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EPA Takes "Right to Know" to an Extreme

Administrative Law Practice Group Newsletter - Volume 3, Issue 1, Spring 1999
By Chad Cummins
May 01, 1999

Senator Frank Church (D-ID), in his report to Congress as chairman of a commission investigating alleged abuses by the Central Intelligence Agency (CIA) in the 1970's, described the agency as a "rogue elephant...on a rampage." Without having to stretch the imagination too far, the same can be said for the U.S. Environmental Protection Agency (EPA). Politics at EPA have overtaken science as the guiding light in the agency, as real environmental protection has taken a back seat to a "mother-earth" ideology.

Most recently, under the guise of "protecting and informing the public," the EPA is promoting a "right to know" concept. Somehow, in the EPA's view, the public is made more safe by knowing what types of hazardous material are produced in the United States and where they are stored. Under this theory, EPA is on the verge of disclosing an unprecedented amount of manufacturing secrets from more than 66,000 firms across the nation, even though both the Federal Bureau of Investigation (FBI), the CIA, and other outside experts have testified before Congress that providing this information to the general public will significantly increase the likelihood of a domestic terrorist incident

The controversy stems from a 1990 amendment to the Clean Air Act that mandates that "risk management plans" (RMP) be written for more than 66,000 industrial facilities, such as chemical plants, oil and gas refineries, pharmaceutical companies, electric and gas utilities, and waste water treatment works. Military and federal energy facilities of the government are also required to establish RMP's. The plans must include evaluations of the risks and hazards at each installation, discuss accident prevention and propose responses to an accidental release for nearly 200 hazardous materials. Each facility must also develop an "offsite consequence analysis" (OCA), analyzing the dangers to the public and the environment from possible accidental releases.

The most controversial aspect of the OCA is the requirement that each plan include information on "worst case scenarios" (WCS). A WCS must disclose: (1) the chemical or hazardous material that might cause the worst case scenario if released, (2) its physical state of storage, (3) the amount of the material that would need to be released to cause the situation, and (4) how that material might possibly be accidentally released. The topography of the area in which the plant is located must also be included, identifying the facility's exact longitude, latitude, complete address, and number of employees. The reach, range, and effects of the release must also be addressed, including a description estimating the number of people injured, killed, or otherwise affected by the release.

The Clean Air Act specified the type of information to be disclosed, but not how the data was to be made available. Congress's intent was that this information would be useful for local emergency management personal in case of an accidental release. Instead, EPA originally planned on releasing this information in toto over the Internet, literally creating a road-map for terrorists who could access it from the comfort of their own living rooms.

This decision was made even after a report by an EPA contractor revealed that putting worst case scenario data on the Web would increase the risk of terrorism seven-fold. The FBI, CIA, and other outside security experts have also expressed concern. Still, the EPA remains incredibly nonchalant about the potential threat of a domestic terrorist incident. Last year, James Makris, Director of the Chemical Emergency Preparedness and Prevention Division within EPA, who is in charge of supervising dissemination of the RMP data remarked, "The last time I checked we didn't need the security agencies' approval to make decisions."1

EPA believes that by disseminating this information as publicly as possible, companies will voluntarily reduce their use of hazardous materials. EPA also claims that environmental activists have threatened to use the Freedom of Information Act to secure the data, which they would then post on the Internet themselves. Finally, EPA is convinced that no credible terrorist threat even exists.

Toscins sounded when word of EPA's plan spread through Congress and other administrative agencies. Senate Majority Leader Trent Lott (R-MS) sent a letter to EPA stating that he expected EPA to clear any dissemination plans with Congress. This was followed by a letter signed by 39 Members of the House of Representatives expressing concern over EPA's plans. Many other Representatives sent letters of their own.

Also, the CIA, FBI, Department of Justice, other administrative agencies, and many private associations warned EPA about disseminating the information freely to the general public. Since that time, EPA has backed off some, saying it will not post WCS data freely over the Internet; all other RMP data is still scheduled to be released. Instead, EPA will release the controversial information to local and state agencies, urging them not to release the information over the Internet. EPA is also exploring the possibility of a "read-only" CD-ROM for citizens who want the full national database, which supposedly cannot be copied, duplicated, or posted on the Internet.

In February, the House Commerce Committee held a hearing on the subject. EPA assured the committee's chairman, Rep. Tom Bliley (R-VA) that legislation preventing the EPA from posting this information over the Internet was unnecessary. Bliley was not convinced, saying he intended to introduce some type of legislation addressing the issue. In March, committee member Rep. Roy Blunt (R-MO) introduced legislation that would exempt propane from RMP requirements.

The RMP data is due to be submitted to the EPA in June. EPA claims that the agency is equipped to handle sensitive information, but EPA has a poor record of safeguarding computer data. The agency recently reported losing 219 confidential business documents.2 This comes on the heels of a 1996 admission that it had lost more than 200 confidential and sensitive business reports.3 Even the agency's own inspector general determined that EPA "is not sufficiently protecting its information technology resources from malicious acts via access from the Internet." The Inspector General's report went on to state: "the EPA has not sufficiently developed or implemented adequate controls to prevent or detect improper/illegal access to its systems from the Internet."4

The world is very different today then in 1990 when these amendments to the Clean Air Act were passed. The expanded right to know amendments predated the explosive growth of the Internet as well as the World Trade Center and Oklahoma City terrorist attacks. It is very doubtful that Congress would pass such legislation today.

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   1. Jim Makris, "Terrorist Risk vs Right to Know: Internet Access to Chemical Release Data," remarks to the District of Columbia Bar Association, Environmental, Energy and Natural Resources Section, March 13, 1998.
   2. "EPA Lost 400 Confidential U.S. Chem Files," Chemical News and Intelligence (27 February, 1998).
   3. "EPA Loses Confidential U.S. Chem Files," Chemical News and Intelligence (27 February, 1998).
   4. Office of the Inspector General of the U.S. Environmental Protection Agency, "EPA's Internet Connectivity Controls," Report No. 7100284 (September 1997), p.8.

Chad Cummins is vice president of the Steel Manufactures Association.