I recently received an email from an international researcher on chemical plant security. He wanted to know my opinion on how well the chemical industry in the United States and the Department of Homeland Security were cooperating on the implementation of the new CFATS regulations. Since I am not affiliated with DHS, nor am I working with any chemical company currently undergoing CFATS implementation, I could only provide him my opinion based on open source documentation. But, after sending my reply and getting involved in an extended discussion afterwards, I realized that this is an issue that deserves wider discussion.
DHS is not saying much about this subject, for legitimate reasons, in my opinion. They do not want to give away any substantial information to enemies of our country about how well they are progressing in assessing and addressing security at chemical facilities. Failing to cooperate with DHS would presumably indicate an unwillingness to address security concerns, making the facility more of a target. The intermediate sanctions available to DHS would not necessarily require public disclosure. The final solution of closing an uncooperative facility would certainly make the news, but with the deadlines for various requirements that would merit that response still well in the future and the series of appeals available to delay that response, we cannot expect the remotest possibility of that final sanction reaching the press for months at the earliest.
While DHS is not willing, nor able under CVI rules, to discuss individual facilities, they do have an obligation to Congress to keep them up to date on their progress in this area. On July 24, 2007 Col Robert B. Stephan, Assistant Secretary for Infrastructure Protection, testified before the House Subcommittee on Transportation Security and Infrastructure Protection about the progress DHS was making under the provisions of their new regulations. Interestingly, this testimony is not listed on the DHS Press Room Web Site, though it is freely available on the subcommittee site.
Col. Stephan testified that on June 11th DHS made verbal notification to 50 selected chemical facilities previously identified as potentially high risk to initiate the Top Screen Process. As previously coordinated, a DHS inspector was on site at each of these facilities to help them work through any problems they had with the Top Screen Process. This helped to get some of the highest risk sites quickly into the system and served as a real life validation that the Top Screen system worked as planned.
Additionally, the chemical industry was notified that self-identified potential high risk facilities could initiate their Top Screen process without waiting for publication of the final version of the Appendix A to 6 CFR part 27; that appendix provides specific guidance as to which facilities are required by law to complete that process. According to Col Stephan over 6,000 facilities were, as of the date of his testimony, registered in the CSAT process and in some stage of completion of their Top Screen.
Finally, he reported that 194 facilities had already completed their Top Screen as of July 24th. At the level of highest potential risk, we are apparently seeing at least a modicum of cooperation between industry and government.
At the lower ends of the risk scale we are seeing much less cooperation, and, in fact, some political fighting against the regulations. The Propane Industry has vociferously objected to the 7,500 lb Screening Threshold Quantity for propane listed in the Proposed Appendix A to the CFATS regulation. They and some of the agricultural users of propane have brought Senators from at least two states into the fray, demanding that DHS exempt their industries from compliance with the new regulations. Apparently this political infighting has been at least somewhat successful, the publication of the final version of Appendix A, “due out in a few weeks” according to Col. Stephan’s testimony, is still being held up; further delaying full implementation of the CFATS regulations.
The vast majority of the chemical industry falls some where in between, both in size and probably in the degree of cooperation that can be expected. Most facilities are ill equipped to tackle the detailed requirements of a brand new federal regulation, lacking the manpower, training and funding. Most recognize that they have a responsibility to their owners, employees and communities to protect their facilities from terrorist attack. DHS has two options to deal with this commercial disconnect; they can take the time consuming, manpower intensive road to train these companies in the requirements of the new regulations or they can publicly lower the hammer on a few non-cooperative facilities to scare the remaining companies into hiring the necessary expertise to achieve compliance.
For the time being it looks like DHS is taking the cooperative road. Hopefully there will not be a successful terrorist attack against an inadequately protected facility in the mean time. If that happens, Congress and the American people will come down on DHS and the chemical industry like a load of bricks. The outcry after the 9-11 attacks will pale into insignificance if a successful attack injures civilians outside of a facility that anti-chemical activists have been warning about for years. The political and commercial fallout will break DHS and the chemical industry.
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