The Chemical Facility Antiterrorism Standards program is administered by Homeland Security’s National Protection and Programs Directorate. It is separate from the Coast Guard, a DHS branch that focuses its chemical security efforts on potentially hazardous facilities located on navigable bodies of water.
Inland chemical plants covered by the CFATS program must submit plans for dealing with 18 areas of risk including physical protections, control of access, materials security, insider attacks and computer infiltration. The measures are aimed at preventing accidents and acts of sabotage that could cause the release of deadly chemicals into the area surrounding such facilities.
As of Jan. 6, the program covered more than 4,000 high-risk sites. House Republicans have been highly critical of the effort, however, since an internal DHS memo publicized earlier this year indicated the program has been plagued by a litany of management issues, including a failure by department personnel to conduct facility inspections and complete reviews of security plans.
Consequently, the GOP-controlled House Appropriations Committee recently recommended slashing funds for the program in fiscal 2013. The panel on May 16 approved legislation that recommends only $45.4 million for the chemical security program in fiscal 2013, which is $29.1 million less than the Obama administration is requesting and $47.9 million below what Congress appropriated for the present budget year.
The legislative report accompanying the bill says it “is the committee’s understanding that even with … changes that are currently being implemented, it will still be more than a year before the CFATS regulatory process authorizes, approves and inspects even a single facility of the over 4,500 facilities that are part of the program.”
In the report, the committee called for the “undersecretary for NPPD, in conjunction with the commandant of the Coast Guard, to undertake a critical review of the department’s implementation of the CFATS program.” It suggests that the Coast Guard’s experience implementing its own security programs at seaside chemical facilities could be helpful to CFATS.
“In comparison to the CFATS program, the Coast Guard successfully implemented a regulatory review and compliance program for all port facilities including chemical facilities, as required by the Maritime Transportation Security Act of 2002,” the committee report says. “In less than two years after enactment of that act, vessels and port facilities had conducted vulnerability assessments and developed security plans to include: passenger, vehicle, and baggage screening procedures; security patrols; restricted areas; personnel identification procedures; access control measures; and/or installation of surveillance equipment.”
The committee asked that the collaborative report address a number of questions including whether the CFATS program can “inspect facilities in a timely manner” and whether “there are alternatives that are less onerous than the requirements currently required under CFATS.”
Bill Allmond, vice president of government affairs for the Society of Chemical Manufactures and Affiliates, told Global Security Newswire that he is skeptical of the Coast Guard’s ability to conduct a review of the CFATS program. He said the two programs are “very different”; while the CFATS program requires facilities to comply with specific, universal regulations, the Coast Guard takes a more case-by-case approach, with security plans drafted by facilities and approved at the discretion of regional agency officials, creating what Allmond said is “very little consistency” from one facility to the next.
He argued that the CFATS program and the maritime security regime run by the Coast Guard, while each appropriate for their given uses, are not interchangeable.
In addition, Rick Hind, legislative director for Greenpeace, said that while the Coast Guard has a far better record for conducting facility inspections than the CFATS program, it does not set standards and is thus not sufficiently prescriptive regarding improvements that would be needed at chemical sites. Hind called efforts to incorporate the Coast Guard’s approach into the CFATS program a “false solution” to the initiative’s problems.
Allmond also criticized efforts in the House to justify the proposed deep budget cuts to the CFATS program by pointing to the implementation problems. “The House seems to want to have it both ways,” Allmond said. “They provide no regulatory certainty by authorizing the program year-by-year rather than passing permanent legislation then criticize the program for not carrying out implementation.”
Legislation the Democrat-controlled Senate Appropriations Committee approved this week recommends $86.4 million for the program, which is roughly $6.8 million below what Congress provided for fiscal 2012 but $11.9 million more than what the Obama administration has requested for fiscal 2013. Even the cuts proposed by the administration are “too deep to ensure change for the better can be completed,” the Senate committee said in its report.
The Senate Appropriations Committee’s approach to the CFATS program is “more reasonable,” Allmond said, but added that neither strategies are likely to be adopted into law given the likelihood that Congress will pass a continuing budget resolution rather than individual spending bills.
In a statement to GSN, Representative Robert Anderholt (R-Ala.), chairman of the House Appropriations Homeland Security Subcommittee, defended the proposed cut to the program, saying that at the time of the panel's oversight hearings, lawmakers "received very little from the department in the way of establishing milestones and a timeline associated with a corrective plan for the program." He said, however, that in recent weeks the committee had received some additional information and that the Government Accountability Office is expected to release a "full review" of the program this summer.
"I'm currently reviewing the new information the Ddpartment submitted and will evaluate the program's funding level again at conference time" with the Senate, Anderholt said.
Spokespeople for the Homeland Security Department and the Senate Appropriations Committee did not respond to requests for comment by press time.
Brian McKenna, spokesman for the American Chemistry Council – another industry group – told GSN that his organization would not take a position on whether the House or the Senate’s approach to the CFATS program is preferable. However, as “Congress looks for guidance in programs at other agencies, including the Coast Guard, we encourage lawmakers to also consider leveraging private-sector programs to help improve the overall efficiency of the CFATS program,” McKenna said in a prepared statement.
Similarly, the House Appropriations Committee in its report called for a DHS report “on how the CFATS program is addressing the use of alternative security programs established by private sector entities in the implementation of the CFATS program.
The law that authorizes the CFATS program allows the Homeland Security Secretary to “approve alternative security programs established by private sector entities, federal, state, or local authorities, or other applicable laws, if the secretary determines that the requirements of such programs meet the requirements” of the CFATS law and regulations.
“In light of estimates that it may be seven years before all facilities have an approved site security plan and are inspected, NPPD must look at alternative methods to address the massive backlog of unapproved site security programs,” the House report says. “While alternative site security programs may not be advisable for high-risk facilities, the committee believes that in many cases the use of alternative programs may be an efficient and effective method to reduce the backlog currently in existence.”
A coalition of more than 100 labor and environmental groups charge that the CFATS regulations already give industry too much leeway, however. The so-called “blue-green” alliance has been lobbying the Obama administration in recent years to allow the Environmental Protection Agency to use its authority under the Clean Air Act to craft more stringent chemical security regulations. Activists and some Democratic lawmakers argue a recent National Research Council report on a fatal 2008 explosion at a West Virginia chemical plant supports this position (see GSN, May 15).
“Given the continuing gridlock in Congress, we are writing to urge you to take executive action to ensure that high-risk chemical facilities fulfill their obligation under the Clean Air Act to prevent the catastrophic release of extremely hazardous chemicals,” the coalition says in its latest letter to President Obama on the issue.
The May 16 letter notes that Bush-era EPA Administrator Christine Todd Whitman and the National Environmental Justice Advisory Council – a federal advisory panel that makes recommendations on issues expected to disproportionately impact low-income and minority communities -- both recently adopted this position (see GSN, April 4).
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