Overcoming a stalemate

Congress slow to reach agreement on chemical security program

By Ashley Johnson, associate editor

With authorization set to expire in October, Congress has yet to finalize legislation that would continue the Department of Homeland Security’s program to protect the nation’s chemical plants from terrorist attacks.

The issue of chemical security came into sharper focus after 9/11. In 2006, Congress authorized DHS to regulate security at high-risk chemical facilities. That led to the Chemical Facility Anti-Terrorism Standards, or CFATS, a program that requires facilities that present “high levels of security risk” to assess their vulnerabilities and develop security plans.

The program’s original authorization lasted three years, giving legislators time to work on a permanent agreement. However, Congress has continued to authorize the program on a short-term basis, with legislation held up by issues such as committee jurisdiction and adding an “inherently safer technology” mandate.

“If we continue to reach stalemate, if we always have to fall back on doing these one-year extensions through an appropriations process, the government will be sending the wrong message to the industry and its workers – that it’s not serious about securing the chemical industry and its infrastructure,” said Bill Allmond, vice president of government relations for the Society of Chemical Manufacturers and Affiliates in Washington. Industry groups – including SOCMA – favor preserving the current program, while labor and environmental advocates want major reforms.

Several pieces of CFATS legislation were awaiting action in Congress when Safety+Health went to press. A DHS funding bill (H.R. 2017) passed by the House in June includes a one-year extension of CFATS. Also in June, the Senate Homeland Security and Government Committee approved a three-year extension of CFATS (S. 473). Two similar bills, H.R. 901 and H.R. 908, which would extend CFATS until 2017, also recently passed through their respective committees.

As of February, DHS had reviewed information from more than 39,000 chemical facilities and categorized 4,755 as “high risk” and subject to CFATS. The program currently excludes drinking water and wastewater plants – a critical security gap in the eyes of DHS – although Sen. Frank Lautenberg (D-NJ) introduced legislation this year to bring those facilities under CFATS.

Security upgrades

Allmond said companies have spent “multiple millions of dollars” on security upgrades, such as surveillance cameras, background checks and secured access, and without long-term authorization, they have no confidence that today’s investments will meet tomorrow’s standards.

Tim Scott, corporate director of security at The Dow Chemical Co., headquartered in Midland, MI, agreed. “DHS has made significant improvements in the assessment and security of the chemical industry, but it has yet to truly complete the first full cycle in this process,” he said in an email to S+H. “Long-term authorization would allow DHS to finish the first cycle and adjust to identify any gaps or opportunities for further improvement. The continuing short-term authorizations cause uncertainty and inefficiency in the implementation of CFATS.”

Scott noted that as the country’s leading exporter, the chemical industry must balance maintaining the necessary flow of products going through company gates with ensuring the security of people and vehicles that enter and exit the site.

“The risk-based approach adopted by DHS supports the right level of security, at the right time, in the right place,” Scott said.

However, he added, accurate risk identification and timely communication to the industry will remain a challenge. “Constant vigilance and a strong partnership between industry and DHS are critical to our success,” Scott said.

The real danger

In Allmond’s opinion, CFATS is a good program. “It’s comprehensive,” he said. “And it has teeth. The Secretary of Homeland Security can shut a facility down for non-compliance. That’s a huge incentive for compliance.”

But Kim Nibarger, a health and safety specialist with the United Steelworkers in Pittsburgh, argued that physical upgrades fail to address the real danger.

“The problem is it just doesn’t go far enough,” he said. “It leaves it up to [individual companies] to decide what security measure they need to take, and quite frankly, the cheap way out is fences and surveillance cameras, whereas substitution and elimination gets rid of the target.”

USW supports legislation from Lautenberg that would require companies to use safer chemicals or processes. The union also proposed changing CFATS to allow knowledgeable facility employees to participate in site assessments and security plans.

Nibarger said switching to less toxic chemicals reduces the exposure risk for workers. As support for inherently safer technology, he cited a 2009 Congressional Research Service review of Environmental Protection Agency data that showed 91 chemical facilities each pose a risk to more than 1 million people. But Allmond insisted an inherently safer technology mandate would negatively impact consumers and the economy.

Creating legislation that pleases all sides is difficult. Rep. Dan Lungren (R-CA), sponsor of H.R. 901, conceded as much during a subcommittee markup of his bill in April. 

“Although implementation has been slower than Congress wanted, CFATS is working,” he said. “Is it a perfect plan? No. Are there gaps? Probably. But our priority should be to extend this working chemical security program and not allow the perfect plan to be the enemy of the good.”