Business groups ask House panel to modify chemical plant bill

Nick Snow
OGJ Washington Editor

WASHINGTON, DC, Sept. 28 -- Twenty-seven business associations, including seven from the oil and gas industry, expressed concern to leaders of a US House committee on Sept. 28 about three provisions in a bill aimed at protecting chemical plants from terrorism.

The group urged Chairman Henry A. Waxman (D-Calif.) and ranking minority member Joe Barton (R-Tex.) to delete provisions dealing with federal preemption of state and local regulations, citizen lawsuits, and inherently safer technologies (ISTs) from HR 2868.

Rep. Bennie G. Thompson (D-Miss.) introduced the bill, formally called the Chemical Facility Anti-Terrorism Act of 2009, on June 15. The Energy and Commerce Committee’s Energy and Environment Committee has scheduled a hearing on the measure and a drinking water system bill sponsored by Waxman for Oct. 1.

“Our industries recognize and take seriously the need to protect our nation’s chemical plants, storage facilities, and infrastructure against security threats and potential terrorist attacks,” the trade associations said in their letter to Waxman and Barton.

The groups’ member companies have worked constructively with the US Department of Homeland Security (DHS) to develop the Chemical Facility Anti-Terrorism Standards (CFATS) and are working to implement them, the letter continued. But the groups also expressed “significant concerns” about the three HR 2868 provisions.

Preemption removal
They said that Section 3109, which would let state and local governments adopt or enforce more-stringent standards than the federal government’s, would increase companies’ financial burdens without any significant increase in public safety.

“Federal preemption is critical to the legislation’s overarching goals,” the letter said. “Absent uniform national standards, businesses will be subject to a patchwork of differing and possibly conflicting resolutions.”

It said Section 2116, which would allow anyone to sue regulated facilities or DHS to enforce compliance with the act, unsuitably applies private rights which are common in environmental challenges to CFATS’s performance-oriented requirements.

“Furthermore, we share DHS’s concerns that broad discovery rights in federal lawsuits could lead to public disclosure of classified or highly sensitive information that could assist terrorists,” it indicated. “Such information likely would include the types and amounts of chemicals stored at a facility, the specific locations of the chemicals, and the security measures in place to protect the chemicals.”

IST provision
Finally, said the groups, they oppose Section 2111 which would require facilities covered under the bill to assess so-called ISTs and to require chemical plants assigned to specific tiers to implement these technologies if DHS orders them to do so.

“This provision essentially provides DHS the authority to implement manufacturing process changes, an action that is unnecessary and potentially very disruptive to many chemical facilities,” they maintained. “The performance-based CFATS already provide chemical facilities with power incentives to implement enhanced safety measures, improve processes, and substitute safer chemicals.”

Cost to assess ISTs also would impose financial burdens on smaller facilities which do not manufacture chemicals but simply use or store modest amounts, the letter said. “These operations, already suffering from the ongoing economic crisis, will have even fewer resources to dedicate to actual security enhancements if forced to conduct costly IST assessments,” it said.

The oil and gas trade associations that signed the letter included the American Petroleum Institute, Association of Oil Pipe Lines, International Liquid Terminals Association, National Petrochemical & Refiners Association, National Propane Association, Petroleum Equipment Supplies Association, and Petroleum Marketers Association of America.

Contact Nick Snow at nicks@pennwell.com.

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