Congress passes chemical-plant security legislation

Legislation that targets chemical plant security has been passed by the House and Senate. Congress has been considering such legislation for five years and has been debating exactly what should be included.

A rider to the appropriations bill for the Department of Homeland Security (DHS) that was approved in late September gives the department no more than six months to issue interim final regulations establishing risk-based performance standards for security of chemical facilities and requiring vulnerability assessments and the development and implementation of site security plans for chemical facilities.

“This measure represents significant progress in the effort to secure America’s chemical industry,” says Jack Gerard, president and CEO of the American Chemistry Council (ACC), Arlington, Va., a trade group that includes 133 chemical manufacturers, representing about 85% of U.S. chemicals production capacity. “While we would have preferred a more-comprehensive bill and still have strong concerns regarding certain provisions, the approved legislation gives the DHS the power to establish effective national chemical security performance standards for the entire industry,” he adds.

“Congress has given DHS risk-based tools to ensure that chemical facilities assess potential security vulnerabilities and implement appropriate security measures. Equally important, the legislation gives DHS clear authority to inspect facilities and apply strong penalties to those that fail to comply,” notes Gerard.

ACC’s Responsible Care program imposes mandates for security on member companies, but other chemicals makers aren’t necessarily taking as proactive an approach to security. The October poll on CP’s Web site certainly provides food for thought. It asked: If you have hazardous materials stored on site, how do you rate the security of these materials? As of press-time, fully one-third of respondents called security “poor” or “very poor.” (Final poll results will appear in next month’s InProcess.)

What’s in store?

At this point, it isn’t clear what DHS has in mind for the rule. Regardless, our review of the seven relevant paragraphs in the act illuminates some key points:

  • DHS is limited to developing regulations that apply to chemical facilities that, in the discretion of its Secretary, present high levels of security risk. The department undoubtedly will treat consequence as a leading factor, with the potential to turn a chemical facility into a weapon a key parameter. Other parameters may include the economic impact of the site.
  • The bill says: “Such regulations shall permit each such facility, in developing and implementing site security plans, to select layered security measures that, in combination, appropriately address the vulnerability assessment and the risk-based performance standards for security for the facility.” This provision allows a plant a high degree of flexibility in choosing from various typical ways to manage to the performance standards DHS adopts.
  • “Provided further, that the Secretary may not disapprove a site security plan submitted under this section based on the presence or absence of a particular security measure, but the Secretary may disapprove a site security plan if the plan fails to satisfy the risk-based performance standards established by this section.” This phrase effectively restrains DHS from requiring any specific countermeasures and, in particular, any inherently safer technology (IST). Earlier proposed bills had mentioned IST directly, but this legislation is silent on IST.
  • “Provided further, that the Secretary may approve alternative security programs established by private sector entities, Federal, State, or local authorities, or other applicable laws if the Secretary determines that the requirements of such programs meet the requirements of this section and the interim regulations.” This means that some existing programs may be found as equivalent, presuming the regulations don’t go beyond any existing industry program.
  • “Provided further, that the Secretary shall not apply regulations issued pursuant to this section to facilities regulated pursuant to the Maritime Transportation Security Act of 2002, Pub. L. 107-295, as amended; Public Water Systems, as defined by section 1401 of the Safe Drinking Water Act, Pub. L. 93-523, as amended; Treatment Works as defined in section 212 of the Federal Water Pollution Control Act, Pub. L. 92-500, as amended; any facility owned or operated by the Department of Defense or the Department of Energy, or any facility subject to regulation by the Nuclear Regulatory Commission.” This is very significant because it excludes many sites that otherwise could have qualified for the regulation.

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