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Watered-Down Whistleblower Provision Added To Chemical Security Bill

By Douglas P. Guarino

Global Security Newswire

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. 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. (Erich Schlegel/Getty Images)

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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