Chemical Plants, Terrorism and Regulations May Be Back on the Agenda

The Chemical Facility Anti-Terrorism Standards, or CFATS, program expired in 2023. Above, a chemical plant in Channelview, Texas. Photo: Roy Luck via Flicker Creative Commons (CC BY 2.0 DEED).

Feature: Chemical Plants, Terrorism and Regulations May Be Back on the Agenda

By Jeff Johnson

In a surprising request, executives of several chemical industry associations are pushing for greater regulation.

Yes, you heard that right — they want regulations. Not any regulation — and certainly not U.S. Environmental Protection Agency regs — but anti-terrorism regulations from the Department of Homeland Security.

As this develops, reporters may want to stay tuned. The environment, terrorism and chemicals can make for a rich combo.

 

Key program fails in congressional dispute

The Chemical Facility Anti-Terrorism Standards, or CFATS, program was created in 2007 to address fears that chemical companies using potentially lethal chemicals could become inviting terrorist targets.

It required anti-terrorism security actions for approximately 3,200 high-risk industrial facilities that use, make or store significant levels of some 300 dangerous chemicals spelled out in the law.

Affected companies had to assess their terrorist risks and submit site security plans to the DHS for review and approval. The facility managers then had to implement protective measures based on their specific level of risk.

 

The 16-year-old program expired,

caught in a dispute in the Senate

after it had cleared the House 409–1.

 

But last July, the 16-year-old program expired, caught in a dispute in the Senate after it had cleared the House of Representatives 409–1. The Senate dispute concerned whether any government anti-terrorism requirement would be too onerous for industry and whether anti-terrorism efforts should be left to manufacturers.

The bill, which would have simply extended the current law, died.

Much of the program was controlled by companies with help from DHS, and the companies want it back.

Community and environmental groups want it back too, but with greater oversight, more transparency and requirements to investigate and at least formally consider phasing out dangerous chemicals altogether and instituting inherently safer technologies, or IST.

Of these high-risk facilities, 28% are in the country’s largest urban areas and within a mile of some 7,000 schools, colleges and universities, as well as 300 hospitals, according to DHS. Altogether, DHS estimates nearly 90 million people live or work within two miles of a high-risk facility.

 

‘Regulators and industry are aligned’

Last month, the manufacturers announced at a briefing their intention to refire efforts to get a federal bill and regulations into a law that would make DHS the enforcer with oversight, inspection and auditing authority.

The novelty of industrial chemical makers pushing for greater government regulations and inspections was not lost on speakers at the Jan. 16 briefing.

“I spend a good portion of my day job pushing back against federal regulatory overreach,” said Chris Jahn, CEO of the American Chemistry Council, a trade association of chemical makers. “But this is a unique situation in which regulators and industry are aligned. Our companies should not be forced to go it alone; we need a partner that can provide threat information and security expertise.”

 

Jahn said the industry can’t replace

DHS’s role in finding, identifying

and vetting potential terrorists.

 

In particular, Jahn said the industry can’t replace DHS’s role in finding, identifying and vetting potential terrorists. To reduce this risk, CFATS mandated that anyone who might have direct access to a facility’s high-risk chemicals be vetted against the Terrorist Screening Database that DHS had created.

But Jahn was also concerned that states, local agencies and any other regulatory agency would jump in and fill DHS’s role, creating a patchwork of security oversight systems, and might introduce a more rigorous regulatory system, rather than a system developed by industry itself and overseen by DHS.

Several industry groups at the briefing, including the American Chemistry Council, singled out the fear that the EPA might step into the gap and take on the security function and add provisions to address other environmental and community concerns.

 

Community groups want chemical phase-out

At the briefing and on its website, DHS said that CFATS has improved security at high-risk chemical facilities by an average of nearly 60%.

To meet security standards, DHS added, high-risk facilities have implemented tens of thousands of new security measures such as cameras, alarms, fences and locks, training programs, cybersecurity and community outreach.

However, community groups want more than fences, locks and cameras. They want businesses that use and store lethal chemicals, and companies that make them, to phase them out. They also doubt DHS’s inventory of high-risk companies is comprehensive and worry DHS oversight is inadequate.

 

Community groups often point to

West, Texas, as an example of

what’s at stake and what can go wrong.

 

Community groups often point to West, Texas, as an example of what’s at stake and what can go wrong. In 2013, a retail farm fertilizer supply warehouse and store blew up, killing 15 people, mostly firefighters.

The surrounding community and the emergency responders were unaware it held 270 tons of ammonium nitrate-based fertilizer, which triggered that explosion and also has been responsible for many industrial accidents and terrorist attacks, such as the Oklahoma City bombing of 1995.

Through CFATS, DHS had clear authority over the facility, and such facilities were required to notify DHS when they produce, store or distribute 400 pounds or more of ammonium nitrate annually. The West facility far exceeded this threshold but never filed a report with DHS.

“It appears this operator was willfully off the grid,” said Rep. Bennie G. Thompson, D-Miss., the top Democrat on the House of Representatives’ Homeland Security Committee at that time. “We understand that DHS did not even know the plant existed until it blew up,” Thompson continued.

The accident led to a federal examination of such regulations, but new regulations did not result.

 

Debate over ‘inherently safer technologies’ approach

Groups such as Coming Clean and the Environmental Justice Health Alliance for Chemical Policy Reform want government regulators and companies to require consideration of IST. They also want DHS to make clear to emergency responders and community members what chemicals are being held in local facilities.

These groups represent a network of local communities living on the fenceline of companies that make and handle chemicals with terrorism potential and lethal properties.

Industries have long opposed mandated requirements to implement IST as an interference in their manufacturing processes, and DHS has agreed.

This flexibility is one of the key reasons chemical manufacturers support CFATS, said the American Chemistry Council’s longtime spokesman Scott Jensen. “CFATS takes an approach that is not overly prescriptive and establishes performance standards and then allows us to figure out how to achieve them.”

 

Approximately 40,000 company facilities

handle some amount of chemicals that

are on DHS’s list of chemicals of concern.

 

That view is echoed by Kelly Murray, associate director of the Cybersecurity and Infrastructure Security Agency, a part of DHS. Approximately 40,000 company facilities handle some amount of chemicals that are on DHS’s list of chemicals of concern, she said, and about 3,200 are handled at levels in which these facilities are considered to be at the highest risk

“These companies can reduce their holding or change the concentrations or opt for a safer alternative and get out of the regulatory system,” Murray said. “When CFATS was in operation, we had conversations every day about this, but we left it to the companies to make those decisions.”

Some did, she said, giving the example of water and wastewater utilities that eliminated bulk chlorine gas by shifting to liquid chlorine bleach and ultraviolet light as a purifying agent.

However, critics, like former Greenpeace organizer Rick Hind, argue that such performance standards are totally voluntary, don’t call for a push to IST and fail to recognize the security benefits of eliminating catastrophic hazards and reducing the overall attractiveness of chemical facilities as terrorist targets.

 

EPA Risk Management Program moves forward

Hind adds that an EPA proposal, expected to be made final this year, will carry IST provisions. The EPA’s proposed Risk Management Program will regulate some 12,000 companies that use toxic and dangerous chemicals and will call for them to consider IST. And Hind said a CFATS reauthorization should do the same.

This position is also opposed by the ACC, according to Jensen.

Yet the requirement for IST has long been recommended by the Chemical Safety Board, an independent nonregulatory government agency that investigates chemically related accidents.

“My view continues to be that the best way to prevent chemical disasters, whether triggered by poor management systems or by a terrorist attack, is to minimize the underlying hazards, wherever practicable,” said Rick Engler, a former CSB member. “Both CFATS and the EPA's Risk Management Program rules would be most effective if they included specific requirements for adoption of inherently safer processes."

Whatever happens with CFATS and the EPA’s RMP, both may have significant impacts on communities, workers and industries.

There is currently no legislation in the House or Senate on CFATS reauthorization, but the ACC is urging congressional leaders to include reauthorization language in a must-pass spending package this year.

RMP is supposed to go into effect this year but will be opposed in its proposed form by industry groups. Community groups for their part will try to toughen it if they get the opportunity.

These two regulatory programs will be good but complex sources of stories in the year ahead and will call for deft reporting by journalists.

[Editor’s Note: For more on this topic, see Backgrounders on the need for ongoing coverage of chemical safety and on a potentially explosive fertilizer in your community, along with a feature on how journalistic teamwork uncovered years of chemical regulatory failure in Texas. We’ve also got Toolboxes to help you use the CompTox chemicals dashboard, CAMEO software for covering chemical disasters and TSCA chemical data sets, and a TipSheet on using toxic chemicals data for reporting in your community. And track headlines with EJToday.]

Jeff Johnson is a longtime member of the Society of Environmental Journalists who writes for Chemical and Engineering News, a chemical science publication of the American Chemical Society (not to be confused with the manufacturers’ trade association, the American Chemistry Council, quoted in this article). For more from Johnson on this topic, see his earlier report on the federal examination of such regulations, and more recent stories on the Senate dispute and the EPA’s proposed risk management program.

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* From the weekly news magazine SEJournal Online, Vol. 9, No. 7. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.