U.S. GOVERNMENT PRINTING OFFICE

57–442CC WASHINGTON : 1999

THE CHEMICAL SAFETY INFORMATION AND SITE

SECURITY ACT OF 1999

HEARINGS

BEFORE THE

SUBCOMMITTEE ON

HEALTH AND ENVIRONMENT

OF THE

COMMITTEE ON COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

ON

H.R. 1790

MAY 19 and 26, 1999

Serial No. 106–24

Printed for the use of the Committee on Commerce

(
COMMITTEE ON COMMERCE

TOM BLILEY, Virginia, Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

MICHAEL G. OXLEY, Ohio

MICHAEL BILIRAKIS, Florida

JOE BARTON, Texas

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

Vice Chairman

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

BRIAN P. BILBRAY, California

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

RICK LAZIO, New York

BARBARA CUBIN, Wyoming

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

ROY BLUNT, Missouri

ED BRYANT, Tennessee

ROBERT L. EHRLICH, Jr., Maryland

JOHN D. DINGELL, Michigan

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

PETER DEUTSCH, Florida

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

RON KLINK, Pennsylvania

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

THOMAS C. SAWYER, Ohio

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

JAMES E. DERDERIAN, Chief of Staff

JAMES D. BARNETTE, General Counsel

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON HEALTH AND ENVIRONMENT

MICHAEL BILIRAKIS, Florida, Chairman

FRED UPTON, Michigan

CLIFF STEARNS, Florida

JAMES C. GREENWOOD, Pennsylvania

NATHAN DEAL, Georgia

RICHARD BURR, North Carolina

BRIAN P. BILBRAY, California

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

Vice Chairman

RICK LAZIO, New York

BARBARA CUBIN, Wyoming

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

ED BRYANT, Tennessee

TOM BLILEY, Virginia,

(Ex Officio)

SHERROD BROWN, Ohio

HENRY A. WAXMAN, California

FRANK PALLONE, Jr., New Jersey

PETER DEUTSCH, Florida

BART STUPAK, Michigan

GENE GREEN, Texas

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

LOIS CAPPS, California

RALPH M. HALL, Texas

EDOLPHUS TOWNS, New York

ANNA G. ESHOO, California

JOHN D. DINGELL, Michigan,

(Ex Officio)

(II)
2

C O N T E N T S

Page

Hearings held:

May 19, 1999 ..................................................................................................... 1

May 27, 1999 ..................................................................................................... 81

Testimony of:

Billings, Hon. Leon G., Member, Maryland House of Delegates .................. 91

Burnham, Robert M., Chief, Domestic Terrorism Section, Federal Bureau

of Investigation ............................................................................................. 37

Fields, Timothy, Jr., Acting Assistant Administrator, Office of Solid

Waste and Emergency Response, Environmental Protection Agency ...... 32

Fong, Ivan K., Deputy Associate Attorney General, Department of Justice .................................................................................................................. 29

Gablehouse, Timothy R., Chair, Jefferson County LEPC ............................. 61

Grumet, Jason S., Executive Director, NESCAUM ....................................... 94

Kinsey, Kathy M., Assistant Attorney General, State of Maryland ............. 102

McMasters, Paul K., First Amendment Ombudsman, Freedom Forum,

on behalf of the American Society of Newspaper Editors .......................... 108

Natan, Thomas, Research Director, National Environmental Trust ........... 104

Orum, Paul, Coordinator, Working Group on Community Right-To-Know . 53

Pfeifer, Martin, Sergeant, Metropolitan Police Department, and Elected

Trustee, the National Board of Directors, Fraternal Order of Police ....... 57

Sloan, Thomas W., Director and State Librarian, Delaware Division of

Libraries, on behalf of the American Library Association ......................... 65

Southwell, Donna J., Ann Arbor City LEPC Member, Assistant Emergency Coordinator, Washtenaw County LEPC, Environmental Health,

Education and Outreach Manager for Washtenaw County, Michigan ..... 98

Strader, Lowell P., International Representative, Pace Workers International Union .............................................................................................. 69

Susman, Thomas M., on behalf of Chemical Manufacturers Association .... 48

Wheatley, Mark S., Assistant Chief, Fairfax County Fire and Rescue

Department, on behalf of International Association of Fire Chiefs .......... 45

Material submitted for the record by:

National Conference of State Legislatures, prepared statement of ............. 126

(III)
(1)

THE CHEMICAL SAFETY INFORMATION AND

SITE SECURITY ACT OF 1999

WEDNESDAY, MAY 19, 1999

HOUSE OF REPRESENTATIVES, COMMITTEE ON COMMERCE, SUBCOMMITTEE ON HEALTH AND ENVIRONMENT, Washington, DC.

The subcommittee met, pursuant to notice, at 2:24 p.m., in room

2123, Rayburn House Office Building, Hon. Michael Bilirakis

(chairman) presiding.

Members present: Representatives Bilirakis, Stearns, Deal,

Bilbray, Whitfield, Cubin, Pickering, Bryant, Bliley (ex officio),

Brown, Waxman, Pallone, Green, Strickland, DeGette, Barrett, and

Dingell (ex officio).

Staff present: Anthony Habib, legislative clerk; Joe Stanko, majority counsel; Bob Meyers, majority counsel; and Alison Berkes,

minority counsel.

Mr. BILIRAKIS. The hearing will coming to order.

I would like to, first, thank our witnesses for appearing today to

discuss H.R. 1790, the legislation concerning the Internet posting

of chemical worst-case release scenarios.

This legislation was introduced by Full Committee Chairman Bliley at the request of the administration. It is my understanding

that the bill was developed only after weeks of interagency discussions between the Environmental Protection Agency, the Department of Justice, the Federal Bureau of Investigation, and other

Federal entities. Therefore, I believe it is fair to state that this legislation represents a consensus of the administration on this issue,

and that by submitting this bill to Congress, the administration

has requested us to act on behalf of the security interests of this

Nation and to protect the general public from harm. So I, therefore,

take this legislative request by the administration very seriously.

At our hearing of February 10, the administration opposed third

parties making worst-case scenario information available in a

searchable, electronic format. The FBI has indicated that such information, and I quote, ‘‘can directly be used as a targeting mechanism in a terrorist or criminal incident.’’ Since present law will not

prevent the public dissemination of this information to all corners

of the world via the Internet, H.R. 1790 represents a necessary, indeed, unavoidable change in the law.

I must say at the outset, however, that while this bill represents

a consensus among various agencies and departments of the Federal Government, it is not—as my ranking member just recently

said—a perfect product.
2

As we will hear today, there are elements of this legislation

which will require additional action by the administration, in terms

of regulations and guidance.

Furthermore, there are elements of this legislation which we may

want to carefully consider and revise before sending a final product

to the President for signature. Whenever we establish new Federal

law, we must take care to draft provisions carefully and to thoroughly consider the ramifications.

But it is also equally clear that we just plainly do not have much

time. Since H.R. 1790 was not transmitted to Congress until May

7, we have a little over 4 weeks from today to complete all of the

necessary procedural steps in the House and the Senate. I don’t

think I need to remind members that committee reports, floor consideration, and conference committee are necessary. All require

substantial amounts of efforts, so we must then act with all reasonable speed.

In this regard, I intend to work with my colleagues from both

sides of aisle—we have done some great things up here the last 2

or 3 years of working together—and with the administration to ensure the legitimate concerns with the legislation are addressed. But

I do not intend to let the clock run out while we are still talking

and not acting, and I want to make that clear.

In summation, the legislation before us attempts to create a finely honed exception to the general provision of risk management

plan data to the public, based on FBI’s analysis of terrorist threats

and based on month’s-long review and discussion by governmental

experts in law, law enforcement, and environmental policy.

As such, the legislation is a narrow measure, based on wideranging interagency review, which is essentially designed to avert

a defined threat. We should, therefore, resist any temptation to expand this legislation beyond its essential purpose and to work to

perfect this legislation, while not making the perfect—the enemy of

the good.

The Chair now recognizes Mr. Brown for an opening statement.

Mr. BROWN. I thank you, Mr. Chairman.

We are meeting today to receive testimony on the Chemical Safety Information and Site Security Act, H.R. 1790.

The Clean Air Act requires chemical facilities to file risk management plans which include information on the consequences of

serious chemical accidents, known as the worst-case scenario or offsite consequence analysis data.

The information was all intended to be publicly available to allow

communities to prepare for accidents, but concerns have been

raised that terrorists could use it to plan attacks on chemical facilities.

We are here to examine the administration’s legislative proposal

which would greatly restrict access to that data on potential chemical accidents.

H.R. 1790 raises a number of complicated issues that deserve

close scrutiny. It is unfortunate that this hearing was called only

a few days ago, thus making it difficult for interested parties to

thoroughly review this very complicated issue. Some of the witnesses requested by the minority were not invited or were not able

to attend on short notice.
3

I want to thank Chairman Bilirakis for his good-faith efforts in

trying to accommodate, in the next week, the minority, and I think

we will probably hear a little more on that later.

We have been receiving expressions of interest and concern from

a number of important stakeholders who will not be represented

here today. For example, the National Association of Attorneys

General has expressed surprise and concern that H.R. 1790 would

preempt State freedom of information and public record laws and

could subject State officials and employees to criminal sanctions if

they permit unauthorized access to worst-case scenario data.

Included with my opening statement, which I will submit for the

record, is a list of agencies and organizations that have expressed

interest in disclosure of worst-case scenario information.

I would like, also, Mr. Chairman, to highlight several of my concerns with H.R. 1790. The bill permits the EPA to provide the data

on chemical accidents to State and local officials. However, volunteer firefighters and many members of local emergency planning

committees are not considered State or local officials and would not

be allowed to receive this crucial, to them, information, and to their

communities, information from the EPA.

While many chemical companies are taking a responsible approach and will continue to share information directly with their

local emergency planning committees, it is important to address

this issue in the legislation.

Second, workers at chemical facilities have a significant stake in

this matter. Public information on risk management plans and accident scenarios provide opportunity for workers who are on the

front lines when accidents occur to learn more about the facilities

where they work ahead of time and to discuss safety improvements

with their employers. H.R. 1790 would great hamper this exchange.

Furthermore, if the concern is for terrorist attacks on chemical

facilities, H.R. 1790 should contain substantive measures to encourage chemical facilities to reduce hazards and increase security.

I recommend to deal with that consideration a proposal by my

colleague, Mr. Waxman, along these lines.

Along with my opening statement, Mr. Chairman, I request

unanimous consent to submit three letters to the record. The first

dated March 25 of this year is from Mr. Dingell, Mr. Klink, and

me, to David Walker, the Controller General of the GAO.

Mr. BILIRAKIS. Without objection.

[The information referred to follows:]

U.S. HOUSE OF REPRESENTATIVES

COMMITTEE ON COMMERCE

March 25, 1999

The Honorable DAVID M. WALKER

Comptroller General

General Accounting Office

441 G Street, N.W.

Washington, D.C. 20548

DEAR COMPTROLLER GENERAL WALKER: Last month, the Committee on Commerce

held a hearing entitled ‘‘Internet Posting of Chemical ‘Worst Case Scenario’ Data:

A Road Map for Terrorists?’’ The hearing focused on 112(r) of the Clean Air Act,

which mandates that approximately 66,000 facilities handling dangerous chemicals

are required to file with the Environmental Protection Agency (EPA) by June 21,

1999, a risk management plan (RMP) containing an off-site consequences analysis—

or ‘‘worst case scenario’’—that could result from the release of those chemicals. The
4

scenarios will contain the amount of the chemicals on each site and the potential

effects of a total release both inside and outside the facility. The RMP will also include a prevention and a response program. When Congress passed this provision

in 1990, its stated purpose was ‘‘prevent the accidental release and to minimize the

consequences of any such release . . .’’ P.L. 101-549 112(r)(1).

On the day before the hearing, Chairman Bliley held a press conference. He described the plan as a ‘‘reckless’’ move and an ‘‘emerging national security threat’’

that would result in terrorist bombings of chemical facilities and said that he would

introduce legislation to address with his concerns within the next few weeks. Senator Inhofe, who held a hearing recently, has also indicated that he is considering

legislation that would restrict dissemination of this information.

While there may well be reason for concern, there were also sound reasons for

congressional action in 1990. Congress required that the RMPs be made available

to the public to encourage the public to work with the facilities to create an effective

response plan, mitigate any potential effects and reduce the amount of dangerous

chemicals on site. Accidental chemical releases are a major health and safety problem and economic cost in the U.S. Every year, more than 250 people—mostly workers and first responders—die in chemical accidents. According to the Chemical Safety and Hazard Investigation Board (CSB), ‘‘Commercial chemical incidents occur

tens of thousands of times each year, often with devastating and exorbitantly expensive consequences.’’ Another 2,300 persons are injured, many seriously. These accidents occur ‘‘all over the country, in every state, on railways, highway and waterways, and in all kinds of industry, government and commercial facilities. During the

period 1987-1996, chemical incidents were recorded in 95% (3,145) of the nearly

3,300 United States counties.’’ Approximately one-third of the U.S. population, or 85

million people, live within five miles of a regulated source.

At our hearing, some witnesses testified that, although the public had the right

to know the worst case scenario and assist in efforts to reduce the risk of chemical

accidents, they should not have access to this information on the Internet because

terrorists might use the information to attack chemical facilities. Several of them

cited a ‘‘security study’’ funded by the EPA as supporting their position that the information would result in increased risk of terrorism at chemical facilities. However,

that study, which apparently was never completed, appears to have serious methodological errors that cause us to question any reliance on its conclusions by EPA

or the Congress.

Enclosed is a staff memorandum to us raising numerous questions about the

study that we are referring to the General Accounting Office (GAO) for review.

These include (1) a failure to establish the required baseline risk of attack and then

quantify the incremental increase, if any, of releasing the worst case scenario; (2)

the use of questionable methodology throughout the study; (3) the claim that risk

of death in chemical facilities by terrorist action equals the risk of death by accidental releases in those same facilities, even though not a single person has ever

died from terrorist causes in a chemical facility while dozens die every year from

chemical accidents; and (4) the attempt to demonstrate potential risk by citing an

alleged incident of chemical facility terrorism that has been publicly known since

1991 to have been an insurance scam, not a terrorist attack.

By this letter, we are requesting that GAO review the study and address the

questions listed in the attachment to the staff memorandum. If your staff has any

questions or would like to discuss this further, please contact Edith Holleman, Commerce Committee minority counsel, at (202) 226-3407.

Sincerely,

JOHN D. DINGELL, Ranking Member,

Committee on Commerce

RON KLINK, Ranking Member,

Subcommittee on Oversight and Investigations

SHERROD BROWN, Ranking Member

Subcommittee on Health and Environment

Enclosure

The Honorable Tom Bliley, Chairman

Committee on Commerce

The Honorable Michael Bilirakis, Chairman

Subcommittee on Health and Environment

The Honorable Fred Upton, Chairman

Subcommittee on Oversight and Investigations
5

1Letter dated May 1, 1998, from Howard Dugoff, senior vice president, ICF Consulting Group,

to James Makris, director, Chemical Emergency Preparedness and Prevention Office, EPA.

March 25, 1999

MEMORANDUM

TO: The Honorable John D. Dingell, Ranking Member; The Honorable Ron Klink,

Ranking Member, Oversight & Investigations Subcommittee; The Honorable

Sherrod Brown, Ranking Member, Health & Environment Subcommittee

FROM: Commerce Committee Democratic Staff

SUBJECT: Public Dissemination of Risk Management Plans

On June 21, 1999, approximately 66,000 facilities which handle dangerous chemicals and inflammables are required to file a risk management plan (RMP) with the

Environmental Protection Agency which by law must be made available to the public. The plans are expected to encourage the facilities and the public to work together to more safely handle these chemicals. Included in each plan is a ‘‘worst case

scenario’’ or off-site consequences analysis (OCA) which attempts to predict the extent of impact of a release of these chemicals. Section 112(r) of the Clean Air Act,

which requires the filing, was a compromise which allowed industry to avoid mandatory regulation of these chemicals in exchange for full disclosure.

Under ‘‘e-FOIA’’ provisions passed in 1996, EPA had intended to place all of this

information on the Internet so that the public would have full access to it. However,

in 1997, the Accident Prevention Subcommittee of the Clean Air Act Advisory Committee, at the behest of the Chemical Manufacturers Association and the Federal

Bureau of Investigation, requested a study to determine whether the inclusion of

the worst case scenario information on the Internet would increase the risk of a terrorist attack on chemical facilities. ICF Consulting, one of EPA’s support contractors, contracted with Aegis Research Corporation to do the study. A study outline

was provided, and Aegis was specifically instructed to quantify the increased risk.

As far as we can tell, Aegis never provided a final product as required by the contract. The study outline was not followed. The baseline risk varied from section to

section; the methodology was unclear in the draft report. The report was not peerreviewed either outside or inside EPA, and it appears that its author continued to

do manipulations of his model after his submission to EPA. These deficiencies are

described more fully below.

Moreover, agency officials and members of the Accident Prevention Subcommittee

have told staff that the report was not credible. A May 1998 letter from the ICF

Consulting’s senior vice president stated that Aegis Research used a ‘‘subjective

scoring system’’ to evaluate risk, and that its approach is ‘‘not susceptible to empirical validation in its present application.’’

The contractor’s senior vice president proceeded to conclude that it would be

‘‘grossly inappropriate‘‘ to use the relative risk projections in the study to question

the merit of EPA’s plan to make the RMP data available on the Internet for the

following reasons:

1. ‘‘The significance of relative risk, in the absence of a measure of absolute

risk, is unknown.’’

2. Any potential increases in terrorist risk ‘‘must be evaluated in transposition with the overall reduction in risk brought about by virtue of the dissemination of information to the public at large—I am absolutely convinced that the

latter effect overwhelmingly outweighs the former.’’

Based on his experience with the Emergency Planning and Community Right-toKnow Act, he further stated to EPA:

I know of no influence that motivates industry leaders to reduce the risks attendant to their plant operations anywhere near comparable to knowledge that their

workers and their neighbors are well informed about those risks. (emphasis

added) 1

The stated purpose of the report was to quantify the incremental change in risk

of a terrorist incident at a chemical plant if the ‘‘worst case scenario’’ under Section

112(r) of the Clean Air Act were placed on the Internet. This incremental change

was to be calculated by establishing a baseline risk resulting from similar information obtained from other Internet sources and through other government data bases.

If the incremental risk of a terrorist incident based on Internet distribution was determined ‘‘significant,’’ the contractor was to compare the risks of other means of

public distribution. Aegis was also to compare the potential ‘‘cost’’ of putting the information on the Internet versus the potential ‘‘benefit’’ in reducing chemical accidents.
6

2Since 1992, the military intelligence community has been writing about the possibility of terrorists using the already available ′′facility environmental files’’ as ‘‘target folders’’ (see, Walker,

K. ‘‘Enviro-Terrorism’’ SARA Title III and its Impact on National Security,’’ Military Intelligence,

July-Sept. 1992, p. 20), there has been only one potential ‘‘terrorist’’ plot that has targeted a

chemical facility in the United States. It was planned by a small, local group of poverty-stricken

Klu Klux Klan members who were going to blow up a refinery tank as a diversion while they

robbed an armored car. They used none of the publicly available information to select their target, but relied on their own observations and knowledge of the security and chemical contents

of the refinery. The attack was not carried out because one of the conspirators contacted the

Federal Bureau of Investigations. They also did not have the necessary explosives. 3 It is unclear why seven years was used except that the desired result was obtained. No reputable statistician would select arbitrarily two end points and extrapolate mortality rates without some stated justification. 4 No attempt was made to control for deaths per number of persons employed in the various

facilities or by numbers of persons who could be expected to have access to those facilities. 5 ‘‘The 600K Report,’’ Exhibit C, ‘‘Chemical Incidents, Deaths, Injuries by Type, 1987-1996.’’

The majority of deaths result from transportation-related chemical incidents. 6This scenario would take the threat out of the domestic-amateur terrorist realm that the

Subcommittee was most concerned about into state-sponsored international terrorism even

though the Subcommittee had previously concluded that terrorists of that type already knew

how to obtain this information.

A review of the study, with its uncertain methodology, and the comments of Subcommittee members, indicate that the contractor was unable to answer the questions posed. Numerous errors and questionable methodology and conclusions—too

many to outline here—are immediately evident. For example, in the draft study, the

baseline risk was not the risk of a terrorist event at a chemical facility based on

currently available public information, but what the contractor arbitrarily decided

was the risk of an American dying in the terrorist bombing of a building. The methodology for calculating this risk was inaccurate at best. It resulted in the

unsupportable conclusion that more people will die every year in terrorist bombings

than in chemical accidents. This calculation became, however, one of the critical elements in the Chemical Manufacturers Association’ argument against putting the

Risk Management Plans on the Internet.

How did Aegis draw this conclusion? Because there was no Internet-related chemical facility terrorism from which to develop a baseline,2 Aegis decided to use the

bombings at the World Trade Center and Oklahoma City Federal Building—both

public buildings with free access which are not comparable to private chemical facilities. By taking the number of deaths in these two incidents (six in 1993 and 167

in 1995) and dividing them by seven, Aegis made the totally unsubstantiated assumption that every seven years, 173 people die in bombings of buildings, for an average of 25 persons per year.3 The baseline chosen for death by chemical ‘‘accidents’’

was 20 deaths per year. There was no identified source for this number, and it was

admitted to be a ‘‘soft’’ number. The contractor was then able to conclude that the

risk of being killed by a terrorist bomb in a building—although minuscule—is nonetheless greater than that of being killed in a chemical release accident.4

However, according to the Chemical Safety Board, from 1987 through 1996, an

average of 33 persons were killed each year in ‘‘fixed facility’’ chemical accidents.5

When that number is used in Aegis’ formula, and the bombing deaths are averaged

over the same 10-year period which is still a questionable assumption—a different

conclusion is reached. It becomes almost twice as likely for Americans to die in a

chemical release accident than in a terrorist bombing of a public building. If the

same ten-year period included actual deaths caused by terrorist bombings of chemical handling facilities, the baseline would be zero for death by bombing, compared

to the much greater, documented risk of death caused by chemical releases.

Then, apparently in mid-study, Aegis decided the incremental risk it was quantifying was the risk of easily selecting a chemical facility as a target, not the risk

of an actual attack. Aegis assumed that the terrorist’s objective was to select a

chemical facility ‘‘to be used as a chemical weapon in carrying out an NBC [nuclearbiological-chemical] attack against the United States.’’ (emphasis added) 6 Then,

using some unexplained selection process and ranking system, Aegis evaluated nine

factors and determined that the ‘‘incremental increase’’ in risk was ten times higher

with availability of all of the RMP/OCA data on the Internet—even though it was

supposed to consider only the worst case scenario data.

In its report, Aegis acknowledged that the essential elements in carrying out a

terrorist attack could not be obtained from the RMP/OCA filings; These are: 1)

knowledge of security; 2) knowledge of chemical location; and 3) knowledge of facility layout. However, since it was no longer quantifying the risk of actual attack, the

fact that the terrorist would not obtain the necessary information from the RMP/

OCA to actually carry out an attack apparently was not deemed significant.
7

Because of the significance of this report to the debate thus far, and because of

ongoing concerns about the EPA’s use of studies, we recommend further analysis by

the General Accounting Office. Attached is a list of questions that the General Accounting Office should answer about the Aegis study.

ATTACHMENT

1. From the various EPA and Aegis documents reviewed by staff, it is difficult to

know exactly what incremental ‘‘risk’’ Aegis was expected to quantify or if the

definition changed in the middle of the study. Was the Aegis study designed to

quantify:

(a) the increased risk of death at a U.S.-based chemical facility by terrorist activities that would result from the posting of worst case scenarios on the Internet

versus the baseline risk resulting from similar information already available

from the Internet sources?

(b) the increased risk of a terrorist attack on a U.S.-based chemical facility based

on the posting of worst case scenarios on the Internet versus the baseline risk

resulting from similar information already available from other Internet

sources?

(c) the increased risk that the use of worst case scenario information on the Internet as part of the decision-making process used by a terrorist would result

in a chemical facility target as opposed to other targets versus the baseline

risk already posed by similar information already available from other Internet sources?

(d) the increased risk of a terrorist who has already determined to target a U.S.-

based chemical facility to use the worst case scenario on the Internet to

choose a specific target compared to the baseline risk resulting from similar

information already available on the Internet?, or

(e) some other undefined risk?

2. What was the baseline risk number?

3. What methodology did Aegis use to quantify the selected risk? Was it generally

accepted methodology for risk measurement? What is the band of confidence

around the results?

4. What documentation did Aegis use to conclude that the ‘‘Adversary Strategy’’ developed by the U.S. Special Operations Command provided the appropriate decision-making grid for either domestic, amateur or foreign terrorists?

5. What is the basis for the ‘‘probability of completion’’ numbers Aegis used to evaluate different sources of information? What mathematical formula did Aegis use

to conclude that posting worst case scenarios on the Internet would provide the

most assistance to terrorists who wanted to select a chemical facility as a target? Is this a generally accepted methodology?

6. Recently, the Chemical Safety and Hazard Investigation Board (CSB) issued a report based on reviews of five different federal databases which concluded that,

on average, over 250 people die every year in chemical release accidents. Of

that total, 33 die in ‘‘fixed facility’’ chemical accidents. CSB does not believe

that these numbers represent all of the persons who die every year in chemical

accidents. On what data did Aegis base its projection that only 20 people are

killed annually from chemical release accidents?

7. What was the basis for Aegis dividing the number of persons killed in the World

Trade Center bombing and the Oklahoma City bombing by seven and concluding that an average of 25 people die from terrorist bombings every year?

Is this a credible methodology to obtain an annual risk of death by terrorist

bombs? What is the normal method used to calculate future risk for an event

which has occurred only twice in the last 100 years?

8. In a study that purports to quantify the risks of terrorism at private chemical

facilities and refineries, is it appropriate to use as a baseline terrorist-caused

deaths in public buildings?

9. When Aegis wrote its report, was it aware that the 1991 alleged ‘‘terrorist’’ incidents at chemical facilities that it cited was not the work of a terrorist, but an

insurance scam by the owner of the chemicals which was well-reported in the

press? If not, why not?

10. It appears that Aegis began with the assumption that a terrorist, despite all the

other available targets such as easily accessible public buildings, highways and

public transportation would select a private chemical facility as a target. For

example, it stated that ‘‘[t]aken together, the primary utility of the unrestricted

RMP and OCA data to a terrorist emerges from the capability to scan across

the entire country for the ‘best’ targets.’’ On what basis did Aegis make this as-
8

sumption that private chemical facilities would be on the list of ‘‘best’’ targets

for either local or international terrorists?

11. Aegis stated that a key knowledge element to planning a terrorist attack was

determining facility security measures, information available only through insider knowledge or observation of a particular facility. The RMP/OCA report

does not provide this information. Did Aegis evaluate the risk of a terrorist attack with and without this key element?

12. Was a final draft of the study ever received from Aegis?

13. Did anyone inside or outside of EPA peer-review the Aegis study or its model?

Mr. BROWN. Thank you, Mr. Chairman.

The second is dated May 19, of 1999. It is from William Pound,

executive director of the National Conference of State Legislators,

to me.

And the third is dated May 18, 199. It is from Heidi Heitkamp,

attorney general of North Dakota, and my attorney general, Betty

Montgomery, of Ohio, on behalf of the National Association of Attorneys General, written to the chairman—to Chairman Bilirakis.

And the following have expressed interest in the issue of disclosure of worst-case scenario information and this is a list that I

would also like to submit for the record. I ask unanimous

consent——

Mr. BILIRAKIS. Without objection.

[The information referred to follows:]

NATIONAL CONFERENCE OF STATE LEGISLATURES

May 19, 1999

The Honorable SHERROD BROWN

Ranking Member

Health and Environment Subcommittee

House Commerce Committee

201 Cannon House Office Building

Washington, DC 20515

RE: H.R. 1790, The Chemical Safety Information and Site Security Act of 1999

DEAR REPRESENTATIVE BROWN: I understand that the Subcommittee on Health

and the Environment of the House Commerce Committee is holding a hearing on

H.R. 1790, the Chemical Safety Information and Site Security Act of 1999. I respectfully request that you hold another hearing in order to give the National Conference

of State Legislatures and other state and local government officials an opportunity

to comment on H.R. 1790.

After a quick review of this bill, I have determined that it contains provisions that

preempt state law. Although NCSL understands the bill’s intent to protect human

health and the environment, I feel that we need time to thoroughly review this bill

to determine the extent of the preemption. We would like to work with you to craft

the best possible language to achieve the goals of this bill without sidestepping state

law.

Please do not hesitate to contact Michael Bird or Melinda Cross at (202) 624-5400

should you have any questions.

Thank you for your attention to this matter.

Sincerely,

WILLIAM POUND,

Executive Director

Mr. BROWN. [continuing] and then thank the chairman for his

patience.

Mr. BILIRAKIS. Without objection.

Mr. BROWN. Thank you.

[The information referred to follows:]
9

NATIONAL ASSOCIATION OF ATTORNEYS GENERAL

May 18, 1999

Honorable MICHAEL BILIRAKIS

Chairman

Subcommittee on Health and the Environment

United States House of Representatives

Washington, DC 20515

DEAR CHAIRMAN BILIRAKIS: We have just learned that your Subcommittee will

hold a hearing on May 17 on the ‘‘Chemical Safety Information and Site Security

Act of 1999.’’ Further we understand that similar language was added to S. 669,

which has been favorably reported from the Senate Committee an Environment and

Public Works.

We are surprised by this legislation that would preempt state FOIA/public record

laws and subject state officials and/or employees to possible criminal sanctions. Before action occurs on such a sweeping proposal, there should be extensive consultation with Attorneys General, Governors, legislators and other affected individuals.

We have not had time to review the details of this proposal. While the goals of this

proposed legislation—to prevent unnecessary risks to public safety that might result

through the broad electronic dissemination of off-site consequence analysis (OCA)

data—may be laudable, states should be fully involved in the development of any

legislation that would preempt state laws and subject state officials to possible

criminal penalties. Concern about misuse of OCA data need to be balanced with

public access to information about potential releases of hazardous substances in

their communities. This is a delicate balance that will require extensive consultation

with the states.

A representative of the Association was not invited to testify on Wednesday, nor

could we at this late date. We therefore respectfully request that you schedule another hearing, inviting representatives of the National Association of Attorneys General and other state associations to testify, and that it serve as a beginning of an

extensive, ongoing dialogue to resolve our concerns. Please contact Lynne Ross,

NAAG’s Deputy Director and Legislative Director at (202) 326-6054 if you or your

staff have any questions.

Sincerely,

HEIDI HEITKAMP, Attorney General of North Dakota

Vice Chair, NAAG Environmental Committee

BETTY MONTGOMERY

Attorney General of Ohio

cc: Representative Tom Bliley

Representative Sherrod Brown

Representative John Dingell

Attorney General Mike Moore

Mr. BILIRAKIS. Without objection, the opening statements, of

course, of all members of the subcommittee will be make a part of

the record. And for oral statements, let’s see, Mr. Whitfield?

Mr. WHITFIELD. Thank you, Mr. Chairman. I will file my opening

statement with the record, but I am pleased that you are holding

these hearings on this important subject matter.

And I know that we have a panel of witnesses who have some

real expertise in this area, so I simply look forward to their testimony, and want to thank you, again, for the hearing.

Mr. BILIRAKIS. I thank the gentleman.

Mr. Waxman, for an opening statement?

Mr. WAXMAN. Yes, Mr. Chairman; thank you for recognizing me.

We are going to receive testimony today from administration witnesses and others regarding H.R. 1790, the Chemical Safety Information and Site Security Act of 1999.

This legislative proposal was developed by Department of Justice, EPA, and the FBI over a very short timeframe. And, frankly,

I am concerned that it raises a number of issues that have not been

adequately considered. Most interested and affected parties have
10

only learned of this proposal in the last few days and have not had

an opportunity to review the proposal and to comment on it.

It is important that this subcommittee receive testimony from all

affected parties before going forward, that is why I am concerned

about the manner in which this hearing has been put together. The

minority was given notice at the last possible moment, as were

many of the witnesses. Some of the witnesses before us were not

contacted by the subcommittee staff until Friday afternoon or Monday morning. This, of course, is Wednesday. And, oddly, some

groups which have a direct interest in this issue, like the National

Association of Attorneys General were not even invited. In fact

there are no witnesses today representing the point of view of the

States.

The threat of terrorism is one we should approach with the utmost seriousness. Historically, terrorists have focused their attacks

on public buildings due to the symbolic value of attacking a Government entity. Regardless, we should limit the risk of terrorist attack whenever and wherever it makes sense to do so. And I am

concerned about the approach of this bill.

I have to point out that since 1997, many of us have pressed for

legislation so that the public would have a right to know about potential accidents in their communities. This bill would raise significant obstacles to informing the public about what might harm

them in the neighborhood and the community in which they live.

This legislation could also make it significantly more difficult, if

not impossible, to conduct the kind of studies that would help reduce the hazard of chemical facilities across the board.

I can tell that the administration has made efforts to ensure that

all chemical safety information remains publicly available. This is

critically important, and I don’t believe any of our witnesses today

will testify that the public should not have this information. I

would vigorously oppose any effort to strip the public of their right

to know about potential accidents in their communities. However,

H.R. 1790 proposes the extraordinary measure of extending criminal penalties to State and local officers and employees who provide

the public with information that is otherwise publicly available.

Can you imagine that if you are a local employee and you get the

information, if you tell the public about it, you can maybe go to

jail? I am interested in hearing the administration’s rationale for

this unusual approach.

I think the subcommittee should take a step back and put the

issue in perspective. So far, the debate has centered exclusively on

public access to accident planning and prevention data. Well, I am

concerned about restricting the availability of information regarding accidental chemical releases as a sole approach to addressing

the threat of terrorist attacks on chemical plants. This approach

may sacrifice the public’s right to know, while ignoring more direct

approaches to reducing the risks posed by terrorism.

The potential for terrorist attacks on chemical facilities deserves

a more comprehensive approach—one which examines all aspects

of the issue, including chemical plant security equipment and personnel and the value of establishing buffer zones between hazardous chemical operations and residential areas, schools, transportation routes, and other public centers. Only through such a com-
11

prehensive analysis, can we identify the steps we need to take and

their relative priority.

Site security measures may likely emerge as more important in

reducing terrorist risk than information security measures. In

other words, it may be more important where we site facilities that

could pose a risk if they are the subject of a terrorist attack than

keeping the public from knowing about the risks that they may be

exposed to.

If past experience with right-to-know laws is any indication,

when the public knows about dangers, it encourages chemical

plants to adopt inherently safer practices which would reduce the

hazard associated with these facilities to both terrorist attack and

to accidents.

Mr. Chairman, on July 29, 1999, I wrote Attorney General Janet

Reno and EPA Administrator Carol Browner regarding this issue,

and I sent them draft legislative language for their comments. I am

hoping the witnesses can address that. This draft language would

seek to reduce the risk of terrorist attack on chemical facilities by

directing the Department of Justice to convene a task force to perform just such a comprehensive analysis of the risk of terrorist attacks and to recommend necessary protective measures. I haven’t

received a response from them.

It is my hope that we can move in this subcommittee together

on a bipartisan manner to address the risks associated with these

chemical facilities. If members of the subcommittee are truly interested in addressing the threat of terrorism, we must take a comprehensive approach.

I would ask, Mr. Chairman, if we could have unanimous consent

to put in the record my letter to Janet Reno with the proposal that

I submitted to her?

Mr. BILIRAKIS. Without objection.

[The information referred to follows:]

CONGRESS OF THE UNITED STATES

HOUSE OF REPRESENTATIVES

April 29, 1999

The Honorable JANET RENO

Attorney General

Department of Justice

10th Street and Constitution Avenue, NW

Washington, DC 20530

The Honorable CAROL M. BROWNER

Administrator

U.S. Environmental Protection Agency

Washington, DC 20460

DEAR ATTORNEY GENERAL RENO AND ADMINISTRATOR BROWNER: I am writing to

you regarding an important issue currently being debated in Congress and to request your views on the attached legislative language.

The Federal Bureau of Investigation has recently testified before Congress regarding the threat of terrorist attack on the nation’s chemical facilities. I am concerned

about this risk. Historically, terrorists have focused their attacks on public buildings

due to the symbolic value of attacking a government entity. Setting that aside, limiting the risk of terrorist attacks is a prudent course of action.

Unfortunately, the debate so far has centered exclusively on public access to accident planning and prevention data. I am concerned that restricting the availability

of information regarding accidental releases of chemicals as a sole approach to addressing the threat of terrorist attacks on chemical plants may sacrifice the public’s

right-to-know while ignoring more direct approaches to reducing the risks posed by

terrorism.
12

The issue of terrorist attacks on chemical facilities deserves a more comprehensive

approach, one which examines all aspects of the issue, including chemical plant security equipment and personnel, the ‘‘hardness’’ of chemical operations against

bombing attacks, and the value of establishing protective buffer zones between hazardous chemical operations and residential areas, schools, transportation routes,

and other public centers.

Only through such a comprehensive analysis can we identify the steps we need

to take and their relative priority. Site security measures may likely emerge as

more important in reducing terrorist risk than information security measures. Additionally, if past experience with right-to-know laws is any indication, public disclosure will likely encourage chemical plants to adopt inherently safer practices which

would reduce the hazard associated with these facilities to both terrorist attack and

to accidents.

It would be very helpful to receive your views on the attached legislative language. This language would seek to reduce the risk of terrorist attack on chemical

facilities by directing the Department of Justice to convene a task force to perform

the comprehensive analysis discussed above, and to recommend the necessary protective measures. The legislation would then direct the EPA to implement those

measures in consultation with the Department of Justice.

I appreciate your attention to this matter and look forward to receiving your comments.

Sincerely,

HENRY A. WAXMAN

Member of Congress
13
14
15
16

Mr. WAXMAN. And, second, we have a letter from the U.S. Government Printing Office to the Honorable John H. Chaffee, regarding the extraordinary nature of the proposal that is before us. And

I think it would be important to have that letter in the record.

Mr. BILIRAKIS. Without objection, that is made a part of the

record.

[The information referred to follows:]

UNITED STATES GOVERNMENT PRINTING OFFICE

OFFICE OF THE PUBLIC PRINTER

May 12, 1999

The Honorable JOHN H. CHAFEE

Chairman, Committee on Environment and Public Works

U.S. Senate

Room 410, Dirksen Office Building

Washington, DC 20510

DEAR MR. CHAIRMAN: I am writing to express my serious concern over proposed

language included in S. 880, providing for public disclosure of certain chemical hazard information compiled by the Environmental Protection Agency (EPA). This language would impose restrictions within Federal depository libraries on the public’s

use of this information. The Government printing Office (GPO) and its Federal Depository Library Program (FDLP) wants to be as supportive as possible of the Senate’s intent to provide for public access to this important information. However, the

restrictions proposed for S. 880 appear to me to be fundamentally antithetical to the

mission and established administrative practice of the FDLP, which is to promote

comprehensive and equitable public access to Federal Government information without limitations on its use. Moreover, the proposed restrictions would be costly and

administratively burdensome to enforce.

Federal Depository Program. Under the FDLP, Government publications, ‘‘except those determined by their issuing components to be required for official use

only or for strictly administrative or operational purposes which have no public interest or educational values and publications classified for reasons of national security, shall be made available through the facilities of the Superintendent of Documents for public information.’’ 44 U.S.C. 1902. The Superintendent, an officer of the

Government Printing Office (GPO), distributes the publications to libraries designated as Federal depositories according to law, 44 U.S.C. 1905. Depository libraries are required to ‘‘make Government publications available for the free use of the

general public.’’ 44 U.S.C. 1911. The Superintendent of Documents periodically inspects the libraries to ‘‘make a firsthand investigation of conditions for which need

is indicated,’’ primarily to assure that public access is being maintained, 44 U.S.C.

1909.

GPO’s responsibility for the operation of the FDLP is primarily ministerial. As

long as Government publications requisitioned from GPO in print or electronic form

(or produced by other agencies and made available to GPO) meet the requirements

established by 44 U.S.C. 1902, GPO distributes the publications to the libraries.

GPO makes Government information available to the libraries in electronic format

via the distribution of CD-ROM copies and dissemination by GPO Access, GPO’s online Internet information service. Once in the libraries, GPO requires that the publications be made available to the public free of charge and without further restriction. Beyond inspecting the libraries to ensure their compliance with statutory requirements, GPO does not impose any further requirements on the libraries. GPO

does not regulate how the public uses Government publications. The libraries bear

the burden of housing the documents and making them available for use, including

providing staff assistance to public users.

Problems with Proposed Restrictions. The restrictions that have been proposed for S. 880 would be problematic for several reasons:

• There is a proposal to prohibit the copying of certain EPA information, whether

made available in paper or electronic form, in depository libraries. GPO has virtually no experience with administering such a restriction. To the best of my

knowledge, of the thousands of publications distributed each year, there is only

one case in which the FDLP has put out a notice restricting printing out or

photocopying a Government information product—the Foreign Broadcast Information Service, currently issued on CD-ROM. The restriction is due to copyright

limitations on the material in this publication, not security considerations. Enforcement of this restriction relies on notice being provided to users by librarians. Otherwise, Government publications whose use is restricted because they
17

are considered ‘‘for official use only or for strictly administrative or operational

purposes which have no public interest or educational value’’ or information

that is ‘‘classified for reasons of national security’’ are not included in the FDLP.

It is not clear how enforcing the prohibition on copying contained in S. 880

would be carried out—by GPO, or by depository librarians themselves. • There is a proposal that appears to require GPO to ensure that risk management

plans made available in electronic form do not provide an electronic means of

ranking stationary sources based on off-site consequence analysis information.

Since the EPA is the issuing component for this information, GPO would not

be able to ‘‘ensure’’ that the prohibited capability is not made available, particularly if the electronic form is put up on the Internet by the EPA itself and not

via GPO Access. If it is made available for dissemination to depository libraries

via GPO Access, GPO would not be able to restrict the ability of users to

download and manipulate the ranking data other than to decline to disseminate

the information altogether. Requiring GPO to edit information selectively so as

to prevent public access would be beyond the scope of responsibilities contemplated by the depository library provisions of Title 44 and a century of administrative practice in the FDLP. • There is a proposal to authorize appropriations to the Public Printer to implement

these restrictions. Funding for the FDLP is provided by the annual Salaries and

Expenses Appropriation of the Superintendent of Documents, under the Legislative Branch Appropriations bill. The Salaries and Expenses appropriation has

remained relatively flat in recent years, and GPO has been in a downsizing

mode in terms of authorized full-time equivalent employment (FTE’s). It is not

clear whether this authorization would provide additional funding to GPO, or

whether it would simply impose an additional requirement on the limited resources currently funded by the Salaries and Expenses Appropriation. • There is a proposal for the Administrator of the EPA to collect and maintain

records ‘‘that reflect the identity of individuals and other persons seeking access’’ to the information. It appears that this would require the GPO to collect

and maintain these records, either directly or by requiring depository librarians

to perform it. GPO does not collect information on individuals utilizing depository collections and does not have the administrative ability to do so, and in

my view this requirement would be vigorously opposed by the library community. Librarians are staunch supporters of user privacy and as a result would

be very unlikely to cooperate in this requirement. Moreover, it would be extremely difficult and costly to administer. Thousands of individuals utilize depository collections each week. Tracking those who use the EPA information

would impose a significant administrative burden. • There is language stating that an officer or employee of the United States, or an

officer or employee of a State or local government, who knowingly violates these

restrictions may be punished under the provisions of Title 18. As Federal employees, GPO personnel working in the FDLP could be held liable under this

provision. Since the FDLP and its statutory authorizing language do not contemplate the administration of restrictions on the public’s use of Government

information distributed to the libraries, there is genuine risk of inadvertent liability for FDLP employees under this provision. To the extent that depository

librarians are employees of State-run universities or public libraries, there is a

similar risk of liability.

In fact, the proposed restrictions, including the requirement to collect names and

the provisions for legal liability, are very likely to be strong disincentives for depository librarians to participate in making the targeted EPA information available to

the public. By law, the vast majority of depository libraries are ‘‘selective’’ depositories, meaning they choose from among the items made available by GPO according

to the needs of their users. Of the more than 1,350 libraries in the FDLP, only 53—

the regional depositories—accept everything distributed by GPO. The restrictions

proposed for S. 880, the requirement to take names, and the possibility of legal liability would most likely result in very few depository librarians selecting the EPA

information, thus undermining the intent of this legislation to use the FDLP as an

effective vehicle for making the information available to the public.

The proposed language for S. 880 clearly states that the EPA information may

be made available to certain officials, such as State or local government officers or

employees, for ‘‘official use.’’ This specific designation, accompanied by restrictions

on public access and use, strongly implies that the EPA materials do not meet the

criteria for free access to Government information. As I stated, GPO will be as supportive as possible of the Senate’s intent to provide public access to this important

information. However, in my view the restrictions on public access and use proposed

in S. 880 would actually have a negative impact on public use of this information.
18

If there is any way that I can assist you further in this matter, please do not hesitate to contact me on 512-2034.

Sincerely,

MICHAEL F. DIMARIO

Public Printer

cc: The Honorable Max Baucus

Ranking Member

Committee on Environment and Public Works

U.S. Senate

Mr. BILIRAKIS. Before the Chair yields to the chairman of the full

committee, Mr. Bliley, I wish to announce that we will have a further hearing on this subject next Wednesday afternoon, consistent

with our discussions.

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

Mr. BILIRAKIS. Mr. Bliley, for an opening statement.

Chairman BLILEY. Mr. Chairman, I would ask unanimous consent to insert my opening statement in the record.

Mr. BILIRAKIS. Without objection.

Chairman BLILEY. I would like to respond to the gentleman from

California, Mr. Waxman, on this issue of the timing of this hearing.

Months ago, we contacted the administration about this problem.

We asked them to come forward with recommendations for a legislative solution because we are faced with a June 21 deadline. They

did not come forward until 12 days ago. Consequently, we had to

schedule a hearing quickly because we have to attempt to move a

piece of legislation through this subcommittee, through the full

committee, through the Rules Committee, through the floor,

through the Senate, and get it to the President by June 21. Given

the fact, further, that the Congress, this House, will be out of session from next Thursday night, May 27, until June 8, this is a Herculean task, and that is why we had to schedule this hearing when

we did.

And I thank the chairman for yielding me the time, and I yield

back.

[The prepared statement of Hon. Tom Bliley follows:]

PREPARED STATEMENT OF HON. TOM BLILEY, CHAIRMAN, COMMITTEE ON COMMERCE

Thank you, Mr. Chairman for holding this important hearing on the Administration’s proposal to address the national security concerns that would result if we do

not act by June 21st to stop widespread posting of electronic worst-case scenario

chemical release data.

I first raised this issue last September, when the June 21st deadline for filing the

worst-case scenarios was nine months away. In October, EPA agreed that posting

this information on the Internet raised national security concerns and that EPA

would not put worst-case scenarios on its own website. EPA was silent about giving

out the electronic database to third parties. In February, before this subcommittee,

EPA said that it opposed third parties having the worst-case scenario information

in electronic format. EPA also said that it would solve that problem. Finally, some

12 days ago, the Administration proposed a solution, and I introduced that proposal

by request.

The Administration’s proposal seeks to prevent the widespread circulation of electronic worst-case scenarios data. EPA, FBI and DOJ all agree that would pose a

threat to national security. The proposal also seeks to ensure that local officials

have the risk information they need to plan and protect citizens, and that individuals have access to information concerning the risks associated with local chemical

facilities.

Like many legislative proposals, however, there are some issues that require fine

tuning. For example, we must ensure that citizens who perform public duties, such

volunteer firefighters and the LEPC members, have access to the data they need.

The criminal liability provision of this bill need careful review. The Committee must
19

examine potential restrictions on library materials. These flaws can and should be

fixed, let us work together to address these issues.

Let me stress that no one here is advocating that we keep the worst-case scenario

information locked up or away from those communities nearby chemical facilities.

I, for one, certainly support making sure that these communities have access to all

information about the risks associated with their facilities. But we also must ensure

that the way this information is provided does not end up harming the very people

that Congress intended to protect. While no plan is foolproof, we certainly shouldn’t

do anything to make it easier for those who want to harm our nation and our neighbors.

Because we can achieve both of these goals without sacrificing the other, I believe we must achieve both. The penalty for inaction is that, on June 21st, our national

security will be compromised by the release of a national, electronic targeting tool

available for use by terrorists from anywhere in the world.

I look forward to hearing from our distinguished panelists.

Thank you, Mr. Chairman.

Mr. BILIRAKIS. And I thank the gentleman.

Mr. Dingell, for an opening statement?

John, please pull the microphone closer.

Mr. DINGELL. As you will note, we have addressed the concerns

of the committee with regard to section 112 of the Clean Air Act

in February of this year. At that time, I urged that we carefully

examine legislation proposed in this matter.

At that time, my good friend, Mr. Bliley, the chairman, had stated his intention to introduce legislation which he has now done at

the request of the administration.

We are here today to examine the legislation, but I note we are

missing a number of witnesses whose insight I believe would be

valuable to the subcommittee. In fact, I believe their views are essential. I am strongly urging that State witnesses such as the National Association of Attorneys General, that have not been invited,

should be invited to testify on the preemption State FOIA and public records laws. These witnesses I believe have important interests

and concerns in provisions that may affect State issues and State

officials, with regard to possible criminal sanctions.

I believe that we need to have experts on constitutional law who

may answer my questions pertaining to the first amendment and

due process concerns. I believe strongly that we need to have a

Freedom of Information Act expert or at least a Privacy Act expert

here to discuss important components of statutes cited in this bill.

It is my understanding that the administration has obtained the

view of virtually no outside stakeholders in developing the proposal

they sent to the Speaker last week. In the short time since the administration’s language saw the light of day, few people outside the

administration have had the opportunity to scrutinize it. The bill

has not been printed since my good friend, Mr. Bliley, introduced

it last week.

Mr. Chairman, this is not a simple bill; it is complex, and it

raises a host of issues in its different provisions.

I am intrigued by the provision that allows the Administrator of

the EPA to produce guidance which would set forth the parameters

of criminal sanctions. This is probably an extraordinary section. By

the provisions of this bill, the guidance is not judicially reviewable,

nor is it subject to public review and comment. The rationale we

have heard for this mechanism of imposing criminal sanctions is

simply expediency. Indeed, that is a major concern of mine, and I

believe it is one that will be shared throughout the committee.
20

Are we in such a hurry to forestall the hypothetical terrorists

that we must compromise the rights of our citizens? And to what

degree? And, why?

Our citizens are entitled to understand exactly what actions are

punishable by imprisonment. Librarians, firefighters, police officers, or even State and local officials cannot easily negotiate a system of EPA-guidance documents. As a matter of fact, knowing

EPA, they will be obscure and will be drafted to best suit the concerns of EPA and not the concerns of the public at large. In fact,

people in the hinterlands, hire K Street lawyers to locate these

gems in the bowels of EPA. Sometimes, I might note, they are successful. Members on both sides of the aisle have often complained

that these documents are not binding on any party. EPA will tell

you so, that these kinds of documents have had enormous impact

on American industry, and the American economy.

This bill proposes we impose criminal sanctions in this way. I am

curious to know, what witness today can give us any examples of

Congress having previously taken such an action. This bill goes to

great lengths and great detail to lessen the possibility that information vital to public safety may, nevertheless, be used to harm

the public. The truth is, we cannot predict the intent of all who

view this information, no matter how we craft the legislation.

We have not documented any examples of terrorism associated

with this type of information, but we cannot say that it will never

happen. But we have documented examples of chemical instances,

far too many—estimates that there are some 60,000 chemical and

industrial incidents which occur each year. Between 1987 and

1997, many of these incidents resulted in death, and we can predict

with great certainty that there will probably be more deadly instances of such events in the following year.

Mr. Chairman, I do not deem the assurance of public safety an

easy task, but it is our task to balance the public’s right to understand the risks to the community and to address, to prepare for,

and to reduce these risks, with the law enforcement goal of protecting the public from undue harm. I understand that this bill was

intended to strike that balance, but I believe that it creates some

new problems and possibly new precedents that we must be very

careful to consider.

I am aware of the fast-approaching deadline for submissions of

the information required by section 112. That does not compel me,

however, to act without full understanding of a legislative proposal,

particularly one which imposes criminal sanctions upon the recommendations of EPA in a guidance document. We should hear

from the people who have a large stake or great expertise in the

matter. We should allow them to participate in the process to improve this bill, and we should act only when we are confident that

this legislation which we enact allows for public disclosure in an

appropriate fashion which is consistent with the appropriate magnitude of the risk.

I would hope, Mr. Chairman, that we will have appropriate additional hearings to hear the concerns of the Attorneys Generals and

the others that we have suggested to the Chair. I believe that that

is very important for the handling of this legislation in a proper

fashion.
21

And I would note that the minority has a chapter—rather, has

a rule 11—letter on the desk, which we will be withholding if we

receive proper assurances from the Chair that we would be having

adequate opportunity to present the necessary witnesses and to

gather the necessary information on this very difficult and technical question.

Mr. BILIRAKIS. The Chair has already publicly stated that that

will take place next Wednesday afternoon.

The Attorney Generals, by the way, were invited to come testify,

through the National Attorneys General Association. They were not

able to make it here today, but certainly we agree that it is significant that we hear what they have to say.

Obviously, this deadline was imposed upon us; it was not of our

doing, nor of the minority’s doing. And so that is what has basically

resulted in——

Mr. DINGELL. I want the Chair to know that my comments

are——

Mr. BILIRAKIS. [continuing] trying to put this on the fast track.

Mr. DINGELL. I want the Chair to know that my comments are

made with respect and affection.

Mr. BILIRAKIS. Thank you, sir.

Mr. DINGELL. And that I intend to indicate no wrongdoing on the

part of the Chair or any member of this committee. But it is very

important we receive the necessary testimony——

Mr. BILIRAKIS. Yes, sir.

Mr. DINGELL. [continuing] and understanding of what it is we

are about to do.

And, again, I do not allege that this is wrongdoing on the part

of the Chair or my colleagues in the majority. But it just is very

important, because, after all, we are here dealing with the EPA.

Mr. BILIRAKIS. The gentleman’s points are well taken. This Chair

yields to Mr. Bryant, from Tennessee.

Mr. BRYANT. Thank you, Mr. Chairman.

I, too, join in expressing my appreciation for your calling this

hearing and also indicating you will hold a second hearing next

week to ensure that all the stakeholders have at least the opportunity to make a presentation before this committee.

I look forward to these panels of witnesses today, adding to what

already we know about this very important issue.

The concern I think we all share in this room is public safety in

this situation. And it seems to be expressed primarily from the

standpoint of public safety from accidents through just normal conduct of business, but there is a very big issue, also, in that area

of public safety, with the potential for terrorism. As we have seen

in this country in a fairly recent series of events, this is something

that didn’t happen too often in the past, but, unfortunately, we

have to consider it is a very real possibility today.

I know since our last hearing in February, various agencies, including the FBI and the EPA and the Department of Justice and

others, have been working very hard to strike that balance, in

terms of public safety between accidental situations and the

public’s right to know, and protecting the public through law enforcement against intentional acts of terrorism, and the very serious harm that that can do to public safety. They have been work-
22

ing at that, trying to find a balance there, and I believe and understand this bill that Chairman Bliley has submitted is a result of

that.

As has been said by our chairman in this committee, this is not

a perfect bill—and I think he was quoting someone else when he

said that—I would agree that there are some very important details that need to be worked out, and I simply look forward to the

addition of your very valuable testimony today in ironing out those

details, and us reaching a final bill very shortly.

We are under a—not only a public safety dilemma, but we are

also under a very important time dilemma, also.

Thank you, Mr. Chairman.

Mr. BILIRAKIS. I thank the gentleman from Tennessee.

Mr. Pallone, for an opening statement?

Diana was here first—Ms. DeGette.

Ms. DEGETTE. Thank you, Mr. Chairman.

Mr. Chairman, I am very happy to welcome back Tim

Gablehouse, who is an attorney from Denver, and has testified on

this subject before this committee before. As you know, Tim is a

member of the Colorado Emergency Planning Commission and

serves as chair of the Governor’s Interagency Advisory Group on

Hazardous Materials. He is also a member of the Clean Air Act Advisory Subcommittee on Accident Prevention, and I think he will

be a good witness today on the State perspective.

I also look forward to the hearing next Wednesday and hope we

can get some of these other groups in.

As I stated in our previous hearing on this issue in February, I

believe the position taken by the Department of Justice in the legislation before us today is a solution in search of a problem. Planning for a response to a chemical incident demands the communication and cooperation of the impacted public, first response agencies,

facilities, and local emergency planning commissions. Yet, this bill

would criminalize that process.

I am concerned about this legislation because I believe it may

unintentionally compromise a community’s right to know worstcase scenarios. This legislation includes provisions that have unclear, perhaps, unintentional, and, certainly, untold consequences

on libraries, State and local officials, and industry.

For example, the Government Printing Office has stated that the

proposed regulations, including the requirement to collect names in

the provisions for legal liability, are very likely to be strong disincentives for depository librarians to participant in making the

targeted EPA information available to the public.

H.R. 1790 creates the probability that a State or local officer who

is able to receive the worst-case scenario data cannot disclose this

information to the very people that officer is charged to protect,

without fear of incarceration of up to 1 year. This provision would

be a violation of the Emergency Planning and Community Rightto-Know Act that requires dissemination to the public, as well as

State laws, including the law of my own State, Colorado. Much of

this information is being disclosed and discussed today, yet this

legislation would curtail it.

I believe that broad, public availability of these plans is essential

to provide communities with the most accurate and timely informa-
23

tion regarding toxic chemicals and the offsite consequences of accident scenarios. This is information communities need to make intelligent decisions on how to prepare for chemical accidents. Many

of these communities are in rural areas with volunteer fire departments, without the specialized equipment or training to safely respond to hazardous waste fires. And chemical accidents are not

rare. The Chemical Safety and Hazard Investigation Board estimates that each year chemical accidents kill over 250 people.

And, Mr. Chairman, private industry which is having to do these

plans isn’t really worried that some terrorist is going to get this information—or at least shouldn’t be. And in my own district, we

have an area, Commerce City, which has a great concentration of

petroleum companies and other companies with highly hazardous

materials. They are getting their plans ready right now. And just

in the Sunday, May 16, Denver Rocky Mountain News, John

Bennitt, who works for Conoco, said, ‘‘Some feel it is silly to give

a blueprint of a company’s vulnerable points to potential terrorists

and sabotagers, but,’’ says Bennitt, ‘‘any terrorist group worth its

gunpowder probably already has that kind of knowledge.’’ And that

is why we have to strike a very careful balance between a community’s right to know and any small risk that we might find of terrorists or other improper uses of this information.

Mr. Chairman, I am glad we are having this hearing. I look forward to working in a bipartisan way on sensible legislation. And

I am particularly looking forward to the hearing we are going to

have next Wednesday. I hope we will be able to have the NCSL,

the Attorneys General, and other concerned groups to come before

us as well.

And I will yield back the balance of my time.

Thank you.

Mr. BILIRAKIS. I appreciate that.

Mr. Stearns, for an opening statement.

Mr. STEARNS. Thank you, Mr. Chairman.

I think most of us are, as obviously pointed out, interested in

hearing from our panelists about the consequences resulting from

releasing the complete version of the worst-case scenario reports. I

think that has heightened all of our interests.

But, in thinking about this problem, it doesn’t seem to me that

it is real complicated. I know the White House has offered their

plan, but this information in its total comprehensive, electronic

presentation represents a threat, obviously, and I think somehow

we should just amend the Clean Air Act, just to make it a classified

information, and put it, and parts of it, into some type of top-secret

code so that it cannot be released.

I would be interested if the panelists think that you could take

this information, and once you receive it—if the Congress so legislated it—that it would become immediately top secret and fall

under the FBI Confidential Rules, which would mean that you

could not, under the Freedom of Information Act, get access to this

information. Because I think most of us realize the United States

is a potential target for terrorists, and we have had past attacks

that have made that clear to us. So no one of us wants to see all

this information on the Internet.
24

So I think—I hope the panel will consider maybe some simple

kind of solution here of just classifying this and moving it into

some kind of confidential category, so that the real worry is that

someone can get access through the Freedom of Information Act,

and promulgate this on the Internet, and provide a security risk.

So, Mr. Chairman, I commend you for your hearing and look forward to hearing the witnesses.

And I yield back the balance of my time.

Mr. BILIRAKIS. I thank the gentleman.

Mr. Pallone.

Mr. PALLONE. Thank you, Mr. Chairman.

Mr. Chairman, I was going to express my concerns about the

process in which the hearing was scheduled, and about the witnesses who have been selected, but I know that you indicated now

that you will hold another hearing on the topic, so I am not going

to go into that in all the detail.

I did want to say, though, that I hope that at this other hearing,

we will have a State witness and also, a more representative environmental witness, as well.

Regarding the latter, I received a letter with over four pages of

signatures from environmental organizations opposing this bill’s attempts to roll back the public’s right to know about chemical accident risks in communities nationwide. And If I could submit that

letter for the record as well as another letter for the record on the

first amendment issue from the Newspaper Association of America.

Mr. BILIRAKIS. Without objection.

[The information referred to follows:]

OPPOSE EFFORTS TO ROLL BACK THE PUBLIC’S RIGHT TO KNOW

May 7, 1999

DEAR MEMBER OF CONGRESS, We urge you to oppose efforts to roll back the

public’s Right to Know about chemical accident risks in communities across the

country. Every fifteen minutes one chemical fire, spill or explosion is reported to the

federal government. Each year chemical accidents in the U.S. kill as many Americans as would fit in two fully loaded 737 passenger jets.

In 1990, Congress empowered citizens to learn about potential chemical accidents

in order to encourage companies to reduce chemical accident hazards in communities. The Clean Air Act, Section 112(r), requires some 66,000 facilities that use extremely hazardous substances to report what could happen and who could be affected by a chemical accident, from the most-likely accident to a worst-case scenario.

Facilities must submit this information by June of this year as part of a larger Risk

Management Plan (RMP). By law, this is public information—intended to be disseminated broadly in order to prevent pollution, save lives, and protect property.

Unfortunately, the chemical industry is pressing for legislation to roll back current law by limiting public access to this vital information on accident risks. These

attempts to limit the public’s Right to Know rely on an unfounded argument that

public access to this information creates a national security threat of increased ‘‘terrorism.’’ In reality, EPA has specifically prohibited facilities from including classified

information in their RMP, and RMPs include no data on tank or process location,

site security, or other similar information.

Furthermore, if security is a concern, then it is the chemicals at facilities, not the

information about their hazards, that pose a threat. Keeping the public in the dark

about chemical hazards does nothing to reduce the risks associated with operating

chemical facilities in and near America’s communities and ignores the real threat

of chemical accidents: 600,000 incidents resulting from the everyday use of hazardous and toxic chemicals were reported to the federal government between 1987

and 1996. Communities are made safer by eliminating risky operations and reducing the use of hazardous chemicals, not by limiting the public’s understanding of

those risks.
25

In order to honor the public’s Right to Know and spur meaningful steps to reduce

hazards, complete national RMP data, including worst-case scenarios, must be made

readily accessible to all citizens. A model for using public information to empower

citizens and encourage voluntary reductions in chemical hazards is provided by the

Toxics Release Inventory (TRI), established by Congress in 1986 to document routine releases of toxic chemicals. Since the creation of the TRI, the U.S. has seen a

46 percent reduction in reported toxic releases. The creation of a similar inventory

for accidental release risks could provide the same public benefit. At the local level,

access to such an inventory empowers citizens to compare accident potential between facilities and areas, and to protect themselves from accidents and to work

with local facilities to reduce risks. At the national level, news media and labor and

public interest organizations can compare accident potential geographically and

across and within industries. This ‘‘public spotlight’’ encourages voluntary reductions in the hazards posed by chemical facilities in communities.

Proposals that would block national access to complete worst-case scenario information cannot fulfill the needs of the public. Specifically, proposals to omit facility

names from a national database prevent the information from providing its intended

public benefit. Proposals that allow only local and state agencies to acquire and disseminate the information create an unreasonable burden for these agencies financially and practically. Local Emergency Planning Committees (LEPCs) are always

under-funded, often inactive, and sometimes non-existent.

We, the undersigned organizations, call on Congress to set aside the false choice

between protecting potential victims of terrorism and protecting the known victims

of chemical accidents. Instead, Congress must join together behind the only course

of action that can unify all concerned parties: real and meaningful steps to reduce

the hazards that chemical-using facilities bring to our communities. Such actions include setting and meeting targeted reductions in chemical risks, including eliminating hazardous chemicals and processes. Complete national RMP data, made publicly available, would encourage chemical-using facilities to voluntarily reduce the

hazards they pose.

Our organizations urge you to oppose legislative efforts that roll back the public’s

Right to Know about chemical accidents and instead to support meaningful measures to reduce chemical hazards.

Sincerely,

Robert L. Oakley, Washington Affairs Representative, American Association of

Law Libraries; Carol C. Henderson, Executive Director, Washington Office, American Library Association; Fran Du Melle, Deputy Managing Director, American

Lung Association; Jerry Berman, Executive Director, Center for Democracy and

Technology; David Zwick, Executive Director, Clean Water Action; Jackie Savitz,

Executive Director, Coast Alliance; Mary Ellen Fise, General Counsel, Consumer

Federation of America; Jean Halloran, Director, Consumer Policy Institute/Consumers Union; Fred Krupp, Executive Director, Environmental Defense Fund; Kenneth Cook, President, Environmental Working Group; Brent Blackwelder, President,

Friends of the Earth; Frank D. Martino, President, International Chemical Workers

Union Council of the UFCW; Alan Reuther, Legislative Director, International

Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW; Jay Feldman, Executive Director, National Coalition Against the Misuse

of Pesticides; Philip E. Clapp, President, National Environmental Trust; John

Adams, Executive Director, Natural Resources Defense Council; Gary Bass, Executive Director, OMB Watch; Boyd Young, President, Paper, Allied/Industrial, Chemical, and Energy Workers International Union; Robert K. Musil, Ph.D., Executive

Director, Physicians for Social Responsibility; Joan Claybrook, President, Public Citizen; Carl Pope, Executive Director, Sierra Club; John Chelen, Executive Director,

Unison Institute; Dr. Thom White Wolf Fassett, General Secretary, United Methodist General Board of Church and Society; and William J. Klinefelter, Legislative

and Political Director.
26

NEWSPAPER ASSOCIATION OF AMERICA

WASHINGTON, DC 20045-1402

May 19, 1999

The Honorable MICHAEL BILIRAKIS

Chairman, Subcommittee on Health and Environment

U.S. House of Representatives

2369 Rayburn House Office Building

Washington, DC 20515

DEAR CHAIRMAN BILIRAKIS: I write to express the Newspaper Association of America’s concern with H.R. 1790, the Chemical Safety Information and Site Security Act

of 1999, which is the subject of a Subcommittee hearing today. The bill, which was

introduced less than a week ago, proposes, among other things, to create an exemption under the Freedom of Information Act. The Newspaper Association of America

and the various First Amendment press groups have not had an adequate time to

study and ascertain the impact of this legislation on FOIA.

In the past, we have resisted efforts to amend FOIA to address concerns with specific governmental information because the law is designed to be general and apply

to all types of information in the possession of federal departments and agencies.

The 104th Congress enacted amendments to the Act, commonly referred to as

EFOIA, which were designed to foster greater access to information collected, maintained and developed by the government. This bill would appear to reverse this

trend.

Neither NAA nor any of its press brethren were given an opportunity to comment

on H.R. 1790. We ask that at a minimum we be given that opportunity.

Respectfully submitted,

E. MOLLY LEAHY,

Legislative Counsel.

cc: Representative Sherrod Brown

Mr. PALLONE. Thank you, Mr. Chairman.

Let me also say that groups from my home State, such as the

New Jersey Environmental Federation, have also contacted me and

said that they would have liked an opportunity to weigh in on this

legislation. However, they didn’t even have time to thoroughly review the bill, let alone provide testimony. And so I hope that when

we have this hearing that, you know, we will be consulted on some

of these witnesses, particularly, the environmental witnesses.

Let me just say, if I could, that I believe that the bill—Mr. Bliley’s bill—would roll back the public’s right to know. There is no

question about that in my mind.

It also would allow and require the U.S. EPA to issue guidance

without judicial review and public comment, and again, would subject State and local officials to criminal penalties, as has been mentioned, if they violated this guidance. It is difficult for me to see

how binding penalties can be imposed for violations of guidance

that is nonbinding.

I also understand—and I know it has been mentioned—that the

libraries do not want to be in the policing business—another flaw

in the bill. And yet I understand that chemical facility security is

critical. We do have threats of terrorist attacks that are real and

must be addressed. However, public access to accident planning

and prevention data also remain vitally important.

And I hope that we can take the time to avoid the pitfalls currently in this bill that I am mentioning and that some of my colleagues on this side of the aisle have mentioned. I would also urge

members on both sides of the aisle and other interested parties to

take into consideration alternative measures such as those being

circulated by Mr. Waxman. For example, the requirements for site

security equipment and personnel, and requirements establishing
27

protective buffer zones between hazardous chemical operations and

residential areas, schools, and other public centers.

Now I know that a lot has been mentioned about this deadline

of June 21. But, again, you know the deadline may have been put

forth, but the bottom line is that the majority here in the House

of Representatives decides when we have these breaks, and we

didn’t originally have this week-break after Memorial Day that now

we are told we are going to have. And then we found out this morning that we are going to have next Friday off. And I am beginning

to think how many days that—you know, we have off—maybe all

of next week or a good part of next week is off, plus the following

week, but we are not the ones that say that. That is the majority.

And so, you know, if we have to make time to have these hearings,

you know, it is the majority’s responsibility to go back and demand

that the time be made.

I think we have to have a thorough and properly run hearing,

or hearings, with witnesses representing people on all sides of this

issue. And I hope that, even though I appreciate what the chairman said about having the hearing, I think that the majority has

to improve their efforts to try to make these hearings more broadbased, as we proceed to address this important issue.

Thank you, Mr. Chairman.

Mr. BILIRAKIS. I thank the gentleman.

Mrs. Cubin, for an opening statement.

Mrs. CUBIN. Thank you, Mr. Chairman, for holding this important and timely hearing today on the Internet posting of chemical

worst-case scenario release data, as opposed by the administration.

I am glad that we will have two distinguished panels, and I look

forward to hearing from them.

In recent months, I have heard from dozens of propane dealers

in my State of Wyoming about the potential threat posed by widespread Internet dissemination of worst-case scenario data. Their

concerns focus on the possibility of terrorist attacks on their facilities, should chemical release data be accessible on the Internet.

While I am pleased to hear that the EPA has decided not to place

this data on its website, I am still concerned that third parties will

post this sensitive information on their websites, which means that

we still have a major threat to national security.

I do realize, of course, that individuals have safety concerns

about chemical sites in their local communities, and they have a

right to access the worst-case scenario data. Coming from a State

like Wyoming, where we have more volunteer fire departments and

more volunteer emergency service workers than we do professional,

I absolutely recognize the need for these communities to have access to that information, and I want to promote that. But I do question whether or not placing this sensitive information in Federal

depository libraries is the best way to grant access, despite the restrictions that are listed in the bill.

One aspect that I am concerned about is the fact that the administration wants to put the information in the Federal Depository Libraries, but then restrict it, but the libraries don’t currently place

such restrictions on any information. And they are not equipped to

enforce these restrictions. And so I wonder what kind of a system

are we setting up? And is that what we really need to do? At this
28

point, I fail to see how we could adequately safeguard this information if it were available in the libraries.

Then, I would like to make a brief comment on the fact that H.R.

1790 is not the only aspect of the risk management program that

has caused concerns among constituents and industry members in

my district. Constituents continue to write in—large numbers—on

this issue, and while they are concerned about the posting of worstcase data on the Internet, they are still primarily concerned about

the inclusion of propane under the RMP. Industries that produce

fuel oil, natural gas, and gasoline, for example, are not subject to

the RMP, and they are just as volatile. And I am a chemist, and

some of them are more volatile than propane—but as I said, they

are not included in the RMP. And so by the propane industry having to submit an RMP to EPA, propane dealers in Wyoming will

most assuredly be forced to switch to an alternative fuel.

So this is a timely hearing, and I look forward to learning a lot

about it, and I thank everyone for being here.

And I thank you, Mr. Chairman.

Mr. BILIRAKIS. I thank the gentlelady.

Let’s see—Mr. Barrett.

Mr. BARRETT. Thank you, Mr. Chairman.

I just want to thank you for calling this hearing. I have the same

concerns that some of my colleagues have already voiced about the

process, so I am doubly pleased that we will have a second hearing

next week. I do think it is important to hear from State officials,

since these provisions certainly would have impact on them. And

rather than being guilty of just simply mandating something and

handing it down to the States, I think we should work as partners

to address their concerns.

Thank you, and I yield back the balance of my time.

Mr. BILIRAKIS. I thank the gentleman.

Mr. Pickering, for an opening statement.

Mr. PICKERING. Mr. Chairman, I just want to commend you for

having this hearing, and I look forward to hearing the panel.

This is a critically important issue, as we look at public health

and public safety and disclosure, and the appropriate balance of

how we maximize the intent here, and that is for the safety of the

public.

So, again, I commend you for this hearing, and look forward to

hearing the panels’ testimony.

Mr. BILIRAKIS. Thank you, sir.

Mr. Green.

Mr. GREEN. Mr. Chairman, I have a full statement I would like

to put in your record.

Mr. BILIRAKIS. Without objection.

Mr. GREEN. I would like to thank you for allowing for the additional hearing next week.

As one who believes in the consumer right-to-know legislation

that we have on the books, I am concerned that the bill we have

presently drafted is not that middle ground that we are looking for.

So, hopefully, after next week’s hearing, we will see more of that

middle ground.

Thank you, Mr. Chairman.

Mr. BILIRAKIS. I thank the gentleman.
29

Let’s see—I think that completes the opening statements from

the members of the subcommittee.

As we have already said, opening statements of all members can

be made a part of the record, without objection.

The Chair calls for the first panel—the honorable Ivan K. Fong,

Deputy Associate Attorney General, with the U.S. Department of

Justice here in Washington, DC; Mr. Timothy Fields, Jr., Acting

Assistant Administrator, Office of Solid Waste and Emergency Response, Environmental Protection Agency; and Mr. Robert

Burnham, Chief, Domestic Terrorist Section, Federal Bureau of Investigation.

Gentlemen, your written statements are a part of the record. I

would appreciate your trying to sort of complement those, or supplement those, if you would, orally. Take anywhere from 5 to 10

minutes. I don’t really want to cut you off, because what you have

to tell us is very significant.

Let’s kick it off with Mr. Fong.

Mr. Fong, please proceed, sir.

STATEMENTS OF IVAN K. FONG, DEPUTY ASSOCIATE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE; TIMOTHY

FIELDS, JR., ACTING ASSISTANT ADMINISTRATOR, OFFICE

OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY; AND ROBERT M. BURNHAM,

CHIEF, DOMESTIC TERRORISM SECTION, FEDERAL BUREAU

OF INVESTIGATION

Mr. FONG. Thank you, Mr. Chairman. Good afternoon.

Because my statement is short, I would like to go ahead and read

it into the record.

Mr. BILIRAKIS. Feel free to do so, sir.

Mr. FONG. My name is Ivan Fong; I am a Deputy Associate Attorney General at the Department of Justice. The Office of the Associate Attorney General is responsible, among other things, for the

management and oversight of the Department’s Office of Information and Privacy, as well as its civil litigating components, which

include the Antitrust, Civil, Civil Rights, Environment and Natural

Resources, and Tax Divisions. In our office, I have particular responsibility for civil litigation, environmental, and technology policy issues. I am pleased to have this opportunity this afternoon to

discuss H.R. 1790, the Chemical Safety Information and Site Security Act of 1999.

Let me say at the outset that this proposal reflects, at bottom,

a very careful weighing and balancing of two critically important

public interests.

First, as you are well aware, statutes such as the Clean Air Act

and the Freedom of Information Act require certain information to

be made available to the public. For chemical facility risk management information submitted pursuant to EPA’s Clean Air Act regulations, including the offsite consequence analysis data, that are

the subject of this proposal, these disclosure requirements promote

public safety, not only by empowering citizens so that they can

work with industry and others to minimize the risk of accidental

release of toxic or flammable chemicals, but also by ensuring that
30

Federal, State, and local officials can work with their communities

to prepare for and, if necessary, respond to such accidents.

By the same token, however, the widespread dissemination of

this type of information, particularly if a nationwide data base of

such information were made available in electronic form, could increase the risk of intentional release as a result of a terrorist attack. Indeed, the Federal Bureau of Investigation, the National Security Council, and other law enforcement components of the Federal Government have determined that broad electronic dissemination of OCA data would raise the risk of terrorists using such information to target particular chemical facilities for attack. The OCA

data would provide them with information on locations around the

country where the greatest damage to human health and the environment would occur if a facility were sabotaged.

Balancing our commitment to reduce the risk of accidental release through public disclosure, on the one hand, and the need to

minimize the risk of terrorist attack arising from broad electronic

dissemination of such information, on the other, is neither easy nor

obvious. We believe, however, that our proposed legislation strikes

such an appropriate balance. It is a reasonable and prudent proposal, and we accordingly urge its prompt enactment.

To summarize briefly, because of the law enforcement and security concerns that have been raised, our proposal exempts OCA

data from FOIA requirements and prohibits Federal officials and

employees from providing this information to the public in electronic form. The proposal, however, permits EPA to make OCA

data available in paper form, and the Administrator is to determine the conditions for such dissemination in guidance.

Our proposal also requires EPA to make risk management plans

available for public inspection, but not copying, in paper or electronic form, at locations such as Federal depository libraries

around the country.

To impede use of such information by potential terrorists, the

OCA data may not be provided in an electronic format that would

allow ranking of facilities for damage potential.

In addition, our proposal allows OCA data to be provided electronically to State and local officials for official use. If such officials

request this information in paper form, it will be provided for facilities located in their State. To further protect the information, the

legislation allows additional dissemination of the OCA data by

State and local officials only to the extent Federal officials and employees are permitted to do so.

Finally, we share the view of many in Congress that site security

measures are as important as information security measures in reducing terrorist attacks. The legislation, therefore, authorizes the

Attorney General to review industry security practices and the effectiveness of the act to determine the need, if any, for improved

security practices for the types of facilities covered by the RMP requirements.

We acknowledge the importance and complexity of this issue on

a variety of different levels, and we are prepared to work closely

with members of this subcommittee and other interested parties to

enact balanced and effective legislation in a timely fashion.
31

We believe our proposal strikes an appropriate balance, and we

look forward to working with you to ensure its enactment.

Thank you.

[The prepared statement of Ivan K. Fong follows:]

PREPARED STATEMENT OF IVAN FONG, DEPUTY ASSOCIATE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE.

Good afternoon, Mr. Chairman and Members of the Subcommittee. My name is

Ivan Fong. I am a Deputy Associate Attorney General at the Department of Justice.

The Office of the Associate Attorney General is responsible, among other things, for

management and oversight of the Department’s Office of Information and Privacy,

as well as its civil litigating components, which include the Antitrust, Civil, Civil

Rights, Environment and Natural Resources, and Tax Divisions. In our office, I have

particular responsibility for civil litigation, environmental, and technology policy

issues. I am pleased to have this opportunity to discuss H.R. 1790, the ‘‘Chemical

Safety Information and Site Security Act of 1999.’’

Let me say at the outset that this proposal reflects, at bottom, a careful weighing

and balancing of two very important public interests. First, as you are well aware,

statutes such as the Clean Air Act, 42 U.S.C. §§ 7401-7642, and the Freedom of Information Act (‘‘FOIA’’), 5 U.S.C. § 552, require certain information to be made available to the public. For chemical facility risk management information submitted

pursuant to EPA’s Clean Air Act regulations (such as off-site consequence analysis

(‘‘OCA’’) data), these disclosure requirements promote public safety, not only by empowering citizens so that they can work with industry and others to minimize the

risk of accidental release of toxic or flammable chemicals, but also by ensuring that

federal, state, and local officials can work with their communities to prepare for

and, if necessary, respond to such accidents.

By the same token, however, the widespread dissemination of this type of information—particularly if a nationwide database of such information were made available in electronic form—could increase the risk of intentional release as a result of

terrorist attack. Indeed, the Federal Bureau of Investigation, the National Security

Council, and other security and law enforcement components of the federal government have determined that broad electronic dissemination of OCA data would raise

the risk of terrorists using such information to target particular chemical facilities

for attack. The OCA data would provide them with information on locations around

the country where the greatest damage to human health and the environment

would occur if a facility were sabotaged.

Balancing our commitment to reduce the risk of accidental release through public

disclosure, on the one hand, and the need to minimize the risk of terrorist attack

arising from broad electronic dissemination of such information, on the other, is not

easy or obvious. We believe, however, that our proposed legislation strikes such an

appropriate balance. It is a reasonable and prudent proposal, and we accordingly

urge its prompt enactment.

Because of the law enforcement and security concerns that have been raised, our

proposal exempts OCA data from FOIA requirements and prohibits federal officials

and employees from providing this information to the public in electronic form. The

proposal, however, permits EPA to make OCA data available in paper form, and the

Administrator is to determine the conditions for such dissemination in guidance.

Our proposal also requires EPA to make risk management plans (‘‘RMP’s’’) available

for public inspection, but not copying, in paper or electronic form, at locations such

as federal depository libraries located around the country. To impede use of such

information by terrorists, the OCA data may not be provided in an electronic format

that would allow ranking of facilities for damage potential.

In addition, our proposal allows OCA data to be provided electronically to state

and local officials for official use only. If such officials request this information in

paper form, it will be provided only for facilities located in their State. To further

protect the information, the legislation allows additional dissemination of the OCA

data by state and local officials only to the extent federal officials and employees

are permitted to do so.

Finally, we share the view of many in Congress that site security measures are

as important as information security measures in reducing terrorist risks. The legislation therefore authorizes the Attorney General to review industry security practices and the effectiveness of the Act to determine the need, if any, for improved

security practices for the types of facilities covered by the RMP requirements.

We acknowledge the importance and complexity of this issue on a variety of different levels, and we are prepared to work closely with Members of the Subcommit-
32

tee and other interested parties to enact balanced and effective legislation on this

issue in a timely fashion. We believe our proposal strikes an appropriate balance,

and we look forward to working with you to ensure its enactment.

Mr. BILIRAKIS. Thank you, Mr. Fong.

Mr. Fields, I am not sure how much time your testimony will

take.

We have been just been noticed there is a 15-minute vote on the

floor, and it can be followed by 4 or 5 5-minute votes, which means

it will be awhile, probably about 40 minutes at least, before the

members could be back. So let’s see if we can get through at least

Mr. Fields’ testimony.

STATEMENT OF TIMOTHY FIELDS, JR.

Mr. FIELDS. Thank you, Mr. Chairman.

I will briefly summarize my testimony. Today, at EPA, I am responsible for the Agency’s Counterterrorism Program, as well as

the implementation of section 112(r) of the Clean Air Act.

I am pleased to be here to discuss H.R. 1790, the Chemical Safety Information and Site Security Act of 1999.

We agree with the Department of Justice and the FBI that this

bill would preserve important public health and safety benefits that

public access to risk information has been shown to achieve, while

protecting against a potential threat from terrorists.

The proposed legislation addresses the issue that arose as a part

of EPA’s implementation of section 112(r). This section specifically

provides that risk management plans are to include a hazard assessment, including information on the potential consequences of

worst-case releases, an accident prevention program, and an emergency response program.

In view of the large number of covered facilities and the amount

of information that must be reported in risk management plans, a

FACA subcommittee consisting of representatives of industry, State

and local government, academia, and environmental groups unanimously recommended that EPA develop an electronic system for

submission and management of risk management plans. EPA developed the recommended system for managing and handling this

data.

Potential Internet dissemination of the worst-case scenarios information, however, in risk management plans, has raised concerns

about a potential threat from terrorists.

The administration’s proposed legislation addresses those concerns, while preserving public access to worst-case scenario information.

Preserving public access to offsite consequence analysis information is vitally important because we expect to produce public safety

benefits through this mechanism. EPA’s experience with the Toxic

Release Inventory Program, under the EPCRA, suggests that public access to information on toxic emissions creates an incentive for

facilities to reduce those emissions. EPA expects public access to

OCA data similarly will stimulate and achieve risk reduction

through safer practice and technologies.

Public access to RMP information, including OCA data, is expected to provide added impetus to accident prevention.
33

The law recognizes that communities located near these facilities

have a fundamental right to be told of the hazards and to find out

what steps facilities are taking to prevent accidental releases. OCA

data will give citizens information about the risks of chemical accidents. OCA data from local facilities will inform citizens about the

risks they face in their community, while OCA data from similar

facilities in other locations will provide insight into what risk reductions could be achieved locally by those mechanisms.

EPA believes that States and local emergency planning committees have a critical role to play in chemical accident risk reduction.

Providing States and local governments with electronic access in

management of the RMP information is key to the ability to manage this program.

The goal of the legislative proposal that is before us today is to

provide benefits of public access of OCA data, while minimizing the

potential risks of Internet access to that data.

Our approach to this dilemma is to restrict the manner in which

Government officials may distribute OCA data, so as to make it extremely difficult for anyone to create a national electronic data

base that includes OCA. The legislation also considers the need for

additional site security to make sure that facilities are taking adequate steps to reduce their vulnerability.

The proposed legislation calls on EPA to develop guidance to implement the bill’s restrictions and requirements. EPA will work

with the interagency task force that developed this legislation and

will consult with other stakeholders, including State officials, local

emergency planning committees, public advocacy groups, and industry, to develop appropriate guidance.

We recognize that this legislation may need some modification,

as addressed by concerns of members. We are willing to work with

this subcommittee, as necessary, to make appropriate revisions to

this bill quickly to address member concerns.

EPA will work with its partners in chemical safety to find appropriate ways to ensure that the information is used by individuals

to reduce the risk of chemical accidents in their neighborhoods. On

the other hand, we are on balance—EPA is confident that the benefits of public access significantly outweigh whatever risk may remain.

We support this legislation before this committee, pledge to work

with you to address any continuing concerns, and hope that a bill

can be sent to the President soon for signature that we all can accept.

Thank you, Mr. Chairman.

[The prepared statement of Timothy Fields, Jr. follows:]

PREPARED 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, U.S.

Environmental Protection Agency (EPA). 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 counter-terrorism program and the associated coordination with other Federal partners, State

and local governments, and the private sector.
34

I am pleased to have this opportunity to discuss the Administration’s proposed

bill, ‘‘The Chemical Safety Information and Site Security Act of 1999.’’ We agree

with the Department of Justice (DOJ) that, if enacted, the bill would preserve the

important public health and safety benefits that public access to risk information

has been shown to achieve, while protecting against a potential threat from terrorists.

The Risk Management Program

Public awareness of the potential danger from accidental releases of hazardous

chemicals has increased over the years as serious chemical accidents have occurred

around the world. Public concern intensified following the 1984 release of methyl

isocyanate in Bhopal, India, that, to date, has killed many more than the 2,000 people originally reported, with many thousands more injured by the chemical release.

The proposed legislation addresses an issue that arose as part of EPA’s efforts to

implement CAA section 112(r). Following the tragic chemical accident in Bhopal,

India, Congress added section 112(r) to the CAA in 1990 to reduce the risk of accidental releases of extremely hazardous substances. Section 112(r) establishes a general duty on industry to handle extremely hazardous substances safely, and calls on

EPA to establish a regulatory program that requires facilities with large quantities

of such substances to prepare and implement risk management plans (RMPs).

Section 112(r) specifically provides that RMPs are to include a hazard assessment,

including information on the potential consequences of worst-case releases, an accident prevention program and an emergency response program. It further requires

that RMPs be submitted to States and local emergency planning and response officials and made available to the public. Section 112(r) demonstrates the importance

Congress placed on informing State and local officials and the public about chemical

risks in their communities.

EPA issued regulations implementing section 112(r) in 1994 and 1996. The 1994

rule provided industry with a list of covered substances and their threshold quantities. The 1996 rule requires any facility with more than a threshold quantity of

a listed hazardous substance to submit an RMP by June 21, 1999. A recently issued

court order stayed the rule with respect to propane, but EPA estimates that 36,000

facilities still must submit RMPs by the June deadline. To the extent the stay is

eventually lifted, an additional 33,000 facilities will be required to submit RMPs.

In view of the large number of covered facilities and the amount of the information that must be reported in RMPs, a Federal Advisory Committee Act (FACA) subcommittee consisting of representatives of industry, State and local governments,

academia and environmental groups unanimously recommended that EPA develop

an electronic system for submission and management of RMPs. Most members of

the subcommittee also recommended that EPA electronically disseminate RMPs to

the public over the Internet. EPA developed the recommended system for electronically handling RMPs.

Potential Internet dissemination of the worst-case scenario information in RMPs,

however, raised concerns about a potential threat from terrorists. The Administration’s proposed legislation addresses those concerns while preserving public access

to worst-case scenario information.

What Is Off-Site Consequence Analysis Data?

OCA data is based on analyses of the potential off-site consequences of hypothetical worst-case and alternative case accidental releases. The data include how

far dangerous concentrations of a released chemical can travel (‘‘distance to endpoint’’), how many people live in the circle defined by the distance to endpoint, and

what types of ‘‘public and environmental receptors’’ (e.g., schools, hospitals, state or

national parks) are within that circle. It does NOT include information on where

the chemicals are stored, what would cause a release or what site security measures

a facility has in place.

The parameters for worst-case release analyses are mostly established by regulation, so results of such analyses provide a rough basis for comparing the intrinsic

risk posed by facilities as a result of the amount of chemicals stored and the passive

(i.e., no energy or human action required) accident mitigation measures in place. Alternative case analyses account for active as well as passive accident mitigation

measures a facility has in place, and therefore provide a way to compare the efficacy

of prevention programs.

Benefits of Public Access to Information

Preserving public access to Off-Site Consequence Analysis (OCA) information is

vitally important because we expect it to produce public safety benefits. EPA’s experience with the Toxic Release Inventory (TRI) under the Emergency Planning and

Community Right-To-Know Act (EPCRA) suggests that public access to information
35

on toxic emissions creates an incentive for facilities to reduce those emissions. EPA

expects public access to OCA data similarly will stimulate and achieve risk reduction through safer practice and technologies.

In fact, EPA has built public access to RMPs into its implementation of section

112(r). Instead of creating a command-and-control program, the RMP rule calls on

every facility to develop and implement an accident prevention program that addresses the particular chemical risks present at the facility. Public access to RMP

information, including OCA data, is expected to provide added impetus for accident

prevention.

The law recognizes that communities located near these facilities have a fundamental right to be told of the hazards and to find out what steps facilities are taking

to prevent an accidental release. Through this information, communities located

near these facilities can make risk-based decisions regarding the responsibility of

these facilities to operate safely. It has been said that the facility has a social contact with the community that can be lost if the facility does not operate safely and

does not communicate effectively with the community.

Once informed, citizens can engage in constructive dialogue with facilities to address any concerns. OCA data will give citizens information about the risks of chemical accidents. OCA data from local facilities will inform citizens about the risks

they face in their community, while OCA data from similar facilities in other locations will provide insight into what risk reductions could be achieved locally. Information drives action.

Managing the Data

To be useful, OCA data must be managed electronically. More than 69,000 facilities potentially are subject to the RMP program. Every covered facility must submit

at least one worst-case scenario, and the vast majority of facilities also must submit

at least one alternative release scenario at the facility. Collectively, for the nation

and for most States, facilities’ RMP data, including OCA data, cannot be reasonably

managed in paper form.

Many State and local governments have told EPA that they lack the resources to

manage the volume of information expected to be submitted by facilities under the

RMP program. Already, some State and many local governments have not been able

to make full use of facility hazard information submitted to them under EPCRA.

Representatives of State and local governments have indicated that if they do not

get help managing RMP information, they are unlikely to use it. States also have

emphasized the need to share this information with all stakeholders and the public

to foster risk reduction.

EPA believes that States and Local Emergency Planning Committees (LEPCs)

have a critical role to play in chemical risk reduction. Providing states and local governments with electronic access and management of the RMP data is key to their

ability to play that role.

As I noted earlier, a FACA subcommittee unanimously recommended that EPA

collect and manage RMP information electronically. EPA accordingly developed an

electronic system that promises to ease the paperwork burden for industry and

State and local governments. The subcommittee also emphasized the need for RMP

information to be accessible to the public, so citizens could be partners in risk reduction efforts.

Internet Availability Could Pose A Security Risk

While EPA is required to make RMPs, including OCA data, available to the public, there have been security concerns over making national OCA data available over

the Internet. The Federal Bureau of Investigation (FBI) and others advised us that

Internet access to a searchable national database of OCA information could pose a

security risk.

In response to FBI’s advice, on November 6, 1998, the Agency announced it would

not post OCA information on the Internet and agreed to work with FBI to minimize

the risk of others posting that data.

Freedom of Information Act Concerns

Following EPA’s decision, however, concerns were raised that the Freedom of Information Act (FOIA) might force the Agency to make OCA data available electronically and even might require EPA to post that data on the Internet. EPA worked

with an interagency task force consisting of representatives of DOJ, the Office of

Management and Budget (OMB), the National Security Council and other Federal

agencies to determine what effect FOIA could have on dissemination of OCA information and to respond accordingly.

DOJ concluded that requests for OCA information under FOIA could force EPA

to make OCA data available electronically. The interagency group considered wheth-
36

er there were any legal bases for exempting the data from FOIA and concluded

there probably were none, except to the extent such information was confidential

business information (CBI). In general, however, OCA data are not expected to qualify as CBI. The group then developed the legislative proposal that has been forwarded to you.

Proposed Legislation

The goal of the Administration’s proposed legislation is to protect the benefits of

public access to OCA data while minimizing the potential risks of Internet access

to that data. As I stated earlier, experience suggests that public availability of

chemical risk information results in risk reduction. We believe strongly that the risk

reduction benefits of public access to OCA data must be preserved.

We also recognize that so long as there is any public access to OCA data, there

can be no absolute guarantee that OCA data will not eventually get on the Internet.

Our approach to this dilemma is to restrict the manner in which government officials may distribute OCA information, so as to make it extremely difficult for anyone to create a national electronic database that includes OCA. The legislation also

considers the need for additional site security to make sure that facilities are taking

adequate steps to reduce their vulnerability.

Specifically, the Administration proposal would:

• Prohibit Federal, State, and local government officials from disseminating OCA

data with facility identifiers in electronic form to the public;

• Provide the public with access to OCA data in paper form, but direct EPA, in consultation with other Federal agencies, to determine appropriate limits on paper

access so that the potential for compiling a national database, even in paper

form, is minimized;

• Ensure public access to full OCA data by making the data available for review,

but not copying, in reading rooms across the country;

• Allow EPA, in consultation with other Federal agencies, to make available to the

public an electronic version of the data without facility identification or location

information; and

• Authorize the Attorney General to study current industry security practices, and

the need for and effectiveness of the provisions of the legislation, and make appropriate recommendations.

The proposed legislation calls on EPA to develop guidance to implement the bill’s

restrictions and requirements. EPA will work with the interagency task force that

developed this legislation, and will consult with all stakeholders, including public

advocacy groups and industry, to develop the guidance.

The Safety Potential of RMPs

With all the attention being paid to the OCA issue, we must not lose sight of the

real improvements in chemical safety the RMP program as a whole will achieve.

Since the RMP rule was issued nearly three years ago, industry already has invested much time and effort to achieve risk reduction at their facilities. At a recent

meeting convened by the Wharton School at the University of Pennsylvania, several

industry representatives indicated that the development of RMPs had indeed resulted in accident risk reduction and safer operations. Many facility representatives

also have told us that while they were at first skeptical of the benefits of the accident prevention program, completing a RMP has led to many unexpected safety improvements at their facilities.

EPA also wants to emphasize that while not every company must complete an

RMP, under the ‘‘General Duty’’ provisions of the Clean Air Act (section 112(r)(l)),

every company has an obligation to understand the hazards, operate safely, prevent

accidents, and minimize the consequences of accidental releases of any quantity of

any extremely hazardous substance, whether EPA has listed the substance or not.

Similar to the chemical industry’s own Responsible Care code of safe operating practices, the General Duty clause (GDC) specifies no list of chemicals or threshold

quantities for applicability.

Conclusion

We believe the proposed legislation strikes a balance between preserving public

access to OCA information and addresses the potential threat that may be posed

by Internet access to that information.

The restrictions and requirements that the legislation would establish ensure adequate public access to the information while reducing the risk of anyone posting a

searchable database on the Internet. EPA will work with its partners in chemical

safety to find appropriate ways to ensure the information is used by individuals to

reduce the risk of chemical accidents in their neighborhoods. In light of this balance,
37

EPA is confident that the benefits of public access significantly outweigh whatever

risk may remain. We support this legislation, pledge to work with the Congress to

address any continuing concerns, and hope a bill can be sent to the President for

signature soon.

Mr. BILIRAKIS. Thank you, Mr. Fields.

And I apologize, first, to all three of you and to the next panel,

but, unfortunately, we are going to have to get over for those votes.

So we will break—your testimony will take properly more than

5 minutes, will it not, Mr. Burnham?

Mr. BURNHAM. I can probably limit it to 5 minutes. I am just——

Mr. BILIRAKIS. Well, your testimony is important, though. I don’t

think we ought to worry about limiting it at this point.

We are just going to break until about 4 o’clock, and that is 40

minutes. And it is probably not too likely we will finish up by then,

but we will do our best.

Thank you very much. Again, I apologize; it can’t be helped.

[Brief recess.]

Mr. BILIRAKIS. Well, hopefully, a minority member will be here

before long, and a few more from this side.

Mr. Burnham, why don’t we just go ahead and start off with you,

sir? Go ahead.

STATEMENT OF ROBERT M. BURNHAM

Mr. BURNHAM. Good afternoon now, Mr. Chairman.

My name is Robert Burnham; I am the Domestic Terrorism Section Chief of the FBI. I have testified up here on one occasion before and one time in the Senate. I am pleased to have this opportunity to address the committee today with respect to whether H.R.

1790, the Chemical Safety Information Site Security Act of 1999,

satisfies concerns that the FBI has previously expressed regarding

electronic dissemination over the Internet of worst-case scenario

data.

The FBI supports the Clean Air Act and the spirit of the community right-to-know legislation. We understand the benefits of providing the necessary information to the community, which allows

them to make informed decisions on local planning and preparedness issues, and we acknowledge that right-to-know laws create incentives for facilities to reduce risks relating to chemical manufacturing and storage processes.

At the same time, we are concerned about the need to limit 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 that we believe could be directly utilized as a

targeting mechanism in a terrorist or criminal incident.

I have earlier testified before this committee and provided a

threat analysis regarding the effect of unfettered release of worstcase scenario data over the Internet. I have also provided written

answers to questions submitted by the committee, and I have also

testified before the Senate Subcommittee on Clean Air and Wetland, Private Property, and Nuclear Safety on the same issues.

In our discussions with EPA over the last 18 months, the FBI

has repeatedly asserted, from a threat analysis viewpoint, that the

FBI opposed the unrestricted release of worst-case scenario infor-
38

mation in electronic format to anyone other than Federal, State,

and local government agencies who are responsible for emergency

management and planning. These agencies are the primary endusers for this type of information, and the availability of this information to these agencies is expected to produce positive results in

the future.

In our discussions with the EPA, other Federal agencies, and affected parties, we have tried to balance our security concerns and

give communities and State and local agencies the appropriate access to this information. The FBI has consistently maintained that

the potential release of this worst-case scenario data in an uncontrolled manner would provide targeting tools and new ideas for

criminals and terrorists. Under the Freedom of Information Act,

this information would have to be released in the form maintained

by EPA, including electronic format.

The bill being considered prevents disclosure of the worst-case

scenario information under the FOIA, but also allows disclosure

under certain circumstances.

The Department’s Office of Legal Counsel has reviewed the disclosure limitations contained in this legislation and has concluded

that they are consistent with the first amendment. The FBI believes the proposed legislation addresses the concerns that we have

consistently raised.

And in that regard, I would like to mention I have heard much

about the fact that the FBI is leading the worst-case scenario data

with the threat of——

Mr. BILIRAKIS. Pull the microphone a little closer, will you

please, Mr. Burnham, because we can hear you all right here, but

I am afraid maybe——

Mr. BURNHAM. Okay.

Our actual involvement of this goes back—starts in December

1997 when we first became aware at that time that this type of information was going out over the Internet. At that time, it was all

going out over the Internet, with unrestricted access.

At the time, the FBI worked with the interagency law enforcement community; we worked with the CIA, with representatives

from the Treasury Department, the Secret Service, ATF, in a working group, and arrived at a consensus that this information going

out uncontrolled over the Internet did present potential problems

from a threat analysis standpoint.

Thereafter, we worked with EPA extensively, and EPA, after

working with them, agreed that the information should not go out

over the Internet in an uncontrolled manner.

It was then in October of last year, in further discussions with

EPA, that we also expressed concerns that not only the fact that

we did not—that from a threat analysis standpoint, that it should

not go out over the Internet, but we also first raised at that time,

concerns that it may go out under third-party disseminations, specifically, with the FOIA. In fact, we reported that to this committee

at that time in a report in October 1998 that that was one of our

concerns, that potentially the information could go out under the

Freedom of Information Act.

That being said, we think this present bill we strongly support

for prompt consideration by Congress and speedy enactment.
39

And I am available for any questions that the committee may

have.

Thank you.

[The prepared statement of Robert M. Burnham follows:]

PREPARED STATEMENT OF ROBERT M. BURNHAM, CHIEF, DOMESTIC TERRORISM

SECTION, FEDERAL BUREAU OF INVESTIGATION

Good afternoon Mr. Chairmen and Members of the Subcommittee, 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 for the FBI. I am pleased to have this

opportunity to address the committee today with respect to whether HR-1790, the

Chemical Safety Information and Site Security Act of 1999, satisfies concerns the

FBI has previously expressed regarding electronic dissemination over the Internet

of Worst Case Scenario data.

The Clean Air Act (CAA) mandates that chemical facilities provide to EPA a Risk

Management Plan (RMP), detailing their risk prevention mitigation plans. It includes the worst case scenario data and alternative release data for both toxic and

flammable materials. The data require calculations regarding distances to end

points, as well as the populations that would be affected, which would provide information about the size of a plume from release and the potential casualties from the

plume.

The FBI supports the CAA and the spirit of community right-to-know legislation.

We understand the benefits of providing the necessary information to the community, which allows them to make informed decisions on local planning and preparedness issues, and we acknowledge that right-to-know laws create incentives for facilities to reduce risks relating to chemical manufacturing and storage processes. At

the same time, we are concerned about the need to limit 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 could be directly utilized as a

targeting mechanism in a terrorist or criminal incident.

I have earlier testified before this committee and provided a threat analysis regarding the affect of unfettered release of the Worst Case Scenario data over the

Internet. I have also provided written answers to questions submitted by the committee and have also testified before the Senate Subcommittee on Clean Air and

Wetland, Private property and Nuclear Safety on the same issue. In our discussions

with EPA over the last eighteen months the FBI has repeatedly asserted, from a

threat analysis view point, that the FBI opposed the unrestricted release of Worst

Case Scenario information in electronic format to anyone other than federal, state,

and local government agencies who are responsible for emergency management and

planning. These agencies are the primary end users for this type of information, and

the availability of this information to these agencies is expected to produce positive

results in the future. In our discussions with the EPA, other federal agencies and

affected parties, we have tried to balance our security concerns and give communities and state and local agencies the appropriate access to this information. The

FBI has consistently maintained that the potential release of this Worst Case Scenario data in an uncontrolled manner would provide targeting tools and new ideas

for criminals and terrorists. Under the Freedom of Information Act (FOIA), this information would have to be released in the form maintained by EPA, including electronic format.

The bill being considered prevents disclosure of the ‘‘Worst Case’’ Scenario information under the FOIA, but allows disclosure under certain circumstances. The Department’s Office of Legal Counsel (OLC) has reviewed the disclosure limitations

contained in this legislation and has concluded that they are consistent with the

First Amendment. The FBI believes the proposed legislation addresses the concerns

that we have consistently raised. We therefore strongly support its prompt consideration by the Congress and its speedy enactment.

Thank you for this opportunity to appear before you today. I would be happy to

answer any questions you may have.

Mr. BILIRAKIS. Thank you. Thank you very much, sir.

Mr. Fields, your statement indicates that EPA supports this legislation and hopes that a bill can be sent to the President ‘‘soon.’’
40

You used that word very specifically. Can you elaborate for the

committee what you mean when you say ‘‘soon?’’

Mr. FIELDS. We would like to address the issues that have been

raised by members of this subcommittee in the previous statements

and work toward getting a piece of legislation that could be worked

on together with the Senate sent to the President and signed—

prior to June 21 of this year.

So we want to quickly work with you to resolve issues with the

bill that I have heard some of the members indicate in their opening statements, issues of criminal versus civil sanctions, issues of

voluntary firefighters and local emergency planning committees

and getting access to information, and guidance versus rule. I think

those issues can be addressed very easily and quickly.

And we believe that, with your support, Mr. Chairman, we can

get a piece of legislation that we can all support and move forward

to get it signed by the President in the next month.

Mr. BILIRAKIS. All right. Well, if, for instance, as a result of a

lack of time and things of that nature, even stonewalling which I

trust is not taking place, not even intended to take place, if no legislative action is taken by that June 21 date, what are you concerned with?

Mr. FIELDS. Well, we made several things very clear. We will not

post the OCA information on the Internet. RMP information, including OCA data must be submitted by June 21, 1999. We believe

that information must still be submitted, including OCA. Second,

if we get a FOIA, Freedom of Information Act request, we have 30

days after that to act on that request.

Mr. BILIRAKIS. Isn’t it true that you already——

Mr. FIELDS. The FOIA request does not actually have to happen

by June 21.

Mr. BILIRAKIS. Haven’t you already received some Freedom on

Information requests for this data, at EPA——

Mr. FIELDS. We have no pending Freedom of Information Act requests at the current time. We received more than 1,000 risk management plans, voluntarily, to date. These facilities have submitted

risk management plans prior to June 21, but we don’t have——

Mr. BILIRAKIS. No requests?

Mr. FIELDS. No pending FOIA requests; that is correct.

Mr. BILIRAKIS. Mr. Burnham——

Mr. FIELDS. Mr. Chairman, I should clarify——

Mr. BILIRAKIS. Oh, I am sorry; go ahead, Mr. Fields.

Mr. FIELDS. While we don’t have any pending FOIA requests, one

was submitted and was subsequently withdrawn. So there is no

pending request.

Mr. BILIRAKIS. One was submitted, but——

Mr. FIELDS. One was submitted, and it was withdrawn.

Mr. BILIRAKIS. Yes.

Well now, Mr. Burnham, what kind of—within the bounds, of

course, of public testimony, obviously, can you tell us what types

of threats that the FBI has been concerned about over the last year

and a half which caused you to consistently argue for restrictions

on the electronic dissemination of this data, this type of data?
41

Mr. BURNHAM. Well, again, the consensus among the law enforcement community and the FBI was—I think I have characterized it as if this type of information went out——

Mr. BILIRAKIS. Pull the microphone closer, please, sir. I just want

to make sure that everybody can hear you.

Mr. BURNHAM. Again, this is the consensus of not only FBI—

while I have testified for the law enforcement community—but also

among the law enforcement community, the fact that this type of

information, if disseminated, could be—I think I have characterized

it as a ‘‘blueprint’’ for potential terrorist attack.

Again, what you are doing, you are putting out on the Internet,

in an unfettered, uncontrolled fashion, the distance to end population, if a target was attacked, how many people could be killed.

It could be downloaded anywhere in the world. That was a concern,

not only among us, but to the law enforcement interagency working

group that was looking at this.

Mr. BILIRAKIS. Well, sir, you can’t be unaware, of the criticisms

and arguments that have been leveled at attempts to exert some

control over the OCA data.

Later today, Mr. Orum will paint a scenario under which a citizen is frustrated at every turn in trying to obtain information

about dangerous conditions in her community.

So taking that as an example, or an illustration, how would you

respond to arguments that this legislation unduly restricts public

access? I mean I think you have all indicated that you are concerned about balancing concerns. How would you respond to that?

Mr. BURNHAM. I would say this; I—again, my testimony is consistent with and has—been limited to a threat analysis standpoint,

if the information does go out. In fact, I can even tell you, I think

I prefaced it by the fact that I am here, to say this does satisfy

from a threat analysis standpoint that the information would not

go out.

I think in reading this, when I read it, I think there was provisions in there, as I stated in my opening statement, also, that we

are concerned with, but that this information should go out to first

responders and to law enforcement—I mean in the State and local

communities.

I think it does provide for that in this particular legislation. And,

again, as for the drafting of it, I would defer to DOJ, with respect

to the provisions in the act itself.

Mr. BILIRAKIS. Well let me ask Mr. Fields that same question.

How would you respond to arguments that this legislation unduly restricts public access? Do you think that it does?

Mr. FIELDS. We don’t believe that it unduly restricts public access. We do support public right-to-know and access to critical information. The people who live around communities need to have

access to information about threats in their community, including

OCA data.

But we do agree that there is a potential threat from terrorists

that needs to be considered, and we believe that this bill, this legislation, strikes a proper balance between giving information to people who need to have the information, and minimizing the potential

for that information to be posted on the Internet where it could be

a tool for terrorists in this country.
42

Mr. BILIRAKIS. Yes.

Mr. FIELDS. So we think that the restrictions that are in the bill,

regarding dissemination of this information, strike a proper balance and are appropriate to make sure that people have access to

data that they need, while at the same time, minimizing the potential threat of a terrorist attack in this country.

Mr. BILIRAKIS. Thank you, Mr. Fields.

Mr. Brown, to inquire.

Mr. BROWN. Thank you, Mr. Chairman.

I just have a couple of questions on—Mr. Burnham, if a facility

is located on the Wisconsin—near the Michigan/Wisconsin border,

but in Wisconsin, can State officials electronically share the offsite

consequence data with local officials in Michigan under H.R. 1790?

Mr. BURNHAM. Again, on the drafting, I would defer to DOJ, with

respect to provisions in that, and why certain provisions were put

in there.

Again, what I looked at in this—okay, from the threat analysis

standpoint, does this satisfy the concerns I have expressed both in

previous testimony here as well as in writing? And I would defer

to DOJ.

Mr. FONG. If I might have an opportunity to clarify. I have a pastor who says that God is in the details.

And I think the same applies to this proposal.

I don’t believe there is an undue restriction. Paper versions of

this information are going to be made available under (c)(6) in the

libraries that we have heard about, and under (c)(3), in response

to requests from the public, subject to guidance from EPA. It

will——

Mr. BROWN. So can they be made available to another State?

Mr. FONG. By whom? By State and local officials? Or by——

Mr. BROWN. By local officials, say.

Mr. FONG. Local officials may retransmit, consistent with official

use, and if it falls within that categorization, then it would be permissible.

Mr. BROWN. And the public has access, then, too? Or, no?

Mr. FONG. Well, not necessarily. It depends on what you mean

by ‘‘it.’’ What the legislation, or the proposed legislation, is most

concerned with is the national data base in electronic form, and

that is what would be restricted.

Other forms of dissemination are not restricted, so the paper

forms would not. Analyses or mere discussion about information

contained in these plans would not be restricted.

Indeed, our Office of Legal Counsel undertook a constitutional

analysis, and the general rule is that the Government may not

place restrictions on the dissemination of information by individuals once they are in lawful possession of that information. So once

it is out in the public, it would be very difficult to restrict the information from spreading without constitutional problems. But this

proposal does not do that.

This proposal draws a distinction between State and local officials who are given this information for official use, and in that

sense, restricts the national, searchable part, which is of most concern, as you have heard.

Mr. BROWN. Okay.
43

I would like to yield to my friend from Colorado, Ms. DeGette.

Ms. DEGETTE. Thank you very much.

I have just got a couple of quick questions for Mr. Burnham, but

others who might know the answers can answer them.

As I read this bill, it clearly preempts State laws and subjects

State and local employees to criminal sanctions for violation. I

guess I would like to know what the process of consulting Governors, State legislators, attorneys general, or anyone else at the

State level about this legislation.

Mr. BURNHAM. Again, on this, as I just mentioned to the previous

question, I was not privy to a lot of the deliberations on this. This

was drafted by the Department of Justice which we reviewed from

a threat-analysis standpoint. Did it allay or address our previous

concerns? And I would defer to the Department of Justice with respect to that particular question.

Mr. FONG. May I?

Ms. DEGETTE. Please.

Mr. FONG. I was not personally involved in the drafting of this

proposal, but it is my understanding that there was an extensive

interagency effort that did involve outreach and input from a variety of affected constituencies. We are obviously looking forward to

and will commit to working with those interests and as we move

forward with this proposal.

Ms. DEGETTE. I guess I would ask unanimous consent to have

this answer supplemented in writing. If you folks could let us know

exactly who was consulted and what the process was. You know I

appreciate your goodwill toward thinking people were consulted,

but I would like to know exactly what happened.

Mr. FONG. Can I——

Ms. DEGETTE. And in particular——

Mr. FONG. Can I——

Ms. DEGETTE. Excuse me—in particular, I am concerned because

in Colorado, we have an open record statute that makes all of the

information possessed by the local emergency planning committees

public information and, therefore, accessible to the public. And I

know many other States have laws like that, too.

Are you aware of that, Mr. Fong?

Mr. FONG. Yes, and we believe those laws are very important.

However, to the extent those laws would require dissemination of

the offsite consequence analysis portion of the RMP’s, they would

be preempted——

Ms. DEGETTE. Right.

Mr. FONG. [continuing] and the reason is that it makes no sense

to restrict the dissemination in one arena and then have it simply

disclosed in another forum.

Ms. DEGETTE. Well——

Mr. FONG. So, therefore, it is a necessary consequence of the

threat that we are talking about.

Ms. DEGETTE. Well, I understand what your rationale is, but I

think the States might have a different rationale. And I am wondering if you can provide to the subcommittee by June 7, copies of

all of the State statutes, the open record statutes that will be preempted by this legislation?

Mr. BILIRAKIS. If the gentlelady would yield?
44

Ms. DEGETTE. I would be happy to.

Mr. BILIRAKIS. I would ask the three gentlemen if they would be

willing to receive questions, you know, in writing from us, and then

respond in writing to us?

Now please keep in mind, however, the June 21 date. And June

21 means get through all the Congress, as well as signed into law

by the President, which, you know, makes it pretty darned difficult.

So, is that all right, Diana?

Let’s do it that way; you would—responding to your question.

Ms. DEGETTE. Yes.

Mr. BILIRAKIS. [continuing] and additionally to any others that

we would offer.

Ms. DEGETTE. Mr. Chairman, I don’t think it should be difficult,

for given this June 21 date and given the fact that we are not going

to be in session for a while, I think it would be helpful to get this

information, the information about which State laws would be preempted by June 7, and then any other questions that the committee wants to submit in writing I think would be fine.

I don’t see how we can do a bill by June 21.

Mr. BILIRAKIS. If that is the unanimous consent request, and if

the gentlemen are amenable, then the answer is ‘‘yes, without objection.’’

Mr. BROWN. And, Mr. Chairman, I would like to ask that the

record be kept open for, say, 24 hours so that other questions—I

have a couple other questions——

Mr. BILIRAKIS. Yes.

Mr. BROWN. [continuing] which we don’t have time for, and other

members——

Mr. BILIRAKIS. Yes, that is the point. I know we all have many

questions.

Mr. BROWN. And they could answer as many of the questions by

next week.

Mr. BILIRAKIS. You have been very helpful. I just—I am sorry

that we have had such a thing here running back and forth, but

that is the way it goes up here.

And now we have a vote on the floor, so let’s—we will excuse this

panel.

Thank you very much for your indulgence and for your cooperations.

And I would hope that the next panel maybe can start lining up

so that we can move on when we get back.

[Brief recess.]

Mr. DEAL. [presiding] We want to welcome you back for the second panel, and I will introduce those panel members at this time.

Mr. Timothy Gablehouse, who is from Denver, Colorado, the Jefferson County LEPC; Mr. Lowell Strader, who is representing

PACE Workers International Union, from Fairfax, Virginia; Mr.

Paul Orum, who is coordinator of the Working Group of Community Right-to-Know, in Washington, DC; Mr. Martin Pfeifer, a sergeant with the Metropolitan Police Department here in Washington, and speaking on behalf of the Fraternal Order of Police;

Mr. Thomas Susman, who is here on behalf of the Chemical Manufacturers Association; Mr. Tom Sloan, who is here on behalf of the

American Library Association; and Mr. Mark Wheatley, who is the
45

assistant chief of the Fairfax County Fire and Rescue Department,

who is speaking on behalf of the International Association of Fire

Chiefs.

I realize you are not in the order in which I introduced you. But

we will proceed in the order in which you are seated. And, Mr.

Wheatley, we will ask you—and I would ask each of you, if you

would please, to try to keep your remarks to a summary of 5 minutes if at all possible, and we will have questions following that.

Mr. Wheatley.

STATEMENTS OF MARK S. WHEATLEY, ASSISTANT CHIEF,

FAIRFAX COUNTY FIRE AND RESCUE DEPARTMENT, ON BEHALF OF INTERNATIONAL ASSOCIATION OF FIRE CHIEFS;

THOMAS M. SUSMAN, ON BEHALF OF CHEMICAL MANUFACTURERS ASSOCIATION; PAUL ORUM, COORDINATOR, WORKING GROUP ON COMMUNITY RIGHT-TO-KNOW; MARTIN

PFEIFER, SERGEANT, METROPOLITAN POLICE DEPARTMENT, AND ELECTED TRUSTEE, THE NATIONAL BOARD OF

DIRECTORS, FRATERNAL ORDER OF POLICE; TIMOTHY R.

GABLEHOUSE, CHAIR, JEFFERSON COUNTY LEPC; THOMAS

W. SLOAN, DIRECTOR AND STATE LIBRARIAN, DELAWARE

DIVISION OF LIBRARIES, ON BEHALF OF THE AMERICAN LIBRARY ASSOCIATION; AND LOWELL P. STRADER, INTERNATIONAL REPRESENTATIVE, PACE WORKERS INTERNATIONAL UNION

Mr. WHEATLEY. Good afternoon, Mr. Chairman, members of the

subcommittee.

I am Mark Wheatley, assistant chief of the Fairfax County, Virginia, Fire and Rescue Department. I am here today on behalf of

the International Association of Fire Chiefs, and I am also chairman of the Fairfax County Joint Local Emergency Planning Committee.

I trust that you have been provided a copy of my testimony and

that you will have an opportunity to review it. My remarks today

are a summation of my written testimony.

The IAFC very much appreciates the opportunity to appear before you today. The subject of this hearing is of vital importance

to the America’s fire and emergency services personnel.

You have heard testimony regarding to EPA’s risk management

program rule and a requirement to report worst-case scenarios. If

a chemical release were to occur, these scenarios provide detailed

information, including the estimated injury and loss of life, potential damage to the structures and the environment. In the wrong

hands, this information could be used to target our Nation’s communities for a terrorist attack.

After hearing our testimony earlier this year, the IAFC appreciates EPA’s decision not to publish offsite consequence analysis on

the Internet.

Now a second and equally important issue arises. The IAFC has

grave concerns regarding the appropriate use of worst-case scenarios, given that it is still possible for a private citizen and organizations to obtain such information from the EPA through a FOIA

request. Even though the EPA has decided not to post this informa-
46

tion on the Web, others may be likely to do so and, thus, circumvent our communities’ security interest.

With regard to emergency planning efforts, detailed worst-case

scenario is of absolutely vital importance to local governments. It

is imperative that public safety officials have timely and

unimpeded access to this information on a continuous basis, and

not be confronted with impractical or time delaying procedures.

Furthermore, Federal statutes should not prohibit the sharing of

this information with other fire and emergency organizations.

Realizing the importance of this information to local authorities,

and given our concerns for the misuse, the IAFC supports the spirit

and intent of congressional action that would allow the EPA to

grant requests for information on a restricted basis, while providing direct access by local firefighters and other public safety officials.

When considering H.R. 1790 or similar legislation, it is important that the language be clear in its intent and explicit with regard to the required activities. Moreover, the term ‘‘local official’’

should be explicitly defined to include emergency response planners, public safety officials, and all—and I all reiterate ‘‘all’’—fire

service organizations: career, volunteer, or combination departments, alike.

From my personal perspective, as the chair of a local LEPC, and

in light of the criminal penalties that may be imposed, I am asking

that the Administrator of the EPA be directed to provide clear and

concise guidance which outlines the conditions under which offsite

consequence analysis information may be released to the public.

In conclusion, the offsite consequence analysis or worst-case scenario is extremely valuable information for emergency response

personnel and is vitally important for local emergency planning

purposes.

Second, Federal statutes should assure that dissemination of offsite consequence analysis be controlled and protected from mass

distribution. Moreover, local fire and emergency organizations

should not become a repository for such information for the purposes of disseminating it to the public, particularly in light of the

criminal penalties.

And, finally, in recognizing the complexities of the situation before us, the proposed Chemical Safety Information and Site Security Act of 1999 or similar legislation should be quickly enacted.

However, there needs to be additional clarification of existing language, including the resolution of the outstanding issues presented

here today.

On behalf of the International Association of Fire Chiefs, I thank

you for this opportunity to explain our concerns, and I am available

to respond to any questions you may have.

[The prepared statement of Mark S. Wheatley follows:]

PREPARED STATEMENT OF MARK S. WHEATLEY, ASSISTANT CHIEF, FAIRFAX COUNTY

FIRE AND RESCUE DEPARTMENT ON BEHALF OF THE INTERNATIONAL ASSOCIATION

OF FIRE CHIEFS

Good afternoon Mr. Chairman, members of the subcommittee, I am Mark

Wheatley, Assistant Fire Chief of the Fairfax County, Virginia Fire and Rescue Department. I am also the Chairman of the Fairfax Joint Local Emergency Planning
47

Committee, a committee responsible for hazardous materials emergency response

planning for four jurisdictions in Virginia.

My remarks today are on behalf of the International Association of Fire Chiefs

(IAFC). The IAFC is a professional association founded over 125 years ago in service

to chief fire officers and managers of emergency service organizations throughout

the international community.

We very much appreciate the opportunity to appear before you today. The subject

of today’s hearing is of vital importance to America’s fire and emergency services

personnel. We are the first responders to fires, medical emergencies, hazardous materials incidents, technical rescues, natural disasters and terrorist incidents.

As the subcommittee is aware, the Clean Air Act requires the Environmental Protection Agency (EPA) to implement a program to assist in the prevention of chemical accidents. We believe it is a good law. The EPA responded to this statute by

publishing its Risk Management Program rule in June 1996. That rule requires

some 66,000 facilities that store and use chemicals to develop a Risk Management

Plan (RMP) and file it with the EPA. Part of the Risk Management Plan is an Offsite Consequence Analysis (OCA) which includes worst case data elements-or ‘‘worst

case’’ scenarios. These worst case scenarios (WCS) contain detailed information

about the chemicals stored at the facility, estimated injury and loss of life predictions, potential damage to structures and the anticipated environmental impact.

They are a prediction of disaster for the specific facilities of interest.

The Clean Air Act further requires the EPA to make this information available

to the public. Last year, we learned that the EPA proposed to make this information, including worst case scenarios, available to the public on the internet. We expressed our concern, shared by the FBI as well as other law enforcement and national security agencies, that making worst case scenarios available on the internet

may increase the risk of terrorist attacks. The IAFC and the American fire service

were pleased that the EPA agreed not to publish offsite consequence analysis data

elements on the internet. This was a very responsible action by that agency and one

which is greatly appreciated by fire and emergency services.

Now, a second and equally important issue arises. The IAFC has grave concerns

regarding the inappropriate use of WCS information given that it is still possible

for private citizens and organizations to obtain such information from the EPA and

other agencies through federal and state Freedom of Information Act (FOIA) requests. These persons could then post the worst case scenarios on the internet. Our

concern now is that even though the EPA has decided not to post worst case scenarios on the internet, others are likely to do so. It is our understanding that currently a FOIA request could require the EPA to turn over the entire database electronically or in paper format. The same might be true of documents and information

held by localities for planning purposes.

Detailed worst case scenario information is vital to local governments for emergency planning purposes. It is imperative that local emergency responders have

timely, unimpeded access to this information on a continuous basis. Local emergency responders should not be confronted with impractical barriers or time delays

in accessing such critical information as a result of statutory or regulatory action.

Given the importance of this information to local authorities and yet our concern

for its misuse, we support congressional action that would allow the EPA to grant

requests for information on a restricted basis as proposed in the ‘‘Chemical Safety

Information and Site Security Act of 1999.’’ This proposed bill would allow local

emergency planners, fire and emergency services professionals and citizens within

a given community to obtain this important information without creating a one-stop

shop for those that might use the information for sinister purposes.

When considering H.R. 1790 or similar legislation it is important that the specific

language is clear in its intent and explicit in regard to required activities. Specifically, the use of the words ‘‘local official’’ should be explicitly defined to include

emergency planners, fire and emergency services personnel. Otherwise, some confusion may exist as to who the intended local recipients of information are and their

responsibilities regarding the use and dissemination of Offsite Consequence Analysis data. In addition, it should be clear that information is accessible by all fire

and emergency service organizations regardless of whether the organization is a career, volunteer or combination department.

And, from my personal perspective as the chair of a local emergency planning

committee, I would ask that the Administrator of the Environmental Protection

Agency be directed to provide clear and concise guidance which outlines the conditions under which Offsite Consequence Analysis information may be released to the

public, particularly in light of the proposed criminal penalties which may be imposed for violating provisions of this Act.
48

In conclusion: 1. The Offsite Consequence Analysis-or ‘‘worst case’’ scenario data

is very valuable information for fire and emergency service responders. It is vital

for local emergency planning and response purposes. 2. The Federal statutes should

not prohibit sharing of access to worst case scenario information between fire and

emergency service personnel from other jurisdictions involved in joint planning. Furthermore 3. Local fire and emergency services should not become a repository of the

worst case scenario information for the purpose of disseminating it to the public.

Federal statute should ensure this. 4. The dissemination of the Offsite Consequence

Analysis data should be controlled and protected from mass distribution. Finally 5.

The proposed Chemical Safety Information and Site Security Act of 1999 or similar

legislation should be enacted quickly. However, there needs to be additional clarification of existing language which addresses the outstanding issues presented here

today regarding the use and dissemination of worst case scenario information.

On behalf of the International Association of Fire Chiefs, I thank you for the opportunity to explain our concerns. I am available to respond to any questions you

may have.

Mr. DEAL. Thank you, sir.

Mr. Susman.

STATEMENT OF THOMAS M. SUSMAN

Mr. SUSMAN. Thank you, Mr. Chairman.

I am here today on behalf of the Chemical Manufacturers Association which represents over 90 percent of the domestic capacity

for producing basic chemicals. CMA, incidentally, supported the

Clean Air Act amendments of 1990 and its risk management provision, and its members have been working in communities for quite

some time to communicate on these local issues.

I am going to summarize the three points made in my formal testimony today, and also take leave to address three other points

that were raised by members’ opening comments, in case we get

tied up with the bells again.

The bill attempts to achieve a balance between public right-toknow and the obligation of Government to protect public safety.

And it is important to remember that the balance is not right-toknow versus no-right-to-know, but right-to-know versus public safety. And the language of the legislation submitted by the administration has a few serious flaws that can be corrected, but they are

flaws that Congress and this subcommittee need to address.

The first flaw is the proposed electronic dissemination through

depository libraries. You have a library community witness this

morning who will address that issue, generally, but I would point

out that this provision imposes upon GPO and the Nation’s 1,300

depository libraries responsibilities, burdens, and requirements

that are simply unrealistic and unworkable. Woe to the public librarian who allows someone to photocopy in the public reading

room an OCA and thereby becomes, under this statute, a criminal.

CMA urges the committee simply address this problem by deleting reference to depository library dissemination from the bill.

The second major flaw is the bill’s failure to require, and, indeed,

its inhibition, on identification of persons requesting OCA data.

The bill doesn’t require a written request for OCA information.

Every agency in Government requires written request for every—

even the most trivial Freedom of Information Act request, yet this

bill does not. And it only authorizes, it does not mandate the Administrator to keep track of requesters. Furthermore, even that

light touch is undermined by the provision that the Administrator

can maintain identity information, only to the extent that collection
49

is relevant and necessary to accomplish a legal purpose required to

be accomplished by a statute.

Mr. Chairman, I know of no statute, Federal or State, which imposes such a requirement, and CMA, thus, urges the committee

both to insert the word ‘‘written’’ before the word ‘‘request’’ in the

statute so that it does require a written request, and to delete the

qualification that appears to allow maintenance of requester data

only if required to be accomplished.

The third flaw is the bill’s dependence upon guidelines that are

set by unreviewable and standardless agency discretion. The Administrator has the authority, through guidelines, to set limits on

the maximum number of requests, but there is no indication on the

part of the administration in transmitting the bill or so far on the

part of any Member of Congress as to what that standard ought

to be. Are we talking about one request per year for up to three

sites of offsite consequence data? Or are we talking about 50 requests per year for up to 100 or 500 sites per requests? These are

very, very different, in terms of their implications of requests for

individual copies being used ultimately to get this information on

the Internet.

This is an important issue and Congress ought to indicate what

it thinks the answer is. CMA suggests one request for three facilities plans per year, but obviously we are talking about a relatively

modest number.

And the second problem is that these important questions are to

be answered by not notice in comment rulemaking, but by guidelines that are not judicially reviewable. So while the Administrator

must consult with unnamed appropriate Federal agencies, and

EPA assures us that they will talk to the public and State and

local governments, for 50 years, the Administrative Procedure Act

has told us that the way to ensure both accountability of the agency and public participation and confidence in the setting of standards is through notice and comment rulemaking, and that can be

done without delay.

Now the additional problems that aren’t dealt with in my testimony but have been raised this morning, let me touch on just a

moment.

This legislation will preempt State freedom of information and

open records laws. While it certainly will—the answer to the question earlier asked to the Justice Department official, ‘‘How many?’’

The answer is ‘‘All of them, we hope.’’ This is not unusual; this is

not unprecedented. Every time Congress goes to protect records,

the Buckley Amendment of 1974 relating to school records, criminal information, history through Federal legislation, Medicaid information, healthcare information—whenever Congress enacts an

statute where information flows to the States, it proscribes State

redissemination without restriction. While it is perfectly constitutional, the commerce clause contemplates it. These statutes have

been upheld against constitutional challenge, and the States can

avoid preemption. They simply don’t have to obtain the information.

What about dealing with access to volunteer firefighters or LEPC

members who aren’t employees. It seems to me a simple amend-
50

ment could handle that, or they could be considered consultants or

agents of the State, already dealt with through the legislation.

And, finally, let me return to what I consider is really the basic

issue, that this will roll back the public’s right to know. This right

was originally created by Congress. It is a right to know that the

manufacturers of chemicals, along with environmental advocates

and Government agencies, all support. But it is a right that has to

be tempered, as I said in my opening. Tempered by an equal right

to protection against the traumas caused by a terrorist attack on

a nearby chemical facility. And so the legislation needs to be designed not just to look at the access part, but the protection part—

and I understand, no right to Internet-accessible, electronically

searchable data that is necessary to allow the community to understand, work with, and respond to potential chemical hazards.

Thank you, Mr. Chairman. I will be pleased to participate in responding to any further problems with this legislation that might

arise.

[The prepared statement of Thomas M. Susman follows:]

PREPARED STATEMENT OF THOMAS M. SUSMAN ON BEHALF OF THE CHEMICAL

MANUFACTURERS ASSOCIATION

Good afternoon, Mr. Chairman and members of the Subcommittee. My name is

Tom Susman, and I am a partner with the law firm of Ropes & Gray. I appear before you this afternoon on behalf of the Chemical Manufacturers Association. CMA

is a trade association that represents over 90% of the domestic capacity for producing basic industrial chemicals.

I am here today to comment on the Administration’s proposal, H.R.1790, as introduced by Chairman Bliley. This proposal is intended to deal with the issue of dissemination of worst case scenario data via the Internet. I would like to commend

Chairman Bliley for his leadership on this important matter. Thanks are also due

Subcommittee Chairmen Bilirakis and Upton, as well as other members of the Commerce Committee, for their excellent work.

As you know, worst case scenario data provide a graphic depiction of the worst

possible incident that could occur at a manufacturing facility. An unintended consequence of the dissemination of this data is that it will provide what the intelligence community refers to as ‘‘targeting quality’’ data. This data will assist terrorists in choosing their targets.

This language was produced by an interagency work group led by the Department

of Justice. The process achieved important results. It established a framework which

brought all affected agencies—Department of Justice, National Security Council,

FBI and EPA (and others) to the table to discuss the unintended consequences of

government information dissemination programs, particularly those which could facilitate terrorist activities. It also placed primary responsibility for dealing with

these issues in the hands of the Department of Justice and other security agencies—

where it belongs.

The process focused all stakeholders on the need to achieve a balance between

public right-to-know and the obligation of government to ensure that sensitive information does not get into the wrong hands, that is, to ensure that communities are

both safe and informed. The importance of this process and its success in bringing

the right parties together to undertake a cross-cutting look at these issues cannot

be overstated. CMA supports the Administration’s effort.

The language proposed by the work group, however, has some serious flaws which

I will describe in detail. I stress that these shortcomings can be fixed and that they

must be fixed so that this bill can be signed into law before June 21, 1999—the date

by which worst case scenario must be submitted to EPA. After providing a brief

overview of the background on this issue, I will proceed to discuss those areas where

the bill needs to be improved.

BACKGROUND.

CMA supported the Clean Air Act Amendments of 1990 and the Risk Management Plan (RMP) provisions of Section 112(r). CMA worked closely with EPA in the

development of its RMP regulations, and it has conducted extensive and early com-
51

munity-based outreach to make sure that its members are prepared to comply with

the rule. Indeed, many of them began communicating with their local communities

about these issues several years ago.

CMA believes that the public has a right to know about the risks, as well as the

benefits, associated with the operation of those facilities. Ever since Congress began

considering the concept of Risk Management Plans in the late 1980s, our central

concern has been to ensure a balance between two important public policy goals: ensuring that communities are both safe and informed.

In the last year or so, however, agencies charged with assuring our nation’s internal security—the Department of Justice, the National Security Council, and the FBI

(to name a few), expressed serious concerns about one aspect of EPA’s planned implementation of the RMP rules. That aspect was EPA’s plan to put offsite consequence analyses (OCAs), including those involving worst-case scenario releases,

into an electronically searchable database that would be accessible via the Internet.

These agencies concluded that such an arrangement would allow terrorists and

other criminals to easily identify promising targets and to rank those facilities by

the scale of their worst case offsite consequences. Prompted by the experts at the

security agencies, the Administration initiated an interagency review process to

evaluate this threat, and to develop new ways to address it and still serve the

public’s right to know.

The first step of this process was EPA’s decision early this year not to post a

searchable electronic database of OCA data on the Internet. CMA commended EPA

for making this tough decision.

The second step of the process was to ensure that EPA’s decision could not be undermined by third parties who could obtain the electronic data under the Freedom

of Information Act (FOIA). Again, the security agencies, EPA and the Department

of Justice thought carefully about how to accomplish this goal without making

changes to FOIA itself. The result was the bill currently before this Committee.

MAJOR FLAWS.

There are three major problems with the bill. I will briefly touch on each one. All

of these are straightforward. They can be remedied in a prompt manner. Recommended changes are also provided.

Electronic dissemination through depository libraries.

The bill recognizes that risk management plans will be made available at thousands of EPA, state and local government offices throughout the nation. It also mandates that every risk management plan, including OCA data, be ‘‘available in paper

or electronic form for public inspection, but not copying, during normal business

hours,’’ from EPA. On top of that, however, the bill requires every risk management

plan to be similarly available from Government Printing Office depository libraries.

This provision imposes upon the GPO and the nation’s thousands of federal depository libraries responsibilities, requirements, and burdens that are unrealistic, undesirable, and, in the end, unworkable. Let me explain why:

• First, federal depository libraries are not exclusively, or even primarily, federal

institutions. They may be private (for example, university libraries), or public

(for example, local libraries). There are over 3000 of them in all 50 states, D.C.,

and the territories. Present law and regulations require that depository libraries

make government publications, paper and electronic, available to the public

without charge and without restrictions. Thus, the entire depository system is

grounded upon principles running counter to the objectives and requirements of

the bill.

• Second, depository libraries do not have the personnel or resources to monitor

whether a person copies paper records or prints or copies electronic records. Nor

does GPO have the ability to enforce such restrictions. Library computer

workstations ordinarily allow patrons to make copies of online materials, and

they are not necessarily located where supervision is possible. Libraries would

have to invest in facilities or equipment or both to enforce the requirements of

the bill. Moreover, even as to paper copies of OCAs, libraries locate copying facilities to make it easy for patrons to photocopy reference materials; mandating

segregated, access-controlled ‘‘read but don’t copy rooms’’ in libraries simply is

not feasible.

• Third, the library community historically has opposed restricting or monitoring

access; the American Library Association was a lead plaintiff challenging federal restrictions on access to indecent material on the Internet. Libraries have

shown a disinclination to, and cannot effectively, monitor copying of CDRoms

or paper or disks, as would be required by the bill.
52

• Fourth, ‘‘GPO Access’’—the program for dissemination of electronic online information to depository libraries—is an open system available to the public generally. Currently, no system is in place for secured transmission of information

solely to depositories. Nor is one just around the corner.

• Fifth, library systems and shelves are not secure. The goal of libraries is to get

information out freely and expeditiously to the public, not to restrain or censure

it. Sending OCA data electronically to potentially hundreds or thousands of depository libraries is an invitation to disaster.

Accordingly, CMA urges that the Committee strike the phrase ‘‘, including in Government Printing Office depository libraries’ from page 5, lines 18-19 of the bill.

Identifying requesters.

The second major flaw with the bill is its failure unambiguously to require the

system to identify persons requesting OCA data. First, section 2(c)(3)(A) does not

require a ‘‘written’’ request—‘‘any request for off-site consequence analysis information’’ seemingly will do. Even FOIA—which would not apply under this bill—requires a written request for information.

Second, section 2(c)(9) merely provides that ‘‘the Administrator may collect and

maintain records that reflect the identity of’’ those seeking access to OCA data. This

is permissive, not mandatory. More importantly, even the authority to maintain

records of requesters’ identities is severely undermined by the qualification that the

Administrator may do so ‘‘only to the extent that such collection is relevant and necessary to accomplish a legal purpose...that is required to be accomplished by statute or by executive order of the President.’’ I am not aware of such a requirement

in any statute. Presumably it may be inferred from this bill, via the bill’s command

that EPA establish conditions for release of OCA information that include the maximum number of requests any single requestor can make. After all, the agency could

not effectively enforce such a limitation without keeping records of requesters. But

once any time period contemplated by the guidelines has expired (for example, one

year if the guidelines allow three requests per year), the agency would no longer

have even an implied ‘‘requirement’’ to maintain this information. Additionally, few

if any State statutes require collection of requester identity information, so this

qualification may prevent States from acquiring information deemed useful to

guarding against misuse of the data, even to the extent of causing public harm.

Finally, the bill’s reference to the Privacy Act makes no sense, since the Privacy

Act exempts from its protections any request for personal information disclosable

under the FOIA, and FOIA in turn has been read uniformly to require disclosure

of requests for information of this kind. (For example, FOIA requests are routinely

disclosed under FOIA.) Hence, any suggested protection of requester identity records

is ephemeral. The bill should be clear that there is no such protection—one of its

fundamental purposes is to allow agencies to track who is requesting OCA data.

This could enable EPA to determine if someone is about to cause an imminent hazard by posting electronically a stolen copy of the entire OCA database. It could also

help identify the perpetrators of a terrorist act, if one occurs at an RMP facility.

Accordingly, CMA urges the Committee to insert the word ‘‘written’’ before the

word ‘‘request’’ on page 3, line 19 and to delete the qualification in both clauses of

subsection 2(c)(8) that appear to allow maintenance of requester identity only if ‘‘required to be accomplished by statute or by executive order of the President.’’

Unreviewable and standardless agency discretion.

The third major flaw in the bill has two parts: its failure to require EPA to go

through rulemaking to establish conditions on access to OCA data, and its failure

to establish any standards to guide EPA in this exercise.

Section 2(c)(3)(A) allows the Administrator to restrict access to paper OCAs, and

this restriction is binding on States and local government employees under section

2(c)(5). Yet these provisions give absolutely no hint of standards for EPA to follow.

(Nor do the Justice Department’s transmittal letter or section-by-section analysis.)

May the Administrator limit the maximum number of request or facilities that may

be requested to one per requester, period? To 1000 facilities or 50 requests per requester each year? Congress should certainly care about these questions, given the

time and energy it is investing in this legislation. The underlying purposes of the

legislation could be achieved with a limitation to one request for three facility plans

per year; why authorize more?

Moreover, these important questions are to be answered not by notice and comment rulemaking, but only by guidelines that, under section 2(d)(1), will be

unreviewable. True, the Administrator must consult with unnamed ‘‘appropriate

Federal agencies.’’ But it need not consult with the public, State or local govern-
53

ments, or affected industry. And whatever the consultation process, there is no opportunity for public comment or for judicial review.

Accordingly, CMA urges the Committee to combine paragraphs 2(d)(1) and 2(d)(2)

in such a way that EPA must conduct notice and comment rulemaking to establish

the access conditions required by the bill. This rulemaking could be expedited; for

example, these rules could be proposed within 45 days and finalized 45 days later.

CMA also recommends the Committee specifically name the Department of Justice

as among the ‘‘appropriate Federal agencies’’ with which EPA must consult (page

8, line 1).

OTHER ISSUES.

Two other features of the bill raise questions, although neither rises to the level

of the three concerns just discussed.

• Enforcement. The bill is unclear about how its limitations on disseminating OCA

data would be enforced. While criminal penalties are included under section

2(c)(8), there may be nothing to penalize if the guidelines allow nearly unfettered disclosure of OCAs. For example, is a violation of the guidelines a violation of ‘‘a restriction or prohibition established by this section?’’ And woe unto

the public library employee (a local government employee) who commits a criminal act by failing to stop a patron from copying an OCA in the reference room. • Order authority. The purpose of section 2(f) is even more unclear. Presumably it

would allow EPA to issue an order preventing someone from posting on the

internet a stolen copy of the OCA database, or that person’s own reconstruction

of the database. If so, that is probably useful. But whether the Administration

envisioned this or something else is unclear.

CONCLUSION.

The FBI and other law enforcement and national security agencies have determined that unrestricted access to OCA information, especially electronic data, would

facilitate terrorist targeting of chemical facilities in the United States. EPA agreed.

Yet these agencies, State and local governments, environmental and union advocates, and the chemical industry also agree that some form of public access to this

information is highly desirable.

Mr. Chairman, H.R. 1790 is an important attempt to balance and reconcile these

two goals. This bipartisan bill represents the collaborative effort of affected agencies.

The bill has flaws that could result in it failing to accomplish its important purpose,

but these flaws can be readily addressed by the solutions CMA has outlined above.

We urge the Committee to adopt them, so that Congress can promptly enact this

vital legislation.

Mr. DEAL. Thank you.

Mr. Orum.

STATEMENT OF PAUL ORUM

Mr. ORUM. Thank you.

I am Paul Orum, the coordinator of the Working Group on Community Right-to-Know, environmental and public interest groups; I

have held that job for 10 years.

Today we are here to consider ways to reduce the risks of catastrophic chemical releases, whether resulting from terrorism or socalled everyday accidents.

The Clear Air Act gives us two basic tools to do that: right-toknow and regulation. The proposed bill seriously impedes the

public’s right to know and yet presents no other tools to fight terrorism or reduce chemical accidents.

We can’t pretend that just restricting right-to-know, alone, will

somehow solve either the terrorism or chemical safety problems.

Yet, that is what this bill does. And by restricting right-to-know,

it threatens to maintain what I would call a ‘‘know nothing, do

nothing’’ relationship between Government and industry in which

we end up with the worst of both worlds—no effective right to

know, and no real action to protect public safety.
54

If Congress is serious about reducing the risk of terrorism, I

would propose a prevention hierarchy parallel to that used in the

Pollution Prevention Act, a multiple barriers approach, if you will.

First, reduce the problem at the source, wherever feasible. Here

in Washington, DC, sitting right here, the Blue Plains Sewage

Treatment Plant has enough chlorine gas onsite to affect us if it

were all released. If they switched to sodium hypochlorite, bleach,

they would not have that offsite capacity to cause harm. So you reduce the problem at the source through inherently safer technologies where you can. Where you can’t, go to secondary containment. Where that might fail, improve site security. Where those

measure might fail, establish adequate buffer zones. It is a multiple barriers approach.

If Congress believes, and the industry believes, that the threat

of terrorism justifies restrictions on the public’s right to know, then

both are obligated to take real steps to remedy those hazards.

Effective right-to-know laws make companies, workers, and communities more careful and vigilant. The toxics release inventories

and offsite—as an example, credited with a 43-percent reduction in

releases over a 10-year period.

We could have similar benefits in rearouse of reducing the risks

of catastrophic chemical releases, through accidents or terrorism. A

TRI-equivalent reduction of 43 percent in deaths over a recent 10-

year period would be 1,100 lives saved.

Let’s look, though, exactly or more precisely at what this—how

this law would restrict public information. Imagine that 6 months

from now, and one of your constituents has a basic question. Could

facilities near her home have a catastrophic chemical release due

to a year 2000 computer failures?

She walks into your office and tells the following story.

She started with EPA’s online data base, RMP information, but

she could learn only that there were dangerous chemicals nearby

but couldn’t learn, without further inquiry, whether a chemical

spill could hurt her family at home. So she had to inquire, using

facility-specific request to EPA—guesses really—which facilities in

her town might affect her. But she quickly ran out of the facilityspecific requests because they were limited.

She couldn’t get the information, nor was she able, therefore, to

learn about hazards elsewhere, where her parents lived, where her

children go to school, or where she might want to move to.

So, in my scenario, she asked her husband to make further requests, but he didn’t want to pay the fees. And, further, he objected

to the fact that the Government was tracking and limiting his access to information.

So she asked her neighbor, a volunteer firefighter who served on

the LAPC, but he said the State law made him an employee, and

he was afraid to go to jail if he gave her the information.

He suggested the library, but the librarian said they had decided

not to give it out because they didn’t want to police their patrons’

use of information; they didn’t have staff.

He said, call the company. So he called a friend who worked at

a refinery, and he said they didn’t put out vulnerability circles anymore because the Governments says it is a security risk. He said,

‘‘Call EPA.’’
55

So she tried the EPA regional reading room, but the data base

there didn’t include any information that would help her to identify

the decisionmaker who was causing the hazards.

So she called the research at the university, and he couldn’t get

full information either, through basic studies.

This bill creates big disadvantages for citizens who seek basic information, including needless expenses, intrusion on personal information, and high opportunity costs. The question is how to preserve the public’s right to know, while making progress against terrorism.

We propose a two-part strategy. First, any company that wants

to withhold information from the Internet should, for a limited period of time, have to request a waiver to do so and renew it annually. For any company that requests a waiver, they should have to

enter a hazard reduction and site security program using the

multi-barriers approach above.

With that approach, Congress would ensure that no company

falls through the cracks. Every company addresses the risks of hazards, and all the companies are on the track to fully honor the

public’s right to know.

I would be pleased to answer any questions and also point out

this example from 1993 was in a newspaper of what it looks like

when worst-case scenarios are published in a newspaper.

[The prepared statement of Paul Orum follows:]

PREPARED STATEMENT OF PAUL ORUM, WORKING GROUP ON COMMUNITY RIGHT-TOKNOW

My name is Paul Orum. I am the coordinator of the Working Group on Community Right-to-Know, a network of public interest organizations concerned with the

public’s right-to-know and freedom to communicate about toxic pollution and chemical hazards. I testified before this subcommittee on February 10, 1999, and submitted answers to follow-up questions on March 31, 1999. In those materials I described the public purposes served by a complete, national database of chemical hazard information. I appreciate this opportunity to address the proposed ‘‘Chemical

Safety Information and Site Security Act of 1999’’ (H.R. 1790).

Today we are considering ways to reduce the risks of catastrophic chemical releases, whether resulting from ‘‘terrorism’’ or ‘‘everyday’’ accidents. The Clean Air

Act, section 112(r), contains two basic strategies to reduce chemical releases: rightto-know and regulation. The proposed bill seriously impedes the public’s right-toknow and presents no other significant measures to fight terrorism or reduce chemical accidents.

This bill impedes the public’s right-to-know. It requires the government to track

citizens’ information-request behavior. It limits citizens’ opportunities to request

public information. It threatens to jail librarians, police, and fire fighters if they

warn people about the worst hazards. It restricts citizens’ ability to communicate

about chemical hazards. It shields those who create hazards from public scrutiny.

It establishes new fees and poses high opportunity costs. And it denies researchers

basic access to ‘‘right-to-know’’ information.

At the same time, this bill offers no serious, practical steps for companies to reduce these chemical threats to public safety, for example by using inherently safer

technologies, adding safety equipment, improving site security, or establishing buffer zones to protect surrounding populations.

We cannot suppose that restricting right-to-know alone will somehow solve either

terrorism or chemical safety problems. Yet by restricting right-to-know the proposed

bill threatens to maintain a ‘‘know-nothing, do nothing’’ relationship between government and industry. We may end up with the worst of two worlds—with no effective right-to-know and no real action to protect public safety.
56

1The Pollution Prevention Act of 1990, Section 6602(b), establishes as the national policy of

the United States a hierarchy for the prevention and management of toxic chemicals in production waste. 2 Incorporating ‘‘technology options analyses’’ into research and development before major

changes that require a facility to submit an updated Risk Management Plan can identify such

prevention opportunities. See Ashford, et. al., The Encouragement of Technological Change for

Preventing Chemical Accidents: Moving Firms From Secondary Prevention and Mitigation to Primary Prevention, U.S. Environmental Protection Agency, July 1993. 3Diverse constituencies with an interest in chemical hazard information include: educators,

researchers, and university-based hazard reduction centers; national and local news media; the

general public; community groups, resource centers, and citizen advisory councils; social justice,

environmental, and labor organizations; facility environmental managers (in large and small

businesses); investors, lenders, and insurers; physicians networks, health departments, nursing

homes, and hospitals; emergency responders (police, fire, medical services, and emergency planners); school officials and parent-teacher associations; planning commissions, zoning boards, and

public works departments; elected officials, and others. 4Frances Lynn, Jack Kartez, and Cheryl Connelly, The Toxics Release Inventory: Environmental Democracy in Action, U.S. EPA (document number 700-F-92-001), 1992. 5The Chemical Safety and Hazard Investigation Board reported 2,565 deaths from chemical

accidents in The 600K Report: Commercial Chemical Incidents in the United States, 1987-1996,

February 1999.

I. Real Steps to Reduce Hazards: A Multiple-Barriers Approach

If Congress is serious about reducing chemical releases—whether caused by ‘‘terrorists’’ or ‘‘ordinary’’ events—then we propose a prevention hierarchy parallel to

that used in the Pollution Prevention Act:1

1. Adopt inherently safer technologies where feasible that eliminate the possibility

of a catastrophic chemical release (such as replacing chlorine disinfectant with

sodium hypochlorite—bleach—at water treatment plants).2

2. Use secondary containment, control, or mitigation equipment (including hardening

facilities against attack) where feasible to address vulnerabilities that cannot be

reduced through inherently safer technologies;

3. Improve site security where feasible to address vulnerabilities that cannot be reduced through inherently safer technologies and secondary safety controls;

4. Establish adequate buffer zones between facilities and surrounding populations

(including residences, schools, hospitals, senior centers, shopping malls, stadiums, and other population centers) to address vulnerabilities that cannot be

addressed through safer technologies, secondary safety controls, or site security.

This ‘‘multiple-barriers approach’’ provides a context for action by the public, government, and industry to protect public safety at the federal, state, and local level.3

If the chemical industry believex that the threat of terrorism justifies restrictions

on the public’s right-to-know, then the industry is obligated to take real steps to

remedy those hazards. If Congress believes that the threat of terrorism justifies new

restrictions on the public’s right-to-know, then Congress is obligated to take meaningful steps to ensure public safety.

II. Right-to-Know: What Gets Measured Gets Managed

Effective right-to-know laws make companies, workers, and communities more

careful and vigilant. For example, publication of Toxics Release Inventory data has

prodded companies to improve environmental performance. The U.S. EPA last week

announced that reported toxic releases to the environment have declined some 43

percent under the TRI program since 1988. However, it is important to remember

that citizen organizations and the news media with access to well-organized data

serve as an important link to the public.4

Effective access to RMP information, in conjunction with a hazard reduction and

site security program, could similarly reduce the risk of catastrophic chemical releases, whether caused by ‘‘terrorists’’ or ‘‘ordinary’’ events. (For comparison, a TRIequivalent 43 percent reduction in deaths from chemical accidents would have saved

over 1,100 lives between 1987 and 1996.5) People would be more vigilant, and companies would maintain fewer hazards and be better prepared to address hazards

that remain. However, the proposed bill truly impedes such effective access.

III. Restrictions on Right-to-Know: A Hide and Seek Odyssey

Imagine the odyssey of a person who wants basic information under the proposed

bill (H.R. 1790). It’s six months from now and one of your constituents has a basic

question: could facilities near her home have a catastrophic chemical release due to

year-2000 computer failures? She walks into your office and tells the following tale

of frustration.

She started with EPA’s on-line database, RMP*Info. But she learned only that

there are dangerous chemical practices nearby, but could not learn (without further
57

inquiry) whether a chemical spill could hurt her family at home. So she therefore

had to inquire, using facility-specific requests to EPA, which facilities in her town

might affect her family—but was allowed only a limited number (as yet unspecified)

of information requests. When she exceeded EPA’s information-request allowance,

she was not able to learn about hazards where her elderly mother lives, where the

children go to school, or where her family looked at buying a new home. (Her mother, on fixed-income disability, couldn’t get or understand the information herself.)

So she asked her husband to make further requests. But EPA charges information

request fees, and he balked at what he called an expensive game of hide-and-seek

over chemical industry hazards. Further, he didn’t want to participate in a ‘‘rightto-know’’ program that required the government to track and limit his informationrequest behavior.

So she asked her neighbor, the volunteer fire fighter, who serves on the Local

Emergency Planning Committee (LEPC). But he said that state law made him a

public employee, and that he was afraid of going to jail if he told her about the most

dangerous facilities, because he didn’t think the state had an official policy to give

out the information. He suggested the library. But the librarian said they decided

not to provide the data because they objected to policing patron’s use of information.

The librarian suggested calling the companies directly. So she called a friend who

works in a refinery, but he said that they didn’t put out vulnerability circles anymore because the government says it’s a security risk. He suggested EPA. So she

drove 250 miles—one way—to the EPA regional office reading room. But the database didn’t have facility identifying information and so now she couldn’t identify the

decision-maker causing the hazard (and EPA had decided not to identify the most

dangerous Y2K facilities).

She called a researcher at the university. He said that he thought that nearby

chemical facilities were depressing housing values—but couldn’t get complete data

to find out. He couldn’t even find out which companies had successful company-wide

inherent safety policies, or even which companies had successfully reduced hazards.

So now she’s in your office asking whether you, as her representative, can get her

the information about potentially dangerous Y2K facilities.

The bill creates immense disadvantages for citizens who seek basic information,

including needless expenses, intrusion on personal information, and high opportunity costs.

IV. The Right-to-Know Standard: Disclose and Ensure Safety

The question is how to preserve the public’s right-to-know while making progress

against terrorism. We propose the following strategy:

• First, require RMP facilities to that want to withhold worst-case scenario information from the national, on-line RMP*Info database to file an annual waiver request (only for a limited number of years) with the U.S. EPA. Without a waiver

request, EPA automatically puts full information on-line in RMP*Info.

• Second, require facilities that file such a waiver request to enter a ‘‘hazard reduction and site security program’’ until the facility is safe enough to talk about

on the Internet (following the prevention hierarchy listed above).

With this approach, Congress would ensure that companies address the risk of

terrorism, while putting all facilities on a track to fully honor the public’s right-toknow.

I would be pleased to answer any questions.

Mr. DEAL. Thank you.

Mr. Pfeifer.

STATEMENT OF MARTIN PFEIFER

Mr. PFEIFER. Good afternoon, Mr. Chairman, and, distinguished

members of the House Subcommittee on Health and Environment.

My name is Sergeant Marty Pfeifer, and I am a 26-year veteran

with the Metropolitan Police Department in Washington, DC. I currently serve as the elected trustee from the District of Columbia on

the National Board of Directors for the Fraternal Order of Police,

which is the largest organization of law enforcement professionals

in the Nation, representing over 277,000 men and women.

I am here this afternoon at the request of Gilbert Gallegos, national president of the Fraternal Order of Police, to express our
58

concern about an important public health and safety issue. As the

Nation’s largest law enforcement organization, our members, along

with other emergency responders, have front-line responsibility for

protecting the public from incidents involving hazardous materials,

including those initiated by terrorist organizations.

The Fraternal Order of Police is strongly opposed to the dissemination of sensitive data over the Internet which can be useful to

terrorists. Our most recent concerns with respect to this issue center on worst-case scenario data that the Environmental Protection

Agency will collect from 66,000 facilities as part of its risk management program under the Clean Air Act.

The data describes, in graphic detail, the worst possible incident

that could occur at a manufacturing facility.

The Clean Air Act amendments of 1990 required EPA to disseminate worst-case scenario data to the public and to the local emergency responders, but did not specify how this data would be provided. After pressure from the intelligence community and Congress, the EPA reconsidered their initial plan to post this sensitive

data on the Internet. In fact, at a recent congressional hearing,

EPA objected to any party placing the worst-case scenario data on

the Internet.

Now, despite EPA’s objections, certain third-party interest groups

have indicated they will use Federal information access procedures

to obtain this national electronic worst-case scenario data base

from EPA and then place it on the Internet. We are very much

alarmed by these irresponsible pronouncements, as should all

Americans.

The bill before the subcommittee today, H.R. 1790, the Chemical

Safety Information and Site Security Act of 1999, addresses the

need for appropriate controls and safeguards on the dissemination

of sensitive worst-case scenario data. The legislation would make

such data available to the public, but would not permit Federal,

State, or local governments from making the information available

on the Internet or in an electronic form which could be easily collected and utilized by terrorists.

We do believe, however, that such sensitive data, which could be

exploited with catastrophic results, needs to be subjected to greater

control by law enforcement agencies responsible for protecting national security.

Specifically, the legislation would permit worst-case scenario

data to be available to the Government Printing Office depository

libraries, in addition to EPA, State, and local government offices

around the country. Federal depository libraries are not always

Federal institutions and include many local, public, and university

libraries, all of which are required by current law to make Government publications, in paper and electronic format, available to the

public. Depository libraries do not have the personnel or the resources to be able to properly supervise persons accessing the data

to ensure it is not copied in any format. Library shelves and online

systems are not secure and are designed to make access to all information easily accessible for patrons—which is precisely the scenario we are trying to avoid. Their mission runs counter to the

aims of the legislation, this subcommittee, the EPA, the Department of Justice, and other law enforcement agencies.
59

The legislation does not consider the online information system’s

GPO Access, which disseminates information directly to depository

libraries via the Internet. The system is open to the public and has

no safeguards in place to transmit information securely, and no

system for the secure transmission of such data is currently under

consideration by GPO.

We also believe that the bill would be substantially improved by

requiring the identification of all persons requesting access to

worst-case scenario data. The bill, in its current form, does not require written request for access—but specifies ‘‘any’’ request. The

Fraternal Order of Police strongly supports mandating the submission of a written request before access to information with this degree of sensitivity is granted. Information of this nature should be

accessible only under controlled conditions.

In the same vein, the bill provides only that the Administrator

may collect data and maintain records that reflect the identify of

persons seeking access to the worst-case scenario data. Further, the

bill qualifies this authority by stating that maintaining data of the

requesters’ identities should only be collected if relevant and necessary to accomplish a legal purpose, by statute or executive order.

While it can be assumed that such recordkeeping would be required under regulations setting a maximum number of requests

from one individual, we believe that maintaining records is absolutely necessary to maintain control of this sensitive data and deter

its potential misuse.

Law enforcement and national security agencies are correct in

their determination that unrestricted access to worst-case scenario

data on chemical facilities, especially via the Internet, would allow

terrorists to chose with great precision and accuracy targets for

their attack.

The EPA is now in agreement with this assessment, and we

should all be proud of the strong bipartisan cooperation with which

Congress and the administration have approached this issue.

We must strike the correct balance between public access to this

information for legitimate purposes and the very real need to protect American citizens from the real threats of terrorism. Appropriate and necessary restriction of the worst-case scenario information by law enforcement and/or national security authorities, along

with recordkeeping on requesters, will greatly improve this legislation which accurately identifies the problem, but does not provide

an adequate solution.

On behalf of National President Gallegos and the membership of

the Fraternal Order of Police, I would like to applaud Congressman

Bliley for his leadership on this issue.

I sincerely hope that my testimony here today will improve H.R.

1790 and allow it to protect our Nation’s chemical facilities from

terrorist attack without compromising the public’s right to know.

I want to thank you, Mr. Chairman, and the members of this distinguished subcommittee, for the opportunity to share with you the

views of the Fraternal Order of Police on this important matter.

I would be pleased to answer questions.

[The prepared statement of Martin Pfeifer follows:]
60

PREPARED STATEMENT OF SGT. MARTY PFEIFER, NATIONAL TRUSTEE, GRAND LODGE,

FRATERNAL ORDER OF POLICE

Good afternoon, Mr. Chairman and distinguished Members of the House Subcommittee on Health and Environment. My name is Sergeant Marty Pfeifer and I

am a 26 year veteran with the Metropolitan Police Department in Washington, D.C.

I currently serve as the elected Trustee from the District of Columbia on the National Board of Directors for the Fraternal Order of Police, which is the largest organization of law enforcement professionals in the nation, representing over 277,000

men and women.

I am here this afternoon at the request of Gilbert G. Gallegos, National President

of the Fraternal Order of Police, to express concern about an important public

health and safety issue. As the nation’s largest law enforcement organization, our

members, along with other emergency responders, have front-line responsibility for

protecting the public from incidents involving hazardous materials, including those

initiated by terrorist organizations.

The F.O.P. is strongly opposed to the dissemination of sensitive data over the

Internet which can be useful to terrorists. Our most recent concerns with respect

to this issue center on worst case scenario data that the Environmental Protection

Agency (EPA) will collect from 66,000 facilities as part of its Risk Management Program under the Clean Air Act. This data describes in graphic detail the worst possible incident that could occur at a manufacturing facility, and includes the size of

the surrounding area and the ‘‘public receptors,’’ such as schools, hospitals and office

buildings that would be impacted by a terrorist event. The F.O.P. agrees with the

Federal Bureau of Investigation (FBI) and other law enforcement agencies that a

national searchable database of worst-case scenario information would enable terrorists to choose targets with a precision heretofore unknown with potentially catastrophic consequences. If this national database were on the Internet, it would be

a targeting tool accessible by terrorists from anywhere in the world.

The Clean Air Act Amendments of 1990 required EPA to disseminate worst case

scenario data to the public and to local emergency responders, but did not specify

how this data would be provided. Nevertheless, in January of 1998, EPA considered

placing all of the Risk Management Program data, including the worst-case scenario

information, on the Internet. Pressure from the intelligence community and Congress led EPA to agree not to do so.

In a recent Congressional hearing, EPA objected to any party placing the worstcase scenario data on the Internet. Now, despite EPA’s objections, certain third

party interest groups have indicated that they will use Federal information access

procedures to obtain this national electronic worst-case scenario database from EPA

and then place it on the Internet. We are very much alarmed by these irresponsible

pronouncements, as should all American citizens.

The bill before the Subcommittee today, H.R. 1790, the ‘‘Chemical Safety Information and Site Security Act of 1999,’’ addresses the need for appropriate controls and

safeguards on the dissemination of sensitive worst-case scenario data. The legislation would make such data available to the public, but would not permit Federal,

State or local governments from making the information available on the Internet

or in an electronic form which would be easily collected and utilized by terrorists.

We do believe, however, that such sensitive data, which could be exploited with catastrophic effect, needs to be subjected to greater control by law enforcement and

agencies protecting responsible for national security.

Specifically, the legislation would permit the worst case scenario data to be available to Government Printing Office depository libraries, in addition to EPA and

State and local government offices around the country. Federal depository libraries

are not always Federal institutions and include many local public and university libraries, all of which are required by current law to make government publications,

paper and electronic, available to the public. Depository libraries do not have the

personnel or resources to be able to properly supervise persons accessing the data

to ensure that it is not copied in any format. Library shelves and on-line systems

are not secure, and are designed to make access to all information easily accessible

for patrons—which is precisely the scenario we are trying to avoid. Their mission

runs counter to the aims of the legislation, this Subcommittee, the EPA, the Department of Justice, and other law enforcement agencies.

The legislation also does not consider the online information system ‘‘GPO Access,’’ which disseminates information directly to depository libraries via the Internet. The system is open to the public and has no safeguards in place to transmit

information securely, and no system for the secure transmission of such data is currently under consideration by GPO.
61

We also believe that the bill would be substantially improved by requiring the

identification of all persons requesting access to the worst case scenario data. The

bill in its current form does not require a written request for access—but ‘‘any’’ request. The F.O.P. strongly supports mandating the submission of a written request

before access to information with this degree of sensitivity is granted.

In the same vein, the bill provides only that the Administrator ‘‘may collect data

and maintain records that reflect the identity of’ persons seeking access to the worst

case scenario data. Further, the bill qualifies this authority by stating that maintaining data of the requesters’ identities should only be collected if ‘‘relevant and

necessary to accomplish a legal purpose . . . by statute or executive order.’’ While it

can be assumed that such record keeping would be required under regulations setting a maximum number of requests from one individual, we believe that maintaining records is absolutely necessary to maintain control of this sensitive data and

deter its potential misuse.

Law enforcement and national security agencies are correct in their determination

that unrestricted access to worst case scenario data on chemical facilities, especially

via the Internet, would allow terrorists to chose with great precision and accuracy

targets for their attacks. The EPA is now in agreement with this assessment, and

we should all be proud of the strong bipartisan cooperation with which Congress

and the Administration have approached this issue.

We must strike the correct balance between public access to this information for

legitimate purposes and the very real need to protect American citizens from the

real threats of terrorism. Appropriate and necessary restriction of the worst case

scenario information by law enforcement and/or national security authorities and

record-keeping on requesters will greatly improve legislation that accurately identifies the problem, but does not provide a solution.

On behalf of our National President Gil Gallegos and the membership of the Fraternal Order of Police, I would like to applaud Congressman Bliley for his leadership on this issue. I sincerely hope that my testimony here today will improve H.R.

1790 to protect our nation’s chemical facilities from terrorist attack without compromising the public’s right to know.

I would like to thank you, Mr. Chairman and the members of this distinguished

Subcommittee for the opportunity to share with you the views of the F.O.P. on this

important matter. If you have questions, I would be pleased to answer them.

Mr. DEAL. Thank you, Sergeant.

Mr. Gablehouse.

STATEMENT OF TIMOTHY R. GABLEHOUSE

Mr. GABLEHOUSE. Mr. Chairman, and, members of the subcommittee, thank you very much for the opportunity to testify yet

again before you on this matter.

I am testifying today as the chair of the LEPC for Jefferson

County, Colorado, and as Representative DeGette indicated, I am

also involved in some other activities in Colorado.

I am greatly concerned with the impact of this proposal on the

normal, routine operations of local emergency planning committees.

LEPC’s are very much about communication. They are about local

discussions on accident prevention and emergency management.

Criminal sanctions for communication is an inherently chilling

proposition.

We have also not talked about the Emergency Planning Community Right-to-Know Act. EPCRA contains independent provisions

for public access to information, independent of FOIA. This proposal creates an absolute conflict between those provisions and the

provisions that would apply here. That is a problem for an LEPC.

It is important to understand what LEPC’s do, because LEPC’s

are no longer simply related to the very limited kinds of activities

that happen under EPCRA. They do that certainly, but many function as the local emergency medical council. Many function as a

disaster and emergency preparedness agency. Many function in
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wildfire management; they function in zoning and land use activities. They deal with cross-boundaries issues. I mean, frankly, I

have recent conversations with Wyoming LEPC’s about crossboundary incidents. They communicate with the hazardous materials’ teams and fire departments. Many of them are active in enforcement of fire code issues in their local communities. They do

their own kinds of calculations on accident scenarios today, because

accident scenarios are a relevant part of all those sorts of activities.

You cannot do relevant emergency planning if you do not have a

sense of what kind of scenario you are going to face. Otherwise, you

are walking into a dark room—not advisable.

People belong to these LEPC’s because they are interested in

these issues. A large variety of folks belong. Press—radio, TV, print

journalists belong to LEPC’s. Members of industry belong to

LEPC’s. My LEPC is almost a third, industry representatives.

Members of the general public, environmental activists, community

activists—and, yes, even State and local officials belong to my

LEPC.

Who attends our meetings? Darn near anybody shows up at

meetings. We get Federal people at our meetings; we get members

of the public walking in because they are lost; we get all sorts of

folks. Okay?

If I look at this bill, I have to conclude that, perhaps, I can’t hold

public meetings. Are we going to preempt open meeting laws in

States, as well as public records laws? Can I have a conversation

about an RMP? Can I distribute copies within my LEPC to discuss?

Not at all clear that I can, especially if members of the public are

there—people who are not officially members of the committee;

they just happen to be interested that day. That is a problem.

Many, I suspect, will resign from the LEPC, rather than take the

risk of criminal sanctions for their activities. If, for example, it is

clear that LEPC members are going to be State and local officials,

industry representatives are going to have a very difficult time,

then, going out and talking to affected communities about what is

in their own company’s risk management plan.

If State and local officials aren’t represented by LEPC members,

then, it is going to be very difficult for us to get any kind of meaningful information to conduct the kind of planning activities that

we ought to be conducting.

I recognize that there is some reliance on the fact that supposedly what LEPC’s do is a Federal task, in order to avoid first

amendment issues with this bill. In fact, I think that reliance is

well-misplaced. In fact, what LEPC’s do is much, much broader

than the activities defined by EPCRA. We engage in many, many

activities that are outside the scope of what that statute suggests

we should do.

Does that mean I can no longer go talk to the planning board or

the school district about the risks associated with certain kinds of

land use and zoning? I certainly trust not. But if so, then I am very

likely in violation of these provisions, which I think is not appropriate.

I think I need to talk briefly about what is and is not in worstcase scenarios and offsite consequences. They are not recipes for

causing incidents. There is no information here that would tell any-
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body how to do anything. Frankly, as the Denver Post article that

was talked about earlier today suggests, you need not be a rocket

scientist to understand that propane tanks explode, that large

tanks containing flammable placards probably have stuff inside

that will burn. This is not an inherently mysterious thing.

Information is very important to the public. People want to understand what risks they face.

We have a choice. Either we can have reliable information, we

could have information that comes from a Government program in

a data base accessible by people who are interested, or we could

have rampant speculation and guesswork. I have faced rampant

speculation and guesswork about accident scenarios. I have listened to people describe to planning and zoning commissions outrageous possible incidents that can occur from facilities.

Absent access to a reliable data base, I have no good way to refute that, other than calculating the worst-case scenario, myself—

which I am capable of doing; I can do that under this rule. I can

do the same thing a company does, but I am not at all certain that

I can, then, publicly discuss that without being a criminal. That is

a significant problem.

I want to close by saying that there is an obligation of the Clean

Air Act called the ‘‘general duty clause.’’ Risk management plan is

only a small subset of how a company might demonstrate its compliance with the general duty clause. Companies are clearly required for their own facility’s security to prevent accidents, to take

the other steps and measures they need to, to keep accidents from

happening. Okay?

I am terribly troubled by the concept that what we are doing

here is, in fact, enhancing facility security. In fact, the bulk of facility security issues, accident prevention issues, emergency management issues are inherently local. They are a conversation between

our HAZMAT team—which is, by the way, a 501(c)(3), so I don’t

know that I could discuss this stuff with them—and that facility,

and the LEPC in that facility.

If I don’t have access to information, if I am not certain what is

going on in that facility, then you are going to need something else,

much along the lines of what has been suggested by Representative

Waxman. And I certainly don’t believe that we ought to substitute

command and control programs on that scale, of what is inherently

a local matter.

Thank you. I would be happy to take questions.

[The prepared statement of Timothy R. Gablehouse follows:]

PREPARED STATEMENT OF TIMOTHY R. GABLEHOUSE, CHAIR, JEFFERSON COUNTY

COLORADO LOCAL EMERGENCY PLANNING COMMITTEE AND MEMBER, COLORADO

EMERGENCY PLANNING COMMISSION

Mr. Chairman and Members of the Subcommittee, I very much appreciate this opportunity to testify regarding the proposed bill, ‘‘The Chemical Safety Information

and Site Security Act of 1999.’’ My comments today will focus on the practical problems and difficulties a Bill such as this will create for the men and women who

work and live in the communities of this nation and are engaged in emergency preparedness and response.

As with the Emergency Planning and Community Right-to-Know Act, the burden

and responsibility of understanding and working with the federal emergency planning and response programs falls to the people at the local level. It is at this local

level that Local Emergency Planning Committees operate. LEPC members include

government employees, members of the public, representatives of facilities, consult-
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ants and even the press. I have been a member of the Jefferson County Committee

since it was formed in 1987 and have been its chair for over four years.

As an LEPC chair I am required to discuss emergency planning and preparedness

issues with a wide range of individuals and groups. These include elected officials,

response agencies, emergency medical services groups, hospitals, schools, the business community and the public. The Emergency Planning and Community Rightto-Know Act requires me to disseminate emergency planning information to the

public. The Colorado open records statute also makes all of the information possessed by the LEPC public information and accessible to the public.

Possible accident scenarios are an important part of the emergency planning and

preparedness information that needs to be communicated. We need to anticipate

and plan for the type of incident that can occur at a facility. Either through the

work of the response agencies, our own calculations or by direct request to the facility, we obtain and communicate accident scenario information for preparedness purposes. While not necessarily identical to the off-site consequence information of the

EPA Risk Management Planning Program, the information has the same intent and

is quite similar.

When it comes to risk management plan information we already have members

of the public asking for off-site consequence data. Some have even made efforts to

calculate it themselves from other information already available. The off-site consequence data will be of great value for emergency planning and preparedness and

it should be expected that responders, planners and public will be interested and

want the information.

This proposed Bill will greatly complicate this process and will interfere with this

communication. If passed, I am likely to be in violation and subject to its sanctions.

At the very least this Bill will be in direct conflict with the requirements imposed

on LEPCs by other statutes, federal and state. This is not a statement made out

of some zealotry, but rather a statement of the problems I and other LEPC chairs

and members will face from the conflicts of law this Bill creates.

Some examples are appropriate:

—It is very uncertain whether or not an LEPC chair or its members are State or

local officers. They are typically not employees.

—We cannot tell whether or not ‘‘official uses’’ include our emergency planning and

preparedness functions under the Emergency Planning and Community Rightto-Know Act nor whether or not it includes discussions with responders, the

public and others.

—As an LEPC we will want to obtain all of the risk management plans for facilities

in our area and all of the plans for facilities that have off-site consequences that

impact our area, including those that cross state boundaries. This bill does not

necessarily provide a mechanism where we will actually obtain the information.

—An LEPC will want to manage this information electronically. It is very unclear

whether an LEPC can convert the information to electronic form and then disseminate the information to all the various groups that use the information.

—If I am in possession of risk management plan information, regardless of how it

was obtained, I am apparently barred from disclosing the information, which

would be a violation of the Emergency Planning and Community Right-to-Know

Act as well as State statutes. It would appear that a violation potentially occurs

even if the information is obtained directly from the facility or when our LEPC

meets to discuss emergency preparedness matters.

—LEPCs in State border areas are apparently barred from talking to each other

about cross-boundary emergencies. They are already working on these issues

and this Bill could bring these efforts to a halt.

—We have no idea what ‘‘an electronic means of ranking stationary sources’’ means

and so it would be very difficult to know if our electronic database would be

lawful.

—If I as an LEPC chair calculated off-site consequence information from other data

supplied by a company, or if the company supplies me the information directly,

I am apparently barred from communicating this information to a community

group or school as part of shelter-in-place or evacuation discussions. It is not

possible to have a meaningful conversation with community groups about how

to protect themselves if we do not discuss the accident scenarios they may face.

We have these conversations now and they will undoubtedly continue. It is

frankly unbelievable that Congress would attempt to restrict my ‘‘speech’’ on

these topics especially if I generated the information.

—Apparently I have to follow EPA guidance on how to disseminate information or

suffer sanctions under this Bill. There is no provision made in this Bill regarding how I will learn of this guidance, be able to comment on its development

or otherwise determine when or how I might violate this guidance. It is very
65

troubling that I might be subject to criminal sanctions for not following something as ephemeral as guidance. It is additionally troubling that this guidance

will not even be subject to judicial review regarding fundamental issues relating

to due process.

—Many LEPCs include as their members representatives of companies that are preparing risk management plans. Under this Bill those members appear to be

subject to criminal sanctions for disclosing the information in their plans to the

LEPC or the public.

It also is appropriate to point out to Congress that this sort of information is already being disclosed by LEPCs and facilities. In the Denver Post for this past Sunday there was a lengthy article on the risk management plan program as being implemented in Adams County, which is next to Jefferson County and runs across the

Northern part of the Denver Metro area. In this article, the LEPC and facilities discuss worst case scenarios and report on a video they have made to depict these scenarios.

The intent of this project is reported by the LEPC Chair as ‘‘an attempt to educate the public and allay unwarranted fears.’’ An industry spokesman is quoted as

describing his facilities’ worst case scenario as ‘‘If the leak happened on a day during a temperature inversion with light winds, a tear-shaped gas plume could spread

as far a s15 miles.’’ He went on to say ‘‘Some feel its silly to give a blueprint of

a company’s vulnerable points to potential terrorists and saboteurs, but any terrorist group worth its gunpowder probably already has that kind of knowledge.’’

Rather than promote this sort of communication, it appears that this Bill would

not only prevent this exchange but probably criminalize it. This is not consistent

with the position I heard industry representatives take before this Subcommittee.

In fact, I believe that those representatives agreed that the LEPC was a key player

in understanding and using risk management plan information.

It seems that the people proposing this Bill believe that there is no legitimate reason for members of the public to know about the accidents scenarios, prevention

plans and emergency response procedures practiced in the rest of the country or

even the next county or State. In my part of the country it is the public that is performing the function of accident preparedness and prevention. It is the public that

are members of volunteer fire departments and local emergency planning committees. There is no valid distinction between members of the public at large and the

people that perform these functions.

We learn from what we see others doing. It is precisely the information that we

can obtain from other States and companies that helps us improve. We use this information to prepare better plans and to ask better questions of facilities about accident prevention techniques.

The fundamental truth, that is sometimes lost in this debate, is that facilities are

responsible for their own security and accident prevention. The study I have conducted of this issue leads me to the conclusion that there is nothing in the 112r program and potential posting of information on the Internet that interferes with a facility’s ability to perform these functions. The information submitted under the 112r

program does not describe how to cause a chemical accident. The information does

not describe the security systems that facilities have in place.

If this Bill is adopted it we will lose the impact of public awareness and involvement in the accident prevention arena. Instead of a program that relies on local people interacting with local facilities to provide an impetus to accident prevention, we

will have a void. While my preference is local cooperation a viable program is dependant upon public access to information, the only other obvious approach is command and control. In that case it would be important to adopt something along the

lines of the ‘‘Chemical Security Act of 1999’’ proposed by Representative Waxman.

EPA has already decided not to post the off-site consequence information on the

Internet. I am prepared to live with that decision only because the full information

will be available at the State and local level. This Bill destroys that potential. Offsite consequence information is desired and any vacuum will be filled. I believe that

it is more dangerous to promote misinformation than it is to take the risk that

someone will misuse accurate information. This Bill is unnecessary and inappropriate.

Mr. DEAL. Thank you.

Mr. Sloan.

STATEMENT OF THOMAS W. SLOAN

Mr. SLOAN. Thank you, Mr. Chairman.
66

I am Tom Sloan, State librarian of Delaware. It is an honor to

be here today, and I am here on behalf of the American Library

Association.

My remarks relate to section 2, the distribution of EPA information to libraries that participate in the Federal Depository Library

Program.

The issues addressed in this bill regarding public access to Government information are extremely important to libraries and the

people and communities we serve. If enacted, H.R. 1790 would require that Federal depository libraries provide qualified or limited

access to the EPA information on risk management plans and other

EPA information that would be authorized to be publicly available.

In its current form, H.R. 1790 would cause serious problems for

the Nation’s depository libraries because this EPA material would

not be available to library users, as required under USC title 44.

Since the establishment of the Federal Depository Library Program in the early-19th century, this unique program has evolved

to become one of the most effective, efficient, and successful partnerships between the Federal Government and America’s libraries.

The depository program provided nearly 15 million copies of over

40,000 publications to more than 1,300 Federal depository libraries

in fiscal year 1998. There is at least one Federal depository library

in almost every congressional district. These libraries choose materials based upon the local needs of the people and the communities

they serve. Fifty-three depository libraries are regional depositories

and must accept all materials provided through the depository program.

Title 44 of the U.S. code provides for a wide array of Government

publications to be provided to depository libraries for public access.

Section 1902 requires that all Government publications of public

interest and educational value be made available to depository libraries except those classified for national security or those required for official use only or for strictly administrative or operational purposes.

Participating libraries agree to provide free access to Federal

Government information required through the depository programs. Libraries expend substantial local resources in processing,

organizing, disseminating, and preserving Federal Government information. Library costs include providing highly trained staff, adequate space, necessary supplemental materials, costly equipment,

and Internet connections. You can see that the infrastructure of

our Nation’s libraries and the specialized expertise and network of

Federal depository libraries is a special national resource for the

dissemination of Federal Government information.

These depository libraries are part of a partnership between the

Federal Government and local institutions and communities that

assure public access to U.S. Government information.

I will make several key points in my testimony regarding the

provisions for public access to EPA information.

First, as librarians, we oppose any restriction on the access to or

use of information by library users, nor would we agree to the collection or maintenance of records identifying individuals who access or use such information.
67

Second, with many other groups, we have supported the public’s

right to chemical accident information. We believe that the American public is entitled to access chemical hazard information that

will be collected and compiled by the EPA.

Third, restrictions on the use of Government information result

in barriers between users and the information they need. H.R. 1790

mandates providing chemical hazard information in Federal depository libraries, but it does not allow it to be copied. No policy is

going to stop the reality of copying occurring in 1,351 different libraries across this country.

H.R. 1790 authorizes the collection and maintenance of records

that reflect the identity of individuals and persons seeking chemical hazard information. Such a procedure is likely in violation of

many State statutes protecting the privacy and confidentiality of

the records of library users. For example, in my State, the Delaware code protects the confidentiality of library records that identify users and the materials that they use. In Delaware, a court

order is required for any exception to this provision. This is typical

of many other States.

To make Government information available in depository libraries and yet not allow for copying or certain kinds of uses that

would otherwise be legitimate is simply not possible to implement

and enforce in 1,300 libraries across the country. Nor is it feasible

to limit access only to paper copies when electronic formats may be

available.

Depository libraries do not have the ability to control legitimate

user behavior of Government information. For example, how does

a library staff member answer the question of, is this official use

or unofficial use of the information? Further, it is not appropriate

to put depository librarians and other library employees at risk of

liability and fines or jail time for perceived failure to comply with

the requirements of this bill.

I am not aware in the 16 years that I have worked in Federal

depository libraries of any previous item which has been provided

through this program with such restrictions. The restrictions in

this bill will set a very disturbing and dangerous precedent.

In the 1,352 Federal depository libraries located in nearly every

congressional district, we provide your constituents with equitable,

ready, and no-fee access to Federal Government information. The

library community is committed to upholding the principles we

share with you in providing public access to Government information.

We urge you to uphold the requirements of the Federal Depository Program which states that depository materials should not be

compromised by the imposition of fees or by any other conditions

or restrictions regarding their use.

We offer to share with you further information about the many

practical problems depository libraries will face in implementing

H.R. 1790.

In summary, as proposed, this bill places unreasonable restrictions on the use of library materials and may violate State statutes

protecting library user information. Further, infractions of H.R.

1790 place depository librarians and other library employees at the

risk of liability and fines or jail time.
68

We stand ready to work with all stakeholders involved with the

critical issues identified in H.R. 1790.

Thank you for this opportunity to speak.

[The prepared statement of Thomas W. Sloan follows:]

PREPARED STATEMENT OF THOMAS W. SLOAN, DIRECTOR, DELAWARE DIVISION OF

LIBRARIES ON BEHALF OF THE AMERICAN LIBRARY ASSOCIATION

Good afternoon. I am Tom W. Sloan, Director of the Delaware State Library, and

I am honored to appear before the House Subcommittee on Health and Environment

today on behalf of the American Library Association. ALA is a nonprofit educational

organization of 57,000 members, including librarians, library educators, information

specialists, library trustees, and friends of libraries representing public, school, academic, state, and specialized libraries.

I have been invited to appear before you today to address provisions of H.R. 1790,

the Chemical Safety Information and Site Security Act of 1999, that relate to Section

2 (c) and the distribution of offsite consequence analysis information to libraries

that participate in the Federal Depository Library Program.

The issues addressed in this bill regarding public access to government information and the public’s righttoknow are extremely important to libraries and the communities we serve. If enacted, H.R. 1790 would require that Federal depository libraries provide qualified or limited access to the EPA information on risk management plans and other information that would be authorized to be publicly available.

In its current form, H.R. 1790 would cause serious problems for the nation’s depository libraries because this material, under U.S.C. Title 44, should be freely and fully

available to all depository library users. This proposal will not work in the 1,351

Federal depository libraries across the country.

The principles of access to government information were first articulated and endorsed by our Nation’s founders who believed them to be inherent to our democratic

society and a necessary means of enabling our citizens, as taxpayers, to hold their

government accountable. Since the establishment of the Federal Depository Library

Program (FDLP) in the early 19th century, this unique program has evolved to become one of the most effective, efficient and successful partnerships between the

Federal government and the American public.

The FDLP program provided nearly 15 million copies of over 40,000 publications

to the 1351 libraries in the depository program in FY’98. There is at least one selective depository library in almost every congressional district that choose materials

based upon their local needs and specialized collections. Fifty-three depository libraries are ‘‘regional’’ depositories and must accept ALL materials provided through

the FDLP.

Title 44 of the U.S. Code provides for a wide array of government publications

to be provided to depository libraries for public access. Section 1902 requires that

all government publications of public interest and educational value, except those

classified for national security, or those required for official use only or for strictly

administrative or operational purposes, be made available to depository libraries.

Participating libraries agree to provide FREE access to the federal information

they receive at no cost, but, they must provide the resources to receive and process

the materials, catalog and organize the materials for effective use within their institutions by their clientele, and then assist people in the process of identifying and

locating the information they need.

You can see that the infrastructure of our nation’s libraries, the specialized expertise of librarians, and the network of federal depository libraries, are a special national resource for the dissemination of Federal government information. These depository libraries are part of the partnership between the Federal government and

local institutions and communities that assure public access to the information produced by the U.S. government.

I will make three key points in my testimony regarding the provisions for public

access to risk management plans submitted to the Environment Protection Agency

(EPA):

First, as information specialists and public access advocates, we believe that the

American public is entitled to the information related to chemical hazards that will

be collected and compiled by the EPA.

Second, as librarians, we would oppose any restrictions on the access to or use

of information products by our patrons, nor would we agree to the collection or

maintenance of records identifying individuals who accessed or used such information.
69

Third, as librarians serving the public in Federal depository libraries, we know

first-hand, on a daily basis, the importance and impact that government information

has on the health and lives of all Americans, on the economic wellbeing of our nation and on the preservation of our democracy.

Regarding the first point, with many other groups, we have supported the public’s

right to know about chemical accident risks. We believe that the American public

is entitled to the information related to chemical hazards collected and compiled by

the EPA.

Regarding our second point, restrictions on the use of government information

place service and other barriers between users and the information they need, and

may inhibit users from going through special procedures to ask for them. Having

to ask whether a potential user meets required qualifications in order to use certain

government information would be in violation of most libraries’ own policies. It may

well be in violation of state statutes protecting the confidentiality of library records

identifying users. Almost all states have adopted such statutes.

For instance, the Delaware Code protects the confidentiality of library records

that identify users, and requires a court order for any exceptions to this provision.

This is typical of many state statutes.

To make government information available in depository libraries, and yet not

allow for copying or certain kinds of uses that would otherwise be legitimate is simply not possible. Nor it is feasible to limit access only to paper copies when electronic formats may be available. Depository libraries do not have the ability to control legitimate user behavior of government information they make publicly available in their collections, which raises the question of who defines and what is ‘‘official use’’? And, the imposition of any type of fees violates the principles of ‘‘no-fee’’

public access.

Further, it is not appropriate to put depository librarians and other library employees at risk of liability and fines or jail time, for perceived failure to comply with

the requirements of this bill.

I am not aware of any previous item that has come through the Federal depository library program with such restrictions. The restrictions in this bill would set

a very disturbing and dangerous precedent are are unworkable at a very practical

level.

Third, public access to government information is a basic right of the American

public based on principles that Congress and the library community have long affirmed are essential to our democratic society. As stated by Thomas Jefferson in

1816, ‘‘If we are to guard against ignorance and remain free, it is the responsibility

of every American to be informed.’’ Since the establishment of the Federal Depository

Library Program (FDLP) in the early 19th century, this unique program has evolved

to become one of the most effective, efficient and successful partnerships between

the Federal government and the American public. Your constituents have equitable,

ready, efficient and nofee access to Federal government information, created with

their tax dollars, through the collections and services provided by their local depository libraries.

The success of the FDLP cannot be measured without acknowledging the substantial costs that participating depository libraries expend in order to provide your constituents access to federal government information in both print and electronic formats. These costs include providing highly trained staff, adequate space, necessary

additional materials, costly equipment, and Internet connections. In addition, depository librarians are committed to upholding the principles of public access and the

requirements of the Program that unequivocally state that access to depository materials should not be by compromised by the imposition of fees or any other conditions or restrictions about their use.

We stand ready to work with all stakeholders involved with this critical issue as

debate on this moves forward. Thank you for the opportunity to be here today.

Mr. DEAL. Thank you.

Mr. Strader.

STATEMENT OF LOWELL P. STRADER

Mr STRADER. Mr. Chairman, members of the committee, I will

try to make my remarks very brief and without being repetitive of

what has already been said.

My name is Lowell Strader; I am an international representative

of the PACE International Union, which stands for the Paper, Al-
70

lied-Industrial, Chemical, and Energy Workers International

Union.

Our union represents 320,000 workers who are employed nationwide in the paper, allied-industrial, chemical, pharmaceutical, oil

refining, and nuclear industries.

Thank you very much for the opportunity to appear before you

today.

Our organization is deeply concerned about the discussions and

proposed legislation surrounding the issue of the Environmental

Protection Agency not providing full disclosure of risk management

plans which contain the worst-case scenarios.

In order to have effective, ongoing hazard reduction, we feel

these plans must be fully disclosed in any form needed to encourage safer technologies, protect the public’s right to know, and to

overcome the complacency of the chemical industry. In the past, industry has not been required to produce any serious plan and timetable to reduce hazards. Yet, about 85 million people live within a

5-mile radius of a risk management plan facility.

The Clean Air Act requires the EPA to make this information

available to the public. Members of our organization are the very

first respondents to the site of a manufacturing accident that occurs in a facility where they work.

We feel there has not been enough effort placed on hazard reduction to allow us to readily accept limited disclosure about hazard

materials that our members work with.

Year after year, large numbers of people are killed or injured in

chemical accidents, not to mention the number of others that suffer

long-term consequences by being exposed to the dangerous chemicals.

As recent as last Thursday at the Coastal Corporation Refinery

in Corpus Cristi, Texas, an explosion hospitalized at least 10 people. The emergency management officials advised the local residents to shut their doors and windows and to remain inside.

The TV news reports aired interviews with members of the community who voiced concern that they were unable to find out what

chemical agents they had been exposed to. At least one news agency indicated to the viewing public that these concerns would end

in June when the law would require full disclosure of this type of

information to the public. Little did they know or report that there

was proposed legislation which would not require full disclosure.

We believe that there are many valid and important uses for risk

management plan information by people who work and live and

conduct business well beyond the immediate community where a

facility is located. On the other hand, we do not believe that this

disclosure would jeopardize or increase the risk of sabotage or terrorism. Industry has agreed that keeping this information off the

Internet would not deter a professional terrorist.

Risk management plans containing worst-case scenarios do not

include any information about how an industrial facility may be

sabotaged. There is no technical data about how to cause a worstcase event. There is no tank locations listed. In addition, there is

no plant security information; there is no classified information

contained. Anyone can get readily available information regarding

the largest and most dangerous facilities that store chemicals with-
71

out using the Internet. In addition, keeping worst-case scenarios off

the Internet offers no real protection to the communities. They can

only be protected by industry using safer chemicals, reduce dangerous storage, widen the buffer zones, and provide full information.

Chemical accidents have no respect for geographic boundaries.

We must have the freedom to communicate risk management plans

across State lines to educate and help protect our members in the

community.

Mr. Chairman, members of the committee, let us remind ourselves that it is not the knowledge that is harmful, rather it is the

lack of knowledge that is deadly to the people that we should all

be interested in protecting.

Thank you again for allowing me the opportunity to speak on behalf of the PACE International Union to explain our position on

this very important issue.

Thank you.

[The prepared statement of Lowell P. Strader follows:]

PREPARED STATEMENT OF LOWELL PRESTON STRADER ON BEHALF OF THE PAPER,

ALLIED-INDUSTRIAL, CHEMICAL AND ENERGY WORKERS INTERNATIONAL UNION

Mr. Chairman, Members of the Committee, my name is Lowell Preston Strader.

I am an International Representative of the Paper, Allied-Industrial, Chemical and

Energy Workers International Union, better known as PACE. Our union represents

320,000 workers who are employed nationwide in the paper, allied-industrial, chemical, pharmaceutical, oil refining and nuclear industries. Thank you for the opportunity to appear before you today.

Our organization is deeply concerned about the discussions and proposed legislation surrounding the issue of the Environmental Protection Agency (EPA) not providing full disclosure of Risk Management Plans (RMPs). 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. In order to have effective, ongoing hazard reduction, we feel these plans must be fully disclosed to encourage safer technologies, protect the public’s right to know and to overcome the complacency of the

chemical industry. In the past, industry has not been required to produce any serious plan and timetable to reduce hazards.

The Clean Air Act requires the EPA to implement a program to assist in the prevention of chemical accidents. As a result, EPA developed the Risk Management

Program Rule. This rule requires approximately 66,000 facilities that manage sufficient amounts of hazardous materials to develop a RMP and file it with the EPA.

These facilities include chemical manufacturers, refineries, water treatment facilities, ammonia refrigeration, propane storage, and semi-conductor fabrication. About

85 million people live within a five-mile radius of a RMP facility.

The Clean Air Act also requires the EPA to make this information available to

the public. Our organization became very concerned when we discovered that EPA

had made the decision on November 6, 1998 to not allow full access to RMP information. Through joint correspondence with other groups to EPA Administrator

Carol Browner, we have expressed our concern about EPA’s unwillingness to provide

full access to Risk Management Plans.

The members of our organization are the first respondents to the site of a manufacturing accident that occurs in the facility where they work. Their worksite may

also be next door, across the street, or miles away from a site where an incident

occurs, but still close enough to be affected. We feel there has not been enough effort

placed on hazard reduction to allow us to readily accept limited disclosure about

hazardous materials that our members work with and/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, to be able to say to workers,

their families and their communities that these facilities have nothing to hide. We

would like nothing better than to be able to honestly tell workers that these facilities are working to reduce hazards and that their RMPs are available in any form

necessary in order to prove that the facilities are really working towards true hazard reduction.
72

Although the numbers may vary depending on the source of statistics and period

of time examined, there is no doubt about the effects of chemical accidents on the

human body. Year after year, large numbers of people are killed or injured, not to

mention the number of others that suffer long-term consequences by being exposed

to certain substances.

As of February 3, 1999, the Chemical Safety Board was reviewing or investigating

accidents in Arizona, Arkansas, California, Florida, Georgia, Idaho, Iowa, three in

Louisiana, two each in Maryland, Michigan, Missouri, New Jersey, New York, Ohio,

Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, and Washington State.

As recent as last Thursday an explosion at the Coastal Corporation refinery in

Corpus Christi Texas hospitalized at least 10 people. Emergency management officials advised local residents to shut their doors and windows and remain indoors.

TV news reports aired interviews with members of the community who voiced concern that they were unable to find out what chemical agents they had been exposed

to. At least one news agency indicated to the viewing public that these concerns

should end in June when the law would require that this type of information be

made public. Little did they know or report that there was legislation proposed to

not require full disclosure.

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:

• Successful hazard reduction at one facility can be used to lower the hazards at

similar facilities in different states;

• Verify reported information by comparing data submitted elsewhere;

• Hold government accountable for reducing hazards nationwide;

• Develop studies on chemical hazards;

• Develop effective accident prevention programs;

• Conduct effective education and training programs;

• Link other worker safety and health databases; and

• Determine which facilities might pose ‘‘Year 2000’’ risks.

We strongly believe that our members, their families and the communities they

reside in will be made safer by these full disclosures or the RMPs. We do not believe

that this disclosure would jeopardize or increase the risk of these facilities to sabotage or terrorism.

In earlier discussions with the EPA, the industry agreed that a ‘‘professional terrorist’’ would not be deterred by keeping this information off the Internet. (For earlier discussion, see www.epagov/swcrccpp/pubs/rmp-rpt.html and look under Section

2.B. ‘‘Location of RMP* Info (Internet Issues).

Risk Management Plans do not include any information about how an industrial

facility may be sabotaged. There is no technical data about how to cause a ‘‘worst

case’’ event and no tank locations are listed. In addition, there is 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 disclosure of information 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 create a serious quantifiable plan and timeline to reduce hazards; and

• Full disclosure of RMPs is the essential key to access the impact of hazard reduction programs and activities.

Mr. Chairman, Members of the Committee, let us remind ourselves that it is not

the knowledge that is harmful, rather, it is the lack of knowledge that is deadly to

the people that we all should be interested in protecting.

Thank you again for allowing me the opportunity to speak on behalf of the PACE

International Union to explain our position to you today on this very important

issue.

Mr. DEAL. Thank you.

Thanks to all the panel members.

We will start the questioning.
73

Mr. Wheatley—or Chief Wheatley—as I understand it, you generally support the administration’s bill, but believe there needs to

be some fine-tuning in order to make certain as to what information is available to local emergency responders. Is that generally

correct?

Mr. WHEATLEY. Generally, sir, that is correct.

Mr. DEAL. And that further refining, with regard to what is and

is not going to be a criminal violation of any provisions under the

bill?

Mr. WHEATLEY. Yes. The term ‘‘guidance’’ needs to be further defined to explicitly determine what is and what is not a criminal activity.

Mr. DEAL. Do you feel that reasonable definitions and restraints

can be placed in this with some additional language in the bill?

Mr. WHEATLEY. We do.

Mr. DEAL. All right. So you generally support the concept of the

legislation, I assume?

Mr. WHEATLEY. We do.

Mr. DEAL. Mr. Susman, you have expressed the same concern

that we have heard the Justice Department and others express,

with regard to the fact that if we don’t do something by the June

21 deadline, as I understand it, that there exists the possibility of

the worst-case scenario information being placed on the Internet by

others than through the official channels. Do you have that very

real concern?

Mr. SUSMAN. Yes.

Mr. Chairman, the Government agencies involved looked at this

over quite some time to try to figure out whether it was possible

under present administrative mechanisms to create obstacles to

what they consider the worst-case disclosure scenario, which is

electronic, universal availability of the offsite consequence data.

There is no way to prevent that under present law. The Clean

Air Act, operating along with the Freedom of Information Act, will

require disclosure in electronic format after the 21st, if Congress

doesn’t act.

Mr. DEAL. Did I understand you to further say you would propose that EPA go through a formal rulemaking process as a way

for providing some further definitions in some of these areas that

are unclear?

Mr. SUSMAN. Yes, sir. The bill is unclear as to when EPA should

use rulemaking. It allows it to use guidance for everything and

then says, ‘‘Oh, by the way; you can make rules, also.’’ The main

difference, of course, is that rulemaking requires advanced publication, public comment, and an opportunity for judicial review. And

all of this can be compressed; there are procedures where this can

be done quickly, procedures for interim final rules that would allow

all of the due process and judicial review without undue delay.

Mr. DEAL. All right. Thank you.

Mr. Brown.

Mr. BROWN. Thank you, Mr. Chairman.

Mr. Gablehouse, welcome back for your quarterly trip to this

committee on this issue.

We heard testimony during the February oversight hearing that

some local emergency planning officials, State emergency planning
74

officials, and even private citizens can construct worst-case scenarios utilizing information that is available to the public today

like toxic release inventory information. And some have already

posted that information on the Internet. In other words, worst-case

scenario information can be created independent of the section 112

submissions. It is already out there; it is perfectly legal, apparently, to put it on the Internet. Correct?

Mr. GABLEHOUSE. Yes, sir; that is correct. It can be done. It is

done.

Mr. BROWN. Why is it fair, then, to subject State and local officials to criminal sanctions for electronically distributing this specific worst-case scenario information given to them under section

112, but not anyone else who may construct and electronically distribute their own worst-case scenarios utilizing other information

they might gather?

Mr. GABLEHOUSE. Well, it is certainly not fair, nor is it likely

constitutional to do that. I think that, as a practical matter, we are

trying to promote with the LEPC’s, communication with communities on accident prevention and emergency response, be it shelter-in-place requirements or zoning and land use requirements.

And I think it does not make sense to penalize the local folks who

are trying do this work in communicating with the people at the

local level who are interested.

Mr. BROWN. Mr. Strader, I appreciate your comments about potential accidents at chemical plants. And the Chemical Safety

Board estimates that 600,000 chemical incidents occurred over a

10-year period between 1987 through 1996. Your testimony states

that, ‘‘large numbers of people are killed or injured in chemical accidents.’’

Can you provide us with some idea of the numbers of workers

who have been injured or who have died in work-related chemical

accidents?

Mr STRADER. Off the top of my head, the last 3 months of 1998,

we lost 20 people—20 workers—as a result of industrial chemical

accidents.

And in the plant that I came out of, we lost several people, because our job was to produce TNT, nitroglycerine missile propellent, for the Government, and we lost several individuals there because of that.

Mr. BROWN. Can you tell us about that?

Mr STRADER. Well, at that time, this—the company that was in

charge when I worked there, they would not work with the workers

as far as sharing information.

Mr. BROWN. This was where and when?

Mr STRADER. This was at the Radford Army Ammunition Plant,

in Radford, Virginia. I worked there for 24 years, from 1966 until

1990—from 1966 until 1990.

As a good example, a father of seven children who I worked with

closely every day on the same shift, he was in a building which

contained two tanks of nitroglycerine—each tank containing 2,500

pounds of nitroglycerine. I live with this incident; it is a very emotional incident with me, because that was my job. And 3 months

prior to that, I did, through another part of the plant under the

contract, and he took over my job. This building containing the
75

tanks of nitroglycerine exploded. The tremendous amount of heat

that is generated by that type of explosion destroyed the facility as

well as the employee, and my good friend.

The scenario that was put out by the industry at that time was

that a suspicion of sabotage and that he had climbed the fence and

left the plant.

It took an act of the General Assembly of the State of Virginia

to finally get this gentleman declared dead so that his family could

get the insurance money and his benefits.

The employees had to watch for birds to pick up pieces of burnt

flesh that looked like wood and tried to get the birds to turn that

loose so it could be turned over to pathologists to determine that

it was human.

I was a pallbearer at that funeral, and if anyone has been a pallbearer at a funeral and knows what a casket weighs with a body

in it versus one with very small fragments, and especially when it

is a friend, it imprints in your mind forever. I live with that guilt

because he died instead of me of my working life, but I doubt if the

industry has lost one night of sleep over it.

The bottom line is we now have another contractor in that plant

who works very closely—shares all the information, whether it be

worst-case scenario or what. We have developed training programs

together with labor and the company and—knock on wood—we

have been very successful in preventing accidents since that time.

Mr. BROWN. Could I ask for unanimous consent for an extra

minute, Mr. Chairman?

Mr. DEAL. Yes.

Mr. BROWN. Thank you.

So this—you feel like you have the information you need to make

this plant safer?

Mr STRADER. Under the law that will have—go in effect in June,

we thought we would have.

Under this bill, we definitely feel we would be very restricted.

And we feel like that even the companies that want to work with

us will feel like they no longer can.

Mr. BROWN. If—you have 320,000 members of your union?

Mr STRADER. Yes, sir.

Mr. BROWN. Actually, that is all OCAW in a merger with you?

Mr STRADER. It was the former OCAW and the United

Paperworkers——

Mr. BROWN. Right.

Mr STRADER. [continuing] which merged into PACE in January

of this year.

Mr. BROWN. Have any of your union workers, to your knowledge,

ever been injured in a terrorist attack on a chemical facility?

Mr STRADER. Not to my knowledge; no, sir. I know of none.

Mr. BROWN. Okay. Thank you.

Mr. DEAL. Mr. Bilbray.

Mr. BILBRAY. Thank you, Mr. Chairman.

I guess I am sort of having feelings of deja vu, seeing that in

1984, I took over the disaster preparedness for a county in San

Diego which was small—group of 2.8 million.

But I guess I would have to refer to the law enforcement. One

of the concerns that I was always confronted with by law enforce-
76

ment was this issue of the right to know and the appropriate use

of it.

Now we talk about terrorists as if they are somebody way out

there, somebody coming in from a foreign country. But I would just

ask the representative of law enforcement, you know, over the last

few months, haven’t we learned a little bit about the fact that the

problem may not be something that is external that comes into our

country, but may be misguided individuals who are in our community? A good example would be young men and women that may

be using the Internet for access to this information to create havoc?

Mr. PFEIFER. Yes, sir; that is precisely one of our concerns.

We can probably never eliminate risk, but we can certainly try

to minimize risk. And one of the ways we can do that is to keep

this sensitive information restricted to those that have a need to

know it and will apply it in a the proper way.

I don’t believe it is the intent of the legislation to make it difficult for law enforcement, emergency medical services, or the fire

service to train, to handle one of these situations when they come

up. But, certainly, we need to understand that this information is

very sensitive.

In the wrong hands, it can be very dangerous. And we used the

term here ‘‘professional terrorist’’ today. I am not sure I know what

a professional terrorist is, but I do know the harm and the damage

that someone can do with information in an average intellect. And

we have seen that happen before. Unfortunately, we will probably

see it happen again. My concern is to limit the number of times it

happens, and to enable us to deal with it when it does happen.

Mr. BILBRAY. Well, let me just tell you as a father of five children. You can talk all you want about professional terrorism, but

I know the ability of young people to get information—the ability

to acquire it and to apply it. And, frankly, I think there is a gross

underestimating of just, you know, what our young people can do

if they are misguided, especially when you have mental illness

problems, substance abuse problems, and everything else. And we

are not talking openly and frankly about that, and I think we

ought to talk about it. We are not talking about professionals who

have been trained outside of this country. We are talking about,

you know, individuals who are living with us, right in our community.

I would—Orum, is it? Mr. Orum?

The administration has brought this legislation forward because

they identified what they think is a problem. And I have worked

with groups much like yours about trying to work out these balances.

First of all, do you mind if I ask you what your background is?

Is it in environmental science?

Mr. ORUM. I have a degree in political science from the University of Oregon. I have worked for 10 years as coordinator of the

Working Group on Community Right-to-Know. My full-time job is

working with these right-to-know issues, and before that, I worked

with Clean Water Action as their Chesapeake organizer for 3 years.

Mr. BILBRAY. So, are you trained in the law profession?

Mr. ORUM. No.

Mr. BILBRAY. Political science?
77

Mr. ORUM. Yes.

Mr. BILBRAY. Okay.

I try to encourage people not to get into political science if they

want to get into politics, but that is my personal hangup, because

my brother was in political science, and he ended up being a lawyer which was even worse.

The issue—I guess the issue of right to know and reducing—how

much of this do you see, working directly with source reduction?

And how much do you see where you have basically people that

make their money filing lawsuits under this—you know, different

clauses, like this right to know?

How many groups that you know basically have most of their activity or most of their public—is in source reduction, as opposed to

the litigation side?

Mr. ORUM. We work with about 1,500 different groups on and off

and depending on their intensity of involvement with particular

issues involving right-to-know around the country. And it is almost

always involved in somehow addressing the actual problem at the

site, as opposed to litigation.

I don’t know of how this legislation would assist with litigation.

I really don’t work on that side.

Mr. BILBRAY. Well, that is to your credit.

Mr. Chairman, I yield back.

Mr. DEAL. Mr. Waxman.

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

Under the law, chemical companies are supposed to let the public

know about their plans for an accident. And the accident could be

an explosion at the facility that could happen, or it could be like

we had in Bhopal, India—some chemicals getting into the air and

going into the surrounding community and poisoning people.

These are accidents we don’t want ever to have happen, and one

of the ways of preventing it is to ask the chemical companies to

come up with ideas on how to deal with this. If the public has access to this information, it is real pressure on the chemical companies to think through how to avoid this sort of thing from happening. That is the purpose of the law.

Now what we are being told is, if the public gets this information, terrorists will get the information. And I can see that argument, but, on the other hand, we had a hearing last week about

.50 caliber sniper rifles. And these .50 caliber sniper rifles can accurately fire armor-piercing incendiary bullets several thousand

feet, maybe as much as a mile away. And these weapons are easily

obtainable by people as young as 18, if they can afford it. It is obtainable, and terrorists, presumably, can afford these things.

Now if you had a chemical facility—Mr. Susman, I guess I should

address this to you—the location of chemical plants are not that

hard to find out. And if there is a large propane fuel tank, you

don’t have to have a lot of special expertise to identify it. And if

you are a terrorist, it is not going to take that much to realize that

you can do a lot of damage, that some of these facilities are vulnerable. And this is all publicly available already.

So, my question to you is, shouldn’t we be doing more to plan,

to protect the sites that may be vulnerable to terrorism? And that

can be done through looking at security at the site, screening of
78

personnel, buffer zones to protect the surrounding community,

what is called ‘‘hardening’’ these facilities. I mean these are important things to do in and of themselves.

We suggested that there be a task force convened to look at how

to protect these sites. Now, I would presume you would think that

would be a good idea?

We sent you a letter outlining our proposal. Did you——

Mr. SUSMAN. Yes, Congressman. And, in fact, section 3 of the legislation we are considering has a very comparable approach for law

enforcement agencies to drive that process of looking at security

issues.

Mr. WAXMAN. Well, the reason I would go to the stronger provision is that the bill has a discretionary study. I would mandate a

task force.

But there is another point that I am trying to get to. And I am

thinking through this issue—is why should we set up the most incredible roadblock for a lot of the public to get information that is

important for them to have for fear of terrorism when what we

ought to be addressing is how to protect these facilities that may

be vulnerable to a terrorist attack?

I mean I wouldn’t want the public not to know about a potential

leak of poisonous gas from a chemical facility for fear that a terrorist would know about it. And, yet, here is the facility, and a terrorist would know here is a facility that might be vulnerable. They

may have one of these .50 caliber sniper rifles that can send an incendiary bullet in there and blow the thing up.

So I am trying to balance out what we are accomplishing with

this legislation.

What I know we are accomplishing with this legislation is we are

going to make people who have the information possibly criminally

liable if they let the public know about it, and that doesn’t strike

me as reasonable. I know with this legislation, we are going to do

something that is completely unprecedented. We are going to have

the information filed with the libraries, but if anybody at the library allows a citizen to copy the information in the library, they

can be criminally liable. This is—this doesn’t strike me to be at the

heart of the first amendment, and also the purpose of the right-toknow laws, which is the public ought to be participating in information by getting information that will empower them to see

whether these facilities are doing what is necessary to protect

them.

Anybody want to respond to this?

Do we need to stop the public from knowing what you are doing

at the chemical plants, Mr. Susman, to protect them, in order to

stop terrorists, when terrorists have such an easy target? And because they know where the chemical plants are, shouldn’t we be

putting our focus on protecting those chemical facilities that may

be vulnerable to terrorists without their ever having that knowledge of what is in a library?

Mr. SUSMAN. Two answers—the first and most direct one is that

the public, locally, will have access under this legislation. They will

be able to get copies of the plans. They will be able to look—they

can get them from EPA or the State government. We are not—we

may be limiting the ability of a national organization to go online
79

and look at all of the plans, but we specifically contemplate and

CMA supports local disclosure.

More importantly, Congressman, it seems to me that you are setting this up as a—we have a problem here and why look elsewhere? When we go to fight crime, just as when we go to fight pollution, we try to approach—and Congress has traditionally tried to

approach the subject—by looking at a variety of ways of dealing

with it. With crime, we don’t say, ‘‘Well, let’s raise penalties,’’ and

that is all we have to do. We also try to put more police on the

street. We also try to go after gun issues. We also have disclosure

laws like Megan’s Law. We fight crimes by a variety of different

approach.

We now have an issue here of chemical plant safety or the local

population, two threats. One is disclosure through accidents——

Mr. WAXMAN. Yes, but it seems to me——

Mr. SUSMAN. [continuing] another is terrorism disclosure——

Mr. WAXMAN. [continuing] you are going——

Mr. SUSMAN. [continuing] we ought to address both of them.

Mr. WAXMAN. You want to address both of them, but I am worried that in addressing the issue of the community’s right-to-know,

you are going over too glibly the ability of the people in the community to really know this information.

Maybe Mr. Gablehouse could comment on that, because I want

to get a balance——

Mr. SUSMAN. Sure.

Mr. WAXMAN. [continuing] of views on this, as we try to make up

our minds.

Will the public really get this information that everybody seems

to think they are entitled to?

Mr. GABLEHOUSE. I think it is rather doubtful, frankly. For example, it is not at all clear to me under this bill, that even the local

emergency planning committee can obtain the information electronically. It is very difficult to manage if I don’t it electronically.

It, obviously, impairs communication of the information if I am not

able to manage it in some sort of an electronic format.

I think there is grave doubt here as to whether or not I can share

that information, in a photocopy, at a public meeting, with members of the public present, and as has been I think very poignantly

testified to earlier. You know, there is people right at the scene

that are going to be most immediately impacted. They are people

that really do need to be a participant in the accident prevention.

So I believe, Congressman, your point is very well taken.

Mr. WAXMAN. Is it the ‘‘official use’’ idea not being defined? Is

that the problem?

Mr. GABLEHOUSE. Two issues that are problematic. One, whether

or not an LEPC is, in fact, a State or local official——

Mr. WAXMAN. Yes.

Mr. GABLEHOUSE. or employee. And the second one is what constituents ‘‘official use?’’ So I think there are a couple of issues here

that legally create difficulty for me.

Mr. WAXMAN. Mr. Chairman, my time is up, but I did want Mr.

Susman to be able to respond, if you would permit——

Mr. DEAL. Without objection.
80

Mr. WAXMAN. [continuing] because I did interrupt him to get another view.

Mr. SUSMAN. I must be reading a different bill, because it seems

relatively clear that when the language says, ‘‘the Administrator

may make available in electronic form offsite consequence analysis

information to a State or local government officer.’’ It is difficult to

say I don’t understand how States can get hold of electronic information.

And when the bill says, ‘‘that information may be paper form,

may be given out under restrictions, but may be given for the State

in which the office is located.’’ I don’t understand how one can say

that that is not provided in the bill.

So, either we are looking at different—this one is numbered

1790. Either we are looking at different bills, or I believe that these

are sort of hypotheticals that aren’t included in the legislation.

Mr. WAXMAN. Well, I guess our fear is that the criminal penalties

that would be imposed on local officials who give out information

would keep them from ever giving anybody any information for fear

that they are going to be hauled into court. That is a pretty chilling

idea that you might be breaking the law and be prosecuted for giving information to the people we ultimately want to be sure they

have the information.

So I think we ought to continue to look at this issue, because it

is a troubling one. And maybe we are talking about the same thing,

but maybe we are not.

Thank you, Mr. Chairman.

Mr. DEAL. I want to thank all the members of the panel for their

time today. We apologize for the delays because of the votes. We

do thank you for being patient and for your testimony. Thank you

for being with us.

The committee is adjourned.

[Whereupon, at 6:08 p.m., the subcommittee was adjourned.]
(81)

THE CHEMICAL SAFETY INFORMATION AND

SITE SECURITY ACT OF 1999

WEDNESDAY, MAY 26, 1999

HOUSE OF REPRESENTATIVES, COMMITTEE ON COMMERCE, SUBCOMMITTEE ON HEALTH AND THE ENVIRONMENT, Washington, DC.

The subcommittee met, pursuant to notice, at 2 p.m., in room

2322, Rayburn House Office Building, Hon. Michael Bilirakis,

(chairman) presiding.

Members present: Representatives Bilirakis, Burr, Bryant,

Brown, Waxman, Pallone, Stupak, Green, DeGette, Barrett, Capps,

and Hall.

Staff present: Joseph Stanko, majority counsel; Anthony Habib,

legislative clerk, and Alison Berkes, minority counsel.

Mr. BILIRAKIS. The hearing will come to order.

Good afternoon. On behalf of Mr. Brown and myself, I would like

welcome our panel of witnesses to today’s hearing on H.R. 1790,

the Chemical Safety Information and Site Security Act of 1999. Today’s hearing continues the subcommittee’s examination of H.R.

1790, and represents the second hearing that has been held on this

legislation.

Previously the subcommittee held a joint hearing on February

10, with the Subcommittee on Oversight and Investigations, concerning Internet postings of worst-case scenarios. As I stated during our last hearing, it is my intent to thoroughly examine the legislation drafted by the administration; and yet to also meet the

June 21 deadline of enactment of this very important bill. This will

require a lot of hard work. But if we can work productively together—and I am emphasize ‘‘together’’—the June 21 deadline presents an achievable goal. It may be a difficult goal; but it is far

from an impossible goal, given the past history of this committee

in meeting its obligations to the full House, and to the American

people.

In this regard, efforts are already underway at the committee’s

staff level to clarify drafting issues, and to solicit changes from the

administration concerning technical language of this bill. I am

hopeful that today’s hearing will provide further information and

perspective concerning this legislation, and will be helpful to the

process of bringing the bill to markup. I must reiterate: I have to

be responsible, here. We are running out of time.

Despite best efforts following last week’s hearing—and there

have been many efforts for the past few days on the part of both

the minority and the majority—we did not have one proposed
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change to H.R. 1790, which has been fully cleared by the administration. Even though the administration spent several months

drafting the proposed measure; and even though many changes did

not touch upon the issues that will be addressed by today’s hearing, this situation clearly must change. The administration must

give this measure the priority it deserves, and live up to the testimony it presented to this subcommittee just last week.

This being said, I look forward to receiving today’s testimony,

and acting quickly with regard to any additional changes to H.R.

1790 which may become necessary. Obviously the perspective of

State and local government, as well as interested citizens, is of

great importance to our consideration of H.R. 1790. Again, I want

to thank our witnesses for being here on relatively short notice. I

would now yield to Mr. Brown for an opening statement.

Mr. BROWN. Thank you very much, Mr. Chairman. I am pleased

we are holding this additional hearing on the Chemical Safety Information and Site Security Act, H.R. 1790. I am pleased to be

joined today by additional panelists to discuss the complicated

issues raised by this legislation. I want to thank our witnesses, all

of you, for coming on short notice; especially Ms. Southwell, who

I know overcame many challenges to be here out of deep concern

for the implications of this bill for local emergency planning committees and citizens.

In my statement at last week’s hearing, I outlined several issues

in H.R. 1790 that concerned many of us. Last week we lacked a

State perspective on the implications of this bill, and the importance of community access to worst-case scenario information. This

hearing will help fill that gap. In addition to testimony from the

witnesses who are here, we have written testimony for the record

from local officials, including Roxanne Qualls, Mayor of Cincinnati.

Along with my opening statement, I request unanimous consent,

Mr. Chairman, to submit a letter of testimony and two editorials

for the record. The letter, dated May 26, is from the Mayor of Cincinnati, as I said. The letter is to the chairman and to me. The testimony is from John Steiner, Vice Chairman of the Nebraska State

Emergency Response Commission. The two editorials are the May

20 and May 21 editorials from the Las Vegas Review Journal.

Mr. BILIRAKIS. Without objection.

[The information referred to follows:]

CITY OF CINCINNATI

OFFICE OF THE MAYOR

May 26, 1999

The Honorable MICHAEL BILIRAKIS, Chairman

The Honorable SHERROD BROWN, Ranking Member

Subcommittee on Health and Environment

Committee on Commerce

U.S. House of Representatives

Room 2125 Rayburn House Office Building

Washington, D.C. 20515-6115

DEAR CONGRESSMEN BILIRAKIS AND BROWN: Thank you for inviting me to speak

before the committee today. I am sorry I am unable to attend the meeting to testify

in person, but the hearing conflicts with the regularly scheduled meeting of the Cincinnati City Council. I appreciate the opportunity to submit written comments regarding H.R. 1790, the Chemical Safety Information and Site Security Act of 1999.

The City of Cincinnati estimates that about a dozen Cincinnati businesses maintain the threshold quantities of regulated substances and therefore must submit

their Risk Management Plans (RMP) to the EPA next month.
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The City of Cincinnati has worked hard to lay the groundwork for the release of

this information. The City realized early on that communities could be stunned by

the descriptions of the worse case scenarios which could take place in their midst.

We acted early to prepare our community for the release of these reports.

On February 5, 1997, I proposed that the City of Cincinnati establish a fund to

provide technical assistance for communities to review the Risk Management Plans.

To help citizens better understand the information in the RMPs, the City hosted

four (4) workshops this April for interested community groups. These workshops

were geared to help citizens understand the requirements of the EPA rule and to

equip community leaders to review and ask informed questions about facilities’

RMPs.

The City of Cincinnati is also researching the possibility of compiling all of the

RMP for the tri-state area and making these available to the public at the local library.

The total impact of H.R. 1790 on these community education and involvement initiatives is unclear. Most of the details regarding the ability of local elected officials

and staff members to communicate honestly with citizens would be developed as

part of the EPA’s guidance document, however, there is little doubt our public education and awareness efforts would be significantly hampered.

I have four major concerns about the proposed legislation I hope the committee

will consider.

1. Cincinnati is part of a tri-state area comprised of Southwest Ohio, Northern

Kentucky and Southeast Indiana. It seems that Section 2 (c)(4) of H.R. 1790 would

restrict the ability of these areas to work together to address major concerns. It is

unclear if the RMPs of facilities in Kentucky and Indiana would even be made available to environmental and safety personnel in the City of Cincinnati and vice versa.

This could greatly reduce our ability to prepare for any potential accident and could

increase the impact such a spill or leak might create.

2. Criminal penalties for the release of information place local staff and elected

officials in a precarious position. It would be unprecedented for local elected officials

to face the possibility of jail time based upon guidance from the EPA Administrator.

Such a proposal also puts public employees such as librarians, police, firefighters

and environmental management personnel at risk for criminal prosecution.

3. While the total impact of H.R. 1790 is unclear, the legislation in any form will

hamper local community education and preparedness efforts. The EPA Administrator’s guidance on these matters is to be developed without local government or public input and not subject to judicial review.

4. From a practical standpoint, restrictions on the release of information would

create a bureaucratic nightmare and limit the effectiveness of local safety initiatives. It is unclear what information may be shared, with whom and in what formats. The term ‘‘official use’’ is nebulous and provides no true direction to guide

local officials. Would local administrators need to check with an EPA database on

public requests before they could release any information to constituents?

Let me conclude by stating that the Risk Management Plans do not create any

additional risk. The risks already exist. Restricting the information on the plans will

only hamper the ability of cities and residents to prepare for possible accidents and

to work in partnership with facilities to create safer communities. The creation of

a national database would enable Cincinnati to look at similar facilities and determine the ‘‘best practices’’ in the field. The City could then work with companies and

communities to decrease safety risks locally.

Thank you once again for the opportunity to comment on this issue. I appreciate

your time and consideration.

Sincerely,

ROXANNE QUALLS

Mayor

PREPARED STATEMENT OF JOHN J. STEINAUER, ENVIRONMENTAL ENGINEER II, AND

AN EMERGENCY RESPONDER, LINCOLN-LANCASTER COUNTY HEALTH DEPARTMENT,

LINCOLN, NEBRASKA

Mr. Chairman, and Members of the Subcommittee, my name is John Steinauer.

I serve as an Environmental Engineer II and an Emergency Responder for the Lincoln-Lancaster County Health Department in Lincoln, Nebraska. I also serve as the

vice-chairman of the Nebraska State Emergency Response Commission as a representative of local health. The LLCHD has long developed and implemented environmental health programs that seek to reduce chemical hazards in our community.

In keeping with this record, LLCHD is currently seeking primary responsibility for
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implementing the Risk Management Program under Section 112(r) of the Clean Air

Act (CAA) for Lancaster County from the US EPA and participates in the implementation of several sections of the Emergency Planning and Community Right-toKnow Act (EPCRA) as a member of the Local Emergency Planning Committee for

Lancaster County. I also am assigned to the Department’s biological-terrorism program development team and am responsible for the associated coordination with

other Federal, State and local governments, and the private sector.

Coning from both a local perspective, as the coordinator of a local RMP program,

and the state perspective, as the Vice Chairman of the State Emergency Planning

Commission, and as a professional with thirteen years of experience in the emergency response and planning field, I am pleased to have this opportunity to discuss

the Administration’s proposed bill, ‘‘The Chemical Safety Information and Site Security Act of 1999,’’ H.R. 1790. I strongly oppose this bill for several important reasons:

1. The language in the bill is sometimes contradictory and is vague in many of the

important specifics regarding the use of electronic OCA information.

2. The need for local governments to track requests for OCA data using a national

database would be unduly burdensome and costly.

3. This bill were it enacted would make it unlawful for LEPCs, created by Congress

under EPCRA, 1986, to conduct the required planning and prevention efforts

with the necessary and required community participation and would prevent

zoning and community planning agencies from using the OCA data to determine zoning actions in any public forum.

4. The concern about the potential increase in hazard from terrorist use of OCA

data is understandable but appears to be based on overly sensationalized security concerns that clearly do not justify a law that prevents good hazard planning in communities across the United States.

The Language of the Bill

The language in the bill is contradictory concerning the EPA administrator’s ability to make electronic forms of the OCA data available to State and local governments. Section 2 (C)(2) states that:

‘‘The Administrator may make available in an electronic form off-site consequence analysis information to a State or local government officer or employee

only for official use.’’

Where Section 2(C)(4) states that:

‘‘At the request of a State or local government officer acting in his or her official

capacity, the Administrator may provide to such officer in paper form, only for

official use, the off-site consequence analysis information submitted . . .’’

The LLCHD is strongly opposed to any language that would limit local governments’ ability to manage chemical hazard information in an electronic form. The

value of the electronic information comes with it’s incorporation into Geographic Information System (GIS) that allow for extensive hazard analysis, use for community

response planning, use in zoning actions and community development planning, and

use in coordinating an emergency response were the need to occur.

National Database of Requests for Information

The limits on what the Administrator may make available to the public under

Section 2(C)(3) are overly ambiguous. The need to create a national database to

track requests for OCA data as required by Section 2(C)(9) would impose a significant burden on local governments working with their communities in response planning. Section 2(C)(5) would require that the local government follow the same guidelines as an Officer of the United States. More importantly, there is no provision for

use of the information in public forum meetings.

LEPC Planning Activities Made Unlawful

Following the yet to be determined guidelines that would allow only a limited

number of copies of OCA data to be released to a single requestor in a paper form

or in any other form only as authorized by the Administrator (Section 2(C)(7)),

would make the chemical hazard planning activities of Local Emergency Planning

Committees throughout the United States a crime punishable by a year in jail and

a fine or both.

The Emergency Planning and Community Right-to-Know Act of 1986 created

State Emergency Response Commissions in all 50 States, Indian Tribes (TERC), and

other US territories. These SERCs in turn determine planning districts in their

states and appoint LEPC members. EPCRA requires LEPC membership to include

a variety of categories of people—emergency responders, public health professionals,

the media, transportation and industry representatives, and public interest groups.
85

In the State of Nebraska there are 93 Counties and 87 LEPCs, although the number

of LEPCs is changing. LEPCs are mostly volunteer organizations.

The function of the LEPC is to develop community plans to respond to and prevent, where possible, releases of hazardous chemicals that can and do harm communities. The LEPC effort to plan for and prevent hazardous chemical releases is a

highly public process; a process enabled by computerized hazard ranking of information such as OCA information. The ranking criteria enables the evaluation of risk,

helps to assign priorities for resource application were an accident to occur, and allows for adequate training, equipment purchase, and exercise of emergency plans

to ensure they function.

The LEPCs in Nebraska are beginning to function and make liaison with other

local public agencies, boards, committees, and commissions. Imagine the usefulness

of the OCA data to a planning and zoning commission attempting to identify areas

for community growth, placement of hospitals, and other essential public services.

Now imagine limiting or eliminating the ability for zoning commissions to use that

data to plan community growth. To take the example a step further, think of explaining to a citizen who may have had family harmed in a chemical emergency why

a day care center was built in a hazard zone identified in a Federal Program, but

could not be considered because of the limitations in the use of the information that

would result with passage of this bill.

Finally, the Clean Air Act Amendments of 1990, Section 112(r) requires that Stationary Sources covered by the act develop Risk Management Plans (RMP) and coordinate with the LEPCs and the coordination information be written into the community plan. The emergency response plan must be available to the public for review—no limitations. This bill contradicts the purpose and function of both EPCRA

and Section 112(r) of the CAAA.

Terrorist Use of OCA Data

Moving on to consider the purpose behind this legislation, the concept of a increased terrorist threat. I accept the notion that the OCA data may provide a more

convenient source of information for terrorists who may desire to cause a chemical

hazard to a community. But I disagree that increased convenience offers a significant increase in risk.

Having served as an Officer in the United States Marine Corps and as a veteran

of the Gulf war, I have had the opportunity to study terrorism to a degree sufficient

that I find the argument that OCA data would enable a terrorist to identify potential targets difficult to accept. First, terrorists do not set off on random acts of violence, they plan and plan, and then plan some more. In most cases a terrorist knows

as much about the target before attacking it, then the target knows about themselves. Second, all the information necessary to rank facilities by hazard on a national scale already is available on the Internet in many forms, in EPCRA Tier Two

Chemical Inventories, and in libraries around the world in business references and

periodicals. Third, the presumption that a terrorist is after the most casualties possible for their effort is not proven by history, or by recent events. Terrorists do not

need a ranking of ‘‘worst cases’’ to choose the target that creates terror, they choose

one that has symbolic importance and causes harm to few. The act of violence is

the means, not the message. Terrorists are after political change via the use of violence. In short everything an international terrorist needs to identify and rank hazards for planning an attack is already present in the public domain, OCA data

changes little.

Some would suggest it is not the international terrorist that is the concern, but

a local domestic disturbance group and individual with an agenda. Anyone who lives

in a community for any length of time can identify potential targets for terrorism,

without the use of OCA data.

I believe that everyone would agree that reducing risk to the public from chemical

released is the goal of this bill, as well as EPCRA and the RMP program. LEPCs

in every city and county in the United States are working, more now than ever, to

reduce the many known and demonstrated risks for chemical emergencies that are

present in their communities. When releases do occur, they are a result of many

causes rarely if ever associated with terrorism. What kind of message will passing

this bill send to the thousands of volunteer LEPC members throughout the country?

Are we saying that in their effort to plan for and prevent chemical emergencies in

the public forum in which they must operate, that they are committing a crime!

What kind of public policy sacrifices the known substantial improvements to public

safety created by EPCRA and Section 112(r) of the CAAA over fears based on sensationalizing the terrorist threat to a level not proven or based on fact but on supposition and sensationalism.
86

I would characterize the harm this bill would do to the effort to continue the development of emergency plans at the local level, as many times more risky than the

very small increase in potential for harm done by the public availability of OCA

data that may be obtained by terrorists. Especially when they already have access

to all the information they need to plan a terrorist attack.

Summary

I disagree with the Department of Justice (DOJ) and the (EPA), that if enacted,

the bill would preserve the important public health and safety benefits that public

access to risk information has been shown to achieve, while protecting against a potential threat from terrorists. This bill neither protects the public from harm presented them by terrorists, nor preserves the important public availability of information. I believe that this bill would actually increase risk to communities by eliminating one of the most important motivations for industry to minimize or eliminate

risks, that of public availability of risk information, active community-wide hazard

planning, and the accountability for community concerns the storage and use of hazardous chemicals demands.

[Thursday, May 20, 1999—The Las Vegas Review-Journal]

CITY

AREA CHEMICAL COMPANIES OUTLINE WORST-CASE ACCIDENT POSSIBILITIES

By Keith Rogers

Declaring a new era for chemical companies and the public, officials for three

plants in the Basic Management Inc. complex Wednesday night released their

worst-case accident scenarios, including one that would send out a toxic chlorine

cloud 18 miles across Las Vegas Valley.

The information, known as Risk Management Plans, will be submitted to the federal Environmental Protection Agency on June 21 as required by a 1990 amendment

to the Clean Air Act.

Internet users who log on to the agency’s Web site will not get to see the worstcase scenarios because the FBI, citing terrorism concerns, has recommended the

data be withheld unless citizens request that copies be mailed to them. Congress

is to decide whether the plans required for 66,000 facilities across the nation should

be posted.

Mark Zusy of the state Environmental Protection Division’s Chemical Accident

Prevention Branch said people could request worst-case scenarios from his office.

About 300 people attended Wednesday’s meeting at the Henderson Convention

Center. The event was sponsored by the Chemical Manufacturers and Users of

Southern Nevada, the trade group for the three BMI companies: Pioneer Chlor Alkali Co., Kerr-McGee Chemical Corp. and Titanium Metals Corp.

State and local emergency officials participated.

For Pioneer Chlor Alkali, the worst-case accident, based on failure of all safety

systems and certain atmospheric conditions, would release 150 tons of toxic chlorine

to the environment in 10 minutes. The chlorine would spread out at detectable levels as far as an 18-mile radius from the plant.

Emergency response officials said the Risk Management Plans were based on the

midlevel guideline, the highest levels that could occur without causing serious injuries that were not life threatening.

Evacuation and alternative plans such as taking shelter in place are being coordinated among the emergency response agencies and the companies.

‘‘In 1991, we had a major chlorine release and tried to evacuate people, but it cannot be done,’’ said Henderson Fire Chief Joe Hill, explaining why the shelter-inplace program was developed.

The program tells schools and residents through rapid-dialed recorded phone messages to stay inside buildings and tape doors and vents to prevent poisoned air from

entering.

The 1991 accident at Pioneer Chlor Alkali Co. involved a spill of 42 tons of liquid

chlorine that evaporated on contact with the air. The accident sent more than 300

people to hospitals for treatment after being exposed to the gas, a powerful irritant

to membranes of the eyes, nose and throat.

The accident was the nation’s second worst involving chlorine, and based on the

amount involved, delivered about one-fourth of the effects that would be expected

from Pioneer’s worst-case scenario.
87

One Henderson resident, Tom Powers, said after the meeting he felt confident

that progress on handling toxic chemicals safely had been made and that the meeting was a milestone.

‘‘People are at last learning how to get a hold of this thing,’’ he said. ‘‘They’re

doing a lot here. People aren’t too bright, and they don’t learn too fast, but we’re

getting there.’’Kerr-McGee listed five chemicals in its risk plans.

The company is a producer of manganese dioxide for alkaline batteries, boron trichloride for pharmaceuticals, and boron fibers for aircraft wings, golf clubs and fishing rods.

The worst-case scenarios for the chemicals range from a 14-ton release of hydrogen sulfide, which could affect an area nine miles from the plant, to a release of

almost 3 tons of boron trichloride that would reach one-quarter of a mile from the

plant.

The worst-case scenario for an accident at Titanium Metals involves the release

of about 1 ton of chlorine that would affect areas about one mile from the plant.

More information about the companies, their products and safety systems can be

accessed at the Web site www.cmusn.org.

[Friday, May 21, 1999—The Las Vegas Review-Journal]

EDITORIALS

WORST CASE

Under an amendment to the 1990 Clean Air Act, some 66,000 companies—including more than a dozen in Southern Nevada—must file reports with the federal government detailing their ‘‘worst-case’’ accident scenarios.

The regulation covers businesses that use and store certain chemicals, and is designed to ensure the companies and the communities in which they operate are prepared to handle various emergencies.

But the requirement also has the potential to provoke needless alarm, especially

given the fact that the law’s definition of ‘‘worst case scenario’’—in true bureaucratic

fashion—may not in some instances even be scientifically possible.

To that end, three Henderson companies deserve credit for co-sponsoring a meeting Wednesday night to put the legislation’s requirements into perspective—and to

signal their ongoing willingness to cooperate with local officials and residents in

case of an emergency.

The companies—Titanium Metals Corp., Pioneer Chlor Alkali Co., and KerrMcGee Chemical Corp.—are located in the BMI complex on a county island just

north of downtown Henderson.

Make no mistake: These companies deal with hazardous chemicals that can pose

a threat to the surrounding area—a liquid chlorine spill in 1991 at the Pioneer

plant led to the evacuation of 10,000 Henderson residents. Those who live near such

businesses deserve the opportunity to be well informed and should be aware of the

proper procedures in the event of an emergency.

That’s why Congress should decree that the reports be made available on the

Internet to citizens who want to view them. The FBI has argued against such openness, saying the information would then be too readily available to terrorists. But

repressing the reports would undermine the intent of the law. The FBI’s concerns

have little merit.

It’s important to keep in mind, though, that the ‘‘worst-case scenario’’ requirement

exists to force preparation for any contingency, no matter how remote: It doesn’t reflect an assessment of an incident’s probability.

Mr. BROWN. Mr. Chairman, I also request to include in the

record a letter I expect to receive today, perhaps before the conclusion of the hearing, from Chris Jones, Director of the Ohio EPA—

my State—again, which will be sent to me and to you.

Mr. BILIRAKIS. Without objection.

Mr. BROWN. I continue to be concerned with this legislation when

the implications of it are so vast. All the stakeholders in this process share a common interest: risk reduction. Achieving this goal

should not come at the expense of providing public access to this

important information. Local communities must be prepared to respond in worst-case scenarios. I believe that we are hurting, not

helping them if we withhold important information from them.
88

They have a right to know about hazards in their own communities

and their own workplaces.

Mr. Chairman, thank you again for this second hearing, and for

the opportunity to explore these issues in this hearing today.

Mr. BILIRAKIS. I thank the gentleman. Mr. Hall, any opening

statement?

Mr. HALL. Yes, Mr. Chairman. I also thank you for holding this

second hearing on H.R. 1790. Mr. Chairman, I truly appreciate

your efforts to include, also, as many interested parties as possible

in these very important deliberations. Additionally, I would like to

thank the administration for recognizing this problem, and for

bringing us legislation that is going to address it.

I know—as we all do—that H.R. 1790 has some faults. I worry

about any bill that has provisions that preempt State laws, as the

National Association of Attorneys General and the National Conference of State Legislatures have pointed out in their letters to all

of us regarding this legislation. Additionally, I don’t want to see

some librarian or some county official sitting in jail because they

handed out the wrong piece of paper. However, I also worry about

the implications of nonaction with respect to this situation.

We just cannot afford to sit idly by as the deadline approaches.

We all know what is wrong with this bill. So let us fix the problem

and send it to the President as quickly as we can. June 21 is not

that far away.

I thank the panel of witnesses for their participation in this

hearing. I look forward to hearing their testimony. I yield back the

balance of my time.

Mr. BILIRAKIS. I thank the gentleman. Without objection, the

opening statements of all members of the subcommittee are made

a part of the record.

[Additional statements submitted for the record follows:]

PREPARED STATEMENT OF HON. TOM BLILEY, CHAIRMAN, COMMITTEE ON COMMERCE

Thank you, Mr. Chairman. As I noted last week, the Administration’s proposal

would address the national security concerns that would result if we do not act by

June 21st to stop widespread posting of electronic worst-case scenario chemical release data.

The Administration’s proposal is long over-due. I first raised this issue last September, when the June 21st deadline for filing the worst-case scenarios was nine

months away. In October, EPA agreed that posting this information on the Internet

raised national security concerns and that EPA would not put worst-case scenarios

on its own website. EPA was silent about giving out the electronic database to third

parties. In February, before this subcommittee, EPA said that it opposed third parties having the worst-case scenario information in electronic format. EPA also said

that it would solve that problem. Finally, on May 7th, Administration proposed a

solution, and I introduced that proposal by request.

The Administration’s proposal seeks to prevent the widespread circulation of electronic worst-case scenarios data. EPA, FBI and DOJ all agree that would pose a

threat to national security. The proposal also seeks to ensure that local officials

have the risk information they need to plan and protect citizens, and that individuals have access to information concerning the risks associated with local chemical

facilities. Like many legislative proposals, however, there are some issues that require fine tuning. For example, we must ensure that citizens who perform public

duties, such volunteer firefighters and the LEPC members, have access to the data

they need. The criminal liability provision of this bill need careful review. The Committee must examine potential restrictions on library materials. These flaws can

and should be fixed, let us work together to address these issues.

Let me stress that no one here is advocating that we keep the worst-case scenario

information locked up or away from those communities nearby chemical facilities.
89

I, for one, certainly support making sure that these communities have access to all

information about the risks associated with their facilities. But we also must ensure

that the way this information is provided does not end up harming the very people

that Congress intended to protect. While no plan is foolproof, we certainly shouldn’t

do anything to make it easier for those who want to harm our nation and our neighbors.

Because we can achieve both of these goals without sacrificing the other, I believe

we must achieve both. The penalty for inaction is that, on June 21st, our national

security will be compromised by the release of a national, electronic targeting tool

available for use by terrorists from anywhere in the world.

I look forward to hearing from our panel today.

Thank you, Mr. Chairman.

PREPARED STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF CALIFORNIA

Mr. Chairman, thank you for holding this second hearing on H.R. 1790, the

‘‘Chemical Safety and Site Security Act of 1999.’’

At last week’s hearing we received testimony from the Administration, the Chemical Manufacturers Association, PACE International labor union, the Fraternal

Order of Police, the International Association of Fire Chiefs, and a representative

from a local emergency planning committee.

While some witnesses were supportive of this legislation and others very skeptical, all witnesses agreed that the public has a right-to-know about the risk of

chemical accidents in their communities.

Today we will hear the States’ perspectives as well as that of the National Environmental Trust and the American Society of Newspaper Editors. I want to thank

all of the witnesses for agreeing to appear on such short notice. Your testimony is

helping to bring an important balance to this debate.

H.R. 1790 would address the risk of terrorism solely by limiting the public’s rightto-know. This legislation ignores site security deficiencies at the nation’s chemical

facilities. This is a misguided approach and is counter to the testimony the Subcommittee has received and will receive today.

Last week, Ivan Fong of the Department of Justice testified that ‘‘site security

measures are as important as information security measures in reducing terrorist

risks.’’ Thomas Susman testified on behalf of the Chemical Manufacturers Association that it is important to address both site security and information security.

Mr. Billings—through his testimony today—has brought a recent government

publication to the attention of the Subcommittee that examines terrorism and chemical facilities. This publication by the Agency of Toxic Substances and Disease Registry notes that security at chemical plants ranges from fair to very poor. Amazingly, ATSDR notes that the security measures at abortion clinics is in general far

superior to the security at chemical plants.

This issue of site security versus the public’s right-to-know is well-illustrated by

a recent hearing held by the Government Reform Committee minority. We recently

examined the availability of long-range 50 caliber weapons. These sniper rifles are

among the most destructive and powerful weapons legally available in the United

States. These guns can fire specialized ammunition capable of piercing several

inches of armor or exploding on impact. In a hearing on May 3, 1999, undercover

investigators from the General Accounting Office (GAO) reported that they could

readily purchase these weapons and the armor-piercing ammunition they use. Although the general public has little awareness of these weapons, they are widely

available to anyone who is at least 18 years of age.

Chemical facilities are not secret facilities. A terrorist can easily locate a facility

through the phonebook, tradeshows, or by just touring industrial cities. Large propane fuel tanks take no special expertise to identify and can be located at chemical

facilities along with other fuel and chemical tanks.

A terrorist could use one of these high-powered weapons to explode a large propane tank at a chemical facility from up to a mile away. Such an explosion could

cause a major chemical release.

And this legislation would do nothing about it. Limiting the public’s right-to-know

would have no impact on making a chemical facility less vulnerable once a terrorist

has decided to attack. This legislation, however, could result in the community being

less prepared for such an attack.

Mr. Chairman, I am trying to work on this issue in an inclusive manner. I have

solicited the views of the Administration on this issue. I have written to the Chemical Manufacturer’s Association to get their recommendations on how to address site
90

security concerns. I requested that they respond by today, but unfortunately I have

not yet received an answer to my letter.

I look forward to receiving comments on the best ways to address site security

issues at chemical facilities, and moving legislation which will actually reduce hazards. I look forward to hearing from today’s witnesses.

PREPARED STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW JERSEY

Thank you, Mr. Chairman. I appreciate your cooperation in heeding the request

of many Democrats on this subcommittee for a second hearing on this important

topic. I am especially pleased to see environmental witnesses and a Representative

from Nescaum, representing the northeast states.

Last week, I emphasized my concerns regarding potential attempts to roll back

the public’s right to know about chemical accident risks in communities nationwide,

and highlighted numerous environmental and social action groups that echoed these

concerns.

I noticed that last week no one opposed public access to information on chemical

accident risks. The emphasis was, and should remain, in my opinion, on how to

maintain public access to information, while ensuring site security also is maintained.

Several members of this subcommittee, myself included, and some of last week’s

witnesses referred to alternative means to achieve site security so as not to jeopardize the public’s ‘‘right to know’’. I hope we will explore such alternatives further

during the course of today’s hearing.

I sincerely look forward to hearing from our witnesses and welcome their input

as to how we should proceed to address this important issue. I also hope the witnesses will provide their opinions—both positive and negative—on H.R. 1790. Thank

you, Mr. Chairman.

PREPARED STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF TEXAS

Thank you Mr. Chairman for scheduling this second hearing on H.R. 1790.

I believe your willingness to continue the hearings on this bill will help this subcommittee strike a fair balance between the public’s right-to-know and public safety.

Since the EPA announced its intention to post worst-case scenarios on the internet as part of the risk management plans, most of the 66,000 effected facilities and

almost every arm of law enforcement expressed concerns about the proposal.

They believed that providing this detailed information in such a public and easily

accessible format could help terrorists and other criminals easily identify possible

targets for attack.

While I understand these concerns I also believe citizens who live near these facilities have a right to know if they or their families could be placed in danger.

Moreover, state and local governments need this information to develop appropriate

rescue or evacuation plans.

While I believe H.R. 1790 is a well intentioned effort by the Committee’s chairman to solve the problem, I also believe it fails to take into account its impact on

volunteer fire fighters and emergency personnel, teachers, school principals, librarians and other non-state or local employees.

I hope today’s witnesses will help give some guidance to the committee and help

us craft a bill that meets the needs of everyone affected by potential worst-case-scenarios.

While well intentioned, this bill does some things like making state and local officials subject to criminal sanctions and preempting state Freedom of Information Act

laws that are not acceptable in their current form.

Again, I thank you for scheduling this hearing.

Mr. BILIRAKIS. There are five votes coming up. I think it would

be a good idea, though, if we could take at least one or two witnesses. Then we are going to have to break until we finish up with

our votes.

Let us start off. Our witnesses are the Honorable Leon G. Billings, Member, Maryland House of Delegates; Ms. Donna J.

Southwell, Ann Arbor City LEPC Member, Assistant Emergency
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Coordinator, Washtenaw County; Mr. Jason S. Grumet, Executive

Director, NESCAUM, Boston Massachusetts; Ms. Kathy M. Kinsey,

Assistant Attorney General for the State of Maryland; Mr. Thomas

Natan, Research Director, National Environmental Trust, and Mr.

Paul K. McMasters, First Amendment Ombudsman with the Freedom Forum.

Again, I welcome all of you here. Why don’t we kick it off with

Mr. Billings, and see how far we get? We are going to turn the

clock to 5 minutes. Of course, your submitted statements are made

part of the record. I would hope you would sort of complement

those, if you would. Mr. Billings, please proceed.

STATEMENTS OF HON. LEON G. BILLINGS, MEMBER, MARYLAND HOUSE OF DELEGATES; JASON S. GRUMET, EXECUTIVE DIRECTOR, NESCAUM; DONNA J. SOUTHWELL, ANN

ARBOR CITY LEPC MEMBER, ASSISTANT EMERGENCY COORDINATOR, WASHTENAW COUNTY LEPC, ENVIRONMENTAL

HEALTH, EDUCATION AND OUTREACH MANAGER FOR

WASHTENAW COUNTY, MICHIGAN; KATHY M. KINSEY, ASSISTANT ATTORNEY GENERAL, STATE OF MARYLAND; THOMAS NATAN, RESEARCH DIRECTOR, NATIONAL ENVIRONMENTAL TRUST; AND PAUL K. MCMASTERS, FIRST AMENDMENT OMBUDSMAN, FREEDOM FORUM, ON BEHALF OF THE

AMERICAN SOCIETY OF NEWSPAPER EDITORS

Mr. BILLINGS. Thank you Mr. Chairman. In recognition of your

time schedule and my other panelists, I will try to be relatively

brief.

First, you already have for the record, the testimony of the National Conference of State Legislatures, which is an important

piece of information. I hope you will pay attention to it. I am not

testifying for them. I am testifying as an individual, elected member of the Maryland Legislature, and as a person with some familiarity with the preemption provisions of the Federal environmental

laws.

The NCSL statement makes three points which are very important. First, States have an obligation to plan for and respond to

chemical releases that occur within their borders. In order to fulfill

these planning and response duties, States must have unimpeded

access to OCA information. This bill would impede that access. Second, States should be consulted during the development of Federal

policy governing public access to OCA information. This bill would

preclude that consultation. Third, H.R. 1790 preempts State freedom of information laws in order to limit or control distribution to

the public of OCA information. NCSL thinks that is an inappropriate policy. However, I would like to add to their testimony that

the general rule in our environmental laws that the preemption occurs only in the case of interstate commerce, e.g., aircraft emission

standards; or as a result of a Presidential finding that a preemptive action is in the paramount interest to the United States.

When this legislation was first called to my attention, I thought

at the time it was odd. While I had not read the text of the bill,

the news stories seem to suggest that we had a case of the law of

unintended consequences. I have now read the legislation. Let me
92

say first that the law this bill would seek to amend is just fine. It

is this legislation which is, at least, ill-conceived and misdirected.

The bill suggests that State and local governments, and the public should not have complete and easily recoverable access to information on the potential threat to communities posed by inherently

risky manufacturing activities. It appears that it would even preempt State laws and ordinances requiring similar information to be

gathered. In other words, States could not have their own laws

which gather the information and distribute it under their FOIA

laws. It would bar the public which lives in the vicinity of those

risky manufacturing activities from having the maximum available

information on the risks posed.

This legislation gives a broad ground in discretion to the administrator of EPA to withhold chemical risk data from State and local

agencies responsible for environmental emergency response. It

gives the administrator broad discretion with respect to the form

in which data is made available. It completely precludes the right

of a community to know the location and risks posed by specific

manufacturing facilities.

This legislation preempts the authority of States to conduct their

emergency reaction responsibility with the full resources necessary

to be effective, whether that information was generated under Federal or State law. This legislation also creates a new standard for

preemption. In effect, by authorizing EPA to determine when there

is substantial threat to public health and environment, it transfers

the primacy for protection of public health and environment from

the States, where it has been vested for the entire period of national environmental policy, to the EPA administrator. That is at

page nine, sub-section F. Even Senator Muskie and his colleagues

in the Democratic-controlled Congresses of the 1960’s and 1970’s

did not tamper with State primacy. As a State legislator, I am

more than a little surprised that this administration—this Congress—would now propose to do what decades of Democratic Congresses were unwilling to do.

Whenever there is legislation that preempts State laws, I am

suspicious of its antecedent. In this case, there is more than a little

reason for suspicion. Recently, the Agency for Toxic Substances and

Disease Registry published an analysis of the steps to be taken in

an emergency response situation at manufacturing facilities which

use large quantities of hazardous materials. I would like to read to

you from that ATSDR report. ATSDR is part of the Centers for Disease Control, not a part of EPA. It said, ‘‘Security at chemical

plants ranges from fair to very poor.’’

Mr. BILIRAKIS. Well, finish up your point.

Mr. BILLINGS. I will finish this paragraph. ‘‘Most security gaps

were the result of complacency and lack of awareness of the threat.

Chemical plant security managers were very pessimistic about

their ability to deter sabotage by employees. Yet, none of them had

implemented simple background checks for key employees, such as

chemical process operators.’’ The quote goes on to point out more

weaknesses.

The problem, to summarize, is ATSDR was at least as concerned

about what might happen from inside these manufacturing facilities; or what might happen because of lack of security and training
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at these facilities, and not—I repeat—not about too much public information about these facilities. Thank you, Mr. Chairman.

[The prepared statement of Leon G. Billings follows:]

PREPARED STATEMENT OF HON. LEON G. BILLINGS, MEMBER, MARYLAND HOUSE OF

DELEGATES

I appreciate the opportunity to appear before the subcommittee on Health and Environment, albeit on very short notice. I am testifying as an elected member of the

Maryland State Legislature, a member of the Environmental Matters Committee of

that Legislature, and as a person familiar with the history of federal laws governing

environmental protection and the intergovernmental relationships which are characterized under those laws.

I am also submitting a copy of testimony of the National Conference of State Legislatures which makes three important points about this proposal. I would like to

read those points:

‘‘First, states have an obligation to plan for and respond to chemical releases that

occur within their borders. In order to fulfill these planning and response duties,

states must have unimpeded access to OCA information. As introduced, H.R. 1790

provides authority for the EPA Administrator to withhold OCA information from the

states. Specifically, NCSL recommends amending Section 2(c)(2) and Section 2(f) to

ensure that the proper state planning and response authorities have access to sitespecific, nationwide OCA data in electronic form.

‘‘Second, states should be consulted during development of federal policy governing public access to OCA information. As introduced, H.R. 1790 requires the EPA

Administrator to consult with officials from other federal agencies during development of policy regarding availability of OCA information in both electronic and

paper form. NCSL recommends amending Section 2(c)(7) and Section 2(d)(1) to require the EPA Administrator to also consult with state officials during development

of such policy.

‘‘Third, H.R. 1790 may preempt state freedom of information laws in order to limit

or control distribution to the public of OCA information. It is NCSL policy that federal preemption of state law is not warranted, except when necessary or unavoidable in specific instances when a compelling national objective must be achieved.

NCSL urges Congressand the Administration to clearly articulate the risks to national security posed by a nationwide, searchable OCA database on the Internet.’’

I hope that you will read the full NCSL statement carefully, as it represents a

thoughtful perspective on this legislation and it restates the long-standing position

of NCSL against federal preemption except in cases involving the security interests

of the United States. I would add to their testimony that the general rule in our

environmental laws is that preemption occurs only in a clear case of interstate commerce (aircraft emission standards) or as a result of a Presidential finding that a

preemptive action is in the paramount interest of the United States.

When this legislation was called to my attention a few weeks ago, I thought, at

the time, it was odd. While I had not read the text of the bill, the news stories

seemed to suggest that we had a case of ‘‘the law of unintended consequences.’’ I

have now read the legislation. I have examined the antecedents to the legislation.

And I have done some research on the subject which the legislation purports to address.

First, let me say that the law this bill would amend is just fine. It is this legislation which is, at least, ill-conceived and misdirected. The bill suggests that state and

local governments and the public should not have complete and easily recoverable

access to information on the potential threat to communities posed by inherently

risky manufacturing activities. It appears it would even preempt state laws and

local ordinances requiring similar information to be gathered. And it would bar the

public which lives in the vicinity of those risky manufacturing activities from having

the maximum available information on the risks posed.

This legislation gives a broad grant of discretion to the Administrator of EPA to

withhold chemical risk data from state and local agencies responsible for environmental emergency response. It gives the Administrator broad discretion with respect

to the form in which that data is made available. And it completely precludes the

right of a community to know the location and risk posed by specific manufacturing

facilities.

This legislation preempts the authority of states to conduct their emergency reaction responsibilities with the full resources necessary to be effective, whether information which guides that reaction originates federally or under state law. The fact

that information available to the Administrator might not be transmitted to these
94

agencies in electronic form means that emergency response teams on site would not

be able to tap into data networks to get the critical information they need not only

to protect the health of the community but to protect the health of the response

team.

This legislation also creates a new standard for preemption. In effect, by authorizing EPA to determine when there is a substantial threat to public health and environment, it transfers primacy for protection of public health and the environment

from the states, where it has been vested for the entire period of national environmental policy, to the EPA Administrator.

Mr. Chairman, even Senator Muskie and his colleagues in the Democratic controlled Congresses of 1969, ’71 and ’77 did not tamper with state primacy. As a legislator, I am more than a little surprised that a Republican Congress would now

propose to do what decades of Democratic Congresses were unwilling to do.

Whenever there is legislation that preempts state laws, I am suspicious of its antecedent. In this case, there is reason for more than just a little suspicion.

Recently, the Agency of Toxic Substances and Disease Registry published an analysis of the steps to be taken in an emergency response situation at manufacturing

facilities which use large quantities of hazardous materials. ATSDR was focusing on

the question of potential terrorist activities at manufacturing facilities in the United

States. Their concerns were not as the advocates of this legislation would have us

believe: too much public information. Rather, they were concerned by the lack of

prevention preparedness at these facilities—information about which would not be

disclosed under this bill.

I would like to read to you what this government agency, part of the Center for

Disease Control and not a part of EPA, had to say about security and safety at the

nation’s chemical plants:

‘‘. . . security at chemical plants ranged from fair to very poor. Most security gaps

were the result of complacency and lack of awareness of the threat (i.e., that

almost half of the targets were businesses and industries). Chemical plant security managers were very pessimistic about their ability to deter sabotage by employees, yet none of them had implemented simple background checks for key

employees such as chemical process operators. None of the corporate security

staff had been trained to identify combinations of common chemicals at their

facilities that could be used as improvised explosives and incendiaries, although

most were aware of individual chemicals that posed significant fire, explosion

or poison hazards. Security around chemical transportation assets ranged from

poor to non-existent . . .’’

In other words, ATSDR was at least as concerned about what might happen from

inside these manufacturing facilities or what might happen because of lack of security and training at these facilities.

The fact that CDC found these manufacturing facilities ill-prepared to prevent

terrorism suggests the very real need to address that failure rather than to prevent

state and local agencies from gathering, publishing or receiving information necessary to take action to protect public health and the environment. As a state legislator, I would urge the Committee to turn its attention to the adequacy of security

and risk management planning at manufacturing facilities which use hazardous materials and let states and localities have the information they need to perform the

tasks for which they are best suited.

Thank you.

Mr. BILIRAKIS. Thank you very much, Mr. Billings. I am sorry we

had to cut you off. You have probably experienced this.

Mr. Grumet. ‘‘Gru-may,’’ is that correct? I understand you are

going to have to catch a flight. So, let us go ahead and start your

testimony. If you don’t go too very long, maybe we will be able to

at least hear it out and then break for our vote. Thank you.

STATEMENT OF JASON S. GRUMET

Mr. GRUMET. Thank you, Mr. Chairman, and members of the

committee. My name is Jason Grumet. I am the director of the

Northeast States for Coordinated Air Use Management, or

NESCAUM, which for over 32 years has been representing the air

quality control programs in the six New England States, New York,

and New Jersey. During those 32 years, I must tell you that we
95

have spent approximately 48 hours immersed in the details of H.R.

1790. I would have to say at the outset on behalf of our States, I

want to express our collective concern and regret that we have not

had opportunity to engage beforehand; but more importantly our

appreciation and recognition of the timeframes that you are working under.

What I would like to try to do in the next 5 minutes is first,

share with you some introductory thoughts; then identify the context of our broader concerns; and then raise a few specific issues

that I have been able to glean, not only from our eight Northeast

States, but from several other States around the country that I

have been able to contact in the last couple of days.

As was stated by the chairman, I think subsequently we all

share the same goals. Obviously, we all share the goal to protect

communities from not only catastrophic releases of chemicals, but

also accidental releases. I think similarly, we all recognize that

knowledge is power. We want to balance the community’s access to

that power—which is truly, I believe, in the best interests and aspirations of civic engagement—with the risks: that people—malicious

people—might use that knowledge in harmful and unattended

ways. I would suggest, too, that it is our responsibility to strike a

balance that accepts those free-flowing ideals against legitimate—

I would stress ‘‘legitimate’’—national security interests.

In essence, the bulk of my comments reflect the Northeast

States’ concerns that H.R. 1790, as drafted, is overbroad in its intrusion into States’ freedom of information laws, and also, in some

of its punitive enforcement approaches. The right-to-know process,

we believe, is fundamental not only to the environmental process,

but also to the very principle and process of our entire democracy.

We believe that it is a cornerstone of how we do good government

in the Northeast and—I think it is fair to say—the Nation.

I would suggest to you that the principle of open access and the

State laws that affect it are, in many ways, akin to a fundamental

right in our system. I think the metaphor to how we deal with fundamental right is something that we have a lot of experience with

in this country. We take them very seriously. It doesn’t mean that

we don’t at times transgress upon them. But when we do seek to

transgress upon what we deem to be an important and fundamental right, the courts apply a process which—while I am wholly

cognizant of the difference between this and the judicial process—

I think illustrates in many ways, and provides a good metaphor for

the challenge that faces us. The courts apply a two-part test. First,

they question if there is compelling government interest; and then

they question if the approach is narrowly and precisely tailored to

effectuate that compelling interest.

Here I would suggest that we, like the EPA, are going to defer

to the Federal Bureau with regard to whether there is a compelling

government interest of security. However, when we come to the

question of whether of H.R. 1790 precisely and narrowly affects

those interests, I think we are much less clear. To save time, I will

not go through the host of points that are in my comments. I would

associate the Northeast States with many of the comments that the

NCSL just raised. I will just raise two key points to my members.
96

The first question that I would ask you to deliberate on is: are

all facilities equally vulnerable to these kinds of risks? Is this ‘‘one

size fits all’’ obscuring of information, in fact, effectively and narrowly tailored to the problem that has been identified? Second, I

would ask you——

Mr. BILIRAKIS. Mr. Grumet? Excuse me, sir. It might be a good

place for us to break. We have something like 3, maybe 4 minutes

at the most, to make a vote. So we really ought to run to do that.

We can continue on this.

Mr. GRUMET. I’ll just be right here when you get back.

Mr. BILIRAKIS. Forgive us, but we have 4 or 5 votes—I am not

sure what it is—that will take at least a half hour, maybe a little

longer. We will get back as soon as we can.

[Brief recess.]

Mr. BILIRAKIS. We will get started. The Chair apologizes to everybody. I wanted to make sure we had a bipartisan atmosphere

up here.

Mr. Grumet, sorry we had to cut you off when we did. It is probably just as well that we did. We just barely made that vote. We

will just go ahead and give you 3 minutes, or so. I am sure that

you had less than that coming, but just do the best you can.

Mr. GRUMET. I will make my best. I will try to use my time constructively. In fact, I used the last half hour, I hope, constructively

as well. I took the opportunity, with the assembled expertise in the

room, to canvass other State representatives and members facing

the June 21 deadline.

Mr. BILIRAKIS. You are doing a very good job with your presentation.

Mr. GRUMET. I must tell you that half hour has only amplified

my basic concern, which is that H.R. 1790, as presently drafted, is

overbroad in its intrusion into the State freedom of information

laws.

As I was suggesting,while I am cognizant of the difference between judicial and legislative analysis, I do think that the metaphor of strict scrutiny which the courts look to when starting to potentially transgress upon such fundamental rights is illustrative

here. Again, there is a two-part test that applies. One, is there a

compelling State interest? Again with some discomfort, but a great

deal deference, I would look the Federal Bureau to render that

judgment and not to people who care about air quality. Therefore,

we would accept their answer in the affirmative.

However, on the question of whether or not this proposal, this

bill, is narrowly tailored to effectuate those compelling State interests; I think, again, we are much less clear. I will just go back to

the two points that I would like to make in summary.

The first question: Are all facilities equally vulnerable to these

risks; and therefore, is a ‘‘one size fits all’’ obscuring of this information, in fact, narrowly tailored to those compelling interests? I

would suggest to you, intuitively, the answer has to be no. Of

66,000 facilities, there has to be some variety of both risk to the

public, and some variety of risk to the kind of malicious activities

about which we are concerned. So I would suggest that some other

process—and I can’t begin to tell you what that is, other than simply obscuring all that information—I would believe is preferable.
97

Second, on the enforcement of this, the question of is threatening

State employees and civil servants with incarceration an effective

way to enforce these laws? Again, my members believe that that

is probably a little overbroad.

In conclusion, we think the intrusion and preemption are

overbroad. Finally, I would suggest that this is a very important

lens into the risk that may be posed from 66,000 facilities. I would

simply say that with whatever time we have that the Northeast

States would like to join in a more deliberate discussion about how

we might, in fact, develop some more robust techniques to not only

obscure those risks, but actually mitigate them.

[The prepared statement of Jason S. Grumet follows:]

PREPARED STATEMENT OF JASON S. GRUMET, EXECUTIVE DIRECTOR, NORTHEAST

STATES FOR COORDINATED AIR USE MANAGEMENT

Thank you Mr. Chairman. My name is Jason Grumet and I am the Executive Director of the Northeast States for Coordinated Air Use Management (NESCAUM).

NESCAUM is an association of state air pollution control agencies representing

Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode

Island and Vermont. The Association provides technical assistance and policy guidance to the member states on regional air pollution issues of concern to the Northeast. We appreciate this opportunity to address the Subcommittee regarding the

Chemical Safety Information and Site Security Act of 1999.

I believe that we all share the same substantive goal to protect communities from

catastrophic and accidental chemical releases. Moreover, I hope that we all recognize that knowledge is power. Knowledge about the potential risks associated with

chemical accidents empowers communities in the best spirit of civic engagement to

reduce undesirable and unnecessary environmental hazards. As we have all witnessed, knowledge can also empower malicious people to visit harm on these same

communities. The obvious challenge before Congress is to strike a responsible balance between the democratic ideals of free flowing information and the legitimate

concerns regarding security and potential terrorist activity. The bulk of my comments reflect the Northeast States/ concern that H.R. 1790 is overly broad in its intrusion into state right to know laws.

The northeast states share a strong commitment and a legal obligation to practicing government ‘‘in the sunshine’’ and honoring the public’s right-to-know about

potential environmental hazards facing their communities. The requirements of Section 112(r) of the Clean Air Act represent an important mechanism for informing

the public about the potential risk posed by the accidental release of toxic chemicals

from facilities located in their communities and protecting them from such risk.

State freedom of information acts (FOIA) and community right to know laws are

fundamental to the process and principle of informed democracy. We are concerned

about H.R. 1790’s intent to preempt state FOIA law. These laws serve a critical role

by providing state regulators and other interested parties access to the detailed information needed to craft effective regulations. They also enable private citizens to

make informed choices about where they want to live and discover the truth about

the risk from and the causes of environmental hazards. In essence, the principle of

open access is akin to a ‘‘fundamental right’’ in the design and implementation of

our nation’s environmental policies. While I am wholly cognizant of the different obligations and burdens of the legislative and judicial processes, I believe that identifying freedom of information as a fundamental right provides a useful metaphor for

our challenge here today.

Our judicial system often grapples with similar situations where the ideals of free

speech create security concerns. When faced with a conflict between fundamental

rights and state interests, courts traditionally apply a two-step analysis. First,

courts examine whether government has a compelling interest to justify the proposed transgression and second they probe whether the means employed to achieve

the statute’s goal are narrowly and precisely drawn. While I am not suggesting that

this committee apply ‘‘strict scrutiny’’ review to this or any other legislative proposal, I do believe that this analytical process, loosely applied, illustrates our concerns about H.R. 1790. In this instance, the national security interests identified in

H.R. 1790 surely present a compelling government interest. However, the northeast

states are far less certain that this bill is effectively and narrowly tailored to

achieve these important ends. Two issues immediately leap to mind. First, do all
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covered facilities present similar security risks? Hence, is the ‘‘one size fits all’’ restriction of information proposed in H.R. 1790 effectively and narrowly tailored? Second, is threatening civil servants and librarians with financial ruin and incarceration an effective and narrowly tailored means of increasing site security? Only

through dialogue with a broader range of affected parties, including state officials,

can we ensure that this bill achieves its goal in a manner that respects important

public disclosure rights and obligations.

Moreover, we are troubled by the proposed process whereby EPA would issue

guidance establishing procedures and methods for making off-site consequences information available to the public without the opportunity for public comment or judicial review. Further, the prospect of emergency personnel responding to an accident without the appropriate information about the types and amounts of chemicals

involved will unnecessarily jeopardize their health and that of the larger community. It is unfair and dangerous to put state and local officials in the position of trying to determine what information can and cannot be legally shared with emergency

personnel in the heat of a crisis.

There are literally thousands of incidents each year in the Northeast involving the

accidental release of dangerous chemicals into the environment. Section 112 (r) is

intended to protect the public from accidental releases at those large stationary facilities that present the greatest potential risk to the public. The off-site consequence analysis information contained in the Risk Management Plans (RMPs) addressed by this bill represent the last line of defense for communities in the event

of an accident. Consequently, the public has a vital interest and a right to review

and comment on these plans.

It is our expectation that the requirement to develop and disclose the off-site consequences analysis information through the RMPs will encourage some companies

to voluntarily develop strategies to reduce the risk in worst-case zones. The fact that

their neighbors and employees will be made aware of the potential risk from exposure to chemicals accidentally released by a facility provides a powerful incentive

for companies to minimize such risk. The experience with the Toxic Release Inventory program is an example of how reporting requirements can promote significant

voluntary reductions on the part of facilities concerned with their corporate image.

In conclusion, the northeast state environmental agencies are concerned that the

preemption of state laws and punitive enforcement measures in H.R. 1790 are over

broad. In addition, the magnitude of the security concerns noted by supporters of

H.R. 1790 appear to beg a deeper issue. We urge Congress to act to diminish the

risks of catastrophic chemical releases in substance and not simply seek to obscure

the public’s awareness of these risks. What are needed are better plans to protect

vulnerable sites from terrorist activities. We urge Congress to take the time necessary to develop a viable approach that provides greater security at chemical facilities without trampling on the fundamental protection afforded by public right-toknow laws.

Mr. BILIRAKIS. Thank you very much, sir.

Ms. Southwell, when you are ready.

STATEMENT OF DONNA J. SOUTHWELL

Ms. SOUTHWELL. I don’t know if I will ever be ready. This is a

little nerve-wracking for me. I really want to thank you, Mr. Chairman, and members of the committee, for an opportunity to talk

about this bill.

I am from Washtenaw County in Michigan, which is east about

43 miles from the city of Detroit—to just give you some context. I

have been staffed to the local emergency planning committee. I sit

on the city of Ann Arbor LEPC, as well as act as Assistant Emergency Coordinator for the Washtenaw County LEPC.

Part of my job functions are twofold. One is to do the planning

for the entire County of Washtenaw for local emergency planning

contingency plans for chemical spills. The second part is that part

of my job also entails coordinating response to these spills. So I

know how valuable those plans are. I know that having those plans

in place; having that full information; and being able to work with
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all of the entities that are involved in cleaning up and protecting

the environment and the population are critical to that process.

Washtenaw County and Ann Arbor are among the top 20, nationally, for the production of hazardous wastes. We had a program

that was originally the Community Right to Know Program in our

county, established in 1986, before SARA. That kept facility information, including maps, plans, and chemical inventories on over

1,400 facilities and made that information available to the public.

LEPCs are required under Federal law to have a variety of elected officials, community professionals, environmentalists, and facility coordinators on their board. These are the people who craft

those plans in conjunction with the community and the facilities,

and make these available. The primary responsibility is to develop

emergency plans and to make that available to the public. In developing the plans, they evaluate all available resources. That is part

of Federal language under SARA.

There are two pieces of the nine ‘‘shalls’’ that this legislation will

really impact negatively. They are No. 5, which says ‘‘Describe

methods for determining the occurrence of a release and the probable affected area and population;’’ and No. 7, which says we have

to have an evacuation plan. That means that in planning for a potential, or possible, chemical spill we have to consider all of the

people, all of the places, and all of the things that is going to affect.

We exercise those plans. So if it does happen, we are prepared to

meet that emergency as best that we can.

Section C of this bill effectively prevents the LEPC from fully developing required plans, and from meeting the No. 5 ‘‘shall’’ mandated under EPCRA. They are mandated to create effective evacuation plans, but it is very difficult to do this without full information. LEPCs are mandated to annually publish notice in local papers that these plans are available. That is the community rightto-know effect that is so important. If this bill passes, it seems like

it puts LEPCs in direct conflict with federally enacted regulation;

so that whatever they do when they attempt to do their job, they

are going to be in conflict with some kind of law.

Out of great concern for public health and safety, the community

right-to-know provisions help increase the public knowledge and

access to information that gives them information to make informed choices and decisions about taking steps to keep their families safe. We have a pamphlet that we put together called, ‘‘Safety

in Chemical Emergencies.’’ We passed this out to over 100,000 people. These people were not alarmed. Instead, they were grateful for

the information, and took steps that, I think, can help them in

their everyday life.

Under the planning that we have done under SARA title III, we

have witnessed a 20 percent reduction in the number of sites for

which to plan for in our community; and a 50 percent reduction in

the number of spills that we have responded to. A lot of the reason

for that is because these facilities have either switched to alternative chemicals that aren’t as toxic; they have reduced their inventory so that they aren’t keeping as much on hand; or there is

new technology available to them.

I contend that if there is a security concern about some of the

facilities that will be reporting under the Clean Air Act amend-
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ments, this is the same sort of alternative that is available to them.

I contend that if there is security problems, perhaps it is up to the

facility to begin to think about increasing their security measures,

instead of putting the burden onto the local emergency planning

committees that are a federally unfunded mandate required to do

planning, and required to uphold community safety.

I’ll stop——

Mr. BILIRAKIS. Well, finish your point.

Ms. SOUTHWELL. The fact is that we are, again, a federally unfunded mandate. This is all volunteer people. We have a hard

enough time getting people, on the busy days, to commit to being

volunteers; to commit to helping us with these plans; and to commit to this community activism. To have to say them, ‘‘Well, your

reward for this job well done is that your possibility of going to jail

and being fined is very real;’’ I feel like terribly constrains the community’s attempt to be safe.

Thank you very much for this opportunity.

[The prepared statement of Donna A. Southwell follows:]

PREPARED STATEMENT OF DONNA J. SOUTHWELL, ASSISTANT EMERGENCY COORDINATOR FOR THE WASHTENAW COUNTY, MICHIGAN, LEPC, MEMBER OF THE CITY OF

ANN ARBOR LEPC, AND WASHTENAW COUNTY ENVIRONMENTAL HEALTH EDUCATION AND OUTREACH MANAGER AND FUNCTIONING ENVIRONMENTAL RESPONSE

MANAGER

Mr. Chairman and Members of the Subcommittee, thank you for this opportunity

to share with you concerns regarding the proposed ‘‘Chemical Safety Information

and Site Security Act’’. It is my intention to address the significant difficulties within this proposed legislation as they relate to federally mandated responsibilities of

Local Emergency Planning Committees (LEPCs), Public Health and Safety, the inherent right of citizens in this country to have access to information and finally, the

protection of Local Government staff and volunteers.

Background

Washtenaw County is located in the southeastern portion of the Lower Peninsula

of Michigan. approximately 43 miles west of downtown Detroit. The County is home

to the City of Ann Arbor, the University of Michigan, Eastern Michigan University

and several other institutions of higher learning. Ann Arbor is ranked fourth nationally as the best place to live. There are approximately 300,000 people living in our

county with 213,000 homes.

The Washtenaw County-Ann Arbor Metropolitan area is also in the top 20% nationally for the production of hazardous waste. The Washtenaw County Pollution

Prevention Program, established in 1986, inspects and keeps records on more than

1500 facilities with an aggregate amount of 5 gallons or more of chemicals on site.

This includes facility information and chemical inventories. EPA has recognized this

venture as a model program for other communities. This records include all SARA

Title III facilities whose contingency plans, by unanimous vote of the federally mandated LEPC, are being prepared to be made available on the County web site. The

County LEPC is comprised of volunteer representatives from business and industry,

local government, educational facilities, hospitals, fire departments, Emergency

Management and local residents.

Public health and safety, the environment, quality of life and the right to information allowing for knowledgeable choices are of profound concern to area residents.

This legislation as written would have great impact on these concerns.

Federally Mandated Responsibilities of LEPCs

LEPCs must include at a minimum, elected state and local officials, police, fire,

civil defense, public health professionals, environmental, hospital, and transportation officials as well as representatives of facilities subject to the emergency planning requirements, community groups, and the media. The LEPC is required to

complete a number of tasks, including establishing rules, giving public notice of its

activities, and establishing procedures for handling public requests for information;

however, the LEPC’s primary responsibility is to develop an emergency plan and to

make that plan available to the public. In developing this plan, the LEPC evaluates
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all available resources for preparing for and responding to a potential chemical accident. The plan must include the following nine components, also known as ‘‘the

Nine ‘SHALLS’ of Sara Title III’’:

1. Identify facilities and transportation routes of extremely hazardous substances;

2. Describe emergency response procedures, on-site and off-site;

3. Designate a community coordinator and facility coordinator(s) to implement the

plan;

4. Outline emergency notification procedures;

5. Describe methods for determining the occurrence of a release and the probable

affected area and population;

6. Describe community and industry emergency equipment and facilities and identify the persons responsible for them;

7. Outline evacuation plans;

8. Describe a training program for emergency response personnel (including schedules);

9. Present methods and schedules for exercising emergency response plans.

Section ‘‘C’’ of this Bill effectively prevents the LEPC from fully developing required plans and from meeting the number five ‘‘SHALL’’ mandated under the

Emergency Planning and Community Right-to-Know Act, (EPCRA). It is the fundamental nature of EPCRA to use all existing information in constructing plans that

identify the likely plume dispersion path of each chemical in the worst case scenario

and to identify potentially affected regions and populations. Special care is taken

to identify sensitive populations such as schools, hospitals and nursing homes. In

number seven ‘‘SHALL’’, LEPCs are mandated to create effective evacuation plans,

difficult to accomplish without full information. LEPCs are mandated to publish, annually, notice in the local paper of the availability of these plans. In addition,

LEPCS are further mandated to make these plans available to the public. (Reference Appendices A, B and C). If this Bill is passed, it puts LEPCs in direct conflict

with federally enacted regulations no matter which approach they consider in the

attempt to complete their mandated functions.

Public Health and Safety

From the United States Environmental Protection Agency Office of Solid Waste

and Emergency Response (5101) EPA 550-F-93-002 dated January 1993; SARA Title

III Factsheet: THE EMERGENCY PLANNING AND COMMUNITY RIGHT-TOKNOW ACT (my Appendix B), I quote ‘‘—This law builds upon EPA’s Chemical

Emergency Preparedness Program (CEPP) and numerous State and local programs

aimed at helping communities to better meet their responsibilities in regard to potential chemical emergencies. The Community Right-to-Know provisions will help

increase the public’s knowledge and access to information on the presence of hazardous chemicals in their communities and releases of these chemicals into the environment. States and communities, working with facilities, will be better able to improve chemical safety and protect public health and the environment—’’ Without full

access to information, information restricted by this proposed Bill, again, the LEPCs

will not be able to accomplish the tasks for which they were created. Since SARA

Title III, in our community alone, we have witnessed a 20% reduction in the number

of sites for which we must plan and the reduction by 50% in the number of releases

recorded in our community. When sites were queried as to why they declared themselves no longer eligible under SARA, many answered that they had reduced the

amount of chemicals on site, had found less toxic alternatives or technology had allowed them to change their processes. One Facility Coordinator introduced himself

to me at our annual LEPC-sponsored Facility Coordinator’s Conference, shook my

hand and said: ‘‘We really don’t like you, but you make us better!’’ Chemical Safety

has improved and public health and the environment is better protected. I can only

try to imagine you or me struggling to explain to our constituency that we can no

longer do our job to protect their health and their environment because of the restrictions and penalties of HR 1790.

The Inherent Right of Citizens in This Country to Have Access To Information

EPCRA is the acronym for ‘‘Emergency Planning and Community Right-To-Know

Act’’. Perhaps it is time to review the history of accident, death and destruction that

preceded the creation and implementation of EPCRA:

§Texas City 1947—552 Fatalities, 300 injuries

§ Donora PA 1948—20 Fatalities, 5,000 exposures

§Flixborough UK 1974—28 fatalities

§ Bhopal India 1984—3K fatalities, 200K exposures

§Pasadena TX 1989—28 fatalities, 130 injuries
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In addition, let us not forget the lessons learned in the community that turned

the page for Right-to-Know: Love Canal. Even then, the all too familiar cry of special interest that ill tidings would be befall them if the community knew what was

really going on behind the closed doors and obscured buildings at their facility. Love

Canal was the part of the origin of SARA Title III that was enacted over twelve

years ago. Nobody blew up their buildings. The sky did not fall, and now days, visionary business and industry are working in partnership with governments and

residents to improve quality of life in the hometown and global communities that

they live in and work in together. If disclosure has opened the door to improved

community trust and relationships, then what door will this proposed Bill and the

return to evasiveness open?

Protection of Local Government Staff and Volunteers

SARA Title III is a federally unfunded mandate. Membership in the LEPC is voluntary. All planning tasks are completed by the volunteers who include representatives from the regulated businesses and industries. Under Sec. C, part 8, of this Bill,

if members of the LEPC as either employees or volunteers to Local government do

the task required of them, they can be arrested, fined and jailed for up to one year.

It is difficult enough in these hectic and busy days to enlist and retain volunteers.

One can only imagine the joy of recruitment and retention of LEPC membership if

criminal prosecution becomes the reward for a job well done!

Again, SARA Title III is a federally unfunded mandate. Under Sec. B, of this Bill,

LEPCs could be levied fees to retrieve information that they are required to have

access to under the CAA 1990.

Between the proverbial rock and hard place is exactly where this Bill will land

the LEPCs. No one wins from that position.

Mr. BILIRAKIS. Thank you, Ms. Southwell. Thank you so much

for that perspective.

Ms. Kinsey.

STATEMENT OF KATHY M. KINSEY

Ms. KINSEY. Thank you, Mr. Chairman. Mr. Chairman, and

members of the committee, my name is Kathy Kinsey. I am an Assistant Attorney General with the Maryland Attorney General’s Office. I am here testifying today on behalf of both the Maryland Attorney General, and the National Association of Attorneys General,

on H.R. 1790.

I want to state at the outset that our office only recently learned

of this legislation. We have not had time to either assess its full

impact on Maryland law, nor to discuss the impact of this bill with

State and local agencies, such as the LEPCs, that would be affected

by the provisions of this bill. I would like to emphasize that, as

chief law enforcement officers of the State, attorneys general do understand the importance of protecting the public from acts of terrorism, and the legitimate concerns that law enforcement officials

have in this regard. We recognize that there is a delicate balance

here that has to be struck between law enforcement concerns and

the right of the public to access this very important information.

Having said that, however, we do have some concerns about this

bill. I will be brief. First, we share Delegate Billings’ concerns

about the preemption aspects of this bill. To our knowledge, no

State government officials or attorneys general were consulted

about the preemption issues before this legislation was introduced.

They have not had an opportunity to assess the impact on our public information acts. This is an area which is of particular concern

in Maryland and other States, where there is a very strong interest

in favor of public disclosure—full public disclosure.

Second, a knowing violation of this legislation if it is enacted in

its current form is going to subject a State official, possibly even
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an attorney general, to criminal sanctions under title 18 of the

United States Code. We are obviously very concerned about subjecting State and local officials to criminal sanctions without any

prior consultations with those officials about the impact of this law.

Third, it is unclear, as drafted, exactly what the law is that would

be violated. Section D of this bill indicates that the EPA will issue

guidance setting forth the procedures and methods by which this

offsite consequence analysis may be made public. This guidance

would not be judicially reviewable; and therefore, not subject to the

ordinary processes that are normally accorded in the course of development of regulations. There is no meaningful mechanism here

for States or other interested parties, including citizens, to participate in the guidance development process. Presumably, of course,

it would be a knowing violation of the guidance that would, in effect, subject State officials to criminal sanctions. This is unprecedented, as far as we know. We are unaware of any other provision

of law providing criminal penalties for violation of an agency guidance that does not carry the full force of law.

We also note in section D that the guidance is to be developed

in consultation only with Federal agencies. Assuming for the moment that this guidance would be legally enforceable, we think the

guidance that would trump State law should not be developed

without the active involvement of the States, particularly where a

violation of that guidance would subject the State and local officials

to criminal sanctions.

Finally, another problem with the bill as we see it as that it is

very unclear how State officials, even Federal officials, will respond

to requests for this information during this interim period between

the time that the law is enacted and the time that any guidance

would eventually be developed by EPA.

Thank you very much. I appreciate very much the opportunity to

be here today. I am happy to answer any questions you have.

[The prepared statement of Kathy M. Kinsey follows:]

PREPARED STATEMENT OF KATHY M. KINSEY, ASSISTANT ATTORNEY GENERAL, STATE

OF MARYLAND

Mr. Chairman and members of the Subcommittee, my name is Kathy Kinsey, and

I am an Assistant Attorney General for the State of Maryland. I am here on behalf

of Attorney General Joe Curran, a member of the National Association of Attorneys

General, to discuss H.R. 1790, the ‘‘Chemical Information and Site Security Act of

1999.’’

My office has only recently learned of this legislation, and we have not had time

to analyze it fully or assess its full impact on Maryland law; however, we do have

some general concerns that we would ask the Subcommittee to consider. First, let

me state that as the chief law enforcement officers of the states, attorneys general

understand the importance of protecting the public from acts of terrorism, and the

legitimate concerns of law enforcement in this regard. We recognize that a delicate

balance must be struck between law enforcement concerns and the right of the public to information about potential threats to their communities and environment. We

would be happy to work with the Congress, the U.S. Department of Justice, the U.S.

Environmental Protection Agency, and other concerned parties to address these

matters.

We have several points to make about the legislation before this Subcommittee:

1. As proposed, this legislation would preempt state law. To our knowledge, no

affected state officials, including Governors, Attorneys General or legislators were

consulted prior to the introduction of this legislation, and therefore had no opportunity to assess its impact on State public records laws. We believe that States

should be adequately consulted by Congress and the Administration before federal

laws are enacted that would preempt state law.
104

2. A knowing violation of this legislation, if enacted in its current form, would

subject a State official, including perhaps, an Attorney General, to criminal sanction

under Title 18 of the United States Code. We are quite concerned about federal laws

subjecting State and local officials to criminal sanction without prior consultation

with such officials.

3. It is unclear as drafted what ‘‘law’’ would be violated. Section (d) of this bill

indicates that the Administrator of the Environmental Protection Agency shall issue

‘‘guidance’’ setting forth the procedures and methods by which off-site consequence

analysis information may be made public. This guidance would not be judicially reviewable, and therefore not subject to the public processes normally accorded development of regulation. Thus, there would be no meaningful mechanism for States or

other interested parties, including citizens, to participate in the guidance development process.

4. Presumably, it is a knowing violation of this guidance that would subject State

officials to criminal sanctions. We are unaware of any other provision of law providing criminal penalties for violation of an agency pronouncement that does not

carry the force of law.

5. We also note, in Section (d), that this guidance is to be developed in consultation with appropriate Federal agencies. Assuming for the moment that any ‘‘guidance’’ issued by the Federal government is legally enforceable, a guidance that

would trump state law should not be developed without the active involvement of

the States, particularly where a violation of the guidance might subject a state or

local official to jail time.

6. Finally, it is unclear how State officials should respond to requests for OCA

information during the interim period between enactment of this legislation and

issuance of the guidance by EPA.

I appreciate the opportunity to appear before this Subcommittee, and would be

happy to respond to any questions you may have.

Mr. BILIRAKIS. Thank you very much, Ms. Kinsey.

Mr. Natan.

STATEMENT OF THOMAS NATAN

Mr. NATAN. Thank you, Mr. Chairman. My name is Tom Natan.

I am Research Director of the National Environmental Trust.

Thank you for the opportunity to testify as a member of the environmental community.

I am a chemical engineer. Over the past 5 years I have visited

scores of industrial facilities looking at ways in which they can operate more efficiently and safely; as well as helping to interpret

their environmental data for residents of the surrounding communities.

No doubt the committee is aware of EPA’s Toxic Release Inventory Program, ‘‘TRI,’’ which as 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 command and control regulation. An extremely important lesson that we can glean from TRI

is that public access to toxic chemical release information alone can

generate enormous risk reduction benefits. For many workers at industrial facilities, TRI is their first opportunity to learn about

chemicals used on the job—another unexpected benefit of access to

information. All of these benefits can be enhanced further through

public access to all of the Clean Air Act 112(r) data.

I say enhanced because, unfortunately, accidents still occur.

Fourteen members of this subcommittee represent States that have

had at least one chemical accident in the past twenty months. Thirteen workers were killed; another ninety-five were injured in those

accidents. These figures don’t include any of the impacts on the

surrounding communities.
105

The Chemical Manufacturers Association has raised concerns

about the availability of Off-Site Consequence Analysis data on the

Internet. Even in the absence of Internet access to that data, there

are many ways in which the chemical industry, EPA, and the intelligence community must work, both separately and together, to reduce hazards and potential risks. However, the Chemical Safety Information and Site Security Act of 1999 virtually eliminates the

public participation that would create the necessary accountability

of industry and government to accomplish real hazard reduction.

Instead of offering a mechanism for hazard reduction that would

otherwise have occurred through public participation, this bill offers corporate secrecy and criminal penalties.

Under the bill, a concerned citizen would first have to obtain

paper copies of submissions for all facilities within 25 miles of

home, work, or school, because no mechanism exists for prioritizing

risks under the proposed legislation. This assumes that the requestor does not live in a location in which there are enough facilities to exceed whatever maximum the administrator sets for requests. It also assumes that there are no facilities outside that 25-

mile radius that would impact his or her home. Once the facilities

of greatest concern have been determined, naturally citizens will

want to see how those facilities compare to others in the same industry in other parts of the country, and contact those facilities for

information on how they may have reduced their hazards. They

will have to go to a GPO depository library and manually examine

thousands of paper submissions to cull some facilities that qualify,

and then would not be allowed to photocopy that information.

The restriction will not apply just to concerned citizens. For example, there are the workers at the facilities, for whom these

worst-case scenario data may be the best vehicle to learn about

risks and hazards on the job, and what other companies are doing

to reduce those hazards; emergency responders who want to know

if a particular plant meets the industry standards for safety; educators who will want to teach students about best practices; and investors who will want to track the performance of all the facilities

of a particular company. None of these concerned parties will be

able to undertake necessary and legitimate comparison and analyses under this bill easily, if at all.

The bill goes further and prohibits dissemination of critical reports. As part of their accountability to the public, EPA and State

governments need to take an active role in providing comparative

analyses of data from facilities within particular industries to determine ‘‘best in class’’ practices as they currently exist in order to

drive real hazard reduction. Under the bill as proposed, these analyses would not be available to the public. Furthermore, State or

Federal Government employees who make such analyses available

could be jailed and/or fined for doing so.

The administration’s bill provides a template to restrict public

access to any of the data currently collected by EPA. What is to

prevent a future restriction of TRI data for the ten most flammable

substances on the TRI list; or the ten that are judged to be the

most acutely toxic; or access to permit application data. Worst of

all is the possibility that such future restrictions could pass with

this bill under the guise of a technical amendment.
106

Just how is it that the agenda went from restricting Internet access to Off-Site Consequence Analysis only, to a severe restriction

on data dissemination by other means? To my knowledge, the review of worst-case scenario data by the FBI is the first time that

agency reviewed chemical accident data reported by facilities to determine the potential threat that onsite use of toxic chemicals

poses to local communities. The most significant finding made by

the FBI is that the use of chemicals poses the risk.

In light of these findings, it is important to emphasize that by

not providing an alternative to public awareness and pressure, the

bill fails to provide an impetus for hazard reduction. In return for

ignoring these benefits, any bill restricting access to OCA data

needs to provide that benefit, perhaps by instructing the Department of Justice, along with EPA, to identify the potential for hazard reduction, and therefore, the vulnerability of citizens to chemical exposures, whether accidental or otherwise. This should be accomplished first by using less-toxic chemicals; and where that is

impractical, safer transportation, storage, and handling and increases in site security and buffer zones.

Thank you Mr. Chairman.

[The prepared statement of Thomas Natan follows:]

PREPARED 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

issues. 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, 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 surrounding communities.

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 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 our manufacturing sector. Another extremely important

lesson that we can glean from the TRI process 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 enhanced further through public access to all

of the 112(r) data.

As the Committee is also aware, the Chemical Manufacturers Association has

raised concerns about the availability of Off-Site Consequence Analysis, or OCA,

data from 112(r) on the Internet. Even in the absence of Internet access to data,

there are many ways in which the chemical industry, EPA, and the intelligence

community, must work, both separately and together, to reduce hazards and potential risks to the American public from use of toxic chemicals at industrial facilities.

However, the Chemical Safety Information and Site Security Act of 1999 virtually

eliminates the public participation that would create the necessary accountability of

industry and government to accomplish real hazard reduction. Instead of offering

a mechanism for hazard reduction that would otherwise have occurred through public participation, the Administration offers corporate secrecy and criminal penalties.
107

Under this bill, a concerned citizen would first have to obtain paper copies of submissions for all facilities within 25 miles of home, work, or school, because no mechanism exists for prioritizing risks under the proposed legislation. This assumes that

the requester does not live in a location in which there are enough industrial facilities to exceed whatever maximum the Administrator has set for requests. It also assumes that there are no facilities outside the 25-mile radius that would impact his

or her home. Once the facilities of greatest concern have been determined, naturally,

citizens will want to see how those facilities compare to others in the same industry

in other parts of the country, and contact other facilities for information on how

they reduced hazards. They will have to go to a GPO depository library and manually examine thousands of paper submissions to cull some facilities that qualify, and

then would not be allowed to photocopy the information. The other alternative

would be to wait until EPA had made an OCA electronic database available, although this database would not have facility identification information, so citizens

would not be able to contact representatives of those other facilities without another

trip to the library, again without a way of searching for what they need other than

looking at every submission.

And the restrictions won’t apply just to concerned local citizens. For example,

there are workers at the facilities, for whom Worst Case Scenario data may be the

best vehicle to learn about risks and hazards on the job, and what other companies

are doing to reduce those hazards; 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. None of these concerned

parties will be able to undertake necessary and legitimate comparisons and analyses

under this bill.

The bill goes further and prohibits dissemination of critical reports. As part of

their accountability to the public, EPA and state governments need to take an active

role in providing comparative analyses of data from facilities within particular industries, to determine ‘‘best in class’’ practices as they currently exist, in order to

drive real hazard reductions across industries. Similarly, environmental agencies

should provide analyses of uses of specific chemicals across industries for some of

the most hazardous substances. Under the bill as proposed, these analyses would

not be available to the public. Furthermore, any state or federal government employee who makes such analyses available could be jailed and/or fined for doing so.

Finally, the Administration’s bill provides a template to restrict public access to

any of the data currently collected by EPA. What’s to prevent a future restriction

of TRI data for the 10 most flammable substances on the TRI list? Or the 10 that

are judged to be the most acutely toxic? Or access to permit application data? Worst

of all is the possibility that such future restrictions could pass under the guise of

a ‘‘technical amendment.’’

Just how is it that the Administration went from restricting Internet access to

OCA data only to severe restrictions on data dissemination by other means? 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 on-site 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 only marginally amplify

this inherent, pre-existing risk.

In light of these findings, it is important to emphasize that the risks emanate

from toxic chemical use at facilities, not public awareness of those risks. By not providing an alternative to public awareness and pressure, the Administration’s bill

fails to provide any impetus for hazard reduction. In return for ignoring the benefits

generated by the public’s right to know, any bill restricting access to OCA data also

needs to provide that benefit. The simplest means of accomplishing that goal would

be to instruct the Department of Justice, along with EPA, to identify the potential

for hazard reduction, and therefore, the reduction in vulnerability of citizens to

chemical exposure, whether accidental or otherwise.

Such a reduction in vulnerability should be accomplished first by using less toxic

chemicals. Where reduction in use is impractical, such common-sense measures

could include safer transportation, storage, and handling of toxic chemicals. Other

mechanisms to be explored are increases in site security and buffer zones around

facilities that cannot be made safer by other means.
108

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 and less harmful

accidents. I firmly believe that accident reduction and prevention was Congress’s

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. Denying, or severely limiting, public access to the Worst Case Scenario 112(r) data, whether by the Administration’s bill or by other means, 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.

Mr. BILIRAKIS. Thank you, Mr. Natan.

Mr. McMasters.

STATEMENT OF PAUL K. MCMASTERS

Mr. MCMASTERS. Good afternoon, Mr. Chairman, and members

of the committee. Thank you for allowing me to present a freedom

of information perspective, along with these others that have been

expressed this afternoon, on H.R. 1790.

I am testifying today on behalf of the American Society of Newspaper Editors, which represents 850 directing editors of newspapers across the country. The ASNE and its members have long

championed maximum access to government information in recognition of the vital role that informed citizenry plays in assuring

good governance and a secure democracy.

It is our concern that, as introduced, H.R. 1790 contradicts the

traditions and principles of open government. It unwisely changes

the requirements of current law. Specifically, the bill would supersede requirements for providing information to the public under

the Clean Air Act, as others have indicated. It would exempt important information from the requirement of the Freedom of Information Act. It would violate requirements of the Electronic Freedom of Information Act. More importantly, it would deny the 40

million Americans who live in the shadow of those 66,000 chemical

plants the information they need to act, and to demand action, to

protect their loved ones and their communities.

To implement the provisions of the amended Clean Air Act, as

it was amended in 1990, the Environmental Protection Agency decided initially—and quite correctly in compliance with the Electronic Freedom of Information Act—that the Internet would be the

most effective and democratic way to distribute this information.

Please bear in mind what the proposed risk management data base

would contain: inventories of 140 different chemicals; accident histories; where and how accidental chemical releases could occur, and

the populations that would be affected. This data base would not

contain security information, storage tank locations, classified information, or clues as to how a release could be triggered.

As a blueprint for sabotage, the data base would not be very

helpful. However, as a guide for citizens interested in making sure

that chemical plants in their neighborhoods were hardened against

accidental or intentional releases, such information would be invaluable. During the last 10-year period to be reported, there were

more than a million releases of chemicals because of accidents, and
109

not a single incident of sabotage—let alone sabotage as a result of

information in the Internet.

Hundreds of citizens have been killed, and many more injured in

the last few years, not as a result of terrorist action, but as result

of problems not addressed at chemical plants. Nevertheless, H.R.

1790 proposes a closed system that would allow release of worstcase scenario information only to selected State and local government officials in a difficult-to-access format, and would impose

fines and prison sentences on government employees who might

misinterpret the requirements.

Three years after Congress passed the Electronic Freedom of Information Act, H.R. 1790 would reverse the course the Act set for

more openness. It effectively says to the public that access to information in electronic format is more trouble that it is worth. Under

this bill, the EPA would not be allowed to decide whether the proper guidelines for providing information in an electronic format are

met; and instead, must provide this information in paper form only.

Further, it would cancel EPA’s authority to determine the disposition of information with which the EPA is most familiar.

As for the Freedom of Information Act, H.R. 1790 would go a

step further than simply adding an exemption to the list of nine

that are already there that were carefully drafted and limited.

There would be no opportunity to challenge this decision, as is the

case when access is blocked through one of the traditional FOIA exemptions. H.R. 1790 would substantially deprive the public and

local governments alike of the following: a national data base providing comprehensive information about the size and nature of potential chemical accidents for elected leaders, policymakers, and

public safety agencies; an official resource for individual citizens,

civic action groups, and researchers involved in comparing and

analyzing safety and security measures from community to community; authoritative data to ensure more accurate and timely reporting by the news media on safety concerns and accidents; a way for

families and firms moving to new communities to assess the risks;

and an instrument for evaluating the performance of elected officials and government agencies in protecting the public.

I would just like to conclude by saying for those in Congress and

the administration who believe that information on the Internet

poses more of threat to our safety and security than toxic and explosive chemicals in vulnerable plants, we would ask some important questions. If there is a danger of terrorist activity or targeting,

wouldn’t it be better if the entire community knew and was on the

look-out? Wouldn’t the availability of accurate, up-to-date risk management plans and the assumption that vulnerabilities were being

addressed dissuade, rather than attract, would-be terrorists? If our

plants are vulnerable, wouldn’t the more sensible approach be to

reduce the threat than to reduce the flow of information? Isn’t the

best defense against a terrorist armed with a modem, a community

armed with information?

Mr. Chairman and members of the committee, this Nation’s commitment to open government is what distinguishes us from all others, especially those who wish us harm or would do us harm. If we

act to deny vital information to American citizens in anticipation

that it might be used by terrorist; then without raising a hand or
110

voicing a threat, a terrorist will have damaged an essential democratic tradition, as well as put our citizens and communities more

at risk. In other words, the unknown terrorist would have only to

sit back and wait for the next preventable chemical plant accident.

If that happens; when that happens; we will have inflicted the injury upon ourselves, because we have chosen to fear the abstract

notion of information in the wrong hands, over the reality of chemical hazards in the Nation’s neighborhoods.

Thank you.

[The prepared statement of Paul K. McMasters follows:]

PREPARED STATEMENT OF PAUL K. MCMASTERS FOR THE AMERICAN SOCIETY OF

NEWSPAPERS

Mr. Chairman, members of the Committee. My name is Paul McMasters. I am

here today testifying on behalf of the American Society of Newspapers Editors as

a member of that organization’s Freedom of Information Committee.

The American Society of Newspaper Editors is a nationwide, professional organization of more than 850 members who hold positions as directing editors of daily

newspapers throughout the United States and Canada. The purposes of the Society,

which was founded more than seventy-five years ago, include the ongoing responsibility to improve the manner in which the journalism profession carries out its responsibilities in providing an unfettered and effective press in the service of the

American people. ASNE is committed to the proposition that, pursuant to the First

Amendment, the press has an obligation to provide the citizenry of this country with

complete and accurate reports of the affairs of government—whether executive, legislative, or judicial.

I want to thank the committee for allowing freedom-of-information advocates to

present their views on H.R. 1790, the Chemical Safety Information and Site Security Act of 1999. The American Society of Newspaper Editors and its members have

long championed maximum access to government information in recognition of the

vital role an informed citizenry plays in assuring good governance and a secure democracy.

It is our concern that some provisions of H.R. 1790 contradict the traditions and

principles of open government as well as the requirements of current law. This bill

would significantly restrict the flow of vital information about potential health and

safety hazards at the more than sixty thousand chemical plants located in communities across this nation.

As written, this bill would cancel specific directions for providing information to

the public under the Clean Air Act. It would exempt important information from

requirements of the Freedom of Information Act. It would violate specific requirements of the Electronic Freedom of Information Act. More importantly, it would

deny the 40 million American citizens who live in the shadow of those sixty thousand chemical plants the information they need to act and to demand action to protect their loved ones and their communities.

U.S. citizens and their elected leaders have been especially mindful of the specter

of an accidental or intentional release of hazardous chemicals, explosions and fires

since 1984, when a chemical plant accident in Bhopal, India killed more than 2,000

people. The reality of that tragedy struck closer to home a year later with the release of toxic gas at the Union Carbide plant in Institute, West Virginia. That accident resulted in the hospitalization of more than 135 people and the evacuation of

many others.

Spurred by public anxiety about those incidents and the possibility of others, Congress amended the Clean Air Act in 1990 to require the thousands of companies

manufacturing, storing or transporting hazardous chemicals to develop risk management plans to be disclosed to the public. This requirement served the purposes of

making citizens and taxpayers more aware, enlisting them as partners in making

communities more secure, and reassuring them that their government places the

public interest above special interests.

To implement the provisions of the amended Clean Air Act, the Environmental

Protection Agency has decided quite correctly, and in compliance with the Electronic

Freedom of Information Act, that the Internet would be the most effective and

democratic way to distribute this information. Unfortunately, reservations expressed

by federal security agencies forced the EPA to abandon that strategy. As the June

21 deadline for disclosure of this information approached and the memory of those

chemical disasters dimmed, federal security agencies and the chemical industry
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began to talk about a point-and-click worst-case-scenario: terrorists might use information on the Internet to create a chemical catastrophe in one or more of our communities.

Please bear in mind what the proposed risk management plan database would

contain: inventories of 140 different chemicals, accident histories, where and how accidental chemical releases could occur, and the populations that would be affected—

in other words, ‘‘worst-case scenarios’’ and ‘‘off-site consequence analyses.’’ This

database would not contain security information, storage tank locations, classified

information, or clues as to how a release could be triggered. In other words, as a

blueprint for sabotage, the database would not be very helpful.

As a guide for citizens interested in making sure that chemical plants in their

neighborhoods were hardened against accidental or intentional releases, however,

such information would be invaluable.

The concerns of agencies and officials charged with protecting us from terrorist

attacks certainly are understandable. But restricting the flow of information leaves

citizens in ignorance while a variety of information is readily available to wouldbe terrorists who care to check telephone and city directories (online or off-line), attend chemical industry trade shows, check out chemical manufacturing directories

in libraries, peruse EPA databases already posted, or even access congressional testimony posted on the Internet.

It seems a safe assumption that a terrorist organization would be much more likely to select a chemical plant target based on political impact or inside information

about vulnerabilities than as a result of its appearance in an Internet database. And

it seems prudent to keep in mind that, during the latest 10-year period to be reported, there were more than a million releases of chemicals because of accidents

and not a single incident of sabotage, let alone sabotage as a result of information

on the Internet. Hundreds of citizens have been killed and many more injured in

the last few years, not as a result of terrorist action but as a result of problems

not addressed at chemical plants.

Nevertheless, H.R. 1790 proposes a ‘‘closed system’’ that would allow release of

worst-case scenario information only to state and local government officials in a difficult-to-access format and would impose fines and prison sentences on government

employees who might misinterpret the restrictions.

Further, this legislation conflicts with the Electronic Freedom of Information Act

of 1996. EFOIA states: ‘‘In making any records available to a person under this

paragraph, 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 its records in forms or formats that are reproducible for purposes of this section.’’ 5 USC § 552(a)(3)(B). Three

years after Congress passed EFOIA, H.R. 1790 would reverse the course toward

more openness set by that Act. Instead of heeding EFOIA’s mandate that all records

be provided in any form or format in which they are readily reproducible, H.R. 1790

explicitly acknowledges that this choice is no longer in the hands of the requestor,

and tips the scales of access back to the government.

EFOIA also states: ‘‘In responding under this paragraph to a request for records,

an agency shall make reasonable efforts to search for the records in electronic form

or format, except when such efforts would significantly interfere with the operation

of the agency’s automated information system.’’ 5 U.S.C. § 552(a)(3)(C). Three years

after the passage of EFOIA, H.R. 1790 effectively says to the public that access to

information in electronic format is more trouble than it is worth. Even though there

is no evidence that searching for worst-case scenario information would do damage

to the agency’s automated information system, and even though these records are

available in electronic format, the EPA is not allowed to decide whether the proper

guidelines for providing information in electronic format are met and instead must

provide this information in paper form only.

Finally, EFOIA states: ‘‘Each agency, in accordance with published rules, shall

make available for public inspection and copying... copies of all records, regardless

of form or format, which have been released to any person under paragraph (3) and

which, because of the nature of their subject matter, the agency determines have

become or are likely to become the subject of subsequent requests for substantially

the same records.’’ 5 U.S.C. § 552(a)(2)(D). Again, only three years after EFOIA afforded federal agencies the opportunity to reduce the volume of paper records they

must keep, reduce the expense of copying these records, and to reduce their own

workloads, H.R. 1790 would cancel the EPA’s authority to determine the dissemination of information with which the EPA is most familiar. The EPA would have no

discretion in determining whether worst-case scenario information is useful and desirable enough to the public to put in electronic format or whether it is just another

record.
112

Freedom of information advocates, including ASNE, maintain that the Freedom

of Information Act is a general law and should not be amended for special interests

or special categories of information. The law has served democracy for more than

three decades, providing access to all information, except for nine specifically drafted and limited exceptions. H.R. 1790 would go a step further than simply adding

to this list by removing an entire set of records from the purview of the FOIA. There

would be no room for interpretation by the EPA as to whether release of these

records pose a real danger and no opportunity for anyone to challenge this decision,

as is the case when a request is denied due to one of the traditional FOIA exemptions.

More generally, H.R. 1790 approaches this admittedly sensitive situation as if information poses more of a threat to U.S. citizens than the toxic chemicals manufactured and stored in their communities. That approach puts data in a meaningful

and utilitarian form beyond the reach of ordinary citizens who would be more likely

to press for additional safety measures if they were fully informed about potential

dangers and more knowledgeable about what other communities in similar situations were doing. In effect, H.R. 1790 would substantially deprive the public and

local governments alike of the following:

A national database providing comprehensive information about the size and nature

of the potential chemical accidents for elected leaders, policy makers and public

safety agencies;

An official resource for individual citizens, civic action groups, and researchers involved in comparing and analyzing safety and security measures from community to community;

Authoritative data to insure more accurate and timely reporting by the news media

on safety concerns and accidents;

A way for families and firms moving to new communities to assess the risks; and

An instrument for evaluating the performance of elected officials and government

agencies in protecting the public.

The public needs to know whether local plants are employing new technologies

and techniques that use fewer chemicals, operate at safer pressures and temperatures, reduce storage amount and time and cut down on the frequency and distance

of transportation. Citizens need to know what the companies in their midst are

doing about secondary containment, automatic shutoffs, alarms, fences, barriers,

buffer zones, security forces, and the off-site impact of a chemical release.

H.R. 1790 would compromise and complicate access to such information.

There are good examples of how providing information about chemical and pollution hazards benefits both the public and the chemical industry. The EPA’s Toxic

Release Inventory, for example, was opposed at the time it was being debated for

many of the same reasons the worst-case scenario information is opposed now. Yet

the TRI has led to significant reductions of chemical dangers and releases as well

as improved safety and security in communities across the nation.

For those in Congress and the administration who believe that information on the

Internet poses more of a threat to our safety and security than toxic and explosive

chemicals in vulnerable plants, we would ask some important questions:

If there is a danger of terrorist activity or targeting, wouldn’t it be better if the

entire community knew and was on the look-out?

Wouldn’t the availability of accurate, up-to-date risk management plans and the

assumption that vulnerabilities were being addressed dissuade rather than attract

would-be terrorists?

Wouldn’t the more sensible approach be to reduce the threat than to reduce the

flow of information?

Isn’t the best defense against a terrorist armed with a modem a community

armed with accurate information?

Mr. Chairman and members of the Committee, this nation’s commitment to open

government is what distinguishes us from others—especially those who wish us

harm and would do us harm. If we deny vital information to American citizens in

anticipation that it might be used by terrorists, they will have damaged an essential

democratic tradition as well as put our citizens and communities more at risk. This

without a single terrorist raising a hand or voicing a threat. The unknown terrorists

only have to sit back and wait for the next preventable chemical plant accident. If

that happens, when that happens, we will have inflicted the injury on ourselves because we have chosen to fear the abstract notion of information in the wrong hands

more than the reality of chemical hazards in the nation’s neighborhoods.

Thank you. I will be happy to try to answer any questions you might have.

Mr. BILIRAKIS. Thank you very much, Mr. McMasters.
113

Honestly, you all have raised some very valid points. The administration was charged—charged themselves, if you will—with the

responsibility of crafting a piece a legislation some few months ago.

Ms. Kinsey, others have said that you really haven’t had much

of an opportunity to review this legislation to see how it might

work from a real world, practical standpoint. Frankly, we have not

had that much of an opportunity either. Why? Because we received

the legislation a few days ago. We have had one hearing on it already. The minority and majority have been working very intently

over these last few days addressing—many of your concerns. I

would wager, that they have addressed the majority of them and

maybe, virtually every one of them. We are concerned about many

of the same things that you have raised.

I would ask you, Ms. Kinsey, has the administration tried to

communicate with your office at all? They say you should never ask

a question unless you know the answer. I have no idea of the answer.

Ms. KINSEY. No, Mr. Chairman, not to my knowledge. I will say

not to my knowledge. If there was contact, I am not aware of it.

Mr. BILIRAKIS. To your knowledge, have they made any attempt

to communicate with any other States attorney generals?

Ms. KINSEY. Not to my knowledge. Not to my knowledge.

Mr. BILIRAKIS. How about the rest of you—any attempts been

made to communicate with you; to get your opinions, your inputs?

Mr. Billings?

Mr. BILLINGS. They have certainly made no attempt to communicate with the National Conference of State Legislatures. Obviously, I wouldn’t know about individual legislatures. But I have a

hunch that this has been pretty much inside baseball.

Mr. BILIRAKIS. Well, time is kind of a-wasting here. Mr. Grumet

made that point very well. Many of us feel that something needs

to be done. We also feel that we want to try to do it right, but we

have to do it within the confines of the time that we are faced with.

Well, I am not going to go into any specific questions here now.

Considering that we don’t have really all that much time, we are

open-minded and would like to get your inputs. If you have any additional comments, please feel free to submit those to us. At the

same time, our staffs may be submitting written questions to you,

which request written responses. Obviously, those responses would

have to be turned-around quickly, unfortunately. Please try to understand our role in all this and the significance of what we are

trying to accomplish. Mr. Brown.

Mr. BROWN. Thank you, Mr. Chairman. The letter that I mentioned in my opening statement from Mayor Qualls in Cincinnati

points out her concern about criminal penalties for the release of

information that local staff or elected official could be subject. She

says that it is unprecedented for locally elected officials to face possibility of jail time based upon guidance from the EPA administrator. Ms. Southwell, in your testimony you mentioned—in your

written testimony, sorry I wasn’t here for your oral testimony—

under section C, part A, if members of LEPCs, as either employees

or volunteers to the local government do the task required of them

they can be arrested, fined or jailed for up to 1 year.
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I guess I am asking any of you if you know of any precedent for

any EPA guidance having this effect on the State and local government? That is the first question. Second, I guess for you, Ms.

Southwell, if you would sort of talk about the effect that has on recruiting the volunteers and hiring—that sort of thing. Start with

if any of you know of any precedent for any EPA guidance? Ms.

Kinsey?

Ms. KINSEY. No, Congressman, I am not aware of any.

Mr. BROWN. Mr. Grumet?

Mr. GRUMET. My members and directors are often underpaid.

They are often disrespected. They have never been jailed or fined,

to my knowledge.

Mr. BROWN. That is where it starts. Ms. Southwell?

Ms. SOUTHWELL. Well, as a person who works for county government, we have to be very cautious and careful about protecting the

rights of citizens; of taking care of people in our community. It is

what our job is really all about. I can truthfully say that never once

have I ever been concerned that in working at a spill site, doing

planning, or doing any of the other jobs that I have done for

Washtenaw County, that I would not have the full support of that

county. Never once was I concerned that I was going to be sent to

jail for a year, or be fined, because I was doing my job. What really

alarms me about this is that I see this as a no-win situation for

a person on the LEPC. I added some appendices of different legislation. Under SARA title III, I am required to do this; this is part

of my job. Under this bill, if I do my job, then I am facing penalties

and possible jail time. I see this as a terrible conflict.

One of the wonderful things that LEPCs have done in the past

12 years is that they have brought to the table citizens, facility coordinators, business owners, professionals, and advocates for the

environment and have really built some incredible relationships.

Based on those, in our community alone we have seen these relationships continue to grow and become partners in things like pollution prevention. We have seen people, who before were at opposite ends of the table, sitting down together and taking those

chances, and taking that opportunity to protect our community and

take good care of the environment where we all live together. It

opened the door for that trust and credibility when we had to sit

down and start planning together because it was required of us.

We didn’t like each other, necessarily, at first. Now we get along

pretty well. If you close that door, and you hide things again, what

is the message to the communities? What is the message to people

if we take those steps that government worked so hard to open?

I have a lot of concerns. It will impact our LEPC. Frankly, if I

were those people, I would quit. I can’t because it is my job. They

promised that they would protect me if I go to jail.

Mr. BROWN. Thank you. Anybody else want to add to that?

Mr. BILLINGS. Congressman, an additive point is that because

this legislation not only is preemptive, it also would expose officials

operating under State law to these penalties. So if the State of

Maryland enacted its own legislation which gathered similar kinds

of data, these employees would be exposed to those Federal penalties if they released the data that was gathered under State law.

That is almost preposterous. I think it is preposterous.
115

Mr. BROWN. Ms. Kinsey, what happens to worst-case scenario

data in an area near a State line? Is there a problem of Maryland

sharing with Delaware, or Maryland sharing with Pennsylvania?

To me it seems that it is not clear in the legislation what happens

there. What is your read?

Ms. KINSEY. I think that the legislation purports to prevent

Maryland from sharing such information. I think a real concern

that we have is that when a citizen of Maryland requests of its

State and local government information relating to a border facility—a facility that is located in another state, but very close to the

state line—which does clearly have an impact environmentally, or

in health or safety respects on that particular citizen or its community; the State, as I read this bill, would be precluded from providing that citizen with that information. I think our citizens in

Maryland—and I think I probably speak for other attorneys general—have a legitimate right to expect their local government to be

able to provide them with that kind of information. We are not

clear on the justification for that provision in the bill.

Mr. BILIRAKIS. Did you want to add something to that?

Mr. GRUMET. For a moment. The whole very purpose of our organization is based on the premise that air pollution doesn’t attend

to these political boundaries. The goal of working together to come

up with a more regionally appropriate solution, we think, is very

challenged by the ideas in this bill.

Mr. BILIRAKIS. Well put. Mr. Burr.

Mr. BURR. Thank you, Mr. Chairman. Ms. Southwell, I fully understand the concerns that you have as it relates to the criminal

penalty part. The EPA is—I think—on record as saying that they

are working to clarify that language. I think the EPA, if they were

here today, would say that for the LEPCs, once they fix that criminal penalty clause, that you would be able to give oral presentations on worst-case scenarios; distribute written copies of worstcase scenarios; prepare overhead presentations of worst-case scenarios; prepare analysis and research of worst-case scenarios; and

prepare and distribute information or brochures on worst-case scenarios.

Given that, which is full access to disseminate this information,

with the exception of it being electronic access or electronic distribution, would that eliminate your concerns?

Ms. SOUTHWELL. No it wouldn’t. I didn’t get an opportunity to

address that, but it is in my testimony. It will eliminate my concern about going to jail. I will sleep better tonight. We have over

1,400 records already in Washtenaw County that we are preparing

to put on our website.

Mr. BURR. So you would be against this bill because it limits you

from not being able to access it electronically?

Ms. SOUTHWELL. Absolutely. Think about 66,000 facilities and all

of LEPCs hammering at the door of EPA—because that is where

the information is going—to get that information so that we can

plan effectively for our communities.

Mr. BURR. Clearly, the intent is to have the information out.

That is still to be worked out. Mr. Grumet, if it is not electronically

you are against it—perfect bill, but not electronic?

Mr. GRUMET. Well, I think it is——
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Mr. BURR. It is a yes or no. I have only 5 minutes.

Mr. GRUMET. Yes, I am still against it.

Mr. BURR. Ms. Kinsey?

Ms. DEGETTE. Yes, I think would have to say.

Mr. BURR. Mr. Natan?

Mr. NATAN. Yes.

Mr. BURR. Mr. McMasters, I think I know your answer.

Mr. MCMASTERS. Absolutely.

Mr. BURR. I look forward, the next time, to see your journalist

notes listed also next to the story so that we can get the full story

as well. Mr. Billings—Representative Billings, excuse me.

Mr. BILLINGS. Delegate, actually; but, yes.

Mr. BURR. Representative Billings, you have quite a history in

Washington; one that goes back with some very distinguished fellows. Certainly, your election to the House of Delegates is one that

gives this committee an indication of just how well thought of you

are.

Today, though, are you here as a State legislator, or as a lobbyist?

Mr. BILLINGS. I am here as a State legislator.

Mr. BURR. The reason I ask the question is that most who come

list their disclosures on who they represent. I think that you can

probably understand why we might have a concern and need the

clarification.

Mr. BILLINGS. Congressman, in the first place, I wouldn’t be here

if I were representing anybody except in my capacity as I disclosed

at the beginning of my statement.

Mr. BURR. None of you current or past billing customers would

have an interest in the outcome of this legislation?

Mr. BILLINGS. My past? I don’t know. I used to represent the

South Coast Air Quality Management District. They probably

would be concerned by this legislation.

Mr. BURR. As a State legislator, do you understand the unique

responsibility that we have to balance the national security with

the community right-to-know as it relates to this?

Mr. BILLINGS. Yes. As a matter of fact, Congressman, I was

thinking during this testimony about that there is always a tension

between the exercise of the police function and the protection of a

robust democracy. Historically, this country has erred on the side

of protecting a robust democracy and restraining the police function. I think that is a lesson that is well applied in considering this

legislation. We have to be extremely careful when we say that the

communities’ right-to-know and government agencies’ right-toknow is less important than some demonstrated police or security

concern. I think we have to be very careful.

Mr. BURR. Thomas Jefferson said, ‘‘I am not an advocate of frequent changes in laws and constitutions. But laws and institutions

must advance to keep pace with the progress of the human mind.’’

I think to future legislators, that was a message that we must

change as society changes. We must stay ahead of the technological

curve.

I think it also works in reverse. We must understand the full impact of technology. The fact is, if this were 12 years ago with no
117

developed Internet, we really wouldn’t be here, because one of the

options on the table would not be electronic transfer.

Assuming, Ms. Southwell, that we have the criminal penalty side

fixed—I think that is a commitment that we all have—would there

be anybody that would disagree that if there was not an Internet

and we fixed that part, we wouldn’t be here? It wouldn’t be an option on the table to have electronic transfer. I think that Jefferson’s

words are important for us to look at and to say—in this particular

case—if we look for that balance, hopefully we don’t err too far on

the side of the police state. Hopefully, we do fulfill the law as it

relates to the community right-to-know. Finding that balance is important. I don’t think, Representative Billings, that it is limited to

a Republican Congress, as you stated in your testimony.

Mr. BILLINGS. I actually corrected that and said the administration and a Republican Congress.

Mr. BILIRAKIS. With all due respect, sir, it isn’t the Republican

Congress. It is just that we have the responsibility here of addressing it. The Democrats would have the responsibility of addressing

it if they were they majority.

Mr. BURR. One of the few times that we have been asked to carry

the administration’s order, I think, Mr. Chairman. I thank all of

you for your willingness on short notice to come before the committee and be candid about your position on these issues.

Mr. BILIRAKIS. The gentleman’s time has run out.

Mr. BURR. I yield back the balance of my time, Mr. Chairman.

Mr. BILIRAKIS. You are always yielding back the balance of the

time that you don’t have, Richard.

Ms. DeGette.

Ms. DEGETTE. Thank you, Mr. Chairman. Also, thank you to my

colleague from California for letting me go out of order. Thank you,

Mr. Chairman, for holding this follow-up hearing to what I thought

was an illuminating hearing last week, but not complete. Certainly

this panel’s testimony gives us more complete information.

You spelled it all out pretty well for us. I guess I would like some

of you—or all of you—to comment briefly on what threat you really

think posting this information on the Internet would give, via terrorists or criminals getting this information in ways that they

might not have it? How much if this information will they get that

they wouldn’t be able to get otherwise? Maybe, Ms. Southwell, you

could start and tell me: the facilities you work with, are they worried that there would be information posted that wouldn’t otherwise be there?

Ms. SOUTHWELL. Actually, they are not. I think the reason for

that is because their concern, back when we started doing planning, was that maps of the facility would be available to the public

and something terrible was going to happen. They were worried 12

years ago that the bomb would fall right on their facility if they

had the map. That kind of mapping is not going to be available.

Anyone with a pencil and a National Response Team guidebook,

just via the chemical inventory, could sit down and create a plume

model; would know how bad this could really be; and would know

what the potential consequences would be if they blew up that facility—if that is, indeed, the concern.
118

So that information has been out for so long. Facilities are not

concerned about that at all. They are much more concerned about

getting their risk management plan in by June 21.

Mr. GRUMET. If I could add to that, Congresswoman? Your question and earlier questions make a presumption that, I think, is

worth exploring: that this law, in fact, would stop this information

from getting on the Internet, even with the punitive penalties at

avail. It was only a couple of weeks ago when of the names of several—tens, I think, if not hundreds—British secret agents were

posted on the Internet. Now, obviously, that is a security breach

the likes of which nothing here we are talking about obtains. What

I suggest is that in free democracy, controlling information is ultimately—I think—a failing exercise.

I would suggest to you that this information will wind up on the

Internet regardless—fortunately or unfortunately—of what happens here. Rather than trying to invest our resources in trying to

constrain and control that, we would be better served to use that

information to protect ourselves. I refer back to the other comments

that many of us have made: we think there are many opportunities

to make these sites much more secure than they are today.

Ms. DEGETTE. Anyone else?

Ms. KINSEY. I would just agree with both Mr. Grumet’s comments and Ms. Southwell’s comments. We think that a lot of this

information is out there now. Maryland is one of the States that

has been encouraging this kind of exchange of information between

facilities and the communities that those facilities are located in,

for a number of years now. So, I would agree that this information

will make its way onto the Internet.

Ms. DEGETTE. And I would assume, Ms. Kinsey, that facilities

are taking steps to protect themselves against terrorist activity,

based on the assumption that people have full information from

other sources.

Ms. KINSEY. Yes, I would assume that to be true. I don’t have

personal knowledge, myself, of what security measures or plans

have been implemented; but I would assume that to be the case.

Ms. DEGETTE. Great. Thank you very much. I will yield back.

Mr. BILIRAKIS. I thank the gentlelady. Mr. Bryant.

Mr. BRYANT. Thank you, Mr. Chairman. I apologize to this committee and the witnesses for being late. I was unable to hear most

of your testimony. I have skimmed through some of the statements

that you have sent to us.

I appreciate where you all are coming from, and the fact that you

do have legitimate concerns. As our subcommittee chairman has indicated, there are problems with this bill that can be, I believe,

fixed. We are all after the same end here, that is: public safety.

Whether it is from an accidental situation at a plant, or whether

it is from a terrorist bomb or action, there is a potential for public

risk to public safety in either event. What we are trying to do is

come up with a bill that fulfills the law; and in an appropriate way,

balances those competing interests.

I think it has also been made clear to all here that this bill has

been hashed out over a period of time by various groups, including

the President, the Department of Justice, the EPA, and the FBI—

people like that who, by and large, have that same public interest
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at issue. Particularly with the EPA, if they are going to tilt one

way or the other, it is going to be to the public safety from accidental discharge, public knowledge, and access to this knowledge.

It seems to me that those folks are the ones that are going to typically be that way.

Maybe the FBI tends to be more the other way. I am certainly

impressed by the FBI and have been a supporter of those folks for

a long time. Am I correct in understanding that none of your

groups were consulted during this? You all are nodding ‘‘yes.’’ Your

presence today and input into this is going to be taken into consideration as this bill is worked through this subcommittee, the full

committee, the full House, and ultimately the Senate. Hopefully,

the President will sign a bill.

I do appreciate your coming here and giving your opinions. Mr.

McMasters, I have represented a newspaper before—not on this

issue—but other things: freedom of information actions, sunshine

law violations, as well as libel lawsuit, and things of that nature.

I appreciate your interest.

I would tell you that from my standpoint—Ms. Kinsey, you being

a State attorney general, maybe we have some commonality here

on this point—I have a great deal of sympathy for what the law

enforcement people are trying to do here, too.

Again, that is why we are all paid so much up here. We are to

try to strike that fair balance that maybe makes everybody mostly

happy, but not completely happy. Clearly, the issue of the criminal

penalty is something that I think we can all agree on there. That

is going to have to be reworked. I am optimistic. We have a lot of

bright people on the subcommittee and the committee—I am talking mainly about the staff people. We do appreciate your accommodating us on such a short time schedule.

I yield back my time.

Mr. BILIRAKIS. I thank the gentleman. Mr. Waxman.

Mr. WAXMAN. Thank you, Mr. Chairman. I have listened very

carefully to what Mr. Bryant had to say. I think we are all struggling with this question. If you look at it from the perspective of

information being on the Internet, and a terrorist searching for information; you could come up with this conclusion: don’t let anybody have any information. If nobody has information, then terrorists won’t have information.

But the only way this bill deals with the possible terrorists

threat is to stop the flow of information. It doesn’t deal with—it

seems to me—the more logical concern, and that is the security of

these sites where the facilities are located. I thought Mr.

McMasters, in the last couple of pages of his testimony, was right

on target: ‘‘For those in Congress and the administration who believe that information on the Internet poses more of threat to our

safety and security than toxic and explosive chemicals in vulnerable plants, we would ask some important questions.’’ He asks

wouldn’t it be better if the entire community knew and were on the

look-out? Wouldn’t the availability of accurate, up-to-date management plans and the assumption of vulnerabilities being addressed

dissuade, rather than attract terrorists? The more sensible approach would be to reduce the threat than to reduce the flow of information.
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Mr. Billings cited the statements put in by the ATSDR. They

said in one of their reports that, ‘‘Security at chemical plants

ranges from fair to poor.’’ They point out that security measures at

abortion clinics is, in general, far superior to the security at chemical plants. That doesn’t make any sense; except they realized that

they are vulnerable so they have tried to take steps to protect

themselves.

Chemical plants ought to be taking steps, as well. In fact, one of

the proposals that we have made is that there be a task force convened to look at ways to make these sites more secure. That should

be the primary way to deal with a possible threat.

I was trying to listen carefully to Mr. Burr’s question. He was

asking what if we dropped the criminal penalties out of this bill?

The criminal penalties, obviously, make no sense. It is just absurd

that someone should possibly be facing criminal charges for disseminating information that is publicly available. Even with criminal penalties out, if the fear is with information getting on the

Internet, somebody is going to put it on the Internet. Isn’t that

right? Mr. Grumet, you are shaking your head.

Mr. GRUMET. In my experience. I don’t surf the Web often.

Ms. SOUTHWELL. I surf the Web a lot.

Mr. WAXMAN. Are you a terrorist, by any chance?

Ms. SOUTHWELL. Not yet.

Mr. BURR. If the gentleman would yield. Clarifying the language

was the term I used. Not dropping it; but clarifying the language

for criminal penalty.

Mr. WAXMAN. So you would keep some criminal penalties?

Mr. BURR. I am using the EPA’s terminology. I don’t know how

they define that, yet.

Mr. WAXMAN. I don’t want to attribute anything to you that

would not be your point of view. You were suggesting that if they

modified or changed the language of the bill—which has to be offensive to all of us in the way that it is presently drafted—would

it be acceptable? It just seems to me that it does not stop the problem of information that is made public being known by the public,

and people in the public that we wish didn’t have that information.

So the question is: should we stop the flow of information when

we know that flow of information can be so important to prevent

accidents to prevent possible terrorist attacks? Should that be our

focus; or should we put our focus on the site?

Mr. McMasters, you had a whole litany of things that you

thought could be done at these sites that might be helpful.

Mr. MCMASTERS. As we have seen with the toxic release inventory, Congressman, there has been all sorts of improvements that

I think can be directly attributable to the release of information to

the public.

Mr. WAXMAN. What about the sites?

Mr. MCMASTERS. Well, the kinds of things at the sites that I

think are interesting as far as getting information to the public, is

looking at—I am trying to find the actual list that I gave, here——

Mr. WAXMAN. Well, on page six.

Mr. MCMASTERS. ‘‘Citizens need to know the companies in their

midst are doing about secondary containment, automatic shutoffs,

alarms, fences, barriers, bugger zones, security forces, and the off-
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site impact of a chemical release.’’ All of those kinds of things are

starting places with this data base that originally was proposed by

the EPA. The EPA backed off the proposal of putting this on the

Internet after being contacted by the FBI, who was contacted by

the Chemical Manufacturers Association.

So I feel that there is probably more people out there that people

wouldn’t want getting hold of this information in a data basesearchable form, including journalists.

Mr. WAXMAN. Thank you, Mr. Chairman.

Mr. BILIRAKIS. Thank you, sir. Mr. Green.

Mr. GREEN. Thank you, Mr. Chairman. I want to welcome Delegate Billings. I was a state senator and Mayor Whitmire, in Houston, appointed me to our LEPC in the 1980’s. I think it was a punishment, because I had to run for Congress to be able to leave

gracefully.

I do know in the inception of it—and it worked for the first

time—the industries I represented actually sat down with emergency personnel in the city of Houston, because that was our area,

and shared that information. That is what I fear with this. My

good friend, Richard, I think you have a point: if we didn’t have

the Internet, we wouldn’t be worried about it. But, frankly, we

could go back to stone tablets.

I have found that you cannot stop technology. If we are going to

say that you can’t put it on the Internet and it is still public record,

somebody will have access to it. If you are worried about it going

to some foreign country—it can be mailed. There are lots of ways

to do it. I also understand the difference in police versus public information in our national security. That is why this is cloaked in

national security.

Nobody ever asked me as a State legislator whether I had anything to do with national security, but that is our role here. That

is why I think the balance, if we can find something. Let me ask

first, I think we all agree that the bill is well-intentioned. How can

we address the fear and still eliminate some of the major flaws?

Do any of you have any suggestions on how we can change the bill?

Other than tinker with the criminal penalties, can we protect the

community’s right-to-know and share the information, and yet still

limit the risk?

Actually, Mr. Waxman is correct. There is not a business in the

country that can’t do better, whether in this business or anything

else. Do you have any suggestions on the actual legislation?

Mr. BILLINGS. Well, one, I think that several members of the

panel have suggested that if you going to make these kinds of judgments, they ought to be case-by-case decisions, and not exempting

66,000 facilities without any determination as to what the nature

of the risk is, and so on. So, one is case-by-case.

No. 2, is the ATSDR report that Congressman Waxman cited. It

suggests that there are a number of the facilities which, apparently, are not secure. So, it would seem to me that the second thing

you would do would be to address the question of the extent to

which you have secure facilities. Once we have secure facilities,

and trained personnel, and so on; then I think you can go to the

next step of determining what the risk is, and talk about legislation like this.
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Mr. GREEN. Any other suggestions?

Ms. SOUTHWELL. One of the things that I have also done as part

of county government is to work with emergency management,

which would be like the local county branch part of FEMA. It was

required to do risk and hazard analysis. They are quite capable of

that, and putting together an emergency operation plan of which

the LEPC plans all come together. I think that emergency management is very capable at the local level of working with facilities at

helping them assess their vulnerability, and to looking at what

kind of risks and hazards that these facilities have in the community. I think that is a natural arm that is already in place to address this particular issue. The technical guidance is there. The information is there. I think that that would be a much better way:

to work with those facilities in what makes them vulnerable and

how can be best prop that up, as opposed to taking away their

right to information.

Mr. GRUMET. If I could just also amplify. I think the Northeast

States, essentially, share Delegate Billings’ notion that of the

66,000 facilities, there has got to be some variation of risk. If there

might be a couple of hundred facilities which, due to their very

dangerous chemicals and their dramatic insecurity, should be exempted from this—recognizing that, therefore, there would be a

process in place to fix that problem, not just obscure it—would be

a very different approach to this legislation. I don’t have a particular legislative proposal, but that concept strikes me as appropriate.

Mr. GREEN. I think that gives us something. Before I run out of

time, let me ask something else because we are up to the June 21

deadline. Things happen quicker in the House of Delegates than it

does in Congress. To change this, do you think, Mr. Chairman, we

might look at passing on a short basis an extension of that deadline to be able to work out something like giving the authority of

case-by-case, if there is a real national security, compared to, like

you said, the number of facilities?

Mr. BILIRAKIS. Was that a question?

Mr. GREEN. That was a question. Extending the deadline.

Mr. NATAN. As long as there some provision for, during that

time, also assessing what the benefits of risk reduction might pose

toward countering any decrease in information available to the

public. Also, simply, if a certain time expired and they have not

reached that compromise, that information would simply be available.

Mr. GRUMET. Can I add to that? Extending the posting deadline

should have no basis on the submission deadline. I would see those

as separate questions.

Mr. GREEN. Yes, the submission deadline. Again, I know that, at

least in my area, they have been working to be able to do that.

Thank you, Mr. Chairman. Thank you for doing the hearing

today. I think it has given us another side.

Mr. BILIRAKIS. It has. Mr. Barrett.

Mr. BARRETT. Thank you, Mr. Chairman. I also thank you for

holding the hearing today. I apologize for missing much of the testimony. So my questions may be redundant, or might be pretty elementary. Perhaps you can better understand some of the concerns

that we have here.
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My understanding is that the information that we are talking

about is kept by a Federal depository library. The question that I

have, for any of you that might know the answer to this, whether

you know of any Federal statute that provides that information

that is kept by a Federal depository library can only be disseminated in certain electronic formats, or that place restrictions on the

ability of the patrons to copy them?

Nobody? Okay. The second question has to do with—I think Mr.

Waxman made reference to the criminalization here—whether

there is a precedent for criminalizing the release of information in

an electronic form that would not be a crime to release in a nonelectronic form? Are we going in a new area here? Mr. McMasters,

do you know of any?

Mr. MCMASTERS. I know of no example of that, sir.

Mr. NATAN. With regard to electronic form of information, as Mr.

Burr has asked before, the simple fact of having it available electronically means that you as a local citizen, who may be subjected

to 80 or more chemical plants in a 50-mile area around your home,

can easily prioritize which ones you need to worry about, rather

than looking through thousands of pieces of paper. That is the advantage of the electronic dissemination. All it takes is a simple

spreadsheet given to you on disk. It does not have to come over the

Internet.

Mr. BARRETT. Okay. Ms. Southwell?

Ms. SOUTHWELL. I just wanted to say that we are already preparing to put our SARA title III facility plans online. Many of the

facilities that are captured under the Clean Air Act amendments

are also SARA title III facilities. So if we move forward, under this

legislation, with those plans to do best we can for the spirit of community right-to-know—you know, make that as available as possible—I am afraid we are already going to be in trouble. Until we

hear about whatever happens with this bill, we are not going to be

able to move forward.

Mr. BARRETT. Not really. At the risk of showing what a computer

Neanderthal I am, with the prohibition, I assume it means you

can’t create a website with this information on it? Is that what we

are saying here?

Ms. SOUTHWELL. It is not just a website. It means that there can

be no electronic transfer of the data.

Mr. BARRETT. I could not e-mail information?

Ms. SOUTHWELL. Right.

Mr. NATAN. You couldn’t even get it on diskette.

Ms. SOUTHWELL. Right, because that is electronic.

Mr. BARRETT. You could not use this method of communication,

period.

Mr. NATAN. Only on paper.

Ms. SOUTHWELL. You cannot use your computer, at all.

Mr. MCMASTERS. That would thwart, for instance, the ability of

researchers, journalists and others being able to do comparative

analysis using the data base information; and report to all of those

American citizens who don’t have access to the Internet; and give

them some idea of what is out there and what one community is

doing as opposed to another community; and what one plant is

doing as compared to another plant.
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Mr. BARRETT. If one of you would play devil’s advocate and tell

me why we would want to prohibit Internet or electronic communication, but not paper communication. What is the argument for

doing that?

Ms. SOUTHWELL. I think that one of the things that will happen—and it was addressed before, but I would reiterate again—is

that if this is available on paper, someone is going to take it and

put it on the Internet, anyway. It is just going to happen. That

needs to be a longer and more thoughtful process. If it is available

on paper, it doesn’t mean that I will put it on the Internet. But it

could be that a citizen comes into my office and asks for that information. We make them copies. They put it out there. It will still

be there.

Mr. BARRETT. Okay. Finally, I think we understand the goal of

the legislation. Is there another way that you would fashion trying

to deal with this problem? Again, Mr. McMasters, I think in your

testimony you talked about all the accidents at chemical companies, as opposed to sabotage that occurs on the Internet. Are we

searching? Do you think there is another way to get at this issue?

Mr. MCMASTERS. My suggestion was that in restricting this flow

of information, and preventing it being posted electronically, you

are just really inconveniencing the citizens. The determined terrorist, who really is wanting to target an individual plant, or

plants, already has any number of ways of getting at this kind of

information. It is the citizens who are denied the information that

they might be able to harden their communities and the plants

from them.

Mr. BARRETT. Thank you. Thank you, Mr. Chairman.

Mr. BILIRAKIS. Thank you, Mr. Barrett. Mr. Stupak, to inquire.

Mr. STUPAK. Thank you, Mr. Chairman. I apologize for being

late. I had a number of other things going on today. Ms. Southwell,

you are a coordinator for a local emergency planning committee, in

Ann Arbor? Could you explain to me the importance for you to be

able to disseminate, electronically or otherwise, information that

identifies a likely plume dispersion path of each chemical in the

worst-case scenario; and to identify potentially affected regions and

populations? Explain why that is important to you.

Ms. SOUTHWELL. Why it is so critical?

Mr. STUPAK. Yes.

Ms. SOUTHWELL. It is critical to citizens, to the people who live

in our area, because it lets them begin to make informed decisions

about choices that they are going to make. It can help them be prepared for just-in-case. It doesn’t mean panic. It just means being

prepared for just-in-case. There are things that you can do. We all

saw them during the war, when people in Israel were putting plastic up over their windows, and had a central room. That is one of

the things. We would like to help them be prepared.

One of the things that we have done is that we have helped our

hospitals, through looking at our chemical inventories in our community, determine what kind medications they need to keep on

hand in case there is a spill in our vicinity. Some of those medications are time-sensitive and very expensive. So this helps them be

prepared as well.
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Mr. STUPAK. Do you have a lot of that information out right now,

electronically, for people to access?

Ms. SOUTHWELL. We were in the process of putting it on our

website. We have a lot of the information up there. We have been

putting it into tables, and creating all the mechanisms we needed

to post that all to our website. So, we were going to go forward on

that, as well.

Mr. STUPAK. Okay. Thanks. Maybe to Mr. Billings and Ms.

Kinsey, the application of this legislation to States that have been

delegated by section 112(r); two States and two territories have already received delegation, and over a dozen others have applications pending. EPA officials have told the staff that in their opinion, States that have received delegation of the section 112(r) program, in lieu of the Federal Government, are preempted by this

legislation and by the terms of whatever guidance that is issued.

Is the preemption of State programs, in States which have been

delegated the section 112(r) program, of any concern to you—the

preemption issue?

Ms. KINSEY. Congressman, we haven’t had a chance to look at

that issue. It was an issue that was identified recently. I am not

sure, at this point in time, exactly what the impact is going to be

on States that have received delegation, or wish to receive delegation. We would be happy to follow-up with the committee on that

issue.

Mr. STUPAK. Mr. Billings?

Mr. BILLINGS. Yes. It is my impression, Congressman, that as

you stated, those programs would be preempted back to the Federal Government. The delegation would disappear. Of course, our

problem is not just with the preemption as it applies to the delegated States, but the overall preemption in the bill as it applies to

environmental responsibility.

Mr. STUPAK. Okay. Well, can the State officials in the delegated

States distribute the OCA information by e-mail to a community

group, or a school parents’ organization, for every facility within a

50-mile radius of their school or housing subdivision?

Mr. BILLINGS. I would think that both on the face of the legislation, it could not. Also, we have no idea what this guidance would

say, which would make it even more difficult.

Mr. STUPAK. Anyone else want to answer that one?

Mr. NATAN. It prohibits all electronic dissemination of this information: e-mail, Internet, disk, tape, CD—whatever.

Mr. STUPAK. Anyone else? Mr. Chairman, I yield back. Those

were the three questions that I had.

Mr. BILIRAKIS. Thank you, Mr. Stupak. Well our timing, for a

change, was perfect, because we have a vote on the floor. We will

finish up.

I do want to, first of all, thank you so very much for taking time

to be here. You have been very helpful. Many of your points, I have

already told you, have been recognized by the committees’ staffs.

We have submitted a request to the EPA that we are waiting for

now, for corrective-type of language as far as the legislation is concerned. Hopefully, we will ultimately come up with a package

which is not as ruinous as many of you may think it is. Let us see
126

what happens. You have been very helpful. We appreciate it very

much.

The committee is adjourned.

[Whereupon, at 4:17 p.m., the subcommittee was adjourned.]

[Additional material submitted for the record follows:]

PREPARED STATEMENT OF THE NATIONAL CONFERENCE OF STATE LEGISLATURES

The National Conference of State Legislatures understands the goals underlying

H.R. 1790, the Chemical Safety Information and Site Security Act of 1999. This bill

is intended to protect human health and the environment by keeping off-site consequence analysis (OCA) data from being available as a nation-wide searchable

database on the Internet. OCA information includes descriptions of the worst possible effects that a chemical spill would have on neighboring populations and the

environment, also referred to as ‘‘worst-case release scenarios.’’

NCSL understands that H.R. 1790 is intended to provide the following:

• All information in risk management plans submitted by facilities that contain

hazardous chemicals will be available over the Internet, as required by the

Clean Air Act. The only portions of the risk management plans that will not

be posted are OCA data.

• State and local government officials will have access to OCA information in electronic form as a nation-wide, searchable database.

• States will be allowed to distribute limited numbers of paper copies of OCA information to the public upon request. The U.S. Environmental Protection Agency

will be responsible for developing guidance that sets limits on the amount of

paper information distributed to the public upon request.

NCSL understands the intent of H.R. 1790 but is concerned about the language

of the bill as introduced. NCSL has three concerns. First, NCSL believes the states

need unimpeded access to nation-wide OCA information. Second, NCSL firmly supports state consultation during development of federal policy governing access to

OCA information. Third, NCSL is concerned about provisions of the H.R. 1790 that

may preempt state freedom of information laws.

First, states have an obligation to plan for and respond to chemical releases that

occur within their borders. In order to fulfill these planning and response duties,

states must have unimpeded access to OCA information. As introduced, H.R. 1790

provides authority for the EPA administrator to withhold OCA information from the

states. Specifically, NCSL recommends amending Section 2(c)(2) and Section 2(f) to

ensure that the proper state planning and response authorities have access to sitespecific, nation-wide OCA data in electronic form.

Second, states should be consulted during development of federal policy governing

public access to OCA information. As introduced, H.R. 1790 requires the EPA administrator to consult with officials from other federal agencies during development

of policy regarding availability of OCA information in both electronic and paper

form. NCSL recommends amending Section 2(c)(7) and Section 2(d)(1) to require the

EPA administrator to also consult with state officials during development of such

policy.

Third, H.R. 1790 may preempt state freedom of information laws in order to limit

or control distribution to the public of OCA information. It is NCSL policy that federal preemption of state law is not warranted, except when necessary or unavoidable in specific instances when a compelling national objective must be achieved.

NCSL urges Congress and the administration to clearly articulate the risks to national security posed by a nation-wide, searchable OCA database on the Internet.

NCSL looks forward to working with Congress and the administration members

and staff to craft a bill that provides the utmost protection of public health and the

environment.