12. CHEMICAL SECURITY: INDUSTRY TAKES AIM AT LAUTENBERG BILL--AGAIN (04/06/2011)

Jeremy P. Jacobs , E&E reporter

In a repeat scenario from last year, the chemical industry is quickly lining up en masse against new legislation from Sen. Frank Lautenberg that seeks to increase security at the nation's chemical facilities.

The New Jersey Democrat reintroduced two bills last week that would require chemical and water facilities to assess how vulnerable they are to a terrorist attack and develop plans for how they would respond should one occur.

Lautenberg's "Secure Water Facilities Act" and "Secure Chemical Facilities Act" would also require companies to assess whether inherently safer technology (IST), or switching to less toxic alternative chemicals, would reduce the consequences of an attack.

And that is where the rub with industry lies.

John Boling of the Chemical Producers and Distributors Association (CPDA) said the proposal is "dead on arrival" with his members and said that an IST mandate would amount to "the government telling you whether you can use a product or not."

The Society of Chemical Manufacturers and Affiliates (SOCMA) said IST is misunderstood. By substituting different chemicals into the process, SOCMA's Alexis Rudakewych said, government could create "an entirely new hazard" with the new alternatives.

Rudakewych added that forcing companies to change their manufacturing processes would put a significant economic burden on them and, in some cases, could ultimately change the end product.

"The customers for these products could discontinue placing orders and take their orders outside the U.S.," Rudakewych said.

SOCMA is taking its objections with an IST requirement directly to Capitol Hill next week when about 35 chemical companies will fly into Washington to meet with their members of Congress.

SOCMA, CPDA and other groups all said they are currently "educating" members of Congress on IST and the impact it would have on their members.

Lautenberg's legislation seeks to address gaps in the Department of Homeland Security's Chemical Facility Anti-Terrorism Standards (CFATS) program. Established four years ago, CFATS requires companies to develop and implement specific security plans for qualifying facilities.

CFATS as it exists now does not include water and wastewater facilities, nor an IST requirement.

The program is set to expire when the current continuing resolution ends this week. That has led to multiple bills being introduced in the Senate and House that extend the program largely as it exists now, without an IST requirement.

In an interview, Lautenberg appeared to expect the industry opposition to this bill. When asked about it, he quipped, "Surprised?"

The Democrat's bills did not make it out of committee last year, and he indicated that he would stand firm on his principles -- including the IST standard.

"We have to continue to try to get all the protections we can," Lautenberg said. "And I don't want to start with a compromise that would take safety away from the American people."

IST has become a rallying cry among green groups and some Democrats. Last Congress, the Democratically controlled House passed legislation that would have updated the program to include water and wastewater facilities and an IST requirement (E&ENews PM, Nov. 6, 2009).

Rick Hind, Greenpeace's legislative director, said the CFATS program was intended as a temporary law so Congress had time to enact a more comprehensive program. If the current program is extended, it would continue to exempt "thousands of potentially high risk chemical facilities."

"The Lautenberg bills correct the fatal flaws in CFATS and establish security standards that will eliminate the risk of catastrophic chemical disasters, encourage cost-saving innovations, create new jobs and reduce regulatory burdens," Hind said, referring to an IST requirement. "It would be grossly irresponsible of Congress not to adopt that agenda given the widespread availability of safer cost-effective alternatives."

House Energy and Commerce ranking member Henry Waxman (D-Calif.) raised similar concerns at a hearing on reauthorizing CFATS last week (E&E Daily, April 1). And DHS Undersecretary for National Protection Rand Beerssaid at a February hearing that the administration is open to "prudently approaching" the consideration of an IST requirement (E&ENews PM, Feb. 11).

House Republicans also appear to oppose requiring companies to consider IST alternatives. Homeland Security Cybersecurity, Infrastructure Protection and Security Technologies Subcommittee Chairman Dan Lungren (R-Calif.) said in February that he does not support such a mandate and that "there is no single definition of what IST is" (E&ENews PM, Feb. 11).

Industry groups maintain that the CFATS program is still too young to change significantly. Jennifer Gibson of the National Association of Chemical Distributors said that the regulatory requirements of the initial CFATS program are already time consuming as well as costly, and companies are still working with DHS to implement them. It is too soon, she said, to consider an expansion like an IST requirement.

"CFATS is a major new regulatory program, which is still in its early stages," Gibson said. "DHS has received over 4,000 site security plans to date. The agency needs to evaluate these plans and inspect the facilities to make sure that the plans are being implemented. Changes to the current program before this process is complete would be premature."