On April 2, the Department of Homeland Security (DHS) finalized interim chemical security regulations. The final regulations are an improvement over the proposed regulations issued in December 2006, but many weaknesses remain. In particular, DHS modified its broad interpretation of a provision regarding state preemption but did not adequately establish that states can develop rules stronger than the federal ones. The final rules do little to allay concerns regarding the lack of public accountability and access to information or the failure to require consideration of inherently safer technologies by facilities reporting to DHS.

Section 550 of the Department of Homeland Security Appropriations Act of 2007 required DHS to develop a temporary program for instituting security performance standards for high-risk chemical facilities.

According to the final rules, DHS will assess the risk level of every chemical facility based on the amount and type of dangerous chemicals. The only facilities subject to the chemical security rules will by "high risk facilities," estimated by DHS to be approximately six to seven thousand facilities across the country. DHS will then categorize the high-risk facilities into four tiers of escalating risk. Facilities in all four tiers are required to submit site security plans for approval, but the strength of the standards increase in proportion to the risk of the facility.

In an April 2 conference call, DHS stated that the final rules addressed three primary concerns raised by the public interest and environmental community — state preemption, excessive secrecy, and use of inherently safer technologies. However, the public interest and environmental community believes the final rules do not address these concerns sufficiently. It appears Democrats in Congress are reacting in a similar fashion.

State Preemption
The proposed chemical security rules included a broad preemption provision which, according to DHS's interpretation at the time, would have nullified all stronger state chemical security programs. In the final rules, this approach was recognized by DHS as an expansive interpretation of the agency's authority under Section 550. In the preamble to the final rules, DHS states, "the Department [of Homeland Security] has modified certain of its prior statements on preemption as potentially too broad." DHS noted in Monday's conference call that no state laws "currently on the books" are believed to conflict with the final regulations, and federal law has no impact on existing state chemical security programs. The final rule contains the same preemption clause as present in the proposed rule, though DHS has modified its interpretation and is no longer claiming preemption of all stronger state chemical security programs.

The state preemption clause was regarded as one of the more controversial subjects of the proposed regulations. Many public interest groups opposed the provision, as did many members of Congress. The preemption issue was so important to Congress that it attached a rider to the supplemental appropriations bill that would explicitly resolve the problem that DHS's federal chemical security rules do not preempt any state or local programs. The president is expected to veto the supplemental appropriations bill.

According to the Washington Post, New Jersey Gov. Jon Corzine's (D) spokesperson said the rules "appear to undermine states' ability to tailor important policies unique to their own situation and vulnerability." The Post adds that Sens. Frank Lautenberg (D-NJ), Susan Collins (R-ME), and Robert Menendez (D-NJ) have already expressed concerns about the DHS final rules.

Excessive Secrecy
The final regulations maintain the plan to create a new sensitive but unclassified category of information called Chemical-terrorism Security and Vulnerability Information (CVI). Access to information marked as CVI will be limited to "covered persons who have a need to know."

In comments to DHS, OMB Watch and Public Citizen strongly objected to this paradigm for information sharing. The groups recommended that the regulations specify how the collected information will be combined and shared with ongoing counterterrorism and security programs at other departments and agencies. OMB Watch and Public Citizen also encouraged 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.

Most of these recommendations went unheeded in the final regulations. In the final rules' preamble, DHS recognizes that, "the Department does not take the creation of a new information protection regime lightly," and notes that all people with a "need to know, including appropriate State and local officials, will have access to the necessary CVI." Unfortunately, DHS is still operating under a framework that has been repeatedly criticized as largely responsible for the mistakes leading-up to 9/11. The final regulations limit information sharing for "activities approved, accepted, funded, recommended, or directed by the Department [of Homeland Security]." Despite the good intentions of the federal government, DHS cannot predetermine every potential use of the information being collected and should, therefore, try to maximize access to CVI at the local and state levels. Anything short of such access is a dangerous impediment to homeland security efforts. Also troubling is that DHS regards CVI information as automatically exempt from the Freedom of Information Act.

The final regulations make an improvement in access to information, though, by clearly stating that no other federal regulations are intended to be displaced. The existing programs at the U.S. Environmental Protection Agency and the Occupational Safety and Health Administration will not be affected. DHS officials on the April 2 conference call also stated that the identities of facilities covered by the chemical security program would generally be publicly available but not information on the risk tier the facility was placed within. The officials also stated that communities would be informed about facilities that flagrantly violate the security requirements of the program, although it was implied that such information would only be available after some delay.

Inherently Safer Technologies
The authorizing legislation passed by Congress last year prevented DHS from instituting chemical security standards, which would approve or disapprove a site security plan "based on the presence or absence of a particular security measure." OMB Watch and Public Citizen, along with other environmental and public interest groups and members of Congress, urged DHS to add provisions encouraging chemical facilities to consider implementing safer processes and using safer chemicals as a method to improve site security through the reduction of risk. Such provisions would not force companies to implement inherently safer technologies, nor would they establish a litmus test to reject site security plans simply based on the absence of inherently safer technologies from the plan. In the final rules, DHS, nonetheless, stated it did not have the authority to implement such a section.

DHS's decision to exclude any provisions encouraging installation of safer technologies is especially difficult to understand as it comes on the heels of a Chemical Safety Board report laying blame for the BP Texas City refinery accident on the company's failure to invest in safer equipment. The tragic March 2005 accident that killed 15 and injured 170 clearly demonstrates a common vulnerability at chemical plants — cost cutting and bottom line thinking that delays installation of life saving equipment.

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." Those estimates, and the DHS chemical security rules, fail to address the significant threat posed by the transportation of deadly chemicals to and from the thousands of facilities DHS plans to include in its program. A new report, "Toxic Trains and the Terrorist Threat," by the Center for American Progress highlights this currently overlooked aspect of the chemical security issue.