U.S. House Passes Controversial Chemical Security Legislation

Last Friday, the U.S. House of Representatives passed H.R. 2868, the Chemical and Water Security Act of 2009, by a vote of 230-193. This bill reauthorizes the Department of Homeland Security's (DHS) program to implement and enforce the Chemical Facility Anti-Terrorism Standards (CFATS), which are currently set to expire in October 2010, and improves these standards in a number of ways. It also requires the Environmental Protection Agency (EPA) to establish parallel security programs for drinking water and wastewater facilities. Rep. Bennie G. Thompson (D-Miss.), chairman of the House Committee on Homeland Security and lead sponsor of the legislation, released the following statement upon passage:

"In the wake of the September 11th attacks, security experts immediately identified the threat of an attack on a chemical facility as one of the greatest security vulnerabilities facing the Nation," said Thompson. "After 4 years of hard work, this Congress finally got the opportunity to consider and pass this landmark homeland security bill. Passage of this legislation demonstrates the progress we make with a transparent process that is open to diverse viewpoints," Thompson stated. "We can now ensure that this vital industry, and the population that lives around these facilities, are secure," said Thompson.

H.R. 2868:

• Authorizes reasonable, risk-based security standards for chemical security.
• Closes a major security gap identified by both the Bush and Obama Administrations by establishing a security program for drinking water and waster water facilities.
• Requires all tiered facilities to assess "methods to reduce the consequences of a terrorist attack." Plants that voluntarily perform these assessments, which are sometimes called "IST" assessments, often find that good security equals good business.
• Strengthens CFATS by adding enforcement tools, protecting the rights of whistleblowers, and enhancing training security.

Still, a key Senate Republican has criticized House Democrats seeking to fundamentally rewrite chemical facility security legislation with "safer technology" language and plans to introduce her own bill to reauthorize the current law.

Sen. Susan Collins (R-Maine), ranking member of the Senate Homeland Security and Governmental Affairs Committee, told reporters she hopes to introduce a bill with Chairman Joe Lieberman (I-Conn.) to reauthorize the current Chemical Facility Anti-Terrorism Standards because the Department of Homeland Security has been successfully moving forward with carrying out the requirements in that bill, which Collins helped author.

"I think the department has done a very good job of implementing the new law, establishing the tiers and evaluating the risk and vulnerabilities of chemical facilities and setting standards, and I think we should build on that success," Collins said.

Her comments came on the eve of a House vote on a bill that would reauthorize the current law and give DHS significant new authority to oversee security. That bill, H.R. 2868, includes language to require that facilities assess methods to reduce the consequences of a terrorist attack, including whether they are cost-feasible and would actually reduce risk. Those facilities that DHS designates as the highest risk would be required to implement those changes if feasible.

Collins said she does not plan to include that provision about "inherently safer technologies," or IST, in her reauthorization bill.

"The House bill takes a different direction. It would change the law to require inherently safer technology to be used, which was specifically rejected when we wrote the law in 2006," Collins said. "That would not be part of my bill."

The safer technologies provision has raised the ire of House Republicans and industry groups, who have also pushed for a straightforward permanent reauthorization of the current law, rather than the introduction of new requirements.

"If the IST mandate and assessments are put in place for the nation's agricultural industry, they could well jeopardize the availability of widely used, lower-cost sources of essential plant nutrient products or certain agricultural pesticides used by farmers and ranchers," a coalition of agriculture groups wrote in a letter to Congress yesterday. "IST is not a security-based concept and we believe an important distinction must be made between safety and security."

But House Democrats and environmentalists argue the safer technologies language is a critical component of the bill and only applies in cases where the switch would be cost-effective and feasible.