L vision currently imposes obligations ast fall, President George W - PDF document

C o d e Ta l k e r s Homeland Security to Regulate Chemical Facilities by Barry M. Hartman and Erika Kane L vision currently imposes obligations ast fall, President George W . THE LEGISLATION PROVIDES THAT: on facilities to “prevent the accidental Bush signed the Department of ◆ regulations will apply to those release and to minimize the conse- Homeland Security (DHS) “chemical facilities” that the Homeland quences of any such release” 8 of those spending bill for fiscal year 2007. Security Secretary determines (at the hazardous substances that “pose the The bill includes landmark language Secretary’s discretion) “present high greatest risk of causing death, injury , levels of security risk;” 3 authorizing the Homeland Security or serious adverse effects to human Secretary to set and enforce perform- ◆ a regulated facility’s “site security health or the environment from acci- plan” cannot be disapproved based ance standards for chemical plants on the presence or absence of certain dental releases.” 9 that pose a high risk to the nation’s security measures, but the Secretary This obligation is imposed on security. may disapprove a plan that fails facilities where certain chemicals are This compromise legislation was to meet the “risk-based performance standards” which are in turn present in certain amounts. The pre- enacted after almost four years of de- prescribed by regulation issued by the viously-proposed bills directed the bate that saw the proposal of no less Secretary; DHS Secretary to impose the toughest than four different stand-alone chemi- ◆ the Secretary may approve “alternative security requirements on those cal facility security bills, including security programs established by facilities that handle substances of bills offered up by both houses earlier private sector entities, Federal, State, “greatest risk.” 10 There was extensive this year. 1 The most significant or local authorities, or other applicable laws,” so long as they satisfy any regu- debate, however, over whether such a feature of the legislation may be what lations promulgated by the Secretary; triggering mechanism, created to ad- it does not do: it defers virtually dress accidental chemical releases, ◆ the regulations will not apply to: facili- every major issue that has prevented ties regulated under the Maritime was appropriate when considering passage of previously proposed stand- Transportation Security Act (MTSA), dangers from intentional acts of drinking water utilities, 4 wastewater alone legislation to the rulemaking treatment facilities, 5 facilities owned by terrorism. process. Moreover, the law requires the Departments of Defense and Signaling a marked change from that DHS promulgate regulations gov- Energy, and facilities subject to regula- the prior standalone bills, this new erning these issues within the tion by the Nuclear Regulatory legislation gives the DHS Secretary next six months. 2 Commission; broad and somewhat largely ◆ the Secretary’s authority under the new Who is Covered? undefined powers to define what it legislation terminates three years after There has been extensive debate means to be a “high risk” “chemical its enactment date, and the interim final over the most fundamental question: regulations may be superseded by facility ,” and thus subject to regula- regulations promulgated pursuant to what kind of facilities will be required tion. It is unclear whether Congress’s other laws; ultimate rejection of the 112(r) trig- ◆ if a facility violates the regulations, ger should be taken to mean that the Secretary must provide it with Barry Hartman is a partner at DHS should employ some alternate written notice and issue an order Kirkpatrick & Lockhart Preston Gates mandating compliance. If the facility measure when determining which Ellis LLP in Washington, D.C. His does not comply, the Secretary may facilities pose a high security risk. order the facility to cease operation emphasis is on environmental issues, until compliance occurs. 6 Civil penal- What Must the Regulated the regulation of chemical and biological ties may also be assessed. Community Do to Comply? materials, and hazardous substances The legislation authorizes DHS and wastes. He can be reached at to establish “risk-based performance barry.hartman@klgates.com. Erika Kane standards” but does not define the to conduct vulnerability assessments is an associate at K&L Gates, practicing term. Again, reference to the protract- and implement security measures? in the areas of insurance coverage and ed history of legislative efforts Previously proposed stand-alone litigation. She can be reached at concerning chemical facility security chemical facility security legislation, erika.kane@klgates.com. This article is demonstrates just how contentious dating back to 2003, attempted to use reprinted with permission from K&L this term can be. The fact that Con- section 112(r) of the Clean Air Act as Gates. the triggering mechanism. 7 This pro- gress could not reach agreement on a 20 ww w ww w. .a app pa a.o org g Ja J an nu ua ar ry y/ /F Fe eb br ru ua ar ry y 2 20 00 07 7 F Fa ac ci il li it ti ie es s M Ma an na ag ge er r

it is not known whether the program more well-defined standard suggests that debate during the rulemaking will have to be reapproved by DHS process—where these lingering ambi- each time the entity maintaining the guities must be resolved—will be program modifies it. significant. What Will Be the Role of Indeed, the standards established State and Local Regulatory by the Secretary could take on a num- Efforts? ber of forms. For example, DHS could The new federal legislation craft a standard requiring that each provides that facility security facility create a site plan that limits programs created pursuant to other the risk of a terrorist successfully laws—including state and local breaching facility security , or the reg- law—may satisfy the new DHS ulations might require that each requirements; however, it does not facility craft a plan that limits the risk expressly bar states from imposing of release of a dangerous chemical, department. 13 The federal law appears additional security-based regulations should a security breach occur. Both on chemical facilities within their own approaches were debated in to contemplate that, in lieu of a site borders. Moreover, the new bill does Congress. 11 security plan crafted in response to not address whether federal regula- It does appear, however, that the DHS regulations, the DHS Secretary tions will preempt state legislation use of a “risk-based performance” may approve of a security plan pre- that imposes stricter or different stan- approach, which typically focuses pared pursuant to an alternate dards, or whether the Secretary of on the outcome desired rather than program, so long as that program the method used to achieve that DHS has authority to promulgate a meets the federal standards. outcome, may result in facilities regulation that preempts such state or Additionally , once DHS determines maintaining a considerable level of local laws. Because of this, organiza- that an alternate program is adequate, discretion in determining how to meet the standards. This potential outcome is reinforced by the new law’s provision that prevents the Secretary from disapproving a site security plan merely because it C o n s u l t i n g E n g i n e e r s employs a certain type of security measure. A sticking point in past Engineered Solutions for Roofs, proposals was the issue of whether Walls, Windows, and Waterproofing. Congress should mandate that facili- ties consider specific changes in Our Services Include: processes, such as the implementa- ◗ Condition Assessments tion of “Inherently Safer Technology” ◗ Forensic Investigations (IST), when creating security plans. ◗ Maintenance Plans and Budgeting What are “Alternative ◗ Design Consultations Security Programs”? ◗ Preparation of Design Documents In the years leading up to this new ◗ Construction Period Services legislation, there have been multiple ◗ Construction Inspections efforts by a variety of industrial sec- ◗ Expert Testimony tors to adopt alternative security programs. For example, the American Specialized Building Envelope Engineering Chemistry Council developed a Services for Educational Facilities Since 1964 security program for its members fol- lowing the 9/11 attacks. 12 New Jersey Gale Associates, Inc. now requires high-risk chemical 1-800-366-1714 plants in the state to complete vulner- ejm@gainc.com ability assessments, consider the use of ISTs, and submit security plans to www.galeassociates.com the state’s environmental protection Ja an nu ua ar ry y/ /F Fe eb br ru ua ar ry y 2 20 00 07 7 F Fa ac ci il li it ti ie es s M Ma an na ag ge er r ww w ww w. .a app pa a. .o org g 21 1