Sunday, March 9, 2008

Chemical Facility Anti-Terrorism Act of 2008 Draft Complete

As I mentioned in a brief blog last week (see: “House Committee Hearing – Markup of CFATA of 2008) the House Homeland Security Committee met last week to finish their mark-up of Chemical Facility Anti-Terrorism Act of 2008. At this meeting some final changes were made before the draft legislation was approved. The committee staff will polish the draft before it is officially submitted, probably this coming week.


Since the committee was working off the most current ‘committee print’ of the bill it is difficult to tell what changes were actually made. The latest version of this document available to the public comes from the January subcommittee markup meeting (see: “Chemical Facility Anti-Terrorism Act of 2008 Markup”). The version used in this committee markup was obviously a different version.


Chairman Thompson, in his prepared testimony, explained that the purpose of the proposed legislation is to “to extend and strengthen the Department of Homeland Security’s authority to regulate chemical security.” He further explained:


“Together, we have managed to work through some very complicated issues including: State preemption, assessments for inherently safer technologies, and how to help water and wastewater facilities as we bring them under the chemical security law.”


WaterTreatment Facilities


Getting rid of the Section 550 exemption for water treatment facilities was an important part of this proposed bill. When Congress gave DHS the authority to regulate high-risk chemical facilities in the 2007 spending bill, it specifically exempted water treatment and waste water treatment facilities from that regulation, assuming that the EPA regulation of those facilities would be adequate. Comparing the EPA security rules to the DHS rules made it apparent that additional regulation was needed.


One of the revisions the committee made this week was to the enforcement of the new rules. One of the enforcement provisions of both the current regulation and the proposed regulations give the DHS Secretary the authority to close non-conforming high-risk chemical facilities. The committee made it clear (Amendment #1) that this sanction should not be used on water treatment facilities “unless the Secretary determined that continued operation of the facility represents a clear and present danger to homeland security.”


Wait for the Actual Bill


We are going to have to wait until the bill is actually submitted to see what all of the details will be. In general we know that there will be a clearer statement of how state laws may exceed federal security requirements, there will be a requirement for assessing inherently safer technology as part of a facility’s security plan, and there will be regulations of water treatment facilities.


There is still a significant way to go before this proposed bill becomes law. SOCMA, an industry group, has already come out against the IST provisions. Other special interest groups will find other provisions to object to; with some groups objecting that the bill does not go far enough. Since the current authority for chemical facility regulations does not run out until October 2009, there will be little urgency to getting this legislation passed; especially considering that 2008 is an election year.

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