House Moves to Reduce Risks from Chemical Plants

On Oct. 21, the House Energy and Commerce Committee approved [1] two pieces of chemical security legislation that encourage plants to switch to safer and more secure technologies. Although the bills still lack crucial accountability measures, they represent a major improvement over the flawed and inadequate [2] temporary security measures currently in place.

According to Department of Homeland Security (DHS) testimony, U.S. chemical plants and water facilities remain vulnerable to terrorist attacks. The department has identified [3] more than 7,000 high-risk chemical facilities. The current program does not cover drinking water and wastewater facilities.

A terrorist attack against a chemical facility – or against the railcars that deliver chemicals – could release a cloud of poison gas resulting in thousands of casualties. The new legislation aims to address this threat in several ways, including by promoting the conversion to chemicals that pose less or no risk to surrounding communities.

The bills – the Chemical Facility Anti-Terrorism Act of 2009 (H.R. 2868 [4]) and the Drinking Water System Security Act of 2009 (H.R. 3258 [5]) – require plant workers to participate in the security process and preserve states' authority to establish stronger security standards. Both bills also require covered facilities to assess whether there are alternative chemicals or processes that they could use that would reduce the consequences of a terrorist attack.

For example, numerous water facilities across the country have independently switched [6] from using chlorine gas as a disinfectant to liquid bleach or ultraviolet light. These alternate technologies work as well or better than chlorine gas and do not potentially threaten thousands should a terrorist attack cause a release.

One glaring weakness in the legislation is the absence of transparency. The bills allow the government to keep secret even the identities of facilities that are covered by the security programs. The types of information considered "protected" and thus not available to the public are overly broad and allow DHS to deny the public access to basic regulatory data needed to ensure the government and facilities are obeying the law. Such excessive secrecy could threaten the security of the millions of citizens living near, or even just passing by [7], what then-Senator Barack Obama referred to as "stationary weapons of mass destruction [8]."

Notably, the bills give DHS or the U.S. Environmental Protection Agency the authority to require the most high-risk facilities to convert to whichever safer technology the facility identifies for itself – under limited circumstances. A chemical plant can only be forced to convert if it is economically and technologically feasible to do so and if the conversion would actually reduce the risks. The legislation specifically prohibits requiring a facility to convert if doing so would force the facility to move to another location to avoid the requirement.

The bills' supporters agreed to numerous other compromises to ensure broader support and dampen what had been strong industry opposition. One change reduced the number of high-risk chemical facilities that may be required to eliminate catastrophic risks with safer technologies. Another change prevents citizens from suing individual companies for noncompliance. Instead, citizens may petition the government to investigate alleged violations at specific facilities.

The House Energy and Commerce Committee, chaired by Rep. Henry Waxman (D-CA), a sponsor of the bills, approved both bills on near party-line votes. Only one Democrat, Rep. Zach Space of Ohio, voted to oppose the chemical facility bill even after he sponsored a successful amendment to add further protections for agricultural interests. All the Republicans on the committee voted against the bill. The water facility bill was approved by voice vote.

The House Homeland Security Committee passed a weaker version [9] of the chemical facilities bill in June. The existing security regulations expired in October, but interim appropriations measures have extended the program.

A long legislative road remains ahead of the legislation. Before the full House can vote on the measures, several issues must be worked out. The two House committees passed different versions of the bills, with different weakening and strengthening amendments. The House Rules Committee must negotiate the form the legislation will take on the House floor. Additionally, technical questions remain, such as how government responsibility for covered wastewater and drinking water facilities will be decided. The legislation is still expected to be on the House floor before the end of 2009. Then the focus shifts to the Senate, which to date has taken no action on the issue.