The Role of the Public’s Right to Know

in Increasing Public Safety after September 11th

 

 

 

 

Testimony of

 

Jeremiah D. Baumann

Environmental Health Advocate

 

U.S. Public Interest Research Group (PIRG)

National Association of State PIRGs

 

Before the House of Representatives

Committee on Transportation and Infrastructure

Subcommittee on Water Resources and the Environment

 

November 8, 2001

The Role of the Public’s Right to Know in

Increasing Public Safety after September 11^th

 

Testimony of Jeremiah Baumann, U.S. Public Interest Research Group

 

Thank you, Mr. Chairman and members of the Subcommittee on Water Resources and the Environment, for the opportunity to testify before you today on the important topic of the public’s right to know and the role of right-to-know policies in protecting public safety after the September 11^th tragedies. My name is Jeremiah Baumann and I am the Environmental Health Advocate for the U.S. Public Interest Research Group (PIRG). U.S. PIRG is the federal advocacy office of the state PIRGs, a network of state-based public interest advocacy organizations with a 30-year history of advocacy for environmental and public health protection, consumer protection, and good government reform. The State PIRGs have a long record of advocacy for measures that protect against toxic and other hazards in communities, including right-to-know measures.

 

The shocking events of September 11^th have, tragically, focused attention on public safety hazards that exist in communities across our country and on the need for government action to protect the public from terrorist activity that could take advantage of these hazards.  The magnitude of the hazards that are addressed by current right-to-know programs and which could be taken advantage of in a terrorist attack, including nuclear facilities and chemical facilities, should not be underestimated. The potential for a catastrophic chemical release, spill, or explosion in American communities is one of the most widespread of such hazards. According to a 1998 report by U.S. PIRG, 1 in 6 Americans lives within a vulnerable zone — the area in which there could be serious injury or death in the event of a chemical accident — created by a nearby industrial facility.[1] In deed, such incidents occur as a result of the routine industrial use of toxic chemicals approximately 25,000 times every year.[2]  

 

Unfortunately, some industry interests that have consistently opposed public disclosure of the dangers they pose to neighboring communities have attempted to frame the discussion of how to address this problem by pitting the public’s right to know against the need for national security. The right to know should not be considered a threat to national security or public safety. The right to know is a proven tool for increasing public safety. A more productive way to approach this problem is to consider the appropriate what combination of right-to-know measures and mandated reductions in real hazards in our communities will best protect public safety.

 

My testimony will cover three areas: the need for common-sense action by government and industry to actually reduce hazards in communities, the public benefit of the right to know and the likelihood that restricting the public’s right to know will hurt safety rather than help it; and the need for consistent criteria to govern agency decisions about altering public access to government information.

 

I. Government agencies should be taking steps to protect the public from hazards, including vulnerabilities to terrorist attacks, not hiding those hazards from the public.

Simply restricting public information, and thereby public discourse, is worse than failing to address the problem. It’s ignoring the problem. When federal authorities had reason to believe that crop dusters could become tools of terrorists, their first preventive measure was not to hide from the public the locations of small airfields or other facilities that could house crop dusters. Instead, they put a moratorium on the flying of crop dusters to limit the possibility of any crop duster’s use in an act of terrorism.

 

The threat of chemical accidents, as I mentioned above, is significant and widespread. According to recent research by a chemical process safety center at Texas A&M, in 1998 there were tens of thousands of chemical accidents that killed 150 Americans and injured 5,000.[3] For chemical storage in communities, hazard reduction means requiring that companies use fewer or safer chemicals to reduce or eliminate the risk of a catastrophic chemical release – whether from terrorist attacks or the spills and releases that happen every day. Making technological changes to safer materials or processes can reduce or eliminate the possibility of a chemical release, and for many chemicals and processes, there readily available and safer alternatives. In New Jersey, the number of chemical plants using hazardous amounts of chlorine gas, notorious for its involvement in accidental releases that threaten neighboring communities, has dropped from 575 companies in 1988 to 22 in September of this year.[4] Here in Washington, DC, the city’s Blue Plains Sewage Treatment Plant is switching from volatile chlorine gas to less volatile sodium hypochlorite (bleach), which has far less potential for airborne off-site impact.[5]

 

Government should require facilities to abide by the Inherent Safety Hierarchy in order to reduce or eliminate hazards in communities. This means, in priority order:

 

1. Facilities should identify and use inherently safer technologies to eliminate the possibility of reactive chemical and other hazards, wherever feasible;

 

2. For hazards that cannot be eliminated, use add-on control options and management systems that reduce the likelihood and potential severity of incidents, wherever feasible;

 

3. Where hazards cannot be eliminated or controlled, use emergency planning approaches to mitigate the consequences of incidents, wherever feasible; and,

 

4. Where potential off-site consequences remain despite precautions, use buffer zone guidelines to keep hazards away from vulnerable populations.

 

While this prevention-based hierarchy is designed to reduce or eliminate the threat of chemical accidents specifically, it can and should be modified to reduce or eliminate the vulnerability of other infrastructure systems to attack. Energy should be generated from energy sources that pose little or no threat to public health and safety, but also have little or no vulnerability to attack by terrorists. Instead of subsidizing the nuclear industry, the government should be encourage energy systems like renewable distributed generation, which doesn’t rely on long-distance transmission from centralized plants that could affect large areas of the country if power were disrupted.

 

II. Choosing restrictions on the public’s right to know about hazards in communities, rather than actually reducing those hazards, can hurt safety rather than help it. By restricting our right to know, even through a well-intentioned effort to protect safety, government is abandoning its duty to warn the public if a community is at risk.

There are three primary ways that restricting public access to right-to-know information can decrease public safety. First, removing valuable right-to-know programs means the threats addressed by right-to-know programs are left unaddressed. I have already mentioned the threat of chemical accidents. This threat is a constant and significant threat to public safety.

 

The Risk Management Program, created by the Clean Air Act amendments of 1990, publicly discloses, by Congressional mandate, the chemical accident risks that face communities. The off-site consequence analysis, taken off the Internet in 1999 and now only available through severely limited public access mechanisms, should be a community’s best source of information about risks to be prepared for, and even more importantly, risks that could and should be reduced. But public access to this portion of the Risk Management Plan had already been reduced to virtual elimination before September 11^th. The portions removed by EPA after September 11^th revealed accident histories and emergency response plans. Removing this information from public view does nothing to reduce the hazard – there are still nearly 5,000 facilities in the U.S. storing greater quantities of hazardous chemicals than were released in the 1984 Bhopal, India, chemical release that spurred the nation’s first right-to-know programs.[6]

 

Restricting public access does not simply fail to address the hazard, however. Restricting public access makes the community less safe, because the ability of individuals and communities to participate in safety decisions ranging from chemical management and hazard reduction to site security and emergency response planning, has been reduced and potentially eliminated.

 

Second, in the wake of September 11^th, restricting the public’s right to know about hazards restricts the public’s ability to participate in preventing a terrorist attack or preparing appropriate response plans. September 11^th showed us that the threat of criminally-induced chemical releases or other safety threats is greater than previously anticipated. Removing public access to information about these threats is a false protection against terrorist attacks, and even worse, limiting right-to-know hinders communities’ ability to protect against terrorist attacks. The importance of community involvement in preventing catastrophic events and preparing emergency response plans is as important for a terrorist attack as for the tens of thousands of accidents that result from routine chemical use.

 

Furthermore, restricting the public’s right to know about a potential chemical incident constitutes abandonment of the government’s duty to warn the public about safety threats. Even before officials discovered the first case of anthrax, there was wide public discussion in the media of the potential threat of anthrax, how it could be spread, and what the symptoms could be. When the first cases were discovered, this public discussion escalated. It would have been unconscionable for the government, in response to evidence of a biological attack, to restrict public disclosure of the consequences of such an attack – but that is essentially what has been proposed for a chemical attack.

 

Third, restricting right-to-know programs decreases safety in the long term because right-to-know programs have been shown to reduce risk. Right-to-know programs empower individuals and communities to work for measures that will reduce risk, whether that is by working directly with a company locally or by advocating for policy changes to require risk reductions. As importantly, right-to-know programs provide a public incentive for relevant parties to be accountable to public values. The Toxics Release Inventory, established under the 1986 Emergency Planning and Community Right-to-Know Act, has been credited with at least partial contribution to a nearly-50% reduction in toxic chemical releases. More robust right-to-know programs have seen proportionally greater impacts. In Massachusetts, where companies report not just chemical releases but also chemical use, in products or in the workplace, chemical use is down approximately 40% and chemical releases are down nearly 90%. Restricting public access to information restricts opportunities for these kinds of protections of public safety and health and removes accountability for government and corporate actors.

 

III. For government information that is legitimately sensitive information, the government needs consistent criteria to prevent false national security claims from private or government entities that wish to keep avoid public scrutiny. These should first take into account existing provisions of law, such as the current national security exemptions from the Freedom of Information Act.

While I am not aware of government right-to-know programs containing information whose disclosure is a national security threat, that does not mean there isn’t any government information that should not be widely publicly available. Various right-to-know programs have already been adapted to protect information like that pertaining to personal privacy or information that could reveal trade secrets.

 

In order to consider limiting public access to government information for national security reasons, government decision-makers should first take into account existing laws, regulations, or other measures that protect national security information. Second, government decision-makers should abide by consistent criteria that strictly prevents inappropriate restrictions on public access. Under the Toxics Release Inventory, criteria for determining what information is a legitimate trade secret have been used to prevent companies from inappropriately hiding information from public scrutiny. By contrast, a lack of appropriate trade secret criteria under the Toxic Substances Control Act has resulted in blanket removal of important health information from the public domain.

 

Criteria for determining information that can be withheld should take into account at least the following factors:

 

First, the benefit of the information’s public dissemination to increasing public safety must be weighed seriously. I have outlined these benefits, primarily as they pertain to chemical accident risk information. Because of the critical role that information plays in ensuring government and corporate accountability, it must be assumed that public disclosure always has a benefit compared to government secrecy. Consideration of this factor should include participation by organizations and individuals with experience using the information in question to protect public health and safety.

 

Second, the type of information must be considered. Because the public has a right to know about threats to public safety or health, the potential consequences of a chemical release or nuclear sabotage are a type of information that should not be kept from the public by a responsible or responsive government. This type of information fulfills the government’s duty to warn. On the other hand, detailed technical information that would provide a potential criminal with tools for carrying out an act of terrorism which they could otherwise not access – information like detailed site maps of where chemicals are stored or where security guards are posted – could be a type of information for which a discussion about limiting public access may be justified. 

 

Third, the availability of information or uniqueness of the government information as a source must be considered. Some of the information for which it has been suggested that public access be restricted is available, or readily discoverable, from a range of other sources. For examples, the locations of chemical plants or of drinking water sources could be readily discovered by spending a small amount of time in a community, looking in a phonebook, or even driving up the freeway. We know from the tragedies on September 11^th that the terrorists targeting America spent years researching and planning. Restricting right-to-know programs will do little to prevent this kind of deliberate and malicious activity.

 

In conclusion, I urge you to remember that our first priority has to be protecting public safety. The public has a right to know about safety threats, whether from industrial accident or criminal intent, and a right to participate in reducing those threats to increase public safety. Congress should be working to protect public safety by reducing hazards in communities. At no time has that responsibility been more urgent.

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