House panel approves chemical security bill

After a one-day delay, the House Homeland Security Committee Friday approved legislation aimed at improving security at the nation's chemical facilities.

The committee approved the measure on a voice vote after negotiating compromises on two controversial amendments. The legislation (H.R. 5695) would authorize the Homeland Security Department to regulate chemical plants and require them to conduct vulnerability assessments based on standards set by the department.

The bill would require the department to rank chemical plants into one of four risk-based tiers. Among the factors that facilities assigned to the high-risk tier would have to include in their security plans include security measures to address a facility's vulnerabilities to a terrorist attack; a plan for periodic drills with employees, law enforcement and first responders; and plans and procedures that would be used in response to a terrorist attack.

During a February 2004 hearing on security vulnerabilities at chemical plants, the Government Accountability Office testified that "experts agree that the nation's chemical facilities may be attractive targets for terrorists intent on causing massive damage."

John B. Stephenson, the Government Accountability Office's director of Natural Resources and Environment, told a House Government Reform subcommittee that, "Unlike water treatment facilities and nuclear power facilities, chemical facilities are not subject to any federal requirements to assess and address security vulnerabilities against terrorist attacks."

Before approving the bill, the committee adopted a substitute amendment that made minor changes to the bill including a provision that would require chemical facilities to provide a specific point of contact in their security plans.

The committee also debated two controversial amendments before postponing action on the bill Thursday. After postponing action, committee leaders negotiated compromises with the authors of the two amendments, Reps. Edward Markey, D-Mass., and James Langevin, D-R.I. The panel on Friday adopted modified versions of both amendments by voice vote.

Markey's original amendment would have required chemical facilities to use "inherently safer technologies" unless the Homeland Security Secretary determines that such technologies could not be "feasibly incorporated," would make it too difficult or costly for a facility to remain in business or would not "significantly" reduce the risk of death, injuries or other adverse affects resulting from a terrorist attack on a chemical facility. Other facilities would be required to use such technologies if the operator of such facilities determined it would be "practicable" to do so.

"Too often, we worry about the expense to industry" of imposing new requirements, said Rep. Zoe Lofgren, D-Calif., during Thursday's debate on the amendment, adding, "but think of the costs if there is a disaster" caused by a terrorist attack.

Rep. Dan Lungren, R-Calif., the bill's sponsor, voiced opposition to Markey's original amendment. He noted that during the committee's hearings on the legislation, chemical engineering experts testified that inherently safer technologies are still evolving. He also argued that just because a chemical facility may be "safer doesn't mean it's more secure."

The amendment is "putting too much faith into unproven, undefined technologies," Lungren said.

And Rep. Ginny Browne-Waite, R-Fla., questioned whether a provision in the amendment requiring the establishment of a publicly available clearinghouse with data about technologies aimed at reducing the consequences of a terrorist attack would provide terrorists with a "road map" on how to attack such facilities.

Markey insisted that the amendment would not provide any information on a specific chemical plant.

The compromise version of Markey's amendment adopted Friday would require only high-risk chemical facilities to consider using inherently safer technologies. High-risk facilities would have to use such technologies if the Homeland Security Secretary finds that they will significantly reduce the consequences from an attack, can feasibly be incorporated into a facility, and would not significantly impair the facility from operating.

The compromise amendment also would allow a facility to appeal a decision requiring use of inherently safer technologies to a board made up of government officials, security experts and industry representatives. And the modified amendment would ensure that protected information not be included in the data clearinghouse.

A handful of Republicans, however, continued to question the feasibility of inherently safer technologies and the potential burden on businesses.

"You could be mandating new technologies that don't exist," said Rep. Charles Dent, R-Pa. Lungren said he still has concerns about such technologies and pledged to hold hearings on them next Congress if he is still chairman of the Economic Security, Infrastructure Protection and Cyber security Subcommittee.

The committee also agreed to a modified version of Langevin's amendment. As originally proposed, it would have prohibited preempting more stringent state laws and regulations unless those laws and regulations "conflict" with the bill. In addition, the amendment also would have ensured that states could adopt or enforce laws or regulation aimed at problems "other than reducing damage from terrorist attacks."

Langevin's amendment was similar to language in a chemical security bill (S. 2145) approved last month by the Senate Homeland Security and Governmental Affairs Committee.

During debate Thursday on the Langevin's original amendment, Rep. Bill Pascrell, D-N.J., and others said the bill as drafted could "have the effect of weakening" security at chemical plants, pointing to New Jersey in particular. New Jersey is one of a handful of states that has enacted legislation dealing with chemical security and Gov. Jon Corzine wrote the committee Wednesday with concerns about the bill.

But Lungren and others argued for the need for uniform national standards and noted that there is already language in the bill that would allow states to continue to impose tougher standards as long as the Homeland Security secretary determines that those laws and regulations do not "frustrate" the federal regulations.

The compromise amendment approved by the committee maintains some of the original bill language by saying that a state could pass a law or regulation requiring tougher security measures as long as it does not frustrate the intent of the federal standards.

But the amendment also called for the inclusion of report language that would define "frustrate" and make clear that efforts by states to require chemical facilities to use or consider using inherently safer technologies are not preempted by the bill, according to Langevin's office.

Both Markey and Langevin gained assurances from House Homeland Security Chairman Peter King, R-N.Y., that he would work to ensure that their amendments are not changed or stripped from the bill by the Rules Committee, which decides what bills and amendments can be offered on the House floor.

The committee also adopted three other less-controversial amendments including one from Rep. Jane Harmon, D-Calif., that would establish an office of chemical security at the Homeland Security Department.

The panel also adopted en bloc two amendments from Texas Democrat Sheila Jackson Lee. One would require that when chemical companies request a hearing to dispute fines for violating the act that it be a "formal hearing" that would provide an individual with "certain rights, which may include the right to have counsel present, the right to cross-examine witnesses, the right to present evidence, and the right to a record of the proceedings."

Her other amendment would ensure that third-party auditors hired by Homeland Security to conduct reviews of security plans and vulnerability assessments or to inspect facilities do not have conflicts of interest.

When asked about the prospects of moving the legislation, particularly in the Senate, Lungren said after the markup that with the November elections just three months away and with the fifth anniversary of the Sept. 11, 2001 terrorist attacks, he expects "it will dawn on people that we ought to show a legislative accomplishment in the area of security ... This bill will be seen as a serious accomplishment."

The bill also has been referred to the House Energy and Commerce Committee. A committee spokeswoman did not return a call by press time on whether the panel plans to take up the bill when lawmakers return from their August break.