In response to the Department of Homeland Security's (DHS) proposed interim chemical security rule, OMB Watch will submit comments to DHS that argue for increased transparency and stronger protections at thousands of facilities across the country.

Chemical facilities pose one of the greatest threats to our nation's security. The U.S. Army's Surgeon General states that 2.4 million people are at risk of death or injury as a result of an attack on a chemical plant in the United States, and the U.S. Public Interest Research Group estimates that 41 million Americans live in "within range of a toxic cloud that could result from a chemical accident at a facility located in their home zip codes." In order to prevent an attack that could approximate another 9/11, we need to ensure that the highest security is in place at chemical facilities.

Section 550 of the Department of Homeland Security Appropriations Act of 2007 requires DHS to develop a temporary program for instituting security performance standards for high risk chemical facilities. DHS's proposed regulations will require certain high risk facilities to develop site security plans and submit them to DHS for approval.

While the statutory language in Section 550 passed by Congress contained serious flaws, DHS compounded this poor legislation with even poorer regulations. In comments to DHS, OMB Watch will outline several problems with the proposed regulations. In particular, the regulations contain excessive secrecy provisions that create impediments to effective oversight and information sharing, and the regulations institute a temporary federal program that preempts state regulations.

Excessive Secrecy

Limiting the free flow of information increases the danger faced by a terrorist attack upon a chemical facility. In testimony before the Committee on Homeland Security, Lee Hamilton, former Vice Chair of the 9/11 Commission, stated, "Poor information sharing was the single greatest failure of our government in the lead-up to the 9/11 attacks." Instead of fixing this problem, DHS heads in the opposite direction by proposing the creation of a new category of controlled information called Chemical-terrorism Security and Vulnerability Information (CVI). DHS states that CVI will be strictly limited to those persons with a "need to know." OMB Watch strongly objects to this paradigm for information sharing as it violates the fundamental democratic principle of a "right to know."

In order to prevent a potentially catastrophic event or to recover from such an event, DHS needs to invest time and effort into developing robust information exchange procedures. The proposed regulations should specify how the information which is collected will be combined and shared with other information and ongoing counterterrorism and security programs at other departments and agencies. OMB Watch encourages DHS to create the infrastructure to increase information sharing, not by limiting information to those who "need to know," but by creating an environment and culture at DHS which understands the need to share information with state, local and private actors and with the public. Information restrictions should be limited to only the most detailed and specific information. DHS should specify in the regulation precisely what reports and information submissions will be withheld from public disclosure, rather then creating an open-ended category.

People who live near chemical facilities have a right to know if they are living in harm's way. Moreover, DHS should provide information to inform the public, Congress, and public interest groups on the status of chemical security and the improvements being made. OMB Watch recommends that the following information be made public:

• The number and identity of chemical facilities covered by the program;
• The number and identity of facilities who have been certified by DHS;
• The number and identity of facilities who have had their site security plans denied by or are waiting for approval from DHS;
• The best practices of site security plans for chemical facilities on a sector-by-sector basis;
• The approval and denial of site security plans for particular facilities but not the details regarding vulnerabilities.

State Preemption

The proposed interim regulation states that no state law or regulation can have any effect if it conflicts with DHS's regulation. If a state regulation is stronger than the federal regulations, DHS argues, it could frustrate Congress's intent. Therefore, according to DHS, the state regulation should be granted no effect. This is an overly expansive interpretation of DHS's authority under Section 550.

Moreover, certain states face unique threats due to the proliferation of chemical facilities in densely populated regions. In New Jersey, there are six industrial facilities that could endanger the lives of one million people and fifteen that could endanger 100,000 or more people. The FBI has called a two-mile stretch of New Jersey the "most dangerous two miles in America." As a result, New Jersey has stronger chemical security measures that require facilities that use the most toxic chemicals to investigate whether they could reduce or replace those chemicals. DHS's chemical security regulations could affect New Jersey's requirements by setting the federal standard as a ceiling.

OMB Watch will raise a number of other concerns in its comments to DHS, including the failure to consider inherently safer technologies and the failure to include a role for worker and community participation in the oversight of site security improvements. Section 550 requires DHS to issue finalized regulations by April 4.