On October 21st, the House Energy and Commerce Committee chaired by Representative Henry Waxman (D-CA) and Subcommittee Chair Edward Markey (D-MA) approved comprehensive chemical plant security legislation (H.R. 2868 & H.R. 3258) in a 29-18 vote. The Committee rejected all 15 Republican amendments designed to cripple or delay both bills. The legislation is expected to go to the House floor later this fall. This is the first time this legislation has been approved by the two authorizing committees. On June 23rd the Homeland Security Committee also approved a weaker version of H.R. 2868.

“A compromise acceptable to leading industry lobbyists wasn’t enough for Committee  republicans. If they had had their way, chemical plants that pose catastrophic risks to densely populated areas would continue to put millions at risk for years to come,” said Rick Hind, Legislative Director of Greenpeace. In fact, the American Chemistry Council, in a letter to Chairman Waxman just before the committee markup, proclaimed HR 2868 "the appropriate vehicle for ensuring a permanant CFATS program."

More than 200 chemical facilities have converted to safer chemical processes since 9/11  eliminating poison gas risks to 38 million Americans. Hundreds of other plants together put more than 100 million Americans at risk. A blue-green coalition of more than 50 organizations has been urging Congress to enact legislation to eliminate these risks. They include: the  United Auto Workers, Steelworkers, Teamsters, Fire Fighters, Sierra Club, Physicians for Social Responsibility, U.S. Public Interest Research Group and Greenpeace. The Department of Homeland Security and the EPA testified in favor of this legislation at an October 1st hearing held by the Subcommittee.

*The final version of the Energy and Commerce Committee bills (H.R. 2868 & H.R. 3258) would:

• Conditionally require the highest risk plants to use safer cost-effective chemical processes where feasible and require the remaining high risk plants to “assess” safer processes;
• Eliminate the current law's exemption of thousands of chemical plants, such as waste water and drinking water facilities;
• Involve plant employees in the development of security plans and provide protections for whistleblowers;
• Preserve state’s authority to establish stronger security standards, and
• Provide up to $225 (H.R. 2868) and $375 (H.R. 3258) million respectively toward the implementation of safer chemical processes over a three-year period.*

 “Although this bill is a compromise, it is a giant step forward for communities at risk. We look forward to working with the House leadership in moving this bill to the House floor this fall,” said Hind.

Among the compromises, the legislation narrows the number of high-risk chemical facilities to approximately 107 that may be required to eliminate catastrophic risks with safer chemical processes. It also allows chemical plants a second appeals process to challenge agency decisions and exempts them from citizen enforcement suits. Instead, the bill contains a petition process giving citizens the right to initiate a government investigation into potential violations by a chemical facility. The legislation also does not ensure that residents living downwind of high-risk chemical plants will be informed if nearby facilities are in compliance with security regulations or even part of the program.

In June, the House Homeland Security Committee approved a different version of H.R. 2868, which included four major loopholes not contained in the Energy and Commerce bills.

--Mae

On October 14th, the House Subcommittee on Energy and Environment chaired by Representative Edward Markey (D-MA) approved comprehensive chemical plant security legislation (H.R. 2868 & H.R. 3258) in an 18 to10 party-line vote. The Subcommittee rejected 13 Republicans amendments aimed at crippling the legislation that will be taken up by the full Energy and Commerce Committee this week. This is the first time this legislation has moved through the Homeland Security Committee.  

“Given a choice between protecting millions of Americans at risk and doing nothing, Subcommittee Republicans not only chose nothing, they proposed doing nothing for three more years,” said Rick Hind, Legislative Director of Greenpeace.  “The compromises contained in each bill weren’t enough for subcommittee Republicans. They also tried to gut provisions in both bills that would eliminate catastrophic risks in densely populated areas,” said Hind.

The compromise legislation narrows the number of high-risk chemical facilities to approximately 107 that are required to eliminate catastrophic risks with safer chemical processes. It also allows chemical plants a second appeals process to challenge agency decisions and exempts them from direct citizen enforcement.  Instead, the bill contains a petition process affording citizens the ability to initiate a government investigation into potential violations by a chemical facility.  The compromise legislation also does not ensure that residents living downwind of high-risk chemical plants will be informed if nearby facilities are subject to or in compliance with security regulations.

 “This bill clearly represents a compromise on some major issues. We look forward to working with the Energy and Commerce Committee this week to improve the bill further,” said Hind.

More than 200 chemical facilities have converted to safer chemical processes since 9/11 eliminating poison gas risks to 38 million Americans. Hundreds of other chemical plants together put more than 100 million Americans at risk. A blue-green coalition of more than 50 organizations have been urging Congress to enact legislation to eliminate these risks. They include: the United Auto Workers, Steelworkers, Teamsters, Fire Fighters, Sierra Club, Physicians for Social Responsibility, U.S. Public Interest Research Group and Greenpeace. The Department of Homeland Security and the EPA testified in favor of this legislation at an October 1st hearing held by the Subcommittee.

In June, the House Homeland Security Committee approved a different version of H.R. 2868, which included four major loopholes not contained in the Energy & Commerce bills.

The Energy & Environment Subcommittee version of H.R. 2868 and H.R. 3258 would also:
- Eliminate the current law's exemption of thousands of chemical plants, such as waste water and drinking water facilities;
- Involve plant employees in the development of security plans and provides protections for whistleblowers;
- Preserve state’s authority to establish stronger security standards, and
- provide up to $225 (H.R. 2868) and $375 (H.R. 3258) million respectively toward the implementation of safer chemical processes over a three-year period.

Today the Obama Administration, represented by DHS Undersecretary Rand Beers and EPA Assistant Administrator for Water, Peter Silva testified in support of assessments of safer more secure chemicals for all 6,000 regulated chemical facilities, and conditional implementation of safer more secure chemicals at the highest tiered facilities (approximately 800). Full Copies of their testimony (and all witnesses from the second panel) can be found here:
http://energycommerce.house.gov/index.php?option=com_content&view=article&id=1755:energy-and-commerce-subcommittee-hearing-on-hr-3258-the-drinking-water-system-security-act-of-2009-and-hr-2868-the-chemical-facility-anti-terrorism-act-of-2009&catid=130:subcommittee-on-energy-and-the-environment&Itemid=71

Excerpts of Beers and Silva identical statements on safer more secure technologies included:

"*The Administration supports consistency of IST approaches for facilities regardless of sector.

"* The Administration believes that all high-risk chemical facilities, Tiers 1-4, should assess IST methods and report the assessment in the facilities’ site security plans. Further, the appropriate regulatory entity should have the authority to require facilities posing the highest degree of risk (Tiers 1 and 2) to implement IST method(s) if such methods enhance overall security, are feasible, and, in the case of water sector facilities, consider public health and environmental requirements.

“* For Tier 3 and 4 facilities, the appropriate regulatory entity should review the IST assessment contained in the site security plan. The entity should be authorized to provide recommendations on implementing IST, but it would not require facilities to implement the IST methods."

The hearing also made clear that the neither bill (H.R. 2868 & H.R. 3258) creates a command and control structure.  Instead it establishes conditions and incentives:
1) safer chemical processes must be feasible
2) safer chemical processes must not impose onerous costs on a facility
3) safer chemical processes must not shift risks to any other facility
4) safer chemical processes must reduce risks
5) safer chemical processes are proposed by the facility itself
6) only the highest risk facilities are required to implement safer
chemical processes
7) there is funding in both bills to assist with implementation costs