H.R. 2868 Passes in the House

Late Friday afternoon, the House of Representatives passed H.R. 2868, The Chemical and Water Security Act, in a vote divided along party lines. The version of the bill that made its way to the House floor included provisions for chemical facility security, drinking water facility security, and security at waste water treatment works. The bill provides for comprehensive chemical security provisions at all three types of facilities while also addressing the unique security requirements for the water facilities.

Chemical and Water Security Act

Two different version of H.R. 2868 had been reported by both the House Homeland Security and House Energy and Commerce committees. In the Rules Committee report, those two versions were reconciled in a new version of the bill offered by Chairmen Thompson, Waxman and Oberstar, along with a key sub-committee chair from each of their respective committees. Additionally, the provisions of H.R. 3258 were rolled into Title II of H.R. 2868 and H.R. 2883 provisions were added as Title III.

The Department of Homeland Security (DHS) continues to have primary enforcement authority for chemical facility security, which now includes chemical facilities covered under the Maritime Transportation Security Act (MTSA), while the Environmental Protection Agency (EPA) is given authority for regulating security at drinking water treatment facilities and waste water treatment works. The EPA is required to work with DHS in developing the chemical security portions of the water security regulations. This allows for similar chemical security regulations at all high-risk facilities.

The reconciled version of Title I was based on both reported versions of H.R. 2868. The bulk of the language came from the version reported by the Homeland Security Committee with refining language taken from the Energy and Commerce Committee version. The Energy and Commerce version did provide the basis for the Title I sections dealing with methods to reduce the consequences of a terrorist attack (H.R. 2868 §2111), background checks on covered individuals (H.R. 2868 §2115), and citizen involvement (H.R. §§2116, 2117), again with modifying language from the Homeland Security Committee version.

Floor Amendments

H.R. 2868 was considered on the House floor for over a two-day period. On Thursday, there were ninety minutes of general bill debate. On Friday, ten amendments were offered, debated, and voted upon. The Rules Committee allowed five amendments from both sides of the aisle. As expected, all five amendments offered by the Democrats passed, four of which passed on voice votes with no organized opposition.

Only one of the five amendments offered by Republican representatives passed. That amendment dealt with the employee training grants in §2103(g)(4), which requires that grants be awarded on a competitive basis and prohibits congressional earmarks in the grant process. The four amendments that failed were essentially repeats of amendments that had been submitted in markups in both the Homeland Security and the Energy and Commerce committees. One amendment attempted to replace Title I with a straight extension of the Chemical Facility Anti-Terrorism Standards (CFATS) for an additional two years (beyond the current one-year extension found in the Department of Homeland Security Appropriations Act of 2010). Other amendments would have struck provisions for inherently safer technology (IST) and citizen enforcement and would have strengthened the bill's Federal preemption provisions.

The amendments introduced by the Democrats were led by Chairman Thompson’s amendment to make H.R. 2868 editorial corrections, which was the only one that had to undergo a roll call vote. One of the voice-vote approved amendments required the appointment of a DHS official to liaise with the State and local officials impacted by chemical facility emergency response requirements. Another amendment required that DHS report to Congress on the affects of the IST provisions on agriculture facilities. The other two amendments requires DHS to consider the special circumstances faced by small businesses and academic labs when developing the supporting regulations.

Moving to the Senate

The Chemical and Water Facility Act now moves to the Senate for action. Both the Chair and Ranking Member of the Senate Committee on Homeland Security & Governmental Affairs have expressed interest in seeing the passage of comprehensive chemical facility security legislation during this session. At the least, there will certainly continue to be extensive debate on the IST and citizen enforcement provisions of H.R. 2868.