CFATA Hearing Details

As I promised in an earlier blog I have had a chance to look at all of the written testimony in Thursday’s hearing before the Energy and Environment Subcommittee of the House Energy and Commerce Committee. That hearing looked at HR 2868 and HR 3258, the two companion bills that will expand and make permanent the current Chemical Facility Anti-Terrorism Standards (CFATS) that currently expires on October 31st. Testifying before the Subcommittee were: Peter Silva, Assistant Administrator, Office of Water, EPA Rand Beers, Under Secretary, NPPD, DHS Brian Ramaley, Association of Metropolitan Water Agencies Marty Durbin, American Chemistry Council Darius Sivin, Ph.D., CWA-UAW Legislative Alliance Stephen Poorman, SOCMA Role of DHS and EPA As I have mentioned on a couple of occasions, I know that there are people in DHS that feel that the responsibility for chemical security at all civilian facilities should rest with DHS and CFATS. The testimony of Under Secretary Rand Beers and Assistant Administrator Peter Silva made clear, however, that the political decision has been made, probably at the White House level, that the EPA should have primary enforcement responsibility for security at all water sector facilities (both water treatment and waste water treatment). This is reflected in the following identical wording in both agency testimonies (Beers pg 9 and Silva pg 8):

“The Administration believes that EPA should be the lead agency for chemical security for both drinking water and wastewater systems, with DHS supporting EPA’s efforts. Many of these systems are owned or operated by a single entity and face related issues regarding chemicals of concern. Establishing a single lead agency for both will promote consistent and efficient implementation of chemical facility security requirements across the water sector.”

If Congress is to go along with this plan it is going to take modifications to both HR 2868 and HR 3258 to get both water treatment and waste water treatment facilities covered under HR 3258. This is not going to be as simple as amending the two bills because of the legislative oversight prerogatives involved. Brian Ramaley of the AMWA noted this in his testimony when he stated that he hoped “that members of the Energy and Commerce Committee will work with their colleagues on the Homeland Security and Transportation and Infrastructure panels” (pg 12) to get the water sector covered under a single security program. Things get even more complicated when the Administration explains what it means by the phrase “DHS supporting EPA’s efforts”. Again in identical words in both agency presentations (Beers pgs 9-10, Silva pg 8), that idea is expanded by the following explanation:

“To address chemical security in the water sector, EPA would utilize, with modifications as necessary to address the uniqueness of the sector, DHS’ existing risk assessment tools and performance standards for chemical facilities. To ensure consistency of tiering determinations across high-risk chemical facilities, EPA would apply DHS’ tiering methodology, with modifications as necessary to reflect any differences in statutory requirements. DHS would in turn run its Chemical Security Assessment Tool and provide both preliminary and proposed final tiering determinations for water sector facilities to EPA. EPA and DHS would strive for consensus in this tiering process with EPA in its final determination, attaching significant weight to DHS’ expertise.”

Left unexplained is how the Administration would include waste water treatment facilities in the EPA security program. Under the current wording of HR 2868, these facilities would be treated just like any other chemical facility; if they have COI above STQ they start with the Top Screen. If lumped in the HR 3258 regime in the way the Administration would like to see, would they be included in the 3,500 customer rule or the CFATS rule? Are the smaller waste water treatment facilities without COI at similar risk as smaller water treatment facilities? Neither question was answered in the written testimony. Inherently Safer Technology The Beers’ testimony on inherently safer technology in this hearing sounds entirely different from the testimony that DHS Deputy Under Secretary Reitinger offered in the House Homeland Security Committee hearing in June. In that testimony the DHS talking about IST could have been confused with industry arguments against mandatory IST. In his written testimony Reitinger said (pg 6): “Based on revised Top-Screens many facilities have already made voluntary changes to, among other things, their chemical holdings and distribution practices (for example, completely eliminating use of certain chemicals of interest). We support such voluntary measures when they reduce risk.” During direct questioning by Rep. McCaul (R, TX) about DHS capability to evaluate IST, Reitinger noted that DHS would “need to bring in additional experts to complete that mission”. In written testimony for last week’s hearing both DHS and EPA sounded more like Greenpeace than industry. Again the political decision was reflected in identical language in both agencies’ testimony. In describing IST (Beers pg 11, Silva pg 9) the clearly pro-IST position was stated:

“The Administration believes that all high-risk chemical facilities, Tiers 1-4, should assess IST methods and report the assessment in the facilities’ site security plans. Further, the appropriate regulatory entity should have the authority to require facilities posing the highest degree of risk (Tiers 1 and 2) to implement IST method(s) if such methods enhance overall security, are feasible, and, in the case of water sector facilities, consider public health and environmental requirements.”

The political line did, however, emphasize the issue of feasibility. The written testimony (Beers pg 10, Silva pg 9) noted that “we must recognize that risk management requires balancing threat, vulnerabilities, and consequences with the cost to mitigate risk.” The most interesting IST proposal was another political proposal for flexibility in implementation of IST. Both testimonies noted:

“The Administration believes that flexibility and staggered implementation would be required in implementing this new IST policy. DHS, in coordination with EPA, would develop an IST implementation plan for timing and phase-in at water facilities designated as high-risk chemical facilities. DHS would develop an IST implementation plan for high-risk chemical facilities in all other applicable sectors.”

Both chemical industry representative still expressed their general opposition to mandating IST implementation, but their positions did not seem to be as adamant as in the past. Marty Durbin of the ACC noted that many high-risk facilities were already looking at an implementing IST on their own. He noted that (pg 8) “The reason this occurs is that the highest risk facilities subject to CFATS face significant cost to implement the stringent requirements and thus have a strong incentive to implement enhancements that could move the facility to a lower-risk tier, or potentially even move it out of the program. This is a substantial incentive to reduce regulatory requirements.” Stephen Poorman from SOCMA questioned the ability of DHS to evaluate comparative security or safety of a proposed IST solution. He noted (pg 10): “While it may be feasible to develop a technical consensus methodology for measuring and comparing inherent safety, none exists at present. Before Congress and the Administration could even consider mandating IST implementation, they would need to know that methodologies exist to compare various alternatives from the standpoint of inherent safety. Congress should direct DHS to submit a report to it that explains in detail what methodologies DHS would propose to use.” Labor has been allied with the environmentalists on the IST issue for some time. Dr. Sivin does make an interesting point that the industry representatives routinely overlook. He notes that (pg 3) “The CWA-UAW Legislative Alliance believes the government should have the authority to require a facility to implement its own plans to reduce the potential consequences of a terrorist attack.” He is referring to the fact that HR 2868 only allows the Secretary to require an IST implementation that the facility management has already identified as feasible and effective in reducing risk. The various coalitions of environmentalists, labor organizations and community activists will probably not be pleased with the reluctant acceptance of IST voiced by Brian Ramaley of the AMWA. They would be concerned about his assessment of the reality of State enforcement of IST implementation. He noted (pg 7) that: “Because of our joint concern for public health and safety, I am confident that state enforcement agencies would act responsibly when reviewing a utility’s disinfectant choice, and generally defer to the water treatment determinations made by local water experts.” Civil Suits Neither the DHS nor the EPA witness addressed the other contentious issue related to HR 2868. Both industry representatives voiced their objection to the civil law suit provisions. ACC’s Durbin issued a challenge to Congress, saying that: “Congress should not delegate its oversight authority to courts. If Congress truly believes that DHS will have a problem enforcing the program, it should ensure that it has staff and resources to do the job and allow DHS to have a tight grip on compliance.” SOCMA’s Poorman rejects claims the HR 2868 civil suit provisions are the same as found in environmental regulations, saying that: “Citizen oversight of enforcement of security laws, by contrast, would actually be counterproductive to the purposes of those laws. Currently – and under H.R. 2868 – the only fact about a facility’s regulation under the CFATS program that a citizen might be able to obtain legally is that fact that the facility is regulated.” This claim is generally true except that these provisions would also allow labor unions to bring suits. The legislation would require facility management to provide access to the security planning process and related documents to labor representatives. It is interesting that Dr Sivin did not mention the civil law suits provision at all in his testimony since labor unions would be the only people capable of brining informed law suits against chemical facilities under this provision of HR 2868.