House Considers New Legislation at Chemical Security Hearing

On June 12, the House Energy and Commerce Subcommittee on Environment and Hazardous Materials held a hearing on the current status of the chemical security program at the Department of Homeland Security (DHS) and considered two bills to amend the program.

The current chemical security program was established after Congress mandated in Section 550 of the Department of Homeland Security Appropriations Act of 2007 that DHS develop a temporary program for instituting security performance standards for high-risk chemical facilities. The chemical security provisions of the bill were the result of a heavily criticized backroom deal that excluded bipartisan agreements worked out in the House and Senate. Among the criticisms were the fact that the legislative language specifically exempted approximately 3,000 drinking water and wastewater treatment facilities from the chemical security program and that review of safer technologies was not required as part of the program.

Robert B. Stephan, Assistant Secretary for Infrastructure Protection at DHS, reported that under the current chemical security program, DHS has reviewed approximately 30,000 questionnaires (called "top-screens") from chemical plants. These top-screens are the initial stage in the agency's review of facilities and are used to determine each facility's placement in the tiered risk assessment. Those plants placed in higher-risk tiers are required to address more issues in their vulnerability assessments and site security plans, which will also be reviewed by DHS. Stephan noted that facilities have not yet begun submitting vulnerability assessments, but that DHS would soon be notifying facilities of their obligations to do so.

Stephan also testified to the subcommittee that DHS now supported the inclusion of drinking and wastewater treatment facilities determined to be high-risk in the chemical security program. Benjamin Grumbles, Assistant Administrator for Water at the U.S. Environmental Protection Agency (EPA), agreed that the exemption for facilities regulated by the Safe Drinking Water Act should be eliminated. Grumbles said that because of the exemption, the potential terrorist threat to U.S. water systems "remains alive and well."

The Two Bills

There are two chemical security bills currently pending in the House, and the subcommittee was considering them during the hearing. Rep. Bennie Thompson (D-MS), Chair of the House Homeland Security Committee, introduced H.R. 5577 (Chemical Facility Anti-Terrorism Act of 2008) on March 11; the legislation seeks to fully replace the temporary 2006 law with a more comprehensive program. The Thompson bill includes stronger consideration of safer technologies, greater involvement of plant employees, and would include the previously exempted water treatment facilities in the chemical security program.

Former Rep. Albert Wynn (D-MD), who left Congress after losing in his Democratic primary to challenger Donna Edwards, introduced H.R. 5533, which would essentially make permanent the criticized interim law from 2006 and the temporary DHS regulations that resulted. The Wynn bill would continue to exempt water treatment facilities and would not require consideration of inherently safer technology as part of the program.

Grumbles told the subcommittee that the administration had not taken a position on either bill, and Stephan did not discuss legislation. Several subcommittee members, however, took issue with a recent DHS letter to Thompson that expressed the agency's strong opposition to H.R. 5577. In the letter, DHS claimed that H.R. 5577 would have "a negative impact upon current and future efforts to secure the nation's high-risk chemical plants." Despite the subcommittee's scheduled hearing on the legislation just two days after the letter was sent to Thompson, no copy was sent to the subcommittee, and Stephan reported that he had not been authorized to share information in the letter with the subcommittee.

In Thompson's June 12 response to DHS, he expressed suspicion over the agency's timing and stated that he is "doubtful that DHS is still interested in continuing our good faith efforts at collaboration on this critical homeland security initiative."

Other Testimony

Among others testifying before the subcommittee was Philip J. Crowley, Senior Fellow and Director of Homeland Security at the Center for American Progress, who supported H.R. 5577 and the legislation's efforts to include water facilities and inherently safer technologies. Crowley also urged immediate action on the legislation, warning that chemical security was "too important an issue to fall victim to inter-agency or inter-committee rivalries."

 

Brad Coffey of the Association of Metropolitan Water Agencies explained that the association was opposing H.R. 5577 because of its belief that the legislation would undermine drinking water utilities' ability to operate effectively. Coffey expressed concern over the possibility that safer technologies could be required and claimed that "overall public health relies on our undisputed ability to choose the optimal drinking water disinfection method."

Marty Durbin, Managing Director of Federal Affairs for the American Chemistry Council (ACC), voiced concern over provisions in H.R. 5577 that provide DHS the authority to require the use of safer technology. Durbin explained that ACC supported reauthorizing and making the current chemical security program permanent, but that "Congress should allow the program to be fully implemented before making any significant, substantive changes."

Dr. Andrea Kidd Taylor, an assistant professor at Morgan State University's School of Community Health and Policy and previously the labor representative on the U.S. Chemical Safety and Hazard Investigation Board, supported H.R. 5577 and stressed the importance of implementing safer technologies as apart of the effort to make chemical plants more secure. "Substituting more secure alternatives for hazardous substances, where technically and economically feasible and comparable risks are not shifted," Taylor explained, "is the best way to protect workers, their families, and their communities."

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