In the World of Chemical Security, the Real World

It’s next to impossible to keep up with all the regulations and bills that make it more difficult and expensive to manufacture products in the United States. In the name of worthy-sounding public policy goals, in the abstract at least, government overkill meets overreach to send business overseas.

Take, for example, a new bill in the U.S. House of Representatives meant to improve the security in the production, storage and transportation of industrial chemicals. Rep. Bennie Thompson (D-MS) on Monday introduced H.R. 2868, Chemical Facility Anti-Terrorism Act, and held a hearing on the bill today in the House Homeland Security Committee he chairs. (Hearing details and testimony.) As Chairman Thompson said in his opening statement, the legislation would reauthorize the Department of Homeland Security’s chemical security program — the “Chemical Facilities Anti-Terrorism Standards” — before it expires in October. The acronym is CFATS.

The chemical industry, a foundation of the U.S. manufacturing economy (employing more than 850,000 Americans), has been moving aggressively to comply with the Department of Homeland Security’s implementation of the CFATS existing regulations — at no small cost to manufacturers and consumers alike. In his testimony today, Marty Durbin of the American Chemistry Council laid out the steps the industry has taken in keeping with their commitment to safety.

But there are problems with the proposals, as he makes clear. He cites the “private right of action,” i.e., encouraging litigation against companies as a parallel regulatory process. (That’s our description.)

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.

In its earliest stages, one of the goals of the program is to have more secure sites through a
collaborative effort between DHS and the regulated community. Creating a litigious environment will most certainly undermine such an effort. If Congress truly believes that DHS will have a problem with running the program, it should ensure that it has staff and resources to do the job and allow DHS to have a tight grip on compliance.

In an earlier letter to Rep. Joe Barton (R-TX), the Texas Chemical Council described its general objections to what was then draft legislation:

TCC supports Congress enacting into statute the regulatory framework known as the “Chemical Facility Anti-Terrorism Standards” that the DHS carefully established and is now enforcing. Removing the sunset date and making the chemical security regulations permanent would provide the certainty needed to both protect our citizens and support our nation’s economic recovery.

TCC is strongly opposed to legislation that would disrupt this security program by adding provisions that would mandate goverment-favored substitutions, weaken protection of sensitive information, impose onerous penalties for administrative errors, create conflicts with other security standards or move away from a risk-based approach. We ask that you oppose legislation that would go beyond security protections and create a mandate to substitute products and processes with a government-selected technology.

The debate does get into technical areas that test our knowledge, but the basic issue is clear enough: A regulatory process is under way to improve the security of chemical facilities, that process should be continued and allowed to be effective, and there is no clear reason to embark on a new, extraordinarily expensive and litigious system to supplant it — especially when the manufacturing economy is already facing tough times.

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