Complicating Chemical Facility Security

By September 29, 2009General, Regulations

Twenty-seven trade associations yesterday sent a letter to the House Energy and Commerce Committee’s chairman, Rep. Henry Waxman (D-CA), and ranking member, Rep. Joe Barton (R-TX), expressing strong disagreement with provisions of H.R. 2868, the Chemical Facility Anti-Terrorism Act of 2009. (Waxman is a cosponsor.)

The National Association of Manufacturers was one of the signers of the letter, which is available here. The letter was sent in anticipation of Thursday’s subcommittee hearing on the bill.

The context is this:

Our industries recognize and take seriously the need to protect our nation’s chemical plants, storage facilities, and infrastructure against security threats and potential terrorist attacks. Since 2006, businesses have spent approximately $4 billion to enhance the security of our own chemical facilities and systems. Given the importance of these safety issues, we generally have supported the federal government’s efforts to develop and implement reasonable risk-based and performance-oriented security standards that focus on facilities posing the greatest risk to our workers, communities, and national security interests. To that end, we have worked constructively with the U.S. Department of Homeland Security (DHS) in providing valuable input for the Chemical Facility Anti-Terrorism Standards (CFATS) program and are actively working to implement these new standards.

But there are provisions that are actually detrimental to effective security, complicating the implementation of safety measures and adding major new liabilities (that is, costs).

First, Section 2109 is anti-preemption language, meaning it allows states and local governments to create more stringent — or different — standards than federal law. This is a proposed anti-terrorism statute, in great part, so a single national standard should apply; uniformity brings predictable rules, enforcement and costs.  (The letter doesn’t raise this specter, but history suggests we’d also see grandstanding politicians ginning up public fears for political gain.)

Second, the bill’s “citizen suit” provision (Section 2116), allows any person – even those who have not suffered any harm – to sue the facilities or the Department of Homeland Security to enforce the law. As the letter states, allowing laypersons rather than DHS security specialists to challenge a facility’s selection of security measures does nothing to enhance security. There’s also the real possibility that the discovery process in federal litigation could lead to the disclosure of classified or sensitive information to terrorists. Previous versions of the bill have never had this provision: Why is it being added now?

And, “Finally, we strongly oppose the bill’s provision (Section 2111) requiring all covered chemical facilities to assess so-called “inherently safer technologies” (ISTs) and mandating that chemical facilities assigned to “tier 1” or “tier 2” actually implement ISTs, if so ordered by DHS. This provision essentially provides DHS the authority to implement manufacturing process changes, an action that is unnecessary and potentially very disruptive to many chemical facilities.”

The associations are reaffirming the points that the NAM made in a September 11 letter to the committee (available here). Other coverage:

Earlier posts.

Leave a Reply