INSIGHT: A certain uncertainty in US site security

05 October 2006 17:02  [Source: ICIS news]

By Joe Kamalick

 

WASHINGTON (ICIS news)--Congress has at last enacted chemical plant security legislation to harden sites against terrorist strikes, but by most accounts the new law leaves producers broadly vulnerable to that bane of all business - uncertainty.

 

Under anti-terrorism provisions within the Department of Homeland Security spending bill and approved by Congress, the federal government is for the first time given authority for setting and enforcing security at high-risk chemical sites. 

 

The department must issue by early April implementing regulations that will, among other things, define which production, storage or transit sites will be considered “high-risk” and what anti-terror protection standards they must meet.

 

Those facilities covered by the new law - the number of regulated sites might range from 300 to 3,000 - must conduct vulnerability assessments and design risk-based security improvements that meet the department’s approval. 

 

The department may audit and inspect plants but may not deny security plan approval simply because the operator failed to use any specific risk reduction method, such as inherently safer technology.

 

Information provided by companies to the department will be protected from public disclosure, although federal security officials may give pertinent data to state and local authorities. The department may levy fines or even shut down a plant that fails to comply with the law, but private citizens and interest groups may not file civil suits to force compliance.

 

To many in industry, there is uncertainty aplenty in those basic elements of the law, not least of which is the definition of high-risk facilities. The most high-anxiety factor, however, is that the law is by design an interim measure that will expire in three years unless superseded by more comprehensive federal legislation.

 

That means that just about the time in late 2007 when the Department of Homeland Security begins implementing the new site security criteria and regulations, Congress will be considering the legislation anew with an eye to passing a more detailed statute.

 

“That is the biggest concern for us, the sunset provision of the law and the uncertainty that it brings,” said Marty Durbin, managing director for federal affairs at the American Chemistry Council (ACC). Uncertainty about just how permanent the law might be “affects not just business and investment planning but planning around security issues,” he said.

 

The three-year sunset provision, Durbin said, “is troubling because you don’t want an expiration date on security at chemical facilities.”

 

Rob McArver, director of government relations at the Synthetic Organic Chemical Manufacturers Association (SOCMA), raised similar concerns. “We’re unsure what will be required under the coming regulations, how long they might be in place and how permanent the law might be,” he said. It will be difficult for companies to get board approvals for capital spending on security, he said, if as yet undetermined regulations will be overtaken by new congressional requirements in 2007 or 2008.

 

Bob Slaughter, president of the National Petrochemical & Refiners Association (NPRA), also was troubled by the law’s three-year expiration. “We are disappointed and quite frankly we are concerned that the legislation includes a three-year sunset provision on the regulations,” he said. 

 

Noting that member firms of his association have and will continue to make major investments in security, Slaughter added: “We should be able to do so with the knowledge and confidence that requirements will not change every few years.”

 

The new federal law also fails to pre-empt state legislation on chemical site security. Two states, New York and Maryland, have already enacted their own plant protection statutes and a third, New Jersey, has imposed site security measures under a gubernatorial executive order.

 

McArver and others had hoped that even without a federal pre-emption clause, a national security law would nonetheless discourage states from acting, simply on grounds that the federal government was taking care of the matter.

 

However, with Congress having enacted only an interim measure that will cover only high-risk plants, there is concern that some state legislatures may feel that Uncle Sam has failed to act decisively, leaving them to take matters into their own uncertain hands.

By: Joe Kamalick
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