Volume 86 Issue 26 | pp. 27-29
Issue Date: June 30, 2008

Congress Debates Chemical Security

Panel argues over regulating chemicals at water treatment plants, requiring safer technologies
Department: Government & Policy | Collection: Homeland Security
News Channels: Environmental SCENE
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Water Hazards
The House is considering a bill that would regulate chemical security at water treatment facilities.
Credit: Shutterstock
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Water Hazards
The House is considering a bill that would regulate chemical security at water treatment facilities.
Credit: Shutterstock

CONGRESSIONAL efforts to pass legislation this year on chemical plant security face several roadblocks. The primary bill, the Chemical Facility Anti-Terrorism Act of 2008 (H.R. 5577), is opposed by the chemical industry and the Department of Homeland Security (DHS) and is caught in a jurisdictional squabble between committees in the House of Representatives.

Supporters and opponents aired their points of contention over the bill at a packed June 12 hearing on the plant security legislation held by the House Energy & Commerce Committee's Subcommittee on Environment & Hazardous Materials. Despite numerous concerns about H.R. 5577, most of the debate was over two provisions: the inclusion of water and wastewater treatment facilities under the federal law and the imposition of "inherently safer technology" on facilities that use hazardous chemicals.

Congress needs to pass legislation on chemical plant security because the law giving DHS authority to regulate chemicals expires in October 2009. The House Committee on Homeland Security approved H.R. 5577 in March, but a split jurisdiction situation requires that it also be approved by the Energy & Commerce Committee before the full House can take it up. The primary concern of this committee is the security of chemicals used at water and wastewater treatment plants. No new chemical security legislation is under consideration in the Senate.

Another chemical security bill introduced in the House, H.R. 5533, basically makes permanent the current law. But it is not receiving much consideration because its primary sponsor, Rep. Albert R. Wynn (D-Md.), the chair of the subcommittee, resigned from Congress after losing his state primary election this year.

Acting subcommittee Chair Rep. Hilda L. Solis (D-Calif.) set the tone for the hearing in her opening statement. "I am concerned that the existing system appears to be more of a paperwork exercise rather than a serious effort to ensure our facilities are as secure as possible," she said.

Government and industry witnesses at the hearing countered this view, however. "We have made significant progress over the past months under the Chemical Facility Anti-Terrorism Standards (CFATS) programs," said Robert B. Stephan, assistant secretary for infrastructure protection at DHS. "This includes the receipt and review of approximately 30,000 facilities' Top Screen questionnaires and analysis to preliminarily tier these high-risk facilities." Top Screen is the department's confidential online tool for determining whether a facility that uses or makes hazardous chemicals should be regulated (C&EN, Nov. 12, 2007, page 11).

On the basis of the Top Screen data, DHS will rank facilities on their potential hazard for a terrorist attack. The department is sending letters in the next few weeks to these facilities informing them of their initial hazard tier designation and of their requirement to submit a security vulnerability assessment to the department.

Stephan emphasized DHS's efforts to collaborate with the chemical sector and other interested groups and to work as partners with industry, states, and localities to get the job done. "By working closely with experts such as New York and New Jersey state officials, members of industry, members of academia, and federal government partners, we leveraged vital knowledge and insight to develop the regulations," he said.

THE OFFICIAL DHS position, moreover, is opposed to H.R. 5577. In a letter to House Homeland Security Committee Chairman Bennie G. Thompson (D-Miss.), DHS wrote that the bill "will have a negative impact upon current and future efforts to secure the nation's high-risk chemical facilities." One of the department's concerns is that new legislation would require much starting over with new regulations, negating the progress already made. Another key concern is a provision in the bill that would allow state security laws to override the federal regulations. "Chemical facilities might be reluctant to expend resources and efforts to comply with current security regulations in anticipation of the new regulations and potentially different security requirements," DHS wrote. The department said this reluctance will delay security at these facilities.

DHS does state, however, that from a security point of view, the federal government should be regulating chemical security at water treatment facilities.

Likewise, the Environmental Protection Agency agrees that more regulation of water treatment facilities is needed. Benjamin H. Grumbles, EPA assistant administrator for water, told the subcommittee that "an important gap exists in the framework for regulating the security of chemicals at water and wastewater facilities in the U.S." Grumbles described EPA's work on securing safe water supplies against intentional contamination or natural disasters, but he said that because the current law specifically exempts water and wastewater treatment plants, no one has the legal responsibility for chemical security at these facilities.

The concern at drinking water plants is the use of chlorine gas as a disinfectant. Large volumes of chlorine, usually in rail tank cars, are often transported through heavily populated areas and are viewed as targets for terrorist attacks. Citizen activist groups, members of Congress, and even the railroad industry want to reduce this risk by forcing treatment facilities to stop using chlorine and switch to less hazardous hypochlorite solution or other methods of disinfection.

For example, P. J. Crowley, director of homeland security at the Center for American Progress, a progressive think tank, testified that H.R. 5577 "establishes more effective and achievable security standards for chemical facilities" than the present law. Crowley's comments were aimed primarily at increasing security by requiring facilities to consider safer, cost-effective technologies to replace use of hazardous chemicals. "Importantly, the legislation requires chemical facilities to evaluate alternative methods that can be employed to reduce the consequences of a terrorist attack," he said. "Such methods involve substitution of less hazardous materials that cannot be exploited by terrorists."

In fact, many water treatment facilities are already using chlorine substitutes. Crowley pointed out that in a survey of such facilities by the Center for American Progress, 87% of those responding said they had switched to safer chemicals or processes. "We have documented in multiple research reports hundreds of examples of plant conversions to proven and cost-effective alternatives," he said.

SIMILAR DATA came from Brad Coffey, water treatment manager at the Metropolitan Water District of Southern California, a consortium of 26 cities and water districts in Southern California. Speaking on behalf of the Association of Metropolitan Water Agencies, a national organization providing drinking water to 127 million Americans, Coffey told the subcommittee that the number of facilities using chlorine gas in his consortium has fallen from 17 to just six, and that those six facilities have added multilayered systems of increased security.

But Coffey argued that individual water treatment facilities should be able to make their own decision on disinfection and not be required to make changes mandated by federal officials. "When viewed in the context of local experience and circumstances, it becomes apparent that broad, inherently safer technology mandates are not workable or wise for many of the country's drinking water facilities," he said.

Speaking specifically about one facility in his group, Coffey said that it receives one 90-ton rail tank car of chlorine per week. To switch to a 5.25% sodium hypochlorite solution, the plant would require 70 5,000-gal tanker truck deliveries to treat the same amount of drinking water. "We do not believe that trucking 70 deliveries of sodium hypochlorite through the streets of Los Angeles on a weekly basis is inherently safer than Metropolitan's current security procedures," Coffey said.

Furthermore, Coffey cited additional concerns about switching, such as the "need for additional space to store these treatment chemicals; saline discharges in excess of existing limits into regional basins; supply-chain concerns; and the fate of by-products such as hydrogen gas, bromate, chlorate, and perchlorate."

THE PROBLEM of transporting chlorine, particularly, is a major concern of the railroad industry, which is required by law to haul any product regardless of its hazard. The Association of American Railroads, which represents all the major rail carriers, issued a statement to the subcommittee calling on the chemical industry to stop making dangerous chemicals. "It's time for the big chemical companies to do their part to help protect America," the statement concluded. "They should stop manufacturing dangerous chemicals when safer substitutes are available. And if they don't do it, Congress should do it for them" by passing H.R. 5577.

The chemical manufacturing industry itself, represented by the 140-member American Chemistry Council, contends that between its own voluntary security programs and compliance with CFATS, plant security has progressed significantly and Congress should give DHS time to implement the regulations just coming into force before making any changes.

"Under the spotlight of public scrutiny and congressional oversight, DHS and the chemical facilities are acting swiftly to implement this groundbreaking program," Martin J. Durbin, ACC managing director of legislative affairs, said at the hearing. And although the industry is willing to work with DHS under the existing program, Durbin explained that the industry views the provision of H.R. 5577 mandating use of safer technology as a real problem.

"We remain concerned regarding a provision in the bill that would grant DHS authority to override chemical engineers, process safety experts, and industry security officials when it comes to decisions regarding changes to chemical processes," Durbin told the subcommittee. He said the incentives in the current CFATS rules are enough to get companies to move to safer processes where possible. "The rules encourage implementation of appropriate security enhancements by providing the opportunity to move your facility to a lower risk tier, thereby potentially reducing your regulatory requirements," he said.

Another beef of the industry, and DHS, with the House bill is that it would permit states and localities to preempt the federal law with their own, stricter, laws. "DHS has struck a necessary and reasonable balance on possible preemptions of state and local laws by following precedent set by existing national security laws for aviation, rail, and port security," Durbin said. "There is no compelling reason to treat the security of critical chemical facilities differently."

DHS's Stephan testified that success in this area depends on continued cooperation with government, industry, and state and local partners, and not on competition. The official DHS stand is that it "would oppose any legislation that would upset the carefully balanced approach to federal preemption of state law achieved in the current regulatory approach," he said.

Still, many activist groups and Democratic members of the subcommittee think the federal rules rely too much on industry self-monitoring and cooperation. "I believe federal legislation should not preempt state laws," Chairman Solis told the hearing. "In some instances, state laws and regulations may address unique situations by being more protective."

"Any legislation Congress considers should set a floor, not a ceiling, for stronger state chemical security laws," a coalition of major environmental organizations urged the subcommittee in a statement. These groups strongly favor laws that would require chemical facilities to use safer chemicals and processes where feasible as "the most effective way to reduce chemical threats."

The controversies surrounding this legislation are the same as those debated when the first law was passed in 2006. It is doubtful that a new law can be passed this year, because the House may not be able to compromise on an acceptable bill in the short time left of this congressional session. And because the Senate has not even begun to consider new legislation on chemical security, getting a bill to the President's desk this year is even a longer shot.

 
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