| Bar Bulletin |
June,
2004 |
BAR BULLETIN FOCUS
June 15, 2004 |
Environmental Law |
GOVERNOR SIGNS HAZARDOUS MATERIAL
SECURITY BILL
By Charles E. Wagner, Jr.
On May 26, 2004, Governor
Ehrlich signed into law House Bill 493, which enacted new Subtitle 7 of
the Environment Code covering Hazardous Material Security. The bill,
requested by the Maryland Department of the Environment, was passed to
address terrorist threats to Maryland facilities producing or handling
hazardous materials.
In the wake of the
terrorist attacks of September 11, 2001, federal, state and local
authorities became increasingly concerned about the security of facilities
that produce, store and transport chemicals and hazardous materials.
Terrorists might attack these facilities intentionally releasing the
hazardous materials with catastrophic consequences. A review of chemical
facilities by the Environmental Protection Agency (EPA) identified 123
facilities where a release of hazardous chemicals could endanger more than
one million people. Last fall, the CBS news program 60 Minutes produced a
segment on chemical plant security in which a correspondent was able to
walk through an open gate at a facility in Pittsburgh and roam around
tanks of anhydrous ammonia and boron trifluoride for 10 minutes without
being challenged by an employee, much less a security guard. In April,
presidential candidate John Kerry criticized the Bush administration for
supporting voluntary efforts by the chemical industry to secure chemical
plants. A March 2003 report by the General Accounting Office concluded
that voluntary efforts were inadequate and recommended that the Department
of Homeland Security and the EPA jointly develop a national strategy for
chemical facility security.
While the U.S. Coast Guard
and the Department of Transportation have issued rules addressing the
security of transportation of hazardous materials, there is no federal law
explicitly requiring facilities that handle hazardous materials to address
security. However, there is some existing federal statutory authority
related to security at such facilities. Section 112(r) of the Clean Air
Act requires owners or operators of stationary sources that have more than
a threshold quantity of regulated substances to prepare risk management
plans addressing potential releases. The Occupational Safety and Health
Administration’s process safety management program requires facilities to
take steps to prevent catastrophic releases of toxic, reactive, flammable
and explosive substances. The Emergency Planning and Community
Right-to-Know Act, enacted in response to the 1984 Bhopal tragedy,
requires facilities handling hazardous substances to notify state and
local authorities, which are required to prepare emergency plans to
address chemical releases. Because there is no federal law aimed at
preventing terrorist attacks at facilities handling hazardous chemicals,
states like Maryland are enacting such laws of their own.
Maryland’s new Hazardous
Materials Security Act (effective October 1, 2004) applies to facilities
that store, dispense, use or handle hazardous materials. Retail facilities
selling commercial fertilizer for agricultural use are excluded. Hazardous
materials are toxic and flammable substances, in excess of threshold
quantities, defined in 40 C.F.R. § 68.130, which is the list of chemicals
subject to § 122(r) of the Clean Air Act. Owners or operators are required
to conduct a security audit and submit it to the Maryland Department of
the Environment (MDE) no later than October 1, 2005, along with a $2,500
fee. Audits must be performed at least every five years thereafter. These
audits must address potential security threats, vulnerabilities and
consequences of hazardous material releases.
By January 1, 2005, MDE
must issue standards for analyzing threats and vulnerabilities,
implementing security measures, documenting security management programs
including training and drills, communicating with employees, communities
and government officials, conducting audits and third-party verification.
MDE, in consultation with the Maryland Department of State Police, must
inspect and audit facilities to verify compliance with program standards
and refer violations to the State Police for enforcement. The State Police
must adopt regulations to enforce compliance. Any person who violates the
Act or any regulations adopted under the Act is subject to a civil penalty
not exceeding $1,000 for each violation (with each day a violation
continues counted as a separate violation). The Act makes it a violation
for a person to knowingly submit false information.
Where a local jurisdiction
has adopted its own hazardous materials security program (which itself
must be at least as stringent as MDE’s program), facilities within that
jurisdiction are exempt from the state requirements. So far, Baltimore
City is the only local jurisdiction to enact its own hazardous materials
security ordinance. MDE estimates that 95 facilities would be subject to
the Act. These include 40 facilities owned by counties and municipal
corporations, which are exempt from the $2,500 fee.
While some state and local
governments enact hazardous materials security legislation, two bills are
winding their way through Congress. The Chemical Facilities Security Act
of 2003, introduced by Senate Environment and Public Works Committee
Chairman James Inhofe (R-OK) and Senator Zell Miller (D-CA), represents
the Bush Administration’s chemical security proposal. It gives the
Department of Homeland Security jurisdiction over chemical security issues
and requires certain facilities to conduct vulnerability assessments and
to prepare site security plans. The Chemical Security Act of 2003,
introduced by Senator John Corzine (D-NJ), gives responsibility to EPA and
would apply to a broader range of facilities and would require those
facilities to conduct vulnerability assessments and to prepare prevention,
preparedness and response plans. Neither bill is expected to be passed
before this November’s election.
Charles E. Wagner, Jr., is an associate with the law firm of Blank Rome
LLP. He concentrates his practice in environmental and hazardous materials
transportation law.
