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.

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 Energy and Commerce Committee today reported out H.R. 2868, the Chemical Facility Anti-Terrorism Act by a 29-18 vote. (For the mark-up and amendments, go here.) While the goal of protecting chemical facilities from terrorist attacks is obviously desirable, the legislation complicates recent Homeland Security rules and adds significant new costs and burdens that make it more difficult to operate chemical plants. In the process, risks that chemical companies now manage well could be transferred to other venues less able to deal with the threats.

The National Association of Manufacturers joined 20 other trade associations in sending a letter to the committee expressing the groups’ opposition to the legislation. The major point of objection is the bill’s imposition of Inherently Safer Technology requirements. Sounds benign, but …

Specifically, we strongly object to the Inherently Safer Technology (IST) provisions of this legislation that would allow the Department of Homeland Security (DHS) to mandate that businesses employ specific product substitutions and processes. These provisions would be significantly detrimental to the progress of existing chemical facility security regulations (the “CFATS” program) and should not be included in this legislation. DHS should not be making engineering or business decisions for chemical facilities around the country when it should be focused instead on making our country more secure and protecting it from terrorist threats. Decisions on chemical substitutions or changes in processes should be made by qualified professionals whose job it is to ensure safety at our facilities.

Furthermore, forced chemical substitutions could simply transfer risk to other points along the supply chain, failing to reduce risk at all. Because chemical facilities are custom-designed and constructed, such mandates would also impose significant financial hardship on facilities struggling during the current economic recession. Some of these forced changes are estimated to cost hundreds of millions of dollars per facility. Ultimately, many facilities would not be able to bear this expense.

More risks plus more costs equal fewer jobs. High energy costs over the past decade have already driven new chemical facilities overseas, and H.R. 2868 will just continue the trend.

In addition, the bill contains language to encourage “citizen suits” against facilities, letting environmental groups and others use the courts to attempt to manage (or more likely, prevent operation of) chemical facilities.

The committee defeated several amendments that would have improved the bill, including a sensible proposal to allow three years for the Department of Homeland Security to complete implementation of Chemical Facility Anti-Terrorism Standards. Instead of predictability and reasonable phase-ins, what’s left is a jobs-killing piece of legislation that conceivably worsens the security of chemical facilities.

More …

• News release, National Petrochemical and Refiners Association, “Coalition Cautions House Committee on Detrimental Impacts of ‘Security’ Bill“
• Letter, Society of Chemical Manufacturers and Affiliates
• Voice For Liberty in Wichita blog, October 15, “Chemical security bill passes committee“

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:

• Oil & Gas Journal, “Business groups ask House panel to modify chemical plant bill,” noting opposition from seven oil and gas industry association.
• Congress Daily, “House Panel Becomes Flash Point For Chemical Bill.”
• Point of Law, “Chemical facility security not aided by ‘citizen suits’“

Earlier Shopfloor.org posts.

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.

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.

The House Homeland Security Committee continues its markup at 5:30 p.m. of H.R. 2868, the Chemical Facility Antiterrorism Act, a seemingly well-intentioned piece of legislation that will make U.S. production and storage of chemicals more expensive and burdensome with no appreciable benefit to public safety and national security. Extension of the current 2006 regulations would allow the increased safety measures known as the Chemical Facility Anti-Terrorism Standards, or CFATS, to be implemented fully in a logical, effective way. The Obama Administration supports such an extension.

We posted on the bill here and here, and have also noted the writing of E.F. Glynn, blogging at KansasMeadowlark, concerned about the impact of yet more government regulation on farmers and the ag economy. In a new post, “Homeland Security may impose new regulations on agriculture,” Glynn includes videos from last week’s committee meeting and expresses astonishment that the debate seems to be driven by a left-leaning think tank: “A Center for American Progress study that shows no economists or engineers on the project team, nor any economic or engineering analysis, is enough for Congress to decide national chemical security policy?”

Well, count up the usual suspects. The believers in regulations first and always at OMB Watch say, “Chemical Security Bill Withstanding Industry Assault“: “With luck and the continued hard work of the ‘Blue Green Coalition’ of labor, environmental, and public interest groups, the bill hopefully will emerge from this committee mostly unscathed.” See, obviously this coalition formed because of their mutual interest in fighting terrorism.

There’s also the U.S. PIRG news release, “U.S. PIRG Urges Passage of Chemical Facility Anti-Terrorism Act of 2009.”

Both groups support the “citizen suits” provisions which create a second regulatory system, that imposed by environmentalist lawsuits. Blogger P.J. Coyle also wonders about the impetus behind the newly added “citizen suits” provision at his blog, “Chemical Facility Security News.”

As committee members debate this legislation that will add costs to a major employer during a serious recession, we would remind them of these facts, courtesy the American Chemistry Council:

That’s 5.66 million jobs.

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.