New policy keeps records from public

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.)