H.R. 2868, The Chemical and Water Security Act of 2009
Washington,
Nov 5 -
November 5, 2009
H.R. 2868, the Chemical and Water Security Act of 2009
Rep. Bennie Thompson (D-MS) and 8 Cosponsors
House Republicans strongly support continuing to improve security at chemical facilities across the country. Unfortunately, H.R. 2868 imposes job killing mandates on U.S. businesses, hospitals, universities, and family farms; expands an environmental legal framework under the guise of a security bill; and fails to preserve, let alone expand, current security protections in this sector. House Republicans are strongly opposed to this legislation.
House Republicans are concerned with this bill’s rush to implement unnecessary and significant changes and to impose new and unproven government mandates on a chemical security program which has not been fully implemented. House Republicans believe this bill will continue job loss in the U.S. at a time when the U.S. Bureau of Labor Statistics is reporting that chemical manufacturing employment and wages are expected to decline by 16 percent. Furthermore, unemployment in the manufacturing sector stands at 11.9 percent. Additionally, the bill will also impose similar costly new program requirements and mandates on drinking water systems and wastewater treatment facilities across the nation.
House Republicans are opposed to several key provisions in the legislation, especially the deliberately misleading section labeled “Methods to Reduce the Consequence of a Terrorist Attack.” Despite the new name, it’s an old proposal. Inherently Safer Technologies (IST) is a chemical engineering philosophy first proposed in 1978. While intending to advocate to reduce the number, amount, or form of dangerous chemicals used, IST actually creates unattainable, unenforceable, and ambiguous mandates on a sector that is already heavily regulated, including under brand new federal security guidelines.
Additionally, the Federal government is ill-equipped to mandate or enforce specific chemical engineering processes at potentially hundreds or thousands of facilities, many of which have unique and specialized processes. In fact, the Department of Homeland Security (Department) testified that the Department lacks any specialists with expertise in reviewing IST. The Department also believes IST is often not appropriate in the security arena, because many IST solutions do not eliminate or reduce risk but only move risk to another location. Unfortunately, the legislation gives the Department the power to mandate engineering and chemical changes at any facility in the country, and would impose costly IST assessments and mandatory implementation on nearly 100 colleges and universities, hundreds of hospitals, and thousands of small businesses and farms.
House Republicans are also opposed to provisions in H.R. 2868 that for the first time authorize citizen suits to be filed against Federal facilities, drinking water systems, and wastewater treatment
facilities for violations, and against the Department or the Environmental Protection Agency (EPA) for failure to enforce this legislation. Congress has always treated national security as an inherently governmental matter, and has guarded against the dissemination of sensitive security information to the public via the courts. To make matters worse, the bill will enable private litigants, through the courts, to potentially have access to protected, sensitive information about chemical, drinking water, and wastewater treatment facilities. Given the open nature of discovery in civil litigation, there is a very real threat that sensitive security information could be divulged to the public. The judicial process could even be used by those individuals who seek to do harm to the United States and its citizens.
In addition, H.R. 2868 would allow any state, local, or tribal government to enact security related laws or regulations for chemical, drinking water, or wastewater treatment facilities that are “more stringent” than the Federal program. These governmental entities would be allowed to enact laws different from, and potentially hindering, posing obstacles to, or frustrating the purposes of, the Federal program. Security for chemical and water facilities requires national coordination, and has interstate commerce and national defense ramifications. Other Federal laws, including laws regulating nuclear facilities, hazardous materials transportation, aviation, and port security, make the Federal government the dominant regulator and preempt State law.
Finally, House Republicans are also concerned with provisions in the legislation which narrow the scope of protected security-related sensitive information that the Federal government requires to be submitted to the Department and/or the EPA. This information details explicit vulnerabilities or security plans at covered chemical, drinking water, and wastewater facilities, including vulnerability assessments and site security plans, as well as internal and external records, notes, and other documents related to inspections, drills, testing, or security related matters. H.R. 2868 would allow the Courts to overrule the Department or EPA and make protected information public, as well as make it impossible to prosecute anyone who is carelessly, negligently, or recklessly disseminating protected information.
In October, Congress passed a one-year extension of existing law in the Homeland Security Appropriations Act for Fiscal Year 2010. Therefore, H.R. 2868 is a premature and ill-advised response that comes at a time when the Homeland Security Department is still in the early stages of implementing its current regulatory authority, and it is an attempt to advance and expand environmental law under the guise of national security, after an estimated $18.5 billion is projected to be spent on this new program. The end result of this new regime is a wave of mandates on small businesses, hospitals, universities, and family farms that will result in more lost jobs in America. House Republicans support prioritizing security at facilities that use chemicals and to allow the Department time to fully implement its current regulatory authority.
Provided by House Republican Leadership and the Committees on Homeland Security, Energy & Commerce, and Agriculture Republican Staff.
Print