Is 2006 Finally the Year for Chemical Plant Security Legislation?

Drive about an hour west of New Orleans and you're in swamp country near Geismar, Louisiana. The dry land isn't particularly dry, and the most likely acquaintance you'll make in the woods is something that hisses or buzzes. It's an area largely forgotten by most humans except the hunters, fishers and those working in the petrochemical industry.

Besides the resident population of alligators, Geismar is home to a number of chemical and industrial plants. The core of the area is heavy industry, a place where chemical plants take advantage of cheap land prices and convenient access to the Mississippi River and the Interstate highway system. Honeywell, well known in our industry for its array of security products, is also heavily involved in chemical production. The company has a home in Geismar with a facility that spans close to one square mile and which hosts a number of co-located chemical companies that share products and by-products.

And with a production of hydrofluoric acid occuring inside its gates, Honeywell's Geismar plant could serve as a threat not only to the local population, but also could threaten nearby Baton Rouge, the state's capitol, if a toxic plume was released.

It's that kind of scenario that's been bouncing around inside the heads of so many of our nation's politicians, especially after the events of 9/11 and even with the recent concern over foreign companies managing our nation's ports. Chemical plants, simply put, are part of our critical infrastructure, and with the potential for harmful releases of chemicals, many would say that these plants are extremely critical infrastructure.

Thus we've see a number of bills proposed in recent years, whether it was the annual Corzine bill in the Senate, or bipartisan bills introduced or supported by everyone from Hillary Clinton to Joseph Lieberman, as well as a number of House and Senate republicans.

Most of these bills have come and gone. Some have had little support from the industry; some simply didn't have enough forward momentum and became lost in committee. In the meantime, the chemical industry began seeing the writing on the wall, according to Honeywell's government affairs representative Chris Spear, who covers the goings-on of Washington politics for the diversified industrial company.

Since 9/11, notes Spear, some 120 American Chemistry Council (ACC) members have invested over $2 billion upgrading security at their plants. While Congress met in committee, the ACC members installed cameras and access systems. In fact, a comprehensive security plan and an approved security system is part of the requirement for ACC membership.

At the Honeywell plant, over $3 million was invested in security, helped by a $1 million TSA Waterways grant, plus another $400,000 security grant received by one the companies co-located at the facility with Honeywell. Over 50 cameras went up. An extensive perimeter security system was developed. Radar was used to spot water-based threats on the Mississippi River. A robust access control system was put in place, and tied in with cameras, personnel management and the visitor system. Security was integrated directly into the processes systems -- the systems that the chemists and engineers use to control the reactions at the plant. Not only were there lots of eyes watching, but, now, the chemists watching the chemicals weren't separated from the security staff watching for threats.

"If a truck bomb came through the gate, it would need to go through several layers to get to a sensitive site," explains Honeywell's government affairs representative Chris Spear. "But the fact that the process folks in the middle of the plant see that happening immediately, they take precious time to take action and begin shutting the plant down to avoid a catastrophic event."

But while many of the U.S. chemical plants, such as Honeywell's plants, are ACC members, many in Washington worry about the plants that aren't ACC members. They're the ones that may seem to fly a bit under the radar, even while producing serious chemicals that would earn them a Tier 1 or Tier 2 rating (Tier 1 is the most serious of the ratings and includes plants that produce chemicals like chlorine gas, hydrofluoric acid and other dangerous products).

Now, it seems that a perfect storm has moved in that could push chemical plant security into the future -- for all plants, not just the proactive ones like Honeywell's Geismar location. All of a sudden, you have legislation in the Senate and the House and public support from the Department of Homeland Security and President Bush, and that alignment of the stars, so to speak, could finally allow some bills to become law.

"I think there is finally a consensus that we need to be securing these facilities," says Spear, a former Assistant Secretary of Labor who closely tracks Washington goings-on for Honeywell. According to Spear, the new consensus isn't appearing out of thin air. Senate, House and DHS representatives have had hearings and toured plants like the Geismar location to learn what ACC members are doing.

The new Senate bill, introduced by Senator Susan Collins (R-Maine), titled "Chemical Facility Anti-Terrorism Act of 2005" and better known as S.2145, would require new regulations for chemical plants. It would essentially be a bill of "oversight," where regulations enforced by the DHS would require specific criteria for different levels of chemical plants. The legislation smartly uses a risk-based approach, and would base those regulations on an individual plant's risks. Far from specifying how to use technology, the bill requires a security vulnerability assessment and a security plan and emergency response developed based on that that assessment.

To understand where the technology line is drawn, it's easy to look back to Honeywell's Geismar plant, where the company is using global positioning satellite technology to track vehicles transporting the chemicals after they leave the plant. It may seem obvious, but if the plant is hardened and a batch of dangerous chemicals departs the plant on an untracked and unsecured vehicle, then there really has been no great improvement in terms of security.

But the new bills really don't address issues of security beyond the plant's gates or technology issues like GPS-based asset management.

"The legislation is pretty vague in that respect," says Spear, who adds that the bill defers that judgment and regulation to the Department of Homeland Security, which is authorized by the bill to create regulations on issues such as those.

The new House bill, HR.4999, introduced by Reps. Christopher Shays (R-Conn.) and Jim Langevin (D-R.I.), is practically a mirror image to the Senate bill, right down to the title and the requirement of a tiered application of regulations, and the requirements of response plans, vulnerability assessments and the creation and review of a security plan.

On top of the two bills, on Tuesday, March 21, 2006, DHS Secretary Michael Chertoff made it very clear once again that the DHS is seeking to regulate security controls for the chemical industry.

In many ways, the House and Senate bills as well as Chertoff's proposal are right up the alley with the petrochem industry. Standardization of security is something good for the industry, says Spear, who adds that the legislation isn't all rosy in the chemical industry's eyes. Written into the legal language is text that may possibly move beyond security concerns and into environmental concerns. The primary issue is ISTs, or Inherently Safer Technologies. The concern with ISTs is that that the government could require that chemical plants change the chemicals they use or the processes they employ so that there would be less risk at the plants to begin with.

It's something that the chemical industry thinks is a real hold-up with the legislation. In S.2145, it's not clear whether the legislation is open to the requirement of ISTs, but the letter writing from the industry has already begun.

"As your committee considers S. 2145, I respectfully request that provisions dealing with inherently safer technologies (ISTs) and federal preemption of state law be clarified," wrote Nance K. Dicciani, the president and CEO of Honeywell's Specialty Materials division in charge of the company's chemical plants to Senator Collins. "Honeywell believes the current language could be interpreted by the Department of Homeland Security as authorizing ISTs, and by states to allow conflicting requirements that could adversely impact interstate commerce."

The second concern, as Dicciani's letter indicated, is whether states would be able to pre-empt the federal regulations, creating what really could be a messy scenario where security requirements are moving targets, entirely dependent on which side of the state line you stand.

"We would like uniformity in the form of federal standards," says Spear. "This is a heavily regulated industry already. We're not unaccustomed to regulations within the chemical industry. In fact, many times regulations are helpful because they provide clarity on how we're supposed to comply. The worst thing you can have in the chemical industry is ambiguity in regulations."

Other areas of concern aren't so simple. Secretary Chertoff was publicly chided last week by a number of politicians after he suggested that reviews of chemical plant security plans could be handled by third-party auditors. Some said Chertoff's proposal took the "bite" out of the new legislation; for others it was the classic case of a fox guarding the hen house. While the proposal was likely a simple cost saving measure, the image of private industry regulating private industry didn't strike well with many in Washington, and so becomes another point of contention for this year's bills.

And while these concerns may seem minor to some and grievous to others, there's some hope for a chemical plant security bill to finally be signed by the president this year. Because both bills are early in their Congressional processes, and because bills always change, there's a real reason to believe that a law just might be created this year upon which everyone can agree. That is, if there's time...

"The clock is ticking," says Spear. "We're almost in April now, the second session of the 109th session of Congress. So we really need to get moving. It hasn't even moved out of either committee yet. There's a push to get things moving now, because we're probably looking at two to three years before this legislation and its accompanying regulatioins are finalized. And usually there is a grace period before it is effective."

Of course, even if this batch of legislation also stalls out, like so many of its counterparts in previous years have done, it may have served some purpose anyway.

"I think a lot of plants are going to read the tea leaves," says Spear, who believes that the promise of coming legislation may force many plants to step up security in advance.

"If anything happens to these assets, it's obviously bad for the company and the bottom line, but more importantly it's a risk to the people who work there as well as those who live near the facility. And that's the paramount concern here. Nobody wants to see anything bad happen to these facilities for that reason alone."

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