[Congressional Record (Bound Edition), Volume 145 (1999), Part 10]
[Senate]
[Pages 13971-13977]
[From the U.S. Government Publishing Office, www.gpo.gov]



                      FUELS REGULATORY RELIEF ACT

  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 141, S. 880.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       A 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.

  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on Environment and Public 
Works, with an amendment, as follows:
  (The parts of the bill intended to be stricken are shown in boldface 
brackets, and the parts of the bill intended to be inserted are shown 
in italic.)

                                 S. 880

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Fuels Regulatory Relief 
     Act''.

     SEC. 2. FINDINGS.

       Congress finds that, because of their low toxicity and 
     because they are regulated sufficiently under other programs, 
     flammable fuels, such as propane, should not be included on 
     the list of substances subject to the risk management plan 
     program under section 112(r) of the Clean Air Act (42 U.S.C. 
     7412(r)).

     SEC. 3. REMOVAL OF FLAMMABLE FUELS FROM RISK MANAGEMENT LIST.

       Section 112(r)(4) of the Clean Air Act (42 U.S.C. 
     7412(r)(4)) is amended--
       (1) by redesignating subparagraphs (A) through (C) as 
     clauses (i) through (iii), respectively, and indenting 
     appropriately;
       (2) by striking ``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)), by striking the period at the end and inserting 
     ``; and''; and
       (4) by adding at the end the following:
       [``(B) shall not regulate non-acute toxic flammable fuels 
     when used or stored for fuel purposes or retail sale unless 
     the fuels are hazardous waste.''.]
       ``(B) shall not list a flammable substance when used as a 
     fuel or held for sale as a fuel 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.''.

     SEC. 4. PUBLIC AVAILABILITY OF OFF-SITE CONSEQUENCE ANALYSIS 
                   INFORMATION IN RISK MANAGEMENT PLANS.

       (a) Definitions.--In this section:
       (1) Accidental release.--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) Administrator.--The term ``Administrator'' means the 
     Administrator of the Environmental Protection Agency.
       (3) 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 scenario or alternative scenario accidental 
     releases.
       (4) Risk management plan.--The term ``risk management 
     plan'' means a risk management plan submitted by an owner or 
     operator of a stationary source under section 112(r)(7)(B) of 
     the Clean Air Act (42 U.S.C. 7412(r)(7)(B)).
       (5) State.--The term ``State'' means any of the 50 States, 
     the District of Columbia, the Commonwealth of Puerto Rico, 
     the Virgin Islands, Guam, American Samoa, the Commonwealth of 
     the Northern Mariana Islands, and Indian tribes (as defined 
     in section 102 of the Federally Recognized Indian Tribe List 
     Act of 1994 (25 U.S.C. 479a)).
       (6) Stationary source.--The term ``stationary source'' has 
     the meaning given the term in section 112(r)(2) of the Clean 
     Air Act (42 U.S.C. 7412(r)(2)).
       (b) Exemption From Availability Under Freedom of 
     Information Act.--
       (1) In general.--Off-site consequence analysis information, 
     or information derived from off-site consequence analysis 
     information, shall not be made available under section 552 of 
     title 5, United States Code.
       (2) Effect on certain availability.--Except as provided in 
     subsection (c), nothing in this section affects the 
     obligation of the Administrator under section 
     112(r)(7)(B)(iii) of the Clean Air Act (42 U.S.C. 
     7412(r)(7)(B)(iii)) to make available off-site consequence 
     analysis information or information derived from that 
     information.
       (c) Availability of Off-Site Consequence Analysis 
     Information.--
       (1) General availability.--
       (A) Electronic form.--An officer or employee of the United 
     States may make available in electronic form off-site 
     consequence analysis information only in the manner provided 
     in paragraphs (2), (5), and (6) and subsection (d).
       (B) Paper form.--An officer or employee of the United 
     States may make available in paper form off-site consequence 
     analysis information only in the manner provided in 
     paragraphs (3), (4), and (5), and subsection (d).
       (2) Availability in electronic form for official use by 
     state or local governments.--The Administrator may make 
     available in electronic form off-site consequence analysis 
     information to a State or local government officer or 
     employee for official use.
       (3) Availability to public in paper form.--
       (A) In general.--In response to a request for off-site 
     consequence analysis information or for a risk management 
     plan, the Administrator shall make available a copy of off-
     site consequence analysis information, but only in paper 
     form.
       (B) Conditions.--The conditions under which off-site 
     consequence analysis information shall be made available, 
     including the maximum number of requests that any single 
     requester may make, and the maximum number of stationary 
     sources for which off-site consequence analysis information 
     may be made available in response to any single request, 
     shall be determined by the Administrator in guidance issued 
     under subsection (e)(1).
       (C) Prompt response.--Consistent with this paragraph, the 
     Administrator shall promptly respond to off-site consequence 
     analysis information requests.
       (D) Fee.--The Administrator may levy a fee applicable to 
     the processing of off-site consequence analysis information 
     requests that covers the cost to the Administrator of 
     processing the requests and reproducing the information in 
     paper form.
       (4) Availability to states and local governments in paper 
     form.--At the request of a State or local government officer 
     acting in the officer's official capacity, the Administrator 
     may provide to the officer in paper form, for official use 
     only, the off-site consequence analysis information submitted 
     for the stationary sources located in the State in which the 
     State or local government officer serves.
       (5) Availability for limited public inspection.--

[[Page 13972]]

       (A) In general.--The Administrator shall ensure that every 
     risk management plan submitted to the Environmental 
     Protection Agency is available in paper or electronic form 
     for public inspection, but not copying, during normal 
     business hours, including in depository libraries designated 
     under chapter 19 of title 44, United States Code.
       (B) Limitation on availability of risk management plans in 
     electronic form.--For the purposes of this paragraph, the 
     Administrator may make risk management plans available in 
     electronic form only if the electronic form does not provide 
     an electronic means of ranking stationary sources based on 
     off-site consequence analysis information.
       (C) Federal assistance.--The Public Printer and the 
     Attorney General shall assist the Administrator in carrying 
     out this paragraph in order to ensure that the information 
     provided to the depository libraries is adequately protected.
       (D) Authorization of appropriations.--There are authorized 
     to be appropriated to the Administrator and to the Public 
     Printer such sums as are necessary to carry out this 
     paragraph, to remain available until expended.
       (6) Availability to public of general information in 
     electronic form.--
       (A) From the administrator.--After consultation with the 
     Attorney General and the heads of other appropriate Federal 
     agencies, the Administrator may make off-site consequence 
     analysis information available to the public in an electronic 
     form that does not include information concerning the 
     identity or the location of the stationary sources for which 
     the information was submitted.
       (B) From other government officers and employees.--Except 
     as provided in subparagraph (A), an officer or employee of 
     the United States, or an officer or employee of a State or 
     local government, shall not make off-site consequence 
     analysis information available to the public in any form 
     except as authorized by the Administrator.
       (7) Authority of states and local governments to make 
     information available.--Notwithstanding any provision of 
     State or local law, and except as provided in subsection 
     (d)(2), an officer or employee of a State or local government 
     may make off-site consequence analysis information available 
     only to the extent that an officer or employee of the United 
     States would be permitted to make the information available, 
     consistent with the guidance and any regulations promulgated 
     under subsection (e), except that a State or local government 
     officer or employee may make available only the information 
     that concerns stationary sources located in the State in 
     which the officer or employee serves.
       (8) Collection and maintenance of records of persons 
     seeking access to information.--
       (A) Limitation on authority of the administrator.--
       (i) In general.--The Administrator may collect and maintain 
     records that reflect the identity of individuals and other 
     persons seeking access to information under this section only 
     to the extent that the collection and maintenance is relevant 
     to, and necessary to accomplish, a purpose of the 
     Environmental Protection Agency that is required to be 
     accomplished by statute or by executive order of the 
     President.
       (ii) Applicability of freedom of information act.--Records 
     collected under clause (i) shall be subject to section 552a 
     of title 5, United States Code.
       (B) Limitation on authority of state or local 
     governments.--An officer or employee of a State or local 
     government may collect and maintain records that reflect the 
     identity of individuals and other persons seeking access to 
     information under this section only to the extent that the 
     collection and maintenance is relevant to, and necessary to 
     accomplish, a purpose of the employing agency that is 
     required to be accomplished by State statute.
       (9) Criminal penalties.--An officer or employee of the 
     United States, or an officer or employee of a State or local 
     government, who knowingly violates a restriction or 
     prohibition established by this subsection shall be fined 
     under section 3571 of title 18, United States Code, 
     imprisoned not more than 1 year, or both.
       (d) Availability of Information to and From Agents and 
     Contractors.--
       (1) Availability from united states.--
       (A) In general.--An officer or employee of the United 
     States may make off-site consequence analysis information 
     available in any form to officers and employees of agents and 
     contractors of the Federal Government for official use only.
       (B) Restrictions and penalties.--For the purposes of this 
     section, with respect to information made available under 
     subparagraph (A), officers and employees of agents and 
     contractors shall be considered to be officers and employees 
     of the United States and shall be subject to the same 
     restrictions and penalties as apply to officers and employees 
     of the United States under this section.
       (2) Availability from state and local governments.--
       (A) In general.--An officer or employee of a State or local 
     government may make off-site consequence analysis information 
     available in any form to officers and employees of agents and 
     contractors of the State or local government for official use 
     only.
       (B) Restrictions and penalties.--For the purposes of this 
     section, with respect to information made available under 
     subparagraph (A), officers and employees of agents and 
     contractors shall be considered to be officers and employees 
     of the State or local government and shall be subject to the 
     same restrictions and penalties as apply to officers and 
     employees of the State or local government under this 
     section.
       (e) Guidance and Regulations.--
       (1) Issuance of guidance.--
       (A) In general.--Not later than 60 days after the date of 
     enactment of this Act, the Administrator shall issue guidance 
     setting forth procedures and methods for making off-site 
     consequence analysis information available to the public in a 
     manner consistent with this section.
       (B) Consultation.--The Administrator shall consult with the 
     heads of other appropriate Federal agencies in developing the 
     guidance.
       (C) Revision of guidance.--The Administrator may revise the 
     guidance, as appropriate, in consultation with the heads of 
     appropriate Federal agencies.
       (D) Judicial review.--Guidance issued under this paragraph, 
     and any revision of the guidance, shall not be subject to 
     judicial review.
       (E) Regulations in lieu of guidance.--To the extent that 
     the Administrator determines to be appropriate, the 
     Administrator may promulgate regulations instead of issue 
     guidance under this subsection.
       (2) Regulations.--
       (A) In general.--The Administrator may promulgate such 
     regulations as are necessary to carry out the duties of the 
     Administrator under this section.
       (B) Judicial review.--Regulations promulgated under this 
     paragraph shall be subject to judicial review to the same 
     extent and in the same manner as regulations promulgated 
     under section 112(r)(7) of the Clean Air Act (42 U.S.C. 
     7412(r)(7)).
       (f) Authority To Issue Orders.--The Administrator may 
     exercise the authority provided under section 112(r)(9) of 
     the Clean Air Act (42 U.S.C. 7412(r)(9)) to withhold, or 
     prevent the release of, off-site consequence analysis 
     information if the Administrator determines that release of 
     the information may present an imminent and substantial 
     endangerment to human health or welfare or the environment.
       (g) Delegation.--To the extent that the Administrator 
     determines to be appropriate, the Administrator may delegate 
     the powers or duties of the Administrator under this section 
     to any officer or employee of the Environmental Protection 
     Agency.
       (h) Site Security Review and Periodic Recommendations.--
       (1) In general.--Subject to the availability of 
     appropriations, the Attorney General may review industry 
     practices regarding site security and the effectiveness of 
     this section.
       (2) Conditions of review.--A review under paragraph (1)--
       (A) shall use, to the maximum extent practicable, data 
     available as of the date of the review; and
       (B) shall be conducted in consultation with appropriate 
     governmental agencies, affected industries, and the public.
       (3) Recommendations.--The Attorney General may periodically 
     submit to Congress recommendations relating to the 
     enhancement of site security practices and the need for 
     continued implementation or modification of this section.


                           Amendment No. 735

     (Purpose: To provide for controlled public access to off-site 
                   consequence analysis information)

  Mr. GRASSLEY. Mr. President, I understand that Senator Chafee has an 
amendment at the desk, and I ask for the consideration of that 
amendment.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Iowa [Mr. Grassley], for Mr. Chafee, 
     proposes an amendment numbered 735 to the reported committee 
     amendment.

  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. CHAFEE. Mr. President, I rise in support of the managers' 
amendment to S. 880, the Fuels Regulatory Relief Act. S. 880 was voted 
out of the Senate Environmental and Public Works Committee on May 11. 
The risk management program, RMP, created by Section 112(r) of the 
Clean Air Act, was designed to focus companies and emergency response 
personnel on reducing the change of an accidental chemical release and 
on improving the response to releases when they happen. The RMP was 
partly a reaction to the Bhopal, India chemical disaster and is part of 
a larger set of programs designed to reduce the likelihood of future 
accidental releases. In its regulation, EPA included propane and some 
other fuels in the program. This was seen as a problem because the RMP 
was not intended to address traditional fuel use. Senator Inhofe 
introduced S. 880 to relieve propane users from participation in the 
RMP.
  During markup of S. 880, the Environment and Public Works Committee 
adopted an administration proposal to address public access to a part 
of a facility's risk management plan, known as off-site consequence 
analysis. The

[[Page 13973]]

EPA had intended to release this information on its website, until the 
FBI raised concerns that posting this information on the Internet would 
provide an attractive targeting tool for terrorists and criminals. The 
administration's proposal, which the managers' amendment would modify, 
attempted to balance the benefits of public access to this information 
with the legitimate safety concerns raised by its public availability.
  At the May 11 business meeting, members of the Environment and Public 
Works Committee raised some concerns about the administration's 
proposal. We had received the proposal little more than a day before 
the markup. Since then, committee staff from both sides of the aisle 
have worked diligently to resolve the difference and crafted a 
compromise that I believe improves upon the administration proposal. 
This amendment ensures that state and local emergency response 
officials have immediate and full access to this information. A greater 
measure of public access will be established within one year through a 
public notice and comment rulemaking.
  There are two important differences between this amendment and the 
administration's proposal that the Environment and Public Works 
Committee adopted. First, this amendment requires a rulemaking process, 
with public notice and comment, in the final determination of the 
extent of public access. Second, the exemption from FOIA is only 
temporary, rather than the permanent exemption proposed by the 
administration. In this amendment, the FOIA exemption is waived unless 
the rule is finalized within one year. The entire provision, including 
the FOIA exemption, expires after six years. If it is appropriate at 
that time, Congress could reauthorize the FOIA exemption.
  Both the managers' amendment and the administration language attempt 
to address the safety concerns raised by the availability of a national 
database of worst-case chemical accident information. To that end, the 
language in this bill will preempt State and local law regarding public 
access to government information. It makes little sense for us to limit 
public access at the federal level but not at the State level. As a 
former Governor, I believe the federal government must use the greatest 
restraint in exercising a preemption of State law. With that in mind, 
the managers' amendment makes clear that the preemption only applies to 
that information collected by the federal government. In other words, 
if a State were to require the submission of similar--or even 
identical--information about chemical releases, no federal restrictions 
would apply to its distribution.
  I believe most companies will want to work with community leaders and 
emergency response personnel to reduce the risks associated with their 
facility. This amendment includes several tools to assist in the 
process of reducing risks. First, this amendment ensures that emergency 
response personnel get full and immediate access to this information. 
Second, the regulation will allow access to a limited number of copies 
for any member of the public so each of us can have the information 
about facilities in our community. Third, this amendment will allow 
access to a national database of this information that does not 
identify the facilities. This will allow people to compare their local 
facility with others around the country.
  Finally, this amendment directs the administrator to create an 
information technology system that allows public access to off-site 
consequence analysis information on a read-only basis. This database 
would be centrally controlled by the federal government, much like the 
system the FBI uses to do background checks. Terminals to access the 
database could be placed in libraries and government offices around the 
nation where users could assess the information for research purposes, 
but not make copies of the information.
  This product is not perfect, everyone had to make concessions in 
order to reach agreement, but what we have is a product that strikes an 
appropriate balance between public access to this information and the 
safety concerns raised by posting it on the Internet. I want to thank 
Senator Inhofe and Senator Baucus for their efforts to achieve a 
reasonable and speedy solution acceptable to all parties.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the 
amendment be agreed to.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 735) was agreed to.
  Mr. GRASSLEY. I ask unanimous consent that the committee amendment, 
as amended, be agreed to.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The committee amendment, as amended, was agreed to.
  Mr. BAUCUS. Mr. President, the Fuels Regulatory Relief Act is a good 
measure. It has two major pieces. The first exempts flammable 
substances used as fuels, including propane, from the regulatory 
requirements of the Clean Air Act's risk management program. The second 
is the matter of public access to worst case scenario data.
  The committee and all of Congress has heard the concerns of propane 
users and distributors. I have met with propane distributors from 
Montana on this subject. They feel that the burden imposed by the EPA's 
risk management program is costly and provides little public health 
protection. They have achieved some relief in court, but prefer, and 
this bill provides, a clearer statement of Congress' intent.
  In the Clean Air Act Amendments of 1990, Congress directed EPA to 
compile a list of at least 100 substances that ``pose the greatest risk 
of causing death, injury, or serious adverse effects to human health or 
the environment from accidental releases.'' EPA was to consider the 
severity of acute health effects, the likelihood of releases, and the 
potential magnitude of exposure associated with accidental releases of 
a substance before putting it on the list.
  I was a member of the conference committee on that bill. And, I 
believe that Congress did not intend that propane or flammables used as 
fuels would pass those tests and be listed. Congress was focused on 
preventing major toxic catastrophes, such as occurred in Bhopal, India, 
not the type of accidents that are covered by existing Federal or State 
fire safety or transportation laws. Because it was not Congress' intent 
that they be added, I am supporting removing them from the list.
  As I mentioned during the committee's markup of S. 880, I wanted to 
be responsive to concerns of the firefighters and fire chiefs. They had 
hoped to get information on flammables used as fuels as part of the 
risk management program. But, as we discussed the matter further, it 
became clearer that their interests would be best served by the 
comprehensive GAO study we have placed in the bill on their information 
needs and the ability of Federal and State laws and programs to help 
them do their jobs.
  The bill also directs the GAO to do an additional study on the status 
of changes to the National Fire Protection Association Code for propane 
(NFPA 58). This voluntary industry standard was often cited by members 
of the propane industry as sufficiently protective of the public so 
that no additional regulations were necessary. The GAO will report back 
on changes to NFPA 58 that will hopefully provide at least the same 
level of public benefit as would have been provided by the listing of 
propane under the RMP requirements. I look forward to seeing progress 
on NFPA 58 that is responsive to the fire fighting community.
  I am pleased to note that we have been able to come to an agreement 
on a managers' amendment which is a substitute for section 4 of the 
reported version of S. 880. That was largely the Administration's 
proposal for providing appropriate public access to the sensitive parts 
of the risk management plans. Our amendment will help the 
administration continue implementing the accident prevention provisions 
of the Clean Air Act in a sensible way. The amendment balances the 
public's right to know information about extremely hazardous substances 
with the need to place some limits on access to that information to 
prevent terrorists and other criminals from misusing it.
  Section 4 is a response to a potential threat identified by the 
administration

[[Page 13974]]

and industry. The Federal Bureau of Investigation (FBI) has testified 
before the Committee about its concerns that Internet posting of parts 
of the risk management plans (RMPs) required under section 112(r) of 
the Clean Air Act could increase the threat of criminal or terrorist 
actions. The FBI is particularly concerned about the possible use of 
off-site consequence or worst case scenario information in the RMPs by 
terrorists to rank targets and maximize harm to the public. That 
section of the Act was created to help prevent incidents like the one 
in Bhopal, India, where 3,000 people died and 200,000 were injured due 
to a chemical plant disaster.
  I thank Senators Lautenberg, Chafee, Inhofe and representatives of 
the Administration for their work in developing the managers' amendment 
and moving this process along. It represents a real bipartisan team 
effort. Senator Lautenberg and his staff were particularly helpful in 
achieving a balanced agreement on the risk management plan portions of 
the amendment.
  In early May, the administration sent up a legislative proposal to 
create a more secure system for handling sensitive RMP information. The 
administration's hope was that Congress would act before June 21, 1999, 
because that is the statutory deadline under the Clean Air Act for 
significant users of extremely hazardous substances to submit their RMP 
information to EPA. The act directs EPA to make that information 
available to local emergency responders, the States and the public. 
Unless this bill or similar legislation is passed soon, with a 
retroactivity clause included, the Administration cannot limit public 
access to this sensitive information and would not be able to prevent 
it from getting on the Internet. The Freedom of Information Act, FOIA, 
requires this kind of information be made available to the public, 
since it is not classified or considered confidential business 
information. The RMP information is a truly new category of government 
information.
  The committee approved the administration's proposal on May 11, 1999, 
with the understanding that changes would have to be made before it 
would be ready for the full Senate's consideration. Fundamentally, this 
managers' amendment is similar to the Administration proposal. They 
both establish a system for accessing RMP information which is separate 
and distinct from the usual FOIA process. However, the approach in the 
managers' amendment provides a one-year exemption from FOIA while 
regulations are developed to govern the handling of and access to 
worst-case scenario information. This rulemaking period is a 
recognition of the need to air the many issues rising from the creation 
of this new information access system. Concerns about it have been 
raised by the public, the States' Attorneys General, first responders, 
librarians and environmental groups, since the Administration proposal 
was approved.
  To encourage an expedited rulemaking process, the FOIA exemption 
would be lifted if the rule is not completed within one year. In any 
event, the FOIA exemption would be lifted six years after enactment. 
This deadline ensures that Congress revisits and oversees the matter 
and is in keeping with the probable obsolescence of any information 
technology developed to satisfy the security concerns of the FBI and 
the public access concerns of the EPA.
  State and local government personnel and affiliated individuals who 
need the worst case information for the official use of detecting, 
preventing, and responding to chemical facility accidents and their 
off-site consequences would be assured of getting it during the 
rulemaking period and after the rule is issued. However, to limit the 
chances that this information could get on the Internet, these people 
would be required to exercise great care in their use and distribution 
of it. The same restrictions would be placed on qualified researchers. 
Guidance will be issued by EPA, as part of the rulemaking, describing 
the official uses of the sensitive RMP information.
  The amendment establishes penalties for those who knowingly or 
willfully violate the restrictions on the dissemination of the 
sensitive parts of the RMP. There would be a two-tiered approach. 
People who knowingly misuse the information could be fined up to $5,000 
for each infraction. People who violate willfully, meaning that they 
know what the law or regulations prohibit and proceed anyway regardless 
of potential consequences, could face fines up to $1 million per 
calendar year.
  The Clean Air Act's risk management program was created by Congress 
to help prevent chemical accidents that can harm our communities. 
People living near chemical plants do not care whether an accident 
occurs because of operator negligence or criminal activity. They want 
to feel and be secure from such threats. That is why we are taking this 
step today. We want to reduce the opportunity that Internet 
dissemination of worst case scenario information could be used by 
criminals to cause terror or destruction. We have even included an 
emphasis on preventing criminal releases of extremely hazardous 
substances, to make it clear that these should be an important focus of 
the accidental release prevention program.
  But, we also want to preserve the important incentive created by 
public knowledge about chemical accidents and their consequences. That 
knowledge encourages manufacturers to improve the efficiency of their 
processes and plant safety. That is why we have provided the maximum 
possible public access to RMP information in this amendment and the 
Clean Air Act.
  The right-to-know effect has been very successful in reducing overall 
toxic emissions to air, water and land. Knowing more about the off-site 
consequences of these substances should encourage companies to build 
safer facilities and look for alternative manufacturing methods. After 
all, it is part of the general duty under section 112(r) for owners and 
operators of chemical plants ``to design and maintain a safe facility 
taking such steps as are necessary to prevent [accidental] releases.'' 
Clearly, measures which entirely eliminate the presence of potential 
hazards, through substitution of less harmful substances or by 
minimizing the quantity of an extremely hazardous substance, as opposed 
to those which merely provide additional containment, are the most 
preferred and would be most effective in reducing the risk of 
accidental releases. The amendment specifically authorizes EPA and the 
Department of Justice to help owners and operators develop voluntary 
industry standards to carry out the various objectives of the general 
duty clause.
  Mr. President, we are prepared for final passage. I urge my 
colleagues to support the measure, and I hope the House will take up 
this matter and send it quickly to the President.
  Mr. INHOFE. Mr. President, after many weeks of intensive 
negotiations, I am pleased the members of the Environment and Public 
Works Committee and the administration were able to come to an 
agreement on S. 880, the Fuels Regulatory Relief Act. I take this 
opportunity to clarify certain points of this important legislation.
  One item that is of particular concern is the possibility for 
circumvention by covered persons. New subparagraph (H)(xii)(II) states 
that it ``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.'' My concern is that this 
provision would seem to allow a government official in possession of 
this information to alter it in some minor, trivial way--like white out 
the words ``Risk Management Plan'' at the top of the page--and then 
distribute it with complete impunity. That possibility would obviously 
undermine the entire purpose of the legislation.
  The purpose of this part of the bill is simply to clarify that 
covered persons can talk generally to the public about off-site 
consequence information--so that they can prepare documents that 
discuss the overall effect of OCAs in a particular state or locality, 
or so that they can prepare summaries like the executive summaries of 
risk management plans. But this provision would not allow them to 
release OCA information about a particular facility, or

[[Page 13975]]

in a way that would tend to identify a particular facility, except to 
the extent allowed by the regulations envisioned in the bill, or in the 
event that the one-year moratorium expired without any regulations 
having been promulgated. The only exception would be where the covered 
person came into possession of information that could be described as 
``off-site consequence information,'' but which was generated by some 
totally different process than the Risk Management Program.
  I am also troubled about the provision entitled ``Effect on State or 
Local Law.'' On the one hand, subparagraph (H)(x)(I) states that the 
bill, and the regulations under it, shall supersede any inconsistent 
provision of state or local law. But on the other hand, that preemption 
is ``subject to'' subparagraph (H)(x)(II), which says ``nothing in [the 
bill] precludes a State from making available off-site consequence 
analysis information collected in accordance with State law.''
  The issue of preemption of State laws is always a concern of mine, 
and I believe this legislation provides the proper balance of necessary 
protection of information and the guidance for States to follow. The 
bill prevents States from disseminating any information that they 
receive from a facility directly, or indirectly from any other person, 
that was generated in the course of complying with Clean Air Act 
section 112(r)(7). The only way a State can disseminate such 
information is pursuant to the regulations called for by the bill, or 
if the moratorium created by the bill expires without any regulations 
having been promulgated.
  In plain language, what paragraph (H)(x)(II) does is say that where a 
State enacts its own, completely free-standing statute that calls for 
the independent collection of information that fits the definition of 
``offsite consequence analysis information,'' then the State is allowed 
to release that information in accordance with State law. So far as I 
am aware, no such State law currently exists. Obviously, I would hope 
that before a State enacted such a law, it would carefully consider the 
reasons that have led us to entertain this legislation today; the need 
to keep such sensitive information from being put on the Internet or 
otherwise made widely available without adequate assessment of the 
security risks created thereby.
  Many responsible companies regulated by the RMP program realized a 
long time ago that they needed to reach out and engage their local 
communities about the possible offsite consequences of releases from 
their facilities. Many companies started this dialogue process years 
ago, and many more are engaged in it right now. Clearly this sort of 
voluntary outreach is precisely the sort of behavior that we want to 
encourage, not discourage. I am worried about subparagraph (H)(v)(III), 
which says that where a facility ``makes off-site consequence analysis 
information relating to that stationary source available to the public 
without restriction,'' the prohibitions and sanctions created by the 
bill would no longer apply. I'm concerned that this provision will lead 
facilities to be very hesitant to reveal any information about offsite 
consequences, for fear that they will thereby be authorizing government 
agencies to put their OCA data on the Internet.
  Under the legislation, ``offsite consequence analysis information'' 
is a defined term which is defined as ``those portions of a risk 
management plan, excluding the executive summary of the plan, 
consisting of an evaluation of 1 or more worst-case scenario or 
alternative scenario accidental releases . . . .'' So before a facility 
would lose the protections provided by this bill, it would have to 
release its risk management plan, or at least the OCA portion of that 
plan, and do so without any restrictions whatsoever. They would be free 
to summarize or repackage the information in a different form without 
triggering the provision in question. I think this creates a real 
bright-line test that should give facilities the kind of assurance they 
need to allow them to continue doing the sort of outreach I also want 
to encourage.
  Section (H)(ii) of the amendment requires, first, that the President 
assess the risks associated with posting off-site consequence analyses 
on the Internet, and second, based on that assessment, to regulate in a 
manner that minimizes the likelihood of both accidental and criminal 
releases from covered facilities. At a minimum, these regulations 
should accomplish the following goals in providing access to off-site-
consequence information:
  Minimize the likelihood of accidental and criminal releases;
  Allow limited access to paper copies of the analyses;
  Allow other public access as appropriate; and
  Provide access for official uses.
  I note that the ``other public access'' contemplated under this 
provision relates to the availability of summaries or other discussions 
of off-site consequence analyses that do not identify the specific 
facility or location, and to mechanisms such as ``read-only'' 
approaches that preclude copying. Further, for the access by officials 
in contiguous states or localities indicated in (H)(ii)(II)(cc)-(ee), 
the intention is to provide official access to off-site consequence 
analyses in cases where the affected facilities have worst-case 
scenarios that impact the contiguous state or locality.
  Mr. PRESIDENT, I thank the distinguished chairman, Senator Chafee, 
for his guidance and also the tremendous cooperation by the ranking 
member, Senator Baucus. Their work has ensured the passage of this 
important legislation. I yield the floor.


                          exempted substances

  Mr. INHOFE. Mr. President, I rise to make a few remarks about S. 880, 
the Fuels Regulatory Relief Act. This bill is designed to address the 
listing of certain flammable fuels under section 112(r)(3) of the Clean 
Air Act. The Committee determined that propane and flammables used as 
fuels should not be listed as a regulated or extremely hazardous 
substances because they do not comport with the Act's criteria for such 
listing. However, the National Association of Fire Fighters are 
concerned that removing these substances from Federal regulation under 
section 112(r) of the act will limit information regarding these fuels 
that would have been available to the public through the Risk 
Management Plans, RMP required by EPA's final rule implementing that 
section.
  Mr. BAUCUS. Mr. President, I want to thank my colleague from Oklahoma 
for his work on this piece of legislation. I think it is responsive to 
the concerns that we heard from the fire fighters and the other first 
responders. They are concerned about losing access to information that 
would have been included in RMPs for those substances exempted by this 
bill. The RMP information was intended by Congress to aid emergency 
responders and communities in the prevention of loss of life and 
property that might occur due to accidental releases of hazardous 
substances. The component of the RMPs of greatest interest to the 
emergency responders is the hazard assessment required by section 
112(r)(7)(B)(ii)(I).
  Mr. INHOFE. I also thank my colleague from Montana for his work on 
this bill. We are very aware of the dangers fire fighters and other 
emergency response personnel face every day protecting the lives of our 
people and we want to provide them with the information they need to 
handle threats posed by extremely hazardous substances. Nonetheless, 
the substances generally addressed by S. 880, section 3, do not warrant 
coverage by a Clean Air Act requirement to submit RMPs. A voluntary, 
non-regulatory approach, such as the voluntary standards of the 
National Fire Protection Association for Liquified Petroleum Gas (NFPA 
58), can better supply the information needed by fire fighters to 
protect their and the public's health and welfare.
  Mr. BAUCUS. I agree with my colleague, but NFPA 58 does not currently 
require the development of hazard assessment or off-site consequence 
analysis information. NFPA 58 also does not make specific provision for 
communicating or sharing this information with local emergency response 
authorities or personnel. Another problem with the NFPA Code is that 
state fire protection codes laws refer to NFPA 58

[[Page 13976]]

as of a certain date. Therefore, when the Code is updated, state laws 
do not automatically reflect subsequent changes to it.
  Mr. INHOFE. That is true. There are two reports included in this 
legislation designed to address those specific problems. The first 
report will examine the status of amendments to NFPA 58 that will 
provide to local emergency response personnel information concerning 
the off-site effects of accidental releases of those substances 
exempted from listing by section 3 of this legislation. We strongly 
encourage all the parties involved in this NFPA amendment process to 
work together in good faith and in a timely manner. The second report 
is designed to examine the sufficiency of the information local 
emergency response personnel receive to help them respond to chemical 
accidents. Specifically, the report will address the level of 
compliance with all federal and state requirements for submission of 
this information to emergency response personnel. Also, the report will 
examine the adequacy of the methods for delivering this information to 
emergency response personnel.
  Mr. BAUCUS. I believe these reports will be of great help to 
firefighters and other emergency responders in looking at the adequacy 
of the information they need and get to do their jobs well. If the 
reports come back showing that the Federal government has not done its 
share to make their job of protecting the public easier, then this 
committee and others should take quick action to address any gaps in 
the system.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the bill be 
read a third time and passed, the motion to reconsider be laid upon the 
table, and that any statements relating to this bill appear at the 
appropriate place in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (S. 880), as amended, was read the third time and passed, as 
follows:

                                 S. 880

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Fuels Regulatory Relief 
     Act''.

     SEC. 2. FINDINGS.

       Congress finds that, because of their low toxicity and 
     because they are regulated sufficiently under other programs, 
     flammable fuels, such as propane, should not be included on 
     the list of substances subject to the risk management plan 
     program under section 112(r) of the Clean Air Act (42 U.S.C. 
     7412(r)).

     SEC. 3. REMOVAL OF FLAMMABLE FUELS FROM RISK MANAGEMENT LIST.

       Section 112(r)(4) of the Clean Air Act (42 U.S.C. 
     7412(r)(4)) is amended--
       (1) by redesignating subparagraphs (A) through (C) as 
     clauses (i) through (iii), respectively, and indenting 
     appropriately;
       (2) by striking ``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)), by striking the period at the end and inserting 
     ``; and''; and
       (4) by adding at the end the following:
       ``(B) shall not list a flammable substance when used as a 
     fuel or held for sale as a fuel 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.''.

     SEC. 4. 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 and criminal 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) Criminal release.--The term `criminal release' means 
     an emission of a regulated substance into the ambient air 
     from a stationary source that is caused, in whole or in part, 
     by a criminal act.
       ``(III) 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 or criminal releases.
       ``(IV) 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 scenario or alternative scenario accidental 
     releases, and any electronic data base created by the 
     Administrator from those portions.
       ``(V) 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).

       ``(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 criminal 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 criminal releases 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;
       ``(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

[[Page 13977]]

     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.--

       ``(aa) Knowing violations.--A covered person that knowingly 
     violates a restriction or prohibition established by this 
     subparagraph (including the regulations promulgated under 
     clause (ii)) shall be fined not more than $5,000 for each 
     unauthorized disclosure of off-site consequence analysis 
     information. The disclosure of off-site consequence analysis 
     information for each specific stationary source shall be 
     considered a separate offense. Section 3571 of title 18, 
     United States Code, shall not apply to an offense under this 
     item. The total of all penalties that may be imposed on a 
     single person or organization under this item shall not 
     exceed $100,000 for violations committed during any 1 
     calendar year.
       ``(bb) Willful violations.--A covered person that willfully 
     violates a restriction or prohibition established by this 
     subparagraph (including the regulations promulgated under 
     clause (ii)) shall be fined under section 3571 of title 18, 
     United States Code, for each unauthorized disclosure of off-
     site consequence analysis information, but shall not be 
     subject to imprisonment. 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.

       ``(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) Guidance.--

       ``(I) Issuance.--Not later than 60 days after the date of 
     enactment of this subparagraph, the Administrator, after 
     consultation with the Attorney General and the States, shall 
     issue guidance that describes official uses of off-site 
     consequence analysis information in a manner consistent with 
     the restrictions in items (cc) through (ee) of clause 
     (ii)(II).
       ``(II) Relationship to regulations.--The guidance 
     describing official uses shall be modified, as appropriate, 
     consistent with the regulations promulgated under clause 
     (ii).
       ``(III) Distribution.--The Administrator shall transmit a 
     copy of the guidance describing official uses to--

       ``(aa) each covered person to which off-site consequence 
     analysis information is made available under clause (iv); and
       ``(bb) each covered person to which off-site consequence 
     analysis information is made available 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 on achievement of objectives.--

       ``(I) In general.--Not later than 3 years after the date of 
     enactment of this subparagraph, the Comptroller General shall 
     submit to Congress a report that describes the extent to 
     which the 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.
       ``(II) Interim report.--Not later than 270 days after the 
     date of enactment of this subparagraph, the Comptroller 
     General shall submit to Congress an interim report that 
     includes, at a minimum--

       ``(aa) the preliminary findings under subclause (I);
       ``(bb) the methods used to develop those 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 from the preliminary findings.
       ``(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) Termination of Authority.--The authority provided by 
     this section and the amendment made by this section 
     terminates 6 years after the date of enactment of this Act.

                          ____________________