SPEAKERS CONTENTS INSERTS
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RIGHT-TO-KNOW AFTER SEPTEMBER 11TH
WATER RESOURCES AND ENVIRONMENT
TRANSPORTATION AND INFRASTRUCTURE
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ONE HUNDRED SEVENTH CONGRESS
NOVEMBER 8, 2001
Printed for the use of the
Committee on Transportation and Infrastructure
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
DON YOUNG, Alaska, Chairman
THOMAS E. PETRI, Wisconsin, Vice-Chair
SHERWOOD L. BOEHLERT, New York
HOWARD COBLE, North Carolina
JOHN J. DUNCAN, Jr., Tennessee
WAYNE T. GILCHREST, Maryland
STEPHEN HORN, California
JOHN L. MICA, Florida
Page 3 PREV PAGE TOP OF DOCJACK QUINN, New York
VERNON J. EHLERS, Michigan
SPENCER BACHUS, Alabama
STEVEN C. LATOURETTE, Ohio
SUE W. KELLY, New York
RICHARD H. BAKER, Louisiana
ROBERT W. NEY, Ohio
JOHN COOKSEY, Louisiana
JOHN R. THUNE, South Dakota
FRANK A. LOBIONDO, New Jersey
JERRY MORAN, Kansas
RICHARD W. POMBO, California
JIM DEMINT, South Carolina
DOUG BEREUTER, Nebraska
MICHAEL K. SIMPSON, Idaho
JOHNNY ISAKSON, Georgia
ROBIN HAYES, North Carolina
ROB SIMMONS, Connecticut
MIKE ROGERS, Michigan
SHELLEY MOORE CAPITO, West Virginia
MARK STEVEN KIRK, Illinois
HENRY E, BROWN, JR, South Carolina
TIMOTHY V. JOHNSON, Illinois
BRIAN D. KERNS, Indiana
DENNIS R. REHBERG, Montana
Page 4 PREV PAGE TOP OF DOCTODD RUSSELL PLATTS, Pennsylvania
MIKE FERGUSON, New Jersey
SAM GRAVES, Missouri
C.L. (BUTCH) OTTER, Idaho
MARK R. KENNEDY, Minnesota
JOHN ABNEY CULBERSON, Texas
BILL SHUSTER, Pennsylvania
JOHN BOOZMAN, Arkansas
JAMES L. OBERSTAR, Minnesota
NICK J. RAHALL II, West Virginia
ROBERT A. BORSKI, Pennsylvania
WILLIAM O. LIPINSKI, Illinois
PETER A. DeFAZIO, Oregon
BOB CLEMENT, Tennessee
JERRY F. COSTELLO, Illinois
ELEANOR HOLMES NORTON, District of Columbia
JERROLD NADLER, New York
ROBERT MENENDEZ, New Jersey
CORRINE BROWN, Florida
JAMES A. BARCIA, Michigan
BOB FILNER, California
EDDIE BERNICE JOHNSON, Texas
FRANK MASCARA, Pennsylvania
GENE TAYLOR, Mississippi
Page 5 PREV PAGE TOP OF DOCJUANITA MILLENDER-MCDONALD, California
ELIJAH E. CUMMINGS, Maryland
EARL BLUMENAUER, Oregon
MAX SANDLIN, Texas
ELLEN O. TAUSCHER, California
BILL PASCRELL, JR., New Jersey
LEONARD L. BOSWELL, Iowa
JAMES P. MCGOVERN, Massachusetts
TIM HOLDEN, Pennsylvania
NICK LAMPSON, Texas
JOHN ELIAS BALDACCI, Maine
MARION BERRY, Arkansas
BRIAN BAIRD, Washington
SHELLEY BERKLEY, Nevada
BRAD CARSON, Oklahoma
JIM MATHESON, Utah
MICHAEL M. HONDA, California
RICK LARSEN, Washington
Page 6 PREV PAGE TOP OF DOCSUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT
JOHN J. DUNCAN, Jr., Tennessee
SHERWOOD L. BOEHLERT, New York
WAYNE T. GILCHREST, Maryland
STEPHEN HORN, California
VERNON J. EHLERS, Michigan
STEVEN C. LaTOURETTE, Ohio
SUE W. KELLY, New York
RICHARD H. BAKER, Louisiana
ROBERT W. NEY, Ohio
RICHARD W. POMBO, California
DOUG BEREUTER, Nebraska
MICHAEL K. SIMPSON, Idaho
HENRY E. BROWN, Jr., South Carolina
BRIAN D. KERNS, Indiana
DENNIS R. REHBERG, Montana, Vice-Chair
C.L. (BUTCH) OTTER, Idaho
JOHN ABNEY CULBERSON, Texas
BILL SHUSTER, Pennsylvania
JOHN BOOZMAN, Arkansas
DON YOUNG, Alaska
Page 7 PREV PAGE TOP OF DOCPETER A. DeFAZIO, Oregon
ROBERT MENENDEZ, New Jersey
GENE TAYLOR, Mississippi
EARL BLUMENAUER, Oregon
JAMES P. McGOVERN, Massachusetts
NICK LAMPSON, Texas
BRIAN BAIRD, Washington
FRANK MASCARA, Pennsylvania
MARION BERRY, Arkansas
ROBERT A. BORSKI, Pennsylvania
BOB FILNER, California
EDDIE BERNICE JOHNSON, Texas
JUANITA MILLENDER-MCDONALD, California
BILL PASCRELL, Jr., New Jersey
MICHAEL M. HONDA, California
JAMES L. OBERSTAR, Minnesota
Baumann, Jeremiah D., Environmental Health Advocate, U.S. Public Interest Research Group, National Association of State Public Interest Research Groups
Page 8 PREV PAGE TOP OF DOC Smithson, Amy E., Ph.D, Director, Chemical and Biological Weapons Nonproliferation Project, Henry L. Stimson Center
Stanley, Elaine, Director, Office of Information Analysis and Access, Office of Environmental Information, U.S. Environmental Protection Agency
Warren, Chief Gary E., (Ret.), International Association of Fire Chiefs
PREPARED STATEMENT SUBMITTED BY A MEMBER OF CONGRESS
Blumenauer, Hon. Earl, of Oregon
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Baumann, Jeremiah D
Smithson, Amy E., Ph.D
Warren, Chief Gary E., (Ret.)
RIGHT-TO-KNOW AFTER SEPTEMBER 11TH
Wednesday, November 7, 2001
House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment, Washington, D.C.
The subcommittee met, pursuant to call, at 10:00 a.m. in room 2167, Rayburn House Office Building, Hon. John J. Duncan, Jr. [chairman of the subcommittee] presiding.
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Mr. DUNCAN. I want to welcome everyone to our hearing today on the public's right to know following the tragic events of September 11th.
In our last hearing we heard from many witnesses on the challenges they face to protect our critical infrastructure, like dams, reservoirs, nuclear power plants and drinking water and waste water treatment plants from terrorist attacks. At that hearing, several of the witnesses pointed out that notwithstanding the best efforts of responsible officials to try to keep our infrastructure safe and secure, there are Federal laws and regulations in effect today that could undermine these efforts by requiring facilities and emergency response officials to make sensitive information public, sort of in a way providing a road map for terrorists.
Ms. JoAnne Moreau, representing the East Baton Rouge local emergency planning committee, told the Subcommittee that ''public access to the most sensitive chemical inventory data collected under the Emergency Planning and Community Right-to-Know Act should be revisited with a view toward striking a balance between public privilege and security of key industrial assets.''
After that hearing, I received a copy of a letter from the American Waterworks Association that they sent to President Bush on this very issue. They said in that letter the AWWA supports the principles of community right to know, but believes that many details currently required to be made public go beyond a reasonable standard for information availability. For example, information about what chemicals are used or stored in a community could be made public without providing exact quotations and without describing worst case accident scenarios in detail.
The purpose of the hearing today is to more fully explore and understand this issue. We have regulations on the books today that require businesses, public utilities and even Federal installations to publicly report the amount and location of hazardous chemicals stored at each facility.
Page 10 PREV PAGE TOP OF DOC We have regulations on the books today that require local emergency planning officials to make their emergency response plans publicly available, even though these plans are required to include information about critical infrastructure, like hospitals and natural gas plants, and must even include the transportation routes for deliveries of extremely hazardous substances.
We have regulations that require facilities to develop risk management plans that identify the number of people who could be injured if there is a catastrophic release of chemicals from the facility under a worst case scenario.
All of this is very important information to develop and collect. The only issue is how much of that information should be widely disseminated to the general public.
This is not a new issue. In 1999, the EPA was about to post worst case scenario information on its web site. The FBI raised concerns at that time and Congress passed a law that allowed the EPA to limit access to that information after the President assessed both the increased risk of terrorist activity that could result from posting this worst case scenario information on the internet and the risk reduction incentives that may be created by public disclosure of such information.
In response to that mandate, the FBI assessed the risk of terrorism activity, concluding that putting most pieces of worst case scenario information on the Internet would increase the risk of a chemical release caused by a terrorist or other criminal. Under the compromise worked out between the EPA and the FBI, worst case scenario information is available in paper form in Federal reading rooms around the country.
Unfortunately, however, this compromise did not limit access to executive summaries of these risk management plans, and the EPA guidance required facilities to mention worst-case scenario information in those executive summaries. As a result, these executive summaries are publicly available and many of these summaries include the very kind of information about the consequences of chemical releases at facilities that, according to the FBI, pose the greatest national security and law enforcement risks.
Page 11 PREV PAGE TOP OF DOC In an April 2000 report, the FBI stated that ''The distance that a toxic cloud of chemicals might travel, the numbers of people who might be harmed, and the environmental or public receptors that could be affected are precisely the types of factors that a terrorist weighs when planning an attack.''
Since September 11th, the EPA has removed all risk management information from its web site. But this information is still available on other Internet web sites, like the Right-to-Know NET.
My staff downloaded information on facilities in my district from the Right-to-Know NET just last week. For 23 facilities in my district, this NET is disseminating information on toxic endpoint distances, population within the toxic end point distance, naming the quantity of chemicals involved, the very same elements that the FBI considers of greatest value to potential terrorists. Over 50 percent of these facilities are drinking water or waste water treatment plans. We also have this same information available for Mr. DeFazio's district.
All of us have grossly underestimated the ability of terrorist to use readily available information and facilities to produce disastrous tragedies. If September 11th taught us anything, it should make us rethink our priorities in making information available to people who may seek to destroy our safety and way of life.
I look forward to hearing the testimony of our witnesses. I thank them all for taking time out of their busy schedules to be with us today. And I would like to recognize the Ranking Member, my friend, Mr. DeFazio, for any statement he wishes to make at this time.
Mr. DEFAZIO. Thank you, Mr. Chairman.
Mr. Chairman, we obviously should review a lot of activities and things we took for granted before the September 11th attacks and act in a prudent manner. But I would suggest in the area of right-to-know, we should be careful of how quickly we act and how much we remove from the public domain. There are a number of issues, and I've been involved with these when I was in charge of an emergency response plan as county commissioner, that go to the first responders and what they have readily available in their data base for police and fire and medics, in terms of what they might be dealing with with an incident at a particular plant in my district, and certainly elsewhere around the country. So there is certainly that issue of making the information available to emergency services personnel.
Page 12 PREV PAGE TOP OF DOC And then secondly, I believe there is the issue of basically some restraint. I think some good things have come from public disclosure, as some companies have actually changed processes when they came under public scrutiny for operating in or near a large, populated area with particularly hazardous chemicals and some of the publicity received through the Right-to-Know laws brought about actual beneficial changes, both for the company and for the public in terms of safety and in terms of their manufacturing process.
We certainly do not want to provide targets of opportunity for terrorists. But on the other hand, we don't want to go too far and go back to the bad old days when none of this information was available, either to emergency services or to community members who lived in proximity to potentially toxic substances. I'll listen with interest to the panel and hope that they can instruct us how we might best strike the balance in the future as we go forward on this and so many other issues and responses to the terrorist attacks.
Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you very much, Mr. DeFazio. Does anyone else wish to make an opening statement? Mr. Blumenauer.
Mr. BLUMENAUER. Thank you, Mr. Chairman.
I do appreciate the opportunity to have this brought forward this morning. And I find myself in agreement with both you and the Ranking Member. It is incumbent upon us, and Mr. Chairman, Mr. DeFazio, you've already led us through some discussions that have encouraged members of this Committee to review alternatives to protecting the public safety in the aftermath of September 11th.
I do think it is important to make sure that we're not enabling terrorists. But I also sympathize with the notion advanced by my colleague from Oregon that we are also talking here about fundamental information for communities to protect themselves. I hope that under the guidance of this work here that we'll be able to help strike that important balance. People in a community are at risk in some instances from disasters at facilities that could be triggered by a natural event, an industrial accident or frankly, if there were a terrorist attack. In these cases, having adequate information available to the people who are in the community to provide protective services can be of critical impact.
Page 13 PREV PAGE TOP OF DOC It also seems to me that we need to not overreact to what has happened on September 11th. As we look around Capitol Hill right now, I think most of us cringe a little bit seeing some of what is occurring in terms of the physical infrastructure. I've had hard questions posed to me as to whether some of the barriers and barricades that we're putting up might actually hinder us in case there was a serious problem here of terror or otherwise.
I think it's important that we do not undermine the commitment that we have to make sure that in a democracy, the public is aware of the operations and security of things like nuclear power plants. A number of us have them in and around our districts and continue to be concerned.
I have a fear that if we are not careful and these things aren't done carefully then we are not going to end up posing much of a problem to the concerted efforts of terrorists. After all, a lot of this information has been in the public domain for years, and we've seen evidence that many of these people are very sophisticated in terms of their operations. We might end up in the anomalous situation where we're not posing much of a problem for people who would inflict terror on our communities, but we would just be simply keeping information from the American public.
I appreciate your bringing forward knowledgeable people and having the Committee spend some time so we can make sure that we do strike this balance, and I look forward to hearing from them this morning.
Mr. DUNCAN. Well, thank you, Mr. Blumenauer. A very fine statement, and in fact, I've said several times that if we do overreact, we're giving the terrorists victories that they don't deserve.
Mr. Pascrell, I believe you wanted to make a statement.
Mr. PASCRELL. Thank you, Chairman Duncan, Mr. DeFazio. Thank you for holding the hearing today.
Page 14 PREV PAGE TOP OF DOC I think that this is a quality of life issue, regardless pre-September 11th or after. That's how I see it.
Less than three years ago, a school in my home town of Paterson, New Jersey, was evacuated and more than 50 students and employees were hospitalized after a toxic plume from a neighboring chemical facility wafted over the school. The event was particular heinous, just one of 25,000 fires, spills, and explosions involving hazardous materials every year. I think the Chief will attest to that.
Residents who live and work near facilities that use hazmats deserve to know what dangers are present so they can take precautions. It has proven to be extremely helpful, each State has different laws, there are Federal laws. Each State has Federal laws. New Jersey happens to have very tough laws, when I was in State legislature, we really debated this. Because for the most part, the chemical industry has acted extremely in a responsible manner.
But there were disagreements as to how far we should go in terms of right to know and who should know. Just three years ago, we sat on Interstate 80 in my city, blocked off 80 for six hours both ways because there was a spill. If the firefighters did not know what was on that truck that was burning, and made the mistake of putting water on it, we would have had a major catastrophe. So I think they have a right to know. I don't think anybody's arguing that. But I think residents have a right to know, particularly in those neighborhoods out there.
I think we should be very careful of how legislation and regulations are crafted with respect to our citizens' right to know. I for one do not agree that limiting right to know will make Americans safer. I don't believe in that. Instead of restricting access to information, we should look into ways to secure hazardous materials, or better yet, help businesses find safer alternative materials.
By reducing the kind and amount of hazardous substances at various treatment facilities, by keeping those necessary materials under strict surveillance, we can reduce the hazards associated with them. This is the time that fear may drive a movement to hinder the public knowledge about the hazards next door and in the neighborhood of many. I think we need to be vigilant. Right-to-know laws are basic to our freedoms and a vital part of our democracy.
Page 15 PREV PAGE TOP OF DOC I would hope, Mr. Chairman, in conclusion, that we would not go back and step back and go in the opposite direction. Because I do not believe that this will accomplish our goal. What it will do is put a lot of people in jeopardy. I don't think we're here to do that.
Mr. DUNCAN. All right, thank you very much, Mr. Pascrell.
Governor Otter, do you have a statement?
Mr. OTTER. Yes, thank you very much, Mr. Chairman. Thank you very much for holding this important hearing, especially in the aftermath of the attacks on September 11th. I think it shows just how vulnerable our country and some of our facilities are.
Out in the west, of course, we've been planning a long time emergency operations in case we had a hazmat spill, in case we had some kind of a disaster. But those were natural, those were earthquakes, those were some kind of a natural disaster that we anticipated what our actions would be.
But I think the World Trade Center attacks shows that today's terrorists are focused on striking and causing the largest possible amount of damage and casualties that they can. Interesting comments from my colleague just prior, was that, how much should we know and who should know. The terrorists knew enough that they had to have either a 767 or a 757, they had to have something better than a 707 to hit those towers with, because they knew that those towers would withstand a direct hit from a 707. It didn't have the fuel on board, didn't have the size and the capacity to fracture the tensile strength of the towers.
Interestingly enough, I just tried a little something, or my staff did. We went on line, we went through the request by the Environmental Protection Agency, a company, I'm not going to name the company in Idaho, but a company on a major waterway in Idaho has had to prepare its disaster or what could possibly happen. The rupture of a single tank of a certain kind of chemical, and if I say either one of those, you're going to know exactly what it is, would kill 43,000 people.
Page 16 PREV PAGE TOP OF DOC Now, if I were a terrorist, I'd get on line and I'd go to that particular company that's in some critical areas, and I'd say, well, I know what my next target is. And it's not going to take too much to rupture that tank. It's not going to take a 757. It's not going to take something that large.
So I believe there are people who should know. I think one of the greatest regulators of this happens to be the insurance industry. I served on the board of directors of an insurance company, and for many years, we would go out to some of these industries, and we'd say, we're not going to write your policy because you have got some bad practices here. We didn't need some Government agency. We didn't know whether a Federal agency or a State agency, saying not only, put your plan together, but publish your plan and we want to have your plan and who knows who gets it after that.
They simply had a premium that reflected the risk that they were going to provide to our policy holders. And it was an economic determination. The result was generally, they cleaned it up. The result was generally, they repaired the damage.
I think that we should take immediate action, to be careful about who gets what information and where that information goes. I agree with you, it should be a citizens right to know. And if only the citizen was going to get it, that would be one thing. But unfortunately, we haven't got a Federal agency that's able to tell a citizen from the terrorists. If we did, perhaps we would have those 19 contacted before they did their duties.
But anyway, it was a Chinese general, Sun Tzu, who said to his charges, know your enemy. I feel our Federal bureaucracy has gone way too far, in fact, gone one step further than Sun Tzu would have gone, because we happen to appear to have a strategy that says, tell your enemy. And I think that's very dangerous. I think there are things in our industries and some of our critical areas that are national security and should not be given to the media, should not be given to anybody and should be protected just as much as the strategic plan to defend a Government facility.
Page 17 PREV PAGE TOP OF DOC So Mr. Chairman, I appreciate your holding this meeting and I appreciate this subject. I'm really concerned that too much information leaves us much more vulnerable than we need to be. Thank you very much, Mr. Chairman.
Mr. DUNCAN. Well, thank you very much for a very fine statement, Governor Otter.
Ms. MILLENDER-MCDONALD. Thank you, Mr. Chairman and the Ranking Member.
I want to say that this is really a very timely hearing today, because I live, my district is around a lot of refineries. In fact, I was once known as Miss Refinery.
So I am very concerned about the lack of knowledge that constituents have around refineries. It is so imperative that they have a right to know, because of the fact that, years ago when I was a mayor of a city, we had a lot of explosions and those types of things. Constituents just really didn't know what to do. And this is when I went to the State legislature, I put a law in where they should have a right-to-know.
And I would say that again, on this panel, we must have that type of openness with folks who are living around these types of nuclear, hazardous material types of plants. And you know, I bring into account, Mr. Chairman and the Ranking Member, the Emergency Planning and Community Right-to-Know Act, which was set up to identify sensitive sites and help communities formulate emergency response plans. I do think that that is something that we must do. For those of us who have had town hall meetings, the people are frightened to death who live around these various plants. Therefore, they need to know.
And Mr. Chairman and Ranking Member, I would say that if the House calendar allows, I respectfully ask that we convene another hearing where we bring in the nuclear plant folks and the hazardous waste people, so that we can get a better understanding of how they are safeguarding their plants during these very challenging times.
Page 18 PREV PAGE TOP OF DOC And with that, I have a statement for the record, Mr. Chairman. Thank you.
Mr. DUNCAN. Thank you very much. And your full statement can be placed in the record.
Mr. Shuster, do you have a statement?
Mr. SHUSTER. No, just a couple of comments, Mr. Chairman. Thank you very much for having this hearing today. I quite frankly am not sure what the answer is, and I want to hear from our panelists today to be able to formulate that answer.
I do think, though, that we need to strike a balance. I think at times, as Governor Otter mentioned, we give the bad guys too much information. We have local officials, local organizations back in our districts, they need to know. But I don't think we need to broadcast it to everybody, so that, as the Governor said, our enemies get that information.
So thanks for the panelists coming today, and I look forward to hearing from you. Thank you.
Mr. DUNCAN. Thank you very much.
Mr. Taylor, do you have a statement?
Mr. TAYLOR. No, thank you, Mr. Chairman.
Mr. DUNCAN. Mr. McGovern?
Mr. MCGOVERN. Thank you, Mr. Chairman.
I just very briefly want to thank you for holding this hearing. I just want to say for the record that I strongly support right to know laws. I appreciate the statements from my colleagues before me.
I don't think anything happened on September 11th that changes my belief that right to know laws are in the public's interest or are an important way to maintain public safety. I think the more communities know, the more local officials know, the better they can plan for any eventuality that might occur. And so I would be interested to hear some of the panelists talk about, giving examples about how right to know laws have increased public safety rather than kind of putting this out there, saying that information somehow will decreased public safety. I think the opposite is true. I think the more communities know, the better they can prepare and the safer those communities can be.
Page 19 PREV PAGE TOP OF DOC I think this is an important issue, and I'd be interested to hear what the witnesses have to say and I thank the Chairman for holding this hearing.
Mr. DUNCAN. Thank you very much. Mr. Lampson.
Mr. LAMPSON. Thank you, Mr. Chairman, also very briefly. I want to thank you and the Ranking Member for having the meeting.
I find my colleagues' comments awfully interesting. The Congressional district that I represent probably has 20 percent of the petrochemical processing capacity of the country within its boundaries. I had a whole series of meetings immediately after September 11th to talk about the concerns that the citizens had and what law enforcement and many other folks were doing to provide the safety of that area.
One of the most serious concerns that everyone had, from the public as well as the petrochemical industry itself, was the sensitive information that could be so easily gotten over the internet. Some of it, very serious information that I'm not sure leads to my protection as a citizen by knowing it myself. But obviously, the intent of the RMPs was to ensure that communities, specifically emergency management personnel, would be prepared to respond to disasters in and around respective plants throughout the community.
So I was proud of the fact that the EPA moved as quickly as it did in getting that information off of the web site, but I believe that it was a first step in ensuring the integrity of sensitive information regarding sensitive information regarding our petrochemical plants. We need to ensure that a system is in place whereby these chemical facilities can work in conjunction with local emergency management, law enforcement and Federal law enforcement to ensure the safety and integrity of both these facilities and the communities at large without compromising potentially sensitive data. So, balance.
Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you very much. Mr. Baird?
Page 20 PREV PAGE TOP OF DOC Mr. BAIRD. No comments, Mr. Chairman.
Mr. DUNCAN. Well, thank you very much. We had some interesting and very fine statements.
Now I would like to welcome the first panel. We're very pleased to have with us Ms. Elaine Stanley, who is the Director of the Office of Information Analysis and Access for the Environmental Protection Agency here in Washington. We have, representing the International Association of Fire Chiefs, Mr. Gary Warren, who is the Deputy Chief of the Baltimore City Fire Department, from Baltimore. We have, representing the U.S. Public Interest Research Group, Mr. Jeremiah D. Baumann, who is an environmental health advocate, also from Washington. And we have Dr. Amy Smithson, who is here representing the Henry L. Stimpson Center. She is a senior associate at that center.
We're very pleased to have each of you here. We always proceed in the order in which the witnesses are listed in the call of the hearing, so that means, Ms. Stanley, we will start with you, please. You may give your statement.
Full statements will be placed in the record. You can summarize if you feel it's necessary to do so.
TESTIMONY OF ELAINE STANLEY, DIRECTOR, OFFICE OF INFORMATION ANALYSIS AND ACCESS, OFFICE OF ENVIRONMENTAL INFORMATION, U.S. ENVIRONMENTAL PROTECTION AGENCY
Ms. STANLEY. Good morning, Mr. Chairman and members of the Subcommittee. Thank you for the opportunity to appear before you today.
My name is Elaine Stanley, and I'm the Director of the Office of Information Analysis and Access at the U.S. EPA. In that capacity, I manage the agency's program that provides public access to EPA's environmental information and the TRI program. This includes what is made available via our web site.
Page 21 PREV PAGE TOP OF DOC In light of recent events and heightened concerns about national security, I'm pleased to appear before the Subcommittee to discuss the steps that EPA is taking to assess the sensitivity of the information that we make available via the Internet. Pursuant to the authority provided by the Emergency Planning and Community Right-to-Know Act of 1986, or EPCRA, and the 1990 Clean Air Act Amendments and subsequent legislation, EPA continues to be strongly committed to providing public access to environmental information. We firmly believe that public access to our information resources contributes positively to the public's ability to understand environmental issues and to its ability to make better protection decisions in daily life.
The tragic events of September 11th have compelled us to carefully review all the information we make available to the public over the Internet in a new light. EPA, like other Federal agencies, has been assessing the potential for misuse of Government information by working to screen the large array of data bases, tools and models currently available on our web site.
We've developed four criteria for assessing the sensitivity of our information resources: their ''type'', ''specificity'', ''connectivity'' and the ''availability'' of information.
Information on a facility or pollutant's location, chemical identification, volume, effects, and plant processes falls within our ''type'' criterion. The ''specificity'' criterion builds on the type of information and assesses the level of detail for each type. The ''connectivity'' criterion looks at the degree to which individual pieces of information can be connected in a particular scenario.
And finally, the ''availability'' criterion assesses the level of control that EPA has over the release of information. This criterion ascertains whether or not EPA is the sole provider of a particular piece of information. If information is widely available through other sources outside of EPA's control--such as information available from State or local government agencies, public interest groups, in textbooks or from universities--then EPA's removal of the information from our web site may not substantially alter its availability.
Page 22 PREV PAGE TOP OF DOC In conjunction with our developing these criteria for assessing the sensitivity of our information, we've compiled an inventory of our web-based information resources. At this time, over 180 resources have been assessed using these criteria.
Of all the information resources screened to date only the Risk Management Plan Information, in a data base called ''RMP Information'', has been removed from EPA's web site while we complete our information assessment.
''RMP Info'' contains Information on Risk Management Plans required by the Clean Air Act. Since 1997, EPA has been working with the Department of Justice (DOJ) and other security agencies regarding the posting of RMP information on the Internet. With the passage of the Chemical Safety Information Site Security and Fuels Regulatory Relief Act (the acronym is CSISSFRRA) and based on an assessment of risks and benefits associated with the data required by that Act, EPA and DOJ published a joint regulation which controls access to sensitive data elements in the Risk Management Plans. The remaining data elements were made available on the Internet.
EPA has temporarily removed those elements because of the high visibility during the debate that led to the passage of CSISSFRRA. We're continuing to assess the issues related to providing Internet access to Risk Management Plans, in light of the terrorist attack of September 11th. In the meantime, State and local officials and the public may obtain copies of the Risk Management Plans from the agency upon request.
There are important statutory directions to the Federal Government at large, and to EPA in particular, in promoting and maintaining the public's right to know about the environment. The Freedom of Information Act, or FOIA, provides the public with the right to access agency records upon written request and subject to applicable exemptions. Congress enacted the Electronic Freedom of Information Act Amendments of 1996 (E-FOIA) to address the subject of electronic records as well as FOIA reading rooms, backlogs of requests, and various procedural issues.
Page 23 PREV PAGE TOP OF DOC The E-FOIA also requires that frequently requested records that are provided to the public be made available via the Internet. Requirements for public access to information, electronic or otherwise, can also be found in EPCRA, the Safe Drinking Water Act, the Clean Air Act, CSISSFRRA, and other environmental statutes.
In conclusion, I'd like to reiterate EPA's strong commitment to providing public access to environmental information and our firm belief that public access contributes positively to our citizens' ability to understand environmental issues and to make better decisions. An informed public can hold industry and government accountable for pollution control efforts.
EPA is aware that we need to strike a balance between protecting sensitive information in the interest of national security and maintaining access to that information so that citizens can use it to protect their health and the environment.
We're committed to achieving our public access goals in a responsible manner. We believe the work we've done to assess our information resources has been and will continue to be a worthwhile effort.
We've screened our information assets to help us judge the kinds of information that require special consideration. We believe the inventory we've developed makes us more knowledgeable about the information that's out on our web site and will help us manage it in the future.
Mr. Chairman, thank you for the opportunity to appear before the Subcommittee this morning. I would be glad to take any questions that you may have.
Mr. DUNCAN. Thank you very much, Ms. Stanley.
TESTIMONY OF CHIEF GARY E. WARREN (RET.), INTERNATIONAL ASSOCIATION OF FIRE CHIEFS
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Chief WARREN. Good morning. I'm Gary Warren, former Deputy Chief of the Baltimore County, Maryland, Fire Department. I'm a member of the Hazardous Material Committee of the International Association of Fire Chiefs, on whose behalf I appear today.
I'd like to begin by thanking the Committee for having me. I understand that you have concerns with issues related to hazardous chemical facility reporting requirements and the community right to know as set forth in the Emergency Planning and Community Right-to-Know Act, EPCRA, and Section 112(r) of the Clean Air Act.
The EPCRA reporting requirements involve the disclosure of information on the presence of hazardous chemicals, among other requirements. Those responsible for managing chemical production or storage facilities must, by law, inform fire departments, local emergency planning committees, LEPCs, and the public of the presence of large quantities of hazardous chemicals. They must also, under Section 112(r), undertake and submit off-site consequence analysis, a so-called worst case scenario, that includes detailed physical plant information, which is one of the things that was discussed earlier.
It came to our attention two years ago that the Environmental Protection Agency, in administering the law, was planning to post on the internet chemical facility worst case scenarios. We expressed concern to both the EPA and to Congress that although the spirit of 112(r) reporting requirements was a good policy, providing detailed information on worst case scenarios in that manner was unwise.
A worst case scenario is exactly that. It involves describing in detail the effects of a catastrophic accident in a hazardous chemical facility. These details include schematic diagrams of facilities and their piping and storage mechanisms. The scenarios also include the impact of certain weather conditions and even consider time of day with respect to maximum predicted casualties.
Page 25 PREV PAGE TOP OF DOC Mr. Chairman, that information is very important to the fire departments, LEPCs and emergency planning in general. The community right to know is also important and should be protected.
However, there must be a balance between indiscriminate, anonymous distribution of worst case scenario information and community right to know. We lost 5,000 Americans on September 11th in what was clearly a sophisticated, well coordinated terrorist attack. We require the chemical industry, under the law, to share information with respect to public welfare. That is how it should be.
Why on earth we would then turn around and provide information to an interested party who is anonymous and untraceable is beyond me. The reporting requirements are sound. Information contained in the worst case scenario with respect to hazardous chemicals should be available. But dissemination must be controlled in a way that allows public access with appropriate documentation while ensuring that it is not used by anyone who will do us harm.
Most, if not all, of the legal measures we in the public safety community have won came in the wake of tragedy and loss of life. While we do not wish to turn back the clock or otherwise undermine our ability to ensure the public safety, we must proceed with caution and rational thinking. That means weighing the right to know with the right to be safe.
Public safety is foremost for all of us. However, when we take information regarding chemical facilities, how they manufacture their products and place that on an internet access site that anyone can obtain is unacceptable.
I'd also like to go ahead and say that information has already been obtained, as far as by our citizens, when they need it. We assure public safety by providing that information. They are able to come into either the emergency management office or the fire stations and look at or evaluate public information as it relates to the chemical facilities that are in their jurisdiction.
Page 26 PREV PAGE TOP OF DOC Thank you again for having me today. I'll be happy to answer any questions that you may have.
Mr. DUNCAN. Thank you very much, Chief Warren.
TESTIMONY OF JEREMIAH D. BAUMANN, ENVIRONMENTAL HEALTH ADVOCATE, U.S. PUBLIC INTEREST RESEARCH GROUP, NATIONAL ASSOCIATION OF STATE PUBLIC INTEREST RESEARCH GROUPS
Mr. BAUMANN. Thank you, Mr. Chairman and members of the Subcommittee, for the opportunity to testify before you today on this important topic of the public's right to know and the role of right to know policy in protecting public safety.
My name is Jeremiah Baumann, and I'm the environmental health advocate for the U.S. Public Interest Research Group. U.S. PIRG is the Federal advocacy office for all of the State PIRGs, the nationwide network of public interest advocacy organizations.
The shocking events of September 11th have obviously focused attention on the significant public safety hazards that exist in communities across the country and of the need for Government action to protect public safety from these hazards, especially hazards that could become vulnerable to terrorist activity. The goal we're all here to discuss is absolutely how we can best protect public safety.
My testimony will cover three areas today: the need for action by Government and industry to actually reduce the chemical hazards in our communities, the public benefit of the right to know and the likelihood that restricting public right to know court hurt safety rather than help it, and the need for consistent criteria to govern agency decisions about altering public access to Government information.
The best way for the Government to protect the public from hazards, including hazards that are vulnerable to terrorist attack, is to address those hazards at their source, not necessarily hide them from the public. The Government should make chemical and other facilities that pose hazards less attractive as targets for terrorism. That means reducing or eliminating the possibility or likelihood that a chemical release could happen.
Page 27 PREV PAGE TOP OF DOC What that means for industry is identifying and using inherently safer technologies and chemicals that eliminate the possibility a chemical incident could happen. For many chemicals and processes, there are readily available safer alternatives. In New Jersey, for example, the number of chemical plants using hazardous amounts of chlorine gas has dropped from 575 companies in 1998 to only 22 companies as of September of this year.
Second, for hazards that can't be eliminated, we should be looking to add on control options and management systems and increased security that can decrease the likelihood and potential severity of an incident. Where those hazards can't be eliminated or controlled, we should have ambitious response plans to mitigate the consequences of incidents, and when off-site consequences are still possible despite the precautions we've taken, we should be using buffer zones under guidelines to keep these hazards away from population centers.
These are the steps we can use to address the hazard directly. But when it comes to handling important right to know information, pertaining to chemical hazards in communities, a key message is that restricting the public's right to know, rather than reducing the hazards themselves, could be hurting our safety. There are nearly 3,000 facilities in the U.S. whose worst case scenarios could affect 10,000 or more people in the surrounding community. Every year in the United States, about 25,000 chemical incidents kill 150 Americans and injure another 5,000. Removing the right to know doesn't change these threats or these hazards. It not only fails to address the hazard, but even worse, it reduces the ability of individuals and communities and community groups to participate in safety decisions.
In the wake of September 11th, that means restricting the public's ability to participate in decisions about the safety of their community and their vulnerability to terrorist attack or to participate in appropriate planning for responding to a terrorist attack. Restricting right to know programs also decreases safety in the long term, because right to know programs have shown that they can reduce risks by empowering communities to work for measures that make the community safer. The best example we have is to look at the Toxics Release Inventory, which has contributed to a nearly 50 percent reduction in chemical releases.
Page 28 PREV PAGE TOP OF DOC Finally, for the Government information that is legitimately sensitive information, we certainly share the concern and intent not to get that information into the hands of potential terrorists. But to do that appropriately and not harm the public's right to know, we need consistent criteria that will limit the ability of Government or industry entities to keep information that should be public domain from public scrutiny.
Public information has been balanced successfully with necessarily exemptions, for example, for information that pertains to personal privacy or information that could reveal trade secrets. The criteria for this should include the type of criteria that Ms. Stanley has identified, the type of information is very important. I argue that information about the hazards a community faces and the potential consequences of a chemical incident, whether the result of an industrial accident or of terrorist activity, is information the public has a right to. That's the Government's obligation to warn the community about potential hazards.
On the other hand, detailed technical information that could provide a potential criminal with tools they would otherwise not be able to access is the kind of information we should be considering where the appropriate balance lies.
As Ms. Stanley mentioned, the availability of information is another important factor. Some of the information for which access has already been restricted is available or readily discoverable from a range of sources. When we're talking about tens of thousands of facilities with hazardous chemicals on site, the locations of these facilities are readily discoverable in company literature, in phone books or just by driving up a freeway and seeing these facilities.
Risk management plans, including worst case scenarios, have been widely described in newspapers already. So cutting off public access through the Government may be only hindering members of the public from accessing that information, and not a committed terrorist, who's going to work to find the information they need.
Page 29 PREV PAGE TOP OF DOC In conclusion, I'd like to say again that our first priority is protecting public safety. We should review the combination of right to know measures and actual reductions in the hazards that communities face in order to protect public safety. At no time has that responsibility been more urgent.
I focused my testimony primarily on the major principles and that was the approach looking at this issue. I'd certainly be happy to take questions or explain a few of the various specific information resources or provide examples of where this information has been useful upon request. Thank you.
Mr. DUNCAN. Thank you very much.
Dr. Smithson, we have a vote going on. I'm going to let you go ahead and start with your statement, and I may have to interrupt it. I apologize in advance if I have to. But go ahead you may start.
TESTIMONY OF AMY E. SMITHSON, PH.D, DIRECTOR, CHEMICAL AND BIOLOGICAL WEAPONS NONPROLIFERATION PROJECT, HENRY L. STIMSON CENTER
Ms. SMITHSON. Thank you, Mr. Chairman.
The statistics of terrorist behavior kept by the Department of State and the University of St. Andrews/RAND amply underscore that in recent decades, terrorists most frequently inflict harm with bombs and guns. However, another terrorism data base, this one maintained by the Monterey Institute of International Studies, shows that over the years, terrorists have also demonstrated interest in acquiring and using unconventional weapons.
While statistical trends would forecast that terrorists will continue to turn most often to the tools they know best, namely bombs, it would be imprudent to ignore the possibility of future terrorist use of chemical and biological agents. And the lion's share of incidents that have occurred where terrorists have used chemical and biological substances unsuccessfully, but there certainly have been some worrisome cases. But that could change very quickly if terrorists were to turn to foul play with industrial chemicals.
Page 30 PREV PAGE TOP OF DOC If you need a mental image of the type of calamity that could occur, I would remind you of the incident that occurred in Bhopal, India, on the 3rd of December, 1984, when methyl isocyanate was released from a chemical plant there, killing roughly 3,800 and injuring over 11,000. That is why the main chemical terrorism concern of America's front line personnel, our responders, involves the sabotage of industrial plants. Which brings us to today's review of how information regarding the hazardous materials facilities in this country should be handled.
Mr. Chairman, I thank you and the Committee for looking into this matter. I must tell you all, the bureaucratic decision that is reflected in the 4 August 2000 regulation to publish information about these sites on the web, and make more information about them available in reading rooms, wasn't just bad, it was colossally bad. This regulation satisfied the concerns of neither camp that were pitted against each other as this decision was made.
Until recently, individuals could browse anonymously through an online data base to find information about the risk management plans for these facilities, searching for sites according to geographic location and/or by chemical, and then by presenting a photographic identity, like a driver's license, they could review even more details from these plans, including the offsite consequence analysis sections. And as you've heard and understand, these include how many people would be injured or killed if an incident were to occur.
Now, according to the April 2000 Justice Department report which you yourself referred to, the risks associated with posting the offsite consequence analysis information are in the reading rooms. These data contain seven of the nine pieces of information that the Pentagon Special Operations Command believes would be needed to plan an attack on an industrial chemical facility.
Now, Mr. Chairman, we've got to come to our senses here. I'm dumfounded that this point appears to be lost on those who are arguing that perhaps this information be reposted on the web and that the reading rooms remain open. The lives lost to terrorist sabotage of industrial facilities cannot be reclaimed.
Page 31 PREV PAGE TOP OF DOC Mr. DUNCAN. Dr. Smithson, I apologize, but I'm going to interrupt at this point, and I'm going to give you a little extra time when I come back because I'm having to interrupt. But we do have this vote going on, and we will take as short a break as possible. We'll be in recess to do the vote, and then we'll hear from all the panelists once again as soon as we reconvene.
Mr. DUNCAN. We'll get started back into our hearing.
I want to apologize to all the witnesses, but particularly to Dr. Smithson for having to rudely interrupt her statement, but it couldn't be helped. Dr. Smithson, I'm going to give you all the time you wish, and you go ahead and start back in. You were making a very fine statement. Start back at any point.
Ms. SMITHSON. Thank you, Mr. Chairman.
In this day and age, Washington can no longer afford to hand any interested individual a road map to the chemical calamities they could cause with the toxic materials located in communities nationwide. Someone argued that the milk has already been spilled by the implementation of this regulation. Well, the quicker a decision is made to close the reading rooms and keep both them and the EPA web site permanently shuttered, the better.
Furthermore, the Environmental Protection Agency should review and purge its web site of other data that might aid and abet terrorist plots to sabotage chemical plants. Such information would still be made available to citizens through the appropriate local venues, but it would not be delivered to aspiring terrorists on an internet silver platter.
Environmental interests need not suffer as a result of a reversed policy. Prior to the inauguration of the 4 August 2000 regulation, concerned local citizens already had access to local emergency planning commissions, where they could gain a better understanding of existing safeguards, regulatory enforcement procedures and emergency plans for these sites. Consultation between industry and citizens can also occur via the chemical industry's responsible care and community awareness and emergency response programs.
Page 32 PREV PAGE TOP OF DOC What this all boils down to, Mr. Chairman, is actually convenience. It's not about denying the public right to know. It's about how convenient is it for this information to be made available. Americans have become accustomed to drive-through windows and online shopping. Well, we shouldn't do that with this type of information. This information should remain available through local emergency planning commissions, but not delivered in the manner that it has been in the last year or so.
Unfortunately, the issue of access to this data has become more complex in recent months. Taking matters into their own hands, certain private interest groups have begun presenting on their own web sites data gleaned from risk management plans and their offsite consequence analysis sections.
I would argue that these interest groups should immediately cease and desist such activities about making this information available on the internet, and remove them from their web sites. Failing their voluntary cooperation, the U.S. Government should take swift steps to close down the pertinent sections of these organizations' web sites, and take legal steps to prohibit them from distributing this data in the future on the internet or by other means, such as mass mailing.
Again, no one is arguing here that American citizens be forced to live in ignorance of the chemical facilities in their midst. Rather, I and the countless responders that I interviewed in 33 cities and 25 States across this country ask that there be a return to the status quo ante, before this 4 August 2000 regulation was enacted. We expect that concerned citizens avail themselves of access to this data through the local emergency planning commissions and other industry and community forums, rather than hand aspiring terrorists a road map to cause grievous harm to this country.
Mr. DUNCAN. Well, thank you very much. I want to thank all the witnesses for very fine statements. Since we were interrupted, I'm going to give all the witnesses a chance to add to or supplement their statements with any thoughts or comments that they might be inspired to make by things that other witnesses have said.
Page 33 PREV PAGE TOP OF DOC Mr. Baumann, I'll start with you. What do you say about Dr. Smithson's comment that she's not wanting to deny people's right-to-know, she's just wants to limit it to the people who really need to know or can safely know it, that we're used to the drive-through windows, basically that in a way I guess, are we spoiled and we just don't like the idea, this sticks in our craw, so to speak, to think that somebody is holding back information from us? Are we acting like spoiled brats here by demanding information that we really don't need to know?
Mr. BAUMANN. Well, I guess I'd first like to clarify that the risk management plans that were on line before September 11th already had the worst case scenarios removed. The worst case scenarios were only available in extremely limited access in these reading rooms, of which there is one per State, and individuals are allowed to see only 10 facilities.
The Government's ability to decide who needs to know and how they can access that I would argue is somewhat limited, especially if you're someone who lives in a place like New Jersey or Harris County, Texas, where there are so many chemical hazards that 10 facilities may not be enough. Furthermore, the right to know suffers when it's limited to a local access only.
The benefit of the toxics Release Inventory has been that the public can see from time to time who the worst, where the worst hazards are and where the best hazards are. Companies can learn from each other, communities can learn from each other and implement best practices.
The risk management plans that were taken down after September 11th actually primarily included the identity of the chemical that was stored, the emergency response plan for that facility and the facility's accident history, not even the outside consequences. So limiting access to that information, I'd argue, does deprive citizens of incredibly valuable information.
On the point of whether this information is useful or whether people that just want this information but don't need it are complaining they don't have it, there are numerous examples of communities using this information to truly increase public safety. In Florida, within the last several years, communities looked at worst case scenarios and it was then for the first time realized the true hazards that faced them, the complete lack of security at the facility, the fact that several facilities could have offsite consequences impacting tens of thousands of people. And the community, in a very public way, worked to increase security and to increase the safety of those facilities to dramatically reduce the potential impacts of a chemical incident. It's incredibly valuable from that point of view as well.
Page 34 PREV PAGE TOP OF DOC I guess I'll stop there.
Mr. DUNCAN. Thanks very much.
Ms. Stanley, the staff tells me that while some of this information that Mr. Baumann said was removed following September 11th, very sensitive information was left in the executive summaries, the risk management plan executive summaries. For instance, I mentioned that they got information from 23 facilities in my district, and I think 21 in Mr. DeFazio's district.
Did the EPA do any kind of screening before making these executive summaries available to the public?
Ms. STANLEY. Mr. Chairman, I don't believe that the agency did any additional screening of the executive summaries as they were submitted with the Risk Management Plans. Under the regulations, I think it is up to the companies to determine the degree of detail that they have in those executive summaries.
But I think it is true that they are at a level of generality and as was just pointed out, that none of the executive summaries have the degree of detail that outlines piping or plant layouts. That information was not part of what was originally on our Internet site.
Mr. DUNCAN. So do you not share, then, the same concerns that Chief Warren and Dr. Smithson expressed in their testimonies?
Ms. STANLEY. I think this is a debate that has been going on since the passage of the Clean Air Act that required the development of the Risk Management Plans with the offsite consequences analyses. The debate that led up to the August 4th regulation aired a lot of these issues. There were a number of analyses conducted by both the agency and DOJ, including the one that you referred to. And the regulation is a balance or a compromise that may not completely satisfy all the parties, but represents a compromise between both those interests.
[Ms. Stanley's additional remark follows:]
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It is important to note that the executive summaries are presented in a way that does not enable readers to manipulate consequence or population data to develop rankings for targeting purposes.
Mr. DUNCAN. Chief Warren, how do you feel about that statement that we've struck basically the appropriate balance here?
Chief WARREN. Well, I think that when we talk about an appropriate balance, if I can, I was the emergency management director for Baltimore County. Baltimore County surrounds the city of Baltimore, there's 610 square miles, we go from highly urban to suburban to a rural type setting. We have large manufacturing facilities in there and we have close to a million population base in the county.
One of the things that we found was the issue of SARA reporting, which is one of the things that was discussed earlier. When you start looking at SARA reporting under Tier 2, it says that we look at products that are on the extremely hazardous substance list. Those products that are on the extremely hazardous substance list, one of the goals is to reduce the use of those products, because they are the nasties when it comes down to chemicals. As a result of that, we've seen facilities that were reporting facilities actually come off of the list because of going to the lesser chemicals that were being used.
When the Clean Air Act came about, and in particular when you looked at the section regarding internet access, we in the fire service and the emergency community had a grave concern over that. The reason was, we had already, for 10 years or better, already been the depository for the Tier 2 reports. One of the things you find when you go into any local jurisdiction, if I want to find out what that facility had, I contact the Government agency, I find out who the depository is for the Tier 2 reporting, and I can go and look to see what those facilities have.
Page 36 PREV PAGE TOP OF DOC When that occurs, there's somebody that physically shows up, there's somebody that we actually look at, we actually see their i.d., we actually go through and physically have the conversation with and see what they're looking at as they investigate.
The thing that you find is, and the 10 years that I had emergency management there in the county and ran the LEPC and so forth, one of the things that you found was that the majority of the time, very seldom were there citizens that came in that looked at this information. What you had were real estate agencies, contractors and they would come in and what they were looking for was the property that was adjacent to the property they were going to buy to see whether the facility next door had any type of event occurring which may result in ground contamination.
Now, on the other hand, when we look at emergency management, the information that got out to the citizens came from emergency management. In a proactive stance, when you look at trying to prepare to handle an event, Clean Air Act information, worst case scenario, worst case scenario I want to sit down with the citizens that are impacted by living in that petroleum based facility or area, by living next to the chemical plants, by living next to the manufacturing plants, and talk to them and show them this is what may occur.
But we're the ones that are leading that charge. We're not going ahead and having somebody sitting in their home, rather than taking the internet, bringing it up and starting through looking at what this facility has and trying to determine worst case scenarios. When people had to determine worst case scenarios, they actually went through, and some people say, well, you're talking about the chemical or you're talking about the tank. Folks, the tanks are not the weak structures when you look at chemical facilities. Piping and valves are the weak areas when you look at chemical facilities.
So if I want to look at worst case scenario, all I need to know is what valves and what piping should be my targets. Those are the things that we're concerned about. Internet access for us, and we have said it from the very beginning when the Clean Air Act came about and the EPA said they were going to put this out on the internet, worst case scenario is not acceptable to us in the emergency services.
Page 37 PREV PAGE TOP OF DOC Mr. DUNCAN. Thank you very much.
Dr. Smithson, anything you wish to add in response to the other comments?
Ms. SMITHSON. I guess the only thing I would add is, I think it's somewhat disingenuous to argue that it doesn't do any harm to put this information on the internet, that this is already information that is readily available. Well, yes, it's true, you can look in the telephone book and find out where various chemical plants have their addresses. But let's at least make the bad guys work for it, instead of serving up to them in reading rooms seven of the nine pieces of information needed to target a facility, instead of allowing them to go onto the internet and search by most dangerous chemical and/or by geographic location.
This is common sense. It's not about denying citizens in these communities access to information. They could go to the local emergency planning commissions before this regulation was enacted. I suspect that many supposedly concerned citizens didn't bother to go.
But if they did, they would find out that there's going to be somebody like the Chief here in the room that can explain a number of things to them about the risks of these facilities and the plans that are in place to respond to accidents. That's the way we ought to be doing business on this one, not by anonymously providing information to anybody who could do us harm.
Mr. DUNCAN. All right, thank you very much.
Mr. DEFAZIO. Thank you, Mr. Chairman.
Mr. Warren, I'm a bit puzzled as Dr. Smithson talks about the seven of nine criteria. Did these sites ever provide the specificity you're talking about, locations of valves and pipes that were critical? I thought that they were just doing an analysis of what would occur if a certain chemical spill of this nature took place. They wouldn't say, if valve 42 failed, which caused a rupture 142 feet from the property line at this point where there's a pipe visible, this would happen? Was that level of specificity ever required or provided?
Page 38 PREV PAGE TOP OF DOC Mr. WARREN. The information regarding chemical specific, when you look at worst case scenario, I would have to figure out what would be my worst case scenario. The way you figure out worst case scenario, it says not that this chemical is the one that's leaking, because if that chemical is leaking, is it a small leak, is it a large leak. Is it leaking from the bottom of the tank, is it leaking from the top of the tank.
So in order for those facilities to determine worst case scenario, they had to become very specific. They know where the weakest link is in their manufacturing process.
Mr. DEFAZIO. But do they then provide a map?
Mr. WARREN. They went through, identified where that process was, then determined what the worst case scenario was with how it would move off.
Mr. DEFAZIO. Okay, because I've never gotten to read one of these.
Ms. Stanley, could you address that? Was there that degree of specificity? I'm just blown away that people would do that. I can't believe they would do that. I can certainly determine, and my times in emergency management predate all these regulations, and were in the early days of right to know and all that, but I'm just curious. Were we requiring that degree of specificity?
Ms. STANLEY. I think we need to clarify the amount of information that was provided or that was generated as part of the development of the Risk Management Plans and the offsite consequences analyses and distinguish that from what was actually put up on the internet in the RMP data base. That degree of detail may well have been generated as part of the planning process and put into some of the documentation.
That amount of detail was not posted on the Internet site. The executive summary is much more general in terms of outlining the parameters of the worst-case scenario that was analyzed, but without providing a lot of specific information.
Page 39 PREV PAGE TOP OF DOC And that was the only degree, the executive summaries were the only thing containing OCA information that were on the Internet and those have now been taken down temporarily. Complete Offsite Consequences Analyses are available in the reading rooms. But again, as has been discussed, there's one reading room per State. Access to those reading rooms is monitored as well as regulated and limited, so that there is a record of who requests and who looks at the Offsite Consequences Analyses.
I should also point out that you're not allowed to make any copies of the off-site consequences analyses in the reading room. You're only allowed to read them in place. You're not allowed to take any copies away with you.
Mr. DEFAZIO. But of course, we do have miniature photographic devices and little pens that can copy things. I just don't, personally, other than for the first responders or local officials, I don't understand why that degree of specificity should be made public. I'm all for, I mean, I generally want a knowledgeable public, but I don't understand why they would need the specificity. They would need to know the potential amount and the rapidity of release and the area that would be covered by the chemicals and the people who are at risk. That's something the community and the neighbors should know.
But to know that it would be a result of this pipe rupturing here because of this valve, I don't see why we would have to make that public at all.
Ms. STANLEY. What you have outlined is the nature of the information that's in the executive summaries.
[Ms. Stanley's additional remark follows:]
While alternative scenarios might identify this kind of rupture, the RMP does not contain specific information on layout or location of pipes or valves.
Page 40 PREV PAGE TOP OF DOC Mr. DEFAZIO. Right, so you're saying that in the reading room that other information would be available. And I don't see why we wouldn't restrict that to people who have legitimate need.
Ms. STANLEY. Well, I think on a community specific basis, it does help for the people who live around the facility to have that understanding of the premises on which the emergency response plan is built.
[Ms. Stanley's additional remarks follow:]
Furthermore, it helps all levels of government and emergency planners, as well as first responders, and even other companies and concerned citizens, learn from the information. They can also compare how companies manage their risks.
Mr. DEFAZIO. Yes, and again, not necessarily the mechanics. I'm just getting to the point of the mechanics, that this is a little troubling to me. Mr. Baumann apparently wants to respond to that.
Mr. BAUMANN. That level of detail is actually not required, the schematic diagrams, maps. Some facilities likely have submitted that, going above the regulatory requirement. But that kind of information actually is not required at that level of detail.
Mr. DEFAZIO. And you are not advocating that that be made available?
Mr. BAUMANN. That's right. The criteria that I outlined at the end of my statement points out if there are certain types of information that are unique tools that a potential criminal couldn't access elsewhere should be considered restricted access. But the kind of information you identified, the consequences, the area affected, the rapidity of the release, should absolutely be made available.
Page 41 PREV PAGE TOP OF DOC Mr. DEFAZIO. But you know, I'm an old guy now, been here a long time, and you know, I remember the days before the internet, even did a little research in those days myself. What's the problem with saying that if you are truly an interested member of the community or the public in that State that you have to go to a specified place and identify yourself in order to obtain some of this information?
Mr. BAUMANN. I think for the information that we're advocating be public, the reality is, when you've got one reading room in a State, to expect that most citizens are going to take the initiative to travel to their State capital, go into a reading room, I generally advocate that more people should. But if the benefits of right to know information are really to be realized, we should be doing what we can to make sure that valuable information gets into the hands of as many people as it can, so that information can actually work to help reduce hazards and to help prepare communities to deal with these kinds of situations.
Mr. DEFAZIO. Yes, if we didn't have an internet, we'd be back in the libraries, right?
Mr. BAUMANN. That's absolutely right.
Mr. DEFAZIO. It's a convenience, it isn't a necessity. And it does provide anonymity, which can be problematic.
I just had a reporter surprise me with my social security number, he had paid $24 to get it on the internet. So
Mr. BAUMANN. That's exactly why the PIRGs have an active history of advocating for protecting people's privacy on the internet.
Mr. DEFAZIO. I get your point.
Dr. Smithson, I was trying to follow the gist of where you were headed in talking about the local emergency planning commission or committee that could provide information to individuals. Are you suggesting, because you were talking about removing some of this information from the public domain and I don't know of any way to do that at this point, other than to say, it would have to be classified. What are you exactly advocating there? How would we remove it, since it's already in the public domain and some people at private web sites are posting it? How would one do that, other than classifying it?
Page 42 PREV PAGE TOP OF DOC Ms. SMITHSON. I think that citizens who are concerned about the facilities in their midst should be able to, as they have all along, to attend the meetings of their local emergency planning commissions and to talk with officials there about the facilities in their midst, to get the information that they need to know about what the hazardous chemicals are, and what are the emergency response plans. And if they have concerns, by all means, to voice them and to get information through those venues that have existed for quite some time.
To put it on the internet, either by the EPA or by private interest groups I think is a colossally bad decision. Because that does enable anonymous access to that information. So while the milk has been spilled, we shouldn't just let the milk lie out on the table. We've got to clean this up and to get this information off the web.
Mr. DUNCAN. And how would we do that with these private sites?
Ms. SMITHSON. With these private sites, I am arguing that if they do not cooperate, and I've got a couple of the things that are up on private sites here, the top 50 facilities in one State. The top 50 facilities in accidents that can occur across the country. If you want your target list, here it is. We need to get this information off the web at their sites, too. So close down those parts of their web sites.
Mr. DEFAZIO. We make laws around here, and I'm just curious how we get to that point. I'm not a lawyer.
Ms. SMITHSON. And I'm not a lawyer either. I would be delighted to help you draft that type of legislation. But fortunately, I believe you have counsel that can put that into legal language for you.
Mr. DEFAZIO. Yes, we're afraid of that.
Mr. DEFAZIO. Thank you.
Mr. DUNCAN. Thank you very much, Mr. DeFazio.
Page 43 PREV PAGE TOP OF DOC Professor Horn.
Mr. HORN. Thank you very much, Mr. Chairman.
I'm curious, last month this Subcommittee held a hearing on the need to protect critical infrastructure from terrorist attacks nationwide, 15 percent of the facilities around the country that must give EPA information on the consequences of a worst case scenario chemical release or critical infrastructure facilities, like drinking water, treatment plants and power plants. In my district, fully half of the facilities that have to provide this information are drinking water and waste water treatment plants.
Does anyone on the panel think that it's appropriate to highlight the vulnerability of our critical infrastructure by making sensitive information freely available to the public? How do you feel about that?
Mr. BAUMANN. I think in the example of drinking water facilities, actually it's a very good example. The use of chlorine gas is one of the most widespread and widely known chemical release hazards in communities. So I think not revealing to the public that there is a potential safety situation around a drinking water facility isn't going to keep a terrorist from knowing that. There are chemical industry pamphlets and literature that in great detail describe the consequences of releasing the chlorine gas from a 90 ton rail tank car, which is the form that a lot of this is stored in.
At the same time, the use of chlorine in drinking water facilities provides the perfect example of the appropriate response of protecting public safety. There are many safer alternatives to chlorine gas for treating drinking water. Five hundred and seventy-five facilities in New Jersey that used to use chlorine gas to treat drinking water facilities, that number has now been reduced to only 22 facilities that are continuing to use that product.
So the right response is to get these facilities to switch to the safer technologies and chemicals that are going to keep us safe, and not just hide from the public the fact that the technology around the corner could be putting their lives at risk. Not only from terrorist attack, but from the tens of thousands of chemical accidents that already happen every year.
Page 44 PREV PAGE TOP OF DOC Mr. HORN. In an April 2000 report, the FBI concluded that the risks of terrorists attempting to cause an industrial chemical release in the foreseeable future is both real and credible. Do any of the witnesses disagree with that conclusion? Dr. Smithson?
Ms. SMITHSON. I agree with that conclusion. And I also think that we should not be providing a road map to terrorists for these facilities. Again, he's kind of half right here, Mr. Baumann, we should definitely be encouraging our industry to move toward safer technology. But there are reasonable ways to do that. Creating this map is not the way to do that. Creating this map for terrorists is not the way to do that.
It's also not about hiding the appropriate information from citizens. They have access to that information. This is about how it should be handled and that balance that the panel seems to be seeking to find.
Mr. HORN. The FBI also has concluded that the name and amount of chemicals found at a facility, the geographic area that could be affected, if there is a release of these chemicals and the population that would be affected by that release are precisely the types of data a terrorist uses to identify targets. Do any of the witnesses disagree with the FBI's conclusion that release of this type of data presents the greatest national security and law enforcement risk?
Chief WARREN. They're absolutely correct. The problem is, when that information goes out and is disseminated, these become, if I have a choice between three different targets, when I start looking at the consequence management issues, it says, time of day, which is part of worst case scenario, time of day. Is there a school outside? If there's a school outside the facility, do I want to hit that facility at 3:00 o'clock in the morning. The answer is no. I want to hit that facility at 1:00 o'clock in the afternoon, because the school is occupied Monday through Friday. I'm not going to do it during the summer months.
The other thing to keep in mind, we talk about water treatment facilities and waste treatment facilities. We know about chlorine, we know about sulfur dioxide being some of the major products that are there. We talk about reducing the type of product that's being used. Now, we're going to a lesser product. We're not doing away, we're not going to go ahead and not have a chemical there. There were still be a chemical of some sort being used in this process. It may not be as dangerous, as toxic at the very get-go, but it will still present a hazard to the citizens that we're sworn to protect.
Page 45 PREV PAGE TOP OF DOC Mr. HORN. I recall also your fine testimony before our committee and I wonder if you can tell me where we are now with that chemical that was spewing out of the railroad tunnel. Is that out of that tunnel yet?
Chief WARREN. That's the City of Baltimore. I'm from the county. So I can talk for the City of Baltimore, but yes, they've gone ahead and they've worked on getting the cleanup taking care of. They did have the problem with the explosion, some of the storm drains where the product had gotten out. But that has all been mitigated at this point.
Mr. HORN. And we've learned from that what? You say it's part of the county.
Chief WARREN. No, no. We're two separate entities. But any time you handle any event, whether it be a chemical event, whether it be a major mass casualty medical event, or whether it be a high-rise type fire, we learn every time we go out the door what the consequences of how we handle that event are and will be. We pass that information on to the following generations so that hopefully they will either make the same decisions that were appropriate, that we did, and learn from the mistakes that we made.
So when we look at the tunnel fire, there's things, when you start looking at products going through a major metropolitan area, do you stop the trains from carrying the chemicals through in order to protect the citizens? But then what are the consequences that are associated with that, and you get into the risk management aspect that you have to deal with.
Mr. HORN. Even after the September 11th attacks, a terrorist can go to the OMB Watch web site and find information that will help them to target facilities, including chemical names, volumes, geographic area affected by a release and population affected. That terrorist can then go to a local emergency planning committee and get information about the exact location of chemicals at those facilities from chemical inventory reporting.
Do any of the witnesses really disagree that this information in the wrong hands increases the risk of a successful terrorist attack using chemicals as a weapon of mass destruction? What's your feeling on it, Ms. Stanley, representing EPA?
Page 46 PREV PAGE TOP OF DOC Ms. STANLEY. I think as we had discussed earlier, Congressman, that certainly this information is available and unfortunately, it can be misused in the wrong hands. But there are also important benefits by having that information available for members of the community to know and to become more educated about the risk of the chemical facilities in their midst.
What we're trying to do is address the need-to-know for local citizens and provide the necessary safeguards that allow us to identify those who ask for that information.
Mr. HORN. Thank you. Thanks, Mr. Chairman.
Mr. DUNCAN. Thank you very much, Mr. Horn. One of the points of this hearing is that some of this very specific information that the FBI says is the highest risk and the most beneficial to terrorists is in these executive summaries which were taken down by the EPA, taken off the internet by the EPA after September 11th. But they're still up, on the web sites of various environmental groups. We understand the EPA plans to put these same summaries back up again very shortly.
Mr. LAMPSON. Thank you, Mr. Chairman. And we hope the executive summaries do indeed don't go back up quickly, I hope we find some way to halt that.
I'm going to read from this in a minute, it's one of the ones I got to give an example of why I wonder about the real benefit from it. And I obviously know that there is, I've always supported the public's right to know. But when September the 11th came, I found myself living in a whole different world.
I set about to find very quickly in the district where I live and represent, what many of our weaknesses are. I know that there are weaknesses all over this country. We can't sit around with our heads stuck in the sand thinking that people don't know about what's in these plants. They do. And not just in plants, not just in refineries and chemical companies and nuclear facilities and everything else. There's a ton of information.
Page 47 PREV PAGE TOP OF DOC One of the refineries down there even had for several years a number of Middle Eastern people coming in to specific classes to teach them how to build and operate the refineries. They know every square inch of several of these facilities, and have not been in turn followed through to find out what these people's backgrounds are and who they have allowed to know the details of the facilities. That will be something that I am most curious to know, as a citizen, right now, did any of the approximately 3,000 people that were trained there have connections to terrorist organizations. We don't know. It would be nice to know.
I learned some things that are also very public. We know that it would take blowing up a refinery to shut down a significant amount of refining capacity in this country. If you stop a pipeline, if you somehow affect the controls which are located in primarily one place for the pipelines that run throughout the entire southern part of the United States of America, you shut down the operation of those pipelines.
If you stop traffic in a ship channel that supplies a large number of the petrochemical industry, you stop the ability of our chemicals to be manufactured and so much stuff to be manufactured from it, you stop the production of our fuel which runs this country. So we have weaknesses that are there.
We set out to then try to pull a lot of the different groups of people within our community, emergency management people, law enforcement people, military that helps provide some security, plant managers, community leaders, to try to find out what else we might be able to do with risk management. Interestingly enough, the very first thing that came up in the first meeting which I had, which I believe was the Monday following the Tuesday attack had to do with this information that the plants had out on the web sites. And again, I praise the EPA for acting quickly and attempting to get those down.
But just as an example, this one comes from a facility that's just on the edge of the Congressional district that I represent, not inside of it, but just outside. I'm not going to say the name of it. But it gives the addresses of the offices, the physical description of the location of the plant, on the front page of this thing and tells what the refinery does. It has several regulated flammables such as butane, butene, isobutane, pentane, isopentane, mixed flammables throughout several process units. In addition, the refinery uses chlorine in some of its processes and stores ethylchlorhydrine, ECH, for use at our neighboring chemical plant. Chlorine and ECH are regulated toxic substances.
Page 48 PREV PAGE TOP OF DOC We flip over into one of the paragraphs, just a few paragraphs further over, and it talks about the worst case scenario for a chlorine escape. It says, the worst case scenario involving a toxic substance at this facility would involve a catastrophic failure of a one ton facility of chlorine. This scenario assumes a maximum inventory of chlorine would be released and it evaporates within a 10 minute period. Under the EPA defined worst weather conditions, the chlorine gas cloud would potentially travel 1.3 miles before the concentration diminished below the ERPG2 concentration of 3 parts per million. Although we have numerous controls to prevent such release, and diminish their consequences, no credit is taking for passive or active mitigation of the analysis.
Potential public receptors include schools, residences, and industrial areas. There are no environmental receptors within the distance from the release point. The EPA RMP guidance for waste water treatment plants was used in evaluating this scenario.
I can compare that with all these other chemicals and pick out the one that I would most like to target pretty easily. And it's easy enough for me to understand that if I wanted to do harm, then I could go and find the handful of guys that the City of Texas City hired not long ago to go and break into a plant to make sure how safe it was. As the plant manager, along with his other key people watched with night vision glasses as the deputy sheriffs navigated the controlled areas of that spot, easily. Something could have been done that could have caused damage.
That's a concern that in my opinion we all need to take very, very seriously. I want to work with this Committee and all of you, all of you, including you, Mr. Baumann, to make sure that the concerns that citizens have can be addressed. There has to be balance in this. There's no question but that we want to know what is going to be released into the air that could do harm to us, harm to the water or wherever else.
But I want my emergency management people to be able to do the best job they can for me, and I think that means restricting some of my knowledge about information that's not going to do a great deal. And I apologize for taking so long to tell that.
Page 49 PREV PAGE TOP OF DOC If any of you want to make a comment to expand on it, if so, fine, if not, I just look forward to working with you.
Mr. DUNCAN. Very quickly. Because we need to move on to other members. Go ahead.
Chief WARREN. Yes, Congressman. One of the things that you bring up is the issue of the EPA taking information off the net. For two years, we have continually voiced our concern about that information being on the net. And it's one that when we look at public safety, it goes back to my closing comments, and the closing comments were, something has to happen when we look at public safety that results in the loss of life before change will occur. Hopefully, the change hasn't occurred too late.
Mr. DUNCAN. Well, thank you very much. Mr. Lampson, I'll say you have expressed in a very articulate way the very reason that we called this hearing. It's a very difficult thing to strike this balance, but somehow we need to try to do that or at least make a pretty good attempt.
Mr. OTTER. Thank you, Mr. Chairman. And I thank the panel for your testimony. It's been very enlightening.
Unfortunately, most of this information is already out. And unfortunately, you cannot control it any longer. All we can do is control what's going to be available in the future from the new information that we have. In fact, I don't know how you would stop it now. If the news media has got it, unless you're going to suspend the First Amendment, like we did the Fourth, Fifth, Sixth and Tenth in our terrorist bill, I don't know how you'd stop the news media from continuing to print it, because it's a freedom of speech issue.
But one that we can do, perhaps, is concentrate on our efforts partially from what I think Mr. Baumann said, but also Chief Warren, the points that you brought up. And Chief, I just want to say that you folks that put yourselves on the front lines deserve our respect and consideration. You have a right to know where you're going and what you're going to face when you get there.
Page 50 PREV PAGE TOP OF DOC I can't think of any other citizen, I can't think of a reporter, I can't think of a politician, that needs that information as much as you and those folks that work alongside you need it. And you should have it.
We should also be able to control its access. One of the things I think we need to work on is if we can't reduce the kinds of chemicals and the volume of chemicals that we're using, then how can we make more safely the apparatus that we do, and don't print that. And I'm reminded of a very popular movie in the 1970s, China Syndrome. The people that authenticated that movie got all their information from the EPA, the Department of Energy, the Department of Defense, and various other Government agencies. They knew what valve.
And in response to Mr. DeFazio earlier, my colleague from Oregon who's not here, it was said, well, how did they know which valve? Do they have to say with specific knowledge which valve it is? They knew exactly what to do in that movie to prepare that disaster.
Sometimes I think these scenarios and these theoretical disasters that we use from time to time, certain Government agencies do in fact create the worst case scenario and they need to make that public. Because if they can't prepare that political environment for them being the only safeguard that stands between the public and disaster, they're probably not going to get the political authority in order to make the changes that they want to make through their agencies.
So I'm concerned that if we use all of our energies trying to control the information that's already out there, we're wasting our time. That holes already been dug and refilled many, many times. But what we can do, and what, Chief, you can do and the EPA can do, what these other organizations I think can do, can go to these industries that are vulnerable and say, okay, how can we make a couple of major changes and then not print that information, so if the terrorist does show up and we did have the weakest link, we did have the point of vulnerability, that that's no longer there, and in fact, they're flying blind again?
Page 51 PREV PAGE TOP OF DOC And I'm just hopeful that we will spend our limited resources that are becoming more limited every day, every time we go down on that Floor, we spend more resources and dig ourselves into a deeper hole. And it's a hole that I promised, when I ran for election, that I would never dig. And I'm ashamed to admit it, I'm probably digging just as fast as all 434 of the others.
But if we could use the resources that are available to your agencies and your organizations and the talents that are available, and to go these vulnerability reports that are already public and say, okay, where can we make the greatest change in the quickest time and advise the industry of that. And maybe then we've got to come back to us and we've had to say, look, you folks are going to have to give us some accelerated depreciation, you're going to have to get some kind of an incentive for these industries and these vulnerable organizations to do this.
And we're not going to give them the money. We're out of money. But we might be able to give them an incentive through accelerated depreciation and that kind of thing to do it. And they probably have an incentive from their insurance company that says, hey, you no longer have demonstrated this major risk, this major point of vulnerability, and so you can change that.
But I'm concerned, I said earlier in my opening testimony, that I went to, my staff went to the internet this morning, we located an Idaho company. And we located, we just asked what their disaster report was. We had to be certain, all this stuff had to be just right, and we lost 44,000 Idahoans. Not only Idahoans, because it also drifted across into Washington and then down into Oregon.
But the casualty count, the potential was 44,000. Say they're just half right. That's four times what we went through six weeks ago.
So I guess I don't have any questions for you. I have a great appreciation for each and every one of you, and the job that you're doing and the things that you're faced with. Because I know your environment is prepared for you, Ms. Stanley, you don't have much opportunity to prepare your own environment.
Page 52 PREV PAGE TOP OF DOC But Chief Warren, once again, on behalf of myself and all those folks that sent me here, we appreciate you folks that are on the front line. We appreciate the job that you do.
Mr. Baumann and Dr. Smithson, I would encourage your organizations to go back to these industries and say, and help them find where their points of vulnerability are, and then put the ideas into operation so that we're not so vulnerable. And then for gosh sakes, keep it away from the news media.
Thank you very much.
Mr. DUNCAN. Thank you very much. Mr. Shuster.
Ms. SHUSTER. Thank you, Mr. Chairman.
I think Mr. Lampson hit the nail on the head with his comments. My first question is to the Chief. With that kind of information, if a terrorist who has an engineering background, maybe some experience in a petrochemical plant in the Middle East, how difficult would it be for them to figure out the weakest link in one of these facilities?
Chief WARREN. I don't think it would be hard at all. I think we've already provided them with the pieces of the puzzle. All they have to do is sit down at the table, start plotting it on out, they can determine what they need to do. Quantities are there. They already have wind direction. They already know where the populations are.
They can get into time of day, they can get into response profiles. And when you get into response profiling, we become the targets. One of the things that we teach is the issue that says, if we have multiple false alarms at a facility, we have to be concerned, because somebody may be looking at where we're placing our apparatus so that we are the targets.
So they have that piece of the puzzle. It wouldn't take them much to put it together.
Mr. SHUSTER. That's what I kind of figured. I appreciate what you do, Chief, and the people that work for you. You are the front lines here in homeland security, so we appreciate all that you do.
Page 53 PREV PAGE TOP OF DOC Second question to Mr. Baumann and Ms. Stanley. We talked a lot today about that the information is available if you go to your local emergency people. What is the problem with taking it off the internet and getting it locally so that someone like the Chief, as someone mentioned earlier, you go in and you see the Chief and he gets to see who's gathering this information? It certainly would assist our law enforcement officers if something terrible would happen, they'd be able to go to the Chief and get a lot of who got this information.
So what is your hangup, I guess I should say, or your problem with taking it off the internet and allowing people to go, concerned citizens can go see the Chief or wherever, county officials, and get that information?
Ms. STANLEY. Congressman, let me just start by pointing out again that we have already taken the offsite consequences information off the internet, as the information that the Chief has been focusing on. There was a long debate leading up to the decision on taking that, in fact, that information was never on the internet. So that it's only available through reading rooms, which do allow some amount of monitoring and oversight of those who come in and request that information.
Risk Management Plan information that was on the Internet I think is useful for a variety of people, including the people who live around the facilities. We also hear from citizens who are considering relocating into different areas and are interested in knowing the nature of risks of areas that they're moving into. I think that there are other benefits to keeping the Risk Management Plan information more generally available, while restricting access to the more specific information as we've discussed.
Mr. SHUSTER. But can't they do the same by going in to see the emergency people instead of getting on the Internet, where everybody can get that information?
Ms. STANLEY. I think again, it is an issue then of restricting access to that Risk Management Plan information for citizens and companies who are located in that geographic area. This information may be of interest to companies who are running similar facilities across the country and to folks who are not able to walk into their local emergency responder's office. So the access to it that the Internet provides is a benefit that I think is valuable.
Page 54 PREV PAGE TOP OF DOC Ms. SHUSTER. Mr. Baumann.
Mr. BAUMANN. Yes, I have I guess two problems with relying on local access only. One is that LEPCs, the local emergency planning committees, specifically, in theory there should be thousands of them across the country. But in reality, they're underfunded, they're often understaffed or unstaffed, and they're not a reliable point of public access for every community to be able to get access to information they need.
That situation should certainly be improved. But then as Ms. Stanley has just identified, there's also a problem with local only access in any format, because it disallows a community member, whether it's the facility owner or a concerned neighbor, the opportunity to know that that same facility, a similar facility making the same product in the next state has almost zero outside consequences, or has a dramatically safer process. It doesn't allow a person to find out about the hazards in a place they might move or where relatives live. The wide access is what has given us the benefit of being able to see best practices, and what industries voluntarily choose the practices that result in the most safety.
Mr. SHUSTER. That brings us back to common sense. If somebody's going to move to Baltimore, they're going to come and look at a house. They're going to be on the ground. I don't know anybody, I personally don't know anybody that's ever purchased a house without going to the neighborhood and checking it out. So if they're concerned about those types of issues, then you would think they'd just take a walk down to the courthouse or wherever it is and find that information.
I think somebody testified here that it's not the local citizens that use this, that go and visit the sites on the internet or with the local officials, it's others, contractors. Again, it's common sense to me, if someone's going to move somewhere, they're going to do their homework and check that out. So personally I reject that idea that the internet's the only way to do it, especially in the times that we live in.
Page 55 PREV PAGE TOP OF DOC So I think we need, as I said earlier, some balance. It seems to me the balance is in providing the information but using a common sense approach to it, allowing the Chief and local officials to actually see who's gathering that information.
If I could have one more minute, Mr. Chairman, I have one final question, to the EPA. You mentioned that some of the information that's on the internet that you've pulled off, some of it's available in other places on the internet, other sites. Is the EPA doing anything to issue warnings or issuing some type of regulation to have that information pulled off the internet if it's hazardous, if it's going to cause a terrorist to gain information? Is anybody at EPA watching over that aspect of it?
Ms. STANLEY. Congressman, we have been focused on doing the inventory of our own resources to understand what we've got out on the Internet and the first step of understanding where else it may be available. I think it would take some additional investigation on our part in terms of legal authority to act or ask other sites, particularly outside the Government, to take that information down. And we haven't started to look into that issue yet.
Mr. SHUSTER. Dr. Smithson, would you like to respond?
Ms. SMITHSON. Yes, thank you. I'm intrigued as to where the Office of Homeland Security and Defense is on these matters. Because it's very difficult to count on just one branch of the Government to see the whole picture here. I hope that you would pose that very question to them.
Mr. SHUSTER. Well, I think that that's what they're going through right now, trying to figure out, pulling all these Federal agencies as well as State and local agencies, Governor Ridge was in a conference meeting yesterday and he talked that this was not going to be a Federal office, but a national office pulling together all aspects of law enforcement and those agencies together. So I think that is something that is critical.
Page 56 PREV PAGE TOP OF DOC Thank all of you for being here today. We appreciate it. And thank you, Mr. Chairman.
Mr. DUNCAN. Thank you, Mr. Shuster. One of the points is that all of this information that's on these other sites is information that the EPA has required these companies to provide. Mr. Lampson, any other questions?
Mr. LAMPSON. I wanted to ask a simple question of EPA as far as without further action, when will this go back up and what could be done to postpone that until Congress itself can act?
Ms. STANLEY. We haven't made a determination yet as to when or if, that information is going to go back up. We're still trying to complete the inventory and assessment of the resources and then at that time, make a decision. So we don't have a time frame yet.
Mr. LAMPSON. The point that Mr. Shuster was making about people having access to information if they wanted to buy property, real estate appraisers are going to have access to an awful lot of information, typically, when someone does buy. And Chief, it may be at some point that you can make suggestions as to what information would be acceptable to the emergency management folks without crossing that line, to make sure that if someone were looking at a piece of property, whether it was a company wanting to locate or a family that wanted to locate, the information that would give them concern certainly could be included in something like this without going so far over as giving a terrorist the opportunity to know how to pick and choose their plums that they want to go and operate with.
So thank you, Mr. Chairman, and all of you. I think this was an excellent hearing.
Mr. DUNCAN. Thank you very much. Mr. Lampson asked the last question I was going to ask about when this information might be going back up. There's a lot of interest in this. Mr. DeFazio, just before he had to leave a few minutes ago, said that he wanted to try to work with us on coming up with some type of legislation in regard to this.
Page 57 PREV PAGE TOP OF DOC But let me just ask you this, Ms. Stanley. Before the EPA puts this information back up on the internet, would you be willing to consult with Governor Ridge or at least someone high up in the Homeland Security office?
Ms. STANLEY. Congressman, as you know, EPA is part of the homeland security work that is going on. While I don't have a direct sense of how much this issue has been discussed with Governor Ridge, I think it would be reasonable for this to be generally raised during those discussions.
Mr. DUNCAN. Would you make sure that that's done, or is that a request that we should make to Administrator Whitman?
Ms. STANLEY. I'll certainly bring the request back to the Administrator myself. But you may want to make that request directly to her, also.
Mr. DUNCAN. Okay. Well, thank you all very much. You've all been outstanding witnesses. I suppose we had about 20 members here at one point, we had a lot of interest in this. You've been very helpful on a very, very important topic. Thank you very much for being with us.
That will conclude this hearing.
[Whereupon, at 12:09 p.m., the Subcommittee was adjourned, to reconvene at the call of the Chair.]
Testimony of Jeremiah Baumann, U.S. Public Interest Research Group
Thank you, Mr. Chairman and members of the Subcommittee on Water Resources and the Environment, for the opportunity to testify before you today on the important topic of the public's right to know and the role of right-to-know policies in protecting public safety after the September 11th tragedies. My name is Jeremiah Baumann and I am the Environmental Health Advocate for the U.S. Public Interest Research Group (PIRG). U.S. PIRG is the federal advocacy office of the state PIRGs, a network of state-based public interest advocacy organizations with a 30year history of advocacy for environmental and public health protection, consumer protection, and good government reform. The State PIRGs; have a long record of advocacy for measures that protect against toxic and other hazards in communities, including right-to-know measures.
Page 58 PREV PAGE TOP OF DOC
The shocking events of September 11th have, tragically, focused attention on public safety hazards that exist in communities across our country and on the need for government action to protect the public from terrorist activity that could take advantage of these hazards. The magnitude of the hazards that are addressed by current right-to-know programs and which could be taken advantage of in a terrorist attack, including nuclear facilities and chemical facilities, should not be underestimated. The potential for a catastrophic chemical release, spill, or explosion in American communities is one of the most widespread of such hazards. According to a 1998 report by U.S. PIRG, 1 in 6 Americans lives within a vulnerable zonethe area in which there could be serious injury or death in the event of a chemical accidentcreated by a nearby industrial facility.(see footnote 1) In deed, such incidents occur as a result of the routine industrial use of toxic chemicals approximately 25,000 times every year.(see footnote 2)
Unfortunately, some industry interests that have consistently opposed public disclosure of the dangers they pose to neighboring communities have attempted to frame the discussion of how to address this problem by pitting the public's right to know against the need for national security. The right to know should not be considered a threat to national security or public safety. The right to know is a proven tool for increasing public safety. A more productive way to approach this problem is to consider the appropriate what combination of right-to-know measures and mandated reductions in real hazards in our communities will best protect public safety.
My testimony will cover three areas: the need for common-sense action by government and industry to actually reduce hazards in communities, the public benefit of the right to know and the likelihood that restricting the public's right to know will hurt safety rather than help it; and the need for consistent criteria to govern agency decisions about altering public access to government information.
Page 59 PREV PAGE TOP OF DOC
I. Government agencies should be taking steps to protect the public from hazards, including vulnerabilities to terrorist attacks, not hiding those hazards from the public.
Simply restricting public information, and thereby public discourse, is worse than failing to address the problem. It's ignoring the problem. When federal authorities had reason to believe that crop dusters could become tools of terrorists, their first preventive measure was not to hide from the public the locations of small airfields or other facilities that could house crop dusters. Instead, they put a moratorium on the flying of crop dusters to limit the possibility of any crop duster's use in an act of terrorism.
The threat of chemical accidents, as I mentioned above, is significant and widespread. According to recent research by a chemical process safety center at Texas A&M, in 1998 there were tens of thousands of chemical accidents that killed 150 Americans and injured 5,000(see footnote 3) For chemical storage in communities, hazard reduction means requiring that companies use fewer or safer chemicals to reduce or eliminate the risk of a catastrophic chemical releasewhether from terrorist attacks or the spills and releases that happen every day. Making technological changes to safer materials or processes can reduce or eliminate the possibility of a chemical release, and for many chemicals and processes, there readily available and safer alternatives. In New Jersey, the number of chemical plants using hazardous amounts of chlorine gas, notorious for its involvement in accidental releases that threaten neighboring communities, has dropped from 575 companies in 1988 to 22 in September of this year.(see footnote 4) Here in Washington, DC, the city's Blue Plains Sewage Treatment Plant is switching from volatile chlorine gas to less volatile sodium hypochlorite (bleach), which has far less potential for airborne off-site impact.(see footnote 5)
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Government should require facilities to abide by the Inherent Safety Hierarchy in order to reduce or eliminate hazards in communities. This means, in priority order:
1. Facilities should identify and use inherently safer technologies to eliminate the possibility of reactive chemical and other hazards, wherever feasible;
2. For hazards that cannot be eliminated, use add-on control options and management systems that reduce the likelihood and potential severity of incidents, wherever feasible;
3. Where hazards cannot be eliminated or controlled, use emergency planning approaches to mitigate the consequences of incidents, wherever feasible; and,
4. Where potential off-site consequences remain despite precautions, use buffer zone guidelines to keep hazards away from vulnerable populations.
While this prevention-based hierarchy is designed to reduce or eliminate the threat of chemical accidents specifically, it can and should be modified to reduce or eliminate the vulnerability of other infrastructure systems to attack. Energy should be generated from energy sources that pose little or no threat to public health and safety, but also have little or no vulnerability to attack by terrorists. Instead of subsidizing the nuclear industry, the government should be encourage energy systems like renewable distributed generation, which doesn't rely on long-distance transmission from centralized plants that could affect large areas of the country if power were disrupted.
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II. Choosing restrictions on the public's right to know about hazards in communities, rather than actually reducing those hazards, can hurt safety rather than help it. By restricting our right to know, even through a well-intentioned effort to protect safety, government is abandoning its duty to warn the public if a community is at risk.
There are three primary ways that restricting public access to right-to-know information can decrease public safety. First, removing valuable right-to-know programs means the threats addressed by right-to-know programs are left unaddressed. I have already mentioned the threat of chemical accidents. This threat is a constant and significant threat to public safety.
The Risk Management Program, created by the Clean Air Act amendments of 1990, publicly discloses, by Congressional mandate, the chemical accident risks that face communities. The off-site consequence analysis, taken off the Internet in 1999 and now only available through severely limited public access mechanisms, should be a community's best source of information about risks to be prepared for, and even more importantly, risks that could and should be reduced. But public access to this portion of the Risk Management Plan had already been reduced to virtual elimination before September 11th. The portions removed by EPA after September 11th revealed accident histories and emergency response plans. Removing this information from public view does nothing to reduce the hazardthere are still nearly 5,000 facilities in the U.S. storing greater quantities of hazardous chemicals than were released in the 1984 Bhopal, India, chemical release that spurred the nation's first right-to-know programs.(see footnote 6)
Page 62 PREV PAGE TOP OF DOC Restricting public access does not simply fail to address the hazard, however. Restricting public access makes the community less safe, because the ability of individuals and communities to participate in safety decisions ranging from chemical management and hazard reduction to site security and emergency response planning, has been reduced and potentially eliminated.
Second, in the wake of September 11th, restricting the public's right to know about hazards restricts the public's ability to participate in preventing a terrorist attack or preparing appropriate response plans. September 11th showed us that the threat of criminally-induced chemical releases or other safety threats is greater than previously anticipated. Removing public access to information about these threats is a false protection against terrorist attacks, and even worse, limiting right-to-know hinders communities' ability to protect against terrorist attacks. The importance of community involvement in preventing catastrophic events and preparing emergency response plans is as important for a terrorist attack as for the tens of thousands of accidents that result from routine chemical use.
Furthermore, restricting the public's right to know about a potential chemical incident constitutes abandonment of the government's duty to warn the public about safety threats. Even before officials discovered the first case of anthrax, there was wide public discussion in the media of the potential threat of anthrax, how it could be spread, and what the symptoms could be. When the first cases were discovered, this public discussion escalated. It would have been unconscionable for the government, in response to evidence of a biological attack, to restrict public disclosure of the consequences of such an attackbut that is essentially what has been proposed for a chemical attack.
Page 63 PREV PAGE TOP OF DOC Third, restricting right-to-know programs decreases safety in the long term because right to-know programs have been shown to reduce risk. Right-to-know programs empower individuals and communities to work for measures that will reduce risk, whether that is by working directly with a company locally or by advocating for policy changes to require risk reductions. As importantly, right-to-know programs provide a public incentive for relevant parties to be accountable to public values. The Toxics Release Inventory, established under the 1986 Emergency Planning and Community Right-to-Know Act, has been credited with at least partial contribution to a nearly-50% reduction in toxic chemical releases. More robust right-to-know programs have seen proportionally greater impacts. In Massachusetts, where companies report not just chemical releases but also chemical use, in products or in the workplace, chemical use is down approximately 40% and chemical releases are down nearly 90%. Restricting public access to information restricts opportunities for these kinds of protections of public safety and health and removes accountability for government and corporate actors.
III. For government information that is legitimately sensitive information, the government needs consistent criteria to prevent false national security claims from private or government entities that wish to keep avoid public scrutiny. These should first take into account existing provisions of law, such as the current national security exemptions from the Freedom of Information Act.
While I am not aware of government right-to-know programs containing information whose disclosure is a national security threat, that does not mean there isn't any government information that should not be widely publicly available. Various right-to-know programs have already been adapted to protect information like that pertaining to personal privacy or information that could reveal trade secrets.
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In order to consider limiting public access to government information for national security reasons, government decision-makers should first take into account existing laws, regulations, or other measures that protect national security information. Second, government decision-makers should abide by consistent criteria that strictly prevents inappropriate restrictions on public access. Under the Toxics Release Inventory, criteria for determining what information is a legitimate trade secret have been used to prevent companies from inappropriately hiding information from public scrutiny. By contrast, a lack of appropriate trade secret criteria under the Toxic Substances Control Act has resulted in blanket removal of important health information from the public domain.
Criteria for determining information that can be withheld should take into account at least the following factors:
First, the benefit of the information's public dissemination to increasing public safety must be weighed seriously. I have outlined these benefits, primarily as they pertain to chemical accident risk information. Because of the critical role that information plays in ensuring government and corporate accountability, it must be assumed that public disclosure always has a benefit compared to government secrecy. Consideration of this factor should include participation by organizations and individuals with experience using the information in question to protect public health and safety.
Second, the type of information must be considered. Because the public has a right to know about threats to public safety or health, the potential consequences of a chemical release or nuclear sabotage are a type of information that should not be kept from the public by a responsible or responsive government. This type of information fulfills the government's duty to warn. On the other hand, detailed technical information that would provide a potential criminal with tools for carrying out an act of terrorism which they could otherwise not accessinformation like detailed site maps of where chemicals are stored or where security guards are postedcould be a type of information for which a discussion about limiting public access may be justified.
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Third, the availability of information or uniqueness of the government information as a source must be considered. Some of the information for which it has been suggested that public access be restricted is available, or readily discoverable, from a range of other sources. For examples, the locations of chemical plants or of drinking water sources could be readily discovered by spending a small amount of time in a community, looking in a phonebook, or even driving up the freeway. We know from the tragedies on September 11th that the terrorists targeting America spent years researching and planning. Restricting right-to-know programs will do little to prevent this kind of deliberate and malicious activity.
In conclusion, I urge you to remember that our first priority has to be protecting public safety. The public has a right to know about safety threats, whether from industrial accident or criminal intent, and a right to participate in reducing those threats to increase public safety. Congress should be working to protect public safety by reducing hazards in communities. At no time has that responsibility been more urgent.
Statement of Representative Earl Blumenauer
First, I would like to thank the chairman for holding this hearing. Right-to-Know laws have alerted and protected our communities for decades, and are extremely valuable as a tool to involve citizens in helping to reduce hazards and craft emergency response plans. Unfortunately, when this information gets into the wrong hands, it can be dangerous.
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Obviously, we do not want to invite the possibility of a terrorist attack. But we need to strike a balance between what community members need to know about hazards in their own neighborhoods versus what information will enable a terrorist to act resulting in devastating loss of life and property.
For example, intricate plans to a facility, indicating its weak spots and vulnerabilities is not something that should be made available to the public, and potentially a terrorist. However, a company's emergency response plan should remain public, to enable community members to prepare for a disaster as well as to scrutinize and improve the response.
The bottom line is that there is a difference between information about the consequences of a terrorist attack and information about how to commit that attack.
I am also specifically concerned with nuclear facilities, as there is one that has a direct impact on my district, and the amount of information that the public has been deprived of since the September 11th attacks. It has been brought to my attention that information we've been relying on for decades has been taken offline. It is important to our democracy for the public to be aware of the operations and security of our nation's nuclear facilities.
Page 67 PREV PAGE TOP OF DOCWe need to assess what information is dangerous and establish a specific set of criteria before removing important public information for good. We also need to keep in mind that there is a reason we made this information available to the public in the first place, for the safety of our communities. Despite the recent attacks, we need to continue to respect this.
While I believe in reducing the risks of terrorist attacks to our communities, I think that severely restricting right-to-know laws will ultimately hurt public safety, not help it. The discussion today should instead focus on the bigger picture of reducing potential hazards of chemical and nuclear plants altogether. We have to face the reality that terrorists are sophisticated, and removing sensitive information from public view will not eliminate a terrorist threat.
We must be careful that the American public aren't the only ones left in the dark.
Prepared Statement of Amy E. Smithson, Ph.D., Director, Chemical and Biological Weapons Nonproliferation Project, Henry L. Stimson Center
As the horrific images of September 11th replay in the minds of Americans, each citizen is compelled individually to come to grips with one of the basic realities of modern life: Safety from terrorism cannot be guaranteed. Terrorists tend to strike when and where it is least expected and to inflict harm in the easiest manner. These operational principles hold true whether terrorists are of the traditional variety trying to achieve political objectives or are of the even more twisted variant, the suicidal fanatics who engage in unthinkable acts of massive indiscriminate killing.
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The statistics of terrorist behavior kept by the US Department of State and the University of St. Andrews/RAND amply underscore that in recent decades terrorists most frequently inflict harm with bombs and guns. However, another terrorism databasethis one maintained by the Monterey Institute of International Studiesshows that over the years terrorists have also demonstrated interest in acquiring and using unconventional weapons. The lion's share of the actual incidents of terrorist use of chemical or biological substances have been unsuccessful, but there certainly have been some worrisome cases. The cases that come most prominently to mind are the use of the nerve agent sarin by the religious cult Aum Shinrikyo in 1994 and 1995, and, of course, the recent series of letters containing anthrax that were mailed to media organizations and Senator Majority Leader Tom Daschle (DSD). Again, statistical trends would forecast that terrorists will continue to turn most often to the tools they know best, namely bombs, but it would be imprudent to ignore the possibility of future terrorist use of chemical and biological agents as well.
Although assembling from scratch an unconventional weapons capability that could cause mass casualties is not that elementary, there are tangible routes whereby terrorists could inflict considerable harm with chemical and biological substances. One shortcut involves foul play with industrial chemicals.
THE MAIN CHEMICAL DISASTER CONCERNS OF FIRST RESPONDERS
Page 69 PREV PAGE TOP OF DOCOut on the front lines in America's cities, emergency planners and responders wonder why there has been such a preoccupation about possible terrorist use of warfare agents like sarin. They understand all too well that industrial chemicals with mass-casualty potential are ubiquitous in modern society. Scattered across the American countryside are tens of thousands of industrial chemical plants. Moreover, the Environmental Protection Agency estimated in early 1999 that approximately 850,000 facilities in the United States were working with hazardous or extremely hazardous substances. Many of these sites are located in urban areas, and transport of hazardous substances and other commercial chemicals is a routine matter. The chemicals of concern often have unpronounceable multi-syllabic names and therefore are known in hazmat circles collectively as ''ethyl methyl bad stuff.'' Given the prevalence of chemicals in our society, the principal chemical concern of local first responders centers not on chemical weapons agents, but in the sabotage of a hazardous materials facility, whether by terrorists breaching site security or a disgruntled employee pulling off an insider job.
To gain an idea of what might occur if terrorists were to target facilities producing, processing, or storing hazardous chemicals, one can refer to the worst industrial chemical accident in history. The release of methyl isocyanate from a chemical plant in Bhopal, India on 3 December 1984 killed about 3,800 and injured over 11,000. Accidents on a much smaller scale have occurred in the United States, and occasionally authorities have suspected foul play as the cause.
Logic dictates that if the same result can be achieved through a less arduous route, terrorists intent on causing mass casualties with chemicals would probably engineer the intentional release of industrial chemicals rather than wrestle with the complexities of making large quantities of the classic chemical warfare agents.
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These concerns were voiced repeatedly during first responder interviews that I conducted in 33 cities in 25 states from 1999 to September 2000. The outcome of this research is presented in the Stimson Center report entitled: Ataxia: The Chemical and Biological Terrorism Threat and the US Response, co-authored with Leslie-Anne Levy. In the interim since Ataxia's publication, countless first responders from around the country have contacted me to echo the report's findings and conclusions, including those reflected in my testimony today.
A TERRIBLY ILL-ADVISED REGULATION
Regrettably, this possibility has been lost on some interest groups and on some policy makers in Washington. Late in the summer of 2000, a long-standing policy about the public release of detailed information about hazardous and extremely hazardous substances facilities was altered. The change was the outcome of a clash pitting public security advocates and chemical facility owners against those concerned about environmentally responsible behavior on the part of the companies involved. A dismally shortsighted compromise regulation finalized on 4 August 2000 satisfied the concerns of neither camp.
The resulting regulation allowed the Environmental Protection Agency to post data on the Internet about 15,000 of this country's industrial plants that deal with particularly significant amounts of hazardous chemicals. Once the site went up, individuals could browse anonymously through this online database of the risk management plans for these facilities, searching for sites according to geographic location and/or by chemical. Shortly after September 11th, the Environmental Protection Agency shut down the website.
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The 4 August 2000 regulation also provided for the establishment of reading rooms in the continental United States and US territories. As of May 2001, some fifty-four such reading rooms had been opened under the oversight of either the EPA or the Department of Justice, operating on a walk-in or by appointment basis. By presenting photo identification, such as a driver's license, individuals can review even more details from the Risk Management Plans, namely the Offsite Consequences Analysis sections of those plans which contain, among other things, worst case accident scenarios assembled by the facilities. The worst case scenarios describe, in part, the number of people living in the vicinity of a chemical facility that would be killed and injured in a worst-case accident. The possible casualty tallies can be staggering. Each month, those entering these reading rooms can review this type of data for ten facilities, taking notes if they so desire. As of this date, these reading rooms remain open.
Stripped to its barest essentials, the 4 August 2000 regulation is about convenience. US citizens, accustomed to drive-through window service and catalogue shopping, could now keep their eye on the activities of commercial chemical plants from the comfort of their own homes or with the ease of one-stop shopping at the reading rooms. Since when does public safety take a backseat to convenience? No small wonder, then, that one of this nation's most revered authorities on hazardous materials incident response, John Eversole, retired Chicago chief of special functions in charge of hazardous materials and terrorism, described this regulation to me on 31 October 2001 as: ''This is the poorest decision that the EPA has ever made, bar none. Local citizens should know about the facilities in their midst, but that information should be maintained and dispersed in a controlled setting, such as the Local Energy Planning Commissions.''
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WEIGHING POLICY OPTIONS FOR THE GREATER PUBLIC GOOD
In April 2000, the Justice Department issued a report on the risks associated with posting Offsite Consequence Analysis information on the Internet. The authors used a model based on the Defense Department's US Special Operations Command planning and targeting criteria that indicated nine pieces of information were critical to someone wishing to cause a release at an industrial chemical facility. Seven pieces of information found in the Offsite Consequence Analysis section of a Risk Management Plan correspond to the items on the model lists.
Not to mince words, but public safety always trumps environmental concerns, particularly when other mechanisms exist to address those environmental concerns. Entire branches of government, namely the Environmental Protection Agency and the Occupational Safety and Health Administration, are charged with inspecting these businesses to ensure that they operate lawfully and safely. Moreover, accidental releases of chemicals can be documented and cleaned up, and companies held accountable for their actions through criminal and civil courts. Lives lost to terrorist sabotage of such facilities cannot be reclaimed.
While it is unrealistic for the US government to make the nation terrorist-proofdoing so would change the very fabric of American society by shredding treasured civil liberties that are envied worldwidethe US government can and should take pragmatic steps to make it harder for terrorist to execute their despicable plots. For instance, the US government can and should improve airline security to thwart suicide hijackers. Likewise, Washington should channel more money into programs designed to keep former Soviet weapons scientists gainfully and peacefully employed, to enhance security and accountability of key weapons materials, and dismantle and destroy key weapons capabilities. These brain drain prevention programs will make it harder for terrorists to overcome the technical hurdles of chemical and biological weapons acquisition and use by picking up weapons materials and know-how on the cheap.
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Moreover, the US government should continue to secure the cooperation of other governments to foil terrorists by dismantling their networks and cells. Such cooperation is essential to enhance intelligence on terrorist activities, to cut off their financial resources, to disrupt their plots and activities, and to bring them to justice.
In this day and age, Washington can no longer afford to hand any interested individual a road map to the chemical calamities they could cause with the toxic materials located in communities nationwide. Some would argue that the milk has already been spilled. Well, the quicker a decision is made to close the reading rooms and keep both them and the website permanently shuttered, the better. Furthermore, the Environmental Protection Agency should purge its website of other data that might aid and abet terrorists plots to sabotage chemical plants. Such information would still be made available to citizens through the appropriate local venues, but it would not be delivered to aspiring terrorists on an Internet silver platter.
Environmental interests need not suffer as a result of a reversed policy. Prior to the inauguration of the 4 August 2000 regulation, concerned local citizens already had access to Local Emergency Planning Commission's where they could gain a better understanding of existing safeguards, regulatory enforcement procedures, and emergency plans for these sites.
Consultation between industry and citizens can also occur via the chemical industry's Responsible Care and Community Awareness and Emergency Response programs. Should reports surface that such mechanisms are somehow wanting, then professional regulatory staffs could be augmented and the frequency of Local Emergency Planning Commission meetings could be increased at the request of citizens in a particular area. Such approaches are far preferable to abdicating watchdog duties foolhardily to individuals who may not always have public safety in mind.
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Unfortunately, the issue of access to data about these sites has become more complex in recent months. No longer can the information genie be recorked by ensuring that the EPA website remains permanently shut down and the reading room doors forever closed. Taking matters into their own hands, certain private interest groups have begun presenting on their own websites data gleaned from Risk Management Plans and their Off-site Consequence Analyses sections.
While public interest groups claim to be publishing this information in the interests of public safety, it is ironic that this very activity could backfire against those aims in such a catastrophic way. Perhaps prior to September 11th these government and environmental watchdog interest groups might have been able to overlook the fact that homegrown and international terrorists intend to harm their fellow citizens, but surely they no longer harbor that illusion. Given the existence of the Timothy McVeighs and Osama bin Ladens of this world, publishing sensitive data about hazardous materials facilities could put the safety of countless Americans at risk, including the families and friends of the very individuals engaging in this Internet activity.
Immediately, these interests groups must cease and desist activities that make data on hazardous materials facilities available to widespread public view, removing this data from their websites. Failing their voluntary cooperation, the US government should take swift steps to close down the pertinent segments of these organizations' websites and take legal steps to prohibit them from distributing this data in the future on the Internet or by other means.
SELF-PROTECTION IN UNSETTLING TIMES
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In times like these, it is difficult for Americans to go about their everyday lives without a sense of foreboding. Discussion of the possible terrorist sabotage of commercial chemical plants or the shipment of dangerous chemicals is bound to be unsettling. The chemical industry takes the security of these facilities seriously, but security at individual sites is only as tight as the facility operator makes it, and no site is truly sabotage proof.
Some Americans have already taken matters into their own hands by purchasing gas masks, a practice that could turn out to be a placebo for the following reasons. First, the gas mask will do the owner no good unless it is worn at the time of a chemical disaster, meaning the mask must always be at one's side. Second, gas masks must have the appropriate filters and the owners must be properly fitted and instructed in their use and maintenance. Finally, gas masks alone will not protect a person from the harm that may result from skin exposure to a dangerous chemical.
Instead of becoming a gas-mask toting society, Americans should familiarize themselves with the warning signs that a dangerous chemical may be present and the practice known as sheltering-in-place. If an intentional or accidental disaster occurred at a chemical plant, small animals, such as birds, would be the first to be affected. Put another way, if birds are dropping from the sky or local emergency response officials announce that a hazardous chemical has been released, people in the area should get inside as quickly as possible, shut the windows and doors, and turn off all ventilation systems. People should then disrobe to their undergarments, which will remove roughly 80 percent of any contamination hazard. Ideally, they would then proceed to wash any skin that might have been exposed to the toxic chemical, including the scalp.
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In a chemical disaster, the simple act of sheltering-in-placeputting a physical barrier between the toxic cloud and peoplecould save lives. Citizens should then tune in to radio and television broadcasts to wait for further instructions, including the official announcement that wind currents have taken the toxic chemical cloud out of the area. This more practical approach to self-protection can increase the odds that citizens would survive a chemical disaster. For its part, the US government must move promptly to reduce the chances that terrorists might initiate a chemical disaster by ensuring that sensitive information about the nation's hazardous chemical sites is more carefully controlled and distributed to citizens living near such facilities.
Testimony of Elaine Stanley, Director, Office of Information Analysis and Access, Office of Environmental Information, U.S. Environmental Protection Agency
Good morning, Mr. Chairman and Members of the Subcommittee. My name is Elaine Stanley, and I am the Director of the Office of Information Analysis and Access, within the Office of Environmental Information (OEI) at the U.S Environmental Protection Agency (EPA) In that capacity, I manage the Agency's program that provides public access to EPA's information resources. This includes what is made available via our web sites. In light of recent events and heightened concerns about national security, I am pleased to appear before the Subcommittee today to discuss the steps that EPA is taking to assess the sensitivity of information that we make available via the Internet.
Page 77 PREV PAGE TOP OF DOC OEI was created in October 1999 to be a strategic resource for the Agency, industry, and the public. We work with EPA's many internal and external stakeholders and partners to develop and oversee information-related policies and procedures. One of OEI's major functions is to provide the public with reliable and useful information on environmental quality, status, and trends. This empowers all EPA stakeholders and partners to understand environmental and public health conditions in their communities at regulated facilities, across economic sectors, or within geographic areas such as the Chesapeake Bay.
Pursuant to the authority provided by the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), the 1990 Clean Air Act Amendments, and subsequent legislation, EPA continues to be strongly committed to providing public access to environmental information. We firmly believe that public access to our information resources contributes positively to the public's ability to understand environmental issues and to its ability to make better ''protection'' decisions in daily life.
One recent example of OEI's commitment to this responsibility has been our effort to create a data management system to collect and present the on-site monitoring information provided by eleven different agencies involved in the clean-up efforts in New York and at the Pentagon. This data management system offers to on-site emergency response personnel daily updates on asbestos levels and other health risks. We also make these data available to the public via EPA's web site.
The tragic events of September 11 have compelled us to carefully review all of the information we make available to the public over the Internet in a new light. EPA, like other Federal agencies, has been assessing the potential for misuse of government information by working to screen the large array of databases, tools, and models currently available.
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EPA's inventory and assessment of publicly accessible information
EPA has developed four criteria for assessing the sensitivity of our information resources: ''type,'' ''specificity,'' ''connectivity,'' and the ''availability'' of information. Information on a facility's or a pollutant's location, chemical identification, volume, acute effects, and plant processes and management falls within the ''type'' criterion. The ''specificity'' criterion builds on the type of information and assesses the level of detail available for each type. The ''connectivity'' criterion looks at the degree to which individual pieces of information can be connected to create realistic scenarios. Finally, the ''availability'' criterion assesses the level of control that EPA has over releasing the information. This criterion ascertains whether or not EPA is the sole provider of a particular piece of information. If information is widely available through other sources outside of EPA's controlsuch as information available from State or local government agencies, public interest groups, in textbooks or from universitiesthen EPA's removal of the information may not substantially alter its availability.
In conjunction with our developing criteria for assessing the sensitivity of our information, EPA compiled an inventory of our web-based information resources. At this time, over 180 resources have been assessed using the criteria.
Of all the information resources screened to date, only Risk Management Plan Information (RMP Info) has been removed from EPA's web site while we complete our assessment. RMP Info contains information on facility Risk Management Plans (RMP) required by the Clean Air Act. Since 1997, has been working with the Department of Justice (DOJ) and other security agencies regarding the posting of RMP information on the Internet. With the passage of the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (CSISSFRRA), and based on an assessment of hazards associated with the data required by the Act, EPA and DOJ published a joint regulation which controlled access to sensitive data elements of the RMP. The remaining data elements were made available on the Internet. EPA has temporarily removed the RMP data because of its high visibility during the debate leading to the passage of CSISSFRRA. We are continuing to assess the issues related to providing Internet access to RMPs in light of the terrorist attacks of September 11. In the meantime, State and local officials and the public may obtain facility RMPs from the Agency upon request.
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There are important statutory directions to the Federal government at large and to EPA in particular, promoting and maintaining the public's right to know about the environment. The Freedom of Information Act (FOIA) provides the public with the right to access agency records, upon written request and subject to applicable exemptions. Congress enacted the Electronic Freedom of Information Act Amendments of 1996 (EFOIA) to address the subject of electronic records as well as FOIA reading rooms, agency backlogs of FOIA requests, and various procedural issues. The EFOIA also requires that frequently requested records that are provided to the public be made available through the Internet. Requirements for public access to information (electronic or otherwise) can also be found in EPCRA, the Safe Drinking Water Act, the Clean Air Act, CSISSFRRA, and other environmental statutes.
I would like to reiterate EPA's strong commitment to providing public access to environmental information and our firm belief that public access contributes positively to our citizens' ability to understand environmental issues and to make better decisions in their daily lives. An informed public can hold government and industry accountable for pollution control efforts.
EPA is aware that we need a balance between protecting sensitive information in the interest of national security and maintaining access to the information that citizens can use to protect their health and the environment in their communities.
EPA is committed to achieving our public access goals in a responsible manner. We believe that the work we have done to assess the sensitivity of our information resources has been and will continue to be a worthwhile effort. We have screened our information assets to help us judge the kinds of information that require special consideration. The inventory we have developed makes us more knowledgeable about our broad information resources. It also provides us with a means for managing our web site which will continue to serve us in many ways in the future. Thank you for the opportunity to appear before you this morning. I would be pleased to answer any questions that you may have.
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Testimony of Gary E. Warren, International Association of Fire Chiefs
I am Garry Warren, former Deputy Chief of the Baltimore County (MD) Fire Department. I am a member of the Hazardous Materials Committee of the International Association of Fire Chiefs, on whose behalf I appear today.
I would like to begin by thanking the Committee for having me. I understand that you are concerned with issues related to hazardous chemical facility reporting requirements and the community right-to-know as set forth in the Emergency Planning and Community Right to Know Act (EPCRA) and section 112(r) of the Clean Air Act.
The EPCRA reporting requirements involve the disclosure of information on the presence of hazardous chemicals, among other requirements. Those responsible for managing chemical production or storage facilities must, by law, inform fire departments, Local Emergency Planning Committees (LEPC's) and the public of the presence of large quantities of hazardous chemicals. They must also, under section 112(r), undertake and submit Offsite Consequence Analysis, a so-called ''Worst Case Scenario (WCS),'' that includes detailed physical plant information.
Page 81 PREV PAGE TOP OF DOCIt came to our attention two years ago that the Environmental Protection Agency (EPA), in administering the law, was planning to post, on the internet, chemical facility Worst Case Scenarios. We expressed concern to both EPA and to the Congress that although the spirit of the 112(r) reporting requirements was good policy, providing detailed information on Worst Case Scenarios in that manner was unwise.
A Worst Case Scenario is exactly that. It involves describing, in detail, the effects of a catastrophic accident at a hazardous chemical facility. These details include schematic diagrams of facilities and their piping and storage mechanisms. The scenarios also include the impact of certain weather conditions and even consider time-of-day with respect to maximum predicted casualties.
Mr. Chairman, that information is very important to fire departments, LEPC's and emergency planning in general. The Community Right to Know is also important and should be protected. However, there must be a balance between indiscriminate, anonymous distribution of worst case scenario information and Community Right to Know.
We lost 5,000 Americans on September the eleventh in what was clearly a sophisticated, well-coordinated terrorist attack. We require the chemical industry under the law to share information with respect to the public welfare. That is how it should be.
Page 82 PREV PAGE TOP OF DOCWhy on earth we would then turn around and provide that information to any interested party, who is anonymous and untraceable, is beyond me. The reporting requirements are sound. Information contained in Worst Case Scenarios with respect to hazardous chemicals should be available. But, dissemination must be controlled in a way that allows public access, with appropriate documentation, while ensuring that it is not used by anyone who would do us harm.
Most, if not all, of the legal measures we in the public safety community have won came in the wake of tragedy and loss of life. While we do not wish to turn back the clock or otherwise undermine our ability to ensure the public safety, we must proceed with caution and rational thinking. That means weighing the right to know with the right to be safe.
Thank you again for having me today. I am happy to answer any questions you may have.
(Footnote 1 return)
U.S. Public Interest Research Group and National Environmental Law Center. Too Close to Home. July 1998.
(Footnote 2 return)
National Response Center. The NRC is the central federal agency to which chemical companies and transporters report oil and chemical spills. Reports to the NRC cover incidents small and large. Reports are initial and subject to verification and change (www.nrc.uscg.mil/foia.htm).
(Footnote 3 return)
Mannan, Gentile, and O'Connor, ''Chemical Incident Data Mining and Application to Chemical Safety Trend Analysis,'' Mary Kay O'Connor Process Safety Center, Texas A&M University, 2001.
(Footnote 4 return)
Information provided by R. Baldini, Bureau of Release Prevention, New Jersey Department of Environmental Protection, September 2001.
(Footnote 5 return)
Radian Corporation, Air Dispersion Model Assessment of Impacts From a Chlorine Spill at the Blue Plains Wastewater Treatment Plant, 1982; See also Chlorine Institute, Pamphlet 74, April 1998.
(Footnote 6 return)
U.S. Public Interest Research Group and Working Group on Community Right-to-Know. Accidents Waiting to Happen. December 1999.