CFATS is Dead – For Now

As I mentioned in an earlier post the CFATS authorization language of §550 of the Homeland Security Appropriations Act of 2007 (PL 109-295) expired last night at midnight. Technically the CFATS program no longer exists. Practically speaking, as long as any funding measure that brings the federal government out of their current ‘shutdown’ includes language extending the authorization date in paragraph (b) to some point in the future, the CFATS program will continue on as before.

Existing Bills

This seems to be a good time to look at the status of proposed legislation that would change the authorization of the CFATS program to something more permanent. The bills currently under consideration (a term that would seem to imply more actual activity than we have seen to date) include:

• HR 68, the Chemical Facility Security Improvement Act of 2013;

• S 67, the Secure Water Facilities Act; and

• S 68, the Secure Chemical Facilities Act

Actually, S 68 is the only bill that would actually have an impact on the authorization of the current CFATS program and even that is tenuous. It creates a permanent chemical security program but does not necessarily include within that new program the current program. The House bill would modify the current §550 language, but not the actual authorization termination language that currently requires periodic renewal. And the other Lautenberg Senate bill creates a CFATS like program for water treatment facilities, presumably as part of the new S 68 program.

As predicted in my blog posts (see the links above) about the introduction of each bill, there has been no committee action to date on any of these bills. With the death of Sen. Lautenberg earlier this year, the remote possibility of either Senate bill being considered has effectively disappeared.

No House Leadership

I have been surprised and more than a little disappointed that there has been no CFATS legislation proposed by either of the two House committees that claim some sort of jurisdiction over the CFATS program. In previous Congresses both committees have had conflicting bills making the CFATS program more permanent (see here and here). There has been no such legislation introduced in this session.

Part of the problem is that both committee chairs have expressed dissatisfaction with the progress that ISCD has shown in the authorization and approval of site security plans. Both Chairman McCaul (R,TX) and Chairman Upton (R,MI) (Homeland Security and Energy and Commerce respectively) have issued vague threats to discontinue the CFATS program. Of course neither is going to be responsible for leaving high-risk chemical facilities without any chemical security oversight, so the threats are empty political theater; a fact that is obvious to all involved.

Moving Forward

Congress had a large part to play in the inevitable delays in approving site security plans due to the way the §550 authorization was written. That means that the only way that the CFATS program will really get ‘fixed’ (apologies to the folks at ISCD that have worked hard to get their side of the problems addressed) is for Congress to write effective legislation making the current program permanent. It is fairly obvious that there is no one on the Republican side of these two committees that is willing to tackle that legislation.

If, as many pundits suggest, the current spending fiasco backfires on the House leadership and causes them to lose control of the House in the next session, then Rep. Thompson (D,MS) and Rep. Waxman (D,CA) will get another chance to move their vision of chemical facility security through the legislative process.

In the meantime, once funding is restored, the folks at ISCD will continue to move forward on authorizing, approving and inspecting the site security plans for high-risk chemical facilities.

S 67 – Secure Water Facilities Act

The GPO now has the official print of S67, the Secure Water Facilities Act, available on its web site. This bill is virtually identical to S 711 introduced during the last session and S 3598 introduced in the 111^th Congress. There are two titles in this bill; Title 1 is the Secure Drinking Water Facilities Act and Title II is the Secure Wastewater Treatment Facilities Act. They both do basically the same thing but modify different laws covering existing security requirement at the two types of facilities.

Drinking Water Treatment Facilities

This title completely re-writes §1433 of the Safe Drinking Water Act (42 USC 300i-2). It requires the Administrator of the EPA to prepare regulations within two years to establish {§1433(b)(1)}:

• Risk-based performance standards (RBPS) for the security of covered (serving more than 3,300 individuals) water systems {§1433(b)(1)(A)};

• Requirements and deadlines for each covered water system to conduct a vulnerability assessment {§1433(b)(1)(B)}; and

• Requirements and deadlines for each covered water system to develop, implement, and submit to the Administrator a site security plan{§1433(b)(1)(C)};

The RBPS would be based in part on the CFATS standards in 6 CFR §27.230. The vulnerability assessment would specifically be required to address the risk of “a release of a substance of concern that is known, or may be reasonably anticipated, to cause death, injury, or serious adverse effects to human health or the environment” (§1433(d)(1).

There is still a requirement {§1433(f)} for facilities to prepare an emergency response plan (ERP) and to certify that plan to the Administrator, but those plans are not specifically to be included in the regulations described above. Nor is there a requirement to submit those plans for approval. A copy of the ERP would now be required to be provided to {§1433(f)(e)(B)}:

• A local emergency planning committee;

• A State emergency response commission;

• A local law enforcement official; or [emphasis added]

• A local emergency response provider.

There are two additional items adopted from the CFATS program; tier ranking {§1433(h)} and substances of concern (SOC) {§1433(i)}. The tier ranking provisions of the bill include a description of factors to be considered and a requirement to inform system owners of why they were assigned to a specific tier. The SOC provisions require the Administrator to develop a list of chemicals and screening threshold quantities similar to the DHS chemicals of interest (COI) list in Appendix A, 6 CFR Part 27 [NOTE: the GPO is currently having problems with their .PDF files corrupting Internet Explorer. When that is corrected this should be a good link].

There is an inherently safer technology (IST) provision in this bill; Methods to Reduce Consequences of Chemical Releases from Intentional Acts {§1433(i)}. All systems with SOC in excess of the screening threshold quantity are required to do an IST assessment as part of their site security plan. Tier 1 and 2 (highest risk rankings) facilities may be required by State regulatory authorities to implement assessed technologies.

Waste Water Treatment Facilities

Title II modifies Title III of the Federal Water Pollution Control Act (33 U.S.C. 1311) by adding §321 at the end. It establishes that a covered facility is one that has a treatment capacity of 2,500,000 gallons per day. The remainder of the Title is the same as Title I with the exception of some minor word changes to reflect the differences in the types of facilities involved.

No Way Forward

There was just one hearing held during the 111^th Congress that Sen. Lautenberg (D,NJ) chaired that addressed the IST provisions in this bill, but no other work has been done on the two earlier versions of the bill. While the most vociferous opponent of IST requirements (contained in a weakened version in this bill for water treatment plants), Sen. Collins (R,ME) is no longer in the Senate, it is unlikely that this bill will move through the Senate Environment and Public Works Committee, very little does.

It is remotely possible that this bill could pass in the Senate if it came to a vote there. The water treatment industry does not have a large and powerful lobby and has never been vociferously opposed to IST like the chemical industry has. This bill would receive no consideration in the House even though there is some support for including water treatment and waste water treatment facilities with high-risk chemicals on site in the CFATS regulations. The IST provisions of the bill would, however, produce a knee jerk reaction in the Republican leadership that would prevent its consideration.

Congressional Bills Introduced 01-23-13

Yesterday there were 62 bills introduced in the Senate and 66 bills introduced in the House. Of those 128 bills only two were potentially of specific interest to readers of this blog; both dealt with chemical facility security matters.

Chemical Security at Water Treatment Facilities

S 67 was introduced by Sen. Lautenberg (D,NJ). It would establish regulations for the security of chemicals at water treatment facilities. I’m assuming that it will be patterned after last sessions S 711. This bill was referred to the Senate Committee on Environment and Public Works. Last session there was one hearing at that Committee that addressed S 711, but no action was taken.

CFATS Modification

S 68 was also introduced by Lautenberg and it would modify the current CFATS program, probably along the lines of last session’s S 709. This bill was referred to the Senate Homeland Security and Governmental Affairs Committee. That Committee took no action on S 709 last session as they only addressed the bill by Sen. Collins. I expect that Sen. Carper will have a CFATS bill introduced this session that this Committee will deal with instead of Lautenberg’s bill.