Despite administration efforts, Congress still balking at new regulations
The Obama administration's proposal for tighter security standards at chemical plants as a way of deterring terrorist attacks has foundered in recent years.
During the 2008 campaign, Obama promised to "establish a clear set of federal regulations that all plants must follow, including improving barriers, containment, mitigation, and safety training, and, where possible, using safer technology, such as less toxic chemicals."
Regulations of this sort do exist -- they're known as the Chemical Facility Anti-Terrorism Standards and were enacted before Obama took office -- but critics argue that these rules are inadequate. Obama sought to strengthen the federal government's authority by requiring chemical manufacturers to use safer processes and eliminate disaster risks.
This approach was floated, briefly, as policymakers responded to the September 11, 2001, terrorist attacks. Christine Todd Whitman, the Environmental Protection Agency director under President George W. Bush and a former governor of chemical-plant-heavy New Jersey, has written that she considered using "existing authority in the Clean Air Act” that would legally obligate chemical facilities to design and operate in ways that prevent catastrophic releases.
But the administration decided to seek legislative approval rather than have EPA do it unilaterally. "Unfortunately, and much to my frustration, after a long, multiagency effort, the White House declined to endorse a draft bill, and Congress did not act on its own,” Whitman wrote.
According to Greenpeace, one of the groups pushing for tougher standards, the existing rules explicitly exempt thousands of chemical and port facilities, including approximately 2,400 water treatment facilities and an estimated 400 facilities located on navigable waters, including a majority of U.S. oil refineries. It also prohibits DHS from requiring any specific "security measure.”
The closest the federal government has come to strengthening EPA's authority was the House's passage of H.R. 2868, which passed the House in 2009 on a 230-193 vote but died in the Senate. Concerns by Republicans and industry centered on potential job losses spawned by additional federal requirements.
Bills sponsored by Sen. Frank Lautenberg, D-N.J., to require upgrades to "inherently safer technology” remain stalled in the Senate.
Rick Hind, Greenpeace's legislative director, said Obama's promise hasn't been fulfilled yet. "They are working on a new policy, but we have not been given any details about what they are considering,” Hind said.
We recognize that the administration has been working on this issue and has largely been stymied by Congress. For now, we rate it a Promise Broken.
Text of H.R. 2868
Congressional Budget Office, "Continuing Chemical Facilities Antiterrorism Security Act of 2010 (H.R. 2868) Cost Estimate," Nov. 16, 2010
Christine Todd Whitman, "The Chemical Threat to America" (New York Times op-ed), Aug. 29, 2012
Global Security Newswire, "Chemical Security Legislation Effort Deflates, Advocates Eye EPA," March 16, 2012
Email interview with Rick Hind, legislative director for Greenpeace, Dec. 6, 2012
House passed bill to regulate chemical plants
On Nov. 6, 2009, the House passed the Chemical Facility Anti-Terrorism Act of 2009 by a vote of 230 to 193. Among other things, the bill establishes regulations of security practices at chemical, wastewater and drinking water facilities. It authorizes the secretary of Homeland Security to designate any chemical substance as a substance of concern and sets the threshold quantity for each such substance based on the risks that could result from a terrorist incident. It also includes a number of other provisions that would satisfy the details of President Obama's campaign promise.
In addition, the bill would also make permanent the DHS' Chemical Facility Anti-Terrorism Standards for chemical facilities, wastewater treatment plants and drinking water systems.
The bill has the support of both Obama and the Department of Homeland Security, but has been opposed by a number of Republicans who say the bill would impose burdensome regulations on many small businesses, costing some up to hundreds of thousands of dollars to switch to "inherently safer" technologies that some claim are not always proven to be safer.
In the meantime, the existing Chemical Facilities Anti-Terrorism Standards Act, which allows the Department of Homeland Security to regulate the security measures at high-risk chemical facilities, was extended to 2010.
The ball is now in the Senate's court. We move this one to In the Works.
Library of Congress, H.R. 2868, To amend the Homeland Security Act of 2002 to enhance security and protect against acts of terrorism against chemical facilities
GOP.gov (the Web site of Republicans in Congress), The Chemical Facility Anti-Terrorism Act of 2009
New York Times, "Opinion: You Don"t Want to Be Downwind," Nov. 9, 2009