Senate bill would extend chemical security rules

Nick Snow
OGJ Washington Editor
WASHINGTON, DC, Feb. 8 – Four members of the US Senate’s Homeland Security and Governmental Affairs Committee introduced bipartisan legislation to extend by 5 years existing federal regulations on chemical plant security.

Refiners and petrochemical plant operators have expressed concern that proposals for new chemical plant security requirements ignore a program that has not been fully implemented while attempting to indirectly impose new environmental regulations.

Sens. Susan M. Collins (R-Me.), Mary L. Landrieu (D-La.), Mark L. Pryor (D-Ark.), and George V. Voinovich (R-Ohio) said their bill, S. 2996, would give the US Department of Homeland Security sufficient time to fully implement standards that it developed in 2007.

Collins, the bill’s primary sponsor and the committee’s ranking minority member, praised DHS for its work in developing a comprehensive chemical security program.

“This industry is vital to our country’s economy and important to advancements and innovations, but it can also be a dangerous threat in the event of a terrorist attack,” she said. “That is why it is critical that we enable [DHS] to continue this important work. The legislation passed by the House of Representatives would unwisely bring this progress to a screeching halt.”

In her floor statement introducing the bill, Collins said DHS’s Chemical Facilities Anti-Terrorism Standards (CFATS) establish 18 risk-based performance standards covering items such as securing the perimeter and critical targets, controlling access, deterring theft of potentially dangerous chemicals, and preventing internal sabotage.

“CFATS, however, does not dictate specific security measures,” she continued. “Instead, the law allows chemical facilities the flexibility to choose the security measures or programs that the owner or operator of the facilities decides would best address the particular facility and its security risks, so long as these security measures satisfy the department’s 18 performance standards.”

Phased implementation
She said since 2007 DHS has hired and trained more than 100 chemical facility field inspectors and headquarters employees and hopes to employ 260 more by the end of fiscal 2010. DHS also has received more than $200 million to date to support CFATS, she indicated.

Collins explained that to determine which facilities posed the highest risks, DHS first required chemical plants possessing certain threshold quantities of specified chemicals to complete an online security assessment called “top-screen.” Based on this assessment and any other available information, DHS then determined whether a facility presented a high security risk level and preliminarily divided such plants into four tiers of escalating risk.

While all covered facilities must satisfy DHS’s performance standards, security measures sufficient to meet them are more robust in higher tiers, Collins said. For plants that qualified as “preliminarily high risk,” DHS required preparation and submission of security vulnerability assessments that enabled the department to more accurately identify each plant’s risk and assign final risk tier rankings. Based on those rankings, facilities must develop site security plans and submit to inspections or audits to ensure compliance, the senator said.

DHS employees involved in CFATS have processed a tremendous amount of information in relatively short time, she noted. “According to the department, since establishing CFATS, it has reviewed almost 38,000 Top-Screen submissions and notified more than 7,000 facilities of their high-risk designations and preliminary tiers,” she said.

As of December, however, CFATS covered only 6,000 facilities, according to Collins. “Some facilities closed; others made material modifications that altered their risk profile,” she said. “Of those remaining, the department has assigned final tiers to almost 3,000, including all of the facilities in Tiers 1 and 2, and is now reviewing their site security plans.”

‘Swap horses’
DHS has received generally positive reviews as it has implemented CFATS in partnership with the private sector, and the program has been praised as a model for security-based regulation, she continued. “Notwithstanding the department’s success in the program and the considerable costs that facilities have incurred in complying with it, some now want to ‘swap horses in midstream’ by radically overhauling the law,” said Collins, adding that a bill the House passed in November would dramatically alter CFATS’s nature and stop its progress dead in its tracks.

She and the bill’s three co-sponsors were particularly critical of the House measure’s provision requiring the use of inherently safer technology (IST) in CFATS Tier 1 and 2 plants. “IST is an approach to process engineering involving the use of less dangerous chemicals, less energetic reaction conditions, or reduced chemical inventories,” Collins 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.”

Forcing chemical plants to implement IST could wreak economic havoc on some facilities and affect availability of several commonly used end products, she warned. A mandatory IST program could encourage chemical companies to move their operations overseas, she added.

“To be clear, some owners and operators of chemical facilities will want to use IST. But the decision to implement [it] should be that of the owner or operator, not a Washington bureaucrat,” Collins said. “In fact, the evidence is quite compelling that many chemical facilities, based on an assessment of many complex factors, have already taken steps to avoid the use, storage, and handling of extremely dangerous chemicals in favor of safer alternative processes. [DHS’s] own data indicate that nearly 1,000 facilities voluntarily adopted safer alternative processes.”

The House bill also includes provisions directing the US Homeland Security Secretary to establish new risk-based performance standards and allowing third-party lawsuits against DHS over CFATS’s implementation, she said. S. 2996, in contrast, would not only continue work already under way but also establish a voluntary chemical security training program for federal, state, and local governments; chemical industry employees; and government and non-government responders, and a voluntary program to test these capabilities, Collins said.
Contact Nick Snow at nicks@pennwell.com

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