INSIGHT: New Senate bid for inherently safer tech is stillborn

31 January 2013 17:20  [Source: ICIS news]

By Joe Kamalick

New anti-terrorism site security bill likely dead in the waterWASHINGTON (ICIS)--Senator Frank Lautenberg (Democrat-New Jersey) has again introduced legislation to allow federal security officials to impose inherently safer technology (IST) measures at US chemical plants, but his bill is likely safe from passage.

In the eyes of industry, Lautenberg’s bill, S-68, the “Secure Chemical Facilities Act” (SCFA), essentially would allow federal officials to dictate what feedstocks and in what volumes a chemical facility could use, what processes it employs and products produced.

The bill would amend the existing Chemical Facility Anti-Terrorism Standards (CFATS) to broaden powers of the Department of Homeland Security (DHS) in ensuring that chemical production, storage and transit points are adequately protected against possible terrorist attacks.

In the still-fresh aftermath of the September 11, 2001, terrorist attacks in New York City and at the Pentagon near Washington, DC, CFATS was enacted in 2006 to establish anti-terrorism security standards at thousands of US chemical facilities.

It was feared that terrorists seeking to cause massive off-site casualties and environmental damage would attack a chemical facility in or near a high-density population centre.

CFATS required that DHS set security standards for chemical facilities, based on the type and volumes of substances used or produced and a site's proximity to population centres. Under the rules, plant owners or operators could choose what specific security measures they wanted in order to meet the department’s standards and pass later inspections.

Lautenberg’s proposed amendments to CFATS would instead allow DHS to pick and choose what security measures plant site operators should employ, including inherently safer technologies, to reduce or eliminate the risk and downwind consequences of a terrorist attack.

Under the bill, the owner or operator of a high-risk facility “shall implement methods to reduce the consequences of a terrorist attack on the covered chemical facility if the Director of the Office of Chemical Facility Security determines that implementation of the [IST] methods … would significantly reduce the risk of death, injury or serious adverse effects to human health resulting from a chemical facility terrorist incident”.

That position, director of chemcial facility security, would be created by the bill.

Lautenberg's IST mandate would be subject to some conditions, however. According to the bill, DHS could not impose IST measures if doing so would simply shift the risk to another site or to the transportation system. 

The government-mandated safer technology also would have to be feasible, and implementing the mandated IST measures should “not significantly and demonstrably impair the ability of the owner or operator of the covered chemical facility to continue the business of the covered chemical facility at its location”.

Apparently, determinations on risk-shifting, feasibility and a facility’s ability to continue production under mandated IST measures would be at the discretion of DHS.

The bill provides that the owner or operator under orders to implement certain IST measures may decline, providing a written declaration on why those measures cannot or should not be put in place.

However, says the bill, after DHS consults with the site operators and “experts in the subjects of environmental health and safety, security, chemistry, design and engineering, process controls and implementation, maintenance, production and operations, chemical process safety, and occupational health, as appropriate, shall provide to the owner or operator a written determination of whether, in the discretion of the Secretary, implementation shall be required”.

If, despite the objections of plant operators, DHS decides that specific IST measures must be implemented, the bill provides that the department “shall issue an order” to the owner/operator, explaining the findings of the experts that DHS consulted, the specific IST measures to be implemented, and a schedule for completion.

Lautenberg’s bill also would allow private right of action (PRI), meaning that individual citizens or other entities could file suit in federal court against a specific production facility, alleging that it is in violation of CFATS.

The private right of action provision in his bill also would allow individuals to file federal suits against DHS, alleging that the department has failed to enforce one or another aspect of CFATS against one or more chemical facilities.

The chemicals sector has long opposed an IST mandate, warning that federal security officials are ill-suited to be making production decisions.

Charles Drevna, president of the American Fuel & Petrochemical Manufacturers (AFPM), said his trade group “strongly opposes any kind of inherently safer technology (IST) mandate”.

“As I’ve pointed out in the past,” Drevna said, IST “is an engineering philosophy, not a technique.”

Drevna and other sector officials often have argued that if chemicals producers can find a way to generate the same product of equal quality and cost with less volatile feedstocks and lower heat- and pressure-intensive processes, they do it.

“There is no consistent way to tell whether one process is safer than another,” Drevna said.

In any event, he added, “The role of the federal government should not include telling engineers how to do engineering.”

Scott Jensen, spokesman for the American Chemistry Council (ACC), said that even though the existing CFATS does not contain an IST mandate, “we believe the approach under CFATS has demonstrated that it encourages facilities to take the appropriate and necessary steps to secure their facilities”, sometimes by altering procedures.

“According to the DHS’s own data,” Jensen said, “they have seen facilities consider and in many cases make changes to processes or substitute chemicals” in order to meet the federal security standards.

“This shows that performance standards can be just as effective, and it recognises that operators do consider alternatives on a regular basis, and the decision on what security measures to use should be left to them,” he said.

Jensen said that ACC “appreciates Senator Lautenberg’s interest in this important issue, but we believe that the legislation as it pertains to chemical facilities does not reflect the current situation and need”.

He said the bill “does not recognise the progress that chemical facilities have made, working with DHS to enhance security”.

Bill Allmond, vice president for government relations at the Society of Chemical Manufacturers and Affiliates (SOCMA), also voiced opposition to the Lautenberg bill.

“There is currently no credible threat to the chemicals sector or changes that justify a heavier hand by the federal government,” Allmond said.

He said that SOCMA opposes the Lautenberg bill on grounds that existing security measures under CFATS “have repeatedly been deemed appropriate and sufficient by congressional members in both parties in both chambers over multiple Congresses”.

He said that additional security measures, such as an IST mandate, “have been considered and rejected by previous Congresses”.

That broad reluctance in both the Senate and House is likely to hold firm in this new 113th Congress.

Lautenberg has introduced his “Secure Chemical Facilities Act” or versions of it in each of the two previous congresses, but the bill has never gotten any traction.

In earlier congressional sessions, the bill has never been brought up before the Senate Homeland Security Committee, which has jurisdiction on DHS matters.

Lautenberg is not a member of that committee, so it is all the more difficult and unlikely that his measure would get consideration there.

“The path for Lautenberg’s bill through the Senate is extremely questionable,” said a Capitol Hill veteran.

And, even assuming the measure could get committee hearings and approval and passage by the full Senate, the bill would be dead on arrival in the Republican-majority House of Representatives.

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

By: Joe Kamalick
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