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Debate over Chemical Plant Security Moves to the Senate

Beveridge & Diamond, P.C., April 21, 2010

Following the House’s passage of a chemical plant security bill last November, the Senate has begun to turn its attention to the issue, with subcommittee hearings held in March and multiple bills either proposed or in the works.  As in the House, the focus of contention thus far in the Senate has been the possible addition of inherently safer technology (“IST”) requirements into a reauthorization of the existing Chemical Facility Anti-Terrorism Standards (“CFATS”) program.

Background

The security of chemical facilities has been a subject of increased concern since the September 11, 2001 attacks, when it became apparent that stores of hazardous chemicals are a logical target for terrorists.  Members of Congress have agreed on the need for a federal chemical facility security program, but have disagreed sharply on the issue of making IST mandatory.  IST refers to technological and procedural steps intended to reduce the potential for a hazardous chemical release, in contrast to security measures intended to deter sabotage of existing processes.  IST measures typically involve modifying processes to reduce the quantity of hazardous chemicals used or stored, reducing temperatures or pressures, or replacing a hazardous chemical with a less hazardous one.  While facilities are always free to reduce hazards in these ways, a mandatory IST approach would require facilities to examine their industrial processes to evaluate safer alternatives and would enable a government agency to compel facilities to adopt the changes that it concludes are justified.

In 2006, unable to resolve their dispute over IST, legislators compromised on a temporary solution, CFATS, a program that requires facilities that use certain hazardous chemicals above threshold quantities to conduct security vulnerability assessments and respond with site security plans.  The provision, Section 550 of the 2007 Department of Homeland Security (“DHS”) appropriation, included a three-year sunset clause under which the authority was set to expire in October 2009.1  However, the authority has since been extended to October 2010.2  Thus, as was the case with the House during 2009, the Senate debates chemical plant security during 2010 in the shadow of an October deadline, although the ease of extending the authority has already been demonstrated, and presumably could be repeated.

The House Proposal, H.R. 2868

During much of 2009, the House of Representatives debated proposals to reauthorize CFATS.3  Ultimately, in November, the House passed H.R. 2868, the “Chemical and Water Security Act of 2009,” which would make DHS’s CFATS authority permanent and create a similar security program under the Environmental Protection Agency (“EPA”) and state environmental agencies for water treatment facilities.  H.R. 2868 retains the existing CFATS program essentially intact, but includes two controversial features: IST and citizen enforcement.

First, H.R. 2868 would require all facilities to assess IST alternatives, although it uses the substitute label, “methods to reduce the consequences of a terrorist attack.”  After several revisions, the IST provisions that eventually passed incorporate several important compromises to soften their impact on industry.  A facility’s IST assessment would include considerations of cost, risk allocation, and impairment of its ability to remain in business.4  While DHS would be authorized to require facilities in the highest risk categories to implement IST measures, the authority would be discretionary and subject to an appeal within DHS in which DHS would be required to consult with industrial specialists before deciding to require implementation.5 

Second, H.R. 2868 adds another source of political tension: authorizing “any person” to sue to enforce the law.6  As with its IST provisions, the bill’s original citizen suit language was revised to reduce its impact, limiting the scope of potential defendants to the government only.  However, a late amendment added a second avenue of citizen enforcement by requiring DHS to establish a procedure to accept the filing of “citizen petitions.”7  The procedure would allow any citizen to compel DHS to investigate any potential violation of the CFATS program and report its findings to the petitioner.  These findings would be deemed “final agency action,” enabling petitioners to sue the agency.

H.R. 2868 would establish security programs for drinking water and wastewater treatment utilities, both currently exempt from CFATS.  Although administered by EPA and the states instead of DHS, the water utility security programs would be based on the CFATS model.  Both of these proposed programs also include IST provisions similar in effect to the final version for chemical facilities: IST implementation would be mandatory for high risk utilities, but subject to agency discretion.  Unlike the chemical facility program, the water utility security programs would not be subject to either citizen suits or citizen petitions.

Senator Collins’ Bill, S. 2996

On February 4, 2010, Senator Susan Collins (R-ME), an outspoken critic of mandatory IST, introduced S. 2996, the “Continuing Chemical Facility Antiterrorism Security Act of 2010.”  S. 2996 would extend the CFATS authority intact until October 4, 2015, five years beyond its current term.  Collins’ bill would add two voluntary DHS programs: a chemical security training program and a chemical security exercise program.  In her floor statement, Collins argued that “Forcing chemical facilities to implement IST could wreak economic havoc on some facilities and affect the availability of products that all Americans take for granted. . . .  [M]andatory IST would negatively restrict the production of pharmaceuticals and microelectronics, unnecessarily crippling those industries.”8  S. 2996 has co-sponsors from both parties (currently two Democrats and two Republicans), an indication that the debate in the Senate may lack the party-line character that prevailed throughout much of 2009 in the House.

Senate Homeland Security Committee Hearing

On March 3, 2010, the Senate Committee on Homeland Security and Governmental Affairs held a hearing to initiate the Senate’s long-anticipated debate on chemical plant security legislation.9  The principal topics before the Committee were the two bills, H.R. 2868 and S. 2996; the merits of granting governmental authority to mandate IST; and the current exclusion of water utilities from the CFATS program.  Most of the contention was focused on IST.  Senator Collins and representatives of the chemical industry argued against mandating IST, whereas officials of DHS and EPA voiced the Obama Administration’s support for a phased introduction of IST requirements.  In addition to concerns over the continued viability of certain products and facilities under a mandatory IST requirement, witnesses argued that IST is not a security methodology, and further that it is a poorly defined concept not suitable for enforcement.

The Obama Administration Announces Its Position

Representing DHS at the hearing, Rand Beers, Under Secretary for the National Protection and Programs Directorate, presented the Obama Administration’s current position on chemical plant security legislation.10  According to Beers, the Administration supports the following:

  • passage of permanent legislation;
  • CFATS remaining in effect, with gradual implementation of any changes;
  • using IST where possible, in balance with other considerations;
  • protection of sensitive information under the current program; and
  • creating a CFATS-like program for water utilities under EPA, with support from DHS to ensure consistency.

The Administration also advocates modifying the existing CFATS exemptions for facilities regulated under the Maritime Transportation Security Act (“MTSA”) and the Nuclear Regulatory Commission (“NRC”), giving CFATS a review role for MTSA facilities, and clarifying the scope of the NRC exemption.  Beers expanded on the Administration’s view of how IST should be incorporated into CFATS, approximating H.R. 2868 as passed by the House.  In the Administration’s view, IST requirements should be consistent among industries, with assessment of IST mandatory for all high-risk facilities.  For the highest risk facilities (Tiers 1 and 2 under CFATS), the Administration supports giving the agencies the authority to require implementation of IST “if such methods demonstrably enhance overall security, are determined to be feasible, and, in the case of water sector facilities, consider public health and environmental requirements.” 11

Senator Lautenberg Bill Expected

Senator Frank Lautenberg (D-NJ), Chairman of the Senate Environment and Public Works Committee's Subcommittee on Superfund, Toxics and Environmental Health, has a well established record of proposing legislation to regulate the chemical industry, including chemical facility security bills in the 106th and 109th Congresses,12 and proposals to reform the Toxic Substances Control Act -- most recently the Safe Chemicals Act of 2010, introduced on April 15.13  Soon after the House passed H.R. 2868, Lautenberg announced his intention to introduce a chemical facility security bill that “would create a permanent comprehensive plan to deal with chemical security nationwide.”14  In the past, Lautenberg has been a staunch advocate of mandatory IST, which therefore appears certain to remain at the center of contention as the Senate confronts chemical security in 2010.

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 (2006).
2 Department of Homeland Security Appropriations Act, 2010, § 550, Pub. L. No. 111-83, 123 Stat. 2142, 6 U.S.C. 121 note (2009).
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,” July 9, 2009, available at http://www.bdlaw.com/
news-625.html
; Beveridge & Diamond, P.C., “Chemical Plant Security Legislation Advances with Companion Bill on Drinking Water Utilities,” October 26, 2009, available at http://www.bdlaw.com/news-712.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.
4 H.R. 2868 § 2111.
5 Id. § 2111(b).
6 Id. § 2116.
7 Id. § 2117.
8 156 Cong. Rec. S492 (daily ed. Feb. 4, 2010).
9 Chemical Security: Assessing Progress and Charting a Path Forward Before the S. Comm. on Homeland Security and Governmental Affairs, 111th Cong. (2010).  Statements and archived webcast are available at http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=c5606ab3-bfba-414a-b735-ef35a4adc677.
10 Chemical Security: Assessing Progress and Charting a Path Forward Before the S. Comm. on Homeland Security and Governmental Affairs, 111th Cong. (2010) (statement of Rand Beers, Under Secretary, National Protection and Programs Directorate, Dept. of Homeland Security),
available at http://hsgac.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=c6d95188-01c3-4f64-bfb9-c8b27d8dbcb8.
11 Id.
12 S. 1470, “Chemical Security Act of 1999,” 106th Cong. (1999); S. 2486, “Chemical Security and Safety Act of 2006,” 109th Cong. (2006).
13 S. 3209, 111th Cong. (2010).
14 Press Release, Sen. Frank Lautenberg, On 25th Anniversary of Bhopal Disaster, Lautenberg Highlights Need for Greater Chemical Security (Dec. 3, 2009), available at http://lautenberg.senate.gov/newsroom/record.cfm?id=320411.

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