Colorado SERC's comment on proposed RMP "worst case
scenario" rule.
Return to main RMP proposed rule page and send your own comment.
June 2, 2000
Environmental Protection Agency
Office of Air and Radiation
Docket and Information Center
Ariel Rios Building, M6102
1200 Pennsylvania Avenue NW
Washington DC 20460
Attn: Docket No. A-200-20
Dear EPA:
We are pleased to have this opportunity to comment on the proposed regulation
regarding "Distribution of Off-Site Consequence Analysis Information" as stated
at 65 FR 24934.
We are the state emergency response commission for Colorado. As such, we have
detailed knowledge of the needs and capabilities of the Local Emergency Planning
Committees ("LEPCs"), fire departments, hazardous materials response teams and
public in the state. Even though Colorado has not sought delegation of the risk
management program, we have studied the program, worked with the data
produced in the program, worked with facilities regulated under the program and
adopted our own efforts to increase the use of risk management plans in response
planning and preparedness.
We are disappointed with this proposal. As discussed below in a more detailed
fashion, we believe that the proposal does not comply with your statutory
obligations. In addition, the proposal places significant and unreasonable burdens
on agencies of local government, LEPCs and the public. Lastly, the proposal
raises serious First Amendment and environmental justice issues.
The Chemical Safety Information, Site Security and Fuels Regulatory Relief Act
("CSISSFRRA") provides the statutory authority for this rulemaking. In section
3(a) the Clean Air Act is amended to add a new section H dealing with public
access to information. In subpart (ii)(I) the President is to assess the increased
risk of terrorist and other criminal activity associated with unfettered Internet
access to off-site consequence analysis information and the incentives created by
public access to this information for reduction of the risk of accidental releases.
Docket No. A-200-20
June 2, 2000
Page 2
Section (ii)(II) requires that the regulations govern the distribution of off-site consequence
information in a manner that minimizes the likelihood of accidental releases and the risks
disclosed in the assessments and the likelihood of harm to public health and welfare.
In our view this language is a balancing test. It does not say that distribution of off-site
consequence analysis information must be conducted in a fashion that avoids all risk. It does not
say that benefits to the public from disclosure of this information can be ignored.
This proposal does not reflect any of the benefits described in the EPA assessment. It makes no
use of off-site consequence analysis information to minimize the likelihood of accidental
releases. This proposal fails to balance the risk with the benefits at any level and instead seeks to
avoid all risk - even the most speculative risks described in the DOJ assessment.
We do not wish to spend much space in an analysis of the assessments; however, several key
points must be made. DOJ attempts to describe risks of Internet access to information based
upon two domestic incidents and activities in war zones. This is absurd. It is inappropriate to
suggest that incidents in the Kosovo war zone have any relevance to Internet access to off-site
consequence information. It is equally absurd to suggest that a local criminal with personal
information on a facility, is going to utilize information on the Internet.
It is always possible to conjure a risk - we live in a society where risk is with us all the time. In
fact a free society accepts risks in order to obtain the benefits of that freedom. We would not
tolerate travel permits and controls even though criminals sometimes travel. We would not
tolerate unfettered wire taps and inquiry into personal records even though some criminals might
be caught. We would not tolerate random police checks of our homes and offices even though
evidence of crimes might be present. Simply put we tolerate a degree of risk in our lives because
we value the freedom under which we live.
We can always be paranoid about the acts of others and seek to control those acts. In the final
analysis, however, the assessment of risk in this case requires a realistic appraisal of the
usefulness of the information and the ability of individuals to act on that information. We refer
the agencies to the proceedings of EPA’s Federal Advisory Subcommittee on Risk Management Planning for a detailed analysis of the pros and cons of this issue - available on the Internet. We
do not view off-site consequence information on the Internet as a risk especially as three-fifths of
the facilities in Colorado already disclosed the information in their executive summaries.
Off-site consequence information is not realistically a threat. It presents no roadmap to causing
an incident. It predicts nothing that is realistic in terms of consequences. It presents no
information of value to persons seeking to cause an incident as it does not describe how to create
the incident. The security measures in use at facilities are not described. The response plans of
various public agencies are not described. In short, without local and personal knowledge there
is almost nothing in the off-site consequence information that presents any realistic advantage to
a terrorist or criminal. The proposal gives credence to an unbelievably paranoid view of risk
with no balancing as required by the statute.
Docket No. A-200-20
June 2, 2000
Page 3
On the other hand and as EPA’s assessment describes in detail, there are numerous advantages to
disclosure of this information. We have a clear history of risk reduction because toxic release
inventory information has been disclosed. Facilities have responded to public inquiry on
chemical usage and releases by improving their operations. The proposal simply fails to
acknowledge that these benefits even exist.
We face a specific problem under this proposal. One of the greatest issues we have is convincing
the public that information we, an LEPC, or fire department provide about risk is reliable and
honest. Without data from the risk management plans we face individual speculation about risk.
With information available now individuals calculate off-site consequences in a fashion that
greatly overstates the risk. We have seen situations where these individuals were convinced that
much greater risk existed than was described in the actual risk management plan.
It cannot be that this is acceptable to the agencies. To create a situation where misinformation
will be the only form of communication while placing local governments in a position of trying
to explain that the best information is contained in a federal database but that the public cannot
be trusted to look at it, is not good government. It is not risk reduction. In fact, it has the effect
of increasing the risk of terrorist or criminal act by overstating the consequences.
It is the potential for misinformation along with the basic lack of access that causes this proposal
to violate Executive Order 12898 on Environmental Justice. That Order requires federal
agencies to ensure that public documents are accessible to the public. As disadvantaged
individuals are more likely to live in the vicinity of facilities filing risk management plans it is
precisely these people that will be harmed by this proposal. They will be unable to judge for
themselves the accuracy of information. They will be restricted from adequately comparing local
facilities to similar facilities nationwide. They will be harmed by the roadblocks this proposal
puts in their way when they seek to understand the truth of the risks with which they live.
Both EPA and DOJ have paid some attention to the Environmental Justice issue by issuing
statements of their intentions; however, these have been completely ignored in the current
proposal. The Department of Justice suggests that its Guidance Concerning Environmental
Justice is intended to: "Promote and protect community members’ rights to participate
meaningfully in environmental decisionmaking that may effect them." The OSWER
Environmental Justice Action Agenda puts it well when it says that: "An informed and involved
community is a necessary and integral part of the process to protect the environment."
The National Environmental Justice Advisory Council’s Model Plan for Public Participation
assumes unfettered access to information as a precondition for satisfying environmental justice
concerns. Certainly this proposal falls far short of putting minority and disadvantaged
communities in a position where they can meaningfully participate in environmental decisions.
In short, the proposal fails to comply with the statutory requirement to balance risks and benefits.
It contains almost nothing reflective of the benefits. It fails to provide any initiative towards
Docket No. A-200-20
June 2, 2000
Page 4
accidental release prevention. It is a classical example of arbitrary and capricious behavior by the
agency in the face of a clear statutory requirement.
Additional specific comments:
Proposed section 1400.2(e)(3) fails to include special districts, which are many of the fire
departments in this state, sheriffs, not-for-profit hazmat response teams, emergency medical
personnel and hospitals. These groups may never have specifically been given responsibility for
hazmat response yet they exist and function to provide important public safety benefits. It is also
important to note that under Colorado statute a local government may designate anyone, from an
individual to a private company, to plan and respond to accidental releases.
Proposed section 1400.2(g) disenfranchises a citizen of the United States that may wish access to
information about chemical safety. Such a citizen might be the employee of a chemical company
wishing to improve safety standards in the company by comparison to other companies. Such a
citizen might be planning to move back to the country and is seeking information on the potential
risks of certain neighborhoods. Nothing in the DOJ assessment even addresses this point and
excluding this class of citizens from any access to information is arbitrary and capricious.
Proposed section 1400.2(h) defines official use in a fashion that excludes enforcement.
Apparently its not reasonable to use the off-site consequence information in evaluating whether a
facility has adequately prepared its risk management plan. Apparently it is also unreasonable to
use the off-site consequence information in determining whether a facility is in compliance with
EPCRA or other statutes as well. It also appears that official use would not include providing the
information in response to judicial process such as a subpoena. Obviously all of these areas
should be "official use" as state and local officials would typically communicate with each other
on enforcement topics and we certainly are not going to ignore a subpoena. It is arbitrary to
subject individuals to potential criminal sanctions for engaging in these activities.
Proposed section 1400.2(k) is vague and would result in potential violations of regulation and
statute in a fashion lacking in due process. Without a definition of what "ranking" means no
person could possible understand whether or not they have performed a ranking. For example,
the state and many local governments now maintain information ranking facilities on a variety of
parameters. Some of these parameters happen to be found in OCA data such as population
information, quantities of chemicals on-hand, and proximity to public facilities. LEPCs rank
facilities based upon self-calculated vulnerable zones which happen to appear the same as though
calculated from OCA data. We can produce a map showing the location of facilities in relation
to public facilities from OCA data even though many other sources of data could be used to do
the same thing. Describing unlawful conduct in such a vague manner is arbitrary and capricious.
Proposed section 1400.3(b) is unrealistic at best. In the rural west a reading room is going to be
inconvenient or impossible for a large segment of the population because it is going to require a
long drive, probably through mountain passes. This is tantamount to denial of access altogether.
Instead, an individual should be able to go to their local LEPC or other convenient source and
Docket No. A-200-20
June 2, 2000
Page 5
obtain the same access to plans nationwide. We want to emphasize however that the burden on
LEPCs in this process is unrealistic and inappropriate. As noted below we believe that forcing
this burden on LEPCs and local fire departments is unacceptable.
Proposed section 1400.3(c) is simply arbitrary. There is no magic to 10 plans versus a hundred.
If an individual lives in a state with hundreds of facilities it seems absurd to suggest that they
must prioritize which ones they want to look at in any given month. We have several areas
where one individual may be impacted, at work or home, by more that 10 facilities. There is
simply no reason to restrict access in this fashion. If you are going to have reading rooms then
the number of plans to which a person should have access should be unrestricted. By the way, it
should go without comment that demanding identification is chilling at best and can only serve to
deny access to those persons that are already mistrusting of their government.
Proposed section 1400.4 creates the risk indicator system. We do not appreciate this system and
recommend it be abandoned unless greatly modified. It is a disservice to send a member of the
public off to their LEPC, fire department or SERC without giving them information about the
name of the facility and the chemical. These agencies are not in a position to repeat the analysis -we
will have no clue where to start in providing information. Even if EPA modifies its systems
to allow the risk indicator to be performed on the Internet or by computer capable agencies this
will not help very much as most LEPCs and even this Commission do not have the computer
capability to perform the analysis or access the Internet. At best this will make us all look
foolish. At worst it makes us all look unresponsive and not worthy of public trust.
Proposed section 1400.6 (a) begs one of the key questions of this process and, therefore, one of
the key areas in which the proposal is too vague. What exactly is "a format that replicates
section 2 through 5 of a risk management plan" for purposes of this proposal? Does it mean a
photocopy of the printed plan as submitted by the facility? Does it mean a copy printed from an
electronic source? Does it mean an electronic copy of the plan obtained from EPA or anyone
else? Many of us have already produced spread sheets with risk management plan data. It may
be formatted in different ways but it does include off-site consequence numbers such as the
radius of the vulnerable zone, population, etc. Can these be distributed? Absent detailed
definition this provision is vague and denies due process to those that may be subject to criminal
sanctions.
We have industry members on this Commission. Many LEPCs in this state rely extensively on
their industry members. In many cases these individuals have actively participated in preparation
of the risk management plan for their company and the public meetings required by
CSISSFRRA. On its face, proposed section 1400.6(b) would make it unlawful for these
individuals, on account of their membership in these groups, to provide a copy of the risk
management plan for their facility to the public. While there may be protection if their employer
has formally decided to make the information publically available, it is not clear when such
protection might apply. We have already been told that some industry participants on LEPCs
may resign because of this exposure. While we suspect that this is not the intention of the
agencies, this potential conflict must be specifically resolved.
Docket No. A-200-20
June 2, 2000
Page 6
Proposed section 1400.6(b) places an unreasonable burden on LEPCs and the public. Many areas
do not have LEPCs so members of the public with legitimate interest in the information will
simply be denied access in an arbitrary fashion. Most LEPCs and this Commission are not in a
position to evaluate whether vulnerable zones extend into their area of jurisdiction. Most LEPCs
and this Commission are not in a position to evaluate whether a vulnerable zone extends over the
location where someone lives or works.
We are not in a position to verify where someone lives or works in the first place. The proposal
does not describe how we would be required to perform these tasks and what level of certainty
would be necessary. As possible criminal penalties apply to any failure it is very arbitrary for the
agencies to impose these vague requirements.
Proposed section 1400.9 (d) imposes an arbitrary condition on when state or local government
officials can provide information to other state or local government officials. Apparently we are
not allowed to communicate with each other except when the states are contiguous. This
eliminates the potential for mutual comparison of plans from the same company or similar
facilities simply because the states are not next to each other. Amazingly enough we really do
talk to each other and compare notes on compliance, accident prevention and preparedness. This
is a valuable process and its absurd to limit communication in this fashion. There is no
justification for this arbitrary provision in any of the assessments and it should be eliminated. Do
EPA and DOJ really mistrust state and local governments as much as this provision suggests? It
would indeed be shocking if the level of paranoia over information of such limited use has risen
to such a level.
In conclusion we urge the agencies to massively modify this proposal. The proposal does not
comply with the statutory mandate and is arbitrary and capricious. Internet access to the off-site
consequence analysis data would have been allowed in this proposal if a proper balancing of the
risks and benefits had been conducted. For example, a sign-in process utilizing a mail back
system for a one-time password, or some similar mechanism by which the public can get Internet
access is vastly preferable to the current proposal and according to the DOJ assessment would
avoid almost all the risk associated with anonymous systems.. The vague provisions in the
current proposal must be modified or persons subject to its provision will simply not have
adequate information on whether or not they are in compliance. The proposal places undue,
unrealistic and unreasonable burdens on SERCs, LEPCs and fire departments.
Sincerely,
Co-Chair
cc: Colorado LEPCs
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