Don't Waste Arizona, Inc. comment on proposed RMP "worst case scenario" rule.
Return to main RMP proposed rule page and send your own comment.
June 5, 2000
Environmental Protection Agency
Office of Air and Radiation
Docket and Information Center
Ariel Rios Building
1200 Pennsylvania Avenue, NW,
Washington DC, 20460,
Attn: Docket No. A-2000-20
Don't Waste Arizona, Inc. (DWA), located at 6205 South 12th Street,
Arizona 85040, (602) 268-6110, is a non-profit environmental
dedicated to the protection and preservation of the environment. DWA has
been a significant citizen suit enforcer of EPCRA, far more an enforcer
EPCRA in fact than the Region 9 EPA itself where DWA is headquartered.
has also been active in RMP issues. The president of DWA, Stephen
is a member of the Maricopa County LEPC, but does not represent the
County LEPC in this matter.
DWA submits the following comments:
A quick review of what facilities have filed with EPA regarding their
respective OCAs clearly indicates a wide disparity between the amounts
reported on-site and the predicted OCAs. In essence, these OCA figures
all over the board. A presentation by EPA headquarters staff at the
2000 EPA Region 9 CEPP conference showed that some facilities had even
reported OCAs of over a hundred miles and with potential victims of over
million, which is clearly incorrect. On the other end of the spectrum,
are many, many facilities that have vastly understated their OCAs. There
not any corrective consequence for this, even when the public raises
questions and points this out.
It is very evident that EPA has not done the type of quality control
in this matter, and is obviously incapable of administering the RMP
a program that it has had ten (10) years to prepare for. When EPA staff
been approached about these types of discrepancies, they counter that,
essence, as long as the facility has filed something with the agency,
are "compliant" with the requirements. These facility RMPs could be a
meaningless jumble of words filling up space on paper, and EPA would
pronounce them compliant.
Besides, the agency plans to expend its admittedly meager resources
for the facilities that did not file on time or at all. There is not any
real plan to comprehensively review facility RMPs that were filed, and
is not even an enforcement policy promulgated for such a task. It is
the agency feels it took a "hit" in its handling of the OCA/Internet
controversy, has no intentions of implementing the RMP program, and is
intent in making sure that no one can figure out how badly the agency
messed up the program. If no one from the public can really get to the
data, no one will ever be able to put together the big (bad) picture.
When the time came for industry to tell the public the truth about the
posed by facility chemical inventories, industry put the pressure on the
to back off, and the agency did just that.
Intent in saving their own jobs at the expense of the RMP program, EPA
now proposes to limit access to OCA data. Curiously enough, EPA hasn't a
plan even today to show the public RMP data without the OCA data. The
Internet RMP posting is woefully lacking in specifics, especially
emergency plans. An informed member of the public, or right-to-know
groups, cannot examine the facility emergency plans to see if they are
credible. Some clearly are not, and even when these are brought to EPA's
attention, no action is taken.
An example of this is the RMP filed by the City of Phoenix for its 91st
Avenue Wastewater Treatment facility. Complaints were made to Region 9
to no avail. This facility, in the event of a catastrophic release of
chlorine, which the facility OCA indicates is sufficient to kill hundreds
thousands within the multi-mile area of consequence, plans to try to
initially handle a catastrophic release with on-site staff. If this is
successful, it plans to call back to work other shifts so that these
might try to handle the matter. This activation of off-duty staff would
at least an hour. There is not enough personal protective gear for these
extra staff when they arrive anyway, but no matter, if all else fails,
and only then will the facility contact the Phoenix Police and Fire
Departments. By that time, there ought to be thousands of dead and
And when the police arrive, they intend to go door to door and with
loudspeakers giving instructions. Of course, the police have no personal
protective equipment themselves, or training, so they will all get to
too. It doesn't sound like much of a plan, but because the City of
filed an RMP, on time, and filled out all the lines, this type of idiot
plan won't even get attention from EPA, which will be looking for the
mythical ones that got away...The City of Phoenix has other similarly
strange and lacking RMPs for its other seven (7) RMP facilities.
For the record, the City of Phoenix advertised its RMP rollout meetings
its eight facilities on Christmas Eve, 1999. Of course, like the rest of
America, everyone in the Phoenix metro area was closely watching the
that day for announcements. Region 9 EPA received complaints about this
also, to no avail. So the portion of this Federal Register notice that
about facilities providing RMP OCA data at reasonably-noticed public
meetings is a real joke, albeit a bad one. EPA, when approached about
has declared the public meetings portion was "unenforceable." Of course
is. If the public actually attended and learned, they would realize what
shambles the EPA's RMP Program actually is.
There is a citizen suit provision of this section of the Clean Air Act,
what EPA proposes is an illegal, unconstitutional, abridging of
rights to review the RMPs and determine if there is full compliance with
many requirements that facilities have under the law. What is proposed is
great hindrance and/or deliberate obstruction to RMP citizen suit
enforcement in many ways. It takes time to prepare any enforcement
particularly in citizen suit enforcement actions because of meager
resources. [Ostensibly, the EPA' enforcement budget is substantially
than any citizens organizations (Region 9 EPA's budget for for EPCRA
enforcement, for example, was $250,000 annually; DWA's was zero.), and
should have a realistic enforcement program. In the case of DWA's EPCRA
enforcement, DWA found that in an average year, EPA Region 9 was
7 cases per year. DWA finalized 22 in an average year, and brought
25 facilities into compliance by sending citizen suit notice. It is
that citizen suit is far more effective and far speedier.] The reading
provisions and limitations would slow this down, and are an unacceptable
limitation. This reading room strategy denies access to specific
regarding enforceable issues, including the characterization, or
mischaracterization, of the OCA data elements. The proposed reading room
regulations constitute illegal interference and hindrance of the citizen
suit provisions of the Clean Air Act.
There are certainly environmental justice implications for the proposal
have a "reading room" in each state. The reading rooms, which sound like
bizarre brainstorm of someone who has spent too much time in the Capitol
Beltway, are not practical for large states, particularly those in the
It is an extraordinary hardship to require anyone to travel more than a
miles to review public information. The long trip, coupled with costs of
lodging, meals, etc., present too much of a burden, and are onerous and
And if environmental justice groups did not like EPA's proposed rule,
no doubt EPA will gleefully adopt anyway, they could be forced to expend
considerable resources in appealing the matter in court. That is also an
environmental injustice. And what poor and minority people can make it
Washington DC to participate in the hearings, or have the resources to
provide comments to this docket? EPA has not changed the way it does
business despite the unenforceable Executive Order on Environmental
Even the methods used to propose these rules are an environmental
What outreach to communities of color was used in this matter? Were
or other language translations of this notice and docket made available?
course not. It's just business as usual at EPA--protecting polluters and
agency inadequacies from the public.
In this matter, the proposed rule would constitute and be an
disproportionate, adverse impact on minority and poor community members,
which is a civil rights violation. This mention of this issue will mean
when EPA inevitably implements the reading rooms and restricts public
access, EPA will be committing an intentional, knowing, violation of the
U.S. Civil Rights Act, after notice of the pending violation.
Of course, the proposed EPA action also makes a mockery of the Executive
Order on Environmental Justice. EPA has not demonstrated that it has
anything differently in promulgating regulations or in any of its day to
business, other than hiring environmental justice staff for window
since that Executive Order. Further, it is well known that minority
especially the Hispanic/Latino community, find it intimidating to have to
to a government office and show identification. Implementing the reading
rooms would virtually assure they would not attempt to access the RMP
data. The term for what is proposed by this rule is "stonewalling."
A person could live, work, travel, and recreate within the worst case
scenario (WCS) OCA of more than 10 facilities. What studies or evidence
EPA have that quantify that this cannot happen? EPA doesn't collect the
Two reports required under EPCRA, so it doesn't even have the data to
process and make a meaningful interpretation. Persons living near more
ten RMP facilities will have their right to know effectively abridged
what could potentially affect them.
And if a member of the public did review RMP OCA data, at the rate of
per month, it would take that member of the public months or years to get
view of the RMP OCAs in the vicinity, much less other similar facilities
the nation. This would effectively prevent the types of comparison and
public involvement to pressure facilities to reduce risks that the RMP
program was specifically designed to do. In Maricopa County, Arizona,
are 71 facilities that filed RMPs. It would take a person eight months
to get their OCA data, much less to start comparing their RMPs and OCA
with that of comparable facilities elsewhere. With 15,000 facilities
RMPs, it would take a citizen 125 years to review and compare this data.
immeasurable cost in terms of travel, lodging, etc. The term for what is
proposed by this rule is "stonewalling." And it puts the brakes on the
collection of the data by citizens who are gathering it for the intended
purposes of the Clean Air Act. And indeed, while the reading rooms await
terrorists who never show up there, they will be holding at bay any
concerned citizenry. This is more than just a little discouragement, and
violates the principles of the Clean Air Act and the Freedom of
Act, if not the law itself, by creating such an impediment.
Of course, this type of stonewalling roadblock works just fine for EPA.
After all, EPA had ten (10) years to put this RMP program together, and
still hasn't done that. If the public had the RMP and RMP OCA
readily available, it would know how the EPA's implementation of the RMP
program has failed, just like the EPA failed in implementing EPCRA.
What will happen at these reading rooms if a large contingent showed up
the same time to review documents? What if 50 people showed up to view
documents and there was not enough room? Who would be turned away? How
would priority be assessed? Who would supervise all of these people as
reviewed the documents? There are plain impracticalities involved that
neither addressed nor resolved in this proposal.
Although the risk is always there that a terrorist could cause mass
destruction and/or death using chemicals stored at facilities in this
country, the reality is that chemical spills and accidents occur many
daily, and EPA has never ever addressed this. Instead of trying to
the imagined terrorist incident that has never happened, EPA would far
better serve the public and the RMP law by actually managing the RMP
responsibly and not just try to hide its inadequacies from the public's
scrutiny. If EPA could put together a credible regulatory structure and
audit program in implementing the RMP Program, it would help prevent
facility incidents, and as a by-product, it would make facilities more
secure and terrorist resistant.
The EPA somehow assumes that terrorists would not be able to calculate
information, and that by not posting it on the Internet, these
would not be able to figure out the OCAs. This is really absurd. If a
terrorist has the resources to get to this country to cause an incident,
terrorist has the resources to determine any facility's OCA. And what
terrorist is going to show up at a reading room to get the OCA data?
Terrorists don't even need to know this OCA data in order to target a
facility. And what about fake IDs? This is all so ludicrous. Anyone with
Internet access today can get the software needed, the types and amounts
the chemicals on-site at these RMP facilities, and anything else needed
calculate the OCAs. All of EPA's proposed RMP OCA rules are really meant
keep the information away from the public. That is certainly the only
effect and perhaps even the real agenda.
It appears that besides the alleged terrorist threat, the other real
to our democracy is the politicians and bureaucrats like those at EPA
cavalierly want to keep information away from the public on the flimsiest
pretenses. This nation will not be one iota "safer" from a terrorist
by what is proposed here. What is proposed will do nothing to minimize
risk to the public posed by chemical releases from the facilities
RMPs. Instead, it sends the clear message to facilities that file RMPs
no one in the public will be allowed effectively to access or verify the
OCA data. Obviously, EPA hasn't, isn't, and won't. The effect will be
instead to maximize the risks posed by chemical releases from facilities
that clearly must see that the EPA is protecting them from public
and gutting the very law that finally would have made facilities
risk to the downwind public. "Hey, don't worry, we'll make sure no one
the public can see what pap your RMP actually is..."
The proposed rule also indicates that the public would be encouraged to
approach the LEPCs with their concerns and information requests, yet
the law as passed by Congress does not fund LEPCs to do this, neither
it place the burden on LEPCs to do this. The law is very clear that it
EPA's responsibility exclusively to implement and manage the RMP
including providing the data to the public. How EPA of EPA to try to
its own duties and to propose to pass them on to a group of volunteers
is required to meet just annually, a group that is chronically
This is especially offensive since EPA has recently announced that the
monies it usually passes to the SERCs and to the LEPCs will only be
to the states that have taken delegation of the RMP, which is a small
minority of the states. The rest of the states will be expected to do
with less, a very glaring inequity. So much for EPA's touted stakeholder
process. The SERCs and LEPCs had no prior warning or indication from EPA
that refusal to accept delegation of the RMP Program would lead to
cuts. Now EPA has the audacity to suggest in the proposed rule that the
LEPCs it just cut off from funding should handle citizen concerns about
RMP facilities, and handle reading rooms and EPA's administrative duties!
reminded that all RMP facilities are facilities covered by SARA Title
EPCRA. But for every RMP facility, there are hundreds of facilities
by EPCRA that are not RMP facilities.
EPA does a major disservice to the public in proposing this rule and
again shirks its duty in the name of politics.
Stephen M. Brittle
Don't Waste Arizona, Inc.
6205 South 12th Street
Phoenix, AZ 85040
(602) 268-0915 fax
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