Legislation approved by the House and Senate this month and now awaiting President Obama’s signature would extend the Department of Homeland Security’s Chemical Facility Anti-Terrorism Standards (CFATS) program for 4 years while preserving the exemption of drinking water and wastewater facilities. The final bill also rolls back earlier language that would have brought about a study of chemical security risks at water facilities.
As approved by both chambers, the “Protecting and Securing Chemical Facilities from Terrorist Attacks Act” (H.R. 4007) largely continues the existing CFATS program until late 2018, while adding new whistleblower protection rules and expedited reviews of low-risk facilities. The bill keeps in place the current statutory exemption of water and wastewater facilities from CFATS regulations, and does not allow DHS to mandate the use of “inherently safer technologies” (IST) at facilities subject to CFATS.
The final bill alters provisions from the original House-passed version of H.R. 4007 related to “third-party assessments” of chemical facilities. The original language, added to the bill in May by House Homeland Security Committee ranking Democrat Bennie Thompson (Miss.), would have required DHS to commission a third-party study of chemical security vulnerabilities “associated with” CFATS. Thompson has long called for subjecting water and wastewater facilities to CFATS, and comments he made in May suggested he intended for the study to review potential security risks of exempting water and wastewater facilities from CFATS oversight. Presumably, the findings of the study would then be used to justify arguments in favor of expanding CFATS to cover these facilities.
The final bill takes a different approach and directs the study to “assess vulnerabilities of covered chemical facilities … to acts of terrorism.” This revised language appears to not permit a consideration of vulnerabilities of uncovered facilities (such as water and wastewater plants), and therefore might make the study less useful to lawmakers and advocates who wish to bring water systems under the umbrella of CFATS regulation. This change to the study’s scope first emerged when the Senate Homeland Security and Governmental Affairs Committee reported H.R. 4007 in September, but no senator has publicly taken credit for it.
President Obama is expected to sign H.R. 4007 into law despite the administration’s ongoing support for a more robust federal chemical facility oversight program that includes water and wastewater systems and allows for IST implementation mandates. Such a bill has virtually zero chance of advancing through Congress before the end of the Obama administration, so the enactment of H.R. 4007 at least ensures some stability for CFATS over the next several years.