WASHINGTON – Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, ID-Conn., is voicing serious concerns over chemical security regulations proposed by the Department of Homeland Security. In particular, he is taking issue with the rules as they relate to the use of safer chemicals and technologies, preemption of state and local laws, and accountability for the security program.
In a letter this week to DHS Secretary Michael Chertoff, Lieberman noted that comprehensive chemical security legislation that emerged from the regular Committee process in the Senate and House provide a clearer picture of lawmakers’ intent and should be used as a guide by DHS. “The proposed regulations depart from the House and Senate chemical security bills in some critical respects,” Lieberman wrote.
Employing Less Dangerous Chemicals and Technologies
Lieberman said the chemical security bill that passed out of HSGAC encouraged chemical facilities to consider using less dangerous chemicals and technologies by specifying that vulnerability assessments address the consequences of a terrorist incident. Then, if it was determined that using less dangerous chemicals and technologies would make the plant more secure, officials would have to include the measure in their security plans. The House went further and required that facilities with the highest security risk review safer technology options and implement them where feasible.
“I am consequently disappointed and concerned that the proposed regulations make no mention of using safer chemicals and technologies to help reduce risk,” Lieberman wrote. “The central mission of a chemical security regulatory program is to reduce the risk of a terrorist event at these facilities. One of the most effective ways to reduce risk is to reduce the consequences of an attack, and for some facilities the most effective way to reduce those consequences will be to reduce the amount of deadly chemicals on site, modify the way they are made, or substitute safer chemicals. It is common sense that if a facility owner can replace a deadly chemical with a safer chemical that would not kill tens of thousands of people, then at the very least DHS should be able to discuss such a consequence-reducing measure with the owner of the facility. I urge DHS to incorporate this concept into the proposed regulations.”
Preemption of State and Local Laws
Lieberman said the proposed rules are accompanied by an extensive discussion on preempting state and local laws governing chemical plant security “in a way that seems calculated to imperil State and local laws.” “The Department of Homeland Security is not the only body that can and should help ensure the safety and security of the Nation’s chemical facilities,” Lieberman wrote. “States and localities have long regulated such facilities to address vital safety and environmental concerns… These State and local protections are critical companions to our effort at the Federal level and should not be displaced unless there is an absolute conflict, such that it is impossible to comply with both the Federal law and a State or local law or regulation on chemical security.”
Lieberman said DHS “should remain silent on preemption, as Congress did and as it intended the Department to do.”
Both the House and Senate bills also specified that laws aimed at health, safety and the environment should not be displaced. Given the Department’s lengthy discussion on laws that could be preempted, Lieberman admonished the Secretary for failing to recognize, much less discuss, laws that should NOT be preempted.
Lieberman said he had no interest in making information public that would be useful to a terrorist or that would compromise trade secrets or other confidentialities. But, some degree of transparency is necessary, he said, to ensure the effectiveness of government programs and to assure communities that nearby plants are safe. “Excessive secrecy in a government security program can actually make us less, not more safe,” he wrote, “I am deeply concerned that the proposed regulations regarding treatment of sensitive information and judicial review will create a chemical security program that is overly secretive and without necessary oversight.”
Lieberman questioned DHS’s proposed new class of sensitive-but-unclassified information, called “Chemical-terrorism Security and Vulnerability Information,” which would be available only to individuals with a “need to know.”
He also expressed scepticism about DHS’ proposal to allow DHS to make secret “[a]ny other information that the Secretary, in his discretion, determines warrants the protections set forth in this part.” This “exceedingly broad authority,” he wrote, could “encompass essentially all documents related in any way to the implementation and management of these vital security programs, largely shielding them from the oversight and accountability that are essential to keeping them effective.”
Lieberman noted that despite the Department’s lengthy discussion about information that may be protected, there is no comparable discussion of what information about a security program can and should be made available. And he called the Department’s interpretation of who can or cannot bring suit against a chemical facility “far afield” from what the law specifies, saying it “seeks to limit a private enforcement action against a facility, and attempts to craft it into a shield for DHS itself.”
“The combined effect of the proposed language on information protection and judicial review appears to be to create a virtual ‘black box,’ within which DHS would have sole knowledge and discretion regarding the program with no real opportunity for any outside accountability, be it by Congress or the public,” Lieberman wrote. “This is not a strategy for good security or good government.”
Full text of the letter may be read here: