Can S 2996 Pass in the Senate?

On Tuesday the Government Printing Office (GPO) finally had an official copy of S 2996 available via the Thomas.LOC.gov web site. Over the last week or so since I wrote about the introduction of this alternative to HR 2868, I have had a number of people ask me what I thought about this bill and I have invariably answered that I did not think that it had much chance of passage. But, after re-reading the posting about this bill over on Steve Roberts’ blog I have begun to re-think that stance. That posting noted that if S 2996 passed in the Senate there would have to be a conference committee to work out the differences between S 2996 and HR 2868. I wrote off this comment the first time I read it because I did not think that S 2996 had anywhere near the votes to pass, even though it is a ‘bipartisan’ bill. It just didn’t address enough of the issues important to the activists that form an essential part of the base of the Democratic Party. While I still don’t think that this bill can pass in its present form, I have begun to think about what changes could be made to the bill in the legislative process that could make it passable. The one assumption that I am going to make in this discussion is that this bill will essentially remain true to Sen. Collins’ (R, ME) well known objection to the chemical facility IST provisions in HR 2868. If we don’t keep that much of the current bill then we don’t even need to discuss this bill and we would just assume that the Senate would take up and pass HR 2868. Water Security Issues A passable bill will have to address the issue of the security of chlorine and anhydrous ammonia at water treatment and waste water treatment facilities. The 2008 report by the Center for American Progress points out that the large amounts of these chemicals stored at many water treatment and waste water treatment facilities would make these facilities prime terrorist targets. The failure of CFATS to address these security issues has been a major rallying cry for organizations like Greenpeace. If provisions similar to those found in Title II and Title III of HR 2868 were added to this bill, there would be some moderate Democrats that could support the legislation. It would give them some cover to respond to the activists while protecting them from active opposition from the chemical industry. The water treatment industry hasn’t been very happy with the IST provisions in HR 2868, but that haven’t been as adamant in their opposition as the chemical industry. This is mainly due to the provisions giving State control over the implementation requirements rather than the EPA. Technically, the IST provisions in Titles II and III would be the ones that would be most amenable to a reasonable assessment requirement. There are mature and well understood alternatives to the use of chlorine for disinfection. They are certainly not going to be useable at every facility, but the evaluation of their implementation does not require a lot of new science and or engineering work that might be required for the assessments at most high-risk chemical facilities. TIH Mitigation Organizations like Greenpeace are not going to be satisfied unless the legislation provides strong provisions giving the government authority to require changes to eliminate or at least drastically reduce the use of toxic inhalation hazard (TIH) at facilities any where near urban areas. Since we have already assumed for this discussion that an IST mandate cannot be added to this bill, some method of reducing the risk from those facilities will have to be included in the legislation to mute the complaints of the activists. I think that a provision giving the Secretary the authority to require significant mitigation measures for TIH releases might provide the necessary political cover on this issue. Requiring some sort of method to stop a toxic cloud from leaving the facility would be one potential provision. Now the activist will argue that there is no technology that could guarantee that there would be no off-site effects, but most moderate Democrats could probably accept a reasonable attempt to stop off-site consequences. Labor Issues There are a number of labor issues that will have to be addressed in any CFATS extension legislation if there is going to be any significant support by Democrats, particularly in the House. Whistleblower protections, including labor representatives in the security process, and redress procedures for the personnel surety process will have to be addressed. The chemical industry hasn’t been entirely happy with the provisions in HR 2868 for these areas, but they can apparently live with them. Including these provisions in S 2996 would go a long way to assuring union support for the legislation. Since labor unions are a major source of political support for the Democratic Party, these provisions will be necessary to gain enough support among moderate Democrats to gain passage of the legislation. Other Legislation Any definitive discussion about the possibility of passing chemical security legislation in the Senate is still a little premature. There is one more bill that we can expect to see before the Senate Homeland Security and Governmental Operations Committee takes up this issue. Sen. Lautenberg (D, NJ) has promised to introduce a bill that will probably be more to the liking of organizations like Greenpeace.

If that bill is moderate enough, it might be the bill that the Senate leadership decides to bring to the floor for a vote. If that bill contains too many provisions objectionable to the chemical industry, it is more likely that Sen. Lieberman (I, DE) would work with Sen. Collins to work out a compromise version of her bill. If those two could work out a compromise version of S 2996 then it would almost certainly pass in the Senate.