Correction Appended
Industry representatives say enough lawmakers are signaling support for reauthorizing the Chemical Facility Anti-Terrorism Standards (CFATS) program that they expect “opportunities” for a renewal in the new year -- though still with some uncertainty over whether that support will be enough to push a bill across the finish line.
The Senate wrapped up its legislative work for 2023 on Dec. 20 without taking up the program, despite wide industry calls for a vote and prompting a new round of criticism.
“We are beyond disappointed that Congress has decided to leave town without restoring the Chemical Facility Anti-Terrorism Standards and left chemical companies to basically go it alone when it comes fighting terrorism,” the American Chemistry Council (ACC) said in a release that day.
But even before lawmakers formally recessed, ACC Issue Communications Director Scott Jensen told Inside EPA in an interview that he believed CFATS reauthorization was “just simply not going to happen” in 2023, though it remains a possibility for the new year.
“We’re disappointed with that,” he continued, but added that there will be more “opportunities” in 2024 “to extend this program and that’s what we’re looking into right now, working with our [CFATS] coalition allies to really broaden supporting extension reauthorization of this program.”
And Ryan Jackson -- who served as chief of staff for the Trump EPA and is now ACC’s vice president of federal affairs -- said the CFATS Coalition of which ACC is a member is actively meeting with members of Congress on avenues for a successful reauthorization.
“What we need is to work with [Congress]” so lawmakers can recognize and alert industry “when they find that opportunity” that carries the best chance “of including CFATS,” Jackson said.
“What we find is [the] best approach with approaching Congress about this program is to remind them of the value of it,” Jackson added. “We can work with our allies in Congress to identify multiple different vehicles, and really pick the best one at the right time in order to include this provision.”
That echoes recent comments from Eric Byer, president and CEO of the Alliance for Chemical Distribution (ACD) -- another prominent member of the pro-CFATS push -- where he said industry is seeking to attach a reauthorization “onto whatever exists that may move legislatively,” such as the recently passed defense authorization bill.
CFATS, created in response to the 9/11 attacks, requires facilities to craft plans to reduce the physical and cybersecurity risks of their chemicals being used in future terrorism attacks. It regulates the security of “high risk” facilities, designated as those holding threshold amounts of chemicals on the program's “Appendix A” list -- which the Department of Homeland Security (DHS) modeled on EPA policies.
However, its statutory authorization expired on July 27, when the Senate failed to take up a House-passed bill that would have extended the program for two years. While H.R. 4470 cleared the lower chamber by a 409-1 margin and appeared to have broad support in the Senate, Sen. Rand Paul (R-KY) blocked a unanimous consent motion that would have allowed lawmakers to approve it in a short window before Congress began its August recess that day.
Declining Capacity
According to Byer, Paul is still blocking quick Senate consideration of the stand-alone bill, or even a new hearing on such a measure, unless lawmakers agree to attach S.780 -- his unrelated legislation that requires the Government Accountability Office (GAO) to review all legislation that has been reported by any congressional committee to determine if the legislation creates programs that would duplicate or overlap with previously identified programs.
Both Jensen and Jackson told Inside EPA that while a majority of Congress supports reauthorization, actually passing a bill will require finding a suitable vehicle.
Jensen also warned that the longer CFATS remains unauthorized, the more difficult it could become to adequately staff it. Since DHS employees who were previously working on CFATS were moved to other programs, in the long term it could be difficult to “get experienced personnel back to address the backlog” of chemical-facility actions.
And Jeff Sloan, ACC’s senior director of regulatory and scientific affairs, told Inside EPA that “it takes time” to adequately “staff the personnel and get the inspectors” who are experienced in security “but also understand the chemical sector. It takes time for them to get the experience to be really effective. The expertise that they have is part of what makes those inspections and the program valuable to the regulated community, and if you lose that expertise, it’s going to take time to build that back up.”
Other industry groups such as ACD have previously warned that the loss of CFATS is hurting chemical facilities’ ongoing security work, but all three ACC officials said that harm is growing more severe as the lapse continues.
“We're kind of in another phase of the program expiring,” Jensen said. “The first phase was just the fact that you had scheduled inspections, and [screenings] and all that, but now that we’re getting into this longer-term phase, it’s going to be hard for [CFATS] to even get their personnel back . . . and to get the program back on track.” -- Sarah Mattalian (smattalian@iwpnews.com)
Editor's Note: This story has been updated to correct Jensen's title.
