BNA Reports: House Passes Bill to Strengthen Security Of Chemical Facilities, Water

By Linda Roeder

The House of Representatives passed legislation Nov. 6 that would expand the Department of Homeland Security's authority to regulate chemical facilities and add security coverage for drinking water and wastewater treatment plants under the Environmental Protection Agency's authority.

The 230-193 vote on the Chemical and Water Security Act of 2009 (H.R. 2868) followed the defeat of several amendments intended to weaken the measure. They included amendments that would have eliminated the "inherently safer technology" provision, deleted the citizen lawsuit provision, and barred states from passing stricter legislation (312 DEN A-13, 11/6/09).  Inherently Safer Technology.  Under H.R. 2868, facilities that handle chemicals would have to take action to reduce the consequences of a terrorist attack, such as using different chemicals or changing to safer processes for their operations--so-called inherently safer technology.

Under this provision, the most contested language in the bill, facilities would have to assess feasible alternative processes or chemicals that could limit the consequences of a terrorist attack.  Facilities in the top two of four risk-based tiers could be required to implement the inherently safer technology if it is technically feasible; it is cost-effective, including consideration of whether the facility can continue to operate in its current location; and it lowers the risk at the facility while not shifting it to other facilities or locations elsewhere in the supply chain.

Amendments Defeated.

An amendment offered by Rep. Charles Dent (R-Pa.), which would have removed the provision, was voted down 193-236. Another Dent amendment, defeated 186-241, would have extended the current chemical security law through October 2012.

Representatives also voted against an amendment, 165-262, offered by Rep. Joe Barton (R-Texas) that would have allowed federal chemical security regulations to preempt state and local laws that "hinder, pose obstacles to, or frustrate the purpose of the federal program."

An amendment offered by Rep. Michael McCaul (R-Texas) to strike the citizen enforcement section of the bill was defeated 196-232. The bill would allow citizen suits against the Department of Homeland Security for failing to enforce the law, but unlike an earlier bill version, it does not provide for citizen suits against chemical facilities.

Amendments Approved.

The House approved five amendments by voice vote. One, offered by Rep. Alcee Hastings (D-Fla.), would establish a point of contact within the DHS Office of Chemical Facility Security responsible for interagency coordination. Another amendment, offered by Rep. Kurt Schrader (D-Ore.), would require DHS to conduct a study on the scope and potential impacts of provisions that require inherently safer technology on manufacturers or retailers of pesticide or fertilizer.

An amendment offered by Rep. Debbie Halvorson (D-Ill.) would permit DHS to provide guidance, tools, or software to small chemical facilities to help them comply with security requirements.  Rep. Bennie Thompson (D-Miss.), chairman of the Homeland Security Committee and the bill's sponsor, said in a statement following the vote, "In the wake of the September 11 attacks, security experts immediately identified the threat of an attack on a chemical facility as one of the greatest security vulnerabilities facing the nation.

"After four years of hard work, this Congress finally got the opportunity to consider and pass this landmark homeland security bill."  New overage.  Current chemical facility antiterrorism standards, which do not include drinking water or wastewater treatment facilities, are scheduled to expire in October 2010.

The current law exempts port facilities from the DHS standards, an exemption that the House bill would eliminate.  H.R. 2868 also would involve plant employees in the development of security plans and would provide protections for whistleblowers.

The advocacy organization Greenpeace, which has campaigned vigorously for passage of the bill, praised the House passage, saying this is the first time either house of Congress has approved permanent and comprehensive chemical security legislation. "Although it's a compromise, this bill represents a historic first step toward protecting the 100 million Americans living in the shadow of high-risk chemical plants, said Rick Hind, Greenpeace legislative director, in a statement. "The day after a terrorist attack at a chemical plant kills thousands of Americans, any suggestion that we should not require the use of safer chemicals at these plants will be considered totally crazy."

Lukewarm Praise From Chemistry Council.

Following the vote, the American Chemistry Council said the measure is "an important step toward building upon the ongoing success of the Chemical Facility Antiterrorism Standards by making them permanent" but criticized the clause on inherently safer technology.

"While ACC is unable to endorse the bill due primarily to concerns over the potential impact of the authority granted to DHS to mandate the implementation of IST, we appreciate the efforts by both the House Energy and Commerce and Homeland Security committees to seek our input to improve the legislation.  "Specifically, we were encouraged by changes that ensure proper protections for sensitive information and a civil lawsuit provision that bolsters oversight while still protecting private companies from frivolous lawsuits."

Title I of the bill, which addresses chemical facilities, would authorize $900 million for the DHS chemical facility antiterrorism standard program from 2011 through 2013. Title II, which addresses drinking water, would require EPA to establish risk-based performance standards for community water systems serving more than 3,300 people. Title II would authorize $315 million during this period.

Title III would authorize $1 billion over five years in federal grants for publicly owned sewage treatment facilities to conduct security vulnerability assessments, develop site security plans, and implement security enhancements.  The Senate has not yet taken up a version of the legislation.