US chemical leaders blast new Senate security proposal

16 July 2010 19:46  [Source: ICIS news]

Chem leaders blast security proposalWASHINGTON (ICIS news)--US chemical sector officials on Friday charged that a new site security bill introduced in the US Senate is misguided, could paralyse the industry and broadly undermine the availability of essential consumer goods.

Industry officials said that a new bill introduced on Thursday by Senator Frank Lautenberg (Democrat-New Jersey) aimed at strengthening anti-terrorism security at chemical plants could have the opposite effect and weaken protection for key facilities.

The Lautenberg bill - the “Secure Chemical Facilities Act” - largely duplicates the HR-2868 chemical facility legislation approved by the US House of Representatives in November last year. 

Both the Lautenberg bill and the House-passed measure require inherently safer technology (IST) as a mandatory tool in making security arrangements at chemical facilities thought to be at high-risk for potential attack by terrorists who want to cause massive off-site casualties.

Lautenberg, whose state is home to many chemical plants, said his bill would require producers at high-risk sites to assess their vulnerability and develop plans to address perceived weaknesses that could be exploited by would-be terrorists.

That approach was already part of the existing and nearly four-year old federal site security regulations, formally known as the Chemical Facility Anti-Terrorism Standards (CFATS).

But Lautenberg’s bill also “requires the highest-risk facilities to put in place inherently safer technology to increase public and environmental safety”.

An IST mandate is widely opposed by US chemicals manufacturers who fear that it would give the Department of Homeland Security authority to force changes in a given facility’s feedstocks, processes and even end products.

In particular, Lautenberg said his 107-page bill would require that chemical plants “evaluate whether the facility could reduce the consequences of an attack by, for example, using a safer chemical or process”.

“The facility must implement those safer measures if it has been classified as one of the highest-risk facilities, implementation of safer measures is feasible, and implementation would not increase risk overall by shifting risk to another location,” according to Lautenberg’s summary of the bill.

The bill also would “allow communities to have a role in ensuring local facilities comply with these regulations”.

This provision, known as private right of action (PRA), would allow citizens to file suit in federal court against the Department of Homeland Security to force enforcement against a specific facility.  It also would allow private citizen petitions to the department to demand federal investigation of suspected security shortcomings at particular sites.

“This Lautenberg bill obviously follows the environmental agenda to a T,” said Jim Cooper, vice president for petrochemicals at the National Petrochemical & Refiners Association (NPRA).  “This is an environmental bill as much as it is a security measure,” he added.

Cooper argued that the Lautenberg bill even went beyond the IST provisions of the House-passed measure in that it requires chemical plant operators and the DHS to undertake much broader studies and analyses of the potential and application of wide-ranging inherently safer technology options for hundreds, perhaps thousands of facilities.

“The amount of analysis and study required for IST in the Lautenberg bill would create paralysis by analysis,” Cooper said, “and it would divert resources that otherwise could be used to actually make plant sites more secure.”

He said that NPRA would oppose the Lautenberg IST provisions, as the trade group did with the House-passed bill, “because as a matter of principle, you cannot objectively measure IST, and there is no recognised, objective way to tell which process might be better than another, so there’s no way you can regulate it”.

Cooper also was critical of the private right of action provision in the Lautenberg bill, arguing that similar PRA provisions in environmental laws have in many instances disrupted enforcement actions by the Environmental Protection Agency (EPA).

“Private right of action can be very disruptive, when you look at EPA over the years, in generating court orders that accelerate enforcement and end with a less effective regulation,” he said.

“I sure hope we don’t go down this path,” Cooper added, referring to the IST and private action provisions.

The Society of Chemical Manufacturers and Affiliates (SOCMA) was similarly critical of the Lautenberg bill, calling it “a misguided attempt” to safeguard critical infrastructure.

SOCMA president Lawrence Sloan noted that Homeland Security Secretary Janet Napolitano has recently hailed the existing CFATS programme’s performance standards that “protect individual facilities against threats without compromising their unique operational characteristics or efficiency”.

“Senator Lautenberg’s bill runs counter to the secretary’s emphasis on a balanced approach to the existing CFATS programme,” Sloan said.

Like Cooper, Sloan argued that the Lautenberg bill has a major flaw “because it mandates implementation of a process safety concept - not a security measure - a clear definition of which cannot be agreed upon by experts and which cannot be measured”.

Sloan also argued that while the new Senate bill ostensibly was aimed at protecting chemical plants from terror attacks, “this bill takes aim at the manner in which the US manufacturers chemicals [and] has the potential to alter common goods that Americans rely on every day”.

Earlier, the American Chemistry Council (ACC) also raised objections to the Lautenberg bill.

The Lautenberg bill might come up for consideration in the last week of July before the Senate Homeland Security Committee, which has primary jurisdiction over CFATS and infrastructure protection.

That panel hearing also was expected to consider the House-passed bill and a bipartisan measure sponsored by Senator Susan Collins (Republican-Maine) that would simply extend the existing CFATS regulations for another five years.

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Paul Hodges studies key influencers shaping the chemical industry in Chemicals and the Economy

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