[Senate Report 106-70]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 141
106th Congress                                                   Report
                                 SENATE
 1st Session                                                     106-70

======================================================================



 
                      FUELS REGULATORY RELIEF ACT

                                _______
                                

                  June 9, 1999.--Ordered to be printed

_______________________________________________________________________


    Mr. Chafee, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [to accompany S. 880]

                             together with

                             MINORITY VIEWS

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred 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, having considered the same 
reports favorably thereon with an amendment and recommends that 
the bill, as amended, do pass.

                    General Statement and Background

    Subsection (r) of Section 112 of the Clean Air Act 
establishes programs and requirements to prevent catastrophic 
chemical accidents and to mitigate the consequences of such 
accidents when they do occur. Subsection (r) addresses 
substances which, when released into the air in significant 
quantities, may, even in periods of limited exposure, cause 
illness or death. The objective of the programs established 
under this subsection is to prevent the release of extremely 
hazardous substances and to ensure that mitigation and response 
measures are in place should an accidental release occur.
    Pursuant to this subsection, the Environmental Protection 
Agency (EPA) promulgated rules to establish a risk management 
program (RMP). The RMP requires the submission by covered 
facilities to EPA of an assessment of the risk of accidental 
release of any substance identified in the rulemaking completed 
under 112(r)(3). The RMP includes a process for assessing 
hazards associated with accidental releases of listed 
substances, a program for preventing accidental releases, and a 
response program providing for specific actions to be taken in 
response to an accidental release. Pursuant to section 
112(r)(7)(B)(i), these requirements apply 3 years after final 
promulgation, or June 21, 1999.
    Section 112(r)(3) requires a rule (40 CFR part 68) be 
promulgated to identify no less than 100 substances, and 
threshold quantities for each, to be subject to RMP 
requirements. Any facility at which is stored more than the 
threshold quantity of a substance identified in 40 CFR part 68 
is subject to the RMP requirements as detailed in 112(r)(7) and 
in 40 CFR part 68. In 1994, the EPA listed 77 highly toxic 
substances and 63 highly flammable substances in its rulemaking 
in order to satisfy the CAA requirement that 100 substances be 
listed.
Flammable Fuels
    Subsequent to the promulgation of 40 CFR part 68, a 
question has been raised regarding the appropriateness of 
including flammable fuels in this program. The section of law 
that authorized this regulation was developed in response to 
the proliferation of commercial uses of hazardous chemicals. 
The RMP portion of the law was a reaction to a series of 
accidental releases of extremely hazardous sustances that 
resulted in deaths and serious injuries to individuals beyond 
boundaries of the facilities where such releases had occurred. 
The most notable, but by no means the only, of these releases 
was the December 1984 release of 40 tons of methyl isocyanate 
from a Union Carbide facility in Bhopal, India, which killed an 
estimated 4,000 people. Implementation of the RMP was intended 
to improve awareness among State and local emergency personnel 
and the public regarding the substances being used in their 
communities and inform them as to appropriate response actions 
in the case of an accidental release. The law also requires 
specific steps be taken at each facility to reduce the 
potential for accidental releases.
    The toxic effects of exposure to hazardous chemicals varies 
widely depending on the substance and the form of the exposure. 
It was this informational challenge that 112(r) was designed to 
overcome. EPA's decision to use this provision of the Clean Air 
Act to regulate flammable substances that do not cause adverse 
health effects as the result of exposure to the substance goes 
beyond congressional intent.
    EPA's rule, 40 CFR part 68, bears this out in part by 
explicitly excluding gasoline from the rule. The Congress 
provided criteria for the Agency to consider in listing 
substances that would require reporting under the RMP. The 
EPA's application of the criteria resulted in the listing of 
propane and similar fuels, yet excluded gasoline. Gasoline use 
is far more widespread than propane use in this country. Data 
available from EPA's Emergency Response Notification System 
indicates that accidental releases of gasoline outnumber 
accidental releases of propane by ten to one. Given the greater 
exposure of the general population to gasoline at refueling 
stations and other locations, had this program been aimed at 
accident prevention for all dangerous substances, surely 
gasoline would have been included.
    EPA has defended its inclusion of flammable substances used 
as fuels based on the statutory requirement that vinyl chloride 
be included in this program. EPA argues that vinyl chloride is 
highly flammable and, therefore, Congress indicated its intent 
for the rule to apply to all highly flammable substances. This 
argument overlooks the important fact that vinyl chloride is 
extremely toxic when inhaled. The Occupational Safety and 
Health Administration has established a workplace exposure 
standard for vinyl chloride at a maximum of five parts per 
million for 15 minutes.
    The handling and storage of flammable substances used as 
fuels currently are governed by OSHA regulations, the voluntary 
standards of the National Fire Protection Association for 
Liquified Petroleum Gas (NFPA 58) and other Federal regulations 
designed to limit the likelihood of accidental releases and 
reduce the magnitude of public and employee exposure. However, 
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.
    Compliance with the NFPA 58 has been frequently cited by 
the propane industry as providing a measure of assurance of 
safety from catastrophic accidents and as a way of reducing the 
likelihood of accidents from propane facilities. A voluntary, 
non-regulatory approach, such as the NFPA Code, can supply the 
information needed by fire fighters to protect public health 
and welfare without creating an increased risk of propane 
accidents due to an inappropriate regulation. Such an approach 
is consistent with the National Technology Transfer and 
Advancement Act of 1995 (Public Law 104-113) and should, if 
adequately adopted, encourage increased compliance in a lower 
cost and less burdensome fashion.
    Therefore, the EPA, the Department of Transportation, and 
other appropriate Federal agencies should work with the 
National Fire Protection Association, the International 
Association of Fire Fighters, the International Association of 
Fire Chiefs, the National Propane Gas Association, local 
emergency response authorities, and other interested parties, 
to develop changes to the National Fire Protection Association 
58 Code, Liquifiedd Petroleum Gas Code. These changes should 
provide local emergency response personnel and authorities with 
sufficient information to plan, prepare for and respond to 
emergencies involving propane and other flammable substances 
used as fuel.
Public Availability of OCA Information
    Section 4 of S. 880 addresses the availability of off-site 
consequence analysis information in risk management plans 
submitted to the Environmental Protection Agency in an effort 
to comply with 40 CFR part 68. That regulation requires 
facilities that store more than threshold quantities of 
substances listed in the rule to participate in the risk 
management program established by 40 CFR part 68 and in 
accordance with Sec. 112(r)(7) of the CAA. The RMP requires by 
June 21, 1999, the submission of the results of off-site 
consequence analysis of potential accidental releases, 
including worst-case scenario releases.
    Since the promulgation of the rule establishing the risk 
management program, the Federal Government has sought a means 
to address concerns regarding the potential terrorist threat 
posed by Internet access to off-site consequence analysis 
information collected under the RMP. Because section 112(r)(7) 
requires that risk management plans be available to the public, 
the EPA planned to post the information collected under this 
program on an Internet web site. Due to concerns about how 
terrorists might use this information if it were available on 
the Internet, the EPA revised that plan and has joined with the 
Department of Justice in seeking to limit Internet access to 
the off-site consequence analysis information.
    Concern about the potential use of this information was 
restated at the March 16, 1999 hearing of the Subcommittee on 
Clean Air, Wetlands, Private Property, and Nuclear Safety by 
Timothy Fields, Acting Assistant Administrator, Office of Solid 
Waste and Emergency Response, U.S. Environmental Protection 
Agency, and by Robert M. Burnham, Chief, Domestic Terrorism 
Section, National Security Division, Federal Bureau of 
Investigation.
    Mr. Fields noted that there was a need to ``balance the 
benefits of community right-to-know with also legitimate 
concerns about protection against terrorist threat.'' He 
described the steps that the EPA hoped to take to deter the 
posting of off-site consequence analysis information on the 
Internet stating that this information database ``should not be 
posted on the Internet and [EPA] will take efforts to make sure 
that does not occur.'' Mr. Burnham added that the FBI had 
identified portions of the risk management plans that ``can be 
directly utilized as a targeting mechanism in a terrorist or 
criminal incident.''
    A Federal interagency workgroup has met to address these 
issues. The result of that activity was a legislative proposal 
that has been embodied in S. 880 to exempt off-site consequence 
analysis information from the requirements of the Freedom of 
Information Act. The bill also would establish an alternative 
means of making that information generally available based on 
guidance developed by the Administrator of the Environmental 
Protection Agency.

                     Objectives of the Legislation

    S. 880 would affect the Clean Air Act in two ways. It would 
remove flammable substances used as fuels from inclusion in the 
risk management program established by 40 CFR part 68 unless a 
fire or explosion caused by the substance will result in acute 
adverse health 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.
    The bill would also limit the general availability of the 
information collected in accordance with the RMP rule. S. 880 
would prevent the application of the provisions of the Freedom 
of Information Act to off-site consequences analysis 
information submitted to the Environmental Protection Agency 
for the purpose of compliance with 40 CFR part 68. The bill 
would establish an alternative means of making that information 
publicly available including making paper and electronic forms 
of the information available under conditions to be established 
by guidance issued by the Administrator of the Environmental 
Protection Agency.

                      Section-by-Section Analysis

                         Section 1. Short Title

    This section designates the short title of the Act as 
``Fuels Regulatory Relief Act.''

                          Section 2. Findings

    The Congress finds that flammable fuels of low toxity, 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)).

    Section 3. Removal of Flammable Fuels from Risk Management List

    This section would remove flammable substances when those 
substances are used as fuels from inclusion in the risk 
management program established by 40 CFR part 68, by exempting 
them from being listed under section 112(r)(3) solely because 
of their explosive or flammable properties, unless a fire or 
explosion caused by the substance will result in acute adverse 
health 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.

    Section 4. Public Availability of Off-Site Consequence Analysis 
                  Information in Risk Management Plans

Summary
    This section exempts off-site consequence analysis (OCA) 
information, or information derived from OCA information, from 
availability under the Freedom of Information Act. Instead, it 
establishes an alternative means of making OCA information 
available, both in paper and electronic form. This section 
directs the Administrator to issue guidance concerning the 
availability of the OCA information, in order to ensure that 
the conditions and limitations established in this section for 
its security and accessibility are followed properly. The 
Administrator may promulgate regulations in lieu of guidance.
Discussion
    This section provides that an officer or employee of the 
United States may make OCA information available in electronic 
form in only four cases: to State or local government officers 
or employees for official use, limited public inspection 
without electronic means of ranking stationary sources based on 
OCA information, to the public with the identity and location 
of the stationary sources omitted, and to officers and 
employees of agents and contractors of the Federal Government.
    This section provides that an officer or employee of the 
United States may make OCA information available in paper form 
in only four cases: to the public subject to any conditions 
established in the guidance and regulations promulgated under 
this Act, to State and local government officers, limited 
public inspection and to officers and employees of agents and 
contractors of the Federal Government.
    The Administrator may provide OCA information in electronic 
form to State or local government officers or employees for 
official use. 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 OCA information submitted for the 
stationary sources located in the State in which the State or 
local government officer serves.
    This section preempts State and local law to the extent 
that it would require dissemination of OCA information in a 
manner not authorized by this Act. An officer or employee of a 
State or local government cannot make OCA information available 
to the public in any form, except as authorized by the 
Administrator. They may make available OCA information that 
concerns stationary sources located in the State in which the 
officer or employee serves, but only to persons eligible to 
receive it from Federal officers or employees and only in the 
same manner (paper or electronic) in which those individuals 
were eligible to receive it.
    Emergency responders with mutual aid arrangements with 
adjacent jurisdictions in neighboring States are allowed to 
share OCA information on stationary sources within their 
respective jurisdictions. However, they could also get out-of-
state OCA information electronically, since it is not subject 
to the same restrictions. Officers and employees of a State or 
local government may make OCA information available in any form 
to officers and employees of agents and contractors of the 
State or local government for official use only.
    OCA information will be available to the public. In 
response to a request for OCA information or for a risk 
management plan, the Administrator must make available a copy 
of OCA information, but only in paper form and subject to the 
conditions in the guidance, including limits on the maximum 
number of requests that any single requester may make and the 
maximum number of stationary sources for which OCA information 
may be made available in response to any single request.
    This section also requires the Administrator to make every 
risk management plan submitted to the EPA available in paper or 
electronic form for public inspection, but not copying, during 
normal business hours, including in depository libraries. 
Electronically available OCA information must not provide a 
means of ranking stationary sources based on OCA information. 
After consultation with the Attorney General, the Administrator 
may make OCA information available to the public in an 
electronic form that does not include information concerning 
the identity or the location of the stationary sources.
    Officers and employees of the United States, State and 
local governments and their agents and contractors are 
prohibited from making OCA information available to the public 
in any form, except as authorized by the Administrator. They 
are subject to fines and/or imprisonment of up to 1 year for a 
knowing violation of a restriction established by this 
subsection.
    The Administrator and State and local governments are 
authorized to collect and maintain records of the identities of 
individuals seeking access to OCA information if it is relevant 
and necessary to accomplish a purpose of the EPA (for the 
Administrator) and a purpose of the employing agency required 
by State statute (for State and local officials).

                                Hearings

    The Subcommittee on Clean Air, Wetlands, Private Property 
and Nuclear Safety held a hearing on March 16, 1999 on the 
matters addressed in S. 880. The bill had not been introduced 
at that time. Witnesses providing testimony at that hearing 
were Timothy Fields, Jr., Acting Assistant Administrator for 
Solid Waste and Emergency Response, Environmental Protection 
Agency; Robert M. Burnham, Chief, Domestic Terrorism Section, 
National Security Division, Federal Bureau of Investigation, 
Department of Justice; Robert M. Blitzer, former Section Chief, 
Domestic Terrorism/Counterterrorism Planning Section, Federal 
Bureau of Investigation, Department of Justice; Dean Kleckner, 
of Rudd, IA, on behalf of the American Farm Bureau Federation; 
James E. Bertelsmeyer, Heritage Propane, Tulsa, OK, on behalf 
of the National Propane Gas Association; Thomas M. Susman, 
Ropes & Gray, Washington, DC; Thomas E. Natan, Jr., National 
Environmental Trust, Washington, DC; Paula R. Littles, Paper, 
Allied-Industrial, Chemical and Energy Workers International 
Union, Fairfax, VA; and Ben Laganga, Union County Office of 
Emergency Management, Westfield, NJ.

                             Rollcall Votes

    The Committee on Environment and Public Works met to 
consider S. 880 on May 11, 1999. The committee agreed to an 
amendment by Senator Inhofe by a rollcall vote of 12 ayes, 4 
nays, and 2 not voting. Voting in favor were Senators Bennett, 
Baucus, Crapo, Graham, Hutchison, Inhofe, Reid, Smith, Thomas, 
Voinovich, Warner, and Chafee. Voting against the amendment 
were Senators Boxer, Lautenberg, Lieberman, and Wyden. Later 
that day the committee met again to complete action on the bill 
and voted to report S. 880, as amended, by a vote of 12 ayes 
and 6 nays. Voting in favor were Senators Bennett, Baucus, 
Bond, Crapo, Graham, Hutchison, Inhofe, Smith, Thomas, 
Voinovich, Warner, and Chafee. Voting against were Senators 
Boxer, Lautenberg, Lieberman, Moynihan, Reid, and Wyden.

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee makes evaluation of 
the regulatory impact of the reported bill.
    The bill does not create any additional regulatory burdens, 
nor will it cause any adverse impact on the personal privacy of 
individuals.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the committee finds that S. 880 would 
impose some Federal intergovernmental unfunded mandates on 
State, local, or tribal governments.
    S. 880 contains intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA), but CBO estimates that 
the costs to comply with those mandates would fall below the 
threshold established by that act ($50 million in 1996, 
adjusted annually for inflation). The bill contains no new 
private-sector mandates as defined in UMRA.

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of the 
reported bill, prepared by the Congressional Budget Office, be 
included in the report. That statement follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 25, 1999.

Hon. John H. Chafee, Chairman,
Committee on Environment and Public Works,
U.S. Senate, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 880, the Fuels 
Regulatory Relief Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Kim Cawley 
(for Federal costs), who can be reached at 226-2860, and Lisa 
Cash Driskill (for the State and local impact), who can be 
reached at 202-225-3220.

            Sincerely,
                                            Dan L. Crippen,
                                                          Director.
                                ------                                


               Congressional Budget Office Cost Estimate

S. 880, Fuels Regulatory Relief Act, as ordered reported by the Senate 
        on Environment and Public Works on May 11, 1999
Summary
    CBO estimates that enacting S. 880 would result in no 
significant additional costs or savings to the Federal 
Government. Because S. 880 could affect direct spending and 
receipts, pay-as-you-go procedures would apply to the bill, but 
CBO estimates that any impact on direct spending and receipts 
would not be significant.
    S. 880 contains intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA), but CBO estimates that 
the costs to comply with those mandates would fall below the 
threshold established by that act ($50 million in 1996, 
adjusted annually for inflation). The bill contains no new 
private-sector mandates as defined in UMRA.
    S. 880 would exempt flammable fuels that are not acutely 
toxic from provisions of the Clean Air Act that require risk 
management planning. That Act requires operators of stationary 
sources that produce, process, handle, or store certain 
hazardous materials to prepare risk management plans every 5 
years for review by the Environmental Protection Agency (EPA). 
S. 880 also would require EPA to restrict access to some 
information in risk management plans. Upon request, the Agency 
could provide such information to the public and could charge 
fees to cover the cost of this service. Under the bill, 
criminal penalties could be imposed on any Federal or local 
government employee who violates the bill's provisions 
regarding public release of information contained in a risk 
management plan.
    EPA estimates that nearly 70,000 facilities will have to 
prepare risk management plans for the Agency's review under 
current law. S. 880 would exempt almost half of these 
facilities from this requirement. The exemption would apply to 
facilities that use flammable fuels, such as propane. By 
exempting those facilities from reporting requirement, the bill 
would lead to a savings of less than $1 million a year in EPA's 
administrative costs.
    Some of the savings would likely be offset by additional 
costs imposed on EPA by the requirements in the bill to 
restrict access to risk management plans. EPA had planned to 
make risk management plans available via the Internet to State 
and local officials, emergency planning officials, and the 
interested public. S. 880 would direct EPA to provide access to 
paper or electronic copies of risk management plans only us a 
form that could not be copied. The bill would authorize EPA and 
the Government Printing Office (GPO) to use the Nation's 
depository libraries to make this information available. CBO 
expects that EPA and GPO would utilize an electronic (computer-
based) means to ensure that plans could not be copied. If 
electronic means were not used, the cost of providing paper 
copies of all risk management plans (as much as 1 million pages 
of text) to each depository library could exceed $20 million. 
The bill also would direct EPA to provide paper copies of risk 
management plans to the public, when requested, but the agency 
could collect fees to offset the costs of processing and 
reproducing such information.
    Under S. 880, government officials violating the 
restrictions on disseminating information would be subject to 
criminal fines. Collections of such fines are recorded in the 
budget as governmental receipts, or revenues, which are 
deposited in the Crime Victims Fund and spent in the following 
year. CBO estimates than any increase in revenues and direct 
spending would be negligible.
    S. 880 contains intergovernmental mandates as defined in 
the UMRA because it would preempt State and local freedom-of-
information laws by imposing Federal guidelines for the release 
of some of the information contained in risk management plans. 
Based on information from EPA, these guidelines would likely 
require State and local governments to mail out information 
when requested, and to maintain records in order to comply with 
limits on the number of requests per individual.
    While complying with these requirements could be expensive 
in some cases, CBO estimates that, for a number of reports, 
total costs would be below the threshold established in UMRA. 
First, State and local governments could choose not to release 
the information and instead direct inquiries to EPA. Second, 
even for those governments that chose to release information 
according to the guidelines, it is unlikely that the number of 
requests would be high enough to result in total costs that 
reach the threshold. Furthermore, those governments could 
charge fees to recoup some or all of their costs. Because the 
bill also would exempt certain flammable substances from risk 
management plans, State and local governments that use propane 
to fuel vehicles or for other purposes would realize a savings 
because they would no longer be required to prepare and file 
such plans.
    The CB0 staff contacts are Kim Cawley (for Federal costs), 
who can be reached at 226-286O, and Lisa Cash Driskill (for the 
State and local impact), who can be reached at 202-225-3220. 
This estimate was approved by Robert A. Sunshine, Deputy 
Assistant Director for Budget Analysis.

  Minority Views of Senators Lautenberg, Boxer, Moynihan and Lieberman

    The Risk Management Program, established under the Clean 
Air Act Amendments of 1990, is intended to prevent public 
health and safety emergencies. Facilities covered by the Risk 
Management Program must develop and implement their own 
individual risk management programs, which include an analysis 
of the potential offsite consequences of an accidental chemical 
release, a five-year accident history, a release prevention 
program, and an emergency response program. Each facility must 
also develop and submit a risk management plan (RMP), which 
provides a summary of the facility's risk management program to 
the Environmental Protection Agency (EPA) no later than June 
21, 1999. In addition, after that date, facilities' RMPs are to 
be made available to Federal, State, and local government 
agencies and the public.
    The Fuels Regulatory Relief Act of 1999, S. 880, as 
reported by the committee, would essentially rewrite the Risk 
Management Program by (a) exempting propane and other flammable 
fuels from the program, and (b) constraining public access to 
information on the offsite consequences of worst case chemical 
accidents. We have significant concerns with the approach S. 
880 takes on both issues.
Propane and Fire Safety
    Fire fighters have told the committee that, under the Risk 
Management Program, propane distributors would be required to 
provide emergency responders with critical information they 
need to protect the public in case of an accident. This is our 
primary reason for opposing S. 880's exemption of propane from 
the Risk Management Program.
    Clearly, accidental release of propane can result in acute 
adverse human effects. After Bhopal, the most significant 
chemical accident in history is the November 1984 Mexico City 
accident, in which a series of explosions and fires at an LP-
Gas (i.e., propane) storage terminal resulted in 650 deaths, 
6,400 injuries and over $20 million in damages. And in 1989, a 
vapor cloud explosion at a facility in Pasadena, Texas killed 
23 workers, and injured up to 300 workers and others.
    While a number of substances are combustible, the 
Environmental Protection Agency (EPA) has applied the Risk 
Management Program only to combustible substances which are 
highly flammable and highly volatile--like propane--because 
these kinds of substances can generate a vapor cloud explosion. 
Vapor cloud explosions travel greater distances than fireballs, 
pool fires, or jet fires, and can cause death and injury beyond 
facility boundaries. For these and other reasons cited by the 
EPA, we believe the Agency acted appropriately in including 
propane in the Risk Management Program.
    The RMP is the only current source of important emergency 
response information. Through the program, propane distributors 
are required to develop hazard assessment and off-site 
consequence analysis information, and to share the information 
with emergency response personnel--information they provide 
under no other program.
    It is possible, as the majority has argued, that the 
informational benefits of the Risk Management Program might be 
better provided through a revision of the National Fire 
Protection Association (NFPA) Code 58 for Liquid Propane Gas. 
Such a revision could be developed by representatives of the 
propane industry, emergency responders, Federal agencies, and 
other interested parties, and provide information of even 
higher value to emergency responders than the Risk Management 
Program. However, S. 880, as reported by the committee, 
provides no framework for such an NFPA code revision, and in 
its absence, we are compelled to oppose it.
Chemical Facilities as Terrorist Targets
    We face, in the issue of public access to chemical accident 
scenarios, one of the fundamental tensions of an open 
Democratic society--how accessible to make information whose 
disclosure may prevent harm, but that in some cases may be used 
to cause harm. While we agree with the need to strike a balance 
on this issue, and recognize the good faith effort made in 
drafting S. 880, we are concerned that significant problems 
remain with the bill as reported by the committee.
    Chemical accidents cause serious loss of life, health, and 
property. The Chemical Safety and Hazard Investigation Board 
reports an average of 60,000 chemical incidents each year, 
resulting in hundreds of evacuations and injuries, and an 
average annual death toll of 256. Our goal must be to make 
chemical manufacture and use safer and less harmful to the 
environment and the public, even as it contributes more to our 
economy and quality of life.
    Congress has instituted a broad range of programs towards 
that end. Regulatory programs specify the minimum safety and 
environmental protection measures that should be in place at 
each facility. The Chemical Safety and Hazard Investigation 
Board identifies the root causes of the most serious accidents 
and recommends measures that public and private stakeholders 
can take to reduce the accidents. And ``Right to Know'' 
programs--which include the public reporting aspect of the Risk 
Management Program--use the power of public scrutiny to promote 
voluntary hazard reduction, often achieving far more benefits 
than what regulatory programs could achieve on their own.
    The ``Right to Know Effect'' reduces chemical hazards. The 
premier current example of the ``Right to Know effect'' is the 
Toxics Release Inventory (established by section 313 of the 
Superfund Amendments and Reauthorization Act of 1986), under 
which industry has decreased routine toxic chemical releases by 
43% from 1988 to 1997. We believe the Right to Know aspect of 
the Risk Management Program will promote similarly-dramatic 
reductions in chemical accidents.
    The power of public scrutiny manifests itself in several 
ways. Newspapers run articles naming a specific company or 
plant ``the top chemical releaser'' in a town, State, or in the 
country. Environmental agency heads publicly call upon the 
biggest firms to voluntarily reduce their releases. Vendors and 
consultants market pollution prevention technologies to 
facilities high on the list. All this is made possible by the 
Right to Know, and it all contributes to an atmosphere in which 
industry, through non-regulatory means, sees incentives to use 
safer products and processes.
    While we take seriously the harm of chemical accidents, and 
look forward to the reduction of such accidents under the 
public scrutiny of the Right to Know program, we also take very 
seriously the Administration's concerns that disclosure of some 
of this information might increase the risk of terrorism. A 
balance must be struck between these two valid concerns in 
order to minimize chemical releases and protect public safety 
and the environment.
    Deficiences with S. 880's constraints on Right to Know. S. 
880 would prevent information on the offsite consequence 
analyses (OCA) of worst case chemical accidents--including, in 
particular, an estimate of the deaths and injuries that could 
result from a worst-case accident--from appearing on the 
Internet. This restriction of OCA information is intended to 
inhibit criminal access to data which would allow them to 
target attacks to achieve the most destruction. At the same 
time, S. 880 would allow State and local officials access to 
OCA information for plants within the State, would allow 
individuals access to OCA information in paper form for a 
limited number of plants, and would allow any individuals to 
read OCA information for any plant in the country, but without 
being able to make copies of it.
    While we are concerned with the terrorist threat posed by 
chemical plants, and would support reasonable measures to 
address it, we have several concerns with the specific approach 
taken by S. 880.
    First, we are concerned by the provisions of S. 880 that 
would criminalize inappropriate disclosure of the OCA 
information by Federal, State and local officials, making them 
liable for up to one year in jail. We are further troubled that 
the disclosures the bill would criminalize would be defined in 
guidance (as opposed to regulation), with no input from the 
public and without judicial review. Under this provision, it 
would be possible, for example, that a local safety official 
publishing a report that compares local chemical facilities 
with similar facilities across the country could be jailed. 
Sanctions against certain OCA data disclosure practices may be 
appropriate in some cases, but the language in S. 880 is too 
sweeping and ill-defined in this area, and the sanctions too 
severe for us to support them.
    Second, it is not clear in the bill that all emergency 
responders would have access to the OCA information. We 
believe, for example, that the information should be available 
to fire fighters as well as fire chiefs, and to volunteer fire 
fighters as well as professionals. (The nation's 815,000 
volunteer fire fighters make up 75% of the U.S. fire fighting 
force and are especially important to suburban and rural 
communities.)
    Third, under certain conditions, independent bona fide 
researchers, such as union analysts, safety experts, and 
environmental advocates, should be able to analyze the data and 
publish their findings. This is not provided for in S. 880.
    Fourth, S. 880 does little to address the real underlying 
problem of criminal attack on chemical facilities, which is the 
appeal and vulnerability of such facilities to criminals. On 
the contrary, by constraining the public's Right to Know, and 
thus constraining incentives for chemical facilities to use 
inherently safer practices, S. 880 deprives the public of an 
important means by which chemical facilities can be operated in 
a safer manner and thus less attractive to criminals.
    We respect the good faith effort, reflected in S. 880, to 
balance the hazard reduction of the Right to Know effect 
against the hazard reduction of inhibiting criminal access to 
OCA information. We feel, however, that the balance has not 
been adequately struck, and, again, are compelled to oppose the 
bill.

                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:
                              ----------                              


                             CLEAN AIR ACT

[As Amended Through P.L. 105-394, November 13, 1998]

           *       *       *       *       *       *       *


                  SEC. 112. HAZARDOUS AIR POLLUTANTS.

    (a) Definitions.--For purposes of this section, except 
subsection (r)--

           *       *       *       *       *       *       *

    (r) Prevention of Accidental Releases.--
            (1) Purpose and general duty.-- * * *

           *       *       *       *       *       *       *

            (4) Factors to be considered.--In listing 
        substances under paragraph (3), the Administrator 
        [shall consider each of the following criteria]--
                (A) Shall consider--
                    [(A)] i the severity of any acute adverse 
                health effects associated with accidental 
                releases of the substance;
                    [(B)] ii the likelihood of accidental 
                releases of the substance; [and] ;
                    [(C)] iii the potential magnitude of human 
                exposure to accidental releases of the 
                substance[.] and
                    (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 
                this substance will result in acute adverse 
                health effects from human exposure to the 
                substance, including unburned fuel or its 
                combustion byproducts, other than those caused 
                by the heat of the fire or the impact of the 
                explosion.

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