There is a fine line between good sense and paranoia and HR 2868 has definitely crossed over into deep paranoia. This resolution, sponsored by Rep. Thompson (Mississippi), Rep. Waxman of CA, Rep. Jackson-Lee of TX, Rep. Markey of CA, and reps Clarke and Pascrell, is an amendment to the Homeland Security Act of 2002.  Its purpose is

“to extend, modify, and recodify the authority of the Secretary of Homeland Security to enhance security and protect against acts of terrorism against chemical facilities, and for other purposes.”

Well, how could anyone be against such a noble sounding piece of code? The sponsors are struggling to protect the homeland against attack on chemical facilities. Facilities whose hazardous material inventories could be maliciously released to cause harm to the surrounding neighborhoods of innocent and helpless citizens.

Sec. 2102 (a) (1) allows the Secretary to designate any chemical substance as a “substance of concern” and establish a threshold quantity for each substance of concern.

There are many goodies and zingers in this bill. Sec. 2115 (a) (1) (A) requires that the Secretary issue regulations for substantial background checks to establish personnel surety in covered chemical facilities. The security check will be deep and will serve as a reservoir of information collected by company on citizen employees and subject to inspection on demand by the Secretary.

Sec. 2116 (a) (1) states that any person may commence a civil suit against any person “who is alleged to be in violation of any standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this title; or … “.  This citizen lawsuit provision will open the floodgates to lawsuits on companies running chemical plants and in so doing, under the rules of discovery, break through the IP protection afforded by trade secrecy.

This proposed law also provides for close oversight by the Secretary of Homeland Security as well as civil penalties (Sec. 2107 (b) (1)) of up to $50,000 per day of violation.

OK. Nobody wants acts of terrorism to happen and especially not on the site of a chemical plant. But to legislate the transformation of chemical plants into a “Fort Apache” scenario in the absence of a history of attacks on US plants is to invite needless cost and complication to an industry that is already heavily regulated. This is plainly the result of irrational fearfulness on the part of congressional sponsors. And Congressmen are in a position to convert their fears into law.

Compliance with this law will require considerable effort and expense to be carried by industry. The downside to being out of compliance is too expensive. Over time companies may opt out of processes that use chemicals of concern simply to reduce the risk of noncompliance as determined by government audit.

The chemical industry uses hazardous chemicals of many varieties. Hazardous chemicals are often reactive chemicals. And reactive chemicals are useful chemicals.

The entire chemical industry is built around the exploitation of reactive attributes in order to cause a desired change in chemical composition. The unintended consequence of this legislation is that useful but reactive chemicals may be inherently prone to identification as chemicals of concern. The effect would then be that key substances at the core of a given technology platform would be regulated on the basis of what a terrorist could do with it rather than its value to technology and to civilization.

What constitutes adequate security? Who is to say what security measures are satisfactory? The security industry seems to attract the paranoid who see threats behind every shrub. To have such people deciding what chemical is acceptable for use in manufacturing is unacceptable.

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