Possible CFATS Mark-up Hearing

Today the Senate Homeland Security and Governmental Affairs web site added a listing for a Committee Business Meeting to their hearing schedule web page. That meeting is scheduled to convene on July 28th at 10:00 am. There is no agenda currently available for that meeting. With all of the recent speculation that the Committee would mark-up HR 2868, S 2996 or even S 3599 this month, it is possible that this meeting could address one or more of the three bills, though I would normally expect the Committee to only favorably report one of these three bills. Because of the close working relationship between Chairman Lieberman (I, CT) and Ranking Member Collins (R, ME), and their polar opposite approaches to IST mandates, I don’t really expect any of the current bills to be reported without significant modifications. Everyone also seems to forget that the putative reason that the Committee decided to take no action at their previous CFATS meeting was because the ISCD folks at DHS were in the process of drawing up their own version of a potentially comprehensive CFATS reauthorization bill. We could possibly see an approach that Lieberman and Collins could both support come out of DHS, since the professionals at ISCD don’t have a particular ax to grind in this fight. If that were to happen, I would expect to see that offered as an amendment in the nature of a substitute for one of the three bills. One could argue that the Collins’ bill would be the likely vessel for that substitute. If the bill were close enough in language and construction to HR 2868, amending that bill might make more legislative sense as it would take fewer votes (times voting not number of votes) to get it through Congress. Fewer scheduled votes means a better chance of passage in an election shortened session. I still don’t see a comprehensive CFATS bill happening this year, but really well crafted DHS language might offer enough for Democrats to support and Republicans to not actively oppose. Stranger things have happened, but don’t hold your breath, not in an election year.

Lame Duck Congress

There was an interesting opinion piece over on WSJ.com last week about apparent planning for legislative work in a lame duck Congress following a successful re-taking of the House by the Republicans this fall. Nothing in the article by John Fund mentions CFATS, but it leads one to think about what if? I’m not so sure that the Republican resurgence is any where near a done thing as the article implies, but most commentators at this point in the election cycle seem to accept that it is at least a possibility. At this point no one is seriously mentioning the possibility of a Republican majority in the Senate, but it seems nearly certain that it will be further from a super-majority for the Democrats than it currently is. So what does this mean for the CFATS reauthorization? First off, the House has done their job (from the Democrats point of view) in passing HR 2868. The only way that the potentially out-going majority in the House will have any way to deal with that will be in Conference if the Senate passes a different version of the bill. Not much chance of that happening. There is another CFATS bill currently in the hopper in the House, HR 5186; the companion bill to Sen. Collins’ S 2996. If Chairmen Thompson and Waxman become convinced that the Democrats will loose in November, there is a remote possibility that HR 5186 could be dealt with in their Committees, adding some of the HR 2868 provisions most dear to those two gentlemen. Those provisions could include labor participation in the security process, background check protections for employees, and whistleblower language. Properly worded those provisions could probably be supported by Rep Dent (R, PA) and the other Republicans on the Committees. I would also expect that a watered down inherently safer technology provision could be added to the bill. If the Democrats added a version of the IST wording being developed in DHS, I think that most of the Republicans would vote against the amendment, but some could vote for the bill. That IST provision would call for all high-risk facilities to evaluate alternative technologies and to report on that evaluation in their site security plan. I expect that a version of S 2996 like that could pass in the Senate Homeland Security and Governmental Affairs Committee. The question would then become how it would fare on the floor of the Senate. Without a clearly impending massive defeat in the House in November, I don’t think that a version of CFATS authorization without some form of IST mandate can make it to the floor of the Senate. In a lame-duck Congress that might just change. Democrats might be willing to agree to get what they can. I don’t think that Senators Lautenberg and Rockefeller would be willing to go along with the current five year term of S 2996. I think that they would accept a two or three year term with the expectation that they could regain control of the House in the next election and have another chance to modify CFATS. Five years would just put it too far off into the future. I am firmly convinced that HR 2868 is completely dead now. The Republicans only have to prevent a vote in the Senate, and that shouldn’t be too hard. In fact, an impending victory in the House will make it even easier for the Republican leadership to hold their caucus together in a firm voting block. And a lame duck Congress would have no chance of getting the votes in the Senate to push through HR 2868. There won’t be a floor vote on S 2996 or HR 5186 before the election. The Democrats certainly cannot afford to upset an important part of their base before the election. They will need every vote they can get in the close election and pissing off the IST supporters is a good way to get large numbers of them to stay home. They need those votes to have any chance of holding on.

CFATS in the Senate

Once again we are hearing reports about the impending consideration of CFATS reauthorization in the Senate Homeland Security and Governmental Affairs Committee. Ryan Loughin reported yesterday in his blog over on ChemicalProcessing.com that it looks like S 2996 “will be marked up or voted on later this month”. He doesn’t quote a specific source for this, but I would assume that it comes from information that originated at the recent Chemical Sector Security Summit. S 2996 is the bill introduced with bipartisan support by Sen. Collins (R, ME), the ranking member of the Committee. The bill would extend the current CFATS program authorization for an additional five years without significant change. We can see a similar, but much briefer, report on a Tweet® from ICISNewsAmerica. The link on that Tweet takes you to an article on ICIS.com, but you have to have a subscription to that news service to read the article and, alas, I don’t. So I don’t know the source for that report either. There is nothing on the Committee’s web site yet about such a markup, but that doesn’t mean much. They are out of town until next week so the web site is not as actively maintained as it is when the Senate is in session. I will continue keep an eye on their web page. As I have mentioned on a number of occasions, I don’t think that S 2996 can pass in its current form. A five year extension without addressing issues of significant concern to House members (water facility coverage, MTSA facility coverage, labor protections, and of course inherently safe technology) won’t even be considered in the House. I’m sure that there are compromises that could be made that could get a bill passed in both houses; I just don’t think that there is enough political will in this election year for either side to make that compromise happen. The most likely thing to happen this year is for the DHS budget bill to include another one year extension of the CFATS authorization, essentially punting the decision until next year. We’ll continue to watch and see. Things are never certain in politics.

S 2996 Mark-Up?

An article over on EPOnLine.com again mentions the possibility of Sen. Collins’ (R, ME) CFATS reauthorization bill (S 2996) being marked up in the Senate Homeland Security and Governmental Affairs Committee. I mentioned an earlier claim for a mark-up being scheduled for this bill and I have also discussed what I thought would be necessary to get such a mark-up successfully completed in that Committee. It is almost too late now to get this bill (or any CFATS reauthorization bill) to the floor of the Senate before the summer recess in August, especially since we have the 4th of July ‘weekend’ (a week long weekend) coming up at the end of this week. While the Collins’ bill might get out of Committee I don’t believe that it would be considered (favorably or otherwise) on the floor of the Senate. The current level of mistrust for big chemical companies is just too high because of the BP leak in the Gulf. The rest of the article is a very interesting and readable account of the Chemical Sector Security Summit being co-sponsored by SOCMA and DHS next week. If you don’t already have confirmed reservations it’s too late. But, you can read tweeted updates by following SOCMA on Twitter®.

SOCMA News on CFATS

There are two interesting Tweets this evening from the SOCMA Fly-in event in Washington D.C.; the first about comments from Sen. Collins (R, ME) about CFATS legislation and the second about comments from Rep. Lungren (R, CA) about IST provisions in CFATS legislation. Of course, given the character limit in these communications, there is little additional detail provided. CFATS Mark-up Hearing While I have been saying for some time that I thought that CFATS legislation was essentially stalled in the Senate, Sen. Collins, the ranking member of the Senate Homeland Security and Governmental Affairs Committee apparently told the SOCMA gathering that there could be a CFATS markup hearing as early as next week. While a markup hearing is still a long way from getting a bill to the floor and through conference, it is still much more progress than has been made to date on stand alone CFATS legislation. Of course, the Senate Committee has a very poor track record of getting from a markup hearing to actually publishing a report on controversial legislation. For example S. 1649, the WMD bill co-sponsored by Lieberman and Collins was marked-up in November and the bill has still not been reported. The other unanswered question in the Tweet is which CFATS legislation will be marked up. There is the House passed HR 2868, the Collins introduced S 2996, and the yet to be seen DHS version. And of course Sen. Lautenberg (D, NJ) has been threatening to introduce CFATS legislation for over a year now. Though to be fair, a Lautenberg bill would not get marked up in the Homeland Security Committee next week. IST in CFATS The Lungren Tweet urges the SOCMA attendees to continue to apply pressure on Congress to keep IST out of CFATS. Rep Lungren’s opposition to IST is hardly news, but it is indicative of the continuing controversy surrounding this issue. This is probably the key issue that will hold up the ultimate passage of CFATS legislation this session. Lungren’s position does not take into account the current efforts in DHS-ISCD to consider administratively adding an IST reporting requirement to the current CSAT SSP tool. I’ve reported on this in the current issue of the Journal of HAZMAT Transportation (Vol 21:1, pg 12). Nor does it reflect the work being done by ISCD and the Center for Chemical Process Safety (CCSP) to address the issue of IST being a safety tool not a security tool; the two organizations are trying to define limited security related tools for evaluating IST proposals. Continue to Watch the Senate In any case, it sounds as if we may have some sort of movement on CFATS reauthorization in the coming weeks. I will certainly share any news that I hear.

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.

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.