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Many Hurdles for the Public to Obtain Risk Information

According to a recent article in the Austin American Statesman, Texans who want to learn more about the risks posed by chemical plants in their communities receive their instructions: no photocopying or cellphone pictures of the provided documents, which sketch out the worst-case scenarios at individual facilities and the safety measures company officials have taken. A sign warns those who enter the Environmental Protection Agency’s federal reading room, “You are being monitored.” The sign is superfluous: an EPA staffer remains in the room for the duration to ensure the strict rules are followed.

Federal law requires companies that keep dangerous chemicals, such as the West Fertilizer facility that exploded last month, killing 14 people, to produce a risk management plan so local residents can know what threats sit in their neighborhoods. When legislators convened last week to hold the first state hearing into the deadly explosion of the West Fertilizer Co. plant, foremost in their minds, they said, was helping Texans learn more about potentially dangerous facilities in their communities. “The intent of this committee is to try to shed light on where these facilities are located and what kind of chemicals we’re talking about,” said Rep. Joseph Pickett, chairman of the House Homeland Security and Public Safety committee. It turns out that it’s not as easy as it sounds.

The West disaster has exposed a system of information sharing that would test the commitment of even the most engaged citizens. Rural Texans have to drive hours to read the risk plans; agencies that are encouraged to collect information sometimes choose not to make it public; and information gathered and reported by the companies themselves may be either incomplete or not useful. The difficulty in accessing even the most basic information about the chemical facilities demonstrates the conflict between informing Americans about the risks in their backyards and the need to keep such information from would-be terrorists and criminals. Those security concerns appear to be winning the tug of war.

As a result, securing the facilities against terrorists has become as high a priority as informing neighbors of the chemical threats in their midst. Compounding the problem is an uneven system of voluntary, decentralized local emergency protection committees that often have scant information about the facilities in their areas.

In theory, the best place to learn what would happen during a worst-case scenario at a local chemical facility is in the risk management plans, maintained by the Environmental Protection Agency and produced specifically for the purpose of providing the public with information.

But getting to those plans requires dedication, time and a working knowledge of federal bureaucracy. The plans are available only at the federal reading rooms (the EPA maintains one in Dallas, and the Department of Justice has rooms in Houston, Beaumont and San Antonio), and residents can view them in person only after calling ahead to make an appointment. Once the appointment is made, visitors must provide a driver’s license to the security guard before being escorted into the locked reading room to receive instructions: in addition to the no-photo rule, notes must be taken on a pad of paper with a No. 2 pencil.

The EPA’s original thinking, according to a summary in the federal register, was that “regulatory requirements by themselves will not guarantee safety, and that providing the public with information about hazards in a community can and should lead government officials and the public to work with industry to prevent accidents.” But the 1995 Oklahoma City bombing and the bombing in 1998 of the World Trade Center, both using fertilizer, swung the pendulum from transparency toward security. The FBI worried that the worst-case scenario portions of the risk management plan would end up on the Internet, allowing would-be evil-doers to select U.S. facilities to sow mayhem. In August 1999, President Bill Clinton signed the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act. It instructed the EPA and the Department of Justice to figure out a way to provide the public with access to the risk management plans in ways that would minimize the risk to national security. Federal officials eventually set up more than 70 reading rooms across the United States, where members of the public would have access – but only during normal business hours.

Critics say the security concerns have tilted the balance too far toward secrecy. In his firm’s air pollution work, for instance, Austin environmental attorney David Frederick said he has had trouble getting information about local facilities to make an informed decision about whether neighbors might be exposed to air contaminants. “We’ve been told this is a homeland security issue. (State officials) say, ‘This is dangerous. If evil people get it, they could make trouble.’ “This was information once freely available,” he added. “I’m suspicious about the security risk that, for all practical matters, makes the information inaccessible.”

If you or someone you know have been seriously injured as a result of the fertilizer plant explosion in Waco, contact the attorneys at Abraham, Watkins, Nichols, Agosto, Aziz & Stogner by calling 713-396-3964 or 800-594-4884.

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