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Tuesday, March 2, 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 October 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 its effectiveness in reducing chemical facility risk and the sufficiency of federal funding for chemical facility security. 

Key policy issues debated in previous Congresses have been considered during the reauthorization debate. These issues include the 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 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) extends the existing statutory authority through October 4, 2010, and provides DHS with additional chemical facility security funding relative to FY2009. The House of Representatives has passed H.R. 2868, which addresses chemical facility, water treatment facility, and wastewater treatment facility security. This legislation includes the provisions of H.R. 3258, as reported by the House Committee on Energy and Commerce. H.R. 2868 has been referred to the Senate Committee on Homeland Security and Governmental Affairs. 

Members have introduced other bills in the 111th Congress to address security at chemical facilities and other facilities that possess chemicals. S. 2996 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 would alter the existing authority but has not been reported. H.R. 2883 would authorize EPA to establish certain risk-based security requirements for wastewater facilities. 

Date of Report: February 16, 2010
Number of Pages: 23
Order Number: R40695
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