28 February 2008 15:41 [Source: ICIS news]
By Joe Kamalick
This measure would replace the existing chemical facility security law and regulations, passed in 2006 and just now being implemented by the Department of Homeland Security (DHS).
The current regulatory structure, known as the Chemical Facility Anti-Terrorism Standards (CFATS), is set to expire by congressional design on 1 October 2009. Under a Republican-Democrat compromise, the brief and hurriedly assembled 2006 statute was purposely given the October 2009 sunset deadline in order to give Congress time to craft a permanent site security programme.
US chemical industry officials, noting that the department is just now beginning to put the 2006 statute and resulting regulations into practice, have urged Congress to simply extend the existing and developing regulatory structure for a year or two past 2009, to see how the programme plays out and to discover what shortcomings, if any, the existing law holds.
However, Democrats now in majority control in Congress are anxious to make major revisions and additions to the site security statute that Republicans - who then held majority control in Congress - excluded from the 2006 law.
Among new elements sought for a federal mandate for site security are a ban on federal pre-emption of related and future state regulations, public disclosure of some plant security information, and obligatory participation in security planning by labour unions.
In perhaps the most controversial addition to site security requirements, the draft bill incorporates inherently safer technology measures long sought by Democrats to force changes in plant feedstocks, processes and product formulation.
Section 2110 of the draft bill (which does not yet have a House resolution or “HR-” number and is not generally available to the public) covers “Methods to reduce the consequences of a terrorist attack”, which are defined to include:
“Input substitution, catalyst or carrier substitution, process redesign (including reuse or recycling of a substance of concern), product reformulation, procedure simplification, technology modification, use of less hazardous substances or benign substances, use of smaller quantities of substances of concern, [and] reduction of hazardous pressures or temperatures.”
The reference to “substances of concern” means the list of some 300 chemicals identified last year by DHS as representing a potential terrorist target if held by any facility in certain threshold quantities.
In addition, the draft language includes as “methods to reduce consequences” reducing equipment failure or human error, improvements in inventory control and “reduction or elimination of the storage, transportation, handling, disposal and discharge of substances of concern”.
Under the bill, owners or operators of plants designated by the department as being at high risk for a possible terrorist attack would have to provide an assessment of possible consequence-reducing measures along with likely costs, savings and technical viability of implementing those measures.
Plant operators “shall implement” those measures, the bill says, if the DHS determines that the changes
However, as the bill language specifies, those three qualifying criteria would be judged by the department, not the plant owner.
If the department were to determine that feedstock, production or product changes are required, the plant owner or operator could object within 60 days, providing a detailed written explanation to DHS on why it is unable to make the adjustments.
Within 60 days of the operator’s objection, the department would “provide to the owner or operator a written determination of whether implementation shall be required”.
Lastly, “If the [DHS] Secretary determines that implementation is required, the facility shall be required to begin implementation within 180 days of that determination”.
Under the existing chemical facility security law, the department may seek a federal court order to shut down any noncompliant facility.
The operator ordered to make consequence-reducing changes in a plant’s operations, processes or products would be offered a helping hand. The draft bill provides that DHS “shall provide information to chemical facilities on the use and availability of methods to reduce the consequences of a terrorist attack”.
That information would be gathered by the department from other chemical facility operators and “from studies and reports published by academic institutions, National Laboratories, and other relevant and reputable public and private sector experts”.
The bill also would establish a fund of $100m (€67m) to help defray the costs of mandated changes in plant operations, but it does not say how much financial support would be made per site or on what basis funding might be made available.
The draft bill is still far from becoming law. It must be formally introduced and would then await final mark-up by the House Homeland Security Committee. Following almost certain approval by the committee, it would go to the full House. The Senate, where Democrats also hold a majority but by only one vote, would have to approve the House bill or craft its own.
In general, moving legislation through Congress during an election year is considered a chancy proposition at best, because every member of the House and one-third of senators will be increasingly busy campaigning for re-election.
On the other hand, pushing through a bill that would “protect chemical facilities that are vulnerable to terrorist attack” may offer many in Congress an easy election campaign boast.
($1 = €.67)
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