Congressional Agenda and CFATS

There is an interesting article on GovExec.com about the general Congressional agenda for the remainder of the year. It looks at the major actions that the Obama Administration and the Democratic leadership hope to get passed this year. From the point of view of this blog, there is an interesting topic missing, HR 2868, the Chemical Facility Anti-Terrorism Act of 2009. It is easy for those of us in the chemical security community to loose track of the uncomfortable fact that the reauthorization of the Chemical Facility Anti-Terrorism Standards is not a major political issue as far as the President, the Speaker, or the Majority Leader are concerned. Because of the current economic problems and higher priority agenda items, it is becoming less certain with every passing week that a comprehensive chemical facility security bill can pass this year. The Negatives Early this Spring Obama’s commitment to “work with all stakeholders to enact permanent federal chemical security regulations” disappeared from the White House web site. The appearance of a one paragraph extension of CFATS in the Department of Homeland Security budget request made it apparent that the President was putting this issue on next year’s list of priorities. This was confirmed by DHS testimony before the House Homeland Security Committee. While Chairmen Waxman and Thompson worked out the different views of their Committees on how to address chemical security at water treatment facilities, Speaker Pelosi has remained silent on CFATS reauthorization. Chairman Waxman’s commitment to HR 2868 is becoming less clear; his House Energy and Commerce Committee has yet to schedule a single hearing to look at regulating security of chemicals at water treatment facilities. Even Chairman Thomson’s staff may realize the chances of passage are slim; they removed reference to Title II (for water treatment facility security) from the April draft of HR 2868. And don’t forget that the HR 2868 committee report has yet to be filed. Finally, the Senate is studiously ignoring the issue completely. The Homeland Security Committee has not addressed chemical facility security since passing the current CFATS authorization in 2006. Certainly, no chemical facility security legislation has been introduced in the Senate in the last two years; the memories of the 2006 IST fight are still painful. Senator Reid has taken the same hands-off tact taken by Congresswoman Pelosi. The Potential There is still the possibility of passing HR 2868 during this session of the 111th Congress. CFATA is not anywhere near as complex as the Economic Stimulus Package, Cap and Trade, or Health Care. While IST and Citizen Suits are controversial, they are not hot button issues on par with Government health insurance, the automotive bailout, or global warming. If Waxman’s committee can get a reasonable wording crafted for chemical security at water treatment plants in the next couple of weeks, this bill could get to the floor of the House before the August recess. If the opposition of Dent and King to the bill could be reduced by some minor changes to the IST and law suit provisions, the floor debate might be controllable enough for this bill not to interfere with the other priorities of the Democratic Leadership. That would allow this bill to come to a vote. If the Speaker were to fear that a fight over this bill would derail consideration of higher priority agenda items before the recess, this bill will have very little chance to come to a floor vote. Pelosi will not allow this bill to upset the progress on more important (to her) bills, especially since a one year extension will certainly pass with the Homeland Security Appropriations bill. Passage in the Senate late in the session (after higher priorities are dealt with) may be more problematic, but a lot of will hinge on how the chemical industry deals with this bill. They have raised some legitimate concerns about the IST provision, but their political advisors need to remind the business people that further delays only favor increased anti-chemical rhetoric. Next Year Could be Worse for Industry This year’s HR 2868 added Citizen Suits and much more complicated preemption language (which has been ignored during the debate so far) favoring State and local security rules to the language found in last year’s HR 5577. Next year’s bill will have even more objectionable (from the industry’s point of view) provisions, perhaps adapting the language from HR 261 requiring the Secretary to take into account State and local security provisions when approving site security plans. Another possible addition would be the inclusion of Local Emergency Planning Committees in the security planning process. Further complicating next year’s bill will be how well industry and DHS can work out approval of site security plans under the current rules. If industry fights with DHS over implementation of the risk-based performance standards, there will be an administration backed move to specifically remove the restrictions on what security measures the Secretary can mandate. Industry reluctance to use armed security guards at higher-risk facilities is one potential point of conflict with DHS. All sides are going to have to work together to get comprehensive chemical security legislation passed this year. There are problems with the current CFATS authorization that need to be resolved. The rules need to apply to all high-risk chemical facilities so that all communities are protected.