Chemical Security Program Leaves the Public Vulnerable

On Dec. 28, 2006, the Department of Homeland Security (DHS) issued an interim final rule for the creation of a chemical facility security program. However, the program appears to provide little means for increasing security and shrouds important assessments in a veil of secrecy that will prevent any public accountability or oversight.

Congress gave DHS the authority to create a safety certification program in the Department of Homeland Security Appropriations Act of 2007, signed into law on Oct. 4, 2006. The chemical security provisions of the bill were the result of a backroom deal that excluded bipartisan agreements worked out in the House and Senate. As previously reported in the Watcher, House and Senate Democrats deemed the backroom agreement between Sen. Susan Collins (R-ME) and Rep. Peter King (R-NY) to be "inadequate chemical security measures promoted by the chemical industry."

According to the interim rule, DHS will assess the risk level of every chemical facility. The standards by which such an assessment is made, though, will remain secret. For the highest risk facilities, DHS will require the submission of a security plan, which will then be reviewed and approved by DHS. A major weakness, however, is that only the highest risk facilities are subject to scrutiny. Critics say that other deficiencies associated with the program are that facilities can be approved by third parties (including state governments and private sector entities) without individualized oversight and approval of DHS, and at no point will facilities be required to use safer procedures or technologies.

Public interest and environmental organizations, including OMB Watch, have also called for a chemical security program that keeps communities informed about the risks they face and steps being taken to protect them. Information regarding whether or not certification of a facility’s plan is granted or denied would create pressure on unsafe facilities to improve their status. The proposed rule, though, would exempt a great deal of information from public disclosure. DHS proposes the creation of a new category of sensitive but unclassified information (SBU), despite the numerous documented problems associated with SBU. The interim rule would prevent all information marked as Chemical-terrorism Security and Vulnerability information (CVI) from being disclosed to the public.

This new information category would severely restrict access to a wide range of information. Not only would the detailed security plans, the notes from DHS audits and information on vulnerability points at uncertified chemical facilities be subject to CVI markings, but basic information regarding whether or not a facility is a high risk facility and whether or not a plant is safe and certified by DHS would also be rendered secret. Such information is not detailed enough to be used by terrorists but would be of immense value to the public in ensuring health and safety. There is also vagueness surrounding who can mark information CVI, what information will qualify as CVI, and how the program will be managed. The rule establishes a decentralized authority to mark information as CVI, which, coupled with the lack of specific criteria for evaluation and absence of any mention of training, could easily lead to excessive use of the CVI marking.

The 9/11 Commission and others have repeatedly noted that the safety of chemical facilities across the country has been a point of weakness in protecting against a potentially catastrophic terrorist attack. Though it has been over five years since 9/11 and though there were strong bipartisan agreements worked out in Congress, the federal government has done little to improve the safety of chemical security facilities across the country. The 110th Congress has an opportunity, however, to improve a bill passed at the end of the last term and encourage a robust DHS chemical security program that is universal and uniform in coverage, requires the use of safer technologies and procedures, and provides strict oversight and public accountability.

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