Seeking the Right Balance

Security vs. the community's right to know. As far as disclosing to the general public information about the storage and use of chemicals at industrial facilities and utilities, there is an inherent conflict between the need to provide enough information to protect the public from chemical emergencies and the competing necessity to prevent sensitive information from getting into the hands of terrorists who would try to use it to cause mass destruction.

In the past 20 years, the pendulum has swung back and forth in connection with this controversial issue. In 1984, the ultimate worst-case scenario involving industrial chemicals occurred when the Union Carbide facility in Bhopal, India, had an accidental release of methyl isocyanate, causing the deaths of several thousand people and adverse health effects in the more than 100,000 survivors. Most of the victims were residents who lived near the facility.

In the wake of this tragedy, the Emergency Planning and Community Right-To-Know Act (EPCRA) was enacted in the United States in 1986. The new law ushered in a new era of transparency concerning the public disclosure of the types and amounts of hazardous substances stored on-site at facilities. This trend toward greater public access to environmental information was initiated in 1966 by the passage of the Freedom of Information Act (FOIA), which required public agencies and officials to disclose governmental information to the public, unless they had a very good reason to keep the information confidential.

Of course, after September 11, 2001, the images of Bhopal became juxtaposed against the images of the large-scale destruction and human casualties in New York City and Washington, D.C., caused by Al Qaeda terrorists. Since the 9/11 event, there has been a strong movement toward limiting the public's access to environmental information. Numerous governmental agencies removed information that was formerly posted on their Web sites due to the fear that it would be misused by terrorists.

This growing trend of secrecy is exemplified by a recent interim final rule published Feb. 20 (69 Federal Register 8074). Under this new regulation, chemical plants, drinking water treatment facilities and other industries now can voluntarily submit information to the federal government regarding their critical infrastructure and be assured the information will not be disseminated to the public. This rule was mandated by the Homeland Security Act of 2002 and provides that data submitted to the U.S. Department of Homeland Security concerning critical infrastructure will be exempt from disclosure under FOIA.

Certain environmental and right-to-know organizations are criticizing the interim rule on the grounds that it is vague and could allow companies to cover up information that may pertain to corporate wrongdoing. According to OMB Watch (www.ombwatch.org), a nonprofit group that promotes governmental accountability and citizen participation in public policy decision making, the problem is that under the new rule the Department of Homeland Security is not able to use any of the critical infrastructure information to take any regulatory action, such as issuing an order for a company to fix a problem or conducting an inspection for environmental problems.

In contrast, business associations are in favor of more limited public access to information concerning certain industrial operations. For example, the American Chemistry Council (www.americanchemistry.com) supports the above referenced interim rule because it "will improve the ability of our nation's critical infrastructure to provide security related information to key government partners without concern about unnecessary and potentially dangerous public release."

Stephen Dycus, a professor at the Vermont Law School who specializes in national security and the law, has expressed concern about the growth of government secrecy since the attacks on 9/11. In the article, "Does Secrecy Equal Security?" published in the February 2004 issue of the Journal of the National Institute of Environmental Health Sciences, he states, "What's tricky is finding the right balance between protection from terrorism on one hand and providing enough information for the neighbors so they can keep themselves safe. Throughout the Cold War, in the name of national security, the government didn't tell the neighbors squat about anything -- and the results, we now know as in the Love Canal case of the 1970s, were catastrophic. If we're going to restrict some information, it needs to be a very precise decision. We need to figure out what's too dangerous and just restrict that. But now, government is using a sledgehammer."

How do we keep another Bhopal from happening, while at the same time preventing terrorist attacks against U.S. industrial facilities? Undoubtedly, this debate will continue as citizens, industry and government try to reach a consensus on the best way to handle sensitive data in a way that protects public safety and U.S. business concerns.


This editorial originally appeared in the May 2004 issue Environmental Protection, Vol. 15, No.3.

This article originally appeared in the 05/01/2004 issue of Environmental Protection.

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