Chemical industry urges Congress not to alter chemical facility security law

Short of a direct nuclear attack on a U.S. city, the most devastating, casualty-heavy incident would be a terrorist attack on, or an accident in, a chemical plant near a residential area. There are about 15,000 chemical plants in the United States. Of these, depending on how one measures it, between a 100 and 350 are near enough to residential area so that an accident or terrorist attack in any one of them would cause hundreds of thousands, if not millions, of casualties.

Before 9/11, and for five years after it, the industry strenuously opposed any federal regulations of security standards in these plants. Instead, the industry offered what was euphemistically described as “voluntary, industry-developed” security standards, which even industry insiders admitted were not more than window dressing.

Karl Rove, President George Bush’s political strategist, criticized Democrats for having a “pre-9/11” mind-set, but at the same time spearheading a campaign to thwart any effort to regulate the safety of chemical plants. Republicans lawmakers, enjoying millions of dollars in campaign donations from the chemical industry and its lobbyists, followed.

By the end of 2006 the fiction of the “voluntary, industry-developed” standards could no longer be maintained, and Congress, led by Senators Olympia Snow (R-Maine) and Joe Lieberman (D-Connecticut), passed a sweeping chemical plant safety act.

The chemical industry, realizing that opposition to such a bill was no longer possible, agreed not to oppose the bill and instead concentrated on securing three major concessions:

• The bill would allow for federal “pre-emption” of states’ chemical safety regulation. Thus, if New Jersey had tougher chemical safety requirements than those required by the new federal standards, than New Jersey would have to relax its safety rules
• There would be no requirements for those plants closest to residential area to substitute the most toxic and volatile of the chemicals they use with inherently safer substances
• The security-related information the plants provided DHS — to prove that their safety procedures were compatible with federal requirements — would be exempt from Freedom of Information Act (FOIA) disclosure rules

Critics charged that these concessions made the bill too weak, but most agreed that some federal safety standards — and an the authorization for DHS to shut down plants that failed to comply — were better than no standards.

These critics, however, did not go away, and the chemical industry wants to make sure that it does not now lose the concessions it received three years ago.

Thirty-four trade associations, including the American Petroleum Institute and six others from the oil and gas industry, asked Congress on 11 June to reauthorize the chemical facility security law without significant changes. H.R. 2477, the Chemical Facility Security Authorization Act, would reauthorize DHS chemical security standards that Congress enacted in 2006 by extending their sunset date to 1 October 2012. Oil & Gas Journal’s Nick Snow writes that the industry associations say that this would provide owners and operators of such installations the necessary certainty to protect citizens and contribute to the economic recovery, the letter said.

“However, we strongly urge you to oppose disrupting this security program by adding provisions that would mandate government-favored substitutions, weaken protection of sensitive information, impose stifling penalties for administrative errors, create conflicts with other security standards, or move away from a performance (or risk-based) approach,” the industry associations’ statement continued.

The bill was introduced on 19 May by Representative Charles Dent (R-Pennsylvania) and referred to the Energy and Commerce Committee.

In addition to API, the National Petrochemical & Refiners Association, American Exploration & Production Council, International Association of Drilling Contractors, Petroleum Equipment Suppliers Association, National Propane Gas Association, and Petroleum Marketers Association of America signed the letter.

The groups, which also include agricultural, chemical, transportation, and manufacturing associations, said that a bill introduced in 2008, the Chemical Facility Anti-Terrorism Act, would have disrupted new federal security standards in the short term and weakened infrastructure protection and economic stability in the long run. “Our top concern is that legislation could go beyond security protections by creating a mandate to substitute products and processes with a government-selected technology,” the letter said. “Congressional testimony found that this could actually increase risk to the businesses that the bill is supposed to protect. Such a standard is not measurable and would likely lead to confusion, loss of viable products, prohibitive legal liability, and business failures.”

It also asked that federal lawmakers ensure that any security legislation avoid overlapping or conflicting with existing federal security requirements such as the U.S. Coast Guard’s Marine Transportation Security Act. “Any proposal must also protect from release any sensitive security information on site vulnerability,” the letter said.