SOCMA Response

The folks at SOCMA did not take any time at all to come out with their response to the introduction of the new CFATS legislation by Sen. Lautenberg; it came out the same day. No one will be surprised that they are opposed to the IST mandate provisions included in the bill. While I have disagreed with SOCMA on occasion this response is a fair statement of their position and does propose a positive alternative to Lautenberg’s bill.

If this bill does actually start to move forward in the legislative process (unlikely in my opinion) I would hope that SOCMA and other chemical organizations would provide alternative suggestions for modifications of the bill to make it more acceptable to their interests. I fully understand their opposition to the IST provisions as written, but I am a firm believer in the process of politics and the art of compromise. I would hope that the industry would be part of that process.

Reported Compromise on Water Facility Security

I found an interesting article on LexisNexis.com about congressional progress on CFATS re-authorization legislation. The article by Sara Goodman explains that the two House committees working on the re-authorization issue have reached a compromise on the issue of regulating chemical security at water and wastewater treatment facilities. Sara reports that under the recently reached compromise the EPA would retain jurisdiction for security at water and wastewater treatment facilities, including chemical security. The article goes on to report that the markup of the two chemical security bills (one for CFATS re-authorization and one to continue the non-existent EPA interest in security at water treatment facilities) will begin in June, not before the previously reported Memorial Day Recess deadline. Given the normally extensive summer recesses and the wide variety of other high-priority legislation that has yet to be considered, this schedule reduces the likelihood that CFATS reauthorization can get approved before the October expiration of the current authorization. Ms Goodman notes that: “Given the slow progress with negotiations in Congress, the aide [unnamed Homeland Security Committee staffer] said lawmakers will probably introduce a simple bill on suspension that will extend the sunset until Congress can put in place permanent regulations.” This is a potential solution that I had previously discussed. She also notes that “the Obama administration proposed in its fiscal 2010 budget request to extend the regulations through October 2010”. It is true that funding for CFATS operations has been included in the budget request, but I haven’t seen any thing specifically extending the CFATS authorization. As I noted in an article I wrote for the Journal of Hazmat Transportation (19:6, pg 25) there are some people that believe that extending the budget authorization for the program will effectively extend the authority for the program. The political saga continues to provide fodder for the blog writer.

Anti-IST Public Relations Campaign

An article posted on ICIS.com on Wednesday describes a letter to Congress prepared by a “broad coalition of chemical, refining, industrial and agricultural interests” that urges Congress to re-authorize the CFATS regulations without making major changes. In many ways this letter parallels a letter sent to Congress last fall by a coalition of labor, environmental, and safety advocacy groups urging passage of HR 5577, a bill that would have made significant changes to CFATS..

 Unfortunately, the link on the ICIS.com site that is supposed to be to a copy of the letter is actually a link to an API letter to DHS from 2007. This means that I have not actually seen a copy of the letter described in the article. This makes it difficult to evaluate the potential effectiveness of the arguments presented. The article provides a few quotes pointing out the ‘coalition’s’ opposition to “disrupting this security programme (sic) by adding provisions that would mandate government-favoured (sic) substitutions, weaken protection of sensitive information, impose stifling penalties for administrative errors, create conflicts with other security standards or move away from a performance (or risk-based) approach”. 

ICIS.com is a British based web-site that reports on the chemical industry. This explains the ‘strange’ (from this side of the Atlantic) spelling found in the quotes. I’m assuming that the editors at the site ‘corrected’ the spelling of ‘programme’ and ‘favoured’. If anyone can point me at a copy of this letter, I would appreciate it. I would be interested in seeing how effective the advocacy actually is.

CFATS Legislation Update

Back in the last week of February the American Bar Association had their 4th Annual Homeland Security Law Institute. Unfortunately I don’t have a travel and entertaining budget that would allow me to attend events like this, no matter how much I would like to. Fortunately, I do have a variety of readers that do attend events like this and they do share information that they hear and see at such events. Most of them attend on corporate or government accounts and cannot allow me to quote or identify them in my blog. So, with that explanation, here is my outlook based on the second and third hand accounts of what came out about potential CFATS re-authorization legislation this year. House Action Much of the information here mirrored that that came out at the Homeland Security Policy Institute at George Washington University the week before. Drafts of the legislation are circulating between the two committees (Homeland Security and Energy and Commerce) and their staffs. According to reports by Homeland Security Committee staffers, the markups should be done before the Memorial Day recess. This could bring the bill to the House floor before the July 4th recess. Senate Action The Senate is a different story. There has been no word, official or unofficial, coming out the Senate committee on any work being done on CFATS re-authorization legislation. This may be part of the residual fall-out between Senators Collins and Lieberman over the 2006 IST debate in the Senate Homeland Security committee. In any case, it has been reported that Michael Bopp, the former staff director for Sen. Collins, thought that the CFATS re-authorization legislation would be too controversial for the Senate to take up. Presidential Priorities While enacting permanent chemical facility security legislation is one of the ‘priorities’ listed on the White House Homeland Security page, it is not clear that it remains a priority for the President this year. For example, PJ Crowley, a homeland security advisor to the President, did not include it on his list of legislative priorities presented at the ABA Conference. Without Executive Branch pressure it is unlikely that a House passed bill will clear the Senate. What If? There are a couple of different scenarios that could play out from this combination of political forces. First there could be no action on re-authorization and CFATS would die in October. Second a one year extension of the current authorization could be added to the 2010 authorization bill, putting off the debate for another year. A more remote possibility would be that the House could craft a bill with an IST provision that would be acceptable to most of the chemical industry; such a bill could probably be passed by the Senate. The first possibility would stop the CFATS process before it was anywhere near complete. Facilities would not spend money on expensive security measures that would no longer be required without the regulations in forces. DHS would not have sufficient time to take enforcement actions. This would be a severe set back for the chemical facility security process. Under the second case would allow most facilities to complete their site security plans and implement all but the longest lead time projects. Some facilities, however, will use the uncertainty of continuing the regulations to justify not completing their work on facility security. They will be betting that the enforcement process will not be able to go to completion prior to the expiration of the extended bill. The final possibility would provide for the most continuity for the facility security program. It would allow for the current CFATS process to go through to completion and the added IST provisions could be applied over that format. Of course it would require that both sides of the IST debate realize that it need not be an either/or proposition. And it would require some work and compromise on both sides to bring it about.