ACA and the Paint Industry: Addressing Chemical Security and CFATS
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In the wake of the terrible explosion at the West Fertilizer plant in West, Texas on April 17, security requirements for chemical facilities have not surprisingly come under increased scrutiny. In particular, some federal lawmakers are questioning the efficacy of the U.S. Department of Homeland Security’s (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) program. Since the program was first authorized in the 2007 DHS appropriations bill, CFATS has required “high-risk chemical facilities” to report possession of certain listed chemicals of interest above a threshold level, complete a security vulnerability assessment (SVA), and ultimately implement protective measures to meet DHS-defined risk-based performance standards through an approved site security plan (SSP).
It has been widely reported that West Fertilizer had failed to report its possession of substantial amounts of ammonium nitrate (AN) pursuant to requirements under CFATS, which requires facilities to report the possession of AN in excess of 2,000 pounds. It is important, however, to note that even if West Fertilizer had in place a fully approved SSP, this, by itself, would not have been likely to have averted the fire and explosion. CFATS categorizes AN as a “theft and diversion” material, and even had site security procedures been in place, they would have correctly focused on keeping the material out of the hands of potential terrorists, rather than on the hazard of accidental fire and explosion.
CFATS also requires covered facilities to implement measures designed to identify people with terrorist ties that will have access to their sites. Confusion around this issue has led some members of Congress to examine chemical regulations under the jurisdiction of agencies such as DHS, to the U.S. Environmental Protection Agency (EPA), and the Occupational Health and Safety Administration (OSHA), and has raised questions about whether improved enforcement of existing regulations or additional regulations could have averted the West Fertilizer explosion.
The American Coatings Association (ACA) represents the more than $20 billion dollar paint and coatings manufacturing industry in the United States, which operates in all 50 states, and employs over 60,000 people engaged in the manufacture and distribution of its products. The coatings industry, along with other chemical manufacturing industries, is regulated by a number of regulations and laws that regulate chemical safety, including CFATS, EPA’s Risk Management Plan (RMP) program authorized by Sec. 112(r) of the Clean Air Act, and the Occupational Safety and Health Administration’s Process Safety Management (PSM) that offer a broad “safety net” for chemical use and security when properly implemented.
While these programs cover many of the same chemicals, they often apply at different thresholds and have somewhat different objectives based on the agency administering them. For example, CFATS has as its primary objective the development of security measures to prevent the deliberate release of highly toxic chemicals, such as chlorine, or the theft or diversion of other chemicals, such as AN, that can be used to manufacture explosives for use by terrorists.
ACA supports the safe handling and use of chemicals, but believes that a coordinated approach would best serve the public’s interest in safety, as well as its interest in the key role the chemical industry plays in supporting our national economy. This Issue Backgrounder highlights the need for each agency to implement chemical security and safety regulations correctly, and as prescribed, in order to fulfill and enhance the public trust in our government agencies to protect people and the environment.
DHS Under Fire
In 2011, officials within the Infrastructure Security Compliance Division (ISCD) of DHS conducted an extensive internal review of CFATS implementation. The review identified numerous problems, among which were that no facilities had yet received final approval of their site security plans, though industry had complied in submitting them. During Congressional oversight hearings, it became increasingly evident that the CFATS program was plagued with internal problems. In fact, ACA was invited to submit its views and insights to the House Energy & Commerce Committee on the status of CFATS — specifically on the findings of the 2011 internal review that revealed a number of problems that have occurred in the course of ISCD’s implementation of the CFATS program. A detailed program review by the DHS Inspector General of the CFATS program published March 25, 2013 shed additional light on a number of management challenges that ISCD faces in its mandate to fully and successfully implementing the program. However, ISCD officials have recently expressed the view that the increased rates of SSP processing is reducing the backlog and demonstrates that they are successfully addressing the challenges identified in the internal review and the Office of the Inspector General report.
EPA and “Inherently Safer Technologies” Convolute the Issue
ACA strongly opposes well-publicized efforts by some environmental advocacy groups which have called upon EPA to develop new chemical security regulations that would impose so-called “inherently safer technology” requirements, using what these groups contend is EPA’s authority under the general duty clause of Section 112(r) of the Clean Air Act Amendments of 1990.1 In a May 16, 2012 letter to the White House, these advocacy groups assert that this measure is necessary because of what they claim is the failure of Congress to act responsibly. In fact, the heavy-handed approach that these groups are asking EPA to consider imposing on regulated facilities has been thoroughly considered by several Congresses and consistently rejected. The program that Congress has developed and reauthorized on several occasions — CFATS — while not yet fully implemented by DHS, has already accomplished many of the goals that the environmental advocacy groups claim to seek, including the fact that approximately 3,000 sites have reduced risk by voluntarily changing their ingredients or processes. The entry of EPA into this homeland security area will not improve security, but will create additional overlapping and duplicative requirements that will impose heavy new burdens on industry without improving security.
On Feb. 28, 2013, Representatives Mike Pompeo (R-Kan.), Jim Matheson (D-Utah), Billy Long (R-Miss.), and Bob Latta (R-Ohio) sponsored legislation (H.R. 888, the General Duty Clarification Act) that would bar EPA from regulating chemical facility security under the Clean Air Act’s general duty clause to mandate installation of “inherently safer technologies” at chemical facilities. The General Duty Clarification Act would require EPA to institute a transparent rulemaking process to clearly define facility obligations under the General Duty Clause of the Clean Air Act, and to ensure proper future application of the clause, based on Congressional intent. The bill affirms that chemical facility security remains under the exclusive jurisdiction of the DHS, thus precluding EPA regulation. ACA and the coatings industry support maintaining DHS’s jurisdiction over chemical facility security.
CFATS Personal Surety Program
In light of the problems of implementation noted earlier, a recent DHS CFATS Information Collection Request (ICR) related to implementation of the personal surety program requirements mandated by Risk Based Performance Standard 12 is another source of concern for ACA and industry. 2 This ICR is a step in the creation of a regulatory standard that will control access into CFATS facilities. However, instead of complying with the risk-based framework mandated by CFATS, DHS intends to implement a rigid vetting program based on information gathering, rather than enabling a system that focuses on making a facility more secure. The personal surety program under review will require companies to submit to DHS the names of personnel (e.g., employees, contractors, and visitors) who are granted unescorted access to critical assets at least 48 hours prior to gaining access. The intended purpose is to enable DHS to screen their names against its Terrorist Screening Database (TSDB). As a result, facilities that have hundreds or even thousands of entries daily could suffer major disruptions to operations, or be forced to assign plant personnel as escorts for the many visitors they might receive on a daily basis.
ACA and other affected industry groups have recommended that DHS instead allow companies the option to accept existing federal fingerprint-based background check credentials (such as the joint TSA-U.S. Coast Guard Transportation Worker Identification Credential (TWIC) and the Customs and Border Protection’s FAST (Free and Secure Trade) card to satisfy all the requirements of RBPS-12 without creating a redundant program that ultimately provides no additional security value and is inconsistent with the risk-based performance standards model established by Congress to govern chemical security.
For more information, contact:
Allen Irish, Counsel & Director of Industry Affairs; (202) 462-6272 or firstname.lastname@example.org
1 Section 112(r)(1) of the 1990 the Clean Air Act amendments, commonly known as the General Duty Clause, requires owners and operators of stationary sources to work to identify and prevent accidental releases of hazardous substances.
2 Criticisms of an earlier personnel surety ICR by ACA and other organizations led ISCD to withdraw the proposal from OMB.
consideration last summer in advance of Congressional hearings.