04 January 2007 16:11 [Source: ICIS news]
By Joe Kamalick
WASHINGTON (ICIS news)--US chemical industry leaders are cautiously optimistic about steps by the Department of Homeland Security to protect high-risk production sites from terrorist attacks, but they worry that the department’s proposed rules perhaps provide more questions than answers.
The department issued proposed regulations on 22 December to implement the first law, passed by Congress earlier last year, mandating federal control over security measures at so-called high-risk chemical facilities.
The 79-page proposed rulemaking document covers a lot of regulatory ground, but it leaves some basic issues unresolved. For example, the proposed rule - which is to be made final by early April this year - does not in fact define what a “chemical facility” is under the law. Nor does the proposed set of regulations spell out what criteria will define a “high-risk” chemical facility.
To its credit, the department has deferred making final decisions on these and other fundamental matters until it can consider comments from industry, other federal agencies, environmental groups and state and local governments - in fact, anyone who wants to have a say in what shape the final rules should take.
On one hand, said Maurice McBride, director for security at the National Petrochemical & Refiners Association, “it is fair to say that DHS has done a good job of following the intent of Congress”.
“They have followed congressional direction to make site security standards risk-based,” McBride said, “and they’re giving everyone an opportunity to weigh in on it”.
“Still,” he said, “there are outstanding questions as to how a ‘high-risk’ facility will be determined, and it is hard to see at this point how security standards would be applied to higher risk facilities compared with lower risk sites.”
“By and large, we’re pleased with the proposed rules,” McBride added. “We think they are going in the right direction, but I have to say that there are still a lot of unanswered questions.”
The American Chemistry Council is also favourably disposed toward the proposed rules. “From our perspective,” said the council’s senior director for security and operations, Ted Cromwell, “we feel very positive about the proposal”.
“We think they did a good job,” Cromwell said. “It is a comprehensive approach, a thorough approach that follows the logic and flow of the legislation.”
Even so, Cromwell said one troubling aspect of the proposed regulations and their authorizing legislation is the fact that the whole edifice of mandated security standards will expire in three years. “What we have hanging over us is a fairly comprehensive regulation with timelines and corporate responsibility for implementing these rules and doing the site adjustments - then in three years it sunsets,” he said.
Cromwell also is troubled by the proposed rules’ failure to define the criteria for “high-risk” facilities. He had hoped to see something more definitive from the department on “who is in the rule and who is not”.
It is good that the department is taking comment from industry and the public on how “high-risk” it to be defined, he said, “but you want an applicability threshold so that companies can start making the necessary business decisions to comply with the regulations”.
“The bad news,” said Cromwell, “is that the question of what is ‘high-risk’ is still open-ended, and a lot will turn on that definition”.
Jim Cooper, senior manager for government relations at the Synthetic Organic Chemical Manufacturers Association (SOCMA), also believes that the department’s proposed site security rules are “absolutely a step in the right direction”.
“That’s not to say that we are totally satisfied with the proposal,” Cooper added. “We have some questions, some points of disagreement with the proposed rules, but that doesn’t mean that this is not a step in the right direction”.
For example, Cooper said the association wonders about performance standards suggested in the rules for counter measures in the event of a terrorist attack.
“We don’t know what the department’s expectation is in terms of a counter-measures response,” he said. “Does that mean that any covered facility should be able to repel an attack if one occurs? Maybe counter measures just means calling the local police authorities and doing emergency response. Or will the rule require small militias at these production sites? We’d have some serious concerns about that.”
Probably the most troubling aspect of the proposed rules is that they are a short-term solution that will of necessity be replaced by yet another legislative mandate for chemical site security, perhaps as early as this year.
For while the chemicals industry is largely sanguine about the direction being taken in the department’s proposed rules, the environmental community and key players among the new Democrat leadership on Capitol Hill are decidedly unhappy with the department’s approach.
Rick Hind, legislative director the Greenpeace national toxics campaign, termed the interim site security measure “purely temporary and wholly inadequate”. He expects Democrats will use their new majority powers in Congress to pass more comprehensive and permanent site security legislation this year.
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