Chemical Plant Security: Win a Few, Lose a Few

There are few important issues that have been more overlooked by the US Congress (and Bush administration than chemical plant security. The Environmental Protection Agency had identified 123 sites where toxic gases released in a terrorist attack could kill or injure more than one million people in or near each plant, as well as 700 other sites where the death and injury toll could reach 100,000. Media reports and government studies have shown how poorly protected this country's chemical plants and refineries are. Yet four and a half years after 9/11, no chemical plant security bill has been seriously considered in the US Congress.

The Senate Homeland Security and Governmental Affairs Committee met today to "mark-up" the Chemical Facility Anti-Terrorism Act of 2005 (S.2145). A "mark-up" is where amendments are considered and a committee vote is taken. The mark-up was not completed today, although amendments considering two major issues: mandating the serious consideration of "inherently safer technologies" and federal pre-emption of state laws were considered and voted on.

To make a long story short, the good guys lost in the "inherently safer technologies" issue, but won on the federal pre-emption issue.

I wrote previously in some detail about the major issues of this legislation. For those of you who are just now tuning in, inherently safer technologies (IST) means simply using safer chemicals, reducing inventories of highly hazardous chemicals where safer substitutes can't be found, reducing hazardous pressures and temperatures where possible, improving inventory control, and reducing or eliminating storage, transportation, handling, disposal and discharge of highly hazardous substances. It's not pie in the sky. Lots of plants have already done it. The idea is that all the guns, guards and gates aren't going to protect chemical plants as effectively as simply reducing the target -- the amount of hazardous chemicals with the potential to do great damage to the surrounding community.

A recent report by the Center for American Progress, Preventing Toxic Terrorism, found that 284 facilities in 47 states have dramatically reduced the danger of a chemical release into nearby communities by switching to less acutely hazardous processes or chemicals or moving to safer locations. Most of the improvements occurred at wastewater treatment plants which switched from treating sewage with deadly chlorine gas to much safer methods using liquid chlorine bleach or ultraviolet light.

Senator Joseph Lieberman and Frank Lautenberg supported an amendment to Collins' bill that would have required chemical facilities deemed by the Homeland Security Department as posing the highest risk to use safer technologies. The proposal failed by a vote of 11 to 5. All the Republicans except for Lincoln Chafee (RI) voted against it. Democrats were more split. The Senators from Dow and Dupont -- Carl Levin (MI) and Tom Carper (DE) -- as did Mark Prior (AK).

Senator Tom Coburn (R-OK) was most outspoken against the proposal:

"I simply don't think it's an appropriate role for government ... to dictate specific industrial processes," Collins said. "We don't have the expertise to do that and we shouldn't do that."

Coburn said the amendment would create a "litigation nightmare" between chemical facilities and the government.

"This reminds me of Soviet-style mandates for how we'll do things," he said. "If this is in the bill, I will do everything I can to make sure this bill never moves."

Collins betrayed her fundamental misunderstanding of the subject, arguing that IST was an environmental issue, somehow unrelated to chemical plant security.

Pryor apparently fell victim to the agricultural chemical industry which strongly opposes IST:

The Agricultural Retailers Association, made up of members such as DuPont Agricultural Products and Cargill Ag Horizons, opposes mandatory use of alternatives to the chemicals.

“Anti-chemical groups have used clean-water laws to file lawsuits or threaten lawsuits against ag businesses and farming operations, and we want to make sure that does not occur with chemical security regulations,” said Richard Gupton, legislative director and counsel of the Agricultural Retailers Association.

But all was not bad news at today's meeting. The committee also defeated a proposed amendment by Ohio Republican George Voinovich that would have prohibited states from passing chemical plant security laws that were different -- or stronger -- than the federal law.

New Jersey recently passed its own law that required chemical plants using the most hazardous chemicals to review their potential for adopting inherently safer technologies.

The pre-emption amendment failed by a 9-7 vote:

Voinovich argued, however, that there should be a single national standard for the chemical industry that pre-empts state and local government authority. He said his amendment would allow state and local authorities to apply to the Homeland Security Department for permission to pass their own regulations.

Regulating chemical plants should be considered a national defense matter, he said, adding that the federal government already has other laws that pre-empt state and local authority. "This is a war type of atmosphere that we're in, so it's within the jurisdiction of the federal government," he said.

Collins led opposition to the amendment. "On balance, I come down on preserving the rights of state and local governments to legislate in this area," she said.

The New York Times felt quite strongly about defeating the pre-emption language, saying that the bill would be "worse than nothing" if it were passed:

A pre-emption provision could wipe away New Jersey's laws, and prevent other states from protecting themselves.

George Voinovich, Republican of Ohio, is taking the lead on pushing pre-emption. It is important that Lincoln Chafee, Republican of Rhode Island, and Mark Pryor, Democrat of Arkansas, who could be the swing votes, resist along with Senator Collins, the committee chairwoman. If the final bill pre-empts state laws, it should be killed or at least be renamed, to make clear what it is: a chemical plant antisecurity bill.

Once it passes out of committee, the bill will be considered on the floor of the Senate. Lieberman says that he plans to re-introduce his IST amendment on the floor. Then it's on to the House of Representatives. Still a long way to go.