In a little-noticed Order signed on May 6, 2002, President Bush granted EPA Administrator Whitman authority to classify documents as "secret" pursuant to a Clinton-era Executive Order dealing with the classification of documents for national security purposes.

In 1995, President Clinton signed Executive Order 12958, titled Classified National Security Information. The Order prescribes a "uniform system for classifying, safeguarding, and declassifying national security information." "National security" is defined as the "national defense or foreign relations of the United States." "Information" includes "any knowledge that can be communicated or documentary material, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States Government."

Under Section 1.3. of Executive Order 12958, there are three classification levels. "Top Secret" is applied to information that, if disclosed inadvertently, "reasonably could be expected to cause exceptionally grave damage to the national security" and the original classification authority (the individual, authorized by the President or by agency heads or other government officials, who classified the information in the first instance) is able to identify or describe. "Secret" is applied to information "the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe." "Confidential" is applied to information, "the unauthorized disclosure of which could reasonably be expected to cause damage to the national security that the original classification authority is able to identify or describe."

Under Section 1.4. of the Executive Order, the authority to classify information may be exercised only by the President, agency heads and officials designated by the President in the Federal Register, or U.S. government officials delegated the authority.

The authorization granted to Administrator Whitman on May 6, 2002, was pursuant to the President's authority under Section 1.4. President Bush extended the same authority to the Secretary of Health and Human Services last December in direct response to the Department's role in investigating the anthrax crisis. There was no explanation as to what exactly prompted President Bush to exercise his authority under the Executive Order at this time or for what specific reason. It is reasonable to assume that the debates of the past regarding the need to balance national security with the public's right-to-know inspired the Bush Administration to exercise enhanced caution regarding the release of certain chemical information required under various federal authorities.

Competing interests

The May 6 Order represents another development in a series of post-September 11 developments designed to curtail the easy access to chemical information.

One of the fiercest debates over how best to balance these interests arose over the need to balance the public's right to a secure homeland versus the public's right-to-know as required under Clean Air Act (CAA) Section 112(r) and its mandated Risk Management Plans (RMPs). Section 112(r) was created by the 1990 CAA Amendments, and its risk management planning requirements complement and support the Emergency Planning and Community Right-to-Know Act.

Under Section 112(r), regulated entities, that include companies of all sizes that use certain chemicals, must develop RMPs. To comply with the RMP provisions, affected plants were required to develop, prepare and submit an RMP, that EPA would make available on the Internet to ensure that people living near a facility and local officials responding to an accident were fully informed of potential hazards and ways to abate them.

Opponents of aspects of Section 112(r) questioned the prudence of making sensitive plant information easily available to the public and help implement potential domestic terrorist attacks. The FBI was one of several domestic security agencies that actively engaged in the debate and urged Congress and EPA to temper their zeal for disclosure under the right-to-know law with the public's legitimate expectation of domestic security.

At the time, many believed the chemical and manufacturing sectors' emphasis on the potential mischief that might arise from the misuse of RMP data was greatly exaggerated. At some level, September 11 proved them wrong. The September attacks prompted several enhanced security measures by the Administration.

First, EPA issued several safety alerts. These include a chemical safety alert urging companies to be especially vigilant regarding chemical security (www.epa.gov/swercepp/p-small._htm#_alerts/), and a safety alert on chemical accidents from electrical power outages (www.epa.gov/swercepp/pubs/_power.pdf). RMP data continue to be available if a person actually visits one of the locations throughout the country where the data are made available, but with conditions.

Second, Freedom of Information Act (FOIA) requests seeking pertinent data will be given much more scrutiny by EPA. On October 12, Attorney General John Ashcroft stated that "[any discretionary decision by an] agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial and personal privacy interests" that could be implicated. EPA and the Attorney General have publicly noted that security measures have been heightened considerably and a "need to know" policy regarding RMP data will apply with regard to persons seeking the RMP data either personally by accessing a reading room or through the submission of a FOIA request.

Finally, Administrator Whitman's new found authority under Executive Order 12958 provides EPA with broad authority to classify documents as "secret." How EPA intends to exercise this authority and over what the class of a documents is, of course, is unclear at this time. Naturally, right-to-know advocates are concerned that EPA may classify significant categories of information as secret and thus compromise the underlying goal of chemical right-to-know laws. At one level, the new EPA authority could significantly curtail ready access, indeed any access, to certain information previously readily accessible. On the other hand, because no reason was given for the delegation of authority under the Executive Order, the new authority may be infrequently exercised by the EPA Administrator.

At the least, the granting of the new authority will inspire another round of public discourse on how best to balance the competing interests of ensuring national security and promoting the goals of chemical right-to-know laws. PE