Failing Grade on Chemical Security

As the former 9/11 Commission issued failing grades on the government's preparedness for another terrorist attack, a new draft of chemical security legislation is being circulated by Sen. Susan Collins (R-ME). The bill establishes authority for the Department of Homeland Security to regulate the security plans of U.S. chemical plants. Unfortunately, if its current language remains, the bill will fail to make communities safer from either terrorist attacks or chemical accidents.

The draft bill falls short on several important issues--issues that should be addressed before the bill is formally introduced:

Safer Technologies
The bill requires companies to submit security plans to the Department of Homeland Security (DHS) for review and certification. While the bill mentions safer chemicals and technologies among suggested security provisions, it does not require companies to consider these obvious steps for reducing the risk chemical facilities pose to neighboring communities. Any substantial chemical security effort should require companies to conduct such a review as a first step. Safer chemicals and technologies could eliminate the need to implement extensive security measures to prevent a terrorist attack or establish complex emergency response plans to address a chemical accident.

Universal Requirements
The draft bill also fails to create strong universal governmental standards for chemical facility security plans. Instead of establish specific minimum components that all security plans should include, the draft bill currently allows companies to pick which items to include in the plans they submit to DHS. Universal requirements would ensure that company security plans are in accordance with basic chemical safety practices and procedures. The bill also contains overly broad provisions that encourage DHS to accept voluntary industry association programs, which could create an uneven implementation of the law and leave vulnerabilities unaddressed. The final bill should establish standard components that each vulnerability assessment and security plan must contain at a minimum. The bill should make clear that assessments from alternative programs will be evaluated against these standards to ensure this baseline of safety and security is met.

Accountability
Collins' draft bill fails to establish any public accountability safeguards to ensure that security plans meet surrounding communities' high standards and are being implemented properly. Obviously, the bill should not allow specific security plans or information directly taken from them to be publicly disclosed; it should contain, however, provisions ensuring that the public remains adequately informed. First, the bill should include a savings clause that explicitly states that information currently collected and made public under other laws will not become secret under this new law. Second, the bill should include two proactive requirements to inform the public. On the facility-specific level, without disclosing any of the details of the actual plans, DHS should make public the certification status of all facilities required to report under this law. On the aggregate level, DHS should be required to release an annual report on the overall status of the nation's chemical security. Such an aggregate report would provide a method to assess the law's efficacy in addressing security problems, while avoiding disclosure of any particulars that could leave individual plants more vulnerable. Third, the bill should include a mechanism for officials, workers, first responders and others outside the company to notify DHS about problems they learn about at a particular plant. Finally, the bill should clearly explain that official whistleblowers will be protected from any criminal or civil penalties.

Floor, Not Ceiling
The most troubling aspect of the draft chemical security bill, however, is not what it's missing, but rather what's included: a new provision that allows preemption of state laws. The draft bill would prevent states from establishing laws that provide greater security and safety requirements. Interestingly, this provision appeared, seemingly out of nowhere, shortly after New Jersey passed a bill that would require best practices at chemical facilities and would require 43 exceptionally dangerous sites in the state to implement safer practices. The federal legislation should provide a floor, not a ceiling, for chemical security, thereby allowing states to enact stronger chemical security protections as they see fit. This dangerous provision should be dropped from the draft bill and replaced with a clause that clearly states that the federal law does not preempt states from enacting their own chemical security legislation.

A series of discussions have taken place regarding the Collin's bill since the draft version was leaked. Collins reportedly is intent on introducing the bill, which would be referred to the Senate Committee on Homeland Security and Government Affairs, a committee Collins chairs, before Congress breaks for the holidays. It is unclear how many of the above concerns can be addressed in such a short timeframe. What is clear is that this legislation needs significant improvement in all these areas if it is to carry out its intended purpose of addressing the shortcomings in U.S. chemical security pointed out by the 9/11 Commission that undermine national security and the safety of communities nationwide.

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