Critics Claim New Legislation Could Subvert Right-to-Know Laws

Nov. 28, 2001
Critics question how new national security measures could impact reporting to federal agencies like EPA and OSHA.

As the Bush Administration and Congress move to protect national security, many Americans are wondering if laws created to inform and protect the public will get trampled in the process.

One of the new proposed laws to come under scrutiny is the Critical Infrastructure Information Act of 2001, sponsored by Sens. Robert Bennett (R-Utah) and Jon Kyl (R-Ariz.). The legislation requires the federal government to keep confidential any information that industry "voluntarily" provides to the government.

"With more than 85 percent of critical infrastructure entities owned and operated by the private sector, voluntarily shared information leads to a more focused understanding of threats and empowers government, industry and private citizens to mitigate risk," said Bennett when he introduced the bill in the Senate. "Ultimately, this bill will help assure the reliable delivery of services critical to the nation''s economy and security."

Critical infrastructure includes key sectors such as financial services, telecommunications, transportation, energy, emergency services, and government essential services whose disruption or destruction would greatly impact the economy and national security. According to Bennett, the rapid development of technology and its interconnectivity have made it easier to attack critical U.S. infrastructures with physical or computer based attacks than at any other time in history.

The intent of the bill is to keep certain kinds of information out of terrorists'' hands by securing information that companies share voluntarily. In theory, the purpose of the legislation is to encourage corporations to share information that would help protect the United States from terrorist attacks, particularly against computer systems. It would bar the federal government from disclosing the information without obtaining written consent from the submitting company.

According to Bennett, the bill allows a critical infrastructure entity - a chemical company, for example - to voluntarily submit sensitive information, which would normally not be shared, to one of 13 designated federal agencies (including the Environmental Protection Agency and the Occupational Safety and Health Administration) and request information be protected. Doing so means that specific information shared with a federal agency for analysis, warning or interdependency study will not be disclosed in response to a request under the Freedom of Information Act (FOIA).

Some critics claim the bill could undermine certain current environmental and occupational laws. In one example cited by critics of the bill, a company could do an internal audit of its compliance with occupational, environmental, civil rights or tax laws, discover numerous violations, write them up in a report, and hand it over to the Homeland Security Office. The regulatory agencies could not pursue the violations, no matter how egregious, because they could not disclose the information in court in a civil action without the company''s consent.

In extreme cases, the legislation could stop federal officials from warning local communities about acutely toxic releases voluntarily disclosed by companies, making the public less safe, not more.

According to the National Resources Defense Fund, the Bennett-Kyle bill "would give the manufacturing sector unprecedented immunity from the civil consequences of violating the nation''s environmental, tax, fair trade, civil rights, labor, consumer protection, and health and safety laws. Simply by declaring that they are submitting information ''voluntarily,'' companies would be entitled to invoke a prohibition on federal government disclosure of information, even to a court in a civil enforcement action."

Bennett and Kyl could offer the bill as an amendment to bioterrorism legislation that the Senate is expected to consider as early as this week.

by Sandy Smith ([email protected])

About the Author

EHS Today Staff

EHS Today's editorial staff includes:

Dave Blanchard, Editor-in-Chief: During his career Dave has led the editorial management of many of Endeavor Business Media's best-known brands, including IndustryWeekEHS Today, Material Handling & LogisticsLogistics Today, Supply Chain Technology News, and Business Finance. In addition, he serves as senior content director of the annual Safety Leadership Conference. With over 30 years of B2B media experience, Dave literally wrote the book on supply chain management, Supply Chain Management Best Practices (John Wiley & Sons, 2021), which has been translated into several languages and is currently in its third edition. He is a frequent speaker and moderator at major trade shows and conferences, and has won numerous awards for writing and editing. He is a voting member of the jury of the Logistics Hall of Fame, and is a graduate of Northern Illinois University.

Adrienne Selko, Senior Editor: In addition to her roles with EHS Today and the Safety Leadership Conference, Adrienne is also a senior editor at IndustryWeek and has written about many topics, with her current focus on workforce development strategies. She is also a senior editor at Material Handling & Logistics. Previously she was in corporate communications at a medical manufacturing company as well as a large regional bank. She is the author of Do I Have to Wear Garlic Around My Neck?, which made the Cleveland Plain Dealer's best sellers list.

Nicole Stempak, Managing Editor:  Nicole Stempak is managing editor of EHS Today and conference content manager of the Safety Leadership Conference.

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