Chemical Security Path Diverges in the Senate

Two Senate Committees reviewed options for enhanced chemical security yesterday (July 28).

 The Senate Homeland Security Committee marked up and passed a generally straightforward three year extension of the existing CFATS rules that affect chemical manufacturers and facilities.  The Chemical Facilities Anti-Terrorism Act of 2009, H.R. 2868 (as passed by the House last November) was approved 13-0 as amended by a substitute amendment from Committee Ranking Member Susan Collins (R-ME).  The amended bill does not include any language relating to “inherently safer technologies” nor to expanding its reach to encompass drinking water and wastewater utilities.  It does include new language calling for chemical security training, technical assistance, and creates a chemical facility security board to advise DHS on CFATS implementation initiatives.

 The Senate Environment and Public Works (SEPW) Committee also met yesterday to consider “Protecting America’s Water Treatment Facilities.”  While not specifically convened for the purpose, much of the hearing centered on legislation introduced by Sen. Frank Lautenberg (D-NJ) – S 3598, the Secure Water Facilities Act.  This bill mirrors the drinking water and wastewater titles included in the 2009 House-passed HR 2868 CFATS legislation.  As introduced, the Lautenberg bill would bring drinking water and wastewater utilities under the CFATS umbrella; would require states to determine whether “at risk” utilities had done due diligence in their choice of technologies; calls for states and utilities to make “inherently safer technology” determinations (although that term does not appear in the legislative language); and places EPA as the principal regulating authority for these provisions (with some collaborative efforts from DHS).

 The SEPW hearing included testimony from Cynthia Dougherty, EPA OGWDW Director; Ben Grumbles, Arizona DEQ Director; Paul Orum of the Blue Green Chemical Security Coalition; Carlos Perea, CEO of MIOX Corporation; and Darius Sivin, a lobbyist for the United Auto Workers.

 Dougherty reiterated the Administration’s guiding principles for CFATS reauthorization:  1) the Administration supports permanent chemical facility security authorities; 2) CFATS reauthorization presents an opportunity to promote the consideration and adoption of inherently safer technologies (IST) among high risk chemical facilities; and 3) CFATS reauthorization also presents an opportunity to close the existing security gap for wastewater and drinking water treatment facilities by addressing the statutory exemption of these facilities from CFATS.  The Administration supports closing this gap and supports the structure and approach outlined in S. 3598 to accomplish this.  She went on to note that, “The economic impacts of a terrorist attack or natural disaster on drinking water or wastewater utilities could be significant for businesses and infrastructure…simply put, the loss of water services would undermine the viability of just about any community.”

 Grumbles focused on the Water Sector’s admirable progress since 9/11 and suggested that, “…any chemical security regulations aimed at the Water Sector needs to balance the primary goal of protecting public health with enhancing security and public safety.  We can’t afford to sacrifice public health in the name of chemical safety…decisions on the chemical use at individual facilities are best made by the utility experts at the local level.”  He also noted, “On its face, few would argue with the goal of IST.  Perhaps the question is how should it be implemented and by whom?  Treatment methods will continue to improve but we risk making dangerous trade-offs if we force chlorine substitutes upon community water and wastewater systems without a careful evaluation of local and regional factors.”  Grumbles went on to suggest that Congress should provide direction but not dictate technology or methods.  He stated that security-related decisions need to be made in close consultation with states – not to become wholly responsible for water security – but rather to be engaged commensurate with their current responsibilities for program implementation.

 Orum, Perea, and Sivin each expressed general support for enhanced security measures for drinking water and wastewater utilities.  They also signaled support for the Lautenberg bill’s approach to required consideration and/or adoption of inherently safer technologies.  Orum focused on the benefits of risk reduction; Perea on the cost savings derived from alternate technologies; and Sivin on worker safety and job creation.  Orum and Sivin also recommended that the bill should be amended to allow greater distribution (transparency) of utility assessments, plans, and implementation strategies and results; remove the exclusion to correct deficient assessments; and remove criminal penalties for disclosure of protected information.

 At the end of the hearing, the Committee did not indicate when this issue (or this bill) would be brought for a vote.  It is uncertain whether the Committee would have time on its legislative schedule to consider S. 3598 or other related water security legislation before the August Recess.  It also would need to be considered in tandem with the amended version of HR 2868 to be able to move to the Senate Floor.

You may view the archived video of the SEPW hearing and download testimony from the witnesses by going to:

and clicking on “Previous Events.”


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