Posted on June 8, 2010 by Susan Cooke
Despite earlier expectations, it appears increasingly unlikely that the House and Senate will consider passage of legislation this year on the Chemical Facility Anti-Terrorism Standards (“CFATS”) program. Under that program the Department of Homeland Security (“DHS”) adopted regulations at Title 6 Part 27 which list about 300 chemicals of interest, each with a screening threshold quantity. Facilities with a chemical of concern above the screening threshold quantity are required to complete a screening questionnaire for review by DHS.
If the DHS determines that the facility presents a high level of security risk, it notifies the facility which must then prepare a security vulnerability analysis and file the analysis with DHS. This analysis must address each vulnerability that is identified, and it must satisfy security performance standards set forth in the regulations, most of which are phrased in very general terms. DHS may inspect such high risk facilities to assess their compliance with regulatory requirements, and it may issue orders assessing civil penalties which it can enforce through an adjudicatory hearing process.
The statutory provisions governing CFATS are due to expire on October 4, 2010, and Congress was expected to consider substantive revisions to the program and extend it for several years before its expiration in October. Two bills, H.R. 2868 and S. 2996, were expected to receive serious attention in crafting that legislation.
 The program was established under the Department of Homeland Security Appropriations Act of 2007, § 550, Pub. L. 109-295, and was extended by the Department of Homeland Security Appropriations Act of 2010, § 550, Pub. L. 111-83.
H.R. 2868 passed the House in November 2009 and is entitled the “Chemical and Water Security Act of 2009”. It would extend the program’s current requirements to facilities that treat drinking water or wastewater, with the requirements administered by the U.S. Environmental Protection Agency and state authorities rather than DHS. The House bill would also require high risk facilities to assess inherently safer technology (“IST”) alternatives (referred to in the bill as “methods to reduce the consequences of a terrorist attack”). In addition, the bill would provide for citizen petitions seeking DHS investigation of a chemical facility allegedly in violation of CFATS requirements.
The Obama Administration has advocated modifications to CFATS that are similar to the provisions of H.R. 2868, and Senator Lautenberg who chairs the Senate’s Environment and Public Works Committee has stated his intention of introducing a chemical security bill which is expected to be at least as stringent as the H.R. 2868. However, he has yet to introduce such a bill.
S. 2996 has received the support of several industry sectors and is entitled “Continuing Chemical Facility Antiterrorism Security Act of 2010”. It would extend CFATS for another five years, leaving the current provisions essentially intact except for the addition of voluntary chemical security training and exercise programs.
It now appears that the House and Senate will extend statutory authorization of the CFATS program for another year, with supplemental funding provided in the Homeland Security budget bill now under consideration. Of course, the recent oil spill in the Gulf of Mexico could engender renewed interest in the earlier adoption of an IST provision which has been the subject of the greatest discussion. Indeed, one Green Peace blog points to failure of the shut off valve on the oil rig where the Gulf of Mexico oil spill occurred as demonstrating the need for immediate adoption of such a provision. However, absent a major catastrophe on land or connected to a terrorist plot involving a chemical facility or refinery here in the United States, legislative action on proposed changes to the CFATS program is not expected to occur until after the fall elections.
Tags: Hazardous Materials