The Society of Environmental Journalists (SEJ) has taken a stand opposing secrecy language in a bill approved May 23, 2006, by the Senate Environment Committee. The bill is so vaguely drawn that it could put a reporter in jail for writing about almost any aspect of sewage policy.
The bill creates a new statutory exemption to the Freedom of Information Act for a broad swath of information related to sewage system performance, policy, and management. But it goes well beyond that by making it a criminal offense for anyone not just a government official to disclose such information if it is contained in a "vulnerability assessment."
The information, which could include data on stormwater overflows or industrial pretreatment compliance, would by local agency fiat be made so ultra-secret that not even the administrator of the Environmental Protection Agency would be allowed to possess copies of it although he/she is obligated by law to regulate overflows and pretreatment.
The bill authorizes EPA's administrator to provide grants to sewage authorities to prepare "vulnerability assessments" and emergency response plans. It does not require local agencies to actually prepare such plans.
The bill is in some ways similar to earlier versions which passed the House and Senate Environment Committee during the previous Congress, but never became law. Those bills clearly focused the assessments on vulnerability to acts of terror but the new bill, sponsored by Senate Environment Chairman James Inhofe (R-OK), expands their scope to cover anything that could cause a "disruption of service event." That term is defined so broadly as to include combined sewer overflows, industrial pretreatment violations, hurricanes, or just about any failure of a treatment plant to do its job of protecting health and environment.
The secrecy provisions apply not only to the original vulnerability assessment documents themselves, but also to "a reproduction of a vulnerability assessment, or any information derived from a vulnerability assessment." The legislative language is silent as to whether that includes information otherwise or previously available to the public that might be included by the sewage utility in its vulnerability assessment. But it could easily be read as a way of taking previously public information out of the public domain.
One of the most bizarre aspects of the bill is that it specifically forbids the EPA administrator from possessing a copy of one of the vulnerability assessments he is authorized to fund. That could make it hard for the administrator to oversee the grants he is authorized to make, and offer a field day for fraud, waste, and abuse. The administrator is allowed to view the documents, but not possess them. Such mechanisms are an increasingly common strategy for evading federal FOI law.
Sewage plants aren't normally thought of as terrorist weapons. The big "secret," in this case, is actually no secret at all: chlorine. Chlorine can cause death when breathed, and it is far and away the biggest security issue at any sewage plant. Sewage plants use large amounts of chlorine gas as a disinfectant for finished wastewater, and the release of even some of that chlorine in a densely populated area could cause the deaths of hundreds of thousands of people.
A growing number of sewage authorities are switching from hazardous chlorine gas to less dangerous alternatives like sodium hypochlorite or chloramines voluntarily and on their own initiative. The alternatives do have some drawbacks, but instant mass casualties in the event of a spill are not among them. According to one study, 116 of the 206 largest sewage plants no longer use chlorine in gas form. Some others, however, hope to keep using it because it is cheap and effective.
It is unclear whether the purpose of the new bill is to encourage sewage authorities to make their plants safer or to provide cover as they continue to endanger hundreds of thousands of people. In his remarks introducing the bill, Sen. Inhofe seemed to discourage any "federal mandate" for chlorine replacement. During its markup, the committee defeated an amendment that would have required utilities to consider it. The effect of the Inhofe bill intentional or otherwise will be to chill any public discussion of the chlorine issue.
But publicity not secrecy so far has a better track record for protecting people from chlorine. A case in point is a series done in 1999 by the Washington Post exposing the fact that large amounts of chlorine at the District of Columbia's massive Blue Plains sewage treatment plant were being handled with rusty, leaky equipment and sloppy safety procedures. It also mentioned that a chlorine plume from a leak at Blue Plains could easily reach the U.S. Capitol about three miles away. The results were immediate. Blue Plains tightened its procedures. The plant dragged its feet for a couple more years about switching from chlorine to another disinfectant. But two months after 9/11 the switch was complete.
In this case, the vulnerability assessment was done by a newspaper, and it got much better results than any that had been done by the local sewage authorities.
SEJ on May 22, 2006, signed on to a letter to committee leaders opposing secrecy provisions in the bill (S 2781). Also signing the letter were the Coalition of Journalists for Open Government, American Society of Newspaper Editors, Associated Press Managing Editors, Association of Alternative Newsweeklies, California First Amendment Coalition, Capitolbeat, National Conference of Editorial Writers, National Freedom of Information Coalition, Radio-Television News Directors Association, Reporters Committee for Freedom of the Press, Society of Professional Journalists, and Washington Coalition for Open Government.