Chemical Plant Security Legislation Moves Forward...Again

Voluntary cooperation not enough say government affairs advisors in nonwovens industry

To its credit, industry has broadly stepped up to the plate. Three industry associations--the American Chemistry Council, the National Association of Chemical Distributors, and the Synthetic Organic Chemical Manufacturers Association--require members to conduct vulnerability assessments, develop plans to reduce those risks and have a third party verify the implementation of security enhancements. Other industry groups, in the meantime, have established best practice guidelines, and independent companies have taken steps to secure the perimeter of their facilities.

In addition to these voluntary efforts, industry has been a vocal advocate for Federal legislation, calling for guidance on measures that can be taken to ensure appropriate levels of security. Many of the smaller companies that typically lack the resources of their larger counterparts, in fact, have issued notice that they welcome Federal intervention--especially if it comes with grant money and/or tax incentives that might be included in legislation. Further, as the American Chemistry Council recently pointed out, a set of national security standards would be far preferable to the "potential patchwork of discordant and confusing state-level regulations" that would likely be adopted in absence of strong federal authority.

But, one of the biggest obstacles to legislative action, as it turns out, is the issue of Federal preemption--the idea that a national standard would preempt or nullify state law. There are numerous advocates of States' rights and others in Congress who do not support any sort of legislation that preempts State authority even in matters of national security. In addition, the Judiciary has created a mixed record on issues of preemption that makes some Members of Congress skittish when it comes to these issues. After all, no one wants to support legislation that could realistically be overturned by the courts somewhere down the pike. Nevertheless, legislation has been introduced. The front running bill in the Senate, for instance, is known as the Chemical Facility Anti-Terrorism Act of 2005 (S. 2145) and would give DHS the power to issue national standards and would require the agency to develop criteria designating the sites to be covered under the scope of the regulations. The bill also calls upon DHS to establish a risk-based tier system that requires facilities to meet specific security performance standards based on their applicable tier. Under S. 2145, facility owners and operators would also be required to submit vulnerability assessments, site security plans and emergency response plans to DHS.

The leading House bill, the Chemical Facility Anti-Terrorism Act of 2006 (H.R. 5695), would also give DHS authority to assess and rank chemical facilities based on the level of risk they pose and would require chemical facilities to prepare and submit vulnerability assessments and facility security plans. Unlike the Senate bill, however, H.R. 5695 specifically provides for Federal preemption and asserts that state and local governments "may not prescribe, issue or continue in effect a law, regulation, standard or order that may frustrate the purposes of this title ... or any regulations or standards prescribed under this title."

The Senate bill, on the other hand, specifically says that states and local governments may adopt different regulations and chemical security performance requirements as long as they are at least as stringent as those spelled out in Federal standards.

Another bone of contention relates to potential Federal mandates requiring adoption of "inherently safer technologies" in higher-risk chemical facilities. Examples of such mandates that are frequently cited include relocating or reducing the quantity of chemicals held at these facilities, hardening their containers or storage area and/or modifying or substituting certain chemicals in higher-risk facilities. As it stands, amendments mandating the use of inherently safer technologies have been defeated during committee and subcommittee consideration of the bills in both the House and Senate. Congressional supporters of these measures, however, have vowed to add these provisions back into the language before giving final approval to any legislation, laying the groundwork for a potential showdown with lawmakers who feel that the provisions are vague, unnecessary and overly burdensome.