HR 2868 IST Changed

The Energy and Environment Subcommittee of the House Environment and Commerce Committee held the first markup hearing for HR 2868 in that committee. This is a major move forward, a step that was never reached in last year’s consideration of HR 5577. Various news reports indicate that the full committee markup will probably occur next week. All of the significant changes to the bill were made in the Manager’s Amendment proposed by Chairman Markey (D, MA). While that amendment made a large number of small changes, large changes were made to the IST, civil suits and background checks provisions of bill. It appears these changes were designed to broaden the potential support for (or at least reduce the opposition to) the bill. Inherently Safer Technology The IST provisions of the markup provide wins and losses for both sides in the debate. First the changes require the Department to consult with the local Captain of the Port before ordering an MTSA covered facility to implement an IST. Next the time to file an appeal of a mandate to implement IST, as well as the time for DHS to review such an appeal were both extended to 120 days. Finally, DHS is required to consult with “experts in the subjects of environmental health and safety, security, chemistry, design and engineering, process controls and implementation, maintenance, production and operations, chemical process safety, and occupational health” {§2111(b)(2)(B)}during the review of the appeal. All of these items were done to assuage the concerns of the chemical industry. To keep the environmentalists and labor groups from screaming about the weakening of the IST provisions, Chairman Markey changed the basis for the DHS decision process on mandating IST implementation. In the original bill the Secretary could only mandate the implementation of an IST technique identified by the facility as effective and feasible. The revised legislation moves the decision to the Director of the Office of Chemical Facility Security and allows more leeway in what IST techniques can be mandated. The new standard retains the standards of technical and financial feasibility and job retention. It specifically allows for the decision to be made at the discretion of the Director “based in part on an assessment conducted” {§2111(b)(1)(A)} by the facility. This provides for the prospect of the Director seeing and requiring an IST implementation that the facility ignored or overlooked. As a practical matter, it would be an unusual situation where the Director had sufficient information to require a facility to implement an IST technique not identified by the facility. This change also makes sure that the decision to require the implementation of IST is made by a career DHS employee rather than by a political appointee. Presumably this would insure that a professional is making the decision and not someone that is being swayed by the politics of the situation. Additionally, the phrase “in his or her discretion” {§2110(b)(1)(A)} exempts this decision from the citizen suit provisions of the legislation. Citizen Suits The Markey Amendment makes two significant changes to the Citizen Suits provisions of HR 2868. First it will restrict those citizen suits to suits filed against government entities. Even this would be limited in that it would be restricted to non-discretionary actions taken by the government. Where this would have its largest effect would be at Federally owned high-risk chemical facilities. It is not clear what facilities this would cover because §2112 still exempts DOD owned facilities and facilities regulated by the NRC. Instead of allowing citizens to sue privately owned facilities for non-compliance with this regulation, it would require the Secretary to establish a Citizen Petition process. This would provide a formal mechanism for private citizens to identify persons (including government agencies) that are “alleged to be in violation of any standard, regulation, condition, requirement, prohibition, plan, or order that has become effective under this title” {§2117(b)(1)} and to specify the alleged violation. The Secretary is required to investigate all of the alleged violations reported under this new procedure. Reports will be made back to the submitter of the initial support providing information, within the limitations of the information security requirements of the legislation, on the results of the investigation including any enforcement actions taken by the Secretary. To ensure transparency in the allegation review process the Secretary is required to allow the DHS Inspector General full access to the records of investigation. The one loophole that remains in this process is that there is no ‘at the discretion of the Secretary’ language in this section that would protect the Secretary against citizen suits under §2116 for failure to take actions under this section. Still, the non-government owned chemical facilities are being separated from the citizen suit process and should have no expectation that DHS would not investigate allegations of violations of the regulations prepared in support of this proposed legislation. Background Checks The background check section of the legislation {§2115} has undergone a major rewrite to increase the protections of employees in the background check process. Labor unions have long been concerned that the necessary personnel surety programs would be used by management to get rid of uncomfortable employees that are protected under a variety of labor laws. Most of these changes clarify what findings in a background check justify ‘adverse employment actions’ and better delineate the required redress procedures. The other issue that is addressed is the use of the TWIC card as a substitute for the required background checks under this regulation. To make sure that it is clear that no additional checks are necessary for TWIC holders the legislation specifically states {§2115(h)} that: “Such regulations shall provide that no security background check under this section is required for an individual holding a transportation security card issued under section 70105 of title 46, United States Code.” Not in the Revision I was surprised less at what was in the revised legislation than what was not in the bill. I expected to see an amendment removing waste water facilities from coverage under CFATS (to go the HR 3258 and EPA responsibility). Nor was there a provision authorizing the Secretary to use some form of staggered implementation of IST as was requested by DHS and the Administration. These may yet show up in the full committee markup, perhaps as early as next week. The provisions changed in the legislation yesterday should make the bill a little more palatable to industry, but I don’t think they will be enough to garner any significant number of Republican votes. It may, however make the bill easier to pass because it should be easier to convince moderate Democrats to follow the party line and vote for the bill. This will be especially important in the Senate. One final comment; I really appreciate the thorough web site that the House Energy and Commerce Committee maintains for recording these hearings. The markup web page provides copies of all of the amendments discussed in the hearing. This allows for a much better understanding of the proceedings. Chairman Waxman is to be commended on this innovative use of the Committee web site.