Washington targets plant security

As you’re reading this article, Congress passed or didn’t pass comprehensive chemical security legislation — or Congress did or didn’t include in the appropriations bill for the Department of Homeland Security (DHS) direction for DHS to promulgate security regulations for critical chemical facilities. As we are writing this, members of Congress and others are calling for DHS and Capitol Hill to move quickly to impose at least minimum security requirements on such facilities. Nevertheless, we don’t know at this point whether federal chemical security legislation will happen in 2006.

Some states have moved ahead in advance of federal action. In 2002, Baltimore enacted a city ordinance followed by Maryland legislation in 2004 that requires chemical facilities to conduct security vulnerability assessments and implement security measures commensurate with the finding of the assessments. Also in 2004 New York enacted legislation directing the State Office of Homeland Security to first identify and then assess security at critical chemical facilities in the state. In November 2005, New Jersey’s governor signed an order mandating security standards, including consideration of inherently safer technology, for certain chemical facilities. The sidebar highlights these requirements.

Significant public risk

Some security pundits believe that chemical facilities in populated areas pose risks comparable to those of commercial nuclear power plants or even weapons of mass destruction. During a February 2004 hearing on security vulnerabilities at chemical plants, representatives from the Government Accountability Office testified that “experts agree that the nation’s chemical facilities may be attractive targets for terrorists intent on causing massive damage.” Even the American Chemistry Council has called on Congress to give the DHS authority to require vulnerability assessments and security plans at critical chemical facilities and to enforce those requirements.

Despite this concern, comprehensive federal chemical security legislation has been actively debated in both houses of Congress this year. The Senate Homeland Security Committee passed S. 2145, the Chemical Facility Anti-Terrorism Act, in June and placed it on the Senate legislative calendar to await floor debate. The House Homeland Security Committee passed a different Chemical Facility Anti-Terrorism Act, H.R. 5695, in August and referred it to the Energy and Commerce Committee. In the meantime, the Senate accepted a provision to the 2007 DHS appropriations bill that would direct DHS to promulgate chemical facility regulations within six months.

While Congress has considered chemical facility security legislation every session since 2002, actions have been stymied over both substantive and jurisdictional disagreements: which committees in each house have sole or shared jurisdiction for the issue, whether EPA or DHS should have the regulatory authority, whether federal law should pre-empt state and local measures, whether facilities regulated under the Marine Transportation Security Act (MTSA) should be “grandfathered” in any new regulatory program, and whether high priority chemical facilities should be required to consider “inherently safer technologies” (ISTs) as part of their security assessments.

No lack of action

Even without comprehensive chemical security legislation, Congress, DHS and the industry have taken steps to increase security at some chemical facilities. The MTSA, passed in 2002, gave the Coast Guard (now part of DHS) authority over security in the nation’s ports, including vessels, facilities within the port areas and offshore structures. The Coast Guard promulgated regulations for certain facilities — including many chemical ones — that required vulnerability assessments, security measures and security planning to be enforced by the Coast Guard.