December 27, 2006

Regulation

Plant Security Measure Proposed

DHS drafts plan to protect public from terrorist attack on chemical plants

Jeff Johnson

Draft regulations requiring chemical plants to improve security related to a possible terrorist attack were issued in late December by the Department of Homeland Security. DHS, however, is seeking comments on many critical sections of the plan and will accept comments until Feb. 7. The regulations, by law, must be final by April 4.

The need for chemical plant security regulations has been debated since before the Sept. 11, 2001, terrorist attacks. Member companies of the American Chemistry Council and the Synthetic Organic Chemical Manufacturers Association have taken voluntary actions to better protect their plants. ACC has promised to continue to work closely with DHS to develop a final regulation.

In large part, the draft regulations appear similar to what the affected companies have already done. The draft would leave authority to the companies to provide self-assessments of their vulnerability and to DHS to unilaterally determine if company actions are adequate.

When releasing the proposal, Homeland Security Secretary Michael Chertoff stressed in a statement that the new performance standards were "sensible and disciplined" and will allow companies to have the "flexibility to determine an appropriate mix of security measures" that will eventually be examined and approved by DHS.

The proposed process begins with chemical companies conducting internal examinations of the impact on nearby populations of a terrorist attack on their plants. DHS would assess this information to determine if companies should conduct a full study of their vulnerability to an attack and what security measures companies should take. DHS would oversee this process and may conduct audits to determine if company compliance was adequate. This information would be classified and not made public.

The regulation is far from complete. For instance, DHS is seeking comments on which facilities should be required to examine risk from a terrorist attack and whether a tiered system to rank plant vulnerability should be used.

Over the past few years, House and Senate committees have approved legislation containing tougher plant security language and requirements that companies limit storage and use of potentially dangerous chemicals. However, these bills, opposed by ACC, were blocked from floor action.

The new DHS proposal is the result of a stop-gap compromise, passed last October as an amendment to appropriations legislation. It is temporary, moreover, phasing out in three years with the assumption that Congress will pass more comprehensive plant security legislation by then. The compromise was negotiated by several members of Congress, including Sen. Susan M. Collins (R-Maine), then-chairman of the Senate Homeland Security Committee (C&EN, Oct. 2, 2006, page 14).

Collins, however, expressed concern over "a few critical missteps" in the DHS proposal. Particularly, she warned that it would "unilaterally preempt" state and local plant security laws, an authority Congress never granted to DHS, she says. She also says the proposal allows DHS to shield itself from legitimate judicial scrutiny of its own actions. Collins also is concerned about restricted access to security information needed by law enforcement and first responders to prepare for or respond to an attack.

Chemical & Engineering News

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