The House Energy and Commerce Committee on Oct. 14 completed mark-up of HR 2868, the Chemical Facility Anti-Terrorism Act of 2009. The bill, which would reauthorize and expand the regulatory powers given to the Department of Homeland Security (DHS) in 2007 with the Chemical Facility Anti-Terrorism Standards (CFATS), has drawn criticism from the Agricultural Retailers Association, The Fertilizer Institute, and numerous other trade organizations.
ARA, TFI, and 26 other industry associations sent a letter on Sept. 28 (GM Oct. 5, p. 1) to the committee urging the removal of several provisions in the legislation. These include 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.
According to ARA, the citizen suit provision was revised in Wednesday’s mark-up. The bill now contains a citizen enforcement/petition provision instead, which would allow an individual to sue DHS but not the chemical facility directly. ARA called the new provision a “significant improvement,” but said it still has concerns. The IST provision was also modified in the mark-up, but ARA stressed that the current language “would continue to impact covered agricultural facilities.”
ARA said on Oct. 13 that it “continues to work with a broad group of other agricultural organizations (The Fertilizer Institute, CropLife America, American Farm Bureau Federation, etc.) to mitigate the impact some of these provisions would have on the agricultural industry.” The full House committee will likely vote on the bill later this month. ARA said it believes there is a strong likelihood that some of the “more onerous” provisions will be removed from the legislation when the Senate takes up debate on the bill following the House vote. The CFATS rules were set to expire on Oct. 4, ARA noted, but have received a short-term extension.
Also on Oct. 13, the National Association of Chemical Distributors (NACD) sent a letter to the House committee outlining its opposition to the IST and citizen suit provisions. “For most facilities, an IST assessment would likely produce limited options that would not justify the cost and effort of the exercise itself,” wrote NACD Vice President of Government Affairs Jennifer Gibson. “In cases where distributors might be required to reduce inventories of certain products, this would prevent these companies from effectively addressing their customers’ needs.”
NACD also criticized language in the bill that would require chemical facilities to conduct periodic drills and exercises that include local law enforcement and emergency responders. NACD said that requirement “could place facilities in the position of being out-of-compliance with the chemical security regulations because the local emergency responders do not always have the time and resources to spend on these exercises and cannot be forced to participate. NACD expresses support for the concept of such drills and exercises and urges the Committee to allow for flexibility in this area.”
NACD echoed the sentiment expressed by TFI, ARA, and other trade groups that DHS should simply be given permanent authority to implement the existing CFATS, instead of Congress passing new legislation.