HR 2356 Substitute Language

As I noted in my congressional hearing blog post this weekend the House Homeland Security Committee will be marking up HR 2356, the WMD Prevention and Preparedness Act of 2011. The Committee Chair, Rep King (R,NY), will be offering an amendment in the nature of a substitute and that will be the basis for the bill that will ultimately be approved by the Committee.

I have now had a chance to take a fairly close look at the substitute language. As is typical with these amendments, the vast majority of the changes are fine tuning the wording of the bill. There were some wholesale deletions of material, a few minor additions and one section was entirely re-written. None of the changes substantially change the almost paranoid focus of the bill on countering biological attacks on the United States. The bill still essentially ignores the most probable form of WMD attack, an assault on chemical facilities that would unleash a toxic chemical attack on the local community.

Deletions

The following sections were deleted from the original bill:

§2104. Export enforcement for counterproliferation.

§2124. Laboratory biosecurity information sharing.

§2136. Federal law enforcement training to investigate biological threats.

There is no explanation given for any of these changes so we can only guess at the reasons. The deletion of the first section is due to the re-write of §2103 that establishes the National Export Enforcement Coordination Center. The last section deleted is almost certainly due to the inability to come up with the necessary funding to support a realistic law enforcement training effort. For the life of me, I can’t imagine why the information sharing section was deleted.

Additions

The following sub-paragraphs were added:

§2101(a)(4) “support homeland security-focused risk analysis and risk assessments of the homeland security hazards described in paragraphs (2) and (3), by providing relevant quantitative and nonquantitative threat information;”

§2102(c)(2) “allocation of resources for research and development for chemical, biological, radiological, and nuclear attack prevention, protection, response, and recovery;”

It doesn’t appear that either of these are substantive changes to the language of the bill. I would be interested in having someone explain to me what ‘quantative threat information’ is.

Technical Error

The technical error that I identified in my post last summer on the introduction of the bill remains in the substitute language. The error is found in §2142 in the discussion of responsibilities for recovery from a CBRNE attack or incident. Paragraph (b) provides a listing of items that should be included in guidance to be developed for “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)}.

Sub-paragraph (5) reads “maintenance of negative air pressure in buildings”. That requirement only makes sense in labs or facilities where CBRNE materials are stored or released so that the release will remain contained in the building. All other buildings in an affected area will want to maintain positive air pressure to keep the CBRNE materials out of the building.

For locations where a CBRNE attack takes place within a public building, this provision makes some sort of sense during the decontamination process, but that purpose is not made clear in the wording of this section. Even in this case building ventilation would be the most effective and safest decontamination for many toxic chemical agents as long as proper precautions are taken.

Major Shortcoming

The major shortcoming of this bill, and every WMD bill that I have seen to date, is that it does not address the easiest WMD attack mode, attacks on chemical facilities or transportation assets that release toxic chemicals into the community. While the CFATS program addresses security measures to help prevent such attacks on facilities and TSA rail security regulations work to prevent attacks on rail cars containing toxic materials (and no one is looking at protecting truck-load shipments of these materials), there are no provisions in either of those programs for community planning for response to successful attacks on those chemical assets.

At the very least the Metropolitan Medical Response System Program (MMRS) outlined in §2136 of this bill should require facilities that maintain significant inventories of toxic inhalation hazard chemicals to provide local medical facilities with material safety data sheets for those chemicals. Potentially affected medical facilities should be required to have a plan for responding to a mass casualty event involving those specific chemicals, including outlining initial and follow-up treatment regimens for the injuries expected from exposure to those specific toxic chemicals found in local industries.

S 1546 Introduced – DHS Authorization Bill

Earlier this week Senators Lieberman (I,CT) and Collins (R,ME) introduced S 1546, the Department of Homeland Security Authorization Act of 2011. A copy of the bill is not yet available from the Government Printing Office, but it is hardly necessary as the Senate Homeland Security and Governmental Affairs Committee printed a copy of substitute language for the bill that is being considered by that Committee in markup hearings conducted this last week and next week. Since that substitute version will be the basis for any other Committee actions, a review of that will be more important than a review of the introduced version.

There is no mention of chemical, transportation, or cyber security in the bill, in fact there is relatively little mention of security in this bill reflecting the current DHS emphasis on recovery. There are still some provisions in this bill that will be of interest to the chemical, transportation and cyber security communities. They include:

• Catastrophic incident planning;

• Guidelines concerning weapons of mass destruction;

• Plume modeling;

• Metropolitan medical response system; and

• Classified national security information program.

Catastrophic Incident Planning

Section 401 sets out requirements for the Department’s responsibilities for “leading, promoting, and coordinating efforts of Federal agencies to conduct catastrophic incident planning” and reviewing plans for “private sector entities for catastrophic incidents submitted to the Federal agencies” {§526(b)(3)}. The Department is specifically tasked with “promoting and supporting appropriate catastrophic incident planning by private sector entities, including private sector entities that own or manage critical infrastructure” {§526(b)(6)}. This should include high-risk chemical facilities.

Weapons of Mass Destruction

Section 413 requires the Department to establish guidelines “for responding to an explosion or release of nuclear, biological, radiological, or chemical material” {§531(a)(1)}. Those guidelines would include:

• Protective action guidelines for emergency response personnel;

• Exposure effects of the biological, chemical or radiological agents; and

• Information about effective treatments for WMD victims for emergency response personnel and mass care facilities.

Plume Modeling

Section 414 requires the Secretary to develop an ‘integrated plume model’ (similar to what we used to call a downwind message in the Army) that would serve as a tool for emergency responders for “the assessment of the location and prediction of the spread of nuclear, radioactive, or chemical fallout and biological pathogens resulting from an explosion or release of nuclear, radioactive, chemical, or biological substances” {§318(a)(2)}. Provisions would be required to be made for the release of the model to “nongovernmental organizations and the public to enable appropriate response activities by individuals” {§318(b)(2)(B)}.

Metropolitan Medical Response System

Section 418 reauthorizes the Metropolitan Medical Response System to continue to assist State and local governments “in preparing for, protecting against, and responding to mass casualty incidents by systematically enhancing cooperation and integration of emergency response providers and public health and medical personnel” {§2042(b)}. Last session similar legislation was introduced as HR 4580 and I made some suggestions then as to how CFATS emergency response planning could be incorporated into MMRS preparations.

Classified National Security Information Program

Section 602 would establish a Classified National Security Information Program which will be designed “to safeguard and govern access to classified information shared by the Federal Government with States, local governments, Indian tribes, and private sector entities” {§210G(b)}. This program would implement the provisions of EO 13526 for classified information (presumably intelligence information).

The program would include responsibility for:

• Tracking the status and final disposition of security clearance requests;

• Developing and maintaining a security profile of facilities that have access to classified information;

• Developing appropriate training for personnel with access to classified information; and

• Preparing an annual report on the status of the Program to Congress.

Moving Forward

The Homeland Security and Governmental Affairs held the first of two markup hearings on the bill earlier this week, but there are no real details beyond a link to the web cast currently available. The second of the two hearings will be held this Wednesday, after which we should find more details on the Committee web site.

HR 4580 Introduced

Last week Congressman Markey (D,MA) introduced HR 4580, the Metropolitan Medical Response System Act of 2010. This bill would authorize the currently existing MMRS program that is administered under FEMA. The program was started under the Department of Health and Human Services (HHS) in 1996 and currently funds programs in 124 jurisdictions around the country. According to the findings section of this bill:

“The Metropolitan Medical Response System (MMRS) is the only program at the Federal level that supports the integration of local emergency management, law enforcement, and health and medical systems into a coordinated response to a mass casualty event caused by a weapon of mass destruction, an incident involving hazardous materials, an epidemic disease outbreak, or a natural disaster.” {§2(2)}

The bill notes that MMRS program “provides tangible benefits in the form of increased operational capacity and communication, improved personnel training, stockpiled pharmaceuticals, and adequate supplies of personal protective equipment and other specialized response equipment” {§2(5)}. The FY 2010 funding for this program was provided by the Homeland Security Grant Program (HSGP). A total of $39,359,956 in MMRS grants will be split evenly between the 124 agencies currently enrolled in the program. CFATS and Emergency Response While the bill lists a variety of federal programs that are supported by the existing MMRS grants, there is, unfortunately, no mention of how the program could support emergency response planning for high-risk chemical facilities covered under CFATS. This is somewhat surprising since Congressman Markey was so involved in the development and passage of HR 2868, a bill to extend the scope of CFATS authorization, in the House. I have often commented that emergency response planning has got to be a key component of any security plan. When most people think of emergency response they think of police, fire, and EMT personnel. What is typically missed is what happens after casualties are removed from the incident scene. After all, don’t doctors know how to treat casualties? Casualties from a chemical incident (terrorist or accident, it doesn’t make any difference) are going to present a wide variety of injuries and symptoms depending on the chemical involved. Toxic chemicals may present special challenges because of the wide variety of potential effects the patients will experience based on the type and extent of the exposure they experience. Lacking specific training for proper detection, diagnosis and treatment for the exposure to the specific chemicals involved, medical personnel may not be able to provide adequate medical care. It is absolutely critical that the medical personnel that will be performing triage, diagnosis and treatment are trained in advance on the proper responses to the chemical exposure for the potentially wide variety of chemicals found at a modern chemical facility. This can only happen when the medical management team is aware of the chemicals found at facilities within its service area and that requires communication with the chemical facilities. While all chemical facilities should be communicating with their supporting services as part of their facility emergency response planning, there is a special responsibility for facilities covered under CFATS regulations. By definition they have been identified as being at high-risk for a terrorist attack and their emergency response planning takes on a special significance because of that. High-risk facilities with release-toxic chemicals of interest (COI) should expect that terrorists would attempt to conduct an attack that would result in the release of those toxic COI. Thus, the medical community absolutely needs to be informed in advance of those COI. CFATS and MMRS Since the MMRS program is designed to provide support for mechanisms for coordinated emergency response functions to include the whole response community, specifically including hospitals, this legislation might be an appropriate place to address requirements for emergency response planning for CFATS facilities. Suggested provisions for CFATS emergency response planning would include:

Requiring each MMRS organization to establish a CFATS planning team, members of the team would include emergency response and medical members who have completed Chemical-Terrorism Vulnerability Information (CVI) training/certification; Requiring each CFATS facility with release-toxic COI on site to provide a list of all such chemicals to the local MMRS CFATS planning team; Requiring the MMRS CFATS planning team to develop a plan for dealing with chemical casualties for exposure to each of the release-toxic COI that have been identified in the team’s service area; Requiring the MMRS CFATS planning team to be involved in the planning for emergency response exercises conducted at CFATS facilities in the team’s service area; and Requiring DHS Chemical Facility Inspectors to include a review of MMRS CFATS planning team efforts in any inspection/evaluation of a CFATS facility containing release-toxic COI.