Issue Date: March 19, 2007
Securing Chemical Facilities
History repeats itself. In the 1915 Battle of Ypres, Germans released hundreds of tons of chlorine gas from thousands of cylinders in the direction of Allied forces huddled in trenches. The greenish clouds of this inefficient weapon of war managed to kill hundreds and maim and terrorize thousands of unsuspecting and unprotected troops.
Taking lessons from World War I and especially noting chlorine's potential as a weapon of terror, Sunni insurgents in Iraq in late February blew up several vehicles carrying chlorine gas cylinders. The resulting explosions sent forth clouds of the toxic gas that killed at least a dozen people and injured scores more.
The repercussive blasts of these acts of terrorism are being felt thousands of miles away. They are now rumbling through a U.S. regulatory system struggling to devise measures that will safeguard citizens against terrorist acts on domestic chemical facilities. In April, the Department of Homeland Security (DHS) is set to issue "interim final chemical facility security regulations."
The department's authority for issuing those security regulations flows from a rider attached to the must-pass fiscal 2007 DHS spending bill, which President George W. Bush signed into law last October. The rider-a provision having little connection to the spending bill-was crafted by Sen. Susan M. Collins (R-Maine), then-chair of the Senate Homeland Security & Governmental Affairs Committee, and Rep. Peter T. King (R-N.Y.), then-chair of the House Homeland Security Committee.
Their rider, which had bipartisan support in both chambers, was essentially a last-ditch effort to get stop-gap security measures on the books after Congress' repeated failures to pass comprehensive legislation five years after the terrorist attacks of Sept. 11, 2001.
The rider authorizes DHS to issue interim regulations to improve security at high-risk chemical facilities that are potential terrorist targets. These regulations are temporary because DHS's authority granted by the rider expires in three years or earlier if Congress passes full-blown, permanent security legislation.
The law directs DHS to set risk-based performance standards for high-risk chemical facilities. These facilities then have to undertake vulnerability assessments and develop and implement security plans.
Late last December, the department issued its proposed rules for public comment. As the American Petroleum Institute's (API) senior refinery associate, Ron Chittim, notes in his comments, the proposed regulations are flawed. He points out that they don't define "many very important terms ... such as 'high risk,' 'significant adverse impact,' and 'chemical facility.' " The lack of precise definitions makes "it very difficult to assess the true impact of the proposed regulations on regulated industry facilities," he says.
Under the proposed rules, DHS determines whether a facility is high risk and therefore subject to regulation. That determination is based on whether DHS believes a terrorist attack on the facility would result in "significant adverse consequences for human life or health, national security, or critical economic assets."
Chittim says that "many API member company facilities would not likely pose any significant adverse impacts to human health, national security, or the economy." As such, he says, they are not high-risk facilities and should be exempt from DHS's interim final rules.
Environmental advocates contend that the language of the proposed rules gives DHS too much latitude to exempt from security regulation facilities that, under its Clean Air Act authority, the Environmental Protection Agency already has determined pose significant risk to nearby communities.
For example, in their comments on the proposed regulations, New Jersey officials disagree with DHS's exclusion of public water systems and wastewater treatment facilities from the security regulatory program.
Rick Hind, legislative director for Greenpeace Toxics Campaign, also is concerned that DHS's proposal exempts thousands of water treatment facilities from regulation, many of which still use chlorine to disinfect potable water. He says that "nearly 100 water treatment plants each put 100,000 or more people at risk."
Hind argues that DHS should use the data companies already submit to EPA to screen facilities to determine which are high-security risks and, as such, subject to regulation. He is referring to EPA's risk management plans, part of the Clean Air Act, which require high-risk sites to develop hazard assessments and prevention programs.
Industry is also concerned about DHS's screening process. In a statement accompanying the American Chemistry Council's comments, Tom Gibson, ACC's senior vice president of advocacy, asks DHS to clarify how the department will use screening data to determine which facilities are deemed high risk.
Emphasizing industry's need for certainty, Gibson says, ACC wants "to ensure that all high-risk facilities clearly know their status and obligations early on so that they can take the necessary steps to demonstrate compliance." Additionally, the trade association asks that chemical companies be permitted to coordinate with DHS when the department makes decisions on high-risk facilities and when it issues guidance on implementing the regulations.
ACC also asks DHS to provide more time for their facilities to submit the mandated vulnerability assessments and site-specific security plans.
The Synthetic Organic Chemical Manufacturers Association, which represents about 300 mostly small specialty and batch chemical makers and importers, has a different take on the DHS regulations. In its comments, SOCMA suggests that DHS follow what it calls a "variable-risk" approach to regulating SOCMA companies.
Because product lines at batch manufacturing plants often vary from week to week, SOCMA argues that those plants should not have to meet the same requirements as, for instance, ACC facilities that might produce or use the same chemicals as the batch facilities do, but do so throughout the year.
Even as it seeks clarifications or changes, the chemical industry generally applauds DHS's proposals. The proposed rules, for example, do not mandate specific security measures that industry must take-such as requiring the use of safer methods and chemicals-and they permit DHS to approve existing industry security programs.
In a joint comment, the public interest groups OMB Watch and Public Citizen strongly object to approval of alternative private-sector security programs. The use of such programs, they argue, "has the potential to create an uneven playing field and limits the potential of a robust chemical security program which is applied uniformly across the chemical sector."
OMB Watch and Public Citizen add their voices to the chorus of objections from key lawmakers and environmental advocates who sharply criticize DHS's proposed security regulations. They all contend that DHS's rules stray significantly from congressional intent, and they all call on DHS to make major revisions.
Issues of particular concern to lawmakers and interest groups are federal preemption of state security regulations, the use of safer chemicals and processing technologies, and the sharing of security information.
That the proposed federal regulations would preempt state and local chemical facilities' security programs has prompted a stiff pushback from lawmakers and state officials. For example, in their comments on the proposed regulations, Rep. Bennie G. Thompson (D-Miss.) and five of his Democratic colleagues note that the language of the rider "is silent on the preemption of state laws," and DHS's "assertion of preemption of state laws clearly goes quite far beyond congressional intent." Thompson is chair of the House Homeland Security Committee.
Further fortifying their position, the House members argue that the Senate (S. 2145) and House (H.R. 5695) bills debated last year "make clear that congressional intent was to allow any state ... to enforce requirements that result in a higher level of security than that called for by the federal regime." These lawmakers "strongly recommend that the department reverse course on the preemption section" of the proposed regulations.
Collins' response when DHS issued the proposed regulations last December was succinct but tart. On the issue of preemption, she said DHS not only ignored congressional intent but manufactured "out of whole cloth" a proposal that "would unilaterally preempt state and local laws." Moreover, she said, the proposed preemption regulation "grants to the department a responsibility Congress never authorized, on an issue more properly presented to the courts: the difficult task of resolving complex questions of preemption."
In his February comments on the proposed regulations, Sen. Joseph I. Lieberman (I-Conn.), now chair of the Senate homeland security panel, worries that DHS's preemption language "seems calculated to imperil state and local laws." State and local programs, which have long regulated chemical facilities in the safety and environmental arenas, "should not be displaced" in the security arena, he argues.
The only exception, Lieberman says, is if "there is an absolute conflict" making it impossible for the regulated facility to comply with both federal and state/local regulations.
ACC's Gibson contends that DHS, in its rulemaking, properly interpreted existing law concerning preemption. He says the department is correct to conclude that federal preemption "is the default anytime Congress passes a law that is silent on the topic."
The lawmakers strongly disagree. Lieberman, for one, says DHS "should remain silent on preemption, as Congress did and as it intended the department to do."
However DHS comes down on the matter of preemption in its final regulations, Gibson says, "ACC does not believe that existing state chemical facility security programs-as currently implemented-conflict with" DHS's proposed regulations.
New Jersey is one of the three existing state programs that ACC is referring to. And New Jersey officials in their comments lambaste DHS's preemption provision as "unacceptable." New York and Maryland are the other two states with existing security programs for their chemical facilities.
New Jersey's regulatory scheme for securing chemical facilities incorporates, but is stricter than, the EPA's Risk Management Program. The state's regulations also mandate the use of safer technologies and chemicals.
In a letter appended to the state's comments, Richard L. Cañas, director of New Jersey's Office of Homeland Security & Preparedness, and Lisa P. Jackson, commissioner of the state's Department of Environmental Protection, write: "We have serious concerns ... about any language in federal regulations that has the potential to preempt existing state chemical security initiatives or limit future state actions to address unique vulnerabilities."
They assert that New Jersey's dense concentration of both critical infrastructure and population "may have no comparison in the U.S." As such, they argue the state "needs to retain the ability to go beyond any federal security baseline standard to ensure that our preparedness is in line with our potential vulnerabilities."
The New Jersey officials' bottom line is that DHS should set "a minimum standard" to ensure "a level playing field for the chemical industry." But the department should not prevent states and localities with special vulnerabilities from implementing stricter standards "to safeguard their citizens."
New Jersey officials and Lieberman highlight a glaring absence from DHS's rulemaking: a discussion of which state laws beyond those related to security would not be preempted by federal security regulations.
Lieberman notes that last year's House and Senate chemical plant security bills, which were debated but not passed, "specified that laws aimed at health, safety, and the environment should not be displaced." And he admonishes DHS "for failing to recognize, much less discuss, laws that should not be preempted."
New Jersey officials say DHS should clearly state that any security regulations the department promulgates are not intended to interfere with federal and state environmental and safety laws regulating the chemical industry.
Greenpeace's Hind also agrees with Lieberman's and New Jersey's assessments of the proposed rules. Hind paints DHS's preemption proposal as "outrageous" because it fails "to protect the right of states to establish stronger security standards," one of eight major failings of DHS's proposed regulations that he readily ticks off.
Hind maintains that DHS's "flawed" proposal "is an urgent reminder to Congress to resume the enactment of permanent legislation." As he notes, "DHS's 57-page proposed rule in the Federal Register is based on a 740-word rider to the 2007 DHS appropriations bill," which "explicitly expires" in October 2009. "It was enacted with the expectation that the next Congress would enact permanent, comprehensive legislation."
If DHS's final regulations fail to address lawmakers' criticism of the proposed preemption rule, and if DHS remains silent on the use of safer technologies and chemicals, Congress could be prodded to take action.
As Hind notes, "The proposed regulations fail to require the use of safer chemicals or technologies that can eliminate 9/11-magnitude risks that communities living within 14 miles of a chemical plant face each day."
An effective way to reduce such risks, Lieberman says, "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."
OMB Watch and Public Citizen suggest that DHS should break its silence and add provisions that "strongly encourage chemical facilities to consider implementing safer processes and using safer chemicals as a method to improve site security through the reduction of risk."
That is basically the approach taken in legislation that the House and Senate debated last year, Lieberman reminds DHS in his comments.
The senator acknowledges that the language in the rider "does not permit DHS to require implementation of a safer chemical or technology or indeed of any particular security measure." But, he argues, "there is no reason covered facilities should not be directed, or a bare minimum encouraged, to consider these approaches as a way to reduce risk at their facility."
In their comment, Thompson and his House colleagues note that it would "be wise" for DHS to address the use of safer processes, practices, or technologies. The House members say that such substitutions have "the potential to greatly minimize the physical security costs a chemical facility would otherwise have to assume."
Industry, which views the use of safer technologies and chemicals as an environmental, not a security, issue, chose not to address the issue in their comments on DHS's proposed regulations.
Stephen E. Flynn, senior fellow for national security studies at the Council on Foreign Relations and author of "The Edge of Disaster: Rebuilding a Resilient Nation," tells C&EN that "security is more than gates, guards, and guns." He argues that making potential targets secure against terrorist threats means making them "far less consequential as targets." The best way to make them less attractive targets is to institute safer technologies and chemicals, he says.
"Safer technologies and chemicals simply must be part of any bona fide discussion of how to secure the chemical industry," Flynn insists.
In its rulemaking, DHS proposed a new category of sensitive but unclassified information for certain chemical security information that it dubbed "Chemical-terrorism Vulnerability Information" (CVI). ACC says the department took the correct action in setting up CVI protection rules that are consistent with the Transportation Security Administration's sensitive security information rules. TSA's rules strictly limit information to those persons with a need to know, as does DHS's proposed rule.
New Jersey officials also agree with DHS that "information provided by chemical facilities ... should be protected from public disclosure." As such, they are "in agreement with DHS's desire to establish a new security regime for this information."
OMB Watch and Public Citizen disagree. They argue that DHS's proposed rule on CVI sets up "impediments to information sharing." Collins concurs.
Collins believes that DHS's regulation sets up a "need-to-know approach to information sharing where a need-to-share construct is more appropriate." Elaborating, Collins says, "Law enforcement and first responders must have access to vital information needed to prepare for and respond to a terrorist attack or other disasters at chemical facilities."
The public interest groups suggest that DHS replace its CVI policy "with a limited list of specific information that will be restricted from public disclosure." If CVI is retained, they say, the final regulation should include "a review process and a public appeals process." Also, they say, DHS should add a provision "stating that CVI will not impede the operations of existing state or federal programs."
As Thompson and his House colleagues argue, "Creating a new class of information may compromise" equally compelling priorities: shielding information from enemies and "disclosing information to the public when it has a right to know." In their comment, they stress that "only information that would provide vulnerability information about a facility and its security practices" should be protected.
If DHS fails to satisfy key lawmakers' strong objections when it issues its final regulations next month, Congress may be spurred into taking action this year to enact permanent security requirements at chemical facilities to replace what they consider to be flawed interim rulemaking by DHS. Key congressional offices contacted by C&EN were unwilling to comment on that possibility until they see how DHS responds to their criticisms to the proposed rules.
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