HR 2356 Introduced – Weapons of Mass Destruction

As I mentioned in an earlier blog on the House Homeland Security Committee’s dual subcommittee hearing on weapons of mass destruction, Rep. Pascrell (D, NJ) introduced HR 2356, the WMD Prevention and Preparedness Act of 2011. The bill, which finally became available on the GPO web site late last week, was co-sponsored by a bipartisan group of Committee members including Chairman King (R, NY) and Ranking Member Thompson (D, MS).

I had expected that this would be a re-introduction of HR 5057 from last session, but it is not. It is a complete re-write of that earlier bill. As in the earlier bill, the primary focus of this legislation is preventing and responding to bio-attacks by terrorists, surely a high-consequence but low-probability event. There are, however, many more inclusions of the all-hazards terminology; “chemical, biological, radiological, and nuclear threats” (CBRN), potentially making provisions of this bill applicable to preventing and responding to the use of industrial chemicals in a terrorist attack.

Risk Assessment

One of the primary areas where this all-hazards approach is most evident is found in the proposed amendments to the Homeland Security Act, particularly the inclusion of proposed §2102, Risk Assessments. This would require the Secretary to produce a risk assessment of CBRN threats. It requires an “integrated risk assessment that assesses all of those threats and ranks them against one another according to their relative risk” {§2102(a)(2)}.

While the detonation of a nuclear device would certainly kill more people and a biological attack could affect a larger area of the country, any real assessment of attack probability would have to take into account the relative ease of conducting chemical attacks using industrial chemicals. An integrated risk assessment of the type required by this section should clarify that relative risk.

Individual and Community Preparedness

Another area that is not specifically directed at counter-bioweapons actions is the area of community response. Section 2106 calls for FEMA to “assist State, local, and tribal authorities in improving and promoting individual and community preparedness and collective response to terrorist attacks involving chemical, biological, radiological, and nuclear materials against the United States” {2106(a)}.

This is further expanded under §2131 where the Secretary is required to develop for “police, fire, emergency medical services, emergency management, medical and public health personnel, voluntary guidance for responding to a release of chemical, biological, radiological, or nuclear material” {§2131(a)(1)}. The guidance would also be required to be disseminated to “State, local, and tribal authorities, including primary and secondary school administrators, nongovernmental organizations, the private sector, and the public”{§2131(a)(2)}.

The guidance developed under this section is specifically required to be “voluntary, risk-based guidance”{§2131(b)} and is required to include “specific information regarding the effects of the chemical, biological, radiological, or nuclear material on those exposed to the agent”{§2131(b)(2)}. The latter is going to be a difficult mandate to meet due to the wide variety of effects of an even wider variety of materials of concern for anything but ‘nuclear material’.

I think that it would be appropriate to include language in this section requiring high-risk chemical facilities to work with local authorities and response organizations to develop and communicate this type of information for all release toxic chemicals of interest (COI) that the facility might have on hand.

Plume Modeling

A major concern in the emergency response planning for any of these WMD attacks is determining where the CBRN agent might be expected to spread once released. The tool used to predict this spread is plume modeling. Section 2132 of this proposed legislation would require the Secretary to “acquire, use, and disseminate the best available integrated plume models to enable rapid response activities following a chemical, biological, nuclear, or radiological attack or event”{§2132(a)(1)}.

It is interesting that this section includes the ‘attack or event’ language. This plume modeling software would certainly be beneficial to response planning and execution for accidental chemical releases as well as terrorist attacks.

I am a little concerned about the wording of the requirement for local officials to establish mechanisms for disseminating ‘integrated plume models’ to “nongovernmental organizations and the public to enable appropriate collective response activities”{§2132(a)(2)(B)}. There seems to be some confusion between the tool (the integrated plume model) and the information produced by the model once appropriate timely local information is fed into the tool. The information should certainly be shared with the public in the event of an incident and the tool should be shared with appropriate NGO’s involved in emergency response planning.

An important component that is missing from this section is the requirement to include the news media in the requirements for ensuring that “that guidance and training in how to appropriately use such models are provided” {§2132(a)(2)(C)}. The news media needs to clearly understand the information produced by these models as they will be the ones disseminating live information to the public during any emergency. Again, a clear distinction needs to be made between the operation of the model and understanding the output of the model.

Recovery from CBRN Attacks or Incidents

The final area of this legislation that is of potential importance to the chemical security community is §2142 that deals with the recovery from a CBRN attack or incident. Again, the importance of including ‘incidents’ is especially important for high-risk chemical facilities with large holdings of toxic release COI. Accidental releases are much more likely than a release as of a result of a terrorist attack and current emergency response rules totally ignore the recovery aspect of a release incident.

The Secretary is required to develop the appropriate guidance “for clean-up and restoration of indoor and outdoor areas, including subways and other mass transportation facilities, that have been exposed to chemical, biological, radiological, or nuclear materials”{§2142(a)}. The Secretary is required to consult with the appropriate authorities is almost every department of the Federal government in developing this guidance.

A significant part of this guidance includes the requirement to “clarify Federal roles and responsibilities for assisting State, local, and tribal authorities”{§2142(b)}. The same paragraph outlines risk-based recommendations for a wide variety of expected actions that will need to be taken.

Again, I have a concern about the specific wording for one of these recommendations. Section 2142(b)(5) requires recommendations for “maintenance of negative air pressure in buildings”. This level of detail should not be included in a piece of legislation because it could lead people to believe that ‘negative air pressure’ is needed in most incidents when it is only appropriate when the release is within the building in question. Positive air pressure is needed when the contamination is outside of the building.

Exercises

The final section of the bill is devoted to the planning of exercises. Unfortunately, the actual wording of this section is severely defective. The single sentence contains too many qualifying phrases and phrases expanding the requirement, but there is never a specific requirement for what the Secretary is supposed to do beyond the fact that the “Secretary shall develop exercises”. It reads as if the entire section was a last minute after thought.

Moving Forward

I am much happier with the wording of this bill than I was with the language in last sessions HR 5057. I still think that there is entirely too much concern with the extremely low probability biological attack by terrorists. But the general provisions for identifying, preventing, responding and recovery to and from general CBRN terrorist attacks makes up for that excessive concern.

I expect that the Homeland Security Committee in the House will formally take up this legislation fairly quickly. There is general support for this type of legislation in the Senate Homeland Security Committee, but there will need to be some coordination of efforts if this bill is to make it through the legislative process this session.