Chemical Security Bills Reduce Risk, but Secrecy Weakens Program
Sen. Frank Lautenberg (D-NJ) has introduced two related chemical facility security bills that would reduce the consequences of a catastrophic accident or terrorist attack at many of the nation's chemical plants and drinking water and wastewater treatment facilities. The legislation addresses many of the issues raised by a coalition of environmental and openness groups, but it fails to provide the accountability and transparency needed to ensure the government's chemical security program would actually make facilities and communities safe.
Lautenberg’s legislative package would require facilities to assess available safer technologies that would eliminate the potential for a release of poisonous gases following a disaster. The most dangerous facilities would be required to convert to using the safer technologies – but only if several conditions are met. The bills would also require facilities to involve workers in the formulation of security plans. The package includes S. 3598, the Secure Water Facilities Act, which deals with water facilities, and S. 3599, the Secure Chemical Facilities Act, which covers chemical plants.
The bills build on compromise legislation that the House passed in November 2009, incorporating a number of valuable provisions to drive conversions to safer chemicals and processes, protect workers, and expand the number of covered facilities. However, like the House legislation, the Senate package allows the government to conceal basic regulatory data that the public needs to hold agencies and companies accountable and to ensure the program is working as well as it should.
The Lautenberg bills are competing with another, weaker bill. Sen. Susan Collins (R-ME) introduced a bipartisan bill earlier in 2010 that would simply extend for five years the existing, temporary chemical security program housed at the Department of Homeland Security (DHS). The Collins bill would continue to exempt from the program thousands of chemical and port facilities, including approximately 2,400 water treatment facilities and 400-600 port facilities. Moreover, critics point out that the current program, known as the Chemical Facility Anti-Terrorism Standards (CFATS), prohibits DHS from requiring any specific security measure, including the use of safer and more secure chemical processes that can eliminate catastrophic hazards posed by poison gas. CFATS also operates under such excessive secrecy that the public is unable to evaluate if the program is working and cannot hold the government or facilities accountable.
The new bills from Lautenberg would rectify many of the fatal flaws in the current CFATS program. The bills would also make some progress in wrenching crucial information from the government. However, key information would continue to be vulnerable to the excessive secrecy that now weakens CFATS.
Accountability and Chemical Security
The Senate bills allow the secretary of DHS and the administrator of the EPA (in the case of water facilities) to consider information created under the program as "protected information." Open government advocates readily agree that certain information, namely the security vulnerability assessments and site security plans, should not be disclosed to the general public. However, the bills allow the agencies to broadly apply the information protections, including to basic regulatory information such as the identities of covered facilities and their compliance status. 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.
The legislation includes another troubling provision that would further restrict the public's access to vital information. Criminal penalties of up to one year in prison, fines, and, for federal employees, dismissal from their jobs await those who disclose sensitive information. The threat of such punishments has a chilling effect on the sharing of information that may or may not be considered sensitive, even with those who need the information the most, such as first responders. The risk of jail time also puts an even greater burden on life-saving whistleblowers who seek to expose negligence in the program's implementation.
Contrary to widespread assumptions, secrecy often interferes with security by reducing accountability, reducing the efficiency of security measures, and slowing or denying release of information to those who protect public safety. Excessive secrecy can delay needed actions by creating the false impression that an issue is being dealt with; the reality is that secrecy robs people of the tools to drive positive change and ensure needed fixes are implemented.
Good government groups have long held that basic regulatory data, technical information on safer and more secure chemicals and processes, and criteria for evaluating facilities should be actively reported to the public. Such reporting would, among other benefits, generate solutions and improve people's ability to identify and remedy weaknesses in the program and at specific facilities.
Transparency provisions are not completely missing in the Lautenberg bills. The package includes one tool crucial to government accountability: citizen suits against the government. Sensitive information would be protected from unauthorized disclosure in a judicial or administrative proceeding by the use of a protective order from the overseeing judge, background checks for legal counsel seeking access to the information, and guidance on the proper safeguarding of the information, among other restrictions.
Like the House bill, a provision to allow lawsuits against companies for alleged violations was omitted in favor of a "citizen petition" provision that lets individuals petition the government to respond to alleged violations at a facility. However, without basic information such as what facilities are covered by the program or what their compliance status is, the public is hamstrung in its application of the petition process – or any other effort toward accountability.
Other valuable features include a provision requiring an annual report to Congress providing a general overview of the level of compliance with the law, the number of facilities moving into higher or lower "tiers" of risk, and descriptions of the technologies being implemented to reduce the consequences of a terrorist attack. An emergency response capacity study is required to assess what emergency resources would be required to respond to a worst-case disaster scenario at a chemical facility.
The legislation provides for a notification system by which any member of the public may report to DHS a suspected violation or other security problem at a chemical facility. If the person submitting the report requests a response, the agency is required to respond with a description of the agency's findings and any compliance action taken. The Office of the Inspector General must report annually to Congress on the disposition of these reports.
The Road Forward
The current CFATS program expires on Oct. 4, but the prospects for any chemical security legislation moving out of the Senate are uncertain. Collins' bill has bipartisan support in the Senate Homeland Security and Governmental Affairs Committee, but the chemical industry is fighting the Lautenberg bills.
The Senate Energy and Public Works Committee will hold a hearing on the Secure Water Facilities Act on July 28 – right after the homeland security committee marks up and votes on chemical facility legislation. However, there is little time available on the legislative calendar before the midterm elections, making it unclear whether chemical security legislation in any form will see a floor vote in the Senate before November.
Photo in teaser by flickr user Dead Air, used under a Creative Commons license.