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Chemical Plant and Water Facility Security Legislation in the Senate

Beveridge & Diamond, P.C., August 18, 2010

Faced with an October 4, 2010 deadline, the Senate is still grappling with legislative authorization for the Department of Homeland Security (“DHS”) program on chemical plant security, the Chemical Facility Anti-Terrorism Standards (“CFATS”).  The original 2006 authorization was for three years, but last year Congress extended the authority for another year while it considered comprehensive legislation.  Since then, the House has passed a bill addressing both chemical plant security and water facility security with a controversial provision requiring use of “inherently safer technology” (“IST”).  The one-year extension expires in October.  The Senate is considering three different approaches:  a Senate counterpart to the House bill, a three-year extension of current authority with minor additional provisions, and a simple one-year extension.

On July 28, 2010, two Senate committees discussed bills to regulate the security of chemical and water treatment facilities.  In a morning mark-up session, the Homeland Security and Government Affairs Committee approved an amended House bill that would reauthorize the existing CFATS program for three years.  In the afternoon, the Environment and Public Works Committee held a hearing to consider proposed security measures for water treatment facilities.  The morning vote brought an apparent shift in momentum away from the approach taken by the House in the fall of 2009, as the Senate Homeland Security and Government Affairs Committee unanimously adopted an amendment that would replace the House’s comprehensive chemical and water facility security program with a simple extension of the current, narrower CFATS program limited to chemical facilities.  The amendment, which has not been published, reportedly would eliminate the controversial provisions authorizing government mandates of IST which were the primary focus of attention in the House. 

This client alert discusses the recent Senate activity in context of the ongoing legislative debate over chemical plant security regulation.

Background

Congress has been debating chemical plant security proposals since soon after the terrorist attacks of September 11, 2001.  The issue most often in dispute has been whether to empower the government to require IST, forcing chemical facilities to change their industrial processes to reduce the potential for releases of hazardous chemicals, or whether instead to rely exclusively on more traditional security concepts.  In 2006, legislators reached a temporary compromise, inserting a brief provision into a DHS appropriations bill that granted authority for three years to DHS to establish CFATS.[1]  The temporary authority enabled DHS to establish the framework of a chemical facility security program, but did not address issues such as IST.

The CFATS program that DHS has developed under this temporary authority requires facilities to report their actual or planned use of any listed “chemicals of interest” at or above certain quantities.  DHS then sorts the facilities into four tiers based on the level of risk they are thought to present.  All facilities in the program are required to prepare security vulnerability assessments for DHS review.  Those that DHS confirms as belonging in the higher-risk tiers then must submit and implement site security plans to address their vulnerabilities.

DHS’s temporary authority was originally set to expire on October 4, 2009, which presented a deadline for Congress to agree on a permanent program.  During the first half of 2009, Congress worked toward the deadline, debating bills to reauthorize CFATS.[2]  Unable to pass permanent legislation by the deadline, Congress extended the CFATS authority by another year to allow the debate to continue into 2010. [3]  

The House Bill

In November 2009, the House passed H.R. 2868, the “Chemical and Water Security Act of 2009.”[4]  As passed by the House, H.R. 2868 would retain the structure and principal elements of CFATS essentially intact, but would also expand the program both in its scope and in many of its substantive authorities.  Most significantly, the House bill would authorize DHS to require chemical facilities deemed to be high-risk to adopt IST under some circumstances. 

During its debate, the House narrowed the IST mandate to the highest risk facilities and restricted DHS’s authority to require implementation only if the proposed IST would not merely shift the risk outside the facility.  The House softened its approach by providing procedural protections to affected facilities, requiring DHS to consider the economic impact of IST, and making DHS’s IST authority discretionary. 

In addition, the House version would provide two avenues for citizens to participate in enforcing the law: (1) citizen suits to challenge DHS’s implementation of CFATS; and (2) citizen petitions, by which any person could effectively compel DHS to investigate any alleged violation of CFATS requirements. 

The version of H.R. 2868 that ultimately passed the House would establish similar security programs for drinking water and wastewater treatment facilities, filling what the Obama Administration has described as a “critical gap” in chemical security regulation.[5]  The water facility programs would be administered by the Environmental Protection Agency (“EPA”) and state environmental agencies, instead of DHS.

The Collins Bill and the Collins Amendment

Sen. Susan Collins (R-ME), a co-author of the 2006 compromise provision that created CFATS and a vocal opponent of mandatory IST, introduced her own CFATS reauthorization bill in February 2010.[6]  The Collins bill, S. 2996, the “Continuing Chemical Facility Antiterrorism Security Act of 2010,” co-sponsored by two Democrats, would extend CFATS for five years with only minor modifications of the program.  It would require DHS and other agencies to establish a voluntary chemical security training program and a voluntary chemical security exercise program.  It did not address the wastewater, drinking water, and port exemptions in the current program that the House bill does address.  Senator Collins has been unable to bring her bill to a vote.

On the other hand, when the Senate Homeland Security and Government Affairs Committee considered H.R. 2868 on July 28, 2010, she successfully proposed an amendment that, in effect, essentially substitutes her bill for the House bill.  The negotiations were not public, and the Committee has not released its report containing the text of the amendment.  According to public statements during the mark-up, the Collins amendment would extend the CFATS authority intact for three years.  It would also include provisions on a voluntary chemical security training program, a chemical security best practices clearinghouse, and a private sector advisory board.  The Committee voted 13 to 0 to approve the amended version of H.R. 2868.  Committee Chairman Joseph Lieberman (I-CT) praised the unanimity of the vote, but acknowledged that disagreements remained on key issues, and voiced his hope that the full Senate would revisit the issue of IST and coverage of water facilities when it considers H.R. 2868.[7]  

The Lautenberg Bills

Four hours after the mark-up of H.R. 2868 on July 28, Sen. Frank Lautenberg (D-NJ) presided over a hearing of the Environment and Public Works Committee to take up the matter of security regulations for water treatment facilities.[8]  The hearing was officially concerned with oversight of water facility security, but was scheduled soon after Lautenberg’s introduction of two bills, S. 3598 and S. 3599, that would create permanent security regulations for water and chemical facilities, respectively.[9]  Lautenberg’s bills closely resemble the major divisions of the House version of H.R. 2868, including mandatory IST provisions for both sets of facilities, and would effectively reinstate the House version of H.R. 2868.

The bulk of the hearing focused on the advisability of requiring IST for water facilities, but the tone was generally conciliatory in that both witnesses and senators on either side of the issue acknowledged the potential legitimacy of the opposing view.  Much of the testimony was devoted to presentations of practical alternatives to storage of chlorine gas, the principal “chemical of concern” in use at many water treatment facilities.

At the hearing Cynthia Dougherty, Director of EPA’s Office of Ground Water and Drinking Water, presented the Obama Administration’s guiding principles for the reauthorization of CFATS and the creation of a related program for water utilities.[10]  First, the Administration supports permanent chemical facility security legislation.  Second, “CFATS reauthorization presents an opportunity to promote the consideration and adoption of inherently safer technologies (IST) among high risk chemical facilities.” Third, the process should “close the existing security gap for wastewater and drinking water treatment facilities by addressing the statutory exemption of these facilities.”

The DHS Appropriations Bill

Senator Lautenberg has also introduced a bill that would address the upcoming expiration of CFATS authority by extending that authority for another year.  Introduced July l9, 2010, the DHS appropriations bill, S. 3607, would simply extend current authority until October 4, 2011.

Facing the October Deadline

Once it returns from the August recess, the full Senate may take up the amended version of H.R. 2868.  It may consider amendments to address security at water facilities; it may restore the IST provisions of the House bill; but with the current CFATS authorization due to expire on October 4, 2010, a simple extension may prove once again to be the most expedient solution to chemical plant security.

For further information on these legislative developments, please contact Mark Duvall, mduvall@bdlaw.com, or Russell Fraker, 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] 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.

[3] Department of Homeland Security Appropriations Act, 2010, Pub. L. No 111-83, § 550 (2009).

[4] For a more complete account of the major 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.

[5] Chemical Security: Assessing Progress and Charting a Path Forward Before the S. Comm. on Homeland Security and Governmental Affairs, 111th Cong. (2010) (statement of Peter S. Silva, Asst. Admin. For Water, U.S. Envt’l Protection Agency), available at http://hsgac.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=c6d95188-01c3-4f64-bfb9-c8b27d8dbcb8.

[6] 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

[7] Press Release, Homeland Security & Government Affairs Committee, Lieberman Says IST Should Be Included in Chemical Security Bill (July 28, 2010), available at http://hsgac.senate.gov/public/index.cfm?FuseAction=Press.MajorityNews&ContentRecord_id=42e8bd74-5056-8059-76df-026238ddfab7&Region_id=&Issue_id=

[8] Protecting America’s Water Treatment Facilities Before the S. Comm. on Environment and Public Works, 111th Cong. (2009), available at http://epw.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&
Hearing_ID=ff9bc763-802a-23ad-4837-1524c43831fd
.

[9] S. 3598, the “Secure Water Facilities Act,” and S. 3599, the “Secure Chemical Facilities Act.”

[10] Supra, note 8. (statement of Cynthia C. Dougherty, Director, Office of Ground Water and Drinking Water, EPA).  

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