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
M6102
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.
Sincerely,
Stephen M. Brittle
President
Don't Waste Arizona, Inc.
6205 South 12th Street
Phoenix, AZ 85040
(602) 268-6110
(602) 268-0915 fax
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