US official joins industry in opposing safer tech mandate

16 June 2009 18:49  [Source: ICIS news]

WASHINGTON (ICIS news)--A top Obama administration security official on Tuesday joined industry leaders in opposing an inherently safer technology (IST) mandate and citizen lawsuits in new chemical facility antiterrorism legislation.

Philip Reitinger, deputy undersecretary at the Department of Homeland Security (DHS), told a House hearing that his department has significant concerns that a provision allowing private right of action lawsuits could undermine national security measures at high-risk chemical facilities.

He also indicated to the House Homeland Security Committee that the department favours existing voluntary use by industry of inherently safer technology “where appropriate”.

While Reitinger did not address a provision in the pending bill that would give DHS authority to impose IST measures on chemical facilities, he indicated instead that that the department supports industry's own voluntary implementation of safer technologies.

The committee was holding the first full hearing on HR-2868, “The Chemical Facility Antiterrorism Act of 2009”, which was formally introduced in the House late on Monday.

The proposed bill would revise, broaden and extend the Chemical Facility Anti-Terrorism Standards (CFATS) that have been in place under DHS enforcement since 2006 and are due to expire in early October this year unless renewed or replaced.

The existing statute underlying CFATS does not include an IST mandate and does not allow private citizens to file suits to force tougher enforcement of the chemical site security programme.

In his opening statement at Tuesday’s hearing, committee Chairman Bernie Thompson (Democrat-Mississippi) said the existing statute is deficient because it does not allow private right of action or contain an IST mandate.

But Reitinger said in his testimony that the department “has significant concerns with the citizen suit provision” because of “the potential for disclosure of sensitive or classified information” in court proceedings.

Marty Durbin, vice president for federal affairs at the American Chemistry Council (ACC), warned that private right of action lawsuits would undermine plant site security efforts.

He urged the panel to give the department more funding and more staff to enforce site security law and regulations rather than “create a litigious environment” that would complicate security.

Durbin also argued against an inherently safer technology mandate, contending that safer technology decisions should be left to the industry, which traditionally has worked to employ safer and less costly substances and processes.

He also pointed out that there are no safer alternatives for some chemical feedstocks and processes. “In these instances, you cannot simply eliminate potential security risks, you must work to manage or mitigate them,” he said.

The Society of Chemical Manufacturers & Affiliates (SOCMA) argued in testimony that an IST mandate “would remove decisions about risk from those at facilities who manage it every day to a government bureaucrat in Washington who may be under-qualified to make such decisions”.

SOCMA said the private right of action provision is “misguided” and could expose chemical facilities to increased risk.

The trade group, which represents some 300 US specialty and batch chemical producers, warned that the private right of action provision could force disclosure in courts of what the DHS calls chemical-terrorism vulnerability information (CVI).

CVI includes detailed information about plant vulnerabilities and defences that high-risk chemical facilities must submit to the department to comply with existing site security requirements.

Chemical industry officials worry that public disclosure of such information could provide terrorists with blueprints for attacks.

“This is one area where citizen enforcement could actually work against, not support, the protective purpose of the law,” SOCMA said.

The Homeland Security Committee is expected to complete work on the new site security legislation this week or next. The bill also must be reviewed by the House Energy and Commerce Committee, and a parallel measure has yet to be introduced in the US Senate.

An eight-page summary of the pending HR-2868 is available from the Homeland Security Committee web site.

To discuss issues facing the chemical industry go to ICIS connect

By: Joe Kamalick
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