Lawmakers are struggling to find a path forward on expired chemical security standards despite stark warnings from homeland security officials and industry groups, according to a Sept. 7 report by Bloomberg Government.
The Chemical Facility Anti-Terrorism Standards (CFATS) easily gained a two-year extension by the House of Representatives with only one vote in opposition, but it lapsed in late July after Sen. Rand Paul (R-Ky.) objected to a fast-tracked reauthorization measure.
Senators returned from a month-long recess this week and haven’t figured out how to resolve the issue, though Paul on Sept. 6 said conversations continue. Paul is the top Republican on the Homeland Security and Governmental Affairs Committee.
Sen. James Lankford (R-Okla.), who co-sponsored legislation to renew CFATS, suggested that holding another hearing could help address Paul’s concerns. The Kentucky senator has complained that the chemical security measures are unnecessary and that the effort to renew them was rushed.
Paul said insurance companies require chemical facilities to have adequate security and that the regulations would be a barrier to entry for smaller companies as the larger ones could afford a large compliance staff. However, in July he offered to approve the extension if his amendment to create a Duplication Scoring Act was added. It would assure that all legislation in the future would have to be assessed as to whether it duplicates an existing law.
Kentucky had 65 high-risk chemical facilities operating in the state as of July, according to the Cybersecurity and Infrastructure Security Agency (CISA), which runs the CFATS program. It said an attack on a chemical facility could cause as much damage as a nuclear blast.
Paul’s objection to CFATS isn’t the only problem for supporters. Sen. Ron Johnson (R-Wisc.), who has questioned whether the program is effective, said “it’s fine and dandy having it expired.” He wouldn’t say whether he would try to block a reauthorization if it comes up again in the Senate.
Sen. Gary Peters (D-Mich.), who leads the homeland panel, declined to discuss the specifics of any conversations he’s had with Paul and Johnson on chemical security. He emphasized, however, that “we’re going to try everything we can to try to get it done because it’s critically important from a national security perspective.”
The wrangling on Capitol Hill comes as industry and administration officials warn of serious risks from the program’s lapse. CISA Director Jen Easterly last week said the CFATS lapse meant roughly 9,000 chemical facility employees and contractors wouldn’t undergo vetting for potential terrorist ties each month.
Easterly has also said for every month that the standards are sidelined, 175 facility security plans will go unreviewed and 160 inspections will be skipped. Without the CFATS rule, CISA also effectively has no idea who is visiting facilities or if they are stockpiling dangerous chemicals.
Safeguarding the cybersecurity and physical security of 3,242 high-risk chemical facilities across the US is one of CISA’s critical responsibilities. Congress has renewed CFATS several times since enacting it in 2007.
The agency can also no longer enforce penalties on facilities that violate its safety standards. At least one high-risk facility that was paying the agency’s $40,000-a-day fine for failing to redress concerns (after receiving a warning) has stopped paying, according to a CISA official.
Numerous others are up against a CISA deadline to come back into compliance. Representatives from some of the facilities have told CISA they will meet the standards voluntarily, the official said.
CISA has also stopped checking the names of the 490,000 people with access to the restricted areas of these facilities against a terrorist screening database. Until the rule lapsed, facilities were sending CISA an average of 300 new names each day.
Easterly also said that the program has identified more than 10 known or suspected terrorists attempting to gain access to chemical facilities. “Now we are not looking at those names,” she said in an interview with Bloomberg.
Homeland Secretary Alejandro Mayorkas said he and other top DHS officials have encountered situations “countless times” when CFATS-related oversight helped uncover dangerous plots.
The Fertilizer Institute (TFI) said it has supported CFATS since its creation in 2007. TFI said it has encouraged its members to continue complying with CFATS regulations as if the program was still being enforced.
TFI added that ResponsibleAg, an industry-led initiative committed to helping agribusinesses properly store and handle farm input supplies and to ensure they are compliant with environmental, health, safety and security regulations, has also communicated about the importance of continuing to operate within the compliance of the expired CFATS regulations.
While facilities can maintain much of the CFATS regulatory compliance in the face of expiration, some critical tools and resources are no longer available to facilities, said TFI. For example, access to the Chemical Security Assessment Tool has been removed and CISA can no longer perform inspections or provide CFATS compliance assistance, nor can it accept new names for background vetting pursuant to the CFATS Personnel Surety Program.
A coalition of industry groups, including the American Chemistry Council and US Chamber of Commerce, sent a letter to all senators on Sept. 6 urging them to revive the program.
American Chemistry Council spokesperson Scott Jensen said the groups are trying to get Senate leaders to make reauthorization a priority, and Kentucky-based members of the organization are raising their concerns to Paul’s office. Industry players generally favor CFATS over the prospect of a patchwork of state-level chemical security regulations.
“I just hope to God nothing goes wrong,” National Association of Chemical Distributors President Eric Byer told Bloomberg.