Extending Plant Security Standards

Democrats in the House of Representatives are pushing to significantly expand the scope of federal regulations designed to protect the nation's chemical facilities from terrorist attacks. But Senate aides and industry officials say the current interim standards, which expire in less than three months, will likely be extended for another year without any changes.

"At this point, it's not realistic to expect that a permanent authorization bill will pass Congress by the end of September," Holly Idelson told 400 chemical company security managers and government officials at the 2009 Chemical Sector Security Summit held from June 29 to July 1 in Baltimore. Idelson is the majority staff counsel on the Senate Homeland Security & Governmental Affairs Committee.

To ensure that there will not be a gap in the federal government's authority to oversee security at chemical facilities, the Obama Administration, in its fiscal 2010 budget proposal, has asked Congress to extend the existing regulations through October 2010.

Idelson said that Sens. Joseph I. Lieberman (I-Conn.), chairman of the homeland security panel, and ranking Republican Susan M. Collins of Maine both support the request for a one-year extension of the Chemical Facility Anti-Terrorism Standards (CFATS), the current program regulating chemical facilities.

"The last thing we want is for the program to lapse," Idelson said. "We are committed to seeing CFATS continue. The debate is over what the program should be, not whether we should have a program."

The standards were issued after Congress passed legislation in late 2006 that gave the Department of Homeland Security (DHS) temporary authority to regulate security at thousands of facilities that make or use chemicals in their operations. The three-year authorization, which sunsets on Oct. 4, was intended to give lawmakers an opportunity to revisit and evaluate how CFATS was working before permanently codifying the standards into law.

The rules require companies to assess the vulnerability of their plants, develop site security plans, and implement protective measures to address a wide variety of potential threats, ranging from stopping a bomb-laden car from reaching a target to preventing the theft of materials from a site.

The House and Senate have each passed an appropriations bill that would provide funding for DHS in fiscal 2010 and extend CFATS for an additional year. Lawmakers are expected to reconcile differences in the two measures and pass a final bill by the end of the month.

On a separate track, the House Homeland Security Committee on June 23 approved legislation (H.R. 2868) crafted by Democratic leaders that would permanently authorize the CFATS program (C&EN, June 29, page 22). It would give DHS the authority to compile a list of chemicals of concern, determine which facilities making those substances pose the highest risk, and require action to reduce risk where appropriate.

"This legislation will help ensure that this vital industry, and the population that lives around these facilities, are safe and secure," Rep. Bennie G. Thompson (D-Miss.), committee chairman, said in a statement last month when he introduced H.R. 2868, the Chemical Facility Anti-Terrorism Act of 2009.

Rep. Sheila Jackson Lee (D-Texas), a bill cosponsor and head of the committee's infrastructure protection panel, said in a statement that the legislation would close a "threatening vulnerability that was only made more real by the attacks of Sept. 11, 2001, and other international incidents over the past several years."

But the bill also includes controversial provisions adamantly opposed by the chemical industry and Republicans on the committee that could force certain high-risk facilities to switch to less toxic chemicals or make process changes. The provisions could also allow civil lawsuits against facility owners and DHS for noncompliance.

"I have very real concerns about going forward with this legislation," Rep. Peter King of New York, ranking Republican on the House Homeland Security Committee, said at a June 16 hearing. "The President and DHS are asking that CFATS be extended for one year, that we not have a rush to revise the program, but to give the department one more year to fully implement the legislation that we passed in 2006."

As a result of the partisan skirmish, the committee passed H.R. 2868 on a party-line vote, with 18 Democrats voting in favor of the measure and 11 Republicans voting against it.

The Senate has not yet begun drafting its version of the legislation, Idelson said at the security summit, but is closely watching the progress of the House bill, which must also be considered by two other committees before it can go to the floor for a vote.

"Let's see what the House comes up with," she remarked during the three-day event sponsored by DHS and the Society of Chemical Manufacturers & Affiliates (SOCMA), a trade group that represents the industry's small-business segment.

A one-year extension of the existing security standards would be welcomed by DHS. The department has urged Congress not to make any substantial changes to CFATS through fiscal 2010. This would allow DHS to complete the ongoing process of rolling out and enforcing the original chemical site security program.

At the House Homeland Security Committee hearing last month, Philip Reitinger, deputy undersecretary for DHS's National Protection & Programs Directorate, said that enacting permanent legislation now would be premature and that a one-year extension of CFATS would give the Administration and Congress time to work out "the best possible bill ... to extend the program permanently."

Reitinger noted in his testimony that in June 2008, DHS designated 7,010 chemical facilities as high-risk sites that needed to assess their vulnerability to attack (C&EN, July 7, 2008, page 7). Since then, he said, DHS has received more than 6,100 assessments from those facilities.

In the past two months, facilities have begun to submit their site security plans for review and approval by DHS. In the first quarter of next year, Reitinger said, DHS inspectors will start to conduct on-site assessments to determine the adequacy of those plans after they are implemented.

Chemical industry officials say they strongly support CFATS and want to see it made permanent. But they contend that the changes being proposed by the environmental lobby and the lobby's Democratic allies on Capitol Hill would be disruptive and costly.

"We believe the ongoing implementation of CFATS demonstrates a smart and aggressive approach to both securing and protecting the economic viability of this essential part of the nation's infrastructure," says Martin J. Durbin, vice president of federal affairs at the American Chemistry Council, which lobbies on behalf of 131 major chemical manufacturers.

Although "we share the goal of establishing permanent chemical security regulations, we are concerned that several provisions in H.R. 2868 could undermine the important work that is already under way," Durbin adds. He notes that ACC member companies have spent $7.7 billion to upgrade facility security since the 2001 terrorist attacks.

Industry officials are vehemently opposed to a provision in the legislation that would require facilities to assess "methods to reduce the consequences of a terrorist attack" as part of their site security plans. In the assessment, companies would have to consider using less hazardous chemicals or changing their manufacturing processes in some way.

Most important, DHS could order facilities that pose the highest risk to adopt a so-called inherently safer technology (IST) if a substitute chemical or process change would significantly reduce the risk of death or injury from an attack, is technically and economically feasible, and would not significantly impair the ability of the facility to continue operating. Under the current regulations, DHS cannot mandate a specific security measure.

Environmental advocates say the IST mandate is the key provision in the bill because facilities that use and store toxic chemicals represent some of the most attractive targets for terrorists seeking to cause widespread death and destruction.

The surest way to make chemical plants safer and more secure is to eliminate, where feasible, the toxic chemicals that are the source of the danger by switching to safer and more secure technologies, says Elizabeth Hitchcock, public health advocate with the U.S. Public Interest Research Group. "Chemical plants pose a unique and serious threat," Hitchcock says, "because they are widely distributed in hundreds of communities across the country, and a single strategic strike could release toxic chemicals capable of killing thousands."

CFATS focuses almost entirely on physical security such as guards and gates, says Reece Rushing, director of regulatory and information policy at the Center for American Progress, a liberal think tank in Washington, D.C. "Physical security, however, cannot ensure protection against a concerted attack, insider sabotage, or a catastrophic accident," Rushing says.

Rick Hind, legislative director of Greenpeace, notes that the Environmental Protection Agency has identified 100 chemical plants that each put more than 1 million people at risk up to 25 miles downwind from a facility. "We need a law that protects the 110 million Americans who are still at risk because the existing law ties the hands of DHS," he says.

Since 2001, Hind says, more than 200 facilities—including water treatment plants, power plants, oil refineries, and manufacturers—have switched to safer and more secure chemicals or processes. But most chemical manufacturing facilities have not adopted available safer technologies, he says.

William E. Allmond IV, vice president of government relations and senior lobbyist at SOCMA, says the industry believes that DHS should encourage, but not require, the use of IST to reduce risk at all high-risk chemical facilities.

The IST provision in H.R. 2868 "would take the decisions about risk away from workers in chemical facilities and leave them to bureaucrats in Washington," Allmond says. "It would force scientists' hands and deal a severe economic blow to SOCMA member companies. The provision could have disastrous unintended consequences for a number of industries while having minimal impact on the actual security of a chemical facility."

Allmond says there are two long-standing federal regulations that address the major concerns that Democrats and environmental activists have with chemical plants, primarily the potential for grave consequences in the event of a catastrophic toxic release. They are EPA's risk management program and the Occupational Safety & Health Administration's process safety management standard.

Under the Clean Air Act, EPA requires chemical manufacturers to devise a strategy to manage risks, and that regulation "goes a long way in addressing accident prevention and mitigation of off-site consequences," Allmond says. It requires facilities that use hazardous substances to take steps to prevent accidental releases and to develop an emergency response plan to protect the health and safety of on-site workers and area residents if a chemical release does occur.

The OSHA standard sets out requirements for the management of hazards associated with processes using highly toxic chemicals. It is intended to prevent an incident like the 1984 methyl isocyanate leak in Bhopal, India, which is frequently cited as the world's worst industrial disaster.

"With those two regulations well entrenched in industry, a lot of us wonder why Congress thinks IST needs to be part of a security regime when it is adequately being addressed from an environmental point of view, as well as from the point of process safety," Allmond remarks.

CFATS, he adds, is focused on hardening facilities and their assets against a terrorist attack. "It's not focused on off-site consequences or the environmental impact. Those considerations are not security-based, so they are outside the mandate of DHS. No federal security or intelligence agency has ever declared that IST is the 'silver bullet,' the critical component in securing chemical plants against terrorism," Allmond says.

Although ACC also opposes an IST mandate, Durbin says that House Democrats have made it clear that they favor such a requirement. "We feel the provision isn't necessary but understand that it's likely to remain in the bill," Durbin says, "so we would like to see some changes made to make it more manageable for facilities to deal with. There is room for compromise."

But Greenpeace's Hind says H.R. 2868 "already takes into account many industry concerns about flexibility, feasibility, and cost." The IST provision in the bill strikes a compromise, he says, by conditionally requiring only the facilities assigned to the two highest of four risk tiers to implement safer processes where feasible and cost-effective. The legislation also provides $100 million to help facilities defray the cost of switching to another chemical or process.

In remarks at the chemical security conference, Sue Armstrong, director of the Infrastructure Security Compliance Division at DHS, said CFATS is flexible and noted that several facilities have already lowered their risk by switching to other chemicals.

Armstrong also observed that she would "not be inclined to tell industry how to conduct its business or what a cost-effective process is for a particular facility. Our focus is on security."

The industry also strongly opposes the provision in the bill that would give individuals the right to file lawsuits against chemical companies for allegedly violating the regulations or against DHS for not properly enforcing CFATS, Durbin says.

"Many environmental statutes have these third-party lawsuit provisions, but there is a huge difference between an environmental law and a security statute, especially one with risk-based standards and sensitive security information," Durbin says. Environmental laws typically have easily measurable emission standards or discharge limits, he says, "so it's very clear whether you're in compliance or not."

But CFATS involves more subjective criteria based on risk, which makes it "much more difficult for an outsider—whether it be a citizen or a judge—to know if a standard is being met," Durbin notes. "So we do have concerns about having sensitive information," like site security plans and training records, "come out in the midst of a lawsuit," he says.

Ted Cromwell, senior director of security at ACC, notes that DHS can impose civil penalties of up to $25,000 per day for deficiencies and even shut a facility down for failing to comply with CFATS. "There are very stringent enforcement and compliance provisions already in the regulations," he says.

DHS Deputy Assistant Secretary for Infrastructure Protection James L. Snyder told the security conference that the department also opposes the civil lawsuit provision in the House bill. He said DHS has been making progress implementing CFATS. "Generally, litigation doesn't help that process," he added.

Because of the current economic problems facing the U.S. and higher priority items on Congress' agenda, Allmond says it is becoming less likely with every passing week that a comprehensive chemical facility security bill will pass in 2009.

"We really think a one-year extension will become more and more realistic as the summer starts to grow longer," Allmond remarks. An extension of the current program, he adds, would give lawmakers "adequate time to more carefully consider the benefits versus the costs of an IST mandate."