Representatives Tim Murphy (R-PA) and Gene Green (D-TX) have introduced H.R. 908, a bipartisan bill to extend the Chemical Facilities Anti-Terrorism Standards (CFATS) at the Department of Homeland Security to September 30, 2018. (They are now set to expire on March 18.) This is a sensible approach that allows the effective implementation of the CFATS standards, ensuring the safety of chemical plants while avoiding the unnecessary costs, complications and litigation of bills last session that sought more to restrict chemical usage than to achieve facility security goals.

Rep. Fred Upton (R-MI), chairman of the House Energy and Commerce Committee, issued a statement endorsing the bill:

First authorized in 2006, the program ensures chemical facilities throughout the U.S. have the information and technical guidance they need to safeguard their facilities from terrorists and to comply with the CFATS standards.

“Protecting our chemical plants from terrorist threats is a key national security priority, and I welcome the bipartisan sponsorship of Congressmen Murphy and Green,” said Upton. “Together with Chairman John Shimkus and the Environment and the Economy Subcommittee, and our colleagues in the House, I look forward to helping advance this legislation to the President’s desk to ensure chemical plant security is maintained.”

On the Senate side, Sen. Susan Collins (R-ME) has introduced S. 473, with bipartisan cosponsors Sens. Mark Pryor (D-AR), Mary Landrieu (D-LA), and Rob Portman (R-OH). In her statement introducing the bill, Collins contended that the program currently works and should be extended. From Page S1223 of The Congressional Record:

Changing this successful law, as was proposed last year by the House of Representatives in partisan legislation, would discard what is working for an unproven and burdensome plan.

We must not undermine the substantial investments of time and resources already made in CFATS implementation by both DHS and the private sector. Worse would be requiring additional expenditures with no demonstrable increase to the overall security of our Nation.

In the 111th Congress, the Senate and the House of Representatives debated a provision that would alter the fundamental nature of CFATS. The provision would have required the Department to completely rework the program. It would have mandated the use of so-called “inherently safer technology,” or IST.

What is IST? It is an approach to process engineering. It is not, however, a security measure. An IST mandate may actually increase or unacceptably transfer risk to other points in the chemical process or elsewhere in the supply chain. (continue reading…)

The House of Representatives on Friday passed H.R. 2868, the Chemical Facility Anti-Terrorism Act, by a vote of 230-193. Twenty-one Democrats joined all the Republicans in voting no. (Roll call vote.)

There were two chief arguments made on the House floor yesterday against the legislation:

• The bill’s mandate that facilities use Inherently Safer Technology (IST) will add substantial costs and burdens to business, create unintended consequences, and do little if anything to improve chemical facility security.
• Unemployment is at 10.2 percent. What we in the world are we doing?

Leading the opposition to the measure was Rep. Charlie Dent (R-PA), the ranking member on the House Homeland Security Committee, Subcommittee on Transportation Security and Infrastructure Protection. From his statement on the motion to recommit, Page H12533.

Now, there are plenty of reasons to oppose the inclusion of any IST mandate in this bill; it’s a vague and subjective philosophy that will cost facilities millions of dollars. The Department has no experts on IST, inherently safer technologies, nor any plans to hire them. And it’s not really even about security at all.

But the worst part of the IST mandate is that nowhere in the current bill is the Secretary required to consider the impact on the local economy and on the local workforce before imposing these unnecessary requirements. This is simply unimaginable in the current economy. Unemployment is now at 10.2 percent. (continue reading…)

The House of Representatives today continues floor debate on H.R. 2868, the Chemical Facility Anti-Terrorism Act, which makes sweeping changes to the Department of Homeland Security’s regulations over management of U.S. chemical manufacturing facilities.

The National Association of Manufacturers sent a letter to House members earlier this week opposing the legislation if it includes provisions mandating “inherently safer technologies,” or IST. This euphonious requirement imposes huge costs and reorganizing of manufacturing processes with no clear benefit in safety or security.

It’s also a disruptive reworking of safety measures already begun under the Chemical Facility Anti-Terrorism Standards being implemented by the Department of Homeland Security.

From the letter:

While H.R. 2868 reflects some of the important security measures that will continue to be implemented under CFATS, manufacturers oppose the approval of any IST language that would give the Department of Homeland Security authority to mandate manufacturing processes or substance changes without any regard for security improvements, practicality, availability or cost. The numerous improvements that manufacturers have made render this language unnecessary. Such changes would be devastating to the chemical industry, the impact of which would be felt by their customers, including thousands of small and medium manufacturers that use chemicals in their production processes or those that rely on goods manufactured with chemicals.

The paper industry estimates that converting a single facility to a new bleaching process to comply with IST could cost up to $200 million and increase energy demand by 32,000MWh/year. Additionally, the refining industry has determined that a mandate to switch from hydrofluoric acid to sulfuric acid, which can be just as dangerous in a terrorist scenario and requires roughly 250 times more acid to achieve the same results, would cost between $45 and $150 million per refinery with an increase in operating costs between 200 and 400 percent. This devastating impact could also be felt by families, as their energy costs will inevitably rise.

Rep. John Culberson (R-TX) cited the NAM’s objections in his floor remarks Thursday, and we thank him.

The NAM also joined many other trade associations in a letter in October detailing the many problems with the bill.

Today’s debate will include action on a number of amendments that could improve the bill. (See Majority Leader’s floor schedule.) The overriding question that House members should be asking themselves on all today’s votes is why they would support legislation that will add costs, drive industry overseas, and destroy jobs.

The unemployment rate was announced today at 10.2 percent.

The House is expected to debate the chemical facility security bill, H.R.2868, on Thursday. Manufacturers are seriously concerned about an innocuous-sounding but extremely disruptive provision, requiring plants to implement inherently safer technology, or IST.

Forced substitution of one chemical could play out throughout the manufacturing process, raising costs and even eliminating domestic production of useful products for little if even security benefit.
(See this letter in The Hill from the Society of Chemical Manufacturers and Affiliates.)

Another brand-new provision — never considered in previous versions of the bill — is the “citizen lawsuit.” The bill would authorize individuals or groups to sue the Department of Homeland Security in order to force new processes and practices at chemical plants.

In a Washington Times op-ed today, U.S. Reps. Peter King (R-NY) and Rep. Charlie Dent (R-PA) say the expected results would be akin to the legal chaos that comes the Endangered Species Act. From “Litigation as a hazardous substance“:

Such a provision would mark the first time that DHS would be subject to civil suits by uninjured parties. Such a move is unnecessary, risky and, in fact, dangerous.

When it comes to securing chemical facilities from terrorist attack, millions of human lives are at risk. We cannot afford to have DHS – established as a direct result of terrorists murdering nearly 3,000 innocent Americans – struggling in the same flood of litigation as the Fish and Wildlife Service. We certainly cannot afford to have DHS’ work of protecting the American people come to a near halt, as had happened with the wildlife protection.

The National Association of Manufacturers joined numerous other trade associations in October in expressing our opposition to the legislation. The joint letter is here.

(Hat tip: Hugh Hewitt, whose legal work involves fighting the excesses of the Endangered Species Act.)

The headlong, ambitious, aggressive, helter-skelter, very fast rush to complete the House health care legislation has superseded the House Energy and Commerce Committee’s consideration of other matters.

Thursday’s subcommittee hearing on H.R. 2868, the Chemical Facility Anti-Terrorism Act, and the Drinking Water System Security Act of 2009, has been postponed. Independently, the House and Senate are acting for a one-year extension of the Chemical Facility Anti-Terrorism Standards, which is the preferable course of action to begin with.

We note the bill has also been referred to the House Judiciary Committee for consideration of the “citizen lawsuit” provision, language that would that would encourage environmental activists to block chemical plants from operating through litigation. The term is “regulation through litigation.”

As we’ve previously noted, Energy and Commerce also punted on the planned committee hearing on the Consumer Product Safety Improvement Act until September, the hearing Chairman Henry Waxman promised recently on The Diane Rehm Show. History suggests something will come up in September, too.

Meanwhile, Chairman Waxman may cancel his scheduled book reading this evening at the Historic Sixth and I Street Synagogue. As the event sponsor, Politics & Prose, reports:

At this moment, Chairman Waxman and his Energy and Commerce Committee are working feverishly to write the Health Bill. It is not clear that the committee will be finished voting by 7 pm on Wednesday.

Feverish. That’s a good adjective too.

UPDATE: (11:40 a.m.): Waxman back on for his book reading. As we’ve suggested before, an event sponsored by a bookstore would seem a good opportunity to ask why the Consumer Product Safety Improvement Act has led to the wholesale destruction of pre-1985 children’s books.

The Senate last week passed H.R. 2892, the Department of Homeland Security’s appropriations bill, which included a one-year extension of department’s authority over security for chemical facilities potentially threatened by terrorist attacks. This one-year extension helps continue the progress that the agency and chemical industry have made in implementing safety and security regulations adopted in 2007, the Chemical Facility Anti-Terrorism Standards. (CFATS)

The House has also passed a one-year extension, and the approach is far superior to the permanent legislation passed by the House Homeland Security Committee, H.R. 2868, the Chemical Facility Antiterrorism Act. That seemingly well-intentioned piece of legislation would U.S. production and storage of chemicals more burdensome and costly while providing no benefit public safety or national security.

Bill Allmond, vice president of government relations at the Society of Chemical Manufacturers and Affiliates (SOCMA), put it well: “As we have argued for the past several months, Congress needs to address the October 2009 CFATS deadline expeditiously. Because the House appears, so far, to be more interested in passing controversial amendments like inherently safer technology (IST) to the existing regulations rather than make the rules permanent, this extension is the most responsible action.”

Earlier posts.

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.