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Congress Poised to Defer Permanent Chemical Plant Security Legislation Until 2010

Beveridge & Diamond, P.C., July 10, 2009

As Congress considers the latest proposal to establish a permanent regulatory framework on chemical plant security (see client alert at,)[1] recent developments indicate that this debate will likely last into 2010 while the existing, temporary program continues under a one-year extension. 

The Chemical Facility Anti-Terrorism Standards (“CFATS”) program of the Department of Homeland Security (“DHS”) began under temporary authority inserted into a DHS appropriations bill in 2006.  That authority, which is set to expire on October 4, 2009, appears likely to be extended in similar fashion, as both the House and Senate have included provisions to prolong CFATS authority for one year in their current appropriations bills.  The extension seems likely to pass, as it has significant support in both houses of Congress and the Obama Administration, and would solve the short-term problem of the looming deadline of October 4.

Chemical plant security has been on the legislative agenda since soon after the terrorist attacks of September 11, 2001, but disagreement on key issues--particularly proposals to require that facilities adopt “inherently safer technology” (“IST”)--has thus far prevented the passage of permanent legislation.  IST refers to technical or methodological changes that reduce a plant’s potential for a hazardous chemical release, in contrast to security measures that may leave existing processes as they are, but harden the plant’s defenses against sabotage.

In 2006, after four years of gridlock on chemical plant security, legislators compromised on a temporary solution, a short provision requiring DHS to develop CFATS, a program that requires plants that use certain hazardous chemicals above threshold quantities to conduct security vulnerability assessments and respond with site security plans.  Section 550 of the 2007 DHS appropriations act, included a three-year sunset clause under which the authority expires in October 2009.[2]  While the IST debate continued in a diminished form as DHS began implementing CFATS, the issue of chemical plant security recently began to regain its former urgency with the approach of this deadline.  (For more background information on the IST debate, see[3]

The leading current proposal for a permanent CFATS program authority, H.R. 2868, would retain the core components of the current program but would add, among other things, a strong IST requirement and a citizen suit provision, a form of enforcement that critics argue can be appropriate in environmental legislation, but unworkable in a security program.[4]  The House Homeland Security Committee approved H.R. 2868 on June 23, but another House committee with jurisdiction, Energy and Commerce, has not yet held its hearings on the bill.[5]  (A client alert on this bill can be found at[6]  The Senate as yet lacks a concrete proposal to debate and remains “some weeks away” from the introduction of an equivalent bill.[7]  According to a lawyer for the Senate Homeland Security and Governmental Affairs Committee, “it is unrealistic to expect, and it is not likely that we will have a permanent reauthorization bill in place by the end of September.”[8]

Both houses appear prepared to extend the status quo for another year, which would allow the debate on H.R. 2868 and any other proposals to continue for most of 2010, if necessary.  The House has already passed a DHS appropriations bill, H.R. 2892, that includes a one-year extension of the CFATS authority.[9]  Meanwhile, the Senate’s own DHS appropriations bill, S. 1298, also contains the extension, although this bill has thus far been approved only by the Appropriations Committee.[10]  The Obama Administration actively supports the extension, having included a request in its proposed 2010 budget,[11] as well as asking for the extension in recent hearings.[12]  Thus, the political forces appear to be aligned to maintain CFATS in its current form for another year while Congress continues its work toward a definitive statute that ultimately resolves the long-standing dispute over IST.

For more information, please contact Mark Duvall at

[1] Beveridge & Diamond, P.C., Chemical Plant Security Legislation: On the Move (July 2, 2009),

[2] 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).

[3] Beveridge & Diamond, P.C., Chemical Plant Security Legislation: Where We’ve Been, Where We Are, Where We’re Going (Apr. 29, 2009),

[4] H.R. 2868, 111th Cong. § 2111 (2009).  Note that this bill, like some of its predecessors, avoids the IST label, replacing it with “Methods to Reduce the Consequences of a Terrorist Attack.”  Id.

[5] ICIS News, New U.S. Site Security Bill Unlikely to Be Finished This Year, (June 30, 2009), available at
(subscription required).

[6] Beveridge & Diamond, P.C., Chemical Plant Security Legislation: On
the Move
(July 2, 2009),

[7] Id.

[8] Id (remarks of Holly Idelson, majority counsel to the Committee).

[9] H.R. 2868, 111th Cong. § 548 (2009). 

[10] S. 1298, 111th Cong. § 547 (2009).

[11] Office of Mgmt. & Budget, Appendix, Budget of the U.S. Government, Fiscal Year 2010, 566 (2009), available at

[12] The Chemical Facility Antiterrorism Act of 2009: Hearing on H.R.
2868 Before the H. Comm. on Homeland Security
, 111th Cong. (2009) (statement of Philip Reitinger, Deputy Under Secretary, National Protection and Programs Directorate, Department of Homeland Security), available at




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