[Congressional Record Volume 145, Number 111 (Monday, August 2, 1999)]
[Senate]
[Pages S10059-S10062]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CHEMICAL SAFETY INFORMATION, SITE SECURITY AND FUELS REGULATORY RELIEF
ACT
Mr. LUGAR. Mr. President, I ask the Chair lay before the Senate a
message from the House of Representatives on the bill (S. 880) to amend
the Clean Air Act to remove flammable fuels from the list of substances
with respect to which reporting and other activities are required under
the risk management plan program.
The PRESIDING OFFICER laid before the Senate the following message
from the House of Representatives:
Resolved, That the bill from the Senate (S. 880) entitled
``An Act to amend the Clean Air Act to remove flammable fuels
from the list of substances with respect to which reporting
and other activities are required under the risk management
plan program'', do pass with the following amendments:
Strike out all after the enacting clause and insert:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Chemical Safety Information,
Site Security and Fuels Regulatory Relief Act''.
SEC. 2. REMOVAL OF PROPANE SOLD BY RETAILERS AND OTHER
FLAMMABLE FUELS FROM RISK MANAGEMENT LIST.
Section 112(r) of the Clean Air Act (42 U.S.C. 7412(r)) is
amended--
(1) by redesignating subparagraphs (A) through (C) of
paragraph (4) as clauses (i) through (iii), respectively, and
indenting appropriately;
(2) by striking in paragraph (4) ``Administrator shall
consider each of the following criteria--'' and inserting the
following: ``Administrator--
``(A) shall consider--'';
(3) in subparagraph (A)(iii) (as designated by paragraphs
(1) and (2)), of paragraph (4)by striking the period at the
end and inserting ``; and'';
(4) by adding at the end of paragraph (4) the following:
``(B) shall not list a flammable substance when used as a
fuel or held for sale as a fuel at a retail facility under
this subsection solely because of the explosive or flammable
properties of the substance, unless a fire or explosion
caused by the substance will result in acute adverse heath
effects from human exposure to the substance, including the
unburned fuel or its combustion byproducts, other than those
caused by the heat of the fire or impact of the explosion.'';
and
(5) by inserting the following new subparagraph at the end
of paragraph (2):
``(D) The term `retail facility' means a stationary source
at which more than one-half of the income is obtained from
direct sales to end users or at which more than one-half of
the fuel sold, by volume, is sold through a cylinder exchange
program.''.
SEC. 3. PUBLIC ACCESS TO OFF-SITE CONSEQUENCE ANALYSIS
INFORMATION.
(a) In General.--Section 112(r)(7) of the Clean Air Act (42
U.S.C. 7412(r)(7)) is amended by adding at the end the
following:
``(H) Public access to off-site consequence analysis
information.--
``(i) Definitions.--In this subparagraph:
``(I) Covered person.--The term `covered person' means--
``(aa) an officer or employee of the United States;
``(bb) an officer or employee of an agent or contractor of
the Federal Government;
``(cc) an officer or employee of a State or local
government;
``(dd) an officer or employee of an agent or contractor of
a State or local government;
``(ee) an individual affiliated with an entity that has
been given, by a State or local government, responsibility
for preventing, planning for, or responding to accidental
releases;
``(ff) an officer or employee or an agent or contractor of
an entity described in item (ee); and
``(gg) a qualified researcher under clause (vii).
``(II) Official use.--The term `official use' means an
action of a Federal, State, or local government agency or an
entity referred to in subclause (I)(ee) intended to carry out
a function relevant to preventing, planning for, or
responding to accidental releases.
``(III) Off-site consequence analysis information.--The
term `off-site consequence analysis information' means those
portions of a risk management plan, excluding the executive
summary of the plan, consisting of an evaluation of 1 or more
worst-case release scenarios or alternative release
scenarios, and any electronic data base created by the
Administrator from those portions.
``(IV) Risk management plan.--The term `risk management
plan' means a risk management plan submitted to the
Administrator by an owner or operator of a stationary source
under subparagraph (B)(iii).
``(ii) Regulations.--Not later than 1 year after the date
of enactment of this subparagraph, the President shall--
``(I) assess--
``(aa) the increased risk of terrorist and other criminal
activity associated with the posting of off-site consequence
analysis information on the Internet; and
``(bb) the incentives created by public disclosure of off-
site consequence analysis information for reduction in the
risk of accidental releases; and
``(II) based on the assessment under subclause (I),
promulgate regulations governing the distribution of off-site
consequence analysis information in a manner that, in the
opinion of the President, minimizes the likelihood of
accidental releases and the risk described in subclause
(I)(aa) and the likelihood of harm to public health and
welfare, and--
``(aa) allows access by any member of the public to paper
copies of off-site consequence analysis information for a
limited number of stationary sources located anywhere in the
United States, without any geographical restriction;
``(bb) allows other public access to off-site consequence
analysis information as appropriate;
``(cc) allows access for official use by a covered person
described in any of items (cc) through (ff) of clause (i)(I)
(referred to in this subclause as a `State or local covered
person') to off-site consequence analysis information
relating to stationary sources located in the person's State;
``(dd) allows a State or local covered person to provide,
for official use, off-site consequence analysis information
relating to stationary sources located in the person's State
to a State or local covered person in a contiguous State; and
``(ee) allows a State or local covered person to obtain for
official use, by request to the Administrator, off-site
consequence analysis information that is not available to the
person under item (cc).
``(iii) Availability under freedom of information act.--
``(I) First year.--Off-site consequence analysis
information, and any ranking of stationary sources derived
from the information, shall not be made available under
section 552 of title 5, United States Code, during the 1-year
period beginning on the date of enactment of this
subparagraph.
``(II) After first year.--If the regulations under clause
(ii) are promulgated on or before the end of the period
described in subclause (I), off-site consequence analysis
information covered by the regulations, and any ranking of
stationary sources derived from the information, shall not be
made available under section 552 of title 5, United States
Code, after the end of that period.
``(III) Applicability.--Subclauses (I) and (II) apply to
off-site consequence analysis information submitted to the
Administrator before, on, or after the date of enactment of
this subparagraph.
``(iv) Availability of information during transition
period.--The Administrator shall make off-site consequence
analysis information available to covered persons for
official use in a manner that meets the requirements of items
(cc) through (ee) of clause (ii)(II), and to the public in a
form that does not make available any information concerning
the identity or location of stationary sources, during the
period--
``(I) beginning on the date of enactment of this
subparagraph; and
``(II) ending on the earlier of the date of promulgation of
the regulations under clause (ii) or the date that is 1 year
after the date of enactment of this subparagraph.
``(v) Prohibition on unauthorized disclosure of information
by covered persons.--
``(I) In general.--Beginning on the date of enactment of
this subparagraph, a covered person shall not disclose to the
public off-site consequence analysis information in any form,
or any statewide or national ranking of identified stationary
sources derived from such information, except as authorized
by this subparagraph (including the regulations promulgated
under clause (ii)). After the end of the 1-year period
beginning on the date of enactment of this subparagraph, if
regulations have not been promulgated under clause (ii), the
preceding sentence shall not apply.
``(II) Criminal penalties.--Notwithstanding section 113, a
covered person that willfully violates a restriction or
prohibition established by this subparagraph (including the
regulations promulgated under clause (ii)) shall, upon
conviction, be fined for an infraction under section 3571 of
title 18, United States Code, (but shall not be subject to
imprisonment) for each unauthorized disclosure of off-site
consequence analysis information, except that subsection (d)
of such section 3571 shall not apply to a case in which the
offense results in pecuniary loss unless the defendant knew
that such loss would occur. The disclosure of off-site
consequence analysis information for each specific stationary
source shall be considered a separate offense. The total of
all penalties that may be imposed on a single person or
organization under this item shall not exceed $1,000,000 for
violations committed during any 1 calendar year.
[[Page S10060]]
``(III) Applicability.--If the owner or operator of a
stationary source makes off-site consequence analysis
information relating to that stationary source available to
the public without restriction--
``(aa) subclauses (I) and (II) shall not apply with respect
to the information; and
``(bb) the owner or operator shall notify the Administrator
of the public availability of the information.
``(IV) List.--The Administrator shall maintain and make
publicly available a list of all stationary sources that have
provided notification under subclause (III)(bb).
``(vi) Notice.--The Administrator shall provide notice of
the definition of official use as provided in clause (i)(III)
and examples of actions that would and would not meet that
definition, and notice of the restrictions on further
dissemination and the penalties established by this Act to
each covered person who receives off-site consequence
analysis information under clause (iv) and each covered
person who receives off-site consequence analysis information
for an official use under the regulations promulgated under
clause (ii).
``(vii) Qualified researchers.--
``(I) In general.--Not later than 180 days after the date
of enactment of this subparagraph, the Administrator, in
consultation with the Attorney General, shall develop and
implement a system for providing off-site consequence
analysis information, including facility identification, to
any qualified researcher, including a qualified researcher
from industry or any public interest group.
``(II) Limitation on dissemination.--The system shall not
allow the researcher to disseminate, or make available on the
Internet, the off-site consequence analysis information, or
any portion of the off-site consequence analysis information,
received under this clause.
``(viii) Read-only information technology system.--In
consultation with the Attorney General and the heads of other
appropriate Federal agencies, the Administrator shall
establish an information technology system that provides for
the availability to the public of off-site consequence
analysis information by means of a central data base under
the control of the Federal Government that contains
information that users may read, but that provides no means
by which an electronic or mechanical copy of the information
may be made.
``(ix) Voluntary industry accident prevention standards.--
The Environmental Protection Agency, the Department of
Justice, and other appropriate agencies may provide technical
assistance to owners and operators of stationary sources and
participate in the development of voluntary industry
standards that will help achieve the objectives set forth in
paragraph (1).
``(x) Effect on state or local law.--
``(I) In general.--Subject to subclause (II), this
subparagraph (including the regulations promulgated under
this subparagraph) shall supersede any provision of State or
local law that is inconsistent with this subparagraph
(including the regulations).
``(II) Availability of information under state law.--
Nothing in this subparagraph precludes a State from making
available data on the off-site consequences of chemical
releases collected in accordance with State law.
``(xi) Report.--
``(I) In general.--Not later than 3 years after the date of
enactment of this subparagraph, the Attorney General, in
consultation with appropriate State, local, and Federal
Government agencies, affected industry, and the public, shall
submit to Congress a report that describes the extent to
which regulations promulgated under this paragraph have
resulted in actions, including the design and maintenance of
safe facilities, that are effective in detecting, preventing,
and minimizing the consequences of releases of regulated
substances that may be caused by criminal activity. As part
of this report, the Attorney General, using available data to
the extent possible, and a sampling of covered stationary
sources selected at the discretion of the Attorney General,
and in consultation with appropriate State, local, and
Federal governmental agencies, affected industry, and the
public, shall review the vulnerability of covered stationary
sources to criminal and terrorist activity, current industry
practices regarding site security, and security of
transportation of regulated substances. The Attorney General
shall submit this report, containing the results of the
review, together with recommendations, if any, for reducing
vulnerability of covered stationary sources to criminal and
terrorist activity, to the Committee on Commerce of the
United States House of Representatives and the Committee on
Environment and Public Works of the United States Senate and
other relevant committees of Congress.
``(II) Interim report.--Not later than 12 months after the
date of enactment of this subparagraph, the Attorney General
shall submit to the Committee on Commerce of the United
States House of Representatives and the Committee on
Environment and Public Works of the United States Senate, and
other relevant committees of Congress, an interim report that
includes, at a minimum--
``(aa) the preliminary findings under subclause (I);
``(bb) the methods used to develop the findings; and
``(cc) an explanation of the activities expected to occur
that could cause the findings of the report under subclause
(I) to be different than the preliminary findings.
``(III) Availability of information.--Information that is
developed by the Attorney General or requested by the
Attorney General and received from a covered stationary
source for the purpose of conducting the review under
subclauses (I) and (II) shall be exempt from disclosure under
section 552 of title 5, United States Code, if such
information would pose a threat to national security.
``(xii) Scope.--This subparagraph--
``(I) applies only to covered persons; and
``(II) does not restrict the dissemination of off-site
consequence analysis information by any covered person in any
manner or form except in the form of a risk management plan
or an electronic data base created by the Administrator from
off-site consequence analysis information.
``(xiii) Authorization of appropriations.--There are
authorized to be appropriated to the Administrator and the
Attorney General such sums as are necessary to carry out this
subparagraph (including the regulations promulgated under
clause (ii)), to remain available until expended.''.
(b) Reports.--
(1) Definition of accidental release.--In this subsection,
the term ``accidental release'' has the meaning given the
term in section 112(r)(2) of the Clean Air Act (42 U.S.C.
7412(r)(2)).
(2) Report on status of certain amendments.--Not later than
2 years after the date of enactment of this Act, the
Comptroller General of the United States shall submit to
Congress a report on the status of the development of
amendments to the National Fire Protection Association Code
for Liquefied Petroleum Gas that will result in the provision
of information to local emergency response personnel
concerning the off-site effects of accidental releases of
substances exempted from listing under section 112(r)(4)(B)
of the Clean Air Act (as added by section 3).
(3) Report on compliance with certain information
submission requirements.--Not later than 3 years after the
date of enactment of this Act, the Comptroller General of the
United States shall submit to Congress a report that--
(A) describes the level of compliance with Federal and
State requirements relating to the submission to local
emergency response personnel of information intended to help
the local emergency response personnel respond to chemical
accidents or related environmental or public health threats;
and
(B) contains an analysis of the adequacy of the information
required to be submitted and the efficacy of the methods for
delivering the information to local emergency response
personnel.
(c) Reevaluation of Regulations.--The President shall
reevaluate the regulations promulgated under this section
within 6 years after the enactment of this Act. If the
President determines not to modify such regulations, the
President shall publish a notice in the Federal Register
stating that such reevaluation has been completed and that a
determination has been made not to modify the regulations.
Such notice shall include an explanation of the basis of such
decision.
SEC. 4. PUBLIC MEETING DURING MORATORIUM PERIOD.
(a) In General.--Not later than 180 days after the date of
enactment of this Act, each owner or operator of a stationary
source covered by section 112(r)(7)(B)(ii) of the Clean Air
Act shall convene a public meeting, after reasonable public
notice, in order to describe and discuss the local
implications of the risk management plan submitted by the
stationary source pursuant to section 112(r)(7)(B)(iii) of
the Clean Air Act, including a summary of the off-site
consequence analysis portion of the plan. Two or more
stationary sources may conduct a joint meeting. In lieu of
conducting such a meeting, small business stationary sources
as defined in section 507(c)(1) of the Clean Air Act may
comply with this section by publicly posting a summary of the
off-site consequence analysis information for their facility
not later than 180 days after the enactment of this Act. Not
later than 10 months after the date of enactment of this Act,
each such owner or operator shall send a certification to the
director of the Federal Bureau of Investigation stating that
such meeting has been held, or that such summary has been
posted, within 1 year prior to, or within 6 months after, the
date of the enactment of this Act. This section shall not
apply to sources that employ only Program 1 processes within
the meaning of regulations promulgated under section
112(r)(7)(B)(i) of the Clean Air Act.
(b) Enforcement.--The Administrator of the Environmental
Protection Agency may bring an action in the appropriate
United States district court against any person who fails or
refuses to comply with the requirements of this section, and
such court may issue such orders, and take such other
actions, as may be necessary to require compliance with such
requirements.
Mr. LAUTENBERG. Mr. President, I was heavily involved in the
negotiations over the manager's amendment to S. 880 as passed by the
Senate by unanimous consent on June 23, and have carefully studied the
House's amendments to S. 880, which we accept today. I rise to clarify
the congressional intent with respect to S. 880, the Chemical Safety
Information, Site Security and Fuels Regulatory Relief Act of 1999, as
we pass it and send it to the President.
Balance between the right-to-know effect and risks of criminal
activity (New section 112(r)(7)(H)(ii)): The amendment directs the
President to promulgate regulations governing the disclosure of the
off-site Consequence Analysis (OCA) information in a way that minimizes
the likelihood of releases of the regulated chemicals, whether these
releases are accidental or the result of criminal activity. In
[[Page S10061]]
other words, the amendment calls for a balancing of the risk-reducing
effect of public disclosure (the ``Right-to-Know Effect'') against the
potential of increased risk of criminal activity associated with the
posting of the OCA information on the Internet. Most importantly,
reducing the threat of criminal activity is not the sole or even
primary focus of the rule-making. Rather the objective is to minimize
the release of regulated chemicals, which requires a balanced approach,
and nothing in this Act necessarily precludes the eventual electronic
dissemination of the information.
Off-site consequence analysis information (New section
112(r)(7)(H)(i)(IV) and (V), and (xii)): The amendment defines ``off-
site consequence analysis information'' (OCA information) as a portion
of a ``risk management plan,'' which is in turn defined as referring
only to information ``submitted to the Administrator by an owner or
operator of a stationary source under subparagraph (B)'' of section
112(r)(7) of the Clean Air Act. Similarly, the amendment makes clear
that its restrictions apply only to OCA information in the form
submitted to the Administrator (New section 112(r)(7)(H)(xii)). In
other words, no information, except OCA information submitted to the
Administrator, in the form in which it was submitted, is affected by
the amendment. Even identical information that is made available to
members of the public (unless there is a legally-binding restriction)
or that is submitted to state or local agencies is not affected by the
constraints on disclosure established by the Act.
Official use (New section 112(r)(7)(H)(i)(III) and (vi)): The
amendment defines ``official use'' broadly--``an action . . . intended
to carry out a function relevant to preventing, planning for or
responding to accidental releases or criminal releases''--to reflect
the sense that there are a broad range of official uses to which the
OCA information may appropriately be put, so long as its public
availability is constrained in accord with the regulations developed
under the amendment. The bill does not authorize the Administrator to
establish restrictions on such official use.
State and local official access to all OCA information (New section
112(r)(7)(H)(ii)(II)(ee)): The amendment requires that any covered
State and local official be provided, upon request, OCA information on
any facility in the country, not just on facilities in the individual's
State or community. This reflects, among other things, the fact that a
comprehensive evaluation of the facility next door should include
comparison with other facilities, including those owned by the same
company or its competitors. Similarly, a comprehensive evaluation of
the hazard reduction programs of Community A requires a comparison of
the hazards presented by facilities in Community A with those presented
in Community B.
Public access to OCA information regardless of geographic location
(New section 112(r)(7)(H)(ii)(II)(aa)): The amendment makes clear that
the regulations shall allow any member of the public access to the OCA
information for a limited number of facilities regardless of geographic
location. This reflects the fact that the need to compare the
neighborhood facility with facilities in other locations, or to compare
one's community with others, is just as important and appropriate for
the public as it is for officials.
Voluntary disclosure of OCA information: New section
112(r)(7)(H)(v)(III): The amendment directs any facility that chooses
to provide its OCA information to the public without legally-binding
restriction to inform the public, through EPA, of that voluntary
disclosure.
Qualified researchers (New section 112(r)(7)(H)(vii)): The amendment
directs the Administrator, in consultation with the Attorney General,
to develop a system for providing access to OCA information for
``qualified researchers.'' The Administrator is given authority to
determine whether researchers are ``qualified,'' but is otherwise given
no authority to screen researchers nor to deny them access to OCA
information on the basis of political persuasion, likely findings,
purpose to which findings would be put, or any other such factor.
Interaction with State law (New section 112(r)(7)H)(x)(II)): The
amendment makes clear that States with existing or new laws that
collect even data that is identical to OCA information are not
precluded from making the State- or local-gathered data available.
Reports on vulnerability to criminal activity (New section
112(r)(7)(H)(xi)): The amendment directs the Attorney General to submit
a preliminary report in one year and a final report in three years on
the extent to which the Risk Management Program regulations have
resulted in actions, by stationary sources among others, that are
effective in detecting, preventing, and minimizing the consequences of
releases caused by criminal activity. The Comptroller General is
specifically directed to study the ``design and maintenance of safe
facilities'' so that Congress may learn the extent to which the best
protection against criminal activity is to maintain a facility that is
inherently safe.
Reevaluation of disclosure regulations (Section 3(c)): The Act
directs the President to reevaluate the regulations governing
disclosure within six years. This reevaluation should be made on the
same basis used to promulgate the regulations--i.e. the President
should perform two separate assessments: (1) an assessment of the
increased risk of criminal activity associated with the internet
posting of OCA information, and (2) an assessment of the incentives
created by public disclosure of OCA information for reduction in the
risk of accidental releases. Written documentation of the two
assessments and all information and data the President utilizes in
preparation of the assessments should be a part of the administrative
record associated with any determination the President makes regarding
the regulations, or any modification of the regulations.
General duty; Finally, the Act leaves the general duty clause of
section 112(r) of the Clean Air Act unchanged, in recognition of the
fact that the Environmental Protection Agency believes that the general
duty clause applies to releases caused by criminal or terrorist
activities.
Mr. INHOFE. Mr. President, I rise today to discuss my legislation, S.
880, the Fuels Regulatory Relief Act, which passed Congress today, and
according to the Administration should be signed into law shortly. This
bill was passed in the Senate by unanimous consent on June 23, 1999,
and passed by the House with amendments, on July 21, 1999.
I appreciate the speediness with which the House acted on this
legislation and the support of my good friend Chairman Tom Bliley.
Unfortunately the Senate is forced to act just as quickly on this
legislation because of delays created by the administration. In early
1998, I raised concerns to the administration regarding the security
risks posed by disseminating the worst-case scenario data on the
Internet. The FBI agreed with my concerns. Despite the acknowledgment
of the risks involved the administration did not cooperate with
Congress to fix this problem until the eleventh hour.
Because of the urgency in passing this legislation I have decided
that a conference would not be beneficial. While I agree with most of
the changes incorporated in the House-passed version, due to the haste
of their consideration, I feel the necessity to explain in more detail
my view, as the lead sponsor, of one particular provision.
Section 3 of the act requires the ``Attorney General, and in
consultation with appropriate State, local, and Federal governmental
agencies, affected industry, and the public, shall review the
vulnerability of covered stationary sources to criminal and terrorist
activity, current industry practices regarding site security, and
security of transportation of regulated substances.''
In carrying out this provision, I ask the Attorney General, in
consulting with the Federal governmental agencies, to work with the
Intelligence Community as well as the FBI. If any technical assistance
regarding chemicals is needed I direct the Attorney General to work
with the Department of Energy facilities, particularly the Hazardous
Material Spill Center at the Nevada Test site and the Sandia laboratory
in New Mexico. Regarding the transportation issues, the Attorney
General should consult with the Department of Transportation. In
addition, I would like to emphasize that
[[Page S10062]]
any confidential information or national security information should be
closely safeguarded.
Mr. LUGAR. Mr. President, I ask unanimous consent that the Senate
concur in the amendment of the House.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________