Legislation approved by a House committee this month would require the federal government to produce a study on the security implications of exempting drinking water and certain other facilities from the Department of Homeland Security’s Chemical Facility Anti-Terrorism Standards (CFATS) program, while also directing DHS to explore the mechanics of creating a CFATS waiver program. Meanwhile, a Senate committee hearing on the program this month did not feature a discussion of the water sector exemption.
The House’s study and waiver provisions were part of an amended version of H.R. 3256 (the Protecting and Securing Chemical Facilities from Terrorist Attacks Act) that the House Homeland Security Committee approved along party lines on June 19. The proposal would reauthorize the CFATS program while requiring DHS to contract an outside entity to conduct an “independent assessment” of the national and homeland security implications of excluding water and other exempt facilities from CFATS oversight. The study, which would be due to Congress after 16 months, would also explore the implications for exempt facilities and the communities where they are located.
Simultaneously, DHS would be directed to assess the “feasibility and desirability” of establishing a process through which facilities subject to other federal regulatory security requirements could be granted a waiver from CFATS coverage. Taken together, the reports generated by these provisions could lay out an argument for ending the water sector’s statutory CFATS exemption, but offering the possibility that DHS could still offer water facilities individual waivers from the program.
Congress created CFATS in 2007 to allow DHS to regulate chemical facilities that handle certain amounts of chemicals of concern, such as gaseous chlorine. Several classes of facilities, including public water systems and wastewater treatment works, were made exempt from CFATS oversight because they fall under the regulation of other federal agencies. Since that time some lawmakers have called for extending CFATS to cover water facilities, but AMWA and other water sector organizations have strenuously objected over concerns that it would leave drinking water systems subject to dual and potentially conflicting oversight from DHS and EPA. The CFATS authorization is scheduled to expire in April of 2020, prompting increasing activity on Capitol Hill to make preparations to extend the program.
To this end the Senate Committee on Homeland Security and Governmental Affairs held its own hearing on the topic on June 4. The event was framed as a roundtable discussion on the state of the program and potential reforms Congress should explore in any reauthorization bill, but the exemption of drinking water systems and other facilities was not discussed in any depth.
Instead, the Senate’s discussion largely focused on the concerns of Homeland Security Committee Chairman Ron Johnson (R-Wis.) about what he believes are structural weaknesses in the program. He detailed some of those in his June 4 opening statement, such as what he sees as the program’s inability to “effectively measure or demonstrate risk reduction.” Chairman Johnson did not speak about possibly using the necessary 2020 reauthorization to expand the scope of the program to cover drinking water or wastewater treatment facilities.
A discussion on the status of water systems was also notably absent from the testimony of the one labor union representative at the hearing. Unions and environmental advocates have in the past been the loudest voices calling for CFATS to be expanded to cover water and wastewater systems, so the fact that the union did not use the opportunity of the roundtable to highlight this issue suggests it may not be a high priority for advocates in this reauthorization. Instead, the union testimony focused on worker involvement in developing security plans, implementing effective training requirements, enacting strong whistleblower protections, and publicizing best practices.
The House’s CFATS reauthorization would extend the program through May 1, 2025, but Chairman Johnson in the Senate has previously opposed long-term extensions that do not go along with programmatic improvements. The two chambers will likely work to negotiate a mutually agreeable path forward over the next several months.