By Claire Moser
August 10, 2009

The House Committee on Judiciary on July 31 granted an extension for further consideration of the Chemical Facilities Anti-Terrorism Act, H.R. 2868, following a postponed mark-up of the bill by the Energy and Commerce Committee the week before. The extension gives the committee until September 30 to make adjustments in the bill, just before the Chemical Facility Anti-Terrorism Security Act of 2006 (CFATS) expires this October. The House Committee on Homeland Security already marked up and passed the bill (18-11) on June 23.

Sponsored by Representative Bennie Thompson (MS), Chair of the Committee on Homeland Security, H.R. 2868 would amend the Homeland Security Act of 2002 to give the Department of Homeland Security permanent authority to manage high-risk facilities. The department would be authorized to create a list of “substances of concern” to determine which facilities manufacturing those substances are at high risk for terrorist attack and require action to reduce the risk if appropriate. The bill also allows state governments to implement their own chemical security regulations as long as they expand on or exceed the federal rules. Along with chemical security, there is some “safer technology” language requiring that facilities assess methods to reduce the impacts of a terrorist attack, whether they are cost effective, and reduce risk. Facilities with the highest risk would be required to implement appropriate changes to safeguard the public.

Before its reintroduction in June, the bill had been stalled for months by debate over which congressional panel and which federal agency (EPA or Homeland Security) should have oversight. A compromise was reached with a separate bill giving the EPA regulatory control over drinking water facilities (the Drinking Water System Security Act of 2009 – introduced July 20) and control over wastewater facilities to the Department of Homeland Security. Jurisdiction over the bill was given to both the Energy and Commerce and Homeland Security Committees.

Opposition to the bill, during the June mark-up in the House Committee of Homeland Security, focused on whether the Secretary of the Department of Homeland Security should be able to determine which technologies a facility should implement. Concern focused on the possibility that the secretary could force impractical technologies onto facilities, possibly forcing them out of business, and a provision in the bill allowing third parties to sue either facilities or the Department of Homeland Security if the regulations are not met. However, supporters of the bill are eager see it pass arguing that the current law has shortcomings including, oversight of some major water facilities.

The current chemical security regulations that are set to expire, the Chemical Facility Anti-Terrorism Security Act of 2006, exempts water utilities from having to undertake the same security measures as chemical manufacturing facilities. At its 76th Annual Meeting in Miami in 2008, The U.S. Conference of Mayors adopted a resolution urging Congress to retain the water utility exemption in any new chemical facility legislation. Water utilities have already completed vulnerability assessment and emergency response plans with minimal federal assistance and most have filed these plans with the EPA. Water utilities are also subject to regulation under the Clean Air Act, to emergency provisions under the Emergency Planning and Community Right to Know Act, and additional state and local standards for safe storage and handling of potentially dangerous chemicals. In addition, regulatory directives that could lead to the shutting down of water utility or treatment plant could lead to serious local sanitation, public health and safety issues.