U.S. GOVERNMENT PRINTING OFFICE

59–379 CC WASHINGTON : 1999

S. HRG. 106–151

EPA’S RISK MANAGEMENT PLAN (RMP) PROGRAM

HEARING

BEFORE THE

SUBCOMMITTEE ON

CLEAN AIR, WETLANDS, PRIVATE PROPERTY AND

NUCLEAR SAFETY

OF THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

MARCH 16, 1999

Printed for the use of the Committee on Environment and Public Works

(

For sale by the U.S. Government Printing Office

Superintendent of Documents, Congressional Sales Office, Washington DC 20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED SIXTH CONGRESS

JOHN H. CHAFEE, Rhode Island, Chairman

JOHN W. WARNER, Virginia

ROBERT SMITH, New Hampshire

JAMES M. INHOFE, Oklahoma

CRAIG THOMAS, Wyoming

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

ROBERT F. BENNETT, Utah

KAY BAILEY HUTCHISON, Texas

MAX BAUCUS, Montana

DANIEL PATRICK MOYNIHAN, New York

FRANK R. LAUTENBERG, New Jersey

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

JIMMIE POWELL, Staff Director

J. THOMAS SLITER, Minority Staff Director

SUBCOMMITTEE ON CLEAN AIR, WETLANDS, PRIVATE PROPERTY, AND

NUCLEAR SAFETY

JAMES M. INHOFE, North Carolina, Chairman

GEORGE V. VOINOVICH, Ohio

ROBERT E. BENNETT, Utah

KAY BAILEY HUTCHISON, Texas

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

(II)
(III)

CONTENTS

Page

MARCH 16, 1999

OPENING STATEMENTS

Graham, Hon. Bob, U.S. Senator from the State of Florida ................................ 9

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 1

Letters, RMP worst-case scenarios.............................................................. 2, 25, 27

Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey ........... 3

Thomas, Hon. Craig, U.S. Senator from the State of Wyoming .......................... 45

Letters submitted for the record...................................................................... 45–48

WITNESSES

Bertelsmeyer, James E., president, National Propane Gas Association ............. 28

Letter, from Senator Chafee ................................................................................... 100

Prepared statement .......................................................................................... 94

Responses to additional question from Senator Graham .............................. 99

Blitzer, Robert, former section chief, Domestic Terrorism/Counterterrorism

Planning Section, Federal Bureau of Investigation .......................................... 34

Prepared statement .......................................................................................... 96

Burnham, Robert M., Chief, Domestic Terrorism Sector, National Security

Division, Federal Bureau of Investigations ....................................................... 7

Prepared statement .......................................................................................... 89

Responses to additional questions from:

Senator Graham ........................................................................................ 91

Senator Lautenberg ................................................................................... 90

Fields, Timothy, Acting Assistant Administrator, Office of Solid Waste and

Emergency Response, Environmental Protection Agency ................................. 5

Chart, EPA’s Regulatory Duplication ............................................................. 52

Prepared statement .......................................................................................... 48

Report, Risk Management Program Guidance for Propane Users and

Small Retailers .............................................................................................. 56–85

Responses to additional questions from:

Senator Chafee .......................................................................................... 87

Senator Graham ........................................................................................ 88

Senator Inhofe ........................................................................................... 85

Kleckner, Dean, President, American Farm Bureau ............................................ 23

Letters, RMP regulations ................................................................................. 25–27

Prepared statement .......................................................................................... 91

Langanga, Ben, emergency management coordinator, Office of Emergency

Management, Union County, New Jersey .......................................................... 40

Prepared statement .......................................................................................... 167

Littles, Paula R., Paper, Allied-Industrial, Chemical and Energy Workers

International Union ............................................................................................. 36

Prepared statement .......................................................................................... 164

Natan, Thomas E., Jr., research director, National Environmental Trust ......... 38

Prepared statement .......................................................................................... 165

Susman, Thomas M., Ropes & Gray ...................................................................... 34

Article, Terrorists with Computers.............................................................. 134–164

Prepared statement .......................................................................................... 132
Page

IV

ADDITIONAL MATERIAL

Article, Flaws of Inclusion of Propane in the EPA RMP Regime, Alliance

for Fair Energy Competition............................................................................ 124–132

Letters from:

Boehert, Hon. Sherwood .................................................................................. 102

California Cotton Ginners and Growers Association ..................................... 114

California Department of Forestry and Fire Protection ............................ 107, 122

Chafee, Hon. John H. ....................................................................................... 100

City of Tallahasse, FL ...................................................................................... 119

City of Waynesboro, GA ................................................................................... 118

Colorado Farm Bureau ..................................................................................... 106

Colyer, Dave ...................................................................................................... 176

Farmers’ Pride .................................................................................................. 112

Florida Farm Bureau Federation .................................................................... 110

Florida Public Utilities Co ............................................................................... 119

Gingerich, Tom ................................................................................................. 177

Governor of California Pete Wilson ................................................................ 175

Hecla Mining Company .................................................................................... 117

Illinois Pork Producers Association ................................................................ 107

Intermountain Outdoor Sports ........................................................................ 117

International Association of Fire Fighters ..................................................... 170

Iowa Farm Bureau Federation ........................................................................ 110

Kansas Farm Bureau ....................................................................................... 111

Kentucky Department of Housing, Buildings, and Construction ................. 123

Kings County, California, Farm Bureau ........................................................ 114

Mobile Tool International, Inc ......................................................................... 118

National Grange ............................................................................................... 109

National Marine Manufacturers Association ................................................. 168

National Restaurant Association ..................................................................... 169

Nebraska Farm Bureau Federation ................................................................ 111

Nevada Board for the Regulation of Liquified Petroleum Gas ..................... 116

North Carolina Department of Agriculture and Consumer Services ........... 115

North Carolina Department of Environment and Natural Resources ......... 120

Ohio Grocers Association ................................................................................. 113

Ohio Meat Industries Association ................................................................... 108

Ohio Poultry Association .................................................................................. 108

Olive Road Flea Market, Brookville, OH ........................................................ 122

Orange County, California, Certified Unified Program Agency.................... 2, 102

Parsons, Peggy .................................................................................................. 106

Rabun, J.J., Mayor of Wrens, GA ................................................................... 119

Ross Ranch South, Tallahasse, FL .................................................................. 123

Scana Propane Services................................................................................ 120, 121

Several agricultural organizations .................................................................. 109

Several Members of the House of Representatives ........................................ 101

Tabor Lumber Cooperative .............................................................................. 123

Thieman Tailgates, Inc. ................................................................................... 117

Tucker, Mike ..................................................................................................... 178

Williamson County, Tennessee, Emergency Management Agency .............. 174

Willmar Poultry Group .................................................................................... 105

Resolutions:

California State Assembly............................................................................ 103, 105

Missouri State Legislature .............................................................................. 113

Nevada Board for the Regulation of Liquified Natural Gas ......................... 115

Statement, National Fire Protection Association .................................................. 170
(1)

EPA’S RISK MANAGEMENT PLAN (RMP)

PROGRAM

TUESDAY, MARCH 16, 1999

UNITED STATES SENATE, SUBCOMMITTEE ON CLEAN AIR, WETLANDS, PRIVATE

PROPERTY AND NUCLEAR SAFETY, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC.

The subcommittee met, pursuant to notice, at 9:31 a.m. in room 406, Dirksen Senate Building, Hon. James M. Inhofe (chairman of

the subcommittee) presiding. Present: Senators Inhofe, Lautenberg, Bennett and Graham.

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator INHOFE. The meeting will come to order. We would ask the first panel to come up to the table, please, Mr.

Fields, Mr. Burnham. I will give an opening statement. Other

members are on their way. We will try to keep on schedule for this

hearing because I have another meeting coinciding at the Senate

Armed Services Committee, and I am supposed to be in two places

at the same time. So we will move right along.

Today’s hearing will examine the EPA’s risk management plan

program as required under the Clean Air Act. While I agree with

the program’s intentions, the need to make emergency information

available to local emergency response personnel, I have serious concerns about the manner in which the EPA is implementing the program. I believe the EPA is flat out wrong in including substances

on the list for flammable reasons alone. I can understand if you

have one that is flammable and toxic, but just here we would be

referring to those substances that are only flammable.

First, regarding flammable substances, the purpose of the provision in the Clean Air Act is to safeguard local communities against

accidents involving toxic chemicals. The Act provided OSHA with

the authority to issue regulations to protect workers against chemical accidents and to provide EPA with the authority to protect the

citizens who live around the plant from escaping toxic fumes.

The EPA regulating propane under this provision is regulatory

overreach in the area that I don’t believe they should be. I’m concerned that through this regulation, the Federal Government is

picking favorites between fuels which is clearly outside the intent

of Congress and the Clean Air Act. The result of including propane

on the list will be fuel switching, potentially driving propane dealers out of business.
2

We have already seen a case where fuel switching is being encouraged by local governments. We have a letter here that I think

is self explanatory, a copy of the letter by the Orange County, California regulating agency where they recommend that propane users

either reduce the amount of propane on hand or switch to a nonregulated substance in order to avoid the EPA rule. When a local

government agency sends out letters like this because of an EPA

rule, then there is a problem with the rule. This is unacceptable.

The EPA has no business deciding which fuels should be used and

which should be encouraged.

I’m interested in hearing from Mr. Bertelsmeyer with the Propane Gas Association about this fuel switching issue. I believe that

will be on the second panel.

I’m also concerned that as far as fuels are concerned, this RMP

rule duplicates other regulations by OSHA and by the National

Fire Protection Association and by various State regulations. I have

a chart which shows the duplication between this rule and others.

The chart is over here and I’d like to have some of the witnesses

address that. I’d like to have Mr. Fields explain exactly what is different in the EPA rule compared to the other regulations and during the second panel, I’d like to hear Mr. Bertelsmeyer respond to

those statements.

A second major concern with this rule is the potential use of this

information by terrorists. If they have access to the worst-case scenario data, they can use this information to target potential bombing sites. You can already find information on the Internet on how

to make a bomb. The last thing we need now is to have information

on the Internet which will show terrorists where they can be most

effective. I have a particular concern and interest in this since I’m

from Oklahoma and having gone through the Federal office bombing.

Last spring, we asked the FBI to take a look at the worst-case

scenario data and the EPA’s plans to disseminate the information

on the Internet. I’m pleased that the FBI convinced the EPA that

it would be foolhardy to release the information. However, that is

not the end of the problem. Anyone can request and receive the

data from EPA through the Freedom of Information Act and the

EPA would have to comply, I would assume. That being the case,

someone could make that request and then they in turn could put

it on the Internet and it would get there anyway.

We need to make sure the local emergency personnel have access

to the information and not provide a forum for terrorists around

the world to target and blow up facilities in our neighborhoods.

[The referenced letter follows:]

ORANGE COUNTY, CALIFORNIA, CERTIFIED UNIFIED PROGRAM AGENCY,

January 14, 1999.

Mr. DAN LOWER,

All Star Gas,

12600 Western Avenue,

Garden Grove, CA 92841.

DEAR MR. LOWER: Your business has been identified as subject to the requirements of the California Accidental Release Prevention (Cal-ARP) program found in

Chapter 6.95, Article 2 Health and Safety Code. The Orange County Certified Unified Program Agency is authorized to implement this program for the State of Cali-
3

fornia. In addition, your business is also subject to the Federal program, found in

section 112(r) of the Clean Air Act implemented by U.S. EPA. Your business is requited to develop and implement a risk management program to prevent accidental releases of regulated substances that can cause serious harm

to the public and the environment. You are also required to develop and submit a

Risk Management Plan (RMP), which includes a summary of your risk management

program. The RMP must be submitted to this agency and an electronic version submitted to U.S. EPA by June 21, 1999. We are requesting that your business contact this agency to schedule RMP com- pliance meeting during the month of January 1999. These meetings are required

pursuant to California regulatory requirements and to ensure that your business

meets the federally mandated timeline. Should your business so choose, you may implement one of the following options in lieu of developing an RMP: 1. Eliminate or replace the Regulated Substance with a non-regulated substance.

2. Reduce the amount onsite to below the Federal threshold quantity. Note: This option may still require the development of an RMP pursuant to California law, but

will delay the submittal process to a date beyond the June 21, 1999 deadline. If one of the above options is chosen you will be required to verify compliance prior to the June 21, 1999 deadline.

This agency is dedicated to assisting your business in meeting these new regu- latory requirements. In the near future we will be providing technical/regulatory assistance as well as RMP guidance documents. However, failure to develop and submit an RMP as required will subject your business to penalties of up to $10,000 per

day. In addition, failure to contact and work with this Agency during development

of your RMP could cause costly revisions to be made during the agency review and

evaluation period. Please contact James Hendron at (714) 667–3708 to schedule your meeting time and date for questions related to this letter or your responsibilities under the CalARP program.

Sincerely,

PEARL HOFTIEZER, Supervising Hazardous Waste Specialist,

Orange County Certified Unified Program Agency.

Senator INHOFE. We are joined by Senator Lautenberg. I’d ask Senator Lautenberg if he has an opening statement to make at this

time?

OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,

U.S. SENATOR FROM THE STATE OF NEW JERSEY

Senator LAUTENBERG. Thank you, Mr. Chairman. I do and I thank you for holding a hearing on this important topic. 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 some may use it to cause harm. We often refer

to the 1984 tragedy in Bhopal, India when a chemical leak took

2,000 lives, as a wakeup call on the issue of chemical accidents. In

the wake of that tragedy, I originated the amendment to the 1986

Superfund bill that established the toxics release inventory through

which companies disclose routine chemical releases and emissions.

In the 1990 Clean Air Act, Congress took the right-to-know concept a step further by creating the risk management program

under which companies will disclose worse chemical accident scenarios and it is the risk management program that we are discussing today. Every year, there are dozens of chemical incidents in my

State of New Jersey, many requiring evacuations of the surrounding communities, many causing injury and tragically, death. Nationwide, the Chemical Safety and Hazard Investigation Board reports an average of 60,000 chemical incidents each year and it results in hundreds of evacuations and injuries and an average annual death toll of about 250 people.
4

Our goal must be, especially in a State with as strong a chemical

industry as New Jersey, to make the industry safer, to make the

environment safer, even as it becomes more productive. Toward

that end, we have regulatory programs specifying the minimum

safety practices that should be in place at each firm. We have a

Chemical Safety Board identifying the root causes of most serious

accidents and thanks to risk management programs created under

the Clean Air Act of 1990, we will soon have a right-to-know program that applies to chemical accidents just as the 1986 right-toknow program applies to routine chemical releases. Strong regulatory and enforcement programs will always be an essential component of protecting safety, health and the environment in this

country.

However, Mr. Chairman, the right-to-know programs have promoted risk reduction far beyond what the regulatory programs

could achieve on their own. The premiere example of this is the

toxic release inventory which, through public disclosure, has encouraged, has led industry to cut toxic chemical releases in half in

10 years. This is without the big hand of government overlaying it.

People responded to the requests, many companies actually turned

the recaptured emissions into valuable assets, part of their inventory, part of the material from which they make product.

The power of public scrutiny manifests itself in several ways.

Newspapers run articles naming a specific company or plant, the

top chemical releasor 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 that are high on the list.

All of this is made possible by the right to know and it all contributes to an atmosphere in which industry, through non-regulatory

means, is given an incentive to use safer products and processes.

I take very seriously the FBI’s concerns that disclosure of some

of this information might increase risks due to terrorism. All of us

agree on the need to take all reasonable measures to protect our

citizens from terrorists. At the same time, it is important to have

programs such as right-to-know that help reduce public risks from

very real and dangerous chemical accidents. If there are steps that

we can take to reduce threats from terrorism at chemical facilities,

we should certainly try to do that without eliminating the public

safety benefits that flow from disclosure of information about chemical facilities. We might want to propose measures to improve site

security at these chemical plants or to even ban the most hazardous chemical operations from residential areas and schools.

I am going to be very interested to hear, Mr. Chairman, what advice our expert witnesses are going to give us to help retain the

benefits of the right-to-know program, while at the same time safeguarding ourselves from the threats of terrorism.

I thank you very much.

Senator INHOFE. Thank you, Senator Lautenberg, and I think

when you said the information is there to prevent harm and could

be used to inflict harm, I think that is what this is really all about.

We will have three panels. The first panel will be Federal Government people and the second will be those with an interest in
5

propane and the third on the security issues. All told, we have nine

witnesses who will be testifying today.

I would mention to you that while we will have members who

will be coming and going, we do have their staff here. You will be

receiving requests for answers to questions asked for the record.

You each will be given 5 minutes to make an opening statement.

However, your entire statement will be made a part of the record.

We’re going to use the lights, and after that we will ask for questions from the members of the subcommittee.

We will start off with Mr. Timothy Fields, Acting Assistant Administrator, Office of Solid Waste and Emergency Response, U.S.

EPA, and Robert Burnham, Chief, Domestic Terrorism Sector, National Security Division, Federal Bureau of Investigations.

Mr. Fields, I understand this committee has received your nomination and I’ll be anxious to hear your responses so that we can

move ahead with your confirmation.

Mr. Fields, why don’t you begin?

STATEMENT OF TIMOTHY FIELDS, ACTING ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. FIELDS. Thank you very much, Mr. Chairman.

I thank the members of the committee for being here today to

hear the testimony, on a very important topic, risk management

planning. My office has the EPA’s primary responsibility for the

risk management program as well as the agency’s anti-terrorism

program in terms of coordinating with other Federal agencies on

how we protect ourselves against terrorism at the Federal, State

and local levels. I’m pleased to have the opportunity to present information about the importance of chemical safety, community

right-to-know and our plan to balance the benefits of community

right-to-know with legitimate concerns about protection against

terrorist threat.

We did make a decision not to put the off-site consequence analysis data on the Internet on November 6, 1998, at the advice of the

Federal Bureau of Investigation and other national security interests in this country. All other RMP, risk management information

except for confidential business information, would be available

and disseminated on the Internet.

Since November, we’ve had concerns about how others might

post offsite consequence analysis data on the Internet. We’ve been

working together with the National Security Council, the Federal

Bureau of Investigation, the Department of Justice, the Office of

Management and Budget and the National Institute of Standards

and Technology to explore ways in which we can prevent others

from posting OCA data on the Internet as well. We will continue

to keep this subcommittee and this committee informed of those

discussions as we go along. Our goal is not to post OCA data on

the Internet and we don’t want others to post the data. The National OCA data base should not be posted on the Internet and we

will take efforts to make sure that does not occur.

We will handle FOIA or Freedom of Information Act requests in

a way that minimizes the amount of information we have to give

out but at the same time satisfies the requests of requestors. We
6

are working with NIST on technology, for example, that would

deter copying or posting of OCA data on the Internet as well as

other mechanisms by which we can minimize the amount of information that has to be given out in response to FOIA requests.

Second, we do believe that propane does need to be regulated. I’d

like to address some of the concerns we have there. While we made

a decision to list flammable substances, including propane, on the

list of substances, 140 altogether are to be regulated under the risk

management program. We applied the statutory criteria and as a

result of applying those criteria, we developed a list of 77 highly

toxic and 63 highly flammable substances that based on their intrinsic hazardous characteristics and regardless of their use, they

pose the greatest risk of harm to the public and the environment

if they are accidentally released.

The accident history shows us that accidental releases of propane

can cause significant public health and environmental threats.

After the Bhopal, India incident that we all know about, the second

largest industrial chemical accident in history occurred at a propane gas terminal in 1984 in Mexico City where 650 people were

killed, 6,400 were injured. In this country over the last 10 years,

we’ve had 1,000 incidents involving propane accidents, 8 major accidents occurred in the last year alone, including one on New

Year’s Eve. We had four deaths, 22 injuries that occurred and thousands of people evacuated in 1998 alone due to propane accidents

in this country.

However, we recognize even though we have significant release

potential—we have more than 2 million propane facilities in this

country—only 33,000 are estimated to be covered by this risk management program that we’re implementing. We’ve labored to lessen

the regulatory burden by only including a small segment, by giving

a reasonable threshold of 10,000 pounds, 2,380 gallons that would

be covered. We’ve developed model plans for propane users to use

in preparing risk management plans to minimize the burden.

We’ve provided guidance on how those facilities can determine the

amounts of facilities that could be exempted by putting out guidance a couple of weeks ago on distances. If people’s tanks are separated by certain distances, they may not be covered at all.

At the same time, the agency is working to explore whether a

higher threshold would appropriately safeguard the public and the

environment. Should a higher threshold be warranted for propane

facilities? We will make that decision in the next 30–60 days and

be able to set another threshold prior to June 21. The EPA will

also work with the National Fire Protection Association’s Standard

Committee on Standard 58 to address how that standard might be

modified to meet the requirements of the risk management plan

regulations.

If we can reach an agreement over time on how NFPA-58 (National Fire Protection Association Standard) could be modified to

meet our requirements, we will work with the industry to defer to

that standard for risk management planning.

In conclusion, I wanted to say that we have tried to implement

the risk management plan rule in a way that achieves the mandate

to provide for a community right-to-know but at the same time,

we’re deferring and working with our security agencies to make
7

sure that we protect ourselves from terrorist threats and at the

same time, we also are looking at how we regulate propane facilities, particularly in making sure that we’re only covering those propane facilities that pose the greatest threat to personal injury and

harm in this country.

Thank you very much, Mr. Chairman.

Senator INHOFE. Thank you, Mr. Fields.

Before Mr. Burnham makes his opening statement, we’ve been

joined by Senator Bennett from Utah. Senator Bennett, do you

have an opening statement you would like to make?

Senator BENNETT. No.

Senator INHOFE. Mr. Burnham?

STATEMENT OF ROBERT M. BURNHAM, CHIEF, DOMESTIC

TERRORISM SECTOR, NATIONAL SECURITY DIVISION, FEDERAL BUREAU OF INVESTIGATIONS

Mr. BURNHAM. Thank you, Mr. Chairman.

I do have a prepared statement.

My name is Robert Burnham, the current Chief of the Domestic

Terrorism Section of the FBI. My current responsibilities include

the national oversight management of the domestic terrorism operations, weapons of mass destruction and special events management programs for the FBI. I’m pleased to have this opportunity

to discuss the potential effects of electronic dissemination of chemical worst-case scenario data as detailed in section 112(r) of the

Clean Air Act of 1990.

As the committee is aware, the Clean Air Act mandates that

chemical facilities provide to EPA a risk management plan detailing their risk prevention and mitigation plans. It encompasses offsite consequence analysis data which includes the worst-case scenario data for both toxic and flammable materials. The data requires distance to end point and population affected calculations

which detail the size of a plume from release and the potential population affected by the plume.

The FBI is aware of the need to aggressively pursue environmental climes and fully supports the Clean Air Act and the spirit

of the community right-to-know legislation. We understand the

competing issues at stake here between providing the necessary information to the community which allows them to make informed

decisions on local planning and preparedness issues and limiting

the risk associated with the distribution of information that can be

used against those same communities in a criminal manner.

The FBI has worked with EPA to identify those sections of the

risk management plans that we believe can be directly utilized as

a targeting mechanism in a terrorist or criminal incident. By way

of background, on December 14, 1997, representatives of the FBI

were invited to a meeting at EPA. It was at this time that the FBI

first became aware of a plan by EPA to post the risk management

plans, including the worst-case scenarios on the Internet. The FBI

contacted other Federal law enforcement intelligence agencies as

well as the Environmental Crimes and Terrorist Violent Crime Sections of the Department of Justice to discuss the issues raised by

the EPA’s Internet distribution plans.
8

Of great concern to the FBI at that time was the 1977 case that

highlighted the potential danger associated with the criminal attack on a chemical facility. The FBI case, code named ‘‘Sour Gas,’’

involved four KKK members who plotted to place an improvised explosive device on a hydrogen sulfide tank at a refinery near Dallas,

Texas. The FBI was able to infiltrate the group prior to the attack.

The surveillance tape shows two of the subjects discussing the potential death of hundreds of area residents. At one point when the

discussion turned to the children who might become victims, one

subject turned to her husband and said, ‘‘If it has to be, it has to

be.’’ This cold-blooded killing was to take place merely as a diversion for an armored car robbery the group intended to commit on

the other side of town.

Although these individuals did not use the Internet to attack this

facility, it illustrates a growing concern that individuals and groups

are willing to utilize unconventional methods to achieve their goals

and in the process, cause large numbers of casualties. This real life

incident highlights better than any scenario we could create how

worldwide, unfettered electronic access to this information could be

used to facilitate a criminal or terrorist attack in the United

States.

The FBI applauds the gains made in accident prevention since

the inception of the Clean Air Act and encourages cooperation between industry and the communities that has brought about this

reduction. We believe that providing this information to the communities in the appropriate manner contributes to an increase in

safety in those neighborhoods. Through our discussions over the

past year with EPA, other Federal agencies and affected parties,

the FBI has arrived at initial recommendations which we believe

balance these concerns and give the communities, State and local

agencies and academic and research communities appropriate access to this information. Those recommendations were provided to

Congress in a report submitted by the FBI in October of last year.

However, the FBI continues to work with EPA and other interested Federal agencies as part of an interagency working group on

how to achieve the appropriate balance between protecting the public from terrorist attacks and making risk management plan information available to the public. For example, representatives of the

National Infrastructure Protection Center have met with EPA representatives and discussed options for secure transmission of the

risk management plans to State and local government agencies.

There is concern, however, that certain groups of individuals will

acquire this information through lawful means and post it in its

entirety on private Internet sites. The FBI, as part of the interagency group, has met to discuss this particular issue.

Although this issue is currently under discussion by the interagency group, the FBI is concerned that under the FOIA laws, the

RMP information to include the worst-case scenario information

would have to be provided in electronic format if available. If that

is the case, groups of individuals could acquire the information in

this manner and reproduce it on the Internet. The net effect would

be that these groups would undermine all the efforts of the many

agencies who have worked to bring a responsible approach to dissemination of this information.
9

The Internet provides fast and extensive methods for disseminating educational information and has the potential to be a tremendously positive force in the future. However, from a terrorist threat

analysis, providing unfettered electronic access to this type of information on the Internet could have disastrous consequences. The

worst-case scenario data alone does not contain all the information

necessary to carry out a terrorist attack. However, in conjunction

with the numerous sites already available on the Internet containing how-to literature on bombmaking, surveillance, counter-surveillance and terrorist tactics and devices, it adds to the arsenal of potential criminals.

Mr. Chairman, thank you for the opportunity to appear before

you today and I’d be happy to answer any questions you may have.

Senator INHOFE. Thank you, Mr. Burnham.

We’ve been joined by our Ranking Minority of this committee,

Senator Graham. Did you have an opening statement to present?

OPENING STATEMENT OF HON. BOB GRAHAM,

U.S. SENATOR FROM THE STATE OF FLORIDA

Senator GRAHAM. Mr. Chairman, thank you. I do have an opening statement but in deference to the panelists that we have, I will

ask it be submitted.

Senator INHOFE. Without objection, we will do that.

[The prepared statement of Senator Graham follows:]

STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE STATE OF FLORIDA

Mr. Chairman, members of the subcommittee, panelists for today—thank you for

the opportunity to address the subcommittee this morning on the topic of risk management. As I will be unable to stay for the duration of today’s hearing, I will outline several of my key issues of concern and ask that the witnesses address these

items during your testimony.

Let me begin by stating that the issues we will be addressing today are of critical

importance to the citizens of Florida. In the last several months I have heard from

the Florida Propane Gas Association, the Florida Farm Bureau, Florida Citrus Mutual, and the Florida Tobacco and Candy Association, as well as over 100 farmers,

restaurant owners, and other small business owners in Florida regarding the adverse impact to their businesses that is anticipated as a result of the EPA’s application of section 112(r) of the Clean Air Act to the propane industry.

I have also heard from many Floridians who are concerned about the presence of

flammable materials in their local communities. These individuals have a right to

this information so they can participate in developing emergency response strategies.

The two main questions we will be discussing today mirror the concerns raised

to me by these Floridians. First, we will be hearing differing views on whether Congress intended for section 112(r) to include propane as a substance for which an

EPA Risk Management Plan is required. Of particular interest to me is the process

by which the EPA decided to list propane as one of those substances requiring a

Risk Management Plan. There are three factors listed in section 112 of the Clean

Air Act which the EPA is required to use in listing substances. I am interested in

learning from the EPA what type of analyses were completed with relation to propane and its performance against each of these criteria.

Second, we will be discussing whether or not the publication and widespread dissemination of Risk Management Plans and worst case scenario data would provide

potential terrorists with targets for domestic terrorism. As many of you know, Florida has a long-standing tradition of full access to information. Our entire State government operates under a ‘‘Sunshine Law’’ requiring that government actions be

open to the public.

It is with this tradition in mind that I offer my support for rational, well-organized community-right-to-know policies which provide incentives for good management of hazardous materials and ensure that local communities can develop adequate risk management strategies.
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Today we will be hearing from several witnesses who will provide their views on

the potential dangers associated with dissemination of risk management data to the

general public. I look forward to hearing the results of this testimony and working

with the members of this subcommittee to identify any action that may be necessary.

Senator INHOFE. Mr. Burnham, your testimony did not arrive at the committee in

the timely fashion that we do have as a policy of this committee

and of all committees. I was going to ask you why we didn’t get

your testimony?

Mr. BURNHAM. I apologize for that, Senator. I will ensure that

every effort is made in the future to have it on time. My statement

is part of an interagency approval process. It had to be approved

by OMB prior to coming down. I was working with OMB and the

delay was primarily due to that.

Senator INHOFE. Was it only OMB that caused that delay or did

you send it to any other agency such as EPA?

Mr. BURNHAM. EPA was also involved in that interagency approval process.

Senator INHOFE. So you had your statement ready in the appropriate time but because of the approval of those agencies, we didn’t

receive it in time?

Mr. BURNHAM. Correct, Senator.

Senator INHOFE. Mr. Fields, first of all, let me ask you is it a policy of the EPA to approve this testimony before it reaches this committee or do you know?

Mr. FIELDS. The Administration has a process similar to what

Mr. Burnham just described. All testimony is submitted to the

White House Office of Management and Budget for review and

they coordinate that testimony with other appropriate Federal

agencies. So our testimony is shared with other agencies, but the

testimony was drafted by me, submitted to OMB, reviewed by FBI,

DOJ and others to make sure we’re all coordinating our efforts

across the Administration.

Senator INHOFE. Mr. Fields, when you were testifying before the

House Commerce Committee, you stated that the EPA was opposed

to anyone placing the worst-case scenario data on the Internet. I

think you said you were definitely opposed. Are you still opposed

to that?

Mr. FIELDS. We’re still opposed to that, sir, yes.

Senator INHOFE. Since that hearing, a letter was sent to Chairman Tom Bliley from the ACLU and maybe some other public access advocates, challenging the policy stating that the read-only

CD-Rom and other Freedom of Information Act safeguards are not

legal. They say that as requestors, they can choose and demand the

format in which they receive the information that the Freedom of

Information Act does not allow, does not provide for.

It sounds to me like they may have a case there. What options

do we have?

Mr. FIELDS. We obviously still face the position that we do not

want to post the OCA data on the Internet; we do not want others

to post it either. However, the interagency work group that I mentioned earlier composed of EPA, FBI, DOJ, National Institute for

Standards and Technology, and the National Security Council are

working on that very issue, looking at legal authority, what can we
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do to provide for protection and ensure that OCA data does not get

posted on the Internet and get into the hands of terrorists.

That work group that is composed of all those Federal agencies,

including representatives of me and Mr. Burnham, will be making

a decision on that issue by May 15, 60 days from now, as to what

our legal authorities are to provide for protection of data and

whether or not we can assure it can be posted on the Internet.

We will get back to you, Mr. Chairman, as to our final judgment.

Senator INHOFE. I know you’re concerned about that, Mr. Fields.

Would you put a hold on it until the 15th of May so the information would not get on the Internet?

Mr. FIELDS. We do not believe we should put a hold on it. The

facilities have had 3 years to develop risk management planning

requirements. We will make a decision in plenty of time to make

adjustments if we need to. We will inform this committee as to

whether or not any legislative relief is needed as well.

We are not there yet. We think it is premature to make that

judgment. We’re committed to try to make sure we protect legitimate national security interests and we will inform this committee

if we cannot provide such safeguards in implementing the risk

management plan program.

Senator INHOFE. Of course this could take legislation and obviously that takes time. I think maybe we should ask for your response to this, Mr. Burnham, as to how significant you think this

is in terms of a threat and what options you see that we could have

to minimize that?

Mr. BURNHAM. As I already mentioned in my opening statement,

the OCA case data, worst-case scenario data, should not go out in

any format, electronic or otherwise. In the report that was furnished last fall to Congress, we highlighted that one of our concerns was that the information could potentially go out in electronic format pursuant to an FOIA request.

Again, from a threat analysis, we would be opposed to that information going out.

Senator INHOFE. But it could appear on the Internet as the result

of a third party. It wouldn’t necessarily have to be from the reports,

isn’t that correct? Anyone can put it on the Internet that had access to the information?

Mr. BURNHAM. Yes, anyone could put it on the Internet. We

would be opposed to the information going out pursuant to an

FOIA request in electronic format.

Senator INHOFE. We do want to pursue that and I’m sure some

of the other members have questions along that line.

Mr. Fields, you’ve seen this letter from Orange County. I guess

have to ask you if it’s your understanding that fuel switching is an

appropriate action to take by the EPA and if you switch as a result

of letters like this to say natural gas, couldn’t they also switch from

propane to other types of heating oil and things that would be more

onerous?

Mr. FIELDS. We believe that there would be limited amounts of

fuel switching as a result of this program. In implementing EPCRA

in 1986, we saw that facilities, for example, that had a 10,000

pound threshold, there was a limited amount of fuel switching that

did occur, but we must keep in mind that if people decide to go to
12

diesel fuel or fuel oil, for example, those sources of fuel are regulated by other EPA regulations. For example, they have to prepare

a spill, prevention and control counter measures plan under section

311 of the Clean Water Act. There are other regulatory requirements that also apply if you decide not to utilize propane gas as

a fuel.

Based on the last 10 year history with implementing EPCRA,

we’ve seen that very limited amounts of fuel switching will occur.

We think that will be the same situation to prevail here as well.

Senator INHOFE. Thank you, Mr. Fields.

I do want to get into more detail in the second round of questioning as to the number of facilities that would have to be reporting

on propane so that we can get responses from the second panel.

With that, we will go to our early bird rule and ask Senator Lautenberg for his questions.

Senator LAUTENBERG. Thank you very much, Mr. Chairman.

Mr. Burnham, in your testimony, you note that we understand

the competing issues at stake here between providing necessary information to a community which allows them to make informed decisions on local planning preparedness issues. So we are talking

about the need to have some prevention from accidents, from injury, death that could result.

You noted that my comments about balance are important. Can

you think of any data that’s on the Internet that might present the

same dilemma, that is, good for the community or good law on one

hand, but potentially could be used as a target for terrorist activity? I can think of lots of them—locations of facilities, all kinds of

things—and I think in a democratic society like ours it’s important

to make sure we do what we can do to protect our citizens.

I was once an Albania where they have 800,000 bomb shelters,

these little things that look like a half circle all over the country

in case there was ever an invasion from the outside. It reduced the

quality of life substantially in the country because all they were focused on was protecting themselves from an imagined enemy.

I ask you this. Can you think here, and if this question is a little

unfair, about a situation where data that is on the Internet that

might be considered by the FBI as potentially an invitation to take

advantage of our system, bridges, things of that nature, blow them

up?

Mr. BURNHAM. Senator, I’m sure there probably is a lot. I haven’t

really thought about other information that’s on the Internet. I’m

sure there probably is information on there that would fit into the

category that you’re describing.

With respect to this information, I think part of what we imparted to the EPA was the fact that this particular information, we

would basically have the Government vouching for the accuracy of

that particular information as opposed to just general information

on the Internet.

The 66,000 chemical companies are required to give the worstcase scenario data that would potentially go on the Internet. In effect, the Government would be vouching these are the chemicals

there, and this is the population affected. I think that would be the

difference between a lot of the general stuff that’s just out on the

Internet. In effect, you would have the Government vouching for it.
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Senator LAUTENBERG. Again, I’m not sure it is fair to ask you so

I’ll ask Mr. Fields. Should we be doing what we can to protect our

people from the ordinary course of life activities that could result

in substantial damage, injury, death as a Government responsibility?

Mr. FIELDS. I agree with you, Senator, I think it is a clear Government responsibility. For example, the offsite consequence analysis data has to be provided to the local populace who live around

that facility. We owe it to the American people who live around

chemical facilities to make sure they know about the chemical risk

that exists from facilities in their communities.

Even the industry agrees that they would be willing to share information with the persons who live around their facilities, we will

make sure the information is made available to the State Emergency Response Commissions, the local emergency planning committees. We owe it to the American people to make sure they are

protected and information about chemical risk is a critical part of

that equation.

Senator LAUTENBERG. So, Mr. Burnham, what is there that

would be on the Internet that might be an aid to a terrorist who

planned to do some damage? What could be there? We’re identifying now our right to know, we identify chemicals stored in facilities, chemicals manufactured in facilities. What would be particularly significant to someone who had that kind of program in mind

that would destroy a facility and the neighborhood around there?

Mr. BURNHAM. With respect to this type of information?

Senator LAUTENBERG. Yes.

Mr. BURNHAM. You would have potential terrorists looking at a

target for maximum impact, you would have the population affected, you would have where it is, the plume, just the whole worstcase scenario. Sections 2, 3 and 4 of the RMP plans are toxic, alternate, toxic and flammable and you would have a blueprint for the

best potential targets for a terrorist as far as maximum impact and

population affected.

Senator LAUTENBERG. You’re talking about something that can

be activated by a terrorist attack that would cause ancillary damage as a result of an attack on that particular site?

Mr. BURNHAM. From a threat analysis standpoint, yes.

Senator LAUTENBERG. Do you routinely, and you may have said

this and I missed it as I was reading here, pass data to other agencies if they have an expertise in a particular area as you pursue

a review or an investigation?

Mr. BURNHAM. Absolutely. We would do that here too. That was

recommendation No. 2, that we would ensure this information gets

to State and local agencies in a secure fashion. We’ve been working

with EPA on that.

Senator LAUTENBERG. Thank you very much, Mr. Chairman.

Senator INHOFE. Thank you, Senator Lautenberg.

Senator Bennett, I understand you’re going to be presiding over

the Senate at 10:30 a.m., so if you need to take a little bit longer,

go ahead and get all your questions in.

Senator BENNETT. Thank you, Mr. Chairman.

Just a quick comment. If anyone thinks this information is going

to be disseminated in any form, electronic or read-only disks, what-
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ever, and then have it not get on the Internet, he or she is tremendously naive. There are groups that are determined just to show

their defiance of regulations that will put it on the Internet if they

have to enter it by hand. Yes, I’ve seen samples of that.

I come from a State where mink ranching is one of the industries

and those who feel strongly about what they call animal rights

have put on the Internet the way to build a bomb to destroy a mink

farm. Mink farms in my State have been destroyed, people have attacked them, they’ve released the minks, supposedly into the wild.

The wild where the minks end up is the freeways and they all get

killed, but somehow the animal rights people think they’re doing

the minks a favor by having them run over by automobiles instead

of having them stay in the pens where they’re being raised.

Let’s ask the question, Mr. Fields, how vital is this information

to the people in the neighborhood? Is there any example of someone

who has suffered a worst-case scenario that might have escaped it

if the information had been made available or is this entire conversation hypothetical?

Mr. FIELDS. Senator, this conversation is definitely not hypothetical. We think it’s critical that risk management planning be

available to the public and to the communities particularly who

live around those facilities.

Senator BENNETT. You’re not answering my question. I agree absolutely that risk management planning should be available to the

local communities. We are talking about a worst-case scenario

where someone is sitting down and thinking of every possible that

could go wrong and putting that down on paper. Is there an example of that kind of information being helpful or is that just an exercise that somebody wants to go through?

Mr. FIELDS. It is very helpful. The local fire departments, the

local response organizations who have to respond need to know if

an accident occurred at that facility from the largest tank or container at that facility, how big an impact could occur, how many

people could get injured or killed if an accident did occur.

The response agencies who have to respond, the first responders

who come on the scene need to know what kind of chemicals are

there, what the impact of those chemicals could be.

Senator BENNETT. I don’t argue with you that those people need

to know. I’m talking about the community as a whole, average citizens. Do they need to know the absolute worst-case scenario if

their fire department is properly informed, if their police department is properly informed? Does the suburban household need to

know the worst-case scenario that could occur or can’t you take

care of public safety by saying, you have a plant here that has

problems? That’s obvious information to everybody and detailing

how many people could be killed and what the exact amount of the

thing is to somebody other than the emergency people?

Mr. FIELDS. I believe that the American people who live near a

chemical facility or any chemical complex ought to be aware of the

chemical risks they are buying into when they live in that community, when they move into that community, so I believe it is appropriate to inform the people there as to what risk they’re buying

into when they move into a community.
15

They don’t have to have as detailed knowledge as the responders

who have to respond to a release event, but I believe we owe it to

the public to let them know what risk they are living with and inheriting when they move into a community near a chemical plant.

Senator BENNETT. I agree with you that they need to know there

is a risk and I’m perfectly willing to give them the risk but you just

said in your comment, they don’t need the detail and it’s the detail

that we’re talking about.

I won’t beat this one further. Let me get on to another subject

and that’s your decision to list propane as one of the items. You

said when the chairman asked you about switching to alternative

fuel, well, the alternative fuels are all regulated as well. Do you

think propane is not regulated? It’s one of the most heavily regulated substances we have. It’s just not regulated by the EPA, so the

question arises, is this a turf battle? Is EPA trying to reach out and

take over regulation that is currently being conducted by other

agencies?

Mr. FIELDS. Definitely not. We only want to make sure that propane that should be regulated—we’ve exempted a lot of propane

sources, more than 2 million propane sources in this country and

we’re only capturing maybe 33,000 of those. We have provided a lot

of relief for the small people that are there. Distance requirements

we put out a couple of weeks ago are going to exempt even more

of these farmers and small facilities from the regulatory requirements.

We only believe that those propane sources that are the most significant that could really cause a big event and really injure and

kill people, as they’ve proven over the years, ought to be the ones

to be regulated under the risk management program. We want to

make sure we don’t impose any new regulatory requirements for

propane sources above those that are absolutely necessary to make

sure the American people are protected.

Senator BENNETT. You’re imposing requirements that will hit

rural farmers in my State. Rural farmers who have a record of

safety, a record of compliance with the regulations that are currently there, to my knowledge—I’d be happy to be contradicted if

you could give me some information—there has not been a rash of

accidents. Indeed, there has not been any noticeable series of accidents in my State among farmers who have propane tanks.

You’ve gone down to a level that would involve a farmer, and indeed some residents, and these people are already complying with

heavy regulations for safety, they already have a sterling record of

safety, and you’re coming along saying, no, we’ve got to do something in addition.

I want to know why in addition? I want you to show me a record

of failure of the present regulatory scheme that justifies putting in

an additional regulatory scheme? If you can show me that, then I’ll

be with you because I don’t want to endanger anybody else.

Mr. FIELDS. I think, Senator, that most farmers in your State are

going to be exempted. We’ve exempted all the tanks that are less

than 10,000 pounds or 2,380 gallons. Most farmers have a 500 or

1,000 gallon tank. We’ve told people that if you separate those

tanks by certain distances, they are not covered by the RMP regulation.
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Senator BENNETT. You’re not answering my question.

Mr. FIELDS. I’m going to get there. The two points I made before

you came in were this. We are going to work with the National Fire

Protection Association, we’re going to work with industry and make

sure that we try to modify NFPA–58 because NFPA–58 right now

does not include any requirement for hazard evaluation, for example, or offsite consequence analysis and make sure that those requirements that are in NFPA–58 would then apply. We would

defer to NFPA–58 if we can get NFPA–58 to be consistent with

RMP.

Further, I think I said this before you came in, we’re exploring,

because of the concerns that have been raised, whether or not we

want to give a high threshold for the propane sources like small

farms, small businesses that goes above the 10,000 pound threshold that is there now.

If we conclude that, we intend to make that decision within the

next 30–60 days and we would immediately implement a stay of

the regulation as it applies to those propane sources that would be

covered by that new threshold. Then we would propose an amendment to the RMP rule that would be applicable specifically to those

propane sources that we decide to further exclude from regulation

under the RMP rule.

So we’re carefully looking at only capturing those propane

sources that could cause a significant impact to people offsite, off

the property where that facility is located. We are reevaluating the

universe of people currently captured and looking at whether we

can provide further regulatory relief for propane facilities.

Senator BENNETT. I’m delighted to know that you’re reevaluating

but you still haven’t answered my question.

Mr. FIELDS. All right. Go ahead. I’m sorry.

Senator BENNETT. Do you have evidence of failure of the current

regulations that would require additional regulations to be put on?

Mr. FIELDS. We believe that the accident history that we have,

Senator, more than 1,000 accidents in the last 10 years involving

propane sources, 43 major accidents in the last 9 years, 8 major accidents in 1998, an accident that occurred 2 weeks ago where two

people were killed involving propane. We have an accident history

and characteristics of high flammability, NFPA–58 standard of 4.

Propane is one of the most flammable hazardous substances

around. So yes, we believe we have a basis for regulating propane.

We want to make sure we only regulate those propane sources that

are the most appropriate and that pose the greatest danger to the

American public.

Senator LAUTENBERG. Don’t we have a point of order here? The

clock has been running for some time.

Senator BENNETT. I apologize. I’ll pursue this with you.

Senator INHOFE. I would inform the Senator from New Jersey

that since Senator Bennett has to preside over the Senate, I was

allowing him to have two rounds at once, but if you object to that,

we’ll excuse him at this time.

I would say, Senator Bennett, that I plan to pursue this in the

second round of questioning because we have on the second panel

the President of the American Farm Bureau and I’m going to ask

Mr. Fields to stay here during his presentation because I think we
17

need to more thoroughly evaluate the effect on the American farmer. That’s what we intend to do.

Mr. FIELDS. I will definitely do that, Senator.

Senator INHOFE. Senator Graham?

Senator GRAHAM. Mr. Chairman, I’m going to pick up this same

line of questioning, so maybe we’ll carry it a bit further.

The statute states that ‘‘In listing substances, the Administrator shall consider each of the following three criteria: (a) the severity

of any acute adverse health effects associated with the accidental

release of a substance; (b) the likelihood of accidental releases of

a substance; and (c) the potential magnitude of human exposure to

accidental releases of the substance.’’ I assume that analysis was

done as it relates to propane?

Mr. FIELDS. Yes, Senator, we did. Let me briefly summarize how

we addressed each of those criteria in developing a basis for regulating propane.

We evaluated the criteria. First of all, we looked at the acute adverse health effects the propane may cause. The accident history is

what proved to us that criteria was satisfied with the major accidents that have occurred in this country involving propane. We believe it is very clear it has acute, adverse health effects that need

to be looked at as well as accidents that have occurred in other

countries as well.

Second, in looking at the likelihood of accident releases, we evaluated propane and saw that it is one of the most flammable of all

substances, meeting the NFPA rating of 4. So it is something that

definitely has the likelihood of an accidental release.

Last, the potential magnitude of human exposure, we noted that

propane is among the most ubiquitous of all chemicals on the list

of chemicals we’re regulating.

So in making a judgment as to whether or not propane satisfied

the statutory criteria, we did and we looked at this irrespective of

fuel use, of how that chemical was utilized. We believe strongly the

statutory criteria are satisfied for propane.

Senator GRAHAM. On this first criteria, which is the severity of

any acute, adverse health effects associated with the accidental release, what were the acute, adverse health effects that you found

associated with the accidental release of propane?

Mr. FIELDS. We found that propane, looking at the 1,000 accidents that have occurred, numerous instances where people died,

we found situations where people were injured by propane releases,

other situations where we had to evacuate nearby communities

from around propane facilities that had exploded, caught on fire.

That body of data is what we looked at in making a judgment that

there was the possibility of severe, acute, adverse health effects

caused by propane.

We looked primarily at the accident history over the last 10

years involving propane. Even there, we think there is underreporting. Propane is not required to be reported under the 1980

Superfund law or the 1986 Emergency Planning Community Rightto-Know Act. This data we have is just provided to us anecdotally,

not because anyone is required to report it to the Federal Government. We became aware of it through State and local government

sources, newspaper reports, et cetera.
18

We believe there are probably more releases of propane than we

are even aware of in this country.

Senator GRAHAM. I think the purpose of this statute, as I read

it, was to deal with public health type issues as opposed to events

that would be associated with fires and those types of consequences, and accidental release which are normally the responsibility of State and local agencies to regulate, monitor and contain.

Do you define acute, adverse health effects as subjecting persons to

the possibility of fires?

Mr. FIELDS. The possibility of injury or death due to sudden explosion, fire, flammable situations, yes, we believe that is included.

We believe, for example, in Congress’ direction to us in 112(r), Congress succinctly said they wanted vinyl chloride to be included,

which is a flammable substances; Congress specifically said they

wanted ethylene oxide to be included, which is a flammable substance on the initial list. So congressional direction alone made

clear that Congress intended for flammable substances to be included on the list of substances we regulated under our risk management plan rule.

We looked at congressional direction on this as well. Congress directed us to include certain things that were definitely flammable

substances on the initial list of hazardous substances regulated

pursuant to the risk management plan rule.

Senator GRAHAM. I’m looking at the Federal Register of June 20,

1996, page 31669 where there is a statement to the effect that ‘‘The

Environmental Protection Agency has proposed to delist explosives

from Section 68.130,’’ which I assume is the section that contains

substances under this hazardous substance legislation. ‘‘Consequently, explosives are not addressed in this rule.’’ Is that the

current policy, not to list explosives?

Mr. FIELDS. Explosives are not includes at the current time in

the list. We included, when we developed this regulation, the most

flammable substances by the National Fire Protection Association,

those that have the greatest accident potential, and there are 77

acutely toxic substances and 63 flammable substances on the list

of 140 we regulated.

This is David Spites on my staff and I’ll let him talk about the

explosives.

Mr. SPITES. Senator, we originally listed the high explosives.

They were included in the original list. We subsequently delisted

them for various reasons, which I think we explained in the Federal Register you’re referring to or a subsequent one. One of those

was that another Federal agency basically did cover high explosives

in detail except for a couple of things. Some of those were notifying

the community and making a public report of what chemicals they

and satisfying the right-to-know requirements.

As part of a lawsuit, we settled the case by delisting high explosives with the proviso that the Bureau of Alcohol, Tobacco and

Firearms regulations covered all the other aspects that were necessary under RMP except for public disclosure. The explosives industry voluntarily agreed to make that public disclosure that would

make it equivalent to the RMP.
19

We don’t have quite the same thing with the flammable substances, with another comparable Federal agency requirement and

indeed State requirements.

Senator GRAHAM. So it’s your statement that the reason that propane is listed is because you do not consider it to be adequately

regulated by other agencies at the Federal, State or local level?

Mr. FIELDS. We don’t believe that the propane requirements that

apply at the Federal, State and local level as well as the industry

standard contain all the statutory requirements that Congress

mandated be included in the regulation of substances regulated by

the RMP rule. For example, the risk management plan requires

that there be a hazard evaluation in the statute which includes an

offsite consequence analysis and accident history. That is required

by statute. These other Federal requirements do not include such

an animal, for example.

Adding to the situation on explosives, as we said at the beginning, if we can work with the industry, for example, and get

NFPA–58 modified to include those elements like all the requirements Congress mandated in the risk management plan rule, we’d

be willing to defer in the future to NFPA–58, for example, and say

we will defer to that standard in regulating propane or regulating

these sources rather than our regulation, but we’ve got to make

sure the NFPA standard satisfies the statutory requirements for

what a risk management plan requirement should contain. We’re

willing to work with industry on that point.

Senator INHOFE. Thank you, Mr. Fields.

We’ll have another round of questions in just a moment.

I want to pursue this a little bit, what was brought up by Senator Bennett and then also by Senator Graham. You said a minute

ago that you’re estimating that 33,000 facilities would be reporting

on propane, is that your estimate now? That’s grown by 5,000 in

the last 2 days, so your trend line is starting to work in that direction.

How do you account for the fact that you’re saying 33,000 when

the study that the industry had—and I know the American Farm

Bureau, which is on the next panel, will want to comment about

that—said that it would affect 330,000 farmers, 350,000 industrial

sites and over 300 commercial facilities. That’s over a 1 million reports. How do you respond to that?

Before you respond, let me tell you why because I’m going to get

into the cost of it too. I can remember when this subcommittee was

dealing with the proposed rule change on ambient air on particulate matter and on ozone. The cost that the EPA at that time said

to comply with it would be $6 billion. The President’s Economic

Council then said it was going to be $30 billion. Then the Reason

Foundation in California said it would be $120 billion. I think we’re

kind of starting that same trend here.

My concern is for the American farmer, particularly in my State

of Oklahoma, where it’s a crisis out there. One more regulation is

just what they don’t need, so I’d like to have you respond as to how

you come up with only 33,000 facilities having to report when it’s

estimated some 330,000 farmers alone would have to report?

Mr. FIELDS. We agree with the overall estimate of 350,000 industrial sites being out there, hundreds of thousands of farms, 1,000
20

commercial facilities that have propane. I have no issue with that

type of data. The fact is I think there is a lack of communication.

People don’t fully understand that we’ve exempted the overwhelming majority of those facilities from our requirements. The threshold level, a lot of farms have 500 gallon tanks. The threshold alone

is exempting most of those tanks.

We then have gone forward and put forward a distance requirement that further exempts many more tanks. So we believe that

33,000 is a good number.

The reason it’s grown by 5,000 very briefly is that we have discovered information over the last couple of years after we put out

the rule where we identified those people we believe are legitimately covered and we came up with 33,000, 33,000 of the 69,000

facilities now that are regulated under RMP.

We believe the average small farmer can fill out an RMP, a five

page form.

Senator INHOFE. I don’t want to interrupt, Mr. Fields, but we’re

using up the clock and we’re not getting anywhere. It’s my understanding that when the industry had its estimate or its committee

going into this, they took into consideration all these things you’re

talking about and they still said it would be 330,000 farmers involved in this.

You’re saying you’re exempting and it’s kind of like the EPA during the ambient air debate which kept saying we’re exempting this

group, we’re exempting the farmers, we’re exempting others, and

they weren’t. Aren’t we kind of following that same line here?

Mr. FIELDS. All I can tell you, Senator, is we don’t agree with

those data. There are 350,000 industrial sites, that’s correct. The

overwhelming majority of those industrial sites are not covered by

regulations.

Senator INHOFE. I think I already asked that you will stay here

for the second panel when we hear from the president of the American Farm Bureau.

Mr. FIELDS. Yes, sir.

Senator INHOFE. I think it might be interesting because I would

rather stop this train here than wait until we got into the mess

that we got into on ambient air.

On the cost thing, what is the cost you’re anticipating or have

you done an analysis of that, the cost for the compliance and the

reporting?

Mr. FIELDS. We’ve developed an estimate for what the cost of the

RMP overall would be. We’re estimating that the cost of the RMP

for the last 3 years is $118 million per year. Now the regulations

will become effective in June. We estimate the cost will be $75 million per year for the next 30 years as compared with the benefits

of $174 million per year for the next 30 years, which makes this

a net benefit regulation. Those are our latest estimates of the cost

of the RMP rule.

Senator INHOFE. What about the cost to each farmer or are you

going to say they are exempt?

Mr. FIELDS. For a farmer who is covered, for a few thousand of

the 33,000 sources out there that we believe are regulated, we’re

talking a few hundred dollars per RMP up to $2,000. That would
21

be the cost for an average farmer filling out and complying with

an RMP rule.

Senator INHOFE. The cost of 11 of the 13 engineering firms that

went through this said the cost would be somewhere between

$2,000 and $20,000.

Mr. FIELDS. We totally disagree. We see on the low end, the cost

being a few hundred up to $2,000 max in terms of what the cost

would be.

Senator INHOFE. Mr. Fields, can you look at this chart over here

and can you tell me what parts of risk management plan regulation are not covered under other laws on the chart?

By the way, I want to make a comment. In justifying the propane, you talked about vinyl chloride. It’s true that is an explosive,

but that’s also toxic, isn’t it?

Mr. FIELDS. Also toxic, that’s correct.

Senator INHOFE. Is propane toxic?

Mr. FIELDS. Is not toxic.

Senator INHOFE. Will you look at this chart over here and tell us

what is not covered by other laws on this chart?

Mr. FIELDS. Looking at that chart, the NFPA–58 column, for example, is not correct. I think I said in my testimony, the NFPA–

58 does not have requirements that cover hazard assessment which

is not correct. It does not include a requirement for worst-case

analysis or a 5-year accident history, which is required by the statute that Congress gave us to implement. So that’s not correct.

The NFPA–58 does not satisfy all the risk management planning

requirements for training.

Senator INHOFE. I think the bottom line, before I’m reminded by

Senator Lautenberg that my time has expired, I would just say the

bottom line is that you think we need more regulation then?

Mr. FIELDS. We think we need to regulations that are out there

now, the risk management planning regulations. We believe those

are appropriate and necessary regulations for the facilities being

regulated by those regs, yes.

Senator INHOFE. Mr. Burnham, I didn’t mean to leave you out.

I’m going to go to Senator Lautenberg, but I have one last question

I’d like to ask you about the security.

Senator LAUTENBERG. Mr. Chairman, I promise you I’ll not take

the fully allotted time but I did have a couple of questions that

arose as I listened to some of the questioning that was taking

place.

One of the questions put out by our colleague from Utah, and I’m

sorry he’s not here and I hope staff will be here because I think

it’s important, Mr. Fields, that we establish the fact that EPA

doesn’t take its staff, assemble them and say now, let’s see how we

can harass people. Let’s see how we can screw up the works for

those who work for a living, farmers, et cetera. Let’s see how much

of a nuisance we can be. We want to talk about things that are successful, that have helped protect our air, helped protect our water,

helped protect our people, then that I think is a legitimate exercise.

I urge you, don’t be bullied into anything else. You’re now sitting

as an acting and I hope what I say will not in any way deteriorate

from your outstanding credentials for this job or your right to have

it.
22

I don’t approve of any case, aspersions aside, that say big farms

have been destroyed, or that people burned down buildings in a ski

area because they are pro environment, that’s horrible, it’s criminal

and I wouldn’t tolerate it no matter what, and I love a clean environment. That’s my legacy to my children and my grandchildren.

That’s why I’m on this committee.

But we don’t have many farms in New Jersey. We have people,

we have the most densely populated State in the country. When

the question is asked, why do they have a right to know, why

should they be asking these questions, why should they be told the

answers? I’ll tell you why, because places like the Exxon refinery

in New Jersey have put out warnings that if there is this kind of

an event or that kind of an event, take your children down the cellar, open your windows, don’t open your windows, close your doors,

cover their faces with wet clothes. Why shouldn’t they know? Why

should they be prevented from protecting a child or an elderly parent in a household?

It’s outrageous the insinuation that, well, let minks go out on the

highway and get killed. I don’t like that activity a bit. I’m in Utah

a lot and I happen to love the State and I love the environment

out there.

But I would tell you this, if you ask someone whether or not a

mother or father working in a mill, like we had in New Jersey a

few years ago, when the plant exploded and the people who ran the

plant didn’t know what to do and the people in the neighborhood

didn’t know what to do, as flames consumed building after building

and chased people from their homes or the Edison Gas explosion

that just took place and was recently resolved.

The one thing I think is critical to have here is an understanding

that you, your colleagues, and I don’t care what department of Government, is not out there to harass the citizens. If we disagree, let

us disagree but the insinuation or the aspersion that all you’re

doing is sitting there twiddling your thumbs while you think of

ways to make life difficult.

I want my children and my grandchildren protected as much as

I can. I don’t want them to go to the water tap and possibly injure

their health as insinuated in Tom’s River, New Jersey, and if one

read the book, ‘‘A Civil Action’’—I just had a meeting with the attorney on that case up in Woburn, where a child we had at this

very table, Mr. Chairman, before your membership, a man who

talked about the poisoning of his child and the boy died and the

father said, but the other child in the house, the other brother said,

why is it that in our house we never laugh. In our house all we

do is cry. What’s the matter with us?

Jimmy, the boy who was sick, was dying and that’s why the family couldn’t gin up some grins and smiles and be happy. He pulled

out a stack of bills, the man was making $35,000 a year and he

had $150,000 worth of doctor’s bills.

I’m sorry but I just had to respond, Mr. Chairman. I know you

too well and I know that you’re a serious man and I know that you

don’t think that mischief is being made and I respect your willingness and desire to challenge anything that’s put out there that you

don’t agree with.
23

Senator INHOFE. That’s what this is all about and that’s what we

intend to do.

Senator LAUTENBERG. Thank you very much.

Senator INHOFE. I would have to say also that I have a whole

bunch of kids and grandkids and I’m concerned about them and

their future of living under overburdensome regulations and bureaucracies and I plan to conduct myself accordingly, Senator Lautenberg.

Senator INHOFE. I’ll submit my question to you, Mr. Burnham,

for the record since we’re running a bit late on this panel.

At this time, we’d ask the second panel come forth. It consists

of Mr. James Bertelsmeyer, President, National Propane Gas Association, and Mr. Dean Kleckner, President, American Farm Bureau.

Thank you, gentlemen, for being here. I guess we’ll start with

Mr. Kleckner from the Farm Bureau standpoint. We want your

whole statement. We’re going to try to comply with our time requirement, so in the event your statement is too long, the entire

statement will be made a part of the record. The same with you,

Mr. Bertelsmeyer.

If you will go ahead with your opening statement, we will proceed with the questions.

STATEMENT OF DEAN KLECKNER, PRESIDENT, AMERICAN

FARM BUREAU

Mr. KLECKNER. Thank you, Mr. Chairman.

I’m Dean Kleckner. I’m a corn, soy bean, hog farmer from northern Iowa. I’m the elected President of the Farm Bureau Federation

which is the Nation’s largest farm organization.

As you know, propane is an important commodity in rural America, found on 660,000 farms, widely used in various ag applications,

including crop drying, feeding livestock facilities, heating homes,

and that’s on my farm. I’m a 350 acre farmer and I use it for those

three things on my farm.

Approximately 1.5 billion gallons of propane are used for ag purposes. We strongly oppose the inclusion of propane as a covered

substance subject to the Environmental Protection Agency’s Risk

Management Program. We believe EPA failed to consider the significant adverse effects which these regulations will have on hundreds of thousands of farmers nationwide.

Going back just a bit, by adopting section 112 of the Clean Air

Act amendments of 1990, Congress specifically sought to reduce the

risks associated with accidental and catastrophic release of toxic

chemicals. Commendable. We’re for that.

It is our firm belief that the original intent of Congress was to

address substances used in manufacturing or other chemical applications rather than those used as a fuel source. Unfortunately,

EPA’s decision to include propane coupled with its decision not to

grant a fuel use exemption has the effect of extending these regulations to consumers who use small amounts.

The RMP rules require farmers and other propane users of more

than 2,358 gallons—that’s the 10,000 pound area—2,359 gallons of

propane storage to complete and file risk management plans by

June 21, 3 months from now. A typical installation on a small farm
24

will likely consist of anywhere from 2,000 to 5,000 gallon propane

tanks, often hooked together, piped together for corn drying, for example, as on my farm.

Having only three such tanks would bring the farmer under the

requirements of the RMP program. It’s understandable that a significant percentage of users will try to lawfully avoid the burden

of compliance by limiting the volume of onsite storage. I’m going

to look at it on my farm if this thing goes through. This will result

in an increase in the number of propane deliveries and shift the

emphasis from low risk, stationary storage, to the higher risk

transportation.

We believe the agency has failed to consider the vast extent to

which propane is already regulated. That was brought out in the

testimony. It failed to take into account the fact that propane installations are designed, constructed, maintained in accordance

with the standard for the safe storage and handling of propane established by the National Fire Protection Association.

It just appears to me that EPA thinks the industry is unregulated unless they are regulating it. Congress understood the importance of avoiding duplication and ensuring cross-agency conformity

when it passed the Clean Air Act amendments in 1990 by instructing EPA to coordinate requirements with OSHA and DOT.

In 1992, OSHA established its onsite program known as the

Process Safety Management Program. In doing so, it granted a fuel

use exemption. When faced with the same option on its RPM, EPA

decided to oppose such an exemption. We believe this action in direct violation of the clear language of the statute.

The risk management program is complicated and highly technical. Risk management plans which must be filed by June 21 are

based on complex, chemical release models. The final rule published by the EPA in June 1996 is 62 pages in length. EPA’s guidance document for propane users is 24 pages. The general guidance

document for risk management plans is two inches thick.

We are aware of EPA’s contention that in the final analysis, risk

management plans will only be a few pages in length. However, it

will take dozens of hours to collect and organize the appropriate

data. Farmers are just going to throw up their hands, probably

after they finish throwing up when they look at it in the beginning.

They won’t be able to understand it.

Because of the highly technical nature of the program, we believe

that most farmers will find it necessary to contract with an RMP

service provider at an average cost of several thousand dollars per

site. If only 10 percent of the 660,000 farm users of propane are

required to file a plan, and we’ve already heard it may be 330,000,

but if only 10 percent are required to do it, the total cost to the

farm economy could exceed $100 million.

Times are tough on the farm. Now is not the time to place another $100 million compliance burden on farmers. While it likely

that many rural propane users will fall into the least rigorous compliance category, Program I, the economic impact will remain high

since a significant up-front cost will be incurred to determine the

appropriate program level.

I heard them say this morning, that we would be exempted.

Maybe in the end we will, after we spend $1,000 or $2,000 to find
25

out we’re exempted. I’m not going to risk it. I’ll tell you if you ask

me what I’m going to do if this thing goes through. EPA estimates

66,000 sites are covered under the RMP nationwide, that 28,000 involve propane. In short contrast to EPA’s calculations, North Carolina’s Department of Environmental Resources estimates there are

11,000 farm sites in that State alone. So I would agree with EPA

their first estimate is wrong.

We understand in recent weeks EPA has recognized its estimate

of the number of affected farms was low. We appreciate and welcome their overtures and believe that may suggest a willingness to

reduce the burden which RMP will place on farmers but we are

concerned that the proposal floated to date does not sufficiently address the issues presented in our testimony.

I would ask your indulgence, Mr. Chairman, to include in the

record a letter from eight ag organizations whose views support the

testimony given here today.

Senator INHOFE. Without objection, that will be made a part of

the record. Also, as a part of the record, without objection, since

there is no one here to object, I would want to include the letter

from the ACLU to Congressman Bliley.

[The information referred to follows:]

March 5, 1999.

The HONORABLE THOMAS BLILEY,

Chairman, House Commerce Committee,

United States House of Representatives,

Washington, DC 20515,

DEAR CHAIRMAN BLILEY: Thank you for the February 24, 1999 response to our letter outlining our concerns with proposals to limit public access to information concerning accidents at chemical plants (EPA’s unclassified Worst Case Scenarios

data). We are pleased to learn from your letter that you do not intend to amend

the Freedom of Information Act (FOIA) and that you have not ‘‘advocated denying

public access to’’ Worst Case Scenario (WCS) data. However, we remain troubled by

the possibility of limiting or denying access to publicly available information in certain forms or formats and we urge you to hold public hearings on any specific proposals to do so.

In your letter, you specifically asked us to respond to EPA’s suggestion that a CDROM that ‘‘could not be copied, duplicated, or posted on the Internet’’ may be a legally and technically feasible way of providing the WCS information to FOIA requesters. Although the technology to create a CD-ROM whose contents cannot be

copied is not currently in the commercial marketplace and would need to be investigated in order to make a final judgment, it is our belief that such a CD-ROM

would not satisfy all FOIA requests for the following three distinct reasons:

1. FOIA allows the requester to choose the format

The Electronic Freedom of Information Act (EFOIA) amendments, passed overwhelmingly by Congress in 1996, state that when responding to a FOIA request, ‘‘an

agency shall provide the record in any form or format requested by the person if

the record is readily reproducible by the agency in that form or format. Each agency

shall make reasonable efforts to maintain records in forms or formats that are reproducible for purposes of this section.’’ 5 U.S.C. 552(a)(3)(B).

The courts have held that the only exception to this clause is when an agency can

prove that the existing record could not readily be reproduced. Chamberlain v. U.S.

Department of Justice, 957 F.Supp. 292, 296 (D.D.C.) (certain ‘‘viscorder charts’’

could be made available for review at FBI HQ due to exceptional fact that they

might be damaged if photocopied), aff’d 124 F.3d 1309 (D.C. Cir. 1997) (unpublished

table decisions) (summary affirmance).

The EPA will be receiving the WCS data in an electronic format and store it in

a central data base. Therefore, the information will be available in readily reproducible forms and formats other than the CD-ROM and must be made available to

FOIA requesters.
26

2. FOIA does not permit conditioned disclosure

FOIA ‘‘speaks in terms of disclosure and nondisclosure. It ordinarily does not recognize degrees of disclosure, such as permitting viewing, but not copying, of documents.’’ Julian v. U.S. Department of Justice, 806 F.2d 1411, 1419 n.7 (9th Cir.

1986), aff’d, 486 U.S. 1 (1988); Berry v. Department of Justice, 733 F.2d 1343, 1355

n. 19 (9th Cir. 1984). Similarly, providing exempt information to a requester while

limiting his ability to further disclose it through a protective order is ‘‘not authorized by FOIA.’’ Schiffer v. FBI, 78 F.3d 1405, 1410 (9th Cir. 1996) (reversing conditional disclosure order of district court).

Part of the reasoning is that FOIA mandates disclosure to ‘‘any person.’’ If records

or information are not exempt and must be disclosed, any person is entitled to them.

The main exceptions to this principle are for Privacy Act records and confidential

business information, neither of which applies in this case.

It should also be noted that copying, duplicating, or posting restrictions on the

WCS data would also raise significant copyright issues. Current law does not allow

the government to hold copyright or place copyright-like restrictions on public information. Copyright law clearly prohibits protections for ‘‘any work of the United

States Government’’ 17 U.S.C. 105. Yet perhaps more applicable to this case, the

Paperwork Reduction Act prevents agencies from restricting or regulating ‘‘the use,

resale, or redissemination of public information by the public’’ 44 U.S.C.

3506(d)(4)(B). Putting aside the technological questions for the moment, dissemination of WCS information in non-duplicable format such as a secure CD-ROM would

be a clear restriction on the public’s ability to use and redisseminate this public information. Such restrictions would violate existing law.

3. The national security exemption of FOIA does not apply to this unclassified information

FOIA does allow for exemptions when the data is ‘‘in the interest of the national

defense or foreign policy’’ 5 U.S.C. 552(b)(1). By passing the Clean Air Act of 1990,

Congress sought to promote the reduction of the risks of deaths and injuries from

accidents at chemical plants, determining that the benefits of WCS information

would outweigh harm to national security.

Section 112(r)(7)(B)(iii) of the Clean Air Act states that WCS information ‘‘shall

also be submitted to the Chemical Safety and Hazard Investigation Board, to the

State in which the stationary source is located, and to any local agency or entity

having responsibility for planning for or responding to accidental releases which

may occur at such source and shall be available to the public under section 114(c).

Section 114(c) requires ‘‘any records, reports or information . . . be available to the

public’’ except for information (other than emissions data) that is considered a trade

secret.

Given that the Clean Air Act is clear that WCS information is not classified for

national security purposes, a FOIA exemption would not apply. Moreover, there are

compelling reasons to make such information available. In the wake of the recent

chemical disaster in Allentown, PA, where citizens were killed and communities

evacuated, there can be no doubt that such health hazards are posed by the threat

of chemical accidents and are more real than the potential threat of terrorist attack.

WCS data give communities and workers the ability to plan, compare and push for

measures to avert such accidental disasters. In fact, in passing the EFOIA amendments, Congress pointed to FOIA’s ability to contribute to efforts to reduce ‘‘serious

health hazards’’ like these.

Lastly, there is no data to suggest that disclosure of WCS information might lead

to a terrorist attack on a plant. In fact, the only in depth study pointing out potential, but unproven, risks has been called into question a contractor that oversaw the

study (see attached) and is under review by the General Accounting Office. Limiting

the availability and utility of WCS would be contrary to the intent of FOIA and the

Clean Air Act.

As we mentioned in our February 9, 1999 letter, any proposal to limit the forms

or formats in which WCS information would be available to the public would set

a terrible precedent. Such a precedent could undermine the intent and success of

FOIA in ensuring public health an safety, by encouraging Members of Congress to

carve out exceptions to the right of the public to use FOIA for vital public information. Therefore, we urge you once again not to put forward any such proposal. If,

however, legislation is introduced regarding the availability of WCS information, we

ask you to ensure that there is a full hearing with input from all the affected com-
27

munities, including public interest groups, journalists, and other frequent FOIA requesters.

Sincerely,

ROBERT L. OAKLEY, Washington Affairs Representative,

American Association of Law Libraries.

LAURA MURPHY, Director, Washington Office,

American Civil Liberties Union.

JERRY BERMAN, Executive Director,

Center for Democracy and Technology.

STANTON MCCANDLISH, Program Director,

Electronic Frontier Foundation.

GARY BASS, Executive Director,

OMB Watch.
28

Senator INHOFE. If you could conclude your remarks as quickly

as possibly, Mr. Kleckner, I’d appreciate it.

Mr. KLECKNER. I have two sentences left.

In summary, EPA’s risk management program, as it pertains to

propane, is unsafe, contrary to the environmental goals established

by the Clean Air Act and will adversely affect hundreds of thousands of farmers nationwide.

We urge this committee to act quickly to avoid these consequences before the June 21 deadline. The bottom line is, Mr.

Chairman, we’re just running out of time.

Thank you.

Senator INHOFE. Thank you, Mr. Kleckner.

I do have a question to ask you at the appropriate time.

Mr. Bertelsmeyer?

STATEMENT OF JAMES E. BERTELSMEYER, PRESIDENT,

NATIONAL PROPANE GAS ASSOCIATION

Mr. BERTELSMEYER. Thank you, Mr. Chairman.

Before I get started, I’d like to request permission to submit a

number of documents that support my testimony and ask that be

included in the record.

Senator INHOFE. Without objection, they will be included, Mr.

Bertelsmeyer.

Mr. BERTELSMEYER. My name is Jim Bertelsmeyer and I’m chairman of Heritage Propane, headquartered in Tulsa, Oklahoma. In

my real life, I run a propane marketing company but I appear before you today as President of the National Propane Gas Association.

NPGA represents 3,700 companies of all sizes that market gas

and equipment in every congressional district. Of those 3,700, less

than 100 are multiplant, multistate operators. The balance of 3,600

are mostly small mom and pop operators. These aren’t the typical

sized companies that come to mind when you think about the oil

and gas industry.

As President of NPGA, I’ve spent the last 7 months traveling this

country attending State and local propane meetings and conventions where I’ve heard about the many calls companies are getting

from customers to come pick up our tanks before the RMP ruling

deadline. This is the primary issue for my industry and our customers and the reason that I’m here today.

I want to lave you with three thoughts. The RMP rules duplicate

and extensive, incredible safety infrastructure that already exists

in all 50 States.

Two, the RMP rules will decrease safety in the propane industry

because customers will demand more and smaller deliveries as they

attempt to downsize their storage to get under the threshold limits

of the regulation. This action also hampers our delivery efforts in

critical months because of the many more deliveries that will be required.

Third, the RMP rules harm the environment because customers

will switch to less environmentally sound alternatives rather than

comply with the RMP rules. This will harm the air quality in this

Nation and the economic growth of the industry that I represent.
29

All propane facilities are subject to regulation in all 50 States

through building and fire codes. These codes, without exception,

adopt or incorporate the substance of the National Fire Protection

Association Safety Standard 58, NFPA.

State agencies, code inspectors and fire marshals require propane

storage facilities to be designed, constructed and operated safely.

The propane industry also complies with numerous other Federal

requirements including DOT’s hazardous materials regulations,

OSHA’s workplace safety rules and EPA’s community right to know

laws.

We take our safety responsibilities very seriously because safety

is the major factor in a customer’s decision to use our product.

From our vantage point, when the rubber meets the road, we believe that EPA’s RMP rules will have unintended consequences

that reduce safety and actually harm the environment.

Many propane customers will seek to reduce the amount of propane they store at the levels below the threshold for coverage. This

will not, however, reduce their demand for timely deliveries. What

you will see is trucks making many more small deliveries rather

than a safer alternative of making fewer large deliveries.

Complicating this situation would be the bad weather that often

accompanies the industry’s busiest time with the winter heating

season. In fact, when I heard I was going to be given the opportunity to speak before this subcommittee, so as not to relate from

an ivory tower perspective, I asked my employees to let me know

of the actual instances where customers have already called and

asked us to either downsize or remove their tanks as a result of

the regulations which are more than 3 months away.

Understand, my company sells only about 1.6 percent of the propane sold in this country. I fully concede that this was not a scientific study but it will give you an order of magnitude feel for the

problem I’m trying to relate.

My employees reported 316 customers who have requested their

storage be removed or downsized or threaten to switch to another

fuel. This represents about 14 million gallons of annual usage or

about 10 percent of our annual sales. There are many more who

are not even yet aware of the full impact so I feel that number to

be very conservative.

Fuel switching makes air quality worse because customers

switch to less environmentally desirable fuels. Companies are

switching fuels because the RMP rules are very complex and burdensome and because they come with a high public relations price

tag because of the worst-case impact zone implications the regs require to be defined. These are the real world impacts of these RMP

rules.

Reduction in air quality may be the most ironic aspect of the

RMP rules. Propane is a federally approved alternative fuel under

both the Clean Air Act and the Energy Policy Act of 1992. My industry actively worked to enact both of these laws. Now it appears

that support seems to be coming back to bite us.

The RMP rules are an expensive and duplicative paperwork exercise that will not improve safety. In fact, in our judgment, RMP

will actually compromise safety and will drain, we believe, approximately $1 billion out of the pockets of my customers and my indus-
30

try. Keep in mind we’re talking about a $10 billion industry, so 10

percent.

In conclusion, Mr. Chairman, EPA’s RMP rules should not cover

propane. It is our view that Congress never intended flammable

fuels to be covered. This is not an exotic chemical. Everyone who

has ever lived in a rural area knows about propane. Most all, even

in fact, have a tank in their yard.

These same regulations exempt dynamite. So figure that out.

Thank you for this opportunity to testify and I’d be happy to answer any questions.

Senator INHOFE. Thank you, Mr. Bertelsmeyer. I appreciate your

coming in from Tulsa and joining us.

Mr. Kleckner, you made the comment if you want to ask me

what I’m going to do if this thing goes through, I’ll tell you, well,

I’m asking you.

Mr. KLECKNER. I’m going to do just what Mr. Bertelsmeyer said

some of his customers have been doing. I’m going to call him up,

tell him to come out and get a couple of tanks. I’m going to comply

by having fewer tanks.

I’m a small farmer, 350 acres. To some of you that may sound

big but that’s really a small farm in much of the corn belt in northern Iowa. We do use it for animal heating, for our home and for

corn drying. I’m going to take out a couple of tanks, get under the

limit and simply call the truck more often for the danger is really

in the truck on the road, crossing railroad tracks. The tragedy in

Illinois last night was not a propane truck, but it could have been

because there have been those. The danger is also in the switching

when you transfer.

So we’re going to do more of the dangerous stuff because I have

less storage and that’s how I am going to get around it. If I were

a big farmer, I probably couldn’t ask to take out enough tanks to

comply and then I don’t know what I would do.

I think it is ridiculous the way they’re suggesting we go. It’s

going the wrong way completely.

Senator INHOFE. Of course Mr. Bertelsmeyer is very familiar

with the crisis facing Oklahoma farmers right now. I think you’re

probably a bit conservative when you used the figure of $100 million. My math says if you have 330,000 farmers and if it’s 2,000,

you’d be $600 million or so.

I happen to have been born in Iowa so most of the Inhofes come

from around the Cumberland area and that’s considered to be the

hog capital but with recent corporate farming and that’s expanded,

and we’re really into the hog business big time in Oklahoma. Because of the pricing right now, many of the hog farmers are killing

piglets because the price is just too low to justify raising them.

That’s part of the crisis we’re under.

It looks like we’re going to have in Oklahoma a pretty good

wheat year but our elevators are full. I guess I’m sensitive to this

because of the crisis that we’re facing in Oklahoma and I’m sure

that same thing is happening to other States too.

I would like to have both of you comment on what the farmers

can endure in terms of more regulation? Mr. Kleckner, you represent farmers from all over America, so you would be a good one

to lead off.
31

Mr. KLECKNER. Senator, as I go around the country giving

speeches, and that’s kind of what I do now with my life more than

on the farm, that’s probably what I hear more than anything else,

is regulation, overregulation.

I realize regulations are the price we pay to live in a civilized society, but they ought to make sense at least most of the time; if

not all of the time, at least most of the time. Most of us farmers

don’t think the regulations we live under make sense, not just economic sense but just don’t make sense sense.

Here is one. As I said, it appears to me here that EPA thinks

unless they’re doing the regulating, they are not regulating.

Senator INHOFE. So you would look at this charge and come to

the conclusion that the current regulation is probably more than

adequate or would you say that?

Mr. KLECKNER. I hadn’t looked at the chart. I was sitting in the

back, along the side. I didn’t see it before I came up.

Senator INHOFE. It just shows the current regulations, what

they’re addressing. You made the comment that the EPA doesn’t

think that you’re regulated unless they’re regulating you. I think

there is some justification for a comment like that.

How about you, Mr. Bertelsmeyer, have you had a chance to look

at the current regulation and what do you think would be accomplished by further regulation?

Mr. BERTELSMEYER. I think as far as we’re concerned, there’s nobody that’s more interested in safety than our industry because it’s

our livelihood. If we can’t conduct our operations and our customer’s operations in a safe manner, then we haven’t got an industry. So we have a very, very strong interest in safety.

As I look at all of the things that we’re currently being regulated

by, I can’t think of any meaningful addition and certainly not this

paperwork exercise that the EPA is attempting to put us through

here as having any beneficial effect whatsoever, as a matter of fact,

a detrimental effect on the safety in our industry.

Senator INHOFE. Explain why it’s a detrimental effect on safety.

Mr. BERTELSMEYER. Because of just what Mr. Kleckner said. It’s

going to force people to try to try to get under the limitations and

we’ll have to make more deliveries. A delivery operation is the

highest risk of all of the operations we do in our business. This is

going to create more of those deliveries.

Senator INHOFE. If you had a chance through your industry to

try to quantify what you just said, that if this regulation were to

go through, how would you quantify more deliveries so that we

would be able to analyze the additional exposure that resulted from

additional deliveries?

Mr. BERTELSMEYER. Again, at the end, it depends on how many

people actually do that, so in order to quantify it right now, it

would be difficult, although we certainly would be willing to do

that as a followup item.

Senator INHOFE. That would be interesting for us to know. It’s

a little more in-depth as to why this could actually have the effect

of increasing risk.

Mr. BERTELSMEYER. Senator, I do know that my own, unscientific

study, these are the responses back from my plant. Again, I haven’t

got a complete breakdown between the ones who want smaller
32

tanks and ones who have told us to come out and take the tanks

out completely, but some number of these 316, just in our company,

some percentage of those, are certainly the ones that are going to

have their tanks downsized.

Senator INHOFE. On the issue of fuel switching, you were here

when Mr. Fields was giving his testimony and responding to questions. I asked the question about fuel switching, wouldn’t it be just

as logical as switching to natural gas, to switch the other way to

something that would be more onerous such as heating oil?

Mr. BERTELSMEYER. Yes, and when you look at what’s exempted,

the heating oil, diesel fuel, electricity, natural gas and gasoline, all

of these are all exempted. I guess we can get into a debate as to

which one is or isn’t more environmentally friendly but certainly

there isn’t anything more environmentally friendly than propane.

It’s been designated by two congressional acts as an alternative

fuel.

Senator INHOFE. Mr. Kleckner, you were here when we talked to

Mr. Fields and his estimate in the written testimony, I think was

28,000, then he stated 33,000 in terms of estimating the facilities

that would be reporting on propane.

Are the two of your or either of you aware of the study done by

industry, the accounting firm who came up with the estimates that

add up to over a million?

Mr. BERTELSMEYER. Yes, sir. Our association commissioned that

study and it’s been some number of years ago, I want to say like

four or five. I wasn’t actively involved in the association at that

time, but I want to say four or 5 years ago and we can clarify that

for the record.

We commissioned the study and did a survey. It was a market

survey just to determine exactly where propane was used throughout this country. That’s where we determined the 660,000 farms

and the 350,000 industrial sites, and another million or so commercial sites. Then in order to arrive at the number that would be affected by this regulation, we assumed that 100 percent of the industrial sites would be covered, that approximately one-half of the

forms would be covered, and approximately 30 percent of the commercial sites. That totals up to the 1 millionsites that would be covered, and we put in a very conservative number of $1,000 on the

cost which I know personally from my own company, that is probably just a faction of what our costs are going to be to comply with

this thing. That’s where we came up with the billion dollar number, sir.

Senator INHOFE. I think you inadvertently said 660,000 farmers

and said 330,000.

Mr. BERTELSMEYER. Well, 660,000 but only 50 percent would be

covered. That’s where the 330,000 came from.

Senator INHOFE. The figures that came from this study, 11 of the

13 engineering firms estimated the compliance to be between

$2,000 and $20,000 per facility. Do you have any thoughts about

that and the accuracy of that, Mr. Kleckner as it pertains to farms?

Mr. KLECKNER. No. I’m guessing that the 20,000 would be high

for a farm that more likely the $2,000 area would be more applicable to farmers. I’m just sitting here listening to Mr. Bertelsmeyer.

The 660,000 farmers or close to that, most of us don’t know wheth-
33

er it will apply to us or not, so we have to go through the cost, the

time which is cost also, determining in the end maybe it doesn’t

apply to us but it’s been a whole bunch of money and probably even

hiring, in many cases, an outside consultant to sort through those

60-some pages or 30-some pages to get to the final two, three or

four-page document we have to fill out. Then the cost of complying

after that, $1,000, $2,000 or more at that point, the $100 million

I said is almost so conservative it is laughable. I would think half

a billion to $1 billion, half a billion for farmers if not more, and

even more for industry because of what you have.

Senator INHOFE. From your two perspectives here, you heard him

talking about the relief that would be provided with connecting

tanks. How much help would that be?

Mr. BERTELSMEYER. That absolutely goes in the wrong direction

because it takes a manifolded installation that is filled with one delivery to multiple tanks and by separating those tanks, now we’ve

got to go to three or four different locations on the same farm. So

again, we’re back to the problem that the high risk portion of this

business is the delivery operation. This not only doesn’t help, it

hurts it.

Mr. KLECKNER. Mr. Chairman, also with corn drying, corn bins

are grouped together, so you don’t put a tank a quarter mile away.

I don’t know what their distance requirements will be. It’s likely

to be minimal to begin with and increase with time, the way the

regulatory creep usually happens. I’m not saying EPA creeps, but

there is a regulatory creep that’s out there in this country. It starts

way out here and it comes together.

I simply can’t put my tanks for my grain drying bins too far

away. I put them by the grain bins and they may or may not be

connected but still the distance requirements, I can’t put it 80 rods

away, a quarter mile away.

Senator INHOFE. I appreciate your comments very much and your

testimony. You are going to receive questions in writing. I know

you are from Senator Bennett and probably other members of this

committee also.

I would like to share with you that the majority of the people on

this committee are concerned about two major things as we address

all regulations that come out, whether they pertain to clean air, endangered species, Superfund, and that is that we depend on sound

science and not hysteria, and that we actually have a cost benefit

analysis so that people will know what the costs are actually going

to be.

I have been critical of the EPA because their estimates of cost

have consistently been much lower than I believe. I think in this

case they are too.

With that, we’ll go on to our third panel because we’re getting

behind in our schedule right now. I appreciate very much both of

you coming.

If the third panel will come to the witness table? The third panel

consists of Mr. Robert Blitzer, Former Section Chief, Domestic Terrorism, FBI; Mr. Thomas M. Susman, Ropes & Grapy; Paula

Littles, Paper, Allied-Industrial, Chemical and Energy Workers

International Union; Thomas E. Natan, Research Director, National Environmental Trust; and Ben Laganga, Emergency Man-
34

agement Coordinator, Union County Office of Emergency Management.

We will start with Mr. Blitzer, please.

STATEMENT OF ROBERT BLITZER, FORMER SECTION CHIEF,

DOMESTIC TERRORISM/COUNTERTERRORISM PLANNING

SECTION, FEDERAL BUREAU OF INVESTIGATION

Mr. BLITZER. From January 1996 until I retired from the FBI, I

was Bob Burnham’s predecessor, so it was during my tenure that

a lot of this worst-case scenario discussion arose to the point it is

today.

As I was listening to the testimony, most of what Bob discussed

and Tim was contained in my statement, so I’m going to just briefly

give you a sense of the kind of atmosphere in which we were discussing these kinds of problems. I’m just looking at worst-case scenario types of situations.

At the time this was going on, we had been through a series of

major cases, and I had been through those personally, everything

from the World Trade Center to Oklahoma City, the Nairobi bombings and other cases. There was great concern in the Administration and I think it remains today about the use of weapons of mass

destruction with in the United States including the detonation of

a device.

Bob mentioned the sour gas case. We managed that case during

my tenure and we were very concerned that thing could occur.

We’d had another incident prior to that, a threat, at Texas City,

Texas, a big oil refinery situation. So we had had a couple of cases

and we had this atmosphere of mass casualty cases. The thought

of a terrorist, either domestic or international terrorist, sitting

someplace in the world or in the United States with the kind of detailed access to facilities that the worst-case scenario would allow

was of concern to us. That is why we at the Bureau opposed it.

I guess the only thing that wasn’t discussed this morning was,

although I think you touched on it, the discussion of release of information under the Freedom of Information Act. That could occur

today. Although I’m out of the FBI at this point, I would say to you

I’m worried about that because again, as we were thinking about

the possibilities, looking in a crystal ball, I guess threat assessment

is certainly not a science, it’s an art. In trying to assess future

threats, this is what we were thinking about.

I just wanted to paint that picture for you as to some of the behind-the-scenes activities that are going on during those discussions. I thank you for your attention.

Senator INHOFE. Thank you, Mr. Blitzer.

I would admonish all of you that your entire statement will be

made a part of the record, so we will try to adhere to our time line

here.

Mr. Susman?

STATEMENT OF THOMAS M. SUSMAN, ROPES & GRAY

Mr. SUSMAN. Thank you, Mr. Chairman.

I’m pleased to be here this morning to address application of the

Freedom of Information Act to the chemical reporting data that are

required to be provided to EPA under the Clean Air Act.
35

I’ve personally been involved with Government information law

for over 30 years and as my biographical summary reflects, I’ve

been an unwavering advocate of public access throughout that

time.

Today, I appear on my own behalf at the request of the subcommittee. Although I have provided the subcommittee with a

paper that was prepared in part through support of the Chemical

Manufacturers Association, it’s analyses and conclusions are my

own and I ask permission that the paper be included as part of the

record.

Senator INHOFE. Without objection.

Mr. SUSMAN. I’m here today because I have great respect for the

FBI and its antiterrorist expertise, and also for the important benefits of open access to government information. So when the FBI

says these worst-case scenarios or offsite consequence analyses

should not be posted on the Internet because that will significantly

increase prospects for terrorist attack, I readily conclude that such

posting is a bad idea.

When EPA, local governments and community leaders say access

to these data will encourage accident prevention and facilitate community preparation and rapid response to potential chemical accidents, I’m comfortable with the conclusion that public access locally

by the community, by firefighters, by emergency preparedness offices, is a good idea. Plainly a balance needs to be struck between

these two conflicting interests.

Where I find myself in disagreement is with the Environment

Protection Agency’s notion that under current law, it, the agency,

can strike a balance by collecting those OCAs in electronic format

and compiling them in electronic media and then can refuse to release those data in electronic form to the public. That is simply not

permitted by the Freedom of Information Act, and the agency

doesn’t need another 60 days to reach that conclusion.

The Clean Air Act states unequivocally that OCAs must, except

for trade secrets, be made available to the public. That Act doesn’t

impose any requirements regarding the form in which information

must be disclosed, but the Freedom of Information Act does. It says

if the Government has disclosable information, it has no discretion

to withhold or manipulate or create speed bumps to access to that

information, unless one of the Freedom of Information Act’s exemptions apply. In my paper that is included for the record, I discuss

each of the exemptions and demonstrate that they not apply in this

instance.

The Freedom of Information Act, by virtue of the electronic

amendments enacted in 1996, requires disclosure of requested data

in electronic format when that form of the information is requested

and without any additional manipulation by the agency if it’s reasonably possible for the agency to make that information available.

The conclusion is that EPA must disclose these worst-case scenarios, offsite consequence analyses, in the electronic format in

which they’re submitted, in a searchable data base if one exists.

The EPA has no discretion to act otherwise.

EPA has proposed to reformat the data to make it less accessible,

to make searching difficult, to create speed bumps to disclosure,

and it seems to me that is not the role of the agency. No agency
36

should be allowed, much less encouraged, to state publicly that it

intends to solve a serious problem identified by the FBI and concurred in by EPA by violating a mandate of the Congress in the

Freedom of Information Act. The law doesn’t provide for it, the Justice Department shouldn’t condone it and Congress shouldn’t tolerate it.

For those who agree that unrestricted electronic access to OCA

data on the Internet is a threat to security of manufacturing facilities and the communities in which they are located, there’s only

one legal solution to this problem—new legislation.

I’m not proposing that Congress amend the Freedom of Information Act or for that matter, reduce the reporting requirements

under the Clean Air Act. Nor do I propose that OCAs become unavailable to local governments or community residents entirely. It

does seem to me that a balanced scheme is needed that will allow

community access and even release of paper copies on a requestby-request basis but which will clearly and specifically prohibit

their dissemination in electronic format.

The development of that scheme should be up to Congress

through legislation and not to EPA through violating the Freedom

of Information Act.

I look forward to answering your questions.

Senator INHOFE. Thank you, Mr. Susman.

Ms. Little?

STATEMENT OF PAULA R. LITTLES, PAPER, ALLIED-INDUSTRIAL, CHEMICAL AND ENERGY WORKERS INTERNATIONAL

UNION

Ms. LITTLES. We very much appreciate the opportunity to appear

before you today. Our organization represents 320,000 workers employed nationwide and a number of them are in the chemical and

oil refining and nuclear industries.

The question of full disclosure of risk management plans is of

vital importance to our organization, our members and the communities in which they live. We feel if we are ever to have effective,

ongoing hazard reduction, these plans must be fully disclosed to encourage safer technologies, honor the public’s right to know, and to

overcome the complacency that has allowed for a no serious plan

or timetable to reduce hazards.

The Clean Air requires EPA to implement a program to assist in

the prevention of chemical accidents. EPA developed the risk management program rule. This rule requires some 66,000 facilities

that manage sufficient amounts of hazardous materials to develop

a RMP and file it with EPA. These facilities include chemical manufacturers, refineries, water treatment facilities, ammonia, refrigeration, propane storage and semi-conductor fabrications.

A projected 65 million people live within a five mile radius of an

RMP facility. The Clean Air Act also requires that EPA make this

information available to the public. Our organization became very

concerned in November when we discovered that EPA had made

the decision on November 6, 1998 not to allow full access to RMP

information.

Our main concern surrounding full disclosure is our members,

their families and the communities in which they live. Our mem-
37

bers are the first respondents to a site of a manufacturing accident,

at their work site, they also may work at a site near an incident,

next door, across the street or five miles away but near enough to

be affected.

Currently, not enough effort has been placed on hazardous reduction for our organization to readily accept limited disclosure on

hazardous materials that our members work or live near. There is

also the issue of manufacturing security. It is to our advantage as

an organization that represents workers in this arena that we can

say to workers, their families and the community, these facilities

have nothing to hide. We can tell workers that these facilities are

working toward reducing hazards, their RMPs are available in any

form they need, electronic or other, to provide the information

needed to show that they are really working toward hazard reduction.

We believe that it is not the knowledge that is harmful but the

lack of knowledge that has at times created mass hysteria and

rushed us to judgment. Although numbers vary depending on the

source of statistics and period of time examined, there is no doubt

about the effects of chemical accidents on human lives. Year after

year, large numbers of people are killed or injured. In addition, the

numbers of those suffering the long-term consequences of exposure

must also be counted.

Currently the Chemical Safety Board is reviewing or investigating 27 incidents in 20 States. In the last 3 months of 1998, the

Chemical Safety Board began four incident investigations, 20 workers were killed in the last 3 months of 1998 on the job that the

Board is investigating now.

These numbers are clear and the message they send should be

even clearer. We need to work harder at reducing hazards and it

is our belief that full disclosure is the beginning step. We believe

there are many valid and important uses for RMP information by

people who live, work and conduct business well beyond the immediate community where a facility is located. RMP information can

be used in a number of ways.

One way that we as an organization representing feel this would

be beneficial to us is it would help us develop and conduct effective

education and training programs, it would help us to link other

worker safety and public health data bases. It would also determine which facilities might pose year 2000 risks.

Just as we believe strongly that our members and their families

and the communities in which they reside will be made safer by

full disclosure, we do not believe that we’re placing them in danger

of sabotage or terrorism. Communities can only be protected when

companies use safer chemicals, reduce dangerous storage, widen

buffer zones and provide full information. Chemical accidents have

no respect for geographic boundaries; we must have the freedom to

communicate concerning chemical hazards if we are to real hazard

education.

Only with full information, disclosure and opportunities to act

can facilities, employees and communities reduce chemical hazards.

Thank you for allowing me the opportunity to speak.

Senator INHOFE. Thank you, Ms. Littles.

Mr. Natan?
38

STATEMENT OF THOMAS E. NATAN, JR., RESEARCH

DIRECTOR, NATIONAL ENVIRONMENTAL TRUST

Mr. NATAN. Thank you for the opportunity to testify as a member of the environmental community. I’m a chemical engineer and

I’ve visited scores of industrial facilities, examining ways in which

they can operate more efficiently and safely, as well as helping to

interpret their environmental data for residents and surrounding

communities.

As the committee is aware and as Senator Lautenberg mentioned

in his opening statement, Congress enacted the Emergency Planning and Community Right to Know Act in 1986. A principal feature of this legislation was the toxic releases inventory program,

TRI. TRI has been credited by both environmentalists and industry

alike for generating the climate that has resulted in dramatic decreases in toxic chemical emissions without the traditional constraints and costs of the command and control regulatory framework.

The experience with complete and unimpeded public dissemination of TRI data in generating significant reductions in releases of

toxic chemicals to the environment is relevant to the issue of public

availability of worst-case scenario data.

Like the 112-R program, TRI merely requires reporting of information that companies already generate in the course of doing

business. Public awareness, generated both from local citizens and

data analysis by environmental groups, has led to a reduction in

toxic chemical releases of 50 percent over the past 10 years. No further regulation was necessary to bring about these reductions.

The enduring lesson of public access to information regarding

toxic chemical risks facing communities is that real risk reduction

can occur without the imposition of new and significant costs to the

manufacturing sector. Another important lesson we can glean from

TRI is that public access to toxic chemical release information

alone can generate enormous risk reduction benefits.

Also, for many workers at industrial facilities, TRI is their first

opportunity to learn about chemicals used on the job, another unexpected benefit of complete access to information. All of these benefits can be further enhanced through public access to 112(r) data.

The intelligence community has raised concerns about the availability of worst-case scenario data on the Internet. However, even

in the absence of Internet access to data, there are many ways in

which EPA, the intelligence community and the chemical industry

must work both separately and together to reduce hazards and potential risks to the American public from the use of toxic chemicals

in industrial facilities.

The read-only CD ROM that has been proposed is interesting but

we’ve not been provided enough details to determine if this will

meet the needs of the diverse public. To name a few, this public

includes citizens who want to compare their local facilities to others

across the country in the same industry, workers at the facility for

whom these data may be the best vehicle to learn about risks and

hazards on the job, emergency responders who will want to be sure

a particular plant meets the industry standard for safety, educators

who will want to teach students about best practices and investors
39

who will want to track the performance of all the facilities of a particular company.

Whether or not the worst-case scenario data are available on the

Internet, EPA should establish many specific public access services

to mechanisms. I’ve included those in my written statement and I

won’t repeat them here.

EPA also needs to take an active role in providing comparative

analyses of data from facilities within particular industries to determine the best practices as they currently exist. EPA should also

provide analyses of uses of specific chemicals across industries for

some of the most hazardous substances.

From the time the agency receives the first 112(r) data, it should

be creating guidance documents for locally impacted citizens and

the general public on what the data mean and don’t mean as well

as list an explanation of supporting documentation that facilities

should have on hand. As more years of data become available, the

agency can also publicize success stories of facilities that have significantly reduced their vulnerability zones.

To my knowledge, the review of worst-case scenario data by the

FBI is the first time the FBI has reviewed chemical accident data

reported by industrial facilities to determine the potential threat

that onsite use of toxic chemicals pose to local communities. This

is true despite more than 10 years of data being widely available.

In my opinion, the most significant finding made by the FBI during its review was that the use of toxic chemicals at facilities poses

an inherent risk to workers, neighboring properties and surrounding communities. The FBI found additionally that making the public aware of chemical use risks over the Internet would amplify this

inherent preexisting risk.

In light of these findings, it is important to emphasize that the

risks emanate from toxic chemical use, not public awareness of

those risks.

We believe the FBI can play a tremendous role in furthering society’s goal of risk reduction. A comprehensive review by the FBI of

security measures at facilities using or producing large volumes of

toxic chemicals would be a good start at reducing risks to citizens.

Further reviews could include risk generated by transporting

chemicals to and from those facilities.

The chemical industry has begun presenting worst-case scenario

data for individual facilities to local citizens in Louisiana and

Texas. Companies should go further and produce reports on their

worst-case scenario data for all facilities they own enabling the

public to see that they operate uniformly with regard to risk minimization. These reports should also publicize plans and goals for

risk reduction if they exist.

Finally, the chemical industry, EPA, and the intelligence community should collaborate on a voluntary initiative to reduce risks

with reasonable targets and dates. Although reducing hazards by

using less toxic chemicals would be most desirable as a way to accomplish risk reduction, a voluntary initiative could explore other

common sense risk reduction measures as well.

Where reduction in use isn’t practical, such common sense measures could include safer transportation, storage and handling of

toxic chemicals. The worst-case scenario data provide an ideal vehi-
40

cle for measuring progress for risk reduction efforts. However, denying or severely limiting public access to worst-case scenario data

does not relieve the EPA and the intelligence community or the

chemical industry of their shared obligatio to reduce risk.

Thank you for the opportunity to address the committee and I’d

be happy to answer any questions.

Senator INHOFE. Thank you, Ms. Littles.

Mr. Laganga?

STATEMENT OF BEN LAGANGA, EMERGENCY MANAGEMENT

COORDINATOR, UNION COUNTY OFFICE OF EMERGENCY

MANAGEMENT

Mr. LAGANGA. I am the emergency management coordinator for

Union County, New Jersey. Union County is an important county

in New Jersey. It is highly industrialized, 102 square miles with

a population of 494,000. Within the county borders lies Newark

International Airport, New Jersey Turnpike and the Garden State

Parkway as well as the Elizabeth Seaport. There are many other

highly traveled highways. We are also home to several petrochemical and pharmaceutical facilities who are required to file risk management plans in 1999.

As a representative of the county and chairman of the local

emergency planning committee, I am pleased that you are hearing

testimony on this highly controversial issue today. From the outset

of this rules development, it has been my belief that the availability of worst-case and more likely case scenario information on the

Internet could lead to an increase in terrorist acts in our State and

throughout the country.

In New Jersey today through right to know and New Jersey’s

Toxic Catastrophe Prevention Act, all companies that use hazardous materials on their site must provide that information to their

OEPC and the New Jersey Department of Environmental Protection. The information is available to the public, however, it must

be requested and is not available through the Internet.

In my opinion, that is a better way to monitor those individuals

requesting the information. If the information is available on the

Internet, there is no possible way to know who is accessing that information and quite frankly, how they are using it.

There is another side to this issue, the misunderstanding and the

misinterpretation of this information. Without proper explanation,

the general public could misinterpret the information they are

accessing and could cause undue harm amongst the public at large.

In Union County, we do not want to see companies go out of

business, however, we do want to maintain the lines of communication between these facilities and our emergency response teams.

I hope that you recognize the use of this information is valuable

to emergency responders. However, if it is put in the wrong hands,

it could cause more harm than good.

I know that the regulatory intent for the development of the risk

management plans was to put valuable information into the hands

of the public, not to jeopardize public safety by placing this information in an accessible format where it can be used by those looking to cause harm. However, I am concerned that is exactly where

this valuable information will end up.
41

Thank you again for this opportunity and I would be happy to

answer any questions you may have.

Senator INHOFE. That’s interesting, Mr. Laganga. In your testimony, you say you already collect the emergency data and make

it available to local citizens and environmentalist groups now?

Mr. LAGANGA. Yes. There are two ways we do that. The New Jersey Department of Environmental Protection passes that information down to the local emergency responders, police, fire and the

LEPC. We’re very active in Union County through an HMAC Advisory Council who puts on educational programs and any type of

training for emergency responders in conjunction with those industries.

Senator INHOFE. Do you do this individually or by what means

do you respond to these requests? I’m trying to figure out how

many requests you might have to respond to?

Mr. LAGANGA. At the county level, we receive maybe 20 a year.

At the local level, they receive more from their community activists. We also promote public education through the facilities. Senator Lautenberg earlier mentioned the Exxon refinery. I sit on that

community action panel which enpanels emergency responders,

local political people and citizens who get to know about the facility

and how emergency response activities take place.

Senator INHOFE. So you not only share the information, but you

also interpret it for them. Has interpretation ever been as significant as just having access to the information?

Mr. LAGANGA. We don’t interpret it. We leave the interpretation

up to the facility. The information they supply us with are the

chemicals and how much they have in their inventory. We do encourage dialog between the facility and the citizens.

Senator INHOFE. We were listening to Mr. Susman say that he

came to the conclusion there is only one solution and that is

through legislation. Are you suggesting another could be that you

could do this through the local entities and avoid the EPA and the

Freedom of Information Act altogether?

Mr. LAGANGA. Yes. Again, public information that is supplied

from the facilities to the DEP, to the towns as well as to the facilities can really promote that.

Senator INHOFE. How would you react to that, Mr. Susman?

Mr. SUSMAN. That’s quite interesting because New Jersey has a

unique statute enacted just a few years ago that says that when

the government maintains information, even if it’s maintained in

electronic form, a State Freedom of Information Act request can be

responded to by providing paper records. So even if the State agencies maintained these data in electronic format in New Jersey and

a member of an environmental group desiring to put this on the

Internet makes a request under State law, that person can get the

record only in paper format under a specific State statute.

I’m not suggesting that is a good idea for all government.

Senator INHOFE. How many other States have a statute?

Mr. SUSMAN. It varies. There are 50 different States with 50

statutes. Unfortunately, the Federal Government sets the stage for

what most States do and the Federal Government has established

the principle if you have it electronically, you have to release it
42

electronically. I haven’t done a State-by-State review, but I do believe New Jersey may be unique.

Senator INHOFE. Mr. Natan and Ms. Littles, I come from Oklahoma and you’re all familiar with the Federal office bombing which

was the most devastating terrorist attack on our soil in history, so

we’re very sensitive to this type of thing happening. I would like

to have you both talk about the tradeoff here. We’re concerned

about peoples’ right to know. When you ask the man on the street

would you rather have this right to know for yourself and for terrorists or would you rather have no one have the right to know?

I think I know what their answer would be. How would you respond to that?

Ms. LITTLES. I came from a place close to Oklahoma. I actually

came from Texas and I worked in a petrochemical field. Because

of that and because of having been at petrochemical facilities when

there have been releases and people were not aware what was

being released, when peoples’ children were at school, it has instilled in me a feeling that people in the community have a right

to know what’s going on in these facilities and that we, as an organization, have a responsibility to our members in those facilities as

well as in the facilities around the country and facilities with which

we have good relationships as well as the ones where we don’t.

Where we have good relationships, we’re given data so that we can

actually look and see our members are being in the best possible

hands. In places where we don’t, we’re not given that same information.

We know there are some facilities that will be giving their RMPs

that we can compare information and we can actually maybe sit

down and talk to people about what we actually view as an in our

own world company terrorism because when you have people working in facilities and companies and not providing the proper respect

and response to them for their own livelihood and how they are

going to leave that job, we have a very large problem with that

also.

I’m definitely not trying to play down what happened in Oklahoma because that was very serious but I don’t think what happened in Oklahoma—what happened in Oklahoma, that building

was not on the Internet.

Senator INHOFE. I’m not suggesting it was. I said I am sensitive

to the results of terrorist activity which that was. I recognize that

was not information that was on the Internet.

Ms. LITTLES. Also from what I’ve seen of RMPs and having

worked in a petrochemical facility, I have never seen anything on

one yet that actually would identify for a terrorist what they could

actually bomb.

Senator INHOFE. I’m going to ask you, Mr. Blitzer, to respond to

that last comment she made in just a minute but I want to hear

from Mr. Natan first.

Mr. NATAN. I’ve had experience with citizens who have received

environmental data from their local facilities that is not equivalent

to the same data they’ve submitted to the Federal Government. For

that reason, I think even from a verification standpoint, it would

be nice for citizens to be able to verify that what facilities are giving them is indeed the correct thing.
43

I’ve also found instances where the data are incomplete and relying even on facilities to provide the interpretation for the communities has posed a problem. I’m also sensitive to the idea that you

certainly don’t want to foster anymore terrorist activities of any

kind.

I do believe that there is a role for disseminating information in

ways that it will make sense for people to use it. The problem is

that I think the public who needs this information goes well beyond

the local level. I am not sure how to resolve that.

Senator INHOFE. It is a problem because you’ve repeated several

times, all of you have, that people have a right to know but terrorists are people.

Mr. NATAN. Terrorists are people, not the right people but they

are people. I find it difficult as someone who likes to examine data

and who would like to know, for example, which paper plant that

uses chlorine or releases chloroform is operating in the safest possible manner so I can go to other paper plants and ask them why

they are not doing the same thing. I think this is a legitimate use

of this kind of data.

Honestly, without greater access to the data than I’ve seen proposed, I don’t know how I would do that.

Senator INHOFE. Mr. Blitzer, would you like to respond to her

last statement?

Mr. BLITZER. Again, I think I would just harken back to some of

my initial comments. That focuses more on the worst-case scenario

on the Internet with someone either in a foreign country or here

being able to zero in on key corporations, key facilities where a lot

of stuff is and have a pretty good sense of what’s there, what the

facility looks like, and being able to target a facility for an operation.

Senator INHOFE. Why don’t you give us a hypothetical, specific

example?

Mr. BLITZER. I’ll try to do that. Let’s say you have a foreign terrorist who is active on the Internet, and they are, and he starts

searching facilities, chemical facilities, in the United States on the

Internet. There’s 60,000 and some facilities but let’s say he’s looking at the State of New Jersey and he can pull up significant data

on chemical facilities in the State of New Jersey.

Again, hypothetical, he has a cell in the New York City area that

he can activate and he can provide information to them, this is the

target, this is what I want you to do. That’s the scenario that

might occur and could occur. That’s the kind of thing we, as we are

considering this, are worried about, that kind of accessibility, making it easy for them to target facilities, easier than it is right now.

Senator INHOFE. Have you come to the same conclusion that Mr.

Susman has, that probably even though it may not be a good solution, that the only solution would be legislative?

Mr. BLITZER. I personally have and it’s troubling and I listened

to the other panelists. I must tell you after 27 years in the Bureau,

I’m just as concerned about peoples’ right to know as anyone else.

I think they do have a right to know but I think Mr. Natan is

right, where is the balance? I don’t know where that balance is.

There’s a lot of legitimate researchers like Mr. Natan and others

that need access to worst-case scenarios and I don’t think we were
44

trying to prevent that. We’re trying to prevent worst-case scenarios

from being posted on the Internet and being so accessible to so

many individuals that may want to do us harm.

Senator INHOFE. Mr. Susman, you’ve come to this conclusion so

I would assume that there are no technologies in your mind that

the EPA could use to safeguard this information under current

law?

Mr. SUSMAN. Under current law, if the EPA possesses it in a

searchable electronic data base, which is the way in which the information will be submitted on June 21, then that’s the format that

it has to disclose it. EPA does have the facility to provide paper

copies. All you need is a photocopy machine. The law just doesn’t

require that alternative.

I might say, Mr. Chairman, that it does seem that we’ve talked

about the need for balance, and at least 80 percent or more of the

valuable uses to which these reports can be put, it seems to me,

can be accomplished through paper copies provided locally.

If someone wants to key in 66,000 reports and put them on the

Internet, I think that’s something we can’t guard against legislatively.

Senator INHOFE. A third party could do that.

Mr. SUSMAN. That’s correct, but that again is part of the balance,

the price we pay. We want the local community, we want the firefighters, the emergency preparedness offices, the police department

and workers to have some access to these reports. It’s a far cry

from saying therefore, it needs to be electronically available whether in a CD-ROM, nonsearchable, non-read only. All that sort of

stuff is very problematic at least under present technology.

Senator INHOFE. Mr. Blitzer, a minute ago, I think I heard you

say that terrorists are very sophisticated and they do use the

Internet?

Mr. BLITZER. Both domestic and international terrorists use the

Internet, they communicate by computer. I saw it firsthand.

Senator INHOFE. When did you leave the FBI?

Mr. BLITZER. I left in November of last year. Many of the domestic groups in particular are extremely active on the Internet where

they communicate and have their own web sites. They have

encrypted web sites, so it’s there.

Senator INHOFE. I would assume they are much more sophisticated now than even they were last November.

Mr. BLITZER. As fast as the technology grows, they will take advantage of it.

Senator INHOFE. I’ve been reminded we have gone 5 minutes

over our time but if any one of the five of you has any gnawing

need to add something else, this is your chance to do it.

[No response.]

Senator INHOFE. Thank you very much for taking the time to

come and that goes to all three panels. I appreciate it very much.

You will be receiving questions from members who were not in attendance to answer on the record in the next few days.

Thank you very much.

[Whereupon, at 11:51 a.m., the subcommittee was adjourned, to

reconvene at the call of the Chair.]
45

STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE STATE OF WYOMING

I am genuinely concerned about the environment, that is not what this is all about. That is why I am so puzzled by the letters I have been receiving from many

of my constituents in the propane industry concerning the Environmental Protection

Agency’s (EPA) risk management regulations. EPA, in compliance with the Clean

Air Act is attempting to collect risk management plans (RPMs) from facilities handling substances listed under section 112(r) (3).

I applaud EPA’s efforts of wanting to improve the safety of industrial chemical

processes but I do not think it is necessary to include fuels when the legislation was

aimed specifically at chemical releases. Why would the Administration want to discourage folks from using propane—a fuel the Administration itself deemed a clean

fuel.

With respect to propane, the EPA’s risk management program is duplicative in

nature. The industry already operates under strict regulations on the State, Federal

and local level. Propane companies already comply with a comprehensive safety

standards set by the National Fire Protection Association and also abide by worker

safety standards set by OSHA.

These risk-management regulations cover all facilities with more than 10,000

pounds of propane onsite. This is not a lot of propane, so these rules not only apply

to bulk storage facilities but also to many residential and commercial customers as

well. As a result, many propane users are thinking of switching to a less environmentally friendly substance such as heating oil, natural gas, or electricity. And I

mentioned previously, propane is listed as a clean fuel.

Another negative impact concerning the proposed rule is that it could actually decrease safety. Many commercial customers will attempt to remain under the program threshold and thus avoid the burden of compliance. They will do so by reducing their storage capacity and arranging for more deliveries as a way to reduce onsite storage. This means the propane industry will be forced to make more deliveries, which increase the possibility of vehicular accidents and fuel handling.

For all these reasons, I do not believe that propane should be included on this

list of hazardous substances. This is not about the environment. This is about costly,

unnecessary and duplicative regulations. Finally, Mr. Chairman, I have several letters from my constituents that I would like to be included in the hearing record.

AMERIGAS,

AMERICA’S PROPANE COMPANY,

February 25, 1999.

The HONORABLE CRAIG THOMAS,

United States Senate,

Washington, DC 20510.

DEAR SENATOR THOMAS: I am a propane industry employee that is concerned

about a regulation being placed on my industry by the U.S. Environmental Protection Agency (EPA).

I work as a serviceman for AmeriGas Propane in Laramie, WY. We deliver propane to customers who use it in a variety of ways in their homes, businesses, and

farms. I am very concerned about the EPA’s rule implementing section 112(r) of the

Clean Air Act. This rule requires propane marketers and their customers who have

storage tanks containing more than 10,000 pounds (about 2,380 gallons) of propane

to prepare detailed facility information, including a hypothetical worst-case scenario.

The rules also duplicate safety rules on the State level.

My co-workers and I are taught and trained in the safe handling of hazardous

materials and do all we can to protect ourselves, our work place and our community

in every aspect of our job. We work under strict regulations at the Federal, State,

and local level, such as the NFPA Standard 58, the Liquefied Petroleum Gas Code,

published by the National Fire Protection Association and many other regulations

by OSHA and DOT.

I do not believe that adding another paperwork requirement will increase the

level of safety that I work to provide to our customers and community each and

every day. Please support legislation that recognizes compliance with NPGA 58 as

an alternative means of complying with EPA’s section 112(r) rules.

Thank you for considering my views as an employee that has to help carry out

all of the regulations and rules that Washington creates.

Sincerely,

TY BLAKE
46

V–1 OIL COMPANY,

P.O. BOX 51,

Douglas, WY, 82633, March 2, 1999.

The HONORABLE CRAIG THOMAS,

United States Senate,

Washington, DC 20510.

DEAR SENATOR THOMAS: I am writing you on behalf of over 300 employees of V–

1 Oil Company in urgently requesting your help in informing the EPA that to include propane in it’s flammable substances on the Risk Management Program is a

huge mistake for not only this company, but most all other propane marketers. Our

company delivers propane in Wyoming and 5 other western and I can assure you

that the EPA’s Risk Management Program would not and will not cover any incident which V–1 Oil Company may or could have.

The EPA’s deadline of June 21, 1999 for the completion of the Risk Management

Plan in its detailed form of a ‘‘worst case scenario’’ is very misguided due to the

costly imposition to the industry and it’s doubtful benefit. Rather, the EPA’s mandate essentially encourages an anti-safety process due to the resultant reduced

threshold level while increasing delivery rates and risks.

It is my understanding that the Risk Management Plan will cost the industry in

excess of $1 billion. Frankly, this measure could result in numerous customers

switching from clean burning propane to other forms of energy, thus costing the industry and customers billions of dollars additionally.

The Risk Management Plan does not have a potential to increase safety, nor does

it promote a cleaner environment or promote the use of alternative fuels such as

propane. In an industry which is already so heavily regulated, the Risk Management Plan will surely cripple the industry without any notable benefit to safety or

communities.

I urge you to please give your support to the removal of the flammable fuels from

the list of the Risk Management Plans covered substances and look forward to hearing from your office on any help you can render this important issue.

Sincerely,

THOMAS L. CHRISTY,

Regional Manager.

AMERIGAS,

AMERICA’S PROPANE COMPANY,

February 24, 1999.

The HONORABLE CRAIG THOMAS,

United States Senate,

Washington, DC 20510.

DEAR SENATOR THOMAS: I am a propane industry employee that is concerned

about a regulation being placed on my industry by the U.S. Environmental Protection Agency.

I work for the AmeriGas Propane Company in Casper, Wyoming We deliver propane to customers who use it in a variety of ways in their homes, businesses, and

farms. I am very concerned about the EPA’s rule implementing section 112(r) of the

Clean Air Act This rule requires propane marketers and their customers who have

storage tanks containing more than 10,000 pounds (about 2,380 gallons) of propane

to prepare detailed facility information, including a hypothetical worst-case scenario.

The rules also duplicate safety rules on the State level.

My co-workers and I are taught and trained in the safe handling of hazardous

materials and do all we can to protect ourselves, our work place and our community

in every aspect of our job. We work under strict regulations at the Federal, State,

and local level, such as the NFPA Standard 58, the Liquefied Petroleum Gas Code,

published by the National Fire Protection Association and many other regulations

by OSHA and DOT.

I do not believe that adding another paperwork requirement will increase the

level of safety that I work to provide to our customers and community each and

every day. Please support legislation that recognizes compliance with NPGA 58 as

an alternative means of complying with EPA’s section 112(r) rules.
47

Thank you for considering my view as an employee that has to help carry oul all of the regulations and rules that Washlngton creates,

Sincerely,

PAM BARRETSON.

AMERIGAS,

AMERICA’S PROPANE COMPANY,

February 24, 1999.

The HONORABLE CRAIG THOMAS,

United States Senate,

Washington, DC 20515.

DEAR SENATOR THOMAS: A short while ago I contacted your district office regard- ing a recent EPA regulation. Since a June 21 compliance deadline is fast approaching, I felt it necessary to contact you again. I am extremely proud of my company and its employees The EPA is attempting to impose a regulation on me and many of my customers that will may actually decrease safety in and will definitely increase cost. The UPS’s burdensome risk management regulations cover all facilities with more than 10,000 pounds of propane onsite. This is not a whole lot Of propose, So these

roles not only apply to my bulk storage facilities but also north of my residential

customers as well. I am now starting to get calls from many of my customers who

are reconsidering their usage of propane in light of having to comply with these regulations.

I find it ironic that EPA’s proposed rules will actually compromise safety. Many

commercial customers will attempt to remain under the program threshold and thus

avoid the burden on compliance They will do this by arranging; more deliveries as

a means to reduce onsite storage. The propane industry as a whole continues to

maintain an extremely good safety record and the new regulations will not increase

it any more, but ensure that this safety record Will be compromised.

My company is not looking to escape regulations that truly enhance the safety of

propane installations. Indeed, that is why States have incorporated NFPA 58 into

their safety regulations. I therefore urge you to enact legislation that recognizes

compliance with NFPA 58 as an alternative means of compliance with EPA’s section

112(r) rules before the pending summer deadline.

Will you please advise me if the Federal Government will exempt themselves from

complying to the RMP rules? I have a number of Federal facilities we service which

will fall under the specifications of RMP. If the Federal Government does not exempt themselves, this will surely be a large expense to the budget.

My customers and I are relying; on you for help. Thank you for your time and

if you have any questions, please feel free to contact me.

Sincerely,

RICHARD F. BELL, SALES/SERVICE MANAGER,

Casper, WY 82604

SENATOR CRAIG THOMAS,

United States Senate,

Washington, DC 20515.

DEAR SENATOR THOMAS: I would like to share with you some of my concerns over

the EPA’s regulations. As you already know my company has been in the propane

business in the State of Wyoming for over 25 years. We have never had an incident

that would be covered under the EPA Risk Management Program. We are a small

business that delivers propane to customers who use it in a variety of ways, home,

business and farms. I’m greatly concerned the EPA’s rules require propane user to

submit detailed Risk Management Plan will ultimately lead to more accidental releases not fewer.

Flammable substances like propane burn cleanly, so they’re good for the environment, and they’re handled safely because of industry standards like National Fire

Protection Association safety standard 58 and strict State regulation. I should know,

because I have to answer to my State regulators enforcing State regulations. My industry works closely with firefighter organizations to ensure the safety of our communities. I also comply with many local, State and Federal laws including SARA

title III, which is required by the EPA. Propane regulation and safety practices are

so effective that you have only one chance in 33 million of being killed in a propane

tank snuck highway accident. By contrast, you have one chance in 15 million of
48

being struck by lightning, and only one chance in 2500 of being in a car wreck that

kills someone. Of course, no one is talking about setting up a Federal risk management program for cars!

I urge you to enact changes to the Clear Air Act that makes EPA accept compliance with National Fires Protection Association standard 58 as an alternative to

Risk Management Plan compliance.

Thank you for your attention on the matter.

Sincerely,

LARRY N. GERMANN,

Ron’s LP Gas.

STATEMENT OF TIMOTHY FIELDS, JR., ACTING ASSISTANT ADMINISTRATOR FOR SOLID

WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY

Mr. Chairman, and members of the subcommittee, I am Tim Fields, Acting Assistant Administrator in the Office of Solid Waste and Emergency Response at the U.S.

Environmental Protection Agency. My office has primary responsibility for the Risk

Management Program under section 112(r) of the Clean Air Act (CAA) and Federal

implementation of several sections of the Emergency Planning and Community

Right-to-Know Act (EPCRA). I also am responsible for the Agency’s anti-terrorism

program and the associated coordination with other Federal partners, State and

local governments, and the private sector.

I am pleased to have this opportunity to present information about the importance of chemical safety, community right to know, and our plan to balance these

benefits with the continuing challenge of protecting national security.

Following the world’s largest chemical accident in Bhopal, India, Congress passed

the Emergency Planning and Community Right-To-Know Act in 1986. The law enhanced community planning and provided significant new information on chemical

handling and releases to the public. Because of the public availability of chemical

information, awareness of the potential danger from chemical use and production

has grown. We have seen many facilities take steps to implement safety practices

that prevent accidents. But much work remains to be done.

According to EPA’s Emergency Response Notification System (ERNS), more than

402,000 accidents involving hazardous chemicals were reported in the United States

in the 12 years from 1987 to 1998. These accidents resulted in nearly 4,000 deaths,

25,300 injuries, and 1,400 evacuations affecting 147,000 individuals. Eighty percent

of these accidents occurred at industrial and commercial facilities. Propane releases

are not required to be reported to our ERNS system; however, we received reports

on more than 1,000 propane accidents from 1987 to 1998. The largest amount released was 450,000 pounds and the average amount released was more than 5,000

pounds. These reported accidents resulted in 32 deaths, 259 injuries, and evacuations in 32 communities.

The core elements of process safety management required by the Risk Management Program rule directly address such accidents. Therefore, EPA expects that this

regulation will ultimately reduce the number of accidents, injuries, and fatalities.

Risk Management Program

Through passage of section 112(r) of the CAA in 1990, Congress recognized the

need for facilities to develop or improve their planning and accident prevention programs to reduce the risk of accidents and allow local communities to enhance emergency preparedness. The law also recognized that citizens should have access to information about the hazards these facilities present.

Under the chemical accident provisions of 112(r), facilities must conduct hazard

assessments, establish accident prevention programs, and bolster emergency response planning. These requirements are implemented by EPA’s Risk Management

Program regulations and are aimed at reducing the likelihood and severity of chemical releases. Facilities that are covered under these regulations must submit a Risk

Management Plan or RMP. Under the law, these plans, except for Confidential

Business Information, must be available to the public, the Federal Chemical Safety

Board, and State and local officials involved in planning for and responding to

chemical emergencies.

Under EPA’s regulatory requirements, by June 21, 1999, facilities that handle

large quantities of very hazardous chemicals will submit Risk Management Plans

to EPA for the first time. In these plans, facilities will describe how they will prevent or minimize chemical accidents and how they will promptly respond to accidents that do occur.
49

Listing Criteria

Congress told EPA to regulate at least 100 substances ‘‘which, in the case of an accidental release, are known to cause or may reasonably be anticipated to cause

death, injury or serious adverse effects to human health or the environment.’’ The

law said EPA should use, but was not limited to, the list of extremely hazardous

substances regulated under EPCRA. Furthermore, the law said EPA could modify

the list of covered substances when the Agency thought it was appropriate to do so. The law specified the criteria EPA must consider in deciding whether to list a substance under section 112(r). Those criteria are:

The severity of any acute adverse health effects associated with accidental re- leases of the substance;

The likelihood of accidental releases of the substance; and

The potential magnitude of human exposure to accidental releases of the substance.

Concerns have been raised about EPA’s decision to list flammable substances including propane, and other highly flammable substances used as fuel. EPA applied

the statutory criteria and developed a list of 77 highly toxic and 63 highly flammable substances, that, based on their intrinsic hazard and regardless of their use,

pose the greatest risk of harm to the public and the environment if they were accidentally released. In fact, accident history shows that accidental releases of several

of the listed toxic or flammable substances have had a devastating impact on the

public and the environment. Further, legislative history suggests that flammable

substances, as well as toxic chemicals and other substances, that meet the statutory

criteria for listing should be regulated under section 112(r) (see, e.g., report of the

Committee on Environment and Public Works, U.S. Senate, accompanying S. 1630,

Dec. 20, 1989, p.211, 219–20). Consequently, EPA believes that facilities that handle

these highly toxic or flammable substances must take action to prevent accidental

releases that could harm the public or the environment.

At the same time this list was published, EPA issued a supplemental notice asking for comment on whether EPA should exempt flammable substances when used

as a fuel. In particular, the Agency requested submission of any data showing that

flammable substances when used as a fuel are less hazardous than flammable substances when used for other purposes. In response to that notice, no accident data

were submitted to support such a finding, and EPA found accident data indicating

that fuels were responsible for many accidents including several that resulted in

deaths, injuries, and large scale evacuations and property damage. Propane is propane, regardless of whether it is used as a fuel or whether it is a process feedstock.

Therefore, in the final Risk Management Program rule issued on June 20, 1996,

EPA did not provide a fuel use exemption. That rule was submitted to Congress for

review under the Congressional Review Act (subtitle E of the Small Business Regulatory Enforcement Fairness Act), and Congress did not act in response to that submission.

Major Accidents

After Bhopal, the second largest industrial chemical accident in history occurred

at a propane gas terminal in 1984 in Mexico City. Ruptures in several propane storage tanks caused an accident that killed 650 individuals and left 6,400 injured. The

ruptures produced a fire ball estimated to be 1,200 feet in diameter. The heat from

the rupturing tanks and the damage from flying tank debris allowed the release of

more propane from other tanks. Some tanks weighing 20 tons skyrocketed, landing

nearly 4,000 feet away.

The United States also has experienced devastating accidents related to propane.

On New Year’s Eve 1998, an accidental propane release and fire at a facility near

Des Moines, Iowa, resulted in the evacuation of 10,000 nearby residents and the closure of a major interstate transportation route. At least seven other major accidents

occurred at propane facilities in 1998. In total, these accidents involved at least 4

deaths, 22 injuries, many thousands of dollars of property damage, community evacuations, and other offsite impacts.

The hazard associated with propane and other highly flammable substances is not

abstract or hypothetical. Accidents at propane facilities happen every year, and they

often involve causes that are directly related to poor hazard control. The core elements of process safety management required by the Risk Management Program

rule directly address such causes and prevent accidents. Risk Management Programs implemented by facilities, such as the one in Des Moines, will improve chemical safety in two ways. First, they will ensure that such facilities identify and address the hazards posed by their handling of flammable substances. Second, and

equally important, they will provide information to the public about the risk of accidental releases and facilities’ efforts to prevent and mitigate any releases. The avail-
50

ability of these plans is expected to stimulate communication among industry, local

governments, and the public to improve accident prevention and emergency response practices.

Consistent with the purpose of section 112(r), EPA provides national leadership

and assistance to communities so that they will have the tools and expertise they

need to receive, assimilate, and analyze all chemical accident prevention data, and

to take appropriate measures to reduce chemical accidents.

Compliance Assistance

EPA has labored to lessen the regulatory burden on industry and in particular

small businesses. At the same time, EPA has been mindful of the fact that even

a small business if it handles more than a threshold quantity of a hazardous chemical can have an accident that harms the public and the environment if the chemical

is not used safely.

To ease the regulatory burden on these facilities, EPA has prepared model plans

for propane users and other industry sectors, which should make compliance with

the Risk Management Program rule relatively easy. That guidance recognizes the

safety practices embodied in existing industry standards, such as the National Fire

Protection Association Standard 58, and encourages propane facilities to take credit

for those practices when implementing their risk management program and preparing their risk management plan. EPA also distributes free software that makes

preparation and submission of Risk Management Plans easy. And, EPA Regional offices hold workshops to help facilities answer compliance concerns.

EPA has also provided guidance to help small propane users determine if they are

subject to the RMP rule. Facilities with small tanks need to know when the

amounts in their tanks must be added together to determine if the facility is subject

to the rule. Tanks located close together can cause a domino effect if an accident

were to occur. The guidance provides facilities with information about safe distances. According to EPA’s information, most small users’ tanks are likely to be far

enough apart that they will not be subject to the rule. This guidance in combination

with the 10,000 pound threshold will result in the exclusion of most of these small

users.

Issues Raised

Concern has been expressed that the Agency has reached beyond the intended

scope of the Clean Air Act to regulate small businesses such as farms, restaurants,

hotels, and other small-quantity commercial propane users that use relatively small

amounts of propane. As mentioned previously, EPA believes the majority of these

small-quantity users will not be covered.

The principal intent of regulations issued under section 112(r) is to prevent and

mitigate accidents at industrial facilities that present the most risk to the public.

While accidental releases involving as little as 10,000 pounds of propane can easily

affect workers, EPA is reexamining whether such releases generally constitute a serious risk to the public beyond the fence line. However, EPA believes facilities storing large quantities of propane, such as propane distributors and other industrial

facilities, should submit Risk Management Plans. Accidents at these types of facilities have ranked among the most severe industrial accidents on record.

And, while EPA encourages use of clean burning fuels such as propane, it is a

highly flammable hazardous material and must be handled safely. Additionally, alternative fuels are likely to be regulated under other laws. EPA expects some inventory reduction to take place, but we believe that most businesses are unlikely to

switch fuels in response to the relatively modest cost of implementing the RMP rule.

We expect a small user to spend approximately $500 to comply with the rule.

Electronic Submission/Access

Next, I want to address concerns about the availability of worst-case chemical accident information on the Internet. To make RMP information more useful, EPA

was urged by our stakeholders to collect and distribute that information electronically. Our experience with Emergency Planning and Community Right-To-Know Act

implementation taught us that electronic data collection and distribution not only

would be more efficient than collecting information on paper, but also that it would

improve data quality and allow State and local governments to apply their limited

program resources to use the information to reduce chemical risks rather than to

manage the data.

On November 6, 1998, following a lengthy debate, EPA announced that on the advice of security experts at the Federal Bureau of Investigation, the Central Intelligence Agency, the Department of Defense, the Department of Justice and others,

we would not post the offsite consequence analysis data on the Internet. All other
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RMP information, except for confidential business information, will be available on

the Web.

Since November, some Members of Congress and others have expressed concern

about what is being done to prevent someone other than EPA from posting the OCA

data on the Internet. On February 10, I testified before the House of Representatives Committees on Commerce, Subcommittee on Health and Environment, and

Subcommittee on Oversight and Investigations about the issue of public disclosure

of OCA data. As I testified, the challenge before us is to determine how to provide

citizens with the data they need to make informed decisions about reducing risk,

while not providing an easy targeting tool. Therefore, the goal is to strike the proper

balance between chemical risk reduction and national security.

EPA is now engaged in an interagency process involving the Federal Bureau of

Investigation, the National Security Council, the Department of Justice, the Office

of Management and Budget and the National Institute of Standards and Technology

to explore potential ways of striking that balance. We will keep you informed as

those discussions progress.

EPA also continues to work with an advisory committee of stakeholders to identify

potential local sources of RMP data. This committee is considering using the facilities themselves, the State Emergency Response Commission, the Local Emergency

Planning Committee (LEPC), or other State and local government sources. We also

have met with the Library Programs Service of the U.S. Government Printing Office

to discuss their providing access to all RMP data at 1,300 Federal Depository Libraries nationwide.

In addition, we are developing procedures for EPA’s response to FOIA requests,

such as:

Contacting each requestor to inquire whether the individual is seeking the entire data base and describing what information already is publicly available on

the Internet, which is all RMP data except OCA;

Asking whether the RMP data base without facility identification information

would suffice;

Explaining the rationale behind EPA’s decision not to post OCA data on the

Internet; and

Asking whether providing the data in a format that would deter copying or

posting on the Internet would suffice.

EPA understands that concern over information access and the risk of terrorism

is not limited to RMPs. This, and other similar challenges will continue to present

themselves as we move further into the Information Age. EPA is positioning itself

to meet these challenges, in part, by creating a new, high-level office focused solely

on information—information technology, information management and information

policy.

Even as we complete the design of this new office, EPA is committing to better

understanding the broader issue of balancing the two important goals of encouraging health and environmental protection through public access to information and

protecting national security. EPA’s new information office will engage a broad range

of stakeholders in a dialog on this and other information issues.

Conclusion

EPA is committed to providing citizens with RMP information that will help them

work with government and industry to protect themselves, their families, and their

communities from chemical accidents and to make other informed decisions about

their lives. The Agency also is committed to providing this information in a way that

is responsible, and takes into account of the security concerns raised by the FBI and

others. We will continue to work with all interested parties to meet this challenge.

Furthermore, EPA continues to examine concerns raised to us about the regulatory burden of this rule. As I described earlier, we have responded to stakeholder

concerns by producing tailored and detailed guidance, model plans, and free RMP

software. We believe that these efforts will considerably ease the reporting burden

and expense associated with the regulation. Our goal remains to protect human

health and the environment, but we are ever vigilant that we must accomplish this

goal in the most efficient and least burdensome way.
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RESPONSES OF TIMOTHY FIELDS TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1. In a letter to 31 members of the House of Representatives Mr. Jim

Makris in your Office stated, ‘‘A business decision not to use such a chemical or to

reduce its inventory to a level below that which poses a risk to the public would

be in keeping with the purpose of the regulation itself—to reduce risk to the public.’’

This implies that the EPA has intended all along to promote fuel switching.

Response. EPA’s intention in the risk management program is to reduce risk to

the public posed by the potential accidental release of hazardous chemicals. EPA

does not intend to promote fuel switching. EPA believes that owners and operators

of regulated fuel facilities would consider a number of variables before considering

the option of fuel switching. These variables should include the costs of replacing

their current systems with a new fuel system; the regulatory requirements associated with other fuels; the impact of the other fuel on their business; and the cost

and effort associated with compliance with EPA’s risk management program.
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EPA does not believe that many propane fuel users will switch fuels when they

have considered these variables. In order to ease the cost and effort associated with

filing of risk management plans, EPA has several products designed to help propane

fuel users comply with this regulation. EPA has made available two guidance documents and model risk management plans specifically written for the propane industry to explain the requirements of the RMP. Finally, for those who want to file their

risk management plans electronically, EPA has posted free filing software on the

EPA website.

EPA also recently announced plans to raise the regulatory reporting threshold for

hydrocarbon fuels (including propane) from the current threshold of 10,000 pounds

to 67,000 pounds. The Agency believes that this new threshold would remove most

propane fuel users from having to file risk management plans. EPA intends to issue

a proposed rule raising the threshold by late May of this year.

Question a. Please provide copies of any correspondence between your Of floe and

the Of flee of Air and Radiation regarding the air quality effects of fuel switching.

Response. For the reasons explained in response to the previous question, EPA

does not believe that significant fuel switching will occur as a result of this rule.

There is no correspondence on this issue between the Of lice of Solid Waste and

Emergency Response and the Of floe of Air and Radiation.

Question b. Please explain the Agency’s position of encouraging fuel switching in

reference to the above remarks.

Response. As stated above, EPA neither intends nor believes that the risk management plan rule encourages fuel switching.

Question 2. During the hearing, we had testimony from the President’s of the

American Farm Bureau and the National Propane Gas Association contradicting the

EPA estimates of the number of facilities which will be required to report on propane. Apparently the North Carolina Department of Environmental Resources has

estimated that 11,000 farm facilities in North Carolina alone will be required to report. Please provide an updated EPA estimate of the number of propane facilities

(all types of facilities) and an explanation for the discrepancies in the estimates.

Response. The American Farm Bureau (AFB) and the National Propane Gas Association (NPGA) estimates not only contradicted EPA’s estimates, they contradicted

each other. NPGA indicated that 333,000 farms (50 percent of all propane users )

were covered by the RMP rule while AFB suggested that 66,000 farms (10 percent

of all propane users) were covered. No analytical basis for the percentages used to

derive either estimate was provided.

The North Carolina letter did not say that 11,000 farm facilities in NC would be

required to report. It said that 11,000 tobacco farms in NC use propane. The letter

did not consider EPA’s original reporting threshold of 10,000 pounds, and was written before EPA’s announced intention to raise the threshold to 67,000 pounds (the

approximate storage capacity of an 18,000 gallon propane tank). The letter also acknowledged that most tobacco farms are not inspected by the North Carolina Department of Agriculture because they do not store propane in excess of the amounts

which trigger an inspection in North Carolina. The only hard data available on propane use in North Carolina indicates that 155 farms have propane in either single

tanks of 2,000 gallons or larger or multiple smaller tanks adding up to 4,000 gallons

or more. If NPGA’s 11,000 estimate is to be believed, then 10,845 facilities in NC

must have multiple propane tanks of less than 2,000 gallons individually, and between 2,380 and 4,000 gallons aggregate capacity. EPA believes that it is extremely

unlikely that there are such a large number of facilities in this very narrow range

of configurations, and that the 155 farms stated above is probably much closer to

the actual number of covered farms in North Carolina.

Furthermore, American Petroleum Institute (API) data on nationwide annual

sales of LPG states that North Carolina consumes more propane for farm use than

any other State except Iowa. Therefore, North Carolina is not representative of average State propane use by farms.

EPA’s estimate is based on various States which represent a greater cross-section

of propane use. EPA estimated that the total number of propane users in the U.S.

covered by the RMP rule to be approximately 21,400 and the number of distributors

to be about 12,500 for a total of 33,900 facilities. These estimates are partly an extrapolation from data obtained from North Carolina, New Jersey and Texas and are

consistent with additional information received regarding the number of covered

propane facilities in other States, including Delaware, Nevada, and Oklahoma.
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RESPONSES BY TIMOTHY FIELDS TO ADDITIONAL QUESTIONS FROM SENATOR CHAFEE

Question 1. In your testimony you state: ‘‘we received reports on more than 1000 propane accidents from 1987 to 1998.’’ How many of the sites of those accidents

would be covered in section 112(r) under the Risk Management Program? Response. Data from EPA’s Emergency Response Notification System (ERNS) for the period 1987 to mid-March 1999, contains about 975 reported incidents or accidental releases involving propane. About 50 incidents were associated with transportation activities at a fixed facility while the remainder (925) involved fixed facility operations. The actual number of accidental releases is likely to be higher

(>1,000) because propane releases are not currently required to be reported to EPA

and the reports received were voluntary. Although the ERNS data does not indicate

the amount stored or handled onsite, EPA believes that at least 450 incidents occurred at facilities that would be covered by the Risk Management Program (RMP).

These incidents occurred at refineries and chemical companies (about 150) and at

companies likely to be distributors of propane (about 300 at facilities like Amerigas,

Ferrell Gas and Suburban Propane). These companies are most likely handling

quantities greater than 10,000 pounds. Most of the remaining incidents most likely

occurred at user sites and there is no way to judge the quantity handled and whether the site would be covered by the RMP.

Question 2. Gasoline is explicitly exempted from the Risk Management Program.

According to the ERNS data base, gasoline accidents have outnumbered propane accidents by nearly ten to one. As you know, the purpose of the RMP is risk reduction

and accident prevention. EPA made the point that only the most flammable substances have been included in the Risk Management Program. However, flammability is only one component of risk. It is likely that more people are exposed to potential harm by 10,000 gasoline accidents than by 1000 propane accidents. Given this,

why should propane be included in the Risk Management Program and gasoline excluded?

Response. EPA listed only those highly flammable substances having a National

Fire Protection Association (NFPA) rating of 4 because they have a higher likelihood

of generating a vapor cloud explosion that can harm the community surrounding a

facility. Substances receiving the NFPA rating of 4 are highly flammable and either

exist in gas form or rapidly volatilize into the air. Although gasoline and other nonlisted substances can readily burn and create fireballs or pool fires, they have lower

NFPA ratings (3, 2, 1) because they aren’t gases or they don’t readily volatilize and

are not as likely to create a vapor cloud explosion (please see the List Rule FR notices 59 FR 4478 and 61 FR 16598). However, certain listed flammable substances

are often mixed with gasoline (e.g. butane) especially to produce certain winter

grade gasolines. Consequently, EPA explicitly exempted from threshold quantity determination regulated substances in gasoline to clarify the threshold determination

exemption with respect to the NFPA 4 criteria.

EPA’s ERNS data base contains more reported gasoline releases because requirements under a number of environmental statutes trigger reporting of gasoline releases that are then subsequently recorded in ERNS; there are few reporting requirements for propane. Furthermore, the ERNS data base contains more reports

for gasoline, because of the far greater amount of gasoline stored and transported

in the United States. Although EPA’s ERNS data contains more reported gasoline

releases than propane releases, the sheer number of releases does not equate directly to exposure. Propane releases constitute a greater risk of offsite exposure

than do gasoline releases because gasoline does not readily volatilize into the air

in a spill; consequently fewer offside gasoline exposures will occur in comparison to

propane. In events where fires occurred as a result of a gasoline spill, the effects

of the fire were mostly confined to the site where the spill occurred. However, in

large scale propane accidents in which explosions or fires occur, the magnitude of

damage and exposure (deaths, injuries, evacuations, loss of buildings and businesses) or potential for damage and exposure is greater than for gasoline because

of propane’s flammability and ability to create a more powerful explosion.

Finally, although gasoline and other less flammable substances are not covered

by the RMP rule, owners and operators of facilities handling these substances still

have a general duty obligation under the Clean Air Act to understand the hazards,

design and operate a safe facility, prevent accidents, and mitigate the consequences

of accidents when they do occur (see section 112(r)(1) of the Clean Air Act).

Question 3. The EPA indicated facilities could avoid the need to make submissions

under the Risk Management Program rule by separating tanks that are manifolded

together and/or by reducing the volume of propane stored onsite at any one time.

This could result in a large increase in the number of propane transfers as tanks

run low more frequently and newly separated tanks will require multiple transfers.
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Since there are likely to be more transfers to comply with the standards what has

the EPA done to assess the risks associated with such transfers?

Response. EPA published guidance which indicates that facilities could avoid the

need to comply with the RMP rule if smaller tanks were already separated. EPA

noted that some facilities may choose to use this guidance to make the decision to

separate their tanks, and cautioned that such actions be done in accordance with

applicable standards. In regard to reducing the volume stored onsite, EPA simply

clarified the existing criteria for applicability under the RMP rule, which is based

on actual amount in a process, not maximum storage capacity. If the quantity used

in a large storage tank is already less than the capacity of the tank and below the

threshold quantity, then the process is not covered. Some propane handlers were

misinformed and aggregated the quantities in all propane storage tanks on a site

regardless of where they were located and they used the maximum capacity of the

vessel rather than actual volume handled to determine whether they were subject

to the rule. This clarification was provided to those handling propane who didn’t realize their situation is such that they are not covered. Since EPA is promoting risk

reduction and prevention of catastrophic accidents through the risk management

program and plan, we believe that decisions to modify a facility that ultimately increase the risk of an accidental release primarily to avoid compliance with a rule

violate the general duty clause of the CAA. The risks of such a move are the responsibility of the business owner and are neither promoted by EPA nor required by the

risk management program rule. However, the risk management program and plan

is a way for the business owner, employees, first responders and the community to

better understand the risks and the means to reduce those risks so that the right

decisions can be made. Many business owners have already successfully demonstrated their ability to manage the risks associated with the use and handling of

a wide variety of highly hazardous substances.

Question 4. It’s anticipated that, to comply with this rule, many propane users

would switch fuels. Many propane users may switch from propane to more polluting

substances such as fuel oil. Has the Office Solid Waste and Emergency Response

worked with the Office of Air and Radiation to determine the air quality effect of

fuel switching?

Response. EPA’s intention in the risk management program is to reduce risk to

the public posed by the potential accidental release of hazardous chemicals. EPA

does not intend to promote fuel switching. EPA believes that owners and operators

of regulated fuel facilities would consider a number of variables before considering

the option of fuel switching. These variables should include the costs of replacing

their current systems with a new fuel system; the regulatory requirements associated with other fuels; the impact of the other fuel on their business; and the cost

and effort associated with compliance with EPA’s risk management program.

EPA does not believe that many propane fuel users will switch fuels when they

have considered these variables. In order to ease the cost and effort associated with

filing of risk management plans, EPA has several products designed to help propane

fuel users comply with this regulation. EPA has made available two guidance documents and model risk management plans specifically written for the propane industry to explain the requirements of the RMP. Finally, for those who want to file their

risk management plans electronically, EPA has posted free filing software on the

EPA website.

For these reasons, EPA does not believe that significant fuel switching will occur

as a result of this rule. There is no correspondence on this issue between the Office

of Solid Waste and Emergency Response and the Of lice of Air and Radiation.

EPA also recently announced plans to raise the regulatory reporting threshold for

hydrocarbon fuels (including propane) from the current threshold of 10,000 pounds

to 67,000 pounds. The Agency believes that this new threshold would remove most

propane fuel users from having to file risk management plans. EPA intends to issue

a proposed rule raising the threshold by late May of this year.

RESPONSES BY TIMOTHY FIELDS TO ADDITIONAL QUESTIONS FROM SENATOR GRAHAM

Question 1. How many propane accidents have occurred since 1990?

Response. Data from EPA’s Emergency Response Notification System (ERNS) for

the period 1990 to mid-March 1999, contains about 790 reported incidents or accidental releases involving propane. About 40 were transport related while the remainder (750) were at fixed facilities. The actual number of accidental releases is

likely to be higher because propane releases are not currently required to be reported to EPA.
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EPA also collected information on 45 serious accidents (only 5 are included in ERNS) involving propane that occurred during the 1990’s, identified from U.S.

Newspapers. Accidents that occurred during transportation or involving small quantities that would not be covered by the risk management program rule were not included in this tabulation.

Question 2. What types of damages did those accidents cause? Response. Some of the incidents resulted in fires and explosions which caused

damage ranging from minor to complete loss of the building, business, equipment

and vehicles worth millions of dollars. More importantly, 8 workers and first responders (firefighters) lost their lives, 122 were injured and thousands had to be

evacuated from their homes and places of business.

Question 3. What percentage of the total number of propane storage sites would

you say have accidents on an annual basis?

Response. Since accidental releases of propane are not currently required to be

reported to EPA, the number of accidental releases that annually occur as a percentage of the total number of storage sites cannot be determined. As explained in response to question 1, EPA believes that the actual annual number of propane releases is higher than the number EPA has compiled based on reports to EPA’s

ERNS.

Question 4. I understand that one of the points of contention between EPA and

the propane industry is the cost for distributors to comply with this regulation. EPA

contends that $50-$250 is an accurate estimate. On what factors are those cost estimates based? The propane industry contends that the true cost is between $1,000

and $8,000 per customer. How do you account for this discrepancy?

Response. EPA does not contend that $50-$250 is an accurate estimate for the average cost for propane distributors to comply with the regulation. EPA’s economic

analysis for the RMP rule showed that Program 2 non-manufacturing facilities in

general (propane distributors fall in this category) would likely spend between $231

to $1679 to prepare an RMP and supporting onsite documentation, assuming the facility was in compliance with existing codes, standards, and industry safety practices. Furthermore, in legal documents submitted to the DC Circuit Court of Appeals, National Propane Gas Association (NPGA) representatives made sworn statements that they estimated the average cost for the propane industry to comply with

the RMP rule at $1000 (rather than $1,000 to $8,000). Based on these estimates,

there is not a significant discrepancy between the EPA and NPGA numbers.

STATEMENT OF ROBERT M. BURNHAM, CHIEF, DOMESTIC TERRORISM SECTION,

FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF JUSTICE

Good morning Mr. Chairmen and members of the committee my name is Robert

M. Burnham, and I am the current Chief of the Domestic Terrorism Section at FBI

Headquarters. My current responsibilities include national oversight and management of the Domestic Terrorism Operations, Weapons of Mass Destruction and Special Events Management Programs. I previously served as the Assistance Special

Agent in Charge (ASAC) of the Memphis Field Office of the FBI. I am pleased to

have this opportunity to discuss the potential effects of electronic dissemination of

chemical ‘‘worst case’’ scenarios’’ data as detailed in section 112(r) of the Clean Air

Act of 1990 (CAA).

The CAA mandates that chemical facilities provide to EPA a Risk Management

Plan (RMP), detailing their risk prevention mitigation plans. It encompasses the Off

Site Consequence Analysis data which includes the Worst Case Scenario data for

both toxic and flammable materials. The data requires distance to end point and

population affected calculations which detail the size of a plume from a release and

the potential population affected by the plume.

The FBI is aware of the need to aggressively pursue environmental crimes, and

fully supports the Clean Air Act (CAA) and the spirit of the Community Right to

Know legislation. We understand the competing issues at stake here, between providing the necessary information to the community, which allows them to make informed decisions on local planning and preparedness issues, and limiting the risk

associated with the distribution of information that can be used against those same

communities in a criminal manner. The FBI has worked with the EPA to identify

those sections of the Risk Management Plans (RMP) that we believe can be directly

utilized as a targeting mechanism in a terrorist or criminal incident.

By way of background, on December 14, 1997, representatives of the FBI were invited to a meeting at the EPA. It was at this time that the FBI first became aware

of a plan by EPA to post the RMP, including the ‘‘Worst Case Scenarios’’, on the

Internet. The FBI contacted other Federal law enforcement and intelligence agen-
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cies, as well as the Environmental Crimes and Terrorism Violent Crimes Sections

of the Department of Justice, to discuss issues raised by the EPA’s Internet distribution plans.

Of great concern to the FBI at the time, was a case in 1997 case that highlighted the potential danger associated with a criminal attack on a chemical facility. The

FBI case, code named SOURGAS, involved four KKK members who plotted to place

an improvised explosive devise on a hydrogen sulfide tank at a refinery near Dallas,

Texas. The FBI was able to infiltrate the group prior to the attack. A surveillance

tape shows two of the subjects discussing the potential death of hundreds of area

residents. At one point when the discussion turned to the children who may have

become victims, one subject turned to her husband and said ‘‘if it has to be. . . it

has to be’’. This cold blooded killing was to take place merely as a diversion for an

armored car robbery the group intended to commit on the other side of town.

Although these individuals did not use the Internet to attack this facility, it illustrates a growing concern that individuals and groups are willing to utilize unconventional methods to achieve their goals and in the process, cause large numbers

of casualties. This real life incident highlights better than any scenario we could create, how worldwide unfettered electronic access to this information could be used

to facilitate a criminal or terrorist attack in the United States.

The FBI applauds the gains made in accident prevention since the inception of

the CAA and encourages the cooperation between industry and the communities

that has brought about this reduction. We believe that providing this information

to the communities in the appropriate manner contributes to an increase in safety

in those neighborhoods. Through our discussions over the past year with the EPA,

other Federal agencies and affected parties, the FBI has arrived at initial recommendations which we believe balance these concerns and give the communities,

State and local agencies and the academic and research communities, appropriate

access to this information. Those recommendations were provided to Congress in a

report submitted by the FBI in October of last year.

However, the FBI continues to work with EPA and other interested Federal agencies as part of an interagency group on how to achieve the appropriate balance between protecting the public from terrorist attacks and making RMP information

available to the public. For example, representatives from the National Infrastructure Protection Center (NIPC) have met with EPA representatives and discussed options for secure transmission of the RMPs to State and local government agencies.

There is concern that certain groups and individuals will acquire the information

through lawful means and post it in its entirety on private Internet sites. The FBI

as part of the interagency group has met to discuss this issue. Although this issue

is currently under discussion by the interagency group, the FBI is concerned that

under FOIA laws the RMP information, to include the Worst Case Scenario information, would have to be provided in electronic format if available . If that is the case,

groups or individuals could acquire the information in this manner and reproduce

it on the Internet. The net effect would be that these groups would undermine all

of the efforts of the many agencies who have worked to bring a responsible approach

to the dissemination of this information.

The Internet provides fast and inexpensive methods for disseminating educational

information and has the potential to be a tremendously positive force in the future.

However from a terrorist threat analysis, providing unfettered electronic access to

this type of information on the Internet could have disastrous consequences. The

worst case scenario data alone, does not contain all the information necessary to

carry out a terrorist attack, however in conjunction with the numerous sites already

available on the Internet containing ‘‘how to’’ literature on bomb making, surveillance/counter surveillance and terrorist tactics and devices , it adds to the arsenal

of potential criminals.

Mr. Chairman, thank you for the opportunity to appear before you today. I would

be happy to answer any questions you may have.

RESPONSES BY ROBERT M. BURHAM TO ADDITIONAL QUESTIONS FROM SENATOR

LAUTENBERG

Question 1. New Jersey has several large chemical plants. If Risk Management

Program’s Right to Know program did not go forward, could you guarantee that

there would be no terrorist attacks on these chemical plants.

Response. The FBI has repeatedly stated that we fully support the Community

Right to Know program and are convinced that this program has contributed significantly to the gains made in accident prevention and chemical safety over recent

years. The FBI encourages the cooperation between industry and the communities
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that have brought about this success. We believe that providing this information to

the communities in the appropriate manner contributes to an increase in safety in

those neighborhoods. The FBI was asked to give a security assessment of the EPA’s

plan to disseminate the entire Risk Management Plan (RMP) on the Internet. It was

the FBI’s suggestion that the sections 2, 3, 4 and 5 of the RMP, which contain the

Worst Case Scenario data, not be made available on the Internet. The FBI however

has supported the Internet distribution of the majority of the RMP information, and

has suggested alternative methods for disseminating the Worst Case Scenario information.

There is no way to predict the future target of a terrorist attack. The FBI at- tempts to prevent terrorism incidents through ongoing investigations and by vigorously pursuing indications of terrorist and criminal activities in the United States.

However there is no way to guarantee the safety of the all of the private facilities

in the United States from terrorist or criminal attack.

Question 2. Assume the Right to Know program doesn’t exist, but that a terrorist finds a chemical plant by driving by one or looking in the phone book. Do you believe that the average chemical plant in the country is sufficiently protected by terrorist attack?

Response. The FBI has not done any study or research to determine the state of security of chemical facilities within the U.S. FBI Headquarters has instructed the

Field Offices to contact major chemical facilities in their area and establish lines of

communication with facility operators to encourage reporting of potential criminal

activity to the FBI. This is not a formal study and no security assessment has accompanied this liaison.

Question 3. Are there measures we should take, such as increasing site security, ‘‘hardening’’ hazardous operations from bombing attacks, or banning certain chemical operations from being located near residential areas, schools, or major roads. Response. As stated earlier, the FBI has not conducted any study to determine the current state of security at chemical facilities, and as such the FBI is not in

a position to make specific recommendations regarding security at chemical facilities. In general however, the FBI is supportive of any measures which [NOTE: The

written response to this question is incomplete in the committee record.]

RESPONSE BY ROBERT BURNHAM TO AN ADDITIONAL QUESTION FROM SENATOR

GRAHAM

Question. Are there any alternative distribution mechanisms for risk management information that in any way reduce the likelihood that risk management information would be used to design a terrorist attack? Response. In previous responses to Congress the FBI has discussed recommenda- tions that we believe would limit the utility of the Risk Management Plans (RMP)

as a targeting tool. These recommendations are: The RMPs, minus the OCA data, would be available on the Internet. This would

eliminate the targeting potential. This would however provide individuals with registration information regarding facilities in their area, Five Year Accident History,

Prevention Programs, and Emergency Response information. This would be available in an open format.

State and local government agencies would have access to all national RMP data via a closed computer system. This system may have resource implications involved,

however, this will allow for up to date immediately available information to first responders and emergency planning agencies while protecting the information from

improper dissemination. A compact disk (CD) of the information could be created for research and environmental organizations with all of the comparison data, without the identifying or contact information. This would allow for national trends to be analyzed and nationwide data to be studied, but would alleviate the potential for targeting of particular

facilities based on this information.

By implementing these methods, we believe that the appropriate parties will have

access to the information necessary while limiting the potential for criminal use of

this information.

STATEMENT OF DEAN KLECKNER, AMERICAN FARM BUREAU FEDERATION

Good morning, Mr. Chairman. I would like to thank you and the other members

of the subcommittee for holding his hearing. I am Dean Kleckner, a hog and soybean farmer from Rudd, Iowa, and I serve as the President of the American Farm

Bureau Federation, the nation’s largest agricultural organization.
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As you know, Mr. Chairman, propane is an important commodity in rural America. It can be found on 660,000 farms and is widely used in various agricultural applications. These include crop drying, heating of livestock facilities, operation of crop

protection devices (wind machines) and a host of residential uses. Each year, approximately 1.5 billion gallons of propane are used for agricultural purposes.

Demand for propane by farmers is driven by a number of factors. Most farms are

located in areas beyond the reach of the gas lines that serve the typical urban

consumer. Propane, while indeed a gas, is safely transported and stored as a liquid

when subject to a modest amount of pressure. This characteristic is what allows

farmers to enjoy the economic and environmental benefits of gaseous fuels.

We strongly oppose the inclusion of propane as a covered substance subject to the

Environmental Protection Agency’s Risk Management Program (RMP). In deciding

to regulate propane under this program, we believe EPA failed to consider the significant adverse effects which these regulations will have on hundreds of thousands

of farmers nationwide.

Adverse Safety Consequences

By adopting section 112(r) of the Clean Air Act Amendments of 1990, Congress

specifically sought to reduce the risks associated with the accidental and catastrophic release of toxic chemicals. It is our strong belief that the original intent of

Congress was to address substances used in manufacturing processes or other chemical applications, rather than those used as a fuel source. Unfortunately, EPA’s decision to include propane, coupled with its decision not to grant a fuel-use exemption,

has the effect of extending these regulations to consumers who use comparatively

small volumes of this covered substance.

The RMP rules require farmers and other propane users with more than 2,358

gallons of propane storage to complete and file risk management plans by June 21,

1999. While larger agribusinesses might have greater storage, a typical installation

on a small farm would likely consist of anywhere from two to five 1000-gallon propane tanks or containers piped together. Having only three such cylinders would

bring the farmer under the requirements of the RMP program.

It is wrong to confront agriculture with new regulatory burdens and resulting

compliance costs that are vague, misleading and fail to achieve the stated purpose

of protecting the public safety. It is understandable that a significant percentage of

users will try to lawfully avoid the burden of compliance by limiting their volume

of onsite storage. This could be accomplished by simply instructing their propane

supplier to reduce delivery volumes to an amount below the program’s threshold

level (2,385gallons). However, this will result in a significant increase in the number

of propane deliveries.

Although propane has a proven safety record, there is, in fact, some degree of risk

associated with the storage and handling of any flammable fuel. Government agencies that are knowledgeable about flammable fuels understand that the risks associated with the transportation of flammable fuels are considerably higher than those

associated with stationary storage. The RMP compromises safety because it shifts

the emphasis from low risk stationary storage to the higher risk category of transportation.

EPA’s own incident data base of 157 incidents dating back to 1951 confirms this

point. Of the 31 incidents listed involving sites over the threshold level, 15 of them

were related to transportation. None of the events listed could be confirmed to have

involved the release of product from a stationary source located on a farm. It is at

best ironic that a rule intended to reduce the risks of accidental releases will, in

practice, result in an increase in the number of such incidents.

Distribution Disruptions

A significant increase in the number of deliveries also will lead to serious fuel distribution difficulties, thus placing an additional burden on America’s farmers. The

propane distribution infrastructure is unique because of its cyclical nature. Demand

for propane increases dramatically with the onset of the fall crop-drying season and

continues throughout the winter season. At the end of the peak-heating season, demand for the product falls as precipitously as it rose several months prior. Seasonal

fluctuations in demand mean that propane’s distribution infrastructure is vastly

underutilized for several months of the year. In the remaining months, however, the

distribution infrastructure strains to meet the needs of seasonal customers.

Subjecting propane to the requirements of RMP will increase the number of winter deliveries, thereby placing added pressure on an already overburdened infrastructure. The availability of this important commodity will be untimely and unnecessarily limited. This situation will be exacerbated by the winter driving conditions

that are beyond the control of either the farmer or his propane supplier. This season
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alone, 15 States have issued emergency waivers relaxing Federal hours-of-service

regulations as a way to prevent interruptions in fuel deliveries brought on by winter

driving conditions.

Regulatory Duplication

Too often new Federal regulations are promulgated in a vacuum. They are considered as stand-alone requirements, rather than part of a comprehensive quilt of overlapping safety measures. Unfortunately, this is the case with EPA’s Risk Management Program as it applies to propane. EPA appears to take the position that an

industry is unregulated unless it is doing the regulating. The agency has failed to

consider the vast extent to which propane is already regulated at the Federal, State

and local levels. It failed to take into account the fact that propane installations are

designed, constructed and maintained in accordance with the standards for the safe

storage and handling of propane established by the National Fire Protection Association (NFPA). These standards have, in fact, served consumers well as a safe and

effective accident prevention program.

EPA’s failure to give credence to existing safety standards violates the Federal

standards adoption policy. The National Technology Transfer and Advancement Act

of 1995 stipulates that ‘‘all Federal agencies and departments shall use technical

standards that are developed or adopted by voluntary consensus standards bodies,

using such technical standards as a means to carry out policy objectives or activities

determined by the agencies and departments.’’

Had NFPA and EPA sought to work with stakeholders to improve that standard

to achieve its goals, we would not need to be here today.

Non-conformity with Other Clean Air Act Provisions

Congress understood the importance of avoiding duplication and ensuring crossagency conformity when it passed the Clean Air Act Amendments in 1990. Section

112(r) of the act authorizes the establishment of two companion programs dealing

with onsite and offsite consequences. Authority for the workplace program (i.e., onsite consequences) was granted to the Occupational Safety and Health Administration of the U.S. Department of Labor; authority for programs relating to offsite and

environmental consequences was granted to EPA.

Mindful of the need for uniformity, Congress specifically instructed EPA ‘‘to consult with the Secretary of Labor and the Secretary of Transportation and shall coordinate any requirements under this paragraph with any requirements established

for comparable purposes by OSHA or DOT.’’

In 1992, OSHA established its onsite program known as the Process Safety Management Program (PSM). In doing so, it granted a fuel use exemption. Consumers

who use covered substances as fuel sources are not required to comply with PSM

requirements. EPA, when faced with the same option on its RPM, decided to oppose

such an exemption. We believe it took this action in direct violation of the clear language of the statute.

Furthermore, section 112(r) specifically authorizes an exemption for anhydrous

ammonia, a toxic chemical, when used for agricultural purposes. Considering that

propane, unlike anhydrous ammonia, is non-toxic, it is baffling that EPA chose to

list propane under RMP.

Burden of Compliance

The Risk Management Program is complicated and highly technical. Risk management plans, which must be filed by June 21, 1999, are based on complex chemical release models. The Final Rule published by the EPA in June 1996, is 62 pages

in length. EPA’s guidance document for propane users is 24 pages. The general

guidance document for risk management plans is 2 inches thick. With your permission, Mr. Chairman, I would like to introduce a copy of these documents into the

record.

We are aware of EPA’s contention that in the final analysis, risk management

plans will be only a few pages in length. We believe this is akin to arguing that

a Federal income tax filing is only a few pages in length. Their analogy fails to acknowledge that it will take dozens of hours to collect and organize the appropriate

data before a relatively brief plan can be completed.

Because of the highly technical nature of the program, we believe that most covered farmers will find it necessary to contract with RMP service providers in order

to meet their obligations under the rules. It is our understanding that the propane

industry has compiled a list of vendors and the average cost of completing a risk

management plan will be several thousand dollars per site. Even if only 10 percent

of the 660,000 farm users of propane are required to file a plan, the total cost to

the farm economy could exceed $100 million.
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While it is likely that many rural propane users will fall into the least rigorous compliance category (Program 1), the economic impact will remain high since a significant up-front cost will be incurred to determine the appropriate program level.

Farmers who ultimately qualify for Program 1 coverage will still be required to complete a detailed offsite consequence analysis to determine their eligibility for this

program level. It is quite clear that EPA failed to understand the full implications of its decision

to include propane customers. EPA estimates that 66,000 sites are covered under

RMP nationwide and that 28,000 (42 percent) of those sites involve propane. In

stark contrast to EPA’s calculations, the North Carolina Department of Environment and Resources estimates there are 11,000 covered farm sites in that State

alone!

State of Farm Economy

Much has been said in recent months about economic conditions affecting the av- erage farmer. Those of us who are involved in agriculture know that times are

tough. We farmers and ranchers are willing to tackle those tough times, but now

is not the time to place a $100 million compliance burden on farmers.

EPA’s Modest Proposals

We understand that in recent weeks EPA has recognized that its estimate of the number of affected farms was severely low. We appreciate and welcome EPA’s overtures and believe they suggest a willingness to reduce the burden which the RMP

rules place on farmers. We are concerned, however, that the proposals floated to

date do not sufficiently address the issues presented in our testimony. EPA is apparently willing to consider altering the program guidance documents to address distances of non-interconnected tanks for the purpose of making threshold determinations. The relief provided by this action would be negligible since a

substantial percentage of farm installations include multiple interconnected cylinders. Furthermore, regulatory guidance is not a substitute for regulatory text.

EPA’s current guidance document states, ‘‘This document does not substitute for

EPA’s regulations, nor is it a regulation itself. Thus, it cannot impose legally binding requirements on EPA, States, or the regulated community, and may not apply

to a particular situation based upon circumstances. This guidance does not represent final agency action, and EPA may change it in the future, as appropriate.’’

We are troubled by the fact that EPA could indeed change its guidance without

the benefit of notice and comment.

Conclusion

I appear before this committee on behalf of the hundreds of thousands of farmers

now caught in this regulatory dragnet. In keeping with that responsibility, I would

ask your indulgence to include in the record letters from 17 agriculture organizations whose views support the testimony I have given here today.

In summary, Mr. Chairman, EPA’s Risk Management Program as it pertains to

propane is unsafe, contrary to the environmental goals established by the Clean Air

Act, and will adversely affect hundreds of thousands of farmers nationwide. We urge

this committee to act quickly to avoid these consequences before the June 21 deadline.

STATEMENT OF JIM BERTELSMEYER, NATIONAL PROPANE GAS ASSOCIATION

My name is Jim Bertelsmeyer and I am chairman of Heritage Propane,

headquartered in Tulsa, Oklahoma. In my real life I run a propane marketing company, but I appear before you today as President of the National Propane Gas Association.

NPGA is the national trade association representing the propane gas industry.

The association’s membership includes around 3,700 companies that market propane gas and equipment in all 50 States and in every congressional district. The

single largest group of members are retail marketers of propane gas, but the association also includes propane producers, transporters, manufacturers and distributors of equipment, containers, and appliances. Propane is used in over 18 million

installations nationwide for home and commercial heating and cooking, in agriculture, in industrial processing, and as a clean air alternative engine fuel for both

over-the-road vehicles and forklifts.

As strong advocates for increased alternative fuel usage in the United States,

NPGA supported many of the goals and provisions of the Clean Air Act Amendments of 1990 and the Energy Policy Act of 1992. We continue to support the intent

of these laws, but we cannot support the way in which they are being abused by
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the EPA. The unintended consequences of implementing the section 112(r) of the

Clean Air Act in ways never envisioned by Congress have led us to this situation

today.

My statement today focuses on the many concerns the propane industry has with

EPA’s Risk Management Program (RMP) regulations, issued under authority of section 112(r) of the Clean Air Act Amendments of 1990. Our concerns are that EPA’s

rules will:

duplicate an extensive and credible safety infrastructure that has existed for

decades in all 50 States without exception through State building and fire codes;

reduce safety in the propane industry by causing customers to demand more

small deliveries rather than the safer alternative if fewer large deliveries;

degrade air quality by stifling development of propane use as an alternative

fuel; cause propane users to switch to less environmentally desirable fuels not

similarly covered; and

cost the propane marketers and customers vast sums of money for little or no

increase in safety.

The remainder of this statement provides additional information supporting these

concerns.

PROPANE FACILITIES ARE ALREADY CLOSELY REGULATED AT THE STATE AND FEDERAL

LEVELS

Propane facilities, whether they be bulk storage plants owned by marketers or

smaller storage facilities operated by customers, are subject to regulation in all 50

States through building and fire codes. These codes without exception adopt or incorporate Safety Standard 58, Liquefied Petroleum Gas Code, published by the National Fire Protection Association (NFPA).

NFPA 58 is adopted by State agencies either by reference or by direct incorporation. Forty-eight States have adopted NFPA 58 by reference, which means that the

State agency’s rules simply require propane facilities to be designed, constructed,

and operated in accordance with NFPA 58. The remaining two States (Texas and

Arkansas) have adopted NFPA 58 by direct incorporation, which means that they

have taken the substance of the standard and written it into their own building or

fire codes. Both methods allow for code inspectors to determine compliance with

NFPA 58, thereby ensuring they are operated as safely as possible.

As a service to its members, NPGA recently published a new edition of the State

Laws and Regulations Handbook, which summarizes the status of propane regulation in all 50 States. A copy of that document is attached to this statement for incorporation in the record.

The propane industry also complies with the following Federal regulations:

DOT’s hazardous materials regulations, which as of October 1, 1998 apply to both

interstate and intrastate operations; OSHA’s workplace safety rules, including the

Process Safety Management (PSM) rules where applicable; and EPA’s rules implementing the Emergency Planning and Community Right-to-Know Act of 1986 which

requires facility data to be available to emergency responders and to the public.

PROPANE MARKETERS ACTIVELY PROMOTE SAFETY

The propane industry takes its safety responsibilities very seriously. Indeed,

NPGA is now engaged with numerous other stakeholders in a major DOT regulatory

proceeding that promises dramatic increases in safety. NPGA is proud to be an active participant in a negotiated rulemaking committee charged with updating delivery truck safety features and operating procedures for the safe unloading of propane

at the customer’s tank. The results of this reg-neg will be a significant jump in safety taking full advantage of both new technologies and the industry’s commitment

to safety.

The propane industry voluntarily spends significant time and money training

local fire departments all over the nation. Emergency responders need to be as highly trained as possible, and we are putting our money where our mouth is. This industry is spending $652,000 on the national level this year alone to develop a comprehensive training curriculum for emergency response personnel, which should be

available for free later this summer. Furthermore, through the national association,

we are adopting the safety recommendations of the U.S. Chemical Safety Board to

upgrade the training materials available to the emergency response community.
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HISTORY OF SECTION 112(R) AND EPA’S RISK MANAGEMENT PROGRAM RULES

On November 15, 1990, President Bush signed the Clean Air Act Amendments of 1990 into law. Section 112(r) of the Act requires EPA to publish regulations to prevent and minimize the consequences of accidental releases of hazardous substances.

EPA was to publish a list of at least 100 hazardous substances and implement a

program whereby facilities using listed substances would make detailed risk management plans available to EPA and the public. EPA finalized its list of substances,

which included propane, on January 31, 1994, and its Risk Management Program

(RMP) regulations applicable to listed substances on June 20, 1996. Since NPGA

comments were largely ignored by the Agency in both rulemakings, NPGA sued on

August 18, 1996 seeking relief from the regulations. The RMP regulations establish three increasingly rigorous compliance paths for facilities having listed hazardous materials onsite in greater than threshold quantities. For propane facilities, the threshold quantity is 10,000 pounds or 2381 gallons

at 60 degrees Farenheit. EPA’s RMP rules cover all facilities, whether they be industrial, commercial, agricultural, or residential, having more than the threshold

quantity of 10,000 pounds of propane onsite. The propane need not be in a single

tank, or even in interconnected tanks. 2381 gallons of propane is typically the

amount that a small commercial facility would have, although there are many residences that have this amount.

Program 1 participants must develop a worst-case scenario and analyze all re- leases over the past 5 years, and coordinate emergency efforts with local responders.

Propane marketers will qualify for Program 1 if their worst-case scenario demonstrates that there are no ‘‘public receptors’’ within range of the worst case scenario and if their 5-year accident history shows no deaths, injuries, or offsite restoration activities. The term ‘‘public receptor’’ means offsite residences, institutions

such as schools and hospitals, industrial, commercial and office buildings, parks, or

recreational areas inhabited or occupied at any time without restriction where members of the public could be exposed to radiant heat or overpressure as a result of

an accidental release.

Program 2 requires more detailed hazard assessments and implementation of pre- scribed accident prevention steps. Program 2 participants must prepare at least one

alternative release scenario that is more likely to occur than a worst case scenario.

In addition, Program 2 participants must: (1) ensure that up-to-date safety information is available; (2) conduct a detailed hazard review of each facility; (3) prepare

written operating procedures; (4) ensure each employee has been trained in the operating procedures; (5) maintain the mechanical integrity of all equipment; (6) complete compliance audits every 3 years; and (7) investigate each incident. Program 3 is the most rigorous and will affect those propane marketers who are covered by OSHA’s Process Safety Management (PSM) regulations (i.e., do not qualify for the retail exemption). Program 3 facilities must perform the same tasks as

Program 2 facilities plus many others that are analogous, but not necessarily identical, to OSHA’s PSM requirements.

The Clean Air Act imposes both civil and criminal penalties for violations of EPA

rules. For civil violations, EPA may impose monetary penalties of no more than

$25,000 per day per violation. For knowing violations of the Act, criminal monetary

penalties of up to $25,000 per day per violation and/or up to 5 years in prison may

be imposed.

EPA’S RULES WILL DEGRADE SAFETY AT PROPANE FACILITIES

EPA’s regulations, despite its ‘‘motherhood and apple pie’’ sounding requirements,

will have unintended consequences that actually reduce safety. The unfortunate

thing is that these unintended consequences are entirely foreseeable.

It goes without saying that many propane customers will seek to reduce the

amount of propane they store to levels below the 10,000 pound threshold for coverage by the RMP rules. This will not, however, reduce customers’ demands for

timely deliveries of propane from their suppliers. Therefore, one of the major unintended consequences of EPA’s RMP rules will be that propane delivery will be made

much less safe. And since the industry’s busiest time is during the winter heating

season, these trucks will also have to deal with winter driving conditions that can

be particularly challenging.

Not only will customers decide on their own to keep their storage low or switch

fuels, they will be counseled or actually forced to do so by government agencies. Two

particular cases have arisen in California. First, the Orange County Certified Unified Program Agency stated in a letter to businesses, ‘‘Should your business so

choose, you may implement one of the following options in lieu of developing an

RMP: (1) Eliminate or replace the Regulated Substance with a non-regulated sub-
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stance, or (2) Reduce the amount onsite to below the Federal threshold quantity.’’

Second, California Assembly Bill 172 was introduced by Assembly Member

Firebaugh on January 15, 1999. The bill would prohibit after January 1, 2000 any

person from commencing any process involving propane or any other regulated substance that is located adjacent to a school. Notwithstanding the fact that the bill

lumps propane—a non-toxic substance—in with many other exotic and lethal toxic

substances, many schools use propane themselves and will therefore be forced to

switch to other fuels.

Fuel switching is a reality. New information from the North Carolina Propane

Gas Association shows that propane marketers in the State have already lost 213

customers, which is a demand loss of almost 5 million gallons. Furthermore, 360

customers are expected to downsize their storage capacity to avoid compliance.

While the industry prides itself on its excellent safety record, accidents do occasionally happen. But more often than not accidents are caused by or occur during

transportation activities, which are not covered by the RMP rules. EPA’s own data

demonstrate that many more accidents occur during transportation than when propane is held for storage at a stationary site covered by the RMP rules. Conversely,

EPA’s data shows that (1) only a small minority of incidents occur at facilities targeted by the RMP rules, and (2) the majority of incidents are related to transportation activities not covered by the RMP rules.

NPGA reviewed the data that EPA placed in the RMP rule docket to justify its

decision to cover propane. The EPA data obtained by NPGA is an undated printout

of 112 incidents logged by the Major Hazard Incident Data Service (MHIDAS) and

52 pages of reprinted news articles covering propane incidents. EPA’s data includes

incidents going all the way back to 1951, and even includes an incident from Japan.

Of the 157 incidents reviewed:

Only 31 incidents (19 percent) could be confirmed to have occurred at what would

have been an RMP-covered facility. Of the remaining incidents, 89 incidents (57 percent) could be confirmed to have occurred at a facility not covered by the RMP rules.

The record was too incomplete to make a judgment on 37 incidents.

Of the 31 incidents that occurred at RMP-covered facilities, only 16 incidents

could be confirmed to have not been caused by or during transportation activities.

Of the 16 non-transportation related incidents at RMP-covered facilities, only 11 incidents (7 percent) could be confirmed to have had offsite consequences. This is a

critical figure because prevention of offsite consequences is the fundamental reason

for the entire RMP regulation. Moreover, offsite consequences included such purely

precautionary measures as evacuations, so actual damage did not occur in all cases.

Finally, EPA’s record justifying the RMP rules includes 8 incidents (5 percent)

where propane was either not involved or was found not to have leaked.

EPA’S RMP RULES WILL DEGRADE AIR QUALITY BY BURDENING A CLEAN ALTERNATIVE

FUEL

EPA has adopted a regulation that will actually make air quality worse. Propane

is a federally approved alternative fuel under section 241 of the Clean Air Act and

section 301 of the Energy Policy Act of 1992. NPGA strongly supported enactment

of these provisions by Congress.

EPA’s RMP rules will affect air quality in two ways. The first way is through actual fuel switching by customers to less environmentally desirable fuels that either

are specifically not covered by RMP, such as fuel oil and electricity, or that are typically not stored in bulk quantities, like natural gas. Customers switch fuels for a

variety of reasons. First, companies are considering switching fuels because the

RMP rules are very complex and burdensome. Not only do they require a substantial initial investment to get into compliance, they require continuing allocation of

resources to ensure continued compliance in the future. Remember, too, that companies will be urged in no uncertain terms by agencies like Orange County California’s

that fuel switching is a viable alternative to compliance. Second, companies are considering switching fuels because the RMP rules come with a high public relations

price tag. What facility will feel its position in the community has been enhanced

by the publication of information showing that an accident could devastate its

neighborhood? Such information is a powerful incentive to switch fuels. And such

information will be unnecessarily scary because EPA’s modeling requirements, according to the National Fire Protection Association, will predict impacts far greater

than an actual worst case release could produce.

The second way EPA’s rules will degrade air quality is through stigmatizing the

use of propane as an alternative engine fuel. Propane is widely used as an engine

fuel. Due to the low pollution characteristics of propane, more than 300,000 forklifts

and other indoor vehicles use this fuel. In addition, over 80,000 bus, taxi, and deliv-
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ery services and fleets are powered by propane. It is common knowledge that the

alternative fuel vehicle industry remains in its infancy, and needs all the help it

can get, especially in these times of unprecedented low gasoline prices. The RMP

rules will erect just one more burden that propane needs to overcome as the industry strives to make widespread acceptance and commercialization a reality.

Congressional interest in removing impediments to usage of alternative fuels has

been strong and consistent. For example, on August 5, 1997, President Clinton

signed the Taxpayer Relief Act of 1987 into law which included a provision to remove tax-related burdens on propane use as an alternative fuel. Specifically, the Act

included a provision providing propane and other alternative motor fuels Federal excise tax parity with gasoline. Under this provision, the effective rate of the Federal

excise tax on these fuels should be the same as the rate on gasoline.

EPA VASTLY UNDERESTIMATES THE REACH OF THE RMP PROGRAM

EPA estimated in its final RMP rule that only 66,100 stationary sources would

be covered by the entire RMP rule, which applies to 140 different toxic And flammable substances.

Subsequently, EPA estimated that approximately 28,000 facilities will be brought

into the RMP program specifically because of propane storage.

NPGA believes EPA’s estimates to be spectacularly low. In 1991, NPGA commissioned a statistical survey of the propane industry, and the responses were compiled

by the independent accounting firm Baldwin & Brooks. That study shows that

660,000 farms, 350,000 industrial and utility sites, and over 1 million commercial

facilities use propane on their sites. Of these use sectors, we believe that 100 percent of the industrial facilities will be RMP-covered, 50 percent of the farms will

RMP-covered, and 30 percent of commercial facilities will be RMP-covered. This totals over 1 million RMP sites just for propane alone.

Another indicator of the vast underestimation of the regulated community comes

from North Carolina’s Department of Environment and Natural Resources. The Department sent a letter to EPA on November 9, 1998 stating that in North Carolina,

approximately 11,000 farms use propane to cure tobacco. In other words, a single

propane user sector—farmers—of a single propane use—curing tobacco—in a single

State totals nearly 33 percent of EPA’s entire national estimate for propane. Add

in the 12,000 marketer facilities that exist across the nation, and you’ve already accounted for over 80 percent of EPA’s national estimate.

EPA ALSO VASTLY UNDERESTIMATES THE COSTS OF THE RMP PROGRAM

Many propane marketers and customers will need to rely on outside assistance

to comply with the RMP rules, and their reasons vary. EPA protestations to the contrary, the RMP rules are complex and take significant amounts of time and effort

to comply. A marketer may have numerous bulk storage facilities, or may have numerous customers who ask for help and advice. Most customers will be unprepared

to comply from a technical standpoint.

NPGA sought information on the fees being charged by 36 engineering consulting

firms. 23 consultants declined to give figures. Of the 13 firms who did provide fee

estimates for RMP preparation, only two came in below $2000, while 11 firms were

equal to or greater than $2000.

Hourly fees ranged from $25–140, and daily fees ranged from $500–2000. One

firm said that RMPs could cost as much as $20,000! Most recently, a consultant

stated during his presentation to the New York Propane Gas Association that a Program 2 RMP takes 30–70 hours to complete and costs from $3–5,000, depending on

the amount of site-specific preparation that has taken place.

Even if a marketer or user chooses to avail himself of the EPA’s free RMP submittal software or other compliance assistance tools, compliance with the RMP rules

will drain scarce resources away from other activities that increase safety. For example, one propane marketer in Wisconsin sends its drivers to a special driving

track where they learn how to handle their delivery trucks on frozen pavement. This

is not a free activity, of course, and may well have to be dropped if the money must

be spent complying with the RMP rules.

NPGA has quantified the costs of the RMP program to propane marketers and

customers. Our estimate does not include any fees assessed by those States that

have taken over RMP enforcement from EPA, which can be hundreds or even thousands of dollars per site. While compliance with EPA’s rules does not entail a fee,

EPA explicitly recommended that all States adopt fees for administering the program for EPA.
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Using a conservative estimate of $1,000 per site in compliance costs, which in- cludes direct costs such as consulting fees or computer software and also indirect

costs such as company staff time, the RMP rules will cost:

• $330 million to the farm sector; • $675 million to all other covered propane customers; • $12 million to propane bulk storage plants.

The bottom line is that the RMP rules are an expensive and duplicative paperwork exercise that will have little or no discernible impact on safety, but which will

drain more than $1 billion away from marketers and their customers.

RECENT DEVELOPMENTS ON NPGA’S LAWSUIT

NPGA has pursued all available avenues to obtain relief from the burdensome

RMP rules, including filing a lawsuit on August 19, 1996. Despite industry’s goodfaith attempts to negotiate a settlement, the Agency has consistently rebuffed the

industry. Most recently, EPA extended a 4-part settlement offer to make minor

changes to the guidance documents and the rules specifically targeting rural agricultural users. NPGA rejected the offer on February 22, 1999 on both procedural and

substantive grounds. Not only would the changes not have had the force of law, they

would not have addressed the underlying issues of fuel switching and decreases in

safety that have been detailed elsewhere in this testimony. NPGA is prepared to brief the case, but we are unable to get a court date until October 1999 at the earliest. This is, of course, 4 months after the compliance date

for the RMP rules. We have formally requested EPA for at least a 1-year stay in

the rules’ effective date to allow resolution of the case. We are hopeful that the

Agency will respond favorably, of course, but we are not optimistic.

CONCLUSION

Mr. Chairman, EPA’s RMP rules should not cover propane. The rules will cause

customers to switch to other less environmentally friendly fuels. The rules will decrease safety by increasing the number of small deliveries on America’s roads. The

rules will erect disincentives to use of a Congressionally approved clean air fuel. The

rules will cause confusion in the marketplace by duplicating safety standards that

have existed in all 50 States for many years. The rules will drain scarce resources

away from real safety initiatives and into a paperwork exercise with few benefits.

The rules are an expensive paperwork burden that are clearly not justified.

Thank you for this opportunity to testify.

RESPONSE OF JAMES E. BERTELSMEYER TO ADDITIONAL QUESTION FROM SENATOR

GRAHAM

Question. I understand that one of the points of contention between EPA and the

propane industry is the cost for distributors to comply with this regulation. EPA

contends that $50-$250 is an accurate estimate. You contend that a more accurate

figure is $1000-$8000 per customer. On what factors are your cost estimates based?

How do you account for the major discrepancy in your numbers?

Response. There are a number of costs to be borne by facilities in complying with

the RMP rules, including direct costs such as software purchases or engineering consultant fees, and indirect costs such as staff time. NPGA believes that these compliance costs reach at least $1000 per site and quickly rise to $8000, or more in some

cases. The $1000 figures is a conservative average estimate for facilities across the

United States; it is by no means a maximum.

NPGA reviewed the various software packages on the market and endorsed the

program that best meets the needs and expectations of propane marketers and

users. This software, manufactured by Dyadem Inc., costs $595 for NPGA members,

which is a substantial discount from the published list price of $1500. Many companies are using this software rather than EPA’s software because it is propane-specific; it includes integrated calculation and word processing features; and provides

hundreds of help menus to assist users. None of these features is available in comparable form in EPA’s RMP Submit software, so buyers report that the price is well

worth it. It should also be noted that EPA’s software has only become available in

recent weeks to those placing orders for diskettes in January.

Computer programs do not run themselves, nor do they collect the data to be

input. NPGA estimates that it takes at least 25 hours to read and understand the

rules; to collect and verify site information; and input the data into electronic form.
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Even if the costs of staff time are merely $20 per hour, the total direct and indirect

costs to comply with the RMP rules will exceed $ 1000 if the Dyadem software is

used. For those marketers who do not have computers and must therefore comply

manually, we believe compliance will take much more time, perhaps even double.

Remember, too, that Clean Air Act violations can cost the violator $25,000 per day,

so marketers take extra time to ensure the information to be submitted is accurate

and complete. Finally, marketers are acutely aware of the citizen suit provisions of

the Clean Air Act, which expose them to legal liabilities of non-compliance, so extra

care and time is warranted.

For those companies who choose to hire consultants to prepare compliance documents, costs will soar to the high end of our cost range. NPGA published in October

1998 a directory of consulting services that included information from 33 companies

who were known to provide RMP compliance services. (A copy was provided to the

committee for the hearing record.) Only 11 of the firms provided cost estimates, and

of these, only 2 companies quoted costs less than $2000 per facility. The remainder

quoted costs greater than $2000, with the top quote coming in at $20,000!

Based upon the foregoing, NPGA believes that EPA’s speculative $50-$250 estimate is unrealistically low. Indeed, during an RMP presentation earlier this year

in St. Louis, EPA estimated that RMP compliance would likely be hundreds of dollars higher than $250. NPGA’s figures, on the other hand, are grounded in real

world experiences in the field.

UNITED STATES SENATE,

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,

Washington, DC, November 4, 1998.

The HONORABLE CAROL M. BROWNER, Administrator,

Environmental Protection Agency,

Washington, DC 20410.

DEAR ADMINISTRATOR BROWNER: As you may know, the Environmental Protection

Agency (EPA) is now pursuing an effort to implement many of the provisions of section 112(r) of the Clean Air Act, including the collection of Risk Management Plans

(RMPs) from facilities handling substances listed under section 112(r)(3). This is an

important effort to improve the safety of industrial chemical processes and I support

EPA’s effort. Also, I am encouraged by reports that EPA staff may have resolved

the security concerns related to the management of the Offsite Consequence Analysis information related to the RMP’s. However, I am concerned about the inclusion

of fuels in EPA regulations developed under section 112(r).

In promulgating a list of substances under section 112(r)(3) EPA included several

of the most Flammable Fuels. The principal focus of this provision of the Clean Air

Act is to reduce risks associated with chemical accidents. The catastrophic accidental release that occurred in Bhopal, India in 1984, together with subsequent accidental releases in this country, gave rise to a general concern about the need to prevent such accidents. The concern was related to chemical releases, not fuel explosions, and section 112(r) was the Congressional response to that concern.

Nothing in 112, nor any other part of the CAA suggests that it should be regarded

as a Federal fire safety law. Congress mandated the inclusion of 16 chemicals on

the list to be developed under section 112(r)(3). While some of these are flammable,

the concern in each case was related to the use of substance in a manufacturing

process or other application and not as a fuel source. Unfortunately, a significant

number of substances included EPA’s 112(r) regulations are highly flammable fuels

that are not in widespread use due to their chemical properties. Risks from fuel explosions might more appropriately be regulated by the Occupational Safety and

Health Administration, the Department of Transportation or State and local agencies.

I recommend that you reconsider the decision to regulate fuels under section

112(r) and further request that EPA publish a notice in the Federal Register proposing to delay by six months the deadline for submission of RMPs for fuel substances

listed under section 112(r) of the Clean Air Act. I believe that such a delay would

provide the opportunity to reconsider the appropriateness of including such substances in the RMP process.

Thank you for your kind attention to this request.

Sincerely,

JOHN H. CHAFEE.
101

CONGRESS OF THE UNITED STATES,

Washington, DC 20515, December 21, 1998.

The HONORABLE CAROL BROWNER, Administrator,

U.S. Environmental Protection Agency,

Washington, D.C. 20560.

DEAR ADMINISTRATOR BROWNER: In adopting section 112(r) of the Clean Air Act

Amendments of 1990, it was the intent of Congress to reduce the risks associated

with chemical accidents. Unfortunately, in implementing this provision, the EPA

has chosen to expand the scope of the program to cover entirely different category

of flammable substances, such as propane.

Propane is non-toxic, is listed in section 241 of the Clean Air Act as a clean alternative fuel, and is a vital energy source, particularly in rural America. By singling

out propane from competing fuels such as electricity, fuel oil and natural gas, EPA

is creating powerful economic and public relations incentives for customers to switch

fuels to avoid the significant costs associated with the new regulations.

We are further troubled that EPA has failed to consider the potential safety and

supply consequences that this program is likely to have on the hundreds of thousands of farmers, consumers, and commercial users who depend on this important

fuel. Farmers and small businesses may attempt to avoid coverage under the program by limiting their on-site storage to an amount under the regulatory threshold.

This will mean more deliveries resulting in a higher risk of winter distribution bottlenecks. It will also mean a higher risk of transportation related incidents, since

winter driving conditions can be particularly challenging.

It is difficult to avoid the ironies of this issue. The Clean Air Act was meant to

encourage the use of cleanburning fuels like propane, but EPA’s rules discourage

the use of this fuel. Furthermore, section 112(r) was intended to reduce the risks

of accidental releases, yet EPA’s rules may actually increase the number of incidents.

We urge you to reconsider the Agency’s coverage of flammable substances such

as propane within the RMP rules. Moreover, in light of the June 21, 1999 compliance deadline, we also request your expeditious review of this matter so that this

issue can be addressed legislatively if necessary.

Finally, because of the timeliness of this issue, we ask that you respond to us no

later than February 1, 1999.

Sincerely, ,

CHARLIE NORWOOD,

RALPH HALL,

MIKE OXLEY,

DENNY HASTERT,

JOHN SHIMKUS,

BOB STUMP,

JIM GREENWOOD,

ED WHITFIELD,

RICHARD BURR,

BOB RILEY,

CLIFF STEARNS,

SPENCER BACCHUS,

BOB BARR,

SANFORD BISHOP,

BRIAN BILBRAY,

BARBARA CUBIN,

JIM TURNER,

GEORGE RADANOVICH,

NICK SMITH,

JOE BARTON,

CHIP PICKERING,

LARRY COMBEST,

JO ANN EMERSON,

PAT DANNER,

ROY BLUNT,

NATHAN DEAL,

RODNEY FRELINGHUYSEN,

JOHN BOEHNER,

TED STRICKLAND,

JOHN SHADEGG,

DOUG BEREUTER.

CONGRESS OF THE UNITED STATES,

Washington, DC 20515, January 7, 1999.

HONORABLE CAROL M. BROWNER, Administrator,

U.S. Environmental Protection Agency,

401 M Street SW,

Washington, DC 20460.

DEAR ADMINISTRATOR BROWNER: We write to alert you to a significant concern

raised by many retail propane dealers throughout Nebraska. Your Agency is now

pursuing an effort to implement provisions of section 112 of the Clean Air Act, including the collection of Risk Management Plans (RMPs) from facilities handling

substances listed under section 112(r)(3). We are highly concerned by the inclusion

of fuels in EPA regulations developed under section 112(r).
102

Congress mandated the inclusion of 16 chemicals on the list to be developed under section 112(r)(3). While some of these are flammable, the concern in each case was

related to the use of the substances in a manufacturing process or other chemical

application and not as a fuel source. A number of substances included under section

112(r) regulations are highly flammable fuels but are not in widespread use due to

their chemical properties.

The propane industry already operates under regulations at the Federal, State and local levels. Nebraska operates under the National Fire Protection Association

pamphlet 58, the Storage and Handling of LP-Gas. This safety code is an industry

standard in 50 States. Most propane retailers also submit facility data to EPA and

State/local emergency response agencies under Federal community right-to-know

rules.

We recommend that you reconsider the decision to regulate under section 112(r)

and we request that EPA delay by six months the deadline for submission of RMPs

under section 112(r). We believe this delay would allow appropriate congressional

review of including specific fuel substances in the RMP process. We thank you for

your attention to this matter.

Sincerely,

CHUCK HAGEL.

ROBERT KERREY.

DOUG BEREUTER.

BILL BARRETT.

LEE TERRY.

Washington, DC 20515–3223, December 12, 1998.

The HONORABLE CAROL BROWNER, Administrator,

U.S. Environmental Protection Agency,

401 M. Street, SW Room 1200,

Washington, DC 20460.

Dear ADMINISTRATOR BROWNER: I am writing to urge you to exclude flammable

fuels from any rules or guidelines you issue to implement section 112(r) of the Clean

Air Act.

The goal was to reduce risk of releases of toxic chemicals and to improve the ability of a community to respond if such releases occurred. The section was a response

to the catastrophe in Bhopal, India and to subsequent accidents in the United

States. Congress did not intend to regulate flammable fuels under this section,

which were not at issue at the time and which raise different, albeit related, health

and safety concerns than do toxic substances.

Moreover, the decision to cover even relatively small amounts of propane will

place an unnecessary regulatory burden on numerous small businesses and individuals whose tanks pose virtually no threat to the public.

I believe section 112(r) is an important measure that will require significant time

and money to implement. It is a waste of both the agency’s and the private sector’s

resources to extend the coverage of section 112(r) to flammable fuels. I urge you to

remove flammable fuels from the list of substances covered by section 112(r).

Sincerely,

SHERWOOD BOEHLERT,

Member of Congress.

ORANGE COUNTY CERTIFIED UNIFIED PROGRAM AGENCY,

January 14, 1999.

MR. DAN LOWER,

All Star Gas,

12600 Western Avenue,

Garden Grove, CA 92841.

DEAR MR. LOWER: Your business has been identified as subject to the requirements of the California Accidental Release Prevention (Cal-ARP) program found in

Chapter 6.95, Article 2 Health and Safety Code, The Orange County Certified Unified Program Agency is authorized to Implement this program for the State of California. In addition, your business is also subject to the Federal program found in

section 112(r) of the, Clean Air Act implemented by U.S. EPA.

Your business is required to develop and implement a risk management program

to prevent accidental releases of regulated substances that can cause serious harm

to the public and the environment, You are also required to develop and submit a

Risk Management Plan (RMP), which includes a summary of your risk management

program. The RMP must be submitted to this agency and an electronic version sub-
103

mitted to U.S. EPA by June 21, 1999. We are requesting that your business contact

this agency to schedule an RMP compliance meeting during the month of January

1999. These meetings are required pursuant to California regulatory requirements

and to ensure that your business meets the federally mandated timeline.

Should your business so choose, you may implement one of the following options

in lieu of developing an 11W: 1. Eliminate or replace the Regulated Substance with

a non-regulated substance. 2. Reduce the amount onsite to below the Federal

threshold quantity, Note: This option may still require the development of an RMP

pursuant to California law, but will delay the submittal process to a date beyond

the June 21, 1999 dead line.

If one of the above options is chosen you will be required to verify compliance

prior to the June 21, 1999 deadline.

This agency is dedicated to assisting your business in meeting these new regulatory requirements. In the near future we will be providing technical/regulatory assistance as well as RMP guidance’ documents. However, failure to develop and submit an RMP as required will subject your business to penalties of up to $10,000 per

day. In addition, failure to contact and work with this agency during development

of your RMP could cause costly revisions to be made during the agency review and

evaluation period.

Please contact James Hendron at (714) 667–3708 to schedule your meeting time

and date or for questions related to this letter or your responsibilities under the CalARP program,

Sincerely,

PEARL HOFTIEZER,

Supervising Hazardous Waste Specialist,

Orange County Certified Unified Program Agency.

THE STATE OF CALIFORNIA

1999 CA A.B. 172 CALIFORNIA 1999–00 REGULAR SESSION

ASSEMBLY BILL NO. 172

INTRODUCED BY ASSEMBLY MEMBER FIREBAUGH, JANUARY 15, 1999

(1) Existing law provides that the program for the prevention of accidental releases of regulated substances adopted by the Environmental Protection Agency pursuant to the Clean Air Act is the accidental release prevention program for the

State and requires the owner or operator of a stationary source to prepare a risk

management plan when required under the Federal regulations or if the administering agency determines there is a significant likelihood of a regulated substance accident risk, except as specified. An RMP is required to give consideration to the proximity of various local land uses, including schools. Administering agencies are required to inspect stationary sources to determine compliance with this accidental release prevention program.

This bill would prohibit any person from commencing any process, on and after

January 1, 2000, involving a regulated substance at any facility that is located adjacent to a school. The bill would impose a State-mandated local program by imposing

new duties upon the administering agencies that implement the accidental release

prevention program.

(2) The California Constitution requires the State to reimburse local agencies and

school districts for certain costs mandated by the State. Statutory provisions establish procedures for making that reimbursement.

This bin would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local

program: yes.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 25534.3 is added to the Health and Safety Code, to read:

25534.3. No person shall commence any process on and after January 1, 2000, involving a regulated substance at any facility that is located adjacent to a school, as

defined in Section 25534.1.

SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article

XIIIB of the California Constitution because a local agency or school district has the

authority to levy service charges, fees, or assessments sufficient to pay for the pro-
104

gram or level of service mandated by this act, within the meaning of Section 17556

of the Government Code.

Notwithstanding Section 17580 of the Government Code, unless otherwise specified, the provisions of this act shall become operative on the same date that the act

takes effect pursuant to the California Constitution.

1998 PROPOSED RESOLUTION—MISSOURI FARM BUREAU FEDERATION

Adequate safeguards to meet public safety needs currently exist under Federal,

State and local regulations

We oppose U.S. Department of Transportation regulations that impose unnecessary and costly now equipment and labor requirements on the delivery of propane,

We are opposed to regulations promulgated -under the Environmental Protection

Agency’s Risk Management Program that requires the development of comprehensive prevention and emergency response programs for propane storage. We believe

the proposed regulations provide no additional safeguards and that existing Federal,

State and local regulations adequately meet public safety goals.
105

THE WILLMAR POULTRY GROUP.

February 4, 1999.

The HONORABLE DAVID MINGE,

United States House of Representatives,

Washington, DC 20515.

DEAR REPRESENTATIVE MINGE: I would appreciate your attention on a serious

issue my company is facing regarding an EPA rule.

My company, Willmar Poultry Co., has served our customers throughout the State

for home heating, appliance needs and agricultural needs for many years. We pride

ourselves on our safety record.

Beginning June 21, 1999 propane facilities like mine that have tanks with over

2,381 gallons on their premises are required to submit to EPA a Risk Management

Plan.
106

Propane is a clean alternative fuel and is specifically listed as an alternative fuel in the Clean Air Act and the Energy Policy Act of 1992. It is the only alternative

fuel readily available throughout the United States. And now EPA wants to discourage its use. Forcing our industry to pay for a billion-dollar paperwork exercise will

divert resources away from voluntary safety programs that really do work. EPA admits that most of its Risk Management Program duplicates existing requirements.

Therefore, this program is nothing more than an expensive paperwork drill. The

RMP rules have been directly responsible for many customers either foregoing a

propane standby fuel system altogether or else changing to the use of a standby fuel

that is not as efficient of environmentally clean as propane. Of course, propane’s

competing fuels are not covered by the RMP rules. Propane regulation and safety

practices are so effective that you have only one chance in 33 million of being killed

in a propane tank truck highway accident. By contrast, you have one chance in 15

million of being struck by lightning and only one chance in 2,500 of being in a car

wreck that kills someone. Of course, no one is talking about setting up a Federal

risk management program for cars! I urge you to act before the June 21, 1999 compliance deadline to remove flam- mable fuels from the list of RMP covered substances.

LOEL LARSON, WPC Propane Department Manager.

MRS. PEGGY PARSONS,

55 CHURCH HIGHWAY,

Rogers City, MI 49779, October 5, 1998.

The HONORABLE BART STUPAK,

United States House of Representatives,

Washington, DC 20515.

DEAR REPRESENTATIVE STUPAK: I am writing to you because I am concerned about an EPA regulation being placed on the, propane industry that would also affect the

agricultural industry in our district. I am the Presque Isle county president of the Michigan Farm Bureau. I have been farming for 10 years and a member of the Farm Bureau for 9 years. I have just

learned that by June 21, 1999, the propane industry must comply with an EPA regulation referred to as section 112(r) of the Clean Air Act Amendments of 1990.

This will require any facility with 2,381 gallons of propane to produce and submit a worse case scenario to the EPA. This information will then be open to public access by being placed on the Internet. Because this regulation is based on storage

capacities, many farms will also be required to comply. The propane industry and those who store propane already operate under strict regulation at the Federal, State, and local levels (safety standard #58 of the National Fire Protection Association and OSHA). We also submit facility data to the

EPA and State/local emergency response agencies under Federal community rightto-know rules. This industry has a great safety record and the new regulation by

the EPA will not increase it any more. While propane is already listed as a clean

burning fuel, it is the only fuel being subjected to this regulation which could cost

the industry up to $1.5 billion to comply. Its direct competitors (natural gas, electricity) are not covered by this regulation.

The propane industry is not attempting to escape from needed safety precautions.

The EPA regulations are simply a duplication of regulations already in place. Because of this, I urge you to support the following National Fire Protection Association Standard 58 as compliance with EPA’s RMP regulations.

Thank you for your time and consideration of this issue.

Sincerely,

PEGGY PARSONS.

COLORADO FARM BUREAU,

Englewood, CO, October 15, 1998.

The HONORABLE WAYNE ALLARD,

United States Senate,

Washington, DC 20510.

DEAR SENATOR ALLARD: Colorado Farm Bureau requests your help on an EPA

issue that will have a negative effect on agriculture.

The unnecessary regulation is going to ultimately result in higher costs of propane

to ag producers. Many ag facilities rely on propane as their No. 1 fuel source. The

increase in cost will also cause ag producers to examine switching to other fuel
107

sources not covered by this regulation. This will be very costly and also increase this

risk use of higher polluting fuels.

Agriculture is facing a critical time economically and many smaller operations are

just barely making ends meet. Further economic hardship caused by a rise in energy

costs to them would be devastating . All that is possible must be done to protect

our ag industry.

Farmers and ranchers are not looking to reduce safety. They are simply seeking

Congressional approval of NFPA 58 as a compliance alternative to the EPA’s rules.

Your assistance and support in this matter would be appreciated. Thanks you for

your time and consideration.

Sincerely,

ROGER BILL MITCHELL, President.

CALIFORNIA COTTON GINNERS AND GROWERS ASSOCIATION,

Fresno, CA, August 24, 1998.

DEAR CONGRESSMAN: On behalf of the 100 cotton gins and over 2700 cotton growers in the State of California, we are writing to request your assistance on a critical

issue to those members of our Association who utilize propane. Specifically, our concern is over the implementation of section 112 of the Federal Clean Air Act, and

its impact on the storage of propane.

As of June 21,1999, facilities that store propane in excess of 10,000 pounds (2,381

gallons) have to comply with the rules EPA has published to implement section

112(r) of the Federal Clean Air Act, and its impact on the storage and use of propane. Those rules will require those facilities to prepare and submit facility information including a conjectural worst-case scenario to the EPA. This includes what

might happen if one of their propane tanks spontaneously and totally exploded regardless of whether of not it could actually occur.

EPA’s proposed regulations are duplicates of existing State regulations governing

propane tanks. Therefore, we urge you to support legislation, which says that. companies in compliance with the National Fire Protection Association (NFPA) Standard #58 by definition, in compliance with EPA’s risk management regulations.

This is a critical issue to our industry and anyone who sues or stores propane in

excess of 2,381 gallons. We would appreciate your support in aiding those efforts

that will lessen the burden of duplicative regulation on the cotton industry.

ROGER A. ISOM, Director of Technical Services.

ILLINOIS PORK PRODUCERS ASSOCIATION

Springfield, IL 62707–8642, October 9, 1998.

The HONORABLE JOHN SHIMKUS,

United States House of Representatives,

Washington, DC 20515.

DEAR CONGRESSMAN SHIMKUS: As president of the Illinois Pork Producers Association, I felt it was necessary to contact you regarding a regulation being placed

on the propane industry by the Environmental Protection Agency.

Under the Environmental Protection Agency’s rules implementing section 112(r)

of the Clean Air Acts Amendments of 1990, propane marketers and their customers

with tanks greater than 10,000 pounds (2,381 gallons) of propane must prepare and

submit by next June detailed facility information including a conjectural worst-case

scenario to the EPA and the public, which will be place on Internet.

Pork producers across our State rely on propane extensively in the correspondence

of doing business on their farms. This unnecessary regulation will cause unneeded

expense to our propane suppliers.

Based on the foregoing, I urge you to act as rapidly as possible to provide an alternative means of complying with EPA’s regulations based upon NFPA 58. There

must be a better way to achieve the desired results.

Sincerely,

RICK DEAN, IPPA President.
108

OHIO MEAT INDUSTRIES ASSOCIATION,

Columbus, OH 43221, October 8, 1998.

CONGRESSMAN JOHN BOEHNER,

United States House of Representatives,

Washington, DC 20515.

DEAR CONGRESSMAN BOEHNER: Under the EPA rules, propane marketers with

tanks greater than 2,381 gallons must prepare and submit detailed facility information including a worst-case scenario. These will be published on the Internet. I do

not see the benefit in publishing such sensitive information on the Internet where

anyone can access it.

The EPA rules will affect our members because it will affect the farmers and

manufacturers who stock the shelves. If propane suppliers and big users are required to spend extra time and money to comply with the EPA rules, their expenses

will tickle down to grocers and their customers.

Propane marketers ad users already comply with local, State and Federal regulations. They abide by the National Fire Protection Association Safety Standard 58,

with OSHA regulations and EPA regulations. Thus, the EPA Risk Management

Plan will be redundant.

Please support regulations that will not require additional reporting requirements

and will not expose sensitive information to the public. No one is seeking to get out

of safety regulations. It just seems that State propane regulations should suffice for

compliance to EPA concerns.

Thank you in advance for your support.

Sincerely,

KRISTIN M. CORSALE, Executive Director.

OHIO POULTRY ASSOCIATION,

Columbus, OH 43229, October 7, 1998.

The HONORABLE JOHN BOEHNER,

United States House of Representatives,

Washington, DC 20515.

DEAR CONGRESSMAN BOEHNER: On behalf of the Ohio Poultry Association, I am

writing to urge you to express opposition to the EPA Risk Management Plan to be

enacted in June 1999. These rules promise to be an unnecessary burden to the propane industry and propane users like poultry farmers.

The Ohio Poultry Association has over 200 members. Members include both poultry farmers and allied industries. Our members depend on the association to represent their interests. Many of our members use propane, and, some have tanks

above the 10,000 pound threshhold. Directly or indirectly, the EPA regulations will

affect poultry farmers.

The EPA’s Risk Management Plan is clearly not in the best interest of farmers.

1. Safety will not be improved. If anything, the regulations will jeopardize the

safety of farmers, of propane marketers, and of the general public. The plan required that detailed facility information be submitted and then be published on the

Internet. Sensitive information will be available to everyone, including unstable people who might see an opportunity to do harm.

2. Compliance will be costly. Research done by the National Propane Gas Association demonstrates that compliance for each facility will cost approximately $2,000.

Although propane tanks on farms may not top the 10,000-pound threshold, propane

marketers who supply the propane will be forced to comply. The extra cost of compliance will no doubt be passed on to farmers.

3. The EPA regulations are an unnecessary duplication. Propane marketers and

users already comply with National Fire Protection Association Standard 58 and the

Emergency Planning and Community Right-to-Know Act of 1986, as well as OSHA

and DOT regulations.

Sincerely,

JACK L. HEAVENRIDGE, Executive Vice President.
109

NATIONAL GRANGE,

28 September 1998.

The HONORABLE JOHN H. CHAFEE,

Committee on Environment and Public Works,

United States Senate,

Washington, DC 20510.

DEAR CHAIRMAN CHAFEE: On behalf of the 300,000 members of the National

Grange, the nation’s oldest general farm organization, I would like to make you

aware of a potentially detrimental situation. Under EPA’s new Risk Management

Plan (RMP) regulations, promulgated under section 112(r) of the Clean Air Act

Amendments, a significant economic hardship will be imposed on tens of thousands

of farmers across the country. The RMP regulations require users of propane who

have more than 2,381 gallons onsite to file detailed risk management plans by June

21, 1999.

Completion of these plans requires analysis based on highly technical chemical release modeling. EPA’s compliance assistance document, which is currently underdevelopment, is 164 pages in length. Given the highly technical nature of the program, in most cases agricultural users will find it necessary to contract with outside

engineering service providers to assist them with compliance, The cost of these services ranges from $1,000 to $8,000 per site, If 100,000 farmers incur an expense of

$ 1,000 per site, the compliance burden placed on the farm economy will exceed

$100 million.

Apart from the cost of developing Risk Management Plans, we are also concerned

about the duplicative nature of the rules. Propane installations in all 50 States are

designed, constructed and maintained in accordance with the standards for the safe

storage and handling of propane published by the National Fire Protection Association. These requirements have for decades served as a reliable accident prevention

program.

As you know, Mr. Chairman, propane is an important commodity to the rural

economy. It is widely used in numerous agricultural applications including cultivation and crop drying. In 1996., nearly 15 billion gallons of propane were used for

agricultural.

In view of the serious economic burden posed by the so regulations and mindful

of the effectiveness of existing requirements, we urge you to consider legislating an

alternative compliance path based on reliable and time-honored safe practices. Specifically, propane sites which are installed and maintained in uniformity with the

standards set forth by the National Fire Protection Association, should be deemed

in compliance with section 112(r) of the Clean Air Act Amendments.

Thank you for you consideration, and continued support for America’s farmers.

Sincerely,

KERMIT W. RICHARDSON, Master (President)

National Grange of the Order of Patrons of Husbandry,

January 27, 1999.

HONORABLE THOMAS BLILEY,

Committee on Commerce,

United States House of Representatives,

Washington, D.C. 20515.

DEAR MR. CHAIRMAN: In deciding to regulate propane under its Risk Management

Program (RMP) rules, the Environmental Protection Agency (EPA) failed to consider

the adverse effects which these regulations will have on hundreds of thousands of

farmers nationwide.

EPA’s Risk Management Program is authorized under section 112(r) of the Clean

Air Act Amendments of 1990. By adopting section 112(r), Congress specifically

sought to reduce the risks associated with the accidental release of toxic chemicals.

Unfortunately, EPA chose to expand the program to include flammables such as

propane, an important non-toxic fuel that is used in a variety of agricultural applications. Nearly 1.5 billion gallons are used annually by farmers for crop drying,

weed cultivation and animal breeding.

The RMP rules require propane consumers with more than 2,381 gallons storage

to complete costly risk management plans and to file those plans with EPA by June

21, 1999. Even if many rural users of propane fall into the least rigorous compliance

category (Program 1), the economic impact of these rules remains high since a significant up-front investment may be made to determine the appropriate program
110

level. Farmers who ultimately qualify for Program I coverage will still be required

to undertake a detailed offsite consequence analysis to determine their eligibility for

this program level. In addition to the economic impact, we are also deeply concerned about the poten- tial distribution consequences of regulating propane under RMP. It is highly likely

that many commercial users will seek to avoid coverage under the rules by limiting

their onsite storage to a volume under the threshold level. This will lead to a significant increase in the number of deliveries, thus placing added stress on a delivery

infrastructure that already strains to keep up with harvest and winter heating season demand. Distribution bottlenecks are another example of the type of unintended

consequence that the Agency failed to consider when it formulated its rules. Mr. Chairman, we respectfully urge you and the members of the committee to re- verse EPA’s decision to include propane as a covered chemical under the Risk Management Program.

Sincerely,

AGRICULTURAL RETAILERS ASSOCIATION,

NATIONAL FARMERS ORGANIZATION,

NATIONAL GRANGE,

ALABAMA FARMERS FEDERATION,

AMERICAN FARM BUREAU FEDERATION,

NATIONAL FARMERS UNION,

TEXAS CORN GROWERS ASSOCIATION.

IOWA FARM BUREAU FEDERATION,

Des Moines, Iowa 50266–5997, February 2, 1999.

The HONORABLE JAMES LEACH,

United States House of Representatives,

Washington, DC 20515.

DEAR CONGRESSMAN LEACH: Congress and the administration made four promises to agriculture when it passed the 1996 Federal Agriculture Improvement Reform

Act (FAIR Act). One of those promises was to provide regulatory relief to farmers.

Instead of regulatory relief, farmers are getting a regulatory headache. The latest

example is a proposal by the Environmental. Protection Agency to impose more regulations an propane users. The EPM Risk Management Plan is duplicative and will

impose a heavy burden on farmers in Iowa and across the nation. The EPA proposes that any person that has more than 10,000 pounds of propane stored on any onsite must submit a risk management plan. This will affect most

of Iowa’s crop and livestock farmers. EPA is proposing the new set of requirements

even though there are existing regulations to minimize the risk from storing and

using propane. I look forward to working with you on this Issue and appreciate your help.

Late last year, more 30 Republicans and Democrats Congressmen, led by Con- gressman Boehlert, asked EPA Administrator Carol Browner to remove propane

from the Risk Management Plan rules. EPA has not removed. We need congressional action to stop this duplicative and unnecessary regulation on out farmers.

Sincerely,

ED WIEDERSTEIN, PRESIDENT.

FLORIDA FARM BUREAU FOUNDATION,

December 2, 1998.

The HONORABLE BOB GRAHAM,

United States Senate,

Washington, DC 20510.

DEAR SENATOR GRAHAM: Propane is a valuable resource that provides a safe clean

and economic energy choice for a variety of consumers. It is used in homes, businesses and farms. As of June 21, 1999, many users of propane will have to comply

with rules EPA has published to implement section 112(r) of the Clean Air Act

Amendment of 1990. Consumers who have more than 2300 gallons of propane onsite

will have to provide a complicated onsite risk management program plan. .

Compliance with this rule will highly complex, and EPA’s best efforts to help have

been to draft a 165-page instructional manual. Nationally, 660,000 farms use propane onsite for various things like drying crops, powering irrigation, and and heating livestock, nursery and poultry areas. Propane provides a cost efficient energy

source on which many facets of Florida agriculture depend.
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Florida Farm Bureau would like to see some changes in the Risk Management

Program that would allow Florida producers the opportunity to avoid the costly burden of these proposed rules. We also ask your help in limiting regulatory duplication

by the implementation of this rule.

Thank you for your attention to this matter.

Sincerely,

CARL B. LOOP, President,

KANSAS FARM BUREAU,

Manhattan, KS 66503, November 18, 1998.

HON. JOHN CHAFEE, Chairman,

Commitee on Environment and Public Works,

United States Senate,

Washington, DC 20510.

DEAR SENATOR CHAFEE: On behalf of the 130,000 family members of Farm Bureau in the State of Kansas, I write to ask your assistance and that of your committee in addressing a problem with potentially significant economic hardship on farmers and ranchers.

The U.S. EPA has promulgated rules implementing Sec. 112(r) of the Clean Air

Act that would require users of propane—any consumer who stores 10,000 pounds

or approximately 2,381 gallons of propane, agricultural, commercial, residential

users and marketers—to comply with mandated provisions of a most complex nature. There is the requirement for a very detailed Risk Management Plan by next

June. Given the very technical nature of the compliance assistance document and

the rule in general, agricultural users of propane will likely find it absolutely necessary to contract with outside engineering service providers to assist them with

compliance.

We sincerely believe EPA should reexamine this whole issue. In particular, the

Risk Management Plan should be reviewed. We look forward to any assistance you

and your committee members can provide in this very important matter.

Respectfully,

GARY HALL, President.

NEBRASKA FARM BUREAU FEDERATION,

December 28, 1998.

SENATOR CHUCK HAGEL,

Senate Office Building,

Washington, DC 20510.

DEAR SENATOR HAGEL: I am writing to convey agriculture’s strong concerns regarding the EPA’s proposed regulations on propane users.

As you may know, beginning June 21, 1999, propane facilities and users who have

more than 2,300 gallons of propane onsite will be required to submit a Risk Management Plan to the EPA, Many farmers in Nebraska that have drying facilities or

livestock facilities could be adversely affected by these requirements. In fact, a recent study done by the Nebraska Propane Gas Association showed that the total

cost of compliance for the State of Nebraska would be about $8.75 million.

These facilities are already complying with National Fire Protection Association

Rule 58, which governs Nebraska’s propane industry. This is a duplication of reporting procedures that are already in effect nationwide and will impose unnecessary

expenses oil agriculture, propane marketers and the taxpayers.

Agriculture is facing a critical time economically. With added expenses for compliance, many of the smaller operations will not be able to stay afloat. We must do

everything we can to protect the ag industry, not create further economic hardships

with duplicate regulations.

Sincerely,

BRYCE P. NEIDIG, President.
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FARMER’S PRIDE,

BATTLE CREEK FARMERS COOPERATIVE, N/S,

Battle Creek, NE 68715, October 14, 1998.

SENATOR CHUCK HAGEL,

1Russell Office Building,

Washington, DC 20510.

DEAR SENATOR HAGEL: Have reviewed a copy of Mr. Jim Makris’s (Director, Chemical Emergency Preparedness and Prevention Office, EPA) letter to Senator

Hagel dated 9/28/98. We received a copy of the letter from the Nebraska Propane

Gas Association, We appreciate the opportunity to respond to the letter and hope

that you will consider our plea for help. The letter indicated that ‘‘for propane marketers, the Emergency Planning and Community Right-To-Know Act of 1988 already requires some reporting to the

State, and most importantly, the Local Emergency Planning Committee. However,

the CAA requirements Passed by Congress establishes a critical link between prevention and right-to-know through a risk management program.’’ This statement clearly indicates how far out of touch the EPA is with conditions In the rest of the country, certainly in rural Nebraska. The critical link to Community Right-To-Know is the Local Emergency Response Committees. We have facilities in Madison, Pierce and Knox Counties in northeast Nebraska.

This area was covered by a Wide Area Emergency Response Committee which has

been dissolved. In none Of these counties is a Local Emergency Response Committee

yet organized. There are no Local Emergency Response Plans In place. Why is our company required to send a report on a local issue to Washington, when the rest of the system does not exist? EPA has the responsibility to establish

these organizations as viable local entities that represent wide constituencies (including local businesses). I’m sorry, they do not exist here. We send right-to-kmow

information to mailboxes and they are stored in piles. EPA seems to be pretending

that these entities exist as a viable means of communication on local issues. They

do not.

For the business constituency of the Community Right-To-Know there will be no

communication, except for the information that is put on the Internet by EPA and

interpreted by people with no knowledge or experience with the subject or who have

an axe to grind for their own purposes. Industry has no one to communicate

through. RMP is dangerously premature in rural Nebraska. Premature for the

health and growth of the farm supply cooperative industry in Nebraska and premature for our company and our farmer owners and patrons.

First, EPA needs to make sure that PERC’s exist and are operating, before they

take this very premature step in the evolution of this safety regulation.

Mr. Makris further indicated that:

‘‘there are no requirements under NFPA Standard 58 for written maintenance

programs, procedures to control change, or refresher training for distribution

plant operators and mechanics.’’

We suggest that these shortcomings (which are disputable) would be -much easier

to fix versus placing a whole new layer of regulation on the industry.

By what logic does EPA think that they can regulate better than can a Deputy

State Fire Marshal. We do not believe that our company has ever seen an EPA inspector at any of our facilities. But we see the Deputy State Fire Marshall several

times a year. We talk to him, listen to his Instructions, make changes that he suggests or orders. He is extremely conscientious in regulating our business for the

safety of his and our communities. We welcome his input and expertise. EPA is a

collector of papers. They do not regulate on a local basis. They just collect papers

and reports. They certainly are totally out of touch with our business and I think

most businesses in rural Nebraska.

He also indicates if a business is subject to OSHA’s PSM (Process Safety Management) it will have completed most of the RMP Prevention Program requirements.

Unfortunately, most farm supply cooperatives, including our company, deal with anhydrous ammonia and propane on a retail basis and as such are not covered by

OSHA’s PSM.

We do not need a better understanding of EPA’s RMP. Our problem is that:

• This is a local regulatory issue. It can only effectively be an Issue that needs

Washington’s help, when Local Emergency Response Committee’s are viable and

there is a real Community Right-To-Know program in place.

• This regulation is premature, it will hurt our business and will severely hamper our farmer owners and patrons and our growth if it is not stopped by corrective

regulation or by legislation.
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• We do not need another layer of regulation—if regulations that are enforced locally need fixing, fix them—do not get people from Washington involved with local

community preparedness, until they have done their homework.

Mr. Makris’ response to the NPGA while appreciated, simply is a statement of how out of touch this Agency is with your constituency. This issue needs corrective

legislation. Its time is not yet ready, We hope your office can help us with this very

important issue.

Sincerely,

TERRY SAMUELSON, GENERAL MANAGER.

OHIO GROCERS ASSOCIATION,

Columbus, OH 43221, October 9, 1998.

CONGRESSMAN TED STRICKLAND,

United States House of Representatives,

Washington, DC 20515.

DEAR CONGRESSMAN STRICKLAND: On behalf of the Ohio Grocers Association, I am

writing to urge you to oppose the EPA Risk Management Plan (RMP) scheduled to

be enacted in June 1999.

Under the EPA rules, propane marketers with tanks greater than 2381 gallons must prepare and submit detailed facility information including a worst-case scenario. These will be published on the Internet. I do not see the benefit in publishing

such sensitive information on the Internet where anyone can access it. The EPA rules will affect our members because it will affect the farmers and the

manufactures who stock the shelves. If propane suppliers and to spend extra time

and money to comply with the EPA rules, tickle down to grocers and their customers.

Propane marketers and users already comply with local, State and Federal regu- lations. They abide by the National Fire Protection Association Safety Standard 58,

with OSHA regulations and other EPA regulations. Thus, the EPA Plan will be redundant.

Please support regulations that will not require additional reporting requirements

and will not expose sensitive information to the public. No one is seeking to get out

of safety regulations. It just seems that State propane regulations should suffice for

compliance to EPA concerns.

Thank you in advance for your support.

Sincerely,

KRISTIN M. CORSALE, Vice President.

GENERAL ASSEMBLY OF THE STATE OF MISSOURI

HOUSE CONCURRENT RESOLUTION NO. 16

Relating to the Risk Management Program of the Environmental Protection Agency

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF MISSOURI, AS FOLLOWS:

Whereas, as required by section 112(r) of the Federal Clean Air Act, the Environmental Protection Agency has promulgated the Risk Management Program that requires the development of comprehensive prevention and emergency response programs for propane storage; and

Whereas, adequate safeguards to meet public safety needs currently exist under

Federal, State and local regulations; and

Whereas, the Environmental Protection Agency’s risk management regulations

will I dramatically increase costs of doing business without increasing safety by:

causing customers to switch away from propane, a federally approved clean fuel; duplicating State regulations based upon existing fire protection standards; duplicating

Federal right-to-know regulations; and not providing a fuel use exemption similar

to OSHA’s; and

Whereas, the EPA’s rules cover anyone with mom than 2380 gallons of propane

onsite, regardless of whether or not it is a single tank or connected tanks which

could easily be exceeded by individual restaurants, farms and some residences; and

Whereas, the costs, which is estimated to exceed one and one-half billion dollars

private sector of complying with EPA’s regulations will be staggering:

Now, therefore, be it resolved that the members of the Missouri House of Representatives of the Ninetieth General Assembly, First Regular Session, the Senate
114

concurring therein, hereby urge the Environmental Protection Agency to not include

propane in the Risk Management Program; and Be it further resolved that the Chief Clerk of the Missouri House of Representatives be instructed to prepare properly inscribed copies of this resolution for the

Missouri Congressional delegation.

CALIFORNIA COTTON GINNERS AND GROWERS ASSOCIATION,

Fresno, CA 93727, March 12, 1999.

Honorable Barbara Boxer,

United States Senate,

Washington, DC 20510.

DEAR SENATOR BOXER: As I am sure you are well aware, on March 16, the Senate Subcommittee on Clean Air, Wetlands, Private Property, and Nuclear Safety will be

conducting a hearing on section 112(r) of the Federal Clean Air Act. This hearing

is crucial to our industry, because the impact of this section of the Clean Air Act

will be discussed. As this Association and its members have indicated to you in the

past, the implementation of these requirements will do little to increase public safety, with regards to propane storage at end use facilities such as cotton gins and

farms.

Cotton gins and farms in California had to meet all building and fire codes when the storage tanks were installed, which stipulates compliance with National Fire

Protection Association Standard NFPA 58. Furthermore, these facilities also have

to submit hazardous materials business plans to the local administering agency,

typically a county agency. In addition, these tanks are also required to comply with

CalOSHA requirements, and are subject to CalOSHA inspection of the tank, safety

program and training records every three years. Last, but not least, each of these

facilities also has to have an emergency response plan coordinated through the local

emergency responder. These requirements go above and beyond the requirements

set forth in section 112(r). The new law would require these facilities to duplicate

efforts, and pay additional fees. The additional fees include: (1) a $120 per year

State surcharge to the Office of Emergency Services, the State oversight agency; (2)

a risk management plan review fee, assessed on an hourly basis; and (3) an annual

program fee by the local county to cover additional inspections. We understand the need to prevent serious accidents and reduce serious risk to

the public, but our industry’s propane tanks already meet the strictest safety requirements around. It does not make sense to duplicate efforts and pay substantial

fees for little or no benefit. We would respectfully ask that you give this issue every

consideration during the upcoming hearing. Your support is truly appreciated.

Sincerely,

ROGER A. ISOM, Director of Technical Services.

KINGS COUNTY FARM BUREAU,

Hanford, CA 93230, March 16, 1999.

HONORABLE BARBARA BOXER,

United States Senate,

Washington, DC 20510.

DEAR SENATOR BOXER: On behalf of the Kings County Farm Bureau which represents the interests of over 1,000 farmers, ranchers and dairymen in Kings County,

I would like to take this opportunity to present our concerns on the Senate Subcommittee on Clean Air, Wetlands, Private Property, and Nuclear Safety hearing.

Today the Senate Subcommittee on Clean Air, Wetlands, Private Property, and

Nuclear Safety will be conducting a hearing on section 112(r) of the Federal Clean

Air Act. This hearing is crucial to our industry, because of the impact the section

of the Clean Air Act to be discussed.

Farmers and the processors of their products in California had to meet all building and fire codes when the storage tanks were installed, in compliance with National Fire Protection Standard NFPA 58. They also had to submit hazardous materials business plans to the local administering agency. Additionally, these propane

tanks and wind machines are also required to comply with CalOSHA requirements

and inspections along with a safety program and training records every three years.

These facilities also must have an emergency response plan coordinated through the

local emergency responder. These requirements go beyond the requirements set

forth in section 112(r). The new law would require these facilities to duplicate efforts, and pay additional fees. The additional fees include the following:
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• $120.00 per year for State surcharge to the Office of Emergency Services, the

State oversight agency.

• A risk management plan review fee, assessed on an hourly basis.

• A annual program fee by the local county to cover the additional inspections.

Senator Boxer, we understand the need to prevent serious accidents and reduce

serious risk to the public, but our industry’s propane tanks and wind machines already meet the strictest safety requirements. It does not make sense to duplicate

efforts and pay substantial fees for little or no benefit. We would ask for your consideration of these important issues during this hearing.

Sincerely,

CHARLES DRAXLER, President.

NORTH CAROLINA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES,

Raleigh, NC 27611, November 23, 1998.

Mr. JIM MAKRIS, Director,

Chemical Emergency Preparedness and Prevention Office,

Environmental Protection Agency,

Washington DC 20460.

DEAR MR. MAKRIS: The North Carolina Department of Agriculture and Consumer

Services received a copy of a November 9, 1998, letter to you from Alan W. Klimek,

P.E., of the North Carolina Department of Environment and Natural Resources, Division of Air Quality, concerning a request to exempt farmers from the 112(r) program when using propane in agriculture related activities. Although Mr. Klimek’s

letter addressed propane tanks used in the curing of tobacco, there are many other

agricultural uses of propane, such as crop drying and heating of poultry and animal

housing, and these uses should fall under the same exemption sought by Mr.

Klimek.

The North Carolina Department of Agriculture and Consumer Services is the Authority Having Jurisdiction for National Fire Protection Association Standard 58

(NFPA 58), the LP-Gas Code. This standard carries the weight of State law in North

Carolina because it has been adopted by reference by the North Carolina Board of

Agriculture. As such, we inspect every bulk propane plant in the State every year.

If violations of NFPA 58 are found we issue an inspection report to instruct the operator of the plant to correct the violations within a specified period of time.

Our records indicate that the vast majority of propane installations on farms do

not meet the NFPA definition of a bulk plant; yet many of these farms have propane

storage in excess of the amount covered under 112(r). In most cases, propane tanks

are located in open areas significant distances from populated areas. Due to the general remoteness of these tanks, we believe that having to prepare a Risk Management Program for propane tanks on farms is not necessary.

We support the request from the North Carolina Department of Environment and

Natural Resources to exempt farmers from the 112(r) program. When using propane

in agriculture related activities and we urge you to render a decision as quickly as

possible.

Please feel free to contact us if you have any questions. You should direct your

questions to David Smith or Richard Fredenburg at 919–733–3313. Thank you for

considering our request.

Sincerely,

JAMES A. GRAHAM, Commissioner.

NEVADA BOARD FOR THE REGULATION OF LIQUEFIED PETROLEUM GAS

Whereas, as required by section 112(r) of the Federal Clean Air Act, the Environmental Protection Agency has promulgated the Risk Management Program that requires the development of a comprehensive prevention and emergency response programs for propane storage; and

Whereas, safeguards to meet public safety currently exist under Federal, State,

and local regulations; and

Whereas, the Nevada LP Gas Board, established in 1957 by the Nevada Liquefied

Petroleum Gas Act, regulates the safe storage, distribution, dispensing, transportation and utilization of propane and the safe manufacture, fabrication, assembly,

sale, installation and use of propane systems, containers, apparatus, and appliances

in Nevada; and
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Whereas, since the establishment of the LP Gas Board, there have been no incidents resulting in loss of life or property related to any entity that would be subject

to the EPA’s rules; and

Whereas, the EPA’s rules cover anyone with more than 2380 gallons of propane

on site, which could easily be exceeded by individual mining companies, industrial

plants, casinos, schools, restaurants, hotels, farms, ranches, other businesses, and

some residences; and

Whereas, the Environmental Protection Agency’s risk management regulations

would not significantly increase the safety to LP Gas consumers over the present

regulation of the LP Gas Board and the existing NFPA standards while increasing

the costs of propane to the consumer; and

Whereas, the Environmental Protection Agency’s risk management regulations

may cause customers to switch away from the clean burning fuel of propane; may

duplicate State regulations based upon existing nationally recognized standards;

may duplicate Federal right-to-know regulations; may not provide a fuel use exemption similar to OSHA’s and may force consumers to use smaller storage volumes,

necessitating more frequent transfers and thereby resulting in an increased risk to

consumers;

Now, therefore, be it resolved that the members of the Nevada Board for the Regulation of Liquefied Petroleum gas concurring herein, hereby urge the United States

Environmental Agency to remove propane from the Risk Management Program; and

Be it further resolved that the staff of the Nevada LPGas Board be instructed to

prepare properly inscribed copies of this resolution for the Nevada Congressional

Delegation, the United State Senate Committee on the Environment and Public

Works, and Director of the Federal Environmental Protection Agency.

Approved unanimously this 4th day of March, 1999.

BERNARD SEASE, Chairman.

State of Nevada.

BOARD FOR THE REGULATION OF LIQUEFIED PETROLEUM GAS,

Carson City, Nevada 89702, October 9, 1998.

Congressman TED STRICKLAND,

United States House of Representatives,

Washington, DC 20515.

DEAR CONGRESSMAN STRICKLAND: On behalf of the Ohio Grocers Association, I am

writing to urge you to oppose the EPA Risk Management Plan (RMP) scheduled to

be enacted in June 1999.

Under the EPA rules, propane marketers with tanks greater than 2,3981 gallons

must prepare and submit detailed facility information including a worst-case scenario. These will be published on the Internet. I do not see the benefit in publishing

such sensitive information on the Internet where anyone can access it.

The EPA rules will affect our members because it will affect the farmers and

manufactures who stock the shelves. If propane suppliers and big users are required

to spend extra time and money to comply with the EPA rules, their expenses will

trickle down to grocers and their customers.

Propane marketers and users already comply with local, State and Federal regulations. They abide by the National Fire Protection Association Safety Standard 58,

with OSHA regulations and other EPA regulations. Thus the EPA Risk Management Plan will be redundant.

Please support regulations that will not require additional reporting requirements

and will not expose sensitive information to the public, No one is seeking to get out

of safety regulations. It just seems that State propane regulations should suffice for

compliance to EPA concerns.

Thank you in advance for your support.

Sincerely.

KRISTIN M. CORSALE, Vice President.
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HECLA MINING COMPANY,

Coeur d’Alene, Idaho 83815–8788, October 14, 1998.

SENATOR LARRY CRAIG,

United States Senate,

Washington, DC 20510.

DEAR LARRY: This letter seeks your assistance in opposing EPA regulations that

are burdensome to the Propane industry and will affect the storage facilities of propane on our mine sites.

EPA’s burdensome risk management regulations cover all facilities with more

than 10,000 pounds of propane on site.

Basically, the EPA is requiring a long, detailed report that is only adding additional expense to private businesses without any additional safety benefit.

Commodity prices are already depressed, the mining industry does not need to

add to its operational cost more unnecessary regulation by government.

We don’t mind complying with appropriate safety regulations. However, EPA’s

rules duplicate existing State regulations, and we believe that an alternative compliance method should be allowed. Therefore, we urge you to support alternative legislation providing that companies in compliance with the National Fire Protection Association Safety Standard 58 are by definition in compliance with EPA’s risk management program regulations.

Thank you for your time and consideration of these views.

Sincerely yours,

W. BILL BOOTH, Vice President—Investor and Public Affairs.

THIEMAN TAILGATES, INC.,

Celina, OH 45822–1566, September 15, 1998.

CONGRESSMAN JOHN A. BOEHNER,

United States House of Representatives,

Washington, DC 20515.

DEAR CONGRESSMAN BOEHNER: As a member of the National Propane Gas Association, I have been keeping abreast of the ERA risk management regulations scheduled to go into effect in June, 1999. I am writing to ask you to help establish some

alternative method of compliance to the EPA regulations.

Thieman Tailgates, Inc. manufactures hydraulic liftgates that are seen on the

back of trucks and trailers that deliver propane gas and other equipment for the

propane industry and other markets. Our company markets our liftgates to propane

marketers nationwide.

The EPA’s risk management regulations will pose many problems for our customers, many of whom have tanks greater than the 10,000 pound threshold. Among

the problems, as I see it, axe added cost to comply with the regulations and public

disclosure of sensitive information on the Internet.

To the best of my knowledge, the propane industry already operates under strict

regulations at the Federal, State and local levels. I do not think that the industry

needs more regulations imposed by EPA. Additional regulations will be an obstacle

to their doing business and keeping their prices reasonable. This will indirectly effect my business with the propane industry.

I know that my customers, many of whom are in your congressional district, are

concerned about safety but I urge you to support a mechanism whereby compliance

with regulations already in place will suffice for compliance with EPA’s risk management regulations.

Thank you for you time and consideration of the concerns of the propane industry

and ancillary industries.

Sincerely,

BARTT SUCHLAN, Marketing Coordinator.

INTERMOUNTAIN OUTDOOR SPORTS,

Meridian, ID 83642, October 2, 1998.

SENATOR CRAIG,

United States Senate,

Washington, DC 20510.

DEAR SENATOR CRAIG: Our family has been in business for 20 years and we employ 105 people between our two Sporting Good Stores, We are thankful for the op-
118

portunity to own our business. We are fully aware that the employees that work

for us represent families that depend on their income for support.

I am writing to you today on behalf of all small business owners that are des- perately trying to stay in business and to provide job opportunities for the community. As you are well aware, government burdensome regulations are The reason

small businesses are closing their doors. I was very upset when I recently found out of one more attempt by government to interfere in private enterprise.

Beginning June 21, 1999 propane facilities that have tanks with over 2,381 gal- lons on their premises are required to submit to EPA a Risk Management Plan. I fully expect that cost will be passed onto all of my customers that use propane for recreational purposes.

It is my understanding that these new EPA requirements duplicate existing State safety regulations and that an alternative compliance method should address the

safety concerns of the EPA. Therefore, I urge you to support legislation that provides companies with National Fire Protection Association standard 58 which are,

by definition, in compliance with the EPA’s risk management program regulations. Please get government off the backs of small business and tax-payers.

Sincerely,

GERRY SWEET, General Manager/ Owner.

MOBILE TOOL INTERNATIONAL, INC.

Westminster, CO 80030, October 15, 1998.

SENATOR WAYNE ALLARD,

United States Senate,

Washington, DC 20510.

DEAR SENATOR ALLARD: As an employee-owner of a manufacturing plant I am deeply concerned as to how section 112(r) of the EPA proposed regulations to the

1990 Clean Air Act will affect my company and our customers. Mobile Tool International employs more than 350 individuals, manufacturing aerial lift equipment,

and other equipment used In the utility and telecommunications industry. Although the EPA’s proposed regulations would only affect facilities which store more than 2300 gallons of propane, our propane supplier will be affected. With the

additional burden placed on them by the EPA In regards to duplicating the reporting which they already do at the State level, they will have no choice but to raise

the cost of propane. We are large users of propane in a variety of ways. This will

impact our profitability which could also raise the price of our equipment to the enduser. As employee-owners, we pride our-selves on building one of the finest line of prod- ucts In the market, and being able to deliver those products to our customers at

an affordable price. I believe in fair competition and competing on a level playing

field. However, if our propane supplier is forced to comply with these regulations

as written, they will be put at a great disadvantage with many of the other fuel

sources which are not covered by these regulations.

This regulation affects many people In many ways. I would appreciate your looking into this matter. Thank you.

Sincerely,

PENNY GAGLIARDI, Sr. Production Control Planner.

CITY OF WAYNESBORO, GEORGIA,

September 16, 1999.

CONGRESSMAN CHARLIE NORWOOD,

United States House of Representatives,

Washington, DC 20515.

DEAR CONGRESSMAN NORWOOD: This letter seeks your assistance in opposing an

EPA regulation.

I have been contacted by local propane dealers in my community about section

112 of the Clean Air Act. Propane dealers are already over-regulated by many government agencies. Of course, regulation is important to the safety of our community.

However, when the EPA requires information that is already being provided by the

National Fire Protection Association 58, the Community-Right-to-Know-Act of 1996

and other Federal, State and local agencies it appears to be a real duplication of

effort. Plus, the EPA providing confidential and sensitive propane facility information on the Internet is ludicrous, just the EPA’s Internet requirement of publishing
119

this type of information to a world of terrorists, criminals, ′′kids killing kids’’ and

mal-adaptive people is more of a hazard than any propane worst-case scenario.

Please do everything you can to stop this over-regulation by the EPA and thank

you for the time and consideration of my views on this issue.

Sincerely,

MARTIN DOLIN, Mayor of Waynesboro.

CITY OF TALLAHASSEE, FLORIDA,

City Hall, Tallahassee, FL 32301, September 10, 1998.

SENATOR BOB GRAHAM,

Senate Office Building,

Washington, DC 20510.

RE: EPA’s proposed new regulations on propane gas

DEAR SENATOR GRAHAM: As someone who uses propane gas, I am concerned about

an EPA regulation that is being imposed on propane gas suppliers and large users.

I feel this is going to needlessly increase costs without an increase in safety.

All States—including Florida—have adopted safety regulations proposed by the

National Fire Protection Association. Now, the EPA wants to impose additional regulations.

One of my biggest concerns is the EPA wants detailed information regarding some

users and suppliers facilities. Then the EPA is going to post this information on the

Internet. It doesn’t take much ′′surfing′′ of the net to realize there are a lot of people

out there who could do great harm if they had access to this type of information.

Therefore, instead of increasing safety, I’m fearful the EPA’s regulations could potentially do great harm.

In light of these detailed safety regulations that exist in all 50 States today, I

urge you to support a mechanism whereby compliance with NFPA 58 suffices for

compliance with EPA’s RMP regulations.

Should you have any questions, please feel free to call me. Thank you.

Sincerely,

JOHN PAUL BAILEY, Mayor Pro Tem.

OFFICE OF THE MAYOR,

Wrens, GA 30833, September 10, 1998.

THE HONORABLE CHARLIE NORWOOD,

House Office Building,

Washington, DC 20515.

DEAR CONGRESSMAN NORWOOD: Recently, I learned from Henry Jones, Town and

Country Gas, Inc., about an EPA regulation that is unnecessary and costly.

Safety is important to everyone; however, the propane industry already operates

under strict regulations at the Federal, State and local levels. Unnecessary government regulations only leads to increased costs in the private sector and the costs

of complying with EPA’s regulations will be staggering. Also, under these regulations the EPA will publish detailed facility Information on the Internet which will

only give valuable information to terrorist and criminals intent on using this information for illegal and tragic ends.

As a community leader, I urge you to act as rapidly as possible to stop this unnecessary EPA risk management regulation.

Sincerely,

J.J. RABUN, Mayor.

FLORIDA PUBLIC UTILITIES COMPANY,

West Palm Beach, FL 33402–3395, December 22, 1998.

HONORABLE BOB GRAHAM,

United States Senate,

Washington, DC 20510.

DEAR SENATOR GRAHAM: Our company, Flo-Gas Corporation, a subsidiary of Florida Public Utilities Company founded in 1–924. employs 300 workers in the State

of Florida. Safety is the number one priority when running our company. However,

recently the Environmental Protection Agency has unposed an extremely costly and
120

time-consuming regulation on our business that will not increase: safety for our customers, employees, or the general public.

Beginning June 21, 1999 propane facilities like ours that have tanks with over

2,381 gallons on their premises are required to submit to EPA a Risk Management

Plan. The propane industry already operates under strict regulations at the Federal,

State, and local levels. For example, all 50 States have adopted in some form, either

directly or indirectly, safety standard No. 58 published by the National Fire Protection Association. OSHA regulates our company’s workplaces, and we also submit facility data to EPA and State/local emergency response agencies under Federal community right-to-know rules. Our industry has an extremely good safety record and

the new regulation will not increase it any more.

Our company is not looking to escape regulations that truly enhance safety of propane installations. Indeed, that is the whole reason why States have incorporated

NFPA 58 into their regulations. I, therefore, urge you to support legislation that recognizes compliance with NFPA 58 as an alternative means of complying with EPA’s

section 112(r) rules.

Thank you for your time and consideration of these views,

Sincerely,

C.L. STEIN, Senior Vice President,

Flo-Gas Corporation.

NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES,

Division of Air Quality, Raleigh, NC 27604, November 9, 1998.

MR. JIM MAKRIS, Director,

Chemical Emergency Preparedness and Prevention Office,

Environmental Protection Agency,

Washington, DC 20460.

Subject: Applicability of 112(r) Chemical Accident Prevention requirements for propane to Farms

DEAR MR. MAKRIS: The North Carolina Department of Environment & Natural

Resources Division of Air Quality (DAQ) has been made aware that approximately

11,000 farms exist in North Carolina Which use propane to cure tobacco. The

threshold for which farm propane is being used is such that the tanks are not inspected by the North Carolina Department of Agriculture (NCDA). The NCDA currently inspects propane users with tank sizes 2,000 gallons (8.400 pounds at 4.2

pounds per gallon) or larger and smaller tanks with an aggregate quantity of 4,000

gallons. (16,800 pounds) or more. Many of the North Carolina farmers use propane

in 500 or 1,000 gallon tanks with a total quantity on site greater than the 112(r)

threshold of 10,000 pounds but less than the 4,000 gallons inspected by the NCDA.

Farmers were exempted from the 112(r) program when using ammonia as an agricultural nutrient. I believe after discussions with EPA Region IV that EPA never

intended to subject farmers to the requirements of this program. Many NC farmers

have land large enough that the distance to endpoint for a worst case release would

not reach a public receptor. Since the toxicity of ammonia is far more dangerous

than propane, the NCDAQ recommends that the EPA exempt farmers from the

112(r) program when using propane in agriculture related activities.

Thank you for your consideration, and advise us of your decision. Please contact

Mike Chapman at (919) 715–3467 for any additional information regarding this letter.

Sincerely,

ALAN W. KLIMEK, P.E.

SCANA PROPANE SERVICES,

Darlington, SC 29532, October 9, 1998.

CONGRESSMAN JOHN SPRATT,

United States House of Representatives,

Washington, DC 20515.

DEAR CONGRESSMAN SPRATT: You may not be aware of this fact, but propane gas

is used extensively in the processing of tobacco. Many tobacco farmers are big customers of propane. It is my understanding that the EPA wants to impose new regulations that directly affect propane customers. The results of these regulations

would be higher prices for propane and a needless duplication of safety rules.
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Propane is an extremely safe and efficient fuel. It is cost-efficient as well. States

and localities have regulations in place that govern the safe use of this gas. The

propane gas industry voluntarily cooperates with governments, businesses and industries to ensure the safest possible use of this product.

I do not have to tell you that with tobacco under assault from other quarters, the

last thing we farmers need is another attempt by a government bureaucracy to heap

needless regulations on us and raise our costs. I would request that you oppose the

EPA’s efforts to implement section 112(r) of the Clean Air Act.

Sincerely,

GEORGE W. ABBOTT, President.

SCANA PROPANE SERVICES,

York, SC 29745, September 3, 1998.

LISA BONTEMPO,

National Propane Gas Association,

Washington, DC 20036, September 3, 1998.

DEAR MS. BONTEMPO: I am writing to inform you of examples of fuel switching

as a direct result of the impending EPA Risk Management Program (RMP) requirements. Our company serves numerous commercial and industrial facilities throughout North and South Carolina and we continue to hear from our larger customers

about plans to do away with their propane systems due to RMP regulations.

Bosch Corporation desires to remove the propane back-up systems from all of

their plants across the nation due to RMP regulations. These systems are utilized

during peak demand periods (primarily on the coldest days in winter) to replace the

natural gas supply which is interrupted during these cold snaps so there is enough

natural gas to supply the residential heating load. Bosch’s intent is to go on a firm

natural gas contract so they are not interrupted and therefore will not need to store

propane on site.

At Bosch’s Charleston, SC plant, where they make antilock braking systems and

fuel injectors, switching to firm natural gas service will cost approximately $75,000

per year more than having an interruptible service with propane as a back-up. I

expect this cost is fairly representative of the approximately 50 plants Bosch operates across the nation.

Bosch had hoped to consolidate their natural gas purchases among all plants and

therefore reduce the cost of gas in this manner to offset the higher cost of firm delivery services. This may lower the cost of purchasing the gas at the wellhead, but having the gas transported to the burner tip on a firm basis is what drives the cost

up over an interruptible service. Bosch is concerned about the potential increase in

cost but may choose to accept it due to RMP regulations and the potential liability

(public perception, lowered property values in the vicinity of their plants, risk of

sabotage, etc.) that completing and submitting RMP’s will bring upon their plants.

At the Savannah River Site (SRS), which is a DOE-owned weapons grade plutonium site, they have lowered their on site propane storage levels to below the

threshold limits (a mere 2358.5 gallons) due to RMP regulations. I don’t know what

they are utilizing propane for, due to the sensitive nature of their business, but they

will likely require more deliveries (which increases the potential for an accident to

occur) to maintain their energy supply.

Kimberly-Clark, in Beach Island SC, desires to eliminate their use of propane as

a backup supply to natural gas due to RMP regulations. It now appears that due

to the substantial increase in the cost of a firm natural gas supply (similar to

Bosch’s), they are considering having RMP’s completed for each plant site. The feedback they have gotten from the RMP consulting industry is to expect to spend

$10,000 to $15,000 at each plant.

As you can see, these regulations are having a tremendous impact on not only

the propane industry, but on propane consumers as well.

Very truly yours,

PAUL V. NORRIS, P.E.
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CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION,

Sacramento, CA 94244–7460, November 18, 1998.

THE HONORABLE HARRY WAXMAN,

United States House of Representatives,

Washington, DC 20515.

DEAR CONGRESSMAN WAXMAN: As Director of the California Department of Forestry and Fire Protection, Office of the State Fire Marshal, I am contacting you regarding the EPA’s recent rule implementing section 112(r) of the Clean Air Act. This

rule would require facilities using hazardous substances to submit a detailed Risk

Management Plan that would include an offsite consequence analysis describing the

potential impacts of a worst case accidental release to the EPA. This information

would then be made public via the Internet. The substances that must comply include propane gas that is used throughout California. Propane gas is currently covered under a myriad of regulations including Califor- nia Building and Fire Regulations, the National Fire Protection Association’s LPGas Code an the Federal Community Right-to-Know rules. The State Fire Marshal’s

Office works closely with industry and the fire service to develop training for emergency response personnel and specialized response plans to deal with the unique

characteristics of the substances covered by the rule to insure the public’s safety. While my office supports the public’s right-to-know, we believe that the wide- spread dissemination of the data via the Internet would provide a virtual ′′roadmap′′ to terrorists intent on creating havoc within the communities we safeguard. To that

end, I urge you to delay further implementation of the Internet publication of the

Risk Management Plan ′′offsite consequence analysis′′. Information and support leg- islation that allows compliance with existing rules and regulations.

Sincerely,

RICHARD A. WILSON, Director.

OLIVE ROAD FLEA MARKET,

JACKSON ENTERPRISES,

Brookville, OH 45309, September 21, 1998.

SENATOR MIKE DEWINE,

United States Senate,

Washington, DC 20510.

Dear Senator DeWine: I felt it was absolutely necessary to contact you regarding a regulation being placed on the propane industry by the Environmental Protection

Agency (EPA). I own and operate three large cow barns that I converted into a flea market. I heat these buildings with propane gas because the costs to have natural gas lines

connected were excessive. Because these are large drafty buildings, I have four onethousand gallon tanks on my property to provide a large enough storage to enable

my propane marketer to keep me supplied in the wintertime without interruption. My propane supplier has recently informed me about EPA’s rules implementing section 112(r) of the Clean Air Act Amendments of 1990. Propane marketers and

their customers with total storage of greater than 10,000 pounds (2,381 gallons) of

propane must prepare and submit by next June detailed facility information including a conjectural worst-case scenario to the EPA and the public, which will the be

placed on the Internet. If I understand this program correctly, propane marketers

and commercial customers such as myself will not have to make any changes to our

propane systems, but will have to fill out a very lengthy and detailed report for the

EPA. Among many other things, this plan must include an estimate of what might

happen if one of the propane tanks on my property exploded. I don’t understand how

knowing this information, yet not taking any action to prevent it, is going to improve safety in any way. From my experience in getting my propane system installed a few years ago, the propane industry is already regulated by Federal, State

and local codes. We had to take out permits, have inspections and pressure tests

inside and out, and I felt the codes required a pretty thorough and safe process in

the initial installation of these tanks.

I am also concerned about getting this report filled out correctly, and who is going

to pay for it. I am not in the propane business, and am certainly not in any position

to fill out a technical report as detailed as this one appears to be. If my propane

supplier is able to do this work, I am concerned about any additional cost, with apparently no increase in safety. I just don’t see any purpose to this new regulation.

My company is not looking to escape regulations that truly enhance the safety of

propane installations. It just appears that this regulation is a duplication of codes
123

already in effect, with an increased cost and no safety benefit. I therefore urge you

to support legislation that recognizes compliance with the current regulations as an

alternative means of complying with EPA’s section 112(r) rules. Thank you for taking time to read my letter. Please give serious consideration to the concerns I’ve expressed.

Sincerely,

RICHARD JACKSON.

TABOR LUMBER COOPERATIVE,

Tabor, SD 57063, October 5, 1998.

HON. TOM DASCHLE,

United States Senate,

Washington, DC 20510

DEAR SENATOR DASCHLE: EPA’s burdensome risk management regulations cover all facilities with more than 10,000 pounds of propane on site. This is not that much

propane, so these rules cover not only my bulk storage facilities but also most of

my commercial customers as well. I am now starting to get calls from my customers

who are reconsidering their usage of propane in light of the costs of complying with

EPA’s rules.

My company is not looking to escape regulations that truly enhance safety of pro- pane installations. Indeed, that is the whole reason why States have Incorporated

NFPA 58 into their regulations. I, therefore, urge you to support legislation that recognizes compliance with NFPA 58 as an alternative means of complying with EPA’s

section 112(r) rules.

Should you have any questions, please feel free to call me. Thank you.

Sincerely,

ALOIS C. RUMAN, Manager.

ROSS RANCH SOUTH,

Tallahassee, FL 34308, October 2, 1998.

THE HONORABLE CONNIE MACK,

United States Senate,

Washington, DC 20510.

DEAR SENATOR: This letter seeks your assistance in opposing an EPA regulation that is so burdensome that it is forcing us to consider switching to other fuels. We utilize propane on our ranch here.

EPA’s burdensome risk management regulations cover all facilities with more than 10,000 pounds of propane on site. This is not that much propane.

I am proud of our safety record. We have never had a problem with propane and have an excellent safety record. In light of the detailed safety regulations that exist here in Florida as well as all other 50 States, urge you to support a mechanism whereby compliance with NFPA

58 suffices for compliance with EPA’s RMP regulations. I hope we can count on your support on this issue and I look forward to hearing from you.

Sincerely,

CONNOR ROSS, Owner.

DEPARTMENT OF HOUSING, BUILDINGS AND CONSTRUCTION,

Frankfort, KY 40601–4322, September 2, 1998.

REPRESENTATIVE EDWARD WHITFIELD,

United States House of Representatives,

Washington DC 20515

DEAR REPRESENTATIVE WHITFIELD: On behalf of the Kentucky State Fire Marshal’s Office—Hazardous Materials Section, I am writing with regard to an important domestic safety issue that has recently come to my attention.

EPA has promulgated regulations under the Clean Air Act Amendments of 1990

that require covered facilities to develop risk management plans detailing sensitive

facility specific information. These plans must be submitted by next June 21, 1999

and will be available to the public on the Internet. The rules cover many different

substances, but this letter specifically addresses the rules as they pertain to propane

because it is so highly regulated already.
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1Professor of Law, George Mason University. Distinguished Senior Fellow, Center for the

Study of American Business, Washington University.

In my jurisdiction and elsewhere, propane is regulated by State safety and environmental laws. These laws and regulations impose hefty construction and other requirements on propane marketers and users to ensure accidents don’t occur. I also

know that my State and local emergency planning agencies, created by the Federal

Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), collect

substantial information from such facilities that is publicly available.

I am supportive of the public’s right-to-know about industrial facilities within a

given community through laws like EPCRA, but I believe that EPA’s rules are an

exercise in regulatory overkill. This requirement will add more paperwork layers for

all parties involved and will thereby divert attention and resources away from safety activities. There needs to be some balance between public knowledge and public

safety, but EPA’s rules will provide terrorist and other ′′ne’er-do-wells′′ with a virtual roadmap to cause damage and havoc in my community. Remember, my organization and staff are the ones on the front lines of emergency response—let’s not create more opportunities for them to be harmed. I am not alone in expressing these

concerns, intelligence agencies such as the FBI, the International Association of Fire

Fighters, the National Fire Protection Association, and the National Propane Gas

Association have all raised their voices about this issue.

I understand that Congress is likely to insert language admonishing EPA to work

to resolve the domestic terrorism concerns in the bill funding EPA for next year.

But my concerns go beyond this, and I believe that a stronger indication of Congressional concern on this important issue is warranted. I frankly can’t believe that Congress would want EPA to overlay a completely new regulatory scheme on top of the

State regulations that already exist to keep propane facilities safe.

I support safety. I support appropriate regulations. EPA’s risk management rules

are not necessary, duplicative, and potentially a boon to terrorists. I therefore urge

you to go beyond the Congressional report language and enact into law a one-year

delay, at a minimum, on EPA’s risk management program rules as they apply to

the already highly regulated propane industry.

Respectfully,

G. RODNEY RABY, Assistant State Fire Marshall.

[From the Alliance for Fair Energy Competition]

THE FLAWS OF INCLUSION OF PROPANE IN THE EPA RMP REGIME

(By William H. Lash III 1)

INTRODUCTION

What do Bhopal, India and your local Burger King restaurant have in common?

To most of us the two are as different as night and day. One evokes the painful

memory of a deadly, toxic chemical release the other is a symbol of a family outing

for burgers and shakes. Yet the Environmental Protection Agency would cavalierly

lump these two enterprises together and impose burdensome regulation originally

designed for toxic chemical facilities on small family farms, hotels and restaurants.

This study will discuss the EPA’s expanded ‘‘right to know’’ regime and the threat

it poses for the American economy, the propane industry and the environment. The

planned EPA risk management program (RMP) will injure consumers, the environment and undermine safety efforts nationally.

EXPANDED RIGHT TO KNOW PROGRAM

The expanded Community Right to Know Program is established under the Clean

Air Act Amendments of 1990. Section 112(r) of the amended Clean Air Act established a new Federal mandate to focus on the prevention of and response to accidental releases of toxic chemicals. The objective is to prevent serious chemical accidents

that have the potential to affect public health and the environment. Under these

requirements, industry must develop and make public risk management plans

(RMPs.).

This legislation has its origin in the Bhopal, India disaster where a toxic chemical

release killed and injured approximately 2000 people. However, according to Senator
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2Senator John H. Chafee, Letter to Honorable Carol M. Browner, Administrator, Environmental Protection Agency, November 4, 1998. 3The EPA estimates 66,000 firms will be required to develop RMPs for any of the 140 listed

substances. This estimate is inaccurate. Analysis by the National Propane Gas Association demonstrates that over 1 million facilities for propane alone will be included in the RMP regime.

John H. Chafee (R-RI) congressional ‘‘concern was related to chemical releases, not

fuel explosions.’’ 2

Pursuant to the Clean Air Act Amendments of 1990, ‘‘risk management plans’’ (RMPs) must be written for more than 66,000 3 industrial facilities, including chemi- cal plants, oil and gas refineries, pharmaceutical companies, electric and gas utilities, and waste water treatment works. Military and energy facilities of the Federal

government also are required to establish risk management plans. The plans must

include evaluations of the risks and hazards at each installation, as well as discuss

accident prevention and proposed responses to an accidental release for any of 140

hazardous substances on site. Each firm also must develop an ‘‘offsite consequence

analysis’’ (OCA). The OCA for each facility must analyze the dangers to the public

and the environment of possible accidental releases. The most controversial part of

these requirements is the preparation of ‘‘worst case scenarios.’’ A worst case scenario must disclose: (1) the chemical or hazardous material that might cause the

worst case scenario if released, (2) its physical state, i.e., gas or liquid, (3) the

amount of the material that would need to be released to cause the situation. Unfortunately, in its regulatory zeal, the EPA has swept other unintended industry sectors into this program.

These evaluations also must identify possible aspects of a release leading to the

worst case scenario. The topography of the area in which the plant is located and

the reach of the effects of the release must be included. The description must estimate the number of people injured, killed, or otherwise ‘‘affected’’ by the release.

Firms also must disclose their addresses and locations by longitude and latitude,

the nature and amounts of hazardous materials on site, and the number of full-time

employees at the site.

WHAT IS PROPANE?

Propane or liquefied petroleum gas (LP-Gas) is an approved clean fuel under the

1990 Clean Air Act Amendments and the National Energy Policy Act of 1992. It can

be in either a liquid or gas state. Propane supplies 3 to 4 percent of U.S. total energy needs. Ninety percent of the United States propane supply is produced domestically.

Propane is employed widely in a variety of fields. Approximately 60 million people

in the United States use 16.5 billion gallons of propane annually. In 1994 propane

consumption followed this pattern:

8.8million gallons for utility/gas industry usage,

50.7 million gallons for internal combustion engine use,

1.5 billion gallons for agricultural and other uses,

5.4 billion gallons for residential/commercial purposes,

9.0 billion gallons for chemical/industrial usage, and

14.3 million American families use propane, with 5 percent utilizing these fuels

as their primary heating source.

Propane is indeed the most widely employed alternative fuel. Nearly 4 million vehicles globally operate on propane. The United States is home to 10,000 public propane refueling stations and a network of licensed propane conversion centers nationwide. Due to the low pollution characteristics of propane, more than 300,000 forklift

truck operators and other indoor vehicle operators use this fuel. Over 80,000 bus,

taxi and delivery services and fleets are powered by propane.

Propane is probably familiar to most people as a recreational heating and cooking

fuel. The Barbecue Institute of America reports that 84 percent of all U.S. households own a barbecue grill. Fifty-five percent of these households own a propane

grill.

On 660,000 American farms, propane is at work. Agricultural applications include

crop drying, flame cultivation, fruit ripening, space and water heating, refrigeration

and powering vehicles. Over 1 million commercial firms including hotels and restaurants use propane as an energy source. Some 350,000 industrial facilities use

propane as well.

PROPANE REPORTING REQUIREMENTS UNDER AN EXPANDED RIGHT TO KNOW PROGRAM

Pursuant to the RMP regulations, three increasingly burdensome compliance regimes are established for listed materials present in amounts above a given thresh-
126

4Kermit W. Richardson, Master, National Grange, Letter to Senator John Chafee, September

28, 1998.

old. For propane facilities, the threshold quantity is 10,000 pounds or 2,381 gallons

at 60 degrees F. Program 1 reporting requirements are less burdensome than Programs 2 and 3. Under Program 1, propane facilities must establish a worst case scenario and a 5 year release history. They must also coordinate their emergency response plan with local officials. To be classified as a Program 1 participant, a propane facility must demonstrate that there are no ‘‘public receptors’’ within range of

the worst case scenario zone of impact. ‘‘Public receptors’’ are offsite residences, and

other institutions such as school, hospitals buildings, parks or recreational areas inhabited or occupied at anytime by the public where the public could be exposed to

radiant heat or overpressure from an accidental propane release.

Program 2 involves a more heavily detailed evaluation of hazards and implementation of prescribed accident prevention steps. In Program 2, propane facilities must:

1. ensure that up to date safety information is available;

2. conduct a detailed hazard review;

3. prepare written operating procedures;

4. ensure that each employee has been trained in the operating procedures;

5. maintain the mechanical integrity of all equipment;

6. complete compliance audits every 3 years; and

7. investigate each incident.

Program 2 also requires propane facilities to prepare at least one alternative release scenario that is more likely to occur than a worst case scenario.

Program 3 has the most stringent and rigorous requirements. This program will

affect propane facilities that are covered by OSHA’s Process Safety Management

(PSM) regulations. Under Program 3, covered propane facilities must perform essentially the same tasks as required under Program 1 and 2 plus many others that are

analogous to OSHA’s PSM requirements.

There are several problems with propane being included in the RMP regime. The

regulatory requirements of compliance with this program will unduly burden small

businesses. Unlike large chemical facilities, most propane users that would be subject to the EPA regulation are small businesses, farms, hotels, etc. The National

Propane Gas Association (NPGA) estimates that 330,000 farms will be covered by

the RMP reporting regime. Another 325,000 commercial facilities also are threatened by the burdens of RMP reporting and 350,000 industrial facilities using propane will similarly be subject to RMP.

These firms are not equipped with the bank of lawyers and experts needed to fulfill reporting requirements. In many cases, they will turn to their propane supplier

and have them bear the costs of compliance or risk losing them as a customer. This

will result in higher fuel costs and a deadweight loss.

The technical expertise required for compliance will not come cheaply. Estimated

costs of engineering or other service providers will range from $1,000 to $8,000 per

site. Kermit W. Richardson, Master (President) of the 300,000 member National

Grange estimates that ‘‘if 100,000 farmers incur an expense of $1,000 per site the

compliance burden placed on the farm economy will exceed $100 million.’’ 4 Total

cost of compliance with the RMP program for the propane industry is estimated at

over $1 billion. But this figure doesn’t take into account the losses to the industry

from fuel switching caused by burdensome reporting requirements. Small and large

propane users will shift to other energy sources to avoid needless regulation and paperwork. The costs of compliance will ultimately be passed onto consumers.

ENVIRONMENTAL AND SAFETY IMPLICATIONS OF RMP

Inclusion of propane in the right to know regulation will result in the loss of the

benefits of propane, a clean fuel. Many propane users will be daunted and intimidated by the complicated reporting requirements. Right to know plans will unfairly

place propane at a competitive disadvantage to other fuels, not burdened by expensive and excessive regulations. These propane users will be shifting to less clean

fuels. This will lead to increased air emissions from fuel oil or coal fired generated

electricity.

Monitoring the millions of propane users will strain the EPA’s capabilities and

greatly increase the agency’s workload. Identifying, reaching and counseling the

thousands of rural propane users is a challenging task that the EPA is not up to.

Both the monitoring of the RMPs of the propane industry as well as the increased

air emissions from the inevitable regulatory fuel shift will leave the EPA unable to

do its job or seeking additional budget increases. The earlier EPA estimates that
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5The National Fire Protection Association, NFPA, is a non profit, voluntary association devoted to fire prevention and safety. 6 NFPA 58 Standard for the Storage and Handling of Liquefied Petroleum Gases.

7Gale Haag, Office of the Kansas State Fire Marshal Letter to Senator Sam Brownback, September 8, 1998. 8 Id.

9P.L. 104–113 ; 110 Stat. 775 (1996).

10 Id.

66,000 firms would be subject to RMP reporting fails to account for the over one

million propane customers included in the reporting regime.

Inclusion of propane in the RMP reporting regime also increases the risk of accidents. Propane customers, attempting to avoid the burdens of RMP reporting may

shift to smaller tanks, will lower their on-site volumes below the threshold amount

of 2,381 gallons. Smaller tanks with no decrease in mand will necessarily result in

more propane shipments. Propane is in its safest state when sitting idle in storage.

The time of transfer is when accidents are most likely to occur.

Propane is in greatest demand during the fall and winter months. If customers

seek to avoid the threshold by keeping their propane volumes below the threshold

amounts, more trucks will be driving at the most hazardous time of year on icy

rural roads. Such an increase in traffic will lead to a winter distribution bottleneck,

increasing the likelihood of transportation and transfer related propane incidents.

This is analogous to the regulation in Mexico City limiting the number of days when

you could drive a car. The result was an increase in vehicle traffic emissions as people bought used, less environmentally sound cars to drive on alternative days.

Inclusion of propane in the EPA RMP regime will also needlessly terrorize the

public. The propane user who discovers that his/her tank is subject to the same requirements as toxic chemicals will be reluctant to maintain the fuel source. This will

lead to further fuel shifting and damage to the propane industry. A Burger King

on the corner using propane for cooking should not inspire the same sort of concern

as a chemical plant next to a school or hospital. If propane is included in the RMP

regime, local eateries and quaint hotels will be unjustly viewed by the public as unsafe as the 1998 Morton International, Paterson, New Jersey plant, which exploded

in a toxic chemical reaction, blowing the lid off a mixing vat and spewing hazardous

substances into its neighborhood. Property values will be unjustly and artificially

depressed if propane users are viewed with the same suspicion as chemical plants.

Consumers will also be threatened with delays in delivery during Winter storms.

Customers keeping their onsite propane volume below the threshold amounts will

run the all too real risks of running out of propane during peak consumption periods. Industry infrastructure will not be able to meet the increased volume of propane delivery demands during snow storms, leaving many consumers out in the

cold, literally frozen by regulation.

FURTHER REGULATION OF PROPANE IS REDUNDANT AND BURDENSOME

Inclusion of propane in the right to know regulation also burdens businesses with

redundant regulation and will not decrease the potential for accidents to occur. Propane is currently regulated in all 50 States through adoption of National Fire Protection Association (NFPA) 5 standard 58. 6 NFPA 58 is the standard that prescribes

design, construction, and site operation requirements for all propane facilities.

Forty-eight States adopt NFPA 58 by reference, while the remaining 2 States (Texas

and Arkansas) have adopted the substance of NFPA 58 into their own rules. 7 According to Gale Haag, Kansas State Fire Marshal, ‘‘the track record with NFPA 58

has been very successful and because of the enforcement and education processes

are already established, the regulated community and those effected indirectly appear to be satisfied that their needs are presently met. It ain’t broke.’’ 8

NFPA continuously reviews and updates standard NFPA 58, a process which is

open to EPA participation. EPA’s zeal in including propane in the RMP scheme is

also contrary to Federal standards adoption policy. The National Technology Transfer and Advancement Act of 1995 9 requires that ‘‘all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out

policy objectives or activities determined by the agencies and departments.’’ 10 Congress further requires regulatory agencies ‘‘to coordinate Federal, State and local

technical standards activities and conformity assessment activities, with private sector technical standards activities and conformity assessment activities, with the goal
128

11 Id. 12 Cal Pub Util Code Section 4451 (1997.) 13 Cal Health & Safety Code Section 13241 (1997.) 14 Id. 15See Miss. Code Ann. Section 75–57–105 (1997) ‘‘. . . regulations shall be in substantial conformity with the published Standards of the National Fire Protection Association for the Storage

and Handling of Liquified Petroleum Gases (NFPA 58). . .’’. 16Senator John H. Chafee, Ibid. 17Senator John H. Chafee, Ibid. 18 40 C.F.R. Part 68.

of eliminating unnecessary duplication and complexity in the development and promulgation of conformity assessment requirements and measures.’’ 11

Congress intended that regulatory agencies use existing national consensus codes or standards rather than develop new regulations to reflect an interest in streamlining regulations to remove redundancies. Congress also recognizes that private industry has superior knowledge and experience regarding standards. The EPA has

no experience with developing standards for safe handling and storage of propane.

They are not well suited to develop standards based on the accidental release analyses. NFPA 58 is exactly the type of national consensus based industry standard that Congress had in mind when enacting this legislation. NFPA standard 58 is already

referenced by OSHA and the Department of Transportation. California may very well be the most environmentally conscious State in the coun- try. The State’s environmental standards in many cases exceed Federal requirements. California State officials have embraced NFPA 58. ‘‘The Legislature finds

and declares that NFPA 58 is overseen by a national committee that ensures that

the standard incorporates the latest in current and approved technology.’’ 12 The

California State Legislature determined that ‘‘the State Fire Marshal in conjunction

with the Occupational Safety and Health Standards Board shall, after public hearings, adopt by reference the 1992 edition of NFPA 58 Standard for the Storage and

Handling of Liquefied Petroleum Gases.’’ 13 The statute establishes that ‘‘it is the

intent of the Legislature that the NFPA 58 Standard supersede any inconsistent

State standards...’’ 14 Other States have passed similar legislation, adopting NFPA

58 as the State standard. 15

Most significantly, some critics assert that the EPA is trying to federalize fire

safety. Senator John Chafee observes ‘‘nothing in Section 112, nor any other part

of the Clean Air Act suggests that it should be regarded as a Federal fire safety

law.’’ 16 In a letter to EPA Administrator Carol M. Browner, Senator Chafee recognizes that Congress ‘‘mandated the inclusion of 16 chemicals on the list to be developed under Section 112(r)(3). The concern in each case was related to the use of the

substances in a manufacturing process or other chemical application and not as a

fuel source.’’ He astutely concludes, ‘‘Risks from fuel explosions might more appropriately be regulated by the Occupational Safety and Health Administration, the

Department of Transportation or State and local agencies.’’ 17 Critics are also concerned about wasted resources. Rep. Sherwood Boehlert (R-NY), who has a strong

record of supporting environmental initiatives states, ‘‘It is a waste of both the agency’s and the private sector’s resources to extend the coverage of Section 112(r) to

flammable fuels.’’

REGULATORY BURDENS OF RMP

Propane facilities subject to the RMP must be in compliance by June 21, 1999.

These marketers and propane consumers face civil enforcement provisions authorizing penalties of up to $25,000 per violation per day for facilities or individuals found

to have violated regulations or permits issued under the Clean Air Act. These regulations will needlessly expose many farmers and small businesses to severe financial

penalties. The Act also allows members of the public to file their own civil enforcement actions against affected facilities. This provision will expose thousands of

smaller propane users to civil penalties and nuisance suits by overzealous plaintiffs

lawyers.

The EPA claims that complying with the disclosure plans is simple. The forms are

by most Federal standards relatively short. This is only half the story. While the

forms may be concise, the instructions are extremely lengthy and complex and beyond the ability of most smaller businesses. The RMP forms are analogous to Federal income tax forms, short forms, yet excruciatingly complex instructions. The regulation is 42 pages long. The EPA’s General Guidance for Risk Management Programs 18 is over an inch thick while the EPA’s RMP Guidance for Propane Storage

Facilities is approximately 100 pages. Obviously compliance with these programs
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19 N.J. Stat 13:1K-19 (1998). 20 Bruno Tedeschi, ‘‘Propane Off Hazardous List; DEP Action Follows Industry Outcry, The

Bergen County Record, July 21, 1998, P A-2. 21 RMP Relief in Florida Moves Forward; Federal Rules Pending, Butane-Propane News, November 9, 1998. Available at http://www.bpnews.com.

will be beyond the expertise of most propane users. The cost of complying with these

requirements and the loss of productivity is staggering. Many propane consumers

will simply avoid the requirements by shifting consumption to other fuels.

PROPANE AND STATE RISK MANAGEMENT PROGRAMS

Some States have already adopted risk management plans on a local basis. But

some of these States have recognized that propane need not be included among the

substances needing to report under a RMP. In New Jersey, State environmental officials determined that propane did not merit the same stringent regulations as hazardous chemicals and was exempted from the RMP requirement. New Jersey officials properly recognized that under the State Toxic Catastrophe Prevention Act, 19

propane should not be treated the same as chemicals such as methyl isocyanate, the

deadly gas that was released in Bhopal. In exempting propane from the reporting

requirement of the State RMP Reginald Baldini, of the State Department of Environmental Protection determined that propane is already highly regulated by other

laws, including the New Jersey Liquefied Petroleum Gas Act of 1950.

Robert Nixon, a New Jersey propane industry representative stated ‘‘We’re very

happy the DEP agreed with the propane industry that essentially propane is not

a toxic substance and there are several other laws and regulations in the State that

provide the same level of protection to the public as the Toxic Catastrophe Prevention program.’’ ‘‘That ruling just saved the propane industry in the State.’’ 20 The

RMP program in New Jersey would have cost the State’s propane users approximately $1 million annually in fees alone.

Similarly, in October 1998, the EPA published a direct final rule and a proposed

rule that will approve the Florida Department for Community Affairs Division of

Emergency Management proposal for RMP implementation. The Florida State plan

exempts sources with propane as their only regulated substance from the requirements of the RMP program. 21

THE INCLUSION OF PROPANE IN RMP REGULATIONS WILL INCREASE THE COST OF

PROPANE TO CONSUMERS

The inclusion of propane in RMP regulations will increase the cost of propane to

small consumers. Propane is a residential heating source primarily for rural low to

moderate income consumers. Medium and large commercial and industrial propane

users will shift to other fuels to avoid RMP reporting burdens. These larger commercial and industrial users have a steady, year round demand for propane deliveries.

Their demand requirements subsidize the transportation infrastructure of propane

in the warmer off season. As they are forced by regulation from the propane market,

the transportation costs will shift to the smaller peak demand users, primarily residential and small business consumers.

The cost of compliance with RMP requirements for the propane industry is estimated at over $1 billion. This cost will be borne by the consumer with no visible

benefit. Similarly some commercial and industrial consumers will shift from propane to other sources such as natural gas or electricity to avoid the RMP reporting

burden. This shift will not be frictionless. The increased cost of energy and the increased transaction costs associated with fuel switching will be borne by the

consumer with no visible benefit.

As the cost of complying with RMP regulation decreases demand for propane,

many propane marketers will be forced out of business. This will result in a loss

of investment and reduced employment in the industry, particularly hard felt in

rural areas. The closing of propane marketers ultimately means reduced competition

in the fuels market. Fewer fuel choices and a loss of competition will mean higher

prices for consumers.

With RMP requirements in place, competition within the propane market will suffer. Consumers electing to stay with propane will be bound to their existing suppliers by the need for assistance in RMP compliance. A consumer wishing to switch

propane suppliers will have to pay the cost of completing and filing a new RMP as

a condition of service. Rather than face this cost, many consumers will find themselves wedded to an existing propane relationship in an economic marriage of convenience sanctioned by the EPA.
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22Kristin M. Corsale, Executive Director, Ohio Meat Industries Association, Letter to Rep.

Ted Strickland, October 8, 1998. 23 Anthony R. O’Neill, Vice President National Fire Protection Association, Comments on EPA’s Risk Management Rule, July 7, 1998. 24 Id. 25 Bruno Tedeschi, ‘‘Hazards List Could Hit Burger Stands; State Plan Applies Tougher Stand- ards,’’ The Bergen County Record, May 4, 1998, P A-3. 26 Anthony O’Neill, Ibid. 27 John A. Lemire, State of California, Division of Occupational Safety and Health, Letter to Senator Barbara Boxer, November 12, 1998. 28 John A. Lemire, Ibid. 29Philip A. Squair, Director of Regulatory Affairs, NPGA, Letter to Jennifer Woodbury, House Small Business Committee.

As Kristin M. Corsale, Executive Director of the Ohio Meat Industries Association

clearly states ‘‘The EPA rules will affect our members because it will affect the

farmers and manufacturers who stock the shelves. If propane suppliers and big

users are required to spend extra time and money to comply with the EPA rules,

their expenses will trickle down to grocers and their customers.’’ 22

INCLUSION OF PROPANE IN THE RMP REGIME IS BASED ON FAULTY ASSUMPTIONS AND

FLAWED RESEARCH

The information required under the RMP plans is based upon faulty assumptions and flawed decision making by the EPA. For example, the RMP requires facilities

to evaluate the impact of a release of all the propane at a site. According to Anthony

R. O’ Neill, Vice President of the National Fire Protection Association, ‘‘historical

data on fires at propane bulk storage plants indicates that the total release basis

for EPA’s requirement is an unrealistic scenario that will predict potential impacts

far greater than a worst case release.’’ 23 Mr. O’Neill observes that propane is stored

in ASME pressure vessels that are certified by third parties. ‘‘Data shows that these

vessel do not fail with total release of material.’’ 24

The intent of the Act is to give communities information regarding toxic sub- stances. A propane release does not pose the same threat as hazardous chemicals.

Propane is flammable but not toxic. The propane industry also has an impressive

record of safety. The individual risk of a member of the public being fatally injured

in a propane accident is 1 in 37,000,000. As a point of comparison, the odds of being

struck by lightning is 1 in 1,375,000. Therefore, risk to the public from propane incidents are 1,000 times less likely than the risk of being struck by lightning! Given the widespread usage of propane and the safety record of the industry, there is no reason for propane to be included in the list of substances under the

right to know program. Inclusion of propane in this list will needlessly terrorize

many citizens into thinking that they have a toxic substance in their community or

their homes. Jerry Stocker, Vice President of the New Jersey Propane Gas Association explained at a New Jersey public hearing on the State RMP that ‘‘propane does

not have the chemical foundation to result in a gaseous release that would result

in death or permanent disability.’’ 25

The over $1 billion cost of compliance is particularly high when compared with the low risk of propane accidents from the propane facilities to be included in the

RMP regime. In 1997, total combined losses from all propane facilities that would

have to submit RMPs was $500,000. This number reflects all building and structural fires, outdoor fires and vehicle fires at propane bulk storage plants. 26

In a letter to Senator Barbara Boxer (D-Calif) regarding inclusion of propane in the expanded EPA reporting regime, John A. Lemire of the State of California Occupational Safety and Health asks ‘‘Finally, what is the gain?’’ 27 Mr. Lemire states

that ‘‘The public’s right to know is a sacred right but what will be the gain from

this activity? Knowledge of such catastrophic situations that have such an infinitesimal likelihood of occurring due to current regulations—what is the point except to

panic the general public?’’ 28

EPA also used faulty data when it pushed to include propane in the RMP report- ing regime. According to the NPGA analysis of EPA data, incidents occur during

transportation activities and at facilities not covered by RMP rules far more frequently than at facilities subject to RMP requirements. Only a small minority of incidents occur at facilities targeted by the RMP regime. The majority of incidents

occur during transportation not covered by RMP. 29

The EPA decision to include propane in RMP was also based on weak, flawed and

irrelevant data. EPA ‘‘research’’ consisted of 52 pages of news articles reporting propane incidents and 112 incidents recorded by the Major Hazard Incident Data Service (MHIDAS). Some of this questionable data is nearly 50 years old and includes

incidents from as far away as Japan. The EPA reviewed and relied upon evidence
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30 Id.

of 157 incidents to justify including propane in the RMP reporting regime. Of these

157 incidents, only 31 (19%) could be confirmed to have occurred at a facility which

would be subject to RMP. Of these 31 incidents, 15 incidents were caused by or during transportation activi- ties not subject to RMP. Of the 16 non-transportation related incidents involving

propane, only 11 incidents could be confirmed to have had offsite consequences, including purely precautionary activities such as evacuations. In 8 incidents, propane

was either found not to have leaked or was not implicated. 30

CONCLUSION

The Clean Air Act Amendments were designed to prevent the hazard of accidental chemical releases. Current EPA plans would thwart Congressional intent, actually

increasing the risk of propane incidents. Inclusion of propane in the RMP regime

is bureaucratic decision making at its worst. The plan is based on faulty and misleading assumptions, increases costs to a wide array of consumers, injures a productive domestic industry and threatens the environment, with an increase in the risk

of accidents. The proposed RMP reporting regime is redundant and wrong headed

and in need of rejection.

STATEMENT OF ROBERT E. BLITZER, FORMER SECTION CHIEF DOMESTIC TCRRORISM/

COUNTERTERRORISM PLANNING SECTION, FEDERAL BUREAU OF INVESTIGATION

Good morning, Mr. Chairman and members of the committee. I am pleased to have this opportunity to discuss the electronic dissemination of chemical ‘‘worst

case’’ scenarios by the Environmental Protection Agency (EPA). From January 1996 until I retired from the Federal Bureau of Investigation (FBI) at the end of November 1998, I served IS Chief of the Domestic Terrorism/

Counterterrorism Planning Section of the National Security Division. In this capacity I was responsible for national oversight and management of several important

programs to include Domestic Terrorism Operations, Weapons of Mass Destruction

(WMD) Operations, WMD Domestic Preparedness, Special Events Management, and

Civil Aviation Security. In December 1997 the FBI became aware, through the Chemical Emergency Pre- paredness ant Prevention Office of the EPA that Section 112(r) of the ‘‘Clean Air

Act of 1990’’ required the publishing of regulations focusing on the prevention of

chemical accidents In an effort to comply with these regulations the EPA proposed

to distribute Risk Management Plans (RMP) via the Internet and CD-ROM These

plans would include for each facility history of accidental releases, an offsite consequence analysis (OCA); a prevention program inclusive of company operating procedures, employee training, hazard evaluation and emergency response programs to

ensure that either facility employees or public responders were prepared to deal

with any accidents that might occur and thus minimize the consequences. A number of meetings with representatives of the law enforcement and intel- ligence communities were held during 1997 and 1998 to discuss ‘‘security concerns’’

relating to the making available of all RMP data relating to the approximately

66,000 chemical sites within the United States. The proposed EPA electronic distribution plans were discussed with these agencies. The plans would allow users to

initiate Internet searches by facility namer area of the country, zip code, city, county, and State. A modified search by chemical type would allow a person using the

EPA web site, to choose a portion of a city by zipcode and tailor an attack by searching for certain chemicals. A search of this nature could be accomplished from anywhere in the world. Additionally. no record of such a query would be made. Further

searches could be tailored to developing information regarding chemical companies’

mitigation and safeguarding capabilities. Of greatest concern to the law enforcement and intelligence communities was the possible Internet dissemination of Worst Case and Alternate Worst Case Scenarios

as set forth in the OCA. Using the Internet a terrorist, criminal or disgruntled employee could identify these scenarios and fine tune an attack by selecting ‘‘worst

case scenarios’’ at facilities that were within or adjacent to large civilian or military

communities.

Based upon the above meetings a number of interagency recommendations were developed and provided to EPA in a letter dated October 30, 1998. The leper recorded interagency agreement that OCA data not be included in RMP information

distributed via the Internet. Other data elements would be accessible to the public

on the Internet. EPA agreed to work with stakeholder groups to identify meaningful
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approaches to make appropriate OCA information available to the local community.

To ensure that State and local government agencies have access to all national RMP

dam it was recommended that SPA use a ‘‘closed system’ restricted to State and

local government agencies. This system should use secure password protection and

sanction technology.

It was believed that the creation of a CD-ROM encompassing EPA’s RMP data

base could be accomplished. However, the FBI recommended that EPA not include

facility identification and contact information on the CD-ROM. This allows legitimate information retrieval for analysis, however removes the ability of criminals

and terrorists to use this information for targeting purposes.

Mr. Chairman, at the time the above letter was prepared both the Department

of Justice, and the EPA Legal Counsel advised the FBI that the current Freedom

of Formation Act requires that EPA provide the complete RMP information including the worst case scenarios to a requester. This is a potential problem. If this information is obtained arid posted on private Internet sites the responsible steps taken

by the FBI, EPA and its interagency partners would be negated. This is a concern

that I hope you can address in an expeditious fashion.

The FBI and its interagency partners have worked hard to strike a reasoned balance to insure public dissemination of important information. In early February, Attorney General Janet Reno and FBI Director Louis Freeh appeared before the U.S.

Senate Subcommittee for the Departments of Commerce, Justice, and Slate, the Judiciary, and Related Agencies of the Committee on Appropriations. Director Freeh

gave an excellent overview of both the international and domestic terrorism threats

we face at the present time and into the future He also spoke about a number of

high profile investigations that have occurred in the last several months. One key

point that the Director made was that ‘‘ Terrorists, both abroad and at home, are

using technology to protect their operations from being discovered and thwart the

efforts of law enforcement to detect, prevent, and investigate such acts.’’ Computer

technology is and will be a terrorist tool. I believe that the actions taken to prevent

the widespread Internet dissemination of ‘‘worst case’’ sensitive chemical facility information was both prudent and necessary.

This concludes my remarks. Thank you.

STATEMENT OF THOMAS M. SUSMAN, ROPES AND GRAY

Mr. Chairman and members of the subcommittee, I am pleased to be here this

morning to address the application of the Freedom of Information Act to certain

chemical accident reporting data that are required to be provided to the Environmental Protection Agency under the Clean Air Act.

I have been involved with government information law for over 30 years, as the

attached biographical summary reflects, and have been an unwavering advocate of

increasing public access to government information throughout that time. I headed

an American Bar Association effort to press for enactment of legislation to adapt

the Freedom of Information Act (FOIA) to the electronic era and testified before a

Judiciary Subcommittee supporting Senator Leahy’s legislation that became the

Electronic Freedom of Information Act (EFOIA).

I have litigated FOIA cases pro bono on behalf of public interest groups, serve on

the Board of the National Security Archives, am a consultant to the American Library Association on government information dissemination, and am Treasurer of

the American Society of Access Professionals. However, I represent none of these organizations this morning.

I appear today on my own behalf, at the request of the subcommittee. I note that

the paper attached to my testimony, which I am submitting for inclusion in the

record, was prepared in part through the support of the Chemical Manufacturers

Association, but its analysis and conclusions are mine.

I am here because I have great respect both for the FBI and its antiterrorist expertise and activities and also for the important benefits of open access to government information. When the FBI says that offsite consequence analyses (OCAs)—

required to be submitted to EPA as part of the Clean Air Act (CAA) requirements—

should not be posted on the Internet because it will significantly the prospects for

terrorist attacks on facilities, I readily conclude that such posting is a bad idea.

When EPA and local governments and community leaders say that access to OCA

data will encourage accident prevention and facilitate community preparation for

and rapid response to chemical accidents, I am comfortable concluding that such access is a good idea. Plainly some way of striking a balance between these conflicting

interests must be found.
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Where I find myself in disagreement, however, is with EPA’s contention that

under current law the agency can collect OCAs in electronic format or can compile

them in an electronic medium, but not release those data in electronic form to the

public.

That is not what those of us who worked for enforcement of an effective FOIA

and for enactment of the EFOIA fought for.

That is not what Congress, in enacting the FOIA and EFOIA amendments, intended.

That is not consistent with how courts and the Department of Justice have interpreted the FOIA and EFOIA amendments.

Let me explain.

The CAA states clearly and unequivocally that OCAs, as part of the management

plans required to be filed with EPA, must (except for trade secrets) be made available to the public. If the issue were whether, rather than how, access is to be effected to these OCAs, then our inquiry might end right here. That is because section

114(c) of the CAA simply does not address the format issues.

The FOIA, however, does. It says that ‘‘any person’’—including the group that

planned the attack on the chemical facility outside Dallas in 1997 and including

members of Bin Laden’s terrorist organization—has a judicially reviewable right of

access to government agency records.

The FOIA also says that if the government has information, it has no discretion

to withhold that information unless it fits into one of the act’s exemptions. As my

appended paper discusses, the exemptions do not apply here.

And finally, the FOIA, by virtue of its 1996 EFOIA amendments, requires disclosure of the requested data in an electronic format without additional manipulation

by the agency if that format is in possession of the agency. And it goes the additional step of saying that data must be disclosed electronically in a different format

if it is reasonably feasible for the agency to do so.

The FOIA requires that the EPA fully and completely respond to FOIA requests

regarding OCA information. OCA information submitted to the agency in an electronic format must be provided to any person who requests the information in that

format. As the ACLU and several other disclosure advocates recently agreed in correspondence with Chairman Bliley, the EPA has no discretion to act otherwise.

There has been some suggestion by EPA that the OCA data may be reformatted

to make ready access and manipulation and search in electronic format more difficult—to create ‘‘speed bumps’’ to disclosure. Mr. Chairman, no agency should be

allowed, much less encouraged, to state publicly that it intends to solve a problem

by disobeying the law and violating a clear mandate of Congress.

The FOIA does not permit it.

The Justice Department, with responsibility to see that the laws, especially the

FOlA, are faithfully carried out, should not condone it.

And the Congress should not tolerate it.

For those who agree that unrestricted electronic access to OCA data via the

Internet is a threat to the security of manufacturing facilities and the communities

in which they are located, there is but one legal solution to this problem: new legislation.

I am not proposing that Congress amend the FOIA or, for that matter, eliminate

or reduce the reporting requirements under the CAA. Nor do I propose that OCAs

become unavailable to local governments or community residents. There may be

other problems with EPA’s protection of sensitive information: inadequate security

of EPA’s computer systems, the dangers of posting chemical inventory data under

other provisions of law, or the absence of adequate protection for confidential commercial information. These serious problems, however, are not the focus of this

hearing.

A balanced scheme is needed that will allow selective community access to OCAs,

and even release of paper copies on a request-by-request basis, but will specifically

and clearly prohibit their dissemination to the general public in electronic format.

The development of that scheme should, Mr. Chairman, be up to Congress, through

legislation, and not EPA, through violating the Freedom of Information Act.
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STATEMENT OF PAULA R. LITTLES, PAPER, ALLIED-INDUSTRIAL, CHEMICAL AND

ENERGY WORKERS INTERNATIONAL UNION (PACE)

Mr. Chairman, members of the committee, my name is Paula R. Littles. I am the

Citizenship-Legislative Director for the Paper, Allied-Industrial, Chemical and Energy Workers International Union, AFL–CIO (PACE). Our union represents 320,000

workers employed nationwide in the paper, allied-industrial, chemical, oil refining,

and nuclear industries.

Our organization is deeply concerned over discussions surrounding the issue of

EPA not providing full disclosures of (RMPs) Risk Management Plans. We very

much appreciate the opportunity to appear before you today. The question of full

disclosure of Risk Management Plans is of vital importance to our organization, our

members, and the communities in which they live. We feel that if we are ever to

have effective, ongoing hazard reduction. These plans must be fully disclose to encourage safer technologies, honor the public’s right to know, and to overcome the

complacency of the chemical industry, that has allowed it to produce no serious plan

and timetable to reduce hazards.

The Clean Air Act requires the Environmental Protection Agency (EPA) to implement a program to assist in the prevention of chemical accidents. EPA developed

the Risk Management Program Rule. This Rule requires some 66,000 facilities that

manage sufficient amounts of hazardous materials to develop a RMP and file it with

EPA. These facilities include chemical manufacturers, refineries, water treatment

facilities, ammonia refrigeration, propane storage, and semiconductor fabrication. A

projected 85 million people live within a five-mile radius of a RMP facility.

The Clean Air Act also requires that EPA make this information available to the

public. Our organization became very concerned in November when we discovered

that EPA had made the decision on November 6, 1998 to not allow full access to

RMP information. We have expressed our concern about EPA’s ability to effectively

deliver full access to Risk Management Plans in joint correspondence with other

groups to EPA Administrator Carol Browner.

Our main of concern surrounding full discourse is our members, their families and

the communities in which they live. Our members are the first respondents to the

site of a manufacturing accident at their worksite. They also may work at a site

near an incident, next door, across the street, or five miles away, but near enough

to be affected. Currently, not enough effort has been placed on hazard reduction,

for our organization to readily accept limited discourse on hazardous materials that

our members work, or live near.

There is also the issue of manufacturing security. It is to our advantage as an

organization that represents workers in this arena that we can say to workers, their

families, and the community, that these facilities have nothing to hide. We can tell

workers that these facilities are working toward reducing hazards, their RMPs are

available in any form they need ‘‘electronic or other’’ to provide the information

needed to show that they are really working toward hazard reduction. We believe
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that it is not the knowledge that is harmful, but the lack of knowledge that has

at times created mass hysteria and rushes to judgment. Although numbers vary, depending on the source of statistics and period of time examined, there is no doubt about the effects of chemical accidents on human lives.

Year after year, large numbers of people are killed or injured. In addition, the numbers for those suffering the long-term consequences of exposure must also be counted.

Currently, the Chemical Safety Board is reviewing or investigating accidents in

Arizona, Arkansas, California, Florida, Georgia, Idaho, Iowa, Louisiana (3), Maryland, Michigan (2), Missouri, New Jersey (2), New York, Ohio (2), Oklahoma, Oregon, Pennsylvania (2), South Dakota, Texas, and Washington State (2), as of February 3, 1999. The last 3 months of 1998 the Chemical Safety Board begin four incident investigations. Of those four:

10–13–98: Five employees injured, local residents advised to shelter in their

homes;

10–24–98: Seven workers were killed;

11–25–98: Six workers were killed; and 12–11 –98: Seven workers were killed.

That is a total of 20 workers who were killed on the job in the last 3 months of

1998. These numbers are clear and the message they send should be equally clear,

we need to work harder at reducing hazards and it is our belief that full disclosure

is the beginning step.

We believe that there are many valid and important uses for RMP information

by people who live, work and conduct business well beyond the immediate community where a facility is located. RMP information can be useful in the following

ways:

To learn about vulnerability zones and prevention practices in similar facilities in

different States;

To verify reported information by comparing data submitted elsewhere; To hold

government accountable for reducing hazards nationwide;

To develop studies on chemical hazards;

To develop effective accident prevention programs;

To develop and conduct effective education and training programs; To link other

worker safety and public health data base; and To determine which facilities might

pose ‘‘Year 2000’’ risks.

Just as we believe strongly that our members, their families, and the communities

they reside in will be made safer by these full disclosures, we do not believe that

they are being placed in danger of sabotage or terrorism.

In earlier discussions with EPA, the industry and everyone else agreed that a

‘‘professional terrorist’’ would not be deterred by keeping this information off the

Internet. (For earlier discussion, see www.epagov/swcrccpp/pubs/rmprpt.html—look

under Section 2.B. ‘‘Location of RMP. Info [Internet Issues]).

Risk Management Plans do not include any information about how to sabotage

an industrial facility, no technical data about how to cause a ‘‘worst case’’ event, no

tank locations, no plant security information, and no classified information. Anyone

can get readily available information regarding the largest and most dangerous facilities that store chemicals, without using the Internet. Also, keeping worst-case

scenarios off the Internet offers no real protection to communities. Communities can

only be protected when companies use safer chemicals, reduce dangerous storage,

widen buffer zones and provide full information.

Chemical accidents have no respect for geographic boundaries. We must have the

freedom to communicate concerning chemical hazards, if we are to have real hazard

education. Only with full information disclosure and opportunities to act can facilities, employees, and communities reduce chemical hazards.

In conclusion, I would like to reiterate the following points:

Industry should and must produce a serious quantifiable plan and timeline to reduce hazards; and

Full disclosure of RMPs is the key tool needed to access the impact of hazard reduction programs and activities.

Thank you for allowing me the opportunity to speak on behalf of PACE to explain

our position to you today on this important issue.

STATEMENT OF THOMAS NATAN, RESEARCH DIRECTOR, NATIONAL ENVIRONMENTAL

TRUST

Mr. Chairman and members of the committee, my name is Thomas Natan, and

I am the Research Director of the National Environmental Trust, a non-partisan,

non-profit public interest organization that educates the public on environmental is-
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sues. I thank you for the opportunity to testify as a member of the environmental

community concerning the EPA’s Risk Management Plan Program under section

112(r) of the Clean Air Act. I am a chemical engineer by training, and have visited

scores of industrial facilities, examining ways in which they can operate more efficiently and safely, as well as helping to interpret their environmental data for residents of surroundings convexities.

As the committee is aware, in 1986, Congress enacted the Emergency Planning

and Community Right-to-Know Act. A principal feature of this legislation was the

Toxics Release Inventory Program, or TRI. TRI has been credited by both environmentalists and industry alike for generating a climate that has resulted in dramatic

decreases in toxic chemical emissions without the traditional constraints and costs

of a command-and-control regulatory framework. A principal result of the public

right-to-know program has been an incentive for enhanced environmental stewardship without the burdens of the command-and-control regulatory system.

The experience with complete and unimpeded public dissemination of TRI data

in generating significant reductions in releases of toxic chemicals to the environment is relevant to the issue of public availability of Worst Case Scenario data. Like

the 112(r) program, TRI merely requires reporting of information that companies already generate in the course of doing business. Public awareness—generated from

both local citizens and data analyses by environmental groups—has led to a reduction in toxic chemical releases of 50 percent over the last 10 years, No further regulation was necessary to bring about these reductions. The enduring lesson of public

access to information regarding toxic chemical risks f.acing communities is that real

risk reduction can occur without the imposition of new and significant costs to our

manufacturing sector. Another extremely import lesson that we can glean from the

TRI processes that public access to toxic chemical release information alone can generate enormous risk reduction benefits. Also, for many workers at industrial facilities, TRI is their first opportunity to learn about chemicals used on the job—another

unexpected benefit of complete access to information. All of these benefits can be

enhanced further through public access to 112(r) data.

As the committee is aware, the intelligence community has raised concerns about

the availability of Worst case scenario 112(r) data on the Internet. Even in the absence of Internet access to data, there are many ways in which the EPA, the intelligence community, and the chemical industry must work, both separately and together, to reduce hazards and potential risks to the American public from use of

toxic chemicals at industrial facilities.

While a ‘‘read-only’’ CD-ROM has been proposed by EPA so a means of dissemination, the complete 112(r) data, there have not yet been enough details to determine

if the CD-ROM will meet the need of a diverse public. To name just a few, this ‘‘public’’ includes citizens who vent to compare their local facility to others across the

county in same industry workers at the facilities, for whom Worst Case Scenario

data may be the best vehicle to learn about risks and hazards on the job; emergency

responders, who will want to know if a particular plant meets the industry standard

for safety; educators, who will want to teach students about best practices; and investors, who want to track the performance of all the facilities of a particular company.

Whether or not the Worse Case Scenario data are available on the Internet, EPA

should establish specific public access services and mechanisms including;

• instituting a multilingual public ‘‘800’’ hot-line;

• dedicating liaisons to conduct data analyses, rank hazards, and respond to

questions;

• distributing complete 112(r) information through public libraries;

• providing service for information on specific facilities, using maps and mapping

tools to clearly communication hazards;

• notifying communities of changes in potential risks from local facilities as

shown by changes in 112(r) data or permit information; and

• providing links to other data collected by the Agency that will provide a context to evaluate the use of particular use of particular chemicals at individual facilities.

EPA also needs to take an active role in providing comparative analyses of data

from facilities within particular injuries, to determine ‘‘best in class’’ practices as

they currently exist. Similarly, EPA should provide analyses of uses of specific

chemical across industries for some of the most hazardous substances. From the

time the Agency receives the first 112(r) data, it should be creating guidance documents for locally impacted citizens and the general public on what the date mean
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and do not mean, as well as lists and explanations of supporting documentation that

facilities should have on hand. As more years of data become available, the Agency

can also publicize success stories of facilities that have significantly reduced their

vulnerability zones. To my knowledge, the review of Worst Case Scenario data by the FBI is the first time the FBI has reviewed chemical accident data reported by industrial facilities

to determine the potential threat that onsite use of toxic chemicals pose to local

communities.

This is true despite the fact that more than 10 years of chemical accident data

have already been widely available. In my opinion, the most significant finding

made by the FBI during its review of Worst Case Scenario data was that use of

toxic chemicals at facilities poses an inherent risk to workers, neighboring properties, and surrounding communities. The FBI additionally found that making the

public aware of chemical use risks over the Internet would amplify this inherent,

pre-existing risk. In light of these findings, it is important to emphasize that the

risks emanate from the toxic chemical use at facilities, not public awareness of those

risks.

As I stated earlier, one of the benefits of public access of information about chemical use has been risk reduction. However, despite increasing public awareness and

reducing risks, accidents still occur. Perhaps an example will help illustrate this

point. Workers and neighbors of the Tosco refinery in Lehigh County, Pennsylvania

experienced 13 serious chemical use accidents in the past 10 years. The frequency

of accidents at the Tosco refinery demonstrates that it is chemical use that poses

the risk, not public awareness of the risk. The interest of the environmental community is risk reduction. We believe that FBI can play a tremendous role in furthering

society’s goal of risk reduction. A comprehensive review by the FBI of security measures at facilitates using or producing large volumes of toxic chemicals would be a

good start to reducing risks to citizens.

Further reviews could include risks generated by transporting chemicals to and

from such facilities. The chemical industry has begun presenting Worst Case Scenario data for individual facilities to local citizens in Louisiana and Texas. Companies should go further and produce reports on their Worst Case Scenario data for

all the facilities they own, enabling the public to see that they operate uniformly

with regard to risk minimization. These reports should also publicize plans and

goals for risk reduction, if they exist. The Chemical Manufacturer’s Association’s

‘‘Responsible Care’’ initiative is an example of ongoing efforts that could be augmented to explicitly address risk reduction in the context of Worst Case Scenario

data. Finally, the chemical industry, the EPA, and the intelligence community

should collaborate on a voluntary initiative to reduce risks with reasonable targets

and dates. Although reducing hazards by using less toxic chemicals would be the

most desirable way to accomplish risk reduction, a voluntary initiative could explore

other common-sense risk reduction measures as well. Where reduction in use is impractical, such common-sense measures could include safer transportation, storage

and handling of toxic chemicals. The Worst Case Scenario data provide an ideal vehicle for measuring progress for risk reduction efforts. It is important to emphasize

that all of the stakeholders in this process have one common interest: risk reduction.

Whether you are the owner of a chemical plant, a worker, a neighbor, or a host

community, everyone wants fewer accidents. I firmly believe that accident reduction

and prevention was Congress’ true intent in passing 112(r). Public access to 112(r)

data will greatly enhance the likelihood that fewer accidents will occur. The question before the committee today is how we can attain risk reduction while also providing public access to this important information. As I stated previously, EPA, the

intelligence community, and the chemical industry all have vital roles to play in informing the public about risks and reducing those risks. Denying, or severely limiting, public access to the Worst Case Scenario 112(r) data does not relieve EPA, the

intelligence community, or the chemical industry of their shared obligation to reduce

risks.

Thank you again for the opportunity to address this committee. I would be happy

to answer any questions the committee may have.

STATEMENT OF BEN LAGANGA, UNION COUNTY, NJ EMERGENCY MANAGEMENT

COORDINATOR

Good morning and thank you for this distinguished opportunity. My name is Ben

Laganga and I am the Emergency Management Coordinator for Union County, New

Jersey.
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Union County is an important county in New Jersey; it is a highly industrialized

102 square miles with a population of approximately 494,000. Within the county

borders lies Newark International Airport, the New Jersey Turnpike and the Garden State Parkway, as well as several other? highly traveled thorofares. We are also

home to several petrochemical and pharmaceutical facilities who are required to file

risk management plans in 1999.

As a representative of the county and chairman of the Local Emergency Planning

Committee (LEPC), I am pleased that you are hearing testimony on this highly controversial issue today.

From the onset of this rule’s development, it has been my belief that the availability of worst case and more likely case scenario information on the Internet could

lead to an increase in terroristic acts in our State and throughout the country.

In New Jersey today, through Right To Know and the NJ Toxic Catastrophe Prevention Act, all companies that use hazardous materials on their site, must provide

that information to their LEPC and the New Jersey Department of Environmental

Protection.

The information is available to the public, however it must be requested, and is

not available through the Internet. In my opinion that is a better way to monitor

those individuals that are requesting the information. If the information is available

on the Internet, there is no possible way to know who is accessing that information,

and quite frankly, how they are using it.

There is also another side to this issue, the misunderstanding and the misinterpretation of this information. Without proper explanation, the general public could

misinterpret the information they are accessing and it could cause undue alarm

amongst thie public at large.

In Union County, we don’t want to see companies go out of business, however we

do want to maintain the lines of communication between these facilities and our

emergency response team.

I hope you recognize that the use of this information is valuable to the emergency

responders, however if it is put in the wrong hands, it could cause more harm that

good.

I know the regulatory intent for the development of Risk Management Plans was

to put valuable information into the hands of the public—not to jeopardize public

safety by placing this information in an accessible format where it can be used by

those looking to cause harm. However, I am concerned that is exactly where this

valuable information will end up.

Thank you again for this opportunity, and I would be happy to answer any questions you may have.

NATIONAL MARINE MANUFACTURERS ASSOCIATION,

Washington, DC, March 4, 1999.

The HONORABLE JAMES INHOFE, Chairman,

Subcommittee on Clean Air, Wetlands, Private Property and Nuclear Safety,

United States Senate,

Washington, DC 20510.

DEAR CHAIRMAN INHOFE: On behalf of the National Marine Manufacturers Association (NMMA), I would like to register the marine industry’s opposition to the

EPA’s Risk Management Program Rules as it pertains to the regulation of propane

gas. NMMA is the national trade association representing more than 1400 manufacturers of recreational boats, marine engines, boat trailers, and associated equipment

in a $17 billion per annum industry. Our members manufacture over 80 percent of

these products in the United States. I respectfully request that you enter this letter

into the record for the March 16, 1999, hearing on the EPA Risk Management Program.

EPA’s Risk Management Program (RMP) is authorized under section 112(r) of the

Clean Air Act Amendments of 1990. While Congress intended to reduce the risk associated with the accidental release of toxic chemicals, the EPA chose to expand the

program to include flammables such as propane, a non-toxic Mel. The RMP rules

require propane consumers with more than 2,381 gallons storage to complete costly

risk-management plans with EPA, including approximately 10 percent of our members. The minimal risk of holding this quantity of Mel is far exceeded by the complicated and expensive compliance scheme. The businesses that use propane to heat

their plants are small in size and lack both the economic and staff resources to comply with this onerous regulation.
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NMMA applauds the leadership you have shown by hosting a hearing on this important issue. The recreational marine industry strongly urges Congress to preserve

the original intent of the RMP rules and overturn this regulation.

Sincerely,

BETSY L. OILMAN, DIRECTOR, FEDERAL GOVERNMENT RELATIONS,

National Marine Manufacturers Association.

NATIONAL RESTAURANT ASSOCIATION,

Washington, DC, March 15, 1999.

The HONORABLE JIM INHOFE, Chairman,

5Subcommittee on Clean Air, Wetlands, Private Property and Nuclear Safety,

Senate Environment and Public Works Committee

Washington, DC 20510.

DEAR MR. CHAIRMAN: On behalf of the National Restaurant Association and the

810,000 restaurants nationwide, we are concerned about the EPA’s risk management regulations that include propane gas. This clean burning gas is used for cooking and heating by a number of restaurants in outlying areas that are not served

by community gas lines.

Implementation of these rules would mean that these restaurant operations would

be faced with making a choice of abandoning a safe and useful onsite Mel source,

and switching to electricity, with the concomitant costs of replacing equipment and

upgrading electrical service, or hiring a consultant to prepare exhaustive studies,

prepare a detailed hazard review, operating procedures, compliance audits, and employee training procedures. At a projected cost of unknown thousands of dollars to

change to an alternate energy source versus a minimum $1,000 per affected site to

comply with the regulatory requirements, the impact will be significant.

Operators of some affected restaurants, whether single unit owner facilities or

members of a multi-unit operation, may find that these unexpected additional costs

force the decision to delay or abandon plans for enlargement or expansion of the

business, or in the worst chase, to cease operation. This would cause economic stress

in localities often dependent upon the local restaurant for employment.

The storage of propane gas is already well-regulated, based on National Fire Protection Association (NFPA) standard 58, in all 50 States. In addition, it is also subject to the Emergency Planning and Community Right-To-Know Act of 1986

(EPCRA), OSHA workplace rules and DOT hazardous materials regulations.

Given the intent of these rules in protecting against the release of harmful chemicals, and given the safety of propane and its record as a useful and economical fuel

in the restaurant industry, we ask that NFPA 58 be adopted as a compliance alternative to EPA’s rules.

We appreciate the opportunity to share our views. Please feel free to contact me

at (202) 331–5911 if you have any questions or need additional information.

Sincerely,

CHRISTINA M. HOWARD, Senior Legislative Representative.
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