Industry seeks to avoid patchwork of chemical security standards

While expressing support for newly introduced chemical security legislation, an advocate for the chemical industry Thursday urged Congress to strengthen the bill's pre-emption of state laws on the subject.

"We need to make sure that we don't have a patchwork of standards at the state level," Marty Durbin, director of federal affairs for the American Chemistry Council, told a House Homeland Security subcommittee.

Durbin suggested the legislation be amended to use pre-emption language in the Hazardous Materials Transportation Act, where state laws are pre-empted unless they are "substantively the same as" federal law.

The bill, introduced by Homeland Security Economic Security Subcommittee Chairman Dan Lungren, R-Calif., would pre-empt only laws that "frustrate" federal regulation and allows those that do not conflict with federal law to remain in place.

Although it was not discussed at Thursday's hearing, legislation introduced by Senate Homeland Security and Governmental Affairs Chairwoman Susan Collins, R-Maine, also would leave state laws intact if they do not conflict with federal law, without addressing those that might "frustrate" federal regulation.

Lungren introduced his bill Wednesday. It would give the Homeland Security Department oversight of the nation's estimated 15,000 chemical plants, with the authority to rank and assess those plants based on risk.

But while Durbin argued for greater federal pre-emption of state laws, Philip Crowley, senior fellow and director of national defense and homeland security at the Center for American Progress, warned against it. "Federal action should strengthen security floors, not create ceilings," he said.

Lungren's bill appeared to have the support of committee Democrats, including Homeland Security ranking member Bennie Thompson of Mississippi and Economic Security Subcommittee Chairwoman Loretta Sanchez of California. "Frankly, I think this legislation is long overdue," said Sanchez.

Neither Collins' nor Lungren's bills mandate the use of "inherently safer technologies" -- an omission that previously drew the ire of Senate Democrats.

The chemical industry has lobbied heavily against the mandatory use of such alternatives, which could include transporting chlorine in liquid bleach form, rather than gas.

Scott Berger, director of the Center for Chemical Process Safety, told lawmakers his group "generally support[s] this measure as written" but also expressed reservations about mandating safer technologies. Those tools, he said, "remain relatively primitive."

"The business of chemistry has long embraced inherently safe approaches," Durbin said, but added that requiring them could stifle innovation.

He added that the industry is already taking steps to improve security, and warned that a too-stringent federal approach could hamper those efforts.

Instead of mandating safer technologies, the Lungren and Collins bills would allow those plants that adopt such approaches to be labeled a lower risk by the Homeland Security Department.

Crowley warned that the Lungren bill leaves it unclear whether the Homeland Security Department would regulate the transportation of potentially hazardous chemicals. "We must take into account the entire system, not just its components," he said.

Crowley told lawmakers that chemicals shipped by rail through and near major cities, including Washington, represent a prime target for terrorists. "Why should we give al Qaida another opportunity?" he said.

New York state Sen. Michael Balboni -- a Republican who authored chemical legislation in his state that he said mirrors Lungren's bill -- said federal legislation would give New York's law "teeth."

Balboni applauded Lungren's bill for including penalties for noncompliance -- an approach he advocated in the state legislature but that ultimately failed. The House and Senate bills include similar penalties.

Whistleblower protections also are included in the House and Senate bills. "Sometimes your best eyes and ears are in the facility itself," Balboni said.

He also warned that "the specter of a Bhopal-like incident" looms, referring to the accidental release of 40 tons of a pesticide from a Union Carbide plant in India that killed thousands of individuals and injured hundreds of thousands more.

"You can't have a patchwork of laws; you need to have the consistency and continuity," Balboni said.