Chemical Facility Security Hearing

Last Friday the Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies of the House Homeland Security Committee held a hearing looking at the CFATS program. Under Secretary Rand Beers provided an update on the implementation process and three private sector witnesses addressed the issue of inherently safer technology as it relates to CFATS.

CFATS Update

In his written testimony Beers gave a fairly detailed report on the progress of the CFATS implementation process. Here is a quick look at some of the numbers that he reported:

>39,000 Top Screen submissions
>7,000 Preliminary high-risk designations
4,755 Current high-risk facilities
4,094 Current final high-risk designations
>4,000 SSP/ASP submissions
>175 Pre-Authorization Inspections
65 Administrative Orders issued

In his initial oral presentation to the sub-committee Sec. Beers provided the following additional numbers

9 Letters of Authorization issued
4 Authorization Inspections completed
0 Facilities with fully approved SSP
1246 Facilities removed all COI from site
584 Reduced COI inventories below STQ

There is no explanation in his written testimony about why there has been this unexpected delay in completing the SSP approval process. In fact, there is no specific indication in that document that there has been a delay. In response to questioning by Chairman Lungren (R, CA), Beers acknowledged the delay, but provided no detailed explanation for the reason beyond blaming ‘inadequate submissions for SSPs’. He was not pressed to explain why all SSP submissions reviewed to date have been inadequate.

One new CFATS related program was reported in the DHS written testimony, the “CFATS-Share” program. It isn’t that new, having been initiated in May 2010, but this newly-reported on-line tool is an information sharing portal that provides “interested state Homeland Security Advisors, DHS Protective Security Advisors, and fusion centers access to detailed CFATS facility information as needed” (pg 6).

Inherently Safer Technology

The Obama Administration has long asserted its support for including some form of inherently safer technology (IST) mandate in the CFATS program. This was reiterated in the Beers written testimony with the following list of their “policy principals” with regards to IST (pg 9):

o The Administration supports consistency of IST approaches for facilities regardless of sector.

o The Administration believes that all high-risk chemical facilities, Tiers 1-4, should assess IST methods and report the assessment in the facilities’ SSPs.

o Further, the appropriate regulatory entity should have the authority to require facilities posing the highest degree of risk (Tiers 1 and 2) to implement IST method(s) if such methods demonstrably enhance overall security, are determined to be feasible, and, in the case of water sector facilities, consider public health and environmental requirements.

o For Tier 3 and 4 facilities, the appropriate regulatory entity should review the IST assessment contained in the SSP. The entity should be authorized to provide recommendations on implementing IST, but it would not have the authority to require facilities to implement the IST methods.

o The Administration believes that flexibility and staggered implementation would be required in implementing this new IST policy.

Not surprisingly, Chairman Lungren clearly expressed his opposition to any IST mandate being included in CFATS reauthorization legislation. This is a policy shared by the full committee chair, Rep. King (R, NY). With that powerful opposition in place it was more than a little surprising that the main focus of the oral testimony focused on IST. Having said that, the deck was stacked favoring the Chairman’s point of view (not surprising since he is the Chairman).

The industry representative, Timothy J. Scott (from DOW and representing ACC) clearly expressed his opposition to any IST consideration or implementation mandate being included in the CFATS process. Dr. M. Sam Mannan, (Director, Mary Kay O’Connor Process Safety Center) provided technical support for the anti-IST position noting that there is no clear definition of, or metric for, IST that would allow for including such a mandate in the program.

The only public witness supporting an IST mandate, albeit indirectly, was George Hawkins, the General Manager of the Washington, DC water utility. This utility is one of the pro-IST exemplars, removing chlorine gas and sulfur dioxide from their water treatment process largely as a response to the perceived threat from release of those two chemicals. Even his support, however, fell into the category of ‘damning with faint praise’. His testimony noted the high capital cost and increased on-going chemical costs necessary to make his facility safer.

He also provided the best anti-IST argument for water treatment facilities in his response to questioning by Rep. Long (R, MO). He noted that his utility would follow whatever regulations imposed by the government, but noted that increased costs would inevitably further reduce the money he can spend on maintaining his deteriorating piping system, a common problem for these utilities. Of course, this same argument can be used to justify failing to upgrade the currently inadequate security requirements imposed upon utilities.

CFATS Reauthorization

The underlying theme for this hearing was one that everyone apparently supported; the need to permanently authorize the CFATS program. Of course, that is the generic policy. The details of what would be included in such authorization legislation are where there will be significant disagreement. Chairman Lungren made clear his opposition to including an IST mandate while Ranking Member Clarke (D, NY) made equally clear her desire to see an IST mandate included.

Other issues are apparently still open for discussion. Lungren maintained that he is ‘an agnostic’ on the issue of removing the water system CFATS exemption. He explained that the current exemption was added to make the chemical security legislation easier to get through House Committee system. Under questioning by Rep. Richardson (D, CA) he mentioned that he could probably support adding whistleblower protections, depending on how they were worded.

It will be interesting to see how the legislative process proceeds in this session of Congress. Will the various sides of the debate be able to craft legislation that will make it through both the Republican dominated House and the barely controlled Democratic Senate? We’ll just have to see.