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

The granted the Department of Homeland Security (DHS) statutory authority to regulate chemical facilities for security purposes. This authority expires in October 2009. The 111th Congress is taking action to reauthorize this program, but the manner of its reauthorization remains an issue of congressional debate. The Obama Administration and some Members of Congress support an extension, either short- or long-term, of the existing authority. Other Members call for revision and more extensive codification of chemical facility security authorities. 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 are likely to be 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. Members have introduced several bills in the 111th Congress to address chemical facility security. Both the Senate-passed and House-passed versions of the DHS appropriations bill (H.R. 2892) would extend the existing statutory authority through October 4, 2010. Both appropriations bills provide additional chemical facility security funding relative to FY2009. H.R. 2477 would extend the existing statutory authority until October 1, 2012. H.R. 2868, as reported by the House Committee on Homeland Security, would increase the types of facilities eligible for regulation; mandate, in certain cases, the use of measures to reduce the consequences of a terrorist attack; create a citizen-suit process for requiring enforcement; and codify components of the existing regulations. H.R. 261 would alter the existing authority but has not been reported. Other bills would expand security requirements to facilities not currently regulated for security purposes. H.R. 3258 would authorize the Environmental Protection Agency (EPA) to create risk-based security regulations for drinking water facilities; include the use of measures to reduce the consequences of a terrorist attack; and delegate certain authorities to the states. H.R. 2883 would authorize EPA to establish certain risk-based security requirements for wastewater facilities.

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