The U.S. House of Representatives on Nov. 6 passed the Chemical and Water Security Act of 2009 (HR 2868) by a vote of 230 to 193. The bill, identified during committee debate as the Chemical Facility Anti-Terrorism Act of 2009, included an Inherently Safer Technologies (IST) provision, which would require chemical facilities to assess the viability of switching to safer chemical alternatives. The IST provision remained in the final bill despite efforts by industry and certain lawmakers to strike the requirements during the committee and House floor votes (GM Oct. 26, p. 13).
A citizen suit provision, which would have allowed citizens to sue chemical companies and the Department of Homeland Security (DHS) for failure to enforce the act, was reportedly replaced with a petition process through which citizens may request the government to investigate a specific facility. Under the current bill, however, citizens may still sue the government for failing to implement the law.
The bill also grants the DHS secretary and the EPA administrator discretion to conceal facility compliance information should they deem that the information places the facility in danger.
The Fertilizer Institute (TFI) on Nov. 9 released a statement voicing its strong opposition to the legislation, which it said would impose “an increased regulatory burden” on U.S. agriculture. “The fertilizer industry considers homeland security to be a top priority and has a long-standing record of promoting safety and security of its products through their production, storage, transport and use,” said TFI President Ford B. West. “However, TFI objects to the provisions concerning Inherently Safer Technology (IST) included in the legislation. If the IST mandate and assessments as contained in this legislation are made law, they could well jeopardize the availability of widely used, lower-cost sources of essential plant nutrient products used by America’s farmers and ranchers.” Anhydrous ammonia and ammonium nitrate are normally cited as the fertilizer products most vulnerable to an IST provision.
The Agricultural Retailers Association (ARA) also criticized what it referred to as the “new and stringent security standards” contained in the bill. Like TFI, ARA honed in on the IST provision, which it said would “push agricultural facilities and other chemical facilities to substitute safer products and processes in an alleged attempt to increase security.” ARA charged that the sponsors of the legislation “used security as a pretext to advance radical environmental policies advocated by groups such as Greenpeace and other anti-chemical groups.”
ARA said it continues to support a straightforward reauthorization of the current Chemical Facility Anti-Terrorism Standards (CFATS), which were set to expire this fall after taking effect in 2007. “We are grateful to all House members that opposed HR 2868 since it will increase regulatory and insurance costs on agricultural facilities, jeopardize the availability of widely used low-cost sources of essential crop nutrient and crop protection products for farmers, and disrupt the cooperative relationship between DHS and industry to improve facility security,” ARA said.
The American Chemistry Council, while voicing support for the reworked citizen suit language and the provisions protecting sensitive facility information, said it also remains unable to endorse the bill “due primarily to concerns over the potential impact of the authority granted to DHS to mandate the implementation of IST.”
The bill will now go to the Senate, where the Senate Homeland Security Committee will most likely have primary jurisdiction of the legislation. Sens. Frank Lautenberg (D-N.J.) and Susan Collins (R-Maine) have both signaled their intentions to separately introduce chemical facility security legislation this session. “We don’t have to trade food security for chemical security, and TFI is optimistic that we can work with members of the Senate to craft chemical security legislation that takes into account our nation’s food production system,” said West. ARA said it, too, is eager to work with the Senate “on a more risk-based, tiered approach.”