13 December 2007 17:10 [Source: ICIS news]
By Joe Kamalick
Representative Sheila Jackson Lee (Democrat-Texas), chairwoman of the House Subcommittee on Transportation Security and Infrastructure Protection, told a hearing that her panel will consider changes and improvements to the existing law but there was no plan to impose a new legislative mandate before the current statute expires in October 2009.
“We envision making improvements in this law to become effective at the end of 2009,” she told other subcommittee members and witnesses.
Chemical industry officials at the hearing welcomed Jackson Lee’s statement.
Marty Durbin, director of federal affairs at the American Chemistry Council (ACC), said Jackson Lee’s statement was significant because “it means that we’re all on the same page” as far as giving the existing regulations a chance to work.
The council and other chemical industry leaders along with officials at the Department of Homeland Security (DHS) had expressed concerns prior to the hearing that Congress might seek to change the existing site security law before it has been fully implemented and before its scheduled expiration in late 2009.
The department, which is responsible for implementing the site security statute enacted by Congress in 2006, issued final regulations last month and is only now beginning primary implementation of those rules.
The statute was passed when a Republican majority controlled Congress, and many Democrats had then complained that the legislation did not go far enough to ensure that chemical producers harden their facilities against potential terrorist attacks.
Democrats won control of the House and Senate in the November 2006 elections, and there have been expectations that the new congressional leadership might seek to scrap the existing law quickly and replace it with a more stringent regulatory framework.
Jackson Lee did indicate that her subcommittee will examine many areas of the statute with an eye to making significant changes. Most of the potential changes to the law involve issues that chemical industry leaders fought hard and successfully to keep out of the 2006 legislation.
The chairwoman said she is concerned that the current law provides too much security for information that chemical producers must provide to DHS about their facilities’ vulnerabilities and how those shortcomings will be remedied. Industry officials won a high classification for site security data in the 2006 legislation on grounds it was necessary to keep that critical data from terrorists’ eyes.
However, Jackson Lee said she is worried that the tight hold on facility security information is too stringent.
“I am concerned that this information will not be available to the appropriate stakeholders,” she told this week’s subcommittee hearing on a proposed new site security law. “Local and state authorities and first-responders share responsibility in this area with the federal government, and they should have access,” she said.
“I am concerned that there has been a proliferation of information protection under this administration,” she said, referring to continuing conflicts between Democrats in Congress and the Bush administration’s long-running efforts to restrict information related to the war on terrorism.
DHS Assistant Secretary Robert Stephan, responsible for implementing the current site security regulations, testified that the high level of data classification was necessary “because this information is very critical and involves details of consequences and preventive measures, very sensitive information”.
“I know your intentions are good,” Jackson Lee replied, “but this administration has a long history of over-classification of information.”
“We want to take a very close look at the law’s provisions for information security,” she said, adding, “not to disclose the information but to examine the process of classifying information and how that affects first-responders.”
She also indicated that the general public in communities near high-risk production sites is entitled to information about the terrorism risk potential posed by particular chemical facilities. “Perhaps there should be a requirement in the law for DHS to make arrangements for neighbourhood evacuations and actual training for evacuations in the event of a terrorist strike on a facility,” she said.
Jackson Lee and other committee members also said that the existing regulations’ provision for federal pre-emption of state law on site security must be revisited and perhaps should be revoked, allowing individual states to mandate site security measures in addition to federal rules.
Representative Bill Pascrell (Democrat-New Jersey) said the federal pre-emption issue “is critical to what we are trying to do here, and that language should be revoked because I think it will raise more conflict than resolution”.
Subcommittee members expressed strong interest in a possible legislative mandate for the use of inherently safer technology (IST) as a security measure, a tactic broadly opposed by the chemicals industry. Industry officials fear that a legislative mandate for IST could give federal regulators power to order changes in production feedstock selection and facility process control.
Jackson Lee and witnesses representing chemical producers, state regulators and academic specialists agreed that the Department of Homeland Security needs more funding and personnel to adequately implement and enforce the existing law.
The DHS office headed by Stephan has fewer than 40 personnel to enforce a nation-wide site security law that will require hundreds, perhaps thousands of on-site plant inspections, document reviews and testing.
“How can 30 or 40 people cover the entire country in this?” Pascrell asked. Without vastly increased funding and manpower for the department, Pascrell said, “we’re not really being serious about this, are we?” Pascrell and others on the subcommittee raised the prospect of giving state regulators a role in enforcing the federal site security law.
Jackson Lee also expressed interest in a new mandate requiring plant operators to involve facility workers and union representatives in security assessments, planning and implementation.
The subcommittee also indicated that it wants to revisit the question of allowing citizens to file suit in federal court seeking to enforce federal site security regulations, a practice known as private right of action.
That too is an element long opposed by chemical producers because they fear being inundated with private lawsuits trying to force imposition of inherently safer technologies or other aspects of a new site security law.
There is a lot to worry chemical companies as Congress begins anew to consider antiterrorism security for production sites. However, the industry probably has at least a year to work with federal legislators on a major revision that will likely be the law of the land for decades.
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