Watered-Down Whistleblower Provision Added To Chemical Security Bill

A firefighter walks among the remains of an apartment complex next to the fertilizer plant that exploded and killed 14 people in April 2013 in West, Texas. A House committee on Wednesday approved a bill meant to extend the life of a controversial Homeland Security Department program for regulating such facilities.
National Journal
Douglas P. Guarino
April 30, 2014, 8:08 a.m.

A House com­mit­tee on Wed­nes­day ap­proved a watered-down le­gis­lat­ive meas­ure meant to en­cour­age whis­tleblowers to re­port chem­ic­al-se­cur­ity con­cerns.

Dur­ing markup of a bill meant to re­new con­tro­ver­sial Chem­ic­al Fa­cil­ity Anti-Ter­ror­ism Stand­ards, Rep­res­ent­at­ive Yvette Clarke (D-N.Y.) in­tro­duced an amend­ment that would have re­quired the Home­land Se­cur­ity De­part­ment to es­tab­lish a form­al whis­tleblower pro­cess.

Ac­cord­ing to Clarke, Con­gress “might have found out soon­er about the massive ad­min­is­tra­tion de­fi­cien­cies” that plagued the chem­ic­al se­cur­ity pro­gram in re­cent years had such a pro­cess ex­is­ted. She said the United Steel­work­ers sup­por­ted her pro­posed amend­ment to the so-called “CFATS” bill.

“There are those that would ar­gue that the work­ers who op­er­ate and main­tain a fa­cil­ity know the most about what needs to be done to ad­dress se­cur­ity vul­ner­ab­il­it­ies,” Clarke said dur­ing the Wed­nes­day ses­sion. “Presently a chem­ic­al se­cur­ity work­er puts his job at risk when he comes for­ward to re­port to DHS se­cur­ity vul­ner­ab­il­it­ies or de­fi­cien­cies at a fa­cil­ity reg­u­lated by the CFATS pro­gram.”

Un­der Clarke’s amend­ment, the de­part­ment would have been re­quired to ac­know­ledge re­ceipt of the in­form­a­tion, con­sider wheth­er it needs to be ad­dressed and to keep the iden­tity of the whis­tleblowers con­fid­en­tial. Em­ploy­er re­tali­ation also would have been pro­hib­ited.

Com­mit­tee Re­pub­lic­ans stripped the five-page amend­ment of most of these pro­vi­sions, however, leav­ing only a single sen­tence re­quir­ing the de­part­ment to pub­lish on its web­site and in oth­er pub­licly avail­able ma­ter­i­als “the whis­tleblower pro­tec­tions that an in­di­vidu­al provid­ing such in­form­a­tion would have.”

Clarke agreed to the change “so that we can achieve some meas­ure of pro­gress on the is­sue,” she said at the markup. However, based on con­ver­sa­tions com­mit­tee Demo­crats have had with DHS of­fi­cials in re­cent weeks, Clarke said it was un­clear what, if any, ex­ist­ing whis­tleblower pro­tec­tions the de­part­ment would be able to cite in such lit­er­at­ure.

“We ap­pre­ci­ate their will­ing­ness to en­gage but were troubled that the de­part­ment was un­able to provide a defin­it­ive state­ment as to what pro­tec­tions are avail­able to someone who re­ports a CFATS vi­ol­a­tion on the pro­gram tip line,” said Clarke, re­fer­ring to a phone line the de­part­ment main­tains for people in­ter­ested in re­port­ing chem­ic­al se­cur­ity con­cerns.

Rep­res­ent­at­ive Patrick Mee­han (R-Penn.) said, however, that in­dustry of­fi­cials had con­cerns with the amend­ment as it was ori­gin­ally draf­ted. In­dustry of­fi­cials be­lieve whis­tleblower le­gis­la­tion “should define the para­met­ers of the short­com­ings that would be con­sidered vi­ol­a­tions,” Mee­han said. It should also “de­scribe the scope of the private em­ploy­er’s li­ab­il­ity,” the law­maker ad­ded.

Mee­han said it was worth not­ing that there are “at present nu­mer­ous state laws pro­tect­ing private sec­tor whis­tleblowers.” The fed­er­al Oc­cu­pa­tion­al Safety and Health Ad­min­is­tra­tion also is­sues rel­ev­ant guidelines, he said.

Clarke’s pro­vi­sion was one of sev­er­al Demo­crat­ic amend­ments to the CFATS bill that the com­mit­tee’s Re­pub­lic­an ma­jor­ity ac­cep­ted in di­luted form.

A long­stand­ing con­cern of some Demo­crats in Con­gress has been that wa­ter-treat­ment plants are ex­empt from the DHS pro­gram, which is meant to pro­tect com­munit­ies situ­ated near fa­cil­it­ies that handle dan­ger­ous chem­ic­als from fall­ing vic­tim to massive ex­plo­sions caused by a pos­sible ter­ror­ist at­tack.

Re­pub­lic­ans have pre­vi­ously blocked at­tempts to re­move this ex­emp­tion, but on Wed­nes­day ac­cep­ted an amend­ment offered by Rep­res­ent­at­ive Ben­nie Thompson (D-Miss.) re­quir­ing the de­part­ment to “com­mis­sion a third-party study to as­sess vul­ner­ab­il­it­ies to acts of ter­ror­ism” as­so­ci­ated with the pro­gram.

Thompson said “a key ele­ment of the re­view would be con­sid­er­a­tion” of the wa­ter-treat­ment fa­cil­ity ex­emp­tion, which he said DHS of­fi­cials think cre­ates a “se­cur­ity gap that must be ad­dressed.”

The com­mit­tee also ap­proved an amend­ment by Clarke es­tab­lish­ing de­part­ment over­sight of audits and in­spec­tions of chem­ic­al fa­cil­it­ies com­pleted by third-party con­tract­ors on the de­part­ment’s be­half. A re­lated Clarke amend­ment the pan­el ap­proved would re­quire such con­tract­ors to re­port to the de­part­ment with­in 24 hours any vi­ol­a­tions they may dis­cov­er.

Clarke dur­ing a pri­or ses­sion had un­suc­cess­fully at­temp­ted to pro­hib­it third-party con­tract­ors from be­ing per­mit­ted to con­duct in­spec­tions in lieu of DHS of­fi­cials.

The le­gis­la­tion still does not in­clude pro­vi­sions favored that would give the de­part­ment the au­thor­ity to re­quire spe­cif­ic se­cur­ity up­grades at fa­cil­it­ies. So-called “in­her­ently safer tech­no­logy” re­quire­ments are favored by labor uni­on of­fi­cials and some Demo­crats, but op­posed by Re­pub­lic­ans and in­dustry of­fi­cials.

An in­ter­agency pan­el is con­sid­er­ing mak­ing such re­quire­ments un­der an ex­ec­ut­ive or­der Pres­id­ent Obama is­sued fol­low­ing the deadly ex­plo­sion of a fer­til­izer plant in West, Texas, last year, but in­dustry of­fi­cials are lob­by­ing against the pro­pos­al.

The CFATS bill, mean­while, still has to be ap­proved by the full House and Sen­ate in or­der to be­come law.

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