Issue Date: May 7, 2012
Balancing Security And Right To Know
The Obama Administration is rekindling a decade-old debate over whether certain risk management data collected from facilities that manufacture or handle large amounts of hazardous chemicals should be made publicly available on the Internet.
The debate involves the Environmental Protection Agency’s Risk Management Plan (RMP) rule. This rule, which is part of the Clean Air Act Amendments of 1990, requires facilities to provide the agency with data about the chemicals used and stored on-site as well as accident prevention information.
Public interest groups maintain that citizens have a right to know about dangerous substances that are being produced, used, or stored at facilities within their communities. But industry officials and some members of Congress assert that the data are sensitive and that public availability of the information could jeopardize the security of their facilities.
After the Sept. 11, 2001, attacks, several government agencies pulled information off their websites that officials feared could help terrorist organizations identify targets for another attack. It was at this point that EPA voluntarily took down facility-specific data gathered under its RMP rule.
In 1999, EPA began requiring facilities to submit reports describing the hazards present at each of their plant sites. It also required facilities to summarize their programs for preventing accidental releases of harmful chemicals and mitigating the severity of releases that do occur.
In the aftermath of 9/11, that information has been available only at tightly controlled reading rooms in federal buildings across the U.S. or through Freedom of Information Act (FOIA) requests. But in a policy reversal, EPA announced plans last December to again publish portions of the RMP database on the Internet beginning in July.
In explaining the proposal, Lawrence M. Stanton, director of EPA’s Office of Emergency Management, said the restrictions on the data created a “bureaucratic burden on the agency” because the agency has received repeated FOIA requests for site-specific hazard information. He also cited a need by the Federal Bureau of Investigation and other government entities to have greater access to the data.
Restoring easy access to this information will also be useful to the public, Stanton added, especially to police, firefighters, and other emergency response personnel, as well as to state and local emergency management planners.
But after the chemical industry and water utilities joined two senior Republican congressmen in warning that such a move could make chemical facilities more susceptible to a terrorist attack, EPA reconsidered its stance again. The agency agreed in late March to indefinitely postpone—but not abandon—its proposal.
In an e-mail to stakeholders, Stanton acknowledged that “reasonable concerns have been raised that certain types of [RMP] data should not be posted” on the Internet. “We have heard and are sensitive to these concerns,” he said.
EPA has also received comments that portions of the database “should not be made available on the agency’s website in lieu of the current access regime,” Stanton said. The existing process “requires more personal contact to obtain the information than if it was freely available on the Internet,” he explained. This makes it “less likely that someone seeking to misuse RMP information will use government sources to obtain it.”
The agency understands the concern and “would like to consider other approaches if such can be found,” Stanton said. But he added that EPA is also aware of and sensitive to the right of local communities to know about certain risks, saying it is preferable that communities have “reasonably easy access” to the information when that makes sense.
Consequently, EPA is inviting the chemical industry, public interest organizations, and other stakeholders to provide input on how to allow greater access to the RMP data in a way that balances the public’s right to know about the industrial dangers present in their communities with the need to protect national security, Stanton said. “EPA will be working to arrange a number of opportunities for dialogue on this subject,” he added.
But finding a balance between the public’s right to know and security concerns likely will be no easier now than it has been in the past. Whereas the information that chemical facilities are required to provide to EPA is well defined, how it can be accessed has varied.
The Clean Air Act Amendments of 1990 require approximately 13,000 facilities that use a threshold amount of certain acutely toxic or flammable substances to develop and submit RMPs to the agency. An RMP contains a facility’s five-year accident history, a summary of its accidental release prevention program, and a summary of its emergency response plan for protecting the surrounding community.
It also includes an off-site consequence analysis (OCA), which is an estimate of the extent of damage and the number of deaths and injuries that could result from a hypothetical worst-case chemical release. In addition, each facility prepares an alternative release scenario that is more likely to occur and more realistic than the worst-case scenario.
Under the law, EPA is required to make all RMP facility information available to state and local governments and to the public. The agency originally planned to place the entire RMP information system on the Internet.
However, the chemical industry and U.S. security agencies raised concerns about anonymous access to a large, searchable RMP database. They feared that RMP data, and particularly the worst-case scenario information, could be used by terrorists and other criminals as a targeting tool.
In response, Congress passed the Chemical Safety Information, Site Security & Fuels Regulatory Relief Act, which former president Bill Clinton signed into law on Aug. 5, 1999. The statute barred EPA from disclosing the worst-case release estimates in any form until a system of limited public access was established.
Under the regulatory scheme set up in 2000, a member of the public may view paper copies of the OCA data for up to 10 facilities per month at a federal reading room after showing a photo ID and filling out a sign-in sheet. Visitors can take notes but aren’t allowed to make copies or take the documents from the reading room.
The rules do not apply to all of the other information that facilities are required to include in their RMPs—the portion of the database to which EPA now wants to restore access on its website.
Although EPA still appears to be intent on moving forward, industry officials say they are pleased that the agency has decided to get more feedback. “It’s an encouraging sign that EPA has recognized that there are some issues that need to be discussed and it needs to reconsider its position,” says Scott Jensen, spokesman for the American Chemistry Council (ACC), a trade association that lobbies on behalf of the nation’s largest chemical manufacturers.
“EPA made the right decision,” adds William E. Allmond IV, vice president of government and public relations at the Society of Chemical Manufacturers & Affiliates, a group that represents the chemical industry’s small-business sector.
“The agency never had a compelling reason for putting security-sensitive information about chemical plants back on the Internet,” Allmond tells C&EN. “Access to this data is already made available through more responsible ways, such as government reading rooms.”
EPA’s change of course came one day after ACC warned the agency that publicly releasing the RMP information “will undermine the efforts of our industry to protect our facilities, employees, and communities.” The information includes lists of chemicals used at each facility, the inventory at the site, and the location of the process unit within the complex where the inventory is held, according to Michael P. Walls, ACC’s vice president of regulatory and technical affairs.
“It is our belief that this information should remain under the current administrative controls for access that were put in place for reasons of national security,” Walls asserted in a March 27 letter to Mathy Stanislaus, head of EPA’s Office of Solid Waste & Emergency Response. “Using this information in conjunction with easily available tools, such as Google Maps, anyone could still target the location of the covered chemical inventories without access to the OCA information,” Walls noted.
The Association of Metropolitan Water Agencies expressed its strong objections to EPA’s plan to reestablish Internet access to the data in a March 22 letter to EPA Administrator Lisa P. Jackson. “We believe releasing this sensitive information would constitute a threat to national security,” wrote AMWA Executive Director Diane VanDe Hei.
The organization, which represents the largest publicly owned drinking water utilities in the U.S., said it was particularly concerned that disclosing information about the types of safety measures facilities have installed could help terrorist organizations plan attacks. These data “could be used to prioritize targets based on the type of mitigation measures and thereby inform perpetrators of the actions necessary to thwart designed protection,” VanDe Hei cautioned.
Two Republican lawmakers have also questioned the wisdom of putting the RMP data back on EPA’s website. “With the growth of several Internet search-engine-based mapping tools, the information you propose to publish can constitute a virtual terrorist roadmap into a chemical facility, triggering devastating consequences,” Reps. Fred Upton (R-Mich.) and John M. Shimkus (R-Ill.) told Jackson in a Feb. 10 letter. “Common sense dictates that this information must be restricted from Internet access and maintained under the current administrative access controls.”
Upton is chairman of the House of Representatives Energy & Commerce Committee, and Shimkus chairs the committee’s Environment & the Economy Subcommittee.
The congressmen also ridiculed EPA’s reason for the policy change. “EPA complains that dealing with FOIA requests for this information is a burden,” they wrote. “We believe this burden on your staff pales in comparison to the security risks posed by unfettered global access to this information by anyone for any purpose.”
“Terrorists already have enough weapons,” Upton and Shimkus added. “We need not turn this highly sensitive information into one more weapon in their arsenal.”
Right-to-know advocates, however, argue that restricting access to the information does little to reduce the threat of terrorism but diminishes the ability of the public to make informed decisions about its own safety.
“This is information about accident and emergency preparedness,” says Sean Moulton, director of federal information policy at OMB Watch, a Washington, D.C.-based group that advocates for a more open government. “A community cannot prepare for the possibility of an accident at one of these facilities if they don’t have the information. That’s what it comes down to.”
OMB Watch and several other activist groups have continued to publish the RMP information, without the OCA data, on their websites.
Despite criticism from industry and law enforcement, OMB Watch’s Right-to-Know Network provides summaries of RMP data from every state. “These executive summaries are not blueprints for terrorists,” Moulton remarks. “They are tools that allow us to better protect our communities and our families.”
Although critics worry that the information could help terrorists target facilities where they could do the most damage, Moulton points out that it isn’t difficult to find chemical plants located near large populations. “You can drive by these facilities and you know something is dangerous there,” he remarks. “It’s no secret. There’s no way to cover these facilities up from the view of the public.”
The usefulness of RMP information to terrorists, he asserts, is dubious and perhaps nonexistent. “The reality is that this information is about accidents; it’s not about security. These are not maps or schematics,” Moulton tells C&EN. “This is basic information about chemicals on-site, about what’s dangerous. This is information we have through various other databases,” and he cites EPA’s publicly available Toxics Release Inventory, which documents environmental releases of more than 650 toxic chemicals, as one example.
“It’s illogical to say that in an effort to try to protect ourselves from the remote chance of a terrorist attack, we’re going to increase our risk from accidents, which happen all the time,” he remarks. “Every year, there are accidents at these facilities. We have to prepare for that.”
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