The Washington Times today editorially examines House passage of H.R. 2868, the Chemical Facility Anti-Terrorism Act, a seriously flawed piece of legislation that will raise costs for manufacturers and discourage creation of private-sector jobs.

The editorial, “Chemical insecurity,” argues that having the government, in this case the Department of Homeland Security, impose the substitution of chemicals under the theory of “inherently safer technologies” actually works against safety.

The forced switching of chemicals could result in companies having to replace products they have long used without incident with new chemicals and processes. There is wide agreement among corporate safety executives and outside experts that inexperience is one of the major causes of accidents.

Ill-considered mandates could slow the manufacture of products used throughout the economy, from fertilizer to pharmaceuticals, potentially creating shortages of some goods and even lost jobs when some products cannot be produced because key ingredients are outlawed.

The Times also notes the inclusion of provisions allowing private lawsuits against the Department of Homeland Security over its regulation of chemical manufacturing facilities, noting the similarities to the Endangered Species Act, in which lawsuits can stop projects and turn the federal government into a land-use planning agency. We ask: Jobs?

We wrote about the third-party lawsuit provisions at Point of Law, noting the defeat of an amendment by Rep. Michael McCaul (R-TX) to remove the language. McCaul said:

Allowing any third party–anybody– to sue the Secretary is both reckless and unnecessary. This provision would be a boon to trial lawyers and to environmentalists at the expense of the Department of Homeland Security and national security interests. Citizen suits have no place in a national security context, and this would be the very first time that Congress would be authorizing such suits in the homeland security arena.

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 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 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.

We’ve recently highlighted a new bill being pushed through the House, H.R. 2868, the Chemical Facility Antiterrorism Act, that promises to make U.S. production and storage of chemicals more expensive and burdensome. The chemical industry is one of strong foundations of the U.S. economy. As Marty Durbin of the American Chemistry Council (ACC) described it at Tuesday’s hearing on the legislation by the House Committee on Homeland Security:

The business of chemistry is an important part of our nation’s economy and employs more than 850,000 Americans, and produces 19 percent of the world’s chemicals. ACC member companies manufacture essential products critical to everyday items that keep the economy moving and are essential to developing the greener, cleaner, more competitive economy the nation seeks. More than 96 percent of all manufactured goods are directly touched by the business of chemistry. Our members provide the chemistry that is used to produce life saving medications and medical devices, body armor used by our military and law enforcement officers, light weight components for vehicles, energy saving insulation and windows, silicon for solar panels, wind turbine blades and so much more. 

Yet the legislation includes many provisions that will simply make it harder to do business in the United States with no real benefit in terms of safety or anti-terrorism security. Sure, environmental groups will appreciate the additional power to sue companies in tandem with federal regulatory enforcement, but that “citizen suit” provision only serves the activists, not security.

This legislation is also a major item of interest and concern in farm country, since modern agriculture involves fertilizers and other chemicals, to say the least. The Kansas Meadowlark blog has been covering the rural angle, with attention to the growing-power-of-government angle, too. From “Congress could give government bureaucrats more control of farms and industry:

The federal government continues its push for unprecedented control of more aspects of our lives while there is little public discussion of the changes and consequences.  The mainstream press is mostly ignoring changes being discussed now in Congress regarding chemical security, which could have a huge impact on most industries, including ones important to Kansas.

Shouldn’t Kansans speak up about more federal controls that may affect Kansas farms?  Don’t Kansas farmers know more about farming than federal bureaucrats?

The committee mark-up starts at 10 a.m. Go here for the streaming video.