Provisions to allow civil suits and to mandate use of inherently safer technology hurt chemical security efforts, officials and businesses argue
The House Homeland Security Committee will begin markup Thursday of the Chemical Facility Anti-Terrorism Act of 2009 (HR 2868)--but it does so over the resistance of the panel's Republicans, the Department of Homeland Security (DHS) and representatives of the chemical industry.
During a hearing Tuesday, Republicans protested provisions in the bill that would permit civil suits against chemical facilities not in compliance with the Chemical Facility Anti-Terrorism Standards (CFATS) and that would force companies to re-engineer processes if their chemicals were deemed too dangerous.
DHS officials, meanwhile, did not any support substantial changes to CFATS through fiscal 2010 due to implementation of the current regulations. They have requested a one-year extension of CFATS as written to wrap up work under the program but they vowed to work with Congress under whatever regulatory regime becomes law.
Chemical industry representatives protested that they had not received enough time to come into compliance with current CFATS laws, which DHS has not finished implementing.
But Homeland Security Committee Chairman Bennie Thompson (D-Miss.) and other Democrats on the committee fought back against criticism of the legislation, noting it was crafted over six months of stakeholder input and bi-partisan meetings. Thompson declared that the bill would reauthorize CFATS and enhance it.
Rep. Peter King (R-NY), ranking member of the committee, voiced grave concerns about he legislations. CFATS, as enacted by the fiscal 2007 Homeland Security Appropriation Act, has resulted in real progress in chemical facility security, he said.
The Obama White House and DHS requested a one-year extension of the current CFATS law in the fiscal 2010 homeland security budget to finish that work, King noted, condemning "a rush to judgment" on the success of the current CFATS program.
Philip Reitinger, deputy undersecretary of National Protection and Programs, testified that DHS had determined 7,010 chemical facilities fell into high-risk categories under CFATS in June 2008. Since then, DHS has received about 6,100 site vulnerability assessments from those facilities. Facilities are submitting site security plans under the current CFATS law, which expires in October 2009, and DHS plans to inspect sites for compliance with the law in fiscal 2010.
As such, DHS hoped for the one-year reauthorization to complete its work under the program, Reitinger submitted. But the department also has concerns over permitting civil suits and mandating the use of inherently safer technology, which requires facilities to replace existing chemical processes with safer ones when feasible.
"We support some aspects of the bill but do have concerns with other sections of the bill, particularly the provision relating to citizen suits," Reitinger stated.
"In general on civil suit provisions, I have a concern that civil litigation involving the CFATS regime would lead to a highly likelihood of disclosure of sensitive information," he added, indicating that such sensitive information would be useful to terrorists who wanted to attack the facilities.
Thompson defended his legislation, arguing that it would prevent frivolous lawsuits by providing DHS with a 60-day window to resolve complaints, whereupon federal action would result in dismissal of the suit. Republicans complained that the bill would allow civil suits to come from uninjured plaintiffs, who could tie up DHS in lawsuits forever.
Inherently safer technology
Laura Richardson (D-Calif.) snapped angrily at those fighting the use of inherently safer technology (IST) as officials and industry called it unnecessary and expensive.
The IST provisions of the bill are designed to fight the potential release of toxic chemicals that could hurt human health, the theft and diversion of chemicals that could make weapons, and the potential for sabotage and contamination, she thundered.
Waiting another year to mandate IST is another year that the American public remains vulnerable to such threats, Richardson asserted.
Thompson weighed in that the legislation would give the Secretary of Homeland Security quite a bit of discretion and flexibility to adjust the rules. The bill would authorize authorizes the secretary to require IST for high-risk facilities but the secretary must make factual determinations of the implementation and whether it is feasible, cost effective, actually lowers risk, or impairs the ability of facilities to continue operations.
In response to Republican questioning on the matter, however, Sue Armstrong, director of the DHS Infrastructure Security Compliance Division, stated, "I would be not inclined to tell industry how to do its business and what a cost-effective process is for a particular facility. Our focus is on security."
Marty Durbin, vice president of Federal Affairs at the American Chemistry Council (ACC), also protested an IST mandate as premature.
"We believe the provision that would give DHS authority to mandate process changes is unnecessary," Durbin testified. "Through its use of risk-based performance standards, CFATS essentially drives each facility to consider all possible risk reduction options when developing a site security plan--including 'methods to reduce consequences' or 'inherently safer' approaches.
"We believe that Congress should not abandon a strategy to enhance security that employs performance-based security standards to avoid the potential for shifting risk, and allows DHS to unleash the ingenuity, expertise and resources of the chemical sector, he continued. "The reason this occurs is that the highest risk facilities subject to CFATS face significant cost to implement the stringent requirements and thus have a strong incentive to implement enhancements that could move the facility to a lower-risk tier, or potentially even move it out of the program."
ACC member companies have spent $7.7 billion collectively to enhance security to date. The first eight years of compliance with current CFATS regulations would require another $8 billion in investments, Durbin said. Yet ACC still supports the current CFATS requirements, which it views as reasonable and effective.
Civil suits under the new CFATS proposal also pose difficult regulatory questions because of the individual nature of how each chemical facility complies with CFATS, Durbin observed.
"Unlike environmental statutes, CFATS is not a series of prescriptive statutory measures with which compliance is mandatory, like emission standards or discharge limitations, and therefore it is much more difficult for an outsider--whether it be a citizen or judge--to ascertain if a standard is being met or to decide what needs to be done to address an alleged deficiency," he stated.
Martin Jeppeson, director of Regulatory Affairs for the California Ammonia Company, pointed out that companies subject to IST requirements would have no way of determining how changes in their use of chemicals would impact the supply chain.
"Such a mandate could jeopardize the availability of lower-cost sources of plant nutrient products, which our farmer customers depend on for specific agronomic reasons," he commented.
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