Next Step For Chemical Security

Industry officials are urging Congress to extend the current federal program for strengthening security at thousands of chemical facilities across the nation. The regulations give companies the flexibility to determine what measures they need to implement to harden their plant sites against terrorist threats.

But to reduce hazards and limit the damage that would result from an attack, the Obama Administration wants lawmakers to greatly expand the government’s authority over how chemical facilities operate. The Administration believes that high-risk chemical facilities should consider replacing, and in certain circumstances be required to replace, extremely hazardous substances with safer chemicals or more secure processes to better protect surrounding communities should an attack occur. A wide-ranging chemical security bill (H.R. 2868) the House of Representatives passed in November 2009 includes a mandate for safer technology.

Chemical manufacturers are backing a bill introduced last month by four members of the Senate Homeland Security & Governmental Affairs Committee. The bill would extend for five years the Department of Homeland Security’s authority to carry out and enforce a security program it developed in 2007 to protect facilities where chemicals are made, used, or stored. Known as the Chemical Facility Anti-Terrorism Standards (CFATS), DHS’s authority is set to expire in October. Bipartisan legislation (S. 2996) sponsored by Sens. Susan M. Collins (R-Maine), Mary L. Landrieu (D-La.), Mark L. Pryor (D-Ark.), and George V. Voinovich (R-Ohio) would keep the current program operating until Oct. 4, 2015.

“One of our nation’s greatest vulnerabilities is the threat of a terrorist attack against a chemical facility,” Collins said in a statement on the Senate floor announcing her legislation. The chemical industry, the statement continued, “is vital to our country’s economy, but it can also be a dangerous threat in the event of a terrorist attack. That is why it is critical that we enable the department to continue this important work.”

“Under CFATS, thousands of facilities across the country are taking action to secure their sites against a potential terrorist attack,” says Calvin M. Dooley, president and chief executive officer of the American Chemistry Council (ACC), a trade group representing the nation’s largest chemical companies. The Senate bill “recognizes and, more important, supports the significant effort already under way to safeguard chemical facilities,” he says.

“We hope this bill is the start of a new beginning toward a bipartisan solution to a permanent chemical security law,” adds William E. Allmond IV, vice president of government relations at the Society of Chemical Manufacturers & Affiliates (SOCMA), which lobbies on behalf of nearly 300 mostly small specialty and batch chemical manufacturers.

In the aftermath of the Sept. 11, 2001, terrorist attacks, security experts quickly identified the threat of a strike on a chemical plant as one of the greatest vulnerabilities facing the nation. In 2004, the Government Accountability Office, the investigative arm of Congress, estimated that an attack at any of the 123 most vulnerable U.S. chemical plants would put more than 1 million people at risk of serious injury or death.

In late 2006, after several years of debate, Congress gave DHS limited authority to begin an antiterrorism program specifically for high-risk chemical facilities. To determine which facilities should be covered by the regulations, DHS first required chemical facilities that possess threshold quantities of certain chemicals to complete an online security assessment known as a top-screen.

The list of 322 “chemicals of interest” includes common industrial products, such as chlorine, propane, and anhydrous ammonia, as well as specialty chemicals, such as arsine and phosphorus trichloride.

After screening nearly 38,000 facilities, DHS determined that more than 7,000 presented a high level of security risk and thus were subject to CFATS requirements. Those facilities were preliminarily divided into four tiers of escalating risk and were subsequently directed to prepare and submit security-vulnerability assessments. The assessments enable the department to more accurately identify each facility’s risk and to assign final risk tier rankings.

On the basis of final rankings, the facilities were required to develop site security plans addressing any vulnerabilities and to invest in protective measures. The security plans had to meet 18 risk-based performance standards set by DHS. The standards require facilities to take steps to achieve various goals, such as securing the perimeter, controlling access, deterring the theft of potentially dangerous chemicals, and preventing internal sabotage.

CFATS gives chemical facilities the flexibility to choose the protective measures that owners or operators decide best address the level of security risk present at a site, as long as the measures satisfy the performance standards.

In February, DHS began the first wave of compliance inspections, beginning with facilities in the highest risk tier. The department, which is empowered to shut down noncompliant sites, plans to complete all of its inspections by the end of the year.

At a Senate homeland security committee hearing earlier this month, Timothy J. Scott, Dow Chemical’s chief security officer and corporate director, noted that CFATS currently applies to only 6,000 of the 7,000 facilities originally determined to pose a high security risk.

The reduction has been brought about largely by voluntary material modifications that have lowered or eliminated the use and storage of hazardous chemicals on-site, thus lowering the risk profile of nearly 1,000 facilities, according to DHS.

“This clearly demonstrates that CFATS is working and should be fully supported,” said Scott, who testified on behalf of ACC. “The program is both comprehensive and demanding, but flexible enough to accommodate the unique needs and capabilities of individual sites.”

Stephen Poorman, international manager of environment, health, and safety at Fujifilm Imaging Colorants, told the committee that Congress can best ensure the continued success of CFATS by passing S. 2996 because it would give DHS sufficient time to fully implement it.

Speaking on behalf of SOCMA, Poorman said CFATS is driving facilities to reduce inherent hazards. In contrast, he argued, the House legislation “would jeopardize the progress that industry and DHS have made together under CFATS.”

The House bill, which passed 230-193 without attracting a single Republican vote, is strongly opposed by chemical manufacturers (C&EN, Dec. 7, 2009, page 34). Industry officials have focused their concern on a provision in the bill that would give DHS the authority to mandate the use of so-called inherently safer technology (IST).

Under the House legislation, high-risk chemical facilities would have to take steps such as using less toxic chemicals or switching to safer manufacturing processes to reduce the consequences of a terrorist attack. All covered facilities would be required to assess feasible alternative chemicals and processes. And DHS could order facilities in the top two risk tiers to implement a safer technology if it is technically feasible, is cost-effective, and lowers the risk at the facility while not shifting it elsewhere in the supply chain.

IST requirements in the House bill “would shift DHS’s focus from securing our industry against terrorism to conducting engineering and chemistry assessments, while potentially phasing out legitimate products,” Poorman told the Senate committee.

He also urged lawmakers to consider the economic ramifications of mandating process and product changes on small businesses, asserting that chemical manufacturers have already spent billions of dollars to secure their facilities and operations against terrorist attacks.

“Spending money to comply with new regulations necessarily causes companies to assess how they will pay for it,” Poorman said. “There isn’t much available capital these days for manufacturers to take on new regulations aimed at their very livelihood, especially small manufacturers.”

The Administration has taken no position on the House bill, according to Rand Beers, undersecretary for DHS’s National Protection & Programs Directorate. And he told lawmakers that the Administration would submit draft legislation to Congress in a few months detailing how it believes a permanently authorized CFATS program should be structured.

Most notable, Beers said, the Administration advocates giving DHS the authority to require, where possible, that the riskiest chemical facilities switch to a safer technology. In addition to putting in place physical and procedural safeguards to protect an individual facility and the surrounding citizenry, he remarked, the Administration believes “that changing the way a facility actually conducts its operations is another way security can be increased.”

The draft bill, Beers explained, would require all high-risk chemical facilities to weigh safer technology alternatives as part of their site security plans. In addition, he said, DHS would be given authority to require facilities posing the highest degree of risk to implement an IST method if it is both feasible and cost-effective.

Beers emphasized, however, that DHS would not move quickly to force manufacturers to switch to different chemicals or alter processes. “This is an area that requires a great deal more work,” he said. “That is why I want to repeat that we do not intend to proceed willy-nilly into an implementation regime.”

DHS would work closely with affected facilities before even setting guidelines for an IST program—if such a provision is enacted, Beers said. “It’s going to be a dialogue from the start.”

He also noted that the department’s implementation of the existing CFATS program “has been well received by the chemical industry, and we would expect to take the same kinds of deliberative measures and the same kinds of broad-based outreach before we even set guidelines.”

Although the chemical industry insists that an IST mandate does not belong in a chemical security bill aimed at preventing terrorist attacks, environmentalists and labor activists argue that the only certain way to protect communities is to remove the possibility of a toxic gas release by converting facilities to safer, more secure technologies.

“We were encouraged by Beers’s testimony,” Mae Stevens, policy analyst with Greenpeace USA’s Toxic Campaign, tells C&EN. “He reiterated the Administration’s strong support to conditionally requiring the highest risk plants, when feasible, to convert to a safer chemical or process. We strongly agree with that and look forward to working with the Administration to enact a comprehensive program this year before the temporary law expires on Oct. 4.”

At the Senate hearing, Darius D. Sivin, legislative representative for the United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), testified that the existing CFATS program is inadequate.

“Union members are concerned that their workplaces and communities are not adequately protected from deadly terrorist attacks on chemical facilities and drinking water systems,” Sivin said. “Employees are the ones who will get hurt first and worst in the case of an attack.

“In our judgment, the path forward should be a comprehensive chemical security bill at least as strong as the legislation passed by the House,” he added. “We urge this committee and the entire Senate to act promptly to approve such legislation.”

Sivin said UAW is confident that jobs are not threatened by the H.R. 2868 provisions for IST implementation to reduce the potential consequences of a terrorist attack.

“If there are exceptional cases in which implementation of methods to reduce the consequences of an attack would threaten jobs at a particular facility, the language in H.R. 2868 prevents implementation,” Sivin noted. “Moreover, the implementation provisions of the bill apply to only a small number of facilities, all of which have the opportunity to appeal.”

DHS has estimated that less than 3% of all facilities covered by CFATS, or fewer than 200 facilities, would be required to use safer chemical processes under the House bill.

In a statement at the hearing, Sen. Joseph I. Lieberman (I-Conn.), committee chairman, supported inclusion of a conditional IST requirement in a CFATS reauthorization bill.

“I believe it is important to look at these alternatives as part of a comprehensive security system, since they are the only foolproof way to defeat a terrorist determined to strike a chemical facility,” Lieberman said. “But I know some of my colleagues strongly oppose mandating even consideration of IST, so I look forward to engaging in that debate as we move forward.”

Security at U.S. chemical facilities has been strengthened significantly as a result of CFATS, Collins said at the hearing. “Simply put, the program works and should be extended. Proposals to drastically change this successful program would discard what is working for an unproven and burdensome plan,” she declared.

Collins insisted that an IST mandate does not belong in a chemical facility security regime. “IST is an approach to process engineering involving the use of less dangerous chemicals, less energetic reaction conditions, or reduced chemical inventories,” she said. “It is not, however, a security measure.

“And because there is no precise methodology by which to measure whether one technology is safer than another, an IST mandate may actually increase or unacceptably transfer the risk to other points in the chemical process or elsewhere on the supply chain,” Collins added.

Current law, she said, appropriately bars DHS from dictating specific security measures. “The federal government should set performance standards but leave it up to the private sector to decide precisely how to achieve those standards,” Collins said.

Forcing chemical plants to implement IST could wreak economic havoc on some facilities and encourage chemical companies to move their operations overseas “at a time when we can hardly afford the loss of those jobs,” she added.

William J. Erny, ACC’s senior director of security, tells C&EN that CFATS “has all of the power and authority needed to make sure that the chemical industry is properly securing their chemicals and protecting the communities adjacent to the facilities.”

“We believe that additional authority for DHS around issues like mandating IST is simply unnecessary and that Congress should support CFATS and make sure DHS has the resources and the manpower to fully implement it,” Erny remarks.