INSIGHT: US Senate panel dumps safer tech - but not for long

29 July 2010 16:12  [Source: ICIS news]

By Joe Kamalick

US Senate moves site security renewal bill forward a bitWASHINGTON (ICIS)--A key US Senate panel this week gave unanimous and bipartisan approval to a three-year extension of existing federal security rules for chemical facilities without an inherently safer technology (IST) mandate - but this crucial industry victory might be short-lived.

The Senate Homeland Security Committee voted 13-0 to approve a bill sponsored by Senator Susan Collins (Republican-Maine) that would extend the existing Chemical Facility Anti-Terrorism Standards (CFATS) to October 2013.

The bill now goes to the full Senate, where efforts may yet be made to add some sort of IST requirements to the measure before it gets a final Senate vote.

But, on its face, the committee vote on the Collins bill was “a major step forward” in the eyes of the Society of Chemical Manufacturers and Affiliates (SOCMA).

“Today’s vote is a clear sign of bipartisan support from the committee for the voluntary and CFATS-related efforts by the chemical industry,” said SOCMA president Lawrence Sloan.

The Collins bill is in sharp contrast to legislation approved by the US House last year that would have made significant changes in the existing three-year-old regulatory programme, including a provision for mandatory use of inherently safer technology as a security tool.

But the Senate committee rejected that approach in the Wednesday vote, although Homeland Security Committee Chairman Joe Lieberman (Independent-Connecticut) said he thought some sort of IST mandate could be appropriate and that further negotiations on that issue with the House might be possible before final congressional action.

A Senate bill similar to the House-approved legislation was introduced earlier this month, but Lieberman allowed Collins to put her proposal forward in its place.

The US chemicals industry had strongly favoured a multi-year extension of the existing rules, arguing that the three-year-old programme was still getting started and should be allowed more time to demonstrate its effectiveness.

The industry also was heatedly opposed to the IST mandate in the House bill, arguing that it would give the enforcing agency, the Department of Homeland Security (DHS), broad authority to force changes in a given plant’s feedstocks, processes or even end products.

So the Senate Homeland Security Committee’s unanimous approval of the Collins bill - minus an IST provision - is seen as a major win for the industry.

As approved by the Senate committee on Wednesday, the Collins measure differs slightly from her original bill, the Continuing Chemical Facilities Antiterrorism Security Act (S-2996), chiefly in that the approved version is a three-year extension rather than the five-year period proposed.

The committee-approved measure also includes some expanded voluntary and advisory provisions that do not make substantive changes in the current CFATS regulations but that nonetheless cause some unease among chemical industry officials.

The Collins bill would have DHS develop voluntary training programmes involving chemical plant operators and local emergency responders.

In addition, it would establish a voluntary technical assistance operation and best-practices clearing house in the department, both designed to give non-binding counsel and advice to regulated facilities at their request.

Lastly, it would set up a private sector chemical security advisory board to make suggestions to DHS on implementing and enforcing CFATS.

The American Chemistry Council (ACC) also welcomed committee approval of the Collins bill, with council president Cal Dooley seeing the vote as “a vote of confidence in existing chemical security regulations that address the need to protect chemical facilities and their ability to provide products and jobs critical to our nation’s economy”.

But while welcoming the committee vote, Jim Cooper, vice president for petrochemicals at the National Petrochemical & Refiners Association (NPRA), had some reservations about the ‘voluntary and advisory” provisions that the Collins measure adds as part of the three-year extension.

“We’re still evaluating those provisions,” Cooper said. He said he is uncertain about how those new measures, however voluntary, might be implemented.

“Best practices, guidance and that sort of thing can turn into standards, turning into de facto regulations,” he said. “Question is, what will these provisions look like in reality in the implementation phase?”

If and when the Collins bill comes up for a floor vote in the full Senate, Senator Thomas Carper (Democrat-Delaware) has indicated he will put forward an amendment that would require high-risk chemical facilities to “consider whether safer processes or safer chemicals make sense for them [and] report back to the department on what they learned”.

A similar IST “consideration” proposal was floated by a top DHS official at a chemical sector security summit earlier this month - and promptly fired on by industry leaders.

In remarks before the committee vote on Wednesday, Carper said such an IST consideration amendment could trigger a discussion on how safer technologies might serve a security role at chemical plants in coming years.

He said that the Collins bill’s “provision on technical assistance and the sharing of best practices among chemical facilities can be helpful in getting that discussion going”.

But NPRA’s Cooper doesn’t like an IST “consideration” proposal any more than an outright mandate.

“The incentive to use safer technology is already in CFATS, because if you can get below the threshold for jurisdiction and regulation, you can do that,” he said.

“Having a requirement for people to do it, do an IST assessment and report that to the department could bring companies into a liability position,” Cooper argued.

“If a company does that assessment and the report and they decide for valid reasons it is not in their interest to make those changes, the report is still there on the record,” he said. “And if something happens later, that document could be the basis for a liability challenge.”

“This is a big concern for us,” Cooper added. “We maintain that IST is just not something you can regulate or measure.” 

“Why make people do these paperwork exercises?  It sounds good on paper, but come time for implementation it can get convoluted,” he said, adding: “There’s not a lot of additional benefit, but the liability risk is concrete.”

Nor is IST consideration very appealing to SOCMA’s Sloan. 

“While on paper it sounds like a fair compromise,” Sloan said, “the word ‘consideration’ is fraught with ambiguity.”

“It is unclear specifically what steps companies would need to follow to ‘consider IST’,” he added.

These concerns might be aired and addressed if the Collins bill does get debated on the Senate floor, but that might not happen because so little time is left in the already crowded Senate calendar.

Congress is under pressure to move quickly on extending or replacing the existing CFATS rules because they are due to expire on 4 October this year.

Even if by some parliamentary artistry the Senate can debate and approve the Collins bill as is or amended, much work would still remain.

With the House-passed measure so different from the Collins bill, a House-Senate conference committee must be formed to hash out a compromise in time for still another final vote by both chambers by the end of September.

Don’t bet on it.

The most likely outcome is a one-year extension of the current CFATS programme as it stands via a provision already in the DHS appropriations bill that Congress must finish before the beginning of the federal fiscal year on 4 October.

That means everyone will get to go through the CFATS debate all over again in the new year with the 112th Congress. The new Congress could well be quite different, reflecting a shift in party balance that many expect to come in the 2 November national elections.

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By: Joe Kamalick
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