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Thursday, November 25, 2010

Chemical Facility Security: Reauthorization, Policy Issues, and Options for Congress

Dana A. Shea
Specialist in Science and Technology Policy

The Department of Homeland Security (DHS) has statutory authority to regulate chemical facilities for security purposes. This authority expires in December 2010. The 111th Congress is taking action to reauthorize this program, but the scope and details of its reauthorization remains an issue of congressional debate. Some Members of Congress support an extension, either shortor long-term, of the existing authority. Other Members call for revision and more extensive codification of chemical facility security regulatory provisions. The tension between continuing and changing the statutory authority is exacerbated by questions regarding the current law’s effectiveness in reducing chemical facility risk and the sufficiency of federal funding for chemical facility security.

Key policy issues debated in previous Congresses contribute to the reauthorization debate. These issues include the universe of facilities that should be considered as chemical facilities; the appropriateness and scope of federal preemption of state chemical facility security activities; the availability of information for public comment, potential litigation, and congressional oversight; and the role of inherently safer technologies.

Congress is faced with a variety of options. Congress might allow the statutory authority to expire. Congress might permanently or temporarily extend the expiring statutory authority in order to observe the impact of the current regulations and, if necessary, address any perceived weaknesses at a later date. Congress might codify the existing regulation in statute and reduce the discretion available to the Secretary of Homeland Security to change the current regulatory framework. Alternatively, Congress might substantively change the current regulation’s implementation, scope, or impact by amending the existing statute or creating a new one.

The Department of Homeland Security Appropriations Act, 2010 (P.L. 111-83) extended the existing statutory authority through October 4, 2010, and provided DHS with additional chemical facility security funding relative to FY2009. The Continuing Appropriations Act, 2010 (P.L. 111- 242) extended the statutory authority through December 3, 2010. The House of Representatives has passed H.R. 2868, which addresses chemical facility, water treatment facility, and wastewater treatment facility security. This legislation includes provisions of H.R. 3258 and H.R. 2883. H.R. 2868 has been ordered reported as amended by the Senate Committee on Homeland Security and Governmental Affairs.

Members have introduced other bills in the 111
th Congress to address security at chemical facilities and other facilities that possess chemicals. S. 2996/H.R. 5186 would extended the existing authority until October 4, 2015, and establish chemical security training and exercise programs. H.R. 2477 would extend the existing statutory authority until October 1, 2012. H.R. 261 and S. 3599 would alter the existing authority. S. 3598 would authorize EPA to establish certain risk-based security requirements for wastewater facilities. In addition, draft legislation is reportedly under development by the Department of Homeland Security.

Date of Report: November 15, 2010
Number of Pages: 27
Order Number: R40695
Price: $29.95

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