Shortly before Congress broke for recess in December, Sen. Susan Collins (R-ME), Chair of the Senate Committee on Homeland Security and Government Affairs, introduced the Chemical Facility Anti-Terrorism Act of 2005 (S. 2145). The bill, which is co-sponsored by Sens. Joseph Lieberman (D-CT), Norm Coleman (R-MN), Thomas Carper (D-DE) and Carl Levin (D-MI), is a significant improvement over the draft bill previously evaluated by OMB Watch (see Failing Grade on Chemical Security, The OMB Watcher [Dec. 13, 2005]), but still fails to require reporting on the use of safer technologies.

The Collins bill would require chemical plants and other facilities storing large quantities of hazardous chemicals to develop vulnerability assessments, site security plans, and emergency response plans, all of which would be sent to the Department of Homeland Security (DHS) for review and approval. Several of the bill’s other provisions address ensuring companies adequately address the issue of chemical security. For example, DHS will gain the authority to assess civil and criminal penalties for non-compliance and will even have the power to shut down a non-compliant facility.

Previously, OMB Watch found the draft version of the bill lacking in four areas: 1) not requiring examination and reporting on use of safer technologies; 2) not providing strong universal government standards; 3) not requiring adequate public accountability and disclosure; and 4) preempting state's rights to implement their own chemical security programs. While the introduced legislation makes significant progress in three of these areas, the bill remains deficient on examining safer alternatives, which should serve as the backbone of a strong chemical security bill.

Safer Technologies
The bill fails to include a clear requirement that companies consider and report on potential use of safer technologies to reduce the consequences of a major attack or accident at a plant. A safer technologies provision would not require facilities to adopt safer procedures or chemicals if they exist. Obviously, many factors play a role in the implementation of safer procedures, including cost effectiveness and technological feasibility. Such a provision would merely require facilities to consider and report on possible implementation of safer procedures, technologies or chemicals. In turn, this would significantly improve the ability of DHS to assess best practices and discover national trends in the use of safer procedures.

"This is the biggest oversight of the proposed bill and could endanger its overall effectiveness," according to Sean Moulton, senior policy analyst with OMB Watch. "Any substantial chemical security effort should require companies to conduct such a review as a first step. Safer chemicals and technologies could eliminate the need to implement extensive security and emergency response measures. Moreover, the benefits of the modified bill are limited without the safer technologies provision."

Universal Requirements
Collins' draft bill contained overly broad provisions that encouraged DHS to accept voluntary security forms created by industry associations, which would have created uneven implementation of the law. However, the bill as introduced requires each section of security plans and vulnerability assessments to meet specific standards set by the government. A facility may submit to DHS a plan or assessment developed under other guidelines, such as those under an industry association program. The bill then requires that DHS review the sufficiency of each section of the document to ensure that it meets the government standards. If the document is missing required sections or if sections are found to be insufficient, the company must provide additional materials to DHS.

While an improvement over the draft legislation, this provision should only be used as a temporary measure to ease the transition from any voluntary evaluations currently being conducted to the government standard. Once DHS has established the chemical security program, government reports should become the baseline among industry programs. Allowing submission of alternate documents is intended to avoid duplicative paperwork for companies, but disparate submissions allow vast differences in emphasis and scope and could result in an uneven playing field of safety standards. The legislation should include a three-year sunset on this allowance to ensure a uniform and reliable chemical security program.

Accountability
Collins' introduced bill also significantly improves public transparency and accountability over its earlier draft. The bill now requires DHS to submit an annual report to Congress that analyzes the performance of chemical facilities in the development and implementation of security plans. In these reports, DHS would detail "common problems, solutions, and industry best practices." The bill also requires DHS to make public all certificates of compliance with the law. While the bill makes individual facility security plans, vulnerability assessments, and other facility-specific documents exempt from requests under the Freedom of Information Act (FOIA), it would allow requests for information regarding certifications, orders for failure to comply, and other data that would not increase security risks for specific facilities. Other provisions grant the Secretary of DHS the authority to order requested material withheld from a FOIA request for 6 months at a time.

The bill also creates a system of problem notification that will allow anyone--chemical facility worker, government official, police officer or member of the public--to alert DHS about a problem regarding security or safety at a chemical facility. This new section recognizes the importance of collecting information from sources other than simply reporting companies. Moreover, the bill protects those who report a problem, stating that "[n]o employer may discharge an employee or otherwise discriminate against any employee" for submitting a complaint. Additionally, the revised bill provides whistleblower protections for workers who notify state or federal agency officials charged with enforcing chemical security plans. A noticeable oversight, however, is that members of Congress are not included among the government officials, to which whistleblowers can disclose information without risk of civil or criminal penalties.

Floor, Not Ceiling
Possibly the most important improvement to the bill is the replacement of the state preemption clause with a state policy protection clause. The previous draft stated that any state legislation that included stronger chemical safety standards than those in the bill would be invalidated. The legislation as introduced states that "[n]othing in this Act shall preclude or deny any right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance respecting chemical facility security that is more stringent than a regulation, requirement, or standard of performance in effect under this Act..." The bill respects the rights of states to provide stronger protections against chemical security vulnerabilities. For instance, a state with major urban centers surrounding chemical facilities, such as New Jersey, which just recently introduced a strong chemical security bill, would have the right to provide stronger security protections for its residents under the Collins' bill.

The Chemical Facility Anti-Terrorism Act of 2005 is expected to be marked up in February by the Committee on Homeland Security and Government Affairs. The bill, which appears to have strong bipartisan support, is expected to move quickly through committee and possibly even the Senate. Before it is considered on the Senate floor, however, we hope a requirement will be added to the bill that companies consider safer technologies, chemicals and procedures in their security plans. This, along with the improvements already made to the bill, would provide a robust chemical security law capable of satisfying its intended purpose: making communities across America safer.