Community and Worker Right-To-Know News, February 1999
EPA Tells Congress It Would Oppose FOIA Requests for Electronic Version of National RMP Database for Use on Third-party Web Sites
In testimony before two subcommittees of the House Commerce Committee, security experts expressed concern that the Freedom of Information Act (FOIA) could be employed by citizens groups and other third parties to obtain, in electronic format, nationwide risk management program (RMP) data that regulated facilities will be submitting June 21, including the offsite consequence analysis (OCA) data that the U.S. Environmental Protection Agency (EPA) has agreed to keep off the agency's Web site.
At a Feb. 10 hearing before the Subcommittee on Health and Environment and the Subcommittee on Oversight and Investigations, EPA acknowledged that it would oppose any effort by a third party to request under FOIA an electronic version of the national database of RMP data, and place the data on a third-party Web site. The agency said that it is working on alternative ways to respond to FOIA requests without releasing RMP data in a form that could be readily copied or posted on the Internet.
However, some members of Congress believe that legislation may be needed to preclude EPA from releasing sensitive RMP data, primarily OCA data, in any electronic form. They contend that without legislation, the FOIA process could be used by third parties to circumvent the agreement reached between federal security agencies and EPA to not allow public access to OCA data through the Internet-accessible RMP*Info, which is EPA's database of all RMP plans filed with the agency. And some congressmen are worried that EPA's proposed alternatives for responding to FOIA requests will not be ready by the fast-approaching June 21 deadline to file RMP plans with the agency.
At the core is a national security concern that making OCA data from thousands of facilities available through the Internet, whether via an EPA database or a third party's Web site, would increase the risk that terrorists would search and use the data to target specific facilities for attack.
In opening remarks, Rep. Tom Bliley, R-Va., chairman of the Commerce Committee, said the hearing's purpose is to find the best way to disseminate sensitive information to the public without increasing the risk of terrorist attack on facilities and the personnel within. "EPA hasn't addressed how to disseminate information to third party requestors, even though EPA backed off its original plan to make all RMP data available through the Internet," Bliley said.
The subcommittees heard testimony from three panels of witnesses representing the views of local emergency response agencies, EPA, national security agencies, industry trade associations, public interest groups and organized labor. Several witnesses referred to the findings of a security study conducted in September and October 1997 by Aegis Research Corp. for EPA's Accident Prevention Subcommittee. One of the study's key findings was that making OCA data available via the Internet would increase the risk of terrorist attack by seven fold over the baseline case (which would be disseminating RMP plans in paper format only).
Even in opening statements, it was clear that subcommittee members were divided along party lines regarding how to define the problem and whether legislative action was needed to solve it. "The problem is not yet defined and will not be defined by this hearing," said Rep. Ron Klink, D-Pa. "Does the majority have a 'crystal ball' as to what the problem is and how to correct it? We have no draft language of a legislative proposal and no FOIA expert is here today," Klink said.
"What new threat are we looking for today that we need to address? What evidence do we have? Only one study with many faults contracted by EPA," Klink said, adding that he intends to ask the General Accounting Office to evaluate the methods and assumptions behind the Aegis security study. More concretely, Klink pointed to the known, documented dangers presented by the more than 8,000 chemical incidents that occur annually, which Congress has directed EPA to address.
Taking a moderate position, Rep. Bart Stupak, D-Mich., said he believes it's fair to question how EPA intends to handle RMP data, "but we don't need to go overboard." Noting that he is unaware of any chemical plant that has been a target of terrorist attack, Stupak said, "we shouldn't use rhetoric to justify placing limits on FOIA."
Most Republicans on the subcommittee, however, believe that the terrorist threat is real. "The question is how EPA should handle information to protect the community from chemical incidents and yet also protect the community from terrorist acts," said Rep. Fred Upton, R-Mich. "I am concerned that EPA has only reluctantly begun to view the Internet as a threat and hasn't addressed the issue of a third party accessing RMP data and placing it on the Internet," he said.
Access through FOIA
Those who testified before the subcommittees generally agreed that RMP plans including the section containing OCA data submitted by regulated facilities must be made available to the local community. However, they disagreed about whether OCA data should be available to members of the public beyond the local community; and if so, in what format? The language of Section 112(r)(7) of the Clean Air Act states that all RMP data shall be available to the public, but does not specify the format or the medium.
Recently, the issue came under congressional scrutiny after federal security agencies argued that under current FOIA law, any member of the public could submit a FOIA request to EPA for the electronic version of all RMP data stored in the agency's RMP*Info database, and EPA would have to release the data to the requestor in electronic format.
At the hearing, Rep. Barbara Cubin, R-Wyo., asked Robert Blitzer, former chief of the domestic terrorism section within the Federal Bureau of Investigation (FBI), whether the government could withhold information if it received a request from a third party for all RMP data. In response, Blitzer said, "Under current law, no." And Rep. Michael Bilirakis, R-Fla., submitted for the record a letter from an FBI official stating that the agency interprets FOIA to mean that upon request, OCA data would have to be released in electronic format.
Acknowledging the FBI's position, EPA acting assistant administrator Tim Fields told the subcommittees that the Justice Department and EPA's Office of General Counsel are researching the issue and will have a definitive position in a couple of weeks. However, Fields made a point of reminding the subcommittees that "EPA was urged by stakeholders in the chemical safety area to collect and distribute RMP information electronically." As a result, EPA developed its electronic submittal system, known as RMP*Submit, and RMP*Info.
Next Steps Before the Deadline
During the development process, EPA's electronic submission workgroup "unanimously agreed to make most of the RMP data available without restriction on the Internet," but could not agree whether OCA data should be accessible via the Internet, Fields said. After evaluating the issue for a year-and-a-half — which included commissioning the Aegis security study and working with federal security agencies to strike a balance between "providing public access to information about chemical risks and reducing the risk of terrorism". EPA announced last November that it would not post OCA data on the Internet, but all other RMP information would be available on the agency's Web site.
"Balancing these risks continues to be a high priority and EPA is continuing to explore, with other relevant agencies, other means of providing public access to OCA data that reduce the risk of terrorism," Fields testified. "EPA and the FBI have made great progress in this area," he said. Specifically, Fields said EPA has met with other federal agencies to discuss options for disseminating RMP data, including OCA data, to state and local agencies. According to Fields, EPA plans to:
work with the National Institute of Standards and Technology to explore the feasibility of a "closed" system for sharing OCA data with state and local government agencies; and
inform state and local governments of EPA's decision not to post OCA data on the Internet and strongly encourage them to follow suit.
To respond to public requests for the national RMP database, including OCA data, Fields outlined EPA's procedures to:
contact each requestor to inquire whether the individual is seeking the entire database and informing them that all RMP data, except for OCA data, already is publicly available via the Internet; and
ask each requestor whether the RMP database without facility identification information would suffice (researchers interested in national trends, for example, may not require the information).
"For citizens who want the full national database, EPA is exploring the possibility of a 'read-only' CD-ROM that could not be copied, duplicated or posted on the Internet," Fields said.
Because of these efforts, Fields told the subcommittees "it's premature to talk about legislation." But when asked by Rep. Bilirakis about how close EPA is to implementing these safeguards, Fields said, "We will know within the next six months whether the options EPA is working on will be effective soon after the data starts coming in on June 21."
"What would be wrong with EPA working with the [Commerce] committee to draft legislation to be ready by June 21 if we decide it is necessary at that time?" Bilirakis asked. "EPA sees no need for legislation at this time," Fields responded.
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