials to face the possibility of
jail time based upon guidance from the EPA Administrator. Such a
proposal also puts public employees such as librarians, police,
firefighters and environmental management personnel at risk for
criminal prosecution.
3. While the total impact of H.R. 1790 is unclear, the legislation
in any form will hamper local community education and preparedness
efforts. The EPA Administrator's guidance on these matters is to be
developed without local government or public input and not subject to
judicial review.
4. From a practical standpoint, restrictions on the release of
information would create a bureaucratic nightmare and limit the
effectiveness of local safety initiatives. It is unclear what
information may be shared, with whom and in what formats. The term
``official use'' is nebulous and provides no true direction to guide
local officials. Would local administrators need to check with an EPA
database on public requests before they could release any information
to constituents?
Let me conclude by stating that the Risk Management Plans do not
create any additional risk. The risks already exist. Restricting the
information on the plans will only hamper the ability of cities and
residents to prepare for possible accidents and to work in partnership
with facilities to create safer communities. The creation of a national
database would enable Cincinnati to look at similar facilities and
determine the ``best practices'' in the field. The City could then work
with companies and communities to decrease safety risks locally.
Thank you once again for the opportunity to comment on this issue.
I appreciate your time and consideration.
Sincerely,
Roxanne Qualls
Mayor
______
Prepared Statement of John J. Steinauer, Environmental Engineer II, and
an Emergency Responder, Lincoln-Lancaster County Health Department,
Lincoln, Nebraska
Mr. Chairman, and Members of the Subcommittee, my name is John
Steinauer. I serve as an Environmental Engineer II and an Emergency
Responder for the Lincoln-Lancaster County Health Department in
Lincoln, Nebraska. I also serve as the vice-chairman of the Nebraska
State Emergency Response Commission as a representative of local
health. The LLCHD has long developed and implemented environmental
health programs that seek to reduce chemical hazards in our community.
In keeping with this record, LLCHD is currently seeking primary
responsibility for implementing the Risk Management Program under
Section 112(r) of the Clean Air Act (CAA) for Lancaster County from the
US EPA and participates in the implementation of several sections of
the Emergency Planning and Community Right-to-Know Act (EPCRA) as a
member of the Local Emergency Planning Committee for Lancaster County.
I also am assigned to the Department's biological-terrorism program
development team and am responsible for the associated coordination
with other Federal, State and local governments, and the private
sector.
Coning from both a local perspective, as the coordinator of a local
RMP program, and the state perspective, as the Vice Chairman of the
State Emergency Planning Commission, and as a professional with
thirteen years of experience in the emergency response and planning
field, I am pleased to have this opportunity to discuss the
Administration's proposed bill, ``The Chemical Safety Information and
Site Security Act of 1999,'' H.R. 1790. I strongly oppose this bill for
several important reasons:
1. The language in the bill is sometimes contradictory and is vague in
many of the important specifics regarding the use of electronic
OCA information.
2. The need for local governments to track requests for OCA data using
a national database would be unduly burdensome and costly.
3. This bill were it enacted would make it unlawful for LEPCs, created
by Congress under EPCRA, 1986, to conduct the required planning
and prevention efforts with the necessary and required
community participation and would prevent zoning and community
planning agencies from using the OCA data to determine zoning
actions in any public forum.
4. The concern about the potential increase in hazard from terrorist
use of OCA data is understandable but appears to be based on
overly sensationalized security concerns that clearly do not
justify a law that prevents good hazard planning in communities
across the United States.
The Language of the Bill
The language in the bill is contradictory concerning the EPA
administrator's ability to make electronic forms of the OCA data
available to State and local governments. Section 2 (C)(2) states that:
``The Administrator may make available in an electronic form
off-site consequence analysis information to a State or local
government officer or employee only for official use.''
Where Section 2(C)(4) states that:
``At the request of a State or local government officer acting
in his or her official capacity, the Administrator may provide
to such officer in paper form, only for official use, the off-
site consequence analysis information submitted . . .''
The LLCHD is strongly opposed to any language that would limit
local governments' ability to manage chemical hazard information in an
electronic form. The value of the electronic information comes with
it's incorporation into Geographic Information System (GIS) that allow
for extensive hazard analysis, use for community response planning, use
in zoning actions and community development planning, and use in
coordinating an emergency response were the need to occur.
National Database of Requests for Information
The limits on what the Administrator may make available to the
public under Section 2(C)(3) are overly ambiguous. The need to create a
national database to track requests for OCA data as required by Section
2(C)(9) would impose a significant burden on local governments working
with their communities in response planning. Section 2(C)(5) would
require that the local government follow the same guidelines as an
Officer of the United States. More importantly, there is no provision
for use of the information in public forum meetings.
LEPC Planning Activities Made Unlawful
Following the yet to be determined guidelines that would allow only
a limited number of copies of OCA data to be released to a single
requestor in a paper form or in any other form only as authorized by
the Administrator (Section 2(C)(7)), would make the chemical hazard
planning activities of Local Emergency Planning Committees throughout
the United States a crime punishable by a year in jail and a fine or
both.
The Emergency Planning and Community Right-to-Know Act of 1986
created State Emergency Response Commissions in all 50 States, Indian
Tribes (TERC), and other US territories. These SERCs in turn determine
planning districts in their states and appoint LEPC members. EPCRA
requires LEPC membership to include a variety of categories of people--
emergency responders, public health professionals, the media,
transportation and industry representatives, and public interest
groups. In the State of Nebraska there are 93 Counties and 87 LEPCs,
although the number of LEPCs is changing. LEPCs are mostly volunteer
organizations.
The function of the LEPC is to develop community plans to respond
to and prevent, where possible, releases of hazardous chemicals that
can and do harm communities. The LEPC effort to plan for and prevent
hazardous chemical releases is a highly public process; a process
enabled by computerized hazard ranking of information such as OCA
information. The ranking criteria enables the evaluation of risk, helps
to assign priorities for resource application were an accident to
occur, and allows for adequate training, equipment purchase, and
exercise of emergency plans to ensure they function.
The LEPCs in Nebraska are beginning to function and make liaison
with other local public agencies, boards, committees, and commissions.
Imagine the usefulness of the OCA data to a planning and zoning
commission attempting to identify areas for community growth, placement
of hospitals, and other essential public services. Now imagine limiting
or eliminating the ability for zoning commissions to use that data to
plan community growth. To take the example a step further, think of
explaining to a citizen who may have had family harmed in a chemical
emergency why a day care center was built in a hazard zone identified
in a Federal Program, but could not be considered because of the
limitations in the use of the information that would result with
passage of this bill.
Finally, the Clean Air Act Amendments of 1990, Section 112(r)
requires that Stationary Sources covered by the act develop Risk
Management Plans (RMP) and coordinate with the LEPCs and the
coordination information be written into the community plan. The
emergency response plan must be available to the public for review--no
limitations. This bill contradicts the purpose and function of both
EPCRA and Section 112(r) of the CAAA.
Terrorist Use of OCA Data
Moving on to consider the purpose behind this legislation, the
concept of a increased terrorist threat. I accept the notion that the
OCA data may provide a more convenient source of information for
terrorists who may desire to cause a chemical hazard to a community.
But I disagree that increased convenience offers a significant increase
in risk.
Having served as an Officer in the United States Marine Corps and
as a veteran of the Gulf war, I have had the opportunity to study
terrorism to a degree sufficient that I find the argument that OCA data
would enable a terrorist to identify potential targets difficult to
accept. First, terrorists do not set off on random acts of violence,
they plan and plan, and then plan some more. In most cases a terrorist
knows as much about the target before attacking it, then the target
knows about themselves. Second, all the information necessary to rank
facilities by hazard on a national scale already is available on the
Internet in many forms, in EPCRA Tier Two Chemical Inventories, and in
libraries around the world in business references and periodicals.
Third, the presumption that a terrorist is after the most casualties
possible for their effort is not proven by history, or by recent
events. Terrorists do not need a ranking of ``worst cases'' to choose
the target that creates terror, they choose one that has symbolic
importance and causes harm to few. The act of violence is the means,
not the message. Terrorists are after political change via the use of
violence. In short everything an international terrorist needs to
identify and rank hazards for planning an attack is already present in
the public domain, OCA data changes little.
Some would suggest it is not the international terrorist that is
the concern, but a local domestic disturbance group and individual with
an agenda. Anyone who lives in a community for any length of time can
identify potential targets for terrorism, without the use of OCA data.
I believe that everyone would agree that reducing risk to the
public from chemical released is the goal of this bill, as well as
EPCRA and the RMP program. LEPCs in every city and county in the United
States are working, more now than ever, to reduce the many known and
demonstrated risks for chemical emergencies that are present in their
communities. When releases do occur, they are a result of many causes
rarely if ever associated with terrorism. What kind of message will
passing this bill send to the thousands of volunteer LEPC members
throughout the country? Are we saying that in their effort to plan for
and prevent chemical emergencies in the public forum in which they must
operate, that they are committing a crime! What kind of public policy
sacrifices the known substantial improvements to public safety created
by EPCRA and Section 112(r) of the CAAA over fears based on
sensationalizing the terrorist threat to a level not proven or based on
fact but on supposition and sensationalism.
I would characterize the harm this bill would do to the effort to
continue the development of emergency plans at the local level, as many
times more risky than the very small increase in potential for harm
done by the public availability of OCA data that may be obtained by
terrorists. Especially when they already have access to all the
information they need to plan a terrorist attack.
Summary
I disagree with the Department of Justice (DOJ) and the (EPA), that
if enacted, the bill would preserve the important public health and
safety benefits that public access to risk information has been shown
to achieve, while protecting against a potential threat from
terrorists. This bill neither protects the public from harm presented
them by terrorists, nor preserves the important public availability of
information. I believe that this bill would actually increase risk to
communities by eliminating one of the most important motivations for
industry to minimize or eliminate risks, that of public availability of
risk information, active community-wide hazard planning, and the
accountability for community concerns the storage and use of hazardous
chemicals demands.
______
[Thursday, May 20, 1999--The Las Vegas Review-Journal]
CITY
Area Chemical Companies Outline Worst-Case Accident Possibilities
By Keith Rogers
Declaring a new era for chemical companies and the public,
officials for three plants in the Basic Management Inc. complex
Wednesday night released their worst-case accident scenarios, including
one that would send out a toxic chlorine cloud 18 miles across Las
Vegas Valley.
The information, known as Risk Management Plans, will be submitted
to the federal Environmental Protection Agency on June 21 as required
by a 1990 amendment to the Clean Air Act.
Internet users who log on to the agency's Web site will not get to
see the worst-case scenarios because the FBI, citing terrorism
concerns, has recommended the data be withheld unless citizens request
that copies be mailed to them. Congress is to decide whether the plans
required for 66,000 facilities across the nation should be posted.
Mark Zusy of the state Environmental Protection Division's Chemical
Accident Prevention Branch said people could request worst-case
scenarios from his office.
About 300 people attended Wednesday's meeting at the Henderson
Convention Center. The event was sponsored by the Chemical
Manufacturers and Users of Southern Nevada, the trade group for the
three BMI companies: Pioneer Chlor Alkali Co., Kerr-McGee Chemical
Corp. and Titanium Metals Corp.
State and local emergency officials participated.
For Pioneer Chlor Alkali, the worst-case accident, based on failure
of all safety systems and certain atmospheric conditions, would release
150 tons of toxic chlorine to the environment in 10 minutes. The
chlorine would spread out at detectable levels as far as an 18-mile
radius from the plant.
Emergency response officials said the Risk Management Plans were
based on the midlevel guideline, the highest levels that could occur
without causing serious injuries that were not life threatening.
Evacuation and alternative plans such as taking shelter in place
are being coordinated among the emergency response agencies and the
companies.
``In 1991, we had a major chlorine release and tried to evacuate
people, but it cannot be done,'' said Henderson Fire Chief Joe Hill,
explaining why the shelter-in-place program was developed.
The program tells schools and residents through rapid-dialed
recorded phone messages to stay inside buildings and tape doors and
vents to prevent poisoned air from entering.
The 1991 accident at Pioneer Chlor Alkali Co. involved a spill of
42 tons of liquid chlorine that evaporated on contact with the air. The
accident sent more than 300 people to hospitals for treatment after
being exposed to the gas, a powerful irritant to membranes of the eyes,
nose and throat.
The accident was the nation's second worst involving chlorine, and
based on the amount involved, delivered about one-fourth of the effects
that would be expected from Pioneer's worst-case scenario.
One Henderson resident, Tom Powers, said after the meeting he felt
confident that progress on handling toxic chemicals safely had been
made and that the meeting was a milestone.
``People are at last learning how to get a hold of this thing,'' he
said. ``They're doing a lot here. People aren't too bright, and they
don't learn too fast, but we're getting there.''Kerr-McGee listed five
chemicals in its risk plans.
The company is a producer of manganese dioxide for alkaline
batteries, boron trichloride for pharmaceuticals, and boron fibers for
aircraft wings, golf clubs and fishing rods.
The worst-case scenarios for the chemicals range from a 14-ton
release of hydrogen sulfide, which could affect an area nine miles from
the plant, to a release of almost 3 tons of boron trichloride that
would reach one-quarter of a mile from the plant.
The worst-case scenario for an accident at Titanium Metals involves
the release of about 1 ton of chlorine that would affect areas about
one mile from the plant.
More information about the companies, their products and safety
systems can be accessed at the Web site www.cmusn.org.
______
[Friday, May 21, 1999--The Las Vegas Review-Journal]
EDITORIALS
Worst Case
Under an amendment to the 1990 Clean Air Act, some 66,000
companies--including more than a dozen in Southern Nevada--must file
reports with the federal government detailing their ``worst-case''
accident scenarios.
The regulation covers businesses that use and store certain
chemicals, and is designed to ensure the companies and the communities
in which they operate are prepared to handle various emergencies.
But the requirement also has the potential to provoke needless
alarm, especially given the fact that the law's definition of ``worst
case scenario''--in true bureaucratic fashion--may not in some
instances even be scientifically possible.
To that end, three Henderson companies deserve credit for co-
sponsoring a meeting Wednesday night to put the legislation's
requirements into perspective--and to signal their ongoing willingness
to cooperate with local officials and residents in case of an
emergency.
The companies--Titanium Metals Corp., Pioneer Chlor Alkali Co., and
Kerr-McGee Chemical Corp.--are located in the BMI complex on a county
island just north of downtown Henderson.
Make no mistake: These companies deal with hazardous chemicals that
can pose a threat to the surrounding area--a liquid chlorine spill in
1991 at the Pioneer plant led to the evacuation of 10,000 Henderson
residents. Those who live near such businesses deserve the opportunity
to be well informed and should be aware of the proper procedures in the
event of an emergency.
That's why Congress should decree that the reports be made
available on the Internet to citizens who want to view them. The FBI
has argued against such openness, saying the information would then be
too readily available to terrorists. But repressing the reports would
undermine the intent of the law. The FBI's concerns have little merit.
It's important to keep in mind, though, that the ``worst-case
scenario'' requirement exists to force preparation for any contingency,
no matter how remote: It doesn't reflect an assessment of an incident's
probability.
Mr. Brown. Mr. Chairman, I also request to include in the
record a letter I expect to receive today, perhaps before the
conclusion of the hearing, from Chris Jones, Director of the
Ohio EPA--my State--again, which will be sent to me and to you.
Mr. Bilirakis. Without objection.
Mr. Brown. I continue to be concerned with this legislation
when the implications of it are so vast. All the stakeholders
in this process share a common interest: risk reduction.
Achieving this goal should not come at the expense of providing
public access to this important information. Local communities
must be prepared to respond in worst-case scenarios. I believe
that we are hurting, not helping them if we withhold important
information from them. They have a right to know about hazards
in their own communities and their own workplaces.
Mr. Chairman, thank you again for this second hearing, and
for the opportunity to explore these issues in this hearing
today.
Mr. Bilirakis. I thank the gentleman. Mr. Hall, any opening
statement?
Mr. Hall. Yes, Mr. Chairman. I also thank you for holding
this second hearing on H.R. 1790. Mr. Chairman, I truly
appreciate your efforts to include, also, as many interested
parties as possible in these very important deliberations.
Additionally, I would like to thank the administration for
recognizing this problem, and for bringing us legislation that
is going to address it.
I know--as we all do--that H.R. 1790 has some faults. I
worry about any bill that has provisions that preempt State
laws, as the National Association of Attorneys General and the
National Conference of State Legislatures have pointed out in
their letters to all of us regarding this legislation.
Additionally, I don't want to see some librarian or some county
official sitting in jail because they handed out the wrong
piece of paper. However, I also worry about the implications of
nonaction with respect to this situation.
We just cannot afford to sit idly by as the deadline
approaches. We all know what is wrong with this bill. So let us
fix the problem and send it to the President as quickly as we
can. June 21 is not that far away.
I thank the panel of witnesses for their participation in
this hearing. I look forward to hearing their testimony. I
yield back the balance of my time.
Mr. Bilirakis. I thank the gentleman. Without objection,
the opening statements of all members of the subcommittee are
made a part of the record.
[Additional statements submitted for the record follows:]
Prepared Statement of Hon. Tom Bliley, Chairman, Committee on Commerce
Thank you, Mr. Chairman. As I noted last week, the Administration's
proposal would address the national security concerns that would result
if we do not act by June 21st to stop widespread posting of electronic
worst-case scenario chemical release data.
The Administration's proposal is long over-due. I first raised this
issue last September, when the June 21st deadline for filing the worst-
case scenarios was nine months away. In October, EPA agreed that
posting this information on the Internet raised national security
concerns and that EPA would not put worst-case scenarios on its own
website. EPA was silent about giving out the electronic database to
third parties. In February, before this subcommittee, EPA said that it
opposed third parties having the worst-case scenario information in
electronic format. EPA also said that it would solve that problem.
Finally, on May 7th, Administration proposed a solution, and I
introduced that proposal by request.
The Administration's proposal seeks to prevent the widespread
circulation of electronic worst-case scenarios data. EPA, FBI and DOJ
all agree that would pose a threat to national security. The proposal
also seeks to ensure that local officials have the risk information
they need to plan and protect citizens, and that individuals have
access to information concerning the risks associated with local
chemical facilities. Like many legislative proposals, however, there
are some issues that require fine tuning. For example, we must ensure
that citizens who perform public duties, such volunteer firefighters
and the LEPC members, have access to the data they need. The criminal
liability provision of this bill need careful review. The Committee
must examine potential restrictions on library materials. These flaws
can and should be fixed, let us work together to address these issues.
Let me stress that no one here is advocating that we keep the
worst-case scenario information locked up or away from those
communities nearby chemical facilities. I, for one, certainly support
making sure that these communities have access to all information about
the risks associated with their facilities. But we also must ensure
that the way this information is provided does not end up harming the
very people that Congress intended to protect. While no plan is
foolproof, we certainly shouldn't do anything to make it easier for
those who want to harm our nation and our neighbors.
Because we can achieve both of these goals without sacrificing the
other, I believe we must achieve both. The penalty for inaction is
that, on June 21st, our national security will be compromised by the
release of a national, electronic targeting tool available for use by
terrorists from anywhere in the world.
I look forward to hearing from our panel today.
Thank you, Mr. Chairman.
______
Prepared Statement of Hon. Henry A. Waxman, a Representative in
Congress from the State of California
Mr. Chairman, thank you for holding this second hearing on H.R.
1790, the ``Chemical Safety and Site Security Act of 1999.''
At last week's hearing we received testimony from the
Administration, the Chemical Manufacturers Association, PACE
International labor union, the Fraternal Order of Police, the
International Association of Fire Chiefs, and a representative from a
local emergency planning committee.
While some witnesses were supportive of this legislation and others
very skeptical, all witnesses agreed that the public has a right-to-
know about the risk of chemical accidents in their communities.
Today we will hear the States' perspectives as well as that of the
National Environmental Trust and the American Society of Newspaper
Editors. I want to thank all of the witnesses for agreeing to appear on
such short notice. Your testimony is helping to bring an important
balance to this debate.
H.R. 1790 would address the risk of terrorism solely by limiting
the public's right-to-know. This legislation ignores site security
deficiencies at the nation's chemical facilities. This is a misguided
approach and is counter to the testimony the Subcommittee has received
and will receive today.
Last week, Ivan Fong of the Department of Justice testified that
``site security measures are as important as information security
measures in reducing terrorist risks.'' Thomas Susman testified on
behalf of the Chemical Manufacturers Association that it is important
to address both site security and information security.
Mr. Billings--through his testimony today--has brought a recent
government publication to the attention of the Subcommittee that
examines terrorism and chemical facilities. This publication by the
Agency of Toxic Substances and Disease Registry notes that security at
chemical plants ranges from fair to very poor. Amazingly, ATSDR notes
that the security measures at abortion clinics is in general far
superior to the security at chemical plants.
This issue of site security versus the public's right-to-know is
well-illustrated by a recent hearing held by the Government Reform
Committee minority. We recently examined the availability of long-range
50 caliber weapons. These sniper rifles are among the most destructive
and powerful weapons legally available in the United States. These guns
can fire specialized ammunition capable of piercing several inches of
armor or exploding on impact. In a hearing on May 3, 1999, undercover
investigators from the General Accounting Office (GAO) reported that
they could readily purchase these weapons and the armor-piercing
ammunition they use. Although the general public has little awareness
of these weapons, they are widely available to anyone who is at least
18 years of age.
Chemical facilities are not secret facilities. A terrorist can
easily locate a facility through the phonebook, tradeshows, or by just
touring industrial cities. Large propane fuel tanks take no special
expertise to identify and can be located at chemical facilities along
with other fuel and chemical tanks.
A terrorist could use one of these high-powered weapons to explode
a large propane tank at a chemical facility from up to a mile away.
Such an explosion could cause a major chemical release.
And this legislation would do nothing about it. Limiting the
public's right-to-know would have no impact on making a chemical
facility less vulnerable once a terrorist has decided to attack. This
legislation, however, could result in the community being less prepared
for such an attack.
Mr. Chairman, I am trying to work on this issue in an inclusive
manner. I have solicited the views of the Administration on this issue.
I have written to the Chemical Manufacturer's Association to get their
recommendations on how to address site security concerns. I requested
that they respond by today, but unfortunately I have not yet received
an answer to my letter.
I look forward to receiving comments on the best ways to address
site security issues at chemical facilities, and moving legislation
which will actually reduce hazards. I look forward to hearing from
today's witnesses.
______
Prepared Statement of Hon. Frank Pallone, Jr., a Representative in
Congress from the State of New Jersey
Thank you, Mr. Chairman. I appreciate your cooperation in heeding
the request of many Democrats on this subcommittee for a second hearing
on this important topic. I am especially pleased to see environmental
witnesses and a Representative from Nescaum, representing the northeast
states.
Last week, I emphasized my concerns regarding potential attempts to
roll back the public's right to know about chemical accident risks in
communities nationwide, and highlighted numerous environmental and
social action groups that echoed these concerns.
I noticed that last week no one opposed public access to
information on chemical accident risks. The emphasis was, and should
remain, in my opinion, on how to maintain public access to information,
while ensuring site security also is maintained.
Several members of this subcommittee, myself included, and some of
last week's witnesses referred to alternative means to achieve site
security so as not to jeopardize the public's ``right to know''. I hope
we will explore such alternatives further during the course of today's
hearing.
I sincerely look forward to hearing from our witnesses and welcome
their input as to how we should proceed to address this important
issue. I also hope the witnesses will provide their opinions--both
positive and negative--on H.R. 1790. Thank you, Mr. Chairman.
______
Prepared Statement of Hon. Gene Green, a Representative in Congress
from the State of Texas
Thank you Mr. Chairman for scheduling this second hearing on H.R.
1790.
I believe your willingness to continue the hearings on this bill
will help this subcommittee strike a fair balance between the public's
right-to-know and public safety.
Since the EPA announced its intention to post worst-case scenarios
on the internet as part of the risk management plans, most of the
66,000 effected facilities and almost every arm of law enforcement
expressed concerns about the proposal.
They believed that providing this detailed information in such a
public and easily accessible format could help terrorists and other
criminals easily identify possible targets for attack.
While I understand these concerns I also believe citizens who live
near these facilities have a right to know if they or their families
could be placed in danger. Moreover, state and local governments need
this information to develop appropriate rescue or evacuation plans.
While I believe H.R. 1790 is a well intentioned effort by the
Committee's chairman to solve the problem, I also believe it fails to
take into account its impact on volunteer fire fighters and emergency
personnel, teachers, school principals, librarians and other non-state
or local employees.
I hope today's witnesses will help give some guidance to the
committee and help us craft a bill that meets the needs of everyone
affected by potential worst-case-scenarios.
While well intentioned, this bill does some things like making
state and local officials subject to criminal sanctions and preempting
state Freedom of Information Act laws that are not acceptable in their
current form.
Again, I thank you for scheduling this hearing.
Mr. Bilirakis. There are five votes coming up. I think it
would be a good idea, though, if we could take at least one or
two witnesses. Then we are going to have to break until we
finish up with our votes.
Let us start off. Our witnesses are the Honorable Leon G.
Billings, Member, Maryland House of Delegates; Ms. Donna J.
Southwell, Ann Arbor City LEPC Member, Assistant Emergency
Coordinator, Washtenaw County; Mr. Jason S. Grumet, Executive
Director, NESCAUM, Boston Massachusetts; Ms. Kathy M. Kinsey,
Assistant Attorney General for the State of Maryland; Mr.
Thomas Natan, Research Director, National Environmental Trust,
and Mr. Paul K. McMasters, First Amendment Ombudsman with the
Freedom Forum.
Again, I welcome all of you here. Why don't we kick it off
with Mr. Billings, and see how far we get? We are going to turn
the clock to 5 minutes. Of course, your submitted statements
are made part of the record. I would hope you would sort of
complement those, if you would. Mr. Billings, please proceed.
STATEMENTS OF HON. LEON G. BILLINGS, MEMBER, MARYLAND HOUSE OF
DELEGATES; JASON S. GRUMET, EXECUTIVE DIRECTOR, NESCAUM; DONNA
J. SOUTHWELL, ANN ARBOR CITY LEPC MEMBER, ASSISTANT EMERGENCY
COORDINATOR, WASHTENAW COUNTY LEPC, ENVIRONMENTAL HEALTH,
EDUCATION AND OUTREACH MANAGER FOR WASHTENAW COUNTY, MICHIGAN;
KATHY M. KINSEY, ASSISTANT ATTORNEY GENERAL, STATE OF MARYLAND;
THOMAS NATAN, RESEARCH DIRECTOR, NATIONAL ENVIRONMENTAL TRUST;
AND PAUL K. MCMASTERS, FIRST AMENDMENT OMBUDSMAN, FREEDOM
FORUM, ON BEHALF OF THE AMERICAN SOCIETY OF NEWSPAPER EDITORS
Mr. Billings. Thank you Mr. Chairman. In recognition of
your time schedule and my other panelists, I will try to be
relatively brief.
First, you already have for the record, the testimony of
the National Conference of State Legislatures, which is an
important piece of information. I hope you will pay attention
to it. I am not testifying for them. I am testifying as an
individual, elected member of the Maryland Legislature, and as
a person with some familiarity with the preemption provisions
of the Federal environmental laws.
The NCSL statement makes three points which are very
important. First, States have an obligation to plan for and
respond to chemical releases that occur within their borders.
In order to fulfill these planning and response duties, States
must have unimpeded access to OCA information. This bill would
impede that access. Second, States should be consulted during
the development of Federal policy governing public access to
OCA information. This bill would preclude that consultation.
Third, H.R. 1790 preempts State freedom of information laws in
order to limit or control distribution to the public of OCA
information. NCSL thinks that is an inappropriate policy.
However, I would like to add to their testimony that the
general rule in our environmental laws that the preemption
occurs only in the case of interstate commerce, e.g., aircraft
emission standards; or as a result of a Presidential finding
that a preemptive action is in the paramount interest to the
United States.
When this legislation was first called to my attention, I
thought at the time it was odd. While I had not read the text
of the bill, the news stories seem to suggest that we had a
case of the law of unintended consequences. I have now read the
legislation. Let me say first that the law this bill would seek
to amend is just fine. It is this legislation which is, at
least, ill-conceived and misdirected.
The bill suggests that State and local governments, and the
public should not have complete and easily recoverable access
to information on the potential threat to communities posed by
inherently risky manufacturing activities. It appears that it
would even preempt State laws and ordinances requiring similar
information to be gathered. In other words, States could not
have their own laws which gather the information and distribute
it under their FOIA laws. It would bar the public which lives
in the vicinity of those risky manufacturing activities from
having the maximum available information on the risks posed.
This legislation gives a broad ground in discretion to the
administrator of EPA to withhold chemical risk data from State
and local agencies responsible for environmental emergency
response. It gives the administrator broad discretion with
respect to the form in which data is made available. It
completely precludes the right of a community to know the
location and risks posed by specific manufacturing facilities.
This legislation preempts the authority of States to
conduct their emergency reaction responsibility with the full
resources necessary to be effective, whether that information
was generated under Federal or State law. This legislation also
creates a new standard for preemption. In effect, by
authorizing EPA to determine when there is substantial threat
to public health and environment, it transfers the primacy for
protection of public health and environment from the States,
where it has been vested for the entire period of national
environmental policy, to the EPA administrator. That is at page
nine, sub-section F. Even Senator Muskie and his colleagues in
the Democratic-controlled Congresses of the 1960's and 1970's
did not tamper with State primacy. As a State legislator, I am
more than a little surprised that this administration--this
Congress--would now propose to do what decades of Democratic
Congresses were unwilling to do.
Whenever there is legislation that preempts State laws, I
am suspicious of its antecedent. In this case, there is more
than a little reason for suspicion. Recently, the Agency for
Toxic Substances and Disease Registry published an analysis of
the steps to be taken in an emergency response situation at
manufacturing facilities which use large quantities of
hazardous materials. I would like to read to you from that
ATSDR report. ATSDR is part of the Centers for Disease Control,
not a part of EPA. It said, ``Security at chemical plants
ranges from fair to very poor.''
Mr. Bilirakis. Well, finish up your point.
Mr. Billings. I will finish this paragraph. ``Most security
gaps were the result of complacency and lack of awareness of
the threat. Chemical plant security managers were very
pessimistic about their ability to deter sabotage by employees.
Yet, none of them had implemented simple background checks for
key employees, such as chemical process operators.'' The quote
goes on to point out more weaknesses.
The problem, to summarize, is ATSDR was at least as
concerned about what might happen from inside these
manufacturing facilities; or what might happen because of lack
of security and training at these facilities, and not--I
repeat--not about too much public information about these
facilities. Thank you, Mr. Chairman.
[The prepared statement of Leon G. Billings follows:]
Prepared Statement of Hon. Leon G. Billings, Member, Maryland House of
Delegates
I appreciate the opportunity to appear before the subcommittee on
Health and Environment, albeit on very short notice. I am testifying as
an elected member of the Maryland State Legislature, a member of the
Environmental Matters Committee of that Legislature, and as a person
familiar with the history of federal laws governing environmental
protection and the intergovernmental relationships which are
characterized under those laws.
I am also submitting a copy of testimony of the National Conference
of State Legislatures which makes three important points about this
proposal. I would like to read those points:
``First, states have an obligation to plan for and respond to
chemical releases that occur within their borders. In order to fulfill
these planning and response duties, states must have unimpeded access
to OCA information. As introduced, H.R. 1790 provides authority for the
EPA Administrator to withhold OCA information from the states.
Specifically, NCSL recommends amending Section 2(c)(2) and Section 2(f)
to ensure that the proper state planning and response authorities have
access to site-specific, nationwide OCA data in electronic form.
``Second, states should be consulted during development of federal
policy governing public access to OCA information. As introduced, H.R.
1790 requires the EPA Administrator to consult with officials from
other federal agencies during development of policy regarding
availability of OCA information in both electronic and paper form. NCSL
recommends amending Section 2(c)(7) and Section 2(d)(1) to require the
EPA Administrator to also consult with state officials during
development of such policy.
``Third, H.R. 1790 may preempt state freedom of information laws in
order to limit or control distribution to the public of OCA
information. It is NCSL policy that federal preemption of state law is
not warranted, except when necessary or unavoidable in specific
instances when a compelling national objective must be achieved. NCSL
urges Congressand the Administration to clearly articulate the risks to
national security posed by a nationwide, searchable OCA database on the
Internet.''
I hope that you will read the full NCSL statement carefully, as it
represents a thoughtful perspective on this legislation and it restates
the long-standing position of NCSL against federal preemption except in
cases involving the security interests of the United States. I would
add to their testimony that the general rule in our environmental laws
is that preemption occurs only in a clear case of interstate commerce
(aircraft emission standards) or as a result of a Presidential finding
that a preemptive action is in the paramount interest of the United
States.
When this legislation was called to my attention a few weeks ago, I
thought, at the time, it was odd. While I had not read the text of the
bill, the news stories seemed to suggest that we had a case of ``the
law of unintended consequences.'' I have now read the legislation. I
have examined the antecedents to the legislation. And I have done some
research on the subject which the legislation purports to address.
First, let me say that the law this bill would amend is just fine.
It is this legislation which is, at least, ill-conceived and
misdirected. The bill suggests that state and local governments and the
public should not have complete and easily recoverable access to
information on the potential threat to communities posed by inherently
risky manufacturing activities. It appears it would even preempt state
laws and local ordinances requiring similar information to be gathered.
And it would bar the public which lives in the vicinity of those risky
manufacturing activities from having the maximum available information
on the risks posed.
This legislation gives a broad grant of discretion to the
Administrator of EPA to withhold chemical risk data from state and
local agencies responsible for environmental emergency response. It
gives the Administrator broad discretion with respect to the form in
which that data is made available. And it completely precludes the
right of a community to know the location and risk posed by specific
manufacturing facilities.
This legislation preempts the authority of states to conduct their
emergency reaction responsibilities with the full resources necessary
to be effective, whether information which guides that reaction
originates federally or under state law. The fact that information
available to the Administrator might not be transmitted to these
agencies in electronic form means that emergency response teams on site
would not be able to tap into data networks to get the critical
information they need not only to protect the health of the community
but to protect the health of the response team.
This legislation also creates a new standard for preemption. In
effect, by authorizing EPA to determine when there is a substantial
threat to public health and environment, it transfers primacy for
protection of public health and the environment from the states, where
it has been vested for the entire period of national environmental
policy, to the EPA Administrator.
Mr. Chairman, even Senator Muskie and his colleagues in the
Democratic controlled Congresses of 1969, '71 and '77 did not tamper
with state primacy. As a legislator, I am more than a little surprised
that a Republican Congress would now propose to do what decades of
Democratic Congresses were unwilling to do.
Whenever there is legislation that preempts state laws, I am
suspicious of its antecedent. In this case, there is reason for more
than just a little suspicion.
Recently, the Agency of Toxic Substances and Disease Registry
published an analysis of the steps to be taken in an emergency response
situation at manufacturing facilities which use large quantities of
hazardous materials. ATSDR was focusing on the question of potential
terrorist activities at manufacturing facilities in the United States.
Their concerns were not as the advocates of this legislation would have
us believe: too much public information. Rather, they were concerned by
the lack of prevention preparedness at these facilities--information
about which would not be disclosed under this bill.
I would like to read to you what this government agency, part of
the Center for Disease Control and not a part of EPA, had to say about
security and safety at the nation's chemical plants:
``. . . security at chemical plants ranged from fair to very
poor. Most security gaps were the result of complacency and
lack of awareness of the threat (i.e., that almost half of the
targets were businesses and industries). Chemical plant
security managers were very pessimistic about their ability to
deter sabotage by employees, yet none of them had implemented
simple background checks for key employees such as chemical
process operators. None of the corporate security staff had
been trained to identify combinations of common chemicals at
their facilities that could be used as improvised explosives
and incendiaries, although most were aware of individual
chemicals that posed significant fire, explosion or poison
hazards. Security around chemical transportation assets ranged
from poor to non-existent . . .''
In other words, ATSDR was at least as concerned about what might
happen from inside these manufacturing facilities or what might happen
because of lack of security and training at these facilities.
The fact that CDC found these manufacturing facilities ill-prepared
to prevent terrorism suggests the very real need to address that
failure rather than to prevent state and local agencies from gathering,
publishing or receiving information necessary to take action to protect
public health and the environment. As a state legislator, I would urge
the Committee to turn its attention to the adequacy of security and
risk management planning at manufacturing facilities which use
hazardous materials and let states and localities have the information
they need to perform the tasks for which they are best suited.
Thank you.
Mr. Bilirakis. Thank you very much, Mr. Billings. I am
sorry we had to cut you off. You have probably experienced
this.
Mr. Grumet. ``Gru-may,'' is that correct? I understand you
are going to have to catch a flight. So, let us go ahead and
start your testimony. If you don't go too very long, maybe we
will be able to at least hear it out and then break for our
vote. Thank you.
STATEMENT OF JASON S. GRUMET
Mr. Grumet. Thank you, Mr. Chairman, and members of the
committee. My name is Jason Grumet. I am the director of the
Northeast States for Coordinated Air Use Management, or
NESCAUM, which for over 32 years has been representing the air
quality control programs in the six New England States, New
York, and New Jersey. During those 32 years, I must tell you
that we have spent approximately 48 hours immersed in the
details of H.R. 1790. I would have to say at the outset on
behalf of our States, I want to express our collective concern
and regret that we have not had opportunity to engage
beforehand; but more importantly our appreciation and
recognition of the timeframes that you are working under.
What I would like to try to do in the next 5 minutes is
first, share with you some introductory thoughts; then identify
the context of our broader concerns; and then raise a few
specific issues that I have been able to glean, not only from
our eight Northeast States, but from several other States
around the country that I have been able to contact in the last
couple of days.
As was stated by the chairman, I think subsequently we all
share the same goals. Obviously, we all share the goal to
protect communities from not only catastrophic releases of
chemicals, but also accidental releases. I think similarly, we
all recognize that knowledge is power. We want to balance the
community's access to that power--which is truly, I believe, in
the best interests and aspirations of civic engagement--with
the risks: that people--malicious people--might use that
knowledge in harmful and unattended ways. I would suggest, too,
that it is our responsibility to strike a balance that accepts
those free-flowing ideals against legitimate--I would stress
``legitimate''--national security interests.
In essence, the bulk of my comments reflect the Northeast
States' concerns that H.R. 1790, as drafted, is overbroad in
its intrusion into States' freedom of information laws, and
also, in some of its punitive enforcement approaches. The
right-to-know process, we believe, is fundamental not only to
the environmental process, but also to the very principle and
process of our entire democracy. We believe that it is a
cornerstone of how we do good government in the Northeast and--
I think it is fair to say--the Nation.
I would suggest to you that the principle of open access
and the State laws that affect it are, in many ways, akin to a
fundamental right in our system. I think the metaphor to how we
deal with fundamental right is something that we have a lot of
experience with in this country. We take them very seriously.
It doesn't mean that we don't at times transgress upon them.
But when we do seek to transgress upon what we deem to be an
important and fundamental right, the courts apply a process
which--while I am wholly cognizant of the difference between
this and the judicial process--I think illustrates in many
ways, and provides a good metaphor for the challenge that faces
us. The courts apply a two-part test. First, they question if
there is compelling government interest; and then they question
if the approach is narrowly and precisely tailored to
effectuate that compelling interest.
Here I would suggest that we, like the EPA, are going to
defer to the Federal Bureau with regard to whether there is a
compelling government interest of security. However, when we
come to the question of whether of H.R. 1790 precisely and
narrowly affects those interests, I think we are much less
clear. To save time, I will not go through the host of points
that are in my comments. I would associate the Northeast States
with many of the comments that the NCSL just raised. I will
just raise two key points to my members.
The first question that I would ask you to deliberate on
is: are all facilities equally vulnerable to these kinds of
risks? Is this ``one size fits all'' obscuring of information,
in fact, effectively and narrowly tailored to the problem that
has been identified? Second, I would ask you----
Mr. Bilirakis. Mr. Grumet? Excuse me, sir. It might be a
good place for us to break. We have something like 3, maybe 4
minutes at the most, to make a vote. So we really ought to run
to do that. We can continue on this.
Mr. Grumet. I'll just be right here when you get back.
Mr. Bilirakis. Forgive us, but we have 4 or 5 votes--I am
not sure what it is--that will take at least a half hour, maybe
a little longer. We will get back as soon as we can.
[Brief recess.]
Mr. Bilirakis. We will get started. The Chair apologizes to
everybody. I wanted to make sure we had a bipartisan atmosphere
up here.
Mr. Grumet, sorry we had to cut you off when we did. It is
probably just as well that we did. We just barely made that
vote. We will just go ahead and give you 3 minutes, or so. I am
sure that you had less than that coming, but just do the best
you can.
Mr. Grumet. I will make my best. I will try to use my time
constructively. In fact, I used the last half hour, I hope,
constructively as well. I took the opportunity, with the
assembled expertise in the room, to canvass other State
representatives and members facing the June 21 deadline.
Mr. Bilirakis. You are doing a very good job with your
presentation.
Mr. Grumet. I must tell you that half hour has only
amplified my basic concern, which is that H.R. 1790, as
presently drafted, is overbroad in its intrusion into the State
freedom of information laws.
As I was suggesting,while I am cognizant of the difference
between judicial and legislative analysis, I do think that the
metaphor of strict scrutiny which the courts look to when
starting to potentially transgress upon such fundamental rights
is illustrative here. Again, there is a two-part test that
applies. One, is there a compelling State interest? Again with
some discomfort, but a great deal deference, I would look the
Federal Bureau to render that judgment and not to people who
care about air quality. Therefore, we would accept their answer
in the affirmative.
However, on the question of whether or not this proposal,
this bill, is narrowly tailored to effectuate those compelling
State interests; I think, again, we are much less clear. I will
just go back to the two points that I would like to make in
summary.
The first question: Are all facilities equally vulnerable
to these risks; and therefore, is a ``one size fits all''
obscuring of this information, in fact, narrowly tailored to
those compelling interests? I would suggest to you,
intuitively, the answer has to be no. Of 66,000 facilities,
there has to be some variety of both risk to the public, and
some variety of risk to the kind of malicious activities about
which we are concerned. So I would suggest that some other
process--and I can't begin to tell you what that is, other than
simply obscuring all that information--I would believe is
preferable.
Second, on the enforcement of this, the question of is
threatening State employees and civil servants with
incarceration an effective way to enforce these laws? Again, my
members believe that that is probably a little overbroad.
In conclusion, we think the intrusion and preemption are
overbroad. Finally, I would suggest that this is a very
important lens into the risk that may be posed from 66,000
facilities. I would simply say that with whatever time we have
that the Northeast States would like to join in a more
deliberate discussion about how we might, in fact, develop some
more robust techniques to not only obscure those risks, but
actually mitigate them.
[The prepared statement of Jason S. Grumet follows:]
Prepared Statement of Jason S. Grumet, Executive Director, Northeast
States for Coordinated Air Use Management
Thank you Mr. Chairman. My name is Jason Grumet and I am the
Executive Director of the Northeast States for Coordinated Air Use
Management (NESCAUM). NESCAUM is an association of state air pollution
control agencies representing Connecticut, Maine, Massachusetts, New
Hampshire, New Jersey, New York, Rhode Island and Vermont. The
Association provides technical assistance and policy guidance to the
member states on regional air pollution issues of concern to the
Northeast. We appreciate this opportunity to address the Subcommittee
regarding the Chemical Safety Information and Site Security Act of
1999.
I believe that we all share the same substantive goal to protect
communities from catastrophic and accidental chemical releases.
Moreover, I hope that we all recognize that knowledge is power.
Knowledge about the potential risks associated with chemical accidents
empowers communities in the best spirit of civic engagement to reduce
undesirable and unnecessary environmental hazards. As we have all
witnessed, knowledge can also empower malicious people to visit harm on
these same communities. The obvious challenge before Congress is to
strike a responsible balance between the democratic ideals of free
flowing information and the legitimate concerns regarding security and
potential terrorist activity. The bulk of my comments reflect the
Northeast States/ concern that H.R. 1790 is overly broad in its
intrusion into state right to know laws.
The northeast states share a strong commitment and a legal
obligation to practicing government ``in the sunshine'' and honoring
the public's right-to-know about potential environmental hazards facing
their communities. The requirements of Section 112(r) of the Clean Air
Act represent an important mechanism for informing the public about the
potential risk posed by the accidental release of toxic chemicals from
facilities located in their communities and protecting them from such
risk. State freedom of information acts (FOIA) and community right to
know laws are fundamental to the process and principle of informed
democracy. We are concerned about H.R. 1790's intent to preempt state
FOIA law. These laws serve a critical role by providing state
regulators and other interested parties access to the detailed
information needed to craft effective regulations. They also enable
private citizens to make informed choices about where they want to live
and discover the truth about the risk from and the causes of
environmental hazards. In essence, the principle of open access is akin
to a ``fundamental right'' in the design and implementation of our
nation's environmental policies. While I am wholly cognizant of the
different obligations and burdens of the legislative and judicial
processes, I believe that identifying freedom of information as a
fundamental right provides a useful metaphor for our challenge here
today.
Our judicial system often grapples with similar situations where
the ideals of free speech create security concerns. When faced with a
conflict between fundamental rights and state interests, courts
traditionally apply a two-step analysis. First, courts examine whether
government has a compelling interest to justify the proposed
transgression and second they probe whether the means employed to
achieve the statute's goal are narrowly and precisely drawn. While I am
not suggesting that this committee apply ``strict scrutiny'' review to
this or any other legislative proposal, I do believe that this
analytical process, loosely applied, illustrates our concerns about
H.R. 1790. In this instance, the national security interests identified
in H.R. 1790 surely present a compelling government interest. However,
the northeast states are far less certain that this bill is effectively
and narrowly tailored to achieve these important ends. Two issues
immediately leap to mind. First, do all covered facilities present
similar security risks? Hence, is the ``one size fits all'' restriction
of information proposed in H.R. 1790 effectively and narrowly tailored?
Second, is threatening civil servants and librarians with financial
ruin and incarceration an effective and narrowly tailored means of
increasing site security? Only through dialogue with a broader range of
affected parties, including state officials, can we ensure that this
bill achieves its goal in a manner that respects important public
disclosure rights and obligations.
Moreover, we are troubled by the proposed process whereby EPA would
issue guidance establishing procedures and methods for making off-site
consequences information available to the public without the
opportunity for public comment or judicial review. Further, the
prospect of emergency personnel responding to an accident without the
appropriate information about the types and amounts of chemicals
involved will unnecessarily jeopardize their health and that of the
larger community. It is unfair and dangerous to put state and local
officials in the position of trying to determine what information can
and cannot be legally shared with emergency personnel in the heat of a
crisis.
There are literally thousands of incidents each year in the
Northeast involving the accidental release of dangerous chemicals into
the environment. Section 112 (r) is intended to protect the public from
accidental releases at those large stationary facilities that present
the greatest potential risk to the public. The off-site consequence
analysis information contained in the Risk Management Plans (RMPs)
addressed by this bill represent the last line of defense for
communities in the event of an accident. Consequently, the public has a
vital interest and a right to review and comment on these plans.
It is our expectation that the requirement to develop and disclose
the off-site consequences analysis information through the RMPs will
encourage some companies to voluntarily develop strategies to reduce
the risk in worst-case zones. The fact that their neighbors and
employees will be made aware of the potential risk from exposure to
chemicals accidentally released by a facility provides a powerful
incentive for companies to minimize such risk. The experience with the
Toxic Release Inventory program is an example of how reporting
requirements can promote significant voluntary reductions on the part
of facilities concerned with their corporate image.
In conclusion, the northeast state environmental agencies are
concerned that the preemption of state laws and punitive enforcement
measures in H.R. 1790 are over broad. In addition, the magnitude of the
security concerns noted by supporters of H.R. 1790 appear to beg a
deeper issue. We urge Congress to act to diminish the risks of
catastrophic chemical releases in substance and not simply seek to
obscure the public's awareness of these risks. What are needed are
better plans to protect vulnerable sites from terrorist activities. We
urge Congress to take the time necessary to develop a viable approach
that provides greater security at chemical facilities without trampling
on the fundamental protection afforded by public right-to-know laws.
Mr. Bilirakis. Thank you very much, sir.
Ms. Southwell, when you are ready.
STATEMENT OF DONNA J. SOUTHWELL
Ms. Southwell. I don't know if I will ever be ready. This
is a little nerve-wracking for me. I really want to thank you,
Mr. Chairman, and members of the committee, for an opportunity
to talk about this bill.
I am from Washtenaw County in Michigan, which is east about
43 miles from the city of Detroit--to just give you some
context. I have been staffed to the local emergency planning
committee. I sit on the city of Ann Arbor LEPC, as well as act
as Assistant Emergency Coordinator for the Washtenaw County
LEPC.
Part of my job functions are twofold. One is to do the
planning for the entire County of Washtenaw for local emergency
planning contingency plans for chemical spills. The second part
is that part of my job also entails coordinating response to
these spills. So I know how valuable those plans are. I know
that having those plans in place; having that full information;
and being able to work with all of the entities that are
involved in cleaning up and protecting the environment and the
population are critical to that process.
Washtenaw County and Ann Arbor are among the top 20,
nationally, for the production of hazardous wastes. We had a
program that was originally the Community Right to Know Program
in our county, established in 1986, before SARA. That kept
facility information, including maps, plans, and chemical
inventories on over 1,400 facilities and made that information
available to the public.
LEPCs are required under Federal law to have a variety of
elected officials, community professionals, environmentalists,
and facility coordinators on their board. These are the people
who craft those plans in conjunction with the community and the
facilities, and make these available. The primary
responsibility is to develop emergency plans and to make that
available to the public. In developing the plans, they evaluate
all available resources. That is part of Federal language under
SARA.
There are two pieces of the nine ``shalls'' that this
legislation will really impact negatively. They are No. 5,
which says ``Describe methods for determining the occurrence of
a release and the probable affected area and population;'' and
No. 7, which says we have to have an evacuation plan. That
means that in planning for a potential, or possible, chemical
spill we have to consider all of the people, all of the places,
and all of the things that is going to affect. We exercise
those plans. So if it does happen, we are prepared to meet that
emergency as best that we can.
Section C of this bill effectively prevents the LEPC from
fully developing required plans, and from meeting the No. 5
``shall'' mandated under EPCRA. They are mandated to create
effective evacuation plans, but it is very difficult to do this
without full information. LEPCs are mandated to annually
publish notice in local papers that these plans are available.
That is the community right-to-know effect that is so
important. If this bill passes, it seems like it puts LEPCs in
direct conflict with federally enacted regulation; so that
whatever they do when they attempt to do their job, they are
going to be in conflict with some kind of law.
Out of great concern for public health and safety, the
community right-to-know provisions help increase the public
knowledge and access to information that gives them information
to make informed choices and decisions about taking steps to
keep their families safe. We have a pamphlet that we put
together called, ``Safety in Chemical Emergencies.'' We passed
this out to over 100,000 people. These people were not alarmed.
Instead, they were grateful for the information, and took steps
that, I think, can help them in their everyday life.
Under the planning that we have done under SARA title III,
we have witnessed a 20 percent reduction in the number of sites
for which to plan for in our community; and a 50 percent
reduction in the number of spills that we have responded to. A
lot of the reason for that is because these facilities have
either switched to alternative chemicals that aren't as toxic;
they have reduced their inventory so that they aren't keeping
as much on hand; or there is new technology available to them.
I contend that if there is a security concern about some of
the facilities that will be reporting under the Clean Air Act
amendments, this is the same sort of alternative that is
available to them. I contend that if there is security
problems, perhaps it is up to the facility to begin to think
about increasing their security measures, instead of putting
the burden onto the local emergency planning committees that
are a federally unfunded mandate required to do planning, and
required to uphold community safety.
I'll stop----
Mr. Bilirakis. Well, finish your point.
Ms. Southwell. The fact is that we are, again, a federally
unfunded mandate. This is all volunteer people. We have a hard
enough time getting people, on the busy days, to commit to
being volunteers; to commit to helping us with these plans; and
to commit to this community activism. To have to say them,
``Well, your reward for this job well done is that your
possibility of going to jail and being fined is very real;'' I
feel like terribly constrains the community's attempt to be
safe.
Thank you very much for this opportunity.
[The prepared statement of Donna A. Southwell follows:]
Prepared Statement of Donna J. Southwell, Assistant Emergency
Coordinator for the Washtenaw County, Michigan, LEPC, Member of the
City of Ann Arbor LEPC, and Washtenaw County Environmental Health
Education and Outreach Manager and Functioning Environmental Response
Manager
Mr. Chairman and Members of the Subcommittee, thank you for this
opportunity to share with you concerns regarding the proposed
``Chemical Safety Information and Site Security Act''. It is my
intention to address the significant difficulties within this proposed
legislation as they relate to federally mandated responsibilities of
Local Emergency Planning Committees (LEPCs), Public Health and Safety,
the inherent right of citizens in this country to have access to
information and finally, the protection of Local Government staff and
volunteers.
Background
Washtenaw County is located in the southeastern portion of the
Lower Peninsula of Michigan. approximately 43 miles west of downtown
Detroit. The County is home to the City of Ann Arbor, the University of
Michigan, Eastern Michigan University and several other institutions of
higher learning. Ann Arbor is ranked fourth nationally as the best
place to live. There are approximately 300,000 people living in our
county with 213,000 homes.
The Washtenaw County-Ann Arbor Metropolitan area is also in the top
20% nationally for the production of hazardous waste. The Washtenaw
County Pollution Prevention Program, established in 1986, inspects and
keeps records on more than 1500 facilities with an aggregate amount of
5 gallons or more of chemicals on site. This includes facility
information and chemical inventories. EPA has recognized this venture
as a model program for other communities. This records include all SARA
Title III facilities whose contingency plans, by unanimous vote of the
federally mandated LEPC, are being prepared to be made available on the
County web site. The County LEPC is comprised of volunteer
representatives from business and industry, local government,
educational facilities, hospitals, fire departments, Emergency
Management and local residents.
Public health and safety, the environment, quality of life and the
right to information allowing for knowledgeable choices are of profound
concern to area residents. This legislation as written would have great
impact on these concerns.
Federally Mandated Responsibilities of LEPCs
LEPCs must include at a minimum, elected state and local officials,
police, fire, civil defense, public health professionals,
environmental, hospital, and transportation officials as well as
representatives of facilities subject to the emergency planning
requirements, community groups, and the media. The LEPC is required to
complete a number of tasks, including establishing rules, giving public
notice of its activities, and establishing procedures for handling
public requests for information; however, the LEPC's primary
responsibility is to develop an emergency plan and to make that plan
available to the public. In developing this plan, the LEPC evaluates
all available resources for preparing for and responding to a potential
chemical accident. The plan must include the following nine components,
also known as ``the Nine `SHALLS' of Sara Title III'':
1. Identify facilities and transportation routes of extremely
hazardous substances;
2. Describe emergency response procedures, on-site and off-site;
3. Designate a community coordinator and facility coordinator(s) to
implement the plan;
4. Outline emergency notification procedures;
5. Describe methods for determining the occurrence of a release and
the probable affected area and population;
6. Describe community and industry emergency equipment and facilities
and identify the persons responsible for them;
7. Outline evacuation plans;
8. Describe a training program for emergency response personnel
(including schedules);
9. Present methods and schedules for exercising emergency response
plans.
Section ``C'' of this Bill effectively prevents the LEPC from fully
developing required plans and from meeting the number five ``SHALL''
mandated under the Emergency Planning and Community Right-to-Know Act,
(EPCRA). It is the fundamental nature of EPCRA to use all existing
information in constructing plans that identify the likely plume
dispersion path of each chemical in the worst case scenario and to
identify potentially affected regions and populations. Special care is
taken to identify sensitive populations such as schools, hospitals and
nursing homes. In number seven ``SHALL'', LEPCs are mandated to create
effective evacuation plans, difficult to accomplish without full
information. LEPCs are mandated to publish, annually, notice in the
local paper of the availability of these plans. In addition, LEPCS are
further mandated to make these plans available to the public.
(Reference Appendices A, B and C). If this Bill is passed, it puts
LEPCs in direct conflict with federally enacted regulations no matter
which approach they consider in the attempt to complete their mandated
functions.
Public Health and Safety
From the United States Environmental Protection Agency Office of
Solid Waste and Emergency Response (5101) EPA 550-F-93-002 dated
January 1993; SARA Title III Factsheet: THE EMERGENCY PLANNING AND
COMMUNITY RIGHT-TO-KNOW ACT (my Appendix B), I quote ``--This law
builds upon EPA's Chemical Emergency Preparedness Program (CEPP) and
numerous State and local programs aimed at helping communities to
better meet their responsibilities in regard to potential chemical
emergencies. The Community Right-to-Know provisions will help increase
the public's knowledge and access to information on the presence of
hazardous chemicals in their communities and releases of these
chemicals into the environment. States and communities, working with
facilities, will be better able to improve chemical safety and protect
public health and the environment--'' Without full access to
information, information restricted by this proposed Bill, again, the
LEPCs will not be able to accomplish the tasks for which they were
created. Since SARA Title III, in our community alone, we have
witnessed a 20% reduction in the number of sites for which we must plan
and the reduction by 50% in the number of releases recorded in our
community. When sites were queried as to why they declared themselves
no longer eligible under SARA, many answered that they had reduced the
amount of chemicals on site, had found less toxic alternatives or
technology had allowed them to change their processes. One Facility
Coordinator introduced himself to me at our annual LEPC-sponsored
Facility Coordinator's Conference, shook my hand and said: ``We really
don't like you, but you make us better!'' Chemical Safety has improved
and public health and the environment is better protected. I can only
try to imagine you or me struggling to explain to our constituency that
we can no longer do our job to protect their health and their
environment because of the restrictions and penalties of HR 1790.
The Inherent Right of Citizens in This Country to Have Access To
Information
EPCRA is the acronym for ``Emergency Planning and Community Right-
To-Know Act''. Perhaps it is time to review the history of accident,
death and destruction that preceded the creation and implementation of
EPCRA:
Sec. Texas City 1947--552 Fatalities, 300 injuries
Sec. Donora PA 1948--20 Fatalities, 5,000 exposures
Sec. Flixborough UK 1974--28 fatalities
Sec. Bhopal India 1984--3K fatalities, 200K exposures
Sec. Pasadena TX 1989--28 fatalities, 130 injuries
In addition, let us not forget the lessons learned in the community
that turned the page for Right-to-Know: Love Canal. Even then, the all
too familiar cry of special interest that ill tidings would be befall
them if the community knew what was really going on behind the closed
doors and obscured buildings at their facility. Love Canal was the part
of the origin of SARA Title III that was enacted over twelve years ago.
Nobody blew up their buildings. The sky did not fall, and now days,
visionary business and industry are working in partnership with
governments and residents to improve quality of life in the hometown
and global communities that they live in and work in together. If
disclosure has opened the door to improved community trust and
relationships, then what door will this proposed Bill and the return to
evasiveness open?
Protection of Local Government Staff and Volunteers
SARA Title III is a federally unfunded mandate. Membership in the
LEPC is voluntary. All planning tasks are completed by the volunteers
who include representatives from the regulated businesses and
industries. Under Sec. C, part 8, of this Bill, if members of the LEPC
as either employees or volunteers to Local government do the task
required of them, they can be arrested, fined and jailed for up to one
year. It is difficult enough in these hectic and busy days to enlist
and retain volunteers. One can only imagine the joy of recruitment and
retention of LEPC membership if criminal prosecution becomes the reward
for a job well done!
Again, SARA Title III is a federally unfunded mandate. Under Sec.
B, of this Bill, LEPCs could be levied fees to retrieve information
that they are required to have access to under the CAA 1990.
Between the proverbial rock and hard place is exactly where this
Bill will land the LEPCs. No one wins from that position.
Mr. Bilirakis. Thank you, Ms. Southwell. Thank you so much
for that perspective.
Ms. Kinsey.
STATEMENT OF KATHY M. KINSEY
Ms. Kinsey. Thank you, Mr. Chairman. Mr. Chairman, and
members of the committee, my name is Kathy Kinsey. I am an
Assistant Attorney General with the Maryland Attorney General's
Office. I am here testifying today on behalf of both the
Maryland Attorney General, and the National Association of
Attorneys General, on H.R. 1790.
I want to state at the outset that our office only recently
learned of this legislation. We have not had time to either
assess its full impact on Maryland law, nor to discuss the
impact of this bill with State and local agencies, such as the
LEPCs, that would be affected by the provisions of this bill. I
would like to emphasize that, as chief law enforcement officers
of the State, attorneys general do understand the importance of
protecting the public from acts of terrorism, and the
legitimate concerns that law enforcement officials have in this
regard. We recognize that there is a delicate balance here that
has to be struck between law enforcement concerns and the right
of the public to access this very important information.
Having said that, however, we do have some concerns about
this bill. I will be brief. First, we share Delegate Billings'
concerns about the preemption aspects of this bill. To our
knowledge, no State government officials or attorneys general
were consulted about the preemption issues before this
legislation was introduced. They have not had an opportunity to
assess the impact on our public information acts. This is an
area which is of particular concern in Maryland and other
States, where there is a very strong interest in favor of
public disclosure--full public disclosure.
Second, a knowing violation of this legislation if it is
enacted in its current form is going to subject a State
official, possibly even an attorney general, to criminal
sanctions under title 18 of the United States Code. We are
obviously very concerned about subjecting State and local
officials to criminal sanctions without any prior consultations
with those officials about the impact of this law. Third, it is
unclear, as drafted, exactly what the law is that would be
violated. Section D of this bill indicates that the EPA will
issue guidance setting forth the procedures and methods by
which this offsite consequence analysis may be made public.
This guidance would not be judicially reviewable; and
therefore, not subject to the ordinary processes that are
normally accorded in the course of development of regulations.
There is no meaningful mechanism here for States or other
interested parties, including citizens, to participate in the
guidance development process. Presumably, of course, it would
be a knowing violation of the guidance that would, in effect,
subject State officials to criminal sanctions. This is
unprecedented, as far as we know. We are unaware of any other
provision of law providing criminal penalties for violation of
an agency guidance that does not carry the full force of law.
We also note in section D that the guidance is to be
developed in consultation only with Federal agencies. Assuming
for the moment that this guidance would be legally enforceable,
we think the guidance that would trump State law should not be
developed without the active involvement of the States,
particularly where a violation of that guidance would subject
the State and local officials to criminal sanctions.
Finally, another problem with the bill as we see it as that
it is very unclear how State officials, even Federal officials,
will respond to requests for this information during this
interim period between the time that the law is enacted and the
time that any guidance would eventually be developed by EPA.
Thank you very much. I appreciate very much the opportunity
to be here today. I am happy to answer any questions you have.
[The prepared statement of Kathy M. Kinsey follows:]
Prepared Statement of Kathy M. Kinsey, Assistant Attorney General,
State of Maryland
Mr. Chairman and members of the Subcommittee, my name is Kathy
Kinsey, and I am an Assistant Attorney General for the State of
Maryland. I am here on behalf of Attorney General Joe Curran, a member
of the National Association of Attorneys General, to discuss H.R. 1790,
the ``Chemical Information and Site Security Act of 1999.''
My office has only recently learned of this legislation, and we
have not had time to analyze it fully or assess its full impact on
Maryland law; however, we do have some general concerns that we would
ask the Subcommittee to consider. First, let me state that as the chief
law enforcement officers of the states, attorneys general understand
the importance of protecting the public from acts of terrorism, and the
legitimate concerns of law enforcement in this regard. We recognize
that a delicate balance must be struck between law enforcement concerns
and the right of the public to information about potential threats to
their communities and environment. We would be happy to work with the
Congress, the U.S. Department of Justice, the U.S. Environmental
Protection Agency, and other concerned parties to address these
matters.
We have several points to make about the legislation before this
Subcommittee:
1. As proposed, this legislation would preempt state law. To our
knowledge, no affected state officials, including Governors, Attorneys
General or legislators were consulted prior to the introduction of this
legislation, and therefore had no opportunity to assess its impact on
State public records laws. We believe that States should be adequately
consulted by Congress and the Administration before federal laws are
enacted that would preempt state law.
2. A knowing violation of this legislation, if enacted in its
current form, would subject a State official, including perhaps, an
Attorney General, to criminal sanction under Title 18 of the United
States Code. We are quite concerned about federal laws subjecting State
and local officials to criminal sanction without prior consultation
with such officials.
3. It is unclear as drafted what ``law'' would be violated. Section
(d) of this bill indicates that the Administrator of the Environmental
Protection Agency shall issue ``guidance'' setting forth the procedures
and methods by which off-site consequence analysis information may be
made public. This guidance would not be judicially reviewable, and
therefore not subject to the public processes normally accorded
development of regulation. Thus, there would be no meaningful mechanism
for States or other interested parties, including citizens, to
participate in the guidance development process.
4. Presumably, it is a knowing violation of this guidance that
would subject State officials to criminal sanctions. We are unaware of
any other provision of law providing criminal penalties for violation
of an agency pronouncement that does not carry the force of law.
5. We also note, in Section (d), that this guidance is to be
developed in consultation with appropriate Federal agencies. Assuming
for the moment that any ``guidance'' issued by the Federal government
is legally enforceable, a guidance that would trump state law should
not be developed without the active involvement of the States,
particularly where a violation of the guidance might subject a state or
local official to jail time.
6. Finally, it is unclear how State officials should respond to
requests for OCA information during the interim period between
enactment of this legislation and issuance of the guidance by EPA.
I appreciate the opportunity to appear before this Subcommittee,
and would be happy to respond to any questions you may have.
Mr. Bilirakis. Thank you very much, Ms. Kinsey.
Mr. Natan.
STATEMENT OF THOMAS NATAN
Mr. Natan. Thank you, Mr. Chairman. My name is Tom Natan. I
am Research Director of the National Environmental Trust. Thank
you for the opportunity to testify as a member of the
environmental community.
I am a chemical engineer. Over the past 5 years I have
visited scores of industrial facilities looking at ways in
which they can operate more efficiently and safely; as well as
helping to interpret their environmental data for residents of
the surrounding communities.
No doubt the committee is aware of EPA's Toxic Release
Inventory Program, ``TRI,'' which as been credited by both
environmentalists and industry alike for generating a climate
that has resulted in dramatic decreases in toxic chemical
emissions, without the traditional constraints and costs of
command and control regulation. An extremely important lesson
that we can glean from TRI is that public access to toxic
chemical release information alone can generate enormous risk
reduction benefits. For many workers at industrial facilities,
TRI is their first opportunity to learn about chemicals used on
the job--another unexpected benefit of access to information.
All of these benefits can be enhanced further through public
access to all of the Clean Air Act 112(r) data.
I say enhanced because, unfortunately, accidents still
occur. Fourteen members of this subcommittee represent States
that have had at least one chemical accident in the past twenty
months. Thirteen workers were killed; another ninety-five were
injured in those accidents. These figures don't include any of
the impacts on the surrounding communities.
The Chemical Manufacturers Association has raised concerns
about the availability of Off-Site Consequence Analysis data on
the Internet. Even in the absence of Internet access to that
data, there are many ways in which the chemical industry, EPA,
and the intelligence community must work, both separately and
together, to reduce hazards and potential risks. However, the
Chemical Safety Information and Site Security Act of 1999
virtually eliminates the public participation that would create
the necessary accountability of industry and government to
accomplish real hazard reduction. Instead of offering a
mechanism for hazard reduction that would otherwise have
occurred through public participation, this bill offers
corporate secrecy and criminal penalties.
Under the bill, a concerned citizen would first have to
obtain paper copies of submissions for all facilities within 25
miles of home, work, or school, because no mechanism exists for
prioritizing risks under the proposed legislation. This assumes
that the requestor does not live in a location in which there
are enough facilities to exceed whatever maximum the
administrator sets for requests. It also assumes that there are
no facilities outside that 25-mile radius that would impact his
or her home. Once the facilities of greatest concern have been
determined, naturally citizens will want to see how those
facilities compare to others in the same industry in other
parts of the country, and contact those facilities for
information on how they may have reduced their hazards. They
will have to go to a GPO depository library and manually
examine thousands of paper submissions to cull some facilities
that qualify, and then would not be allowed to photocopy that
information.
The restriction will not apply just to concerned citizens.
For example, there are the workers at the facilities, for whom
these worst-case scenario data may be the best vehicle to learn
about risks and hazards on the job, and what other companies
are doing to reduce those hazards; emergency responders who
want to know if a particular plant meets the industry standards
for safety; educators who will want to teach students about
best practices; and investors who will want to track the
performance of all the facilities of a particular company. None
of these concerned parties will be able to undertake necessary
and legitimate comparison and analyses under this bill easily,
if at all.
The bill goes further and prohibits dissemination of
critical reports. As part of their accountability to the
public, EPA and State governments need to take an active role
in providing comparative analyses of data from facilities
within particular industries to determine ``best in class''
practices as they currently exist in order to drive real hazard
reduction. Under the bill as proposed, these analyses would not
be available to the public. Furthermore, State or Federal
Government employees who make such analyses available could be
jailed and/or fined for doing so.
The administration's bill provides a template to restrict
public access to any of the data currently collected by EPA.
What is to prevent a future restriction of TRI data for the ten
most flammable substances on the TRI list; or the ten that are
judged to be the most acutely toxic; or access to permit
application data. Worst of all is the possibility that such
future restrictions could pass with this bill under the guise
of a technical amendment.
Just how is it that the agenda went from restricting
Internet access to Off-Site Consequence Analysis only, to a
severe restriction on data dissemination by other means? To my
knowledge, the review of worst-case scenario data by the FBI is
the first time that agency reviewed chemical accident data
reported by facilities to determine the potential threat that
onsite use of toxic chemicals poses to local communities. The
most significant finding made by the FBI is that the use of
chemicals poses the risk.
In light of these findings, it is important to emphasize
that by not providing an alternative to public awareness and
pressure, the bill fails to provide an impetus for hazard
reduction. In return for ignoring these benefits, any bill
restricting access to OCA data needs to provide that benefit,
perhaps by instructing the Department of Justice, along with
EPA, to identify the potential for hazard reduction, and
therefore, the vulnerability of citizens to chemical exposures,
whether accidental or otherwise. This should be accomplished
first by using less-toxic chemicals; and where that is
impractical, safer transportation, storage, and handling and
increases in site security and buffer zones.
Thank you Mr. Chairman.
[The prepared statement of Thomas Natan follows:]
Prepared Statement of Thomas Natan, Research Director, National
Environmental Trust
Mr. Chairman and Members of the Committee, my name is Thomas Natan,
and I am the Research Director of the National Environmental Trust, a
non-partisan, non-profit public interest organization that educates the
public on environmental issues. I thank you for the opportunity to
testify as a member of the environmental community concerning the EPA's
Risk Management Plan Program under section 112(r) of the Clean Air Act.
I am a chemical engineer, and have visited scores of industrial
facilities, examining ways in which they can operate more efficiently
and safely, as well as helping to interpret their environmental data
for residents of surrounding communities.
As the Committee is aware, in 1986, Congress enacted the Emergency
Planning and Community Right-to-Know Act. A principal feature of this
legislation was the Toxics Release Inventory Program, or TRI. TRI has
been credited by both environmentalists and industry alike for
generating a climate that has resulted in dramatic decreases in toxic
chemical emissions without the traditional constraints and costs of a
command-and-control regulatory framework. A principal result of the
public right-to-know program has been an incentive for enhanced
environmental stewardship without the burdens of the command-and-
control regulatory system.
The enduring lesson of public access to information regarding toxic
chemical risks facing communities is that real risk reduction can occur
without the imposition of new and significant costs to our
manufacturing sector. Another extremely important lesson that we can
glean from the TRI process is that public access to toxic chemical
release information alone can generate enormous risk reduction
benefits. Also, for many workers at industrial facilities, TRI is their
first opportunity to learn about chemicals used on the job--another
unexpected benefit of complete access to information. All of these
benefits can be enhanced further through public access to all of the
112(r) data.
As the Committee is also aware, the Chemical Manufacturers
Association has raised concerns about the availability of Off-Site
Consequence Analysis, or OCA, data from 112(r) on the Internet. Even in
the absence of Internet access to data, there are many ways in which
the chemical industry, EPA, and the intelligence community, must work,
both separately and together, to reduce hazards and potential risks to
the American public from use of toxic chemicals at industrial
facilities. However, the Chemical Safety Information and Site Security
Act of 1999 virtually eliminates the public participation that would
create the necessary accountability of industry and government to
accomplish real hazard reduction. Instead of offering a mechanism for
hazard reduction that would otherwise have occurred through public
participation, the Administration offers corporate secrecy and criminal
penalties.
Under this bill, a concerned citizen would first have to obtain
paper copies of submissions for all facilities within 25 miles of home,
work, or school, because no mechanism exists for prioritizing risks
under the proposed legislation. This assumes that the requester does
not live in a location in which there are enough industrial facilities
to exceed whatever maximum the Administrator has set for requests. It
also assumes that there are no facilities outside the 25-mile radius
that would impact his or her home. Once the facilities of greatest
concern have been determined, naturally, citizens will want to see how
those facilities compare to others in the same industry in other parts
of the country, and contact other facilities for information on how
they reduced hazards. They will have to go to a GPO depository library
and manually examine thousands of paper submissions to cull some
facilities that qualify, and then would not be allowed to photocopy the
information. The other alternative would be to wait until EPA had made
an OCA electronic database available, although this database would not
have facility identification information, so citizens would not be able
to contact representatives of those other facilities without another
trip to the library, again without a way of searching for what they
need other than looking at every submission.
And the restrictions won't apply just to concerned local citizens.
For example, there are workers at the facilities, for whom Worst Case
Scenario data may be the best vehicle to learn about risks and hazards
on the job, and what other companies are doing to reduce those hazards;
emergency responders, who will want to know if a particular plant meets
the industry standard for safety; educators, who will want to teach
students about best practices; and investors, who want to track the
performance of all the facilities of a particular company. None of
these concerned parties will be able to undertake necessary and
legitimate comparisons and analyses under this bill.
The bill goes further and prohibits dissemination of critical
reports. As part of their accountability to the public, EPA and state
governments need to take an active role in providing comparative
analyses of data from facilities within particular industries, to
determine ``best in class'' practices as they currently exist, in order
to drive real hazard reductions across industries. Similarly,
environmental agencies should provide analyses of uses of specific
chemicals across industries for some of the most hazardous substances.
Under the bill as proposed, these analyses would not be available to
the public. Furthermore, any state or federal government employee who
makes such analyses available could be jailed and/or fined for doing
so.
Finally, the Administration's bill provides a template to restrict
public access to any of the data currently collected by EPA. What's to
prevent a future restriction of TRI data for the 10 most flammable
substances on the TRI list? Or the 10 that are judged to be the most
acutely toxic? Or access to permit application data? Worst of all is
the possibility that such future restrictions could pass under the
guise of a ``technical amendment.''
Just how is it that the Administration went from restricting
Internet access to OCA data only to severe restrictions on data
dissemination by other means? To my knowledge, the review of Worst Case
Scenario data by the FBI is the first time the FBI has reviewed
chemical accident data reported by industrial facilities to determine
the potential threat that on-site use of toxic chemicals pose to local
communities. This is true despite the fact that more than 10 years of
chemical accident data have already been widely available. In my
opinion, the most significant finding made by the FBI during its review
of Worst Case Scenario data was that use of toxic chemicals at
facilities poses an inherent risk to workers, neighboring properties,
and surrounding communities. The FBI additionally found that making the
public aware of chemical use risks over the Internet would only
marginally amplify this inherent, pre-existing risk.
In light of these findings, it is important to emphasize that the
risks emanate from toxic chemical use at facilities, not public
awareness of those risks. By not providing an alternative to public
awareness and pressure, the Administration's bill fails to provide any
impetus for hazard reduction. In return for ignoring the benefits
generated by the public's right to know, any bill restricting access to
OCA data also needs to provide that benefit. The simplest means of
accomplishing that goal would be to instruct the Department of Justice,
along with EPA, to identify the potential for hazard reduction, and
therefore, the reduction in vulnerability of citizens to chemical
exposure, whether accidental or otherwise.
Such a reduction in vulnerability should be accomplished first by
using less toxic chemicals. Where reduction in use is impractical, such
common-sense measures could include safer transportation, storage, and
handling of toxic chemicals. Other mechanisms to be explored are
increases in site security and buffer zones around facilities that
cannot be made safer by other means.
It is important to emphasize that all of the stakeholders in this
process have one common interest: risk reduction. Whether you are the
owner of a chemical plant, a worker, a neighbor, or a host community,
everyone wants fewer and less harmful accidents. I firmly believe that
accident reduction and prevention was Congress's true intent in passing
112(r). Public access to 112(r) data will greatly enhance the
likelihood that fewer accidents will occur. The question before the
Committee today is how we can attain risk reduction while also
providing public access to this important information. Denying, or
severely limiting, public access to the Worst Case Scenario 112(r)
data, whether by the Administration's bill or by other means, does not
relieve EPA, the intelligence community, or the chemical industry of
their shared obligation to reduce risks.
Thank you again for the opportunity to address this Committee. I
would be happy to answer any questions the Committee may have.
Mr. Bilirakis. Thank you, Mr. Natan.
Mr. McMasters.
STATEMENT OF PAUL K. MCMASTERS
Mr. McMasters. Good afternoon, Mr. Chairman, and members of
the committee. Thank you for allowing me to present a freedom
of information perspective, along with these others that have
been expressed this afternoon, on H.R. 1790.
I am testifying today on behalf of the American Society of
Newspaper Editors, which represents 850 directing editors of
newspapers across the country. The ASNE and its members have
long championed maximum access to government information in
recognition of the vital role that informed citizenry plays in
assuring good governance and a secure democracy.
It is our concern that, as introduced, H.R. 1790
contradicts the traditions and principles of open government.
It unwisely changes the requirements of current law.
Specifically, the bill would supersede requirements for
providing information to the public under the Clean Air Act, as
others have indicated. It would exempt important information
from the requirement of the Freedom of Information Act. It
would violate requirements of the Electronic Freedom of
Information Act. More importantly, it would deny the 40 million
Americans who live in the shadow of those 66,000 chemical
plants the information they need to act, and to demand action,
to protect their loved ones and their communities.
To implement the provisions of the amended Clean Air Act,
as it was amended in 1990, the Environmental Protection Agency
decided initially--and quite correctly in compliance with the
Electronic Freedom of Information Act--that the Internet would
be the most effective and democratic way to distribute this
information. Please bear in mind what the proposed risk
management data base would contain: inventories of 140
different chemicals; accident histories; where and how
accidental chemical releases could occur, and the populations
that would be affected. This data base would not contain
security information, storage tank locations, classified
information, or clues as to how a release could be triggered.
As a blueprint for sabotage, the data base would not be
very helpful. However, as a guide for citizens interested in
making sure that chemical plants in their neighborhoods were
hardened against accidental or intentional releases, such
information would be invaluable. During the last 10-year period
to be reported, there were more than a million releases of
chemicals because of accidents, and not a single incident of
sabotage--let alone sabotage as a result of information in the
Internet.
Hundreds of citizens have been killed, and many more
injured in the last few years, not as a result of terrorist
action, but as result of problems not addressed at chemical
plants. Nevertheless, H.R. 1790 proposes a closed system that
would allow release of worst-case scenario information only to
selected State and local government officials in a difficult-
to-access format, and would impose fines and prison sentences
on government employees who might misinterpret the
requirements.
Three years after Congress passed the Electronic Freedom of
Information Act, H.R. 1790 would reverse the course the Act set
for more openness. It effectively says to the public that
access to information in electronic format is more trouble that
it is worth. Under this bill, the EPA would not be allowed to
decide whether the proper guidelines for providing information
in an electronic format are met; and instead, must provide this
information in paper form only. Further, it would cancel EPA's
authority to determine the disposition of information with
which the EPA is most familiar.
As for the Freedom of Information Act, H.R. 1790 would go a
step further than simply adding an exemption to the list of
nine that are already there that were carefully drafted and
limited. There would be no opportunity to challenge this
decision, as is the case when access is blocked through one of
the traditional FOIA exemptions. H.R. 1790 would substantially
deprive the public and local governments alike of the
following: a national data base providing comprehensive
information about the size and nature of potential chemical
accidents for elected leaders, policymakers, and public safety
agencies; an official resource for individual citizens, civic
action groups, and researchers involved in comparing and
analyzing safety and security measures from community to
community; authoritative data to ensure more accurate and
timely reporting by the news media on safety concerns and
accidents; a way for families and firms moving to new
communities to assess the risks; and an instrument for
evaluating the performance of elected officials and government
agencies in protecting the public.
I would just like to conclude by saying for those in
Congress and the administration who believe that information on
the Internet poses more of threat to our safety and security
than toxic and explosive chemicals in vulnerable plants, we
would ask some important questions. If there is a danger of
terrorist activity or targeting, wouldn't it be better if the
entire community knew and was on the look-out? Wouldn't the
availability of accurate, up-to-date risk management plans and
the assumption that vulnerabilities were being addressed
dissuade, rather than attract, would-be terrorists? If our
plants are vulnerable, wouldn't the more sensible approach be
to reduce the threat than to reduce the flow of information?
Isn't the best defense against a terrorist armed with a modem,
a community armed with information?
Mr. Chairman and members of the committee, this Nation's
commitment to open government is what distinguishes us from all
others, especially those who wish us harm or would do us harm.
If we act to deny vital information to American citizens in
anticipation that it might be used by terrorist; then without
raising a hand or voicing a threat, a terrorist will have
damaged an essential democratic tradition, as well as put our
citizens and communities more at risk. In other words, the
unknown terrorist would have only to sit back and wait for the
next preventable chemical plant accident. If that happens; when
that happens; we will have inflicted the injury upon ourselves,
because we have chosen to fear the abstract notion of
information in the wrong hands, over the reality of chemical
hazards in the Nation's neighborhoods.
Thank you.
[The prepared statement of Paul K. McMasters follows:]
Prepared Statement of Paul K. McMasters for the American Society of
Newspapers
Mr. Chairman, members of the Committee. My name is Paul McMasters.
I am here today testifying on behalf of the American Society of
Newspapers Editors as a member of that organization's Freedom of
Information Committee.
The American Society of Newspaper Editors is a nationwide,
professional organization of more than 850 members who hold positions
as directing editors of daily newspapers throughout the United States
and Canada. The purposes of the Society, which was founded more than
seventy-five years ago, include the ongoing responsibility to improve
the manner in which the journalism profession carries out its
responsibilities in providing an unfettered and effective press in the
service of the American people. ASNE is committed to the proposition
that, pursuant to the First Amendment, the press has an obligation to
provide the citizenry of this country with complete and accurate
reports of the affairs of government--whether executive, legislative,
or judicial.
I want to thank the committee for allowing freedom-of-information
advocates to present their views on H.R. 1790, the Chemical Safety
Information and Site Security Act of 1999. The American Society of
Newspaper Editors and its members have long championed maximum access
to government information in recognition of the vital role an informed
citizenry plays in assuring good governance and a secure democracy.
It is our concern that some provisions of H.R. 1790 contradict the
traditions and principles of open government as well as the
requirements of current law. This bill would significantly restrict the
flow of vital information about potential health and safety hazards at
the more than sixty thousand chemical plants located in communities
across this nation.
As written, this bill would cancel specific directions for
providing information to the public under the Clean Air Act. It would
exempt important information from requirements of the Freedom of
Information Act. It would violate specific requirements of the
Electronic Freedom of Information Act. More importantly, it would deny
the 40 million American citizens who live in the shadow of those sixty
thousand chemical plants the information they need to act and to demand
action to protect their loved ones and their communities.
U.S. citizens and their elected leaders have been especially
mindful of the specter of an accidental or intentional release of
hazardous chemicals, explosions and fires since 1984, when a chemical
plant accident in Bhopal, India killed more than 2,000 people. The
reality of that tragedy struck closer to home a year later with the
release of toxic gas at the Union Carbide plant in Institute, West
Virginia. That accident resulted in the hospitalization of more than
135 people and the evacuation of many others.
Spurred by public anxiety about those incidents and the possibility
of others, Congress amended the Clean Air Act in 1990 to require the
thousands of companies manufacturing, storing or transporting hazardous
chemicals to develop risk management plans to be disclosed to the
public. This requirement served the purposes of making citizens and
taxpayers more aware, enlisting them as partners in making communities
more secure, and reassuring them that their government places the
public interest above special interests.
To implement the provisions of the amended Clean Air Act, the
Environmental Protection Agency has decided quite correctly, and in
compliance with the Electronic Freedom of Information Act, that the
Internet would be the most effective and democratic way to distribute
this information. Unfortunately, reservations expressed by federal
security agencies forced the EPA to abandon that strategy. As the June
21 deadline for disclosure of this information approached and the
memory of those chemical disasters dimmed, federal security agencies
and the chemical industry began to talk about a point-and-click worst-
case-scenario: terrorists might use information on the Internet to
create a chemical catastrophe in one or more of our communities.
Please bear in mind what the proposed risk management plan database
would contain: inventories of 140 different chemicals, accident
histories, where and how accidental chemical releases could occur, and
the populations that would be affected--in other words, ``worst-case
scenarios'' and ``off-site consequence analyses.'' This database would
not contain security information, storage tank locations, classified
information, or clues as to how a release could be triggered. In other
words, as a blueprint for sabotage, the database would not be very
helpful.
As a guide for citizens interested in making sure that chemical
plants in their neighborhoods were hardened against accidental or
intentional releases, however, such information would be invaluable.
The concerns of agencies and officials charged with protecting us
from terrorist attacks certainly are understandable. But restricting
the flow of information leaves citizens in ignorance while a variety of
information is readily available to would-be terrorists who care to
check telephone and city directories (online or off-line), attend
chemical industry trade shows, check out chemical manufacturing
directories in libraries, peruse EPA databases already posted, or even
access congressional testimony posted on the Internet.
It seems a safe assumption that a terrorist organization would be
much more likely to select a chemical plant target based on political
impact or inside information about vulnerabilities than as a result of
its appearance in an Internet database. And it seems prudent to keep in
mind that, during the latest 10-year period to be reported, there were
more than a million releases of chemicals because of accidents and not
a single incident of sabotage, let alone sabotage as a result of
information on the Internet. Hundreds of citizens have been killed and
many more injured in the last few years, not as a result of terrorist
action but as a result of problems not addressed at chemical plants.
Nevertheless, H.R. 1790 proposes a ``closed system'' that would
allow release of worst-case scenario information only to state and
local government officials in a difficult-to-access format and would
impose fines and prison sentences on government employees who might
misinterpret the restrictions.
Further, this legislation conflicts with the Electronic Freedom of
Information Act of 1996. EFOIA states: ``In making any records
available to a person under this paragraph, an agency shall provide the
record in any form or format requested by the person if the record is
readily reproducible by the agency in that form or format. Each agency
shall make reasonable efforts to maintain its records in forms or
formats that are reproducible for purposes of this section.'' 5 USC
Sec. 552(a)(3)(B). Three years after Congress passed EFOIA, H.R. 1790
would reverse the course toward more openness set by that Act. Instead
of heeding EFOIA's mandate that all records be provided in any form or
format in which they are readily reproducible, H.R. 1790 explicitly
acknowledges that this choice is no longer in the hands of the
requestor, and tips the scales of access back to the government.
EFOIA also states: ``In responding under this paragraph to a
request for records, an agency shall make reasonable efforts to search
for the records in electronic form or format, except when such efforts
would significantly interfere with the operation of the agency's
automated information system.'' 5 U.S.C. Sec. 552(a)(3)(C). Three years
after the passage of EFOIA, H.R. 1790 effectively says to the public
that access to information in electronic format is more trouble than it
is worth. Even though there is no evidence that searching for worst-
case scenario information would do damage to the agency's automated
information system, and even though these records are available in
electronic format, the EPA is not allowed to decide whether the proper
guidelines for providing information in electronic format are met and
instead must provide this information in paper form only.
Finally, EFOIA states: ``Each agency, in accordance with published
rules, shall make available for public inspection and copying . . .
copies of all records, regardless of form or format, which have been
released to any person under paragraph (3) and which, because of the
nature of their subject matter, the agency determines have become or
are likely to become the subject of subsequent requests for
substantially the same records.'' 5 U.S.C. Sec. 552(a)(2)(D). Again,
only three years after EFOIA afforded federal agencies the opportunity
to reduce the volume of paper records they must keep, reduce the
expense of copying these records, and to reduce their own workloads,
H.R. 1790 would cancel the EPA's authority to determine the
dissemination of information with which the EPA is most familiar. The
EPA would have no discretion in determining whether worst-case scenario
information is useful and desirable enough to the public to put in
electronic format or whether it is just another record.
Freedom of information advocates, including ASNE, maintain that the
Freedom of Information Act is a general law and should not be amended
for special interests or special categories of information. The law has
served democracy for more than three decades, providing access to all
information, except for nine specifically drafted and limited
exceptions. H.R. 1790 would go a step further than simply adding to
this list by removing an entire set of records from the purview of the
FOIA. There would be no room for interpretation by the EPA as to
whether release of these records pose a real danger and no opportunity
for anyone to challenge this decision, as is the case when a request is
denied due to one of the traditional FOIA exemptions.
More generally, H.R. 1790 approaches this admittedly sensitive
situation as if information poses more of a threat to U.S. citizens
than the toxic chemicals manufactured and stored in their communities.
That approach puts data in a meaningful and utilitarian form beyond the
reach of ordinary citizens who would be more likely to press for
additional safety measures if they were fully informed about potential
dangers and more knowledgeable about what other communities in similar
situations were doing. In effect, H.R. 1790 would substantially deprive
the public and local governments alike of the following:
A national database providing comprehensive information about the size
and nature of the potential chemical accidents for elected
leaders, policy makers and public safety agencies;
An official resource for individual citizens, civic action groups, and
researchers involved in comparing and analyzing safety and
security measures from community to community;
Authoritative data to insure more accurate and timely reporting by the
news media on safety concerns and accidents;
A way for families and firms moving to new communities to assess the
risks; and
An instrument for evaluating the performance of elected officials and
government agencies in protecting the public.
The public needs to know whether local plants are employing new
technologies and techniques that use fewer chemicals, operate at safer
pressures and temperatures, reduce storage amount and time and cut down
on the frequency and distance of transportation. Citizens need to know
what the companies in their midst are doing about secondary
containment, automatic shutoffs, alarms, fences, barriers, buffer
zones, security forces, and the off-site impact of a chemical release.
H.R. 1790 would compromise and complicate access to such
information.
There are good examples of how providing information about chemical
and pollution hazards benefits both the public and the chemical
industry. The EPA's Toxic Release Inventory, for example, was opposed
at the time it was being debated for many of the same reasons the
worst-case scenario information is opposed now. Yet the TRI has led to
significant reductions of chemical dangers and releases as well as
improved safety and security in communities across the nation.
For those in Congress and the administration who believe that
information on the Internet poses more of a threat to our safety and
security than toxic and explosive chemicals in vulnerable plants, we
would ask some important questions:
If there is a danger of terrorist activity or targeting, wouldn't
it be better if the entire community knew and was on the look-out?
Wouldn't the availability of accurate, up-to-date risk management
plans and the assumption that vulnerabilities were being addressed
dissuade rather than attract would-be terrorists?
Wouldn't the more sensible approach be to reduce the threat than to
reduce the flow of information?
Isn't the best defense against a terrorist armed with a modem a
community armed with accurate information?
Mr. Chairman and members of the Committee, this nation's commitment
to open government is what distinguishes us from others--especially
those who wish us harm and would do us harm. If we deny vital
information to American citizens in anticipation that it might be used
by terrorists, they will have damaged an essential democratic tradition
as well as put our citizens and communities more at risk. This without
a single terrorist raising a hand or voicing a threat. The unknown
terrorists only have to sit back and wait for the next preventable
chemical plant accident. If that happens, when that happens, we will
have inflicted the injury on ourselves because we have chosen to fear
the abstract notion of information in the wrong hands more than the
reality of chemical hazards in the nation's neighborhoods.
Thank you. I will be happy to try to answer any questions you might
have.
Mr. Bilirakis. Thank you very much, Mr. McMasters.
Honestly, you all have raised some very valid points. The
administration was charged--charged themselves, if you will--
with the responsibility of crafting a piece a legislation some
few months ago.
Ms. Kinsey, others have said that you really haven't had
much of an opportunity to review this legislation to see how it
might work from a real world, practical standpoint. Frankly, we
have not had that much of an opportunity either. Why? Because
we received the legislation a few days ago. We have had one
hearing on it already. The minority and majority have been
working very intently over these last few days addressing--many
of your concerns. I would wager, that they have addressed the
majority of them and maybe, virtually every one of them. We are
concerned about many of the same things that you have raised.
I would ask you, Ms. Kinsey, has the administration tried
to communicate with your office at all? They say you should
never ask a question unless you know the answer. I have no idea
of the answer.
Ms. Kinsey. No, Mr. Chairman, not to my knowledge. I will
say not to my knowledge. If there was contact, I am not aware
of it.
Mr. Bilirakis. To your knowledge, have they made any
attempt to communicate with any other States attorney generals?
Ms. Kinsey. Not to my knowledge. Not to my knowledge.
Mr. Bilirakis. How about the rest of you--any attempts been
made to communicate with you; to get your opinions, your
inputs? Mr. Billings?
Mr. Billings. They have certainly made no attempt to
communicate with the National Conference of State Legislatures.
Obviously, I wouldn't know about individual legislatures. But I
have a hunch that this has been pretty much inside baseball.
Mr. Bilirakis. Well, time is kind of a-wasting here. Mr.
Grumet made that point very well. Many of us feel that
something needs to be done. We also feel that we want to try to
do it right, but we have to do it within the confines of the
time that we are faced with.
Well, I am not going to go into any specific questions here
now. Considering that we don't have really all that much time,
we are open-minded and would like to get your inputs. If you
have any additional comments, please feel free to submit those
to us. At the same time, our staffs may be submitting written
questions to you, which request written responses. Obviously,
those responses would have to be turned-around quickly,
unfortunately. Please try to understand our role in all this
and the significance of what we are trying to accomplish. Mr.
Brown.
Mr. Brown. Thank you, Mr. Chairman. The letter that I
mentioned in my opening statement from Mayor Qualls in
Cincinnati points out her concern about criminal penalties for
the release of information that local staff or elected official
could be subject. She says that it is unprecedented for locally
elected officials to face possibility of jail time based upon
guidance from the EPA administrator. Ms. Southwell, in your
testimony you mentioned--in your written testimony, sorry I
wasn't here for your oral testimony--under section C, part A,
if members of LEPCs, as either employees or volunteers to the
local government do the task required of them they can be
arrested, fined or jailed for up to 1 year.
I guess I am asking any of you if you know of any precedent
for any EPA guidance having this effect on the State and local
government? That is the first question. Second, I guess for
you, Ms. Southwell, if you would sort of talk about the effect
that has on recruiting the volunteers and hiring--that sort of
thing. Start with if any of you know of any precedent for any
EPA guidance? Ms. Kinsey?
Ms. Kinsey. No, Congressman, I am not aware of any.
Mr. Brown. Mr. Grumet?
Mr. Grumet. My members and directors are often underpaid.
They are often disrespected. They have never been jailed or
fined, to my knowledge.
Mr. Brown. That is where it starts. Ms. Southwell?
Ms. Southwell. Well, as a person who works for county
government, we have to be very cautious and careful about
protecting the rights of citizens; of taking care of people in
our community. It is what our job is really all about. I can
truthfully say that never once have I ever been concerned that
in working at a spill site, doing planning, or doing any of the
other jobs that I have done for Washtenaw County, that I would
not have the full support of that county. Never once was I
concerned that I was going to be sent to jail for a year, or be
fined, because I was doing my job. What really alarms me about
this is that I see this as a no-win situation for a person on
the LEPC. I added some appendices of different legislation.
Under SARA title III, I am required to do this; this is part of
my job. Under this bill, if I do my job, then I am facing
penalties and possible jail time. I see this as a terrible
conflict.
One of the wonderful things that LEPCs have done in the
past 12 years is that they have brought to the table citizens,
facility coordinators, business owners, professionals, and
advocates for the environment and have really built some
incredible relationships. Based on those, in our community
alone we have seen these relationships continue to grow and
become partners in things like pollution prevention. We have
seen people, who before were at opposite ends of the table,
sitting down together and taking those chances, and taking that
opportunity to protect our community and take good care of the
environment where we all live together. It opened the door for
that trust and credibility when we had to sit down and start
planning together because it was required of us. We didn't like
each other, necessarily, at first. Now we get along pretty
well. If you close that door, and you hide things again, what
is the message to the communities? What is the message to
people if we take those steps that government worked so hard to
open?
I have a lot of concerns. It will impact our LEPC. Frankly,
if I were those people, I would quit. I can't because it is my
job. They promised that they would protect me if I go to jail.
Mr. Brown. Thank you. Anybody else want to add to that?
Mr. Billings. Congressman, an additive point is that
because this legislation not only is preemptive, it also would
expose officials operating under State law to these penalties.
So if the State of Maryland enacted its own legislation which
gathered similar kinds of data, these employees would be
exposed to those Federal penalties if they released the data
that was gathered under State law. That is almost preposterous.
I think it is preposterous.
Mr. Brown. Ms. Kinsey, what happens to worst-case scenario
data in an area near a State line? Is there a problem of
Maryland sharing with Delaware, or Maryland sharing with
Pennsylvania? To me it seems that it is not clear in the
legislation what happens there. What is your read?
Ms. Kinsey. I think that the legislation purports to
prevent Maryland from sharing such information. I think a real
concern that we have is that when a citizen of Maryland
requests of its State and local government information relating
to a border facility--a facility that is located in another
state, but very close to the state line--which does clearly
have an impact environmentally, or in health or safety respects
on that particular citizen or its community; the State, as I
read this bill, would be precluded from providing that citizen
with that information. I think our citizens in Maryland--and I
think I probably speak for other attorneys general--have a
legitimate right to expect their local government to be able to
provide them with that kind of information. We are not clear on
the justification for that provision in the bill.
Mr. Bilirakis. Did you want to add something to that?
Mr. Grumet. For a moment. The whole very purpose of our
organization is based on the premise that air pollution doesn't
attend to these political boundaries. The goal of working
together to come up with a more regionally appropriate
solution, we think, is very challenged by the ideas in this
bill.
Mr. Bilirakis. Well put. Mr. Burr.
Mr. Burr. Thank you, Mr. Chairman. Ms. Southwell, I fully
understand the concerns that you have as it relates to the
criminal penalty part. The EPA is--I think--on record as saying
that they are working to clarify that language. I think the
EPA, if they were here today, would say that for the LEPCs,
once they fix that criminal penalty clause, that you would be
able to give oral presentations on worst-case scenarios;
distribute written copies of worst-case scenarios; prepare
overhead presentations of worst-case scenarios; prepare
analysis and research of worst-case scenarios; and prepare and
distribute information or brochures on worst-case scenarios.
Given that, which is full access to disseminate this
information, with the exception of it being electronic access
or electronic distribution, would that eliminate your concerns?
Ms. Southwell. No it wouldn't. I didn't get an opportunity
to address that, but it is in my testimony. It will eliminate
my concern about going to jail. I will sleep better tonight. We
have over 1,400 records already in Washtenaw County that we are
preparing to put on our website.
Mr. Burr. So you would be against this bill because it
limits you from not being able to access it electronically?
Ms. Southwell. Absolutely. Think about 66,000 facilities
and all of LEPCs hammering at the door of EPA--because that is
where the information is going--to get that information so that
we can plan effectively for our communities.
Mr. Burr. Clearly, the intent is to have the information
out. That is still to be worked out. Mr. Grumet, if it is not
electronically you are against it--perfect bill, but not
electronic?
Mr. Grumet. Well, I think it is----
Mr. Burr. It is a yes or no. I have only 5 minutes.
Mr. Grumet. Yes, I am still against it.
Mr. Burr. Ms. Kinsey?
Ms. DeGette. Yes, I think would have to say.
Mr. Burr. Mr. Natan?
Mr. Natan. Yes.
Mr. Burr. Mr. McMasters, I think I know your answer.
Mr. McMasters. Absolutely.
Mr. Burr. I look forward, the next time, to see your
journalist notes listed also next to the story so that we can
get the full story as well. Mr. Billings--Representative
Billings, excuse me.
Mr. Billings. Delegate, actually; but, yes.
Mr. Burr. Representative Billings, you have quite a history
in Washington; one that goes back with some very distinguished
fellows. Certainly, your election to the House of Delegates is
one that gives this committee an indication of just how well
thought of you are.
Today, though, are you here as a State legislator, or as a
lobbyist?
Mr. Billings. I am here as a State legislator.
Mr. Burr. The reason I ask the question is that most who
come list their disclosures on who they represent. I think that
you can probably understand why we might have a concern and
need the clarification.
Mr. Billings. Congressman, in the first place, I wouldn't
be here if I were representing anybody except in my capacity as
I disclosed at the beginning of my statement.
Mr. Burr. None of you current or past billing customers
would have an interest in the outcome of this legislation?
Mr. Billings. My past? I don't know. I used to represent
the South Coast Air Quality Management District. They probably
would be concerned by this legislation.
Mr. Burr. As a State legislator, do you understand the
unique responsibility that we have to balance the national
security with the community right-to-know as it relates to
this?
Mr. Billings. Yes. As a matter of fact, Congressman, I was
thinking during this testimony about that there is always a
tension between the exercise of the police function and the
protection of a robust democracy. Historically, this country
has erred on the side of protecting a robust democracy and
restraining the police function. I think that is a lesson that
is well applied in considering this legislation. We have to be
extremely careful when we say that the communities' right-to-
know and government agencies' right-to-know is less important
than some demonstrated police or security concern. I think we
have to be very careful.
Mr. Burr. Thomas Jefferson said, ``I am not an advocate of
frequent changes in laws and constitutions. But laws and
institutions must advance to keep pace with the progress of the
human mind.'' I think to future legislators, that was a message
that we must change as society changes. We must stay ahead of
the technological curve.
I think it also works in reverse. We must understand the
full impact of technology. The fact is, if this were 12 years
ago with no developed Internet, we really wouldn't be here,
because one of the options on the table would not be electronic
transfer.
Assuming, Ms. Southwell, that we have the criminal penalty
side fixed--I think that is a commitment that we all have--
would there be anybody that would disagree that if there was
not an Internet and we fixed that part, we wouldn't be here? It
wouldn't be an option on the table to have electronic transfer.
I think that Jefferson's words are important for us to look at
and to say--in this particular case--if we look for that
balance, hopefully we don't err too far on the side of the
police state. Hopefully, we do fulfill the law as it relates to
the community right-to-know. Finding that balance is important.
I don't think, Representative Billings, that it is limited to a
Republican Congress, as you stated in your testimony.
Mr. Billings. I actually corrected that and said the
administration and a Republican Congress.
Mr. Bilirakis. With all due respect, sir, it isn't the
Republican Congress. It is just that we have the responsibility
here of addressing it. The Democrats would have the
responsibility of addressing it if they were they majority.
Mr. Burr. One of the few times that we have been asked to
carry the administration's order, I think, Mr. Chairman. I
thank all of you for your willingness on short notice to come
before the committee and be candid about your position on these
issues.
Mr. Bilirakis. The gentleman's time has run out.
Mr. Burr. I yield back the balance of my time, Mr.
Chairman.
Mr. Bilirakis. You are always yielding back the balance of
the time that you don't have, Richard.
Ms. DeGette.
Ms. DeGette. Thank you, Mr. Chairman. Also, thank you to my
colleague from California for letting me go out of order. Thank
you, Mr. Chairman, for holding this follow-up hearing to what I
thought was an illuminating hearing last week, but not
complete. Certainly this panel's testimony gives us more
complete information.
You spelled it all out pretty well for us. I guess I would
like some of you--or all of you--to comment briefly on what
threat you really think posting this information on the
Internet would give, via terrorists or criminals getting this
information in ways that they might not have it? How much if
this information will they get that they wouldn't be able to
get otherwise? Maybe, Ms. Southwell, you could start and tell
me: the facilities you work with, are they worried that there
would be information posted that wouldn't otherwise be there?
Ms. Southwell. Actually, they are not. I think the reason
for that is because their concern, back when we started doing
planning, was that maps of the facility would be available to
the public and something terrible was going to happen. They
were worried 12 years ago that the bomb would fall right on
their facility if they had the map. That kind of mapping is not
going to be available. Anyone with a pencil and a National
Response Team guidebook, just via the chemical inventory, could
sit down and create a plume model; would know how bad this
could really be; and would know what the potential consequences
would be if they blew up that facility--if that is, indeed, the
concern.
So that information has been out for so long. Facilities
are not concerned about that at all. They are much more
concerned about getting their risk management plan in by June
21.
Mr. Grumet. If I could add to that, Congresswoman? Your
question and earlier questions make a presumption that, I
think, is worth exploring: that this law, in fact, would stop
this information from getting on the Internet, even with the
punitive penalties at avail. It was only a couple of weeks ago
when of the names of several--tens, I think, if not hundreds--
British secret agents were posted on the Internet. Now,
obviously, that is a security breach the likes of which nothing
here we are talking about obtains. What I suggest is that in
free democracy, controlling information is ultimately--I
think--a failing exercise.
I would suggest to you that this information will wind up
on the Internet regardless--fortunately or unfortunately--of
what happens here. Rather than trying to invest our resources
in trying to constrain and control that, we would be better
served to use that information to protect ourselves. I refer
back to the other comments that many of us have made: we think
there are many opportunities to make these sites much more
secure than they are today.
Ms. DeGette. Anyone else?
Ms. Kinsey. I would just agree with both Mr. Grumet's
comments and Ms. Southwell's comments. We think that a lot of
this information is out there now. Maryland is one of the
States that has been encouraging this kind of exchange of
information between facilities and the communities that those
facilities are located in, for a number of years now. So, I
would agree that this information will make its way onto the
Internet.
Ms. DeGette. And I would assume, Ms. Kinsey, that
facilities are taking steps to protect themselves against
terrorist activity, based on the assumption that people have
full information from other sources.
Ms. Kinsey. Yes, I would assume that to be true. I don't
have personal knowledge, myself, of what security measures or
plans have been implemented; but I would assume that to be the
case.
Ms. DeGette. Great. Thank you very much. I will yield back.
Mr. Bilirakis. I thank the gentlelady. Mr. Bryant.
Mr. Bryant. Thank you, Mr. Chairman. I apologize to this
committee and the witnesses for being late. I was unable to
hear most of your testimony. I have skimmed through some of the
statements that you have sent to us.
I appreciate where you all are coming from, and the fact
that you do have legitimate concerns. As our subcommittee
chairman has indicated, there are problems with this bill that
can be, I believe, fixed. We are all after the same end here,
that is: public safety. Whether it is from an accidental
situation at a plant, or whether it is from a terrorist bomb or
action, there is a potential for public risk to public safety
in either event. What we are trying to do is come up with a
bill that fulfills the law; and in an appropriate way, balances
those competing interests.
I think it has also been made clear to all here that this
bill has been hashed out over a period of time by various
groups, including the President, the Department of Justice, the
EPA, and the FBI--people like that who, by and large, have that
same public interest at issue. Particularly with the EPA, if
they are going to tilt one way or the other, it is going to be
to the public safety from accidental discharge, public
knowledge, and access to this knowledge. It seems to me that
those folks are the ones that are going to typically be that
way.
Maybe the FBI tends to be more the other way. I am
certainly impressed by the FBI and have been a supporter of
those folks for a long time. Am I correct in understanding that
none of your groups were consulted during this? You all are
nodding ``yes.'' Your presence today and input into this is
going to be taken into consideration as this bill is worked
through this subcommittee, the full committee, the full House,
and ultimately the Senate. Hopefully, the President will sign a
bill.
I do appreciate your coming here and giving your opinions.
Mr. McMasters, I have represented a newspaper before--not on
this issue--but other things: freedom of information actions,
sunshine law violations, as well as libel lawsuit, and things
of that nature. I appreciate your interest.
I would tell you that from my standpoint--Ms. Kinsey, you
being a State attorney general, maybe we have some commonality
here on this point--I have a great deal of sympathy for what
the law enforcement people are trying to do here, too.
Again, that is why we are all paid so much up here. We are
to try to strike that fair balance that maybe makes everybody
mostly happy, but not completely happy. Clearly, the issue of
the criminal penalty is something that I think we can all agree
on there. That is going to have to be reworked. I am
optimistic. We have a lot of bright people on the subcommittee
and the committee--I am talking mainly about the staff people.
We do appreciate your accommodating us on such a short time
schedule.
I yield back my time.
Mr. Bilirakis. I thank the gentleman. Mr. Waxman.
Mr. Waxman. Thank you, Mr. Chairman. I have listened very
carefully to what Mr. Bryant had to say. I think we are all
struggling with this question. If you look at it from the
perspective of information being on the Internet, and a
terrorist searching for information; you could come up with
this conclusion: don't let anybody have any information. If
nobody has information, then terrorists won't have information.
But the only way this bill deals with the possible
terrorists threat is to stop the flow of information. It
doesn't deal with--it seems to me--the more logical concern,
and that is the security of these sites where the facilities
are located. I thought Mr. McMasters, in the last couple of
pages of his testimony, was right on target: ``For those in
Congress and the administration who believe that information on
the Internet poses more of threat to our safety and security
than toxic and explosive chemicals in vulnerable plants, we
would ask some important questions.'' He asks wouldn't it be
better if the entire community knew and were on the look-out?
Wouldn't the availability of accurate, up-to-date management
plans and the assumption of vulnerabilities being addressed
dissuade, rather than attract terrorists? The more sensible
approach would be to reduce the threat than to reduce the flow
of information.
Mr. Billings cited the statements put in by the ATSDR. They
said in one of their reports that, ``Security at chemical
plants ranges from fair to poor.'' They point out that security
measures at abortion clinics is, in general, far superior to
the security at chemical plants. That doesn't make any sense;
except they realized that they are vulnerable so they have
tried to take steps to protect themselves.
Chemical plants ought to be taking steps, as well. In fact,
one of the proposals that we have made is that there be a task
force convened to look at ways to make these sites more secure.
That should be the primary way to deal with a possible threat.
I was trying to listen carefully to Mr. Burr's question. He
was asking what if we dropped the criminal penalties out of
this bill? The criminal penalties, obviously, make no sense. It
is just absurd that someone should possibly be facing criminal
charges for disseminating information that is publicly
available. Even with criminal penalties out, if the fear is
with information getting on the Internet, somebody is going to
put it on the Internet. Isn't that right? Mr. Grumet, you are
shaking your head.
Mr. Grumet. In my experience. I don't surf the Web often.
Ms. Southwell. I surf the Web a lot.
Mr. Waxman. Are you a terrorist, by any chance?
Ms. Southwell. Not yet.
Mr. Burr. If the gentleman would yield. Clarifying the
language was the term I used. Not dropping it; but clarifying
the language for criminal penalty.
Mr. Waxman. So you would keep some criminal penalties?
Mr. Burr. I am using the EPA's terminology. I don't know
how they define that, yet.
Mr. Waxman. I don't want to attribute anything to you that
would not be your point of view. You were suggesting that if
they modified or changed the language of the bill--which has to
be offensive to all of us in the way that it is presently
drafted--would it be acceptable? It just seems to me that it
does not stop the problem of information that is made public
being known by the public, and people in the public that we
wish didn't have that information.
So the question is: should we stop the flow of information
when we know that flow of information can be so important to
prevent accidents to prevent possible terrorist attacks? Should
that be our focus; or should we put our focus on the site?
Mr. McMasters, you had a whole litany of things that you
thought could be done at these sites that might be helpful.
Mr. McMasters. As we have seen with the toxic release
inventory, Congressman, there has been all sorts of
improvements that I think can be directly attributable to the
release of information to the public.
Mr. Waxman. What about the sites?
Mr. McMasters. Well, the kinds of things at the sites that
I think are interesting as far as getting information to the
public, is looking at--I am trying to find the actual list that
I gave, here----
Mr. Waxman. Well, on page six.
Mr. McMasters. ``Citizens need to know the companies in
their midst are doing about secondary containment, automatic
shutoffs, alarms, fences, barriers, bugger zones, security
forces, and the offsite impact of a chemical release.'' All of
those kinds of things are starting places with this data base
that originally was proposed by the EPA. The EPA backed off the
proposal of putting this on the Internet after being contacted
by the FBI, who was contacted by the Chemical Manufacturers
Association.
So I feel that there is probably more people out there that
people wouldn't want getting hold of this information in a data
base-searchable form, including journalists.
Mr. Waxman. Thank you, Mr. Chairman.
Mr. Bilirakis. Thank you, sir. Mr. Green.
Mr. Green. Thank you, Mr. Chairman. I want to welcome
Delegate Billings. I was a state senator and Mayor Whitmire, in
Houston, appointed me to our LEPC in the 1980's. I think it was
a punishment, because I had to run for Congress to be able to
leave gracefully.
I do know in the inception of it--and it worked for the
first time--the industries I represented actually sat down with
emergency personnel in the city of Houston, because that was
our area, and shared that information. That is what I fear with
this. My good friend, Richard, I think you have a point: if we
didn't have the Internet, we wouldn't be worried about it. But,
frankly, we could go back to stone tablets.
I have found that you cannot stop technology. If we are
going to say that you can't put it on the Internet and it is
still public record, somebody will have access to it. If you
are worried about it going to some foreign country--it can be
mailed. There are lots of ways to do it. I also understand the
difference in police versus public information in our national
security. That is why this is cloaked in national security.
Nobody ever asked me as a State legislator whether I had
anything to do with national security, but that is our role
here. That is why I think the balance, if we can find
something. Let me ask first, I think we all agree that the bill
is well-intentioned. How can we address the fear and still
eliminate some of the major flaws? Do any of you have any
suggestions on how we can change the bill? Other than tinker
with the criminal penalties, can we protect the community's
right-to-know and share the information, and yet still limit
the risk?
Actually, Mr. Waxman is correct. There is not a business in
the country that can't do better, whether in this business or
anything else. Do you have any suggestions on the actual
legislation?
Mr. Billings. Well, one, I think that several members of
the panel have suggested that if you going to make these kinds
of judgments, they ought to be case-by-case decisions, and not
exempting 66,000 facilities without any determination as to
what the nature of the risk is, and so on. So, one is case-by-
case.
No. 2, is the ATSDR report that Congressman Waxman cited.
It suggests that there are a number of the facilities which,
apparently, are not secure. So, it would seem to me that the
second thing you would do would be to address the question of
the extent to which you have secure facilities. Once we have
secure facilities, and trained personnel, and so on; then I
think you can go to the next step of determining what the risk
is, and talk about legislation like this.
Mr. Green. Any other suggestions?
Ms. Southwell. One of the things that I have also done as
part of county government is to work with emergency management,
which would be like the local county branch part of FEMA. It
was required to do risk and hazard analysis. They are quite
capable of that, and putting together an emergency operation
plan of which the LEPC plans all come together. I think that
emergency management is very capable at the local level of
working with facilities at helping them assess their
vulnerability, and to looking at what kind of risks and hazards
that these facilities have in the community. I think that is a
natural arm that is already in place to address this particular
issue. The technical guidance is there. The information is
there. I think that that would be a much better way: to work
with those facilities in what makes them vulnerable and how can
be best prop that up, as opposed to taking away their right to
information.
Mr. Grumet. If I could just also amplify. I think the
Northeast States, essentially, share Delegate Billings' notion
that of the 66,000 facilities, there has got to be some
variation of risk. If there might be a couple of hundred
facilities which, due to their very dangerous chemicals and
their dramatic insecurity, should be exempted from this--
recognizing that, therefore, there would be a process in place
to fix that problem, not just obscure it--would be a very
different approach to this legislation. I don't have a
particular legislative proposal, but that concept strikes me as
appropriate.
Mr. Green. I think that gives us something. Before I run
out of time, let me ask something else because we are up to the
June 21 deadline. Things happen quicker in the House of
Delegates than it does in Congress. To change this, do you
think, Mr. Chairman, we might look at passing on a short basis
an extension of that deadline to be able to work out something
like giving the authority of case-by-case, if there is a real
national security, compared to, like you said, the number of
facilities?
Mr. Bilirakis. Was that a question?
Mr. Green. That was a question. Extending the deadline.
Mr. Natan. As long as there some provision for, during that
time, also assessing what the benefits of risk reduction might
pose toward countering any decrease in information available to
the public. Also, simply, if a certain time expired and they
have not reached that compromise, that information would simply
be available.
Mr. Grumet. Can I add to that? Extending the posting
deadline should have no basis on the submission deadline. I
would see those as separate questions.
Mr. Green. Yes, the submission deadline. Again, I know
that, at least in my area, they have been working to be able to
do that.
Thank you, Mr. Chairman. Thank you for doing the hearing
today. I think it has given us another side.
Mr. Bilirakis. It has. Mr. Barrett.
Mr. Barrett. Thank you, Mr. Chairman. I also thank you for
holding the hearing today. I apologize for missing much of the
testimony. So my questions may be redundant, or might be pretty
elementary. Perhaps you can better understand some of the
concerns that we have here.
My understanding is that the information that we are
talking about is kept by a Federal depository library. The
question that I have, for any of you that might know the answer
to this, whether you know of any Federal statute that provides
that information that is kept by a Federal depository library
can only be disseminated in certain electronic formats, or that
place restrictions on the ability of the patrons to copy them?
Nobody? Okay. The second question has to do with--I think
Mr. Waxman made reference to the criminalization here--whether
there is a precedent for criminalizing the release of
information in an electronic form that would not be a crime to
release in a non-electronic form? Are we going in a new area
here? Mr. McMasters, do you know of any?
Mr. McMasters. I know of no example of that, sir.
Mr. Natan. With regard to electronic form of information,
as Mr. Burr has asked before, the simple fact of having it
available electronically means that you as a local citizen, who
may be subjected to 80 or more chemical plants in a 50-mile
area around your home, can easily prioritize which ones you
need to worry about, rather than looking through thousands of
pieces of paper. That is the advantage of the electronic
dissemination. All it takes is a simple spreadsheet given to
you on disk. It does not have to come over the Internet.
Mr. Barrett. Okay. Ms. Southwell?
Ms. Southwell. I just wanted to say that we are already
preparing to put our SARA title III facility plans online. Many
of the facilities that are captured under the Clean Air Act
amendments are also SARA title III facilities. So if we move
forward, under this legislation, with those plans to do best we
can for the spirit of community right-to-know--you know, make
that as available as possible--I am afraid we are already going
to be in trouble. Until we hear about whatever happens with
this bill, we are not going to be able to move forward.
Mr. Barrett. Not really. At the risk of showing what a
computer Neanderthal I am, with the prohibition, I assume it
means you can't create a website with this information on it?
Is that what we are saying here?
Ms. Southwell. It is not just a website. It means that
there can be no electronic transfer of the data.
Mr. Barrett. I could not e-mail information?
Ms. Southwell. Right.
Mr. Natan. You couldn't even get it on diskette.
Ms. Southwell. Right, because that is electronic.
Mr. Barrett. You could not use this method of
communication, period.
Mr. Natan. Only on paper.
Ms. Southwell. You cannot use your computer, at all.
Mr. McMasters. That would thwart, for instance, the ability
of researchers, journalists and others being able to do
comparative analysis using the data base information; and
report to all of those American citizens who don't have access
to the Internet; and give them some idea of what is out there
and what one community is doing as opposed to another
community; and what one plant is doing as compared to another
plant.
Mr. Barrett. If one of you would play devil's advocate and
tell me why we would want to prohibit Internet or electronic
communication, but not paper communication. What is the
argument for doing that?
Ms. Southwell. I think that one of the things that will
happen--and it was addressed before, but I would reiterate
again--is that if this is available on paper, someone is going
to take it and put it on the Internet, anyway. It is just going
to happen. That needs to be a longer and more thoughtful
process. If it is available on paper, it doesn't mean that I
will put it on the Internet. But it could be that a citizen
comes into my office and asks for that information. We make
them copies. They put it out there. It will still be there.
Mr. Barrett. Okay. Finally, I think we understand the goal
of the legislation. Is there another way that you would fashion
trying to deal with this problem? Again, Mr. McMasters, I think
in your testimony you talked about all the accidents at
chemical companies, as opposed to sabotage that occurs on the
Internet. Are we searching? Do you think there is another way
to get at this issue?
Mr. McMasters. My suggestion was that in restricting this
flow of information, and preventing it being posted
electronically, you are just really inconveniencing the
citizens. The determined terrorist, who really is wanting to
target an individual plant, or plants, already has any number
of ways of getting at this kind of information. It is the
citizens who are denied the information that they might be able
to harden their communities and the plants from them.
Mr. Barrett. Thank you. Thank you, Mr. Chairman.
Mr. Bilirakis. Thank you, Mr. Barrett. Mr. Stupak, to
inquire.
Mr. Stupak. Thank you, Mr. Chairman. I apologize for being
late. I had a number of other things going on today. Ms.
Southwell, you are a coordinator for a local emergency planning
committee, in Ann Arbor? Could you explain to me the importance
for you to be able to disseminate, electronically or otherwise,
information that identifies a likely plume dispersion path of
each chemical in the worst-case scenario; and to identify
potentially affected regions and populations? Explain why that
is important to you.
Ms. Southwell. Why it is so critical?
Mr. Stupak. Yes.
Ms. Southwell. It is critical to citizens, to the people
who live in our area, because it lets them begin to make
informed decisions about choices that they are going to make.
It can help them be prepared for just-in-case. It doesn't mean
panic. It just means being prepared for just-in-case. There are
things that you can do. We all saw them during the war, when
people in Israel were putting plastic up over their windows,
and had a central room. That is one of the things. We would
like to help them be prepared.
One of the things that we have done is that we have helped
our hospitals, through looking at our chemical inventories in
our community, determine what kind medications they need to
keep on hand in case there is a spill in our vicinity. Some of
those medications are time-sensitive and very expensive. So
this helps them be prepared as well.
Mr. Stupak. Do you have a lot of that information out right
now, electronically, for people to access?
Ms. Southwell. We were in the process of putting it on our
website. We have a lot of the information up there. We have
been putting it into tables, and creating all the mechanisms we
needed to post that all to our website. So, we were going to go
forward on that, as well.
Mr. Stupak. Okay. Thanks. Maybe to Mr. Billings and Ms.
Kinsey, the application of this legislation to States that have
been delegated by section 112(r); two States and two
territories have already received delegation, and over a dozen
others have applications pending. EPA officials have told the
staff that in their opinion, States that have received
delegation of the section 112(r) program, in lieu of the
Federal Government, are preempted by this legislation and by
the terms of whatever guidance that is issued. Is the
preemption of State programs, in States which have been
delegated the section 112(r) program, of any concern to you--
the preemption issue?
Ms. Kinsey. Congressman, we haven't had a chance to look at
that issue. It was an issue that was identified recently. I am
not sure, at this point in time, exactly what the impact is
going to be on States that have received delegation, or wish to
receive delegation. We would be happy to follow-up with the
committee on that issue.
Mr. Stupak. Mr. Billings?
Mr. Billings. Yes. It is my impression, Congressman, that
as you stated, those programs would be preempted back to the
Federal Government. The delegation would disappear. Of course,
our problem is not just with the preemption as it applies to
the delegated States, but the overall preemption in the bill as
it applies to environmental responsibility.
Mr. Stupak. Okay. Well, can the State officials in the
delegated States distribute the OCA information by e-mail to a
community group, or a school parents' organization, for every
facility within a 50-mile radius of their school or housing
subdivision?
Mr. Billings. I would think that both on the face of the
legislation, it could not. Also, we have no idea what this
guidance would say, which would make it even more difficult.
Mr. Stupak. Anyone else want to answer that one?
Mr. Natan. It prohibits all electronic dissemination of
this information: e-mail, Internet, disk, tape, CD--whatever.
Mr. Stupak. Anyone else? Mr. Chairman, I yield back. Those
were the three questions that I had.
Mr. Bilirakis. Thank you, Mr. Stupak. Well our timing, for
a change, was perfect, because we have a vote on the floor. We
will finish up.
I do want to, first of all, thank you so very much for
taking time to be here. You have been very helpful. Many of
your points, I have already told you, have been recognized by
the committees' staffs. We have submitted a request to the EPA
that we are waiting for now, for corrective-type of language as
far as the legislation is concerned. Hopefully, we will
ultimately come up with a package which is not as ruinous as
many of you may think it is. Let us see what happens. You have
been very helpful. We appreciate it very much.
The committee is adjourned.
[Whereupon, at 4:17 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows:]
Prepared Statement of The National Conference of State Legislatures
The National Conference of State Legislatures understands the goals
underlying H.R. 1790, the Chemical Safety Information and Site Security
Act of 1999. This bill is intended to protect human health and the
environment by keeping off-site consequence analysis (OCA) data from
being available as a nation-wide searchable database on the Internet.
OCA information includes descriptions of the worst possible effects
that a chemical spill would have on neighboring populations and the
environment, also referred to as ``worst-case release scenarios.''
NCSL understands that H.R. 1790 is intended to provide the
following:
All information in risk management plans submitted by
facilities that contain hazardous chemicals will be available
over the Internet, as required by the Clean Air Act. The only
portions of the risk management plans that will not be posted
are OCA data.
State and local government officials will have access to OCA
information in electronic form as a nation-wide, searchable
database.
States will be allowed to distribute limited numbers of paper
copies of OCA information to the public upon request. The U.S.
Environmental Protection Agency will be responsible for
developing guidance that sets limits on the amount of paper
information distributed to the public upon request.
NCSL understands the intent of H.R. 1790 but is concerned about the
language of the bill as introduced. NCSL has three concerns. First,
NCSL believes the states need unimpeded access to nation-wide OCA
information. Second, NCSL firmly supports state consultation during
development of federal policy governing access to OCA information.
Third, NCSL is concerned about provisions of the H.R. 1790 that may
preempt state freedom of information laws.
First, states have an obligation to plan for and respond to
chemical releases that occur within their borders. In order to fulfill
these planning and response duties, states must have unimpeded access
to OCA information. As introduced, H.R. 1790 provides authority for the
EPA administrator to withhold OCA information from the states.
Specifically, NCSL recommends amending Section 2(c)(2) and Section 2(f)
to ensure that the proper state planning and response authorities have
access to site-specific, nation-wide OCA data in electronic form.
Second, states should be consulted during development of federal
policy governing public access to OCA information. As introduced, H.R.
1790 requires the EPA administrator to consult with officials from
other federal agencies during development of policy regarding
availability of OCA information in both electronic and paper form. NCSL
recommends amending Section 2(c)(7) and Section 2(d)(1) to require the
EPA administrator to also consult with state officials during
development of such policy.
Third, H.R. 1790 may preempt state freedom of information laws in
order to limit or control distribution to the public of OCA
information. It is NCSL policy that federal preemption of state law is
not warranted, except when necessary or unavoidable in specific
instances when a compelling national objective must be achieved. NCSL
urges Congress and the administration to clearly articulate the risks
to national security posed by a nation-wide, searchable OCA database on
the Internet.
NCSL looks forward to working with Congress and the administration
members and staff to craft a bill that provides the utmost protection
of public health and the environment.