House Committee Passes Chemical Plant Security Bill

On July 28, the House Homeland Security Committee, by voice vote, approved chemical plant security legislation (H.R. 5695) that would require some chemical plants to use safer chemicals and processes and allow states to enact stricter security requirements unless they would "frustrate" the federal law.

A Senate committee bill (S. 2145) approved in June contains no explicit provision requiring chemical facilities to adopt so-called inherently safer technologies (IST). It does, however, track the House bill's language on the issue of federal preemption.

S. 2145's lack of language on the use of safer chemicals or processes and the fast-approaching end to the 109th Congress make problematic the enactment of a chemical plant security law this year.

The House bill divides facilities into tiers based on risk. Facilities in the high-risk category would have to meet more stringent performance-based standards than those in lower tiers. Plants in the high-risk tier would also have to use IST whenever possible.

High-risk facilities would have to assess potential use of IST and submit their assessments to the Department of Homeland Security. A facility would have to implement IST if DHS concludes that it would reduce the consequences of a terrorist attack to humans and the environment, could be "feasibly incorporated," and would not harm the facility's ability to remain competitive.

Facilities that believe they are unable to comply with DHS's decision requiring use of IST would have 60 days to appeal to a newly created panel. The Panel on Methods To Reduce the Consequences of a Terrorist Attack would rule on the facility's appeal and, if appropriate, offer recommendations to the facility to help it implement IST.

If a facility did not implement the panel's recommendations, the DHS secretary would be empowered to force the issue. The House bill also creates a clearinghouse on IST methods to assist facilities.

DHS would chair this new panel, which would be composed of representatives from other federal and state agencies and the chemical industry and private security experts.

In a statement, American Chemistry Council President and CEO Jack N. Gerard faulted the House bill's language on IST and preemption. "Unfortunately, the committee took several steps backwards by adopting language that puts government in a position of mandating changes to our processes and products," he said. "In addition," he said, "we still believe chemical security is a national concern and should be addressed accordingly to avoid a patchwork of inconsistent state requirements."

Taking a different view, Greenpeace spokesman Rick Hind says, "If the IST language in the House bill is enacted into law and properly implemented, it will protect millions of people currently at risk from a terrorist attack on a U.S. chemical plant."