INSIGHT: US site security regs; a Pandora’s Box

03 October 2007 16:03  [Source: ICIS news]

By Joe Kamalick

 

BALTIMORE, Maryland (ICIS news)--The new US chemical facility anti-terrorism regulations may prove to be something of a Pandora’s Box, spilling an increasingly complex set of rules and complicating life perhaps even for firms far from US shores.

 

Robert Stephan, assistant secretary at the Department of Homeland Security with primary authority for the new regulatory programme, says that bringing the new site security rules into being has been an epic struggle.

 

“Everything is difficult in this,” he told a group of chemical industry security executives at a meeting here this week. “Everything is so complex, and there are so many interest groups and thousands of jurisdictions” that influence or seek to influence how the rules are crafted and enforced.

 

Actually, the new Chemical Facility Anti-Terrorism Standards (CFATS) are not yet being enforced, even though they became effective on 8 June. Everything is on hold until the White House office of management and budget completes its review of the department’s seminal list of “chemicals of interest”.

 

That list, formally known as Appendix A of the regulations, contains the names of more than 300 chemical substances and threshold amounts for each that will determine whether a facility that produces, uses, stores or distributes any one of the compounds will fall under the department’s regulatory purview.

 

Regulatory watchdogs at the White House are reviewing the list to ensure it does not impose undue burdens on the very industry that the department seeks to protect from terrorist assault. 

 

Stephan indicated that the White House review should be completed by the end of this month and that as many as two dozen chemicals have been pared from the list.

 

When Appendix A is published in final form, Stephan estimates that owners or operators of as many as 80,000 US facilities will have to complete an online screening process to find out which sites with threshold amounts of any of the 300+ substances will be judged by the department as “high risk” locations.

 

High risk chemical facilities are those where the nature and quantity of on-site hazardous materials could cause large-scale fatalities, widespread environmental damage or severe economic dislocation if they were detonated or otherwise released into a surrounding community.

 

Those high-risk facilities - Stephan estimates there may be 5,000-8,000 of them - will have to conduct a security vulnerability assessment (SVA) and a draft a site security plan (SSP) designed to remedy their vulnerabilities.

 

Although the department will not dictate specific security measures to site operators, it must approve all security plans and can deny its imprimatur to any that fail to meet its yet to be defined standards. 

 

The department has authority to shut down any plant that fails to implement adequate antiterrorism safeguards.

 

The risk-based regulations are based on the assumption, Stephan says, that “we can’t protect 100% of all of our valuable infrastructure assets for 100% of the time, a concept that everyone accepts - in theory”.

 

“That is why the regulations are risk-based, so that we can work to protect those sites that pose the most dire consequences for human health, the environment or the economy if successfully attacked,” he said.

 

“The theory implies that there are some sites and facilities that are not as important as others, and everyone seems to accept that,” he said, “until you’re dealing with any one of thousands of police, fire and environmental jurisdictions across the country and each one expects that we’re going to protect 100% of their assets 100% of the time.”

 

It has been a struggle just to get the baseline Appendix A list of threshold chemicals completed, and full rollout of the regulations is shaping up to be an equal challenge.

 

Some of the chemical industry security executives at the conference told another department official that they still don’t know what’s going on with the rules and whether or how they will affect their companies’ operations.

 

Dennis Deziel, deputy director for chemical security compliance at the department, said that because this is a new area of regulation, “there are a lot of areas that are subject to interpretation, and we’re just going to have to work those out as we go along”.

 

For example, Deziel told industry executives that the regulations might even apply to the non-US employees of foreign firms at their overseas locations - if those employees control the cyber traffic, IT operations or product disposition at a high-risk US chemical facility. 

 

The department, said Deziel, may require security background checks and other controls for those foreign workers because they would be in a position to divert critical chemicals to criminal cohorts or terrorists.

 

Even though the department would not have formal jurisdiction over a foreign firm on foreign soil, it would have de facto jurisdiction because the department has the authority to shut down non-cooperative facilities. 

 

So the foreign firm might have to accept the department’s regulatory authority or risk seeing its US plant shuttered.

 

“We haven’t gotten there yet,” Deziel said of the possible extra-territorial reach of the department’s new site security rules. “But it is something we are going to have to look at and come to a decision.”

 

Stephan insists it all will work out, that the marriage of government at all levels and the private sector in this massive security undertaking will be effective.

 

“We can never afford to get this wrong at the strategic level,” Stephan warned. “We have to get this right every day, but our enemies only have to get it right once.”

 

A great deal remains to be done, but maybe it can all be sorted out in the end.

 

According to Greek mythology, when Pandora released all the world’s evils from her box, she shut the lid before Hopelessness could escape.

ICIS Copyright © Reed Business Information 2009

Author: Joe Kamalick
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