DHS moves on chemical plant safety regulations

Published 22 December 2006

In a one-punch, DHS moves on rules governing chemical plants safety two weeks after formulaitng rules to governs the rail transportation of hazardous chemicals; Democrats will controll both houses of Congress next year, and they say both sets of rules are too weak, and will be strengthened

It is expetced that DHS will today issue the long-awaited rules requiring thousands of U.S. chemical plants to formulate and implement safety measures which will better protect them against terrorist attacks. The legislation shows the heavy influence of the chemical industry in that it allows individual chemical plants to decide for themsleves how to secure their plants. Many Democratic lawmakers have already described the legislation as little more than window dressing. DHS’s preliminary rulemaking follows its announcement last week of regulations to ensure that the nation’s freight rail system and hazardous chemicals transported by rail are not vulnerable to terrorists. Democrats, who will hold the majority in both chambers of Congress next year, have also criticized the rail safety measure as too weak.

There will be a sixty-day comment period after the proposed rules for chemical plants are made public.

The proposed chemical security regulations will require facilities with the most hazardous chemicals to fashion their own risk assessments and security plans to address their specific vulnerabilities. All plans, however, must meet the department’s minimum “performance standards,” which amount to setting specific security targets, such as protecting chemical-tank cars from weapons fire. DHS would review the plans, and where these plans fall short, demand new safety plans. Fines for noncompliance could reach $25,000 a day, and for serious breaches the department could close the facility.

Analysts have long pointed to chemical plants and railways carrying hazardous chemicals as the U.S. most pressing threat: Only a direct nuclear attack on a populated area holds the potential of creating a mass-casualty catastrophe greater than an attack on or accident in a chemical plant located near fresdiential areas. The Environmental Protection Agency (EPA) and Congressional research Service (CRS) estimate that there are 7,728 U.S. chemical plants where an accident — or act of sabotage — could endanger 1,000 or more nearby residents. There are about 300 plants where an accident or sabotage could endager more than 50,000, and a few dozen plants where accident or sabotage could put more than 1,000,000 at risk.

Efforts since 9/11 to bring this risk under control have failed because of stiff opposition from the Bush administration and Republicans in congress, into the campaign coffers of which the chemical industry has donated millions of dollars. Things began to change last December, with Senators Susan Collins (R-Maine) and Jospeh Liberman (D-Connecticut) sponsoring a bipartisan cehmical plant safety legislation. In September a three-year stop-gap law was made part of the DHS appropriations bill, and it was signed by President Bush on 4 October. The incoming chairman of the House Homeland Security Committee, Representative Bennie Thompson (D-Mississippi), has indicated Congress may impose stricter requirements on rail and chemical plants than those proposed by the administration.

Look for fierce battles on these three fronts:

* Will chemical plants operating near urban areas be forces to replace the most volatile and dangerous chemicals they use with safer chemicals? The current legislation does not require this, but many Democrast support such a mandate

* Will federal chemical plant safety legislation supercede and preempt state rules in the event state rules are stricter (as they are in New Jersey, for example)? The current legislation says there is federal preemption of state rules, with the secretary of DHS allowed to exempt some states and some rules on a case-by-case basis

* The industry insists that information about safety plans and measures taken by individual plants — information they must share with DHS so these plans can be approved — be exampt from Freedom of Information Act (FOIA) rules; public advocacy groups want to have FOIA access to such plans to guard against sweet-heart deals between the industry and government

-read more in Robert Block’s Wall Street Journal report