Critique of New Chemical Plant Regulation

Stephen Flynn's testimony before the Senate Committee on Environment and Public Works has been posted to the Council on Foreign Relations site.

Flynn is critical of the legislative changes regarding chemical facilities made in the 2007 Department of Homeland Security Appropriations Act, as well as the interim rule-making language issued by the Department of Homeland Security in Feb. 2007.

First, Flynn offers his opinion of the threat:

Like many students of terrorism, I believe that Al Qaeda or one of its growing number of radical jihadist imitators will attempt to carry out a major terrorist attack on the United States within the next five years. At the top of the list of likely targets is the chemical industry.

The new legislation is intended to improve the security at chemical facilities. But Flynn argues it impedes information-sharing between the chemical facilities and state and local officials:

[N]eighbors to dangerous chemical facilities have lived largely in the blind when it comes to the hazards they may be exposed to and are often unaware of the steps they should take to protect themselves in the event of a chemical release.

While there is legitimate reason to treat some security information as sensitive, the act goes too far by requiring DHS to treat vulnerability or security information under this section, "as if the information were classified material" and stipulating that this information be provided only to "State and local government officials possessing the necessary security clearances, including law enforcement officials and first responders."

This onerous requirement effectively places the overwhelming majority of state and local officials and emergency responders out of the loop when it comes to the security of plants nestled within their own communities. Few officials hold these clearances and there is already an extensive backlog in providing them.

As a consequence, the vast majority of emergency planners who are responsible for putting together the local response to disasters will have to make these plans without an understanding of the vulnerabilities and the existing security protocols that are in place at a facility.

He also delivers a strong critique of the provision in the act which allows DHS rules to supersede state legislation:

The excessive new protections of vulnerability and security-related information reinforces one of the most serious shortcomings of the act which is its failure to allow state governments to enact stronger security requirements than those adopted at the federal level when those states determine such requirements are appropriate to safeguarding their populations....

This is federalism turned on its head. While states and locals are responsible for dealing with the aftermath of a disaster associated with a chemical plant about which it has historically possessed more intimate knowledge than the federal government, the federal government is now maintaining that it alone has the authority to set the rules governing the security of these facilities.

The information-sharing aspect is troubling. Some secrecy is necessary, of course. You don't want to disclose the location of potentially dangerous chemicals. But why state and local officials are not on the "need to know" list - that's a good question.

Flynn is a generally respected expert on vulnerability. He's the author of America the Vulnerable and The Edge of Disaster: Rebuilding a Resilient Nation.