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Safer Not to Know?

Environment Writer, Vol. 11, No. 1 - April 1999

CMA, House Leaders Want Chemical Disaster Scenarios Off-Line

By Joseph A. Davis

Chemical industry and House Commerce Committee leaders are acting as if information about hazards at the nation's chemical plants could be more dangerous than the plants themselves. This spring they have worked to broaden restrictions already won on how quickly and easily the public can find out about chemical hazards facing communities.

House Commerce Committee Chairman Thomas Bliley (R-VA), backed by the chemical industry and federal anti-terrorism officials, wants worst-case scenarios for chemical accidents kept off the Internet. They claim the data would help terrorists target U.S. communities, providing a virtual "roadmap for terrorists." Environmentalists say the industry is raising a scare just to wiggle out of public pressure to make its plants less dangerous in the first place.

High stakes, lack of compromise, important 1st Amendment principals, and a looming June 22 deadline for the Environmental Protection Agency's (EPA) decision on what to do with the information seem to be brewing a major confrontation.

Even after EPA agreed last November to limit access to the data administratively, Bliley announced February 9 that he would introduce legislation to keep off the Internet chemical safety data that Congress in 1990 required to be made public.

Part of the 1990 Clean Air Act (Section 112r) required some 66,000 industrial plants to draw up Risk Management Plans (RMPs) outlining the chemical hazards on their sites and their efforts to prevent and respond to chemical accidents which could endanger communities. The law requires these plans to be available to state officials, local firefighters, and the general public. The whole idea was that risks could be reduced without command-and-control government regulations - that public knowledge would create public pressure, causing companies to operate their plants more safely.

"Public release of TRI data spurred facilities to voluntarily reduce their emissions," EPA assistant administrator Timothy Fields testified February 10.

"Keeping worst-case scenarios off the Internet offers no real protection to communities," said Paula R. Littles, lobbyist for the 320,000-worker PACE International Union, AFL-CIO. "Communities can only be protected when companies use safer chemicals, reduce dangerous storage, widen buffer zones, and provide full information."

EPA announced on November 5, 1998, that it would put most of the RMP data on-line, but not the offsite consequence analyses (OCAs). These contain scenarios identifying the hypothetical worst accidents that could harm the most people (See Environment Writer, November 1998).

Advisory Committee Debate

The chemical industry's "terrorism" campaign is only the latest chapter in a dogged effort, going back more than a decade, to limit disclosure of chemical hazards. Just before the Toxic Release Inventory (TRI) began, the Chemical Manufacturers Association (CMA) instituted its "Responsible Care" program, in which companies pledge to (and often do) disclose risks at the local level. But CMA, the industry's national lobby group, has lobbied and litigated consistently against public disclosure at national levels. For example, the industry lobbied in 1995 to rescind EPA's expansion of the TRI chemicals list as part of a regulatory reform bill. CMA also opposed TRI list expansion in a lawsuit, and joined other industry groups in 1996 in a lawsuit challenging EPA's RMP rule.

The issue of how EPA would fulfill the 1990 law's core requirement that RMP data be made public was debated exhaustively by various subcommittees of EPA's Clean Air Act Advisory Committee, which is governed by a federal law requiring advisory committee meetings to be open to the public. The lone chemical industry representative raised terrorism concerns there back in September 1996. But he was the only "no" vote when a subcommittee in a February 1998 telephone meeting supported putting worst-case data on the Internet, with "speed bumps" to slow access.

Having lost the battle in an open advisory committee, chemical industry lobbyists stepped up their effort to get FBI and CIA counter-terrorism officials (who until that point had shown little awareness or concern about chemical emergency issues) involved in the decision. What followed during 1998 was a series of out- of-the-limelight meetings where EPA negotiated directly with officials like Robert Blitzer, former head of the FBI's Weapons of Mass Destruction Program. Industry's hand was strengthened by two presidential orders in May 1998 stepping up efforts against terrorism and the two August 1998 embassy bombings in Kenya and Tanzania.

On September 9, 1998, CMA issued a press release saying it did not think the RMP-posting decision "is any longer one that is exclusively EPA's to make." With almost no press attention, industry slipped non-binding report language into the 1999 appropriations bill instructing EPA to defer to the FBI on the RMP issue. Blitzer seemed to be virtually dictating a decision to EPA in an October 30, 1998, letter to EPA.

EPA's decision not to post OCAs was revealed a few days later in a letter to the advisory committee. EPA never issued a press release on the decision - although CMA issued one applauding it.

Legislative Fix - or Feint?

EPA's decision wasn't enough for the chemical industry or Bliley. They say they think the law needs to be changed, a law that originated nine years earlier in the committee Bliley now chairs , when it was controlled by Democrats.

"Back then," Bliley said, "Congress and the American people surely never imagined that the EPA would ever propose posting all of this information - including human injury estimates of a worst-case chemical release - in a worldwide electronic database, easily searchable from Boston to Baghdad, from Los Angeles to Libya."

Since Bliley's February 9 announcement, there have been no signs of his bill. As this issue went to press, the bill had not yet been introduced, and neither Democrats nor stakeholders had reported seeing even a draft.

That suggests a likelihood that any bill eventually produced would be a partisan, rather than a consensus, bill. It also suggests to some federal officials familiar with the issue that Bliley's bill may be a bluff that has already failed. The hearings and threat of legislation, they say, are efforts to influence an administrative decision that EPA still considers its own to make.

Companies must submit their RMP data in electronic form by June 22. That effectively sets the deadline for an upcoming EPA administrative decision on how to disseminate the data to the public, electronically and otherwise. Without a change in law, it could be illegal for EPA to try to keep RMP data off the Internet.

The prognosis for final enactment of any bill is poor particularly if it involves amending the Clean Air Act. The last Clean Air amendments took the best part of a decade to get through Congress. They would also probably need to amend the Emergency Planning and Community Right-to-Know Act, which created the TRI. Moreover, Bliley and the industry seem to want to amend the 1966 Freedom of Information Act, a more difficult thing to do because it falls under the Government Reform Committee's jurisdiction. Not only would they need to create a new exemption to FOIA, but they would also have to amend the 1996 Electronic FOIA amendments. That legislation requires that government information collected and stored in electronic form be made available in electronic form.

It is not even certain that Bliley will have the votes for it on his own committee, since several moderate Republicans signaled at the hearing that they were not on board.

Brian P. Bilbray, R-California asked his colleagues "not to take such hard-line positions." He complained that lobbyists and legislators were themselves practicing "psychological terrorism on the communities."

Few if any Democrats seem likely to vote for it. Dems complained of Bliley's unusual tactic of holding a press conference before the hearing - and bringing along the widow of a Secret Service agent killed in the 1995 Oklahoma City bombing. Rep. Ron Klink, (D-Pennsylvania) suggested that the hearing was being held "for the majority's press purposes."

House Commerce Hearing

At the February 10 hearing, those supporting the chemical industry's position included spokesmen for the International Association of Fire Chiefs, the Federal Bureau of Investigation, and the DuPont Company. Opposing it were representatives of a community right-to-know group and union lobbyist Paula Littles. Several others, including the National Safety Council (publisher of this newsletter) and local emergency responders, took more complex positions in between.

Opposition to the chemical industry's non-disclosure campaign has grown recently, picking up support from groups as diverse as the American Civil Liberties Union, the Newspaper Association of America, and the Center for Democracy and Technology, as well as from the predictable environmental groups.

The American Society of Newspaper Editors (ASNE) was one of six right-to-know groups that signed a February 9 letter to Bliley expressing "concern and opposition to proposals to limit public access to information concerning accidents at chemical plants."

ASNE was one of the groups that pushed for E-FOIA. "We do not think rules with respect to access to information should change just because the Internet is involved," ASNE spokesman Kevin Goldberg said.

"Keeping this information away from the public doesn't reduce the risk, it simply means people don't know about the risk," said Jeremiah Baumann of US PIRG. "If there really is a risk of terrorist attack at U.S. chemical facilities, the government needs to take action to reduce that risk."

Having gotten EPA to promise it won't put worst-case data online, Bliley has made clear that he doesn't want anyone else besides EPA ("third parties") to post it either. He says he will likely introduce a bill making that illegal. The bill he has discussed would make it a crime for an environmental group or a newspaper to acquire publicly available information which EPA had scattered to make it less accessible, collect it into one location or database, and then make that database accessible through the World Wide Web.

That's not so far-fetched a scenario. The US PIRG took EPA data from the 10-year-old TRI and did exactly what Bliley fears: calculated worst-case scenarios for areas throughout the U.S. The July 22, 1998, report was called "Too Close to Home: A Report on Chemical Accident Risks in the United States."

It was bad PR for the chemical industry, which attacked the study's methods. It concluded that over 41 million people, "at least one out of every 6 Americans lives within a vulnerable zone - the area in which there could be serious injury or death in the event of a chemical accident - created by neighboring industrial facilities." Seven months after the report was issued, no chemical terrorist incident had occurred. But just four "routine" chemical "accidents" in the last three months of 1998 resulted in the deaths of 20 workers, (some in areas the PIRG had warned about).

One of the biggest forces backing Bliley's speak-no-evil bill, officially or unofficially, is CMA. Perhaps only coincidentally, they are also important contributors to Bliley's campaign coffers. During the 1995-6 election cycle, when Congress was considering weakening the chemical right-to-know law, Bliley received more contributions from CMA-related PACs than all but one other member of the House, according to the US PIRG.

The chemical industry position was articulated by Arthur F. Burk, a senior safety fellow with the DuPont Co., at Bliley's February 10 hearing. Burk said there were some "issues remaining" even after EPA decided not to put worst-case scenarios on the Web. While Burk was officially speaking for DuPont, not CMA, he has been a key industry spokesman on EPA advisory committees looking at chemical risk communication.

Burk said the companies believed, that "information collected under the RMP should be made public." All except, Burk added, "sensitive" information, namely the quantity of chemicals on-site, the distance from the plant at which a release could cause injuries, and the number of people living within that distance. That "sensitive" information, Burk said, should not go on the Internet.

"By taking the worst case scenarios out we are taking the teeth out of the RMP," says Baumann. He says they provide "the crucial information about how much risk a facility poses to a community."

Much of this information is already available in the public record, some of it on the Internet. The quantities of hazardous chemicals which plants use are already reported under EPCRA, although they are only available at the local level. The distance at which they can cause harm can be calculated with standard air dispersion models which have long been publicly available. And the populations within those areas can be found in the U.S. Census.

Balance of Risks

Are the CMA's and FBI's concerns justified? Does the risk of a terrorist attack outweigh the risk-reduction benefits most agree have come from making hazardous chemical data public?

During the 10-year period from 1987 to 1996 there were about 605,000 potentially dangerous commercial chemical incidents reported. About 29 percent of those (or 176,183) resulted in at least one death or injury (9,705 incidents), evacuation of workers or the public (4,167), or damage to property (164,082). During that decade, chemical accidents caused 2,565 deaths and 22,949 injuries, according to the Chemical Safety and Hazard Investigation Board.

During the entire period from at least 1987 until present, the FBI is able to point to only a single "terrorist" plot against a chemical plant - and that one was interrupted. In that 1997 incident, four KKK members planned to blow up a Texas natural gas plant to create a diversion for an armored car robbery.

There is little mystery about the location or product of major chemical facilities in the United States. They are focused for the most part in certain limited industrial corridors in scarcely more than a handful of states. Not surprisingly, chemical accidents are concentrated in those states as well: California, Illinois, Louisiana, Michigan, New York, Ohio, and Texas.

One hearing witness in written testimony called the mammoth chemical complex near Wilmington, Delaware, (headquarters of the DuPont Co.) "a potential terrorist's dream." Rep. Klink said trying to hide such sites was impossible: "We could find out simply by driving down I-95 and opening our eyes." Critics say the dangers of terrorist attack a small compared to those of sabotage by a disgruntled employee with security clearance and knowledge of a plant's workings.

What Legislation Might Do

At the hearing, Bliley's committee heard several proposals for limiting access to RMP data.

Some witnesses and members spoke specifically of limiting access only to the "worst-case scenarios," which are part of a larger "offsite consequence analysis." Others spoke of limiting access to the entire offsite consequence analysis, which can include description of less catastrophic accident risks. Still others spoke of broader restrictions on all RMP data. Imprecision in use of regulatory and computer terms has made it hard to know what is being proposed.

Some, such as Robert Blitzer, former head of the FBI's Weapons of Mass Destruction Program, do not want RMP information (with or without worst-case scenarios) collected onto a single CD-ROM. They object to giving someone a national overview or search capability. Although the locations of concentrations of chemical plants are widely known, they claim the reason they want this blackout is to prevent terrorists from "targeting" facilities.

Some want to allow queries about only a single facility at a time, making formation of a national picture laborious, but not impossible. Other proposals have called for a password system to limit access to employees of state or local government. Still others want to require people to get data only through their Local Emergency Planning Committees, who presumably will only have local data. Finally, there is the issue of whether state and local governments should post, or should be allowed to post, OCA data to the Internet. EPA now says it will "strongly encourage" them not to.

Can Groups Republish Data?

One of the biggest concerns focuses on repackaging and republishing of the RMP data, presumably by environmental groups. EPA gives the Web-cruising public access to many of its databases at a site called Envirofacts Warehouse. But the Environmental Defense Fund republished much of the same data on its Scorecard site, packaging it in a way that was more community-focused and that encouraged political action and pressure on chemical companies.

EDF has previously posted data which EPA had backed off of posting in the face of loud objections from the chemical companies. EPA's so-called Sector Facilities Indexing Project would have synthesized information to rank the pollution risks plants presented to communities - but dropped rankings under industry protest. Today Scorecard does something similar to this. Even if EPA does not post OCA data to the Internet, FOIA and the Clean Air Act require EPA to make it available if someone requests it. The chemical companies are worried that environmental groups will get the information legally and post it to the Internet themselves. So are the FBI and Bliley.

"I hope," Bliley said at the hearing, "to persuade these groups that seem intent on acquiring and spreading this information ...to act responsibly."

Persuasion in this case has involved calling members of at least eight environmental and right-to-know groups into a January 20 session with committee lawyers, and going around the room several times, questioning each aggressively about whether they planned to acquire and republish RMP data. The groups remained noncommittal, having agreed ahead of time to say neither yes nor no. Subcommittee chairmen, Fred Upton, R- Michigan, and Michael Bilirakis, R-Florida, repeated this tactic at the February 11 hearing, trying unsuccessfully to corner Paul Orum, of Working Group on Community Right-to-Know into a definite statement.

Absent from the room and still un-grilled by the committee is a very key player: Bill Pease of EDF, architect of Scorecard. EDF not only has the most effective means of publishing the data, but a history of FOIA-ing suppressed EPA data and publishing it. Pease has not heard from the committee. "We are certainly interested in making it available," says Pease, adding that the question is moot because it is not known "to what extent will they go to make it impossible to use."

Another concern is that the government would be unable to monitor who was requesting the information if it were posted openly to the Internet. The FBI has made little secret of their interest in collecting this kind of information. So far, few voices have questioned whether the government should be conducting surveillance on individuals requesting public information.

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