Thursday, June 18, 2009

HR 2868: Citizen Suits

The hearing earlier this week on the Chemical Facility Anti-Terrorism Act (CFATA) of 2009 showed that there was something worse, from the chemical industry’s point of view, than mandatory IST requirements. This year’s legislation added §2116, Citizen Suits. Essentially, this section adds the potential for law suits initiated by private citizens or activist groups to enforce provisions of the legislation. This provision has a history in the environmental and product liability arena. It has the advantage, particularly in those arenas, of adding additional eyes to a regulatory regime with an extensive history of limited and weak enforcement. Because these types of law suits are expensive and there are limited provisions for reimbursement, the actual number of law suits filed has been relatively small. It is interesting that we had heard nothing about this provision until the April 3rd committee draft became available (which I didn’t see until the end of May). It was certainly not in last year’s bill. Furthermore, it hadn’t been discussed in any of the CFATA advocacy letters or articles that I have seen. So the obvious question is why did it appear now, out of whole cloth? I am not the first to ask this question (see the article by Carter Wood at nor will I be the last. But, I do have a possible answer. I certainly cannot read Chairman Thompson’s mind, but I would not be surprised to hear that it was the fiasco in Institute, WV earlier this year that provided the impetus to adding this provision to CFATA. I would be willing to bet that one of the first actions brought under this provision (if it remains in the legislation) would be against Bayer CropScience for failure to reduce the risk of a terrorist attack by eliminating the very large methyl isocyanate storage tank. I also suspect that it would be filed way too prematurely to do any good. Not Too Useful? The Carter Wood article makes the point that, because of information security restrictions, it will be very difficult for an outside person or organization to have an adequate source of data to bring action under these provisions. As Chairman Thompson pointed out a number of times in Tuesday’s hearing, this section does nothing to lower the prohibition about sharing ‘classified’ information. This is certainly a good point, and it will lower the number of potential law suits. On the other hand, Chairman Thompson has specifically written into various points in the legislation provisions where facility management is required to share detailed and complete information with a natural adversary, organized labor. It does not take much of an imagination to predict that the majority of non-nuisance law suits filed under this section will be initiated by labor unions. They will be the only organizations with legal access to all of the data necessary to have a chance to prevail. I am not so sure that I am convinced that this is entirely a bad thing. Now I have been fortunate to work in chemical facilities where management took a proactive interest in safety and responded with real interest to safety suggestions made by hourly employees and low level salaried minions like myself. One does not have to pay real close attention to the news to see that my experience is not universally shared. Whether it is due to incompetence, venality, or simply running a shoe string operation, there are apparently a significant, if not necessarily large, number of facilities that do not even try to maintain the facade of concern for safety or security. Unless Congress comes up with significant increases in the manpower budget for DHS inspectors, the agency is going to have a hard time weeding out these facilities and still provide reasonable assistance and oversight to the vast majority of companies that legitimately want to do the right thing. If labor unions and Local Emergency Planning Committees (who will have access to some security data) can use §2116 to shine a light into these shadow facilities and identify some serious security shortcoming, then I think that the cost of the few short-lived frivolous law suits will be worth bearing. Besides the provisions for awarding legal fees and experts fees to the prevailing or the “substantially prevailing party” {§2116(f)} should help to limit entirely frivolous suits. Security Information Protection Witnesses from both DHS and industry raised concerns during this week’s hearing that the typical discovery process would inevitably lead to the inadvertent disclosure of sensitive security information. They were not convinced that the standard information protection scheme outlined in this regulation would necessarily be equal to the task. I think that these concerns are legitimate if possibly overstated. This could easily be remedied by adding wording that specifically prohibits the disclosure of any information described in §2110(g) during the discovery process. While this won’t completely stop the unintentional leaking of sensitive security information during these proceedings, it will certainly reduce it to mere seepage. A Barrier to Bipartisan Support for CFATA It was obvious in Tuesday’s hearing that the inclusion of §2116 in CFATA is currently one of the barriers to the bipartisan support for this bill that Chairman Thompson would like to see. From the tone of the Chairman’s comments during the hearing it is unlikely that this section will be removed from the legislation. I think that adding language in the bill, and in the Committee report on the bill, making it clear that the intent of Congress was not to lessen the legitimate protection of sensitive security information during proceedings under this section would go a long way to addressing the legitimate concerns about the inadvertent disclosure. That may be enough to allow for some bipartisan support.

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