Thursday, March 4, 2010

Senate CFATS Hearing 03-03-10

Well, I finally got finished listening to the webcast of yesterday’s CFATS hearing before the Senate Homeland Security and Governmental Affairs Committee late last night. Too late to digest and write about it as I had promised. It was an interesting hearing with one clear result; it is going to be a while before we get a Senate vote on CFATS re-authorization. Apparently the Administration was correct in requesting another one-year extension in their DHS budget request. IST Debate As was expected, IST was a major focus of the questioning, but there was no indication that any Senator was firmly standing for an IST requirement in any legislation that will be considered by this Committee. Even Sen. Lieberman (I, CT), who is a known supporter of IST, did not seem to be nearly as committed to the mandate requirement as he was back during the 2006 discussions. Surprisingly, the most vigorous support for IST came from DHS Undersecretary Rand Beers. Sen. Collins (R, ME), a well known opponent of IST, pointed out that process safety professionals were unclear if there was a definitive enough definition of IST to allow it to be included in a legislative mandate. That this was expected could be seen in Dr. Sivin’s prepared testimony (representing the UAW). Dr. Sivin noted that HR 2868 did not include the term ‘Inherently Safer Technology’; instead it clearly defines the term ‘Methods to reduce the consequences of a terrorist attack’ (which is too long to even have a respectable acronym) which he suggested was a more appropriate term given the legislative intent.. All of the IST questions put to the second panel of labor and industry representatives were addressed to the two witnesses representing chemical industry interests. None of the questions were hard hitting though they all did seem to be directed at legitimate industry concerns. I was surprised that none of the Senators had any questions about the concerns raised by the single labor representative on the panel. Rand Beers did make clear in his testimony and answers to questions that while the Department and the Administration support an IST component for CFATS they have every intention to work with industry and other stakeholders to make any such program one that addresses the security needs and capabilities of the regulated industry. He pledged that DHS would follow the same type of process used in CFATS implementation would be used to develop implementing regulations for any IST program. HR 2868 Dead Going into this hearing one of the questions that remained to be answered about the CFATS reauthorization process in the Senate was which bill would this Committee mark-up and report to the Senate floor. The House has passed HR 2868 and Sen. Collins had introduced S 2996; two entirely different approaches to that reauthorization process. One joker still remained to be played in this game and that would be the promised introduction of a CFATS bill by Sen. Lautenberg (D, NJ). Secretary Beers’ testimony that the Department had a draft version of a new chemical security bill ready for consideration by the Administration threw all of the previous political calculations completely out the window. Sen. Lieberman’s comments seem to indicate a willingness on his part to allow the Department and the Administration to shoulder a major part of the responsibility for any controversy surrounding IST and a comprehensive chemical security bill by working on a Department drafted legislation rather than take up the House bill. Sen. Levin’s (D, MI) pointed question about whether or not the Administration backs HR 2868 and subsequent questions about conflicts between CFATS and HR 2868 seems to indicate a willingness to back the Chairman on this matter. While Rand Beers maintained that there was no ‘Administration position’ on HR 2868, he quickly suggested that the existence of a DHS draft legislative proposal could be cause to infer a lack of support. Republican opposition to HR 2868 is just as strong in the Senate as it was in the House. Sen. Voinovich’s (R, OH) rant against the water treatment and waste water portions of HR 2868 was as vitriolic as anything thing that I heard in the House debates. That it was directed at the EPA witness, whose agency had little to do with the development of that regulation, was quite unusual. It seems for all practical purposes that HR 2868 is dead on arrival at the door of the Senate Homeland Security Committee. This is sure to upset Chairman Thompson whose House Homeland Security Committee worked so hard at developing, refining and passing HR 2868 over a period of more than three years. It also raises potential issues of how well his Committee will work with DHS on other issues. The environmental and labor advocacy communities have got to be in a bit of a quandary right now. For the last two years they have been pushing for some form of the current House bill to be passed. For that to be pushed aside now by a liberal administration has got to be confusing. Still, I expect that they will not immediately raise too many objections since public indications are that there will be a relatively strong IST component in the proposed legislation. If that fails to come through, this will be yet another issue about which the liberal base will be disappointed in this President The Way Forward For now it looks like we are just going to have to wait for the Administration to review and massage the version of CFATS legislation that has been drafted by the good folks at NPPD. I hope this gets faster response from the political handlers than the ammonium nitrate regulation (which is approaching being two-years over due now). If it doesn’t happen before late spring then CFATS reauthorization will get killed by the inevitable political inaction attendant with a Congressional election year. We are going to have to wait until we see how this bill shakes out, and if the Lautenberg bill makes it to the discussion, to see how things are going to proceed with CFATS legislation. I doubt that there will be any movement on the Collins’ bill; at least until the DHS bill becomes public. It looks almost certain that the one year CFATS extension in the DHS budget request will be necessary to keep the program alive until this legislative wrangling is done.


Anonymous said...

I found yesterday’s hearing to be very interesting especially w.r.t IST. That Sen. Collins brought up the controversy of defining IST, it seemed to inject the diversity of those who might advocate for it or against it into the conversation with the purpose of delegitimizing the IST provision of HR 2868. Inherently safer technology seems pretty clear to me, and I do not have to be an expert to read the words “inherently safer” to mean something that is safer to do than a current technology for the handling and use of chemicals, processes, or certain monitoring systems. I take the implication of IST as just to mean something that may be safer. Not to say it would be more or less expensive or feasible for specific places or locations.
Hearing Mr. Beers answers about IST, I took away what DHS intends to do is evaluate safer technology practices for chemical processing, shipping, and storage for security gains that might be achieved by practicing IST. But he clearly stated that the mandate would be similar to the mandate that is currently being enforced with the RBPS structure and that DHS wants to work with industries affected rather than broadly mandating specific changes for any one industry to make. Questions posed to Mr. Beers about IST seemed more to assess the financial aspects of switching technologies vs. the security gains they may pose. And I found his response to be carefully thought out to say these gains would be balanced for feasibility based on location and financial merit.
In addition, I found responses supporting IST by ACC and SOCMA to be interesting, especially as it relates to the use of chlorine for water treatment. However, the way the questions were posed from senators seemed to indicate there was no exemption for water treatment when under Section 550 of CFATS when clearly there is an exemption with the Safe Drinking Water Act (Pub. L. 93-523). That the exemption should be lifted is what should have been the topic of discussion rather than IST. The fact that the consensus from the speakers seems to be IST could better be put to use in new plant manufacturing for processes seems the way to go w.r.t the chemical industry. Here is an analogy for what I am thinking: you would not want to put the sophisticated motors of today in your old 57 Chevy just because you think it might make the car safer, you'd be better off buying a new car for the costs involved.
Sue also had some interesting remarks that should be noteworthy as well. With all Tier 1 facilities being inspected by years end, it should give DHS more to go on in terms of working with congress to make CFATS an effective way to mitigate against terrorists.
To conclude, I think a one year extension of CFATS should be feasible with the possibility of permanent authorization to come about. But of course the CFATS authorization would have to have proper allowances for DHS to work with congress to amend CFATS down the road.

Once again, I have a need to stay anonymous but would like to hear more about the IST mandate down the road.

"An interested party"

PJCoyle said...

My response to the comments by Anonymous can be found at:

/* Use this with templates/template-twocol.html */