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Oct 16, 2009 10:37 AM

In preparation for a recent US House Energy and Environment Subcommittee markup of HR 2868, the Chemical Facility Anti-Terrorism Act, the National Association of Chemical Distributors (NACD) sent a letter to the full House Energy and Commerce Committee outlining several concerns about the bill.

In the letter, NACD expresses support for legislation that would simply give the Department of Homeland Security (DHS) permanent authority to implement the Chemical Security Anti-Terrorism Standards (CFATS), but notes that changes to the program included in HR 2868 are premature and that Congress should allow the regulation to be fully implemented and evaluated before changing the requirements. The letter also outlines concerns about several specific issues in the bill.

First, NACD expresses concerns about the requirement that all covered facilities conduct inherently safer technologies (IST) assessments and that facilities in high-risk tiers adopt these measures. NACD says these assessments would be costly and inappropriate for distributors as these companies generally store, repackage, and transport—rather than manufacture—chemicals. “For most facilities, an IST assessment would likely produce limited options that would not justify the cost and effort of the exercise itself. In cases where distributors might be required to reduce inventories of certain products, this would prevent these companies from effectively addressing their customers’ needs,” wrote NACD Vice President of Government Affairs Jennifer Gibson.

The letter also notes concern about the prescriptive nature of the legislation. For example, NACD points out that the requirement to conduct periodic drills and exercises that include local law enforcement and emergency responders could place facilities in the position of being out of compliance with the chemical security regulations because the local emergency responders do not always have the time and resources to spend on these exercises and cannot be forced to participate. NACD expresses support for the concept of such drills and exercises and urges the committee to allow for flexibility in this area.

In addition, NACD states opposition to the provision in HR 2868 to allow citizen lawsuits for perceived non-compliance, arguing that the civil and administrative penalties that DHS can impose are incentive enough to comply with the law. An additional concern raised in the letter regards the provision that allows states and localities to adopt and enforce standards more stringent than the federal law. NACD notes that federal pre-emption is a key element of any effective chemical security program.

Visit www.nacd.com/advocacy/comments.aspx for a copy of the entire text of the letter.