Chemical Security Legislation Begins to Move Through Congress

The House Homeland Security Committee passed legislation June 23 that would greatly reduce the risks and consequences of a terrorist attack on a chemical facility. The bill also includes small but important improvements in the accountability of the nation's chemical security program. However, industry-sponsored amendments and the continued risk of excessive secrecy during implementation diminish the value of the bill.

The legislation, the Chemical Facility Anti-Terrorism Act of 2009 [1], would reauthorize and enhance existing security rules that are due to expire in October. The current security rules, the Chemical Facility Anti-Terrorism Standards (CFATS), were developed [2] following passage of the Department of Homeland Security (DHS) Appropriations Act of 2007 [3]. Section 550 of the appropriations act required DHS to develop a temporary program for instituting security performance standards for high-risk chemical facilities.

Thousands of chemical facilities around the country represent potential terrorist targets – storing and processing chemicals that, if released, could become deadly clouds of gas drifting through communities. For many of these plants, there are safer alternatives [4] to the chemicals and processes now in use.

The new legislation requires chemical facilities to assess safer chemicals and processes that would reduce the harms caused by chemical releases. The bill also provides for worker participation in identifying vulnerabilities at plants and writing security plans. The facilities that put the most people at risk would be required to implement safer alternatives, provided doing so is feasible, cost-effective, and does not shift risks to other localities. Funding is authorized to help facilities convert.

Transparency advocates view the bill's accountability measures as a significant improvement to the current CFATS, striking a better balance between withholding information that would pose a threat if disclosed and making public information whose disclosure is vital to ensuring the program is working properly. Some of the accountability measures include:

• Government-held information that is currently publicly available would remain available
• A publicly available annual progress report to Congress is required
• The DHS is directed to create a procedure whereby anyone can anonymously report vulnerabilities and other problems to the appropriate authorities, who must review and, if needed, act on the report
• Whistleblower protections are clearly spelled out in the bill

Nevertheless, transparency advocates remain concerned that too much discretion is left to the secretary of DHS on what information can be disclosed. The language of the bill could be interpreted as allowing DHS to conceal basic regulatory data critical to evaluating the success of the program and the safety of communities near chemical plants.

Despite having won approval of four substantial amendments, no committee Republicans voted to support [5] the bill. Several advocates supporting the bill criticized [6] the Republican-sponsored amendments for weakening crucial features of the legislation.

The successful Republican amendments could exempt a large portion of the highest-risk plants from implementing safer alternative technologies if they are classified as a "small business concern." Other adopted amendments could slow the process and exempt facilities by requiring redundant analyses of the costs of converting to safer technologies, without consideration of their benefits, such as reduced liability, cost savings, jobs created, and reduced risks from terrorist attacks.

Republican members of the committee unsuccessfully attempted to strip from the bill the requirements for assessing and implementing safer technologies and processes. Minority amendments also sought – and failed – to limit the provision allowing citizens to sue the government or a facility for failure to meet their obligations under CFATS.

The House Energy and Commerce committee, another body with jurisdiction over the bill, will consider the legislation over the next several weeks. An additional title that adds water treatment facilities will be considered as well. So far, there has been limited activity on chemical security in the Senate, but the chamber is expected to take up the legislation once it passes the full House. The bill's supporters have stressed the importance of passing the legislation prior to the October expiration date for the current security rules.