Saturday, June 14, 2008

House Subcommittee Hearing on HR 5533 and HR 5577

On Thursday the House Subcommittee on Environment and Hazardous Materials held its first hearing on the two alternative pieces of legislation making their way through the House that would make permanent the CFATS regulations. HR 5533 would essentially keep the current regulations almost completely intact. HR 5577 would keep most of the regulation intact, but would make substantial changes in selected areas.


The House Homeland Security Committee has already conducted extensive hearings about HR 5577 and submitted a very detailed committee report, House Report 110-550. The delays in the conduct of this initial hearing before the House Committee on Energy and Commerce, brought about by the resignation of the subcommittee chair, have seriously impeded the process of getting any reauthorization legislation passed this year.


The delay has done little to provide much in the way of new information for this subcommittee to consider. Three areas in the testimony do bear some mention;


  • A progress report on CFATS implementation,
  • The debate on the water facility exemption under the Section 550 authorization, and
  • A detailed assessment of inherently safer technology (IST) at one water treatment plant that leads to the conclusion that chlorine is safer for that facility.


CFATS Update


 Robert B. Stephan, Assistant Secretary, Infrastructure Protection provided a quick overviewof the implementation of CFATS to date. An interesting new piece of information was included in that review. DHS has notified the Phase I facilities (those 90 or so facilities that were specifically notified to complete Top Screens last summer before Appendix A was approved) that were determined to be at high-risk for terrorist attack of that status. In his words:


  • “A number of Phase 1 facilities initially determined to be high-risk received written notification from the Department in March 2008, informing them of the Department’s determination and instructing these facilities of the requirement to complete a SVA for departmental review. The Department will offer technical assistance to those Phase 1 high-risk facilities as they conduct the SVA process, which will be due for those select Phase 1 facilities just a few weeks from today’s hearing.”


This is the same tact that DHS used with these facilities last summer. These unnamed facilities were identified as probably being high-risk facilities from publicly available information. They were then used as regulatory guinea pigs to work out the bugs in the Top Screen process. They are now apparently being used in the same way for the SVA process.


Col. Stephan also noted that the Phase II facilities (those that completed the Top Screen late last year after the publication of Appendix A) determined to be high-risk facilities “will soon receive preliminary tiering decisions and instructions on how, and by when, to complete SVAs”.


The Water Facility Exemption


One of the controversial provisions of HR 5577 is the repeal of the water treatment facility exemption from CFATS regulations. Committee Chairman Dingell makes note of this in his statement:


  • “The Environmental Protection Agency (EPA) has unique expertise with water security as the President has recognized in making the agency the lead Federal agency for protecting critical infrastructure relating to water security. I see no reason to change this assignment of responsibilities.”


Benjamin H. Grumbles, Assistant Administrator for Water, at the EPA, gives a detailed explanation of the EPA’s efforts at improving security at water treatment and waste water treatment facilities. At the end of that very cogent analysis he notes:


  • “Water and wastewater treatment facilities that are determined to be high-risk due to the presence of chemicals of interest should be regulated for security in a manner that is consistent with the CFATS risk and performance-based framework while also recognizing the unique public health and environmental requirements and responsibilities of such facilities. DHS and EPA look forward to working with the committees to address this issue.”


Secretary Stephan also notes that DHS needs to work with EPA in their regulation of chemicals of interest at water treatment facilities. The version of HR 5577 under review provides for just such cooperation between these two agencies while HR 5533 continues the current exemption. The HR 5577 provisions does nothing to undermine the current EPA regulations concerning water security and water safety. The legislation just attempts to bring the security management of hazardous chemicals at these facilities under the same security provisions that those chemicals would be under at other facilities.


Pro-Chlorine IST Analysis


There has been quite a bit of discussion on this blog about the pros and cons of mandatory IST reviews. Many people believe that the best way to achieve true security and safety it to eliminate the use of highly hazardous chemicals where ever possible. The four non-governmental witnesses at this hearing were evenly split on their support of the IST provisions in HR 5577 (there is no mention of IST in HR 5533).


The only testimony to bring new information to the debate, however, was the presentation made by Brad Coffey, representing the Association of Metropolitan Water Agencies. Mr. Coffey is the Water Treatment Manager of the Metropolitan Water District of Southern California (MWDSC). He gives a detailed account of their analysis of the use of alternatives to chlorine in their facilities. Based on the results of the MWDSC analysis some of their facilities switched to chlorine alternatives but their largest facility will remain on liquefied chlorine gas.


His testimony is well worth reading in its entirety. In fact, I would suggest that the MWDSC should publish a detailed paper on their analysis. It would be a valuable tool for many water agencies across the country in their decision making process in deciding between chlorine gas and its alternatives.


Mr. Coffey uses the MWDSC experience to argue against the IST provisions in HR 5577. In this I disagree. I believe that the analysis the MWDSC conducted is exactly the type review that HR 5577 envisions. Based on their analysis they chose not to switch to chlorine alternatives and would not be required to do so under these regulations.


That is the way that this legislation has designed the process to work. It does not mandate IST implementation; it demands IST analysis. The Secretary can only mandate the implementation when the analysis shows that it is the safer and more secure alternative.


The Way Forward


The three month delay between the time that the Homeland Security Committee completed its work on HR 5577 and this hearing have significantly decreased the probability that the Congress will be able to pass CFATS reauthorization legislation in this year’s election attenuated session. The fact that the two current alternatives to that reauthorization were included in this subcommittee hearing is a good sign that progress may still yet be made.


Congressman Dingell’s full committee needs to take up this matter as soon as possible so that one of these bills (HR 5577 in my opinion) can make its way to the floor well before the summer’s convention break. Failure to complete reauthorization this session may well cripple the current DHS effort to get chemical facilities to move forward on the security upgrades necessary to protect the facilities and their neighbors from potential terrorist attacks.

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