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Testimony of Paul Orum Working Group on Community Right-to-Know

Before the Subcommittees on Health and Environment and Oversight and Investigations of the House Commerce Committee

February 10, 1999

My name is Paul Orum. I have served for ten years as coordinator of the Working Group on Community Right-to- Know. I appreciate the opportunity to provide testimony on the importance of the public's right-to-know and freedom to communicate about chemical accident hazards under the Clean Air Act, section 112(r). The Working Group coordinates the right-to-know programs of some 1,500 public interest organizations around the country, and works with other constituencies, such as journalists, for timely access to government information. In addition, I served on EPA's Electronic Submission Workgroup on public access to Risk Management Plans.

Additional information is at www.rtk.net/wcs.

In general, I'm going to ask you to consider four things today: First, the importance of honoring the public's right-to-know; second, the need acknowledge areas of agreement; third the need and opportunity to reduce real hazards; and fourth, the need to adopt real hazard reduction programs.

Overview

Over a recent ten-year period, the Federal government recorded nearly a million chemical accidents from the everyday use of toxic chemicals.1 In contrast, there is little record of terrorist threat to industrial facilities, and terrorist-caused accidents involving the Internet are virtually unknown.

An estimated 40 million Americans live at risk from nearby chemical facilities.2 The Clean Air Act's Accident Prevention program was designed to address these everyday chemical hazards, not to address terrorism.

Community right-to-know is an important tool for hazard reduction. Consider the nation's best known right-to-know law, the Toxics Release Inventory (TRI). A dozen years ago, some in government and industry resisted TRI. Now, this simple program of public reporting is credited with reducing reported toxic pollution released as waste to the environment by some 50 percent. With full public disclosure, the same thing will happen under the Clean Air Act, section 112(r)-we will see dramatic reductions in chemical accident hazards.

This hearing, however, addresses only one part of the hazard equation, a speculative incremental increase in terrorism. But anyone can get information, with or without the Internet. People can drive by chemical plants, go to trade shows, read trade journals and newspapers, and look in the phone book. Further, people have discussed facility worst-case vulnerability zones for years, described them in reports, and published them in newspapers and on the Internet. In addition, Risk Management Plans don't include tank locations, plant security, classified information, or technical data about how to cause a worst-case event. Restricting public access to portions of Risk Management Plans changes none of this-but it will undermine the potentially dramatic risk reduction benefits of full disclosure.

If chemical plants are targets for terrorists, then we need regulations to reduce these chemical hazards, not just measures that impede the publics' right-to-know. Without the right-to- know component of the Clean Air Act, the alternative is command and control regulations. We need adequate regulations to assure site security and control the vast quantities of dangerous chemicals stored in our communities. The security agencies, EPA, industry, and Congress cannot point to the risk of terrorism and then simply walk away without addressing the need for strict regulations to control chemical hazards that pose targets for terrorists.

I. Honor the Public's Right-to-Know

The freedom to communicate about chemical hazards is essential to reducing those hazards. The Clean Air Act, section 112(r) information serves the publics' right-to-know in ways that promote real hazard reduction.

1. Citizens need to know about potential chemical accidents in whatever jurisdiction their families, friends, and relatives work, live, go to school, or might move to. A citizen in Memphis has every right to learn if a similar facility in Peoria uses a safer process that has no potential off-site impact.

2. National and local news media need both timely information on the day of a chemical accident for stories on deadline and organized information across many jurisdictions for comparative analyses of hazards and prevention efforts (e.g., all of the RMP facilities along the Ohio River, other plants owned by the same company, etc.).

3. Investors, insurers, and lenders need to know whether their investments are sound. The Securities and Exchange Commission directs companies to report worst-case scenarios that can affect the company's bottom line as part of year-2000 disclosure requirements.3 Disclosing potential liabilities is part of doing business.

4. The public, legislators, and others need national information to hold EPA accountable for measuring results of the agency's hazard prevention programs, as required by the Government Performance and Results Act.

5. Local Emergency Planners need information on prevention successes at similar facilities in other communities, and at facilities operated elsewhere by particular companies.

6. Local communities need a low cost means of meeting Federal mandates.

7. Labor organizations need full chemical hazard information for safety training.

8. Management needs to know too; on the day of the first release of TRI data, Monsanto pledged to reduce TRI air emissions by 90 percent; clearly, public disclosure gets the attention of corporate managers.

9. Researchers need complete national information to learn, for example, whether certain hazardous industries are associated with higher or lower unemployment, income levels, property values, and minority populations, or to compare policies across states and localities.

These are but a few examples. The public's right-to-know is critical to hazard prevention. Congress must continue to honor the public's legitimate right-to-know and act to prevent hazards.

II. Acknowledge Areas of Agreement

Please carefully consider the following facts.

1. All parties seem to accept that people have a right-to- know if they can be hurt by a chemical spill.

2. During EPA workgroup discussions, all participants agreed that "professional terrorists are savvy enough to access this type of data" regardless of Internet access.4

3. No one claims that the Internet is necessary for criminal activity at a chemical plant; therefore, the Internet is not the issue.

4. Risk Management Plans do not include tank locations, plant security information, classified information, or technical data about how to cause a worst-case event.

5. Facility worst-case vulnerability zones have been discussed for years, described in reports, published in newspapers, and put on the Internet (e.g., http://augustachronicle, "Planning for the Worst Maps," October 1997.)

6. Industry's legal duty to operate safely (CAA, 112(r)(1)) includes site security; nothing in a Risk Management Plan increases this duty.

7. People can get information from many sources, including the phone book, direct observation, trade shows, industry publications, newspapers, public relations events, the Census Bureau, and common sense, all without using the Internet.

8. Nearly 1,000,000 chemical accidents were reported to the Federal government over a recent ten-year period.1 By comparison, we don't have much information on chemical accidents caused by sabotage, let alone any examples involving the Internet.

9. Claims of sabotage have proven inadequate. At Bhopal, India, in 1984, the company claimed sabotage; yet investigation showed that five major safety systems were either inadequately designed or at least partially failed.5 In Nevada, in 1997, an explosion at Sierra Chemical killed four workers. The company claimed sabotage, yet investigators contradicted this claim, and faulted instead numerous aspects of the plant's operations.6

III. Reduce Real Hazards

Environmental and labor organizations have long sought public policies to cut the potential for chemical accidents.7 Consider these examples of hazard reduction:

1. As a result of New Jersey's Toxic Catastrophe Prevention Act (TCPA), scores of water treatment plants in the state have shifted from chlorine to safer alternatives, such as sodium hypochlorite (bleach).

2. Du Pont's Victoria, Texas, facility uses up methyl isocyanate-the Bhopal chemical-as soon as it is produced, yielding low potential for off-site impact. (Other chemicals at the plant pose significant off-site hazards.)

3. The Local Emergency Planning Committee in Cuyahoga County, Ohio, used vulnerability zone calculations and awards to encourage safer technologies, such as award winner ALCOA, which ended on-site storage of hydrofluoric acid and nitric acid.

Clearly, the potential benefits of a national program are immense. (See attached list of quotes from industry about the success of the Toxics Release Inventory.)

While RMP information is not yet public, anecdotal evidence suggests that impending disclosure is already spurring interest in reducing worst-case zones. For example, in 1997, only a handful of companies signed up for an industry seminar on inherent safety in Cleveland, Ohio. However, by 1998, with RMP disclosure looming, over 100 companies signed up for such a seminar in the same location.

IV. Adopt Real Solutions

If there is a problem from potential terrorism, then there is still a problem if information is kept off the Internet. Keeping information off the Internet doesn't reduce actual hazards. The security agencies, EPA, industry, and Congress cannot identify a hazard and simply walk away without doing anything other than impeding public access to information. Secrecy does not address the problem. Secrecy invites complacency. We need real programs to reduce hazards, regardless of their proximate cause.

1. The U.S. EPA should use its clear authority under the Clean Air Act, sections 112(r)(7)(a) and 112(r)(9) to establish an accident prevention program that compels companies to reduce hazards as part of the Risk Management Plan.8 Naturally, not all hazard reduction activity originates at the Federal level, but we do need Federal leadership.

2. The security agencies should work with EPA to devise strict regulations that protect the most hazardous facilities against terrorist attack.

3. The chemical industry should publicly commit to a quantifiable plan and timeline to reduce hazards such that facilities no longer threaten surrounding communities.

Congress should look close to home. In 1982, a Radian Corp. study found that the Blue Plains sewage plant in Washington, DC, poses off-site risks from chlorine many miles distant.9 This lead the Department of Defense (due to nearby Bolling Air Force Base) to complain in 1991 to the mayor of Washington, DC. The mayor commissioned a feasibility study in 1992. The study recommended that Blue Plains switch from chlorine to bleach. Yet we still have weekly shipments of chlorine tank cars into Blue Plains. So if this is a terrorist target in Washington, DC, then what is the best way to address it-by not talking about it or by replacing the chlorine with safer alternatives?

Notes

1. Press Release, Chemical Safety and Hazard Investigation Board, February 1, 1999.
2. Too Close to Home, U.S. Public Interest Research Group, July 1998.
3. Statement of the Securities and Exchange Commission Regarding Disclosure of Year 2000 Issues and Consequences by Public Companies, Investment Advisers, Investment Companies, and Municipal Securities Issuers, August 4, 1998. A company must make this assessment as part of its Management Discussion and Analysis "if its year-2000 issues would have a material effect on the company's business, results of operations, or financial conditions, without taking into account the company's efforts to avoid those consequences." Thus, disclosure is required for the vast majority of companies.
4. Final Report of the Electronic Submission Workgroup to the Accident Prevention Subcommittee of the Clean Air Act Advisory Committee, U.S. Environmental Protection Agency, June 18, 1997. Section 2.B. Location of RMP*Info (Internet Issues). (www.epa.gov/swercepp)
5. The Encouragement of Technological Change for Preventing Chemical Accidents, Nicholas Ashford, et. al., Massachusetts Institute of Technology, 1993. At Bhopal, a refrigeration system was not operating; a temperature indicator was not functioning; a vent gas scrubber was inadequately designed and maintained; a flare tower was not functioning; and water curtains could not reach the leaking gas.
6. Investigation Report, Sierra Chemical Company, U.S. Chemical Safety and Hazard Investigation Board, January 7, 1998 (www.chemsafety.gov). The Board faulted the company's process hazards analysis, training program, operating procedure, building design, safety inspections, and employee participation, in addition to faulting regulatory agencies for inadequate oversight.
7. For example, see public comments on 60 FR 13526 (EPA docket A-91-73) and Too Close to Home, by the U.S. Public Interest Research Group, July 1998. Safer technologies use less hazardous chemicals, operate at ambient pressures or temperatures, reduce storage, require fewer shipments, etc. Other safety improvements include secondary containment, automatic shutoffs, alarms, fences, barriers, buffer zones, etc.
8. The Clean Air Act, 112(r)(7)(a), authorizes the Administrator ". to promulgate release prevention, detection, and correction requirements which may include monitoring, record-keeping, reporting, training, vapor recovery, secondary containment, and other design, equipment, work practice, and operational requirements. Regulations promulgated under this paragraph may make distinctions between various types, classes, and kinds of facilities, devices and systems taking into consideration factors including, but not limited to the size, location, process, process controls, quantity of substances handled, potency of substances, and response capabilities present at any stationary source. Regulations promulgated pursuant to this subparagraph shall have an effective date, as determined by the Administrator, assuring compliance as expeditiously as practicable."
9. Air Dispersion Model Assessment of Impacts from a Chlorine Spill at the Blue Plains Wastewater Treatment Plant, Radian Corporation, 1982.

Attachments

Sample Objections and Responses
Commentary: Time to Reduce Hazards
Ten Reasons for a National Public Database
Du Pont Vulnerability Zones
Open Letter; 150 Groups Support Right-to-Know
Industry Quotes on the Toxics Release Inventory

Exhibits

Where the Fumes Could Spread, West County Times (Richmond, Calif.), December 13, 1993.

----------------------------------------
Paul Orum
Working Group on Community Right-to-Know
218 D Street, SE; Washington, DC 20003
Ph: (202) 544-9586; E-mail: [email protected]
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