Chemical security legislation (U.S.)

In late September 2006, Congress passed a Department of Homeland Security (DHS) appropriations bill for fiscal year (FY) 2007. In the bill was a section requiring the department to propose "interim" rules requiring high-risk chemical facilities to assess their security weaknesses and implement plans to address them. President Bush signed the bill in October 2006.

Many members of Congress, as well as a blue-green coalition comprised of labor and environmental organizations such as the United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), United Food and Commercial Workers International Union (UFCW), United Steel Workers (USW), Sierra Club, US Public Interest Research Group (US PIRG) and Greenpeace, believe that the interim bill is woefully inadequate and have been urging the 110th Congress to pass comprehensive permanent legislation. They favor legislation that will eliminate risks by requiring the use of inherently safer technology (IST), the substitution of dangerous chemicals, and the involvement of plant employees in identifying security threats and developing site security plans. In addition, the coalition and members of Congress argue that states should be allowed to maintain stricter security standards than the federal government if they choose. The bill signed in October 2006 failed to protect state authority to set more secure standards.

In March 2008, the House Homeland Security Committee adopted the Chemical Facility Act of 2008 (H.R. 5577), but the bill did not make it through the Energy and Commerce committee and onto the floor for final passage.

A new bill, H.R.2868 has been passed through the House Committee on Homeland Security and is currently in the House Energy and Commerce subcommittee on Environment and Hazardous Materials.

A comprehensive bill, introduced in Congress in 2009. H.R.2868 passed through the House of Representatives, but stalled in the Senate. Since then, the inadequate, interim legislation has been renewed from year to year. In 2011, five chemical security bills were introduced (H.R. 901, H.R. 908, H.R. 916, S. 473, S. 709/711).

Legislation and Activity in 2011
With the interim Chemical Facilities Anti-Terrorism Standards set to expire, the U.S. House of Representatives and the Senate have taken up legislation to prolong the program. Four of the bills under consideration would keep the interim legislation in place for the next 3 to 7 years without change; a coalition of environmental, labor, and public health organizations opposes these measures. H.R. 908 and H.R. 901 have passed through relevant committees in the House, but have not yet been introduced to the full body. The Senate version, S. 473, has passed the Homeland Security and Governmental Affairs Committee. The chemical industry is attempting to push the bill to the Senate floor with the help of the bill’s sponsor, Sen. Susan Collins (R-ME). H.R. 916 mirrors Collins’ bill, but has not received any Congressional action. Likewise, S. 709/711, a comprehensive overhaul of CFATS based on the House passed H.R. 2868, is not yet scheduled for a markup in the Environmental and Public Works Committee.

Chemical security is also receiving Executive Branch attention as the EPA has been asked to look at its own authority to regulate security at chemical facilities. In late October, the National Environmental Justice Advisory Committee (NEJAC), an EPA advisory committee recommended that the EPA use its existing authority to bolster security at chemical facilities. Specifically, the council recommended that under the Clean Air Act’s General Duty Clause, the EPA should find facilities in non-compliance with the Act if these facilities fail to minimize the consequences of releases of hazardous chemicals. NEJAC and a coalition of environmental and other groups have pointed out that the Clean Air Act covers the prevention of Bhopal-level disasters. The EPA of George W. Bush first proposed this application of the General Duty Clause, but ultimately the administration folded under industry pressure and the EPA withdrew the suggestion.

Legislation and Activity in 2009
The House Committee on Homeland Security agreed to a bill (H.R.2868) on June 23rd, by a vote of 18 to 11, with all Republicans voting no. After three days of voting the Homeland Security Committee rejected the most crippling amendments by Republicans on behalf of the chemical industry. However, before they voted against the entire bill, the Republicans won four amendments designed to delay or undermine requirements to use safer chemicals or processes. The Democrats defeated some of the most egregious changes in the House Energy and Commerce Committee before bringing the bill to the House floor. The bill passed in the House, with every Republican voting against it. Senator Lautenberg introduced a strong corollary to the House bill, but it never reached the floor of the senate, and instead Congress approved a one-year extension to the authorization of the interim law in early 2010.

NYPD Chlorine Sting
-February 13, 2008: Undercover NYPD investigators secretly set up a dummy water purification company to see if chemical manufacturers would sell them toxic chlorine gas. The investigation showed how easily and anonymously a terrorist could purchase chlorine gas on the internet and use it for a potentially deadly chemical strike against a city. The sting operation prompted the NYPD to ask DHS to require chlorine manufacturers to have stricter identification policies to verify the legitimacy of their customers.

Congressional Research Service Report
-March 4, 2008: The Congressional Research Service (CRS) released an updated report of high-risk chemical facilities by state. The report showed that as of February 2008, there were 7,395 facilities that reported a risk management plan to the EPA with a worst-case scenario that would affect 1,000 people or more.

Chemical Facility Anti-Terrorism Act of 2008 (H.R. 5577)
 On March 11, 2008, Rep. Bennie Thompson (D-MS), Chairman of the House Committee on Homeland Security, introduced the Chemical Facility Anti-Terrorism Act of 2008 (H.R. 5577) after his committee adopted the bill on March 6, 2008. This bill amends the Homeland Security Act of 2002 to extend, modify, and re-codify the authority of the Secretary of Homeland Security to enhance security and protect against acts of terrorism against chemical facilities, and for other purposes.

The bill would require the following:


 * That at the highest risk facilities, switching to safer, alternative chemicals is assessed and implemented where it is feasible and cost effective to do so.
 * All chemical facilities that fall under the regulations assess switching to a safer alternative chemical.
 * Protects the rights of states against federal preemption.
 * Worker participation in security planning.

H.R. 5577 had the following co-sponsors:
 * Rep Chris Carney [PA-10]
 * Rep Donna Christensen [VI]
 * Rep Yvette Clarke [NY-11]
 * Rep Henry Cuellar [TX-28]
 * Rep Peter DeFazio [OR-4]
 * Rep Norman Dicks [WA-6]
 * Rep Bob Etheridge [NC-2]
 * Rep Al Green [TX-9]
 * Rep Jane Harman [CA-36]
 * Rep Sheila Jackson-Lee [TX-18]
 * Rep James Langevin [RI-2]
 * Rep Nita Lowey [NY-18]
 * Rep Edward Markey [MA-7]
 * Rep Eleanor Holmes-Norton [DC]
 * Rep Bill Pascrell [NJ-8]
 * Rep Ed Perlmutter [CO-7]
 * Rep Loretta Sanchez [CA-47]

H.R. 5577 Pending in House Committee on Energy and Commerce
The House Committee on Energy and Commerce has exercised its jurisdiction over the bill because drinking water facilities that store and use chlorine for disinfection are also subject to EPA regulations. Historically, the EPA has had authority over water utilities, however, chemical facility security has become the domain of DHS. The EPA and DHS will both play a role in how security is carried out.

H.R. 5577 was referred to the House Energy and Commerce Committee subcommittee on the Environment and Hazardous Materials. The Subcommittee Chairman Albert Wynn (D-MD) recently announced he was leaving Congress to join the Washington DC lobbying firm, Dickstein Shapiro and has subsequently stepped down from the chairmanship. The new Chair is likely to be Representative Gene Green (D-TX).

March 5, 2008: Representative Wynn introduced H.R. 5533, his own chemical security bill, to the Environment and Hazardous Materials subcommittee. H.R. 5533 would mostly just make the weak interim law permanent.

A hearing on H.R. 5577 and H.R. 5533 is scheduled for June 12, 2008.

Lautenberg's Preemption Amendment
-December 17, 2007: Senator Frank Lautenberg (D-NJ) passed a provision in the FY 2008 Department of Homeland Security Appropriations Bill that was also included in the Omnibus Appropriations Bill, which was jointly negotiated by the Senate and the House. The provision blocks the Bush Administration from preempting state chemical security laws, such as in New Jersey where state security laws are more stringent than federal laws.

DHS Relaxes Chemical Thresholds
-November 2, 2007: DHS eased reporting rules at thousands of chemical facilities, pulp and paper mills, petroleum plants, food and agriculture facilities and manufacturing and cleaning sites. Under the original rule proposed in April 2007, there were 344 hazardous chemicals that businesses had to track and report to DHS, but in November the number was lowered to 300. They also increased the threshold amounts of some of the chemicals. For instance, the reporting trigger for stored chlorine went from 1,875 pounds to 2,500 pounds, potentially exempting many one-ton shipping cylinders used by industry. The threshold quantity for propane went from 7,500 pounds to 60,000 pounds and that for ammonium nitrate went from 7,500 to 10,000 pounds.

DHS officials said they made the changes after receiving 4,400 comments on the initial rules. They said that they raised some thresholds to match triggers set by the Environmental Protection Agency to require local disclosure and accident planning. DHS rolled back virtually all of these thresholds to EPA levels.

Rep. Markey announces plan to introduce legislation calling for safer materials
Rep. Ed Markey (D-Mass.) announced that he would introduce legislation requiring manufacturers to replace the most toxic chemicals used in production with safer substitutes. One of the primary motivations for the bill was the danger faced by trains which transport the toxic materials. Ed Hamberger, president of the American Association of Railroads, said that more than half of his industry's insurance costs stem from delivering dangerous chemicals. With a $1 billion liability cap on a terrorist event, Hamberger said an attack could literally bankrupt a railroad company.

Markey argued his bill “would reduce the number of shipments of these toxic materials before they are ever placed in trains, and therefore would also reduce the number of potential terrorist targets and catastrophic accident scenarios...That also means less money that the industry needs to spend on guarding these railcars while they are unloaded."

Sen. Lautenberg and Rep. Pallone plan to reintroduce bill strengthening security requirements and protecting state laws
Sen. Frank Lautenberg (D-N.J.) and Rep. Frank Pallone (D-N.J.) announced that they would reintroduce chemical security legislation similar to past efforts (see below). Their new bill would require chemical firms to use IST (inherently safer technologies) when feasible, as well as protect the rights of individual states to enact chemical security programs stronger than those of the federal government.


 * See section on Lautenberg's bill in the 109th Congress
 * See section on Pallone's bill in the 109th Congress

Lautenberg and Pallone, both from New Jersey, were especially interested in the issue because of the effect federal policy had on their state. In late 2005, New Jersey became the first state in the U.S. to require enforceable chemical plant security practices. New Jersey had 140 plants at the time. Of the 140, 43 were subject to the state’s Toxic Catastrophe Prevention Act (TCPA) program. As part of the new requirements, these 43 facilities were forced to examine the adoption of ISTs.

In late 2006, however, Congress passed and President Bush signed a 2007 appropriations bill for the Department of Homeland Security.


 * See section on passage of the bill

The bill angered many New Jersey lawmakers because it was weaker than the state's own law, and included no provision protecting its authority. Therefore, the federal government's weaker law superceded the state law, effectively rendering it obsolete.

In February 2007, New Jersey Gov. Jon Corzine (D) wrote a letter to Homeland Security Secretary Michael Chertoff expressing that the state should be allowed to maintain stricter chemical plant security rules than the federal government. He stated, “New Jersey's critical infrastructure concentration and high population density may have no comparison in the United States...Our state needs to retain the ability to go beyond any federal security baseline standard to ensure that our preparedness safeguards our citizens.”

Sen. Lautenberg introduces bill to strengthen security requirements for chemical plants, protect state laws
On March 30, 2006, Sen. Frank Lautenberg (D-N.J.) introduced the Chemical Security and Safety Act (S.2486). The bill would have required the following :


 * That IST (inherent safer technology) be used whenever possible (President Bush had been strongly opposed to the idea).
 * That state authority be protected in instances where the state had adopted stronger protections than federal law.
 * That site security at chemical plants be improved to the maximum extent possible.
 * That workers be guaranteed a role in ensuring the security and safety of facilities.
 * That strong protections for whistleblowers be implemented.

The legislation attracted the following cosponsors:


 * Sen. Joe Biden (D-Del.) - 3/30/2006
 * Sen. Barbara Boxer (D-Calif.) - 5/5/2006
 * Sen. Dick Durbin (D-Ill.) - 3/30/2006
 * Sen. John Kerry (D-Mass.) - 3/30/2006
 * Sen. Bob Menendez (D-N.J.) - 3/30/2006
 * Sen. Barack Obama (D-Ill.) - 3/30/2006

The bill was referred to the Senate Committee on Homeland Security & Governmental Affairs, but never received a floor vote. Ultimately, the Homeland Security appropriations bill did not include these provisions.

Provisions similar to those introduced by Lautenberg were introduced as amendments during the House debate on Homeland Security appropriations. These included the provision requiring IST whenever possible and the protections for state laws. On July 11, 2006, each amendment was defeated on a party-line vote, 10-8.

Rep. Pallone introduces bill to strengthen security requirements for chemical plants
On May 10, 2005, Rep. Frank Pallone (D-N.J.) introduced the Chemical Security Act of 2005 (H.R. 2237). The bill would have required the EPA and the Department of Homeland Security to work together to identify “high priority" chemical facilities. Once identified, these facilities would be required to assess vulnerabilities and hazards, and then develop and implement a plan to improve security and use safer technologies within 18 months.

The bill attracted the following cosponsors :


 * Rep. Robert Andrews (D-N.J.) - 1/31/2006
 * Rep. Lois Capps (D-Calif.) - 6/15/2005
 * Rep. Barney Frank (D-Mass.) - 2/14/2006
 * Rep. Rush Holt (D-N.J.) - 5/18/2005
 * Rep. Jesse Jackson, Jr. (D-Ill.) - 6/6/2006
 * Rep. Carolyn Maloney (D-N.Y.) - 9/21/2005
 * Rep. Ed Markey (D-Mass.) - 5/18/2005
 * Rep. Dennis Moore (D-Kan.) - 9/27/2005
 * Rep. Jan Schakowsky (D-Ill.) - 9/13/2005
 * Rep. Henry Waxman (D-Calif.) - 9/29/2005

The bill was referred to the Subcommittee on the Environment and Hazardous Materials, but never received a floor vote.

Rep. Lungren introduces bill allowing states to have a limited right to supersede federal laws
On June 28, 2006, Rep. Dan Lungren (R-Calif.) introduced a bill which would amend the Homeland Security Act of 2002 to give the Department of Homeland Security (DHS) authority to regulate chemical facilities by assessing and ranking them based on risk and forcing higher-risk facilities meet to more stringent security requirements.

The bill would allow federal law to supersede state security regulations only if the state law would "frustrate the purposes" of the federal legislation.

Lungren admitted that the language in the bill represented a compromise, as it was "not an absolute preemption" as the chemical industry wanted, but is also was "not as strong as states rights" advocates would have liked.

Many Democrats argued that the language “frustrate the purposes” was a prescription for litigation because it did not adequately define when a state law would "frustrate" federal law.

The bill collected the following cosponsors:


 * Rep. Donna Christensen (D-V.I.) - 6/28/2006
 * Rep. Vito Fossella (R-N.Y.) - 6/28/2006
 * Rep. Jane Harman (D-Calif.) - 6/28/2006
 * Rep. Sheila Jackson-Lee (D-Texas) - 6/28/2006
 * Rep. John Linder (R-Ga.) - 6/28/2006
 * Rep. Michael McCaul (R-Texas) - 6/28/2006
 * Rep. Loretta Sanchez (D-Calif.) - 6/28/2006
 * Rep. Christopher Shays (R-Conn.) - 6/28/2006
 * Rep. Rob Simmons (R-Conn.) - 6/28/2006
 * Rep. Bennie Thompson (D-Miss.) - 6/28/2006

The bill was referred to the House Committee on Energy and Commerce, but never received a floor vote.

DHS appropriation passes; includes chemical security provision
On September 29, the House passed a 2007 appropriations bill for the Homeland Security Department. Included in the bill were provisions requiring the Department of Homeland Security to propose “interim” rules requiring high-risk chemical facilities to assess their security weaknesses and implement plans to address them. In addition, the bill did not protect preexisting chemical security laws in individual states, allowing the new federal regulations (which were weaker than some state laws) to supersede state regulations.

The Senate had previously approved the bill on July 13, 2007.

Congress
Many in Congress considered the security requirements in the 2006 bill to be inadequate. Rep. Bennie Thompson (D-Miss.) stated "It concerns me that the regulations do not require chemical facilities to switch to safer technologies wherever feasible...Without such a requirement, I fear a significant gap remains in our chemical security efforts."

Rep. Joe Barton (R-Texas), a consistent opponent of strict chemical security measures, has been criticized by some for his position. Barton's district includes two of the 123 most potentially dangerous chemical facilities in the country. More than one million people live near the plants. Critics have argued that his loyalties to the energy industry cloud his views on the need for chemical security.

Greenpeace
Greenpeace federal affairs director Rick Hind called the regulations included in the 2006 bill "an industry-friendly excuse so they can claim they are doing something."

In particular, Greenpeace criticized the provision which prohibited the DHS from requiring a chemical plant to take any "particular security measure," such the use of safer chemicals. Hind called this "the moral equivalent of barring a doctor from using penicillin to save a patient."

Rather, Hind supported the bill proposed by Rep. Markey in the 110th Congress, stating “The day after a catastrophic attack on a chemical plant, or a railcar on a train, no one would argue against the elimination of these chemicals if there are cost-effective substitutes, and posterity will never forgive Congress if they don't do something about this in the next session."

Specifically, the Greenpeace Toxics Campaign named five priorities for improving chemical security in the United States. These included:


 * Tighter plant security - Tougher federal standards for perimeter fencing, concrete blockades, armed guards and other forms of security at all 15,000 U.S. facilities that use deadly chemicals.


 * Use of safer chemicals - Refineries, when they can, should adopt processes that do not use hydrofluoric acid, a dangerous chemical.


 * Reducing quantities of dangerous chemicals - The chemical industry should be encouraged, and often required, to store and transport dangerous chemicals in smaller quantities.


 * Limiting chemical facilities in highly populated areas - Because many chemical facilities were built before terrorism was an issue, and in areas that had fewer people than they do today, the U.S. should launch a national initiative to move dangerous chemical facilities to low-population areas.


 * Government oversight of chemical safety - Facilities that use dangerous chemicals should be required to identify their vulnerabilities to the Environmental Protection Agency (EPA) and the Department of Homeland Security (DHS), and to meet federal safety standards.

By implementing the above recommendations, Rick Hind of Greenpeace believes chemical facilities "can be made as safe as milk plants.”

Chlorine risk
Greenpeace has called for further security measures to be taken in order to prevent a chlorine-related attack. Numerous chlorine truck bombs exploded in Iraq during 2006-07, killing dozens of people and injuring many. The group has also noted that the Chlorine Institute, a trade group that represents more than 200 companies that make and distribute chlorine, alerted the FBI during this period to several thefts or attempted thefts of 150-pound chlorine tanks from water treatment plants in California.

In one scenario reported by Globalsecurity.org, poisonous chlorine gas could be pressurized and cooled, changing it into a liquid form so that it could be shipped and stored. When released, it could quickly turn into a gas and react explosively when mixed with chemicals such as turpentine or ammonia.

Rick Hind of Greenpeace says that terrorists' use of chlorine (and the potential for it to be used in the U.S.), an ingredient used to make items such as pesticides and paper, shows that safety rules are currently not sufficient enough. Rather, he argues, plants should switch to safer chemicals.

Response following DHS policy announcement
In April 2007, the Department of Homeland Security announced new regulations regarding chemical security. Greenpeace quickly argued that they were insufficient, for they:


 * Failed to require safer technologies that can eliminate the magnitude of an attack on a chemical plant.
 * Failed to protect approximately 3,000 U.S. water treatment plants and other chemical facilities explicitly exempted by the temporary law.
 * Failed to assure safety of the 4,391 most hazardous facilities identified by DHS.
 * Failed to set deadlines by when DHS will approve security plans.
 * Failed to require meaningful involvement of plant employees in developing vulnerability assessments and security plans as New Jersey does.
 * Failed to include whistleblower protections to enhance enforcement.
 * Failed to ensure the right of all states to establish stronger security standards, as many laws currently do.
 * Failed to enhance enforcement by limiting information available to the courts and the public by making previously public information a secret.

External resources

 * Greenpeace resources:
 * "Chemical Threats"
 * Testimony of Rick Hind, Legislative Director of Toxics Campaign, Before the House Subcommittee on Economic Security, Infrastructure Protection and Cybersecurity of the House Homeland Security Committee
 * Coalition letter in support of H.R. 5695 (Lungren bill in the 109th Congress)
 * "Timeline of Bush Administration Action on Chemical Plant Security," National Environmental Trust.

External articles

 * "Inside the Kill Zone" (editorial), ''New York Times," May 22, 2005.
 * "Chemical Plants, Still Unprotected," New York Times, September 25, 2006.