[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
------------------------------------------------------------------------------
                   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

                              ----------                              


                        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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \5\ ``The 600K Report,'' Exhibit C, ``Chemical Incidents, Deaths, 
Injuries by Type, 1987-1996.'' The majority of deaths result from 
transportation-related chemical incidents.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
