Ten years after the terrorist attacks on Sept. 11, 2001, public health and safety watchdogs are increasingly concerned that the country's program for securing chemical facilities from terrorists and thefts contains significant loopholes and leaves millions of Americans at risk.
They point to nearly 500 facilities, which the Government Accountability Office has repeatedly identified as potential terrorist targets, that put at least 100,000 people at risk should an attack occur. Ninety of those facilities would pose a threat to a million Americans or more, according to government documents.
In total, they say, one in three Americans lives in a potential chemical disaster zone should terrorists attack -- despite well-intentioned efforts by the Department of Homeland Security.
At issue is DHS's Chemical Facility Anti-Terrorism Standards (CFATS) -- a five-year-old program that works to protect chemical facilities through risk-based security plans.
But Paul Orum, a chemical security consultant for liberal advocacy groups, said the legislation that created CFATS was full of holes and failed to give DHS the necessary authority to effectively implement the program.
"CFATS has increased cameras and lights at some chemical facilities, but it has obvious conceptual failures that leave millions of American vulnerable," he said. "All of those fences and lights and cameras won't help when rail cars full of extremely hazardous substances simply pass through those fences and traverse the nation virtually unguarded."
Securing chemical facilities has been on Congress' radar screen since 2001, when then-Sen. Jon Corzine (D-N.J.) introduced a far-reaching program that would have required chemical facilities to consider switching to alternative, less toxic substances, referred to as inherently safer technologies (IST). The legislation, and an IST mandate, was opposed by industry and eventually died on the Senate floor.
Similar bills were introduced every year since, but none passed out of the Senate. As concern grew about chemical facilities as terrorist targets -- GAO issued reports in 2003 and 2006 highlighting their safety risks -- Congress responded by authorizing DHS to create CFATS in 2006 but only gave it six months to implement the program. It has relied on one-year extensions in the appropriations process ever since.
Rick Hind, Greenpeace's legislative director, said the original CFATS legislative proposal was intended to only be temporary.
"The primary failing is the statute," Hind said. "It's a do-nothing statute that was ghostwritten by industry. They want it, and they want it to be permanent."
Hind and Orum argue that CFATS falls short because it is not properly harmonized with other security programs and departments like the Coast Guard. Most notably, they note that water-treatment and wastewater facilities -- which often house large quantities of toxic chemicals like chlorine -- are exempt from CFATS. Similarly, port facilities typically fall under the Maritime Transportation Security Act (MTSA) and are also exempt from CFATS.
DHS, industry tout progress
Even critics acknowledge that DHS has made significant progress in creating and implementing the CFATS program in the last five years in spite of its limited mandate.
DHS "needs more authority to do the right job," Hind said.
The agency has completed 40,000 initial screens of chemical facilities and preliminarily identified 7,000 as high-risk. CFATS currently covers more than 4,500 high-risk facilities across all 50 states.
Further, more than 1,240 facilities have completely removed high-risk chemicals from their grounds. Nearly 600 no longer have quantities large enough to qualify as high-risk.
DHS began inspecting facilities in February of last year and has completed 175 inspections and plans to complete its safety inspections of the top-tier facilities by the end of this year.
The program "is delivering tangible results that make our nation more secure," Rand Beers, DHS's undersecretary for the National Protection and Programs Directorate, said at a congressional hearing earlier this year.
Industry has voiced its full-throated support of the current CFATS programs and touts chemical companies' cooperation with DHS and the program's accomplishments.
"The core of the program has remained solid," said Bill Allmond of the Society of Chemical Manufacturers and Affiliates (SOCMA). "It's comprehensive. It has teeth."
Further, American Chemistry Council (ACC) President Cal Dooley wrote a letter to Congress yesterday noting that his members have invested $10 billion in security enhancements since Sept. 11, 2001. Dooley also pointed to ACC's Responsible Care Security Code initiative for companies to protect their facilities.
"Thanks to our industry's initiatives and investments as well as a comprehensive set of regulations put in place to improve chemical security, the country is more secure today from terrorism," Dooley said. "Beyond industry initiatives, ACC and its members continue to be strong advocates for the regulatory programs put in place by government agencies, which set a high bar for chemical security."
Industry has pushed for a more permanent CFATS reauthorization so it does not have to rely on the year-to-year appropriations process. And Congress has moved on three bills -- H.R. 901, H.R. 908 and S. 473 -- that each provide multi-year extensions of CFATS largely as it exists now. Each of those bills has moved out of their respective committees and awaits a full floor vote.
Orum, Hind and several Democrats, however, have voiced many objections to the bills. In particular, they say the bills do not remove the exemptions for water and wastewater facilities and -- perhaps most importantly -- do not include an IST mandate (E&E Daily, April 1). Labor organizations, including the United Steelworkers, have also opposed the bills.
Hind noted that the entire issue of chemical facility security -- dating back to 2001 -- was rooted in considering requiring the use of less toxic substances to mitigate the potential damage in a terrorist attack.
"IST was the real center of gravity in terms of bringing the issue forward," Hind said.
He added that over the years, the concept has found support from major players in the Senate -- including President Obama, who as a Democratic senator from Illinois offered legislation including IST language as an amendment to a 2006 port security bill.
And DHS supports IST requirements for the most high-risk facilities and removing the water and wastewater exemptions.
House Democrats passed legislation (H.R. 2868) in 2009 that would have included an IST mandate and removed those exemptions. That bill stalled in the Senate in the run-up to the 2010 elections (E&ENews PM, Nov. 6, 2009).
This Congress, Sen. Frank Lautenberg (D-N.J.) has reintroduced the "Secure Water Facilities Act" (S. 711) and the "Secure Chemicals Facilities Act" (S. 709). The bills would require companies to assess whether IST would reduce the consequences of a terrorist attack. Similar legislation did not make it out of committee, and there has been no movement on this year's bills despite their having the support of more than 100 green, health and labor organizations.
Industry has lobbied against the Lautenberg bills, arguing that an IST standard produces an unnecessary economic burden. Chemical companies have also said that by requiring facilities to use alternative substances, the government could be creating new, unforeseen hazards (E&E Daily, April 6).
SOCMA's Allmond conceded, though, that IST is still a major sticking point for CFATS.
"It still remains an issue in our discussions," Allmond said.
Without such a mandate, Orum cautions that CFATS will continue to come up short.
"What is needed," Orum said, "is a legal mandate to review safer technologies to bring all of the current programs up to that standard."