HR 2868 Amendments

The Rules Committee has posted a summary of the 20 amendments that it had received by yesterday’s deadline for their consideration in formulating the rule that will be used to consider HR 2868 on the floor of the House later this week. The actual amendments are not currently available, so I can’t go into any great detail on their provisions, but I will take a general look at what is available and make my predictions on what would happen if they make it to the floor discussion. Doomed Amendments There are a number of amendments that have been proposed by Republican members of either the Energy and Commerce Committee or Homeland Security Committee that are almost certainly pro-forma amendments that are doomed to failure before they are even debated. Most of these were already voted down on a party line vote in committee. I’ll put these into three groups; anti-IST, anti-citizen enforcement or pro-CFATS Extension. There are a number of amendments that fall into the anti-IST category in that they would void or greatly restrict the provisions of §2111. These include: Austria (R, OH) #6, Barton (R, TX) #14, #16, #18, #20, Dent (R, PA) #5, and Upton (R, MI) #17. I would expect that two or maybe three of these would get to the floor for consideration. There are two anti-citizen enforcement provisions; McCaul (R, TX) #1, and Upton (R, MI) #15. One of these should make it to a floor vote. Then there are two amendments that would strike Title I of the bill and simply extend the current CFATS authorization; Dent (R, PA) #4, and Olson(X, TX) #9. Depending on the wording of the actual length of the extension, both bills might make it to a floor vote. Possible to Pass Once again, I am only able to see summaries, so I can only make a semi-educated guess as to which of the remaining amendments have a chance to pass a floor vote. This will be almost as accurate as a football bowl pool list; you don’t go for absolute accuracy, just play the percentages. The only Republican amendment left on the list is amendment #3 submitted by Rep. Flake (R, AZ). He has been a single minded crusader against earmarks this year and his amendment reflects that; it would prohibit earmarks of DHS grants established under this legislation. Since there are no earmarks in the current bill, it might pass. A shoe-in for passage on the floor is the amendment submitted by Chairman Thompson. This will make “a number of technical corrections and fixes typos and verbiage issues”. These almost always pass. The next best chance for floor passage is amendment #10 from Rep Hastings (D, FL). It would establish the position of Deputy Director of the Office of Chemical Facility Security responsible for interagency coordination and liaising with State and local government officials. Not only is this probably necessary, but it is added bureaucracy, always a good bet in legislation. Another good bet for passage is a GAO report required by amendment #8 submitted by Rep Titus (D, NV). This would require GAO to “determine best practices for transporting the chemicals that are used and produced at the facilities covered by the underlying legislation”. While this may sound like a straight hazmat transportation issue it may be an effort by the American Railroad Association to get the government to side with it its arguments with shipper reference hazmat liability issues. If the later is the case, the chances of passage go down significantly. There are two IST amendments that have a chance of passing. The first is from Rep Schrader (D, OR) and Kissell (D, NC) that would require DHS to report on the potential impacts of the IST provisions on ‘manufacturers or retailers of pesticide or fertilizer’. Studies only require time and effort on the part of DHS so this will probably pass. Rep. Cardoza’s (D, CA) amendment would require the Administrator to choose between the lower cost IST alternatives. This may not pass because it apparently ignores the fact that the Administrator will seldom make this decision, State officials will. Members may not see that distinction though so it still may pass. I know, I’m waffling. Amendment #2, submitted by Rep Halvorson (D, IL) was almost a waste of time to submit. According to the summary it would “permit [emphasis added] the Secretary to provide guidance, tools, methodologies, or software to assist small covered chemical facilities in complying with the security requirements”. Permit, but not require; it can’t hurt anyone so it should pass. Rep Marshall (D, GA) submitted amendment #7 that would “provide for the use of E-Verify as an additional measure designed to verify and validate legal authorization to work in the U.S.” as part of the background check provisions of §2115. This should pass because no one wants illegal to take good paying jobs that might be security related positions. Deserves to Fail The only remaining amendment listed on the Rules Committee web page is one that deserves to fail in my opinion. It is amendment #8 by Rep Foster (D, IL) and Lujan (D, NM) that gives special treatment to university and academic labs. It would require the Secretary to develop “appropriate protocols and security procedures” for these facilities if they were determined to be high-risk facilities. It is interesting that just before I read these summaries of amendments I had an exchange of emails with a PHD chemist who was concerned about a letter he had received from the American Chemical Society that included a brief letter that they wanted him to send to his representative about the upcoming consideration for HR 2868. He sent it to me because he objected to the following passage about academic labs:

“The Chemical Facility Anti-Terrorism Act of 2009 (H.R. 2868) is expected to direct the Department of Homeland Security (DHS) to design separate regulations for academic laboratories. As member of the American Chemical Society, I strongly support this regulatory distinction. Laboratories operate much differently than manufacturing sites. They often use more kinds of chemicals, but at much smaller amounts, on different timescales, and in experiments and processes that are frequently modified. This measure reduces the possibility that academic labs, a wellspring of our nation's scientific and technological innovation, would be forced to grapple with rules intended for industrial-scale facilities.”

He objected because he knows from personal experience that many (more probably most) academic labs suffer a severe blind spot when it comes to both safety and security. Now I have only been in one University chemistry lab (where I got my BS degree), but this reader confirms what I have heard from a number of graduates from a number of different universities, that university people dislike the inconvenience of security measures. They get in the way. The problem is that beyond the Top Screen, only facilities with significant amounts of dangerous chemicals are covered by the CFATS regulations. If a facility is determined to be a covered facility it needs to have rigorous security measures in place. It doesn’t matter if it is a university lab or chemical manufacturing facility, or a water treatment facility. If the risk is there the security measures need to be there. This is just one more instance of another group thinking that their place in life or society is more important than everyone else’s. They are demanding special attention because they are special. If they put our safety at risk, it is just too bad. It just gets in their way to try to establish minimal levels of security. This demand for special attention deserves the same treatment as all other such requests; a quick and firm denial. Moving Forward The Rules Committee will meet this afternoon and decide which of these amendments will make it to the floor. They will then craft a resolution explaining how the debate will be conducted. That resolution will not be printed at the GPO until tomorrow afternoon at the earliest. Fortunately the Rules Committee realizes this and will post a copy on their web site this evening. When that happens I will prepare a brief post outlining the rule. Then we wait and see when the matter actually comes to the floor. I keep hearing Wednesday, but that never comes directly from anyone in the Democratic House Leadership, so we don’t know for sure yet. Maybe we will hear something today.

Chemplant Database Updated

For my ‘liberal environmentalist’ readers, this will be old news, but last week the organization OMB Watch updated their on-line ‘Chemical Security Database’. This title is only slightly misleading as it is a copy of the RMP database that the Environmental Protection Agency that the EPA used to keep on-line. After the 9-11 attacks this data base was moved off-line, but is still publicly available in EPA Reading Rooms across the country. I said, ‘slightly misleading’, because DHS did not only use only the RMP status in setting up the list of Chemicals of Interest (Appendix A to 6 CFR 27), and did not include all of the RMP chemicals on that list. For example, the generic ‘flammable liquids’ did not make the COI list while many CW precursors on the COI list do not make the RMP list. Having said that, this database is the most readily available listing of facilities that have many of the COI on site. One minor problem with this list is that it is static; it only reflects RMP status as of a single date last summer. This is because OMB Watch does not have ‘real time’ access to the EPA database. They have to send people to the Reading Rooms to compile this data. RTK vs Security The re-publication of this database will again bring up the discussion of weighing the public’s right-to-know (RTK) versus keeping potential targeting information out of the hands of terrorists. First off, Federal law requires this information to be made public, because the public does have a legal right to know what dangerous chemicals are being used and stored in their communities. This is why OMB Watch was able to compile this information without fear of legal retaliation. The public has a right to know what risks it faces from potential terrorist attacks on local facilities or even just accidental releases at those facilities. While many chemical companies are open and honest in their communications with the local communities, too many have a history of secrecy and denial. Publication of this database allows community activists and, hopefully, local elected officials to press companies for public engagement. Having said that, it is also clear that this on-line database is searchable from all over the world. It will make it easier for enemies of this country to find and target potential high-risk chemical facilities. This causes some level of concern in the chemical security community. Does this increase the risk of a terrorist attack? By some small amount it probably does. It does provide international terrorists with a searchable list that could be used to identify which chemical facilities, if successfully attacked, would provide the largest possible potential impact. The terrorists would still have a lot of work to go from that list to executing a potential attack. Eliminating this type of list would not eliminate that risk. There are enough news stories and environmentalist ‘rantings’ about dangerous facilities that an only slightly longer internet literature search would certainly identify these facilities. Local, homegrown terrorists, on the other hand have almost no need for this list. Local community activists have a good idea of what hazardous chemicals are located in their community and readily try to share this information with their communities. Lacking that source, all someone has to do is to conduct a cursory surveillance of a chemical facility to get a decent understanding of the hazards associated with chemicals moving into or out of the facility by watching placards on tank trucks and rail cars. Some local terrorists will even have inside information from working at or having worked at the facilities. Negligible Security Risk No, while there is a slight increase in risk associated with a publicly searchable data base such as this, it is negligible. The benefit provided by this list to informed public discourse on safety and security far out weighs the risk.

Reader Comment – 11-02-09 Debate

Yesterday’s blog posting on the on-line debate between Chairman Thompson and SOCMA VP Almond drew a quick response from Anonymous, but certainly a different Anonymous from Sunday’s posting. This Anonymous noted that: “The problem I have with IST and another provision(s) which gives the agency authority to (arbitrarily) add more chemicals to the list. So whatever GreenPeace wants, GreenPeace gets regardless if it's a smart or dumb move. They're the ones essentially writing this bill anyway. The pols don't fully appreciate what's in here.” Actually, the Republican legislation that originally authorized CFATS, the now nearly infamous §550 of the 2007 DHS appropriations bill, gave almost unlimited power to the Secretary. It gave the Secretary sole discretion in naming the chemicals of interest and establishing the rules that determined what chemical facilities were covered under CFATS. It still provides the Secretary with the authority to designate an individual facility a high-risk facility regardless of which chemicals are on-site. Of course, saying that the Secretary had 'sole discretion' is a bit of a misleading statement. Anyone that has been following the CFATS regulations through their formulation (like I have) well remember the fights over the coverage of propane (and how the Secretary ‘caved’ to political pressure from the agricultural community), of whether CFATS applied to agricultural facilities (and that ‘temporary’ exemption to the Top Screen rules is still in place), and of whether or not gasoline can form a vapor cloud explosion (and there is still an unofficial ‘temporary’ freeze on formally telling gasoline terminals that they are high-risk facilities). This is a representative republic and politics still controls how the Government operates In HR 2868 Congress has taken a lot of this authority back; not all of it, of course, but a lot of it. This means that groups like Greenpeace and the unions will have more affect on chemical regulations in general as long as the voters continue to return the Democrats to the majority in Congress. When the Republicans inevitably (sooner or later) come back into favor, then business interests will have more influence. This is the way a representative democracy works. The whole time, of course, the career employees of DHS continue to slog through the daily issues of writing and enforcing regulations. Potentially the most important part of HR 2868 was the creation of the Office of Chemical Facility Security. This section (§2114) creates a career level Director of that office and specifies the qualifications for that office. This removes a lot of the daily political (business or environmentalist) influence from the enforcement of these regulations. According to §2114(b) this new director must have “a demonstrated knowledge of physical infrastructure protection, cybersecurity, chemical facility security, hazard analysis, chemical process engineering, chemical process safety reviews”. No where do I see a requirement for membership in Greenpeace, but even the environmentalists would agree that these would be appropriate requirements for someone overseeing chemical facility security. So, the Republic moves on.

Reader Comment – 11-01-09 Title II & III

Anonymous left a fairly quick reply to my post of yesterday afternoon about the Title I and Title II provisions of the new version of HR 2868 that was posted on the House Rules Committee web site. Anonymous provided a number of answers to some of the concerns I had about the shortcomings associated with Title II and Title III. The post is too long to copy en toto here, but you can (and should) read it at the end of Sunday’s Post. I would like to respond to a couple of the issues that Anonymous addressed. Spelling out RBPS Where I complained about the lack of definition of the risk-based performance standards in Title II and Title III, Anonymous replied:

“I am guessing that the reason why RBPS were spelled out for title 1 is because they already exist for CFATS - in fact I think the bill text is very similar if not identical to the regs. If they had been left general or changed from CFATs, DHS might have had to completely re-do the regulations even for RBPS's that haven't been explicitly changed by the bill. Since no similar regulations exist on the water side, there was no need to be that explicit, especially since it is the Administration's position is that EPA will simply alter DHS's RBPS to suit the water facilities' imique characteristics.”

Actually, this argument is completely backwards. Since Title I, §2120(d)(4)(B) only requires that Secretary amend the current CFATS regulations to “ensure that such regulations are consistent with the requirements of this title and the amendments made by this title”, just mentioning the requirement for RBPS, as was done in Title II and III, would have allowed the current RBPS to stand unchanged. Instead the Homeland Security Committee chose to address those RBPS in detail, modifying and adding new requirements as they thought necessary. The Energy and Commerce Committee has questioned ability of DHS to appropriately address the unique security issues associated with water treatment facilities so much that they removed the oversight of that security from the only executive department specifically charged with protecting homeland security. I would have expected the Committee to control how much influence that DHS had over the drinking water security regulations by specifically outlining what parts of the CFATS RBPS could apply to water treatment facilities and what additional coverage was needed. Additionally, the CFATS RBPS do not address what are clearly unique security aspects of drinking water treatment. There is nothing said about providing security for off-site water sources, on-site water contamination, or downstream contamination of drinking water. Surely the Committee has some ideas of what types of requirements they want to see included in performance standards for these areas. Background Checks Where I complained about the lack any mention of background checks for personnel working at covered water treatment and waste water treatment works Anonymous replied:

“Personnel surety is, of course, one of the RBPS that EPA will need to develop. Since water facilities can be very spread out and in the middle of residential areas, it may be a harder thing to do - the Title 1 personnel surety requirement keys to the people who have unescorted access to sensitive areas of the facility. On the water facility side - all of the WATER is the sensitive area, because of the contamination risk.”

I agree that the personnel surety may be harder at water treatment facilities, but as Anonymous points out it is probably going to be more important because of the unsupervised, off-site access that many employees will have to the distribution network. This very difficulty makes it important that it is specifically addressed in the legislation. I find it absolutely ludicrous that the Energy and Commerce Committee spent so much time reworking the details of §2115 of Title I (so much so that their version of that section forms the backbone of the section in the amendment), and did nothing to address the issue in Title II or Title III. Now I do understand the literary difficulties of adding the provisions of a large section such as §2115 to a paragraph of §1433. It would be unreasonable to cram all that information into an already crowded §1433. This could have been easily handled by adding a new section to the Safe Drinking Water Act, or even just referencing the requirements of §2115 in the discussion of the personnel surety RBPS. Once again, the Energy and Commerce Committee chose to take the easy way out and let the Executive Branch both set and implement policy. Site Inspections I questioned the fact that these two titles make no mention of a security inspection force and suggested that provisions should have been made to require training of EPA inspectors at the DHS Chemical Security Academy. Anonymous responded that:

“Both SDWA and CWA already require inspections - security will need to be added, to be sure, but the personnel and structure already exists.”

From personal experience I question whether EPA has an effective inspection program. I spent 16 years working at RMP covered chemical facilities and we never saw an EPA inspector. With EPA already delegating much of their drinking water and waste water treatment inspection authority to State agencies, I really doubt that there are sufficient inspectors available to take on the security inspection role. Even if there are sufficient inspectors currently on staff, they certainly do not have adequate training to evaluate security matters. Now EPA inspectors will have an advantage over many of the DHS inspectors looking at chemical facilities, the EPA inspectors should be familiar with treatment facility operations. All they are going to need to learn is the security side of things. The DHS Chemical Security Academy program could easily be modified to provide the appropriate security issue instruction to the EPA inspectors. IST Appeal In my piece I questioned the lack of appeal provisions for facilities required to implement IST methods. Anonymous replied:

“In my read, both titles II and III contain appeal provisions for IST. They aren't as explicit probably because each State can provide its own ways of conducting appeals under SDWA or the CWA, so there could have been constitutional problems associated with directing something specific.”

I went back and re-checked my reading of the legislation and Anonymous is correct; §1433(g)(3)(D) provides that an appeal process will be established. I am still struck by the contrast between the requirements in Title I and the lack of requirements in Title II. The comment of Anonymous about ‘constitutional problems’ does not carry any significant weight. Since this legislation is giving the State authority to make the decision on IST implementation the legislation can also spell out the appeal provisions. This would be especially true if the appeal were to be made to the Administrator, in much the same way as Title I provides for the DHS Secretary to be the final appellate authority for IST provisions in the chemical facility program. Read the Remainder of the Comments Again, these are just a few of the areas that Anonymous addressed in reply to my posting. I urge all of those interested in this legislation to go back and read the entire posting. A real understanding of the legislation requires a detailed hearing of both sides of the issues. I also, as always, encourage others to join in the discussion.

HR 2868 Debate

There have been a number of point-counter point discussions in the press about the chemical security legislation currently being considered by Congress. The latest in this call-response exchange was seen last week on TheHill.com a congressional blog forum. The initial comment came from Chairman Thompson, who provided a concise explanation of the reasons that his Committee has been pushing the inherently safer technology provision in HR 2868. The response to this message came from Bill Almond, a vice president for the Society of Chemical Manufacturers and Affiliates (SOCMA). Bill Almond does make an interesting point when he raises the issue that no one has identified a credible threat against any chemical facility in the United States. Other than a general call for attacks on the fuel supply system across the world, there has been no mention in any public discussion of intelligence that there has been a credible threat against any chemical facility. There are two major problem with this point of view. First, before 9/11 there was no credible threat that anyone would use an airliner to attack the Pentagon or the White House; even the attack on the Twin Towers was only generally presaged by the earlier truck bomb attacks on the basement. The second point is that by the time an intent to attack chemical facilities is uncovered, it would be far too late to take reasonable security precautions to protect the large number of potential targets. While there are certainly problems with legislating inherently safer technology, I continue to be disappointed in the disingenuous arguments used by SOCMA that claim that the IST mandate in this bill will cripple the pharmaceutical industry. The way that the IST assessment – implementation requirement is written into HR 2868 gives the pharmaceutical industry a free pass on the issue; all they have to do is note that they cannot change their current process without extensive, costly research that must ultimately be approved by the FDA before DHS can even get a chance to rule on its security implications. Of course, Chairman Thompson’s comments are not without their own hyperbole. He notes, in his discussion of water and waste treatment security, that the Obama Administration “directs the EPA to work with DHS to implement a chemical security program that leverages the CFATS program”. While that testimony was received in recent hearings, there is nothing in the language of Title II or Title III of HR 2868 that directs such action; just vague wording suggesting that EPA consult with DHS in setting the risk based performance standards. I will say that I am pleased to see that this discussion, while not always entirely accurate in their discussion of the details, has been about issues and not personalities. Hyperbole and exaggeration are frequently, and perhaps inevitably, well used tools of political discourse. At this point, the discussion has not descended into attacks that impugn the motives of the other side, so I suppose we can excuse the other excesses.

Congressional Hearings Week of 11-02-09

While Congress is fast reaching the end of the Second Session, there are still new bills being introduced and Congressional Hearings being held. This week there are four hearings currently scheduled that look like they may be of interest to the chemical security community. Both Homeland Security Committees, the Rules Committee and the Committee on Science and Technology in the House will be conducting these hearings. Two of the hearings have been discussed previously. The Rules Committee hearing on Tuesday at 3:00 pm EST will establish the rule for the consideration of HR 2868, the newly renamed Chemical and Water Security Act of 2009. The Senate Homeland Security Committee will complete their business meeting on November 4th at 10:00 am EST; this will include the markup of S 1649, the Weapons of Mass Destruction (WMD) Prevention and Preparedness Act of 2009, and HR 553, the Reducing Over-Classification Act of 2009 which I discussed last week. The Subcommittee on Emergency Communications, Preparedness and Response, of the House Homeland Security Committee will be marking up two bills affecting support for first responders. High-risk chemical facilities will normally rely heavily on first responders for major portions of their emergency response to terrorist attacks, so they should be very interested in federal support for such agencies. I haven’t seen one of the two bills they are marking up, First Responder Anti-Terrorism Resources Act, but it certainly sounds like it should fall into that category. This hearing will be held on November 3rd at 10:00 am EST. The final hearing of note is another unseen bill markup, this time by the House Science and Technology Committee’s Subcommittee on Technology and Innovation. They will be marking up the Cybersecurity Coordination and Awareness Act. Since this bill has not been submitted, there is no copy publicly available. If this has anything to do with the control system security, the chemical security community will certainly be interested, but even a purely IT security bill should be of some interest.

Title II and III of HR 2868

As promised in an earlier blog, I have gone back and reviewed Title II, Drinking Water Security, and Title III, Waste Water Treatment Works Security, of the new version of HR 2868 that was introduced last week in the Rules Committee as an ‘amendment in the form of a substitute’. Title II is essentially a transfer of the contents of HR 3258 as reported by the Energy and Commerce Committee. Title III was written out of whole cloth since treatment works were originally included under the provisions of HR 2868. Chairman Oberstar and his staff presumably prepared Title III so that treatment works would receive the same special security treatment accorded to water treatment facilities. Changes in Title II As I had predicted before reading Title II, it is essentially a word for word transfer of the provisions of the reported version of HR 3258. There have been some minor revisions that clear up some legal ambiguities but no real changes have been made in the provisions. The following changes were made:

§1433(a)(1)(B)(i) – added wording to specifically require submission of vulnerability assessments to the Administrator of the US EPA. §1433(a)(1)(B)(iii) – added wording to specifically require submission of site security plans to the Administrator of the US EPA. §1433(l)(2)(C) – changed the legal standard for determining violations of the information disclosure rules to: “Whoever discloses protected information in knowing violation of the regulations and orders issued under subparagraph (A)”. §1433l(l)(7)(A)(v) – added ‘documents, or records’ to the information protected. §1433(m) – changed the wording of this section to specifically refer to amendments made by Title I of the Chemical and Water Security Act of 2009 to Title XX1 of the Homeland Security Act of 2002 as regulations that do not apply to water treatment facilities.

Title III Title III, the Wastewater Treatment Works Security Act of 2009, adds a new section to Title II of the Federal Water Pol1lution Control Act (33 U.S.C. 1281 et seq.). Section 222 will do for the treatment works what the proposed §1433 of the Safe Drinking Water Act (42 U.S.C. 300i–2) does for drinking water treatment facilities. It would have been nice if the Transportation and Infrastructure Committee staff had taken the easy way out and copied HR3258 and then made revisions appropriate to treatment works. No, instead, they used the ideas and most of the provisions from HR 3258, but wrote the actual provisions of HR 3258 in original language. That meant extra work for the staffers, for people like me who review legislation, as well as for the lawyers and courts that will inevitably have to interpret these regulations. This last part is particularly aggravating since there is no congressional record of hearings or committee reports supporting Title III. Thus courts will have little or no record of congressional intent when they are required to interpret the provisions of this legislation. Title III does provide another unique standard to determine what treatment works are covered by this title. Where Title II uses the number of customers that a facility supports, Title III uses a 2.5 million gallon/day of treatment capacity as the standard. Shortcomings It is clear that the Energy and Commerce Committee staff did not do as much work on Title II (or HR 3258) as they did on their revisions to the introduced version of HR 2868. It is equally apparent that the Transportation and Infrastructure Committee staff did even less work on Title III, though they certainly have a legitimate excuse given the short amount of time they had to work on this legislation. There are several serious shortcomings in these sections of this legislation that will go to the floor of the House in the next week or so. It seems to me that these shortcomings reflect the lack of concern and expertise in these two committees for security in general or chemical security in particular. To paraphrase Rep Dingell’s snide comments about the Homeland Security Committee in the full markup hearing of the Energy and Commerce Committees, it is apparent that these two committees don’t know anything about security. Risk-Based Performance Standards Each of these titles requires the Administrator of the Environmental Protection Agency to establish risk-based performance standards (RBPS) that the facilities will have to use to establish their site security plans. Both require the Administrator “take into account section 27.230 of” 6 CFR. This vague wording provides little guidance to an agency that has little experience in security matters. Title I, on the other hand spelled out in great detail the areas that the Homeland Security Committee wanted the DHS Secretary to address in the development of risk-based performance standards for high-risk chemical facilities. This shortcoming is particularly acute when considering that these two titles address chemical security as just a minor part of the security planning that the facilities must address. Both of these titles rightly recognize that the unique missions of these types of facilities make them potential terrorist targets even if they have no significant quantities of substances of concern on site. These two committees did the communities surrounding these treatment facilities a serious disservice when they ignored this fact when they wrote these weak and ineffectual RBPS provisions into these two titles. They punted on their oversight and policy setting responsibilities. Background Checks There are no provisions in these security regulations for conducting background checks on facility employees. It seems absolutely ludicrous for facilities that can have multiple rail cars of chlorine gas on site, not to be required to have the background of their employees and contractors checked to ensure that they are, at the very least, not on a terrorist watch list. Title I goes into great depth and detail into the procedures required for these background checks and the protections provided to employees to ensure that these checks are not used as methods to get rid of politically troublesome (ie: labor organizers) employees. The exact same provisions should have been included in each of these titles. Methods to Reduce Consequences Both titles require facilities that “possesses or plans to possess a substance of concern in excess of the release threshold quantity set by the Administrator” {Title II, §1433(g)(2)} must complete an assessment of methods to reduce the consequences of a terrorist attack. They also allow for Tier I and II facilities that must conduct such an assessment to be required to implement such methods. In states where the State has enforcement authority for drinking water treatment or wastewater treatment, the appropriate State official is given authority to order the implementation. In all other States, the Administrator is given that authority. The Administrator is given authority to ensure State officials obtain timely submissions and make timely decisions about requiring implementation. The Administrator is not allowed to review the actual implementation decision made by the State. This ensures that there will be a wide variety of standards used to evaluate the implementation requirements. In most States, there will be few if any required implementations. This assessment is supported by testimony of Brian Ramaley, President of the American Water Works Association, before the Energy and Environment Subcommittee on October 1st. He stated in his written testimony (pg 7) that he was confident that state enforcement agencies would “generally defer to the water treatment determinations made by local water experts.” This may explain why these two titles do not provide any provisions for the appeal of implantation decisions. It appears that the assumption is being made that the States will not require implementation so there is no need for an appeal procedure. Even if that is true, there needs to be a procedure in the legislation for an appeal process because the States are being given full authority to require privately owned facilities to spend money without any safeguards against capricious or arbitrary decisions. If appeals procedures are not included in the legislation these cases will inevitably end up in court with the attendant threats of unintentional disclosure of security information. No provisions for Inspectors Neither title provides any requirement for the Administrator to develop and train an inspection organization to enforce the security provisions of this legislation. It is not clear that either committee made an effort to determine how many facilities would actually be covered by the standards in this bill. I would suspect that the EPA will, between the two titles, be inspecting a comparable number of covered facilities as DHS is currently dealing with high-risk chemical facilities. This means that EPA will have to have a security-trained inspection force of about 250 personnel to provide the same level of service to the covered facilities. To fulfill the Obama Administration’s desire to have similar standards used for chemical security at all federally covered facilities this legislation should have required that the inspection personnel used by the EPA would have to be trained by the ISCD’s Chemical Security Academy. Suits and Petitions With all of the concerns that the Democrats have expressed about the requirements for citizen suits and petitions in Title I for high-risk chemical facilities, it is amazing to me that there are no similar provisions in Title II or III. This may simply be that there are already provisions for these actions in the underlying legislation. If that is the case, then there should be specific provisions that deal with the security implications of such suits. The Way Forward The House Rule’s Committee is accepting proposed amendments to this new version of HR 2868 until 6:30 p.m. EST on Monday. They will be holding a Committee hearing on HR 2868 on Tuesday at 3:00 pm to formulate the ‘rule’ and resolution to bring the bill to the floor of the House. The bill could come to the floor on Wednesday or Thursday. You can expect a late posting on Tuesday evening on this blog describing the amendments that will be considered during the House floor debate on this bill. The timing will depend on when the Rule’s Committee posts their ‘unofficial copy’ of the rule on their website. The official publication of the resolution on the GPO web site will likely not take place until Wednesday afternoon.