CHEMICAL SECURITY:

Bill to reauthorize DHS program passes out of subpanel

Legislation that would extend a Homeland Security Department program for securing the nation's chemical facilities from terrorist attacks moved one step closer to the House floor yesterday when it cleared a House Homeland Security Committee subpanel.

In a straight party line vote, the six Republicans on the Cybersecurity, Infrastructure Protection and Security Technologies Subcommittee sent legislation from that committee's chairman, Rep. Dan Lungren (R-Calif.), on to the full Homeland Security Committee.

All four Democrats on the subpanel opposed the legislation, which seeks to reauthorize DHS's Chemical Facility Anti-Terrorism Standards (CFATS) program.

Lungren's bill (H.R. 901) reauthorizes the program -- which was established four years ago and is set to expire this year -- for seven years. It seeks to make the program more permanent and move CFATS from the general appropriations funding track to falling under the Homeland Security Act of 2002. That would also give Lungren's Homeland Security subpanel primary oversight jurisdiction over the program.

In his open statement, Lungren said that while it is not perfect, CFATS has been successful and needs to be reauthorized.

"Although implementation has been slower than Congress wanted, CFATS is working," he said. "It is building a foundation of security in the chemical industry, which will protect our citizens and our economy from future terror attacks. Is it perfect? No. Are there gaps? Probably. But our priority should be to extend this working chemical security program and not allow the perfect plan to be the enemy of the good."

As evidence of how effective CFATS has been, Lungren noted that DHS has reviewed information from 39,000 chemical facilities and has determined that more than 4,755 are high risk and need to develop detailed security plans.

Democrats expressed their displeasure with the legislation. Subcommittee ranking member Yvette Clarke (D-N.Y) said she was "a little disappointed" that Republicans drafted the bill without consulting Democrats.

Specifically, Clarke took issue with the bill for not closing what she called a "loophole" in the original authorizing legislation that exempted water and wastewater facilities from the CFATS program -- a frequent criticism among Democrats (E&E Daily, April 1).

Clarke noted that Homeland Security secretaries from both the Obama and George W. Bush administrations have said that loophole should be closed and "this bill shirks that critical responsibility."

Lungen responded that while he does "want to close the gaps," his priority is getting the reauthorization to the president's desk without running "the risk of slowing this legislation down."

"I am still concerned about the water gaps," Lungren said to Clarke. "I would pledge to you that we'll have specific hearings on that question."

Democrats offered three amendments to the legislation, all of which were defeated in party-line votes. Clarke's amendment would have included water and wastewater facilities under the CFATS program. Rep. Cedric Richmond's (D-La.) amendment would have required the participation of employees at chemical facilities in developing security plans.

And Rep. Laura Richardson (D-Calif.) offered an amendment that would mandate that chemical companies engage in safety reviews. The one-line legislation opened the possibility of an Inherently Safer Technology (IST) mandate, which would require chemical facilities to assess whether switching to alternative, less toxic chemicals would reduce the potential impact of a terrorist attack.

Lungren picked up on the potential IST language and noted his opposition to such a mandate. "Those who analyzed and came up with the idea of IST are the first to testify that it is not something that should be put into" legislation, he said.

An IST mandate has been widely criticized by industry as a costly and overly burdensome regulation (E&E Daily, April 6). Chemical watchdogs, on the other hand, say the requirement is a necessary for securing chemical facilities and point to legislation from Sen. Frank Lautenberg (D-N.J.) that includes such a mandate (E&E Daily, April 1).

In the last Congress, the Democratic majority in the House passed legislation that would have included water and wastewater facilities as well an IST mandate. That bill never made it through the Senate, however (E&ENews PM, Nov. 6, 2009).

The full Homeland Security Committee has yet to schedule when it will take up Lungren's bill.

Jurisdiction fight?

Because Lungren's legislation would likely give his committee primary jurisdiction over the CFATS program, the House Energy and Commerce Committee -- which currently oversees the program -- introduced similar but competing legislation.

That bill (H.R. 908), offered by Reps. Tim Murphy (R-Pa.) and Gene Green (D-Texas), would reauthorize the CFATS program through 2017 largely as it exists now (E&E Daily, March 9).

In an interview with E&E Daily, however, Murphy said the two bills would be reconciled and that he was willing to consider aspects of Lungren's legislation.

"We'll work something out in the long run between the bills," Murphy said. "As far as which committee has jurisdiction, we'll work that out. Ours does give a lot of certainty and we'll move forward on that. But we'll take a look at his as well."