Is 2006 Finally the Year for Chemical Plant Security Legislation?

New bills in House and Senate want to federalize control over chemical plant security, but can it really happen?

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."