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Freedom of Information

EPA Rule, Ordered by Congress, Pulls Plug on Chemical Disaster Data

EPA and the Justice Department have finalized a rule strictly limiting public access, especially electronic access, to data about risk to the public from worst-case accidents that could happen at U.S. chemical plants. Nationwide or industry-wide comparisons of the threats which plants present to communities will now be extremely difficult.

The rule was published in the Federal Register (65 FR 48108 -- 40 CFR Chapter IV) on August 4, 2000, and took effect the same day. It was nearly unchanged from the version proposed on April 27, 2000 (65 FR 24834). It is currently online at http://www.epa.gov/swercepp/whatnew.html.

The rule carried out a mandate imposed on EPA by Congress at the urging of chemical companies. It came exactly one year after enactment of a bill (PL 106-40) creating the first new exemption to the Freedom of Information Act in years. That bill imposed a one-year moratorium on the disaster data until EPA could issue a rule according to Congressional specifications.

The data in question details "Offsite Consequence Analyses" (OCA) for major chemical accidents, which a different Congress mandated be made public information as part of the 1990 Clean Air Act. The 1990 provision, which took a decade to implement as industry struggled against it, required major plants to prepare "Risk Management Plans." Following the original mandate, EPA put much of the data into a searchable online database (http://www.epa.gov:9966/srmpdcd/owa/overview$.startup).

But the chemical industry objected to putting online the key part of the OCA data which actually told communities how bad a risk they might face. These "worst-case scenarios" detailed how much of a chemical could be released, how far it might travel, and how many people would be in harm’s way.

The chemical industry argued that a searchable database of worst-case scenarios would allow terrorists to "target" plants where a bomb or similar device could harm the most people. The FBI, which hitherto had shown little concern, agreed. Environmentalists argued that the 1990 law’s intent was for public awareness of risks to push companies to make their plants safer. They said the riskiest plants were already well-known, and were in fact owned by companies who were leading the fight against disclosure.

At the time it imposed the 1999 moratorium, Congress ordered EPA to do a study assessing the benefits of disclosure and Justice to do a study assessing the risks of terrorism. EPA was to base its rule on these studies, which were released April 18, 1999 (texts at http://www.epa.gov/swercepp/ap-99law.htm). Predictably, the EPA study found substantial risk-reduction benefits from disclosure and the Justice study found substantial risks from terrorism.

EPA’s rule, which was dictated in large part by the 1999 law, tried to find a middle way balancing purported risks and benefits by giving access to the information but limiting that access, for example, by making the information very difficult to get or use.

The rule allows public access to paper copies of OCA information for up to 10 sites per month anywhere in the United States, only in one of 50 reading rooms across the country. The documents may not leave the room and mechanical copying would be prohibited. Handwritten notes may leave the room.

In order to see the documents in a reading room, a person would have to provide a driver’s license or similar ID. They would also have to sign a sign-in sheet and sign certification that they had not received OCA data on more than 10 sites for that month. The rule specifies that the sheets be kept for 3 years, but that the agencies create no index or database which would make the sign-in data searchable by a person’s name.

One of the FBI’s goals during the struggle over the disclosure rule was to be able to gather data on who was asking for the OCA data. The EPA rule seems to bar creation of a government database from reading-room sign-in sheets -- but doesn’t really. Rather, it pegs treatment of the sign-in sheets to the Privacy Act, which requires the government to give public notice if it does create such a database. The Privacy Act exempts intelligence and criminal investigators from its normal restrictions on data searching -- and also forbids government databases on how people exercise First Amendment rights. In any case, investigators could examine the records in the course of a criminal or intelligence investigation.

The rule also provides for EPA to put online a system allowing anyone to type in their address and get back an indication of whether they are in the danger zone of one or more plants -- the so-called "vulnerable zone indicator system."

The rule makes an exception to the 10-sites-per month limit for state and local chemical emergency agencies -- State Emergency Response Commissions (SERCs) and Local Emergency Planning Committees (LEPCs). These agencies can give an unlimited amount of OCA information to persons asking for it, as long as they do not provide it in electronic or database form. They are also not required to ask or record the identities of persons asking for the information.

State and local officials would normally only get OCA data about sites in their own state -- they would have to ask EPA for information on sites in other states, and are forbidden to give OCA data directly to officials in other states,

"It’s a remarkable development that we have criminal penalties for free speech about dangerous practices perpetrated by corporations," said Paul Orum of the Right-to-Know Working Group. "Unfortunately, it might take a major chemical release before the government gets serious about reducing hazards instead of impeding public information."

The Competitive Enterprise Institute, a conservative, business-oriented think tank, criticised the rule for not going far enough to restrict information access. "Under this rule, activist groups can still access and post the sensitive information online," said CEI’s Angela Logomasini.

Reprinted with permission. Published in Environment Writer newsletter September 2000, by the National Safety Council's Environmental Health Center.