INSIGHT: US Congress eyes production controls

24 January 2008 17:31  [Source: ICIS news]

By Joe Kamalick

 

WASHINGTON (ICIS news)--The US Congress this week took the first step toward imposing a mandate for federal control of production and process decisions at major chemical facilities.

 

The House Subcommittee on Transportation Security and Infrastructure approved the “Chemical Facility Anti-Terrorism Act of 2008,” which includes a mandate for federal imposition of inherently safer technology (IST) at chemical plants that might be targets for terrorist attack.

 

IST proponents argue that chemical manufacturers can and should use less toxic feedstocks and lower temperatures and pressures in their manufacturing processes. Many in the industry argue that those are commercial and technical issues not pertinent to site security.

 

As approved by the subcommittee, the bill gives the US Department of Homeland Security (DHS) authority to “require the implementation of such methods to reduce the consequences of a terrorist attack” on a chemical plant, including “substitution of chemicals, changes in processes, storage or use of less of a chemical of concern, changes to safer practices” and other measures.

 

The “chemical of concern” reference is to the department’s list of some 300 substances that, if held at a site in certain threshold amounts, could pose a risk of injury or death to surrounding communities if the host plant were attacked by terrorists. The list was issued late last year under the existing year-old chemical facility security law.

 

According to the bill summary provided by the subcommittee, the legislation also empowers the department to require that chemical plants implement “safer practices, reducing consequences of equipment failure or human error, improvements in inventory control, and reduction or elimination of storage, transportation, handling, disposal or discharge of substances of concern”.

 

If enacted as approved by the subcommittee, the legislation would mandate such safer technology measures if they could be “feasibly incorporated into the facility’s operations and would not significantly and demonstrably impair the ability of the facility to sustain operations”.

 

However, the Homeland Security Department would have final say on whether a plant could feasibly implement safer technology measures the department deems necessary.  A plant operator could appeal the decision and explain why, in the producer’s view, the mandated safer technology measures would not work or would “significantly and demonstrably” affect production.

 

“If the explanation is denied,” the legislative language states, “the facility has 180 days to implement the required methods to reduce the consequences of a terrorist attack.”

 

Citing the 1984 Bhopal, India, chemical release that killed 3,000 initially and ultimately was blamed for an additional 15,000 fatalities, subcommittee chairwoman Sheila Jackson-Lee (Democrat-Texas) said: “We must use any measure - including inherently safer technology - to better protect us from uncertainty.”

 

“Over the past few years, security measures have been revamped in shipping ports, air travel and government buildings - chemical plants should be treated no differently,” she said.

 

Representative Edward Markey (Democrat-Massachusetts), a member of the subcommittee and principal author of the bill’s inherently safer technology mandate, said that “Reducing the impact of a terrorist attack on high risk chemical plants is one of the most important responsibilities of this committee”.

 

“It is time that we force high-risk chemical facilities to use every option available to reduce the consequences of a terrorist attack on the communities surrounding them,” he said.

 

A federal mandate for inherently safer technology has long been opposed by the US chemicals industry. 

 

Scott Jensen, spokesman for the American Chemistry Council (ACC), said the IST mandate in the bill “is a concern for us”.

 

“We think an IST mandate will be very difficult in part because there is no straight-forward measure for any of this,” Jensen said. He said a government requirement for inherently safer technology measures as part of federal security rules could force producers to change processes and affect a site’s ability to meet consumer demand for a specific chemical product.

 

The inherently safer technology mandate also is a concern for member firms of the Synthetic Organic Chemical Manufacturers Association (SOCMA), whose officials have been meeting with House and Senate homeland security committee members this week in an effort to forestall the issue.

 

Bill Allmond, SOCMA director of government relations, said the association has met with Senate Homeland Security Committee members and soon will meet with their House counterparts.

 

He said the association is building a coalition of industry trade groups to address the IST issue in Congress.

 

However, Democrats now in the majority in Congress have long favoured tougher regulation of site security, including obligatory IST requirements.  Those provisions were part of Democrat-sponsored chemical site security legislation proposed in Congress in 2006 and earlier, but those measures were defeated in the then-Republican controlled legislature.

 

The site security bill passed by the subcommittee this week now goes to the full House Committee on Homeland Security, where it may undergo additional changes.  However, the Democrat majority on the full committee is seen as generally favourable to a safer technology mandate.

 

In addition, as all members of the House and one-third of senators campaign for re-election in November this year, prospects for passage of a new site security law may be strong.

By: Joe Kamalick
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