Wednesday, December 2, 2009

Regulatory Coordination

In yesterday’s blog about the chlorine rail cars in Washington State, I made a comment about the coordination between ISCD and TSA about who would regulate that situation. While I was writing that I was thinking about an email I received from a reader over the weekend. The reader was pointing me to some language in the Senate Report 111-31 that dealt with similar issues. Senate Mandates Now S Rept 111-31 was the report that the Senate Appropriations Committee prepared when they passed S 1298. Now that bill officially died when the Senate passed HR 2892 the House version of the DHS appropriations bill. But, there were two interesting provisions of the report that still survive. Both are found on page 8 of the report under the heading “Immediate Office of the Deputy Secretary”. Those two requirements are:
“The Committee directs the Deputy Secretary to coordinate efforts and to work with the White House Office of Domestic Policy to develop a coordinated and integrated approach for securing chemical facilities.” “The Committee directs the Department to provide a report to the Committee no later than 90 days after the date of enactment of this act, and quarterly thereafter, on the agency’s efforts to coordinate chemical security across departments, particularly in regard to ensuring the ability to conduct prompt and comprehensive Federal safety investigations of chemical accidents.”
Now, since the Deputy Secretary does not work for the Senate and these requirements are not included in law, just a Committee Report, they do not actually have to be complied with. On the other hand, the Appropriations Committees does control the money the Department receives each year, so there is a massive incentive for the Deputy Secretary to meet these requirements. Now the first requirement was something that the Department was already undertaking. Since it was obvious that the Coast Guard, TSA and ISCD all have regulatory authority over different aspects of chemical security, sometimes at the same facility, it was just good governance for the three programs to be coordinated where possible. Most of the work to date has been between the Coast Guard and ISCD, but there have been some discussions about rail secure areas between TSA and ISCD (and presumably between TSA and the Coast Guard). The inclusion of the Office of Domestic Policy in the requirement simply put a little more political pressure on the ‘coordination’ efforts. The second requirement is a tad bit more complex. The reporting on the previously described coordination efforts is relatively straight forward and just supplies a little bit of congressional oversight to the process. The part about the ‘Federal safety investigations of chemical accidents’ is a bit trickier to follow since DHS has little if anything to do with such investigations. It can be traced back to the influence of the senior Senator from West Virginia (and the whole Senate for that matter), Robert Byrd, and a fatal chemical accident in August of 2008. SSI and the CSB Long time readers of this blog will be well familiar with the accident at the Bayer CropScience facility outside of Institute, WV. The accident and its immediate aftermath were enough of a problem for the controversial Bayer facility. The poorly executed attempt to stop the Chemical Safety Board from publicly disclosing problems with the facility’s storage of methyl isocyanate (MIC) by declaring the information to be Sensitive Security Information (SSI) was a political nightmare, culminating in an embarrassing hearing before the House Energy and Commerce Committee. Part of the political fall out from that fiasco was the inclusion of §561, the American Communities’ Right to Public Information Act, in the final version of the Appropriations Bill. That section amended various portions of 49 USC pertaining to SSI, in an attempt to make it difficult to hide incompetence behind SSI. As I noted in an earlier blog, the language of that section really did little to accomplish that goal other than give the regulators at DHS the authority to amend their regulations to make it ‘agin the law’ to falsely claim SSI protection. It certainly did nothing to address the underlying issue of potential conflicts between real SSI information and the CSB accident reporting system. As I noted in yet another blog, this is a complex situation. The CSB certainly needs access to all available information in the conduct of their investigations, protected or not. DHS can certainly grant blanket approval of disclosure of SSI or CVI to CSB investigators. The problem arises when the CSB is determining what it can include in its public reports about the accident. I firmly believe that the CSB ought to be legally entitled to disclose any security data that lead to, or aggravated the results of a chemical accident that lead to death, significant injuries or substantial property damage. The whole purpose of the CSB mandate is to look at chemical accidents, determine their root cause, and make sure that they do not occur elsewhere. That can only be done under the clear gaze of public scrutiny. Unfortunately, neither §561 nor the provisions of S. Rept. 111-31 provide adequate authority to allow for that disclosure. It is going to take a public law requiring full disclosure of information to the CSB and allowing the CSB to declassify such information where necessary. That is the only way that interdepartmental conflicts of this sort can be resolved, no matter what Sen. Byrd desires.

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