D.R. Kuespert, Ph.D.
Director, AcuTech Consulting National Capital Operations
November 5, 1999 -- Washington, DC

EPA Implements PL 106-40

The Environmental Protection Agency (EPA) detailed its plans to implement Congressional changes to its controversial Risk Management Plan regulation during a meeting of the Clean Air Act Accident Prevention subcommittee on Capitol Hill today. The changes, ordered by Public Law 106-40, include deleting propane and other fuels from the regulation, conducting a study of the increased terrorist-attack risk caused by the regulation, and requiring facilities to hold public meetings to discuss the local consequences of their "worst-case" accidents.

Offsite Consequences and Terrorism

The original Risk Management Program required public disclosure of offsite consequence analysis (OCA) data, particularly the population threatened by a specified "worst-case" accident. Industry and the FBI have both raised concerns that this information could assist international or domestic terrorists, making it easier to target facilities to cause the maximum amount of damage. In response to the concerns, Congress directed the EPA to withhold OCA data from the Internet database containing all other RMP information, providing a specific exemption to the Freedom of Information Act to facilitate this.

OCA Data may be on the Internet Next August

EPA and the Department of Justice are required to conduct a study of the increased risk, reporting interim results within one year. This is an aggressive schedule given the typical pace of Federal agencies, particularly since Congress did not allocate funding for the study. EPA stated that it is not willing to commit to meeting Congressional deadlines and provide a detailed schedule for the study. If the government fails to provide the study and issue regulations regarding research access to the data (see below) by next August, the data must be made available over the Internet. Delays in the security assessment may therefore serve the political interests of those who favor disclosure.

De Facto Weapon of Mass Destruction

The Department of Justice (DOJ) revealed that there is no centralized information on attacks or potential for attacks on chemical process facilities. DOJ and other Federal agencies are attempting to develop estimates as soon as possible, focusing on the possibility that a process plant could be turned into a weapon of mass destruction. While the DOJ representative noted, "there are hostile agents...with an interest in US infrastructure," determining whether or not OCA data adds to their knowledge is difficult.

Debate to Continue

The debate on this issue is highly politicized. Opponents of OCA data disclosure argue that the incremental risk of terrorist attack is substantial and must be balanced against the benefits of public disclosure. Proponents make the point that the total risk of terrorism against a chemical plant facility is low or negligible and therefore the entire issue is a smokescreen. Given the polarity of the positions, it is not likely that the debate will reach a useful compromise, and the final decision (to be made by the President and Congress) will be made mostly on the basis of interest-group lobbying.

Alert Issued

In the interim, EPA is drafting a site security "Alert" similar to the chemical safety alerts issued for such topics as pressure vessel explosions and ammonia refrigeration. Issuance of an "Alert" typically indicates that EPA intends to address an issue as a General Duty Clause obligation rather than through the Risk Management Program regulation.

A Quandary for Local Agencies

Despite the general ban on distribution of the OCA data, certain parties require it for official use. Local, State, and Federal government officials must receive access to OCA data for facilities in their areas, subject to criminal penalties for unauthorized distribution. This requirement is causing serious problems for states. A state representative to the committee mentioned that state law required him to collect the information, and the state "Sunshine Law" requires it to be made publicly available. EPA was not able to answer immediately when he asked if he could be Federally prosecuted for obeying his local law. Given the large number of "covered persons" entitled to official access (firefighters, etc.), no agency wants to take responsibility for verifying that a person is indeed working in an official capacity.

Who is a Researcher?

Also controversial is access to OCA data for research purposes. The new law requires access for "qualified researchers," but provides no guidance on how to determine qualifications. EPA stated repeatedly that they do not feel qualified to determine what "qualified" means, and so the only logical choice was to consider everyone "qualified." EPA lawyers then announced that this solution is unconstitutional (on freedom-of-speech grounds, because everyone would be restricted from discussing the information in public). A more realistic solution is expected before EPA's legal deadline for issuing regulations (August 2000).

Propane and Fuels

See the related story on the status report of the "fuel exclusion" in PL 106-40.

Postscript

Ironically, the Accident Prevention Subcommittee meeting coincided with a front-page Washington Post report of serious process safety management deficiencies at the Blue Plains water treatment plant. The plant, which provides the Washington area with water and wastewater services, stores up to 650 tons of liquefied chlorine gas at any given time. The newspaper report found nonfunctional gas sensors, missing breathing apparatus, sloppy maintenance practices, and other problems at the plant. It also alleged that a worker had been fired for complaining about conditions at the facility.