The House Homeland Security Committee on June 23 passed the Chemical Facility Anti-Terrorism Act of 2009 (HR 2868), a bill strongly opposed by the chemical and fertilizer industries for its broadening of federal powers from the current Chemical Facility Anti-Terrorism Standards (CFATS). The original CFATS regulations, implemented in 2007, are set to expire on Sept. 30, 2009.
The bill, introduced by Committee Chairman Rep. Bennie Thompson (D-Miss.) on June 15 (GM June 22, p. 13), was approved on a party-line vote of 18-11, and was stripped of certain amendments introduced by Republican committee members and supported by the chemical industry. As approved, HR 2868 gives the Department of Homeland Security (DHS) the authority to mandate the use of inherently safer technologies (IST) for chemical facilities, and allows uninjured plaintiffs to bring civil suits against chemical facilities for not being in compliance with the regulations, and against DHS for failing to enforce the CFATS regulations.
The Fertilizer Institute and the Agricultural Retailers Association have been among industry trade groups voicing opposition to any IST mandate, claiming that it will threaten the continued use of fertilizers such as anhydrous ammonia and ammonium nitrate, and drive up costs for proposed alternatives. Both organizations have lobbied against HR 2868, and have urged Congress instead to simply extend the existing CFATS program through Oct. 1, 2012, a position that was also supported by DHS.
“ARA remains opposed to HR 2868 primarily due to the IST and civil suits provisions,” ARA’s Richard Gupton told Green Markets. “We agree with DHS on Congress passing a simple reauthorization of the current CFATS rules. HR 2868, if enacted into law, will open the industry up to frivolous lawsuits by anti-chemical activist groups. It will also likely lead to the loss of lower cost agricultural fertilizer and critical crop protection products.”
That sentiment was echoed in a June 24 statement by the Society of Chemical Manufacturers and Affiliates (SOCMA), which said it continues to have “serious reservations about the proposed legislation, namely its environmental approach to a security issue.” Bill Allmond, SOCMA vice president of government relations, said the IST mandate “would take the decisions about risk away from workers in chemical facilities and leave them to bureaucrats in Washington. It would force scientists’ hands and deal a severe economic blow to SOCMA’s member companies. This provision could have disastrous unintended consequences for a number of industries, all while having minimal impact on the actual security of a chemical facility.”
Gupton noted that an amendment was introduced and passed that allows DHS to exempt certain chemical facilities classified as “small businesses” from the IST requirement, but he said it remains unclear how DHS will define “small business.”
The environmental group Greenpeace also took issue with the committee’s final bill, but for entirely different reasons. Calling it “an essential first step toward enacting a comprehensive program that protects the more than 100 million Americans still at risk,” Greenpeace Legislative Director Rick Hind on June 23 said the bill still contains “loopholes” that will “either delay or derail the most effective security measures at high risk chemical plants.”
One of these, according to Hind, is the amendment introduced by Rep. Steve Austria (R-Ohio) that raises the “small business” exemption, which Hind said would apply to any business that meets the definition of “a small business concern” as established by the Small Business Administration. Another amendment introduced by Rep. Dan Lungren (R-Calif.) would add a second appeals process to the 60-day review process already outlined in HR 2868 for chemical facilities to challenge a DHS finding to implement safer chemical processes.
Two other amendments faulted by Greenpeace were introduced by Rep. Charlie Dent (R-Pa.), who had supported efforts to simply extend the current CFATS regulations. One of Dent’s amendments would delay enforcement of the IST mandate until DHS conducts an analysis of the costs of implementing safer chemical processes. The other would exempt facilities from the IST mandate if they can show that using safer chemical processes would reduce their operations or workforce.
HR 2868 now awaits mark-up by the House Energy and Commerce Committee, and will likely be considered on the House floor this July. ARA is urging members to visit its Legislative Action Center website at http://www.congressweb.com/cweb4/index.cfm?orgcode=ara&hotissue=9 to register their opinions with lawmakers about the CFATS requirements.
Chemical industry representatives will gather in Baltimore June 29 through July 1 for the 2009 Chemical Sector Security Summit, sponsored by DHS and the Chemical Sector Coordinating Council.