[Senate Hearing 106-151]
[From the U.S. Government Publishing Office]
S. Hrg. 106-151
EPA'S RISK MANAGEMENT PLAN (RMP) PROGRAM
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HEARING
BEFORE THE
SUBCOMMITTEE ON
CLEAN AIR, WETLANDS, PRIVATE PROPERTY AND NUCLEAR SAFETY
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
MARCH 16, 1999
__________
Printed for the use of the Committee on Environment and Public Works
U.S. GOVERNMENT PRINTING OFFICE
59-379cc WASHINGTON : 1999
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred sixth congress
JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire DANIEL PATRICK MOYNIHAN, New York
JAMES M. INHOFE, Oklahoma FRANK R. LAUTENBERG, New Jersey
CRAIG THOMAS, Wyoming HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri BOB GRAHAM, Florida
GEORGE V. VOINOVICH, Ohio JOSEPH I. LIEBERMAN, Connecticut
MICHAEL D. CRAPO, Idaho BARBARA BOXER, California
ROBERT F. BENNETT, Utah RON WYDEN, Oregon
KAY BAILEY HUTCHISON, Texas
Jimmie Powell, Staff Director
J. Thomas Sliter, Minority Staff Director
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Subcommittee on Clean Air, Wetlands, Private Property, and Nuclear
Safety
JAMES M. INHOFE, North Carolina, Chairman
GEORGE V. VOINOVICH, Ohio BOB GRAHAM, Florida
ROBERT E. BENNETT, Utah JOSEPH I. LIEBERMAN, Connecticut
KAY BAILEY HUTCHISON, Texas BARBARA BOXER, California
(ii)
C O N T E N T S
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Page
MARCH 16, 1999
OPENING STATEMENTS
Graham, Hon. Bob, U.S. Senator from the State of Florida......... 9
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 1
Letters, RMP worst-case scenarios.........................2, 25, 27
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 3
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming....... 45
Letters submitted for the record............................. 45-48
WITNESSES
Bertelsmeyer, James E., president, National Propane Gas
Association.................................................... 28
Letter, from Senator Chafee...................................... 100
Prepared statement........................................... 94
Responses to additional question from Senator Graham......... 99
Blitzer, Robert, former section chief, Domestic Terrorism/
Counterterrorism Planning Section, Federal Bureau of
Investigation.................................................. 34
Prepared statement........................................... 96
Burnham, Robert M., Chief, Domestic Terrorism Sector, National
Security Division, Federal Bureau of Investigations............ 7
Prepared statement........................................... 89
Responses to additional questions from:
Senator Graham........................................... 91
Senator Lautenberg....................................... 90
Fields, Timothy, Acting Assistant Administrator, Office of Solid
Waste and Emergency Response, Environmental Protection Agency.. 5
Chart, EPA's Regulatory Duplication.......................... 52
Prepared statement........................................... 48
Report, Risk Management Program Guidance for Propane Users
and Small Retailers........................................ 56-85
Responses to additional questions from:
Senator Chafee........................................... 87
Senator Graham........................................... 88
Senator Inhofe........................................... 85
Kleckner, Dean, President, American Farm Bureau.................. 23
Letters, RMP regulations..................................... 25-27
Prepared statement........................................... 91
Langanga, Ben, emergency management coordinator, Office of
Emergency Management, Union County, New Jersey................. 40
Prepared statement........................................... 167
Littles, Paula R., Paper, Allied-Industrial, Chemical and Energy
Workers International Union.................................... 36
Prepared statement........................................... 164
Natan, Thomas E., Jr., research director, National Environmental
Trust.......................................................... 38
Prepared statement........................................... 165
Susman, Thomas M., Ropes & Gray.................................. 34
Article, Terrorists with Computers..........................134-164
Prepared statement........................................... 132
ADDITIONAL MATERIAL
Article, Flaws of Inclusion of Propane in the EPA RMP Regime,
Alliance for Fair Energy Competition..........................124-132
Letters from:
Boehert, Hon. Sherwood....................................... 102
California Cotton Ginners and Growers Association............ 114
California Department of Forestry and Fire Protection......107, 122
Chafee, Hon. John H.......................................... 100
City of Tallahasse, FL....................................... 119
City of Waynesboro, GA....................................... 118
Colorado Farm Bureau......................................... 106
Colyer, Dave................................................. 176
Farmers' Pride............................................... 112
Florida Farm Bureau Federation............................... 110
Florida Public Utilities Co.................................. 119
Gingerich, Tom............................................... 177
Governor of California Pete Wilson........................... 175
Hecla Mining Company......................................... 117
Illinois Pork Producers Association.......................... 107
Intermountain Outdoor Sports................................. 117
International Association of Fire Fighters................... 170
Iowa Farm Bureau Federation.................................. 110
Kansas Farm Bureau........................................... 111
Kentucky Department of Housing, Buildings, and Construction.. 123
Kings County, California, Farm Bureau........................ 114
Mobile Tool International, Inc............................... 118
National Grange.............................................. 109
National Marine Manufacturers Association.................... 168
National Restaurant Association.............................. 169
Nebraska Farm Bureau Federation.............................. 111
Nevada Board for the Regulation of Liquified Petroleum Gas... 116
North Carolina Department of Agriculture and Consumer
Services................................................... 115
North Carolina Department of Environment and Natural
Resources.................................................. 120
Ohio Grocers Association..................................... 113
Ohio Meat Industries Association............................. 108
Ohio Poultry Association..................................... 108
Olive Road Flea Market, Brookville, OH....................... 122
Orange County, California, Certified Unified Program Agency..2, 102
Parsons, Peggy............................................... 106
Rabun, J.J., Mayor of Wrens, GA.............................. 119
Ross Ranch South, Tallahasse, FL............................. 123
Scana Propane Services.....................................120, 121
Several agricultural organizations........................... 109
Several Members of the House of Representatives.............. 101
Tabor Lumber Cooperative..................................... 123
Thieman Tailgates, Inc....................................... 117
Tucker, Mike................................................. 178
Williamson County, Tennessee, Emergency Management Agency.... 174
Willmar Poultry Group........................................ 105
Resolutions:
California State Assembly..................................103, 105
Missouri State Legislature................................... 113
Nevada Board for the Regulation of Liquified Natural Gas..... 115
Statement, National Fire Protection Association.................. 170
EPA'S RISK MANAGEMENT PLAN (RMP) PROGRAM
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TUESDAY, MARCH 16, 1999
United States Senate,
Subcommittee on Clean Air, Wetlands, Private
Property and Nuclear Safety,
Committee on Environment and Public Works,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:31 a.m. in
room 406, Dirksen Senate Building, Hon. James M. Inhofe
(chairman of the subcommittee) presiding.
Present: Senators Inhofe, Lautenberg, Bennett and Graham.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. The meeting will come to order.
We would ask the first panel to come up to the table,
please, Mr. Fields, Mr. Burnham. I will give an opening
statement. Other members are on their way. We will try to keep
on schedule for this hearing because I have another meeting
coinciding at the Senate Armed Services Committee, and I am
supposed to be in two places at the same time. So we will move
right along.
Today's hearing will examine the EPA's risk management plan
program as required under the Clean Air Act. While I agree with
the program's intentions, the need to make emergency
information available to local emergency response personnel, I
have serious concerns about the manner in which the EPA is
implementing the program. I believe the EPA is flat out wrong
in including substances on the list for flammable reasons
alone. I can understand if you have one that is flammable and
toxic, but just here we would be referring to those substances
that are only flammable.
First, regarding flammable substances, the purpose of the
provision in the Clean Air Act is to safeguard local
communities against accidents involving toxic chemicals. The
Act provided OSHA with the authority to issue regulations to
protect workers against chemical accidents and to provide EPA
with the authority to protect the citizens who live around the
plant from escaping toxic fumes.
The EPA regulating propane under this provision is
regulatory overreach in the area that I don't believe they
should be. I'm concerned that through this regulation, the
Federal Government is picking favorites between fuels which is
clearly outside the intent of Congress and the Clean Air Act.
The result of including propane on the list will be fuel
switching, potentially driving propane dealers out of business.
We have already seen a case where fuel switching is being
encouraged by local governments. We have a letter here that I
think is self explanatory, a copy of the letter by the Orange
County, California regulating agency where they recommend that
propane users either reduce the amount of propane on hand or
switch to a nonregulated substance in order to avoid the EPA
rule. When a local government agency sends out letters like
this because of an EPA rule, then there is a problem with the
rule. This is unacceptable. The EPA has no business deciding
which fuels should be used and which should be encouraged.
I'm interested in hearing from Mr. Bertelsmeyer with the
Propane Gas Association about this fuel switching issue. I
believe that will be on the second panel.
I'm also concerned that as far as fuels are concerned, this
RMP rule duplicates other regulations by OSHA and by the
National Fire Protection Association and by various State
regulations. I have a chart which shows the duplication between
this rule and others. The chart is over here and I'd like to
have some of the witnesses address that. I'd like to have Mr.
Fields explain exactly what is different in the EPA rule
compared to the other regulations and during the second panel,
I'd like to hear Mr. Bertelsmeyer respond to those statements.
A second major concern with this rule is the potential use
of this information by terrorists. If they have access to the
worst-case scenario data, they can use this information to
target potential bombing sites. You can already find
information on the Internet on how to make a bomb. The last
thing we need now is to have information on the Internet which
will show terrorists where they can be most effective. I have a
particular concern and interest in this since I'm from Oklahoma
and having gone through the Federal office bombing.
Last spring, we asked the FBI to take a look at the worst-
case scenario data and the EPA's plans to disseminate the
information on the Internet. I'm pleased that the FBI convinced
the EPA that it would be foolhardy to release the information.
However, that is not the end of the problem. Anyone can request
and receive the data from EPA through the Freedom of
Information Act and the EPA would have to comply, I would
assume. That being the case, someone could make that request
and then they in turn could put it on the Internet and it would
get there anyway.
We need to make sure the local emergency personnel have
access to the information and not provide a forum for
terrorists around the world to target and blow up facilities in
our neighborhoods.
[The referenced letter follows:]
Orange County, California, Certified Unified Program
Agency,
January 14, 1999.
Mr. Dan Lower,
All Star Gas,
12600 Western Avenue,
Garden Grove, CA 92841.
Dear Mr. Lower: Your business has been identified as subject to the
requirements of the California Accidental Release Prevention (Cal-ARP)
program found in Chapter 6.95, Article 2 Health and Safety Code. The
Orange County Certified Unified Program Agency is authorized to
implement this program for the State of California. In addition, your
business is also subject to the Federal program, found in section
112(r) of the Clean Air Act implemented by U.S. EPA.
Your business is requited to develop and implement a risk
management program to prevent accidental releases of regulated
substances that can cause serious harm to the public and the
environment. You are also required to develop and submit a Risk
Management Plan (RMP), which includes a summary of your risk management
program. The RMP must be submitted to this agency and an electronic
version submitted to U.S. EPA by June 21, 1999.
We are requesting that your business contact this agency to
schedule RMP compliance meeting during the month of January 1999. These
meetings are required pursuant to California regulatory requirements
and to ensure that your business meets the federally mandated timeline.
Should your business so choose, you may implement one of the
following options in lieu of developing an RMP:
1. Eliminate or replace the Regulated Substance with a non-
regulated substance.
2. Reduce the amount onsite to below the Federal threshold
quantity. Note: This option may still require the development of an RMP
pursuant to California law, but will delay the submittal process to a
date beyond the June 21, 1999 deadline.
If one of the above options is chosen you will be required to
verify compliance prior to the June 21, 1999 deadline.
This agency is dedicated to assisting your business in meeting
these new regulatory requirements. In the near future we will be
providing technical/regulatory assistance as well as RMP guidance
documents. However, failure to develop and submit an RMP as required
will subject your business to penalties of up to $10,000 per day. In
addition, failure to contact and work with this Agency during
development of your RMP could cause costly revisions to be made during
the agency review and evaluation period.
Please contact James Hendron at (714) 667-3708 to schedule your
meeting time and date for questions related to this letter or your
responsibilities under the Cal-ARP program.
Sincerely,
Pearl Hoftiezer, Supervising Hazardous Waste Specialist,
Orange County Certified Unified Program Agency.
Senator Inhofe. We are joined by Senator Lautenberg. I'd
ask Senator Lautenberg if he has an opening statement to make
at this time?
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thank you, Mr. Chairman.
I do and I thank you for holding a hearing on this
important topic. We face, in the issue of public access to
chemical accident scenarios, one of the fundamental tensions of
an open, democratic society--how accessible to make information
whose disclosure may prevent harm, but some may use it to cause
harm. We often refer to the 1984 tragedy in Bhopal, India when
a chemical leak took 2,000 lives, as a wakeup call on the issue
of chemical accidents. In the wake of that tragedy, I
originated the amendment to the 1986 Superfund bill that
established the toxics release inventory through which
companies disclose routine chemical releases and emissions.
In the 1990 Clean Air Act, Congress took the right-to-know
concept a step further by creating the risk management program
under which companies will disclose worse chemical accident
scenarios and it is the risk management program that we are
discussing today. Every year, there are dozens of chemical
incidents in my State of New Jersey, many requiring evacuations
of the surrounding communities, many causing injury and
tragically, death. Nationwide, the Chemical Safety and Hazard
Investigation Board reports an average of 60,000 chemical
incidents each year and it results in hundreds of evacuations
and injuries and an average annual death toll of about 250
people.
Our goal must be, especially in a State with as strong a
chemical industry as New Jersey, to make the industry safer, to
make the environment safer, even as it becomes more productive.
Toward that end, we have regulatory programs specifying the
minimum safety practices that should be in place at each firm.
We have a Chemical Safety Board identifying the root causes of
most serious accidents and thanks to risk management programs
created under the Clean Air Act of 1990, we will soon have a
right-to-know program that applies to chemical accidents just
as the 1986 right-to-know program applies to routine chemical
releases. Strong regulatory and enforcement programs will
always be an essential component of protecting safety, health
and the environment in this country.
However, Mr. Chairman, the right-to-know programs have
promoted risk reduction far beyond what the regulatory programs
could achieve on their own. The premiere example of this is the
toxic release inventory which, through public disclosure, has
encouraged, has led industry to cut toxic chemical releases in
half in 10 years. This is without the big hand of government
overlaying it. People responded to the requests, many companies
actually turned the recaptured emissions into valuable assets,
part of their inventory, part of the material from which they
make product.
The power of public scrutiny manifests itself in several
ways. Newspapers run articles naming a specific company or
plant, the top chemical releasor in a town, State or in the
country. Environmental agency heads publicly call upon the
biggest firms to voluntarily reduce their releases. Vendors and
consultants market pollution prevention technologies to
facilities that are high on the list. All of this is made
possible by the right to know and it all contributes to an
atmosphere in which industry, through non-regulatory means, is
given an incentive to use safer products and processes.
I take very seriously the FBI's concerns that disclosure of
some of this information might increase risks due to terrorism.
All of us agree on the need to take all reasonable measures to
protect our citizens from terrorists. At the same time, it is
important to have programs such as right-to-know that help
reduce public risks from very real and dangerous chemical
accidents. If there are steps that we can take to reduce
threats from terrorism at chemical facilities, we should
certainly try to do that without eliminating the public safety
benefits that flow from disclosure of information about
chemical facilities. We might want to propose measures to
improve site security at these chemical plants or to even ban
the most hazardous chemical operations from residential areas
and schools.
I am going to be very interested to hear, Mr. Chairman,
what advice our expert witnesses are going to give us to help
retain the benefits of the right-to-know program, while at the
same time safeguarding ourselves from the threats of terrorism.
I thank you very much.
Senator Inhofe. Thank you, Senator Lautenberg, and I think
when you said the information is there to prevent harm and
could be used to inflict harm, I think that is what this is
really all about.
We will have three panels. The first panel will be Federal
Government people and the second will be those with an interest
in propane and the third on the security issues. All told, we
have nine witnesses who will be testifying today.
I would mention to you that while we will have members who
will be coming and going, we do have their staff here. You will
be receiving requests for answers to questions asked for the
record. You each will be given 5 minutes to make an opening
statement. However, your entire statement will be made a part
of the record. We're going to use the lights, and after that we
will ask for questions from the members of the subcommittee.
We will start off with Mr. Timothy Fields, Acting Assistant
Administrator, Office of Solid Waste and Emergency Response,
U.S. EPA, and Robert Burnham, Chief, Domestic Terrorism Sector,
National Security Division, Federal Bureau of Investigations.
Mr. Fields, I understand this committee has received your
nomination and I'll be anxious to hear your responses so that
we can move ahead with your confirmation.
Mr. Fields, why don't you begin?
STATEMENT OF TIMOTHY FIELDS, ACTING ASSISTANT ADMINISTRATOR,
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Mr. Fields. Thank you very much, Mr. Chairman.
I thank the members of the committee for being here today
to hear the testimony, on a very important topic, risk
management planning. My office has the EPA's primary
responsibility for the risk management program as well as the
agency's anti-terrorism program in terms of coordinating with
other Federal agencies on how we protect ourselves against
terrorism at the Federal, State and local levels. I'm pleased
to have the opportunity to present information about the
importance of chemical safety, community right-to-know and our
plan to balance the benefits of community right-to-know with
legitimate concerns about protection against terrorist threat.
We did make a decision not to put the off-site consequence
analysis data on the Internet on November 6, 1998, at the
advice of the Federal Bureau of Investigation and other
national security interests in this country. All other RMP,
risk management information except for confidential business
information, would be available and disseminated on the
Internet.
Since November, we've had concerns about how others might
post offsite consequence analysis data on the Internet. We've
been working together with the National Security Council, the
Federal Bureau of Investigation, the Department of Justice, the
Office of Management and Budget and the National Institute of
Standards and Technology to explore ways in which we can
prevent others from posting OCA data on the Internet as well.
We will continue to keep this subcommittee and this committee
informed of those discussions as we go along. Our goal is not
to post OCA data on the Internet and we don't want others to
post the data. The National OCA data base should not be posted
on the Internet and we will take efforts to make sure that does
not occur.
We will handle FOIA or Freedom of Information Act requests
in a way that minimizes the amount of information we have to
give out but at the same time satisfies the requests of
requestors. We are working with NIST on technology, for
example, that would deter copying or posting of OCA data on the
Internet as well as other mechanisms by which we can minimize
the amount of information that has to be given out in response
to FOIA requests.
Second, we do believe that propane does need to be
regulated. I'd like to address some of the concerns we have
there. While we made a decision to list flammable substances,
including propane, on the list of substances, 140 altogether
are to be regulated under the risk management program. We
applied the statutory criteria and as a result of applying
those criteria, we developed a list of 77 highly toxic and 63
highly flammable substances that based on their intrinsic
hazardous characteristics and regardless of their use, they
pose the greatest risk of harm to the public and the
environment if they are accidentally released.
The accident history shows us that accidental releases of
propane can cause significant public health and environmental
threats. After the Bhopal, India incident that we all know
about, the second largest industrial chemical accident in
history occurred at a propane gas terminal in 1984 in Mexico
City where 650 people were killed, 6,400 were injured. In this
country over the last 10 years, we've had 1,000 incidents
involving propane accidents, 8 major accidents occurred in the
last year alone, including one on New Year's Eve. We had four
deaths, 22 injuries that occurred and thousands of people
evacuated in 1998 alone due to propane accidents in this
country.
However, we recognize even though we have significant
release potential--we have more than 2 million propane
facilities in this country--only 33,000 are estimated to be
covered by this risk management program that we're
implementing. We've labored to lessen the regulatory burden by
only including a small segment, by giving a reasonable
threshold of 10,000 pounds, 2,380 gallons that would be
covered. We've developed model plans for propane users to use
in preparing risk management plans to minimize the burden.
We've provided guidance on how those facilities can determine
the amounts of facilities that could be exempted by putting out
guidance a couple of weeks ago on distances. If people's tanks
are separated by certain distances, they may not be covered at
all.
At the same time, the agency is working to explore whether
a higher threshold would appropriately safeguard the public and
the environment. Should a higher threshold be warranted for
propane facilities? We will make that decision in the next 30-
60 days and be able to set another threshold prior to June 21.
The EPA will also work with the National Fire Protection
Association's Standard Committee on Standard 58 to address how
that standard might be modified to meet the requirements of the
risk management plan regulations.
If we can reach an agreement over time on how NFPA-58
(National Fire Protection Association Standard) could be
modified to meet our requirements, we will work with the
industry to defer to that standard for risk management
planning.
In conclusion, I wanted to say that we have tried to
implement the risk management plan rule in a way that achieves
the mandate to provide for a community right-to-know but at the
same time, we're deferring and working with our security
agencies to make sure that we protect ourselves from terrorist
threats and at the same time, we also are looking at how we
regulate propane facilities, particularly in making sure that
we're only covering those propane facilities that pose the
greatest threat to personal injury and harm in this country.
Thank you very much, Mr. Chairman.
Senator Inhofe. Thank you, Mr. Fields.
Before Mr. Burnham makes his opening statement, we've been
joined by Senator Bennett from Utah. Senator Bennett, do you
have an opening statement you would like to make?
Senator Bennett. No.
Senator Inhofe. Mr. Burnham?
STATEMENT OF ROBERT M. BURNHAM, CHIEF, DOMESTIC TERRORISM
SECTOR, NATIONAL SECURITY DIVISION, FEDERAL BUREAU OF
INVESTIGATIONS
Mr. Burnham. Thank you, Mr. Chairman.
I do have a prepared statement.
My name is Robert Burnham, the current Chief of the
Domestic Terrorism Section of the FBI. My current
responsibilities include the national oversight management of
the domestic terrorism operations, weapons of mass destruction
and special events management programs for the FBI. I'm pleased
to have this opportunity to discuss the potential effects of
electronic dissemination of chemical worst-case scenario data
as detailed in section 112(r) of the Clean Air Act of 1990.
As the committee is aware, the Clean Air Act mandates that
chemical facilities provide to EPA a risk management plan
detailing their risk prevention and mitigation plans. It
encompasses offsite consequence analysis data which includes
the worst-case scenario data for both toxic and flammable
materials. The data requires distance to end point and
population affected calculations which detail the size of a
plume from release and the potential population affected by the
plume.
The FBI is aware of the need to aggressively pursue
environmental climes and fully supports the Clean Air Act and
the spirit of the community right-to-know legislation. We
understand the competing issues at stake here between providing
the necessary information to the community which allows them to
make informed decisions on local planning and preparedness
issues and limiting the risk associated with the distribution
of information that can be used against those same communities
in a criminal manner.
The FBI has worked with EPA to identify those sections of
the risk management plans that we believe can be directly
utilized as a targeting mechanism in a terrorist or criminal
incident. By way of background, on December 14, 1997,
representatives of the FBI were invited to a meeting at EPA. It
was at this time that the FBI first became aware of a plan by
EPA to post the risk management plans, including the worst-case
scenarios on the Internet. The FBI contacted other Federal law
enforcement intelligence agencies as well as the Environmental
Crimes and Terrorist Violent Crime Sections of the Department
of Justice to discuss the issues raised by the EPA's Internet
distribution plans.
Of great concern to the FBI at that time was the 1977 case
that highlighted the potential danger associated with the
criminal attack on a chemical facility. The FBI case, code
named ``Sour Gas,'' involved four KKK members who plotted to
place an improvised explosive device on a hydrogen sulfide tank
at a refinery near Dallas, Texas. The FBI was able to
infiltrate the group prior to the attack. The surveillance tape
shows two of the subjects discussing the potential death of
hundreds of area residents. At one point when the discussion
turned to the children who might become victims, one subject
turned to her husband and said, ``If it has to be, it has to
be.'' This cold-blooded killing was to take place merely as a
diversion for an armored car robbery the group intended to
commit on the other side of town.
Although these individuals did not use the Internet to
attack this facility, it illustrates a growing concern that
individuals and groups are willing to utilize unconventional
methods to achieve their goals and in the process, cause large
numbers of casualties. This real life incident highlights
better than any scenario we could create how worldwide,
unfettered electronic access to this information could be used
to facilitate a criminal or terrorist attack in the United
States.
The FBI applauds the gains made in accident prevention
since the inception of the Clean Air Act and encourages
cooperation between industry and the communities that has
brought about this reduction. We believe that providing this
information to the communities in the appropriate manner
contributes to an increase in safety in those neighborhoods.
Through our discussions over the past year with EPA, other
Federal agencies and affected parties, the FBI has arrived at
initial recommendations which we believe balance these concerns
and give the communities, State and local agencies and academic
and research communities appropriate access to this
information. Those recommendations were provided to Congress in
a report submitted by the FBI in October of last year.
However, the FBI continues to work with EPA and other
interested Federal agencies as part of an interagency working
group on how to achieve the appropriate balance between
protecting the public from terrorist attacks and making risk
management plan information available to the public. For
example, representatives of the National Infrastructure
Protection Center have met with EPA representatives and
discussed options for secure transmission of the risk
management plans to State and local government agencies. There
is concern, however, that certain groups of individuals will
acquire this information through lawful means and post it in
its entirety on private Internet sites. The FBI, as part of the
interagency group, has met to discuss this particular issue.
Although this issue is currently under discussion by the
interagency group, the FBI is concerned that under the FOIA
laws, the RMP information to include the worst-case scenario
information would have to be provided in electronic format if
available. If that is the case, groups of individuals could
acquire the information in this manner and reproduce it on the
Internet. The net effect would be that these groups would
undermine all the efforts of the many agencies who have worked
to bring a responsible approach to dissemination of this
information.
The Internet provides fast and extensive methods for
disseminating educational information and has the potential to
be a tremendously positive force in the future. However, from a
terrorist threat analysis, providing unfettered electronic
access to this type of information on the Internet could have
disastrous consequences. The worst-case scenario data alone
does not contain all the information necessary to carry out a
terrorist attack. However, in conjunction with the numerous
sites already available on the Internet containing how-to
literature on bombmaking, surveillance, counter-surveillance
and terrorist tactics and devices, it adds to the arsenal of
potential criminals.
Mr. Chairman, thank you for the opportunity to appear
before you today and I'd be happy to answer any questions you
may have.
Senator Inhofe. Thank you, Mr. Burnham.
We've been joined by our Ranking Minority of this
committee, Senator Graham. Did you have an opening statement to
present?
OPENING STATEMENT OF HON. BOB GRAHAM,
U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Graham. Mr. Chairman, thank you. I do have an
opening statement but in deference to the panelists that we
have, I will ask it be submitted.
Senator Inhofe. Without objection, we will do that.
[The prepared statement of Senator Graham follows:]
Statement of Hon. Bob Graham, U.S. Senator from the State of Florida
Mr. Chairman, members of the subcommittee, panelists for today--
thank you for the opportunity to address the subcommittee this morning
on the topic of risk management. As I will be unable to stay for the
duration of today's hearing, I will outline several of my key issues of
concern and ask that the witnesses address these items during your
testimony.
Let me begin by stating that the issues we will be addressing today
are of critical importance to the citizens of Florida. In the last
several months I have heard from the Florida Propane Gas Association,
the Florida Farm Bureau, Florida Citrus Mutual, and the Florida Tobacco
and Candy Association, as well as over 100 farmers, restaurant owners,
and other small business owners in Florida regarding the adverse impact
to their businesses that is anticipated as a result of the EPA's
application of section 112(r) of the Clean Air Act to the propane
industry.
I have also heard from many Floridians who are concerned about the
presence of flammable materials in their local communities. These
individuals have a right to this information so they can participate in
developing emergency response strategies.
The two main questions we will be discussing today mirror the
concerns raised to me by these Floridians. First, we will be hearing
differing views on whether Congress intended for section 112(r) to
include propane as a substance for which an EPA Risk Management Plan is
required. Of particular interest to me is the process by which the EPA
decided to list propane as one of those substances requiring a Risk
Management Plan. There are three factors listed in section 112 of the
Clean Air Act which the EPA is required to use in listing substances. I
am interested in learning from the EPA what type of analyses were
completed with relation to propane and its performance against each of
these criteria.
Second, we will be discussing whether or not the publication and
widespread dissemination of Risk Management Plans and worst case
scenario data would provide potential terrorists with targets for
domestic terrorism. As many of you know, Florida has a long-standing
tradition of full access to information. Our entire State government
operates under a ``Sunshine Law'' requiring that government actions be
open to the public.
It is with this tradition in mind that I offer my support for
rational, well-organized community-right-to-know policies which provide
incentives for good management of hazardous materials and ensure that
local communities can develop adequate risk management strategies.
Today we will be hearing from several witnesses who will provide
their views on the potential dangers associated with dissemination of
risk management data to the general public. I look forward to hearing
the results of this testimony and working with the members of this
subcommittee to identify any action that may be necessary.
Senator Inhofe.
Mr. Burnham, your testimony did not arrive at the committee
in the timely fashion that we do have as a policy of this
committee and of all committees. I was going to ask you why we
didn't get your testimony?
Mr. Burnham. I apologize for that, Senator. I will ensure
that every effort is made in the future to have it on time. My
statement is part of an interagency approval process. It had to
be approved by OMB prior to coming down. I was working with OMB
and the delay was primarily due to that.
Senator Inhofe. Was it only OMB that caused that delay or
did you send it to any other agency such as EPA?
Mr. Burnham. EPA was also involved in that interagency
approval process.
Senator Inhofe. So you had your statement ready in the
appropriate time but because of the approval of those agencies,
we didn't receive it in time?
Mr. Burnham. Correct, Senator.
Senator Inhofe. Mr. Fields, first of all, let me ask you is
it a policy of the EPA to approve this testimony before it
reaches this committee or do you know?
Mr. Fields. The Administration has a process similar to
what Mr. Burnham just described. All testimony is submitted to
the White House Office of Management and Budget for review and
they coordinate that testimony with other appropriate Federal
agencies. So our testimony is shared with other agencies, but
the testimony was drafted by me, submitted to OMB, reviewed by
FBI, DOJ and others to make sure we're all coordinating our
efforts across the Administration.
Senator Inhofe. Mr. Fields, when you were testifying before
the House Commerce Committee, you stated that the EPA was
opposed to anyone placing the worst-case scenario data on the
Internet. I think you said you were definitely opposed. Are you
still opposed to that?
Mr. Fields. We're still opposed to that, sir, yes.
Senator Inhofe. Since that hearing, a letter was sent to
Chairman Tom Bliley from the ACLU and maybe some other public
access advocates, challenging the policy stating that the read-
only CD-Rom and other Freedom of Information Act safeguards are
not legal. They say that as requestors, they can choose and
demand the format in which they receive the information that
the Freedom of Information Act does not allow, does not provide
for.
It sounds to me like they may have a case there. What
options do we have?
Mr. Fields. We obviously still face the position that we do
not want to post the OCA data on the Internet; we do not want
others to post it either. However, the interagency work group
that I mentioned earlier composed of EPA, FBI, DOJ, National
Institute for Standards and Technology, and the National
Security Council are working on that very issue, looking at
legal authority, what can we do to provide for protection and
ensure that OCA data does not get posted on the Internet and
get into the hands of terrorists.
That work group that is composed of all those Federal
agencies, including representatives of me and Mr. Burnham, will
be making a decision on that issue by May 15, 60 days from now,
as to what our legal authorities are to provide for protection
of data and whether or not we can assure it can be posted on
the Internet.
We will get back to you, Mr. Chairman, as to our final
judgment.
Senator Inhofe. I know you're concerned about that, Mr.
Fields. Would you put a hold on it until the 15th of May so the
information would not get on the Internet?
Mr. Fields. We do not believe we should put a hold on it.
The facilities have had 3 years to develop risk management
planning requirements. We will make a decision in plenty of
time to make adjustments if we need to. We will inform this
committee as to whether or not any legislative relief is needed
as well.
We are not there yet. We think it is premature to make that
judgment. We're committed to try to make sure we protect
legitimate national security interests and we will inform this
committee if we cannot provide such safeguards in implementing
the risk management plan program.
Senator Inhofe. Of course this could take legislation and
obviously that takes time. I think maybe we should ask for your
response to this, Mr. Burnham, as to how significant you think
this is in terms of a threat and what options you see that we
could have to minimize that?
Mr. Burnham. As I already mentioned in my opening
statement, the OCA case data, worst-case scenario data, should
not go out in any format, electronic or otherwise. In the
report that was furnished last fall to Congress, we highlighted
that one of our concerns was that the information could
potentially go out in electronic format pursuant to an FOIA
request.
Again, from a threat analysis, we would be opposed to that
information going out.
Senator Inhofe. But it could appear on the Internet as the
result of a third party. It wouldn't necessarily have to be
from the reports, isn't that correct? Anyone can put it on the
Internet that had access to the information?
Mr. Burnham. Yes, anyone could put it on the Internet. We
would be opposed to the information going out pursuant to an
FOIA request in electronic format.
Senator Inhofe. We do want to pursue that and I'm sure some
of the other members have questions along that line.
Mr. Fields, you've seen this letter from Orange County. I
guess have to ask you if it's your understanding that fuel
switching is an appropriate action to take by the EPA and if
you switch as a result of letters like this to say natural gas,
couldn't they also switch from propane to other types of
heating oil and things that would be more onerous?
Mr. Fields. We believe that there would be limited amounts
of fuel switching as a result of this program. In implementing
EPCRA in 1986, we saw that facilities, for example, that had a
10,000 pound threshold, there was a limited amount of fuel
switching that did occur, but we must keep in mind that if
people decide to go to diesel fuel or fuel oil, for example,
those sources of fuel are regulated by other EPA regulations.
For example, they have to prepare a spill, prevention and
control counter measures plan under section 311 of the Clean
Water Act. There are other regulatory requirements that also
apply if you decide not to utilize propane gas as a fuel.
Based on the last 10 year history with implementing EPCRA,
we've seen that very limited amounts of fuel switching will
occur. We think that will be the same situation to prevail here
as well.
Senator Inhofe. Thank you, Mr. Fields.
I do want to get into more detail in the second round of
questioning as to the number of facilities that would have to
be reporting on propane so that we can get responses from the
second panel.
With that, we will go to our early bird rule and ask
Senator Lautenberg for his questions.
Senator Lautenberg. Thank you very much, Mr. Chairman.
Mr. Burnham, in your testimony, you note that we understand
the competing issues at stake here between providing necessary
information to a community which allows them to make informed
decisions on local planning preparedness issues. So we are
talking about the need to have some prevention from accidents,
from injury, death that could result.
You noted that my comments about balance are important. Can
you think of any data that's on the Internet that might present
the same dilemma, that is, good for the community or good law
on one hand, but potentially could be used as a target for
terrorist activity? I can think of lots of them--locations of
facilities, all kinds of things--and I think in a democratic
society like ours it's important to make sure we do what we can
do to protect our citizens.
I was once an Albania where they have 800,000 bomb
shelters, these little things that look like a half circle all
over the country in case there was ever an invasion from the
outside. It reduced the quality of life substantially in the
country because all they were focused on was protecting
themselves from an imagined enemy.
I ask you this. Can you think here, and if this question is
a little unfair, about a situation where data that is on the
Internet that might be considered by the FBI as potentially an
invitation to take advantage of our system, bridges, things of
that nature, blow them up?
Mr. Burnham. Senator, I'm sure there probably is a lot. I
haven't really thought about other information that's on the
Internet. I'm sure there probably is information on there that
would fit into the category that you're describing.
With respect to this information, I think part of what we
imparted to the EPA was the fact that this particular
information, we would basically have the Government vouching
for the accuracy of that particular information as opposed to
just general information on the Internet.
The 66,000 chemical companies are required to give the
worst-case scenario data that would potentially go on the
Internet. In effect, the Government would be vouching these are
the chemicals there, and this is the population affected. I
think that would be the difference between a lot of the general
stuff that's just out on the Internet. In effect, you would
have the Government vouching for it.
Senator Lautenberg. Again, I'm not sure it is fair to ask
you so I'll ask Mr. Fields. Should we be doing what we can to
protect our people from the ordinary course of life activities
that could result in substantial damage, injury, death as a
Government responsibility?
Mr. Fields. I agree with you, Senator, I think it is a
clear Government responsibility. For example, the offsite
consequence analysis data has to be provided to the local
populace who live around that facility. We owe it to the
American people who live around chemical facilities to make
sure they know about the chemical risk that exists from
facilities in their communities.
Even the industry agrees that they would be willing to
share information with the persons who live around their
facilities, we will make sure the information is made available
to the State Emergency Response Commissions, the local
emergency planning committees. We owe it to the American people
to make sure they are protected and information about chemical
risk is a critical part of that equation.
Senator Lautenberg. So, Mr. Burnham, what is there that
would be on the Internet that might be an aid to a terrorist
who planned to do some damage? What could be there? We're
identifying now our right to know, we identify chemicals stored
in facilities, chemicals manufactured in facilities. What would
be particularly significant to someone who had that kind of
program in mind that would destroy a facility and the
neighborhood around there?
Mr. Burnham. With respect to this type of information?
Senator Lautenberg. Yes.
Mr. Burnham. You would have potential terrorists looking at
a target for maximum impact, you would have the population
affected, you would have where it is, the plume, just the whole
worst-case scenario. Sections 2, 3 and 4 of the RMP plans are
toxic, alternate, toxic and flammable and you would have a
blueprint for the best potential targets for a terrorist as far
as maximum impact and population affected.
Senator Lautenberg. You're talking about something that can
be activated by a terrorist attack that would cause ancillary
damage as a result of an attack on that particular site?
Mr. Burnham. From a threat analysis standpoint, yes.
Senator Lautenberg. Do you routinely, and you may have said
this and I missed it as I was reading here, pass data to other
agencies if they have an expertise in a particular area as you
pursue a review or an investigation?
Mr. Burnham. Absolutely. We would do that here too. That
was recommendation No. 2, that we would ensure this information
gets to State and local agencies in a secure fashion. We've
been working with EPA on that.
Senator Lautenberg. Thank you very much, Mr. Chairman.
Senator Inhofe. Thank you, Senator Lautenberg.
Senator Bennett, I understand you're going to be presiding
over the Senate at 10:30 a.m., so if you need to take a little
bit longer, go ahead and get all your questions in.
Senator Bennett. Thank you, Mr. Chairman.
Just a quick comment. If anyone thinks this information is
going to be disseminated in any form, electronic or read-only
disks, whatever, and then have it not get on the Internet, he
or she is tremendously naive. There are groups that are
determined just to show their defiance of regulations that will
put it on the Internet if they have to enter it by hand. Yes,
I've seen samples of that.
I come from a State where mink ranching is one of the
industries and those who feel strongly about what they call
animal rights have put on the Internet the way to build a bomb
to destroy a mink farm. Mink farms in my State have been
destroyed, people have attacked them, they've released the
minks, supposedly into the wild. The wild where the minks end
up is the freeways and they all get killed, but somehow the
animal rights people think they're doing the minks a favor by
having them run over by automobiles instead of having them stay
in the pens where they're being raised.
Let's ask the question, Mr. Fields, how vital is this
information to the people in the neighborhood? Is there any
example of someone who has suffered a worst-case scenario that
might have escaped it if the information had been made
available or is this entire conversation hypothetical?
Mr. Fields. Senator, this conversation is definitely not
hypothetical. We think it's critical that risk management
planning be available to the public and to the communities
particularly who live around those facilities.
Senator Bennett. You're not answering my question. I agree
absolutely that risk management planning should be available to
the local communities. We are talking about a worst-case
scenario where someone is sitting down and thinking of every
possible that could go wrong and putting that down on paper. Is
there an example of that kind of information being helpful or
is that just an exercise that somebody wants to go through?
Mr. Fields. It is very helpful. The local fire departments,
the local response organizations who have to respond need to
know if an accident occurred at that facility from the largest
tank or container at that facility, how big an impact could
occur, how many people could get injured or killed if an
accident did occur.
The response agencies who have to respond, the first
responders who come on the scene need to know what kind of
chemicals are there, what the impact of those chemicals could
be.
Senator Bennett. I don't argue with you that those people
need to know. I'm talking about the community as a whole,
average citizens. Do they need to know the absolute worst-case
scenario if their fire department is properly informed, if
their police department is properly informed? Does the suburban
household need to know the worst-case scenario that could occur
or can't you take care of public safety by saying, you have a
plant here that has problems? That's obvious information to
everybody and detailing how many people could be killed and
what the exact amount of the thing is to somebody other than
the emergency people?
Mr. Fields. I believe that the American people who live
near a chemical facility or any chemical complex ought to be
aware of the chemical risks they are buying into when they live
in that community, when they move into that community, so I
believe it is appropriate to inform the people there as to what
risk they're buying into when they move into a community.
They don't have to have as detailed knowledge as the
responders who have to respond to a release event, but I
believe we owe it to the public to let them know what risk they
are living with and inheriting when they move into a community
near a chemical plant.
Senator Bennett. I agree with you that they need to know
there is a risk and I'm perfectly willing to give them the risk
but you just said in your comment, they don't need the detail
and it's the detail that we're talking about.
I won't beat this one further. Let me get on to another
subject and that's your decision to list propane as one of the
items. You said when the chairman asked you about switching to
alternative fuel, well, the alternative fuels are all regulated
as well. Do you think propane is not regulated? It's one of the
most heavily regulated substances we have. It's just not
regulated by the EPA, so the question arises, is this a turf
battle? Is EPA trying to reach out and take over regulation
that is currently being conducted by other agencies?
Mr. Fields. Definitely not. We only want to make sure that
propane that should be regulated--we've exempted a lot of
propane sources, more than 2 million propane sources in this
country and we're only capturing maybe 33,000 of those. We have
provided a lot of relief for the small people that are there.
Distance requirements we put out a couple of weeks ago are
going to exempt even more of these farmers and small facilities
from the regulatory requirements.
We only believe that those propane sources that are the
most significant that could really cause a big event and really
injure and kill people, as they've proven over the years, ought
to be the ones to be regulated under the risk management
program. We want to make sure we don't impose any new
regulatory requirements for propane sources above those that
are absolutely necessary to make sure the American people are
protected.
Senator Bennett. You're imposing requirements that will hit
rural farmers in my State. Rural farmers who have a record of
safety, a record of compliance with the regulations that are
currently there, to my knowledge--I'd be happy to be
contradicted if you could give me some information--there has
not been a rash of accidents. Indeed, there has not been any
noticeable series of accidents in my State among farmers who
have propane tanks.
You've gone down to a level that would involve a farmer,
and indeed some residents, and these people are already
complying with heavy regulations for safety, they already have
a sterling record of safety, and you're coming along saying,
no, we've got to do something in addition.
I want to know why in addition? I want you to show me a
record of failure of the present regulatory scheme that
justifies putting in an additional regulatory scheme? If you
can show me that, then I'll be with you because I don't want to
endanger anybody else.
Mr. Fields. I think, Senator, that most farmers in your
State are going to be exempted. We've exempted all the tanks
that are less than 10,000 pounds or 2,380 gallons. Most farmers
have a 500 or 1,000 gallon tank. We've told people that if you
separate those tanks by certain distances, they are not covered
by the RMP regulation.
Senator Bennett. You're not answering my question.
Mr. Fields. I'm going to get there. The two points I made
before you came in were this. We are going to work with the
National Fire Protection Association, we're going to work with
industry and make sure that we try to modify NFPA-58 because
NFPA-58 right now does not include any requirement for hazard
evaluation, for example, or offsite consequence analysis and
make sure that those requirements that are in NFPA-58 would
then apply. We would defer to NFPA-58 if we can get NFPA-58 to
be consistent with RMP.
Further, I think I said this before you came in, we're
exploring, because of the concerns that have been raised,
whether or not we want to give a high threshold for the propane
sources like small farms, small businesses that goes above the
10,000 pound threshold that is there now.
If we conclude that, we intend to make that decision within
the next 30-60 days and we would immediately implement a stay
of the regulation as it applies to those propane sources that
would be covered by that new threshold. Then we would propose
an amendment to the RMP rule that would be applicable
specifically to those propane sources that we decide to further
exclude from regulation under the RMP rule.
So we're carefully looking at only capturing those propane
sources that could cause a significant impact to people
offsite, off the property where that facility is located. We
are reevaluating the universe of people currently captured and
looking at whether we can provide further regulatory relief for
propane facilities.
Senator Bennett. I'm delighted to know that you're
reevaluating but you still haven't answered my question.
Mr. Fields. All right. Go ahead. I'm sorry.
Senator Bennett. Do you have evidence of failure of the
current regulations that would require additional regulations
to be put on?
Mr. Fields. We believe that the accident history that we
have, Senator, more than 1,000 accidents in the last 10 years
involving propane sources, 43 major accidents in the last 9
years, 8 major accidents in 1998, an accident that occurred 2
weeks ago where two people were killed involving propane. We
have an accident history and characteristics of high
flammability, NFPA-58 standard of 4. Propane is one of the most
flammable hazardous substances around. So yes, we believe we
have a basis for regulating propane. We want to make sure we
only regulate those propane sources that are the most
appropriate and that pose the greatest danger to the American
public.
Senator Lautenberg. Don't we have a point of order here?
The clock has been running for some time.
Senator Bennett. I apologize. I'll pursue this with you.
Senator Inhofe. I would inform the Senator from New Jersey
that since Senator Bennett has to preside over the Senate, I
was allowing him to have two rounds at once, but if you object
to that, we'll excuse him at this time.
I would say, Senator Bennett, that I plan to pursue this in
the second round of questioning because we have on the second
panel the President of the American Farm Bureau and I'm going
to ask Mr. Fields to stay here during his presentation because
I think we need to more thoroughly evaluate the effect on the
American farmer. That's what we intend to do.
Mr. Fields. I will definitely do that, Senator.
Senator Inhofe. Senator Graham?
Senator Graham. Mr. Chairman, I'm going to pick up this
same line of questioning, so maybe we'll carry it a bit
further.
The statute states that ``In listing substances, the
Administrator shall consider each of the following three
criteria: (a) the severity of any acute adverse health effects
associated with the accidental release of a substance; (b) the
likelihood of accidental releases of a substance; and (c) the
potential magnitude of human exposure to accidental releases of
the substance.'' I assume that analysis was done as it relates
to propane?
Mr. Fields. Yes, Senator, we did. Let me briefly summarize
how we addressed each of those criteria in developing a basis
for regulating propane.
We evaluated the criteria. First of all, we looked at the
acute adverse health effects the propane may cause. The
accident history is what proved to us that criteria was
satisfied with the major accidents that have occurred in this
country involving propane. We believe it is very clear it has
acute, adverse health effects that need to be looked at as well
as accidents that have occurred in other countries as well.
Second, in looking at the likelihood of accident releases,
we evaluated propane and saw that it is one of the most
flammable of all substances, meeting the NFPA rating of 4. So
it is something that definitely has the likelihood of an
accidental release.
Last, the potential magnitude of human exposure, we noted
that propane is among the most ubiquitous of all chemicals on
the list of chemicals we're regulating.
So in making a judgment as to whether or not propane
satisfied the statutory criteria, we did and we looked at this
irrespective of fuel use, of how that chemical was utilized. We
believe strongly the statutory criteria are satisfied for
propane.
Senator Graham. On this first criteria, which is the
severity of any acute, adverse health effects associated with
the accidental release, what were the acute, adverse health
effects that you found associated with the accidental release
of propane?
Mr. Fields. We found that propane, looking at the 1,000
accidents that have occurred, numerous instances where people
died, we found situations where people were injured by propane
releases, other situations where we had to evacuate nearby
communities from around propane facilities that had exploded,
caught on fire. That body of data is what we looked at in
making a judgment that there was the possibility of severe,
acute, adverse health effects caused by propane.
We looked primarily at the accident history over the last
10 years involving propane. Even there, we think there is
underreporting. Propane is not required to be reported under
the 1980 Superfund law or the 1986 Emergency Planning Community
Right-to-Know Act. This data we have is just provided to us
anecdotally, not because anyone is required to report it to the
Federal Government. We became aware of it through State and
local government sources, newspaper reports, et cetera.
We believe there are probably more releases of propane than
we are even aware of in this country.
Senator Graham. I think the purpose of this statute, as I
read it, was to deal with public health type issues as opposed
to events that would be associated with fires and those types
of consequences, and accidental release which are normally the
responsibility of State and local agencies to regulate, monitor
and contain. Do you define acute, adverse health effects as
subjecting persons to the possibility of fires?
Mr. Fields. The possibility of injury or death due to
sudden explosion, fire, flammable situations, yes, we believe
that is included. We believe, for example, in Congress'
direction to us in 112(r), Congress succinctly said they wanted
vinyl chloride to be included, which is a flammable substances;
Congress specifically said they wanted ethylene oxide to be
included, which is a flammable substance on the initial list.
So congressional direction alone made clear that Congress
intended for flammable substances to be included on the list of
substances we regulated under our risk management plan rule.
We looked at congressional direction on this as well.
Congress directed us to include certain things that were
definitely flammable substances on the initial list of
hazardous substances regulated pursuant to the risk management
plan rule.
Senator Graham. I'm looking at the Federal Register of June
20, 1996, page 31669 where there is a statement to the effect
that ``The Environmental Protection Agency has proposed to
delist explosives from Section 68.130,'' which I assume is the
section that contains substances under this hazardous substance
legislation. ``Consequently, explosives are not addressed in
this rule.'' Is that the current policy, not to list
explosives?
Mr. Fields. Explosives are not includes at the current time
in the list. We included, when we developed this regulation,
the most flammable substances by the National Fire Protection
Association, those that have the greatest accident potential,
and there are 77 acutely toxic substances and 63 flammable
substances on the list of 140 we regulated.
This is David Spites on my staff and I'll let him talk
about the explosives.
Mr. Spites. Senator, we originally listed the high
explosives. They were included in the original list. We
subsequently delisted them for various reasons, which I think
we explained in the Federal Register you're referring to or a
subsequent one. One of those was that another Federal agency
basically did cover high explosives in detail except for a
couple of things. Some of those were notifying the community
and making a public report of what chemicals they and
satisfying the right-to-know requirements.
As part of a lawsuit, we settled the case by delisting high
explosives with the proviso that the Bureau of Alcohol, Tobacco
and Firearms regulations covered all the other aspects that
were necessary under RMP except for public disclosure. The
explosives industry voluntarily agreed to make that public
disclosure that would make it equivalent to the RMP.
We don't have quite the same thing with the flammable
substances, with another comparable Federal agency requirement
and indeed State requirements.
Senator Graham. So it's your statement that the reason that
propane is listed is because you do not consider it to be
adequately regulated by other agencies at the Federal, State or
local level?
Mr. Fields. We don't believe that the propane requirements
that apply at the Federal, State and local level as well as the
industry standard contain all the statutory requirements that
Congress mandated be included in the regulation of substances
regulated by the RMP rule. For example, the risk management
plan requires that there be a hazard evaluation in the statute
which includes an offsite consequence analysis and accident
history. That is required by statute. These other Federal
requirements do not include such an animal, for example.
Adding to the situation on explosives, as we said at the
beginning, if we can work with the industry, for example, and
get NFPA-58 modified to include those elements like all the
requirements Congress mandated in the risk management plan
rule, we'd be willing to defer in the future to NFPA-58, for
example, and say we will defer to that standard in regulating
propane or regulating these sources rather than our regulation,
but we've got to make sure the NFPA standard satisfies the
statutory requirements for what a risk management plan
requirement should contain. We're willing to work with industry
on that point.
Senator Inhofe. Thank you, Mr. Fields.
We'll have another round of questions in just a moment.
I want to pursue this a little bit, what was brought up by
Senator Bennett and then also by Senator Graham. You said a
minute ago that you're estimating that 33,000 facilities would
be reporting on propane, is that your estimate now? That's
grown by 5,000 in the last 2 days, so your trend line is
starting to work in that direction.
How do you account for the fact that you're saying 33,000
when the study that the industry had--and I know the American
Farm Bureau, which is on the next panel, will want to comment
about that--said that it would affect 330,000 farmers, 350,000
industrial sites and over 300 commercial facilities. That's
over a 1 million reports. How do you respond to that?
Before you respond, let me tell you why because I'm going
to get into the cost of it too. I can remember when this
subcommittee was dealing with the proposed rule change on
ambient air on particulate matter and on ozone. The cost that
the EPA at that time said to comply with it would be $6
billion. The President's Economic Council then said it was
going to be $30 billion. Then the Reason Foundation in
California said it would be $120 billion. I think we're kind of
starting that same trend here.
My concern is for the American farmer, particularly in my
State of Oklahoma, where it's a crisis out there. One more
regulation is just what they don't need, so I'd like to have
you respond as to how you come up with only 33,000 facilities
having to report when it's estimated some 330,000 farmers alone
would have to report?
Mr. Fields. We agree with the overall estimate of 350,000
industrial sites being out there, hundreds of thousands of
farms, 1,000 commercial facilities that have propane. I have no
issue with that type of data. The fact is I think there is a
lack of communication. People don't fully understand that we've
exempted the overwhelming majority of those facilities from our
requirements. The threshold level, a lot of farms have 500
gallon tanks. The threshold alone is exempting most of those
tanks.
We then have gone forward and put forward a distance
requirement that further exempts many more tanks. So we believe
that 33,000 is a good number.
The reason it's grown by 5,000 very briefly is that we have
discovered information over the last couple of years after we
put out the rule where we identified those people we believe
are legitimately covered and we came up with 33,000, 33,000 of
the 69,000 facilities now that are regulated under RMP.
We believe the average small farmer can fill out an RMP, a
five page form.
Senator Inhofe. I don't want to interrupt, Mr. Fields, but
we're using up the clock and we're not getting anywhere. It's
my understanding that when the industry had its estimate or its
committee going into this, they took into consideration all
these things you're talking about and they still said it would
be 330,000 farmers involved in this.
You're saying you're exempting and it's kind of like the
EPA during the ambient air debate which kept saying we're
exempting this group, we're exempting the farmers, we're
exempting others, and they weren't. Aren't we kind of following
that same line here?
Mr. Fields. All I can tell you, Senator, is we don't agree
with those data. There are 350,000 industrial sites, that's
correct. The overwhelming majority of those industrial sites
are not covered by regulations.
Senator Inhofe. I think I already asked that you will stay
here for the second panel when we hear from the president of
the American Farm Bureau.
Mr. Fields. Yes, sir.
Senator Inhofe. I think it might be interesting because I
would rather stop this train here than wait until we got into
the mess that we got into on ambient air.
On the cost thing, what is the cost you're anticipating or
have you done an analysis of that, the cost for the compliance
and the reporting?
Mr. Fields. We've developed an estimate for what the cost
of the RMP overall would be. We're estimating that the cost of
the RMP for the last 3 years is $118 million per year. Now the
regulations will become effective in June. We estimate the cost
will be $75 million per year for the next 30 years as compared
with the benefits of $174 million per year for the next 30
years, which makes this a net benefit regulation. Those are our
latest estimates of the cost of the RMP rule.
Senator Inhofe. What about the cost to each farmer or are
you going to say they are exempt?
Mr. Fields. For a farmer who is covered, for a few thousand
of the 33,000 sources out there that we believe are regulated,
we're talking a few hundred dollars per RMP up to $2,000. That
would be the cost for an average farmer filling out and
complying with an RMP rule.
Senator Inhofe. The cost of 11 of the 13 engineering firms
that went through this said the cost would be somewhere between
$2,000 and $20,000.
Mr. Fields. We totally disagree. We see on the low end, the
cost being a few hundred up to $2,000 max in terms of what the
cost would be.
Senator Inhofe. Mr. Fields, can you look at this chart over
here and can you tell me what parts of risk management plan
regulation are not covered under other laws on the chart?
By the way, I want to make a comment. In justifying the
propane, you talked about vinyl chloride. It's true that is an
explosive, but that's also toxic, isn't it?
Mr. Fields. Also toxic, that's correct.
Senator Inhofe. Is propane toxic?
Mr. Fields. Is not toxic.
Senator Inhofe. Will you look at this chart over here and
tell us what is not covered by other laws on this chart?
Mr. Fields. Looking at that chart, the NFPA-58 column, for
example, is not correct. I think I said in my testimony, the
NFPA-58 does not have requirements that cover hazard assessment
which is not correct. It does not include a requirement for
worst-case analysis or a 5-year accident history, which is
required by the statute that Congress gave us to implement. So
that's not correct.
The NFPA-58 does not satisfy all the risk management
planning requirements for training.
Senator Inhofe. I think the bottom line, before I'm
reminded by Senator Lautenberg that my time has expired, I
would just say the bottom line is that you think we need more
regulation then?
Mr. Fields. We think we need to regulations that are out
there now, the risk management planning regulations. We believe
those are appropriate and necessary regulations for the
facilities being regulated by those regs, yes.
Senator Inhofe. Mr. Burnham, I didn't mean to leave you
out. I'm going to go to Senator Lautenberg, but I have one last
question I'd like to ask you about the security.
Senator Lautenberg. Mr. Chairman, I promise you I'll not
take the fully allotted time but I did have a couple of
questions that arose as I listened to some of the questioning
that was taking place.
One of the questions put out by our colleague from Utah,
and I'm sorry he's not here and I hope staff will be here
because I think it's important, Mr. Fields, that we establish
the fact that EPA doesn't take its staff, assemble them and say
now, let's see how we can harass people. Let's see how we can
screw up the works for those who work for a living, farmers, et
cetera. Let's see how much of a nuisance we can be. We want to
talk about things that are successful, that have helped protect
our air, helped protect our water, helped protect our people,
then that I think is a legitimate exercise.
I urge you, don't be bullied into anything else. You're now
sitting as an acting and I hope what I say will not in any way
deteriorate from your outstanding credentials for this job or
your right to have it.
I don't approve of any case, aspersions aside, that say big
farms have been destroyed, or that people burned down buildings
in a ski area because they are pro environment, that's
horrible, it's criminal and I wouldn't tolerate it no matter
what, and I love a clean environment. That's my legacy to my
children and my grandchildren. That's why I'm on this
committee.
But we don't have many farms in New Jersey. We have people,
we have the most densely populated State in the country. When
the question is asked, why do they have a right to know, why
should they be asking these questions, why should they be told
the answers? I'll tell you why, because places like the Exxon
refinery in New Jersey have put out warnings that if there is
this kind of an event or that kind of an event, take your
children down the cellar, open your windows, don't open your
windows, close your doors, cover their faces with wet clothes.
Why shouldn't they know? Why should they be prevented from
protecting a child or an elderly parent in a household?
It's outrageous the insinuation that, well, let minks go
out on the highway and get killed. I don't like that activity a
bit. I'm in Utah a lot and I happen to love the State and I
love the environment out there.
But I would tell you this, if you ask someone whether or
not a mother or father working in a mill, like we had in New
Jersey a few years ago, when the plant exploded and the people
who ran the plant didn't know what to do and the people in the
neighborhood didn't know what to do, as flames consumed
building after building and chased people from their homes or
the Edison Gas explosion that just took place and was recently
resolved.
The one thing I think is critical to have here is an
understanding that you, your colleagues, and I don't care what
department of Government, is not out there to harass the
citizens. If we disagree, let us disagree but the insinuation
or the aspersion that all you're doing is sitting there
twiddling your thumbs while you think of ways to make life
difficult.
I want my children and my grandchildren protected as much
as I can. I don't want them to go to the water tap and possibly
injure their health as insinuated in Tom's River, New Jersey,
and if one read the book, ``A Civil Action''--I just had a
meeting with the attorney on that case up in Woburn, where a
child we had at this very table, Mr. Chairman, before your
membership, a man who talked about the poisoning of his child
and the boy died and the father said, but the other child in
the house, the other brother said, why is it that in our house
we never laugh. In our house all we do is cry. What's the
matter with us?
Jimmy, the boy who was sick, was dying and that's why the
family couldn't gin up some grins and smiles and be happy. He
pulled out a stack of bills, the man was making $35,000 a year
and he had $150,000 worth of doctor's bills.
I'm sorry but I just had to respond, Mr. Chairman. I know
you too well and I know that you're a serious man and I know
that you don't think that mischief is being made and I respect
your willingness and desire to challenge anything that's put
out there that you don't agree with.
Senator Inhofe. That's what this is all about and that's
what we intend to do.
Senator Lautenberg. Thank you very much.
Senator Inhofe. I would have to say also that I have a
whole bunch of kids and grandkids and I'm concerned about them
and their future of living under overburdensome regulations and
bureaucracies and I plan to conduct myself accordingly, Senator
Lautenberg.
Senator Inhofe. I'll submit my question to you, Mr.
Burnham, for the record since we're running a bit late on this
panel.
At this time, we'd ask the second panel come forth. It
consists of Mr. James Bertelsmeyer, President, National Propane
Gas Association, and Mr. Dean Kleckner, President, American
Farm Bureau.
Thank you, gentlemen, for being here. I guess we'll start
with Mr. Kleckner from the Farm Bureau standpoint. We want your
whole statement. We're going to try to comply with our time
requirement, so in the event your statement is too long, the
entire statement will be made a part of the record. The same
with you, Mr. Bertelsmeyer.
If you will go ahead with your opening statement, we will
proceed with the questions.
STATEMENT OF DEAN KLECKNER, PRESIDENT, AMERICAN FARM BUREAU
Mr. Kleckner. Thank you, Mr. Chairman.
I'm Dean Kleckner. I'm a corn, soy bean, hog farmer from
northern Iowa. I'm the elected President of the Farm Bureau
Federation which is the Nation's largest farm organization.
As you know, propane is an important commodity in rural
America, found on 660,000 farms, widely used in various ag
applications, including crop drying, feeding livestock
facilities, heating homes, and that's on my farm. I'm a 350
acre farmer and I use it for those three things on my farm.
Approximately 1.5 billion gallons of propane are used for
ag purposes. We strongly oppose the inclusion of propane as a
covered substance subject to the Environmental Protection
Agency's Risk Management Program. We believe EPA failed to
consider the significant adverse effects which these
regulations will have on hundreds of thousands of farmers
nationwide.
Going back just a bit, by adopting section 112 of the Clean
Air Act amendments of 1990, Congress specifically sought to
reduce the risks associated with accidental and catastrophic
release of toxic chemicals. Commendable. We're for that.
It is our firm belief that the original intent of Congress
was to address substances used in manufacturing or other
chemical applications rather than those used as a fuel source.
Unfortunately, EPA's decision to include propane coupled with
its decision not to grant a fuel use exemption has the effect
of extending these regulations to consumers who use small
amounts.
The RMP rules require farmers and other propane users of
more than 2,358 gallons--that's the 10,000 pound area--2,359
gallons of propane storage to complete and file risk management
plans by June 21, 3 months from now. A typical installation on
a small farm will likely consist of anywhere from 2,000 to
5,000 gallon propane tanks, often hooked together, piped
together for corn drying, for example, as on my farm.
Having only three such tanks would bring the farmer under
the requirements of the RMP program. It's understandable that a
significant percentage of users will try to lawfully avoid the
burden of compliance by limiting the volume of onsite storage.
I'm going to look at it on my farm if this thing goes through.
This will result in an increase in the number of propane
deliveries and shift the emphasis from low risk, stationary
storage, to the higher risk transportation.
We believe the agency has failed to consider the vast
extent to which propane is already regulated. That was brought
out in the testimony. It failed to take into account the fact
that propane installations are designed, constructed,
maintained in accordance with the standard for the safe storage
and handling of propane established by the National Fire
Protection Association.
It just appears to me that EPA thinks the industry is
unregulated unless they are regulating it. Congress understood
the importance of avoiding duplication and ensuring cross-
agency conformity when it passed the Clean Air Act amendments
in 1990 by instructing EPA to coordinate requirements with OSHA
and DOT.
In 1992, OSHA established its onsite program known as the
Process Safety Management Program. In doing so, it granted a
fuel use exemption. When faced with the same option on its RPM,
EPA decided to oppose such an exemption. We believe this action
in direct violation of the clear language of the statute.
The risk management program is complicated and highly
technical. Risk management plans which must be filed by June 21
are based on complex, chemical release models. The final rule
published by the EPA in June 1996 is 62 pages in length. EPA's
guidance document for propane users is 24 pages. The general
guidance document for risk management plans is two inches
thick.
We are aware of EPA's contention that in the final
analysis, risk management plans will only be a few pages in
length. However, it will take dozens of hours to collect and
organize the appropriate data. Farmers are just going to throw
up their hands, probably after they finish throwing up when
they look at it in the beginning. They won't be able to
understand it.
Because of the highly technical nature of the program, we
believe that most farmers will find it necessary to contract
with an RMP service provider at an average cost of several
thousand dollars per site. If only 10 percent of the 660,000
farm users of propane are required to file a plan, and we've
already heard it may be 330,000, but if only 10 percent are
required to do it, the total cost to the farm economy could
exceed $100 million.
Times are tough on the farm. Now is not the time to place
another $100 million compliance burden on farmers. While it
likely that many rural propane users will fall into the least
rigorous compliance category, Program I, the economic impact
will remain high since a significant up-front cost will be
incurred to determine the appropriate program level.
I heard them say this morning, that we would be exempted.
Maybe in the end we will, after we spend $1,000 or $2,000 to
find out we're exempted. I'm not going to risk it. I'll tell
you if you ask me what I'm going to do if this thing goes
through. EPA estimates 66,000 sites are covered under the RMP
nationwide, that 28,000 involve propane. In short contrast to
EPA's calculations, North Carolina's Department of
Environmental Resources estimates there are 11,000 farm sites
in that State alone. So I would agree with EPA their first
estimate is wrong.
We understand in recent weeks EPA has recognized its
estimate of the number of affected farms was low. We appreciate
and welcome their overtures and believe that may suggest a
willingness to reduce the burden which RMP will place on
farmers but we are concerned that the proposal floated to date
does not sufficiently address the issues presented in our
testimony.
I would ask your indulgence, Mr. Chairman, to include in
the record a letter from eight ag organizations whose views
support the testimony given here today.
Senator Inhofe. Without objection, that will be made a part
of the record. Also, as a part of the record, without
objection, since there is no one here to object, I would want
to include the letter from the ACLU to Congressman Bliley.
[The information referred to follows:]
March 5, 1999.
The Honorable Thomas Bliley,
Chairman, House Commerce Committee,
United States House of Representatives,
Washington, DC 20515,
Dear Chairman Bliley: Thank you for the February 24, 1999 response
to our letter outlining our concerns with proposals to limit public
access to information concerning accidents at chemical plants (EPA's
unclassified Worst Case Scenarios data). We are pleased to learn from
your letter that you do not intend to amend the Freedom of Information
Act (FOIA) and that you have not ``advocated denying public access to''
Worst Case Scenario (WCS) data. However, we remain troubled by the
possibility of limiting or denying access to publicly available
information in certain forms or formats and we urge you to hold public
hearings on any specific proposals to do so.
In your letter, you specifically asked us to respond to EPA's
suggestion that a CD-ROM that ``could not be copied, duplicated, or
posted on the Internet'' may be a legally and technically feasible way
of providing the WCS information to FOIA requesters. Although the
technology to create a CD-ROM whose contents cannot be copied is not
currently in the commercial marketplace and would need to be
investigated in order to make a final judgment, it is our belief that
such a CD-ROM would not satisfy all FOIA requests for the following
three distinct reasons:
1. FOIA allows the requester to choose the format
The Electronic Freedom of Information Act (EFOIA) amendments,
passed overwhelmingly by Congress in 1996, state that when responding
to a FOIA request, ``an agency shall provide the record in any form or
format requested by the person if the record is readily reproducible by
the agency in that form or format. Each agency shall make reasonable
efforts to maintain records in forms or formats that are reproducible
for purposes of this section.'' 5 U.S.C. 552(a)(3)(B).
The courts have held that the only exception to this clause is when
an agency can prove that the existing record could not readily be
reproduced. Chamberlain v. U.S. Department of Justice, 957 F.Supp. 292,
296 (D.D.C.) (certain ``viscorder charts'' could be made available for
review at FBI HQ due to exceptional fact that they might be damaged if
photocopied), aff'd 124 F.3d 1309 (D.C. Cir. 1997) (unpublished table
decisions) (summary affirmance).
The EPA will be receiving the WCS data in an electronic format and
store it in a central data base. Therefore, the information will be
available in readily reproducible forms and formats other than the CD-
ROM and must be made available to FOIA requesters.
2. FOIA does not permit conditioned disclosure
FOIA ``speaks in terms of disclosure and nondisclosure. It
ordinarily does not recognize degrees of disclosure, such as permitting
viewing, but not copying, of documents.'' Julian v. U.S. Department of
Justice, 806 F.2d 1411, 1419 n.7 (9th Cir. 1986), aff'd, 486 U.S. 1
(1988); Berry v. Department of Justice, 733 F.2d 1343, 1355 n. 19 (9th
Cir. 1984). Similarly, providing exempt information to a requester
while limiting his ability to further disclose it through a protective
order is ``not authorized by FOIA.'' Schiffer v. FBI, 78 F.3d 1405,
1410 (9th Cir. 1996) (reversing conditional disclosure order of
district court).
Part of the reasoning is that FOIA mandates disclosure to ``any
person.'' If records or information are not exempt and must be
disclosed, any person is entitled to them. The main exceptions to this
principle are for Privacy Act records and confidential business
information, neither of which applies in this case.
It should also be noted that copying, duplicating, or posting
restrictions on the WCS data would also raise significant copyright
issues. Current law does not allow the government to hold copyright or
place copyright-like restrictions on public information. Copyright law
clearly prohibits protections for ``any work of the United States
Government'' 17 U.S.C. 105. Yet perhaps more applicable to this case,
the Paperwork Reduction Act prevents agencies from restricting or
regulating ``the use, resale, or redissemination of public information
by the public'' 44 U.S.C. 3506(d)(4)(B). Putting aside the
technological questions for the moment, dissemination of WCS
information in non-duplicable format such as a secure CD-ROM would be a
clear restriction on the public's ability to use and redisseminate this
public information. Such restrictions would violate existing law.
3. The national security exemption of FOIA does not apply to this
unclassified information
FOIA does allow for exemptions when the data is ``in the interest
of the national defense or foreign policy'' 5 U.S.C. 552(b)(1). By
passing the Clean Air Act of 1990, Congress sought to promote the
reduction of the risks of deaths and injuries from accidents at
chemical plants, determining that the benefits of WCS information would
outweigh harm to national security.
Section 112(r)(7)(B)(iii) of the Clean Air Act states that WCS
information ``shall also be submitted to the Chemical Safety and Hazard
Investigation Board, to the State in which the stationary source is
located, and to any local agency or entity having responsibility for
planning for or responding to accidental releases which may occur at
such source and shall be available to the public under section 114(c).
Section 114(c) requires ``any records, reports or information . . . be
available to the public'' except for information (other than emissions
data) that is considered a trade secret.
Given that the Clean Air Act is clear that WCS information is not
classified for national security purposes, a FOIA exemption would not
apply. Moreover, there are compelling reasons to make such information
available. In the wake of the recent chemical disaster in Allentown,
PA, where citizens were killed and communities evacuated, there can be
no doubt that such health hazards are posed by the threat of chemical
accidents and are more real than the potential threat of terrorist
attack. WCS data give communities and workers the ability to plan,
compare and push for measures to avert such accidental disasters. In
fact, in passing the EFOIA amendments, Congress pointed to FOIA's
ability to contribute to efforts to reduce ``serious health hazards''
like these.
Lastly, there is no data to suggest that disclosure of WCS
information might lead to a terrorist attack on a plant. In fact, the
only in depth study pointing out potential, but unproven, risks has
been called into question a contractor that oversaw the study (see
attached) and is under review by the General Accounting Office.
Limiting the availability and utility of WCS would be contrary to the
intent of FOIA and the Clean Air Act.
As we mentioned in our February 9, 1999 letter, any proposal to
limit the forms or formats in which WCS information would be available
to the public would set a terrible precedent. Such a precedent could
undermine the intent and success of FOIA in ensuring public health an
safety, by encouraging Members of Congress to carve out exceptions to
the right of the public to use FOIA for vital public information.
Therefore, we urge you once again not to put forward any such proposal.
If, however, legislation is introduced regarding the availability of
WCS information, we ask you to ensure that there is a full hearing with
input from all the affected communities, including public interest
groups, journalists, and other frequent FOIA requesters.
Sincerely,
Robert L. Oakley, Washington Affairs Representative,
American Association of Law Libraries.
Laura Murphy, Director, Washington Office,
American Civil Liberties Union.
Jerry Berman, Executive Director,
Center for Democracy and Technology.
Stanton McCandlish, Program Director,
Electronic Frontier Foundation.
Gary Bass, Executive Director,
OMB Watch.
Senator Inhofe. If you could conclude your remarks as
quickly as possibly, Mr. Kleckner, I'd appreciate it.
Mr. Kleckner. I have two sentences left.
In summary, EPA's risk management program, as it pertains
to propane, is unsafe, contrary to the environmental goals
established by the Clean Air Act and will adversely affect
hundreds of thousands of farmers nationwide.
We urge this committee to act quickly to avoid these
consequences before the June 21 deadline. The bottom line is,
Mr. Chairman, we're just running out of time.
Thank you.
Senator Inhofe. Thank you, Mr. Kleckner.
I do have a question to ask you at the appropriate time.
Mr. Bertelsmeyer?
STATEMENT OF JAMES E. BERTELSMEYER, PRESIDENT, NATIONAL PROPANE
GAS ASSOCIATION
Mr. Bertelsmeyer. Thank you, Mr. Chairman.
Before I get started, I'd like to request permission to
submit a number of documents that support my testimony and ask
that be included in the record.
Senator Inhofe. Without objection, they will be included,
Mr. Bertelsmeyer.
Mr. Bertelsmeyer. My name is Jim Bertelsmeyer and I'm
chairman of Heritage Propane, headquartered in Tulsa, Oklahoma.
In my real life, I run a propane marketing company but I appear
before you today as President of the National Propane Gas
Association.
NPGA represents 3,700 companies of all sizes that market
gas and equipment in every congressional district. Of those
3,700, less than 100 are multiplant, multistate operators. The
balance of 3,600 are mostly small mom and pop operators. These
aren't the typical sized companies that come to mind when you
think about the oil and gas industry.
As President of NPGA, I've spent the last 7 months
traveling this country attending State and local propane
meetings and conventions where I've heard about the many calls
companies are getting from customers to come pick up our tanks
before the RMP ruling deadline. This is the primary issue for
my industry and our customers and the reason that I'm here
today.
I want to lave you with three thoughts. The RMP rules
duplicate and extensive, incredible safety infrastructure that
already exists in all 50 States.
Two, the RMP rules will decrease safety in the propane
industry because customers will demand more and smaller
deliveries as they attempt to downsize their storage to get
under the threshold limits of the regulation. This action also
hampers our delivery efforts in critical months because of the
many more deliveries that will be required.
Third, the RMP rules harm the environment because customers
will switch to less environmentally sound alternatives rather
than comply with the RMP rules. This will harm the air quality
in this Nation and the economic growth of the industry that I
represent.
All propane facilities are subject to regulation in all 50
States through building and fire codes. These codes, without
exception, adopt or incorporate the substance of the National
Fire Protection Association Safety Standard 58, NFPA.
State agencies, code inspectors and fire marshals require
propane storage facilities to be designed, constructed and
operated safely. The propane industry also complies with
numerous other Federal requirements including DOT's hazardous
materials regulations, OSHA's workplace safety rules and EPA's
community right to know laws.
We take our safety responsibilities very seriously because
safety is the major factor in a customer's decision to use our
product. From our vantage point, when the rubber meets the
road, we believe that EPA's RMP rules will have unintended
consequences that reduce safety and actually harm the
environment.
Many propane customers will seek to reduce the amount of
propane they store at the levels below the threshold for
coverage. This will not, however, reduce their demand for
timely deliveries. What you will see is trucks making many more
small deliveries rather than a safer alternative of making
fewer large deliveries.
Complicating this situation would be the bad weather that
often accompanies the industry's busiest time with the winter
heating season. In fact, when I heard I was going to be given
the opportunity to speak before this subcommittee, so as not to
relate from an ivory tower perspective, I asked my employees to
let me know of the actual instances where customers have
already called and asked us to either downsize or remove their
tanks as a result of the regulations which are more than 3
months away.
Understand, my company sells only about 1.6 percent of the
propane sold in this country. I fully concede that this was not
a scientific study but it will give you an order of magnitude
feel for the problem I'm trying to relate.
My employees reported 316 customers who have requested
their storage be removed or downsized or threaten to switch to
another fuel. This represents about 14 million gallons of
annual usage or about 10 percent of our annual sales. There are
many more who are not even yet aware of the full impact so I
feel that number to be very conservative.
Fuel switching makes air quality worse because customers
switch to less environmentally desirable fuels. Companies are
switching fuels because the RMP rules are very complex and
burdensome and because they come with a high public relations
price tag because of the worst-case impact zone implications
the regs require to be defined. These are the real world
impacts of these RMP rules.
Reduction in air quality may be the most ironic aspect of
the RMP rules. Propane is a federally approved alternative fuel
under both the Clean Air Act and the Energy Policy Act of 1992.
My industry actively worked to enact both of these laws. Now it
appears that support seems to be coming back to bite us.
The RMP rules are an expensive and duplicative paperwork
exercise that will not improve safety. In fact, in our
judgment, RMP will actually compromise safety and will drain,
we believe, approximately $1 billion out of the pockets of my
customers and my industry. Keep in mind we're talking about a
$10 billion industry, so 10 percent.
In conclusion, Mr. Chairman, EPA's RMP rules should not
cover propane. It is our view that Congress never intended
flammable fuels to be covered. This is not an exotic chemical.
Everyone who has ever lived in a rural area knows about
propane. Most all, even in fact, have a tank in their yard.
These same regulations exempt dynamite. So figure that out.
Thank you for this opportunity to testify and I'd be happy
to answer any questions.
Senator Inhofe. Thank you, Mr. Bertelsmeyer. I appreciate
your coming in from Tulsa and joining us.
Mr. Kleckner, you made the comment if you want to ask me
what I'm going to do if this thing goes through, I'll tell you,
well, I'm asking you.
Mr. Kleckner. I'm going to do just what Mr. Bertelsmeyer
said some of his customers have been doing. I'm going to call
him up, tell him to come out and get a couple of tanks. I'm
going to comply by having fewer tanks.
I'm a small farmer, 350 acres. To some of you that may
sound big but that's really a small farm in much of the corn
belt in northern Iowa. We do use it for animal heating, for our
home and for corn drying. I'm going to take out a couple of
tanks, get under the limit and simply call the truck more often
for the danger is really in the truck on the road, crossing
railroad tracks. The tragedy in Illinois last night was not a
propane truck, but it could have been because there have been
those. The danger is also in the switching when you transfer.
So we're going to do more of the dangerous stuff because I
have less storage and that's how I am going to get around it.
If I were a big farmer, I probably couldn't ask to take out
enough tanks to comply and then I don't know what I would do.
I think it is ridiculous the way they're suggesting we go.
It's going the wrong way completely.
Senator Inhofe. Of course Mr. Bertelsmeyer is very familiar
with the crisis facing Oklahoma farmers right now. I think
you're probably a bit conservative when you used the figure of
$100 million. My math says if you have 330,000 farmers and if
it's 2,000, you'd be $600 million or so.
I happen to have been born in Iowa so most of the Inhofes
come from around the Cumberland area and that's considered to
be the hog capital but with recent corporate farming and that's
expanded, and we're really into the hog business big time in
Oklahoma. Because of the pricing right now, many of the hog
farmers are killing piglets because the price is just too low
to justify raising them. That's part of the crisis we're under.
It looks like we're going to have in Oklahoma a pretty good
wheat year but our elevators are full. I guess I'm sensitive to
this because of the crisis that we're facing in Oklahoma and
I'm sure that same thing is happening to other States too.
I would like to have both of you comment on what the
farmers can endure in terms of more regulation? Mr. Kleckner,
you represent farmers from all over America, so you would be a
good one to lead off.
Mr. Kleckner. Senator, as I go around the country giving
speeches, and that's kind of what I do now with my life more
than on the farm, that's probably what I hear more than
anything else, is regulation, overregulation.
I realize regulations are the price we pay to live in a
civilized society, but they ought to make sense at least most
of the time; if not all of the time, at least most of the time.
Most of us farmers don't think the regulations we live under
make sense, not just economic sense but just don't make sense
sense.
Here is one. As I said, it appears to me here that EPA
thinks unless they're doing the regulating, they are not
regulating.
Senator Inhofe. So you would look at this charge and come
to the conclusion that the current regulation is probably more
than adequate or would you say that?
Mr. Kleckner. I hadn't looked at the chart. I was sitting
in the back, along the side. I didn't see it before I came up.
Senator Inhofe. It just shows the current regulations, what
they're addressing. You made the comment that the EPA doesn't
think that you're regulated unless they're regulating you. I
think there is some justification for a comment like that.
How about you, Mr. Bertelsmeyer, have you had a chance to
look at the current regulation and what do you think would be
accomplished by further regulation?
Mr. Bertelsmeyer. I think as far as we're concerned,
there's nobody that's more interested in safety than our
industry because it's our livelihood. If we can't conduct our
operations and our customer's operations in a safe manner, then
we haven't got an industry. So we have a very, very strong
interest in safety.
As I look at all of the things that we're currently being
regulated by, I can't think of any meaningful addition and
certainly not this paperwork exercise that the EPA is
attempting to put us through here as having any beneficial
effect whatsoever, as a matter of fact, a detrimental effect on
the safety in our industry.
Senator Inhofe. Explain why it's a detrimental effect on
safety.
Mr. Bertelsmeyer. Because of just what Mr. Kleckner said.
It's going to force people to try to try to get under the
limitations and we'll have to make more deliveries. A delivery
operation is the highest risk of all of the operations we do in
our business. This is going to create more of those deliveries.
Senator Inhofe. If you had a chance through your industry
to try to quantify what you just said, that if this regulation
were to go through, how would you quantify more deliveries so
that we would be able to analyze the additional exposure that
resulted from additional deliveries?
Mr. Bertelsmeyer. Again, at the end, it depends on how many
people actually do that, so in order to quantify it right now,
it would be difficult, although we certainly would be willing
to do that as a followup item.
Senator Inhofe. That would be interesting for us to know.
It's a little more in-depth as to why this could actually have
the effect of increasing risk.
Mr. Bertelsmeyer. Senator, I do know that my own,
unscientific study, these are the responses back from my plant.
Again, I haven't got a complete breakdown between the ones who
want smaller tanks and ones who have told us to come out and
take the tanks out completely, but some number of these 316,
just in our company, some percentage of those, are certainly
the ones that are going to have their tanks downsized.
Senator Inhofe. On the issue of fuel switching, you were
here when Mr. Fields was giving his testimony and responding to
questions. I asked the question about fuel switching, wouldn't
it be just as logical as switching to natural gas, to switch
the other way to something that would be more onerous such as
heating oil?
Mr. Bertelsmeyer. Yes, and when you look at what's
exempted, the heating oil, diesel fuel, electricity, natural
gas and gasoline, all of these are all exempted. I guess we can
get into a debate as to which one is or isn't more
environmentally friendly but certainly there isn't anything
more environmentally friendly than propane. It's been
designated by two congressional acts as an alternative fuel.
Senator Inhofe. Mr. Kleckner, you were here when we talked
to Mr. Fields and his estimate in the written testimony, I
think was 28,000, then he stated 33,000 in terms of estimating
the facilities that would be reporting on propane.
Are the two of your or either of you aware of the study
done by industry, the accounting firm who came up with the
estimates that add up to over a million?
Mr. Bertelsmeyer. Yes, sir. Our association commissioned
that study and it's been some number of years ago, I want to
say like four or five. I wasn't actively involved in the
association at that time, but I want to say four or 5 years ago
and we can clarify that for the record.
We commissioned the study and did a survey. It was a market
survey just to determine exactly where propane was used
throughout this country. That's where we determined the 660,000
farms and the 350,000 industrial sites, and another million or
so commercial sites. Then in order to arrive at the number that
would be affected by this regulation, we assumed that 100
percent of the industrial sites would be covered, that
approximately one-half of the forms would be covered, and
approximately 30 percent of the commercial sites. That totals
up to the 1 millionsites that would be covered, and we put in a
very conservative number of $1,000 on the cost which I know
personally from my own company, that is probably just a faction
of what our costs are going to be to comply with this thing.
That's where we came up with the billion dollar number, sir.
Senator Inhofe. I think you inadvertently said 660,000
farmers and said 330,000.
Mr. Bertelsmeyer. Well, 660,000 but only 50 percent would
be covered. That's where the 330,000 came from.
Senator Inhofe. The figures that came from this study, 11
of the 13 engineering firms estimated the compliance to be
between $2,000 and $20,000 per facility. Do you have any
thoughts about that and the accuracy of that, Mr. Kleckner as
it pertains to farms?
Mr. Kleckner. No. I'm guessing that the 20,000 would be
high for a farm that more likely the $2,000 area would be more
applicable to farmers. I'm just sitting here listening to Mr.
Bertelsmeyer. The 660,000 farmers or close to that, most of us
don't know whether it will apply to us or not, so we have to go
through the cost, the time which is cost also, determining in
the end maybe it doesn't apply to us but it's been a whole
bunch of money and probably even hiring, in many cases, an
outside consultant to sort through those 60-some pages or 30-
some pages to get to the final two, three or four-page document
we have to fill out. Then the cost of complying after that,
$1,000, $2,000 or more at that point, the $100 million I said
is almost so conservative it is laughable. I would think half a
billion to $1 billion, half a billion for farmers if not more,
and even more for industry because of what you have.
Senator Inhofe. From your two perspectives here, you heard
him talking about the relief that would be provided with
connecting tanks. How much help would that be?
Mr. Bertelsmeyer. That absolutely goes in the wrong
direction because it takes a manifolded installation that is
filled with one delivery to multiple tanks and by separating
those tanks, now we've got to go to three or four different
locations on the same farm. So again, we're back to the problem
that the high risk portion of this business is the delivery
operation. This not only doesn't help, it hurts it.
Mr. Kleckner. Mr. Chairman, also with corn drying, corn
bins are grouped together, so you don't put a tank a quarter
mile away. I don't know what their distance requirements will
be. It's likely to be minimal to begin with and increase with
time, the way the regulatory creep usually happens. I'm not
saying EPA creeps, but there is a regulatory creep that's out
there in this country. It starts way out here and it comes
together.
I simply can't put my tanks for my grain drying bins too
far away. I put them by the grain bins and they may or may not
be connected but still the distance requirements, I can't put
it 80 rods away, a quarter mile away.
Senator Inhofe. I appreciate your comments very much and
your testimony. You are going to receive questions in writing.
I know you are from Senator Bennett and probably other members
of this committee also.
I would like to share with you that the majority of the
people on this committee are concerned about two major things
as we address all regulations that come out, whether they
pertain to clean air, endangered species, Superfund, and that
is that we depend on sound science and not hysteria, and that
we actually have a cost benefit analysis so that people will
know what the costs are actually going to be.
I have been critical of the EPA because their estimates of
cost have consistently been much lower than I believe. I think
in this case they are too.
With that, we'll go on to our third panel because we're
getting behind in our schedule right now. I appreciate very
much both of you coming.
If the third panel will come to the witness table? The
third panel consists of Mr. Robert Blitzer, Former Section
Chief, Domestic Terrorism, FBI; Mr. Thomas M. Susman, Ropes &
Grapy; Paula Littles, Paper, Allied-Industrial, Chemical and
Energy Workers International Union; Thomas E. Natan, Research
Director, National Environmental Trust; and Ben Laganga,
Emergency Management Coordinator, Union County Office of
Emergency Management.
We will start with Mr. Blitzer, please.
STATEMENT OF ROBERT BLITZER, FORMER SECTION CHIEF, DOMESTIC
TERRORISM/COUNTERTERRORISM PLANNING SECTION, FEDERAL BUREAU OF
INVESTIGATION
Mr. Blitzer. From January 1996 until I retired from the
FBI, I was Bob Burnham's predecessor, so it was during my
tenure that a lot of this worst-case scenario discussion arose
to the point it is today.
As I was listening to the testimony, most of what Bob
discussed and Tim was contained in my statement, so I'm going
to just briefly give you a sense of the kind of atmosphere in
which we were discussing these kinds of problems. I'm just
looking at worst-case scenario types of situations.
At the time this was going on, we had been through a series
of major cases, and I had been through those personally,
everything from the World Trade Center to Oklahoma City, the
Nairobi bombings and other cases. There was great concern in
the Administration and I think it remains today about the use
of weapons of mass destruction with in the United States
including the detonation of a device.
Bob mentioned the sour gas case. We managed that case
during my tenure and we were very concerned that thing could
occur. We'd had another incident prior to that, a threat, at
Texas City, Texas, a big oil refinery situation. So we had had
a couple of cases and we had this atmosphere of mass casualty
cases. The thought of a terrorist, either domestic or
international terrorist, sitting someplace in the world or in
the United States with the kind of detailed access to
facilities that the worst-case scenario would allow was of
concern to us. That is why we at the Bureau opposed it.
I guess the only thing that wasn't discussed this morning
was, although I think you touched on it, the discussion of
release of information under the Freedom of Information Act.
That could occur today. Although I'm out of the FBI at this
point, I would say to you I'm worried about that because again,
as we were thinking about the possibilities, looking in a
crystal ball, I guess threat assessment is certainly not a
science, it's an art. In trying to assess future threats, this
is what we were thinking about.
I just wanted to paint that picture for you as to some of
the behind-the-scenes activities that are going on during those
discussions. I thank you for your attention.
Senator Inhofe. Thank you, Mr. Blitzer.
I would admonish all of you that your entire statement will
be made a part of the record, so we will try to adhere to our
time line here.
Mr. Susman?
STATEMENT OF THOMAS M. SUSMAN, ROPES & GRAY
Mr. Susman. Thank you, Mr. Chairman.
I'm pleased to be here this morning to address application
of the Freedom of Information Act to the chemical reporting
data that are required to be provided to EPA under the Clean
Air Act.
I've personally been involved with Government information
law for over 30 years and as my biographical summary reflects,
I've been an unwavering advocate of public access throughout
that time.
Today, I appear on my own behalf at the request of the
subcommittee. Although I have provided the subcommittee with a
paper that was prepared in part through support of the Chemical
Manufacturers Association, it's analyses and conclusions are my
own and I ask permission that the paper be included as part of
the record.
Senator Inhofe. Without objection.
Mr. Susman. I'm here today because I have great respect for
the FBI and its antiterrorist expertise, and also for the
important benefits of open access to government information. So
when the FBI says these worst-case scenarios or offsite
consequence analyses should not be posted on the Internet
because that will significantly increase prospects for
terrorist attack, I readily conclude that such posting is a bad
idea.
When EPA, local governments and community leaders say
access to these data will encourage accident prevention and
facilitate community preparation and rapid response to
potential chemical accidents, I'm comfortable with the
conclusion that public access locally by the community, by
firefighters, by emergency preparedness offices, is a good
idea. Plainly a balance needs to be struck between these two
conflicting interests.
Where I find myself in disagreement is with the Environment
Protection Agency's notion that under current law, it, the
agency, can strike a balance by collecting those OCAs in
electronic format and compiling them in electronic media and
then can refuse to release those data in electronic form to the
public. That is simply not permitted by the Freedom of
Information Act, and the agency doesn't need another 60 days to
reach that conclusion.
The Clean Air Act states unequivocally that OCAs must,
except for trade secrets, be made available to the public. That
Act doesn't impose any requirements regarding the form in which
information must be disclosed, but the Freedom of Information
Act does. It says if the Government has disclosable
information, it has no discretion to withhold or manipulate or
create speed bumps to access to that information, unless one of
the Freedom of Information Act's exemptions apply. In my paper
that is included for the record, I discuss each of the
exemptions and demonstrate that they not apply in this
instance.
The Freedom of Information Act, by virtue of the electronic
amendments enacted in 1996, requires disclosure of requested
data in electronic format when that form of the information is
requested and without any additional manipulation by the agency
if it's reasonably possible for the agency to make that
information available.
The conclusion is that EPA must disclose these worst-case
scenarios, offsite consequence analyses, in the electronic
format in which they're submitted, in a searchable data base if
one exists. The EPA has no discretion to act otherwise.
EPA has proposed to reformat the data to make it less
accessible, to make searching difficult, to create speed bumps
to disclosure, and it seems to me that is not the role of the
agency. No agency should be allowed, much less encouraged, to
state publicly that it intends to solve a serious problem
identified by the FBI and concurred in by EPA by violating a
mandate of the Congress in the Freedom of Information Act. The
law doesn't provide for it, the Justice Department shouldn't
condone it and Congress shouldn't tolerate it.
For those who agree that unrestricted electronic access to
OCA data on the Internet is a threat to security of
manufacturing facilities and the communities in which they are
located, there's only one legal solution to this problem--new
legislation.
I'm not proposing that Congress amend the Freedom of
Information Act or for that matter, reduce the reporting
requirements under the Clean Air Act. Nor do I propose that
OCAs become unavailable to local governments or community
residents entirely. It does seem to me that a balanced scheme
is needed that will allow community access and even release of
paper copies on a request-by-request basis but which will
clearly and specifically prohibit their dissemination in
electronic format.
The development of that scheme should be up to Congress
through legislation and not to EPA through violating the
Freedom of Information Act.
I look forward to answering your questions.
Senator Inhofe. Thank you, Mr. Susman.
Ms. Little?
STATEMENT OF PAULA R. LITTLES, PAPER, ALLIED-INDUSTRIAL,
CHEMICAL AND ENERGY WORKERS INTERNATIONAL UNION
Ms. Littles. We very much appreciate the opportunity to
appear before you today. Our organization represents 320,000
workers employed nationwide and a number of them are in the
chemical and oil refining and nuclear industries.
The question of full disclosure of risk management plans is
of vital importance to our organization, our members and the
communities in which they live. We feel if we are ever to have
effective, ongoing hazard reduction, these plans must be fully
disclosed to encourage safer technologies, honor the public's
right to know, and to overcome the complacency that has allowed
for a no serious plan or timetable to reduce hazards.
The Clean Air requires EPA to implement a program to assist
in the prevention of chemical accidents. EPA developed the risk
management program rule. This rule requires some 66,000
facilities that manage sufficient amounts of hazardous
materials to develop a RMP and file it with EPA. These
facilities include chemical manufacturers, refineries, water
treatment facilities, ammonia, refrigeration, propane storage
and semi-conductor fabrications.
A projected 65 million people live within a five mile
radius of an RMP facility. The Clean Air Act also requires that
EPA make this information available to the public. Our
organization became very concerned in November when we
discovered that EPA had made the decision on November 6, 1998
not to allow full access to RMP information.
Our main concern surrounding full disclosure is our
members, their families and the communities in which they live.
Our members are the first respondents to a site of a
manufacturing accident, at their work site, they also may work
at a site near an incident, next door, across the street or
five miles away but near enough to be affected.
Currently, not enough effort has been placed on hazardous
reduction for our organization to readily accept limited
disclosure on hazardous materials that our members work or live
near. There is also the issue of manufacturing security. It is
to our advantage as an organization that represents workers in
this arena that we can say to workers, their families and the
community, these facilities have nothing to hide. We can tell
workers that these facilities are working toward reducing
hazards, their RMPs are available in any form they need,
electronic or other, to provide the information needed to show
that they are really working toward hazard reduction.
We believe that it is not the knowledge that is harmful but
the lack of knowledge that has at times created mass hysteria
and rushed us to judgment. Although numbers vary depending on
the source of statistics and period of time examined, there is
no doubt about the effects of chemical accidents on human
lives. Year after year, large numbers of people are killed or
injured. In addition, the numbers of those suffering the long-
term consequences of exposure must also be counted.
Currently the Chemical Safety Board is reviewing or
investigating 27 incidents in 20 States. In the last 3 months
of 1998, the Chemical Safety Board began four incident
investigations, 20 workers were killed in the last 3 months of
1998 on the job that the Board is investigating now.
These numbers are clear and the message they send should be
even clearer. We need to work harder at reducing hazards and it
is our belief that full disclosure is the beginning step. We
believe there are many valid and important uses for RMP
information by people who live, work and conduct business well
beyond the immediate community where a facility is located. RMP
information can be used in a number of ways.
One way that we as an organization representing feel this
would be beneficial to us is it would help us develop and
conduct effective education and training programs, it would
help us to link other worker safety and public health data
bases. It would also determine which facilities might pose year
2000 risks.
Just as we believe strongly that our members and their
families and the communities in which they reside will be made
safer by full disclosure, we do not believe that we're placing
them in danger of sabotage or terrorism. Communities can only
be protected when companies use safer chemicals, reduce
dangerous storage, widen buffer zones and provide full
information. Chemical accidents have no respect for geographic
boundaries; we must have the freedom to communicate concerning
chemical hazards if we are to real hazard education.
Only with full information, disclosure and opportunities to
act can facilities, employees and communities reduce chemical
hazards.
Thank you for allowing me the opportunity to speak.
Senator Inhofe. Thank you, Ms. Littles.
Mr. Natan?
STATEMENT OF THOMAS E. NATAN, JR., RESEARCH DIRECTOR, NATIONAL
ENVIRONMENTAL TRUST
Mr. Natan. Thank you for the opportunity to testify as a
member of the environmental community. I'm a chemical engineer
and I've visited scores of industrial facilities, examining
ways in which they can operate more efficiently and safely, as
well as helping to interpret their environmental data for
residents and surrounding communities.
As the committee is aware and as Senator Lautenberg
mentioned in his opening statement, Congress enacted the
Emergency Planning and Community Right to Know Act in 1986. A
principal feature of this legislation was the toxic releases
inventory program, TRI. TRI has been credited by both
environmentalists and industry alike for generating the climate
that has resulted in dramatic decreases in toxic chemical
emissions without the traditional constraints and costs of the
command and control regulatory framework.
The experience with complete and unimpeded public
dissemination of TRI data in generating significant reductions
in releases of toxic chemicals to the environment is relevant
to the issue of public availability of worst-case scenario
data.
Like the 112-R program, TRI merely requires reporting of
information that companies already generate in the course of
doing business. Public awareness, generated both from local
citizens and data analysis by environmental groups, has led to
a reduction in toxic chemical releases of 50 percent over the
past 10 years. No further regulation was necessary to bring
about these reductions.
The enduring lesson of public access to information
regarding toxic chemical risks facing communities is that real
risk reduction can occur without the imposition of new and
significant costs to the manufacturing sector. Another
important lesson we can glean from TRI is that public access to
toxic chemical release information alone can generate enormous
risk reduction benefits.
Also, for many workers at industrial facilities, TRI is
their first opportunity to learn about chemicals used on the
job, another unexpected benefit of complete access to
information. All of these benefits can be further enhanced
through public access to 112(r) data.
The intelligence community has raised concerns about the
availability of worst-case scenario data on the Internet.
However, even in the absence of Internet access to data, there
are many ways in which EPA, the intelligence community and the
chemical industry must work both separately and together to
reduce hazards and potential risks to the American public from
the use of toxic chemicals in industrial facilities.
The read-only CD ROM that has been proposed is interesting
but we've not been provided enough details to determine if this
will meet the needs of the diverse public. To name a few, this
public includes citizens who want to compare their local
facilities to others across the country in the same industry,
workers at the facility for whom these data may be the best
vehicle to learn about risks and hazards on the job, emergency
responders who will want to be sure a particular plant meets
the industry standard for safety, educators who will want to
teach students about best practices and investors who will want
to track the performance of all the facilities of a particular
company.
Whether or not the worst-case scenario data are available
on the Internet, EPA should establish many specific public
access services to mechanisms. I've included those in my
written statement and I won't repeat them here.
EPA also needs to take an active role in providing
comparative analyses of data from facilities within particular
industries to determine the best practices as they currently
exist. EPA should also provide analyses of uses of specific
chemicals across industries for some of the most hazardous
substances.
From the time the agency receives the first 112(r) data, it
should be creating guidance documents for locally impacted
citizens and the general public on what the data mean and don't
mean as well as list an explanation of supporting documentation
that facilities should have on hand. As more years of data
become available, the agency can also publicize success stories
of facilities that have significantly reduced their
vulnerability zones.
To my knowledge, the review of worst-case scenario data by
the FBI is the first time the FBI has reviewed chemical
accident data reported by industrial facilities to determine
the potential threat that onsite use of toxic chemicals pose to
local communities. This is true despite more than 10 years of
data being widely available.
In my opinion, the most significant finding made by the FBI
during its review was that the use of toxic chemicals at
facilities poses an inherent risk to workers, neighboring
properties and surrounding communities. The FBI found
additionally that making the public aware of chemical use risks
over the Internet would amplify this inherent preexisting risk.
In light of these findings, it is important to emphasize
that the risks emanate from toxic chemical use, not public
awareness of those risks.
We believe the FBI can play a tremendous role in furthering
society's goal of risk reduction. A comprehensive review by the
FBI of security measures at facilities using or producing large
volumes of toxic chemicals would be a good start at reducing
risks to citizens. Further reviews could include risk generated
by transporting chemicals to and from those facilities.
The chemical industry has begun presenting worst-case
scenario data for individual facilities to local citizens in
Louisiana and Texas. Companies should go further and produce
reports on their worst-case scenario data for all facilities
they own enabling the public to see that they operate uniformly
with regard to risk minimization. These reports should also
publicize plans and goals for risk reduction if they exist.
Finally, the chemical industry, EPA, and the intelligence
community should collaborate on a voluntary initiative to
reduce risks with reasonable targets and dates. Although
reducing hazards by using less toxic chemicals would be most
desirable as a way to accomplish risk reduction, a voluntary
initiative could explore other common sense risk reduction
measures as well.
Where reduction in use isn't practical, such common sense
measures could include safer transportation, storage and
handling of toxic chemicals. The worst-case scenario data
provide an ideal vehicle for measuring progress for risk
reduction efforts. However, denying or severely limiting public
access to worst-case scenario data does not relieve the EPA and
the intelligence community or the chemical industry of their
shared obligatio to reduce risk.
Thank you for the opportunity to address the committee and
I'd be happy to answer any questions.
Senator Inhofe. Thank you, Ms. Littles.
Mr. Laganga?
STATEMENT OF BEN LAGANGA, EMERGENCY MANAGEMENT COORDINATOR,
UNION COUNTY OFFICE OF EMERGENCY MANAGEMENT
Mr. Laganga. I am the emergency management coordinator for
Union County, New Jersey. Union County is an important county
in New Jersey. It is highly industrialized, 102 square miles
with a population of 494,000. Within the county borders lies
Newark International Airport, New Jersey Turnpike and the
Garden State Parkway as well as the Elizabeth Seaport. There
are many other highly traveled highways. We are also home to
several petrochemical and pharmaceutical facilities who are
required to file risk management plans in 1999.
As a representative of the county and chairman of the local
emergency planning committee, I am pleased that you are hearing
testimony on this highly controversial issue today. From the
outset of this rules development, it has been my belief that
the availability of worst-case and more likely case scenario
information on the Internet could lead to an increase in
terrorist acts in our State and throughout the country.
In New Jersey today through right to know and New Jersey's
Toxic Catastrophe Prevention Act, all companies that use
hazardous materials on their site must provide that information
to their OEPC and the New Jersey Department of Environmental
Protection. The information is available to the public,
however, it must be requested and is not available through the
Internet.
In my opinion, that is a better way to monitor those
individuals requesting the information. If the information is
available on the Internet, there is no possible way to know who
is accessing that information and quite frankly, how they are
using it.
There is another side to this issue, the misunderstanding
and the misinterpretation of this information. Without proper
explanation, the general public could misinterpret the
information they are accessing and could cause undue harm
amongst the public at large.
In Union County, we do not want to see companies go out of
business, however, we do want to maintain the lines of
communication between these facilities and our emergency
response teams.
I hope that you recognize the use of this information is
valuable to emergency responders. However, if it is put in the
wrong hands, it could cause more harm than good.
I know that the regulatory intent for the development of
the risk management plans was to put valuable information into
the hands of the public, not to jeopardize public safety by
placing this information in an accessible format where it can
be used by those looking to cause harm. However, I am concerned
that is exactly where this valuable information will end up.
Thank you again for this opportunity and I would be happy
to answer any questions you may have.
Senator Inhofe. That's interesting, Mr. Laganga. In your
testimony, you say you already collect the emergency data and
make it available to local citizens and environmentalist groups
now?
Mr. Laganga. Yes. There are two ways we do that. The New
Jersey Department of Environmental Protection passes that
information down to the local emergency responders, police,
fire and the LEPC. We're very active in Union County through an
HMAC Advisory Council who puts on educational programs and any
type of training for emergency responders in conjunction with
those industries.
Senator Inhofe. Do you do this individually or by what
means do you respond to these requests? I'm trying to figure
out how many requests you might have to respond to?
Mr. Laganga. At the county level, we receive maybe 20 a
year. At the local level, they receive more from their
community activists. We also promote public education through
the facilities. Senator Lautenberg earlier mentioned the Exxon
refinery. I sit on that community action panel which enpanels
emergency responders, local political people and citizens who
get to know about the facility and how emergency response
activities take place.
Senator Inhofe. So you not only share the information, but
you also interpret it for them. Has interpretation ever been as
significant as just having access to the information?
Mr. Laganga. We don't interpret it. We leave the
interpretation up to the facility. The information they supply
us with are the chemicals and how much they have in their
inventory. We do encourage dialog between the facility and the
citizens.
Senator Inhofe. We were listening to Mr. Susman say that he
came to the conclusion there is only one solution and that is
through legislation. Are you suggesting another could be that
you could do this through the local entities and avoid the EPA
and the Freedom of Information Act altogether?
Mr. Laganga. Yes. Again, public information that is
supplied from the facilities to the DEP, to the towns as well
as to the facilities can really promote that.
Senator Inhofe. How would you react to that, Mr. Susman?
Mr. Susman. That's quite interesting because New Jersey has
a unique statute enacted just a few years ago that says that
when the government maintains information, even if it's
maintained in electronic form, a State Freedom of Information
Act request can be responded to by providing paper records. So
even if the State agencies maintained these data in electronic
format in New Jersey and a member of an environmental group
desiring to put this on the Internet makes a request under
State law, that person can get the record only in paper format
under a specific State statute.
I'm not suggesting that is a good idea for all government.
Senator Inhofe. How many other States have a statute?
Mr. Susman. It varies. There are 50 different States with
50 statutes. Unfortunately, the Federal Government sets the
stage for what most States do and the Federal Government has
established the principle if you have it electronically, you
have to release it electronically. I haven't done a State-by-
State review, but I do believe New Jersey may be unique.
Senator Inhofe. Mr. Natan and Ms. Littles, I come from
Oklahoma and you're all familiar with the Federal office
bombing which was the most devastating terrorist attack on our
soil in history, so we're very sensitive to this type of thing
happening. I would like to have you both talk about the
tradeoff here. We're concerned about peoples' right to know.
When you ask the man on the street would you rather have this
right to know for yourself and for terrorists or would you
rather have no one have the right to know? I think I know what
their answer would be. How would you respond to that?
Ms. Littles. I came from a place close to Oklahoma. I
actually came from Texas and I worked in a petrochemical field.
Because of that and because of having been at petrochemical
facilities when there have been releases and people were not
aware what was being released, when peoples' children were at
school, it has instilled in me a feeling that people in the
community have a right to know what's going on in these
facilities and that we, as an organization, have a
responsibility to our members in those facilities as well as in
the facilities around the country and facilities with which we
have good relationships as well as the ones where we don't.
Where we have good relationships, we're given data so that we
can actually look and see our members are being in the best
possible hands. In places where we don't, we're not given that
same information.
We know there are some facilities that will be giving their
RMPs that we can compare information and we can actually maybe
sit down and talk to people about what we actually view as an
in our own world company terrorism because when you have people
working in facilities and companies and not providing the
proper respect and response to them for their own livelihood
and how they are going to leave that job, we have a very large
problem with that also.
I'm definitely not trying to play down what happened in
Oklahoma because that was very serious but I don't think what
happened in Oklahoma--what happened in Oklahoma, that building
was not on the Internet.
Senator Inhofe. I'm not suggesting it was. I said I am
sensitive to the results of terrorist activity which that was.
I recognize that was not information that was on the Internet.
Ms. Littles. Also from what I've seen of RMPs and having
worked in a petrochemical facility, I have never seen anything
on one yet that actually would identify for a terrorist what
they could actually bomb.
Senator Inhofe. I'm going to ask you, Mr. Blitzer, to
respond to that last comment she made in just a minute but I
want to hear from Mr. Natan first.
Mr. Natan. I've had experience with citizens who have
received environmental data from their local facilities that is
not equivalent to the same data they've submitted to the
Federal Government. For that reason, I think even from a
verification standpoint, it would be nice for citizens to be
able to verify that what facilities are giving them is indeed
the correct thing.
I've also found instances where the data are incomplete and
relying even on facilities to provide the interpretation for
the communities has posed a problem. I'm also sensitive to the
idea that you certainly don't want to foster anymore terrorist
activities of any kind.
I do believe that there is a role for disseminating
information in ways that it will make sense for people to use
it. The problem is that I think the public who needs this
information goes well beyond the local level. I am not sure how
to resolve that.
Senator Inhofe. It is a problem because you've repeated
several times, all of you have, that people have a right to
know but terrorists are people.
Mr. Natan. Terrorists are people, not the right people but
they are people. I find it difficult as someone who likes to
examine data and who would like to know, for example, which
paper plant that uses chlorine or releases chloroform is
operating in the safest possible manner so I can go to other
paper plants and ask them why they are not doing the same
thing. I think this is a legitimate use of this kind of data.
Honestly, without greater access to the data than I've seen
proposed, I don't know how I would do that.
Senator Inhofe. Mr. Blitzer, would you like to respond to
her last statement?
Mr. Blitzer. Again, I think I would just harken back to
some of my initial comments. That focuses more on the worst-
case scenario on the Internet with someone either in a foreign
country or here being able to zero in on key corporations, key
facilities where a lot of stuff is and have a pretty good sense
of what's there, what the facility looks like, and being able
to target a facility for an operation.
Senator Inhofe. Why don't you give us a hypothetical,
specific example?
Mr. Blitzer. I'll try to do that. Let's say you have a
foreign terrorist who is active on the Internet, and they are,
and he starts searching facilities, chemical facilities, in the
United States on the Internet. There's 60,000 and some
facilities but let's say he's looking at the State of New
Jersey and he can pull up significant data on chemical
facilities in the State of New Jersey.
Again, hypothetical, he has a cell in the New York City
area that he can activate and he can provide information to
them, this is the target, this is what I want you to do. That's
the scenario that might occur and could occur. That's the kind
of thing we, as we are considering this, are worried about,
that kind of accessibility, making it easy for them to target
facilities, easier than it is right now.
Senator Inhofe. Have you come to the same conclusion that
Mr. Susman has, that probably even though it may not be a good
solution, that the only solution would be legislative?
Mr. Blitzer. I personally have and it's troubling and I
listened to the other panelists. I must tell you after 27 years
in the Bureau, I'm just as concerned about peoples' right to
know as anyone else. I think they do have a right to know but I
think Mr. Natan is right, where is the balance? I don't know
where that balance is. There's a lot of legitimate researchers
like Mr. Natan and others that need access to worst-case
scenarios and I don't think we were trying to prevent that.
We're trying to prevent worst-case scenarios from being posted
on the Internet and being so accessible to so many individuals
that may want to do us harm.
Senator Inhofe. Mr. Susman, you've come to this conclusion
so I would assume that there are no technologies in your mind
that the EPA could use to safeguard this information under
current law?
Mr. Susman. Under current law, if the EPA possesses it in a
searchable electronic data base, which is the way in which the
information will be submitted on June 21, then that's the
format that it has to disclose it. EPA does have the facility
to provide paper copies. All you need is a photocopy machine.
The law just doesn't require that alternative.
I might say, Mr. Chairman, that it does seem that we've
talked about the need for balance, and at least 80 percent or
more of the valuable uses to which these reports can be put, it
seems to me, can be accomplished through paper copies provided
locally.
If someone wants to key in 66,000 reports and put them on
the Internet, I think that's something we can't guard against
legislatively.
Senator Inhofe. A third party could do that.
Mr. Susman. That's correct, but that again is part of the
balance, the price we pay. We want the local community, we want
the firefighters, the emergency preparedness offices, the
police department and workers to have some access to these
reports. It's a far cry from saying therefore, it needs to be
electronically available whether in a CD-ROM, nonsearchable,
non-read only. All that sort of stuff is very problematic at
least under present technology.
Senator Inhofe. Mr. Blitzer, a minute ago, I think I heard
you say that terrorists are very sophisticated and they do use
the Internet?
Mr. Blitzer. Both domestic and international terrorists use
the Internet, they communicate by computer. I saw it firsthand.
Senator Inhofe. When did you leave the FBI?
Mr. Blitzer. I left in November of last year. Many of the
domestic groups in particular are extremely active on the
Internet where they communicate and have their own web sites.
They have encrypted web sites, so it's there.
Senator Inhofe. I would assume they are much more
sophisticated now than even they were last November.
Mr. Blitzer. As fast as the technology grows, they will
take advantage of it.
Senator Inhofe. I've been reminded we have gone 5 minutes
over our time but if any one of the five of you has any gnawing
need to add something else, this is your chance to do it.
[No response.]
Senator Inhofe. Thank you very much for taking the time to
come and that goes to all three panels. I appreciate it very
much. You will be receiving questions from members who were not
in attendance to answer on the record in the next few days.
Thank you very much.
[Whereupon, at 11:51 a.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
Statement of Hon. Craig Thomas, U.S. Senator from the State of Wyoming
I am genuinely concerned about the environment, that is not what
this is all about. That is why I am so puzzled by the letters I have
been receiving from many of my constituents in the propane industry
concerning the Environmental Protection Agency's (EPA) risk management
regulations. EPA, in compliance with the Clean Air Act is attempting to
collect risk management plans (RPMs) from facilities handling
substances listed under section 112(r) (3).
I applaud EPA's efforts of wanting to improve the safety of
industrial chemical processes but I do not think it is necessary to
include fuels when the legislation was aimed specifically at chemical
releases. Why would the Administration want to discourage folks from
using propane--a fuel the Administration itself deemed a clean fuel.
With respect to propane, the EPA's risk management program is
duplicative in nature. The industry already operates under strict
regulations on the State, Federal and local level. Propane companies
already comply with a comprehensive safety standards set by the
National Fire Protection Association and also abide by worker safety
standards set by OSHA.
These risk-management regulations cover all facilities with more
than 10,000 pounds of propane onsite. This is not a lot of propane, so
these rules not only apply to bulk storage facilities but also to many
residential and commercial customers as well. As a result, many propane
users are thinking of switching to a less environmentally friendly
substance such as heating oil, natural gas, or electricity. And I
mentioned previously, propane is listed as a clean fuel.
Another negative impact concerning the proposed rule is that it
could actually decrease safety. Many commercial customers will attempt
to remain under the program threshold and thus avoid the burden of
compliance. They will do so by reducing their storage capacity and
arranging for more deliveries as a way to reduce onsite storage. This
means the propane industry will be forced to make more deliveries,
which increase the possibility of vehicular accidents and fuel
handling.
For all these reasons, I do not believe that propane should be
included on this list of hazardous substances. This is not about the
environment. This is about costly, unnecessary and duplicative
regulations. Finally, Mr. Chairman, I have several letters from my
constituents that I would like to be included in the hearing record.
__________
AmeriGas,
America's Propane Company,
February 25, 1999.
The Honorable Craig Thomas,
United States Senate,
Washington, DC 20510.
Dear Senator Thomas: I am a propane industry employee that is
concerned about a regulation being placed on my industry by the U.S.
Environmental Protection Agency (EPA).
I work as a serviceman for AmeriGas Propane in Laramie, WY. We
deliver propane to customers who use it in a variety of ways in their
homes, businesses, and farms. I am very concerned about the EPA's rule
implementing section 112(r) of the Clean Air Act. This rule requires
propane marketers and their customers who have storage tanks containing
more than 10,000 pounds (about 2,380 gallons) of propane to prepare
detailed facility information, including a hypothetical worst-case
scenario. The rules also duplicate safety rules on the State level.
My co-workers and I are taught and trained in the safe handling of
hazardous materials and do all we can to protect ourselves, our work
place and our community in every aspect of our job. We work under
strict regulations at the Federal, State, and local level, such as the
NFPA Standard 58, the Liquefied Petroleum Gas Code, published by the
National Fire Protection Association and many other regulations by OSHA
and DOT.
I do not believe that adding another paperwork requirement will
increase the level of safety that I work to provide to our customers
and community each and every day. Please support legislation that
recognizes compliance with NPGA 58 as an alternative means of complying
with EPA's section 112(r) rules.
Thank you for considering my views as an employee that has to help
carry out all of the regulations and rules that Washington creates.
Sincerely,
Ty Blake
__________
V-1 Oil Company,
P.O. Box 51,
Douglas, WY, 82633, March 2, 1999.
The Honorable Craig Thomas,
United States Senate,
Washington, DC 20510.
Dear Senator Thomas: I am writing you on behalf of over 300
employees of V-1 Oil Company in urgently requesting your help in
informing the EPA that to include propane in it's flammable substances
on the Risk Management Program is a huge mistake for not only this
company, but most all other propane marketers. Our company delivers
propane in Wyoming and 5 other western and I can assure you that the
EPA's Risk Management Program would not and will not cover any incident
which V-1 Oil Company may or could have.
The EPA's deadline of June 21, 1999 for the completion of the Risk
Management Plan in its detailed form of a ``worst case scenario'' is
very misguided due to the costly imposition to the industry and it's
doubtful benefit. Rather, the EPA's mandate essentially encourages an
anti-safety process due to the resultant reduced threshold level while
increasing delivery rates and risks.
It is my understanding that the Risk Management Plan will cost the
industry in excess of $1 billion. Frankly, this measure could result in
numerous customers switching from clean burning propane to other forms
of energy, thus costing the industry and customers billions of dollars
additionally.
The Risk Management Plan does not have a potential to increase
safety, nor does it promote a cleaner environment or promote the use of
alternative fuels such as propane. In an industry which is already so
heavily regulated, the Risk Management Plan will surely cripple the
industry without any notable benefit to safety or communities.
I urge you to please give your support to the removal of the
flammable fuels from the list of the Risk Management Plans covered
substances and look forward to hearing from your office on any help you
can render this important issue.
Sincerely,
Thomas L. Christy,
Regional Manager.
__________
AmeriGas,
America's Propane Company,
February 24, 1999.
The Honorable Craig Thomas,
United States Senate,
Washington, DC 20510.
Dear Senator Thomas: I am a propane industry employee that is
concerned about a regulation being placed on my industry by the U.S.
Environmental Protection Agency.
I work for the AmeriGas Propane Company in Casper, Wyoming We
deliver propane to customers who use it in a variety of ways in their
homes, businesses, and farms. I am very concerned about the EPA's rule
implementing section 112(r) of the Clean Air Act This rule requires
propane marketers and their customers who have storage tanks containing
more than 10,000 pounds (about 2,380 gallons) of propane to prepare
detailed facility information, including a hypothetical worst-case
scenario. The rules also duplicate safety rules on the State level.
My co-workers and I are taught and trained in the safe handling of
hazardous materials and do all we can to protect ourselves, our work
place and our community in every aspect of our job. We work under
strict regulations at the Federal, State, and local level, such as the
NFPA Standard 58, the Liquefied Petroleum Gas Code, published by the
National Fire Protection Association and many other regulations by OSHA
and DOT.
I do not believe that adding another paperwork requirement will
increase the level of safety that I work to provide to our customers
and community each and every day. Please support legislation that
recognizes compliance with NPGA 58 as an alternative means of complying
with EPA's section 112(r) rules.
Thank you for considering my view as an employee that has to help
carry oul all of the regulations and rules that Washlngton creates,
Sincerely,
Pam Barretson.
__________
AmeriGas,
America's Propane Company,
February 24, 1999.
The Honorable Craig Thomas,
United States Senate,
Washington, DC 20515.
Dear Senator Thomas: A short while ago I contacted your district
office regarding a recent EPA regulation. Since a June 21 compliance
deadline is fast approaching, I felt it necessary to contact you again.
I am extremely proud of my company and its employees The EPA is
attempting to impose a regulation on me and many of my customers that
will may actually decrease safety in and will definitely increase cost.
The UPS's burdensome risk management regulations cover all
facilities with more than 10,000 pounds of propane onsite. This is not
a whole lot Of propose, So these roles not only apply to my bulk
storage facilities but also north of my residential customers as well.
I am now starting to get calls from many of my customers who are
reconsidering their usage of propane in light of having to comply with
these regulations.
I find it ironic that EPA's proposed rules will actually compromise
safety. Many commercial customers will attempt to remain under the
program threshold and thus avoid the burden on compliance They will do
this by arranging; more deliveries as a means to reduce onsite storage.
The propane industry as a whole continues to maintain an extremely good
safety record and the new regulations will not increase it any more,
but ensure that this safety record Will be compromised.
My company is not looking to escape regulations that truly enhance
the safety of propane installations. Indeed, that is why States have
incorporated NFPA 58 into their safety regulations. I therefore urge
you to enact legislation that recognizes compliance with NFPA 58 as an
alternative means of compliance with EPA's section 112(r) rules before
the pending summer deadline.
Will you please advise me if the Federal Government will exempt
themselves from complying to the RMP rules? I have a number of Federal
facilities we service which will fall under the specifications of RMP.
If the Federal Government does not exempt themselves, this will surely
be a large expense to the budget.
My customers and I are relying; on you for help. Thank you for your
time and if you have any questions, please feel free to contact me.
Sincerely,
Richard F. Bell, Sales/Service Manager,
Casper, WY 82604
__________
Senator Craig Thomas,
United States Senate,
Washington, DC 20515.
Dear Senator Thomas: I would like to share with you some of my
concerns over the EPA's regulations. As you already know my company has
been in the propane business in the State of Wyoming for over 25 years.
We have never had an incident that would be covered under the EPA Risk
Management Program. We are a small business that delivers propane to
customers who use it in a variety of ways, home, business and farms.
I'm greatly concerned the EPA's rules require propane user to submit
detailed Risk Management Plan will ultimately lead to more accidental
releases not fewer.
Flammable substances like propane burn cleanly, so they're good for
the environment, and they're handled safely because of industry
standards like National Fire Protection Association safety standard 58
and strict State regulation. I should know, because I have to answer to
my State regulators enforcing State regulations. My industry works
closely with firefighter organizations to ensure the safety of our
communities. I also comply with many local, State and Federal laws
including SARA title III, which is required by the EPA. Propane
regulation and safety practices are so effective that you have only one
chance in 33 million of being killed in a propane tank snuck highway
accident. By contrast, you have one chance in 15 million of being
struck by lightning, and only one chance in 2500 of being in a car
wreck that kills someone. Of course, no one is talking about setting up
a Federal risk management program for cars!
I urge you to enact changes to the Clear Air Act that makes EPA
accept compliance with National Fires Protection Association standard
58 as an alternative to Risk Management Plan compliance.
Thank you for your attention on the matter.
Sincerely,
Larry N. Germann,
Ron's LP Gas.
__________
Statement of Timothy Fields, Jr., Acting Assistant Administrator for
Solid Waste and Emergency Response, Environmental Protection Agency
Mr. Chairman, and members of the subcommittee, I am Tim Fields,
Acting Assistant Administrator in the Office of Solid Waste and
Emergency Response at the U.S. Environmental Protection Agency. My
office has primary responsibility for the Risk Management Program under
section 112(r) of the Clean Air Act (CAA) and Federal implementation of
several sections of the Emergency Planning and Community Right-to-Know
Act (EPCRA). I also am responsible for the Agency's anti-terrorism
program and the associated coordination with other Federal partners,
State and local governments, and the private sector.
I am pleased to have this opportunity to present information about
the importance of chemical safety, community right to know, and our
plan to balance these benefits with the continuing challenge of
protecting national security.
Following the world's largest chemical accident in Bhopal, India,
Congress passed the Emergency Planning and Community Right-To-Know Act
in 1986. The law enhanced community planning and provided significant
new information on chemical handling and releases to the public.
Because of the public availability of chemical information, awareness
of the potential danger from chemical use and production has grown. We
have seen many facilities take steps to implement safety practices that
prevent accidents. But much work remains to be done.
According to EPA's Emergency Response Notification System (ERNS),
more than 402,000 accidents involving hazardous chemicals were reported
in the United States in the 12 years from 1987 to 1998. These accidents
resulted in nearly 4,000 deaths, 25,300 injuries, and 1,400 evacuations
affecting 147,000 individuals. Eighty percent of these accidents
occurred at industrial and commercial facilities. Propane releases are
not required to be reported to our ERNS system; however, we received
reports on more than 1,000 propane accidents from 1987 to 1998. The
largest amount released was 450,000 pounds and the average amount
released was more than 5,000 pounds. These reported accidents resulted
in 32 deaths, 259 injuries, and evacuations in 32 communities.
The core elements of process safety management required by the Risk
Management Program rule directly address such accidents. Therefore, EPA
expects that this regulation will ultimately reduce the number of
accidents, injuries, and fatalities.
Risk Management Program
Through passage of section 112(r) of the CAA in 1990, Congress
recognized the need for facilities to develop or improve their planning
and accident prevention programs to reduce the risk of accidents and
allow local communities to enhance emergency preparedness. The law also
recognized that citizens should have access to information about the
hazards these facilities present.
Under the chemical accident provisions of 112(r), facilities must
conduct hazard assessments, establish accident prevention programs, and
bolster emergency response planning. These requirements are implemented
by EPA's Risk Management Program regulations and are aimed at reducing
the likelihood and severity of chemical releases. Facilities that are
covered under these regulations must submit a Risk Management Plan or
RMP. Under the law, these plans, except for Confidential Business
Information, must be available to the public, the Federal Chemical
Safety Board, and State and local officials involved in planning for
and responding to chemical emergencies.
Under EPA's regulatory requirements, by June 21, 1999, facilities
that handle large quantities of very hazardous chemicals will submit
Risk Management Plans to EPA for the first time. In these plans,
facilities will describe how they will prevent or minimize chemical
accidents and how they will promptly respond to accidents that do
occur.
Listing Criteria
Congress told EPA to regulate at least 100 substances ``which, in
the case of an accidental release, are known to cause or may reasonably
be anticipated to cause death, injury or serious adverse effects to
human health or the environment.'' The law said EPA should use, but was
not limited to, the list of extremely hazardous substances regulated
under EPCRA. Furthermore, the law said EPA could modify the list of
covered substances when the Agency thought it was appropriate to do so.
The law specified the criteria EPA must consider in deciding
whether to list a substance under section 112(r). Those criteria are:
The severity of any acute adverse health effects associated with
accidental releases of the substance;
The likelihood of accidental releases of the substance; and
The potential magnitude of human exposure to accidental releases of
the substance.
Concerns have been raised about EPA's decision to list flammable
substances including propane, and other highly flammable substances
used as fuel. EPA applied the statutory criteria and developed a list
of 77 highly toxic and 63 highly flammable substances, that, based on
their intrinsic hazard and regardless of their use, pose the greatest
risk of harm to the public and the environment if they were
accidentally released. In fact, accident history shows that accidental
releases of several of the listed toxic or flammable substances have
had a devastating impact on the public and the environment. Further,
legislative history suggests that flammable substances, as well as
toxic chemicals and other substances, that meet the statutory criteria
for listing should be regulated under section 112(r) (see, e.g., report
of the Committee on Environment and Public Works, U.S. Senate,
accompanying S. 1630, Dec. 20, 1989, p.211, 219-20). Consequently, EPA
believes that facilities that handle these highly toxic or flammable
substances must take action to prevent accidental releases that could
harm the public or the environment.
At the same time this list was published, EPA issued a supplemental
notice asking for comment on whether EPA should exempt flammable
substances when used as a fuel. In particular, the Agency requested
submission of any data showing that flammable substances when used as a
fuel are less hazardous than flammable substances when used for other
purposes. In response to that notice, no accident data were submitted
to support such a finding, and EPA found accident data indicating that
fuels were responsible for many accidents including several that
resulted in deaths, injuries, and large scale evacuations and property
damage. Propane is propane, regardless of whether it is used as a fuel
or whether it is a process feedstock. Therefore, in the final Risk
Management Program rule issued on June 20, 1996, EPA did not provide a
fuel use exemption. That rule was submitted to Congress for review
under the Congressional Review Act (subtitle E of the Small Business
Regulatory Enforcement Fairness Act), and Congress did not act in
response to that submission.
Major Accidents
After Bhopal, the second largest industrial chemical accident in
history occurred at a propane gas terminal in 1984 in Mexico City.
Ruptures in several propane storage tanks caused an accident that
killed 650 individuals and left 6,400 injured. The ruptures produced a
fire ball estimated to be 1,200 feet in diameter. The heat from the
rupturing tanks and the damage from flying tank debris allowed the
release of more propane from other tanks. Some tanks weighing 20 tons
skyrocketed, landing nearly 4,000 feet away.
The United States also has experienced devastating accidents
related to propane. On New Year's Eve 1998, an accidental propane
release and fire at a facility near Des Moines, Iowa, resulted in the
evacuation of 10,000 nearby residents and the closure of a major
interstate transportation route. At least seven other major accidents
occurred at propane facilities in 1998. In total, these accidents
involved at least 4 deaths, 22 injuries, many thousands of dollars of
property damage, community evacuations, and other offsite impacts.
The hazard associated with propane and other highly flammable
substances is not abstract or hypothetical. Accidents at propane
facilities happen every year, and they often involve causes that are
directly related to poor hazard control. The core elements of process
safety management required by the Risk Management Program rule directly
address such causes and prevent accidents. Risk Management Programs
implemented by facilities, such as the one in Des Moines, will improve
chemical safety in two ways. First, they will ensure that such
facilities identify and address the hazards posed by their handling of
flammable substances. Second, and equally important, they will provide
information to the public about the risk of accidental releases and
facilities' efforts to prevent and mitigate any releases. The
availability of these plans is expected to stimulate communication
among industry, local governments, and the public to improve accident
prevention and emergency response practices.
Consistent with the purpose of section 112(r), EPA provides
national leadership and assistance to communities so that they will
have the tools and expertise they need to receive, assimilate, and
analyze all chemical accident prevention data, and to take appropriate
measures to reduce chemical accidents.
Compliance Assistance
EPA has labored to lessen the regulatory burden on industry and in
particular small businesses. At the same time, EPA has been mindful of
the fact that even a small business if it handles more than a threshold
quantity of a hazardous chemical can have an accident that harms the
public and the environment if the chemical is not used safely.
To ease the regulatory burden on these facilities, EPA has prepared
model plans for propane users and other industry sectors, which should
make compliance with the Risk Management Program rule relatively easy.
That guidance recognizes the safety practices embodied in existing
industry standards, such as the National Fire Protection Association
Standard 58, and encourages propane facilities to take credit for those
practices when implementing their risk management program and preparing
their risk management plan. EPA also distributes free software that
makes preparation and submission of Risk Management Plans easy. And,
EPA Regional offices hold workshops to help facilities answer
compliance concerns.
EPA has also provided guidance to help small propane users
determine if they are subject to the RMP rule. Facilities with small
tanks need to know when the amounts in their tanks must be added
together to determine if the facility is subject to the rule. Tanks
located close together can cause a domino effect if an accident were to
occur. The guidance provides facilities with information about safe
distances. According to EPA's information, most small users' tanks are
likely to be far enough apart that they will not be subject to the
rule. This guidance in combination with the 10,000 pound threshold will
result in the exclusion of most of these small users.
Issues Raised
Concern has been expressed that the Agency has reached beyond the
intended scope of the Clean Air Act to regulate small businesses such
as farms, restaurants, hotels, and other small-quantity commercial
propane users that use relatively small amounts of propane. As
mentioned previously, EPA believes the majority of these small-quantity
users will not be covered.
The principal intent of regulations issued under section 112(r) is
to prevent and mitigate accidents at industrial facilities that present
the most risk to the public. While accidental releases involving as
little as 10,000 pounds of propane can easily affect workers, EPA is
reexamining whether such releases generally constitute a serious risk
to the public beyond the fence line. However, EPA believes facilities
storing large quantities of propane, such as propane distributors and
other industrial facilities, should submit Risk Management Plans.
Accidents at these types of facilities have ranked among the most
severe industrial accidents on record.
And, while EPA encourages use of clean burning fuels such as
propane, it is a highly flammable hazardous material and must be
handled safely. Additionally, alternative fuels are likely to be
regulated under other laws. EPA expects some inventory reduction to
take place, but we believe that most businesses are unlikely to switch
fuels in response to the relatively modest cost of implementing the RMP
rule. We expect a small user to spend approximately $500 to comply with
the rule.
Electronic Submission/Access
Next, I want to address concerns about the availability of worst-
case chemical accident information on the Internet. To make RMP
information more useful, EPA was urged by our stakeholders to collect
and distribute that information electronically. Our experience with
Emergency Planning and Community Right-To-Know Act implementation
taught us that electronic data collection and distribution not only
would be more efficient than collecting information on paper, but also
that it would improve data quality and allow State and local
governments to apply their limited program resources to use the
information to reduce chemical risks rather than to manage the data.
On November 6, 1998, following a lengthy debate, EPA announced that
on the advice of security experts at the Federal Bureau of
Investigation, the Central Intelligence Agency, the Department of
Defense, the Department of Justice and others, we would not post the
offsite consequence analysis data on the Internet. All other RMP
information, except for confidential business information, will be
available on the Web.
Since November, some Members of Congress and others have expressed
concern about what is being done to prevent someone other than EPA from
posting the OCA data on the Internet. On February 10, I testified
before the House of Representatives Committees on Commerce,
Subcommittee on Health and Environment, and Subcommittee on Oversight
and Investigations about the issue of public disclosure of OCA data. As
I testified, the challenge before us is to determine how to provide
citizens with the data they need to make informed decisions about
reducing risk, while not providing an easy targeting tool. Therefore,
the goal is to strike the proper balance between chemical risk
reduction and national security.
EPA is now engaged in an interagency process involving the Federal
Bureau of Investigation, the National Security Council, the Department
of Justice, the Office of Management and Budget and the National
Institute of Standards and Technology to explore potential ways of
striking that balance. We will keep you informed as those discussions
progress.
EPA also continues to work with an advisory committee of
stakeholders to identify potential local sources of RMP data. This
committee is considering using the facilities themselves, the State
Emergency Response Commission, the Local Emergency Planning Committee
(LEPC), or other State and local government sources. We also have met
with the Library Programs Service of the U.S. Government Printing
Office to discuss their providing access to all RMP data at 1,300
Federal Depository Libraries nationwide.
In addition, we are developing procedures for EPA's response to
FOIA requests, such as:
Contacting each requestor to inquire whether the individual is
seeking the entire data base and describing what information
already is publicly available on the Internet, which is all RMP
data except OCA;
Asking whether the RMP data base without facility identification
information would suffice;
Explaining the rationale behind EPA's decision not to post OCA data
on the Internet; and
Asking whether providing the data in a format that would deter
copying or posting on the Internet would suffice.
EPA understands that concern over information access and the risk
of terrorism is not limited to RMPs. This, and other similar challenges
will continue to present themselves as we move further into the
Information Age. EPA is positioning itself to meet these challenges, in
part, by creating a new, high-level office focused solely on
information--information technology, information management and
information policy.
Even as we complete the design of this new office, EPA is
committing to better understanding the broader issue of balancing the
two important goals of encouraging health and environmental protection
through public access to information and protecting national security.
EPA's new information office will engage a broad range of stakeholders
in a dialog on this and other information issues.
Conclusion
EPA is committed to providing citizens with RMP information that
will help them work with government and industry to protect themselves,
their families, and their communities from chemical accidents and to
make other informed decisions about their lives. The Agency also is
committed to providing this information in a way that is responsible,
and takes into account of the security concerns raised by the FBI and
others. We will continue to work with all interested parties to meet
this challenge.
Furthermore, EPA continues to examine concerns raised to us about
the regulatory burden of this rule. As I described earlier, we have
responded to stakeholder concerns by producing tailored and detailed
guidance, model plans, and free RMP software. We believe that these
efforts will considerably ease the reporting burden and expense
associated with the regulation. Our goal remains to protect human
health and the environment, but we are ever vigilant that we must
accomplish this goal in the most efficient and least burdensome way.
______
Responses of Timothy Fields to Additional Questions from Senator Inhofe
Question 1. In a letter to 31 members of the House of
Representatives Mr. Jim Makris in your Office stated, ``A business
decision not to use such a chemical or to reduce its inventory to a
level below that which poses a risk to the public would be in keeping
with the purpose of the regulation itself--to reduce risk to the
public.'' This implies that the EPA has intended all along to promote
fuel switching.
Response. EPA's intention in the risk management program is to
reduce risk to the public posed by the potential accidental release of
hazardous chemicals. EPA does not intend to promote fuel switching. EPA
believes that owners and operators of regulated fuel facilities would
consider a number of variables before considering the option of fuel
switching. These variables should include the costs of replacing their
current systems with a new fuel system; the regulatory requirements
associated with other fuels; the impact of the other fuel on their
business; and the cost and effort associated with compliance with EPA's
risk management program.
EPA does not believe that many propane fuel users will switch fuels
when they have considered these variables. In order to ease the cost
and effort associated with filing of risk management plans, EPA has
several products designed to help propane fuel users comply with this
regulation. EPA has made available two guidance documents and model
risk management plans specifically written for the propane industry to
explain the requirements of the RMP. Finally, for those who want to
file their risk management plans electronically, EPA has posted free
filing software on the EPA website.
EPA also recently announced plans to raise the regulatory reporting
threshold for hydrocarbon fuels (including propane) from the current
threshold of 10,000 pounds to 67,000 pounds. The Agency believes that
this new threshold would remove most propane fuel users from having to
file risk management plans. EPA intends to issue a proposed rule
raising the threshold by late May of this year.
Question a. Please provide copies of any correspondence between
your Of floe and the Of flee of Air and Radiation regarding the air
quality effects of fuel switching.
Response. For the reasons explained in response to the previous
question, EPA does not believe that significant fuel switching will
occur as a result of this rule. There is no correspondence on this
issue between the Of lice of Solid Waste and Emergency Response and the
Of floe of Air and Radiation.
Question b. Please explain the Agency's position of encouraging
fuel switching in reference to the above remarks.
Response. As stated above, EPA neither intends nor believes that
the risk management plan rule encourages fuel switching.
Question 2. During the hearing, we had testimony from the
President's of the American Farm Bureau and the National Propane Gas
Association contradicting the EPA estimates of the number of facilities
which will be required to report on propane. Apparently the North
Carolina Department of Environmental Resources has estimated that
11,000 farm facilities in North Carolina alone will be required to
report. Please provide an updated EPA estimate of the number of propane
facilities (all types of facilities) and an explanation for the
discrepancies in the estimates.
Response. The American Farm Bureau (AFB) and the National Propane
Gas Association (NPGA) estimates not only contradicted EPA's estimates,
they contradicted each other. NPGA indicated that 333,000 farms (50
percent of all propane users ) were covered by the RMP rule while AFB
suggested that 66,000 farms (10 percent of all propane users) were
covered. No analytical basis for the percentages used to derive either
estimate was provided.
The North Carolina letter did not say that 11,000 farm facilities
in NC would be required to report. It said that 11,000 tobacco farms in
NC use propane. The letter did not consider EPA's original reporting
threshold of 10,000 pounds, and was written before EPA's announced
intention to raise the threshold to 67,000 pounds (the approximate
storage capacity of an 18,000 gallon propane tank). The letter also
acknowledged that most tobacco farms are not inspected by the North
Carolina Department of Agriculture because they do not store propane in
excess of the amounts which trigger an inspection in North Carolina.
The only hard data available on propane use in North Carolina indicates
that 155 farms have propane in either single tanks of 2,000 gallons or
larger or multiple smaller tanks adding up to 4,000 gallons or more. If
NPGA's 11,000 estimate is to be believed, then 10,845 facilities in NC
must have multiple propane tanks of less than 2,000 gallons
individually, and between 2,380 and 4,000 gallons aggregate capacity.
EPA believes that it is extremely unlikely that there are such a large
number of facilities in this very narrow range of configurations, and
that the 155 farms stated above is probably much closer to the actual
number of covered farms in North Carolina.
Furthermore, American Petroleum Institute (API) data on nationwide
annual sales of LPG states that North Carolina consumes more propane
for farm use than any other State except Iowa. Therefore, North
Carolina is not representative of average State propane use by farms.
EPA's estimate is based on various States which represent a greater
cross-section of propane use. EPA estimated that the total number of
propane users in the U.S. covered by the RMP rule to be approximately
21,400 and the number of distributors to be about 12,500 for a total of
33,900 facilities. These estimates are partly an extrapolation from
data obtained from North Carolina, New Jersey and Texas and are
consistent with additional information received regarding the number of
covered propane facilities in other States, including Delaware, Nevada,
and Oklahoma.
__________
Responses by Timothy Fields to Additional Questions from Senator Chafee
Question 1. In your testimony you state: ``we received reports on
more than 1000 propane accidents from 1987 to 1998.'' How many of the
sites of those accidents would be covered in section 112(r) under the
Risk Management Program?
Response. Data from EPA's Emergency Response Notification System
(ERNS) for the period 1987 to mid-March 1999, contains about 975
reported incidents or accidental releases involving propane. About 50
incidents were associated with transportation activities at a fixed
facility while the remainder (925) involved fixed facility operations.
The actual number of accidental releases is likely to be higher
(>1,000) because propane releases are not currently required to be
reported to EPA and the reports received were voluntary. Although the
ERNS data does not indicate the amount stored or handled onsite, EPA
believes that at least 450 incidents occurred at facilities that would
be covered by the Risk Management Program (RMP). These incidents
occurred at refineries and chemical companies (about 150) and at
companies likely to be distributors of propane (about 300 at facilities
like Amerigas, Ferrell Gas and Suburban Propane). These companies are
most likely handling quantities greater than 10,000 pounds. Most of the
remaining incidents most likely occurred at user sites and there is no
way to judge the quantity handled and whether the site would be covered
by the RMP.
Question 2. Gasoline is explicitly exempted from the Risk
Management Program. According to the ERNS data base, gasoline accidents
have outnumbered propane accidents by nearly ten to one. As you know,
the purpose of the RMP is risk reduction and accident prevention. EPA
made the point that only the most flammable substances have been
included in the Risk Management Program. However, flammability is only
one component of risk. It is likely that more people are exposed to
potential harm by 10,000 gasoline accidents than by 1000 propane
accidents. Given this, why should propane be included in the Risk
Management Program and gasoline excluded?
Response. EPA listed only those highly flammable substances having
a National Fire Protection Association (NFPA) rating of 4 because they
have a higher likelihood of generating a vapor cloud explosion that can
harm the community surrounding a facility. Substances receiving the
NFPA rating of 4 are highly flammable and either exist in gas form or
rapidly volatilize into the air. Although gasoline and other non-listed
substances can readily burn and create fireballs or pool fires, they
have lower NFPA ratings (3, 2, 1) because they aren't gases or they
don't readily volatilize and are not as likely to create a vapor cloud
explosion (please see the List Rule FR notices 59 FR 4478 and 61 FR
16598). However, certain listed flammable substances are often mixed
with gasoline (e.g. butane) especially to produce certain winter grade
gasolines. Consequently, EPA explicitly exempted from threshold
quantity determination regulated substances in gasoline to clarify the
threshold determination exemption with respect to the NFPA 4 criteria.
EPA's ERNS data base contains more reported gasoline releases
because requirements under a number of environmental statutes trigger
reporting of gasoline releases that are then subsequently recorded in
ERNS; there are few reporting requirements for propane. Furthermore,
the ERNS data base contains more reports for gasoline, because of the
far greater amount of gasoline stored and transported in the United
States. Although EPA's ERNS data contains more reported gasoline
releases than propane releases, the sheer number of releases does not
equate directly to exposure. Propane releases constitute a greater risk
of offsite exposure than do gasoline releases because gasoline does not
readily volatilize into the air in a spill; consequently fewer offside
gasoline exposures will occur in comparison to propane. In events where
fires occurred as a result of a gasoline spill, the effects of the fire
were mostly confined to the site where the spill occurred. However, in
large scale propane accidents in which explosions or fires occur, the
magnitude of damage and exposure (deaths, injuries, evacuations, loss
of buildings and businesses) or potential for damage and exposure is
greater than for gasoline because of propane's flammability and ability
to create a more powerful explosion.
Finally, although gasoline and other less flammable substances are
not covered by the RMP rule, owners and operators of facilities
handling these substances still have a general duty obligation under
the Clean Air Act to understand the hazards, design and operate a safe
facility, prevent accidents, and mitigate the consequences of accidents
when they do occur (see section 112(r)(1) of the Clean Air Act).
Question 3. The EPA indicated facilities could avoid the need to
make submissions under the Risk Management Program rule by separating
tanks that are manifolded together and/or by reducing the volume of
propane stored onsite at any one time. This could result in a large
increase in the number of propane transfers as tanks run low more
frequently and newly separated tanks will require multiple transfers.
Since there are likely to be more transfers to comply with the
standards what has the EPA done to assess the risks associated with
such transfers?
Response. EPA published guidance which indicates that facilities
could avoid the need to comply with the RMP rule if smaller tanks were
already separated. EPA noted that some facilities may choose to use
this guidance to make the decision to separate their tanks, and
cautioned that such actions be done in accordance with applicable
standards. In regard to reducing the volume stored onsite, EPA simply
clarified the existing criteria for applicability under the RMP rule,
which is based on actual amount in a process, not maximum storage
capacity. If the quantity used in a large storage tank is already less
than the capacity of the tank and below the threshold quantity, then
the process is not covered. Some propane handlers were misinformed and
aggregated the quantities in all propane storage tanks on a site
regardless of where they were located and they used the maximum
capacity of the vessel rather than actual volume handled to determine
whether they were subject to the rule. This clarification was provided
to those handling propane who didn't realize their situation is such
that they are not covered. Since EPA is promoting risk reduction and
prevention of catastrophic accidents through the risk management
program and plan, we believe that decisions to modify a facility that
ultimately increase the risk of an accidental release primarily to
avoid compliance with a rule violate the general duty clause of the
CAA. The risks of such a move are the responsibility of the business
owner and are neither promoted by EPA nor required by the risk
management program rule. However, the risk management program and plan
is a way for the business owner, employees, first responders and the
community to better understand the risks and the means to reduce those
risks so that the right decisions can be made. Many business owners
have already successfully demonstrated their ability to manage the
risks associated with the use and handling of a wide variety of highly
hazardous substances.
Question 4. It's anticipated that, to comply with this rule, many
propane users would switch fuels. Many propane users may switch from
propane to more polluting substances such as fuel oil. Has the Office
Solid Waste and Emergency Response worked with the Office of Air and
Radiation to determine the air quality effect of fuel switching?
Response. EPA's intention in the risk management program is to
reduce risk to the public posed by the potential accidental release of
hazardous chemicals. EPA does not intend to promote fuel switching. EPA
believes that owners and operators of regulated fuel facilities would
consider a number of variables before considering the option of fuel
switching. These variables should include the costs of replacing their
current systems with a new fuel system; the regulatory requirements
associated with other fuels; the impact of the other fuel on their
business; and the cost and effort associated with compliance with EPA's
risk management program.
EPA does not believe that many propane fuel users will switch fuels
when they have considered these variables. In order to ease the cost
and effort associated with filing of risk management plans, EPA has
several products designed to help propane fuel users comply with this
regulation. EPA has made available two guidance documents and model
risk management plans specifically written for the propane industry to
explain the requirements of the RMP. Finally, for those who want to
file their risk management plans electronically, EPA has posted free
filing software on the EPA website.
For these reasons, EPA does not believe that significant fuel
switching will occur as a result of this rule. There is no
correspondence on this issue between the Office of Solid Waste and
Emergency Response and the Of lice of Air and Radiation.
EPA also recently announced plans to raise the regulatory reporting
threshold for hydrocarbon fuels (including propane) from the current
threshold of 10,000 pounds to 67,000 pounds. The Agency believes that
this new threshold would remove most propane fuel users from having to
file risk management plans. EPA intends to issue a proposed rule
raising the threshold by late May of this year.
__________
Responses by Timothy Fields to Additional Questions from Senator Graham
Question 1. How many propane accidents have occurred since 1990?
Response. Data from EPA's Emergency Response Notification System
(ERNS) for the period 1990 to mid-March 1999, contains about 790
reported incidents or accidental releases involving propane. About 40
were transport related while the remainder (750) were at fixed
facilities. The actual number of accidental releases is likely to be
higher because propane releases are not currently required to be
reported to EPA.
EPA also collected information on 45 serious accidents (only 5 are
included in ERNS) involving propane that occurred during the 1990's,
identified from U.S. Newspapers. Accidents that occurred during
transportation or involving small quantities that would not be covered
by the risk management program rule were not included in this
tabulation.
Question 2. What types of damages did those accidents cause?
Response. Some of the incidents resulted in fires and explosions
which caused damage ranging from minor to complete loss of the
building, business, equipment and vehicles worth millions of dollars.
More importantly, 8 workers and first responders (firefighters) lost
their lives, 122 were injured and thousands had to be evacuated from
their homes and places of business.
Question 3. What percentage of the total number of propane storage
sites would you say have accidents on an annual basis?
Response. Since accidental releases of propane are not currently
required to be reported to EPA, the number of accidental releases that
annually occur as a percentage of the total number of storage sites
cannot be determined. As explained in response to question 1, EPA
believes that the actual annual number of propane releases is higher
than the number EPA has compiled based on reports to EPA's ERNS.
Question 4. I understand that one of the points of contention
between EPA and the propane industry is the cost for distributors to
comply with this regulation. EPA contends that $50-$250 is an accurate
estimate. On what factors are those cost estimates based? The propane
industry contends that the true cost is between $1,000 and $8,000 per
customer. How do you account for this discrepancy?
Response. EPA does not contend that $50-$250 is an accurate
estimate for the average cost for propane distributors to comply with
the regulation. EPA's economic analysis for the RMP rule showed that
Program 2 non-manufacturing facilities in general (propane distributors
fall in this category) would likely spend between $231 to $1679 to
prepare an RMP and supporting onsite documentation, assuming the
facility was in compliance with existing codes, standards, and industry
safety practices. Furthermore, in legal documents submitted to the DC
Circuit Court of Appeals, National Propane Gas Association (NPGA)
representatives made sworn statements that they estimated the average
cost for the propane industry to comply with the RMP rule at $1000
(rather than $1,000 to $8,000). Based on these estimates, there is not
a significant discrepancy between the EPA and NPGA numbers.
__________
Statement of Robert M. Burnham, Chief, Domestic Terrorism Section,
Federal Bureau of Investigation, Department of Justice
Good morning Mr. Chairmen and members of the committee my name is
Robert M. Burnham, and I am the current Chief of the Domestic Terrorism
Section at FBI Headquarters. My current responsibilities include
national oversight and management of the Domestic Terrorism Operations,
Weapons of Mass Destruction and Special Events Management Programs. I
previously served as the Assistance Special Agent in Charge (ASAC) of
the Memphis Field Office of the FBI. I am pleased to have this
opportunity to discuss the potential effects of electronic
dissemination of chemical ``worst case'' scenarios'' data as detailed
in section 112(r) of the Clean Air Act of 1990 (CAA).
The CAA mandates that chemical facilities provide to EPA a Risk
Management Plan (RMP), detailing their risk prevention mitigation
plans. It encompasses the Off Site Consequence Analysis data which
includes the Worst Case Scenario data for both toxic and flammable
materials. The data requires distance to end point and population
affected calculations which detail the size of a plume from a release
and the potential population affected by the plume.
The FBI is aware of the need to aggressively pursue environmental
crimes, and fully supports the Clean Air Act (CAA) and the spirit of
the Community Right to Know legislation. We understand the competing
issues at stake here, between providing the necessary information to
the community, which allows them to make informed decisions on local
planning and preparedness issues, and limiting the risk associated with
the distribution of information that can be used against those same
communities in a criminal manner. The FBI has worked with the EPA to
identify those sections of the Risk Management Plans (RMP) that we
believe can be directly utilized as a targeting mechanism in a
terrorist or criminal incident.
By way of background, on December 14, 1997, representatives of the
FBI were invited to a meeting at the EPA. It was at this time that the
FBI first became aware of a plan by EPA to post the RMP, including the
``Worst Case Scenarios'', on the Internet. The FBI contacted other
Federal law enforcement and intelligence agencies, as well as the
Environmental Crimes and Terrorism Violent Crimes Sections of the
Department of Justice, to discuss issues raised by the EPA's Internet
distribution plans.
Of great concern to the FBI at the time, was a case in 1997 case
that highlighted the potential danger associated with a criminal attack
on a chemical facility. The FBI case, code named SOURGAS, involved four
KKK members who plotted to place an improvised explosive devise on a
hydrogen sulfide tank at a refinery near Dallas, Texas. The FBI was
able to infiltrate the group prior to the attack. A surveillance tape
shows two of the subjects discussing the potential death of hundreds of
area residents. At one point when the discussion turned to the children
who may have become victims, one subject turned to her husband and said
``if it has to be. . . it has to be''. This cold blooded killing was to
take place merely as a diversion for an armored car robbery the group
intended to commit on the other side of town.
Although these individuals did not use the Internet to attack this
facility, it illustrates a growing concern that individuals and groups
are willing to utilize unconventional methods to achieve their goals
and in the process, cause large numbers of casualties. This real life
incident highlights better than any scenario we could create, how
worldwide unfettered electronic access to this information could be
used to facilitate a criminal or terrorist attack in the United States.
The FBI applauds the gains made in accident prevention since the
inception of the CAA and encourages the cooperation between industry
and the communities that has brought about this reduction. We believe
that providing this information to the communities in the appropriate
manner contributes to an increase in safety in those neighborhoods.
Through our discussions over the past year with the EPA, other Federal
agencies and affected parties, the FBI has arrived at initial
recommendations which we believe balance these concerns and give the
communities, State and local agencies and the academic and research
communities, appropriate access to this information. Those
recommendations were provided to Congress in a report submitted by the
FBI in October of last year.
However, the FBI continues to work with EPA and other interested
Federal agencies as part of an interagency group on how to achieve the
appropriate balance between protecting the public from terrorist
attacks and making RMP information available to the public. For
example, representatives from the National Infrastructure Protection
Center (NIPC) have met with EPA representatives and discussed options
for secure transmission of the RMPs to State and local government
agencies.
There is concern that certain groups and individuals will acquire
the information through lawful means and post it in its entirety on
private Internet sites. The FBI as part of the interagency group has
met to discuss this issue. Although this issue is currently under
discussion by the interagency group, the FBI is concerned that under
FOIA laws the RMP information, to include the Worst Case Scenario
information, would have to be provided in electronic format if
available . If that is the case, groups or individuals could acquire
the information in this manner and reproduce it on the Internet. The
net effect would be that these groups would undermine all of the
efforts of the many agencies who have worked to bring a responsible
approach to the dissemination of this information.
The Internet provides fast and inexpensive methods for
disseminating educational information and has the potential to be a
tremendously positive force in the future. However from a terrorist
threat analysis, providing unfettered electronic access to this type of
information on the Internet could have disastrous consequences. The
worst case scenario data alone, does not contain all the information
necessary to carry out a terrorist attack, however in conjunction with
the numerous sites already available on the Internet containing ``how
to'' literature on bomb making, surveillance/counter surveillance and
terrorist tactics and devices , it adds to the arsenal of potential
criminals.
Mr. Chairman, thank you for the opportunity to appear before you
today. I would be happy to answer any questions you may have.
______
Responses by Robert M. Burham to Additional Questions from Senator
Lautenberg
Question 1. New Jersey has several large chemical plants. If Risk
Management Program's Right to Know program did not go forward, could
you guarantee that there would be no terrorist attacks on these
chemical plants.
Response. The FBI has repeatedly stated that we fully support the
Community Right to Know program and are convinced that this program has
contributed significantly to the gains made in accident prevention and
chemical safety over recent years. The FBI encourages the cooperation
between industry and the communities that have brought about this
success. We believe that providing this information to the communities
in the appropriate manner contributes to an increase in safety in those
neighborhoods. The FBI was asked to give a security assessment of the
EPA's plan to disseminate the entire Risk Management Plan (RMP) on the
Internet. It was the FBI's suggestion that the sections 2, 3, 4 and 5
of the RMP, which contain the Worst Case Scenario data, not be made
available on the Internet. The FBI however has supported the Internet
distribution of the majority of the RMP information, and has suggested
alternative methods for disseminating the Worst Case Scenario
information.
There is no way to predict the future target of a terrorist attack.
The FBI attempts to prevent terrorism incidents through ongoing
investigations and by vigorously pursuing indications of terrorist and
criminal activities in the United States. However there is no way to
guarantee the safety of the all of the private facilities in the United
States from terrorist or criminal attack.
Question 2. Assume the Right to Know program doesn't exist, but
that a terrorist finds a chemical plant by driving by one or looking in
the phone book. Do you believe that the average chemical plant in the
country is sufficiently protected by terrorist attack?
Response. The FBI has not done any study or research to determine
the state of security of chemical facilities within the U.S. FBI
Headquarters has instructed the Field Offices to contact major chemical
facilities in their area and establish lines of communication with
facility operators to encourage reporting of potential criminal
activity to the FBI. This is not a formal study and no security
assessment has accompanied this liaison.
Question 3. Are there measures we should take, such as increasing
site security, ``hardening'' hazardous operations from bombing attacks,
or banning certain chemical operations from being located near
residential areas, schools, or major roads.
Response. As stated earlier, the FBI has not conducted any study to
determine the current state of security at chemical facilities, and as
such the FBI is not in a position to make specific recommendations
regarding security at chemical facilities. In general however, the FBI
is supportive of any measures which [Note: The written response to this
question is incomplete in the committee record.]
__________
Response by Robert Burnham to an Additional Question from Senator
Graham
Question. Are there any alternative distribution mechanisms for
risk management information that in any way reduce the likelihood that
risk management information would be used to design a terrorist attack?
Response. In previous responses to Congress the FBI has discussed
recommendations that we believe would limit the utility of the Risk
Management Plans (RMP) as a targeting tool. These recommendations are:
The RMPs, minus the OCA data, would be available on the Internet.
This would eliminate the targeting potential. This would however
provide individuals with registration information regarding facilities
in their area, Five Year Accident History, Prevention Programs, and
Emergency Response information. This would be available in an open
format.
State and local government agencies would have access to all
national RMP data via a closed computer system. This system may have
resource implications involved, however, this will allow for up to date
immediately available information to first responders and emergency
planning agencies while protecting the information from improper
dissemination.
A compact disk (CD) of the information could be created for
research and environmental organizations with all of the comparison
data, without the identifying or contact information. This would allow
for national trends to be analyzed and nationwide data to be studied,
but would alleviate the potential for targeting of particular
facilities based on this information.
By implementing these methods, we believe that the appropriate
parties will have access to the information necessary while limiting
the potential for criminal use of this information.
__________
Statement of Dean Kleckner, American Farm Bureau Federation
Good morning, Mr. Chairman. I would like to thank you and the other
members of the subcommittee for holding his hearing. I am Dean
Kleckner, a hog and soybean farmer from Rudd, Iowa, and I serve as the
President of the American Farm Bureau Federation, the nation's largest
agricultural organization.
As you know, Mr. Chairman, propane is an important commodity in
rural America. It can be found on 660,000 farms and is widely used in
various agricultural applications. These include crop drying, heating
of livestock facilities, operation of crop protection devices (wind
machines) and a host of residential uses. Each year, approximately 1.5
billion gallons of propane are used for agricultural purposes.
Demand for propane by farmers is driven by a number of factors.
Most farms are located in areas beyond the reach of the gas lines that
serve the typical urban consumer. Propane, while indeed a gas, is
safely transported and stored as a liquid when subject to a modest
amount of pressure. This characteristic is what allows farmers to enjoy
the economic and environmental benefits of gaseous fuels.
We strongly oppose the inclusion of propane as a covered substance
subject to the Environmental Protection Agency's Risk Management
Program (RMP). In deciding to regulate propane under this program, we
believe EPA failed to consider the significant adverse effects which
these regulations will have on hundreds of thousands of farmers
nationwide.
Adverse Safety Consequences
By adopting section 112(r) of the Clean Air Act Amendments of 1990,
Congress specifically sought to reduce the risks associated with the
accidental and catastrophic release of toxic chemicals. It is our
strong belief that the original intent of Congress was to address
substances used in manufacturing processes or other chemical
applications, rather than those used as a fuel source. Unfortunately,
EPA's decision to include propane, coupled with its decision not to
grant a fuel-use exemption, has the effect of extending these
regulations to consumers who use comparatively small volumes of this
covered substance.
The RMP rules require farmers and other propane users with more
than 2,358 gallons of propane storage to complete and file risk
management plans by June 21, 1999. While larger agribusinesses might
have greater storage, a typical installation on a small farm would
likely consist of anywhere from two to five 1000-gallon propane tanks
or containers piped together. Having only three such cylinders would
bring the farmer under the requirements of the RMP program.
It is wrong to confront agriculture with new regulatory burdens and
resulting compliance costs that are vague, misleading and fail to
achieve the stated purpose of protecting the public safety. It is
understandable that a significant percentage of users will try to
lawfully avoid the burden of compliance by limiting their volume of
onsite storage. This could be accomplished by simply instructing their
propane supplier to reduce delivery volumes to an amount below the
program's threshold level (2,385gallons). However, this will result in
a significant increase in the number of propane deliveries.
Although propane has a proven safety record, there is, in fact,
some degree of risk associated with the storage and handling of any
flammable fuel. Government agencies that are knowledgeable about
flammable fuels understand that the risks associated with the
transportation of flammable fuels are considerably higher than those
associated with stationary storage. The RMP compromises safety because
it shifts the emphasis from low risk stationary storage to the higher
risk category of transportation.
EPA's own incident data base of 157 incidents dating back to 1951
confirms this point. Of the 31 incidents listed involving sites over
the threshold level, 15 of them were related to transportation. None of
the events listed could be confirmed to have involved the release of
product from a stationary source located on a farm. It is at best
ironic that a rule intended to reduce the risks of accidental releases
will, in practice, result in an increase in the number of such
incidents.
Distribution Disruptions
A significant increase in the number of deliveries also will lead
to serious fuel distribution difficulties, thus placing an additional
burden on America's farmers. The propane distribution infrastructure is
unique because of its cyclical nature. Demand for propane increases
dramatically with the onset of the fall crop-drying season and
continues throughout the winter season. At the end of the peak-heating
season, demand for the product falls as precipitously as it rose
several months prior. Seasonal fluctuations in demand mean that
propane's distribution infrastructure is vastly underutilized for
several months of the year. In the remaining months, however, the
distribution infrastructure strains to meet the needs of seasonal
customers.
Subjecting propane to the requirements of RMP will increase the
number of winter deliveries, thereby placing added pressure on an
already overburdened infrastructure. The availability of this important
commodity will be untimely and unnecessarily limited. This situation
will be exacerbated by the winter driving conditions that are beyond
the control of either the farmer or his propane supplier. This season
alone, 15 States have issued emergency waivers relaxing Federal hours-
of-service regulations as a way to prevent interruptions in fuel
deliveries brought on by winter driving conditions.
Regulatory Duplication
Too often new Federal regulations are promulgated in a vacuum. They
are considered as stand-alone requirements, rather than part of a
comprehensive quilt of overlapping safety measures. Unfortunately, this
is the case with EPA's Risk Management Program as it applies to
propane. EPA appears to take the position that an industry is
unregulated unless it is doing the regulating. The agency has failed to
consider the vast extent to which propane is already regulated at the
Federal, State and local levels. It failed to take into account the
fact that propane installations are designed, constructed and
maintained in accordance with the standards for the safe storage and
handling of propane established by the National Fire Protection
Association (NFPA). These standards have, in fact, served consumers
well as a safe and effective accident prevention program.
EPA's failure to give credence to existing safety standards
violates the Federal standards adoption policy. The National Technology
Transfer and Advancement Act of 1995 stipulates that ``all Federal
agencies and departments shall use technical standards that are
developed or adopted by voluntary consensus standards bodies, using
such technical standards as a means to carry out policy objectives or
activities determined by the agencies and departments.''
Had NFPA and EPA sought to work with stakeholders to improve that
standard to achieve its goals, we would not need to be here today.
Non-conformity with Other Clean Air Act Provisions
Congress understood the importance of avoiding duplication and
ensuring cross-agency conformity when it passed the Clean Air Act
Amendments in 1990. Section 112(r) of the act authorizes the
establishment of two companion programs dealing with onsite and offsite
consequences. Authority for the workplace program (i.e., onsite
consequences) was granted to the Occupational Safety and Health
Administration of the U.S. Department of Labor; authority for programs
relating to offsite and environmental consequences was granted to EPA.
Mindful of the need for uniformity, Congress specifically
instructed EPA ``to consult with the Secretary of Labor and the
Secretary of Transportation and shall coordinate any requirements under
this paragraph with any requirements established for comparable
purposes by OSHA or DOT.''
In 1992, OSHA established its onsite program known as the Process
Safety Management Program (PSM). In doing so, it granted a fuel use
exemption. Consumers who use covered substances as fuel sources are not
required to comply with PSM requirements. EPA, when faced with the same
option on its RPM, decided to oppose such an exemption. We believe it
took this action in direct violation of the clear language of the
statute.
Furthermore, section 112(r) specifically authorizes an exemption
for anhydrous ammonia, a toxic chemical, when used for agricultural
purposes. Considering that propane, unlike anhydrous ammonia, is non-
toxic, it is baffling that EPA chose to list propane under RMP.
Burden of Compliance
The Risk Management Program is complicated and highly technical.
Risk management plans, which must be filed by June 21, 1999, are based
on complex chemical release models. The Final Rule published by the EPA
in June 1996, is 62 pages in length. EPA's guidance document for
propane users is 24 pages. The general guidance document for risk
management plans is 2 inches thick. With your permission, Mr. Chairman,
I would like to introduce a copy of these documents into the record.
We are aware of EPA's contention that in the final analysis, risk
management plans will be only a few pages in length. We believe this is
akin to arguing that a Federal income tax filing is only a few pages in
length. Their analogy fails to acknowledge that it will take dozens of
hours to collect and organize the appropriate data before a relatively
brief plan can be completed.
Because of the highly technical nature of the program, we believe
that most covered farmers will find it necessary to contract with RMP
service providers in order to meet their obligations under the rules.
It is our understanding that the propane industry has compiled a list
of vendors and the average cost of completing a risk management plan
will be several thousand dollars per site. Even if only 10 percent of
the 660,000 farm users of propane are required to file a plan, the
total cost to the farm economy could exceed $100 million.
While it is likely that many rural propane users will fall into the
least rigorous compliance category (Program 1), the economic impact
will remain high since a significant up-front cost will be incurred to
determine the appropriate program level. Farmers who ultimately qualify
for Program 1 coverage will still be required to complete a detailed
offsite consequence analysis to determine their eligibility for this
program level.
It is quite clear that EPA failed to understand the full
implications of its decision to include propane customers. EPA
estimates that 66,000 sites are covered under RMP nationwide and that
28,000 (42 percent) of those sites involve propane. In stark contrast
to EPA's calculations, the North Carolina Department of Environment and
Resources estimates there are 11,000 covered farm sites in that State
alone!
State of Farm Economy
Much has been said in recent months about economic conditions
affecting the average farmer. Those of us who are involved in
agriculture know that times are tough. We farmers and ranchers are
willing to tackle those tough times, but now is not the time to place a
$100 million compliance burden on farmers.
EPA's Modest Proposals
We understand that in recent weeks EPA has recognized that its
estimate of the number of affected farms was severely low. We
appreciate and welcome EPA's overtures and believe they suggest a
willingness to reduce the burden which the RMP rules place on farmers.
We are concerned, however, that the proposals floated to date do not
sufficiently address the issues presented in our testimony.
EPA is apparently willing to consider altering the program guidance
documents to address distances of non-interconnected tanks for the
purpose of making threshold determinations. The relief provided by this
action would be negligible since a substantial percentage of farm
installations include multiple interconnected cylinders. Furthermore,
regulatory guidance is not a substitute for regulatory text. EPA's
current guidance document states, ``This document does not substitute
for EPA's regulations, nor is it a regulation itself. Thus, it cannot
impose legally binding requirements on EPA, States, or the regulated
community, and may not apply to a particular situation based upon
circumstances. This guidance does not represent final agency action,
and EPA may change it in the future, as appropriate.''
We are troubled by the fact that EPA could indeed change its
guidance without the benefit of notice and comment.
Conclusion
I appear before this committee on behalf of the hundreds of
thousands of farmers now caught in this regulatory dragnet. In keeping
with that responsibility, I would ask your indulgence to include in the
record letters from 17 agriculture organizations whose views support
the testimony I have given here today.
In summary, Mr. Chairman, EPA's Risk Management Program as it
pertains to propane is unsafe, contrary to the environmental goals
established by the Clean Air Act, and will adversely affect hundreds of
thousands of farmers nationwide. We urge this committee to act quickly
to avoid these consequences before the June 21 deadline.
__________
Statement of Jim Bertelsmeyer, National Propane Gas Association
My name is Jim Bertelsmeyer and I am chairman of Heritage Propane,
headquartered in Tulsa, Oklahoma. In my real life I run a propane
marketing company, but I appear before you today as President of the
National Propane Gas Association.
NPGA is the national trade association representing the propane gas
industry. The association's membership includes around 3,700 companies
that market propane gas and equipment in all 50 States and in every
congressional district. The single largest group of members are retail
marketers of propane gas, but the association also includes propane
producers, transporters, manufacturers and distributors of equipment,
containers, and appliances. Propane is used in over 18 million
installations nationwide for home and commercial heating and cooking,
in agriculture, in industrial processing, and as a clean air
alternative engine fuel for both over-the-road vehicles and forklifts.
As strong advocates for increased alternative fuel usage in the
United States, NPGA supported many of the goals and provisions of the
Clean Air Act Amendments of 1990 and the Energy Policy Act of 1992. We
continue to support the intent of these laws, but we cannot support the
way in which they are being abused by the EPA. The unintended
consequences of implementing the section 112(r) of the Clean Air Act in
ways never envisioned by Congress have led us to this situation today.
My statement today focuses on the many concerns the propane
industry has with EPA's Risk Management Program (RMP) regulations,
issued under authority of section 112(r) of the Clean Air Act
Amendments of 1990. Our concerns are that EPA's rules will:
duplicate an extensive and credible safety infrastructure that has
existed for decades in all 50 States without exception through
State building and fire codes;
reduce safety in the propane industry by causing customers to
demand more small deliveries rather than the safer alternative if
fewer large deliveries;
degrade air quality by stifling development of propane use as an
alternative fuel; cause propane users to switch to less
environmentally desirable fuels not similarly covered; and
cost the propane marketers and customers vast sums of money for
little or no increase in safety.
The remainder of this statement provides additional information
supporting these concerns.
propane facilities are already closely regulated at the state and
federal levels
Propane facilities, whether they be bulk storage plants owned by
marketers or smaller storage facilities operated by customers, are
subject to regulation in all 50 States through building and fire codes.
These codes without exception adopt or incorporate Safety Standard 58,
Liquefied Petroleum Gas Code, published by the National Fire Protection
Association (NFPA).
NFPA 58 is adopted by State agencies either by reference or by
direct incorporation. Forty-eight States have adopted NFPA 58 by
reference, which means that the State agency's rules simply require
propane facilities to be designed, constructed, and operated in
accordance with NFPA 58. The remaining two States (Texas and Arkansas)
have adopted NFPA 58 by direct incorporation, which means that they
have taken the substance of the standard and written it into their own
building or fire codes. Both methods allow for code inspectors to
determine compliance with NFPA 58, thereby ensuring they are operated
as safely as possible.
As a service to its members, NPGA recently published a new edition
of the State Laws and Regulations Handbook, which summarizes the status
of propane regulation in all 50 States. A copy of that document is
attached to this statement for incorporation in the record.
The propane industry also complies with the following Federal
regulations:
DOT's hazardous materials regulations, which as of October 1, 1998
apply to both interstate and intrastate operations; OSHA's workplace
safety rules, including the Process Safety Management (PSM) rules where
applicable; and EPA's rules implementing the Emergency Planning and
Community Right-to-Know Act of 1986 which requires facility data to be
available to emergency responders and to the public.
propane marketers actively promote safety
The propane industry takes its safety responsibilities very
seriously. Indeed, NPGA is now engaged with numerous other stakeholders
in a major DOT regulatory proceeding that promises dramatic increases
in safety. NPGA is proud to be an active participant in a negotiated
rulemaking committee charged with updating delivery truck safety
features and operating procedures for the safe unloading of propane at
the customer's tank. The results of this reg-neg will be a significant
jump in safety taking full advantage of both new technologies and the
industry's commitment to safety.
The propane industry voluntarily spends significant time and money
training local fire departments all over the nation. Emergency
responders need to be as highly trained as possible, and we are putting
our money where our mouth is. This industry is spending $652,000 on the
national level this year alone to develop a comprehensive training
curriculum for emergency response personnel, which should be available
for free later this summer. Furthermore, through the national
association, we are adopting the safety recommendations of the U.S.
Chemical Safety Board to upgrade the training materials available to
the emergency response community.
history of section 112(r) and epa's risk management program rules
On November 15, 1990, President Bush signed the Clean Air Act
Amendments of 1990 into law. Section 112(r) of the Act requires EPA to
publish regulations to prevent and minimize the consequences of
accidental releases of hazardous substances. EPA was to publish a list
of at least 100 hazardous substances and implement a program whereby
facilities using listed substances would make detailed risk management
plans available to EPA and the public. EPA finalized its list of
substances, which included propane, on January 31, 1994, and its Risk
Management Program (RMP) regulations applicable to listed substances on
June 20, 1996. Since NPGA comments were largely ignored by the Agency
in both rulemakings, NPGA sued on August 18, 1996 seeking relief from
the regulations.
The RMP regulations establish three increasingly rigorous
compliance paths for facilities having listed hazardous materials
onsite in greater than threshold quantities. For propane facilities,
the threshold quantity is 10,000 pounds or 2381 gallons at 60 degrees
Farenheit. EPA's RMP rules cover all facilities, whether they be
industrial, commercial, agricultural, or residential, having more than
the threshold quantity of 10,000 pounds of propane onsite. The propane
need not be in a single tank, or even in interconnected tanks. 2381
gallons of propane is typically the amount that a small commercial
facility would have, although there are many residences that have this
amount.
Program 1 participants must develop a worst-case scenario and
analyze all releases over the past 5 years, and coordinate emergency
efforts with local responders. Propane marketers will qualify for
Program 1 if their worst-case scenario demonstrates that there are no
``public receptors'' within range of the worst case scenario and if
their 5-year accident history shows no deaths, injuries, or offsite
restoration activities. The term ``public receptor'' means offsite
residences, institutions such as schools and hospitals, industrial,
commercial and office buildings, parks, or recreational areas inhabited
or occupied at any time without restriction where members of the public
could be exposed to radiant heat or overpressure as a result of an
accidental release.
Program 2 requires more detailed hazard assessments and
implementation of prescribed accident prevention steps. Program 2
participants must prepare at least one alternative release scenario
that is more likely to occur than a worst case scenario. In addition,
Program 2 participants must: (1) ensure that up-to-date safety
information is available; (2) conduct a detailed hazard review of each
facility; (3) prepare written operating procedures; (4) ensure each
employee has been trained in the operating procedures; (5) maintain the
mechanical integrity of all equipment; (6) complete compliance audits
every 3 years; and (7) investigate each incident.
Program 3 is the most rigorous and will affect those propane
marketers who are covered by OSHA's Process Safety Management (PSM)
regulations (i.e., do not qualify for the retail exemption). Program 3
facilities must perform the same tasks as Program 2 facilities plus
many others that are analogous, but not necessarily identical, to
OSHA's PSM requirements.
The Clean Air Act imposes both civil and criminal penalties for
violations of EPA rules. For civil violations, EPA may impose monetary
penalties of no more than $25,000 per day per violation. For knowing
violations of the Act, criminal monetary penalties of up to $25,000 per
day per violation and/or up to 5 years in prison may be imposed.
epa's rules will degrade safety at propane facilities
EPA's regulations, despite its ``motherhood and apple pie''
sounding requirements, will have unintended consequences that actually
reduce safety. The unfortunate thing is that these unintended
consequences are entirely foreseeable.
It goes without saying that many propane customers will seek to
reduce the amount of propane they store to levels below the 10,000
pound threshold for coverage by the RMP rules. This will not, however,
reduce customers' demands for timely deliveries of propane from their
suppliers. Therefore, one of the major unintended consequences of EPA's
RMP rules will be that propane delivery will be made much less safe.
And since the industry's busiest time is during the winter heating
season, these trucks will also have to deal with winter driving
conditions that can be particularly challenging.
Not only will customers decide on their own to keep their storage
low or switch fuels, they will be counseled or actually forced to do so
by government agencies. Two particular cases have arisen in California.
First, the Orange County Certified Unified Program Agency stated in a
letter to businesses, ``Should your business so choose, you may
implement one of the following options in lieu of developing an RMP:
(1) Eliminate or replace the Regulated Substance with a non-regulated
substance, or (2) Reduce the amount onsite to below the Federal
threshold quantity.'' Second, California Assembly Bill 172 was
introduced by Assembly Member Firebaugh on January 15, 1999. The bill
would prohibit after January 1, 2000 any person from commencing any
process involving propane or any other regulated substance that is
located adjacent to a school. Notwithstanding the fact that the bill
lumps propane--a non-toxic substance--in with many other exotic and
lethal toxic substances, many schools use propane themselves and will
therefore be forced to switch to other fuels.
Fuel switching is a reality. New information from the North
Carolina Propane Gas Association shows that propane marketers in the
State have already lost 213 customers, which is a demand loss of almost
5 million gallons. Furthermore, 360 customers are expected to downsize
their storage capacity to avoid compliance.
While the industry prides itself on its excellent safety record,
accidents do occasionally happen. But more often than not accidents are
caused by or occur during transportation activities, which are not
covered by the RMP rules. EPA's own data demonstrate that many more
accidents occur during transportation than when propane is held for
storage at a stationary site covered by the RMP rules. Conversely,
EPA's data shows that (1) only a small minority of incidents occur at
facilities targeted by the RMP rules, and (2) the majority of incidents
are related to transportation activities not covered by the RMP rules.
NPGA reviewed the data that EPA placed in the RMP rule docket to
justify its decision to cover propane. The EPA data obtained by NPGA is
an undated printout of 112 incidents logged by the Major Hazard
Incident Data Service (MHIDAS) and 52 pages of reprinted news articles
covering propane incidents. EPA's data includes incidents going all the
way back to 1951, and even includes an incident from Japan. Of the 157
incidents reviewed:
Only 31 incidents (19 percent) could be confirmed to have occurred
at what would have been an RMP-covered facility. Of the remaining
incidents, 89 incidents (57 percent) could be confirmed to have
occurred at a facility not covered by the RMP rules. The record was too
incomplete to make a judgment on 37 incidents.
Of the 31 incidents that occurred at RMP-covered facilities, only
16 incidents could be confirmed to have not been caused by or during
transportation activities. Of the 16 non-transportation related
incidents at RMP-covered facilities, only 11 incidents (7 percent)
could be confirmed to have had offsite consequences. This is a critical
figure because prevention of offsite consequences is the fundamental
reason for the entire RMP regulation. Moreover, offsite consequences
included such purely precautionary measures as evacuations, so actual
damage did not occur in all cases. Finally, EPA's record justifying the
RMP rules includes 8 incidents (5 percent) where propane was either not
involved or was found not to have leaked.
epa's rmp rules will degrade air quality by burdening a clean
alternative fuel
EPA has adopted a regulation that will actually make air quality
worse. Propane is a federally approved alternative fuel under section
241 of the Clean Air Act and section 301 of the Energy Policy Act of
1992. NPGA strongly supported enactment of these provisions by
Congress.
EPA's RMP rules will affect air quality in two ways. The first way
is through actual fuel switching by customers to less environmentally
desirable fuels that either are specifically not covered by RMP, such
as fuel oil and electricity, or that are typically not stored in bulk
quantities, like natural gas. Customers switch fuels for a variety of
reasons. First, companies are considering switching fuels because the
RMP rules are very complex and burdensome. Not only do they require a
substantial initial investment to get into compliance, they require
continuing allocation of resources to ensure continued compliance in
the future. Remember, too, that companies will be urged in no uncertain
terms by agencies like Orange County California's that fuel switching
is a viable alternative to compliance. Second, companies are
considering switching fuels because the RMP rules come with a high
public relations price tag. What facility will feel its position in the
community has been enhanced by the publication of information showing
that an accident could devastate its neighborhood? Such information is
a powerful incentive to switch fuels. And such information will be
unnecessarily scary because EPA's modeling requirements, according to
the National Fire Protection Association, will predict impacts far
greater than an actual worst case release could produce.
The second way EPA's rules will degrade air quality is through
stigmatizing the use of propane as an alternative engine fuel. Propane
is widely used as an engine fuel. Due to the low pollution
characteristics of propane, more than 300,000 forklifts and other
indoor vehicles use this fuel. In addition, over 80,000 bus, taxi, and
delivery services and fleets are powered by propane. It is common
knowledge that the alternative fuel vehicle industry remains in its
infancy, and needs all the help it can get, especially in these times
of unprecedented low gasoline prices. The RMP rules will erect just one
more burden that propane needs to overcome as the industry strives to
make widespread acceptance and commercialization a reality.
Congressional interest in removing impediments to usage of
alternative fuels has been strong and consistent. For example, on
August 5, 1997, President Clinton signed the Taxpayer Relief Act of
1987 into law which included a provision to remove tax-related burdens
on propane use as an alternative fuel. Specifically, the Act included a
provision providing propane and other alternative motor fuels Federal
excise tax parity with gasoline. Under this provision, the effective
rate of the Federal excise tax on these fuels should be the same as the
rate on gasoline.
epa vastly underestimates the reach of the rmp program
EPA estimated in its final RMP rule that only 66,100 stationary
sources would be covered by the entire RMP rule, which applies to 140
different toxic And flammable substances.
Subsequently, EPA estimated that approximately 28,000 facilities
will be brought into the RMP program specifically because of propane
storage.
NPGA believes EPA's estimates to be spectacularly low. In 1991,
NPGA commissioned a statistical survey of the propane industry, and the
responses were compiled by the independent accounting firm Baldwin &
Brooks. That study shows that 660,000 farms, 350,000 industrial and
utility sites, and over 1 million commercial facilities use propane on
their sites. Of these use sectors, we believe that 100 percent of the
industrial facilities will be RMP-covered, 50 percent of the farms will
RMP-covered, and 30 percent of commercial facilities will be RMP-
covered. This totals over 1 million RMP sites just for propane alone.
Another indicator of the vast underestimation of the regulated
community comes from North Carolina's Department of Environment and
Natural Resources. The Department sent a letter to EPA on November 9,
1998 stating that in North Carolina, approximately 11,000 farms use
propane to cure tobacco. In other words, a single propane user sector--
farmers--of a single propane use--curing tobacco--in a single State
totals nearly 33 percent of EPA's entire national estimate for propane.
Add in the 12,000 marketer facilities that exist across the nation, and
you've already accounted for over 80 percent of EPA's national
estimate.
epa also vastly underestimates the costs of the rmp program
Many propane marketers and customers will need to rely on outside
assistance to comply with the RMP rules, and their reasons vary. EPA
protestations to the contrary, the RMP rules are complex and take
significant amounts of time and effort to comply. A marketer may have
numerous bulk storage facilities, or may have numerous customers who
ask for help and advice. Most customers will be unprepared to comply
from a technical standpoint.
NPGA sought information on the fees being charged by 36 engineering
consulting firms. 23 consultants declined to give figures. Of the 13
firms who did provide fee estimates for RMP preparation, only two came
in below $2000, while 11 firms were equal to or greater than $2000.
Hourly fees ranged from $25-140, and daily fees ranged from $500-
2000. One firm said that RMPs could cost as much as $20,000! Most
recently, a consultant stated during his presentation to the New York
Propane Gas Association that a Program 2 RMP takes 30-70 hours to
complete and costs from $3-5,000, depending on the amount of site-
specific preparation that has taken place.
Even if a marketer or user chooses to avail himself of the EPA's
free RMP submittal software or other compliance assistance tools,
compliance with the RMP rules will drain scarce resources away from
other activities that increase safety. For example, one propane
marketer in Wisconsin sends its drivers to a special driving track
where they learn how to handle their delivery trucks on frozen
pavement. This is not a free activity, of course, and may well have to
be dropped if the money must be spent complying with the RMP rules.
NPGA has quantified the costs of the RMP program to propane
marketers and customers. Our estimate does not include any fees
assessed by those States that have taken over RMP enforcement from EPA,
which can be hundreds or even thousands of dollars per site. While
compliance with EPA's rules does not entail a fee, EPA explicitly
recommended that all States adopt fees for administering the program
for EPA.
Using a conservative estimate of $1,000 per site in compliance
costs, which includes direct costs such as consulting fees or computer
software and also indirect costs such as company staff time, the RMP
rules will cost:
$330 million to the farm sector;
$675 million to all other covered propane customers;
$12 million to propane bulk storage plants.
The bottom line is that the RMP rules are an expensive and
duplicative paperwork exercise that will have little or no discernible
impact on safety, but which will drain more than $1 billion away from
marketers and their customers.
recent developments on npga's lawsuit
NPGA has pursued all available avenues to obtain relief from the
burdensome RMP rules, including filing a lawsuit on August 19, 1996.
Despite industry's good-faith attempts to negotiate a settlement, the
Agency has consistently rebuffed the industry. Most recently, EPA
extended a 4-part settlement offer to make minor changes to the
guidance documents and the rules specifically targeting rural
agricultural users. NPGA rejected the offer on February 22, 1999 on
both procedural and substantive grounds. Not only would the changes not
have had the force of law, they would not have addressed the underlying
issues of fuel switching and decreases in safety that have been
detailed elsewhere in this testimony.
NPGA is prepared to brief the case, but we are unable to get a
court date until October 1999 at the earliest. This is, of course, 4
months after the compliance date for the RMP rules. We have formally
requested EPA for at least a 1-year stay in the rules' effective date
to allow resolution of the case. We are hopeful that the Agency will
respond favorably, of course, but we are not optimistic.
conclusion
Mr. Chairman, EPA's RMP rules should not cover propane. The rules
will cause customers to switch to other less environmentally friendly
fuels. The rules will decrease safety by increasing the number of small
deliveries on America's roads. The rules will erect disincentives to
use of a Congressionally approved clean air fuel. The rules will cause
confusion in the marketplace by duplicating safety standards that have
existed in all 50 States for many years. The rules will drain scarce
resources away from real safety initiatives and into a paperwork
exercise with few benefits. The rules are an expensive paperwork burden
that are clearly not justified.
Thank you for this opportunity to testify.
______
Response of James E. Bertelsmeyer to Additional Question from Senator
Graham
Question. I understand that one of the points of contention between
EPA and the propane industry is the cost for distributors to comply
with this regulation. EPA contends that $50-$250 is an accurate
estimate. You contend that a more accurate figure is $1000-$8000 per
customer. On what factors are your cost estimates based? How do you
account for the major discrepancy in your numbers?
Response. There are a number of costs to be borne by facilities in
complying with the RMP rules, including direct costs such as software
purchases or engineering consultant fees, and indirect costs such as
staff time. NPGA believes that these compliance costs reach at least
$1000 per site and quickly rise to $8000, or more in some cases. The
$1000 figures is a conservative average estimate for facilities across
the United States; it is by no means a maximum.
NPGA reviewed the various software packages on the market and
endorsed the program that best meets the needs and expectations of
propane marketers and users. This software, manufactured by Dyadem
Inc., costs $595 for NPGA members, which is a substantial discount from
the published list price of $1500. Many companies are using this
software rather than EPA's software because it is propane-specific; it
includes integrated calculation and word processing features; and
provides hundreds of help menus to assist users. None of these features
is available in comparable form in EPA's RMP Submit software, so buyers
report that the price is well worth it. It should also be noted that
EPA's software has only become available in recent weeks to those
placing orders for diskettes in January.
Computer programs do not run themselves, nor do they collect the
data to be input. NPGA estimates that it takes at least 25 hours to
read and understand the rules; to collect and verify site information;
and input the data into electronic form. Even if the costs of staff
time are merely $20 per hour, the total direct and indirect costs to
comply with the RMP rules will exceed $ 1000 if the Dyadem software is
used. For those marketers who do not have computers and must therefore
comply manually, we believe compliance will take much more time,
perhaps even double. Remember, too, that Clean Air Act violations can
cost the violator $25,000 per day, so marketers take extra time to
ensure the information to be submitted is accurate and complete.
Finally, marketers are acutely aware of the citizen suit provisions of
the Clean Air Act, which expose them to legal liabilities of non-
compliance, so extra care and time is warranted.
For those companies who choose to hire consultants to prepare
compliance documents, costs will soar to the high end of our cost
range. NPGA published in October 1998 a directory of consulting
services that included information from 33 companies who were known to
provide RMP compliance services. (A copy was provided to the committee
for the hearing record.) Only 11 of the firms provided cost estimates,
and of these, only 2 companies quoted costs less than $2000 per
facility. The remainder quoted costs greater than $2000, with the top
quote coming in at $20,000!
Based upon the foregoing, NPGA believes that EPA's speculative $50-
$250 estimate is unrealistically low. Indeed, during an RMP
presentation earlier this year in St. Louis, EPA estimated that RMP
compliance would likely be hundreds of dollars higher than $250. NPGA's
figures, on the other hand, are grounded in real world experiences in
the field.
__________
United States Senate,
Committee on Environment and Public Works,
Washington, DC, November 4, 1998.
The Honorable Carol M. Browner, Administrator,
Environmental Protection Agency,
Washington, DC 20410.
Dear Administrator Browner: As you may know, the Environmental
Protection Agency (EPA) is now pursuing an effort to implement many of
the provisions of section 112(r) of the Clean Air Act, including the
collection of Risk Management Plans (RMPs) from facilities handling
substances listed under section 112(r)(3). This is an important effort
to improve the safety of industrial chemical processes and I support
EPA's effort. Also, I am encouraged by reports that EPA staff may have
resolved the security concerns related to the management of the Offsite
Consequence Analysis information related to the RMP's. However, I am
concerned about the inclusion of fuels in EPA regulations developed
under section 112(r).
In promulgating a list of substances under section 112(r)(3) EPA
included several of the most Flammable Fuels. The principal focus of
this provision of the Clean Air Act is to reduce risks associated with
chemical accidents. The catastrophic accidental release that occurred
in Bhopal, India in 1984, together with subsequent accidental releases
in this country, gave rise to a general concern about the need to
prevent such accidents. The concern was related to chemical releases,
not fuel explosions, and section 112(r) was the Congressional response
to that concern.
Nothing in 112, nor any other part of the CAA suggests that it
should be regarded as a Federal fire safety law. Congress mandated the
inclusion of 16 chemicals on the list to be developed under section
112(r)(3). While some of these are flammable, the concern in each case
was related to the use of substance in a manufacturing process or other
application and not as a fuel source. Unfortunately, a significant
number of substances included EPA's 112(r) regulations are highly
flammable fuels that are not in widespread use due to their chemical
properties. Risks from fuel explosions might more appropriately be
regulated by the Occupational Safety and Health Administration, the
Department of Transportation or State and local agencies.
I recommend that you reconsider the decision to regulate fuels
under section 112(r) and further request that EPA publish a notice in
the Federal Register proposing to delay by six months the deadline for
submission of RMPs for fuel substances listed under section 112(r) of
the Clean Air Act. I believe that such a delay would provide the
opportunity to reconsider the appropriateness of including such
substances in the RMP process.
Thank you for your kind attention to this request.
Sincerely,
John H. Chafee.
__________
Congress of the United States,
Washington, DC 20515, December 21, 1998.
The Honorable Carol Browner, Administrator,
U.S. Environmental Protection Agency,
Washington, D.C. 20560.
Dear Administrator Browner: In adopting section 112(r) of the Clean
Air Act Amendments of 1990, it was the intent of Congress to reduce the
risks associated with chemical accidents. Unfortunately, in
implementing this provision, the EPA has chosen to expand the scope of
the program to cover entirely different category of flammable
substances, such as propane.
Propane is non-toxic, is listed in section 241 of the Clean Air Act
as a clean alternative fuel, and is a vital energy source, particularly
in rural America. By singling out propane from competing fuels such as
electricity, fuel oil and natural gas, EPA is creating powerful
economic and public relations incentives for customers to switch fuels
to avoid the significant costs associated with the new regulations.
We are further troubled that EPA has failed to consider the
potential safety and supply consequences that this program is likely to
have on the hundreds of thousands of farmers, consumers, and commercial
users who depend on this important fuel. Farmers and small businesses
may attempt to avoid coverage under the program by limiting their on-
site storage to an amount under the regulatory threshold. This will
mean more deliveries resulting in a higher risk of winter distribution
bottlenecks. It will also mean a higher risk of transportation related
incidents, since winter driving conditions can be particularly
challenging.
It is difficult to avoid the ironies of this issue. The Clean Air
Act was meant to encourage the use of cleanburning fuels like propane,
but EPA's rules discourage the use of this fuel. Furthermore, section
112(r) was intended to reduce the risks of accidental releases, yet
EPA's rules may actually increase the number of incidents.
We urge you to reconsider the Agency's coverage of flammable
substances such as propane within the RMP rules. Moreover, in light of
the June 21, 1999 compliance deadline, we also request your expeditious
review of this matter so that this issue can be addressed legislatively
if necessary.
Finally, because of the timeliness of this issue, we ask that you
respond to us no later than February 1, 1999.
Sincerely, ,
Charlie Norwood,
Ralph Hall,
Mike Oxley,
Denny Hastert,
John Shimkus,
Bob Stump,
Jim Greenwood,
Ed Whitfield,
Richard Burr,
Bob Riley,
Cliff Stearns,
Spencer Bacchus,
Bob Barr,
Sanford Bishop,
Brian Bilbray,
Barbara Cubin,
Jim Turner,
George Radanovich,
Nick Smith,
Joe Barton,
Chip Pickering,
Larry Combest,
Jo Ann Emerson,
Pat Danner,
Roy Blunt,
Nathan Deal,
Rodney Frelinghuysen,
John Boehner,
Ted Strickland,
John Shadegg,
Doug Bereuter.
__________
Congress of the United States,
Washington, DC 20515, January 7, 1999.
Honorable Carol M. Browner, Administrator,
U.S. Environmental Protection Agency,
401 M Street SW,
Washington, DC 20460.
Dear Administrator Browner: We write to alert you to a significant
concern raised by many retail propane dealers throughout Nebraska. Your
Agency is now pursuing an effort to implement provisions of section 112
of the Clean Air Act, including the collection of Risk Management Plans
(RMPs) from facilities handling substances listed under section
112(r)(3). We are highly concerned by the inclusion of fuels in EPA
regulations developed under section 112(r).
Congress mandated the inclusion of 16 chemicals on the list to be
developed under section 112(r)(3). While some of these are flammable,
the concern in each case was related to the use of the substances in a
manufacturing process or other chemical application and not as a fuel
source. A number of substances included under section 112(r)
regulations are highly flammable fuels but are not in widespread use
due to their chemical properties.
The propane industry already operates under regulations at the
Federal, State and local levels. Nebraska operates under the National
Fire Protection Association pamphlet 58, the Storage and Handling of
LP-Gas. This safety code is an industry standard in 50 States. Most
propane retailers also submit facility data to EPA and State/local
emergency response agencies under Federal community right-to-know
rules.
We recommend that you reconsider the decision to regulate under
section 112(r) and we request that EPA delay by six months the deadline
for submission of RMPs under section 112(r). We believe this delay
would allow appropriate congressional review of including specific fuel
substances in the RMP process. We thank you for your attention to this
matter.
Sincerely,
Chuck Hagel.
Robert Kerrey.
Doug Bereuter.
Bill Barrett.
Lee Terry.
__________
Washington, DC 20515-3223, December 12, 1998.
The Honorable Carol Browner, Administrator,
U.S. Environmental Protection Agency,
401 M. Street, SW Room 1200,
Washington, DC 20460.
Dear Administrator Browner: I am writing to urge you to exclude
flammable fuels from any rules or guidelines you issue to implement
section 112(r) of the Clean Air Act.
The goal was to reduce risk of releases of toxic chemicals and to
improve the ability of a community to respond if such releases
occurred. The section was a response to the catastrophe in Bhopal,
India and to subsequent accidents in the United States. Congress did
not intend to regulate flammable fuels under this section, which were
not at issue at the time and which raise different, albeit related,
health and safety concerns than do toxic substances.
Moreover, the decision to cover even relatively small amounts of
propane will place an unnecessary regulatory burden on numerous small
businesses and individuals whose tanks pose virtually no threat to the
public.
I believe section 112(r) is an important measure that will require
significant time and money to implement. It is a waste of both the
agency's and the private sector's resources to extend the coverage of
section 112(r) to flammable fuels. I urge you to remove flammable fuels
from the list of substances covered by section 112(r).
Sincerely,
Sherwood Boehlert,
Member of Congress.
__________
Orange County Certified Unified Program Agency,
January 14, 1999.
Mr. Dan Lower,
All Star Gas,
12600 Western Avenue,
Garden Grove, CA 92841.
Dear Mr. Lower: Your business has been identified as subject to the
requirements of the California Accidental Release Prevention (Cal-ARP)
program found in Chapter 6.95, Article 2 Health and Safety Code, The
Orange County Certified Unified Program Agency is authorized to
Implement this program for the State of California. In addition, your
business is also subject to the Federal program found in section 112(r)
of the, Clean Air Act implemented by U.S. EPA.
Your business is required to develop and implement a risk
management program to prevent accidental releases of regulated
substances that can cause serious harm to the public and the
environment, You are also required to develop and submit a Risk
Management Plan (RMP), which includes a summary of your risk management
program. The RMP must be submitted to this agency and an electronic
version submitted to U.S. EPA by June 21, 1999. We are requesting that
your business contact this agency to schedule an RMP compliance meeting
during the month of January 1999. These meetings are required pursuant
to California regulatory requirements and to ensure that your business
meets the federally mandated timeline.
Should your business so choose, you may implement one of the
following options in lieu of developing an 11W: 1. Eliminate or replace
the Regulated Substance with a non-regulated substance. 2. Reduce the
amount onsite to below the Federal threshold quantity, Note: This
option may still require the development of an RMP pursuant to
California law, but will delay the submittal process to a date beyond
the June 21, 1999 dead line.
If one of the above options is chosen you will be required to
verify compliance prior to the June 21, 1999 deadline.
This agency is dedicated to assisting your business in meeting
these new regulatory requirements. In the near future we will be
providing technical/regulatory assistance as well as RMP guidance'
documents. However, failure to develop and submit an RMP as required
will subject your business to penalties of up to $10,000 per day. In
addition, failure to contact and work with this agency during
development of your RMP could cause costly revisions to be made during
the agency review and evaluation period.
Please contact James Hendron at (714) 667-3708 to schedule your
meeting time and date or for questions related to this letter or your
responsibilities under the Cal-ARP program,
Sincerely,
Pearl Hoftiezer,
Supervising Hazardous Waste Specialist,
Orange County Certified Unified Program Agency.
__________
the state of california
1999 ca a.b. 172 california 1999-00 regular session
assembly bill no. 172
introduced by assembly member firebaugh, january 15, 1999
(1) Existing law provides that the program for the prevention of
accidental releases of regulated substances adopted by the
Environmental Protection Agency pursuant to the Clean Air Act is the
accidental release prevention program for the State and requires the
owner or operator of a stationary source to prepare a risk management
plan when required under the Federal regulations or if the
administering agency determines there is a significant likelihood of a
regulated substance accident risk, except as specified. An RMP is
required to give consideration to the proximity of various local land
uses, including schools. Administering agencies are required to inspect
stationary sources to determine compliance with this accidental release
prevention program.
This bill would prohibit any person from commencing any process, on
and after January 1, 2000, involving a regulated substance at any
facility that is located adjacent to a school. The bill would impose a
State-mandated local program by imposing new duties upon the
administering agencies that implement the accidental release prevention
program.
(2) The California Constitution requires the State to reimburse
local agencies and school districts for certain costs mandated by the
State. Statutory provisions establish procedures for making that
reimbursement.
This bin would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-
mandated local program: yes.
______
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25534.3 is added to the Health and Safety Code,
to read:
25534.3. No person shall commence any process on and after January
1, 2000, involving a regulated substance at any facility that is
located adjacent to a school, as defined in Section 25534.1.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because a
local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become operative
on the same date that the act takes effect pursuant to the California
Constitution.
__________
1998 proposed resolution--missouri farm bureau federation
Adequate safeguards to meet public safety needs currently exist under
Federal, State and local regulations
We oppose U.S. Department of Transportation regulations that impose
unnecessary and costly now equipment and labor requirements on the
delivery of propane,
We are opposed to regulations promulgated -under the Environmental
Protection Agency's Risk Management Program that requires the
development of comprehensive prevention and emergency response programs
for propane storage. We believe the proposed regulations provide no
additional safeguards and that existing Federal, State and local
regulations adequately meet public safety goals.
__________
The Willmar Poultry Group.
February 4, 1999.
The Honorable David Minge,
United States House of Representatives,
Washington, DC 20515.
Dear Representative Minge: I would appreciate your attention on a
serious issue my company is facing regarding an EPA rule.
My company, Willmar Poultry Co., has served our customers
throughout the State for home heating, appliance needs and agricultural
needs for many years. We pride ourselves on our safety record.
Beginning June 21, 1999 propane facilities like mine that have
tanks with over 2,381 gallons on their premises are required to submit
to EPA a Risk Management Plan.
Propane is a clean alternative fuel and is specifically listed as
an alternative fuel in the Clean Air Act and the Energy Policy Act of
1992. It is the only alternative fuel readily available throughout the
United States. And now EPA wants to discourage its use. Forcing our
industry to pay for a billion-dollar paperwork exercise will divert
resources away from voluntary safety programs that really do work. EPA
admits that most of its Risk Management Program duplicates existing
requirements. Therefore, this program is nothing more than an expensive
paperwork drill. The RMP rules have been directly responsible for many
customers either foregoing a propane standby fuel system altogether or
else changing to the use of a standby fuel that is not as efficient of
environmentally clean as propane. Of course, propane's competing fuels
are not covered by the RMP rules. Propane regulation and safety
practices are so effective that you have only one chance in 33 million
of being killed in a propane tank truck highway accident. By contrast,
you have one chance in 15 million of being struck by lightning and only
one chance in 2,500 of being in a car wreck that kills someone. Of
course, no one is talking about setting up a Federal risk management
program for cars!
I urge you to act before the June 21, 1999 compliance deadline to
remove flammable fuels from the list of RMP covered substances.
Loel Larson, WPC Propane Department Manager.
__________
Mrs. Peggy Parsons,
55 Church Highway,
Rogers City, MI 49779, October 5, 1998.
The Honorable Bart Stupak,
United States House of Representatives,
Washington, DC 20515.
Dear Representative Stupak: I am writing to you because I am
concerned about an EPA regulation being placed on the, propane industry
that would also affect the agricultural industry in our district.
I am the Presque Isle county president of the Michigan Farm Bureau.
I have been farming for 10 years and a member of the Farm Bureau for 9
years. I have just learned that by June 21, 1999, the propane industry
must comply with an EPA regulation referred to as section 112(r) of the
Clean Air Act Amendments of 1990.
This will require any facility with 2,381 gallons of propane to
produce and submit a worse case scenario to the EPA. This information
will then be open to public access by being placed on the Internet.
Because this regulation is based on storage capacities, many farms will
also be required to comply.
The propane industry and those who store propane already operate
under strict regulation at the Federal, State, and local levels (safety
standard #58 of the National Fire Protection Association and OSHA). We
also submit facility data to the EPA and State/local emergency response
agencies under Federal community right-to-know rules. This industry has
a great safety record and the new regulation by the EPA will not
increase it any more. While propane is already listed as a clean
burning fuel, it is the only fuel being subjected to this regulation
which could cost the industry up to $1.5 billion to comply. Its direct
competitors (natural gas, electricity) are not covered by this
regulation.
The propane industry is not attempting to escape from needed safety
precautions. The EPA regulations are simply a duplication of
regulations already in place. Because of this, I urge you to support
the following National Fire Protection Association Standard 58 as
compliance with EPA's RMP regulations.
Thank you for your time and consideration of this issue.
Sincerely,
Peggy Parsons.
__________
Colorado Farm Bureau,
Englewood, CO, October 15, 1998.
The Honorable Wayne Allard,
United States Senate,
Washington, DC 20510.
Dear Senator Allard: Colorado Farm Bureau requests your help on an
EPA issue that will have a negative effect on agriculture.
The unnecessary regulation is going to ultimately result in higher
costs of propane to ag producers. Many ag facilities rely on propane as
their No. 1 fuel source. The increase in cost will also cause ag
producers to examine switching to other fuel sources not covered by
this regulation. This will be very costly and also increase this risk
use of higher polluting fuels.
Agriculture is facing a critical time economically and many smaller
operations are just barely making ends meet. Further economic hardship
caused by a rise in energy costs to them would be devastating . All
that is possible must be done to protect our ag industry.
Farmers and ranchers are not looking to reduce safety. They are
simply seeking Congressional approval of NFPA 58 as a compliance
alternative to the EPA's rules. Your assistance and support in this
matter would be appreciated. Thanks you for your time and
consideration.
Sincerely,
Roger Bill Mitchell, President.
__________
California Cotton Ginners and Growers Association,
Fresno, CA, August 24, 1998.
Dear Congressman: On behalf of the 100 cotton gins and over 2700
cotton growers in the State of California, we are writing to request
your assistance on a critical issue to those members of our Association
who utilize propane. Specifically, our concern is over the
implementation of section 112 of the Federal Clean Air Act, and its
impact on the storage of propane.
As of June 21,1999, facilities that store propane in excess of
10,000 pounds (2,381 gallons) have to comply with the rules EPA has
published to implement section 112(r) of the Federal Clean Air Act, and
its impact on the storage and use of propane. Those rules will require
those facilities to prepare and submit facility information including a
conjectural worst-case scenario to the EPA. This includes what might
happen if one of their propane tanks spontaneously and totally exploded
regardless of whether of not it could actually occur.
EPA's proposed regulations are duplicates of existing State
regulations governing propane tanks. Therefore, we urge you to support
legislation, which says that. companies in compliance with the National
Fire Protection Association (NFPA) Standard #58 by definition, in
compliance with EPA's risk management regulations.
This is a critical issue to our industry and anyone who sues or
stores propane in excess of 2,381 gallons. We would appreciate your
support in aiding those efforts that will lessen the burden of
duplicative regulation on the cotton industry.
Roger A. Isom, Director of Technical Services.
__________
Illinois Pork Producers Association
Springfield, IL 62707-8642, October 9, 1998.
The Honorable John Shimkus,
United States House of Representatives,
Washington, DC 20515.
Dear Congressman Shimkus: As president of the Illinois Pork
Producers Association, I felt it was necessary to contact you regarding
a regulation being placed on the propane industry by the Environmental
Protection Agency.
Under the Environmental Protection Agency's rules implementing
section 112(r) of the Clean Air Acts Amendments of 1990, propane
marketers and their customers with tanks greater than 10,000 pounds
(2,381 gallons) of propane must prepare and submit by next June
detailed facility information including a conjectural worst-case
scenario to the EPA and the public, which will be place on Internet.
Pork producers across our State rely on propane extensively in the
correspondence of doing business on their farms. This unnecessary
regulation will cause unneeded expense to our propane suppliers.
Based on the foregoing, I urge you to act as rapidly as possible to
provide an alternative means of complying with EPA's regulations based
upon NFPA 58. There must be a better way to achieve the desired
results.
Sincerely,
Rick Dean, IPPA President.
__________
Ohio Meat Industries Association,
Columbus, OH 43221, October 8, 1998.
Congressman John Boehner,
United States House of Representatives,
Washington, DC 20515.
Dear Congressman Boehner: Under the EPA rules, propane marketers
with tanks greater than 2,381 gallons must prepare and submit detailed
facility information including a worst-case scenario. These will be
published on the Internet. I do not see the benefit in publishing such
sensitive information on the Internet where anyone can access it.
The EPA rules will affect our members because it will affect the
farmers and manufacturers who stock the shelves. If propane suppliers
and big users are required to spend extra time and money to comply with
the EPA rules, their expenses will tickle down to grocers and their
customers.
Propane marketers ad users already comply with local, State and
Federal regulations. They abide by the National Fire Protection
Association Safety Standard 58, with OSHA regulations and EPA
regulations. Thus, the EPA Risk Management Plan will be redundant.
Please support regulations that will not require additional
reporting requirements and will not expose sensitive information to the
public. No one is seeking to get out of safety regulations. It just
seems that State propane regulations should suffice for compliance to
EPA concerns.
Thank you in advance for your support.
Sincerely,
Kristin M. Corsale, Executive Director.
__________
Ohio Poultry Association,
Columbus, OH 43229, October 7, 1998.
The Honorable John Boehner,
United States House of Representatives,
Washington, DC 20515.
Dear Congressman Boehner: On behalf of the Ohio Poultry
Association, I am writing to urge you to express opposition to the EPA
Risk Management Plan to be enacted in June 1999. These rules promise to
be an unnecessary burden to the propane industry and propane users like
poultry farmers.
The Ohio Poultry Association has over 200 members. Members include
both poultry farmers and allied industries. Our members depend on the
association to represent their interests. Many of our members use
propane, and, some have tanks above the 10,000 pound threshhold.
Directly or indirectly, the EPA regulations will affect poultry
farmers.
The EPA's Risk Management Plan is clearly not in the best interest
of farmers.
1. Safety will not be improved. If anything, the regulations will
jeopardize the safety of farmers, of propane marketers, and of the
general public. The plan required that detailed facility information be
submitted and then be published on the Internet. Sensitive information
will be available to everyone, including unstable people who might see
an opportunity to do harm.
2. Compliance will be costly. Research done by the National Propane
Gas Association demonstrates that compliance for each facility will
cost approximately $2,000. Although propane tanks on farms may not top
the 10,000-pound threshold, propane marketers who supply the propane
will be forced to comply. The extra cost of compliance will no doubt be
passed on to farmers.
3. The EPA regulations are an unnecessary duplication. Propane
marketers and users already comply with National Fire Protection
Association Standard 58 and the Emergency Planning and Community Right-
to-Know Act of 1986, as well as OSHA and DOT regulations.
Sincerely,
Jack L. Heavenridge, Executive Vice President.
__________
National Grange,
28 September 1998.
The Honorable John H. Chafee,
Committee on Environment and Public Works,
United States Senate,
Washington, DC 20510.
Dear Chairman Chafee: On behalf of the 300,000 members of the
National Grange, the nation's oldest general farm organization, I would
like to make you aware of a potentially detrimental situation. Under
EPA's new Risk Management Plan (RMP) regulations, promulgated under
section 112(r) of the Clean Air Act Amendments, a significant economic
hardship will be imposed on tens of thousands of farmers across the
country. The RMP regulations require users of propane who have more
than 2,381 gallons onsite to file detailed risk management plans by
June 21, 1999.
Completion of these plans requires analysis based on highly
technical chemical release modeling. EPA's compliance assistance
document, which is currently underdevelopment, is 164 pages in length.
Given the highly technical nature of the program, in most cases
agricultural users will find it necessary to contract with outside
engineering service providers to assist them with compliance, The cost
of these services ranges from $1,000 to $8,000 per site, If 100,000
farmers incur an expense of $ 1,000 per site, the compliance burden
placed on the farm economy will exceed $100 million.
Apart from the cost of developing Risk Management Plans, we are
also concerned about the duplicative nature of the rules. Propane
installations in all 50 States are designed, constructed and maintained
in accordance with the standards for the safe storage and handling of
propane published by the National Fire Protection Association. These
requirements have for decades served as a reliable accident prevention
program.
As you know, Mr. Chairman, propane is an important commodity to the
rural economy. It is widely used in numerous agricultural applications
including cultivation and crop drying. In 1996., nearly 15 billion
gallons of propane were used for agricultural.
In view of the serious economic burden posed by the so regulations
and mindful of the effectiveness of existing requirements, we urge you
to consider legislating an alternative compliance path based on
reliable and time-honored safe practices. Specifically, propane sites
which are installed and maintained in uniformity with the standards set
forth by the National Fire Protection Association, should be deemed in
compliance with section 112(r) of the Clean Air Act Amendments.
Thank you for you consideration, and continued support for
America's farmers.
Sincerely,
Kermit W. Richardson, Master (President)
National Grange of the Order of Patrons of Husbandry,
__________
January 27, 1999.
Honorable Thomas Bliley,
Committee on Commerce,
United States House of Representatives,
Washington, D.C. 20515.
Dear Mr. Chairman: In deciding to regulate propane under its Risk
Management Program (RMP) rules, the Environmental Protection Agency
(EPA) failed to consider the adverse effects which these regulations
will have on hundreds of thousands of farmers nationwide.
EPA's Risk Management Program is authorized under section 112(r) of
the Clean Air Act Amendments of 1990. By adopting section 112(r),
Congress specifically sought to reduce the risks associated with the
accidental release of toxic chemicals. Unfortunately, EPA chose to
expand the program to include flammables such as propane, an important
non-toxic fuel that is used in a variety of agricultural applications.
Nearly 1.5 billion gallons are used annually by farmers for crop
drying, weed cultivation and animal breeding.
The RMP rules require propane consumers with more than 2,381
gallons storage to complete costly risk management plans and to file
those plans with EPA by June 21, 1999. Even if many rural users of
propane fall into the least rigorous compliance category (Program 1),
the economic impact of these rules remains high since a significant up-
front investment may be made to determine the appropriate program
level. Farmers who ultimately qualify for Program I coverage will still
be required to undertake a detailed offsite consequence analysis to
determine their eligibility for this program level.
In addition to the economic impact, we are also deeply concerned
about the potential distribution consequences of regulating propane
under RMP. It is highly likely that many commercial users will seek to
avoid coverage under the rules by limiting their onsite storage to a
volume under the threshold level. This will lead to a significant
increase in the number of deliveries, thus placing added stress on a
delivery infrastructure that already strains to keep up with harvest
and winter heating season demand. Distribution bottlenecks are another
example of the type of unintended consequence that the Agency failed to
consider when it formulated its rules.
Mr. Chairman, we respectfully urge you and the members of the
committee to reverse EPA's decision to include propane as a covered
chemical under the Risk Management Program.
Sincerely,
Agricultural Retailers Association,
National Farmers Organization,
National Grange,
Alabama Farmers Federation,
American Farm Bureau Federation,
National Farmers Union,
Texas Corn Growers Association.
__________
Iowa Farm Bureau Federation,
Des Moines, Iowa 50266-5997, February 2, 1999.
The Honorable James Leach,
United States House of Representatives,
Washington, DC 20515.
Dear Congressman Leach: Congress and the administration made four
promises to agriculture when it passed the 1996 Federal Agriculture
Improvement Reform Act (FAIR Act). One of those promises was to provide
regulatory relief to farmers. Instead of regulatory relief, farmers are
getting a regulatory headache. The latest example is a proposal by the
Environmental. Protection Agency to impose more regulations an propane
users. The EPM Risk Management Plan is duplicative and will impose a
heavy burden on farmers in Iowa and across the nation.
The EPA proposes that any person that has more than 10,000 pounds
of propane stored on any onsite must submit a risk management plan.
This will affect most of Iowa's crop and livestock farmers. EPA is
proposing the new set of requirements even though there are existing
regulations to minimize the risk from storing and using propane.
I look forward to working with you on this Issue and appreciate
your help.
Late last year, more 30 Republicans and Democrats Congressmen, led
by Congressman Boehlert, asked EPA Administrator Carol Browner to
remove propane from the Risk Management Plan rules. EPA has not
removed. We need congressional action to stop this duplicative and
unnecessary regulation on out farmers.
Sincerely,
Ed Wiederstein, President.
__________
Florida Farm Bureau Foundation,
December 2, 1998.
The Honorable Bob Graham,
United States Senate,
Washington, DC 20510.
Dear Senator Graham: Propane is a valuable resource that provides a
safe clean and economic energy choice for a variety of consumers. It is
used in homes, businesses and farms. As of June 21, 1999, many users of
propane will have to comply with rules EPA has published to implement
section 112(r) of the Clean Air Act Amendment of 1990. Consumers who
have more than 2300 gallons of propane onsite will have to provide a
complicated onsite risk management program plan. .
Compliance with this rule will highly complex, and EPA's best
efforts to help have been to draft a 165-page instructional manual.
Nationally, 660,000 farms use propane onsite for various things like
drying crops, powering irrigation, and and heating livestock, nursery
and poultry areas. Propane provides a cost efficient energy source on
which many facets of Florida agriculture depend.
Florida Farm Bureau would like to see some changes in the Risk
Management Program that would allow Florida producers the opportunity
to avoid the costly burden of these proposed rules. We also ask your
help in limiting regulatory duplication by the implementation of this
rule.
Thank you for your attention to this matter.
Sincerely,
Carl B. Loop, President,
__________
Kansas Farm Bureau,
Manhattan, KS 66503, November 18, 1998.
Hon. John Chafee, Chairman,
Commitee on Environment and Public Works,
United States Senate,
Washington, DC 20510.
Dear Senator Chafee: On behalf of the 130,000 family members of
Farm Bureau in the State of Kansas, I write to ask your assistance and
that of your committee in addressing a problem with potentially
significant economic hardship on farmers and ranchers.
The U.S. EPA has promulgated rules implementing Sec. 112(r) of the
Clean Air Act that would require users of propane--any consumer who
stores 10,000 pounds or approximately 2,381 gallons of propane,
agricultural, commercial, residential users and marketers--to comply
with mandated provisions of a most complex nature. There is the
requirement for a very detailed Risk Management Plan by next June.
Given the very technical nature of the compliance assistance document
and the rule in general, agricultural users of propane will likely find
it absolutely necessary to contract with outside engineering service
providers to assist them with compliance.
We sincerely believe EPA should reexamine this whole issue. In
particular, the Risk Management Plan should be reviewed. We look
forward to any assistance you and your committee members can provide in
this very important matter.
Respectfully,
Gary Hall, President.
__________
Nebraska Farm Bureau Federation,
December 28, 1998.
Senator Chuck Hagel,
Senate Office Building,
Washington, DC 20510.
Dear Senator Hagel: I am writing to convey agriculture's strong
concerns regarding the EPA's proposed regulations on propane users.
As you may know, beginning June 21, 1999, propane facilities and
users who have more than 2,300 gallons of propane onsite will be
required to submit a Risk Management Plan to the EPA, Many farmers in
Nebraska that have drying facilities or livestock facilities could be
adversely affected by these requirements. In fact, a recent study done
by the Nebraska Propane Gas Association showed that the total cost of
compliance for the State of Nebraska would be about $8.75 million.
These facilities are already complying with National Fire
Protection Association Rule 58, which governs Nebraska's propane
industry. This is a duplication of reporting procedures that are
already in effect nationwide and will impose unnecessary expenses oil
agriculture, propane marketers and the taxpayers.
Agriculture is facing a critical time economically. With added
expenses for compliance, many of the smaller operations will not be
able to stay afloat. We must do everything we can to protect the ag
industry, not create further economic hardships with duplicate
regulations.
Sincerely,
Bryce P. Neidig, President.
__________
Farmer's Pride,
Battle Creek Farmers Cooperative, N/S,
Battle Creek, NE 68715, October 14, 1998.
Senator Chuck Hagel,
1Russell Office Building,
Washington, DC 20510.
Dear Senator Hagel: Have reviewed a copy of Mr. Jim Makris's
(Director, Chemical Emergency Preparedness and Prevention Office, EPA)
letter to Senator Hagel dated 9/28/98. We received a copy of the letter
from the Nebraska Propane Gas Association, We appreciate the
opportunity to respond to the letter and hope that you will consider
our plea for help.
The letter indicated that ``for propane marketers, the Emergency
Planning and Community Right-To-Know Act of 1988 already requires some
reporting to the State, and most importantly, the Local Emergency
Planning Committee. However, the CAA requirements Passed by Congress
establishes a critical link between prevention and right-to-know
through a risk management program.''
This statement clearly indicates how far out of touch the EPA is
with conditions In the rest of the country, certainly in rural
Nebraska. The critical link to Community Right-To-Know is the Local
Emergency Response Committees.
We have facilities in Madison, Pierce and Knox Counties in
northeast Nebraska. This area was covered by a Wide Area Emergency
Response Committee which has been dissolved. In none Of these counties
is a Local Emergency Response Committee yet organized. There are no
Local Emergency Response Plans In place.
Why is our company required to send a report on a local issue to
Washington, when the rest of the system does not exist? EPA has the
responsibility to establish these organizations as viable local
entities that represent wide constituencies (including local
businesses). I'm sorry, they do not exist here. We send right-to-kmow
information to mailboxes and they are stored in piles. EPA seems to be
pretending that these entities exist as a viable means of communication
on local issues. They do not.
For the business constituency of the Community Right-To-Know there
will be no communication, except for the information that is put on the
Internet by EPA and interpreted by people with no knowledge or
experience with the subject or who have an axe to grind for their own
purposes. Industry has no one to communicate through. RMP is
dangerously premature in rural Nebraska. Premature for the health and
growth of the farm supply cooperative industry in Nebraska and
premature for our company and our farmer owners and patrons.
First, EPA needs to make sure that PERC's exist and are operating,
before they take this very premature step in the evolution of this
safety regulation.
Mr. Makris further indicated that:
``there are no requirements under NFPA Standard 58 for written
maintenance programs, procedures to control change, or refresher
training for distribution plant operators and mechanics.''
We suggest that these shortcomings (which are disputable) would be
-much easier to fix versus placing a whole new layer of regulation on
the industry.
By what logic does EPA think that they can regulate better than can
a Deputy State Fire Marshal. We do not believe that our company has
ever seen an EPA inspector at any of our facilities. But we see the
Deputy State Fire Marshall several times a year. We talk to him, listen
to his Instructions, make changes that he suggests or orders. He is
extremely conscientious in regulating our business for the safety of
his and our communities. We welcome his input and expertise. EPA is a
collector of papers. They do not regulate on a local basis. They just
collect papers and reports. They certainly are totally out of touch
with our business and I think most businesses in rural Nebraska.
He also indicates if a business is subject to OSHA's PSM (Process
Safety Management) it will have completed most of the RMP Prevention
Program requirements. Unfortunately, most farm supply cooperatives,
including our company, deal with anhydrous ammonia and propane on a
retail basis and as such are not covered by OSHA's PSM.
We do not need a better understanding of EPA's RMP. Our problem is
that:
This is a local regulatory issue. It can only effectively
be an Issue that needs Washington's help, when Local Emergency Response
Committee's are viable and there is a real Community Right-To-Know
program in place.
This regulation is premature, it will hurt our business
and will severely hamper our farmer owners and patrons and our growth
if it is not stopped by corrective regulation or by legislation.
We do not need another layer of regulation--if
regulations that are enforced locally need fixing, fix them--do not get
people from Washington involved with local community preparedness,
until they have done their homework.
Mr. Makris' response to the NPGA while appreciated, simply is a
statement of how out of touch this Agency is with your constituency.
This issue needs corrective legislation. Its time is not yet ready, We
hope your office can help us with this very important issue.
Sincerely,
Terry Samuelson, General Manager.
__________
Ohio Grocers Association,
Columbus, OH 43221, October 9, 1998.
Congressman Ted Strickland,
United States House of Representatives,
Washington, DC 20515.
Dear Congressman Strickland: On behalf of the Ohio Grocers
Association, I am writing to urge you to oppose the EPA Risk Management
Plan (RMP) scheduled to be enacted in June 1999.
Under the EPA rules, propane marketers with tanks greater than 2381
gallons must prepare and submit detailed facility information including
a worst-case scenario. These will be published on the Internet. I do
not see the benefit in publishing such sensitive information on the
Internet where anyone can access it.
The EPA rules will affect our members because it will affect the
farmers and the manufactures who stock the shelves. If propane
suppliers and to spend extra time and money to comply with the EPA
rules, tickle down to grocers and their customers.
Propane marketers and users already comply with local, State and
Federal regulations. They abide by the National Fire Protection
Association Safety Standard 58, with OSHA regulations and other EPA
regulations. Thus, the EPA Plan will be redundant.
Please support regulations that will not require additional
reporting requirements and will not expose sensitive information to the
public. No one is seeking to get out of safety regulations. It just
seems that State propane regulations should suffice for compliance to
EPA concerns.
Thank you in advance for your support.
Sincerely,
Kristin M. Corsale, Vice President.
__________
General Assembly of the State of Missouri
house concurrent resolution no. 16
Relating to the Risk Management Program of the Environmental Protection
Agency
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF MISSOURI, AS
FOLLOWS:
Whereas, as required by section 112(r) of the Federal Clean Air
Act, the Environmental Protection Agency has promulgated the Risk
Management Program that requires the development of comprehensive
prevention and emergency response programs for propane storage; and
Whereas, adequate safeguards to meet public safety needs currently
exist under Federal, State and local regulations; and
Whereas, the Environmental Protection Agency's risk management
regulations will I dramatically increase costs of doing business
without increasing safety by: causing customers to switch away from
propane, a federally approved clean fuel; duplicating State regulations
based upon existing fire protection standards; duplicating Federal
right-to-know regulations; and not providing a fuel use exemption
similar to OSHA's; and
Whereas, the EPA's rules cover anyone with mom than 2380 gallons of
propane onsite, regardless of whether or not it is a single tank or
connected tanks which could easily be exceeded by individual
restaurants, farms and some residences; and
Whereas, the costs, which is estimated to exceed one and one-half
billion dollars private sector of complying with EPA's regulations will
be staggering:
Now, therefore, be it resolved that the members of the Missouri
House of Representatives of the Ninetieth General Assembly, First
Regular Session, the Senate concurring therein, hereby urge the
Environmental Protection Agency to not include propane in the Risk
Management Program; and
Be it further resolved that the Chief Clerk of the Missouri House
of Representatives be instructed to prepare properly inscribed copies
of this resolution for the Missouri Congressional delegation.
__________
California Cotton Ginners and Growers Association,
Fresno, CA 93727, March 12, 1999.
Honorable Barbara Boxer,
United States Senate,
Washington, DC 20510.
Dear Senator Boxer: As I am sure you are well aware, on March 16,
the Senate Subcommittee on Clean Air, Wetlands, Private Property, and
Nuclear Safety will be conducting a hearing on section 112(r) of the
Federal Clean Air Act. This hearing is crucial to our industry, because
the impact of this section of the Clean Air Act will be discussed. As
this Association and its members have indicated to you in the past, the
implementation of these requirements will do little to increase public
safety, with regards to propane storage at end use facilities such as
cotton gins and farms.
Cotton gins and farms in California had to meet all building and
fire codes when the storage tanks were installed, which stipulates
compliance with National Fire Protection Association Standard NFPA 58.
Furthermore, these facilities also have to submit hazardous materials
business plans to the local administering agency, typically a county
agency. In addition, these tanks are also required to comply with
CalOSHA requirements, and are subject to CalOSHA inspection of the
tank, safety program and training records every three years. Last, but
not least, each of these facilities also has to have an emergency
response plan coordinated through the local emergency responder. These
requirements go above and beyond the requirements set forth in section
112(r). The new law would require these facilities to duplicate
efforts, and pay additional fees. The additional fees include: (1) a
$120 per year State surcharge to the Office of Emergency Services, the
State oversight agency; (2) a risk management plan review fee, assessed
on an hourly basis; and (3) an annual program fee by the local county
to cover additional inspections.
We understand the need to prevent serious accidents and reduce
serious risk to the public, but our industry's propane tanks already
meet the strictest safety requirements around. It does not make sense
to duplicate efforts and pay substantial fees for little or no benefit.
We would respectfully ask that you give this issue every consideration
during the upcoming hearing. Your support is truly appreciated.
Sincerely,
Roger A. Isom, Director of Technical Services.
__________
Kings County Farm Bureau,
Hanford, CA 93230, March 16, 1999.
Honorable Barbara Boxer,
United States Senate,
Washington, DC 20510.
Dear Senator Boxer: On behalf of the Kings County Farm Bureau which
represents the interests of over 1,000 farmers, ranchers and dairymen
in Kings County, I would like to take this opportunity to present our
concerns on the Senate Subcommittee on Clean Air, Wetlands, Private
Property, and Nuclear Safety hearing.
Today the Senate Subcommittee on Clean Air, Wetlands, Private
Property, and Nuclear Safety will be conducting a hearing on section
112(r) of the Federal Clean Air Act. This hearing is crucial to our
industry, because of the impact the section of the Clean Air Act to be
discussed.
Farmers and the processors of their products in California had to
meet all building and fire codes when the storage tanks were installed,
in compliance with National Fire Protection Standard NFPA 58. They also
had to submit hazardous materials business plans to the local
administering agency. Additionally, these propane tanks and wind
machines are also required to comply with CalOSHA requirements and
inspections along with a safety program and training records every
three years. These facilities also must have an emergency response plan
coordinated through the local emergency responder. These requirements
go beyond the requirements set forth in section 112(r). The new law
would require these facilities to duplicate efforts, and pay additional
fees. The additional fees include the following:
$120.00 per year for State surcharge to the Office of
Emergency Services, the State oversight agency.
A risk management plan review fee, assessed on an hourly
basis.
A annual program fee by the local county to cover the
additional inspections.
Senator Boxer, we understand the need to prevent serious accidents
and reduce serious risk to the public, but our industry's propane tanks
and wind machines already meet the strictest safety requirements. It
does not make sense to duplicate efforts and pay substantial fees for
little or no benefit. We would ask for your consideration of these
important issues during this hearing.
Sincerely,
Charles Draxler, President.
__________
North Carolina Department of Agriculture and Consumer
Services,
Raleigh, NC 27611, November 23, 1998.
Mr. Jim Makris, Director,
Chemical Emergency Preparedness and Prevention Office,
Environmental Protection Agency,
Washington DC 20460.
Dear Mr. Makris: The North Carolina Department of Agriculture and
Consumer Services received a copy of a November 9, 1998, letter to you
from Alan W. Klimek, P.E., of the North Carolina Department of
Environment and Natural Resources, Division of Air Quality, concerning
a request to exempt farmers from the 112(r) program when using propane
in agriculture related activities. Although Mr. Klimek's letter
addressed propane tanks used in the curing of tobacco, there are many
other agricultural uses of propane, such as crop drying and heating of
poultry and animal housing, and these uses should fall under the same
exemption sought by Mr. Klimek.
The North Carolina Department of Agriculture and Consumer Services
is the Authority Having Jurisdiction for National Fire Protection
Association Standard 58 (NFPA 58), the LP-Gas Code. This standard
carries the weight of State law in North Carolina because it has been
adopted by reference by the North Carolina Board of Agriculture. As
such, we inspect every bulk propane plant in the State every year. If
violations of NFPA 58 are found we issue an inspection report to
instruct the operator of the plant to correct the violations within a
specified period of time.
Our records indicate that the vast majority of propane
installations on farms do not meet the NFPA definition of a bulk plant;
yet many of these farms have propane storage in excess of the amount
covered under 112(r). In most cases, propane tanks are located in open
areas significant distances from populated areas. Due to the general
remoteness of these tanks, we believe that having to prepare a Risk
Management Program for propane tanks on farms is not necessary.
We support the request from the North Carolina Department of
Environment and Natural Resources to exempt farmers from the 112(r)
program. When using propane in agriculture related activities and we
urge you to render a decision as quickly as possible.
Please feel free to contact us if you have any questions. You
should direct your questions to David Smith or Richard Fredenburg at
919-733-3313. Thank you for considering our request.
Sincerely,
James A. Graham, Commissioner.
__________
nevada board for the regulation of liquefied petroleum gas
Whereas, as required by section 112(r) of the Federal Clean Air
Act, the Environmental Protection Agency has promulgated the Risk
Management Program that requires the development of a comprehensive
prevention and emergency response programs for propane storage; and
Whereas, safeguards to meet public safety currently exist under
Federal, State, and local regulations; and
Whereas, the Nevada LP Gas Board, established in 1957 by the Nevada
Liquefied Petroleum Gas Act, regulates the safe storage, distribution,
dispensing, transportation and utilization of propane and the safe
manufacture, fabrication, assembly, sale, installation and use of
propane systems, containers, apparatus, and appliances in Nevada; and
Whereas, since the establishment of the LP Gas Board, there have
been no incidents resulting in loss of life or property related to any
entity that would be subject to the EPA's rules; and
Whereas, the EPA's rules cover anyone with more than 2380 gallons
of propane on site, which could easily be exceeded by individual mining
companies, industrial plants, casinos, schools, restaurants, hotels,
farms, ranches, other businesses, and some residences; and
Whereas, the Environmental Protection Agency's risk management
regulations would not significantly increase the safety to LP Gas
consumers over the present regulation of the LP Gas Board and the
existing NFPA standards while increasing the costs of propane to the
consumer; and
Whereas, the Environmental Protection Agency's risk management
regulations may cause customers to switch away from the clean burning
fuel of propane; may duplicate State regulations based upon existing
nationally recognized standards; may duplicate Federal right-to-know
regulations; may not provide a fuel use exemption similar to OSHA's and
may force consumers to use smaller storage volumes, necessitating more
frequent transfers and thereby resulting in an increased risk to
consumers;
Now, therefore, be it resolved that the members of the Nevada Board
for the Regulation of Liquefied Petroleum gas concurring herein, hereby
urge the United States Environmental Agency to remove propane from the
Risk Management Program; and
Be it further resolved that the staff of the Nevada LPGas Board be
instructed to prepare properly inscribed copies of this resolution for
the Nevada Congressional Delegation, the United State Senate Committee
on the Environment and Public Works, and Director of the Federal
Environmental Protection Agency.
Approved unanimously this 4th day of March, 1999.
Bernard Sease, Chairman.
State of Nevada.
__________
Board for the Regulation of Liquefied Petroleum Gas,
Carson City, Nevada 89702, October 9, 1998.
Congressman Ted Strickland,
United States House of Representatives,
Washington, DC 20515.
Dear Congressman Strickland: On behalf of the Ohio Grocers
Association, I am writing to urge you to oppose the EPA Risk Management
Plan (RMP) scheduled to be enacted in June 1999.
Under the EPA rules, propane marketers with tanks greater than
2,3981 gallons must prepare and submit detailed facility information
including a worst-case scenario. These will be published on the
Internet. I do not see the benefit in publishing such sensitive
information on the Internet where anyone can access it.
The EPA rules will affect our members because it will affect the
farmers and manufactures who stock the shelves. If propane suppliers
and big users are required to spend extra time and money to comply with
the EPA rules, their expenses will trickle down to grocers and their
customers.
Propane marketers and users already comply with local, State and
Federal regulations. They abide by the National Fire Protection
Association Safety Standard 58, with OSHA regulations and other EPA
regulations. Thus the EPA Risk Management Plan will be redundant.
Please support regulations that will not require additional
reporting requirements and will not expose sensitive information to the
public, No one is seeking to get out of safety regulations. It just
seems that State propane regulations should suffice for compliance to
EPA concerns.
Thank you in advance for your support.
Sincerely.
Kristin M. Corsale, Vice President.
__________
HECLA Mining Company,
Coeur d'Alene, Idaho 83815-8788, October 14, 1998.
Senator Larry Craig,
United States Senate,
Washington, DC 20510.
Dear Larry: This letter seeks your assistance in opposing EPA
regulations that are burdensome to the Propane industry and will affect
the storage facilities of propane on our mine sites.
EPA's burdensome risk management regulations cover all facilities
with more than 10,000 pounds of propane on site.
Basically, the EPA is requiring a long, detailed report that is
only adding additional expense to private businesses without any
additional safety benefit.
Commodity prices are already depressed, the mining industry does
not need to add to its operational cost more unnecessary regulation by
government.
We don't mind complying with appropriate safety regulations.
However, EPA's rules duplicate existing State regulations, and we
believe that an alternative compliance method should be allowed.
Therefore, we urge you to support alternative legislation providing
that companies in compliance with the National Fire Protection
Association Safety Standard 58 are by definition in compliance with
EPA's risk management program regulations.
Thank you for your time and consideration of these views.
Sincerely yours,
W. Bill Booth, Vice President--Investor and Public Affairs.
__________
Thieman Tailgates, Inc.,
Celina, OH 45822-1566, September 15, 1998.
Congressman John A. Boehner,
United States House of Representatives,
Washington, DC 20515.
Dear Congressman Boehner: As a member of the National Propane Gas
Association, I have been keeping abreast of the ERA risk management
regulations scheduled to go into effect in June, 1999. I am writing to
ask you to help establish some alternative method of compliance to the
EPA regulations.
Thieman Tailgates, Inc. manufactures hydraulic liftgates that are
seen on the back of trucks and trailers that deliver propane gas and
other equipment for the propane industry and other markets. Our company
markets our liftgates to propane marketers nationwide.
The EPA's risk management regulations will pose many problems for
our customers, many of whom have tanks greater than the 10,000 pound
threshold. Among the problems, as I see it, axe added cost to comply
with the regulations and public disclosure of sensitive information on
the Internet.
To the best of my knowledge, the propane industry already operates
under strict regulations at the Federal, State and local levels. I do
not think that the industry needs more regulations imposed by EPA.
Additional regulations will be an obstacle to their doing business and
keeping their prices reasonable. This will indirectly effect my
business with the propane industry.
I know that my customers, many of whom are in your congressional
district, are concerned about safety but I urge you to support a
mechanism whereby compliance with regulations already in place will
suffice for compliance with EPA's risk management regulations.
Thank you for you time and consideration of the concerns of the
propane industry and ancillary industries.
Sincerely,
Bartt Suchlan, Marketing Coordinator.
__________
Intermountain Outdoor Sports,
Meridian, ID 83642, October 2, 1998.
Senator Craig,
United States Senate,
Washington, DC 20510.
Dear Senator Craig: Our family has been in business for 20 years
and we employ 105 people between our two Sporting Good Stores, We are
thankful for the opportunity to own our business. We are fully aware
that the employees that work for us represent families that depend on
their income for support.
I am writing to you today on behalf of all small business owners
that are desperately trying to stay in business and to provide job
opportunities for the community. As you are well aware, government
burdensome regulations are The reason small businesses are closing
their doors.
I was very upset when I recently found out of one more attempt by
government to interfere in private enterprise.
Beginning June 21, 1999 propane facilities that have tanks with
over 2,381 gallons on their premises are required to submit to EPA a
Risk Management Plan.
I fully expect that cost will be passed onto all of my customers
that use propane for recreational purposes.
It is my understanding that these new EPA requirements duplicate
existing State safety regulations and that an alternative compliance
method should address the safety concerns of the EPA. Therefore, I urge
you to support legislation that provides companies with National Fire
Protection Association standard 58 which are, by definition, in
compliance with the EPA's risk management program regulations.
Please get government off the backs of small business and tax-
payers.
Sincerely,
Gerry Sweet, General Manager/ Owner.
__________
Mobile Tool International, Inc.
Westminster, CO 80030, October 15, 1998.
Senator Wayne Allard,
United States Senate,
Washington, DC 20510.
Dear Senator Allard: As an employee-owner of a manufacturing plant
I am deeply concerned as to how section 112(r) of the EPA proposed
regulations to the 1990 Clean Air Act will affect my company and our
customers. Mobile Tool International employs more than 350 individuals,
manufacturing aerial lift equipment, and other equipment used In the
utility and telecommunications industry.
Although the EPA's proposed regulations would only affect
facilities which store more than 2300 gallons of propane, our propane
supplier will be affected. With the additional burden placed on them by
the EPA In regards to duplicating the reporting which they already do
at the State level, they will have no choice but to raise the cost of
propane. We are large users of propane in a variety of ways. This will
impact our profitability which could also raise the price of our
equipment to the end-user.
As employee-owners, we pride our-selves on building one of the
finest line of products In the market, and being able to deliver those
products to our customers at an affordable price. I believe in fair
competition and competing on a level playing field. However, if our
propane supplier is forced to comply with these regulations as written,
they will be put at a great disadvantage with many of the other fuel
sources which are not covered by these regulations.
This regulation affects many people In many ways. I would
appreciate your looking into this matter. Thank you.
Sincerely,
Penny Gagliardi, Sr. Production Control Planner.
__________
City of Waynesboro, Georgia,
September 16, 1999.
Congressman Charlie Norwood,
United States House of Representatives,
Washington, DC 20515.
Dear Congressman Norwood: This letter seeks your assistance in
opposing an EPA regulation.
I have been contacted by local propane dealers in my community
about section 112 of the Clean Air Act. Propane dealers are already
over-regulated by many government agencies. Of course, regulation is
important to the safety of our community. However, when the EPA
requires information that is already being provided by the National
Fire Protection Association 58, the Community-Right-to-Know-Act of 1996
and other Federal, State and local agencies it appears to be a real
duplication of effort. Plus, the EPA providing confidential and
sensitive propane facility information on the Internet is ludicrous,
just the EPA's Internet requirement of publishing this type of
information to a world of terrorists, criminals, "kids killing kids''
and mal-adaptive people is more of a hazard than any propane worst-case
scenario.
Please do everything you can to stop this over-regulation by the
EPA and thank you for the time and consideration of my views on this
issue.
Sincerely,
Martin Dolin, Mayor of Waynesboro.
__________
City of Tallahassee, Florida,
City Hall, Tallahassee, FL 32301, September 10, 1998.
Senator Bob Graham,
Senate Office Building,
Washington, DC 20510.
RE: EPA's proposed new regulations on propane gas
Dear Senator Graham: As someone who uses propane gas, I am
concerned about an EPA regulation that is being imposed on propane gas
suppliers and large users. I feel this is going to needlessly increase
costs without an increase in safety.
All States--including Florida--have adopted safety regulations
proposed by the National Fire Protection Association. Now, the EPA
wants to impose additional regulations.
One of my biggest concerns is the EPA wants detailed information
regarding some users and suppliers facilities. Then the EPA is going to
post this information on the Internet. It doesn't take much "surfing"
of the net to realize there are a lot of people out there who could do
great harm if they had access to this type of information. Therefore,
instead of increasing safety, I'm fearful the EPA's regulations could
potentially do great harm.
In light of these detailed safety regulations that exist in all 50
States today, I urge you to support a mechanism whereby compliance with
NFPA 58 suffices for compliance with EPA's RMP regulations.
Should you have any questions, please feel free to call me. Thank
you.
Sincerely,
John Paul Bailey, Mayor Pro Tem.
__________
Office of the Mayor,
Wrens, GA 30833, September 10, 1998.
The Honorable Charlie Norwood,
House Office Building,
Washington, DC 20515.
Dear Congressman Norwood: Recently, I learned from Henry Jones,
Town and Country Gas, Inc., about an EPA regulation that is unnecessary
and costly.
Safety is important to everyone; however, the propane industry
already operates under strict regulations at the Federal, State and
local levels. Unnecessary government regulations only leads to
increased costs in the private sector and the costs of complying with
EPA's regulations will be staggering. Also, under these regulations the
EPA will publish detailed facility Information on the Internet which
will only give valuable information to terrorist and criminals intent
on using this information for illegal and tragic ends.
As a community leader, I urge you to act as rapidly as possible to
stop this unnecessary EPA risk management regulation.
Sincerely,
J.J. Rabun, Mayor.
__________
Florida Public Utilities Company,
West Palm Beach, FL 33402-3395, December 22, 1998.
Honorable Bob Graham,
United States Senate,
Washington, DC 20510.
Dear Senator Graham: Our company, Flo-Gas Corporation, a subsidiary
of Florida Public Utilities Company founded in 1-924. employs 300
workers in the State of Florida. Safety is the number one priority when
running our company. However, recently the Environmental Protection
Agency has unposed an extremely costly and time-consuming regulation on
our business that will not increase: safety for our customers,
employees, or the general public.
Beginning June 21, 1999 propane facilities like ours that have
tanks with over 2,381 gallons on their premises are required to submit
to EPA a Risk Management Plan. The propane industry already operates
under strict regulations at the Federal, State, and local levels. For
example, all 50 States have adopted in some form, either directly or
indirectly, safety standard No. 58 published by the National Fire
Protection Association. OSHA regulates our company's workplaces, and we
also submit facility data to EPA and State/local emergency response
agencies under Federal community right-to-know rules. Our industry has
an extremely good safety record and the new regulation will not
increase it any more.
Our company is not looking to escape regulations that truly enhance
safety of propane installations. Indeed, that is the whole reason why
States have incorporated NFPA 58 into their regulations. I, therefore,
urge you to support legislation that recognizes compliance with NFPA 58
as an alternative means of complying with EPA's section 112(r) rules.
Thank you for your time and consideration of these views,
Sincerely,
C.L. Stein, Senior Vice President,
Flo-Gas Corporation.
__________
North Carolina Department of Environment and Natural
Resources,
Division of Air Quality, Raleigh, NC 27604, November 9, 1998.
Mr. Jim Makris, Director,
Chemical Emergency Preparedness and Prevention Office,
Environmental Protection Agency,
Washington, DC 20460.
Subject: Applicability of 112(r) Chemical Accident Prevention
requirements for propane to Farms
Dear Mr. Makris: The North Carolina Department of Environment &
Natural Resources Division of Air Quality (DAQ) has been made aware
that approximately 11,000 farms exist in North Carolina Which use
propane to cure tobacco. The threshold for which farm propane is being
used is such that the tanks are not inspected by the North Carolina
Department of Agriculture (NCDA). The NCDA currently inspects propane
users with tank sizes 2,000 gallons (8.400 pounds at 4.2 pounds per
gallon) or larger and smaller tanks with an aggregate quantity of 4,000
gallons. (16,800 pounds) or more. Many of the North Carolina farmers
use propane in 500 or 1,000 gallon tanks with a total quantity on site
greater than the 112(r) threshold of 10,000 pounds but less than the
4,000 gallons inspected by the NCDA.
Farmers were exempted from the 112(r) program when using ammonia as
an agricultural nutrient. I believe after discussions with EPA Region
IV that EPA never intended to subject farmers to the requirements of
this program. Many NC farmers have land large enough that the distance
to endpoint for a worst case release would not reach a public receptor.
Since the toxicity of ammonia is far more dangerous than propane, the
NCDAQ recommends that the EPA exempt farmers from the 112(r) program
when using propane in agriculture related activities.
Thank you for your consideration, and advise us of your decision.
Please contact Mike Chapman at (919) 715-3467 for any additional
information regarding this letter.
Sincerely,
Alan W. Klimek, P.E.
__________
Scana Propane Services,
Darlington, SC 29532, October 9, 1998.
Congressman John Spratt,
United States House of Representatives,
Washington, DC 20515.
Dear Congressman Spratt: You may not be aware of this fact, but
propane gas is used extensively in the processing of tobacco. Many
tobacco farmers are big customers of propane. It is my understanding
that the EPA wants to impose new regulations that directly affect
propane customers. The results of these regulations would be higher
prices for propane and a needless duplication of safety rules.
Propane is an extremely safe and efficient fuel. It is cost-
efficient as well. States and localities have regulations in place that
govern the safe use of this gas. The propane gas industry voluntarily
cooperates with governments, businesses and industries to ensure the
safest possible use of this product.
I do not have to tell you that with tobacco under assault from
other quarters, the last thing we farmers need is another attempt by a
government bureaucracy to heap needless regulations on us and raise our
costs. I would request that you oppose the EPA's efforts to implement
section 112(r) of the Clean Air Act.
Sincerely,
George W. Abbott, President.
__________
Scana Propane Services,
York, SC 29745, September 3, 1998.
Lisa Bontempo,
National Propane Gas Association,
Washington, DC 20036, September 3, 1998.
Dear Ms. Bontempo: I am writing to inform you of examples of fuel
switching as a direct result of the impending EPA Risk Management
Program (RMP) requirements. Our company serves numerous commercial and
industrial facilities throughout North and South Carolina and we
continue to hear from our larger customers about plans to do away with
their propane systems due to RMP regulations.
Bosch Corporation desires to remove the propane back-up systems
from all of their plants across the nation due to RMP regulations.
These systems are utilized during peak demand periods (primarily on the
coldest days in winter) to replace the natural gas supply which is
interrupted during these cold snaps so there is enough natural gas to
supply the residential heating load. Bosch's intent is to go on a firm
natural gas contract so they are not interrupted and therefore will not
need to store propane on site.
At Bosch's Charleston, SC plant, where they make antilock braking
systems and fuel injectors, switching to firm natural gas service will
cost approximately $75,000 per year more than having an interruptible
service with propane as a back-up. I expect this cost is fairly
representative of the approximately 50 plants Bosch operates across the
nation.
Bosch had hoped to consolidate their natural gas purchases among
all plants and therefore reduce the cost of gas in this manner to
offset the higher cost of firm delivery services. This may lower the
cost of purchasing the gas at the wellhead, but having the gas
transported to the burner tip on a firm basis is what drives the cost
up over an interruptible service. Bosch is concerned about the
potential increase in cost but may choose to accept it due to RMP
regulations and the potential liability (public perception, lowered
property values in the vicinity of their plants, risk of sabotage,
etc.) that completing and submitting RMP's will bring upon their
plants.
At the Savannah River Site (SRS), which is a DOE-owned weapons
grade plutonium site, they have lowered their on site propane storage
levels to below the threshold limits (a mere 2358.5 gallons) due to RMP
regulations. I don't know what they are utilizing propane for, due to
the sensitive nature of their business, but they will likely require
more deliveries (which increases the potential for an accident to
occur) to maintain their energy supply.
Kimberly-Clark, in Beach Island SC, desires to eliminate their use
of propane as a backup supply to natural gas due to RMP regulations. It
now appears that due to the substantial increase in the cost of a firm
natural gas supply (similar to Bosch's), they are considering having
RMP's completed for each plant site. The feedback they have gotten from
the RMP consulting industry is to expect to spend $10,000 to $15,000 at
each plant.
As you can see, these regulations are having a tremendous impact on
not only the propane industry, but on propane consumers as well.
Very truly yours,
Paul V. Norris, P.E.
__________
California Department of Forestry and Fire Protection,
Sacramento, CA 94244-7460, November 18, 1998.
The Honorable Harry Waxman,
United States House of Representatives,
Washington, DC 20515.
Dear Congressman Waxman: As Director of the California Department
of Forestry and Fire Protection, Office of the State Fire Marshal, I am
contacting you regarding the EPA's recent rule implementing section
112(r) of the Clean Air Act. This rule would require facilities using
hazardous substances to submit a detailed Risk Management Plan that
would include an offsite consequence analysis describing the potential
impacts of a worst case accidental release to the EPA. This information
would then be made public via the Internet. The substances that must
comply include propane gas that is used throughout California.
Propane gas is currently covered under a myriad of regulations
including California Building and Fire Regulations, the National Fire
Protection Association's LP-Gas Code an the Federal Community Right-to-
Know rules. The State Fire Marshal's Office works closely with industry
and the fire service to develop training for emergency response
personnel and specialized response plans to deal with the unique
characteristics of the substances covered by the rule to insure the
public's safety.
While my office supports the public's right-to-know, we believe
that the widespread dissemination of the data via the Internet would
provide a virtual "roadmap" to terrorists intent on creating havoc
within the communities we safeguard. To that end, I urge you to delay
further implementation of the Internet publication of the Risk
Management Plan "offsite consequence analysis". Information and support
legislation that allows compliance with existing rules and regulations.
Sincerely,
Richard A. Wilson, Director.
__________
Olive Road Flea Market,
Jackson Enterprises,
Brookville, OH 45309, September 21, 1998.
Senator Mike DeWine,
United States Senate,
Washington, DC 20510.
Dear Senator DeWine: I felt it was absolutely necessary to contact
you regarding a regulation being placed on the propane industry by the
Environmental Protection Agency (EPA).
I own and operate three large cow barns that I converted into a
flea market. I heat these buildings with propane gas because the costs
to have natural gas lines connected were excessive. Because these are
large drafty buildings, I have four one-thousand gallon tanks on my
property to provide a large enough storage to enable my propane
marketer to keep me supplied in the wintertime without interruption.
My propane supplier has recently informed me about EPA's rules
implementing section 112(r) of the Clean Air Act Amendments of 1990.
Propane marketers and their customers with total storage of greater
than 10,000 pounds (2,381 gallons) of propane must prepare and submit
by next June detailed facility information including a conjectural
worst-case scenario to the EPA and the public, which will the be placed
on the Internet. If I understand this program correctly, propane
marketers and commercial customers such as myself will not have to make
any changes to our propane systems, but will have to fill out a very
lengthy and detailed report for the EPA. Among many other things, this
plan must include an estimate of what might happen if one of the
propane tanks on my property exploded. I don't understand how knowing
this information, yet not taking any action to prevent it, is going to
improve safety in any way. From my experience in getting my propane
system installed a few years ago, the propane industry is already
regulated by Federal, State and local codes. We had to take out
permits, have inspections and pressure tests inside and out, and I felt
the codes required a pretty thorough and safe process in the initial
installation of these tanks.
I am also concerned about getting this report filled out correctly,
and who is going to pay for it. I am not in the propane business, and
am certainly not in any position to fill out a technical report as
detailed as this one appears to be. If my propane supplier is able to
do this work, I am concerned about any additional cost, with apparently
no increase in safety. I just don't see any purpose to this new
regulation.
My company is not looking to escape regulations that truly enhance
the safety of propane installations. It just appears that this
regulation is a duplication of codes already in effect, with an
increased cost and no safety benefit. I therefore urge you to support
legislation that recognizes compliance with the current regulations as
an alternative means of complying with EPA's section 112(r) rules.
Thank you for taking time to read my letter. Please give serious
consideration to the concerns I've expressed.
Sincerely,
Richard Jackson.
__________
Tabor Lumber Cooperative,
Tabor, SD 57063, October 5, 1998.
Hon. Tom Daschle,
United States Senate,
Washington, DC 20510
Dear Senator Daschle: EPA's burdensome risk management regulations
cover all facilities with more than 10,000 pounds of propane on site.
This is not that much propane, so these rules cover not only my bulk
storage facilities but also most of my commercial customers as well. I
am now starting to get calls from my customers who are reconsidering
their usage of propane in light of the costs of complying with EPA's
rules.
My company is not looking to escape regulations that truly enhance
safety of propane installations. Indeed, that is the whole reason why
States have Incorporated NFPA 58 into their regulations. I, therefore,
urge you to support legislation that recognizes compliance with NFPA 58
as an alternative means of complying with EPA's section 112(r) rules.
Should you have any questions, please feel free to call me. Thank
you.
Sincerely,
Alois C. Ruman, Manager.
__________
Ross Ranch South,
Tallahassee, FL 34308, October 2, 1998.
The Honorable Connie Mack,
United States Senate,
Washington, DC 20510.
Dear Senator: This letter seeks your assistance in opposing an EPA
regulation that is so burdensome that it is forcing us to consider
switching to other fuels.
We utilize propane on our ranch here.
EPA's burdensome risk management regulations cover all facilities
with more than 10,000 pounds of propane on site. This is not that much
propane.
I am proud of our safety record. We have never had a problem with
propane and have an excellent safety record.
In light of the detailed safety regulations that exist here in
Florida as well as all other 50 States, urge you to support a mechanism
whereby compliance with NFPA 58 suffices for compliance with EPA's RMP
regulations.
I hope we can count on your support on this issue and I look
forward to hearing from you.
Sincerely,
Connor Ross, Owner.
__________
Department of Housing, Buildings and Construction,
Frankfort, KY 40601-4322, September 2, 1998.
Representative Edward Whitfield,
United States House of Representatives,
Washington DC 20515
Dear Representative Whitfield: On behalf of the Kentucky State Fire
Marshal's Office--Hazardous Materials Section, I am writing with regard
to an important domestic safety issue that has recently come to my
attention.
EPA has promulgated regulations under the Clean Air Act Amendments
of 1990 that require covered facilities to develop risk management
plans detailing sensitive facility specific information. These plans
must be submitted by next June 21, 1999 and will be available to the
public on the Internet. The rules cover many different substances, but
this letter specifically addresses the rules as they pertain to propane
because it is so highly regulated already.
In my jurisdiction and elsewhere, propane is regulated by State
safety and environmental laws. These laws and regulations impose hefty
construction and other requirements on propane marketers and users to
ensure accidents don't occur. I also know that my State and local
emergency planning agencies, created by the Federal Emergency Planning
and Community Right-to-Know Act of 1986 (EPCRA), collect substantial
information from such facilities that is publicly available.
I am supportive of the public's right-to-know about industrial
facilities within a given community through laws like EPCRA, but I
believe that EPA's rules are an exercise in regulatory overkill. This
requirement will add more paperwork layers for all parties involved and
will thereby divert attention and resources away from safety
activities. There needs to be some balance between public knowledge and
public safety, but EPA's rules will provide terrorist and other "ne'er-
do-wells" with a virtual roadmap to cause damage and havoc in my
community. Remember, my organization and staff are the ones on the
front lines of emergency response--let's not create more opportunities
for them to be harmed. I am not alone in expressing these concerns,
intelligence agencies such as the FBI, the International Association of
Fire Fighters, the National Fire Protection Association, and the
National Propane Gas Association have all raised their voices about
this issue.
I understand that Congress is likely to insert language admonishing
EPA to work to resolve the domestic terrorism concerns in the bill
funding EPA for next year. But my concerns go beyond this, and I
believe that a stronger indication of Congressional concern on this
important issue is warranted. I frankly can't believe that Congress
would want EPA to overlay a completely new regulatory scheme on top of
the State regulations that already exist to keep propane facilities
safe.
I support safety. I support appropriate regulations. EPA's risk
management rules are not necessary, duplicative, and potentially a boon
to terrorists. I therefore urge you to go beyond the Congressional
report language and enact into law a one-year delay, at a minimum, on
EPA's risk management program rules as they apply to the already highly
regulated propane industry.
Respectfully,
G. Rodney Raby, Assistant State Fire Marshall.
__________
[From the Alliance for Fair Energy Competition]
The Flaws of Inclusion of Propane in the EPA RMP Regime
(By William H. Lash III \1\)
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\1\ Professor of Law, George Mason University. Distinguished Senior
Fellow, Center for the Study of American Business, Washington
University.
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introduction
What do Bhopal, India and your local Burger King restaurant have in
common? To most of us the two are as different as night and day. One
evokes the painful memory of a deadly, toxic chemical release the other
is a symbol of a family outing for burgers and shakes. Yet the
Environmental Protection Agency would cavalierly lump these two
enterprises together and impose burdensome regulation originally
designed for toxic chemical facilities on small family farms, hotels
and restaurants. This study will discuss the EPA's expanded ``right to
know'' regime and the threat it poses for the American economy, the
propane industry and the environment. The planned EPA risk management
program (RMP) will injure consumers, the environment and undermine
safety efforts nationally.
expanded right to know program
The expanded Community Right to Know Program is established under
the Clean Air Act Amendments of 1990. Section 112(r) of the amended
Clean Air Act established a new Federal mandate to focus on the
prevention of and response to accidental releases of toxic chemicals.
The objective is to prevent serious chemical accidents that have the
potential to affect public health and the environment. Under these
requirements, industry must develop and make public risk management
plans (RMPs.).
This legislation has its origin in the Bhopal, India disaster where
a toxic chemical release killed and injured approximately 2000 people.
However, according to Senator John H. Chafee (R-RI) congressional
``concern was related to chemical releases, not fuel explosions.'' \2\
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\2\ Senator John H. Chafee, Letter to Honorable Carol M. Browner,
Administrator, Environmental Protection Agency, November 4, 1998.
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Pursuant to the Clean Air Act Amendments of 1990, ``risk management
plans'' (RMPs) must be written for more than 66,000 \3\ industrial
facilities, including chemical plants, oil and gas refineries,
pharmaceutical companies, electric and gas utilities, and waste water
treatment works. Military and energy facilities of the Federal
government also are required to establish risk management plans. The
plans must include evaluations of the risks and hazards at each
installation, as well as discuss accident prevention and proposed
responses to an accidental release for any of 140 hazardous substances
on site. Each firm also must develop an ``offsite consequence
analysis'' (OCA). The OCA for each facility must analyze the dangers to
the public and the environment of possible accidental releases. The
most controversial part of these requirements is the preparation of
``worst case scenarios.'' A worst case scenario must disclose: (1) the
chemical or hazardous material that might cause the worst case scenario
if released, (2) its physical state, i.e., gas or liquid, (3) the
amount of the material that would need to be released to cause the
situation. Unfortunately, in its regulatory zeal, the EPA has swept
other unintended industry sectors into this program.
---------------------------------------------------------------------------
\3\ The EPA estimates 66,000 firms will be required to develop RMPs
for any of the 140 listed substances. This estimate is inaccurate.
Analysis by the National Propane Gas Association demonstrates that over
1 million facilities for propane alone will be included in the RMP
regime.
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These evaluations also must identify possible aspects of a release
leading to the worst case scenario. The topography of the area in which
the plant is located and the reach of the effects of the release must
be included. The description must estimate the number of people
injured, killed, or otherwise ``affected'' by the release.
Firms also must disclose their addresses and locations by longitude
and latitude, the nature and amounts of hazardous materials on site,
and the number of full-time employees at the site.
what is propane?
Propane or liquefied petroleum gas (LP-Gas) is an approved clean
fuel under the 1990 Clean Air Act Amendments and the National Energy
Policy Act of 1992. It can be in either a liquid or gas state. Propane
supplies 3 to 4 percent of U.S. total energy needs. Ninety percent of
the United States propane supply is produced domestically.
Propane is employed widely in a variety of fields. Approximately 60
million people in the United States use 16.5 billion gallons of propane
annually. In 1994 propane consumption followed this pattern:
8.8million gallons for utility/gas industry usage,
50.7 million gallons for internal combustion engine use,
1.5 billion gallons for agricultural and other uses,
5.4 billion gallons for residential/commercial purposes,
9.0 billion gallons for chemical/industrial usage, and
14.3 million American families use propane, with 5 percent
utilizing these fuels as their primary heating source.
Propane is indeed the most widely employed alternative fuel. Nearly
4 million vehicles globally operate on propane. The United States is
home to 10,000 public propane refueling stations and a network of
licensed propane conversion centers nationwide. Due to the low
pollution characteristics of propane, more than 300,000 forklift truck
operators and other indoor vehicle operators use this fuel. Over 80,000
bus, taxi and delivery services and fleets are powered by propane.
Propane is probably familiar to most people as a recreational
heating and cooking fuel. The Barbecue Institute of America reports
that 84 percent of all U.S. households own a barbecue grill. Fifty-five
percent of these households own a propane grill.
On 660,000 American farms, propane is at work. Agricultural
applications include crop drying, flame cultivation, fruit ripening,
space and water heating, refrigeration and powering vehicles. Over 1
million commercial firms including hotels and restaurants use propane
as an energy source. Some 350,000 industrial facilities use propane as
well.
propane reporting requirements under an expanded right to know program
Pursuant to the RMP regulations, three increasingly burdensome
compliance regimes are established for listed materials present in
amounts above a given threshold. For propane facilities, the threshold
quantity is 10,000 pounds or 2,381 gallons at 60 degrees F. Program 1
reporting requirements are less burdensome than Programs 2 and 3. Under
Program 1, propane facilities must establish a worst case scenario and
a 5 year release history. They must also coordinate their emergency
response plan with local officials. To be classified as a Program 1
participant, a propane facility must demonstrate that there are no
``public receptors'' within range of the worst case scenario zone of
impact. ``Public receptors'' are offsite residences, and other
institutions such as school, hospitals buildings, parks or recreational
areas inhabited or occupied at anytime by the public where the public
could be exposed to radiant heat or overpressure from an accidental
propane release.
Program 2 involves a more heavily detailed evaluation of hazards
and implementation of prescribed accident prevention steps. In Program
2, propane facilities must:
1. ensure that up to date safety information is available;
2. conduct a detailed hazard review;
3. prepare written operating procedures;
4. ensure that each employee has been trained in the operating
procedures;
5. maintain the mechanical integrity of all equipment;
6. complete compliance audits every 3 years; and
7. investigate each incident.
Program 2 also requires propane facilities to prepare at least one
alternative release scenario that is more likely to occur than a worst
case scenario.
Program 3 has the most stringent and rigorous requirements. This
program will affect propane facilities that are covered by OSHA's
Process Safety Management (PSM) regulations. Under Program 3, covered
propane facilities must perform essentially the same tasks as required
under Program 1 and 2 plus many others that are analogous to OSHA's PSM
requirements.
There are several problems with propane being included in the RMP
regime. The regulatory requirements of compliance with this program
will unduly burden small businesses. Unlike large chemical facilities,
most propane users that would be subject to the EPA regulation are
small businesses, farms, hotels, etc. The National Propane Gas
Association (NPGA) estimates that 330,000 farms will be covered by the
RMP reporting regime. Another 325,000 commercial facilities also are
threatened by the burdens of RMP reporting and 350,000 industrial
facilities using propane will similarly be subject to RMP.
These firms are not equipped with the bank of lawyers and experts
needed to fulfill reporting requirements. In many cases, they will turn
to their propane supplier and have them bear the costs of compliance or
risk losing them as a customer. This will result in higher fuel costs
and a deadweight loss.
The technical expertise required for compliance will not come
cheaply. Estimated costs of engineering or other service providers will
range from $1,000 to $8,000 per site. Kermit W. Richardson, Master
(President) of the 300,000 member National Grange estimates that ``if
100,000 farmers incur an expense of $1,000 per site the compliance
burden placed on the farm economy will exceed $100 million.'' \4\ Total
cost of compliance with the RMP program for the propane industry is
estimated at over $1 billion. But this figure doesn't take into account
the losses to the industry from fuel switching caused by burdensome
reporting requirements. Small and large propane users will shift to
other energy sources to avoid needless regulation and paperwork. The
costs of compliance will ultimately be passed onto consumers.
---------------------------------------------------------------------------
\4\ Kermit W. Richardson, Master, National Grange, Letter to
Senator John Chafee, September 28, 1998.
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environmental and safety implications of rmp
Inclusion of propane in the right to know regulation will result in
the loss of the benefits of propane, a clean fuel. Many propane users
will be daunted and intimidated by the complicated reporting
requirements. Right to know plans will unfairly place propane at a
competitive disadvantage to other fuels, not burdened by expensive and
excessive regulations. These propane users will be shifting to less
clean fuels. This will lead to increased air emissions from fuel oil or
coal fired generated electricity.
Monitoring the millions of propane users will strain the EPA's
capabilities and greatly increase the agency's workload. Identifying,
reaching and counseling the thousands of rural propane users is a
challenging task that the EPA is not up to. Both the monitoring of the
RMPs of the propane industry as well as the increased air emissions
from the inevitable regulatory fuel shift will leave the EPA unable to
do its job or seeking additional budget increases. The earlier EPA
estimates that 66,000 firms would be subject to RMP reporting fails to
account for the over one million propane customers included in the
reporting regime.
Inclusion of propane in the RMP reporting regime also increases the
risk of accidents. Propane customers, attempting to avoid the burdens
of RMP reporting may shift to smaller tanks, will lower their on-site
volumes below the threshold amount of 2,381 gallons. Smaller tanks with
no decrease in mand will necessarily result in more propane shipments.
Propane is in its safest state when sitting idle in storage. The time
of transfer is when accidents are most likely to occur.
Propane is in greatest demand during the fall and winter months. If
customers seek to avoid the threshold by keeping their propane volumes
below the threshold amounts, more trucks will be driving at the most
hazardous time of year on icy rural roads. Such an increase in traffic
will lead to a winter distribution bottleneck, increasing the
likelihood of transportation and transfer related propane incidents.
This is analogous to the regulation in Mexico City limiting the number
of days when you could drive a car. The result was an increase in
vehicle traffic emissions as people bought used, less environmentally
sound cars to drive on alternative days.
Inclusion of propane in the EPA RMP regime will also needlessly
terrorize the public. The propane user who discovers that his/her tank
is subject to the same requirements as toxic chemicals will be
reluctant to maintain the fuel source. This will lead to further fuel
shifting and damage to the propane industry. A Burger King on the
corner using propane for cooking should not inspire the same sort of
concern as a chemical plant next to a school or hospital. If propane is
included in the RMP regime, local eateries and quaint hotels will be
unjustly viewed by the public as unsafe as the 1998 Morton
International, Paterson, New Jersey plant, which exploded in a toxic
chemical reaction, blowing the lid off a mixing vat and spewing
hazardous substances into its neighborhood. Property values will be
unjustly and artificially depressed if propane users are viewed with
the same suspicion as chemical plants.
Consumers will also be threatened with delays in delivery during
Winter storms. Customers keeping their onsite propane volume below the
threshold amounts will run the all too real risks of running out of
propane during peak consumption periods. Industry infrastructure will
not be able to meet the increased volume of propane delivery demands
during snow storms, leaving many consumers out in the cold, literally
frozen by regulation.
further regulation of propane is redundant and burdensome
Inclusion of propane in the right to know regulation also burdens
businesses with redundant regulation and will not decrease the
potential for accidents to occur. Propane is currently regulated in all
50 States through adoption of National Fire Protection Association
(NFPA) \5\ standard 58. \6\ NFPA 58 is the standard that prescribes
design, construction, and site operation requirements for all propane
facilities. Forty-eight States adopt NFPA 58 by reference, while the
remaining 2 States (Texas and Arkansas) have adopted the substance of
NFPA 58 into their own rules. \7\ According to Gale Haag, Kansas State
Fire Marshal, ``the track record with NFPA 58 has been very successful
and because of the enforcement and education processes are already
established, the regulated community and those effected indirectly
appear to be satisfied that their needs are presently met. It ain't
broke.'' \8\
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\5\ The National Fire Protection Association, NFPA, is a non
profit, voluntary association devoted to fire prevention and safety.
\6\ NFPA 58 Standard for the Storage and Handling of Liquefied
Petroleum Gases.
\7\ Gale Haag, Office of the Kansas State Fire Marshal Letter to
Senator Sam Brownback, September 8, 1998.
\8\ Id.
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NFPA continuously reviews and updates standard NFPA 58, a process
which is open to EPA participation. EPA's zeal in including propane in
the RMP scheme is also contrary to Federal standards adoption policy.
The National Technology Transfer and Advancement Act of 1995 \9\
requires that ``all Federal agencies and departments shall use
technical standards that are developed or adopted by voluntary
consensus standards bodies, using such technical standards as a means
to carry out policy objectives or activities determined by the agencies
and departments.'' \10\ Congress further requires regulatory agencies
``to coordinate Federal, State and local technical standards activities
and conformity assessment activities, with private sector technical
standards activities and conformity assessment activities, with the
goal of eliminating unnecessary duplication and complexity in the
development and promulgation of conformity assessment requirements and
measures.'' \11\
---------------------------------------------------------------------------
\9\ P.L. 104-113 ; 110 Stat. 775 (1996).
\10\ Id.
\11\ Id.
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Congress intended that regulatory agencies use existing national
consensus codes or standards rather than develop new regulations to
reflect an interest in streamlining regulations to remove redundancies.
Congress also recognizes that private industry has superior knowledge
and experience regarding standards. The EPA has no experience with
developing standards for safe handling and storage of propane. They are
not well suited to develop standards based on the accidental release
analyses.
NFPA 58 is exactly the type of national consensus based industry
standard that Congress had in mind when enacting this legislation. NFPA
standard 58 is already referenced by OSHA and the Department of
Transportation.
California may very well be the most environmentally conscious
State in the country. The State's environmental standards in many cases
exceed Federal requirements. California State officials have embraced
NFPA 58. ``The Legislature finds and declares that NFPA 58 is overseen
by a national committee that ensures that the standard incorporates the
latest in current and approved technology.'' \12\ The California State
Legislature determined that ``the State Fire Marshal in conjunction
with the Occupational Safety and Health Standards Board shall, after
public hearings, adopt by reference the 1992 edition of NFPA 58
Standard for the Storage and Handling of Liquefied Petroleum Gases.''
\13\ The statute establishes that ``it is the intent of the Legislature
that the NFPA 58 Standard supersede any inconsistent State
standards...'' \14\ Other States have passed similar legislation,
adopting NFPA 58 as the State standard. \15\
---------------------------------------------------------------------------
\12\ Cal Pub Util Code Section 4451 (1997.)
\13\ Cal Health & Safety Code Section 13241 (1997.)
\14\ Id.
\15\ See Miss. Code Ann. Section 75-57-105 (1997) ``. . .
regulations shall be in substantial conformity with the published
Standards of the National Fire Protection Association for the Storage
and Handling of Liquified Petroleum Gases (NFPA 58). . .''.
---------------------------------------------------------------------------
Most significantly, some critics assert that the EPA is trying to
federalize fire safety. Senator John Chafee observes ``nothing in
Section 112, nor any other part of the Clean Air Act suggests that it
should be regarded as a Federal fire safety law.'' \16\ In a letter to
EPA Administrator Carol M. Browner, Senator Chafee recognizes that
Congress ``mandated the inclusion of 16 chemicals on the list to be
developed under Section 112(r)(3). The concern in each case was related
to the use of the substances in a manufacturing process or other
chemical application and not as a fuel source.'' He astutely concludes,
``Risks from fuel explosions might more appropriately be regulated by
the Occupational Safety and Health Administration, the Department of
Transportation or State and local agencies.'' \17\ Critics are also
concerned about wasted resources. Rep. Sherwood Boehlert (R-NY), who
has a strong record of supporting environmental initiatives states,
``It is a waste of both the agency's and the private sector's resources
to extend the coverage of Section 112(r) to flammable fuels.''
---------------------------------------------------------------------------
\16\ Senator John H. Chafee, Ibid.
\17\ Senator John H. Chafee, Ibid.
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regulatory burdens of rmp
Propane facilities subject to the RMP must be in compliance by June
21, 1999. These marketers and propane consumers face civil enforcement
provisions authorizing penalties of up to $25,000 per violation per day
for facilities or individuals found to have violated regulations or
permits issued under the Clean Air Act. These regulations will
needlessly expose many farmers and small businesses to severe financial
penalties. The Act also allows members of the public to file their own
civil enforcement actions against affected facilities. This provision
will expose thousands of smaller propane users to civil penalties and
nuisance suits by overzealous plaintiffs lawyers.
The EPA claims that complying with the disclosure plans is simple.
The forms are by most Federal standards relatively short. This is only
half the story. While the forms may be concise, the instructions are
extremely lengthy and complex and beyond the ability of most smaller
businesses. The RMP forms are analogous to Federal income tax forms,
short forms, yet excruciatingly complex instructions. The regulation is
42 pages long. The EPA's General Guidance for Risk Management Programs
\18\ is over an inch thick while the EPA's RMP Guidance for Propane
Storage Facilities is approximately 100 pages. Obviously compliance
with these programs will be beyond the expertise of most propane users.
The cost of complying with these requirements and the loss of
productivity is staggering. Many propane consumers will simply avoid
the requirements by shifting consumption to other fuels.
---------------------------------------------------------------------------
\18\ 40 C.F.R. Part 68.
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propane and state risk management programs
Some States have already adopted risk management plans on a local
basis. But some of these States have recognized that propane need not
be included among the substances needing to report under a RMP. In New
Jersey, State environmental officials determined that propane did not
merit the same stringent regulations as hazardous chemicals and was
exempted from the RMP requirement. New Jersey officials properly
recognized that under the State Toxic Catastrophe Prevention Act, \19\
propane should not be treated the same as chemicals such as methyl
isocyanate, the deadly gas that was released in Bhopal. In exempting
propane from the reporting requirement of the State RMP Reginald
Baldini, of the State Department of Environmental Protection determined
that propane is already highly regulated by other laws, including the
New Jersey Liquefied Petroleum Gas Act of 1950.
---------------------------------------------------------------------------
\19\ N.J. Stat 13:1K-19 (1998).
---------------------------------------------------------------------------
Robert Nixon, a New Jersey propane industry representative stated
``We're very happy the DEP agreed with the propane industry that
essentially propane is not a toxic substance and there are several
other laws and regulations in the State that provide the same level of
protection to the public as the Toxic Catastrophe Prevention program.''
``That ruling just saved the propane industry in the State.'' \20\ The
RMP program in New Jersey would have cost the State's propane users
approximately $1 million annually in fees alone.
---------------------------------------------------------------------------
\20\ Bruno Tedeschi, ``Propane Off Hazardous List; DEP Action
Follows Industry Outcry, The Bergen County Record, July 21, 1998, P A-
2.
---------------------------------------------------------------------------
Similarly, in October 1998, the EPA published a direct final rule
and a proposed rule that will approve the Florida Department for
Community Affairs Division of Emergency Management proposal for RMP
implementation. The Florida State plan exempts sources with propane as
their only regulated substance from the requirements of the RMP
program. \21\
---------------------------------------------------------------------------
\21\ RMP Relief in Florida Moves Forward; Federal Rules Pending,
Butane-Propane News, November 9, 1998. Available at http://
www.bpnews.com.
---------------------------------------------------------------------------
the inclusion of propane in rmp regulations will increase the cost of
propane to consumers
The inclusion of propane in RMP regulations will increase the cost
of propane to small consumers. Propane is a residential heating source
primarily for rural low to moderate income consumers. Medium and large
commercial and industrial propane users will shift to other fuels to
avoid RMP reporting burdens. These larger commercial and industrial
users have a steady, year round demand for propane deliveries. Their
demand requirements subsidize the transportation infrastructure of
propane in the warmer off season. As they are forced by regulation from
the propane market, the transportation costs will shift to the smaller
peak demand users, primarily residential and small business consumers.
The cost of compliance with RMP requirements for the propane
industry is estimated at over $1 billion. This cost will be borne by
the consumer with no visible benefit. Similarly some commercial and
industrial consumers will shift from propane to other sources such as
natural gas or electricity to avoid the RMP reporting burden. This
shift will not be frictionless. The increased cost of energy and the
increased transaction costs associated with fuel switching will be
borne by the consumer with no visible benefit.
As the cost of complying with RMP regulation decreases demand for
propane, many propane marketers will be forced out of business. This
will result in a loss of investment and reduced employment in the
industry, particularly hard felt in rural areas. The closing of propane
marketers ultimately means reduced competition in the fuels market.
Fewer fuel choices and a loss of competition will mean higher prices
for consumers.
With RMP requirements in place, competition within the propane
market will suffer. Consumers electing to stay with propane will be
bound to their existing suppliers by the need for assistance in RMP
compliance. A consumer wishing to switch propane suppliers will have to
pay the cost of completing and filing a new RMP as a condition of
service. Rather than face this cost, many consumers will find
themselves wedded to an existing propane relationship in an economic
marriage of convenience sanctioned by the EPA.
As Kristin M. Corsale, Executive Director of the Ohio Meat
Industries Association clearly states ``The EPA rules will affect our
members because it will affect the farmers and manufacturers who stock
the shelves. If propane suppliers and big users are required to spend
extra time and money to comply with the EPA rules, their expenses will
trickle down to grocers and their customers.'' \22\
---------------------------------------------------------------------------
\22\ Kristin M. Corsale, Executive Director, Ohio Meat Industries
Association, Letter to Rep. Ted Strickland, October 8, 1998.
---------------------------------------------------------------------------
inclusion of propane in the rmp regime is based on faulty assumptions
and flawed research
The information required under the RMP plans is based upon faulty
assumptions and flawed decision making by the EPA. For example, the RMP
requires facilities to evaluate the impact of a release of all the
propane at a site. According to Anthony R. O' Neill, Vice President of
the National Fire Protection Association, ``historical data on fires at
propane bulk storage plants indicates that the total release basis for
EPA's requirement is an unrealistic scenario that will predict
potential impacts far greater than a worst case release.'' \23\ Mr.
O'Neill observes that propane is stored in ASME pressure vessels that
are certified by third parties. ``Data shows that these vessel do not
fail with total release of material.'' \24\
---------------------------------------------------------------------------
\23\ Anthony R. O'Neill, Vice President National Fire Protection
Association, Comments on EPA's Risk Management Rule, July 7, 1998.
\24\ Id.
---------------------------------------------------------------------------
The intent of the Act is to give communities information regarding
toxic substances. A propane release does not pose the same threat as
hazardous chemicals. Propane is flammable but not toxic. The propane
industry also has an impressive record of safety. The individual risk
of a member of the public being fatally injured in a propane accident
is 1 in 37,000,000. As a point of comparison, the odds of being struck
by lightning is 1 in 1,375,000. Therefore, risk to the public from
propane incidents are 1,000 times less likely than the risk of being
struck by lightning!
Given the widespread usage of propane and the safety record of the
industry, there is no reason for propane to be included in the list of
substances under the right to know program. Inclusion of propane in
this list will needlessly terrorize many citizens into thinking that
they have a toxic substance in their community or their homes. Jerry
Stocker, Vice President of the New Jersey Propane Gas Association
explained at a New Jersey public hearing on the State RMP that
``propane does not have the chemical foundation to result in a gaseous
release that would result in death or permanent disability.'' \25\
---------------------------------------------------------------------------
\25\ Bruno Tedeschi, ``Hazards List Could Hit Burger Stands; State
Plan Applies Tougher Standards,'' The Bergen County Record, May 4,
1998, P A-3.
---------------------------------------------------------------------------
The over $1 billion cost of compliance is particularly high when
compared with the low risk of propane accidents from the propane
facilities to be included in the RMP regime. In 1997, total combined
losses from all propane facilities that would have to submit RMPs was
$500,000. This number reflects all building and structural fires,
outdoor fires and vehicle fires at propane bulk storage plants. \26\
---------------------------------------------------------------------------
\26\ Anthony O'Neill, Ibid.
---------------------------------------------------------------------------
In a letter to Senator Barbara Boxer (D-Calif) regarding inclusion
of propane in the expanded EPA reporting regime, John A. Lemire of the
State of California Occupational Safety and Health asks ``Finally, what
is the gain?'' \27\ Mr. Lemire states that ``The public's right to know
is a sacred right but what will be the gain from this activity?
Knowledge of such catastrophic situations that have such an
infinitesimal likelihood of occurring due to current regulations--what
is the point except to panic the general public?'' \28\
---------------------------------------------------------------------------
\27\ John A. Lemire, State of California, Division of Occupational
Safety and Health, Letter to Senator Barbara Boxer, November 12, 1998.
\28\ John A. Lemire, Ibid.
---------------------------------------------------------------------------
EPA also used faulty data when it pushed to include propane in the
RMP reporting regime. According to the NPGA analysis of EPA data,
incidents occur during transportation activities and at facilities not
covered by RMP rules far more frequently than at facilities subject to
RMP requirements. Only a small minority of incidents occur at
facilities targeted by the RMP regime. The majority of incidents occur
during transportation not covered by RMP. \29\
---------------------------------------------------------------------------
\29\ Philip A. Squair, Director of Regulatory Affairs, NPGA, Letter
to Jennifer Woodbury, House Small Business Committee.
---------------------------------------------------------------------------
The EPA decision to include propane in RMP was also based on weak,
flawed and irrelevant data. EPA ``research'' consisted of 52 pages of
news articles reporting propane incidents and 112 incidents recorded by
the Major Hazard Incident Data Service (MHIDAS). Some of this
questionable data is nearly 50 years old and includes incidents from as
far away as Japan. The EPA reviewed and relied upon evidence of 157
incidents to justify including propane in the RMP reporting regime. Of
these 157 incidents, only 31 (19%) could be confirmed to have occurred
at a facility which would be subject to RMP.
Of these 31 incidents, 15 incidents were caused by or during
transportation activities not subject to RMP. Of the 16 non-
transportation related incidents involving propane, only 11 incidents
could be confirmed to have had offsite consequences, including purely
precautionary activities such as evacuations. In 8 incidents, propane
was either found not to have leaked or was not implicated. \30\
---------------------------------------------------------------------------
\30\ Id.
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conclusion
The Clean Air Act Amendments were designed to prevent the hazard of
accidental chemical releases. Current EPA plans would thwart
Congressional intent, actually increasing the risk of propane
incidents. Inclusion of propane in the RMP regime is bureaucratic
decision making at its worst. The plan is based on faulty and
misleading assumptions, increases costs to a wide array of consumers,
injures a productive domestic industry and threatens the environment,
with an increase in the risk of accidents. The proposed RMP reporting
regime is redundant and wrong headed and in need of rejection.
__________
Statement of Robert E. Blitzer, Former Section Chief Domestic
Tcrrorism/Counterterrorism Planning Section, Federal Bureau of
Investigation
Good morning, Mr. Chairman and members of the committee. I am
pleased to have this opportunity to discuss the electronic
dissemination of chemical ``worst case'' scenarios by the Environmental
Protection Agency (EPA).
From January 1996 until I retired from the Federal Bureau of
Investigation (FBI) at the end of November 1998, I served IS Chief of
the Domestic Terrorism/Counterterrorism Planning Section of the
National Security Division. In this capacity I was responsible for
national oversight and management of several important programs to
include Domestic Terrorism Operations, Weapons of Mass Destruction
(WMD) Operations, WMD Domestic Preparedness, Special Events Management,
and Civil Aviation Security.
In December 1997 the FBI became aware, through the Chemical
Emergency Preparedness ant Prevention Office of the EPA that Section
112(r) of the ``Clean Air Act of 1990'' required the publishing of
regulations focusing on the prevention of chemical accidents In an
effort to comply with these regulations the EPA proposed to distribute
Risk Management Plans (RMP) via the Internet and CD-ROM These plans
would include for each facility history of accidental releases, an
offsite consequence analysis (OCA); a prevention program inclusive of
company operating procedures, employee training, hazard evaluation and
emergency response programs to ensure that either facility employees or
public responders were prepared to deal with any accidents that might
occur and thus minimize the consequences.
A number of meetings with representatives of the law enforcement
and intelligence communities were held during 1997 and 1998 to discuss
``security concerns'' relating to the making available of all RMP data
relating to the approximately 66,000 chemical sites within the United
States. The proposed EPA electronic distribution plans were discussed
with these agencies. The plans would allow users to initiate Internet
searches by facility namer area of the country, zip code, city, county,
and State. A modified search by chemical type would allow a person
using the EPA web site, to choose a portion of a city by zipcode and
tailor an attack by searching for certain chemicals. A search of this
nature could be accomplished from anywhere in the world. Additionally.
no record of such a query would be made. Further searches could be
tailored to developing information regarding chemical companies'
mitigation and safeguarding capabilities.
Of greatest concern to the law enforcement and intelligence
communities was the possible Internet dissemination of Worst Case and
Alternate Worst Case Scenarios as set forth in the OCA. Using the
Internet a terrorist, criminal or disgruntled employee could identify
these scenarios and fine tune an attack by selecting ``worst case
scenarios'' at facilities that were within or adjacent to large
civilian or military communities.
Based upon the above meetings a number of interagency
recommendations were developed and provided to EPA in a letter dated
October 30, 1998. The leper recorded interagency agreement that OCA
data not be included in RMP information distributed via the Internet.
Other data elements would be accessible to the public on the Internet.
EPA agreed to work with stakeholder groups to identify meaningful
approaches to make appropriate OCA information available to the local
community. To ensure that State and local government agencies have
access to all national RMP dam it was recommended that SPA use a
``closed system' restricted to State and local government agencies.
This system should use secure password protection and sanction
technology.
It was believed that the creation of a CD-ROM encompassing EPA's
RMP data base could be accomplished. However, the FBI recommended that
EPA not include facility identification and contact information on the
CD-ROM. This allows legitimate information retrieval for analysis,
however removes the ability of criminals and terrorists to use this
information for targeting purposes.
Mr. Chairman, at the time the above letter was prepared both the
Department of Justice, and the EPA Legal Counsel advised the FBI that
the current Freedom of Formation Act requires that EPA provide the
complete RMP information including the worst case scenarios to a
requester. This is a potential problem. If this information is obtained
arid posted on private Internet sites the responsible steps taken by
the FBI, EPA and its interagency partners would be negated. This is a
concern that I hope you can address in an expeditious fashion.
The FBI and its interagency partners have worked hard to strike a
reasoned balance to insure public dissemination of important
information. In early February, Attorney General Janet Reno and FBI
Director Louis Freeh appeared before the U.S. Senate Subcommittee for
the Departments of Commerce, Justice, and Slate, the Judiciary, and
Related Agencies of the Committee on Appropriations. Director Freeh
gave an excellent overview of both the international and domestic
terrorism threats we face at the present time and into the future He
also spoke about a number of high profile investigations that have
occurred in the last several months. One key point that the Director
made was that `` Terrorists, both abroad and at home, are using
technology to protect their operations from being discovered and thwart
the efforts of law enforcement to detect, prevent, and investigate such
acts.'' Computer technology is and will be a terrorist tool. I believe
that the actions taken to prevent the widespread Internet dissemination
of ``worst case'' sensitive chemical facility information was both
prudent and necessary.
This concludes my remarks. Thank you.
__________
Statement of Thomas M. Susman, Ropes and Gray
Mr. Chairman and members of the subcommittee, I am pleased to be
here this morning to address the application of the Freedom of
Information Act to certain chemical accident reporting data that are
required to be provided to the Environmental Protection Agency under
the Clean Air Act.
I have been involved with government information law for over 30
years, as the attached biographical summary reflects, and have been an
unwavering advocate of increasing public access to government
information throughout that time. I headed an American Bar Association
effort to press for enactment of legislation to adapt the Freedom of
Information Act (FOIA) to the electronic era and testified before a
Judiciary Subcommittee supporting Senator Leahy's legislation that
became the Electronic Freedom of Information Act (EFOIA).
I have litigated FOIA cases pro bono on behalf of public interest
groups, serve on the Board of the National Security Archives, am a
consultant to the American Library Association on government
information dissemination, and am Treasurer of the American Society of
Access Professionals. However, I represent none of these organizations
this morning.
I appear today on my own behalf, at the request of the
subcommittee. I note that the paper attached to my testimony, which I
am submitting for inclusion in the record, was prepared in part through
the support of the Chemical Manufacturers Association, but its analysis
and conclusions are mine.
I am here because I have great respect both for the FBI and its
antiterrorist expertise and activities and also for the important
benefits of open access to government information. When the FBI says
that offsite consequence analyses (OCAs)--required to be submitted to
EPA as part of the Clean Air Act (CAA) requirements--should not be
posted on the Internet because it will significantly the prospects for
terrorist attacks on facilities, I readily conclude that such posting
is a bad idea. When EPA and local governments and community leaders say
that access to OCA data will encourage accident prevention and
facilitate community preparation for and rapid response to chemical
accidents, I am comfortable concluding that such access is a good idea.
Plainly some way of striking a balance between these conflicting
interests must be found.
Where I find myself in disagreement, however, is with EPA's
contention that under current law the agency can collect OCAs in
electronic format or can compile them in an electronic medium, but not
release those data in electronic form to the public.
That is not what those of us who worked for enforcement of an
effective FOIA and for enactment of the EFOIA fought for.
That is not what Congress, in enacting the FOIA and EFOIA
amendments, intended.
That is not consistent with how courts and the Department of
Justice have interpreted the FOIA and EFOIA amendments.
Let me explain.
The CAA states clearly and unequivocally that OCAs, as part of the
management plans required to be filed with EPA, must (except for trade
secrets) be made available to the public. If the issue were whether,
rather than how, access is to be effected to these OCAs, then our
inquiry might end right here. That is because section 114(c) of the CAA
simply does not address the format issues.
The FOIA, however, does. It says that ``any person''--including the
group that planned the attack on the chemical facility outside Dallas
in 1997 and including members of Bin Laden's terrorist organization--
has a judicially reviewable right of access to government agency
records.
The FOIA also says that if the government has information, it has
no discretion to withhold that information unless it fits into one of
the act's exemptions. As my appended paper discusses, the exemptions do
not apply here.
And finally, the FOIA, by virtue of its 1996 EFOIA amendments,
requires disclosure of the requested data in an electronic format
without additional manipulation by the agency if that format is in
possession of the agency. And it goes the additional step of saying
that data must be disclosed electronically in a different format if it
is reasonably feasible for the agency to do so.
The FOIA requires that the EPA fully and completely respond to FOIA
requests regarding OCA information. OCA information submitted to the
agency in an electronic format must be provided to any person who
requests the information in that format. As the ACLU and several other
disclosure advocates recently agreed in correspondence with Chairman
Bliley, the EPA has no discretion to act otherwise.
There has been some suggestion by EPA that the OCA data may be
reformatted to make ready access and manipulation and search in
electronic format more difficult--to create ``speed bumps'' to
disclosure. Mr. Chairman, no agency should be allowed, much less
encouraged, to state publicly that it intends to solve a problem by
disobeying the law and violating a clear mandate of Congress.
The FOIA does not permit it.
The Justice Department, with responsibility to see that the laws,
especially the FOlA, are faithfully carried out, should not condone it.
And the Congress should not tolerate it.
For those who agree that unrestricted electronic access to OCA data
via the Internet is a threat to the security of manufacturing
facilities and the communities in which they are located, there is but
one legal solution to this problem: new legislation.
I am not proposing that Congress amend the FOIA or, for that
matter, eliminate or reduce the reporting requirements under the CAA.
Nor do I propose that OCAs become unavailable to local governments or
community residents. There may be other problems with EPA's protection
of sensitive information: inadequate security of EPA's computer
systems, the dangers of posting chemical inventory data under other
provisions of law, or the absence of adequate protection for
confidential commercial information. These serious problems, however,
are not the focus of this hearing.
A balanced scheme is needed that will allow selective community
access to OCAs, and even release of paper copies on a request-by-
request basis, but will specifically and clearly prohibit their
dissemination to the general public in electronic format. The
development of that scheme should, Mr. Chairman, be up to Congress,
through legislation, and not EPA, through violating the Freedom of
Information Act.
__________
Statement oF Paula R. Littles, Paper, Allied-Industrial, Chemical and
Energy Workers International Union (PACE)
Mr. Chairman, members of the committee, my name is Paula R.
Littles. I am the Citizenship-Legislative Director for the Paper,
Allied-Industrial, Chemical and Energy Workers International Union,
AFL-CIO (PACE). Our union represents 320,000 workers employed
nationwide in the paper, allied-industrial, chemical, oil refining, and
nuclear industries.
Our organization is deeply concerned over discussions surrounding
the issue of EPA not providing full disclosures of (RMPs) Risk
Management Plans. We very much appreciate the opportunity to appear
before you today. The question of full disclosure of Risk Management
Plans is of vital importance to our organization, our members, and the
communities in which they live. We feel that if we are ever to have
effective, ongoing hazard reduction. These plans must be fully disclose
to encourage safer technologies, honor the public's right to know, and
to overcome the complacency of the chemical industry, that has allowed
it to produce no serious plan and timetable to reduce hazards.
The Clean Air Act requires the Environmental Protection Agency
(EPA) to implement a program to assist in the prevention of chemical
accidents. EPA developed the Risk Management Program Rule. This Rule
requires some 66,000 facilities that manage sufficient amounts of
hazardous materials to develop a RMP and file it with EPA. These
facilities include chemical manufacturers, refineries, water treatment
facilities, ammonia refrigeration, propane storage, and semiconductor
fabrication. A projected 85 million people live within a five-mile
radius of a RMP facility.
The Clean Air Act also requires that EPA make this information
available to the public. Our organization became very concerned in
November when we discovered that EPA had made the decision on November
6, 1998 to not allow full access to RMP information. We have expressed
our concern about EPA's ability to effectively deliver full access to
Risk Management Plans in joint correspondence with other groups to EPA
Administrator Carol Browner.
Our main of concern surrounding full discourse is our members,
their families and the communities in which they live. Our members are
the first respondents to the site of a manufacturing accident at their
worksite. They also may work at a site near an incident, next door,
across the street, or five miles away, but near enough to be affected.
Currently, not enough effort has been placed on hazard reduction, for
our organization to readily accept limited discourse on hazardous
materials that our members work, or live near.
There is also the issue of manufacturing security. It is to our
advantage as an organization that represents workers in this arena that
we can say to workers, their families, and the community, that these
facilities have nothing to hide. We can tell workers that these
facilities are working toward reducing hazards, their RMPs are
available in any form they need ``electronic or other'' to provide the
information needed to show that they are really working toward hazard
reduction. We believe that it is not the knowledge that is harmful, but
the lack of knowledge that has at times created mass hysteria and
rushes to judgment.
Although numbers vary, depending on the source of statistics and
period of time examined, there is no doubt about the effects of
chemical accidents on human lives. Year after year, large numbers of
people are killed or injured. In addition, the numbers for those
suffering the long-term consequences of exposure must also be counted.
Currently, the Chemical Safety Board is reviewing or investigating
accidents in Arizona, Arkansas, California, Florida, Georgia, Idaho,
Iowa, Louisiana (3), Maryland, Michigan (2), Missouri, New Jersey (2),
New York, Ohio (2), Oklahoma, Oregon, Pennsylvania (2), South Dakota,
Texas, and Washington State (2), as of February 3, 1999. The last 3
months of 1998 the Chemical Safety Board begin four incident
investigations. Of those four:
10-13-98: Five employees injured, local residents advised to
shelter in their homes;
10-24-98: Seven workers were killed;
11-25-98: Six workers were killed; and 12-11 -98: Seven workers
were killed.
That is a total of 20 workers who were killed on the job in the
last 3 months of 1998. These numbers are clear and the message they
send should be equally clear, we need to work harder at reducing
hazards and it is our belief that full disclosure is the beginning
step.
We believe that there are many valid and important uses for RMP
information by people who live, work and conduct business well beyond
the immediate community where a facility is located. RMP information
can be useful in the following ways:
To learn about vulnerability zones and prevention practices in
similar facilities in different States;
To verify reported information by comparing data submitted
elsewhere; To hold government accountable for reducing hazards
nationwide;
To develop studies on chemical hazards;
To develop effective accident prevention programs;
To develop and conduct effective education and training programs;
To link other worker safety and public health data base; and To
determine which facilities might pose ``Year 2000'' risks.
Just as we believe strongly that our members, their families, and
the communities they reside in will be made safer by these full
disclosures, we do not believe that they are being placed in danger of
sabotage or terrorism.
In earlier discussions with EPA, the industry and everyone else
agreed that a ``professional terrorist'' would not be deterred by
keeping this information off the Internet. (For earlier discussion, see
www.epagov/swcrccpp/pubs/rmprpt.html--look under Section 2.B.
``Location of RMP. Info [Internet Issues]).
Risk Management Plans do not include any information about how to
sabotage an industrial facility, no technical data about how to cause a
``worst case'' event, no tank locations, no plant security information,
and no classified information. Anyone can get readily available
information regarding the largest and most dangerous facilities that
store chemicals, without using the Internet. Also, keeping worst-case
scenarios off the Internet offers no real protection to communities.
Communities can only be protected when companies use safer chemicals,
reduce dangerous storage, widen buffer zones and provide full
information.
Chemical accidents have no respect for geographic boundaries. We
must have the freedom to communicate concerning chemical hazards, if we
are to have real hazard education. Only with full information
disclosure and opportunities to act can facilities, employees, and
communities reduce chemical hazards.
In conclusion, I would like to reiterate the following points:
Industry should and must produce a serious quantifiable plan and
timeline to reduce hazards; and
Full disclosure of RMPs is the key tool needed to access the impact
of hazard reduction programs and activities.
Thank you for allowing me the opportunity to speak on behalf of
PACE to explain our position to you today on this important issue.
__________
Statement of Thomas Natan, Research Director, National Environmental
Trust
Mr. Chairman and members of the committee, my name is Thomas Natan,
and I am the Research Director of the National Environmental Trust, a
non-partisan, non-profit public interest organization that educates the
public on environmental issues. I thank you for the opportunity to
testify as a member of the environmental community concerning the EPA's
Risk Management Plan Program under section 112(r) of the Clean Air Act.
I am a chemical engineer by training, and have visited scores of
industrial facilities, examining ways in which they can operate more
efficiently and safely, as well as helping to interpret their
environmental data for residents of surroundings convexities.
As the committee is aware, in 1986, Congress enacted the Emergency
Planning and Community Right-to-Know Act. A principal feature of this
legislation was the Toxics Release Inventory Program, or TRI. TRI has
been credited by both environmentalists and industry alike for
generating a climate that has resulted in dramatic decreases in toxic
chemical emissions without the traditional constraints and costs of a
command-and-control regulatory framework. A principal result of the
public right-to-know program has been an incentive for enhanced
environmental stewardship without the burdens of the command-and-
control regulatory system.
The experience with complete and unimpeded public dissemination of
TRI data in generating significant reductions in releases of toxic
chemicals to the environment is relevant to the issue of public
availability of Worst Case Scenario data. Like the 112(r) program, TRI
merely requires reporting of information that companies already
generate in the course of doing business. Public awareness--generated
from both local citizens and data analyses by environmental groups--has
led to a reduction in toxic chemical releases of 50 percent over the
last 10 years, No further regulation was necessary to bring about these
reductions. The enduring lesson of public access to information
regarding toxic chemical risks f.acing communities is that real risk
reduction can occur without the imposition of new and significant costs
to our manufacturing sector. Another extremely import lesson that we
can glean from the TRI processes that public access to toxic chemical
release information alone can generate enormous risk reduction
benefits. Also, for many workers at industrial facilities, TRI is their
first opportunity to learn about chemicals used on the job--another
unexpected benefit of complete access to information. All of these
benefits can be enhanced further through public access to 112(r) data.
As the committee is aware, the intelligence community has raised
concerns about the availability of Worst case scenario 112(r) data on
the Internet. Even in the absence of Internet access to data, there are
many ways in which the EPA, the intelligence community, and the
chemical industry must work, both separately and together, to reduce
hazards and potential risks to the American public from use of toxic
chemicals at industrial facilities.
While a ``read-only'' CD-ROM has been proposed by EPA so a means of
dissemination, the complete 112(r) data, there have not yet been enough
details to determine if the CD-ROM will meet the need of a diverse
public. To name just a few, this ``public'' includes citizens who vent
to compare their local facility to others across the county in same
industry workers at the facilities, for whom Worst Case Scenario data
may be the best vehicle to learn about risks and hazards on the job;
emergency responders, who will want to know if a particular plant meets
the industry standard for safety; educators, who will want to teach
students about best practices; and investors, who want to track the
performance of all the facilities of a particular company.
Whether or not the Worse Case Scenario data are available on the
Internet, EPA should establish specific public access services and
mechanisms including;
instituting a multilingual public ``800'' hot-line;
dedicating liaisons to conduct data analyses, rank
hazards, and respond to questions;
distributing complete 112(r) information through public
libraries;
providing service for information on specific facilities,
using maps and mapping tools to clearly communication hazards;
notifying communities of changes in potential risks from
local facilities as shown by changes in 112(r) data or permit
information; and
providing links to other data collected by the Agency
that will provide a context to evaluate the use of particular use of
particular chemicals at individual facilities.
EPA also needs to take an active role in providing comparative
analyses of data from facilities within particular injuries, to
determine ``best in class'' practices as they currently exist.
Similarly, EPA should provide analyses of uses of specific chemical
across industries for some of the most hazardous substances. From the
time the Agency receives the first 112(r) data, it should be creating
guidance documents for locally impacted citizens and the general public
on what the date mean and do not mean, as well as lists and
explanations of supporting documentation that facilities should have on
hand. As more years of data become available, the Agency can also
publicize success stories of facilities that have significantly reduced
their vulnerability zones.
To my knowledge, the review of Worst Case Scenario data by the FBI
is the first time the FBI has reviewed chemical accident data reported
by industrial facilities to determine the potential threat that onsite
use of toxic chemicals pose to local communities.
This is true despite the fact that more than 10 years of chemical
accident data have already been widely available. In my opinion, the
most significant finding made by the FBI during its review of Worst
Case Scenario data was that use of toxic chemicals at facilities poses
an inherent risk to workers, neighboring properties, and surrounding
communities. The FBI additionally found that making the public aware of
chemical use risks over the Internet would amplify this inherent, pre-
existing risk. In light of these findings, it is important to emphasize
that the risks emanate from the toxic chemical use at facilities, not
public awareness of those risks.
As I stated earlier, one of the benefits of public access of
information about chemical use has been risk reduction. However,
despite increasing public awareness and reducing risks, accidents still
occur. Perhaps an example will help illustrate this point. Workers and
neighbors of the Tosco refinery in Lehigh County, Pennsylvania
experienced 13 serious chemical use accidents in the past 10 years. The
frequency of accidents at the Tosco refinery demonstrates that it is
chemical use that poses the risk, not public awareness of the risk. The
interest of the environmental community is risk reduction. We believe
that FBI can play a tremendous role in furthering society's goal of
risk reduction. A comprehensive review by the FBI of security measures
at facilitates using or producing large volumes of toxic chemicals
would be a good start to reducing risks to citizens.
Further reviews could include risks generated by transporting
chemicals to and from such facilities. The chemical industry has begun
presenting Worst Case Scenario data for individual facilities to local
citizens in Louisiana and Texas. Companies should go further and
produce reports on their Worst Case Scenario data for all the
facilities they own, enabling the public to see that they operate
uniformly with regard to risk minimization. These reports should also
publicize plans and goals for risk reduction, if they exist. The
Chemical Manufacturer's Association's ``Responsible Care'' initiative
is an example of ongoing efforts that could be augmented to explicitly
address risk reduction in the context of Worst Case Scenario data.
Finally, the chemical industry, the EPA, and the intelligence community
should collaborate on a voluntary initiative to reduce risks with
reasonable targets and dates. Although reducing hazards by using less
toxic chemicals would be the most desirable way to accomplish risk
reduction, a voluntary initiative could explore other common-sense risk
reduction measures as well. Where reduction in use is impractical, such
common-sense measures could include safer transportation, storage and
handling of toxic chemicals. The Worst Case Scenario data provide an
ideal vehicle for measuring progress for risk reduction efforts. It is
important to emphasize that all of the stakeholders in this process
have one common interest: risk reduction.
Whether you are the owner of a chemical plant, a worker, a
neighbor, or a host community, everyone wants fewer accidents. I firmly
believe that accident reduction and prevention was Congress' true
intent in passing 112(r). Public access to 112(r) data will greatly
enhance the likelihood that fewer accidents will occur. The question
before the committee today is how we can attain risk reduction while
also providing public access to this important information. As I stated
previously, EPA, the intelligence community, and the chemical industry
all have vital roles to play in informing the public about risks and
reducing those risks. Denying, or severely limiting, public access to
the Worst Case Scenario 112(r) data does not relieve EPA, the
intelligence community, or the chemical industry of their shared
obligation to reduce risks.
Thank you again for the opportunity to address this committee. I
would be happy to answer any questions the committee may have.
__________
Statement of Ben Laganga, Union County, NJ Emergency Management
Coordinator
Good morning and thank you for this distinguished opportunity. My
name is Ben Laganga and I am the Emergency Management Coordinator for
Union County, New Jersey.
Union County is an important county in New Jersey; it is a highly
industrialized 102 square miles with a population of approximately
494,000. Within the county borders lies Newark International Airport,
the New Jersey Turnpike and the Garden State Parkway, as well as
several other? highly traveled thorofares. We are also home to several
petrochemical and pharmaceutical facilities who are required to file
risk management plans in 1999.
As a representative of the county and chairman of the Local
Emergency Planning Committee (LEPC), I am pleased that you are hearing
testimony on this highly controversial issue today.
From the onset of this rule's development, it has been my belief
that the availability of worst case and more likely case scenario
information on the Internet could lead to an increase in terroristic
acts in our State and throughout the country.
In New Jersey today, through Right To Know and the NJ Toxic
Catastrophe Prevention Act, all companies that use hazardous materials
on their site, must provide that information to their LEPC and the New
Jersey Department of Environmental Protection.
The information is available to the public, however it must be
requested, and is not available through the Internet. In my opinion
that is a better way to monitor those individuals that are requesting
the information. If the information is available on the Internet, there
is no possible way to know who is accessing that information, and quite
frankly, how they are using it.
There is also another side to this issue, the misunderstanding and
the misinterpretation of this information. Without proper explanation,
the general public could misinterpret the information they are
accessing and it could cause undue alarm amongst thie public at large.
In Union County, we don't want to see companies go out of business,
however we do want to maintain the lines of communication between these
facilities and our emergency response team.
I hope you recognize that the use of this information is valuable
to the emergency responders, however if it is put in the wrong hands,
it could cause more harm that good.
I know the regulatory intent for the development of Risk Management
Plans was to put valuable information into the hands of the public--not
to jeopardize public safety by placing this information in an
accessible format where it can be used by those looking to cause harm.
However, I am concerned that is exactly where this valuable information
will end up.
Thank you again for this opportunity, and I would be happy to
answer any questions you may have.
__________
National Marine Manufacturers Association,
Washington, DC, March 4, 1999.
The Honorable James Inhofe, Chairman,
Subcommittee on Clean Air, Wetlands, Private Property and Nuclear
Safety,
United States Senate,
Washington, DC 20510.
Dear Chairman Inhofe: On behalf of the National Marine
Manufacturers Association (NMMA), I would like to register the marine
industry's opposition to the EPA's Risk Management Program Rules as it
pertains to the regulation of propane gas. NMMA is the national trade
association representing more than 1400 manufacturers of recreational
boats, marine engines, boat trailers, and associated equipment in a $17
billion per annum industry. Our members manufacture over 80 percent of
these products in the United States. I respectfully request that you
enter this letter into the record for the March 16, 1999, hearing on
the EPA Risk Management Program.
EPA's Risk Management Program (RMP) is authorized under section
112(r) of the Clean Air Act Amendments of 1990. While Congress intended
to reduce the risk associated with the accidental release of toxic
chemicals, the EPA chose to expand the program to include flammables
such as propane, a non-toxic Mel. The RMP rules require propane
consumers with more than 2,381 gallons storage to complete costly risk-
management plans with EPA, including approximately 10 percent of our
members. The minimal risk of holding this quantity of Mel is far
exceeded by the complicated and expensive compliance scheme. The
businesses that use propane to heat their plants are small in size and
lack both the economic and staff resources to comply with this onerous
regulation.
NMMA applauds the leadership you have shown by hosting a hearing on
this important issue. The recreational marine industry strongly urges
Congress to preserve the original intent of the RMP rules and overturn
this regulation.
Sincerely,
Betsy L. Oilman, Director, Federal Government Relations,
National Marine Manufacturers Association.
__________
National Restaurant Association,
Washington, DC, March 15, 1999.
The Honorable Jim Inhofe, Chairman,
5Subcommittee on Clean Air, Wetlands, Private Property and Nuclear
Safety,
Senate Environment and Public Works Committee
Washington, DC 20510.
Dear Mr. Chairman: On behalf of the National Restaurant Association
and the 810,000 restaurants nationwide, we are concerned about the
EPA's risk management regulations that include propane gas. This clean
burning gas is used for cooking and heating by a number of restaurants
in outlying areas that are not served by community gas lines.
Implementation of these rules would mean that these restaurant
operations would be faced with making a choice of abandoning a safe and
useful onsite Mel source, and switching to electricity, with the
concomitant costs of replacing equipment and upgrading electrical
service, or hiring a consultant to prepare exhaustive studies, prepare
a detailed hazard review, operating procedures, compliance audits, and
employee training procedures. At a projected cost of unknown thousands
of dollars to change to an alternate energy source versus a minimum
$1,000 per affected site to comply with the regulatory requirements,
the impact will be significant.
Operators of some affected restaurants, whether single unit owner
facilities or members of a multi-unit operation, may find that these
unexpected additional costs force the decision to delay or abandon
plans for enlargement or expansion of the business, or in the worst
chase, to cease operation. This would cause economic stress in
localities often dependent upon the local restaurant for employment.
The storage of propane gas is already well-regulated, based on
National Fire Protection Association (NFPA) standard 58, in all 50
States. In addition, it is also subject to the Emergency Planning and
Community Right-To-Know Act of 1986 (EPCRA), OSHA workplace rules and
DOT hazardous materials regulations.
Given the intent of these rules in protecting against the release
of harmful chemicals, and given the safety of propane and its record as
a useful and economical fuel in the restaurant industry, we ask that
NFPA 58 be adopted as a compliance alternative to EPA's rules.
We appreciate the opportunity to share our views. Please feel free
to contact me at (202) 331-5911 if you have any questions or need
additional information.
Sincerely,
Christina M. Howard, Senior Legislative Representative.