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TESTIMONY OF TIMOTHY FIELDS, JR.

TESTIMONY OF
TIMOTHY FIELDS, JR.,
ACTING ASSISTANT ADMINISTRATOR FOR
SOLID WASTE AND EMERGENCY RESPONSE
U.S. ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE
SUBCOMMITTEE ON HEALTH AND ENVIRONMENT
OF THE COMMITTEE ON COMMERCE
U.S. HOUSE OF REPRESENTATIVES

May 19, 1999

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.

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 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 find out what steps are taking prevent an accidental release. through this information, can make risk-based decisions regarding responsibility operate safely. it has been said facility social contact with community lost if does not safely communicate effectively 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 whether 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:

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, 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.

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