04 January 2008 19:50 [Source: ICIS news]
By Joe Kamalick
In late 2006, the then Republican-majority Congress created the first federal mandate for regulation of security measures at thousands of US chemical production and storage facilities.
In April 2007, the Department of Homeland Security (DHS) issued regulations to implement that law, followed in November with its list of some 300 chemical substances that will trigger compliance obligations.
But even as the department and regulated producers took the first steps in late 2007 to begin complying with the law, Congress moved to change the rulebook.
The House Homeland Security Committee held a December hearing to outline general changes that Congress - now operating under a Democrat majority - wants to see in the underlying site security statute.
And, as part of an omnibus spending bill passed just before the holiday break, Congress approved a provision that will allow state legislatures and governors to enact site security rules that are tougher than the new federal law.
Together, the anticipated changes that Congress will make in 2008 and the immediate addition of state authority in site security means that the industry cannot be certain of what obligations it may face.
“Our plea to Congress is to not change things too quickly,” said Marty Durbin, managing director for federal affairs at the American Chemistry Council (ACC).
Tom Gibson, the council’s senior vice-president for advocacy, echoed Durbin’s plea.
“We have a very robust site security regulatory programme in place, and we need to give that regime a chance to work,” Gibson said.
“We hope that Congress will give us a chance to let that process work and not reinvent the wheel.”
However, the move by Congress to bar federal pre-emption of stronger state regulation of chemical site security poses a near-term prospect of a rules change before the federal regulations are fully implemented.
Maurice McBride, associate counsel at the National Petrochemical & Refiners Association (NPRA), said the states’ rights language approved by Congress in the spending bill “causes concern because chemical companies are sinking a lot of money into site security, and this means they may have to make changes in those investments because of local jurisdiction”.
The waiver of federal pre-emption language that was written into the spending bill by Senator Frank Lautenberg (Democrat-New Jersey) means that any state can enforce site security rules that are tougher than the federal mandate, as long as the state law does not conflict with federal enforcement.
That, however, does not create any sense of certainty for regulated companies.
“It is very problematic,” said McBride.
According to Joe Acker, president of the Synthetic Organic Chemical Manufacturers Association (SOCMA), the lack of federal pre-emption in site security regulation “makes things difficult for American producers because it opens the potential for us having to deal with 50 sets of regulation instead of just one”.
“And it is just not a good thing for business,” he added, “because it is very costly, imposes a greater burden on US companies and makes us less competitive in the global marketplace.”
“I guess I just don’t understand,” Acker said. “Why not give CFATS [the current federal security regulations] a chance to work? Why change the law, or even contemplate changing the law, before you know how the existing rule is going to work?”
By the end of 2008, the DHS expects to begin the first on-site audits of chemical facilities judged to be high-risk under the CFATS (Chemical Facility Anti-Terrorism Standards).
By that time, however, the House Homeland Security Committee and its Senate counterpart may be well along in drafting changes to the rules, and state legislatures may be adding to the mix as well.
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