Thursday, February 12, 2009

Reader E-Mail – 02-10-09

A long time reader, Brandon Williams, sent me a couple of e-mails on Tuesday about my first blog posting of the same day; the one about enforcement activities. He used to work on the US Chemical Weapons Convention (CWC) support teams that helped facilities with the international inspection teams that came by to check CWC compliance. (Personal Note: having gone through CWC inspections at two different facilities I can attest to how professional and helpful these support teams were. As best we can tell Brandon was not on either team that I worked with). Anyway, based on his CWC team experience Brandon questioned the propriety of EPA and DHS sharing data on facilities in the manner I suggested. Brandon noted that their rules, and the supporting legislation, prohibited these CWC teams from sharing information with either EPA or OSHA. He felt that this was done to allow open communications and encourage facilities to freely share information with the assistance team. He thinks that the DHS inspectors doing the initial Site Security Plan visits (the first visits to verify the adequacy of the plan, not the later compliance audit) will need the same level of open communications that the CWC teams were able to engender at most facilities. Legality of DHS-EPA Information Sharing I could find nothing in the Section 550 authorizing language that would prohibit DHS from sharing information with either EPA or OSHA. I don’t think that Congress even considered the matter when they were preparing that abbreviated authorization. This may be something that Congress might want to consider when they write the re-authorization legislation. They could pattern the language after the following two sections of the CWC Implementation Act of 1998 (thanks to Brandon for digging up the details):
Sec 304(E)(2)(G) - Procedures for Inspections: no inspection under this Title shall extend to... "data maintained for compliance with environmental or occupational health and safety regulations" Sec 303(B)(2)(B) - Authority to Conduct Inspections: "no employee of the Environmental Protection Agency or Occupational Safety and Health Administration accompanies any inspection team visit"
Provisions like these may make the old joke, “I’m from the government, and I’m here to help you” a little less painfully true. At least the initial visit should be a true assistance visit with the inspector providing an outside view point on the facility efforts to comply with the Risk Based Performance Standards. The post-approval compliance inspection may be a different story; but until the facility’s SSP is approved, the inspection is supposed to help the facility adopt a compliant plan. Agency Level Information Sharing What I was suggesting was not inspector level sharing of inspection information. It was directorate level use of EPA developed information that is held in a publicly available data base (the data base was available on-line until shortly after 9/11, but it is still available in-person at EPA reading rooms). The data would be the list of facilities that have submitted RMP information to the EPA. It would include the RMP chemicals involved and the amount held on site. While this is publicly available information (it was used, for example, to develop the list of 101 high risk chemical facilities in the CAP Chemical Security 101 report), there might be some concerns about using this for government enforcement actions by another agency. To alleviate that concern, Congress could include language in the re-authorization legislation requiring DHS to use this data to identify facilities for DHS to contact to require a Top Screen submission. This would stop facilities from challenging enforcement actions based on a self-incrimination defense. Any subsequent enforcement actions would be based on failure to obey a directive from the Secretary to complete a Top Screen rather than failure to file based on the EPA data.

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