Statement of Ivan Fong Deputy Associate Attorney General
Before the Subcommittee on Health and Environment
Committee on Commerce
United States House of Representatives
H.R. 1790 - The Chemical Safety Information and Site Security
Act of 1999

Presented on
May 19, 1999

Good afternoon, Mr. Chairman and Members of the Subcommittee. My name is Ivan Fong. I am a Deputy Associate Attorney General at the Department of Justice. The Office of the Associate Attorney General is responsible, among other things, for management and oversight of the Department's Office of Information and Privacy, as well as its civil litigating components, which include the Antitrust, Civil, Civil Rights, Environment and Natural Resources, and Tax Divisions. In our office, I have particular responsibility for civil litigation, environmental, and technology policy issues. I am pleased to have this opportunity to discuss H.R. 1790, the "Chemical Safety Information and Site Security Act of 1999."

Let me say at the outset that this proposal reflects, at bottom, a careful weighing and balancing of two very important public interests. First, as you are well aware, statutes such as the Clean Air Act, 42 U.S.C. 7401-7642, and the Freedom of Information Act ("FOIA"), 5 U.S.C. 552, require certain information to be made available to the public. For chemical facility risk management information submitted pursuant to EPA's Clean Air Act regulations (such as off-site consequence analysis ("OCA") data), these disclosure requirements promote public safety, not only by empowering citizens so that they can work with industry and others to minimize the risk of accidental release of toxic or flammable chemicals, but also by ensuring that federal, state, and local officials can work with their communities to prepare for and, if necessary, respond to such accidents.

By the same token, however, the widespread dissemination of this type of information - particularly if a nationwide database of such information were made available in electronic form - could increase the risk of intentional release as a result of terrorist attack. Indeed, the Federal Bureau of Investigation, the National Security Council, and other security and law enforcement components of the federal government have determined that broad electronic dissemination of OCA data would raise the risk of terrorists using such information to target particular chemical facilities for attack. The OCA data would provide them with information on locations around the country where the greatest damage to human health and the environment would occur if a facility were sabotaged.

Balancing our commitment to reduce the risk of accidental release through public disclosure, on the one hand, and the need to minimize the risk of terrorist attack arising from broad electronic dissemination of such information, on the other, is not easy or obvious. We believe, however, that our proposed legislation strikes such an appropriate balance. It is a reasonable and prudent proposal, and we accordingly urge its prompt enactment.

Because of the law enforcement and security concerns that have been raised, our proposal exempts OCA data from FOIA requirements and prohibits federal officials and employees from providing this information to the public in electronic form. The proposal, however, permits EPA to make OCA data available in paper form, and the Administrator is to determine the conditions for such dissemination in guidance. Our proposal also requires EPA to make risk management plans ("RMP's") available for public inspection, but not copying, in paper or electronic form, at locations such as federal depository libraries located around the country. To impede use of such information by terrorists, the OCA data may not be provided in an electronic format that would allow ranking of facilities for damage potential.

In addition, our proposal allows OCA data to be provided electronically to state and local officials for official use only. If such officials request this information in paper form, it will be provided only for facilities located in their State. To further protect the information, the legislation allows additional dissemination of the OCA data by state and local officials only to the extent federal officials and employees are permitted to do so.

Finally, we share the view of many in Congress that site security measures are as important as information security measures in reducing terrorist risks. The legislation therefore authorizes the Attorney General to review industry security practices and the effectiveness of the Act to determine the need, if any, for improved security practices for the types of facilities covered by the RMP'S requirements.

We acknowledge the importance and complexity of this issue on a variety of different levels, and we are prepared to work closely with Members of the Subcommittee and other interested parties to enact balanced and effective legislation on this issue in a timely fashion. We believe our proposal strikes an appropriate balance, and we look forward to working with you to ensure its enactment.