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Chemical Plant Security Returns to the Congressional Agenda

Beveridge & Diamond, P.C., June 10, 2011

Following a flurry of Congressional activity on chemical plant security legislation this spring, the House Energy and Commerce Committee has approved a bill that would extend the Chemical Facility Anti-Terrorism Standards (CFATS) program through Fiscal Year 2018.  Two more House bills and one in the Senate, all similar in their effect, have also been proposed.  So far, the 112th Congress has focused primarily on reauthorizing the program in its current form, unlike the previous Congress, in which contentious issues of “inherently safer technology” (IST) and eliminating exemptions of water treatment and certain other facilities from CFATS dominated the debate.  However, a pair of new Senate bills raise those issues, indicating that the former debate may be revived later in the session.

Background

The current Congressional debate over chemical plant security legislation began soon after the terrorist attacks of September 11, 2001, with the widespread perception that stored chemicals could be an attractive target for future attacks.  Despite that consensus, legislators have consistently divided on the question of whether to empower an agency to require IST, forcing chemical facilities to minimize their use of hazardous chemicals.  In 2006, a compromise solution emerged in the form of a brief provision inserted into a Department of Homeland Security (DHS) appropriations bill, which granted DHS authority for to establish CFATS on a three-year timetable.1  The temporary authority enabled DHS to create the framework of a chemical facility security program, but was silent on the contentious issue of IST.

The CFATS regulations require covered facilities to report to DHS their actual or planned use of any of 322 listed “chemicals of interest” at or above threshold quantities.  Upon reviewing these “top-screen” reports, DHS preliminarily assigns each facility to one of four risk-based tiers, with Tier 1 being the highest risk category.  Covered facilities are required to prepare security vulnerability assessments (SVAs) following a DHS protocol.  The facilities that DHS confirms as belonging in the higher-risk tiers must submit and implement site security plans (SSPs) to address vulnerabilities identified in the SVAs.2

Initially, DHS’s authority was set to expire on October 4, 2009, a deadline for Congress to act.  During 2009 and 2010, Congress debated bills to permanently reauthorize CFATS,3 but has yet to pass such legislation.  Instead, it has met each successive deadline with extensions of the original, temporary CFATS authority.4  Under the most recent extension, that authority is scheduled to expire on October 4, 2011.5  The current Homeland Security appropriations bill, H.R. 2017, passed by the House on June 6, 2011, would extend the same authority for another year.

CFATS Reauthorization Bills

On March 3, 2011, House Republicans introduced three separate bills, each of which would reauthorize CFATS for several years without substantial changes to the program.  Rep. Daniel Lungren (R-CA) introduced H.R. 901, the “Chemical Facility Anti-Terrorism Security Authorization Act of 2011,” which would re-codify the original CFATS provisions as new sections of the Homeland Security Act of 2002 and extend the program through September 30, 2018.  Rep. Tim Murphy (R-PA) introduced H.R. 908, the “Full Implementation of the Chemical Facility Anti-Terrorism Standards Act” to keep the existing statute intact and revise the expiration date to October 4, 2017.  Rep. Charles Dent (R-PA) introduced H.R. 916, the “Continuing Chemical Facilities Antiterrorism Security Act of 2011,” which would extend CFATS to October 4, 2015 and add voluntary programs under which facilities could train personnel and test their readiness with assistance from DHS.

Of the three similar House proposals, H.R. 908 has advanced the farthest, gaining the approval of the Energy and Commerce Committee on May 26, 2011.  In the mark-up prior to the vote, the Committee adopted two amendments by Rep. John Shimkus (R-IL), one limiting the use of employee background checks and the other extending the sunset date to October 4, 2018.  The Committee rejected several amendments by Democrats aimed at tightening government and public oversight of chemical facilities, and ultimately approved H.R. 908 by a vote of 33 to 16.  The bill’s co-sponsor, Rep. Gene Green (D-TX), was the lone Democrat who voted with the Republican majority.  As modified by the two Shimkus amendments, H.R. 908 awaits consideration by the full House.

Sen. Susan Collins (R-ME) also chose March 3, 2011 to introduce S. 473, which, like H.R. 916, is entitled the “Continuing Chemical Facilities Antiterrorism Security Act of 2011.”  It is nearly identical to legislation that Sen. Collins introduced in the previous Congress.6  S. 473 would extend the current CFATS authority to October 4, 2015, add the same voluntary programs as in H.R. 916 plus a third voluntary program for technical assistance, and create a Chemical Facility Security Advisory Board to review the latter program.  Her new bill has some level of bipartisan support, with co-sponsors Sen. Rob Portman (R-OH) and two Democrats, Sen. Mary Landrieu (D-LA) and Sen. Mark Pryor (D-AR).

CFATS Expansion and IST Bills

While the House Republican majority focuses on extending the existing CFATS authority, some Senate Democrats instead propose significant modifications to the program.  Sen. Frank Lautenberg (D-NJ), with co-sponsor Sen. Robert Menendez (D-NJ), has introduced two bills that largely replicate the Democratic plans of the previous Congress.7  They would impose IST requirements, enable legal actions by citizens, and extend chemical security regulations to certain classes of facilities that are currently exempt.

Sen. Lautenberg’s first bill, S. 709, the “Secure Chemical Facilities Act,” includes an IST mandate under the heading of “methods to reduce the consequences of a terrorist attack,” as well as provisions for both citizen suits and a “citizen petition” process.  This bill would require all covered facilities to conduct an assessment of IST methods, and would require facilities in the highest risk categories, Tiers 1 and 2, to implement any IST methods that “would significantly reduce the risk of death, injury, or serious adverse effects to human health resulting from a chemical facility terrorist incident” as long as the methods are technically and economically feasible and do not transfer the risks to other facilities.8  The citizen suit provision would allow civil actions against any governmental entity for CFATS violations, and against DHS for failure to perform any non-discretionary CFATS duty.9  In addition, DHS would be required to establish a formal petition procedure enabling citizens to allege a violation by any person of any requirement of the program, and compel DHS to investigate and report its findings to the petitioner.10  S. 709 would also end the exemption from CFATS of facilities that are regulated under the Maritime Transportation Security Act (“MTSA”).

Sen. Lautenberg’s companion bill, S. 711, the “Secure Water Facilities Act,” would establish a CFATS-like security program for water treatment facilities regulated under both the Safe Drinking Water Act and the Clean Water Act.  Instead of DHS, the regulatory authorities would be the Environmental Protection Agency (“EPA”) and the state agencies that administer existing water programs.  This bill would require covered facilities to conduct assessments of  IST “methods to reduce consequences of chemical releases from intentional acts” but, unlike S. 709, would not make implementation mandatory.  The citizen action provisions of S. 709 are absent from S. 711.

The Obama Administration Position on CFATS Reauthorization and Expansion

Prior to the introduction of the current proposals, on February 11, 2011, the House Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies held a hearing on the status of chemical plant security under CFATS.  DHS Under Secretary of National Protection and Programs Rand Beers provided an update on implementation of the program and presented the Administration’s priorities for chemical plant security legislation.11  Most prominently, the Administration supports permanent authorization of CFATS.  Under Secretary Beers characterized the exemption of drinking water and wastewater treatment facilities from CFATS as a “critical gap in the U.S. chemical facility security regulatory framework.”12  As under Sen. Lautenberg’s S. 711, the Administration prefers that EPA be granted authority to manage a CFATS-like security program for water treatment facilities.  The Administration also supports a review of exemptions for facilities regulated under the MTSA and Nuclear Regulatory Commission.

According to the testimony of Under Secretary Beers, the Administration continues to “support[], where possible, using safer technology.”   He set forth the following Administration principles to guide the development of IST policy: 

  • Consistency of IST approaches regardless of sector;
  • All high-risk facilities (Tiers 1-4) should assess IST methods and report the assessment in their SSPs;
  • The regulatory agency should have the authority to require the highest-risk facilities (Tiers 1-2) to implement IST methods that demonstrably enhance overall security, are determined to be feasible, and, in the case of water sector facilities, consider public health and environmental requirements;
  • For lower risk facilities (Tiers 3-4), the regulatory agency should review the IST assessment, but not with the authority to require implementation; and
  • Flexible and staggered implementation of any new IST policy.

IST: A Fading Issue?

The view expressed by most speakers at the February 11 hearing was that, as a practical matter, facility owners and managers generally prefer safer technologies, that CFATS already provides an incentive to reduce risks, and that the chemical sector is, in effect, adopting IST without a mandate from Congress.  Timothy Scott, representing The Dow Chemical Company and the American Chemistry Council, cited DHS as reporting a reduction of over 2,000 facilities from the high-risk categories.13  Dr. Sam Mannan, a specialist in industrial process safety at Texas A&M University, testified that “[o]ver the past 15-20 years, and more so after 9/11, consideration of [IST] options and approaches has effectively become part of industry standards, with the experts ... assessing and implementing inherently safer options, without prescriptive regulations.”14  Finally, George Hawkins, General Manager of the District of Columbia Water and Sewer Authority, testified on the ongoing transition in the water treatment sector away from chlorine gas to various less hazardous alternatives.  He cited an informal 2009 survey indicating that approximately two-thirds of such facilities had discontinued use of chlorine gas, and a majority of those remaining intended to change within two years.15

Prospects for Permanent CFATS Authorization

In the previous Congress, when Democrats controlled both houses, the House passed a CFATS reform package akin to Sen. Lautenberg’s new bills, while a bipartisan group of senators supported Sen. Collins’ proposal to extend the CFATS authority for three years without modifying the program.16  Ultimately the Senate failed to act on either proposal.  With the balance of power having shifted toward the Republicans in the current Congress, the prospects for passage of CFATS reform incorporating IST are greatly diminished.  At the same time, Congressional support for some form of multi-year extension of the existing program appears to have increased, although the strength of this consensus in the Senate remains untested.

For more information, please contact Mark Duvall at mduvall@bdlaw.com or Russell Fraker at rfraker@bdlaw.com

For a printable PDF of this article, please click here


1 Department of Homeland Security Appropriations Act, 2007, § 550, Pub. L. No. 109-295, 120 Stat. 1355, 6 U.S.C. § 121 note (enacted October 4, 2006).

2 The CFATS regulations appear at 6 C.F.R. Part 27.

3 See Beveridge & Diamond, P.C., “Chemical Plant Security Legislation: Where We’ve Been, Where We Are, Where We’re Going,” April 29, 2009, available at http://www.bdlaw.com/news-559.html; Beveridge & Diamond, P.C., “Chemical Plant Security Legislation – On the Move,” July 2, 2009, available at http://www.bdlaw.com/news-611.html; Beveridge & Diamond, P.C., “Congress Poised to Defer Permanent Chemical Plant Security Legislation Until 2010,” available at http://www.bdlaw.com/news-625.html; Beveridge & Diamond, P.C., “House of Representatives Passes Chemical Plant and Water Utility Security Legislation,” November 17, 2009, available at http://www.bdlaw.com/news-727.html; Beveridge & Diamond, P.C., “Debate Over Chemical Plant Security Moves to the Senate”, available at http://www.bdlaw.com/news-847.html; Beveridge & Diamond, P.C., “Chemical Plant and Water Facility Security Legislation in the Senate,” August 18, 2010, available at http://www.bdlaw.com/news-945.html.  

4 Department of Homeland Security Appropriations Act, 2010, Pub. L. No 111-83, § 550 (2009); An Act Making Continuing Appropriations for Fiscal Year 2011, and for Other Purposes, Pub. L. No. 111-242, § 124 (2010); Continuing Appropriations and Surface Transportation Act, 2011, Pub. L. No. 111-322, § 1(a) (2010).

5 Department of Defense and Full-Year Continuing Appropriations Act, 2011, Pub. L. No. 112-10, § 1650 (2011).

6 Continuing Chemical Facility Antiterrorism Security Act of 2010, S. 2996, 111th Cong. (2010).

7 The principal Democratic proposal from the last Congress was the Chemical and Water Security Act of 2009, H.R. 2868, 111th Cong. (2009).  For an account of the salient features of H.R. 2868, see Beveridge & Diamond, P.C., “House of Representatives Passes Chemical Plant and Water Utility Security Legislation,” November 17, 2009, available at http://www.bdlaw.com/news-727.html.

8 S. 709, § 2111(c).

9 Id. § 2116(a).

10 Id. § 2117.

11 Preventing Chemical Terrorism: Building a Foundation of Security at Our Nation’s Chemical Facilities Before the H. Subcomm. on Cybersecurity, Infrastructure Protection and Security Technologies, 112th Cong. (2011) (statement of Rand Beers, Under Secretary for Nat’l Protection & Programs, U.S. Dep’t of Homeland Security), available at http://homeland.house.gov/sites/homeland.house.gov/files/Testimony%20Beers_1.pdf.

12 Id.

13 Preventing Chemical Terrorism: Building a Foundation of Security at Our Nation’s Chemical Facilities Before the H. Subcomm. on Cybersecurity, Infrastructure Protection and Security Technologies, 112th Cong. (2011) (statement of Timothy J. Scott, Chief Security Officer & Corporate Director, Emergency Services & Security, The Dow Chemical Co.), available at http://homeland.house.gov/sites/homeland.house.gov/files/Testimony%20Scott_2.pdf.

14 Preventing Chemical Terrorism: Building a Foundation of Security at Our Nation’s Chemical Facilities Before the H. Subcomm. on Cybersecurity, Infrastructure Protection and Security Technologies, 112th Cong. (2011) (statement of Dr. M. Sam Mannan, Texas A&M University), available at http://homeland.house.gov/sites/homeland.house.gov/files/Testimony%20Mannan_2.pdf.

15 Preventing Chemical Terrorism: Building a Foundation of Security at Our Nation’s Chemical Facilities Before the H. Subcomm. on Cybersecurity, Infrastructure Protection and Security Technologies, 112th Cong. (2011) (statement of George S. Hawkins, General Manager, District of Columbia Water and Sewer Authority), available at http://homeland.house.gov/sites/homeland.house.gov/files/Testimony%20Hawkins_1.pdf.

16 See Beveridge & Diamond, P.C., “Debate over Chemical Plant Security Moves to the Senate,” April 21, 2010, available at http://www.bdlaw.com/news-847.html.

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