Last week the fertilizer and chemical industries praised the chemical facility security provisions that were approved by members of the House and Senate as part of the $34.8 billion FY 2007 Homeland Security Appropriations Bill. The compromise language on chemical site security was reached late on Sept. 25 after a reconciliation conference to resolve differences between the House and Senate versions of the bill.
According to The Fertilizer Institute, the approved language provides the Department of Homeland Security (DHS), and not the EPA, with jurisdiction over chemical plant security. In addition, the conference language does not mandate the use of Inherently Safer Technology (IST), a provision that TFI, the Agricultural Retailers Association (ARA), and the American Chemistry Council (ACC) strongly opposed.
“There is no substitute for anhydrous ammonia in the production of all nitrogen fertilizers,” said TFI President Ford West. “Our industry has fought hard against including IST in such a bill, so we are pleased that Congress has recognized that mandating IST is not the answer to our nation’s security problems.”
TFI said another favorable provision in the bill states that DHS may approve alternative security programs from states or private entities, such as the Agribusiness Security Working Group’s Security Vulnerability Assessment (SVA).”We are also pleased that facilities regulated under the Maritime Transportation Security Act of 2002 (MTSA) will not need to undergo further regulations,” West said. “Those facilities already in compliance with MTSA regulations will not be affected.”
ACC President and CEO Jack Gerard also welcomed the compromise version that emerged from the reconciliation conference. “Congress just took an important step toward enacting meaningful chemical security legislation,” Gerard said in a Sept. 26 statement. “While not perfect, it is a fair compromise that allows the Department of Homeland Security to protect this critical part of the nation’s infrastructure and builds on the leadership demonstrated by our members, who have already spent nearly $3 billion enhancing security under the Responsible Care Security Code.”
ARA said an IST mandate “would have potentially required costly analysis by Agriculture retailers and distributors and could have led to the ban on the use of important plant nutrient products such as anhydrous ammonia or ammonium nitrate fertilizer.” ARA also praised the proposal for allowing alternative private sector security plans that meet DHS approval. “We believe Asmark Institute’s SVA program, which has been utilized by a large segment of the industry, and other similar security efforts that have been completed by agriculture retailers and distributors, should be given every consideration as being in compliance with DHS security requirements,” ARA said.
According to the approved chemical security language in the bill, within six months of the bill’s passage DHS is authorized to issue interim final regulations establishing risk-based performance standards for chemical facility security, as well as requiring vulnerability assessments and the development and implementation of site security plans for chemical facilities. The regulations are required of facilities that DHS believes present high levels of security risk, but do not apply to facilities that are already regulated by the Maritime Transportation Security Act of 2002.
DHS has the authority to review and approve each vulnerability assessment and site security plan, and may reject site security plans that fail to satisfy the risk-based performance standards. However, the agency can also “approve alternative security programs established by private sector entities, Federal, State, or local authorities, or other applicable laws if [DHS] determines that the requirements of such programs meet the requirements of this section and the interim regulations.”
DHS is further authorized to audit and inspect chemical facilities, and must provide written notification, opportunities for consultation, and a deadline for any facilities found to be out of compliance. Facilities that remain out of compliance are subject to civil penalties and closure. The language also includes provisions to protect propriety information from becoming public.
The security measures are scheduled to expire three years after implementation, giving Congress more time to agree on a permanent, comprehensive security program for U.S. chemical plants. ARA cited this deadline as a potential downside, however. “ARA is hopeful that the risk-based, tiered DHS chemical security regulations implemented would not be completely overhauled by Congress, as it would be very disruptive to on-going industry security efforts,” ARA’s Richard Gupton told Green Markets. “Senators Frank Lautenberg (D-N.J.) and Barrack Obama (D-Ill.) have already indicated they will continue to push their environmental activist / protrial lawyer chemical security bill next year.”
House and Senate leaders first reached an agreement on the chemical security provisions on Sept. 21, but the ensuing negotiations revolved around whether the compromise language would be included in the DHS appropriations bill.
“This is a major victory. I think all parties realized that this effort was simply too important to fail,” Senate Homeland Security Committee Chairman Susan Collins (R-Maine) said in a Sept. 21 statement announcing the deal. “The Department of Homeland Security needs the authority to ensure that our nation’s chemical plants are properly secured, and that’s exactly what we’ve delivered,” added House Homeland Security Committee Chairman Peter King (R-N.Y.). “This is a historic step forward in the security of our homeland.”
The chemical security provisions were immediately criticized by opponents for not going far enough. The New York Times op-ed page on Sept. 25 called the compromise “a near-complete cave-in to industry, and yet more proof that when it comes to a choice between homeland security and the desires of corporate America, the Republican leadership always goes with big business.”
The New York Times went on to state that the rules for submitting security plans are “hopelessly vague,” and that “any federal chemical plant law should make it clear that states have the right to impose stricter requirements to protect their citizens from harm.” A reasonable law, the newspaper said, “would make it clear that the secretary of homeland security can order chemical plants to adopt specific safety measures, like replacing highly dangerous chemicals with ones that pose less of a danger to people in the surrounding area.”
The FY 2007 Homeland Security Appropriations Bill was initially expected to pass the House and Senate by the end of the week, but ARA’s Gupton told Green Markets late on Thursday that the timeline remained uncertain, calling the bill a “moving target.” House Majority Leader John Boehner (R-Ohio) indicated on Thursday that the bill would likely be considered on the House floor on Friday, with Senate action expected by Saturday.
Sen. Collins on Sept. 28 issued a statement urging conferees to support the bill before Congress recesses for the mid-term elections. “This bill represents a comprehensive package of carefully crafted national security improvements,” she said. “There are major advances in protection for chemical facilities, which are a major homeland security vulnerability.”