After nearly five years, and billions of dollars spent on post-September 11 measures to beef up security at U.S. ports, borders, public transportation and civil aviation systems, Congress appears ready to address what many believe to be the Achilles heel in our nation’s infrastructure: the thousands of privately-owned facilities that make, use or store hazardous chemicals scattered throughout the U.S.

While experts and officials identified chemical plants as prime targets for terrorist plots shortly after the September 11 attacks, legislative proposals for strengthening security around these sites have failed to gel on Capitol Hill ever year since that time, creating a patchwork of voluntary measures as the primary means of ensuring security at chemical facilities. And as one senior U.S. Department of Homeland Security (DHS) official noted in his June 5, 2005 comments before a Senate panel: “While most companies have been eager to cooperate with the department, it has become clear the entirely voluntary efforts of these companies alone will not sufficiently address security for the entire sector.”

Since then, Congressional lawmakers have publicly voiced their commitment to moving chemical plant security legislation this year and recent media coverage of their efforts suggests that they actually may follow through.

And, while it is still too early to predict which—if any—of the legislative alternatives that are currently on the table will eventually win out, there does appear to be enough momentum on Capitol Hill to suggest that companies who own or operate chemical facilities will probably be seeing some changes in the relatively near future.

Considering that members of the nonwoven fabrics industry make and use chemicals that could be subjected to these legislative efforts, this article will review the background on this issue and outline some of the possible outcomes.

Background

According to the U.S. Government Accountability Office (GAO), the U.S. is home to some 15,000 industrial facilities that produce, use or store toxic chemicals that if accidentally released, could pose a significant threat to human health and the environment. These facilities—which include chemical manufacturers, storage and distribution facilities, fertilizer and pesticide facilities, pulp and paper manufacturers, water and wastewater treatment facilities, and more—can be found in all 50 states. And, based on location and the chemicals being used, more than 120 of these sites have the potential to endanger the lives of more than one million people if they were accidentally or purposely compromised.

The potential magnitude that an attack on a chemical facility could have, in fact, has led one national security expert to characterize them as a “poor man’s atomic bomb.” Moreover, credible information gleaned by the U.S. government regarding terrorist plots involving these sites led the Department of Justice to conclude that such an attack represents a clear and present danger to U.S. national security that must be addressed. Yet, even still, all the Congressional action and Presidential directives issued in the wake of the September 11 attacks failed to give DHS explicit authority to develop chemical security regulations, leaving the protection of these facilities to be addressed by industry-adopted voluntary efforts.

To its credit, industry has broadly stepped up to the plate. Three industry associations—the American Chemistry Council, the National Association of Chemical Distributors, and the Synthetic Organic Chemical Manufacturers Association—require members to conduct vulnerability assessments, develop plans to reduce those risks and have a third party verify the implementation of security enhancements. Other industry groups, in the meantime, have established best practice guidelines, and independent companies have taken steps to secure the perimeter of their facilities.

In addition to these voluntary efforts, industry has been a vocal advocate for Federal legislation, calling for guidance on measures that can be taken to ensure appropriate levels of security. Many of the smaller companies that typically lack the resources of their larger counterparts, in fact, have issued notice that they welcome Federal intervention—especially if it comes with grant money and/or tax incentives that might be included in legislation. Further, as the American Chemistry Council recently pointed out, a set of national security standards would be far preferable to the “potential patchwork of discordant and confusing state-level regulations” that would likely be adopted in absence of strong federal authority.

But, one of the biggest obstacles to legislative action, as it turns out, is the issue of Federal preemption—the idea that a national standard would pre-empt or nullify state law. There are numerous advocates of States’ rights and others in Congress who do not support any sort of legislation that pre-empts State authority even in matters of national security. In addition, the Judiciary has created a mixed record on issues of preemption that makes some Members of Congress skittish when it comes to these issues. After all, no one wants to support legislation that could realistically be overturned by the courts somewhere down the pike.  

Nevertheless, legislation has been introduced. The front running bill in the Senate, for instance, is known as the Chemical Facility Anti-Terrorism Act of 2005 (S. 2145) and would give DHS the power to issue national standards and would require the agency to develop criteria designating the sites to be covered under the scope of the regulations. The bill also calls upon DHS to establish a risk-based tier system that requires facilities to meet specific security performance standards based on their applicable tier. Under S. 2145, facility owners and operators would also be required to submit vulnerability assessments, site security plans and emergency response plans to DHS.

The leading House bill, the Chemical Facility Anti-Terrorism Act of 2006 (H.R. 5695), would also give DHS authority to assess and rank chemical facilities based on the level of risk they pose and would require chemical facilities to prepare and submit vulnerability assessments and facility security plans. Unlike the Senate bill, however, H.R. 5695 specifically provides for Federal preemption and asserts that state and local governments “may not prescribe, issue or continue in effect a law, regulation, standard or order that may frustrate the purposes of this title�or any regulations or standards prescribed under this title.”

The Senate bill, on the other hand, specifically says that states and local governments may adopt different regulations and chemical security performance requirements as long as they are at least as stringent as those spelled out in Federal standards.  

Another bone of contention relates to potential Federal mandates requiring adoption of “inherently safer technologies” in higher-risk chemical facilities. Examples of such mandates that are frequently cited include relocating or reducing the quantity of chemicals held at these facilities, hardening their containers or storage area and/or modifying or substituting certain chemicals in higher-risk facilities. As it stands, amendments mandating the use of inherently safer technologies have been defeated during committee and subcommittee consideration of the bills in both the House and Senate. Congressional supporters of these measures, however, have vowed to add these provisions back into the language before giving final approval to any legislation, laying the groundwork for a potential showdown with lawmakers who feel that the provisions are vague, unnecessary and overly burdensome.

What Next?

Despite the newfound momentum described at the outset, persistent disagreements described above have slowed progress. Indeed, S. 2145 is currently stuck in a holding pattern due to a legislative maneuver by Sen. James Inhofe (R-OK) who has voiced concerns about the bill’s lack of Federal preemption language and more.

Concern that chemical security legislation would die once more, in fact, prompted Sen. Robert Byrd (D-WV) to add to a provision to the DHS funding bill for Fiscal Year 2007 requiring that the Department set interim security regulations for the chemical sector until final requirements can be established via legislation. The entire Senate approved this provision on July 13—along with the rest of the DHS FY 2007 appropriation bill—even though opponents argued it is simply a stopgap measure that falls short of comprehensive legislation that is really needed and there is no counterpart provision in the version of the bill that was passed by the U.S. House of Representatives earlier this year.

At present, therefore, it is uncertain whether the final version of the DHS funding bill for next year will include Sen. Byrd’s amendment, or if Congress will rise to the challenge of passing a comprehensive piece of legislation instead. All that is certain, in fact, is that lawmakers in both chambers of Congress are giving serious attention to the matter and industry is looking to Capitol Hill for action. One other thing that is certain is that INDA, Association of the Nonwoven Fabrics Industry, will keep industry members informed of significant developments on this issue as they unfold.