National Security vs. Public Disclosure: The War on Terrorism's Implications Upon Federal Emergency Planning and Right to Know Laws

December 1, 2003

Evan M. Slavitt, Gregory D. Cote

Evan M. Slavitt, Esq.
Gregory D. Cote, Esq.
Gadsby Hannah, LLP
Boston, Massachusetts

**The Federalist Society takes no position on particular legal or public policy initiatives. All expressions of opinion are those of the author or authors.**


On September the 11th, enemies of freedom committed an act of war against our country. Americans have known wars - but for the past 136 years, they have been wars on foreign soil, except for one Sunday in 1941. Americans have known the casualties of war - but not at the center of a great city on a peaceful morning. Americans have known surprise attacks - but never before on thousands of civilians. All of this was brought upon us in a single day - and night fell on a different world, a world where freedom itself is under attack.

President George W. Bush, Address To Joint Session of Congress, September 20, 2001.

INTRODUCTION

Prior to September 11, 2001, Americans enjoyed the privilege of living in an overwhelmingly open society with a seemingly innocent sense of security. In the wake of the atrocities wrought upon the nation by the World Trade Center and Pentagon terrorist attacks, however, emerged the realization that the American homeland is not immune from attack and that vulnerability abounds in nearly every segment of our society. The United States responded by declaring a multifaceted war on terrorism, one aspect of which tasks government officials with the responsibility of reassessing domestic priorities and policies to help restore a sense of security to Americans and to ensure that the American way of life endures. To date, much of the attention focused on this process revolves around the economy, aviation security and law enforcement, but other areas are affected as well, including federal environmental, emergency planning and information disclosure policies.

This paper examines some of the concerns that the War on Terrorism raises about certain federal laws addressing each of those topics, focusing particular emphasis upon the Emergency Planning and Community Right to Know Act ("EPCRA") [1]. The first section presents an overview of EPCRA's basic emergency planning and right to know provisions as well as two other federal laws containing similar provisions. The second identifies how the "right to know" provisions of these laws appear to conflict with contemporary national security interests. The third section proposes how to harmonize and achieve, as closely as possible, the policy objectives underpinning both the War on Terrorism and these "right to know" provisions.

I. Overview of EPCRA and Other Federal "Right to Know" Provisions

Just over fifteen years ago, Congress enacted EPCRA in response to concerns triggered by the accidental release of methyliscyanate in Bhopal, India and Institute, West Virginia, two incidents which underscored the inherent hazards associated with storing and handling large quantities of toxic chemicals [2]. EPCRA, part of the Superfund Amendments and Reauthorization Act of 1986 [3], does not restrict the storage, use, release, disposal or transportation of toxins. Rather, it enables citizens and local governments to obtain information about potentially hazardous substances in their community and bolsters local emergency response planning for major chemical incidents [4]. It accomplishes these objectives, in part, by imposing the following categories of reporting obligations upon privately owned facilities that store or manage certain chemicals:

  1. Emergency Response Planning Notification;
  2. Emergency Release Notification;
  3. Toxic Chemical Inventory Reporting; and
  4. Toxics Inventory Release Reporting.

In 1993, President Clinton extended EPCRA's applicability to federal agencies, including the Departments of Defense and Energy, through Executive Order 12856 and to government contractors in 1995 through Executive Order 12969. Thus, all federal defense installations, laboratories, research facilities, power administrations, petroleum reserves and contractors must comply with those reporting obligations as well. A brief description of each category is provided below.


A. Emergency Response Planning Notification

EPCRA is a federal law, but it delegates most of the emergency planning responsibility to state and local governments by requiring all fifty states to appoint a state emergency response commission ("SERC") [5]. Once formed, EPCRA requires each SERC to establish emergency planning districts and local emergency planning committees ("LEPC") to develop local emergency response plans for releases of chemicals deemed extremely hazardous by the Environmental Protection Agency ("EPA") [6]. These plans must include, at a minimum the following information:

  • Identification of local facilities handling extremely hazardous substances; routes likely to be used for transportation of those substances and any additional facilities contributing or subjected to additional risk because of their proximity to regulated facilities;
  • Methods for facilities and local emergency and medical personnel to follow in response to a release of an extremely hazardous substance;
  • Designation of community and facility emergency coordinators who make determinations about implementing the plan;
  • Procedures for emergency coordinators to notify public and other designated officials of a release;
  • Methods for determining the occurrence of a release and the area or population likely to be affected by a release;
  • A description of the community and emergency equipment and facilities in the community and at the facility and identification of the persons responsible for such equipment and facilities;
  • Evacuation plans and alternative traffic routes;
  • Training programs for local emergency response and medical personnel; and
  • Methods and schedules for implementing the emergency plan [7].

Facilities at which any extremely hazardous substances are located in excess of a "threshold planning quantity" must notify the pertinent SERC and LEPC that they are subject to EPCRA's emergency planning provisions within sixty days after they come under EPCRA's purview [8]. These facilities must also designate individuals to serve as their emergency coordinators and assist in the LEPC emergency response planning process [9]. These obligations are ongoing and require the facilities to inform the appropriate LEPC of any facility changes potentially affecting the emergency planning process [10]. Finally, the facilities must promptly respond to any request from an LEPC for information pertinent to the development and implementation of an emergency plan [11].

B. Emergency Release Notification

Unless covered under one of several exceptions, EPCRA requires facilities that produce, use or store hazardous substances to immediately report an emergency release of certain quantities of hazardous or extremely hazardous substances to the LEPC emergency coordinator for each potentially affected area and the SERC for any potentially affected state [12]. The facility may initially communicate the release personally or by telephone or radio, but must also submit a written report as soon as possible detailing:

  • The substance released;
  • The quantity, time and nature of the release;
  • The health risks associated with the release
  • The proper precautionary response to the release
  • The name and telephone number of an individual who can provide further information; and
  • The actions taken by the facility in response to the release [13].

C. Toxic Chemical Inventory Reporting

EPCRA's routine reporting obligations consist of two different categories: (1) Material Safety Data Sheet ("MSDS") Reporting and (2) Inventory Reporting. The information that these reports provide is used to develop and implement plans for responding to chemical incidents and to inform the public of the potential harm resulting from exposure to toxins. The inventory reporting category is comprised of two different reports, Tier I reports and Tier II reports. Each report is discussed in further detail below.

1. MSDS Reporting
Facilities required under the Occupational Health and Safety Act of 1970 [14] to prepare or have MSDS data available for hazardous chemicals must submit an MSDS for each on site above-threshold chemical to the LEPC, SERC and fire department with jurisdiction over the locality in which the facility is located [15]. Alternatively, the facility may submit a list of chemicals present at the facility in above threshold quantities, grouped by categories of hazard, i.e., health (acute or chronic) or physical (flammable, explosive or reactive), and name as set forth in the MSDS [16]. Whichever option the facility chooses, it need only submit the required information once for each chemical unless there is a significant change in the information [17]. Similar requirements are established for reporting hazardous chemical mixtures [18].

2. Inventory Reporting
Any facility subject to EPCRA's MSDS reporting provisions must also submit either a Tier I or Tier II annual inventory report to the same entities for any threshold quantity chemicals or mixtures present at the facility during the previous year [19]. A Tier I inventory report is general in nature and does not require disclosure of specific inventories or locations of chemicals on site. Instead, the report is organized by hazard category and discloses only the estimated aggregate amounts of hazardous chemicals present and their general location at a facility in the previous year [20].

A facility may, at its option, submit a Tier II inventory report for specific chemicals instead of a Tier I report [21]. A SERC, LEPC or local fire department may also request the submission, within 30 days, of a Tier II report for any hazardous chemical present at a facility [22]. A Tier II report is also organized by hazard category, but discloses much more detailed information than a Tier I report. Specifically, a Tier II report discloses the names and estimated aggregate amounts of above threshold chemicals present at a facility within the previous year, the manner in which those chemicals are stored, the precise location of the chemicals at the facility and an indication as to whether the facility prefers not to disclose the chemicals' specific locations to the public [23].

D. Toxics Inventory Release Reporting

EPCRA also requires certain facilities that manufacture, process or use more than a threshold amount of any toxic chemical to annually report the amounts of each chemical transferred off-site or released into the environment to the EPA and designated officials of the state in which the facility is located [24]. This report, commonly referred to as Form R, must include the following information:

  • The name, location and principal activities of the facility;
  • Whether the released chemicals are manufactured, processed or otherwise used by the facility and the general category of any such use;
  • The maximum amount of each released chemical present at the facility during the previous year;
  • The treatment and disposal methods employed by the facility and their efficiency; and
  • The amount of each chemical released or transferred off-site for treatment and disposal [25].

The Pollution Prevention Act of 1990 requires facilities to include the following additional information in their Form R reports:

  • The quantity of each toxic chemical that enters a facility's waste stream during the year;
  • The amount of each reported chemical that is recycled, the percentage change from the previous year and the recycling process used;
  • The source reduction practices utilized at the facility;
  • A projection of the percentage change in amount of each chemical to be reported in the subsequent two years;
  • The ratio of production reported to production in the previous year;
  • The techniques used to identify source reduction opportunities;
  • The amount of any toxic chemical released caused by a catastrophic event unrelated to the production process; and
  • The amount of each toxic chemical treated at the facility and the percentage change from the previous year [26].

Unlike the other EPCRA reports, this report is unrelated to emergency planning [27]. Rather, it serves solely to inform the public and government officials about routine releases of toxic chemicals. The data is used to research and develop pollution-related regulations, guidelines and standards and enables the EPA to develop a database of toxic chemical releases called a Toxics Release Inventory ("TRI") [28]. The EPA distributes written and electronic summaries of the nationwide and state-by-state TRI data each year, but also makes the data available to the public in raw or summarized form [29] .

E. The "Right to Know" Provisions

Virtually all of the information described above is considered public information and subject to public disclosure upon submission. This means that Emergency Response Plans, Emergency Release Notifications, MSDS data, Tier I and Tier II Inventory Reports and TRI data are all readily available for inspection by members of the public [30]. Indeed, citizens may even bring suit against facilities to compel submission of the information [31].

Some substantive and procedural restrictions on disclosure exist, but the only information not obtainable is the specific chemical identities of substances that facilities withhold from their reports pursuant to EPCRA's trade secret provisions and, upon a facility's request, the location of specific chemicals identified in a Tier II report [32]. Facilities must substantiate their trade secret claims through a rather elaborate procedural scheme when members of the public petition for disclosure of the embargoed information and may not withhold trade secret information from an Emergency Release Notification [33]. Additionally, medical personnel may obtain the trade secret information in certain situations upon the submission of a written statement of need and the execution of a confidentiality agreemen [34]t. However, there is no mechanism available for overriding a facility's request for confidentiality concerning the specific locations of chemicals.

General Tier II report information is obtainable only upon the submission of a written, facility specific request [35]. Moreover, EPCRA appears to require only that SERCs and LEPCs make information in their possession available for in camera inspection, not duplication, although nothing expressly forbids them from fulfilling requests for copies of the information [36]. Finally, EPCRA provides for the imposition of criminal penalties for knowingly and willfully divulging information entitled to trade secret protection [37].

F. Other Federal Emergency Planning and "Right to Know" Laws

At least two other federal laws contain emergency planning and "right to know" provisions similar to those established under EPCRA: the Oil Pollution Act of 1990 ("OPA") [38] and the Clean Air Act, as amended in 1990 [39]. OPA contains national planning and preparedness provisions for oil related disasters similar to EPCRA's provisions for extremely hazardous substances. It requires the federal government to direct all response efforts to certain types of spill events, tasked "Area Committees" with the responsibility of developing location specific response plans and required facilities and vessels to prepare and submit response plans to the Area Committees for approval [40].

The facility and vessel plans must identify an individual who will serve as an emergency coordinator and identify the equipment and personnel available to assist in removing a worst case discharge or mitigating threats of such discharges [41]. They must also describe the specific actions they will take to ensure the safety of the facility or vessel in response to a spill and to mitigate or prevent a discharge or threat of a discharge [42]. Any records, reports or other information submitted by facilities or vessels pursuant to OPA's response plan provisions are publicly accessible documents, subject only to similar trade secret protections as outlined in EPCRA [43].

The 1990 Clean Air Act Amendments ("CAA") requires facilities possessing threshold quantities of certain chemicals to develop and submit Risk Management Plans ("RMP") to the EPA and other state and local emergency planning agencies that identify and evaluate hazards associated with those chemicals [44]. Facilities are required to include in these RMPs an assessment of the potential off-site effects to the environment and population from an accidental release of a hazardous substance as well as an evaluation of a worst case scenario from such a release [45]. They must also include an accident prevention program and emergency response program detailing the specific actions they will take to prevent or respond to an accidental release and protect human health and the environment, including procedures for notifying agencies responsible for coordinating emergency response actions [46]. Again, all of this information, with the exception of trade secrets, is subject to public disclosure [47].

II. Contemporary National Security v. Public Disclosure

As currently written, these laws create serious national security risks for the affected industries. Specifically, they require public disclosure of information concerning the type and amounts of hazardous substances stored, used or produced at a facility, worst case accident scenarios, casualty estimations and evacuation scenarios that any terrorist living undetected among us may use to evaluate and select potential targets. Until recently, the EPA provided much of this information through the Internet. Much of it remains available today through government sponsored "reading rooms" that require merely the presentation of an identification card to access. Most Americans, if even aware that such rooms exist, rarely utilize this resource. Nevertheless, the laws remain in effect and are fully utilized by several so-called public interest groups. Disturbingly, one in particular is reported to have cavalierly disseminated a report highlighting the number of people potentially injured by a release at a specifically identified facility.

This creates an anomalous situation because the general public is no more informed than they were before the enactment of these laws. Although the general dissemination of this information in theory created a better informed populace, the technical nature of the information and its sheer volume preclude much actual impact. In contrast, those who possess both technical knowledge and inappropriate intent may easily access precisely the wrong type and amount of information. EPCRA and the other two laws were intended to function as guides to vulnerability and they do so at a time when that is not an unmixed blessing. Unfortunately, Congress assumed that the principal use of that information would be to reduce or minimize danger, not to exploit it.

In sum, at the time these disclosure statutes were enacted, there were no perceived countervailing interests to maximizing disclosure of the information. Industry concerns over privacy were addressed through inclusion of trade secrets provisions, but none of them appear to address national security issues. In fact, the only remotely security related measure contained within any of the three laws is the EPCRA provision enabling facilities to preclude disclosure of the precise locations of any on-site hazardous chemicals from their Tier II reports.

In light of the indisputable terrorist threats with which the nation must now contend, the basic presumptions underpinning these disclosure laws must be examined. Osama bin Laden's propensity to attack unconventional targets, coupled with the affected industries' unique contributions to our national infrastructure, underscores the gravity of the risk these provisions create and obviates the need to modify the policies underpinning our "right to know" laws. Simply stated, continuing to disclose such sensitive information in the current manner is irresponsible and tantamount to playing Russian roulette with innocent American lives and the security of our nation's infrastructure.

III. A Potentially Harmonizing Resolution

Perhaps the most reasoned approach for resolving this issue without inciting a cantankerous partisan debate is to seek simply to recalibrate the disclosure modalities such that the community "right to know" is balanced against national security interests. This is attainable by proposing merely to distinguish between the casual interests of the public in very general information from the specific interests associated with the emergency planning process through a multi-tiered disclosure policy and to bolster the security measures utilized for guarding this information. The devil, however, is in the details.

First, President Bush should rescind Executive Order 12856 and Executive Order 12969. There is absolutely no conceivable reason for jeopardizing the security of our national facilities or government contractors by requiring their adherence to EPCRA's provisions, which essentially accomplishes little more than to require disclosure of their locations, the type of work they are performing and exploitable dangers. Indeed, it is difficult to imagine a greater national security threat and causes one to further question the logic of President Clinton's decisions during his tenure in the White House. Second, Congress should enact legislation requiring the EPA to permanently remove this information from the publicly accessible portions of its website and that outright prohibits any outside dissemination of this information over the Internet.

The legislation should also create a new process for citizens to obtain the information. As noted above, access to general information of interest to even casual parties should be relatively easy. In contrast, access to the most sensitive information, like the type and amounts of hazardous substances stored, used or produced at a facility, worst case accident scenarios, casualty estimations and evacuation scenarios, is granted only upon a showing of specific need and confirmation of the requestor's identity and background. It should also implement a waiting period similar to that required for the purchase of firearms. Finally, it should clarify EPCRA's "reading room" provisions by specifying that a SERC, LEPC or other responsible agency under either OPA or CAA may not duplicate or otherwise distribute the information in their possession.

Fortunately, a germane mechanism for amending the "right to know" provisions already exists. On September 24, 2001, Senators Robert Bennett (R-UT) and Jon Kyl (R-AZ) introduced S. 1456, The Critical Infrastructure and Information Security Act of 2001. Co-sponsored by such democrats as Senators Charles Schumer (D-NY) and Mary Landrieu (D-NY), the legislation encourages key private sector companies to share information with government agencies and a newly created Presidential task force for the purpose of identifying and analyzing potential national security infrastructure threats.
It accomplishes this, in part, by shielding any such information from disclosure under the Freedom of Information Act. Thus, if enacted, information voluntarily provided by a chemical facility, oil refinery or other key private sector business for the purpose of assisting the federal government with assessing their vulnerability to and consequences of an attack remains confidential. Amending the legislation to include provisions addressing threats to our national infrastructure posed by existing laws seems appropriate, especially since no hearings to discuss the merits of the bill are yet scheduled and the objective is merely to alter, not prohibit, disclosure of the information in question.

CONCLUSION

As Defense Secretary William Rumsfeld recently stated, defending against all possible attack scenarios
is impossible and the horse may very well have already left the barn with respect to the dangers associated with these "right to know" provisions. Nevertheless, precautions are still in order. Americans are resilient and more capable perhaps than any other populace on the face of the planet of learning from their mistakes and moving forward in a stronger, more unified manner. As we progress through this season of maturity, however, we must not overlook that which is staring us right in the face and deny the inconsistencies in our own public policies. Instead, we must show the world that we are wide-awake in America and will no longer passively assist the terrorists who wish to destroy our way of life.


1. 42 U.S.C. § 11001 - 11050.
2. Stever, Donald W., The Law of Chemical Regulation and Hazardous Waste, Environmental Law Series, §6.11[1] (West Group).
3. Pub. L. 99-499.
4. 51 Fed. Reg. 41570 (1986).
5. 42 U.S.C. §11001(a).
6. 42 U.S.C. § 11001(b), (c).
7. 42 U.S.C. § 11003(c).
8. 42 U.S.C. § 11002(b)(1), (c).
9. 42 U.S.C. § 11003(d)(1).
10. 42 U.S.C. § 11003(d)(2).
11. 42 U.S.C. § 11003(d)(3).
12. 42 U.S.C. § 11004(a)(1) - (3).
13. 42 U.S.C. § 11004(b)(1), (2), (c).
14. 29 U.S.C. § 651 et seq.
15. 42 U.S.C. § 11021(a)(1).
16. 42 U.S.C. § 11021(a)(1), (2).
17. 42 U.S.C. § 11021(d).
18. 42 U.S.C. § 11021 (a)(3).
19. 42 U.S.C. § 11022(a)(1).
20. 42 U.S.C. § 11022(d)(1).
21. 42 U.S.C. § 11022(a)(2).
22. 42 U.S.C. § 11022(e)(1)
23. 42 U.S.C. § 11022(d)(2).
24. 42 U.S.C. § 11023(a), (b)(1)(A).
25. 42 U.S.C. § 11023(g)(1).
26. 42 U.S.C. § 13106.
27. Stever, Donald W., The Law of Chemical Regulation and Hazardous Waste, Environmental Law Series, §6.11[3][c][i] (West Group).
28. 42 U.S.C. 11023(j); .
29. .
30. 42 U.S.C. §§ 11021(c)(2), 11022(e)(3), 11023(h), (j), 110044(a).
31. 42 U.S.C. § 11046(a).
32. 42 U.S.C. § 11022(d)(2), 11042, 11044(a).
33. 42 U.S.C. § 11042(a).
34. 42 U.S.C. § 11043.
35. 42 U.S.C. § 11022(e)(3).
36. 42 U.S.C. § 11044; Stever, Donald W., The Law of Chemical Regulation and Hazardous Waste, Environmental Law Series, §6.11[3][b][ii] (West Group).
37. 42 U.S.C. § 11045(d)(2).
38. Pub. L. 101-380, Title IV.
39. Pub. L. 101-549, Title III.
40. 33 U.S.C. § 1321(j).
41. 33 U.S.C. § 1321(j)(5).
42. Id.
43. 33 U.S.C. § 1321(m)(2)(D).
44. 42 U.S.C. § 7412(r)(7)(B)(ii), (iii).
45. 42 U.S.C. § 7412(r)(7)(B)(ii)(I).
46. 42 U.S.C. § 7412(r)(7)(B)(ii)(II), (III).
47. 42 U.S.C. § 7412(r)(7)(B)(iii).


Selected References
Cooke, Susan M., 2 The Law of Hazardous Waste: Management, Cleanup, Liability and Litigation, c. 10, Matthew Bender & Co. (2001).

Kuszaj, James M., The EPCRA Compliance Manual, ABA (1997).

Stever, Donald W., Law of Chemical Regulation & Hazardous Waste, Environmental Law Series, West Group (1988).

Waldo, Andrew B. and Richard deC. Hinds, Esq., Chemical Hazard Communication Guidebook: OSHA, EPA and DOT Requirements, Executive Enterprise Publication Co., Inc. (New York, N.Y. 1988)