US chemical officials caution Congress on site security bill

01 October 2009 22:40  [Source: ICIS news]

WASHINGTON (ICIS news)--US chemical industry officials on Thursday warned Congress that pending legislation meant to toughen anti-terrorism security at plant sites could instead make production facilities more vulnerable to possible attacks.

The officials testified before the House Energy and Commerce Committee subsidiary panel on Energy and Environment concerning HR-2868, the Chemical Facility Antiterrorism Act (CFA Act).

The proposed legislation would make permanent the existing Chemical Facility Anti-Terrorism Standards (CFATS) that have been in place for three years, but technically have expired under the original law’s sunset provision.

The replacement bill would incorporate much of the existing site security requirements - which authorise the Department of Homeland Security (DHS) to set and enforce antiterrorism protective measures at the nation’s high-risk chemical facilities.

Some 7,000 chemical production, storage or distribution sites have been identified as being at high risk for an attack by terrorists seeking to create massive off-site casualties. 

About 550 of those 7,000 facilities have been placed in the highest risk categories and are subject to the most stringent DHS requirements.

Under the existing programme, chemical facilities may choose which security improvements to make in order to meet standards set by the department.

The pending legislation, however, goes beyond existing law in areas where the industry contends it would be counter-productive and could aggravate the risk.

Marty Durbin, vice president for federal affairs at the American Chemistry Council (ACC), told the panel that the bill’s provisions giving DHS authority to impose inherently safer technology (IST) measures on high-risk plants and allowing private citizens to file suit to force compliance are unnecessary and run contrary to security interests.

Under an IST mandate, the department would have the authority to force changes in a given facility’s feedstocks, processes and even products in the name of reducing the site’s appeal as a terrorist target or to minimise the off-site impact of an attack.

Durbin said in testimony that the existing CFATS rule “has already demonstrated that it drives each facility to consider all possible risk reduction options, including ‘methods to reduce consequences’ or ‘inherently safer’ approaches” to security plans.

Imposing an IST mandate from Washington would not only duplicate the existing law’s provisions but could inadvertently shift risk to other venues, he said.

Stephen Poorman, testifying for the Society of Chemical Manufacturers and Affiliates (SOCMA), also cautioned the subcommittee against an IST mandate.

“However common sense such a mandate might appear on the surface, it is fundamentally a bad idea in the security context,” Poorman said. 

Such a mandate, he said in his testimony, “is bound to create situations that will actually increase or transfer overall risks”. He gave the example of a producer being obliged to use a less toxic catalyst but consequently switching to a production process that uses higher pressures and temperatures.

Both Durbin and Poorman spoke against the pending bill’s provision for private right of action for citizens. They argued that the discovery process in federal lawsuits invariably would disclose sensitive-security details about a particular site, information that potential terrorists could use for attack planning.

They also argued that private lawsuits would create a litigious environment, which could undermine the thus far collaborative and co-operative relationship between the industry and DHS.

However, Representative Henry Waxman (Democrat-California), chairman of the parent Energy and Commerce Committee, said the IST mandate and citizen suits' provisions “fill in some important gaps in the existing programme”.

Waxman said in an opening statement that the IST mandate “is a common-sense policy that will help make facilities reduce the likelihood that they will become attractive terrorist targets”.

He said the private right of action provision is “an important citizen enforcement tool” that allows the general public “to hold DHS accountable for failing to perform its mandatory duties or hold chemical facilities accountable for violating their security requirements”.

Final action on HR-2868 at the committee level is not expected for several weeks.

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