Battle Over Chemical Facility Security Reignites

July 22, 2009

Temporary regulations, known as the Chemical Facility Anti-Terrorism Standards (CFATS), address the security of thousands of chemical facilities. CFATS, which is considered "woefully inadequate" by some critics, expires Oct. 4, 2009. If Congress doesn't enact new legislation, that deadline has already been extended one year, and funding is expected to be available to continue business as usual.

But there is a possibility that Congress will act this year. The US House Homeland Security Committee approved its version of a bill on June 23, 2009, though no Republican members voted for it (search THOMAS for HR 2868, the Chemical Facility Anti-Terrorism Act of 2009). This committee approved a similar bill last year, but it didn't survive as it went through other committees. The current bill's sponsor and co-sponsors span the country: CA, DC, MA, MS, NJ, NY, and TX.

The House Judiciary and Energy and Commerce committees are getting the next crack at this year's version. The Transportation and Infrastructure Committee may also get involved, says US Public Interest Research Group's Liz Hitchcock, 202-546-9707, since wastewater facilities have been added to the list of facilities potentially covered. The bill does not address risks posed by transporting toxic substances to facilities, so related issues would remain largely unresolved. Each committee may modify the bill to some extent.

The Judiciary Committee may not have a hearing, since it is focusing on just one aspect of the bill, the provision allowing for citizen suits.

A hearing before the Energy and Commerce's Subcommittee on Energy and the Environment was tentatively scheduled for July 23, 2009. The hearing is also expected to address a related issue. On July 20, 2009, six House Democrats introduced the Drinking Water System Security Act of 2009. The bill would require drinking water facilities to take a number of steps to improve security, including use of safer chemicals, such as chlorine replacements, when possible. The sponsors say they have the support of many large water utilities, as well as many labor, health, and environmental groups.

There is no companion Senate legislation to either of these bills yet, though the Senate is expected to consider legislation if a bill passes the full House.

The advocacy group OMB Watch says the bill that came out of the Homeland Security committee is a mixed bag, offering some changes it considers improvements, such as requiring development of safer chemicals and processes in some instances, and some limitations, such as measures that continue to limit transparency of information regarding potential public threats.

OMB Watch is one of about 50 groups working together as a coalition to try to modify the current regulations. For information on the coalition, which includes labor, public employee, public health, environmental, and social justice groups, contact OMB Watch's Turnbaugh.

The Congressional Budget Office estimates that HR 2868 as it stands would cost the federal government about $300 million each year to implement from 2011-2013, then $283 million in 2014. In addition, there would be costs for various public and private facilities to comply with the new regulations, but CBO can't yet estimate those costs. Nor can it estimate any changes in revenue paid to the federal government in response to the new regulations, though CBO anticipates that revenues would be relatively low.

The CBO also did not attempt to estimate the benefits of the bill in dollar terms — a standard procedure included in "cost-benefit" analysis to see whether a measure is worthwhile as public policy. The Government Accountability Office estimated in 2004 that there are 123 US chemical facilities where a leak or terrorist incident could cause potentially fatal casualties to more than a million people. The dollar value of preventing those deaths and casualties is not included in the CBO report.

If any legislation is approved, it would take some time for the Dept. of Homeland Security and EPA to implement any new regulations.

For much more information on various chemical facility security issues, see the TipSheets of Nov. 26, 2008, and June 7, 2006.