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Homeland Security: A Chemical Imbalance

In the New Congress, ‘Safer Technology’ Mandate is No Longer a Given

Two years ago was a particularly perilous time for the chemical industry, which has long sought to fend off legislation that would impose strict new security measures at plants.

The House had passed a bill that included an “inherently safer technologies” provision that would have given the government the power to order facilities to use chemicals judged as less hazardous — language the industry vociferously opposes. Only those requirements, supporters argued, would ensure terrorists couldn’t endanger the lives or health of hundreds of thousands or even millions of people by blowing up high-risk facilities.

President Obama backed the proposal, a reversal from when George W. Bush was president. So did the chairman of the Senate Homeland Security and Governmental Affairs Committee, Connecticut independent Joe Lieberman. Rick Hind, legislative director for Greenpeace, said it appeared that after years of fighting off the “inherently safer” language, industry was beginning to accept the notion’s inevitability, and started trying to figure out how to water down the language rather than defeat it.

But the Senate didn’t act and Republicans won control of the House in 2010. Now, not only has the divided government significantly reduced the chances of “inherently safer” language becoming law, but industry is also closer than ever to getting a permanent — or at least long-lasting — reauthorization of its preferred regulatory framework.

Two bills moving through the House would permanently codify the regulatory framework known as the Chemical Facility Anti-Terrorism Standards, first adopted in 2007 and repeatedly reauthorized on a temporary basis. Those regulations allow the Department of Homeland Security to set performance standards for high-risk chemical facilities in a way that gives plant owners more flexibility than the so-called “inherently safer technologies” requirements would.

But, unlike in 2009, the worst-case scenario for industry this year appears to be yet another short-term extension of the existing rules, something that’s already included in the latest Homeland Security appropriations bill.

“That is not necessarily an undesirable outcome,” said Scott Jensen, a spokesman for the American Chemistry Council. “But we would really like to see the legislation pass. That is our preference.”

The bicameral split could make a short-term extension the most probable result.

“A bill with IST provisions is incredibly unlikely to make it through a Republican House,” said Jena Baker McNeill, a homeland security policy analyst with the conservative Heritage Foundation. “A bill without it is tough to get through a Democratic Senate.”

Matthew Eggers, director of the U.S. Chamber of Commerce’s national security and emergency preparedness department, voiced doubt that a long-term extension can get through the current Congress, given the huge bipartisan divide. Like the American Chemistry Council, the Chamber also represents chemical businesses.

“It’s unclear if lawmakers will complete a clean bill that Chamber members can rally behind,” Eggers said. “While we want a long-term solution, we may be facing another one-year extension.”

Risks and Rewards

The chemical industry — which American Chemistry Council cites as a $674 billion enterprise — is no small force on the lobbying scene.

But with such size also comes risks. More than 100 plants are near population centers of 1 million or more, according to a 2005 story. Regulatory hawks and environmental groups often cite the 1984 Bhopal disaster in India, which injured more than 500,000 people and killed thousands.

Greenpeace, which backs the “inherently safer” language, received an email from Dow Chemical in 2009 suggesting alterations to legislation addressing the IST issue. Dow’s proposal significantly diluted the language, but nonetheless indicated that the company was willing to accept “inherently safer” mandates at the time, Hind contends.

Whereas chemical businesses were before trying to fend off “inherently safer” language or at least find a compromise over it, Hind said, now they’re simply trying to avoid having to do anything new at all.

Jensen, with the chemistry council, rejected Hind’s characterization. They have never been willing to support “inherently safer” language that gives the government power to order a switch, he said, and the chemical industry isn’t, as a whole, opposed to using “inherently safer technologies.” What chemical manufacturers object to, Jensen said, is being required to do so, when that solution might not be the best fit for any given plant.

Often, the debate has been framed in terms of environmental groups arguing about the dangers posed by plants storing chemicals such as chlorine, and business groups arguing about the dangers to the economy of imposing new mandates.

But with the current political configuration of the House, Senate and the administration — where both sides need allies among the opposition party — the two lobbying powers have been trying to turn the others’ arguments to their advantage.

Hind said dangerous chemicals pose a liability problem. Railroads, he said, see a potential attack on a train carrying the most dangerous chemicals — about 0.3 percent of their business — as a “company-ending event.”

Jensen pointed out that in some cases, switching to “inherently safer” chemicals would be environmentally unsound. DuPont, for instance, uses chlorine to manufacture titanium. “If they shift away from chlorine, they would have to go back to the old, dirtier process,” he said.

Sticking With What Works

That’s not to say the interest groups have abandoned their other arguments.

“Top-down product and process mandates would harm business competitiveness and make critical products unavailable throughout the U.S. economy, while achieving little upside in the way of improved security,” Eggers said.

Jensen rejected the notion that there was a big partisan schism over “inherently safer” language. A straightforward bill that would reauthorize the current regulations until Oct. 4, 2017, but make no “inherently safer” provisions was approved by the House Energy and Commerce panel last month with the votes of five Democrats.

More than Republicans taking control of the House, Jensen said that what really has shifted the debate is members of both parties coming to realize that the current rules are effective. Companies have been making security upgrades to such a degree that some of them have moved down the list of “tiers” of vulnerable facilities, and some have fallen off the list entirely.

Tim Murphy, a Pennsylvania Republican who is the chief sponsor of the Energy and Commerce bill, said bipartisan support made him optimistic about the measure’s chances.

But, as McNeill said, it has been difficult to get a bill through the Senate, where liberal Democrats have been opposed to anything that doesn’t include “inherently safer” language and where Republicans have opposed bills that contain it.

The Obama administration still supports “inherently safer” language, but Murphy noted that it also has praised his bill.

Aside from partisan barriers, there are other issues coming up with long-term chemical security legislation. Some are jurisdictional. The House Homeland Security Committee has a competing proposal to extend the existing rules, but it does so by making it part of the law that created the Department of Homeland Security. That could have the effect of strengthening the Homeland Security panel’s jurisdiction over chemical plant security, which the committee now shares with Energy and Commerce.

Murphy has said he believes the committees can work together to resolve those differences, although such jurisdictional squabbles have been a staple of homeland security debates since the department’s inception.

Hind said he was hopeful that “inherently safer” language could become part of a long-term resolution to chemical plant security, even in this Congress.

But many in Congress and the business world say they think it is more likely that the existing rules will be reauthorized this year, either on a short-term basis via an appropriations bill or on a long-term basis via a stand-alone measure. If so, the chemical industry won’t be trying to figure out whether it won. It will only be considering the degree to which it got what it wanted.

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