Senate Votes to Restrict Access to ‘Worst-case Scenario’ Information

Published August 1, 1999

In a setback for EPA and anti-industry environmental groups, the Senate has postponed for one year the electronic release of sensitive data relating to worst-case accident scenarios at thousands of chemical facilities throughout the nation.

The vote is the latest in a bitter contest that has pitted EPA against the FBI and other elements of the national security community. At issue is whether the public, possibly including criminal elements, should be given unimpeded access to information showing the potential effect of chemical accidents in local communities.

Until only a few days before the June 23 vote was taken, the Clinton-Gore administration favored allowing individuals to file a limited number of requests for information about specific sites. But legislation (S. 880) sponsored by Senator James Inhofe (R-Oklahoma) quickly gained such widespread bipartisan support that the administration elected to back off and support the bill. Concerns that the sensitive information in question could fall into the hands of terrorists proved overwhelming, and the Senate adopted S. 880 by unanimous consent.

“This new legislation strikes a delicate balance between the public’s right to know about accident information and preventing that information from falling into the hands of terrorists,” Inhofe said. “The data collected by the federal government can now not be used by criminals to commit acts of terrorism, such as what the people of Oklahoma City experienced four years ago.”

Inhofe’s bill addresses the security concerns regarding access to the data by:

  • Suspending for one year the dissemination of worst-case scenario data to all groups except state and local emergency personnel, including fire fighters.
  • Requiring the administration to conduct a public notice and comment rule-making within one year in order to design a public access program for the information that balances security concerns raised by the FBI and the need to make data available to the public.
  • Providing that state and local officials who violate the law and disseminate the information during the one-year postponement will be subject to fines, although not jail sentences.
  • Mandating that the General Accounting Office (GAO) conduct a three-year study examining the threat of criminal activity at large chemical facilities. An interim report is to be released by the GAO within nine months.

Inhofe’s legislation also removes propane and other flammable fuels from EPA’s list of “toxic” and “hazardous” substances that must be reported under the Clean Air Act (CAA). At a March hearing before Inhofe’s subcommittee on clean air, wetlands, private property, and nuclear safety, senators were persuaded by evidence showing that the inclusion of propane and other merely flammable chemicals on the list would be prohibitively costly to farmers and small businesses.

Long Shadows of the CAA

Like many other environmental conflicts in recent years, the dispute over worst-case scenario information is rooted in the Clean Air Act (CAA) amendments of 1990. Under its “Risk Management Plan” (RMP), the CAA requires some 66,000 U.S. industrial plants to provide, and EPA to make publicly available, worst-case scenario data. The data companies are required to turn over to EPA must include the potential impacts of a catastrophic accidental chemical release.

Originally, EPA had proposed putting the data on the Internet. This alarmed the FBI, CIA, Congressional intelligence committees, the International Association of Fire Chiefs, and others who feared EPA would be creating a “road map for terrorists.” Only after intense pressure by Congress and various security agencies did EPA last year drop its plans to post the worst-case scenario data on the Internet.

Even then, EPA did not say at the time what it would do with the information. Under the CAA, the agency was supposed to release the information on June 22, giving rise to fears that environmental groups would acquire the data through the Freedom of Information Act (FOIA), and then post it on their own Web sites. The Senate’s June 23 action would prevent that.

The issue now moves to the House, where security concerns, particularly in the aftermath of a war, are every bit as paramount as in the Senate. Congressional sources expect the House to approve its version of the Inhofe bill later this year.

Bonner R. Cohen is a senior fellow at the Lexington Institute.