Saturday, February 2, 2008

Politicians look at Chemical Security - Again

It seems that I am not the only person that has been looking at the bill marked up in a recent House Homeland Security Subcommittee meeting (see “Chemical Facility Anti-Terrorism Act of 2008 Markup”). An article by Samuel Loewenberg appeared on describing the reaction of various politicians, industry groups and various special interest groups to the bill being discussed in committee. This is very interesting since the bill has not yet been officially introduced.


Actually, I guess it is to be expected that the on-going conflicts between chemical companies and environmentalists and between chemical companies and unions will be played out in the security arena. Both the unions and the environmentalists look to the new security bill to give them a new tool to reign in the excesses of the money-grubbing, earth-destroying, chemical companies. Fortunately, it seems that the Democratically controlled Homeland Security Committee is reigning in the more extreme demands of their allies to the left.


Loewenberg points out that the authorization for the current Interim Rule under which DHS is operating expires in October of 2009. Congress took this back door method of getting chemical security regulations into place because they could not work out a bill that would satisfy enough people to assure passage; something they had been working on since 2002.


If they are again lacking the votes to pass a chemical security bill before the end of the current session, Congress could just re-affirm Section 550 of the Homeland Security Appropriations Act of 2007 (P.L. 109-295, Section 550) in the 2009 Appropriations bill. This was the tact taken last year when Congress modified the requirements of Section 550 in the in the Consolidated Appropriations Act, 2008 to clarify the pre-emption rules and require DHS to regulate Ammonium Nitrate sales (see “DHS and the Omnibus Spending Bill”).


Most observers would probably agree that the chances for passing politically controversial legislation like this proposed bill in an election year are slim. On the other hand, the Republicans and their industry supporters might decide to accept this bill, fearing that a larger Democratic majority in the Senate may make passage of a more objectionable bill easier next year. It is too early in the election year for anyone to commit to that kind of political calculus. That kind of thinking doesn’t take place until September or October when the outcome of the election is a little more visible.


There are three provisions of the proposed bill that draw the most ire;


  • The pre-emption provisions,
  • The whistle-blower provisions, and
  • Inherently safer technology (IST).


Federal Pre-Emption


The pre-emption provisions in this bill are essentially the same as those required in the 2008 Appropriations Bill. While industry would just as soononly have to deal with DHS on chemical security the current Democratic Majority will uphold States Rights (and that has some old-time liberals spinning in their graves) and allow New Jersey, Massachusetts and California to tighten the requirements on their chemical industries. That this will mean the off-shore migration of more chemical jobs is of little concern to the environmentalists. The language does maintain Federal supremacy in the event of an actual conflict and does provide for court reviews in the event of disputes. It will certainly increase employment opportunities for lawyers.


The whistleblower provisions are a sop to the unionists who did not get mandatory participation of unions or workers in the vulnerability assessment process or in the development of site security plans. The wording envisions a program similar to that OSHA has set up to take anonymous worker complaints about health and safety violations.


Whistleblower Protections


No company wants its troublemakers bringing in federal inspectors, but the secrecy provisions of CFATS make it necessary. It is too hard for DHS to identify marginal facilities that disregard requirements to submit Top Screens to avoid the regulatory requirements of being declared a high-risk facility.


 The biggest downside to this requirement is that DHS inspectors will be spending more time investigating bogus complaints (and a few real ones) that could be spent helping facilities implement their security plans. Maybe Congress should include in this section of the bill the requirement for DHS to hire 100 additional full-time inspectors to investigate whistleblower allegations; nothing like an expanding federal bureaucracy to help grow the economy.


Inherently Safer Technology


I discussed the ins and outs of inherently safer technology in an earlier blog (see “Inherently Safer Technology, Pros and Cons”). The interesting thing is that the proposed bill does not specifically call its requirements “Inherently Safer Technology”; it refers to “methods to reduce the consequences of terrorist attacks”. It also lists 12 separate potential methods to be considered. Finally is requires the facility, as part of its site security plant, to include an assessment of “methods to reduce the consequences of a terrorist attack on that chemical facility.”


The facility can only be required to implement an IST that was included in its own assessment. If no IST is identified in the assessment, none can be required. Even with a potential IST identified it can only be required (see Section 2110, page 48, of the Committee Print) if it:


  1. “Would significantly reduce the risk of death, injury, or serious adverse effects to human health or the environment resulting from a terrorist release;
  2. “Can feasibly be incorporated into the operation of the facility; and
  3. “Would not significantly and demonstrably impair the ability of the owner or operator of the facility to continue the business of facility.”


This leaves the facility owner/operator in control of the IST process. Most of the twelve listed methods could be written-off on the site security plan as “None known at this time – research on-going”. Proper implementation of appropriate IST would be beneficial to the owner-operator of the facility, both financially and security wise. But, that implementation needs to be dictated by adequate science, engineering and the appropriate cost benefit analysis.


Eye on Congressional Action


As I said in an earlier blog, it is much too early in the political and legislative process to get too worried about the current wording of this proposed bill. Politicians and lobbyists on both sides of the various issues will play with this bill before it gets to a final vote. We’ll just have to keep an eye on the visible parts of that process.

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