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.

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.