HR 3258 Analysis – Employee Participation

This is another in a continuing series of blog postings about the recently introduced HR 3258, the Drinking Water System Security Act of 2009. This bill is designed to be a companion bill to HR 2868, the Chemical Facility Anti-Terrorism Act of 2009, extending chemical facility security rules to water treatment facilities. Previous postings in this series include: HR 3258 Section-by-Section Analysis HR 3258 Analysis – Political Background HR 3258 Analysis – 50 Enforcement Agencies HR 3258 Analysis – Substance of Concern HR 3258 Analysis – Vulnerability Assessments HR 3258 Analysis – IST Assessments HR 3258 Analysis – VA-SSP Review HR 3258 Analysis – Protected Information This legislation, like its companion bill HR 2868, specifically addresses the roles of employees in the security process. While certainly a part of labor agenda, these provisions address a reality that facility employees must perform a number of critical roles in addressing the protection of the facility from ‘intentional acts’. Role of Employees Section 1433(f)(1) requires that site security plans and emergency response plans must address the specific roles that employees are “expected to perform to deter or respond to the intentional acts”. While this would seem to be an obvious requirement for any such plan, this has been identified by labor unions as a significant shortcoming in many security plans that they have seen. The inclusion of ‘emergency response plans’ in this section is something that is not seen in HR 2868. An emergency response plan should be an integral part of any security or safety plan. It is should be included as a recognition that there is no such thing as a foolproof plan. Employee Training This legislation carries the same 8-hour training requirement for facility employees that is found in HR 2868. Section 2103(f)(2) of that legislation provides an extensive list of areas that must be covered in that 8-hour training requirement. That is lacking in this legislation. Without this listing of coverage requirements, the 8-hour training requirement is excessive. One provision of the HR 2868 legislation that certainly needs to be transferred to this legislation is the requirement to allow “instruction through government training programs, chemical facilities, academic institutions, nonprofit organizations, industry and private organizations, employee organizations, and other relevant entities that provide such training” {HR 2868, §2103(f)(2)(H)}. With the small size of many of these facilities with their limited training resources it would be extremely difficult to develop such training programs in-house. Section 1433(q)(4) provides for a federal grant program to provide monetary support for training for facility employees and contractor employees. The grant program would be administered through the National Institute of Environmental Health Sciences. Training grants under this program could also be used to train first responders and emergency response personnel that would respond to incidents at the facility. An odd provision of this grant program, and a similar program under HR 2868, is that the monies would not go to the covered facility but to ‘eligible entities’. An eligible entity would be “a nonprofit organization with demonstrated experience in implementing and operating successful worker or first responder health and safety or security training programs” {§1433(q)(4)(D)}. There is no money specifically appropriated in §1433(r) to fund these grants. Employee Participation From the perspective of labor organizations the most important provision of this section is found in §1433(f)(3) which outlines the requirements for employee participation in the development of vulnerability assessments, site security plans and emergency response plans. Labor has long maintained that there members have an intimate knowledge of the facilities in which they work that would be invaluable in the development of safety and security plans. The language of this legislation requires that there must be at least one supervisory and one non-supervisory employee involved in the development of these plans. Where there is a union that is certified or recognized as a bargaining agent for employees or contractors at the covered facility, each such union will have a representative involved in the development of these plans.