Chemical Industry News

On June 23, 2009, the House Homeland Security Committee (HLS Committee) reported H.R. 2868, the Chemical Facility Anti-Terrorism Act of 2009 (CFATS). After considering a number of amendments to the bill in a markup that took place over several days, the Committee voted along party lines to favorably report the bill. Despite the length of the markup, the Committee made only minor alterations to the legislative language introduced by sponsor Rep. Bennie Thompson (D-MS) (who chairs the House Homeland Security Committee) and cosponsors Rep. Shelia Jackson Lee (D-TX), Rep. Henry Waxman (D-CA) and Rep. Ed Markey (D-MA).

This bill would permanently reauthorize CFATS beyond the October 4, 2009 sunset date established in Section 550 of the Department of Homeland Security Appropriations Act, 2007, the legislation that instructed the Department of Homeland security (DHS) to create the CFATS program. The legislation maintains all of the basic elements of the existing CFATS program, plus adds other significant provisions.

Like the existing CFATS regulations, Rep. Thompson's bill directs the DHS Secretary to assign covered chemical facilities to one of four, risk-based tiers (Tier 1 for the highest risk facilities, Tier 4 for the least risk) and requires chemical facilities to meet a number of obligations. Under H.R. 2868, covered facilities must submit security vulnerability assessments and site security plans to the Secretary every five years. Other requirements include providing employees with at least eight hours of security training annually. Based on the site vulnerability assessments and security plans, the Secretary will promulgate risk-based security performance standards for covered facilities. As with the current CFATS, H.R. 2868 instructs the Secretary to make the performance standards increasingly more stringent for each tier of covered facilities. H.R. 2868 also addresses what Chairman Thompson and others see as shortcomings in the current CFATS regime. The bill includes the following new provisions:

  • Stronger protection of whistleblowers who report security deficiencies or vulnerabilities at covered facilities;
  • Language allowing the DHS Secretary to require a Tier 1 or Tier 2 facility to change manufacturing or chemical handling processes or use less dangerous chemicals in the manufacturing process if the Secretary determines such measures would enhance site security (sometimes called Inherently Safer Technology (IST);
  • Incorporate drinking water plants and wastewater facilities (previously only under Environmental Protection Agency jurisdiction), and port terminals (which are currently covered by the Maritime Transportation Safety Act of 2002 and Coast Guard regulations); and
  • Adding a provision allowing citizens to sue companies directly for violations of the statute, commonly known as a citizen suit provision.

The IST and citizen suit provisions are the most controversial in the Thompson bill. The HLS Committee held a hearing on the measure on June 16. At this hearing, Republicans criticized the provisions allowing the Secretary to mandate changes to manufacturing processes or the substitution of chemicals (IST) and the citizen suit provision. During the markup, Republicans offered a number of amendments on these two provisions.

The Committee rejected three Republican amendments intended to remove or weaken the citizen suit provision, which allows the filing of civil lawsuits against facilities that violate chemical security regulations or DHS for failing to enforce the regulations, even if the party filing the suit has not been injured.

Republicans did, however, successfully compel the Committee to adopt two amendments from Rep. Charlie Dent (R-PA) modifying the Secretary's ability to order the use of alternative chemicals or manufacturing methods. One Dent amendment would require the Secretary to report to Congress on the effects of chemical substitution or changing manufacturing processes before ordering facilities to comply. The other Dent amendment prevents the Secretary from mandating changes that would reduce production or the workforce.

Other changes to the original bill include the addition of grants for workforce training.

The bill now moves to the House Energy and Commerce Committee for consideration. Energy and Commerce plans to consider the bill as introduced in the near term. H.R. 2868 is expected to receive the approval of the Energy and Commerce Committee because Chairman Henry Waxman is an original co-sponsor. Any differences between the two Committee bills will likely be resolved before the bill goes to the House floor for final consideration.

Congresswoman Jackson Lee (d-tx) told reporters after the markup that she is optimistic the bill can reach the House floor before the existing CFATS program sunsets in October. However, prospects for final passage of a bill and enactment into law this year remain uncertain—and unlikely. To date, a companion bill has not yet been introduced in the Senate. Also, the bill lacks the clear support of the Obama Administration. During the June 16 hearing, Philip Reitinger, the newly confirmed Deputy Under Secretary for the National Protection & Programs Directorate, testified that the Administration preferred having a straight one-year extension of the current CFATS legislation and to work with Congress over that time on a reauthorization bill. Notwithstanding the possibility that the bill may not pass, and that a one-year reauthorization bill will, the controversial provisions are likely to be included as amendments in a CFATS reauthorization in the next Congress.

We will keep you posted as the bill moves through the House Energy Committee.

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