DHS drops plan to screen chemical-plant workers for terrorist ties
By Douglas P. Guarino
July 27, 2012
The Homeland Security Department has withdrawn its plan to screen people with access to dangerous chemical plants for possible terrorist ties, prompting questions on how the department will move forward with the task of implementing its struggling chemical-security program.
Suzanne Spaulding, deputy undersecretary for the DHS National Protection and Programs Directorate, confirmed during a congressional hearing on Thursday that the department had pulled the proposal late last week. The plan, under which chemical companies would have been required to submit information about people who have access to their high-risk facilities, had been languishing at the White House Office of Management and Budget since June 2011.
In April, a broad range of industry trade groups — including the U.S. Chamber of Commerce, the American Chemistry Council, and the American Petroleum Institute — sent a letter to OMB Office of Information and Regulatory Affairs Administrator Cass Sunstein urging him to reject the plan, which is part of the DHS Chemical Facility Antiterrorism Standards initiative. Under the Paperwork Reduction Act, federal agencies must seek approval from the White House when demanding information from companies.
The DHS plan would require companies to submit information — including name, date, place of birth, and passport and visa information — about “facility personnel and, as appropriate, unescorted visitors with access to restricted areas or critical assets” to their sites. The department would then check the data against the FBI’s Terrorist Screening Database.
The intent of the DHS proposal was to prevent terrorists from gaining access to facilities that house chemicals that could be lethal if released into the environment. Industry officials argue, though, that the DHS effort is duplicative of other screening programs in which they already participate and would create costly paperwork without a tangible security benefit. Homeland Security estimates put the total operational and maintenance cost of the proposed requirement at $29 million and say it would likely affect about 1.3 million individuals, according to a June 2011 notice in the Federal Register.
Labor and environmental groups also opposed the DHS plan, raising concerns about privacy and suggesting it could ruin employment opportunities for people wrongly added to the FBI’s database, as well as for those who were never removed from the database after being cleared of any wrongdoing.
Spaulding on Thursday did not provide an explanation for why the department had withdrawn the plan, nor did she say how the proposal would be replaced. She told members of the House Appropriations Homeland Security Subcommittee that the department pulled the plan in advance of the hearing so that she could discuss the issue with panel members. The hearing ended abruptly, however, when lawmakers were called to the House floor for a series of votes on unrelated issues.
Homeland Security officials declined to comment on the matter after the hearing.
Personnel screening is a component of Homeland Security’s Chemical Facility Antiterrorism Standards program. The program has been under fire from House Republicans since late last year when a leaked DHS memo detailed a host of problems with its implementation, including that it had failed to complete site inspections and approve facility security plans.
Republicans in the lower chamber also opposed the personnel-screening proposal, however. Now that the department has withdrawn the plan, it is unclear how it will complete implementation of the broader security effort that encompasses thousands of chemical plants.
An industry official argued that a key reason Homeland Security has been unable to completely approve security plans thus far is because it does not yet have a sanctioned method for conducting personnel screening.
“A lot of the failure to implement the program ties back to this barrier that has been around since June of last year,” Bill Almond, vice president for government relations at the Society of Chemical Manufactures and Affiliates, said, referring to the point at which the department submitted its controversial proposal for OMB review.
“Let’s hope [withdrawing the proposal] helps the department move forward,” Almond, who also opposed the plan, told Global Security Newswire. “If the department has a new program that they want to propose to OMB, they’ll need to do that relatively soon.”
By law, a new proposal would have to go through multiple rounds of public comment and win OMB approval before it could be finalized, meaning the process would be likely to take several months or even years.
Labor and environmental organizations, meanwhile, argue that the law underlying the DHS program is too lax. On Thursday, the groups, including the United Steel Workers, Communications Workers of America, and Greenpeace, submitted a formal petition requesting that the Environmental Protection Agency craft stricter chemical-security rules using its Clean Air Act authority.
Unlike the Homeland Security Department, EPA officials would have the authority to require facilities to use so-called inherently safer technology, meaning the government could force a plant to, when possible, use chemicals and systems that are less dangerous than those that might now be in place, the groups argue.
According to the petition for rulemaking that the groups submitted pursuant to the Administrative Procedure Act, “such requirements are necessary to protect the public against possible chemical releases, including those that may be cause by terrorist attacks, and are well within EPA’s existing authority under section 112(r) of the Clean Air Act.”
Industry groups strongly oppose such technology mandates, arguing that they are overly burdensome and unnecessary.
By Douglas P. Guarino
July 27, 2012