US site security law likely to have safer technology mandate

15 June 2009 20:52  [Source: ICIS news]

US to impose safer technology mandate on chemical plantsWASHINGTON (ICIS news)--Federal security regulators likely will have new authority to impose inherently safer technology (IST) requirements on US chemical plants at risk of terrorist attack, industry officials said on Monday.

Marty Durbin, vice president for federal affairs at the American Chemistry Council (ACC), said that legislation now nearing completion in the US House “will likely have some provision for an inherently safer technology mandate”.

The House Homeland Security Committee will hold a hearing on Tuesday on draft legislation to replace and extend the current Chemical Facility Anti-Terrorism Standards (CFATS) that were enacted in 2006 but which are due to expire on 1 October this year.

The replacement legislation also includes a provision for private right of action (PRA), which would allow individual US citizens or interest groups to file suit in federal court seeking to require tougher enforcement of the new law or to force specific plant sites to implement tougher security measures.

“We continue to have discussions with staff at the Homeland Security Committee,” Durbin said, “but we understand that a provision for inherently safer technology is likely to remain in the bill.”

The draft bill apparently would give the Department of Homeland Security (DHS) authority to dictate changes in a chemical facility’s feedstocks, processes or even products in order to reduce the site’s vulnerability to a potential terrorist attack.

Under draft legislation approved by the committee last year, DHS would have authority to shut down a chemical plant or other facility if its owners or operators refused to implement IST measures demanded by the department.

“We’re concerned about this provision,” Durbin told a teleconference with reporters. “It is not necessary in our view, and we believe decisions on process are best left to the companies operating these sites.”

Some 7,000 US chemical facilities - production plants, storage sites and distribution points - have been determined by the department to be at high risk for possible attack by terrorists seeking to cause widespread collateral damage and casualties.

Although the council appeared resigned to the likelihood of having an inherently safer technology mandate as part of a new antiterrorism site security law, Durbin said he hopes that provision can be made more manageable from industry’s point of view.

“We hope that the IST language will be more limited than it was in last year’s bill,” Durbin said. In the earlier draft legislation, the IST authority given to the department essentially was absolute, and the only appeal to a DHS demand for a specific safer technology was to the department itself.

“We want to make sure that there is a more robust appeal process,” Durbin said, “that the appeals process be more meaningful and grounded in science and process safety.”

Durbin said the pending bill’s provision for private lawsuits also is a major concern.

He noted that private right of action provisions are common in some environmental statutes where there are easily quantifiable measures of performance, such as pounds of emissions.

“We are concerned with third party lawsuits because with this security programme we’re not talking about a measurable programme,” he said. “This involves more subjective criteria based on risk and performance, so it would be difficult for an individual citizen or a judge for that matter to say whether a facility did or did not meet security requirements.”

Durbin declined to say whether a private right of action provision in the new antiterrorism security law would open a floodgate of lawsuits by environmentalists, local governments and others.

The pending bill, “The Chemical Facility Antiterrorism Act of 2009”, is expected to be completed by the House Homeland Security Committee this week or next, Durbin said.

The measure also must be approved by the House Energy and Commerce Committee before it goes to the House floor, perhaps before Congress goes on its August recess, Durbin said. 

A separate bill has yet to be moved in the Senate, and final congressional action on the replacement measure is not likely before September, he said.

To discuss issues facing the chemical industry go to ICIS connect

By: Joe Kamalick
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