17 May 2013 09:58 [Source: ICB]
Significant progress is being made with the terrorism legislation, but much needs to be done to create a successful and permanent program
In the wake of the 9/11 attacks in 2001, there was agreement between the chemical industry, including NACD and the US government that a formalized anti-terrorism program was needed for sites that store and handle certain hazardous chemicals. The result was passage of legislation authorizing the Chemical Facility Anti-Terrorism Standards (CFATS) Program, with responsibility for implementation charged to the newly formed Department of Homeland Security (DHS).
Safety and security has risen to the top of the agenda in recent years, and has resulted in CFATS
DHS is credited with having made significant progress toward resolving the identified problems with the program in the 16 months since these issues came to light. In a recent US House of Representatives Subcommittee hearing and subsequently released report, however, the Government Accountability Office acknowledged this progress, but also found significant and previously unidentified issues with the program. These results have created additional uncertainty and differing attitudes about the program. Nevertheless, groups such as the NACD remain committed to working with DHS to resolve these additional issues and make the program permanent.
MAKING REAL PROGRESS
David Wulf, director of the Infrastructure Compliance Security Division (ISCD) within National Protection and Programs Directorate at DHS has spearheaded much of the changes in the CFATS program at the Department. He notes that 93% of the 95 point action plan drafted in 2011 is now complete, and all but one item will be resolved by the end of 2013. Major items on that list have included establishing a stable and skilled management team, the reassignment of personnel to better match skills with job requirements, the optimization of the Site Security Plan (SSP) review process, the development of standard operating procedures for inspections, and engagement between field inspectors and chemical-facility representatives when issues arise and retraining of inspectors.
"All of these changes are bearing fruit," Wulf asserts. "More than 200 Site Security Plans have been authorized and, over the past seven months, 58 Plans have been granted final approval." Wulf notes that ISCD expects to complete the approval process for approximately 400 SSPs by the end of 2013.
"While we are focusing on Tier 1 and Tier 2 facilities, which present the most risk, we are also making progress with the larger number of Tier 3 and Tier 4 facilities. In addition, we will be conducting the post-approval Compliance Inspections in the fall, so we are moving into the stage of the program in which a regular cycle of compliance-inspection activity will become a reality. While we are not as far along as we would like to be with the approval and authorization of SSPs and follow-up inspections, we have made real progress in the past year, and as we continue to go through the process, we will become more efficient and effective."
The one action item that will not be completed in 2013 is the development of enhanced online tools for conducting Security Vulnerability Assessments and developing SSPs that should make these processes much easier for covered facilities. ISCD is working with industry stakeholders to gather feedback about improvements that can be made to these tools, and it is expected that development of the enhanced tools will be completed sometime in 2014. Of great interest to industry as well are the results of a peer-review analysis of DHS' methodology for assigning risk tiers, which are expected this summer.
"While we are confident that our risk-tiering approach is appropriate for a regulatory compliance context, we are open to recommendations and opportunities for improvement," says Wulf. The American Fuel & Petrochemical Manufacturers (AFPM) clearly believes there is. "Risk modeling of the CFATS sites is the foundation of the CFATS program, and AFPM believes that the DHS risk modeling used for setting risk tier levels for facilities in CFATS is seriously flawed," says AFPM president Charles Drevna. The association is, however, encouraged that DHS has established the peer review panel to resolve the modeling issues.
Another big positive for Drevna has been the obvious efforts of DHS to communicate more frequently and more effectively with industry. "Stakeholder input is important for security awareness and creating the best plans to secure our critical infrastructure. The framework of the CFATS program is sound and was developed with industry's input. Securing the nation's critical infrastructure must be done with industry at the table to avoid any further implementation issues. AFPM is pleased that the level of stakeholder outreach has vastly improved in the past year, and encourages DHS to continue this positive trend."
NACD has also noticed the increased outreach by DHS. "The agency clearly understands that in order for this program to succeed, industry must be engaged and that, because of the diversity of the chemical industry, CFATS cannot be a one-size-fits-all program," observes Jennifer Gibson, vice president of regulatory affairs for NACD.
That recognition is another change that both DHS and members of industry, including chemical distributors, are excited about. NACD has held discussions with DHS on the development of Alternative Security Programs (ASPs) for chemical distributors and formed a working group of members to help to create this tool. "DHS stands ready and willing to work with us on this project," Gibson says. "ASPs would create a win-win situation as they would give facilities truly usable security plans and would help DHS to expedite the security plan authorization, inspection, and approval process."
Doug Brown, president of NACD member Brown Chemical Company, is encouraged by the potential adoption of ASPs. He found the SSP development process time consuming and frustrating, and does not believe the resultant set of document have much practical utility for his company. "An ASP designed for chemical distributors and integrated with the NACD's Responsible Distributione_SRTm program, particularly the new specific Security Code that NACD's Board of Directors recently and unanimously voted to create, would reduce the workload and increase the value of the security plan. That would be a tremendous benefit to NACD members," he asserts.
Wulf agrees that an ASP will make the process more efficient and effective for everyone, particularly for the chemical-distribution segment of the industry, with many very small companies with multiple smaller facilities and unique and often varying chemical inventories.
Security remains an important issue for NACD members and they want to help make the program as effective as possible
One major issue that remains to be addressed is the Personnel Surety Program (PSP), which vets the background of those seeking to gain access to high-risk facilities. DHS withdrew its initial proposal and made significant changes, incorporating feedback from meetings with from industry. The latest proposal was published in the Federal Register on March 22, 2013. "We believe that this new proposal reflects the input that we received from NACD and other chemical industry associations, companies and individuals," says Wulf.
Brown agrees that the revised proposal is better, but still needs further improvements to be practical for industry to implement it. According to Drevna, AFPM specifically wants to see a PSP program be written as a performance standard and recognize established federal vetting programs.
The topic of inherently safer technology (IST) is also an issue for the chemical industry. NACD is working hard to ensure that CFATS is not further complicated by counterproductive new requirements such as IST mandates, according to Gibson. "The act of conducting IST assessments would be extremely costly for NACD members and would not reduce risk, but could actually result in the transfer of risk to the transportation sector and increase the likelihood of product handling incidents," she explains.
While the recent progress made by DHS has been noted and well received, there is still concern at both the Department and within industry about the impact that the lack of certainty with respect to Congressional authorization of the CFATS program. "The need for yearly authorization is very frustrating and does affect the ability of facilities to make significant investments in security improvements for the long term, as they can't be sure if the requirements might change in the future," Wulf says.
Brown adds that the lack of a permanent, or at least multiyear program has made many companies reluctant to make major modifications to plants or processes because there is no assurance that the program won't be canceled or dramatically changed the next time it is reauthorized. He would like to see Congress extend the legislation for at least five years, but realizes that decision will hinge on how members of Congress respond to the progress DHS has made in addressing the serious issues raised in 2011.
"From what I have heard and seen, the Department has worked diligently and made good progress in implementing needed changes. Director Wulf seems to be sincere in his efforts to work with industry to implement the department's mandate in ways that are effective but not overly burdensome," Brown notes. Adds Wulf: "We want to see at least a multiyear authorization for the program. We have made real progress in the last year and a half and hope that Congress will pass legislation for permanent authorization. I am cautiously optimistic that we can achieve that goal."
Gibson, however, believes that convincing Congress to provide a long-term reauthorization for CFATS will be a challenging task given the slow pace of Site Security Plan (SSP) approvals and previous management problems. She points out that there have been many Congressional oversight hearings to highlight these issues, and many more are yet to come. In fact, at a recent House Committee on Energy and Commerce, Subcommittee on Environment and the Economy hearing titled The Chemical Facility Anti-Terrorism Standards (CFATS) Program: A Progress Update, Committee chair John Shimkus (R, IL) said in his opening statement that the progress DHS has made recently is "meant to get us back to a semi-functional program, not a perfect or fully implemented program." He also indicated that the CFATS program is at a "critical juncture" in that "the internal issues distracting the program are not now our focus, but rather getting the program right, functioning effectively, efficiently, as Congress drafted the law." Such comments seem to indicate that long-term authorization is unlikely.
A STRONG SUPPORTER
Gibson says: "NACD will, however, continue to express its support to Congress by highlighting the positive aspects of CFATS - that the program truly has improved security at chemical facilities and that DHS is making progress on addressing the program's management problems and on expediting SSP reviews, inspections and approvals." Wulf appreciates the support that NACD has given the program. "NACD has been a strong supporter of the CFATS program. Chemical distributors are a key part of the supply chain, and it is clear that security is an important issue for NACD members and that they have an active interest in making the program as effective as possible."
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