DHS Speaks To Chemical Industry | July 9, 2007 Issue - Vol. 85 Issue 28 | Chemical & Engineering News
Volume 85 Issue 28 | pp. 29-30
Issue Date: July 9, 2007

DHS Speaks To Chemical Industry

Summit on security regulations gives instructions and advice on what to expect
Department: Government & Policy | Collection: Homeland Security, Safety
Chertoff tells chemical managers that DHS want to create a partnership with the industry on security.
Credit: Barry Bahler/DHS
Chertoff tells chemical managers that DHS want to create a partnership with the industry on security.
Credit: Barry Bahler/DHS

THE LONG ROAD to federal regulations on chemical plant security takes a major turn this month, as tens of thousands of facilities that use or manufacture chemicals register and report to the Department of Homeland Security on their potentially dangerous chemicals as required.

At a three-day conference last month, top officials from DHS told hundreds of plant operators and security managers what they can expect. Over the next several months, they can expect a lot.

Since the interim final regulations on chemical plant security were published in April, DHS had also proposed a list of chemicals and quantities that must be reported to the department if any are used by a facility. This so-called Appendix A will be finalized soon, and its publication in the Federal Register will be the catalyst kicking off a sequence of assessments required by the security regulations. The final result will be individual site-security plans for facilities that present a significant chemical risk as determined by DHS.

The meeting, the 2007 Chemical Sector Security Summit, was a joint workshop of the Chemical Sector Coordinating Council and DHS. The coordinating council is an umbrella organization composed of 18 trade associations whose members are engaged in the production, use, storage, or transportation of chemicals. The chemical sector is one of 17 industry sectors affecting critical national infrastructure with which DHS works.

A primary purpose of the summit was to get information about the new security regulations to the people in the chemical facilities who need to know it. The most frequently heard theme from the DHS officials was that they wanted a partnership with industry.

"We really wanted to get the message out about what the expectations of the regulations would be," coordinating council chair Richard J. Kane, director of security and environment for Rhodia North America, tells C&EN. "DHS was very pleased with the turnout and the participation at the meeting." He volunteered that partnership is the philosophy the industry has been using in working with the department for some time now.

Partnership also was emphasized by DHS Secretary Michael Chertoff, who addressed the meeting. "No matter how good our intentions are in Washington, we simply can't know enough about each of the individual variations in chemical plants and chemical types all across the country," he said. DHS needs to "share knowledge, information, and intelligence about threats with our partners and state and local officials across this entire sector."

Lawrence M. Stanton, acting director of the Chemical Security Compliance Division of DHS, provided a lot of useful information to attendees. A major contributor to the development of the DHS regulations, he argued strongly that with the right amount of cooperation and partnership, the plan would work.

"THE RULES are designed to set up a discussion between the operators of facilities and us," Stanton said. "We are seeking to reach agreements with individual sites on what will be done. The last thing we want to do is go into a facility and say this is what we want you to do."

According to Stanton, the security regulations break down into several discrete sections. Any facility that thinks it might be subject to the regulations must immediately go online and get a user name and identification number from DHS in order to be able to fill out what is called the top-screen component, he said. The top-screen, in conjunction with the chemicals listed in Appendix A, is the first review of a facility that DHS conducts, and it provides data on what potentially dangerous compounds the facility makes or uses and in what quantities.

Appendix A has been a source of controversy by itself. As first proposed, the list of 342 compounds included many that required reporting if the quantities held were "any amount." Many people, particularly those in the academic community, worried about how long it would take to comply with this requirement (C&EN, June 4, page 29). Stanton assured the conference that there would be no "any amount" levels on the final list and maintained that the top-screen process could be done by any facility in a reasonable amount of time.

Facilities have just 60 days to complete the top-screen reporting once Appendix A is published. With this information, DHS will determine whether a terrorist attack on that facility might have any serious consequences, Stanton said. "We expect for the majority of plants that there will be none," he said, and they will be excused from any further planning.

Several factors are to be considered along with the top-screen data when evaluating a facility. These include the consequences of a release of a hazardous chemical, whether a chemical might be the target of theft or diversion, possible problems that could be caused by reactive chemicals stored on-site, and whether an attack on the facility would have any serious impact on the nation's economy or on critical government missions.

If DHS determines that a facility may be at risk from terrorists, it will notify the facility, which then will have 90 days to prepare and submit a Security Vulnerability Assessment. Among other data, this document must include identification of the hazards of concern at the facility, a risk assessment, and an analysis of countermeasures the facility might take to reduce the threat of an attack.

On the basis of all the data DHS has then received about a plant, it will rank the plant into one of four tiers according to the seriousness of the threat and consequences. Facilities then will have 120 days more to develop their individual site-security plans.

DHS does not have a clear idea of just how many facilities are going to register for the risk assessment. Robert B. Stephan, the DHS assistant secretary for infrastructure protection, guesses that as many as 80,000 facilities might be eligible. Of these, he says, 5,000 to 8,000 might pose a serious enough risk to be eligible for tier ranking. And the vast majority would be Tier 4, the lowest risk category, which requires a minimal protection plan. Of the rest, DHS thinks maybe 300 facilities will get the toughest Tier 1 ranking, and maybe 500 more will be ranked Tier 2. These are the plants that will get the most attention from DHS.

That attention will be in the form of on-site inspections to ensure that the plant complies with its security plan. DHS is training a cadre of inspectors, many of whom are law-enforcement officers from the Federal Protective Service, part of the Treasury Department. This group of about 40 is receiving special training in chemical plant operations and security.

According to Joe W. Trindal, regional director for the National Capital Region of the Federal Protective Service, the inspections should be a dialogue between the plant and the department. "The enemy is not the chemical industry," Trindal said. "We are looking forward to working with you to secure your facilities and assets. Because the DHS regulation is not prescriptive, it is essential that there be a two-way dialogue between the inspectors and the facility staff."

THERE IS, however, an enforcement stick that follows the carrot of cooperation. If a plant is not showing a diligent effort to complete its security plan, DHS has the power to shut it down. And the department can fine a company up to $25,000 per day for not complying with standards. Chertoff was emphatic on this point. "For any of you in the audience who may feel that spending on security is low priority, believe me when I say we will take very seriously accountability and our ability to put in sanctions if necessary to spur and incentivize performance."

As might be expected, DHS is concerned about the confidentiality of chemical plant information. Conference speakers emphasized the department's efforts to ensure that the data on vulnerability and the site security plans are kept secret. This information will be protected by the Chemical-terrorism Vulnerability Information (CVI) system, a new information-handling protocol developed by DHS.

CVI data will only be available electronically and accessible only to the few persons designated by the facility. According to Andrew J. Puglia Levy, deputy general counsel of DHS, the CVI system preempts all state and local sunshine laws, which are laws that, for various reasons, require information to be made public. Facility managers will be required to sign nondisclosure agreements for CVI, Levy said, and the information cannot be given to local police or firefighters without DHS permission.

Stanton repeated this propensity for secrecy. "What your tier ranking is and what your top-screen information is are confidential," Stanton said. "If a local official asks for your confidential vulnerability information, we will determine if that person needs to know the information."

One factor that could change some of the department's plans is legislation pending in Congress. Concerned that the government's chemical plant security program involves voluntary actions by the chemical companies themselves, some members of Congress are trying to change the language of the law to make the regulations more prescriptive and to ensure that the federal rules cannot preempt any tougher state or local regulations.

At the conference, Stanton insisted that, at present, the DHS regulations do not conflict with the various state laws on chemical plant security and that the wording about state preemption is not needed. The department is concerned that states would develop plans requiring all facilities to take exactly the same steps to reduce risks, a cookie-cutter approach to security that would actually be easier for terrorists to circumvent. As Stanton told the meeting: "There are no two chemical facilities that are the same. They have different pipes, locations, toxic chemicals, and personnel. It's not smart for an organization to tell all plants to do the same thing."

Rhodia's Kane says that the coordinating council may hold future summits, but it is still considering various options. Working on chemical plant security is still at the start of a long journey, Kane says, with a lot of lessons to be learned as the journey progresses. "We expect it to keep going for a long time."

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