Anti-terrorism regulations should not obstruct current security measures, such as post-9/11 industry government partnerships.

Maintaining the security of our facilities has always been a priority at refineries and petrochemical plants. Refiners and petrochemical manufacturers are heavily engaged in maintaining and enhancing security - and were so before 9/11. These industries have long operated globally, often in unstable regions overseas where security is an integral part of providing for the world's energy and petrochemical needs. When the tragic events of 9/11 occurred, the nation realized immediately that additional threats had to be taken into consideration to protect our homeland. The refining and petrochemical industries drew the same conclusion. Industry did not wait for new government regulations before implementing additional and far-reaching facility security measures to address these new threats. Industry has developed and utilized a sophisticated, peer-reviewed security vulnerability assessment (SVA) methodology to guide facilities as they identify security hazard threats and vulnerabilities and to identify appropriate security measures. The Department of Homeland Security (DHS) has endorsed this methodology and uses it to train its employees. As a result of the information uncovered in the SVAs, industry has adopted facility security plans and implemented strong and effective security measures.

In addition to moving forward with enhanced security measures, industry has developed close, working relationships with key federal agencies and state and local law enforcement offices to obtain and exchange information critical to maintaining infrastructure security. Industry works with about a dozen federal agencies including the FBI, the Department of Transportation, the Department of Energy, the Department of Defense, the CIA, the Government Accountability Office and, of course, the Department of Homeland Security and its various components, including the U.S. Secret Service, the Transportation Security Agency and the U.S. Coast Guard.

Industry has held joint training exercises simulating actual terrorist attacks and developed educational programs involving federal and state government officials with security expertise. Industry has partnered with the DHS on many important security initiatives and programs, including the Risk Assessment Methodology for Critical Asset Protection, or RAMCAP, the Homeland Security Information Network (HSIN) and Buffer Zone Protection Plans. Personnel from the largest companies to the smallest have shared best industry practices at meetings and conferences.

In addition to these voluntary activities, a majority of the almost 150 refineries and 200 petrochemical manufacturing facilities in the United States are subject to the jurisdiction of the U.S. Coast Guard, and are therefore regulated pursuant to the security requirements of the Maritime Transportation Security Act (MTSA). The act requires these facilities to conduct security vulnerability assessments and submit comprehensive security plans to the U.S. Coast Guard. These security plans were submitted by facilities in December 2003 and approved by the Coast Guard. The industry continues to work with the Coast Guard to meet the goals of MTSA.

Principles for Chemical Security
The petrochemical and refining industry does not oppose reasonable chemical security regulation; however, the existing system is working well and care must be taken to do no harm to current efforts in fashioning new chemical security authority for DHS. The following principles should be reflected in any chemical security bill considered by Congress:
· Security legislation should give credit for voluntary industry activities. Refiners and petrochemical manufacturers have conducted security vulnerability assessments and adopted facility security plans. Any new legislation should recognize and give credit to these companies for the security programs they have already implemented.

· Security legislation should require that DHS develop a risk-based approach to regulating both chemicals and facilities. DHS should develop a list of chemicals of interest based on security risk as the qualifier for a chemical site to be regulated. The RAMCAP project will be one tool for DHS to use to assess security risk. DHS should also be given flexibility to set the appropriate chemical thresholds based on risk.

· Security legislation should provide for federal preemption of state and local chemical security laws and regulations. Many of the challenges arising in the immediate aftermath of the recent Gulf Coast hurricanes stemmed from having conflicting and confusing jurisdictional expectations. Refiners and petrochemical manufacturers cannot reasonably be expected to be constantly changing their plans and operations to meet state or local requirements inconsistent with those of the federal regulatory scheme.

· Security legislation should reject any direct or indirect provisions that address Inherently Safer Technologies (IST). IST is not a security tool; it is a back-door approach to tighten environmental standards. In some instances, IST requirements could actually increase security risks. For example, reducing the volume of a hazardous chemical stored at a facility could reduce on-site risk, but increase truck, rail or barge traffic to maintain supplies of needed raw materials, thereby potentially increasing overall risk.

· Security legislation should fully recognize existing U.S. Coast Guard jurisdiction over facility security under the MTSA. Any chemical facility legislation should state explicitly that facilities in compliance with MTSA are also deemed to be in compliance with any new DHS program. It should be incumbent upon DHS to coordinate with the U.S. Coast Guard and identify any new facility security requirements that apply to MTSA-regulated facilities. In addition, some facilities are only partially covered by MTSA. In these cases, they should be given the option of submitting security plans to the Coast Guard where logistically appropriate. Legislation or subsequent regulation should allow this type of opt-in activity to occur.

· Security legislation should give sufficient protection to the security sensitive information that would be required for submittal to DHS. Government officials should not release sensitive security related information to other government agencies whose mission has little to do with security, and even more problematic, to members of outside interest groups. Access to sensitive information should be strictly limited to the owner or operator of a facility and to DHS.

· Security legislation should impose penalties fairly and recognize good-faith efforts to comply. If Congress decides to include criminal penalties in chemical security legislation, they should only be assessed for violations that are made both willfully and knowingly. The word “knowingly” may mean simply acting with an awareness of one's actions, while the word “willfully” usually means acting with the knowledge that the action, or the inaction, is illegal.

· Security legislation should include reasonable restrictions on the filing of third-party lawsuits. Third-party lawsuits, patterned after existing environmental statutes, could impede implementation of security measures due to lengthy and contentious litigation and also result in federal judges, rather than DHS, setting security standards.

· Security legislation should direct DHS to define criteria for background checks. An important part of any facility security plan is making sure that the work force is trained, qualified and dependable. If background checks of employees and contract employees are required, any new chemical security legislation should direct DHS to define specific criteria for denying workers access to a facility.

Outstanding Relationship
Refiners and petrochemical manufacturers take very seriously their responsibilities for maintaining and strengthening security at their facilities. Our industry has complied with modernized, post-9/11 federal security requirements. We have utilized expert engineers to conduct vulnerability assessments and implement new measures to protect against new threats. We have called upon experts throughout all of industry, government and the security industry to determine the best practices to protect our facilities. And, perhaps most importantly, the industry has created an outstanding working relationship with government security agencies to receive rapidly the critical information needed to fight terrorism. This partnership has been very effective in encouraging information exchange. All of this important work needs to continue. Any new chemical security authority should enhance and foster these critical activities. E+P

Bob Slaughter is president of the National Petrochemical & Refiners Association. This column is based on his testimony submitted June 29 to the House Homeland Security Subcommittee concerning the Chemical Facility Anti-Terrorism Act of 2006. For more information, visit www.npra.org.