Reactive materials are often hazardous. But, reactive materials are useful. They do things. They “react”.  The very reactivity that might mark a compound as hazardous also gives it utility in industry. The chemical industry is to a large extent in the business of doing reactions. The central theme in chemical technology is obtaining the right kind of reactivity and then harnessing it to do a transformation.

So, when a piece of legislation like H.R. 5695 comes along that proposes to examine reactive materials and allow the Secretary of Homeland Security to define some or all of them as “substances of concern”, I become suspicious and concerned myself.

For the sake of readers who have no direct involvement in the chemical processing industry, allow me to just come out and say it- Safety is a big deal in the chemical processing world. Chemical plants spend large sums of money and time trying to minimize the occurrence and consequences of incidents and accidents. This attention is mandated by numerous government agencies, insurance carriers, company policies, and common sense. A chemical plant is a complex place that can have many layers of hazards- ice covered sidewalks, forklift activity, hazardous material releases, chemical exposure, fires, and explosions. The kinds of hazards present depend on the plant processes and the kinds of materials on site. 

The nature of chemical plant operation is usually a mystery to people outside of the industry. It is often complex, confidential, and of a highly specialized nature. Surrounding communities tend to tolerate chemical industry as long as things go smoothly. But when things go wrong, the publics perceived value of the industry comes into serious scrutiny. That’s fine. Any business should have to justify it’s existence when it risks exposure to workers and the community of unique hazards. But it is not inaccurate to say that the public is substantially lacking in knowledge when it comes to the chemical industry and it’s substantial part in our modern world.  Rightly or wrongly, a chemical plant accident can induce a special kind of fear in the public. This kind of fear elicited by members of the public can be called “dread fear”.

Dread fear is a kind of visceral response that is brought on by the prospect of consequences that appear horrible, irreversible, or incomprehensible. Dread consequences cannot be controlled, avoided, or even detected immediately. They include cancer, death, mutations, loss of home & property, etc. Chemical or nuclear accidents are often cited as dread circumstances that can affect large areas and are of such a nature that they render most people helpless in their response. Not only is it hard to understand and respond to a dread circumstance, but the state is likely to intervene and impose restrictions on civil liberties.

It is in the nature of terrorism that it is inexpensive and possessing of a disproportionate leverage. The shoe bomber in his clumsy attempt to set off an explosive in a passenger jet, spread dread fear primarily among security agencies and secondarily, I would judge, among the flying public. The result was a response that is arguably disproportionate to the event. It has been described by some as “security theatre”. Bruce Schneier has written an excellent and cogent essay on this theme. I’ll leave it to the reader to follow this thread.

I am leading to a point. The assembly of a proportionate response to a risk is a difficult thing to do because uncertain threat and risk are hard to quantify. When faced with a question of a risk to safety, some will take the approach that a full defensive response is the only choice. Others may want more data. Still others will be more laconic about it, preferring to deal with it when it happens.  Clearly, a wise decision maker must take security risks seriously, but at the same time understand that some risk is inherent to living.  

At any given moment we are aware of only a few of the risks that we are under from the totality of our activities in life. If we focused on all of these risks- driving, cancer, accident, disease, contagion, etc- we might freeze in our tracks. Some individuals are risk averse and others are not. To add to the complexity surrounding risk assessment, many decision makers may chose actions that minimize the threat to their careers. These kinds of choices in risk management always tend towards low risk taking.

All of this prelude takes me to H.R. 5695.  A decent summary of commentary by house committee members has been reported.  H.R. 5695 is sponsored by Rep Daniel E. Lungren (R-CA) and cosponsored by 10 others.

It must have been because of dread fear that Rep. Lungren and others conceived of H.R. 5695. This bill contains numerous zingers that are worthy of concern to industry. Beyond the obvious thick overlay of regulation and generous discretion bestowed upon the Secretary of Homeland Security are a few gems that are worthy of highlight. Consider 1802 (a)(1)(A) 

`(a) Substances of Concern-

 `(1) DESIGNATION BY THE SECRETARY- The Secretary may–

`(A) designate any chemical substance as a substance of concern;

Think of all of the abuse potential here.  Under the guise of homeland security, any substance could be designated as a substance of concern and submitted to regulation under the whim of whatever political wind is blowing at the time.

`(B) exempt any chemical substance from being designated as a substance of concern;

`(C) establish and revise, for purposes of making determinations under subsection (b), the threshold quantity for a chemical substance; or

`(D) require the submission of information with respect to the quantities of substances of concern that are used, stored, manufactured, processed, or distributed by any chemical facility.

`(2) MATTERS FOR CONSIDERATION-

`(A) IN GENERAL- In designating or exempting a chemical substance or establishing or adjusting the threshold quantity for a chemical substance under paragraph (1), the Secretary shall consider the potential extent of death, injury, or serious adverse effects to human health, the environment, critical infrastructure, national security, the national economy, or public welfare that would result from a terrorist release of the chemical substance.

`(B) ADOPTION OF CERTAIN THRESHOLD QUANTITIES- The Secretary may adopt the threshold quantity established under paragraph (5) of subsection (r) of section 112 of the Clean Air Act (42 U.S.C. 7412(r)(5)) for any substance of concern that is also listed under paragraph (3) of that subsection.

Imagine the effect of the uninformed designation of a useful but hazardous reagent. Pick one- say XXXXyl chloride. Yes, this material is noxious and could be used for mischief, but it’s very reactivity is the heart of it’s utility. What if a single person writes the Secretary and states, in a fit of paranoia, that it would be possible for a terrorist to get hold of this material from a catalog company and use it to poison people on a train. This reporting to the Secretary is provided for in the code.  Well, yes, it could happen. If past history is any indicator, it is unlikely to happen.

An individual could be walking down the street somewhere and be knifed, shot, or otherwise attacked. This does happen, but realistically it is infrequent almost everywhere. The same victim could be attacked by an assailant brandishing a bottle of reagent acid or caustic, or any of a hundred obscure corrosive substances.  This is even less likely to happen for several reasons. Most people are not aware of such materials, and even if they were aware of them, access is already difficult. Those few who do know of the hazards are no more likely to assault someone than the general population, so those with the means for a chemical attack are a small fraction of a small fraction of the population.

Any given useful reagent could become a ‘substance of concern’ by simple declaration. Suddenly, the sourcing, inventory, and use of such a material will be complicated by this law. Reporting requirements and layers of security will be associated with it’s very presence. More likely, the restrictions on reagent chemicals and specialty non-bulk materials will be more severe on the supply side rather than on the user side, though there is no mention of this in the bill.

The persons writing the bill (security consultants??) probably had large installations in mind. Refineries, fine chemical plants, polymer installations, etc.  Since terrorists do what they do for psychological effect, an attack on a large installation resulting in great tongues of orange flames licking the sky and cubic miles of black smoke is more likely to occur than most other scenarios. The bill provides for “red team” exercises for the high risk tier under 1803 (b)(4)-

`(4) RED TEAM EXERCISES- The Secretary shall conduct red team exercises at facilities selected by the Secretary that have been assigned to the high-risk tier under section 1802(c)(4). The exercises shall be conducted after informing the owner or operator of the facility selected and shall be designed to identify at each selected facility–

`(A) any vulnerabilities of the facility;

`(B) possible modes by which the facility could be attacked; and

`(C) any weaknesses in the security plan of the facility.

Imagine operating a chemical complex and in addition to just keeping all of the processes on line and getting products out the door, you now have to contrive war games with the Department of Homeland Security. Will companies be required to keep a standing security squad to satisfy DHS? Remember the old James Bond flick where Dr. No had an army of security goons to protect the hideout under the island volcano? C’mon.

Turning the USA into a security state is not the answer. Reasonable upgrades in perimeter security and fencing will go a long way toward making it harder to commit an act of terrorism on a plant by an outsider. Attaching complicated security restraints on individual materials will only serve to drag business down and hasten the current trent toward de-industrialization of US chemical production.