House Passes Chemical Security Bill

11/10/2009

More than eight years after the 9/11 terrorist attacks, the House approved legislation that seeks to greatly reduce the risks of terrorist attacks on chemical plants and water treatment facilities. The Chemical and Water Security Act of 2009, passed in a 230-193 vote, includes measures long sought by labor, environmental, and public interest groups, including greater worker participation and the authority for states to implement stronger security standards. However, the House bill lacks measures to ensure an accountable security program that is not hobbled by excessive secrecy.

The House-passed bill, H.R. 2868 (sponsored by Rep. Bennie Thompson (D-MS)), will require covered facilities to assess potentially safer chemicals or processes that could reduce the consequences of a terrorist attack. By removing a toxic substance that might poison thousands if released, a facility becomes less of a target to potential terrorists. Under certain circumstances, the bill gives the Department of Homeland Security (DHS) or the U.S. Environmental Protection Agency (EPA) the authority to require a facility to convert to a safer technology identified in the plant's assessment. If the facility would be forced to relocate or be hurt economically, it would avoid the requirement to convert.

Following months of work by several House committees, the bill passed on Nov. 6 without a single Republican vote. Members of the House Homeland Security Committee and the Energy and Commerce Committee worked out the bulk of the comprehensive security bill, with major contributions from both the Transportation and Infrastructure and Judiciary Committees.

During the House floor vote, Republicans continued attempts to remove key portions of the legislation and replace the measure with an extension of the current security program. The current program, known as the Chemical Facility Anti-Terrorism Standards, is regarded by many public interest advocates as fatally flawed and does not cover thousands of water treatment facilities.

Several compromises were negotiated in the weeks leading up to the floor vote, including the elimination of a citizen suit provision that had allowed citizens to sue individual companies for noncompliance. Instead, a petition process will be created, through which citizens may request the government to investigate a specific facility. Citizens may still sue the government for failing to implement the law.

Most concerning to open government advocates is the expansive definition of what types of information may be considered "protected," and thus not disclosed to the public. The bill grants the secretary of DHS and the EPA administrator discretion to conceal facility compliance information should they deem that the information places the facility in danger. This would prevent the public from even knowing what facilities are covered by the law, let alone whether a facility is in compliance or not. Government inspection histories and information on violations and penalties at specific facilities could also be concealed. Should DHS and EPA withhold these records, the lack of compliance information would create an immense barrier to public accountability. Some degree of transparency is necessary to ensure the effectiveness of the government program and to assure communities that nearby plants are safe.

Allowing the public to hold the government and the facilities accountable does not require the release of information that could threaten public safety. Public interest advocates have long acknowledged that information that poses a real threat should remain secret. However, open government advocates believe the disclosure of basic regulatory data would not reveal any specific vulnerabilities at chemical plants, nor would it increase the risk to those living around facilities.

Certifications, notices of violation, and other procedural materials are of no use to terrorists. On the other hand, such information can be used by the public to sustain continual improvements to security. The information would allow the public to stay several steps ahead of those planning an attack by using compliance data to push facilities and the government to improve their implementation of the law. An informed public is an engaged and vigilant public. Without public pressure, vulnerabilities may persist and worsen, increasing daily the threat to workers and communities. This basic accountability is crucial to ensuring that the program is accomplishing what it is designed to accomplish – the security of our plants, workers, and citizens.

Despite the lack of clear transparency or disclosure requirements, the bill greatly strengthens current security measures. The bill adds thousands of drinking water and waste water treatment plants to its scope. The EPA will work with DHS to develop similar security standards for these plants as those put in place for chemical plants. Additionally, the bill takes advantage of the technical expertise and creativity of thousands of plant workers by including them in the assessment of a site's security risks and the development of a site's security plan. Labor advocates also won protections for workers from excessive and exploitative background checks.

The focus now turns to the Senate, where no chemical security legislation has been introduced. Sen. Frank Lautenberg (D-NJ) and Sen. Susan Collins (R-ME) have both signaled their intentions to separately introduce such legislation this session.

Image in teaser from flickr user Picture_taking_fool, used under a Creative Commons license