Chemical Security Bill Advances, So Does ‘Citizen Suits’ Language

By June 24, 2009General

The House Homeland Security Committee yesterday passed out of committee H.R.2868, the Chemical Facility Anti-Terrorism Act of 2009, as amended. The vote was 18-11 along party lines.

National Journal’s “Global Security Newswire” reports that Democrats defeated three Republican-sponsored amendments:

An amendment from Representative Mark Souder (R-Ind.) that would have limited lawsuits against chemical facilities or DHS was defeated in a party-line, 10-16 vote. Another amendment from Representative Michael McCaul (R-Texas) to limit lawsuits was defeated by an 11-17 party-line vote.

And Democrats beat back an amendment from Representative Paul Broun (R-Ga.) that would have stripped the provision allowing lawsuits from the bill. It was defeated by an 11-17 party-line vote.

Democrats adopted, in an 18-11 party-line vote, an amendment in the nature of a substitute offered by Homeland Security Chairman Bennie Thompson.

The Committee has posted videos of the mark-up here. The bill now goes to the House Energy and Commerce Committee; Chairman Waxman is a cosponsor of the bill.

We’ve been writing about the “citizen suits” provisions of the legislation because litigation produces an inefficient and capricious system of regulation that benefits only activists and trial lawyers. And why does the 2009 bill include language creating a private right of action when the 2008 language did not? In any case, it’s a favorite topic.

But the bigger issue is the insistence by the advocates of expanded regulation on something called “Inherently Safer Technology,” or IST. It’s a term of art, but open to enough subjective interpretation that companies could never been certain of whether they have complied or not.

The National Petrochemical and Refiners Association reported on the misguided approach that IST represents in a study, “Inherently Safer Technology and the Refining Industry — A Case Study: Hydrofluoric vs. Sulfuric Acid.” (Executive summary, full study.) As NPRA President Charles T. Drevna summarized in a statement:

Those who are pushing for the adoption of IST simply to force mandatory chemical substitution fail to take into account the fact that facility owners and operators already follow the safest possible practices and procedures. A forced switch in chemicals may actually increase not only costs, but risks to facilities, their employees, the environment, and the public.

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