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Cabinet-level bill, FOIA exemption clear Congress
Darren Samuelsohn, Environment & Energy Daily staff writer
President Bush scored a significant victory in November when Congress, after
months of bruising debate, approved legislation creating a Cabinet-level
Department of Homeland Security. To environmental groups' dismay, within the
bill is a controversial provision that gives U.S. industries, including chemical
manufacturers and utilities, an exemption from the Freedom of Information Act
for any material they voluntarily disclose to the government containing critical
infrastructure data.
The new FOIA exemption did not gain the same degree of attention from Congress
during the homeland security debate as did numerous other issues. Labor rights
for the new department's 170,000 employees, for example, stalled Senate action
on a Democratic bill for several months, a scenario that many sources have said
led to some of the Republicans' success in the mid-term elections. In the final
Senate battle, debate steered clear of FOIA when Democrats again were on the
losing end in an effort to strip what they said were seven last-minute additions
for GOP-backed special interests, including pharmaceutical companies and
anti-terrorism technology makers.
Ultimately, eight Democrats and Senate Environment and Public Works Committee
Chairman James Jeffords (I-Vt.) voted against the bill, H.R. 5710, 90-9. The
House passed the homeland security bill, 299-121 (Environment & Energy Daily,
Nov. 14).
Bush recently named White House Office of Homeland Security advisor Tom Ridge as
secretary of DHS, which is expected to begin early-stage operations by April.
Democrats, meantime, have repeatedly said that Bush has skirted the issue of
funding the nation's domestic defense needs by imposing fiscal restraint on the
FY '03 appropriations process. Specifically, they pointed to the larger spending
dispute on Capitol Hill that has stalled much of the new homeland security money
that was requested by Bush and has been endorsed by most lawmakers. Nearly time
to begin the FY '04 budget process, Congress still must move 11 FY '03 spending
bills, many of which address homeland security. Action on the FY '03
appropriations tickets is expected soon after lawmakers return Jan. 7. In the
meantime, the latest continuing resolution, funding the government through Jan.
11, provides $640 million for the new department's transition.
On FOIA, Sen. Carl Levin (D-Mich.) said that Sen. Robert Bennett (R-Utah) "made
an honest effort" during the final rounds of debate to include a softer
exemption in line with an agreement that originally had been worked out among
the lawmakers in July during a Governmental Affairs Committee markup on the
Democrats' homeland security bill. Bennett said at the time that the compromise
had garnered the White House's approval (Environment & Energy Daily, July 25).
His office did not return repeated calls for comment. Levin said he would make
an effort during the 108th Congress to clean up the FOIA exemption provisions
through legislation.
Asked about the Governmental Affairs Committee FOIA language being dropped, Sen.
Phil Gramm (R-Texas) said that for the sake of the larger bill, "we
compromised." Indeed, Gramm's push in the upper chamber to move a bill this year
helped the Senate advance the issue during the two-week lame-duck session.
Before the election, Gramm had served as middle man in an attempt to end the
labor dispute by offering Democrats an alternative bill that included the
compromise FOIA exemptions. Democrats, however, wanted additional leverage for
DHS workers and subsequent procedural hurdles halted any progress.
The Bush administration, GOP lawmakers and operators of privately owned
infrastructure have argued for the FOIA exemption forcefully since Sept. 11,
2001. Federal, state and local government officials, they've said, should only
have access to the industry's most sensitive security materials with the legal
assurance that such data would not be released to the public where it could
serve as a guide for future terrorist attacks.
On the flip side, environmentalists, reporter groups and some Democrats have
countered that a FOIA exemption for national security already exists and
provides the industry with adequate certainty. Further tinkering with the law,
particularly during debate over a sensitive and popular bill to drastically
reorganize the federal government, will further diminish the already gray line
that defines the public's right to know, they say. "By burying it in homeland
security, it becomes motherhood and apple pie," said Charles Davis, executive
director of the Freedom of Information Center at the University of Missouri
School of Journalism, in June after Bush lent his support to the Cabinet-level
department with a FOIA exemption (Environment & Energy Daily, June 19).
Turning to specifics, an aide to Senate Judiciary Committee Chairman Patrick
Leahy (D-Vt.) said the newly passed FOIA language empowers the federal
government to trump any state's own FOIA protections. Further, the aide said the
exemption provides legal immunity prohibiting the government from taking any
action against an information provider based on the materials it submits. As
well, the aide said the exemption would impose a financial or criminal penalty
on any official at the new department who discloses the voluntarily submitted
materials, a scenario that may crimp the public's information flow and also
diminish the frequency of so-called government whistle-blowers. The Senate FOIA
compromise did not include any of the above provisions. "I'm so disgusted," the
aide said. "This is about as blanket a pre-emption as you can get."
In defense of the new FOIA section, House Majority Leader Richard Armey's
(R-Texas) spokesman Richard Diamond said a key provision was included to address
environmental and reporter groups' concerns, pointing to language that prohibits
the industry from submitting sensitive information under the new exemption that
is required for disclosure under current law, including the Clean Air Act and
Clean Water Act. Asked about the FOIA language, a Bush administration official
pointed to the Clinton administration's Presidential Decision Directive 63,
which set a May 2003 deadline for the nation to have achieved the ability to
protect and maintain its critical infrastructure (Greenwire, Sept. 19, 2001).
"It was carefully worked through the process, considering everyone's concerns,
especially those of the environmental community," the administration official
said.
Mandatory chemical security measures dropped
On a simultaneous track, Sen. Jon Corzine (D-N.J.) led the charge this year to
establish strict new security guidelines for the chemical industry, specifically
by adding in the homeland security bill his measure, S. 1602, that passed 19-0
out of the Senate Environment and Public Works Committee (Environment & Energy
Daily, July 26). But as the homeland security bill debate wrapped up, Corzine
made a floor statement conceding defeat. Corzine said his measure -- calling on
facilities to assess their security vulnerabilities, draft plans to respond to
their weaknesses and consider employment of inherently safer technologies -- was
deemed nongermane to the homeland security measure.
Looking toward the next Congress, Corzine said he would be willing to whittle
down the bill to allow his suggested new oversight functions be carried out by
DHS instead of the Environmental Protection Agency, a move that he said should
appease industry's most boisterous concern. Incoming Senate Environment and
Public Works Committee Chairman James Inhofe (R-Okla.) said in an interview that
he did not think chemical security belongs at EPA, adding that he had not yet
spoken with Corzine on the issue.
EPA Administrator Christie Whitman said she and Ridge strongly favored a
regulatory approach to speed up the chemical industry's security process but
lost out to lawyers from other agencies who said EPA would be overstepping its
legal bounds. Amid the unveiling of its "Strategic Plan for Homeland Security,"
Whitman said the Bush administration would support bipartisan legislation to
address security problems in the chemical and oil industries, noting Inhofe's
plans to put the primary oversight responsibility into DHS (Greenwire, Oct. 3).
In his floor speech, Corzine said he hoped the industry would respond quickly to
his call for mandatory safety provisions. "There are some good voluntary
efforts," he said. "But I don't think we've gone far enough. Voluntary efforts
are not sufficient."
Chris VandenHeuvel, a spokesman for the American Chemistry Council, said
Congress should stay out of the security mandate arena and instead encourage
chemical companies to follow his organization's recently revamped voluntarily
guidelines. After the EPW vote in July, VandenHeuvel said the Corzine language
puts too much authority in EPA's hands, adding that the agency does not have the
experience or manpower to deal with the issue. He also said S. 1602 does not
take into account the effects of the legislation on other sectors of the
economy, such as the medical and drinking water industries. For example,
VandenHeuvel said requiring new technologies may be incompatible with the
existing infrastructure for industries that deal with hospital equipment and
prescription drugs, as well as what the drinking water industry uses to ensure
safe supplies move from source to tap.
Bush signs bioterrorism bill
In June, Bush signed into law a $4.6 billion authorization measure (P.L.
107-188) aimed at bioterrorism counterterrorism issues spotlighted since the
Sept. 11 attacks.
Originally H.R. 3448 from House Energy and Commerce Committee Chairman Billy
Tauzin (R-La.), the bioterrorism law includes a significant rewrite of the Safe
Drinking Water Act to address terrorism threats, as well as public health
infrastructure, nuclear security, food inspections and drug stockpiles.
The bill originally moved out of the House at $3 billion and the Senate at $3.2
billion, but jumped to $4.6 billion after three months of conference
negotiations (Environment & Energy Daily May 24). Akin to the homeland security
debate, Democrats criticized the Bush administration for imposing fiscal
restraint on the FY '03 appropriations process when the authorized bioterrorism
measures were not on the receiving end of increased funding.
Among the bill's major sticking points during conference was what to do with the
vulnerability assessments that are currently being conducted at drinking water
systems throughout the country. Ultimately, lawmakers agreed to send EPA the
materials for storage and certification. Foreshadowing the homeland security
bill debate, a FOIA exemption was written into the bioterrorism bill that would
ensure the assessments are not released to the public, a provision that drew
some criticism among open-government advocates. Reece Rushing, a policy analyst
at OMB Watch, said disclosure can provide an important accountability check on
information and serve as an incentive to address any lapses in security.
"If nobody is being told about it, it may invite a false sense of security," he
said. "At this point, I would think that is exactly what we don't want. ... It's
not to say that security is not important. Disclosure can have benefits to our
security by serving as an incentive to make improvements. That needs to be
remembered."
Sen. Judd Gregg (R-N.H.), the ranking member of the Health, Education, Labor and
Pensions Committee, defended the FOIA provision. "It would be no good for us to
develop these studies and then have terrorists use them against us," he said.
For nuclear security, the bioterrorism law made potassium iodide (KI) available
to state and local governments for distribution to populations within 20 miles
of a nuclear power plant. A notable change from the original bill included a
switch in the authority for distribution, from the secretary of the Department
of Health and Human Services to the president. Noting that KI is not a cure-all
in the event of radiation exposure, the bioterrorism law's provisions cease to
apply if the president determines that there is an alternate and more effective
prophylaxis or preventative measure to minimize the risk of adverse thyroid
conditions following the release of radionuclides from a nuclear power plant.
Wastewater security falters
Congress this year was unable to advance legislation aimed at security for the
nation's wastewater treatment plants despite much talk in both chambers.
In October, the House approved a $200 million authorization package, H.R. 5169,
for EPA-sponsored grants for vulnerability assessments and security enhancements
at publicly owned treatment facilities (Environment & Energy Daily Oct. 8). The
Senate Environment and Public Works Committee did not advance legislation,
though Chairman Jeffords did unveil his own $200 million measure, S. 3037, that
served in some ways as a companion to the House bill. Jeffords had sought to
include wastewater issues during the bioterrorism conference but was denied on
jurisdictional grounds.
The most significant differences between the two wastewater bills revolved
around sensitive information disclosure issues, specifically whether or not
completed vulnerability assessments should be housed at EPA. In S. 3037, the
assessments would have to be turned over to the agency while H.R. 5169 required
EPA certification of the materials but not permanent storage. S. 3037 also
required the wastewater industry to complete emergency response plans within 180
days of an assessment's completion; the House bill had no such provision.
While the Association of Metropolitan Sewerage Agencies supported both bills, it
preferred the House text on the issue of each assessment's final storage
location. Lee Garrigan, an AMSA spokeswoman, questioned what EPA would do with
the materials and whether or not the agency has the in-house personnel to handle
them. Garrigan also pointed out that EPA is likely to contract out the
vulnerability assessment certifications, an approach that leaves sensitive
materials open to public leaks. With a GOP majority in both chambers of the
108th Congress, AMSA spokesman Adam Kranz said the organization would look to
Congress to adopt the House language on data disclosure, perhaps with a new FOIA
exemption.