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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, Phoenix, Arizona 85040, (602) 268-6110, is a non-profit environmental organization dedicated to the protection and preservation of the environment. DWA has been a significant citizen suit enforcer of EPCRA, far more an enforcer of EPCRA in fact than the Region 9 EPA itself where DWA is headquartered. DWA has also been active in RMP issues. The president of DWA, Stephen Brittle, is a member of the Maricopa County LEPC, but does not represent the Maricopa 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 are all over the board. A presentation by EPA headquarters staff at the January 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 a million, which is clearly incorrect. On the other end of the spectrum, there are many, many facilities that have vastly understated their OCAs. There is 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 needed in this matter, and is obviously incapable of administering the RMP program, a program that it has had ten (10) years to prepare for. When EPA staff have been approached about these types of discrepancies, they counter that, in essence, as long as the facility has filed something with the agency, they 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 looking 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 there is not even an enforcement policy promulgated for such a task. It is clear 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 now intent in making sure that no one can figure out how badly the agency has messed up the program. If no one from the public can really get to the OCA 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 risks posed by facility chemical inventories, industry put the pressure on the EPA to back off, and the agency did just that.

Intent in saving their own jobs at the expense of the RMP program, EPA staff 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 EPA's Internet RMP posting is woefully lacking in specifics, especially facility emergency plans. An informed member of the public, or right-to-know activist 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 EPA, to no avail. This facility, in the event of a catastrophic release of its chlorine, which the facility OCA indicates is sufficient to kill hundreds of thousands within the multi-mile area of consequence, plans to try to initially handle a catastrophic release with on-site staff. If this is not successful, it plans to call back to work other shifts so that these workers might try to handle the matter. This activation of off-duty staff would take 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, then and only then will the facility contact the Phoenix Police and Fire Departments. By that time, there ought to be thousands of dead and dying. 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 die, too. It doesn't sound like much of a plan, but because the City of Phoenix filed an RMP, on time, and filled out all the lines, this type of idiot RMP 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 for its eight facilities on Christmas Eve, 1999. Of course, like the rest of America, everyone in the Phoenix metro area was closely watching the paper that day for announcements. Region 9 EPA received complaints about this also, to no avail. So the portion of this Federal Register notice that talks about facilities providing RMP OCA data at reasonably-noticed public meetings is a real joke, albeit a bad one. EPA, when approached about this, has declared the public meetings portion was "unenforceable." Of course it is. If the public actually attended and learned, they would realize what a shambles the EPA's RMP Program actually is.

There is a citizen suit provision of this section of the Clean Air Act, and what EPA proposes is an illegal, unconstitutional, abridging of citizens' rights to review the RMPs and determine if there is full compliance with the many requirements that facilities have under the law. What is proposed is a great hindrance and/or deliberate obstruction to RMP citizen suit enforcement in many ways. It takes time to prepare any enforcement action, particularly in citizen suit enforcement actions because of meager resources. [Ostensibly, the EPA' enforcement budget is substantially more than any citizens organizations (Region 9 EPA's budget for for EPCRA enforcement, for example, was $250,000 annually; DWA's was zero.), and it 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 finalizing 7 cases per year. DWA finalized 22 in an average year, and brought another 25 facilities into compliance by sending citizen suit notice. It is evident that citizen suit is far more effective and far speedier.] The reading room provisions and limitations would slow this down, and are an unacceptable limitation. This reading room strategy denies access to specific information 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 to have a "reading room" in each state. The reading rooms, which sound like the bizarre brainstorm of someone who has spent too much time in the Capitol Beltway, are not practical for large states, particularly those in the West. It is an extraordinary hardship to require anyone to travel more than a few 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 discriminatory.

And if environmental justice groups did not like EPA's proposed rule, which 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 to 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 its business despite the unenforceable Executive Order on Environmental Justice. Even the methods used to propose these rules are an environmental injustice. What outreach to communities of color was used in this matter? Were Spanish or other language translations of this notice and docket made available? Of 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 intentional, disproportionate, adverse impact on minority and poor community members, which is a civil rights violation. This mention of this issue will mean that 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 done anything differently in promulgating regulations or in any of its day to day business, other than hiring environmental justice staff for window dressing, since that Executive Order. Further, it is well known that minority people, especially the Hispanic/Latino community, find it intimidating to have to go to a government office and show identification. Implementing the reading rooms would virtually assure they would not attempt to access the RMP OCA 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 does EPA have that quantify that this cannot happen? EPA doesn't collect the Tier Two reports required under EPCRA, so it doesn't even have the data to process and make a meaningful interpretation. Persons living near more than ten RMP facilities will have their right to know effectively abridged about what could potentially affect them.

And if a member of the public did review RMP OCA data, at the rate of ten per month, it would take that member of the public months or years to get a view of the RMP OCAs in the vicinity, much less other similar facilities in 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, there are 71 facilities that filed RMPs. It would take a person eight months just to get their OCA data, much less to start comparing their RMPs and OCA data with that of comparable facilities elsewhere. With 15,000 facilities filing RMPs, it would take a citizen 125 years to review and compare this data. And 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 it violates the principles of the Clean Air Act and the Freedom of Information 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 it still hasn't done that. If the public had the RMP and RMP OCA information 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 at 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 they reviewed the documents? There are plain impracticalities involved that are 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 times daily, and EPA has never ever addressed this. Instead of trying to prevent the imagined terrorist incident that has never happened, EPA would far better serve the public and the RMP law by actually managing the RMP program 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 OCA information, and that by not posting it on the Internet, these terrorists 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, the terrorist has the resources to determine any facility's OCA. And what fool 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 of the chemicals on-site at these RMP facilities, and anything else needed to calculate the OCAs. All of EPA's proposed RMP OCA rules are really meant to keep the information away from the public. That is certainly the only real effect and perhaps even the real agenda.

It appears that besides the alleged terrorist threat, the other real threat to our democracy is the politicians and bureaucrats like those at EPA who cavalierly want to keep information away from the public on the flimsiest of pretenses. This nation will not be one iota "safer" from a terrorist attack by what is proposed here. What is proposed will do nothing to minimize the risk to the public posed by chemical releases from the facilities submitting RMPs. Instead, it sends the clear message to facilities that file RMPs that no one in the public will be allowed effectively to access or verify the RMP 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 scrutiny, and gutting the very law that finally would have made facilities communicate risk to the downwind public. "Hey, don't worry, we'll make sure no one from 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 clearly the law as passed by Congress does not fund LEPCs to do this, neither does it place the burden on LEPCs to do this. The law is very clear that it is EPA's responsibility exclusively to implement and manage the RMP program, including providing the data to the public. How EPA of EPA to try to shirk its own duties and to propose to pass them on to a group of volunteers that is required to meet just annually, a group that is chronically underfunded. This is especially offensive since EPA has recently announced that the grant monies it usually passes to the SERCs and to the LEPCs will only be provided 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 more 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 funding cuts. Now EPA has the audacity to suggest in the proposed rule that the very LEPCs it just cut off from funding should handle citizen concerns about the RMP facilities, and handle reading rooms and EPA's administrative duties! Be reminded that all RMP facilities are facilities covered by SARA Title III, EPCRA. But for every RMP facility, there are hundreds of facilities covered by EPCRA that are not RMP facilities.

EPA does a major disservice to the public in proposing this rule and once 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) 268-6110
(602) 268-0915 fax

Return to main RMP proposed rule page and send your own comment.

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Michael R. Meuser
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