House bills set up potential jurisdiction fight

In an unexpected twist, two House committees may find themselves in a jurisdiction fight over dueling bills to reauthorize the country's program to secure chemical facilities against terrorist attacks and thefts.

Members of both the House Homeland Security Committee and House Energy and Commerce Committee introduced legislation last week to reauthorize the Department of Homeland Security's Chemical Facility Anti-Terrorism Standards (CFATS) program, which requires chemical companies to develop and implement specific security plans for their facilities.

In addition to those two bills, Pennsylvania Rep. Charlie Dent (R) also introduced standalone legislation.

The multiple bills surprised some observers, who expected a straightforward process for reauthorizing the program, which was launched four years ago and will expire on March 18.

The Homeland Security Committee legislation (H.R. 901) was introduced by Cybersecurity, Infrastructure, Protection and Security Technologies Subcommittee Chairman Dan Lungren (R-Calif.) and is more substantial than the Energy and Commerce bill. It has seven Republican co-sponsors and would reauthorize the program largely as it exists now for seven years.


Significantly, Lungren's bill also moves the program from being on the general appropriations track to falling under the Homeland Security Act of 2002. That would align the CFATS program with the other programs under DHS's authority and would likely result in the direct oversight and funding of the program falling to the House and Senate Homeland Security committees.

That, according to multiple House aides, would effectively strip the Energy and Commerce Committee of its existing leading jurisdiction over the program.

Lungren said he did not insert the language because of a jurisdiction issue but rather because he thought it made for more sound policy.

"I just thought it made good sense from a standpoint of good legislation," he said in an interview. "If you're going to do it, you ought to do it right. And it ought to be in the Homeland Security Act."

Lungren's bill, like the other bills, does not impose any significant new requirements on chemical facilities.

The Energy and Commerce legislation (H.R. 908) touts bipartisan support as it was introduced by Republican Tim Murphy of Pennsylvania and Democrat Gene Green of Texas. The legislation is one paragraph long and simply calls for reauthorizing the CFATS program for six years through 2017.

"Under CFATS, our chemical plants and refineries have made significant advancements in keeping our communities safe," Murphy said in a statement. "And with the extension of the CFATS model, will continue doing so for consumers and industry."

A Republican aide to the Energy and Commerce Committee said Lungren's bill would not entirely strip the committee of jurisdiction over CFATS. It would, however, give the Homeland Security Committee a significant jurisdictional advantage.

"They would have to bless anything we do but we don't have to bless what they do in order for amendments to go to the floor," the aide said.

The Lungren bill, the aide added, would also "make us secondary on a program we have held as our own from the start." The Energy and Commerce Committee has had a long history of introducing CFATS legislation, dating back to the original language inserted into the 2007 appropriations bill.

The aide also touted the bipartisan support for the bill.

"Our members and staff have been involved with this issue from the beginning," the aide said. "The Murphy-Green bill is merely a continuation of that work. The fact that it's bipartisan reflects the tradition of this Committee taking full responsibility for the issues assigned to us by the House."

Other observers noted that the Murphy-Green bill may be a placeholder for amendments that will be offered down the road. Those could include Democrats seeking to add water and wastewater facilities under the CFATS program, which would fall under the Energy and Commerce Committee's jurisdiction and represent mandates that Democrats have long tried to implement.

Dent's bill (H.R. 916) is largely the same as Lungren's, though it only extends the CFATS program for five years. Dent's office indicated that if the Lungren bill gains momentum, he would be open to co-sponsoring it instead. Dent does not serve on either Homeland Security or Energy and Commerce -- though he is on the Homeland Security Appropriations Subcommittee.

Industry support

Industry groups appear to support both bills so far. Bill Allmond, the Society of Chemical Manufacturers and Affiliates vice president for government relations, said they are both steps in the right direction.

"We're going to end up supporting both bills," Allmond said. "We would like to see more permanent CFATS reauthorization language but we understand why they put a date on it."

Allmond also praised the Murphy-Green bill for being bipartisan.

"For the first time ever, this bill has bipartisan support," he said. "We are quite thrilled that Democrats and Republicans were able to come together and introduce a bill."

Scott Jensen, a spokesman for the American Chemistry Council, echoed Allmond's sentiment.

"We're agnostic," he said when asked which bill he preferred. "For us, the main thing is that we want to see the program be reauthorized and we want to see the program made permanent."

Criticism from the left

Even though the Energy and Commerce bill has a Democratic co-sponsor, it is unclear how much Democratic support either bill will receive. In 2009, the Democratic-controlled House passed legislation that added water and wastewater facilities to the CFATS program. It also included an Inherently Safer Technology (IST) mandate, which would require chemical facilities to use less toxic alternative chemicals (E&ENews PM, Nov. 6, 2009).

Environmental groups have long pressed for those mandates, as well as shifting the burden of responsibility and cost for the security programs more directly to the chemical companies themselves.

Rick Hind, the legislative director of Greenpeace, said the Republican House bills fall far short.

The bills, he said, "are an attempt to create the illusion of forward movement when in fact their bills will continue the freeze on chemical disaster prevention that they imposed in 2006."

He added, "These bills are belated Valentines to the chemical industry and are an irresponsible distraction from a long overdue comprehensive security program. This legislation fails to require any disaster prevention at the highest risk chemical plants and continues to exempt hundreds of hazardous refineries and water treatment plants."

Paul Orum, a chemical security consultant for liberal advocacy groups, was equally unimpressed.

"I don't know of any serious analysis that merely extending CFATS has any chance of keeping terrorists away from chemicals," Orum said.

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