The Fertilizer Institute and the Agricultural Retailers Association on Sept. 28 joined 26 other industry associations and the U.S. Chamber of Commerce in urging the House Energy and Commerce Committee to remove several contentious provisions from H.R. 2868, the Chemical Facility Anti-Terrorism Act of 2009.
The House committee was scheduled to hold a hearing on the bill on Oct. 1. H.R. 2868, which would reauthorize and expand regulatory powers given to the Department of Homeland Security (DHS) in 2007 with the Chemical Facility Anti-Terrorism Standards (CFATS), was reported out of the House Homeland Security Committee last June (GM June 29, p. 1) and then referred to the Energy and Commerce and Judiciary Committees. If passed out of the House, the Senate will likely take up the House-passed version in the Senate Homeland Security Committee.
In the Sept. 28 letter to Committee Chairman Henry Waxman (D-Calif.) and ranking member Joe Barton (R-Texas), the trade groups honed in once again on three provisions in the legislation: an “anti-preemption provision,” which would permit state and local governments to adopt or enforce standards more stringent than those required by federal law; a “citizen suit” provision, which would allow any person to bring suit against regulated facilities or the DHS to enforce compliance with the act; and an “inherently safer technologies” (IST) provision, which would require facilities to assess and possibly switch to safer chemicals if alternatives exist.
Regarding the first, the letter states the federal preemption is critical and that chemical facility security, just as other national security issues, should be regulated solely by the federal government. “Absent uniform national standards, businesses will be subject to a patchwork of differing and possibly conflicting regulations,” the letter says. “Such an approach would force facilities to sort through a dizzying maze of potentially contradictory regulations and could divert scarce resources to complying with disparate requirements that do not necessarily advance national security interests. This patchwork of state and federal regulation would breed confusion for the myriad companies operating in multiple states.”
As for the second, the letter says the current CFATS’ performance-based standards provide facilities the flexibility to decide which security measures or technologies to adopt. “Allowing layperson litigants rather than DHS security specialists to challenge a facility’s selection of security measures will not enhance security in any meaningful way,” the letter charges. “Furthermore, we share the DHS’s concerns that broad discovery rights in federal lawsuits could lead to public disclosure of classified or highly sensitive information that could assist terrorists.”
The third provision, the IST mandate, has long been a sore spot for TFI, ARA, and other chemical industry advocates. “This provision essentially provides DHS the authority to implement manufacturing process changes, an action that is unnecessary and potentially very disruptive to many chemical facilities,” the letter warns. “Mandating adoption of government-selected ISTs would gut the core of the CFATS without reducing real risks.”
The letter also addresses concerns that an IST provision “would be unduly burdensome” for smaller chemical facilities. “Smaller facilities that use or store relatively modest amounts of chemicals (rather than manufacturing them) would be required to retain expensive consultants and chemical safety engineers simply to assess the existence and feasibility of ISTs,” the letter says. “These operations, already suffering from the ongoing economic crisis, will have even fewer resources to dedicate to actual security enhancements if forced to conduct costly IST assessments.”
In a separate statement on Sept. 28, ARA warned that the IST mandate and the civil suits provisions could ultimately lead to the loss of crop production inputs such as ammonium nitrate and anhydrous ammonia. “It could also lead to the loss of other agricultural chemical products,” ARA said. “This would place additional supply demands on substitute products that may be more expensive and impact crop yields, which would result in increased costs for farmers.”
TFI, ARA, and a host of other industry trade groups have been lobbying Congress to simply extend the existing CFATS instead of passing new, broader legislation.