By Chris Krebs
Vice President at Dutko Worldwide

Over the weekend, the Houston Chronicle added some fuel to the smoldering chemical security legislation fire with an article by Monica Hatcher, where she claims that “almost a decade after the Sept. 11, 2001 attacks, the Department of Homeland Security has inspected just 12 of the 6,000 facilities that require special security measures.”

She soon followed up with another article citing House of Representatives Homeland Security Committee, Transportation Security and Infrastructure Protection Subcommittee Chairwoman Sheila Jackson Lee’s call to hold hearings to determine the cause of the inspection delays. In short order, chemical security all-star blogger PJ Coyle rolled out a comprehensive post addressing the inspection issues associated with the regulatory program.

Before moving into a discussion of the articles’ fallout, I want to briefly address the nature in which Ms. Hatcher characterizes DHS’s engagement with the Chemical Sector.  While it is technically true that only 12 facilities have been inspected for compliance with the DHS Chemical Facility Anti-Terrorism Standards (CFATS) regulatory program since September 11, 2001, the Department’s chemical security activities pre-date Congress’s 2006 legislative mandate. As a matter of background, estimates within the 2003 National Strategy for the Physical Protection of Critical Infrastructures and Key Assets indicated there were over 66,000 chemical plants in the United States. Assuming 6,000 are covered by CFATS, what of the 60,000 other plants that don’t fall within the CFATS regulatory regime?

Well, to answer that question, here’s a quick snapshot (drawn from 2007 testimony by then-Assistant Secretary for Infrastructure Protection Bob Stephan) of DHS voluntary programs, many of which include “boots on the ground” facility visits, designed to enhance security and protection capabilities around our nation’s chemical facilities:

  • Targeted over $42 million in Buffer Zone Protection Program grant funding around more than 400 chemical facilities across the United States, assisting local law enforcement in enhancing critical infrastructure protection across the country.
  • Conducted six regional Chemical Sector Comprehensive Reviews (CR), a structured, collaborative government and private sector analysis of high value critical infrastructure and key resources facilities. (Detroit, Lower Chicago, Houston, Los Angeles, Northern New Jersey, and the Lower Delaware River).
  • Targeted another $25 million in grant funding to enhance state and local jurisdictions’ ability to protect and secure identified chemical facilities associated with the Chemical Sector CR.
  • Provided security awareness practices and counter-IED awareness training to chemical sector representatives.
  • Integrated the private sector into national level exercises (in fact, National Level Exercise 2008 featured the explosion of a chemical tanker holding 4000 lbs of methyl isocyanate – of Bhopal, India infamy).
  • Developed chemical sector driven requirements for threat and intelligence products generated by the Department’s Homeland Infrastructure Threat and Risk Analysis Center (HITRAC).

So as you can see, DHS’s chemical security activities don’t start and stop with CFATS.  It’s a multilayered approach to protection and resilience that relies on public private partnerships and interagency coordination.

Now back to the Houston Chronicle articles – Congressional fallout from Ms. Hatcher’s article has thus far been fairly limited, but interesting nonetheless. Two supporters of the latest and greatest chemical security legislation (H.R. 2868, the Chemical and Water Security Act of 2009), Gene Green of Texas and the aforementioned Subcommittee Chairwoman, are both on the record as being concerned with the fate of the bill as it rests in the Senate – the interesting wrinkle lies within their respective interpretations of the potential implications of Ms. Hatcher’s revelation.

According to the follow-up article, Rep. Jackson Lee, representing Houston, has called for hearings to investigate the delays, citing risks posed to communities around the nation by the alleged drawn out process of ensuring the chemical industry’s compliance with CFATS. In his blog post, Mr. Coyle also indicates that Jackson Lee “is concerned that [the inspection] delays will further justify delays in considering and ultimately passing H.R. 2868 in the Senate.”

Rep. Green, a House Energy and Commerce Committee member also of Houston (not to be confused with House Homeland Security Committee Representative Al Green from Houston), is also concerned with the implications of Ms. Hatcher’s report on H.R. 2868.  Rep. Green, however, appears to be less concerned with how the Senate is going to react and more concerned with the operational challenges of piling new regulatory requirements on an agency and industry already up to their eyeballs in implementing CFATS. Green puts it best: “we need to know if CFATS is working or not before we overlay another level of regulation.”

Those are two fairly divergent opinions from two key supporters, don’t you think? One concerned about getting a bill through that stacks additional (and some would say extremely controversial) requirements on an existing program; the other concerned with ensuring the current program’s foundation is solid. While Mr. Coyle doesn’t provide any direct source for his claim that Rep. Jackson Lee is concerned about the fate of H.R. 2868, it sure makes sense, doesn’t it?

She has carried the chemical security legislation water for the last several years, with H.R. 2868 being the first stand-alone piece of legislation to make it out of the House and into the Senate (the CFATS authorizing language was included in the 2007 Homeland Security Appropriations Act). Were this bill to bog down in the Senate, whether due to the other provisions in the bill (e.g., Inherently Safer Technology, Water Sector chemical security issues, etc.) or concerns with DHS’s ability to implement the rule, it would be a significant setback to Rep. Jackson Lee and her staffers who have toiled over this issue the past several years.

But in going back to Ms. Hatcher’s articles, this all raises a larger question – whether it’s a good idea to drastically overhaul the Department’s approach to chemical security while DHS is in the midst of the very first compliance cycle for the regulatory program?  Having been involved in the stand-up as well as the implementation of the CFATS program, I think Rep. Gene Green has it right – let’s take a pragmatic approach and allow DHS to get through one cycle of CFATS compliance before revisiting the program’s authorizing structure and adding game changing requirements like Inherently Safer Technology. Ultimately, it’s generally not a good idea to start rebuilding a plane’s engine in mid-flight.

Chris Krebs is Vice President at Dutko Worldwide, leading the firm’s Global Risk Management business division, and was previously Senior Policy Advisor to the Assistant Secretary for Infrastructure Protection at the Department of Homeland Security.