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From The Mobile Register
New policy keeps
records from public
Critics say federal
regulations are so open-ended that they could be used to 'blanket
everything'
10/28/03
By SEAN REILLY
Washington Bureau
Mobile
residents worried by the potential risks of a liquefied natural gas plant
planned for
Mobile
County could find it difficult to get a full accounting on the subject
from federal regulators, under a new policy limiting the flow of
information to the general public.
The restrictions,
approved by the Federal Energy Regulatory Commission in February, are
intended to clamp down on release of public records that might be helpful
to would-be terrorists plotting an attack on pipelines or power plants.
But if ExxonMobil
Corp. gets the go-ahead today from local authorities for its proposed
terminal just south of
Mobile,
critics argue that the policy is so open-ended that the company could also
use it to shield virtually anything from release to the general public.
Although ExxonMobil
spokesman Bob Davis would not comment specifically on what the oil and gas
giant might try to withhold, those records could include accident planning
scenarios and other matters related to possible plant hazards, according
to people familiar with the new policy.
"If a company wants
to be secretive and evasive, they can blanket everything," said Rick
Kuprewicz, a
Seattle-area
pipeline safety consultant.
Kuprewicz knew of
no corporation resorting to that extreme. Already, however, the owner of a
Cove Point, Md., liquefied natural gas terminal has employed the new
policy to keep its emergency response plan and related documents out of
public view, according to the federal commission's Web site.
Although the
commission -- routinely known by its initials, "FERC" -- does allow
individuals and other entities to obtain such records on a "need to know"
basis, they must first file a written request and then sign a
non-disclosure agreement pledging not to share the information with anyone
else.
"Information that
would be of aid to the bad guys is kept out of the public domain," FERC
spokesman Bryan Lee said Friday. The rules also apply to the news media.
Reporters can seek access to restricted information, but are barred from
sharing their findings with readers or viewers.
And because the
policy is so recent, it's not clear how broadly the commission interprets
it. Of the 72 requests answered so far, FERC has fully released the
information sought in all but two, Lee said, and 13 others still in the
review stage.
Asked whether the
commission would recognize parents' right to records that might indicate
possible risks to children at Hollingers Island Elementary School near the
proposed
Mobile
plant site, Lee replied: "That's a hypothetical question and I'm not going
to answer it."
In response to
follow-up written questions from the
Mobile
Register, Lee could not immediately say Monday whether firefighters and
other emergency responders to any potential accident would also have to
apply for permission to see the information.
As the Alabama
State Port Authority plans to vote today on selling ExxonMobil an option
for about 200 acres at the old U.S. Navy home port location just south of
Mobile,
safety has emerged as a core issue in the debate over the proposed $600
million terminal. Should the project go forward, Kuprewicz and other
observers agreed that the controversy could generate a demand for
information that will strain a policy that has so far drawn little notice
from anyone but lawyers and bureaucrats.
"It's going to be a
real big test -- knowing how important these facilities are to the
community, both economically and in terms of potential hazards," said Dan
Guttman, a fellow at the Washington-based Center for the Study of American
Government at John Hopkins University in
Baltimore.
Besides the
Hollingers Island school, numerous homes also lie with in a 1-mile radius
of the proposed plant. Not since the 1970s has anyone sought to build a
liquefied natural gas terminal in such a highly populated area, Lee said.
ExxonMobil and
project supporters tout the liquefied natural gas industry's accident?ree
record over the last four decades. But leading LNG scientists say a fire
affecting a single compartment in a docked tanker could unleash a wall of
fire a half-mile wide and hundreds of feet high. If the fire eventually
spread to the entire contents of a tanker, people two miles away could
suffer second-degree burns, the scientists' research indicates.
In the hands of
FERC:
If the port
authority signs off on the deal today, ExxonMobil would then have to get a
construction permit from FERC, a federal agency of about 1,200 employees
that is overseen by five commissioners. Among other tasks, the commission
is also charged with regulating wholesale electricity markets and granting
permits for interstate natural gas pipelines.
Traditionally, FERC
has operated outside the glare of media attention. Lately, however, its
prominence has been growing, if not always in flattering ways. Last year,
for example, congressional investigators found that Enron Corp had run
rings around commission regulators who should have been a first line of
defense against questionable practices by the scandal-ridden
Houston
energy trading company.
"Over and over
again, FERC displayed a striking lack of thoroughness and determination
with respect to key aspects of Enron's activities -- an approach seemingly
embedded in its regulatory philosophy, regulations and practices,"
concluded the inquiry by Democratic staffers on the Senate Governmental
Affairs Committee.
For the
Mobile
liquefied natural gas terminal, the commission would be at the forefront
of reviewing safety and environmental concerns in a process that could
last a year or more.
In interviews last
week, several gas industry lawyers credited the commission with taking a
thorough approach on that score. In an Oct. 16 letter to Alabama State
Docks Director Jimmy
Lyons,
a top FERC administrator promised "an independent and comprehensive
analysis of the project's impact on public safety." ExxonMobil has touted
that pronouncement in newspaper advertisements.
But in response to
written questions Monday from the Register, FERC spokesman Lee could not
immediately say whether that analysis would be made public. The commission
has also thrown out conflicting messages on the extent of its review. In a
written statement earlier this month, the agency said that it would not
consider hazards posed by the giant LNG tankers when deciding whether to
permit the terminal project.
On Friday, Lee said
the agency will take those hazards into account, but would not say exactly
how.
Others question
FERC's impartiality. As reflected in its mission statement, the commission
sees its top job as securing "dependable, affordable energy."
In June, Commission
Chairman Pat Wood III underscored his agency's desire to help the nation
satisfy its demand for natural gas, both by hastening consideration of new
pipelines and by promoting liquefied natural gas development. While the
commission has approved requests for just five import terminals in the
continental U.S. since the late 1960s, planning for some 25 to 30 in the
United States and Mexico is now under way.
Although the
commission will continue to give "full consideration to environmental and
landowner concerns," Wood stressed, others say that pledge is not borne
out in practice.
"FERC does not turn
anything down," said Gini Cooper, chair of a county landowners association
in rural Virginia that is fighting a 262-mile natural gas pipeline
intended to fuel four North Carolina power plants. "... What we found is
they are not neutral."
Particularly
irksome to Cooper is "pre-filing," a fast-track application route that
allows the company to consult with commission staff before filing its
permit request. Pre-filing is an option that ExxonMobil is considering
with the
Mobile
terminal, spokesman Bob Davis said Friday.
Although not
familiar with the Virginia controversy, Lee said pre-filing helps to weed
out "unsuitable facilities" before they get past the planning stage. Once
the application is filed, Lee said, landowners have the same right to
voice concerns to the commission, which has sometimes redrawn pipeline
routes as a result.
That's not Cooper's
view. In her organization's case, she said, the public comment period
ended "before we could even see where the (pipeline) was going to go."
Who can be
trusted?:
Critics of the
commission's new information policy agree that the terrorist threat is
real, but say the restrictions carry an unreckoned price of their own.
"Are you really
going to trust industry and government to fully protect you?" asked Sean
Moulton, a senior policy analyst with OMB Watch, a Washington, D.C.,
watchdog organization that focuses on "right-to-know" issues.
Ultimately, Moulton
said, companies will run their plants more carefully if they know the
public is watching.
"What they aren't
acknowledging is there is a safety cost," Moulton said. "They say they are
doing this to protect people and save lives, but they are certainly
increasing the risk of injury and loss from everyday accidents at these
facilities."
Under FERC's
policy, companies have the right to designate any filings as "critical
energy infrastructure information" that will be kept off-limits to the
general public. Although the commission has warned filers against abusing
the process, Lee did not know Monday whether any penalties were in place
to deter that practice.
Davis at first
denied that ExxonMobil would have anything to do with designating
sensitive information. When told that the commission's written order
contradicted that assertion, Davis repeated earlier statements that the
company is "going to submit all appropriate information under FERC
guidelines."
He declined to say
this weekend whether ExxonMobil managers would seek to keep accident
planning scenarios and other risk-related information away from the
general public.
"I'm not going to
speculate other than what I have already said," Davis said.
But in Maryland, a
subsidiary of the Virginia-based utility, Dominion, has already employed
the new policy to restrict access to its emergency response plan, as well
as operations and safety manuals, for its Cove Point liquefied natural gas
terminal on Chesapeake Bay.
The terminal lies
some 3 miles away from a nuclear power plant. It sparked controversy two
years ago when FERC approved its reopening and expansion one month after
the September 2001 terrorist attacks.
"What were you
thinking?," U.S. Sen. Barbara Mikulski, D-Md., angrily wrote Wood, the
commission chairman, in a letter that demanded the involvement of the FBI
and the head of the federal homeland security office in reviewing the
project.
The commission
reopened the case soon after, but then quickly reaffirmed its earlier
decision, saying that neither a tanker nor a terminal fire would threaten
the nuclear plant.
Mikulski could not
be reached for comment; the Dominion subsidiary, known as Dominion Cove
Point LNG, LP, had no response Monday to specific questions from the
Register.
(Assistant Managing
Editor Bill Finch contributed to this report.) |
