Last week I wrote about the chemical security forum where Sec. Chertoff laid out the DHS perspective on the issue. The media reaction to the event on major editorial pages has been largely negative towards DHS’s approach; the Philadelphia Inquirer described the event as a “bit too cozy with industry” and the New York Times wrote:
Take this week, when Mr. Chertoff appeared before executives of the chemical industry, whose plants remain one of the nation’s greatest vulnerabilities more than four years after 9/11. Mr. Chertoff did not chastise the industry for failing to protect chemical plants adequately. He proposed weak federal safety standards. He did not even fully embrace a recently introduced bipartisan Senate bill that would create meaningful standards.
Security Info Watch published a story today that offers the latest prognosis and assessment of chemical security legislation, in the wake of Chertoff’s remarks last week:
In many ways, the House and Senate bills as well as Chertoff’s proposal are right up the alley with the petrochem industry. Standardization of security is something good for the industry, says Spear, who adds that the legislation isn’t all rosy in the chemical industry’s eyes. Written into the legal language is text that may possibly move beyond security concerns and into environmental concerns. The primary issue is ISTs, or Inherently Safer Technologies. The concern with ISTs is that that the government could require that chemical plants change the chemicals they use or the processes they employ so that there would be less risk at the plants to begin with.
It’s something that the chemical industry thinks is a real hold-up with the legislation. In S.2145, it’s not clear whether the legislation is open to the requirement of ISTs, but the letter writing from the industry has already begun.
“As your committee considers S. 2145, I respectfully request that provisions dealing with inherently safer technologies (ISTs) and federal preemption of state law be clarified,” wrote Nance K. Dicciani, the president and CEO of Honeywell’s Specialty Materials division in charge of the company’s chemical plants to Senator Collins. “Honeywell believes the current language could be interpreted by the Department of Homeland Security as authorizing ISTs, and by states to allow conflicting requirements that could adversely impact interstate commerce.”
The second concern, as Dicciani’s letter indicated, is whether states would be able to pre-empt the federal regulations, creating what really could be a messy scenario where security requirements are moving targets, entirely dependent on which side of the state line you stand.
“We would like uniformity in the form of federal standards,” says Spear. “This is a heavily regulated industry already. We’re not unaccustomed to regulations within the chemical industry. In fact, many times regulations are helpful because they provide clarity on how we’re supposed to comply. The worst thing you can have in the chemical industry is ambiguity in regulations.”
I can’t escape the conclusion after reading this that the chemical industry is trying to shift the goalposts in this debate. The Collins-Lieberman bill already was an attempt to craft compromise legislation. Its lack of a mandate for the use of inherently safe technologies is a victory for the chemical industry. That’s countered by a provision that allows states to set stricter standards, which seems consistent to me with the finest principles of federalism (and if companies don’t like a certain state’s standards, they can use the market to respond by shifting investment to other states).
My main concern with this shift isn’t with the actual policy issues, but the fact that this could lead to additional delay. The time for any party in this debate to introduce new points of contention has passed. We don’t have the luxury of delaying this legislation any longer.