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20540

HAZARDOUS CHEMICAL FACILITIES AND COMMUNITY

                                    

RIGHT-TO-KNOW: BACKGROUND AND CURRENT ISSUES
 Q  5 ‘ ' F  
 3:;   ‘ "iii?
V:r'i~Icr:-«s<if~i~im« r A in 
James Aidala Universit ofMiS5ou|-i .co|umbia
‘°‘“a”“   I i\i\\\\\\\\||| ll|\||\\\||l\|H|\\||\i||\
Environment and Natural Resources Policy Division 
December 5, 1985 010403941036

Government Publications
Unit

Mg 04 i994

Washington University Libraries
St. Louis, ‘M0~ 63130‘

CRS-ii

ABSTRACT

Since the accident in Bhopal, India, in December 1984, Congress has
shown great interest in the issues of releases of hazardous chemicals
from production facilties, and communities’ "right-to-know" of the
chemicals used, produced, or stored at local facilities. This paper
provides background and analysis of the current debate surrounding these‘
issues. Topics covered include: disclosure of information about
chemicals, availability and utility of existing data about hazardous
chemicals, emergency planning at production facilities, and current

re requirements about chemical emissions

   

proposals for increasing disc_

II.
III.

IV.

VI.

VII.

VIII.

IX.

XI.

XII.

CRS-iii

CONTENTS

INTRODUCTION.

INFORMATION ABOUT CHEMICAL HAZARDS.

EMISSIONS INVENTORY .2

CHEMICALS INCLUDED UNDER DISCLOSURE REQUIREMENTS.
A. EPA's "Acute Hazards" List. . . . . . . .
B. European Economic Community (EEC) List.

TRADE SECRETS

IMPACT ON SMALL BUSINESS.

DUPLIGATION OF EXISTING REPORTING REQUIREMENTS.

DISSEMINATION AND UPKEEP OF SUBMITTED INFORMATION .

FEDERAL PREEMPTION OF STATE LAWS.

1.

4

EMERGENCY PLANNING. . . . . . .
A. Chemical Industry Initiatives . . . . . .
B. EPA Guidance to State and Local Officials

LEGISLATION .
A. H.R. 2817
B. S. 51

C. Prospects in Conference Between the House and Senate.

FINAL COMMENTS.

13
I5
17
19
2O
22
24
24

26
27

29

30

31

HAZARDOUS CHEMICAL FACILITIES AND COMMUNITY
RIGHT-TO-KNOW: BACKGROUND AND CURRENT ISSUES

I. INTRODUCTIONI

Since the December 1984 accident in Bhopal, India, where over 2,000
people were killed and approximately 200,000 injured, public concern
about what hazardous materials are manufactured or handled in local areas
has increased. The Environmental Protection Agency (EPA) estimates that‘
there are approximately 12,000 U.S. chemical manufacturing sites, many of
these in urban areas. Thousands of additional facilities store or
otherwise use chemical products. At issue is the public "right-to-know"
about the presence of these materials and their potential health and

safety effects. It is argued that this information could be used by

Tlocal safety officials to better prepare for and respond to chemical

emergencies, and more generally, to allow greater public oversight of the
planning and operation of hazardous chemical facilities.

Also at issue is the extent of emergency planning which already
exists or should be required for hazardous chemical facilities. At
Bhopal, for example, some of the injuries might have been prevented or

mitigated if certain simple steps had been taken (such as staying

1 Material presented in this paper is an update of an earlier CRS
Report: U.S. Library of Congress. Congressional Research Service.
After Bhopal: Preventing and Responding to Chemical Emergencies.
Report No. 85-835 ENR, by James Aidala, James McCarthy, Paul Rothberg,
David Cheney, and Cosmo DiMaggio, July 9, 1985. Washington, 1985.

Not all the issues covered in the earlier report are presented here.

CRS-2

indoors, or putting a wet cloth over the face). It is uncertain whether
or not all facilities which handle hazardous chemicals have an adequate
emergency plan to prevent widespread injury; some facilities are likely
to have little or no formal plan at all.

Throughout 1985, the issues raised by the accident at Bhopal have
been the subject of much Congressional concern} In particular, as part
of the reauthorization of the Comprehensive Emergency Response and
Compensation Act (CERCLA, known as "Superfund"), members of both the
House and Senate have proposed legislation to address the issues of
right-to-know and emergency planning, among others. These proposals vary
in many ways, including scope, rationale, and requirements.

This paper is intended to provide background information about the
issues which have been raised as part of the Superfund right-to-know
debate. This debate includes issues which are not directly related to
information disclosure, for example, whether or not there should be
Federal requirements for emergency planning at chemical facilities. The
list of subjects covered includes which chemicals might be considered as
hazardous, what information should be released about chemical production
and use, costs and impacts of proposed requirements, availability and
utility of existing data, current emergency planning at chemical
facilities, and preemption of existing State right-to-know requirements.
The complete list of subjects can also be found in the Table of Contents.
The last section of the paper briefly describes the major legislative
proposals in the House and Senate for reauthorizing Superfund which

pertain to right-to-know requirements.

CRS-3
II. INFORMATION ABOUT CHEMICAL HAZARDS

Large amounts of information already exists for various chemicals.
Most of it describes a chemical's physical or chemical properties, such
as molecular structure or boiling point. Much less information exists
about the toxicity of chemicals; often simple tests for acute hazards
(such as lethal concentrations) have been conducted while the potential
chronic hazards (such as the potential to cause cancer) are unknown. At
issue is whether or not information about a chemical's production, use
and hazardous properties should be publicly disclosed.

In a right-to know program, various kinds of information might be
made available. If emergency response by fire officials is the goal,
then information about the volume of chemicals stored on site, their
location, and recommended emergency handling procedures would be.more
important than precise chemical formulations. Alternatively, if
increased public awareness and oversight about chemicals produced,
stored, and used in local areas is the goal, then more extensive
information about production volumes and precise chemical composition
would be necessary.

Most proposals begin with seeking wider circulation of information
already easily available, or expanding on other regulatory efforts
underway in occupational health. The Occupational Safety and Health
Administration (OSHA) issued a Hazard Communication Rule in November l983
(48FR53280) which requires extensive use of Material Safety Data Sheets
(MSDS) to inform workers in certain industries about the nature and side
effects of hazardous chemicals found in the workplace. Such safety

sheets have been in use for some time, but their information content will

CRS-4

become more uniform and codified as a result of the OSHA rule. In
addition, the safety sheets will include information about chronic
health hazards, if known. The OSHA proposal covers approximately 2300
workplace chemicals.

Legislative proposals before Congress vary in how much additional
information should be provided to the public along with the MSDS. Some
would circulate the MSDS to a wider audience with little change from the
OSHA disclosure requirements. Others would require that in addition to
this basic safety data, inventory data about the amount of materials
stored or used at a particular site be disclosed to safety officials
and/or the general public. Also at issue is the question of trade
secrets; that is, withholding sensitive data which is claimed to have
significant commercial value (discussed separately, below). .Lastly, many
righteto-know proponents insist that an inventory of emissions data is an

essential part of any comprehensive plan.

III. EMISSIONS INVENTORY

Whether or not to require emissions data (information about the
amount of chemicals discharged into the air, ground, or water), has
emerged as perhaps the most controversial aspect of many right—to-know
proposals. Proponents of such requirements believe that the information
is necessary for effective oversight by the public and by regulatory
agencies (Federal, State, or local). Critics of the proposals believe
that such reporting requirements would have burdensome compliance costs
and not provide much useful information, or at least not much additional
information beyond that which is already in the hands of regulatory

officials.

CRS-5

The rationale behind such a detailed inventory is to have a complete
accounting of all hazardous chemicals emissions from a chemical facility.
This would be a kind of materials balance approach, which would provide
an estimate of how much of a certain chemical is used in production, how
much is emitted to the air, how much is discharged into a waste stream,
and so on. For example, if 1000 pounds of a certain chemical is brought
to a facility, this materials balance might indicate that 800 pounds were
part of the final product, 100 pounds evaporated into the air, 50 pounds
were discharged into its water effluent, and 50 pounds were disposed of
as chemical waste (total: 1000 pounds).

The States of New Jersey and Maryland have conducted a survey of all
such emissions from certain chemical facilities, known as the New Jersey”
Industrial Survey and the Maryland Toxic Substances Registry,
respectively, for a limited number of chemicals. Many have argued that a
similar survey should be conducted on a national level, and such a
requirement is included in the Superfund reauthorization bill as passed
by the Senate (S. 51). Critics of such plans argue that it imposes
burdensome reporting requirements which would be expensive, if not
impossible to meet. Additionally, critics claim that sufficiently useful
information is already in the hands of government officials through
sources such as pollution permit applications, and the utility of
additional data reporting is unclear. .

State officials in New Jersey and Maryland respond that their
surveys were completed without unreasonable reporting burdens, and have
provided essential information to State regulatory programs.
Furthermore, proponents argue that this information can help document the

kinds and amounts of chemicals local residents are exposed to in areas

CRS-6

near chemical facilities (although no exact exposure estimates at specific
sites would be available). The issue of the regulatory burden involved and
the potential costs of reporting this kind of information will be discussed
in more detail, below. Further information about the New Jersey and Maryland
surveys can be found in another CRS Report: "Chemical Inventories in New

Jersey and Maryland" (December 3, 1985, 85-1102 ENR) by James McCarthy.

IV. CHEMICALS INCLUDED UNDER DISCLOSURE REQUIREMENTS

EPA estimates that there are over 60,000 chemicals produced for
commercial uses in the United States, not including those used as pesticides,
food additives, cosmetics, or drugs. The majority of these compounds are
considered safe by EPA in terms of either chronic or acute effects (although
the data base about the chronic effects of chemicals is considered small).2
Disclosure requirements about chemicals need to first identify which chem-
icals are included. For example, the OSHA Hazard Communication Standard
covers approximately 2300 chemicals for which the MSDS are to be made
available.

Right-to—know proposals usually include a specified list of chemicals,
drawn chiefly from existing lists of hazardous chemicals developed by
regulatory agencies such as OSHA and EPA, other Federal programs such as
the National Toxicology Program, or by private groups such as the American

Conference of Governmental Industrial Hygienists.

2 In February, 1984, the National Academy of Sciences (NAS) released
a report about the amount of toxicity data available for commercial
chemicals (including drugs, pesticides, food additives, and cosmetics)
which concluded that most of these compounds are not well characterized
for potential chronic effects. See: Toxicity Testing: Strategies to
Determine Needs and Priorities. Washington, National Academy Press, 1984.

CRS-7

A distinction can be drawn between those chemicals which present acute
risks to health or safety (such as those which are explosive or cause
immediate blindness; for example, methyl isocyanate), and those which pose
potential chronic effects over a much longer period (such as cancer; for
example, asbestos). Most right-to-know proposals include some combination
of both kinds of hazards.

If the goal is to prevent the kind of accident which occurred in Bhopal,
the list of chemicals which might directly cause such a catastrophe is
relatively short, and includes those which can vaporize or explode easily and
cause severe immediate injury. If other kinds of catastrophic potentials are
included, the list of chemicals grows to include those which might cause
delayed, yet severe, effects, and those with catastrophic potential if
included.as part of a larger chain of events (for example, a fire which

spreads to include areas where chemicals are stored).

A. EPA's "Acute Hazards" List

Since the accident at Bhopal, EPA has been developing criteria to
define a list of chemicals with the potential for serious injury to human
health or the environment. During the spring of 1985, this list initially
included only those which directly presented such potential, and the list
included approximately 80 chemicals. After further review, and taking into
consideration comments made by outside reviewers (including the EPA Science
Advisory Board), the list reportedly grew to approximately 380 chemicals.
The Agency decided to include chemicals which also have catastrophic poten-
tial, though less directly (through delayed effects, potential chain of
event scenarios, etc.) Public release of the list has been delayed several

times, and is reportedly planned for the week of December 9, 1985.

CRS-8

However, the New York Times, in a November 18, 1985 story, claimed
that the list included 403 chemicals. The Times published its list on

November 20 (presented in Table 1). On November 19, the Times published a

list of selected companies which use the highest number of these chemicals
(listed in Table 2). This list is known as the "interim acute hazards
list", since it reportedly represents EPA's preliminary analysis of
chemicals which have the potential for catastrophic potential in case of
an accident.

The term "acute hazards" is somewhat confusing, however. It often
refers to not only those chemicals which might cause severe acute effects
in case of accidental releases, but also those which have catastrophic
potential in light of an "acute," short-term situation (delayed effects from
an acute exposure, or hazards due to potential chain of event scenarios).,
EPA's reported list of 403 chemicals, for example, includes those which
can cause severe injury due to a 30-minute exposure—-whether the injury is
manifested immediately or not. This nomenclature is somewhat confusing, and
many fear that long lists of chemicals described as "acutely hazardous"
could cause unnecessary public alarm.

EPA is stressing that this interim list should not be used as an
exhaustive or definitive list of dangerous chemicals. Rather, it is
being developed as a guide to local government and safety officials (and
the public) for development of emergency planning procedures and general
oversight of facilities which manufacture, use, or store potentially
dangerous chemicals (this EPA guidance*is discussed separately, below).

EPA comments notwithstanding, any list developed by Federal or other

regulatory officials is often taken as a "hit list." Many feel that if a

TABLE 1.

The fish II. eu%d by the
Duvlorvndd Prune!-I Agency.
names £3 srdsturces manufactured.
used and stored in the United States
that the agency says can pose an “im-
mediate threat to life and health" in
the event of an accident at a chemical
facility. The agency has urged mu-
nicipalities to determine which com-
panies handle them and in what quan-
tities so that any excessive risks can
be minimized.

Breakdown into categories was
done by The New York Times, based
on chemical reference manuals and
consultation with experts. who also
supplied the description of toxic ef-
fects. Some chemicals overlap differ-
ent categories; the primary use or
health effect was chosen.

Acids — 5

Reactive, corrosive. Burn skin;

eyes, nasal passages on contact.

Chloroacetic acid
Hydrochloric acid
Hydrogen fluoride (hydrofluoric acid)
_ ‘Nitric acid *
Sulfuric acid

Cyanldes — ll

Prevent outygen absorption by the
body; some are very highly toxic.
Some are used to make plastics; the
finished product loses the toxicity.
Others are used in extraction of metal
from photographic films and ores. ,

Cyanogen bromide

Cyanogen iodide

Formaldehyde cyanohydrin N
Hydrocyanic acid (hydrogen cyanide)
lsobutyronitrile

'Lactonitrile

‘Malononitrile
Methacrylonitrlle

Potassium cyanide

Potassium silver cyanide
-Propionitrile

Propionitrile, 3-chloro-

Sodium cyanide

Industrial Gases — 17

Basic building blocks for many
chemicals. Since they are already
gases. they can rapidly spread be-
yond a plant fence after a leak.

Ammonia

.Arsine

4Brornina

‘Chlorine

Dihorane

Source:
as determined by EPA.
1985. p. D30.

CRS-9

Interim Acute Hazards

Hydrogen aalnida
ll sulfide
Methy mercaptan
Nitric oxide
Nitrog dioxide
Ozone

Phoaphine

Sulfur dioxide

Sulfur tetrafluoride
Sulfur trioxide
Tellurium hexafluoride

Pharmaceuticals — 25

Designed to kill specific organisms.
such as bacteria, in small doses.
Larger doses are highly toxic to
humans.

Amphetamine
Bacitracin
C.l. basicun green 1 (brilliant groan)

Dithiazanine iodide
Emetine, dihydrochloride
Ergocalciferoi (vitamin D)
tartrate

Fluorouracil

lndomethacin
Mechlorethamine
Mitomycin C

Muacimol

Ouabain

Phenylthiourea
Phylloquinooe (vitamin K)
Phyaastigmine
Phyaostigmine salicylate
Picrotoxin

1'ris(2-chloroethyl)amine
Valinomycin

Chemical Intermediates — I1

Made from basic chemicals, used
to produce more complex commer-
cial chemicals. Oft much more
toxic than finished chemimls. ‘

Acetone cy_anohy_drin
Acetone thiosemicarbazide
Acrolein

Acrylyl chloride

Allyl alcohol

Allyl amine
ine

Anll ‘

Aniline, 2.1.6-trimethyh

Benzal chloride

Benzenamine. 3-(trifluoromethyl)-
Benzene. i-(chloromethyi)-4-nitro-
Benzenesulforryl chloride
Benzotrichloride

Benzyl chloride
Bis(chloromethyl)“ketone

New York Times Published List of EPA's

Methyl thiocyanate
Nitrobenzene
Nltrocycloheaane
Pentadecylamine

Phenol

Phenylhydr-a.'.ne hydrochlorih
Phosgene

Phosphorous trichloride
Phosphorus

Phosphorus oxychloride
Phosphorus pentachloride
Phosphorus pentoxide

Piperrdine

Propargyl bromide
Propriolactone. beta-
Propyl chloroformate
Propylene imine
Propylene oxide
Pseudocurnene
Selenium oxychloride
Selenous acid
Semicarbazide hydrochloride
Sodium selenate
Sodium selenite
Sodium tellurite
Thiocarbazide
Thiophenol
Thioaemicarbazide
Trichloraostyl chloride

Reported List of 403 "Acutely Hazardous" Chemicals
Published in New York Times,

November 20,

CRS-10

TABLE 1 . New York Tynes Published List of EPA’ s Interim Acute Hazards
(continued)
Iranian: cups-a—u1 P-=1-*-1"-°',” I I I 
tshlll H Phuarsasine aide "'°“"‘. "‘*
sum. mi-:r'r:$h  ""°'"‘ "*"
“'3' °°"’° Phenol: 3-(1-methylethyl)-. methyicah “°¢Y*m¢'¢"fl’° ¢3°Ym“md°

Aldrin Pfiltl « . I

 "ln Phatolanun ""“Y'“‘“‘-""7 “*1”

Amiton Phosmet °“°"'“'

Adm oxalate Phmphamidou . 0-‘ WW3 ".""‘”.°""'

Afiycin A Ptnsphonothlolc acid. methyl-. 4- 35°“ ‘"‘“°"“

aaai nitrophenyl)O-phenyl ester Temlflm

Mile pentoxide Phnsphmiothiolc acid. methyl-. Oathyl T‘"“‘-W‘ "5

Anllll 0!-M0 0- 4-(met.hylthio)phenyl] ester . T'"“”“"_V‘ ‘"4

an-anus trichlorkh  c acid. methyl- s-(1-(iii. Thu“ 09*

Aslaphn-ethyl ami'no)ethyl) o-cuayi Jig: Thlllfll ¢=IflmIt°

Asuflios-methyl I um, Thallous abide

Iltmcanate 4-(:ethylthio)phenyl ester ""“°" "‘““"‘°

Calcium arsenate ' I

canphochlw  u 5°'V°m5 "' ‘

Carasturan Promecarb Widely used in paints and cleaning

Pfl'Rh0I§¢ materials. They cause damage to the

chlirtanvlnlos  w,u liver. nervous system and other sys-
Cflu-mephos sodium arsenlte mm‘

Chh-mequat chloride sodium cacodylate C-YCIOPOIIIB

Sodium nuoroa Carbon dlsulflde
can 0-(xmthy|cIrbImov|)aI1no gallium penucifiexognennu Chlwdoflll

C“ I . I . cum.“

Chhroxurcm suychnine sulfate IUPWPIIIII

cgu-ugopi-‘cg g-  luthanol (methyl alcohol)
canaffim running I H Chemical Wartare Agents — 7
csuma etraethy tin dame" .1

Crlmidine Thiocyanic acid. (2-bensothiasolylthlo)-  .1»,  m
‘7"'°°“‘7‘mme ""“'.V' “W humans. Somecause violent respira-
n._,u,,c"'”"° T"9°'°m"”flm" tory system blistering Others cams
p._m,..5..,,.¢y1 Th! - wdainage.Mosthavebeenmab
Dlailtos , ( I the Detense Department and
Dlchlo:='e!IzIlI£II1IIII dilorith  plnnyl)— stored at classified sltes..

Mb I

. blso-chloroethy )aml.ne mama

Dtcrowllhol rnasolos u miifl gas) ' (

Dlatiryl chlorophosphata I-icmogpugn .“'.”"“"

Dhlvlcnthtmnm cum ' inmegm LE! than; §;;""‘,,,m,,“

Dlmetox ‘ . ;r‘i:ienyl tin chloride Sam “‘

' mi“ . T bun

D“"°'::‘P"°‘p"°'°‘m°'u"u°“' :u‘:‘"“ ‘°‘.‘““” a Tztranltrome-thane (tear gas)

Dlllltroc I Zinc. dichl 4.4-dimethy' I-

p....:::'° ,_[[[(,,,,,,,,,,,,,1,,,,,,,.,,,°,$,[],,,,,n,,,,,,°] Flavors and Fragrances -3
D. I . ru _' 4 / .

Diaazhion p‘;l.su::| 2'] acrm ds_u  b‘el:e£cial in

' °“"”“”" Some overlap with cyanldes ‘niese saga“ fésahmmm m 1”” do..-

mfotx ' uty ISOV erate

u_Dmu°m,,_ ' 1,4,, aresmall molecules. much moredan- an“, (M,,,m-1,,’ c‘n'.y)

, in gerotsthanfinishedproducnthatare omu ‘a
‘gm «mm wrung“ chained together to form stable plas- C "3

Endosuiian tics and synthetic rubbers. cagajyggg ma Rgggeng... [3
Enibthion - -

3%.",  assist and measure chi-

“! e

EINPTPPNN  y?pmem ‘Ammonium chloroplatinate
F¢""“'P"°‘ Dioctyl phthalate AntirnOflY vent-fluoride

;"“"°g3:°m Dlmethyldichlorosilane Benzenemonicdencid

'3‘-‘H. Digmoblm-gt Boron trichlori
]  djqgxy BOTOD trifluoride .

n“°'°'°°‘.‘"“d’ Methacryloyloxyetgylriticyanate Bomn trinuoride compound with methyl
n"°"°‘°‘"‘ ‘dd Methyl Lchlomaciylate 91-her

goaolos - a “any; ymyg gem“. Lithium hydrgde

°""““". Methyltrichlotnsilane Peracettc Ici

Pumothion - ' -

F¢!'P3l'Inate 9*,,,,',:-,:=:,~,.3»:-.;’;=.<.=*:'.‘;,'*;°*.:.:."z" g'.iT3,‘:.*;..t.:'“‘"°

FCNGV-In py;-mm; ' gum; Titanium tetrachloride

"“"d”°" Silane (4.-aminobutyl)diethoxymethy|- VI-nadium Dtmoxlde
Beaachlonryclopunadhm Tdueée 1 4_d_“°cym“¢

laobenzan ' ’

Mlscellaneous—ll
Chemicals for which no use is

Toluene. 2.6-di-isocyanate

laopropylmethylpyramlyl dlmethylcar- T"cm°r°(°m°'°m“hyl)‘u‘"°
jamate

Methyl bromide

Metals and Compounds — 2!
Wide variety of uses, from photo-

T ’ hl dichl rophenyl ilane

_ ,2‘ °“’( “am )' known; those used largely in re-
1-‘¢P10Ph03 1-,,-¢mo,opb¢,,y;,,-1.3, search; those with odd uses.
M¢Dhosiolan Trlethaxysilane _ Cobalt (ll). N,N'-ethylenebis(3-fl1I:ro-
Meummdopm‘ Trimethylchlorosilane salicylideneim.inato)-
“mum” Vinylnortaornene oecaiaonnem)
fiflmourb Vinyl acetate monomer Dlmethylhydrgzine
 HCXEL;-Jul 

lsopropyl formate
Manganese. tncarbonyl methylcyclo

Metolcarb chemicals to pesticides to gasoline P¢{‘j‘}:‘°"~‘"§’.' __ , .
Mevinphos additives. Typically they lnteriere 0 ‘ "7
. . . . . rganorhodium complex
gggzumclfizlptgm with human enzymes. inhibiting the Pemabonm
"imam metabolism of lood and other sub- pem,c,,,°,,,,m,,,¢
menu“ mu“: stances giiienyisdlichloroarsine
Norhormide ccignnium oxide P;!“},’,_, ‘ .“"”°
Oxgmyl tum stearate .
chmlm chic" Pyridine. 4-nitm-. loaide
lohtzadlur Cobalt C de Salcomine
P“'::‘ _‘&“u". cog." c,,.m,.,y. Sodium anihr-aquinmsed-eiiliuiate
Parathiai Ethylmercunc phosphate Sullolfllt. 3-<$3°'°P|'WY‘
Paratmus-methyl Gallium tnchloride Tnm¢!-hY|@fl3PlI|¢ flflfifi

iridium tetrachloride

CRS-11

TABLE 2. Selected Companies Uaing Acutcly Hazardous Chelicala

The Chemlcal Handlers

some of the top companies that uee toxic chernlceh and theIr
headquarters in the United States.

Ilurnber ot
cherntcale Number
handled o1 planta

Aldrlch Chernlcat Co. Muwaukee 97 1
Aceto Chernlcal Co. Flushvng. N Y. 67 2
Atornerntc Chernetate Corp. Platnvoew. L .I. 52 1
creecent Chet-ntcat Co. Hauopaugc. L.I. 52 1
ICN 6Iocher-nlcate, K I K Lane Inc. 49 1
Plainvtew. L.l.

Eeetrnan Kodak Co. Rochester. NY. 43 9
Flutxa Cherntcal corp. Hauooauoe. L1. 41 1
Norton Thtottot Inc. St. Lows 41 19
Unton Carblde Corp. Danoury. Conn. 37 201

EN Induetrtee Inc. Haw1horne. NY 35 3
Chetnlcal Dynarnlca Corp. 33 1
South Platnloeld. N J

Lachat Chernlcate Inc. Meouon. W15. 33 1
fleher sclentlflc Co. Pittsburgh 34 30
E.I. du Pont de Nernoura 6 Co. 32 1 26
Wrlrntngton. Del

J1’ Batter Cherntcal Co. Pmmpsburg, NJ 31 3
Chem Servtce Inc. West Chester. Pa. 29 1
Itautter cherntcat co. westpon. Conn 29 so
Cherntcala Procurement Lobe. Inc. 26 1
College Point. N. Y.

Noah Induetrtat Corp. Farmcnodalc. L1. 26 1
Potyectencee Inc. Warnnqton. Pa. 27 1
Aehtand OII Inc. Ashtand, Ky 25 23
Ilgrna Chernlcal Co. St. Louis 26 1
Accurate Chernlcal and 8cIentI1Ic corp. 22 1
westoury. L.t A

cherntech Induetrtee lnc.. I-Ienetan DIvIeIon 22 1
Brooklyn

Itctteeeon Chernlcat Co. San Francisco 22 63
Monomer-Polymer end Dalec Lane Inc. 20 1
Tevosa Pa.

Ioneanto Co. St. Louis .20 69
ArnerIcan Cyanamtd Co. wayfls. NJ. 19 61
Colurnbta Orgentc Chernlcal Co. 12 1
Camden. S.C.

Dow Cher-ntcat USA Midland. Mich. 19 25
IASF wyandotte corp. Paraiooany. NJ. 19 20
Gattard-Schleelnger CheInIcaI

Iaanutacturtng Corp. Carle Place. L1. 19 ‘ 1
Cone Inc. Mttwaukee 16 1
nlatttntrrodt Inc. 51 Lou»: 1 7 1 1
Penmvatt corp. Pnnadelohta 17 21
Otln Corp. Stamford. Conn 1 6 1 7
Sharpe Cher-ntcate Co. Burbank. Cam. 16 1
Thornpeon-Hayward Chernlcal Co. 16 9
Kansas City

Mobay Cherntcat corp. Pmsburgh 16 1 8
Occldental Chernlcal Corp. Danen. Conn 16 1 7
Unlted-Guardlan Corp.. Eeetern dtvtelon 16 1
Smutntown. L.l

Unlvar, VWR ectenttflc dlvIeIon San Franclaco 16 28
Allled Corp. Moms1own_ N J 14 60
Var-Lac-Old Chernlcal Co. Bergentield. N.J. 14 1
Mobil Chernlcat Co. Stamford. Conn ' 10 35
Shell Chernlcal Co. Houston * 10 20
Exxon Cher-nlcal Arnerlcee Houston 9 28

Source!‘ Environmental Protection Agency. sat recs Directory
or Cherntcal Proaucera. Chen-neat Neel auyere Guide tor 1 956.
Chern soon.-ea-U. s.A.. hdmduat chefllcll cornoentee
Source: List of Companies That Use Chemicals on EPA's Acute

Hazards List.
p. B9.

Published in New York Times, November 19, 1985.

CRS-12

chemical or product appears on any kind of "priority" or "advisory" list,
the public considers those products as dangerous, or at least more
dangerous than those not on the list. Not only might this unfairly
characterize a product which is not dangerous as commonly used, but it
also might unwisely direct attention away from potential dangers of
products not on the list if handled improperly. On the other hand, some
regulatory officials, especially on the State and local level, argue that
someone needs to begin to define a universe of concern, a priority list,
to help narrow the tasks of reviewing up to the estimated 60,000 +
commercially produced chemicals. Such a priority list, it is argued,
should not be taken as a sign of unreasonable risks of the identified
chemicals. This is also how EPA is explaining the motives and proper

uses behind its interim acute hazards list.

B. European Economic Community (EEC) List

Another effort at defining a universe of chemicals for which there
is some concern about potential catastrophic events has been compiled by
the European Economic Community (EEC). In June 1982, the EEC adopted the
"Council Directive on Major Accident Hazards of Certain Industrial
Activities." This directive is an agreement among member countries to
adopt requirements for manufacturers of hazardous materials to take
measures necessary to prevent major accidents and limit their effects, to
devise a system which will guarantee safe plant design, and to require
notification of potential hazards to the proper authorities. Member
countries are required to issue emergency planning requirements, conduct
inspections of facilities, and conduct related activities to meet the

goals of the directive. Finally, the directive includes a description of

CRS-l3

the kinds of facilities covered, and lists 178 hazardous substances and
the quantities of the substance considered to pose a significant hazard
(including criteria for choosing these substances).

The EEG directive and list is a response by member countries to an
industrial accident in a pharmaceutical plant in Seveso, Italy. The
accident, which occurred in 1976, released a large amount of dioxin,
which is an inadvertent contaminant of certain chemical manufacturing
processes, and is widely considered to be among the most dangerous
synthetic substances ever produced. The accident contaminated a large
area surrounding the manufacturing plant, and caused widespread damage to
plant and animal life in the affected area. To date, effects on the
health of people exposed to the dioxin have not been considered severe,
though there is some question about possible long-term effects due to

this one-time, relatively large, exposure to the substance.

V. TRADE SECRETS

Disclosure of information is the core of any right-to-know scheme,
and this information is to be used to allow for better community planning
and public oversight of the operation of chemical facilities. However,
since some of this information may be of great economic value to firms,
policymakers and legislators are faced with determining the proper
balance between public access to business information and protection of
legitimate trade secrets.

Determination of what information can be kept confidential as a
trade secret is one of the most controversial issues about right-to-know
proposals. Precise formulations of a product are often considered vital

trade secret information because slight modifications among products may

CRS-14

be the key to competitive position in the market. Or, the detailing of
inventories and materials used may provide competitors with vital
strategic information. Predicting potential effects of disclosure
proposals is difficult at best; nonetheless, many firms insist that trade
secret provisions are essential to their viability in certain markets.

Most proposals provide for some degree of trade secret protection,
but vary according to the amount of information allowed to be claimed
confidential, documentation requirements to validate trade secret claims,
or who may have access to the data claimed as a trade secret. The OSHA
hazard communication rule, for example, allows the specific chemical
identity of products to be disclosed only to medical personnel with an
interest in a particular worker's medical history, if the information has
been claimed as a trade secret. Furthermore, persons receiving the data
face potentially huge financial liability if the data are released,
intentionally or not. Critics of the OSHA approach, such as trade union
representatives, view these procedures and penalties as cumbersome
disincentives for seeking the release of the data.

To balance the question of trade secret protection and unlimited
public access, most proposals include some kind of documentation or
justification for data to be claimed as confidential. Or, access to data
may be widened but not unlimited, such as allowing State health officials
to receive the information for any public health purpose.

Some observers claim there is no need for trade secret provisions
whatsoever, arguing that with modern methods of analytical chemistry,
precise chemical formulations are relatively easily discerned by
interested competitors. Instead, what is recognized as sensitive

business information, is not the precise identity, but the precise steps

CRS-l5

taken to produce the final product, since different manufacturing
processes or intermediate materials may be the key competitive point

between firms.

VI. IMPACT ON SMALL BUSINESS

Congress has been increasingly sensitive to regulatory burdens on
affected businesses, especially the potential impact on small businesses.
Although data generation and reporting requirements are considered to
have lower compliance costs than other restrictions or regulations, the
impact of some right-to-know requirements could be large. Tracking and
reporting the inventories and emissions of products among the over 400
chemicals on EPA's list as reported by the flew York Times might require
additional staff and analysis by affected firms. It is generally
believed that smaller firms will be less likely to easily absorb higher
production costs or to add these costs to the price of the product; as a
result, most proposals include some exemptions for businesses of certain
sizes (usually ten employees or less), or for those which handle certain
small amounts of the covered substances.

Those seeking to minimize potential compliance costs have argued for
a limitation on the amount of new data which would have to be produced to
comply with new disclosure requirements. For example, it is feared that
precise monitoring of emissions would be very expensive to collect and
might be required under right-to-know regulations. .Some respond that
such fears are groundless, that general reporting requirements will not
require the kind of precision feared by these critics. The emissions
inventory requirement approved by the Senate in S.5l, for example, has

specific language directing that data submitted be that which is

CRS-l6

routinely or easily available, or has already been generated to comply
with other regulatory requirements.

Further complicating the picture is the presence of many businesses
or other organizations (school laboratories, golf courses, hardware
stores, retail store warehouses) which may use or store hazardous
substances in volumes which are dangerous if involved in an accident or
fire. The amounts of hazardous substances may be small in absolute
terms, or especially when compared to volumes present in a manufacturing
facility, but the potential for widespread harm may nonetheless exist.
And although smaller firms or organizations may be the most adversely
impacted by reporting requirements, they may be among the least likely to
have emergency or handling procedures since their small size does not
allow for staff specialization (such as full-time safety staff). -Smaller
size firms may also produce or handle a large number or volume of
hazardous chemicals.

For example, the New York Times reported on November l9, 1985, that
the firm which used the greatest number of acutely hazardous chemicals on
EPA's reported list was a relatively small chemical company in Milwaukee,
Wisconsin (as listed in Table 2: Aldrich Chemical Company, using 97 of
the 403 chemicals, and whose annual sales are $35 million - which is
small if compared to the sales of mafior chemical firms). At the same
time, the Times analysis also shows that even very large chemical
companies, such as Eastman Kodak Company or Union Carbide Corporation,
use relatively few of the 403 chemicals on EPA's interim list (43 and 37

of the 403, respectively).

CRS-17
VII. DUPLICATION OF EXISTING REPORTING REQUIREMENTS

Critics of right-to-know proposals which call for new data
requirements about chemical inventories and emissions cite the wealth of
data which is already submitted to government agencies as part of other
regulatory requirements, such as construction permits, operating
licenses, and the like. Proponents of new requirements argue that
although there are much data available, it is inadequate to meet the
goals behind the right-to-know proposals. At issue is the amount of data
which is already available to government officials and the public, and
how much new data should be generated by new requirements.

There is most disagreement about the utility of information which is
already available through requirements under existing statutes (such as
the laws regulating air and water pollution). Although much data is
generated about point sources of pollution at some time during the life
of the facility (that is, emissions from specific point sources of a
chemical complex, such as a smokestack or discharge pipe), it is unclear
how current or usable this data is for right-to-know programs. The data
which are available may not be easily used for the purposes of emergency
planning, or for public oversight. Most data requirements were designed
to monitor discharges from a specific source (for example, individual
smokestacks), or from a particular kind of production process.

It is argued that existing data are not easily integrated to provide an
estimate of total plant emissions for a specific chemical (e.g. total
toluene emissions for a large plant in Houston, Texas), nor does it allow
regulatory officials to easily determine the total environmental load of
a chemical in a particular area (e.g. toulene emissions into the air in

the Houston metropolitan area). As a result, proponents of additional

CRS-l8

right-to-know requirements believe that a new, specifically designed,
data-gathering program is needed to achieve the goals of better local
emergency planning and public oversight of chemical facilities -- that
relying on data currently gathered in its present form is too unreliable
and fragmented for achieving these purposes.

Proponents of new requirements also point to the experiences of two
States which have separately gathered extensive data about production and
storage of chemical at production facilities in their States. New Jersey
and Maryland have both implemented data-gathering programs which are much
more extensive than current Federal requirements. In both programs,
responsible officials report that these additional surveys were necessary
to help set regulatory priorities, and to better understand the location
and condition of chemical facilities in their.States. What is available
through existing Federal requirements or already in the hands of EPA was
simply inadequate, according to these officials (for more information,
see CRS Report: "Chemical Inventories in New Jersey and Maryland"
(December 3, 1985, 85-1102 ENR), by James McCarthy.

Opponents of new reporting requirements argue that a more cost-
effective solution would be for government officials to better use
existing data or to alter existing data gathering systems to meet
whatever additional goals are seen as necessary. In their view, if
existing data is not in the most easily used form, the better solution
might be to make certain changes in the way this data is collected or
analyzed.

In addition, chemical industry representatives have stated that
reporting requirements about specific inventories of materials, or

information about aspects of manufacturing processes, can be difficult if

CRS-l9

not impossible to gather. The chemical industry is one where the
materials used or produced are constantly changing due to uncertain
customer demands or changes in the business cycle over a given period of
time. As a result, though there may be agreement with the general goal
of public awareness and better local planning, there is concern that
reporting requirements would soon become rigid and formalistic, and will
require extensive resources to maintain accurate and up-to-date
information.

Proponents of reporting requirements respond that such fears are

unfounded, because reporting would be done on a regular but not constant_

basis (every two years, for example), and the uncertainties surrounding

the nature of the chemical industry will be known and taken into account
in devising any regulations (for example, allowing the use of estimated

production ranges). It is argued that for purposes of public oversight

and better community planning, precision on the level feared by some

observers is not necessary and is not being proposed.

VIII. DISSEMINATION AND UPKEEP OF SUBMITTED INFORMATION

Related to the question of reporting burdens, there are questions
about where submitted information should be kept, and who would have the
responsibility for maintaining the data files. These questions have been
raised after some right-to~know proposals required that data files be
kept in local libraries, fire stations, and other locations..

Critics of such plans cited the difficulty of getting the data to a
large number of widely scattered locations, and questioned the utility
the data might have to safety officials such as firefighters who would

not have the time or resources to either maintain the files or use them

CRS-20

in a real emergency. And if the files were not kept current, their
utility for public oversight or safety planning purposes would be greatly
reduced. More recent proposals, however, seem to have reduced the
controversy over these issues.

There seems to be agreement among the proposals being considered
before the House and Senate that local officials should decide on central
locations for collected data. As a result, fears about unreliable data
being kept in local libraries, or overwhelming numbers of files being
kept in firehouses, seem to have been eliminated. Presumably, local
officials, including safety officials and emergency responders, would

decide what information is needed where and would act accordingly.

IX. FEDERAL PREEMPTION OF STATE LAWS

As of November 1985, 31 States have enacted some version of right-I

‘3 Some programs are intended to cover only

to-know legislation.
disclosure of information about chemicals used in the workplace. Other
States have separate requirements for disclosure of information to the
community at-large.

Debate over differing State regulatory requirements is familiar. It
is often argued that State and local officials are in the best position

to know the needs or situations unique to their jurisdictions, and can

use this knowledge to impose appropriate requirements. State and local

3 According to the Chemical Manufacturers Association, as of
November 1985 the following States have enacted right—to-know laws:
Alabama, Alaska, California, Connecticut, Delaware, Florida, Hawaii,
Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Montana, New Hampshire, New Jersey, New York,
North Carolina, North Dakota, Oregon, Pennsylvania, Rhode Island,
Tennessee, Texas, Vermont, Washington, West Virginia, and Wisconsin.

CRS-21

variations in requirements, however, may present barriers to interstate
trade of products, or at least make compliance more difficult and
expensive for firms with facilities and markets in different States.
The OSHA hazard communication rule, mentioned earlier, included a
preemption of any conflicting State or local requirements. This
provision, among others, was litigated by various State governments and
others who sought to maintain this prerogative. The most recent
decision, delivered in October 1985 by the Third Circuit U.S. Court of

Appeals (New Jersey State Chamber of Commerce v. Robert E. Hughey),

 held that State requirements are pre-empted if they regulate hazard

communication to workers in the manufacturing sector (the sector covered
by the OSHA Standard), or if the requirements of both OSHA and the State
are impossible to comply with (in which case the\OSHA requirement
prevails). Under this ruling, the preemption is narrower in scope than
the original OSHA interpretation when the Standard was first issued.
Other litigation about the rule is still pending.

Congress is expected to debate the extent of Federal preemption in
the context of right—to-know legislative proposals. Most proposals seek
to use the Material Safety Data Sheets as the starting point, yet they
differ about whether or not States can require more or different

information to be disclosed.

CRS-22
X. EMERGENCY PLANNING4

Currently, there are no Federal requirements for operators of
chemical plants to develop offsite plans to protect the surrounding
public or the environment in the event of an emergency. Chemical plants
generally have plans and procedures for handling on-site incidents such
as spills and fires. Many local communities also have general emergency
plans to deal with a variety of disasters, including those which might
involve exposures to hazardous chemicals. Also, in many cases the
managers of a facility which makes or uses hazardous chemicals have
helped to integrate facility accident procedures with local community
plans. However, no comprehensive assessment is known to have been
conducted by industry or government officials about the number or quality
of such emergency plans. Consequently, the state of emergency
preparedness at chemical facilities across the Nation is unknown, and
probably varies widely from plant to plant.

The State of Illinois, however, has conducted a survey of emergency
preparedness for possible chemical accidents in that State; Following
the accident is Bhopal in December 1984, Governor James Thompson formed a
Chemical Safety Task Force to assess the State's readiness to respond to
chemical emergencies, evaluate existing safeguards for prevention of

uncontrolled chemical releases, and make appropriate recommendations for

4 For more information about the issue of emergency planning in
light of the Bhopal accident, see: U.S. Library of Congress.
Congressional Research Service. After Bhopal: Preventing and Responding
to Chemical Emergencies. Report No. 85-835 ENR, by James Aidala, James
McCarthy, Paul Rothberg, David Cheney, and Cosmo DiMaggio, July 9, 1985.
Note especially the sections on "Chemical Plant Emergency Preparedness"
by Cosmo DiMaggio, and "Chemical Industry Initiatives" by David Cheney.
Some of the information in this section of this report is taken from
these earlier analyses.

CRS-23

improvements. In April, 1985, the Task Force delivered its findings in:
"Chemical Safety: A Report by the Governor's Chemical Safety Task
Force.“5 In the report's overview, the panel found:
The facility audits and the testimony heard
in the public hearings revealed that industry
in Illinois generally has devoted considerable
attention and resources to safety management
and emergency planning. There are, however,
enough facilities with various shortcomings
that additional enhancements would improve
chemical safety. Likewise, State and local
emergency response networks have generally
been effective in dealing with chemical
emergencies. However, there are several areas
in which this response capability should be
strengthened.

In oral presentations of these findings, Illinois officials have
said that the report found most facilities to have an adequate emergency
response plan and capability, but in some cases, facilities had
inadequate plans. Most observers agree that since Illinois is among the
largest chemical-producing States, these observations probably are a
reasonable description of the situation nationally.

As a result, most community right-to-know proposals have included
some provisions regarding emergency planning at hazardous chemical
facilities. The primary issue of concern is whether or not new Federal
action is needed to improve emergency preparedness at these facilities.
Each of the thousands of chemical facilities in the United States is
somewhat unique with respect to size, design, operations, and chemicals
produced. Similarly, differences in plant sites such as local

topography, population density, and governmental units with jurisdiction

result in differing community response procedures. Consequently,

5 Report of the Governor's Chemical Safety Task Force. State of
Illinois, April 1985.

CRS-24

attempts to regulate or make uniform local emergency planning must take

these differences into account.

A. Chemical Industry Initiatives

The Chemical Manufacturers Association (CMA), whose members account
for 90 percent of industrial chemical production, is expanding its
programs in the areas of chemical emergency response and planning. For
example, since 1970 CMA has operated the Chemical Transportation
Emergency Center (CHEMTREC), which is 24-hour emergency hotline to
provide safety officials with information about the hazards and proper
treatments of chemical spills. Originally designed for cases of
transportation accidents, CHEMTREC is now being expanded to provide
information to safety officials about non-transportation emergencies.

In light of the accident at Bhopal, in early 1985 CMA also created a
Community Awareness and Emergency Response (CAER) program. This
initiative is designed to help member companies develop programs to
provide the public with information about chemicals manufactured or used
in local chemical facilities, and to improve local emergency response
planning by integrating the facilities'plans with local emergency
response plans. Press accounts indicate that CMA officials have found

the level of interest shown by member companies to be extremely high.

B. EPA Guidance to State and Local Officials

On November 18, 1985, EPA released its draft of: "Chemical
Emergency Preparedness Program, Interim Guidance," to help communities

establish a response program. This guidance package includes criteria to

CRS-25

help regulatory officials on the State and local level determine which
chemicals in their local areas might present acute hazards in an
emergency situation (these criteria were the ones used to select the list
of 403 chemicals in Table 1). The preface of the document states:6
This guidance is intended to help local com-
munities become aware of any acutely toxic
chemicals in their area and prepare to respond
to any accidental release of such chemicals
into the air.
The goal of the Chemical Emergency Pre-
paredness Program is to assure that communities
are prepared to deal effectively with possible
accidental releases of acutely toxic chemicals.
Developing community awareness and contingency
planning are essential parts of the process of
becoming prepared.

Among other things, EPA urges that municipalities form committees
that include local officials, fire marshals, residents near chemical
facilities, workers, medical personnel, company officials, and chemical
safety experts. EPA also recommends that local committees ascertain
emergency preparedness of local medical facilities, as well as the
effectiveness of plant officials’ plans for notifying local safety
officials and nearby residents in case of an accident. Overall, it is a
guide to what EPA considers to be the essentials of an adequate local
response plan, and includes specific questions which should be included
as part of the preparation of any plan.

At issue for Congress is whether or not these activities by CMA and
EPA are adequate by themselves, or whether greater Federal involvement is

needed. Voluntary initiatives by the chemical industry may prove to be

quite helpful to local officials initiating or improving local emergency

6 U.S. Environmental Protection Agency. Chemical Emergency
Preparedness Program, Interim Guidance [DRAFT]. November 18, l985.

CRS-26

preparedness. However, if certain hazardous chemical facilities choose
not to participate in such voluntary programs, the authority of outside
officials (Federal, State, or local) to gather necessary information or
require certain actions may be inadequate. Similarly, if EPA develops
final guidance to local communities which choose to initiate or improve
emergency planning, it is unclear whether all communities with hazardous
chemical facilities will be willing or able to develop adequate plans.
According to press accounts, even as EPA released its draft Interim
Guidance, many local and State officials questioned their ability to find
the resources necessary to implement the suggestions made by EPA. So the
question of Federal involvement will include not only if additional
statutory authority is needed, but also if Federal assistance for

developing and implementing adequate plans is needed.

XI. LEGISLATION

Although a number of bills have been introduced in Congress in light
of the accident of Bhopal, the major Congressional forum for the issues
associated with community right-to-know has been the reauthorization of
Superfund. As a result, the major Superfund reauthorization bills,

S. 51/H.R. 20057 in the Senate, and H.R. 2817 in the House, each contain

language regarding right-to-know and emergency planning. [For a complete

7 S. 51 was the reauthorization bill considered by the Senate. For
parliamentary reasons, its text was substituted for the language in
H.R. 2005 at the time of Senate passage on September 26, l985. Since the
Superfund reauthorization in S. 51 raised revenues (taxes to pay for
clean-up of hazardous waste sites), and bills which raise revenues must
originate in the House, this substitution was to comply with this
requirement. For purposes of clarity, however, when the Senate
reauthorization of Superfund is being discussed in this report, it will
be referred to as S. 51.

CRS-27

list of bills relating to community right-to-know and other issues
related to the accident in Bhopal, see CRS Issue Brief IB85022: "The
Accident in Bhopal, India: Implications for U.S. Hazardous Chemical

Policies."]

A. H.R. 2817

Provisions regarding community right—to-know and emergency planning
are contained in Title III of H.R. 2817. As reported by the House Energy
and Commerce Committee, the bill essentially requires that officials
designated by the Governor of each State receive a copy of the Material
Safety Data Sheet (MSDS) for chemicals covered by the OSHA Hazard
Communication Standard.

The bill also includes provisions which establish an Emergency

 Response Commission on the State level (the Commission to be appointed by

the Governor), and also establishes local Emergency Response Committees.
The bill's language includes specifications about how the plans should

be developed, membership on the Committees, and elements of the emergency
response plan. H.R. 2817 also would require immediate notice to
appropriate State and local officials about any hazardous substance
emergency (that is, an accidental release). These provisions are
generally considered to be non-controversial.

Regarding preemption of State laws, the bill as reported by the
Energy and Commerce Committee allows States to require additional or
different information about hazardous chemicals, although requirements
must be consistent with the MSDS form as defined in the OSHA rule.

After it was reported by the Energy and Commerce Committee

(H. Report 99-253, Part 1, August l, 1985), H.R. 2817 was sequentially

CRS-28

referred to several other Committees.8 The Public Works and
Transportation Committee was another place where right-to-know and
emergency response provisions were considered. There, these provisions
were retained, but with some differences. These differences centered on
chemical inventory disclosure requirements.

As reported by the Public Works and Transportation Committee
(H. Report 99-253, Part 5, November 12, 1985), H.R. 2817 retained the
general structure of emergency response planning committees and the
requirements for wider circulation of the MSDS. Also identical is the
definition of hazardous chemical (that is, the OSHA Hazard Communication.
Standard list). Differences between the Public Works and Energy
Committee versions center on definitions of a hazardous substance and
requirements about inventory disclosure for certain chemicals.

Under the Public Works version, hazardous substances are to be
defined by EPA, and would be those which are likely to cause an imminent
and substantial endangerment to health or the environment. It is unclear
if these would be identical to EPA's "acute hazards list." For these
compounds, an emergency plan must include the type and approximate amount
of a substance to be found at a chemical facility. The Public Works bill
also creates a new category of "extremely toxic substances," to be
defined by EPA, and to include those so acutely toxic that the release of
any amount might be considered as an extreme hazard. For these

compounds, reporting requirements would include an emissions inventory of

8 Three other Committees of the House have considered some part of
Superfund, and have reported the appropriate sections of the bill. The
Ways and Means Committee reported the bill on October 28, 1985 (H. Report
99-253, Part 2). The Judiciary Committee reported the bill on October
31, l985 (H. Report 99-253, Part 3). And the Merchant Marine and
Fisheries Committee also reported the bill on October 31, 1985 (H. Report
99-253, Part 4).

CRS-29

amounts of the substance emitted into the air, land, groundwater, or
surface water. This is very similar to the reporting requirements of the
New Jersey and Maryland surveys, discussed earlier.

As of early December 1985, the Committees were seeking to resolve
differences in H.R. 2817 as separately reported. Even when an agreement
is reached between the two Committees, amendments supporting various
other points of View are likely to be offered during the debate of the

bill before the full House.

B. S. 51

The Senate completed its deliberation of the Superfund
reauthorization on September 26, 1985. S. 51 takes a very different
approach to right—to-know information disclosure than H.R. 2817.

Although it begins with the MSDS as used in the OSHA Hazard Communication
Standard, it also requires the disclosure of the maximum inventory
amounts and locations of hazardous chemicals used at a facility in order
to better prepare emergency response plans. This information is to be
available to the public through emergency planning committees.

Perhaps the biggest difference between the S. 51 and H.R. 2817 is
the Senate bill's requirement for a Toxic Chemical Release Inventory
Form, which would require an emissions inventory (like the New Jersey and
Maryland surveys) for chemicals which are produced or imported nationally
in aggregate quantities that exceed 500,000 pounds per year, and are
suspected of causing adverse health or environmental effects (the list
would be determined by EPA).

Concerning emergency planning, S. 51 is very similar to H.R. 2817 as

reported by both House Committees. After determination of a list of

CRS-30

extremely hazardous substances (again, it is unclear if this would be
equivalent to EPA's proposed acute hazards list), emergency plans shall
be prepared by committees appointed by the Governor of affected States
for each appropriate planning district(s). Like the House legislation,
the Senate bill includes specifications about the components of an
emergency plan, and requires immediate notification of an emergency
release. The Senate bill, however, specifically mentions the list of
substances and amounts used by the European Economic Community in its
1982 directive (described earlier). The EES list would be the initial
list used for purposes of emergency planning, and would be supplemented

by EPA determinations of other hazardous chemicals.

C. Prospects in Conference Between the House and Senate

Since the House has not yet considered H.R. 2817, it is difficult to
know what right-to-know issues will face a conference committee meeting
to resolve differences between House and Senate-passed bills. Several
aspects of the issue appear to be open and are yet to be resolved by the
House or conferees. Two of the most important are: 1) emissions
inventory requirements; and 2) inventory disclosure requirements.

During the Senate debate about the provisions of S. 51, such
requirements were not challenged on the floor and proved to be non-
controversial. If similar provisions are not part of the bill presented
to the House, then amendments adding such requirements are expected.
They have already proven to be controversial among House members,

however, and are likely to remain so during any floor debate.

CRS-31

XII. FINAL COMMENTS

Although the Superfund debate does not represent the total
Congressional response to the accident in Bhopal, it has been by far the
major forum for discussing the issues raised by it. The issues of
information disclosure and emergency planning seem to the the ones most
likely to be directly affected by the accident. However, there are a
number of related issues likely to persist after Superfund is
reauthorized. These include: export of hazardous technology to less
developed nations, general monitoring of ambient levels of hazardous
chemicals, reliability of any plans or equipment which are part of
emergency alert or response systems, proximity of densely populated areas
to hazardous chemical facilities, improved training of emergency
responders and operators of hazardous chemical facilities, and the risks
of transporting hazardous chemicals, among others.

Congress is likely to extend its deliberations of these issues
throughout the next session of the 99th Congress and beyond. The
accident at Bhopal will continue to be cited as evidence for further
scrutiny of the production and use of hazardous chemicals both here and
abroad. However, all of these current and future activities
notwithstanding, it is unclear whether or not the Bhopal accident would
have been prevented had these deliberations been completed beforehand.
If so, it also is unclear if this indicates a need for much more
stringent regulation of the use and production of hazardous chemicals,
or, alternatively, that the accident at Bhopal was a singularly unique

event unlikely to be repeated here or abroad.

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