Chemical industries battle plant-security provisions

House Democrats have put language in their war-spending bill that may reignite a fight over how best to secure chemical and petrochemical plants from terrorist attacks.

Industry lobbyists say the $124.1 billion Iraq supplemental bill, which House appropriators will mark up today, threatens a compromise on plant security that Republican leaders crafted last year as the midterm election neared.

“Changing the underlying statute can only derail this process and frustrate the goal of securing all of the nation’s high-risk chemical facilities,” said Marty Durbin, a lobbyist for the American Chemistry Council (ACC), which supported the bill that Congress approved last year.

That bill, which became law as part of a must-pass spending package, gave the Department of Homeland Security (DHS) first-time powers to regulate plant security plans. It followed five years of debate in Congress over chemical-plant security following the Sept. 11, 2001, terrorist attacks.

While industry groups like ACC welcomed the law as an imperfect but fair compromise, critics thought the measure did not do enough to ensure chemical plant safety.

It did not, for example, include a measure supported by Democrats and environmental groups to push chemical companies to use “inherently safer technologies” in their operations, including replacing the most hazardous chemicals with safer but more expensive varieties.

The measure also did not include an industry priority: federal preemption over state regulations. Some companies have opposed what they see as onerous local and state plant-safety rules.

But a proposed rule put out subsequently by Homeland Security officials would, in fact, allow federal legislation to overrule state law, raising critics’ concerns to new levels. That prompted some Democrats to write to DHS to argue that the 2006 bill did not preempt state law.

The new language included in the draft supplemental bill explicitly states that federal laws do not supersede state and local rules.

Andy Igrejas, environmental health program director for the National Environmental Trust, said the changes proposed by Democrats would help fix a “remarkably weak” chemical-security bill.

Under DHS’s proposed rules, particularly vulnerable areas like New Jersey, which has a high concentration of chemical plants, could not go forward with their own tough security plans, Igrejas said.

“It gets rid of protections [for what] everyone agrees may be the most vulnerable place in the country,” he said. A final DHS ruling is expected in April.

The Democratic-crafted language would also allow regulators to expressly state what plants should do to make their facilities less vulnerable to attack. At present, regulators can approve or reject security plans but not tell plants to take specific actions.

The current law “spends as much time limiting the department’s authority as it does giving the department authority,” Igrejas said.

The new Democratic-crafted language would also offer third parties some ability to challenge chemical-security plans. The Homeland Security secretary currently is the only one with that power.

During the debate last year on plant security, chemical companies noted they collectively, and voluntarily, spent $3 billion on improving security. But security experts and DHS Secretary Michael Chertoff said the industry needed to do more, and they pressed Congress for action.

ACC’s Durbin said if the Democratic language passes, “chemical facilities that are already implementing stringent security measures will again be left in limbo about their regulatory obligations.”