National Response Center Changes Leak Report Policy

The National Response Center has changed its policy on releasing chemical accident reports, making it much harder for journalists to gather crucial information about hazardous materials spills on deadline.

Under the new policy, the center will only release the reports after receiving and processing a federal Freedom of Information Act request. Center staffers will also "scrub" any allegedly confidential information from the reports, a process that will delay their release for two weeks or more.

It is not clear when the center changed its policy, and so far agency officials have not even made a copy of the policy change itself available to the public.

But the policy change adds the center to a list of other agencies — from EPA and the Department of Energy to the federal Mine Safety and Health Administration — that have in recent years begun demanding FOIA requests for what were previously simple questions for daily news stories.

The National Response Center was set up under various laws to be the single federal point for emergency reporting of all oil and chemical spills, leaks, and releases. The purpose of many of the laws is not only to ensure prompt public safety responses like evacuation and environmental responses like containment and cleanup — but also to effectively warn and inform the public. The mandates include the Clean Water Act, the Oil Spill Act, the Emergency Planning and Community Right-To-Know Act (EPCRA), among others.

Many of those laws require oil and chemical release information to be made public.

Federal FOIA law clearly establishes categories of information that must be given to the public without formal FOIA requests. In September 2005, SEJ's Freedom of Information Task Force outlined in a landmark report, "A Flawed Tool," the "alarming trend" of agencies requiring a FOIA request for material that should be given to the public without one.

For years, the National Response Center has been a great source of accurate and timely information for journalists covering chemical leaks, oil spills, and other similar incidents in their communities. A phone call to the center would produce a quick fax — and letter email — of a release report filed with the center by a local chemical plant, refinery or other facility using hazardous materials.

As government agencies go, the NRC was particularly helpful, providing information quickly and without political spin. Often, when local chemical companies or emergency responders were busy dealing with an emergency or simply tight-lipped, the NRC was a go-to source for information about what kind of and how much of a hazardous material was released and from what facility.

SO WHAT IS THE NATIONAL RESPONSE CENTER (NRC)?

Located at U.S. Coast Guard headquarters, the NRC is the national communications center that is continuously manned for handling emergency response activities under the National Oil and Hazardous Substances Pollution Contingency Plan. (See US EPA's Contingency Plan Overview). More commonly called the National Contingency Plan, or the NCP, the plan is the federal government's blueprint for responding to both oil spills and hazardous substances releases. The first National Contingency Plan was developed and published in 1968 in response to a massive oil spill from the tanker Torrey Canyon off the coast of England the previous year.

While the National Contingency Plan is really a multi-agency effort, the NRC is operated by the Coast Guard because the Coast Guard is the primary agency responding to oil spills.

Congress has broadened the scope of the NCP over the years. As required by the Clean Water Act of 1972, the NCP was amended to include a framework for responding to hazardous substances spills as well as oil spills. Following the passage of Superfund in 1980, the NCP was broadened to cover releases at hazardous waste sites requiring emergency removal actions.

Most important for environmental journalists, current federal regulations (40 CFR 300.125) require notification of the NRC of any discharge or release of certain hazardous materials in certain amounts. These reports include not just releases from fixed facilities, but any releases involving transportation of hazardous materials as well.

Last year alone, the NRC fielded reports concerning more than 35,000 hazardous materials incidents. The agency's website contains charts with various statistics about these incidents.

Most helpful to journalists are the actual reports, which include the source of the release, the date, time and location, the material and amount release, and a brief description of the incident. Past such incidents are listed on the agency's website, as are downloadable databases and a searchable index of previous reports.

But the reports available on the web are all weeks — if not months — old. The searchable database says the data available is current through Jan. 28, 2008. And a search of that data shows some reports from January. But as of Feb. 12, 2008, the most recent report contained in the website's "incident summaries" list was an Oct. 30, 2007, pipeline spill in Bakersfield, Calif.

And more importantly, the NRC now refuses to release these reports in a timely fashion — meaning as soon as they are filed, when journalists need them on deadline — without a formal FOIA request and several weeks of processing time.

NRC officials are offering little in the way of explanation. They say that federal law requires a FOIA request before they can release the reports, a claim that is clearly incorrect.

Further, agency officials say that they need to "scrub" any confidential information before they make the reports public. Asked what kind of confidential information, agency officials said the reports may contain information protected by the federal Privacy Act concerning the individuals or companies that file incident reports. But the Privacy Act carves out an exemption for any materials that must be disclosed under the federal FOIA, which these chemical release reports clearly must be. Again, the Coast Guard is acting illegally.

The NRC and its Coast Guard lawyers are refusing to provide a copy of their new policy without first receiving a FOIA request for it. That is another violation of FOIA, which explicitly requires agencies to make copies of their policies available to the public without formal FOIA requests.

And when they responded, both the NRC and the Coast Guard provided a copy of the center's FOIA policy, which says nothing about prohibiting the release of any information without a FOIA.

While federal law may not require government agencies to release all public information without a FOIA — though in some cases it does — this is a case where federal regulations, good public policy, and public safety all support the timely and efficient release of the NRC reports.

For example, the very federal regulations that created the NRC in the first place charge that agency with being a center point for "public information and community relations" during chemical emergencies.

The regulation (40 CFR 130.155) says that, "When an incident occurs it is imperative to give the public prompt, accurate information on the nature of the incident and the actions underway to mitigate the damage."

During an actual hazardous chemical incident, the news media can play a critical role in helping the Coast Guard, NRC, and state and local authorities warn the public of imminent dangers and proper evacuation or shelter procedures. Informing the press immediately about the source and nature of a release can save lives that would otherwise be lost. In many communities, the Coast Guard has no other effective means of communicating with the public.