Issue Date: December 7, 2009
After losing a partisan battle on the House of Representatives floor last month over legislation intended to make the nation’s chemical facilities less vulnerable to terrorist attacks, industry lobbyists are turning their attention to the Senate, where they anticipate a more pragmatic and less ideological debate.
“We look forward to working with the Senate as it begins consideration of chemical facility security legislation,” says Charles T. Drevna, president of the National Petrochemical & Refiners Association (NPRA), a trade group representing virtually all U.S. petrochemical manufacturers and refiners.
“We remain hopeful that needed modifications to the House-passed bill will be made to ensure that this legislation, if ultimately enacted, is effective in securing the nation’s chemical facilities and infrastructure without imposing costly, needless burdens on American businesses that may actually make our chemical facilities less secure,” Drevna remarks.
The House approved the Chemical & Water Security Act of 2009 (H.R. 2868) on Nov. 6 by a vote of 230-193, with no Republican support (C&EN, Nov. 16, page 6). The bill would make permanent the Chemical Facility Antiterrorism Standards (CFATS) that were issued in 2007 after Congress gave the Department of Homeland Security (DHS) temporary authority to regulate security at chemical production plants, storage sites, and distribution points.
The CFATS program authorizes DHS to compile a list of chemical plants and other facilities that contain sufficient quantities of “chemicals of concern” to pose a serious security risk. The program requires the listed facilities to conduct vulnerability assessments and then develop and implement site security plans that meet risk-based standards established by DHS.
But House Democrats added several controversial measures to the legislation long sought by environmental activists. Those measures are vehemently opposed by the chemical industry and its Republican allies.
Most notably, the bill requires thousands of facilities located in areas where a toxic release would endanger the surrounding community to assess each facility’s ability to “reduce the consequences of a terrorist attack” by switching to safer alternative chemicals or processes. It authorizes DHS to require the use of those alternatives—so-called inherently safer technologies (IST)—at the highest risk plants where feasible and cost-effective.
“With this historic vote, the House said ‘Yes, we can’ protect American communities in the face of the ‘can’t do’ rhetoric of the chemical lobby,” says Elizabeth Hitchcock, public health advocate with the U.S. Public Interest Research Group, a public interest advocacy organization. “Reducing the use of dangerous chemicals will make communities safer while also reducing the threat that chemical stockpiles become terrorist targets.”
Activists point out that the bill’s IST mandate applies only to the nation’s most dangerous chemical facilities, and it allows companies to challenge DHS decisions regarding implementation of the bill’s security requirements through a robust appeals process.
“Although it’s a compromise, this bill represents a historic first step toward protecting the 100 million Americans living in the shadow of high-risk chemical plants,” says Rick Hind, legislative director of Greenpeace, an environmental group. “The day after a terrorist attack at a chemical plant kills thousands of Americans, any suggestion that we should not require the use of safer chemicals at these plants will be considered totally crazy.”
Clorox recently announced that it will stop using highly hazardous chlorine gas as part of an effort to make bleach manufacturing safer, Hind notes. The cleaning products company said it plans to switch to high-strength bleach and dilute it to household strength (C&EN, Nov. 9, page 12).
“By leading the way in eliminating the potential consequences of a catastrophic terrorist attack or accident, Clorox’ announcement provides Congress with compelling new evidence to enact chemical plant security legislation,” Hind says. “By ending the use of chlorine gas, Clorox also proves that eliminating these risks is both technically feasible and a smart business decision.”
Since the 2001 terrorist attacks, Hind says, more than 200 chemical facilities have converted to safer processes, but hundreds of others have not. “It’s time for the Senate to recognize the urgency of this issue and embrace commonsense solutions that eliminate these risks once and for all,” he says.
The chemical industry argues that inherent safety is a complex concept that is unsuited to regulation. “The House is sending a clear signal that it wants to put the federal government in a position to dictate practices and procedures to chemical engineers,” Drevna says. “While IST may be a great political sound bite, it is not a panacea for security.”
Inherent safety is not a technique, but rather a chemical engineering philosophy developed years ago by the industry, according to Drevna. “Unfortunately, the IST concept has been hijacked by politically motivated activists in a thinly veiled attempt to further their own agenda,” he remarks.
“The reality is that IST is governed by the laws of physics and engineering, not the laws of politics and emotion,” Drevna adds. “Forcing the switching of chemicals for certain processes may simply shift, and potentially increase, risk at facilities and in their surrounding communities.”
The American Chemistry Council, which represents 134 major chemical manufacturers, also opposed the House bill, primarily because of the IST mandate. “Unfortunately, we are still unable to find common ground on the right approach regarding the regulation of process changes and product substitutions,” ACC President Calvin M. Dooley says.
“Our members are concerned that providing government with authority to direct process changes or product substitutions could result in making critical products unavailable throughout our economy, with potentially significant impact on our companies and our customers,” Dooley explains.
Barring facilities from making chemicals for which DHS determines safer alternatives exist “can create unintended consequences that could impact not only the chemical industry but also consumers,” adds William E. Allmond IV, vice president of government relations at the Society of Chemical Manufacturers & Affiliates (SOCMA), which represents nearly 300 mostly small to midsize chemical firms.
Some of the chemicals that would be high on DHS’s candidate list for “switching out,” Allmond says, are used as active ingredients in over-the-counter drugs and other health care products. “If proponents for government-mandated product substitution get their way, a shortage or elimination of common products, like ibuprofen, could become reality,” he contends.
Switching to alternative substances could also increase U.S. reliance on foreign-made pharmaceutical ingredients, as American companies are prohibited from manufacturing chemicals that customers will still demand, Allmond warns. “That would actually make the U.S. less safe and secure and cost Americans jobs,” he says.
The next step in the legislative process is for the bill to be considered by the Senate, where industry officials think their concerns have a better chance of being addressed. “We expect the Senate will be more willing to work with all stakeholders than the House committees that moved the IST provisions through the chamber,” Allmond says.
Sens. Joseph I. Lieberman (I-Conn.) and Susan M. Collins (R-Maine) “are well-known for working together in a bipartisan manner,” he said of the chairman and ranking minority member on the Senate Homeland Security & Governmental Affairs Committee, which has jurisdiction over infrastructure security.
The collegial Senate tends to be “much more pragmatic” than the House, Allmond observes, because “the battle lines aren’t quite so harsh and well defined as they are in the House, where you have more ideologues on both sides.”
No Senate Democrat is known to oppose inclusion of IST requirements in a chemical security bill, but Allmond points out that several Democratic members of the homeland security committee come from states with a large chemical manufacturing presence. These include Carl Levin of Michigan, Thomas R. Carper of Delaware, Mary L. Landrieu of Louisiana, and Claire McCaskill of Missouri.
“The fact that these senators represent states where there is industry further increases the expectation that they will understand the concerns we and others have about IST,” Allmond remarks.
Collins has indicated that she hopes to introduce a bill with Lieberman to make permanent the current CFATS regulations and give DHS more time to implement the two-year-old program before assessing the need for any adjustments.
“I think the department has done a very good job of implementing the new law, establishing the tiers and evaluating the risk and vulnerabilities of chemical facilities and setting standards. I think we should build on that success,” Collins remarked at a Capitol Hill briefing last month.
She stated that her proposal will not include an IST mandate. “The House bill takes a different direction. It would change the law to require inherently safer technology to be used, which was specifically rejected when we wrote the law in 2006,” Collins said. “That would not be part of my bill.” Her position sets up a conflict with Lieberman, who does support mandatory IST requirements.
Lieberman plans to hold hearings on the CFATS program in the next month or two. “And then, hopefully, Sen. Collins and I can develop a common-ground approach and bring it to the committee sometime during the first half of next year,” he recently told reporters.
SOCMA is among the industry groups that say there is no room for compromise on the IST mandate. “We will not try to negotiate a position that’s livable for us,” Allmond tells C&EN. “We will continue to oppose any effort to mandate IST implementation within a regulatory context. Whether or not the senators will compromise, I’m not sure.”
Other industry organizations, such as NPRA and the Fertilizer Institute, take a similar stance. Requiring agricultural retail operations to switch to a “safer” product or reduce the quantity of chemicals stored on-site could have a devastating impact, says Ford B. West, president of the fertilizer industry trade association.
IST requirements, such as those contained in the House-passed bill, “could well jeopardize the availability of widely used, lower-cost sources of essential plant nutrient products used by America’s farmers and ranchers,” such as anhydrous ammonia and ammonium nitrate, West says.
“We don’t have to trade food security for chemical security, and we are optimistic that we can work with members of the Senate to craft chemical security legislation that takes into account our nation’s food production system.”
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