The House Energy and Commerce Committee on Oct. 21 approved the Chemical Facility Anti-Terrorism Act of 2009 (HR 2868) by a vote of 29 to 18. The bill would permanently grant the U.S. Department of Homeland Security (DHS) authority to regulate security measures at chemical facilities and expand current regulations to include Inherently Safer Technology (IST) requirements and civil enforcement provisions.
The committee also approved by voice vote an amendment to HR 2868 offered by Reps. Mike Ross (D-Ark.) and Zack Space (D-Ohio) that would require DHS to conduct an economic assessment regarding the impact an IST requirement would have on agricultural facilities covered by these security regulations. The Ross-Space amendment also includes authorization of a $3 million grant program to help agricultural retailers and distributors required to conduct an IST assessment.
The Agricultural Retailers Association, which joined The Fertilizer Institute and the American Farm Bureau Federation in sending letters to Ross and Space expressing support for the amendment, applauded its approval while continuing to voice concerns about the potential impact of an IST mandate on the fertilizer and agrichemical industries. ARA, TFI, and numerous other industry associations have also voiced opposition to the “citizen suit’ provision in the bill, which would allow any person to bring suit against DHS to enforce compliance with the act (GM Oct. 19, p. 15).
“ARA applauds Representatives Ross and Space for their leadership in securing adoption of a provision that will require DHS to review the economic impact an IST requirement would have on the nation’s agricultural industry and consumers,” said Richard Gupton, ARA vice president of legislative policy and counsel. “The grant program can provide much needed financial assistance for these facilities to meet new IST regulatory requirements.”
ARA said it continues to oppose HR 2868 primarily due to the IST and civil enforcement provisions, which it claims “could lead to the loss of widely-used and essential, lower-cost sources of plant nutrient and crop protection products and increase production costs for farmers and ranchers.” Anhydrous ammonia and ammonium nitrate are cited as the fertilizer products most vulnerable to an IST provision. Rep. John Shimkus (R-IL) last week offered an amendment to eliminate the IST provision completely from HR 2868, but it was defeated by a vote of 14 to 28.
The committee last week sought to address the concerns related to the IST language in a memo prepared by subcommittee chairman Ed Markey (D-Mass.). “The American Farm Bureau and others in agribusiness have circulated a letter claiming that the Chemical Facility Anti-Terrorism Act (HR 2868) will have a detrimental impact on the agricultural sector,” the memo said. “These concerns are not based on fact.”< Markey said farmers and other agricultural end-users of the "regulated chemicals of concern" covered by the bill received an indefinite extension in January 2008 of the compliance deadlines for the existing Chemical Facility Anti-Terrorism Standards (CFATS). Markey said DHS has indicated that there is nothing in HR 2868 that would require it to deviate from its plan to address the security of these facilities differently. Markey also claimed that only a small number of the highest-risk crop-related facilities are subject to the IST provision in the bill. "The highest risk crop-related facilities, such as pesticide or fertilizer manufacturers, are already subject to chemical security regulations under CFATS," the memo said. "HR 2868 would additionally require Tier 1 and 2 facilities (the highest risk) to assess whether they could use alternative chemicals or processes to reduce the consequences of an act of terrorism and to implement these alternatives if doing so a) would reduce the risk posed by the facility, and b) is technologically and economically feasible.” The memo said DHS has placed seven crop-related facilities nationwide in the top two tiers. Of these, five are manufacturers of pesticides/fertilizers, and two are farm supply/merchant wholesalers. “These high-risk crop-related facilities pose a grave threat to neighboring communities in the event of a chemical release and therefore should comply with the same requirements as other high-risk facilities,” the memo said. Markey also argued that only a small percentage of farm supply and merchant wholesalers would have to assess whether they can switch to inherently safer technologies. “Preliminarily, DHS has placed 26 pesticide/fertilizer manufacturers and 601 farm supply facilities and merchant wholesalers in Tiers 3 and 4 of the CFATS program,” the memo said. “HR 2868 would require these Tier 3 and Tier 4 facilities to conduct IST assessments but would not require them to switch to safer chemicals or processes.” Markey added that these Tier 3 and Tier 4 facilities account for just 7.8 percent of the farm supply/merchant wholesalers in the U.S. Others in Congress were urging the committee to consider adding language to the bill addressing the rail transportation of toxic-by-inhalation commodities, an issue that continues to produce heated debate between the chemical and railroad industries. Rep. George Miller (D-Calif.), in an Oct. 13 letter to committee chairman Henry Waxman (D-Calif,), pressed for measures to “help mitigate dangers posed by potential accidents and terrorism associated with the transportation of chlorine by rail car.” While focusing on chlorine and never mentioning anhydrous ammonia by name, Miller wrote that “our railroads have a huge burden to try to safeguard toxic inhalation hazard (TIH) chemical shipments throughout their vast networks of rail lines that often pass throughout our nation’s neighborhoods. While we appreciate that the railroads are doing a great deal to improve security, we must look for ways to reduce the TIH chemical shipments that are so hard to protect.” Gupton told Green Markets that ARA opposes the Miller recommendation. “The industry has its work cut out to educate members of Congress on the importance of these products to the industry and why they are essential to keep our agricultural productions costs low,” he said. “The same arguments Miller is using on chlorine are likely to be used with anhydrous ammonia.”
ARA said the full House is expected to consider HR 2868 under a structured rule in the coming weeks, which will limit opportunities to offer amendments.