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A Deadly Dance on Chemical Security Regulation

The Department of Homeland Security takes two steps forward and one step back with its new hazardous material regulations.

The Department of Homeland Security released Appendix A of its Chemical Facility Anti-Terrorism Standards, or CFATS, on Friday, which lists threshold quantities of more than 300 chemicals that may require stronger security measures at chemical facilities across the country.

The CFATS lists the quantities above which facilities that manufacture, store, or use hazardous chemicals that pose a security risk if released, ignited, or stolen must complete a Top-Screen survey. The final version of Appendix A, which will be formally published in the Federal Register later this month, dictates that affected chemical facilities must register with DHS and complete the Top-Screen survey within 60 days. Depending on the results, several thousand facilities are expected to fall under DHS’s new chemical security authority and enact stronger physical security measures such as improved fencing, lighting, and access controls.

Chemical security is arguably the most significant homeland security vulnerability confronting the United States today. Deadly chemicals, particularly gases such as chlorine, ammonia, and sulfur dioxide, represent one of the very few genuine terrorist nightmare scenarios that threaten hundreds of thousands of people.

The risk associated with hazardous chemicals is real, not imagined. Insurgents in Iraq have attempted on several occasions to convert chlorine gas tanker trucks into improvised explosive devices. Because of this, Congress passed needed, if less than perfect, legislation in September 2006 that granted DHS the authority to regulate high-risk chemical facilities. 

The good news is that DHS has put together a credible regulatory framework. This represents a significant improvement over the largely voluntary and ineffective approach that the Bush administration took for five years following 9/11 where some chemical manufacturers and users improved security, but many did little.

The bad news is that DHS caved to pressure from the White House and industry when it came to setting the threshold quantities that would potentially trigger additional security measures. When DHS released its interim final rule on chemical security in April, its proposed list of chemicals of interest included threshold quantities that were 25 percent more stringent than levels used by the Environmental Protection Agency in its safety protocols. DHS’s initial judgment was correct—the risk associated with a deliberate attack on a chemical facility is higher than the risk associated with an industrial accident. As a result, its standards should be stricter than those set by the EPA.

Unfortunately, in the end, the White House decided that political management was more important than risk management. DHS was forced to take a step backward and adopt the same threshold quantities used by the EPA, even though safety and security are very different challenges.

What’s more, it is unclear if DHS has the capacity to properly implement its chemical security authority. Thousands of facilities will be affected by even these weaker standards, but DHS currently has fewer people devoted to chemical security nationwide that we have securing a single neighborhood in Baghdad. DHS will need more resources to do this right.   

This question of how to best implement these standards should be taken up by Congress and the next administration. DHS’ chemical security regulatory authority is temporary and sunsets in 2009. In the meantime, Congress should pass comprehensive and permanent chemical security regulation that mandates the development of distinct security standards that are appropriate across the full range of facilities that employ acutely hazardous chemicals and appropriates sufficient resources to make sure that the standards are implemented effectively.

Permanent chemical security regulation should also close existing loopholes that allow some major chemical manufacturers and users, such as water treatment facilities and chemical facilities at ports, to evade stronger security requirements. And it should create incentives for the private sector to adopt more secure alternative practices—shifting to new technologies, different compounds, on-site manufacturing or safer storage techniques—that will reduce our vulnerability to terrorism.

Effective chemical security must also focus on chemical supply chains, including the shipment of hazardous chemicals on freight rail lines and highways that flow through major metropolitan areas, thereby creating terrorist targets that would not otherwise exist.

For more information on the Center’s chemical security policy, please see:

 

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