05 February 2009 17:03 [Source: ICIS news]
By Joe Kamalick
Within weeks there will be a new bill to revise the existing two-year-old Chemical Facility Anti-Terrorism Standards (CFATS) that otherwise will expire at the end of September this year.
The statute underlying CFATS was passed by Congress in 2006 but contained a three-year sunset provision that expires on 1 October.
That sunset provision was included in the statute because some in Congress wanted tougher, more stringent federal control over security measures at thousands of US chemical facilities that might be vulnerable to terrorist attack.
The law’s automatic expiration in three years guaranteed that Congress would have to revisit the issue - and the time for that reconsideration has come due.
Replacement legislation first introduced in Congress last year - and likely to be re-introduced within weeks - would eliminate federal pre-emption in the current CFATS and allow individual states to implement their own anti-terrorism requirements for chemical facilities.
That alone is worrisome for chemical industry officials concerned that they may be facing a patchwork of multiple and varying state requirements on plant site security as well as new and more stringent federal controls.
But the real focus of fear is the strong probability that legislation will give federal regulators the power to force changes in chemical companies’ production decisions on feedstock selection and on-site inventories, manufacturing processes and even end products.
Last year’s bill, HR-5577, approved by the House Homeland Security Committee, contained a provision authorizing the Department of Homeland Security (DHS) to order inherently safer technology (IST) changes at chemical plants judged to be at high risk for a possible terrorist assault.
Earlier this week a top industry group urged Congress to simply extend existing
The Synthetic Organic Chemical Manufacturers Association (SOCMA) cautioned that efforts on Capitol Hill to include an inherently safer technology mandate in legislation to renew plant site security regulations “would give false comfort” and create unintended consequences.
Association president Joe Acker said the existing anti-terrorism security programme being implemented by DHS is robust and rigorous and should simply be made permanent by Congress without major changes.
“The chemical industry is well along in implementing this robust security regime, which includes 19 risk-based performance standards to harden facilities and their assets against attack,” Acker said.
“SOCMA is concerned that some in
Acker likely was referring to a report issued in November last year by the Center for American Progress (CAP).
The report, “Chemical Security 101,” argued that HR-5577 or its successor bill should include a broad mandate for use of inherently safer technologies.
The report was - and is - seen as particularly significant because CAP was founded and is headed by Jon Podesta, the former White House chief of staff to President Bill Clinton who led the transition team for President Barack Obama.
Podesta has returned to his job as CAP president and has no formal role in the Obama administration, but his influence with the president and White House policymakers remains.
The CAP report said that instead of being one factor in chemical facility security - along with better fencing, cameras and guards - inherently safer technology requirements should form the core of plant site security regulations.
“Congress should establish a comprehensive chemical security programme rooted in identifying, developing and leveraging the use of safer and more secure technologies,” the report recommends.
In particular, CAP said that in revising existing regulations Congress should “require chemical facilities to assess and use feasible alternatives that reduce the potential harm of a terrorist attack”.
The report also urges stronger monitoring of chemical facilities by federal and state officials, recommending in particular that state security agencies be allowed to set higher standards for high-risk plants than those required by federal agencies.
But SOCMA’s Acker argues that the campaign for an inherently safer technology mandate in plant security regulations “would give false comfort to those who advance it while not necessarily providing any additional security”.
“Government-run product substitution or process changes under the guise of chemical security will likely create unintended consequences,” Acker said, such as increased energy use, lower quality products and increased reliance on imports as
“It is also possible that substitute products could actually put workers and communities at greater risk if the hazards of a seemingly ‘safer’ alternative are not known or are unintentionally increased when applied in a process,” Acker added.
“Calls for mandatory IST tend to come from industry critics who have scant security expertise,” he said, noting too that “neither DHS nor any of the nation’s security or intelligence agencies has required that process hazard assessment be part of ensuring chemical security.”
Scott Jensen, the spokesman on security issues at the American Chemistry Council (ACC), expressed similar concerns.
“We expect that the starting point for this year’s security legislation will be the Thompson bill,” Jensen said, referring to HR-5577, which was sponsored by House Homeland Security Committee chairman Bennie Thompson (Democrat-Mississippi).
“That has a strong IST component,” Jensen noted, adding: “Our concerns are on the potential for IST requirements in the new legislation.”
Jensen expressed hope, however, that reason will prevail on The Hill.
“There is a willingness on both sides of the aisle in Congress,” Jensen said, referring to Democrats and Republicans, “to hear what our industry has to say, what our concerns are and what we see as important in making a very strong chemicals security programme.”
“At this stage, we’re encouraged that that willingness continues,” he said.
But with a new and stronger Democrat majority in both the House and Senate and with Democrat Obama in the White House, US chemical producers may now be facing a tougher fight in Congress over inherently safer technology.
Like it or not, the industry may soon be facing a broad IST requirement, whatever the consequences.
“Rushing to approve untested recommendations from industry critics over the judgements of security and process safety experts not only diverts the goal of chemical security, it could also be dangerous,” said SOCMA’s Acker.
But unintended consequences have seldom deterred Congress in the past.
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