US House passes chemical security bill with IST provision intact

Nick Snow
OGJ Washington Editor

WASHINGTON, DC, Nov. 9 -- The US House approved a chemical and water security bill with a provision requiring inherently safer technology (IST) by 230 to 193 votes on Nov. 6, despite objections from the petroleum and other industries.

Two major oil industry trade associations immediately criticized the bill, HR 2868, which now heads to the Senate. National Petrochemical & Refiners Association Pres. Charles T. Drevna said by including the IST provision, the House is “sending a clear signal that it wants to put the federal government in a position to dictate chemical practices and procedures to chemical engineers.”

Drevna said, “While IST may be a great political sound bite, it is not a panacea for security. IST is not a technique; it is a philosophy developed by professional chemical engineers. Unfortunately, the IST concept has been hijacked by politically activists in a thinly veiled attempt to further their own agenda.”

Drevna said IST actually is governed by physics and engineering laws, not politics and emotion. “Forcing the switching of chemicals for certain processes may simply shift, and potentially increase, risk at facilities and in their surrounding communities,” he warned.

The American Petroleum Institute issued a statement saying that it joins the agriculture, trucking, and other industries in opposing the bill and supporting reauthorization of current federal security standards, which have been successful since their enactment 3 years ago.

“If the bill passed by the House today becomes law, it would go beyond the current protection requirements and endanger jobs and increase the risk of our operations,” the statement said. “The bill would create a mandate for government-selected changes to our operations, which is not consistent with a risk-based approach.”

Sought removal
In a Nov. 4 letter to House Speaker Nancy Pelosi (D-Calif.) and Ranking Minority Member John A. Boehner (R-Ohio), API, NPRA, the International Liquid Terminals Association, National Propane Gas Association, Petroleum Equipment Suppliers Association, and Petroleum Marketers Association of America joined the National Association of Manufacturers, US Chamber of Commerce, and 19 other trade associations seeking the IST provision’s removal.

They said the US Department of Homeland Security should be focused on making the nation more secure and protecting US citizens from terrorist threats, instead of having to make engineering or business decisions for chemical plants.

As floor debate began the afternoon of Nov. 5, the bill’s sponsor, Homeland Security Committee Chairman Bennie G. Thompson (D-Miss.) said Titles II and III of HR 2868 close a major security gap by establishing a program for drinking water and wastewater facilities to complement DHS’s existing Chemical Facility Anti-Terrorism Standards program.

The bill also requires all plants that are part of the CFATS program to determine and adopt the best methods to reduce the consequences of a terrorist attack, Thompson said. This IST provision “simply incorporates this best practice into how all tiered facilities integrated security into their operations,” he said, adding, “Additionally, HR 2868 strengthens CFATS by adding enforcement tools, protecting the rights of whistleblowers, and enhancing security training.”

Simply extending the program’s existing authority for 3 years “flies in the face of testimony that we received about gaps in CFATS and would be a rejection of all the carefully tailored security enhancements in the bill,” Thompson said.

Beyond chemicals
Peter T. King (R-NY), the committee’s ranking minority member, said HR 2868’s IST provision would create confusion and unnecessary expenses, cost jobs, and stifle the private sector. “We should keep in mind that we’re not just talking about large chemical plants, but we’re also talking about institutions such as colleges and hospitals which will have to incur these costs,” King said.

King said the current law is working, and that DHS did not ask for an extension of its authority. “I believe that we took…an admirable concept of enhancing chemical plant security, and have allowed concepts and ideas regarding the environment…[to] have too large an influence on this bill,” he said.

Bill Pascrell Jr. (D-NJ), a committee member, said the bill was long overdue, noting that his home state is the location of what the FBI considers the most dangerous 2 miles in America with several large chemical plants near residential areas along the New Jersey Turnpike. State law requires chemical plants to conduct safer technology assessments “and believe it or not, our state is not only safer for it, but the sky hasn’t fallen on the chemical companies in New Jersey,” he said. Such state authority should not be preempted in federal legislation, he added.

But Charles W. Dent (R-Pa.) said New Jersey’s law requires IST assessments, but not implementation, and that HR 2868 would go much farther. DHS already is required to assess plants’ vulnerabilities and has completed about a third of the estimated 6,000 assessments, he noted. “Adding these IST assessments will be enormously costly,” he said. IST assessments also are designed to deal with workplace safety issues, not plant security, he added.

Thompson said: “What we’re looking at now is an opportunity to go into facilities that don’t, in many, instances have security assessments. If we make security assessments, then we will identify those vulnerabilities those facilities and help them correct them. Bad people would love to get into facilities with vulnerabilities and do them harm. What we’re trying to do is help those facilities create the capacity to be secure.”

Concerns addressed
Gene Green (D-Tex.), who supported the bill, said chemical and other facilities in his district have invested $8 billion to improve their security since 2001 and are fully complying with CFATS provisions which have not been fully implemented. He noted that he had some concerns when HR 2868 was introduced but that many of these were addressed when the bill went through the Energy and Commerce Committee.

“First, granting the [Homeland Security] secretary authority to mandate a facility to perform a ‘method to reduce a consequence of a terrorist attack,’ or IST, raises questions as to whether, or how, to involve government agencies like DHS that have few, if any, process safety experts, chemical engineers, and other qualified staff,” Green said in extended comments. “We worked to include a fair and transparent technical appeals process…that requires DHS to examine such decisions with facility representatives as well as with experts knowledgeable in the fields of process safety, engineering, and chemistry.”

The scope of facilities nationwide that would potentially be affected by IST requirements was substantially reduced by focusing exclusively on chemical facilities in populated areas subject to a release threat, Green said. DHS also would not be able to mandate IST if it was not feasible or if the facility would no longer be able to continue operating at that location, he said.

The original bill also contained language which unnecessarily duplicated chemical facility regulations under the Marine Transportation Security Act, according to Green. He said it now states that the US Coast Guard will be the main enforcement entity for MTSA facilities; explicitly states that the Coast Guard will be the primary consultant should the Homeland Security secretary consider mandating IST on an MTSA facility; ensures that MTSA facilities would not have to perform additional background security checks under CFATS requirements, and identify the Transportation Worker Identification Credential as satisfactory for the bill’s CFATS requirements.

Green said the bill also contains a new provision under which a worker can petition DHS to reconsider whether he or she poses an actual security threat; limits citizen lawsuits to compelling DHS to act under the law or report potential violations, but not sue private companies; and streamlines drinking water and wastewater provisions by placing EPA in charge of their implementation and enforcement.

‘Substantial compromises’
Green maintained, “HR 2868 is far from perfect, but it includes substantial compromises to permanently extend chemical and water security regulations while reducing duplicative regulatory standards, increasing worker protections, and providing important safeguards to chemical facilities and water systems.”

But Joe Barton (R-Tex.), the Energy and Commerce Committee’s ranking minority member, said the bill goes beyond reasonable requirements for vulnerability assessments, site security plans, and emergency response plans which have been part of many industries’ security programs for years.

“I’m an industrial engineer and understand plant processes and chemical processes to some extent,” he said. “I think we’re very blessed in this country to have a robust chemical industry, much of which is located in Texas and Louisiana. If this bill becomes law, my projection is [that] within 10 years or so, many of those facilities are going to be closed down and inoperable, tens of thousands of jobs are going to be lost, and our chemical industry is simply going to move onshore.”

HR 2868 is not about preventing terrorist attacks, but simply sets up a regime under which DHS and EPA employees who know little about chemical processes make key technical decisions, Barton said. “As if this was not enough, this legislation weakens the protections traditionally given to high-risk security information by treating need-to-know information like environmental right-to-know data,” said Barton. “I’m for transparency in government, but why should we give the terrorists who we’re trying to prevent attacking these facilities almost an open book to go in and, under these open meeting requirements and open records requirements, get information that could allow them to concoct schemes to destroy these very facilities?”

Republican amendments to preempt state laws, to strike the IST provision and simply extend the existing CFATS program, and to remove language allowing citizens to sue DHS to compel enforcement were defeated on Nov. 6 before the bill’s final vote.

Contact Nick Snow at nicks@pennwell.com.

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