US Senate might kill safer technology mandate, lawsuit provision

09 November 2009 23:04  [Source: ICIS news]

WASHINGTON (ICIS news)--The US Senate will not take major action on chemical site security legislation this year, senior Senate staff said on Monday, and key provisions of a House-approved bill likely will be watered down or killed in Senate deliberations.

The sources said that the Senate Homeland Security and Governmental Affairs Committee is not likely to conduct this year any substantive work on new legislation to replace the existing Chemical Facility Anti-Terrorism Standards (CFATS), due to expire in October next year.

Focus on Congressional action on new chemical site security requirements has shifted to the Senate in the wake of action last Friday (6 November) by the House in passing HR-2868, the “Chemical and Water Security Act of 2009”.

The House bill included two key provisions that have been sharply criticised by US energy, refining, petrochemical, agricultural and other manufacturing interests.

Those provisions are a mandate for federal imposition of inherently safer technology (IST) for specific facilities and the authority for citizens to file suit against the Department of Homeland Security (DHS) to force regulatory action.

The Department of Homeland Security has enforcement authority under the existing site security regulations and would share that authority with the Environmental Protection Agency (EPA) in the House-passed bill.

That citizen lawsuit provision, also known as private right of action (PRA), likely will be “watered down in the Senate or eliminated”, according to the senior Senate staff.

“People on both sides of the aisle have expressed concerns about that provision,” said the source, referring to both Republicans and Democrats in the Senate, “even if it is limited to suits against the DHS.”

“There is a lot of concern about what private right of action would mean for implementation,” the source added. “A tremendous amount of time and resources could be taken from the department’s work in implementing the law in order to defend against citizen suits.”

“I would not be surprised if PRA were further watered down in the Senate or eliminated,” the source said.

The Senate Homeland Security Committee is chaired by Connecticut Senator Joe Lieberman, an independent and former Democrat who caucuses with the majority Democrats in the Senate.

Senior aides to Lieberman have said that he favours some sort of IST mandate and private right of action authority for a Senate version of new site security legislation.

However, Senator Susan Collins of Maine, the ranking Republican on the committee, is opposed to an IST mandate and likely would oppose a private right of action requirement.

“I think Senator Collins is concerned with the version that passed in the House last Friday because it substantially re-writes the authority the DHS has been exercising for three years now,” a source said.

“In particular, she opposes the mandatory implementation of IST,” the source said, adding: “She has consistently held the view that an IST mandate is potentially problematic.”

Under an IST mandate, the department would have authority to force changes in a specific facility’s feedstocks, processes or products if federal officials deemed them necessary for security purposes.

“She doesn’t think that Congress or DHS should be dictating process operations or changes to manufacturers under the guise of security when facilities can chose other alternative means that meet or exceed security requirements,” the source said.

Chemical facility antiterrorism legislation that Collins introduced in the 109th Congress - when Republicans were the majority in the Senate - “did not preclude chemical facilities from adopting IST measures, it just didn’t mandate it”, the sources added.

The bill that Collins introduced eventually provided the statutory authority for the existing CFATS regulations.

The sources said that Collins plans to introduce a chemical facility security bill of her own. Lieberman almost certainly will craft his own bill, rather than take the House bill as a starting point.

In any case, action by the Senate Homeland Security Committee on new chemical site legislation is not likely before next year, the sources said. The committee possibly could hold a hearing before the end of this year, but any substantive legislative work likely will await the next session of Congress in January 2010.

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By: Joe Kamalick
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