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Chertoff Calls For Legislation

DHS secretary wants federal regulation of chemical industry security

by Lois Ember
March 27, 2006 | A version of this story appeared in Volume 84, Issue 13

After hinting nearly a year ago that the Bush Administration might heed the call of security experts and support chemical plant security legislation, Department of Homeland Security Secretary Michael Chertoff now says the time is ripe for Congress to give his department the authority "to create a sensible regulatory structure for the nation's chemical infrastructure."

Chertoff defines a sensible scheme as one that manages the most significant risks, doesn't "micromanage the chemical industry," and rewards those companies that voluntarily have taken steps to secure their facilities against terrorist attacks.

Speaking at a March 21 forum sponsored by George Washington University and the American Chemistry Council, Chertoff said he thinks "Congress can pass a balanced, risk-based security measure for the chemical industry this year" that "relies ultimately on the expertise and knowledge of the chemical sector itself."

Chertoff proposed that chemical plants be ranked or tiered into four groups, with the most dangerous facilities required to meet the strictest performance-based standards set by his department. Industry would decide how best to meet those standards, but independent third-party auditors would verify compliance. He dismissed as "mission creep" any provision mandating that industry use so-called inherently safer technologies.

In a statement released after the forum, ACC President and CEO Jack N. Gerard notes that since Sept. 11, 2001, ACC member companies have spent "nearly $3 billion at more than 2,000 facilities" to beef up security, but some non-ACC companies have spent nothing. Seeking a level playing field for his member companies, Gerard supports Chertoff's call for federal regulation of the entire industry.

A Senate bill, S. 2145, cosponsored by Sens. Susan M. Collins (R-Maine) and Joseph I. Lieberman (D-Conn.), would offer industry the consistency it is seeking and comes closest to meeting Chertoff's requirements. Yet Chertoff resisted endorsing the bill, saying there were elements that needed tweaking.

Collins, for her part, was "pleased that this Administration has recognized the importance of enacting chemical security legislation this year." She underscored the fact that the principles Chertoff outlined at the forum "are critical components" of her bill. In addition to tracking Chertoff's scheme, S. 2145 would also allow the Department of Homeland Security to shut down any high-risk facility that failed to get its security plan approved by DHS.

ACC's managing director for federal affairs, Marty J. Durbin, speaking at the forum, said that ACC "wants to see the Collins/Lieberman bill move forward and be enacted into law, but with some revision." Among the modifications ACC is seeking, Durbin told C&EN, is "some level of federal preemption to get a uniform set of rules at the federal level."

Federal preemption would eliminate a patchwork of different state laws. But it would also prevent a state such as New Jersey from enacting legislation more stringent than the federal law, something that is allowed under the Clean Air Act and other laws.

Chertoff's proposals did not sit well with environmentalists. Rick Engler, director of the New Jersey Work Environment Council, calls the scheme "more of the same, with industry calling the shots." Echoing Engler, Greenpeace spokesman Rick Hind says, "It's unseemly for the secretary of homeland security to adopt wholesale the industry's antiregulatory agenda."

A National Research Council report on chemical industry vulnerabilities slated for release on March 6 was "delayed because DHS raised national security concerns," says NRC spokesman Bill Kearney. NRC, Kearney says, "is giving DHS time to express those concerns but expects to release the report shortly."


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