[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.
-