Sara Goodman, E&E reporter

The House Transportation and Infrastructure Committee wants to keep U.S. EPA in charge of security measures at wastewater facilities, a move likely to renew the jurisdictional fight over reauthorizing the chemical facility security law.

H.R. 2883, introduced yesterday by T&I Chairman James Oberstar (D-Minn.) and Reps. Eddie Bernice Johnson (D-Texas), Bob Filner (D-Calif.) and Grace Napolitano (D-Calif.), would ensure that U.S. EPA retains oversight of security at wastewater facilities.

The current regulations, the Chemical Facility Anti-Terrorism Standards, exempt drinking water, wastewater and port facilities because they are covered by the Safe Drinking Water Act, which is regulated through EPA. The House Homeland Security Committee and Energy and Commerce Committee were in a jurisdictional stalemate over attempts to rewrite the nation's chemical facility security laws up until last month, when staff from both committees worked out a compromise in which EPA retained oversight over drinking water utilities and the Department of Homeland Security control over wastewater facilities.

The new bill is likely to complicate the picture once again.

Homeland Security Chairman Bennie Thompson (D-Miss.) said that staff of the three committees will continue to discuss ways to work out the jurisdictional question. He said staff have been working this year on crafting a bill that would facilitate jurisdictional conflicts between the three committees, and that his bill (H.R. 2868) is a collaborative effort that identifies vulnerabilities in the current regulations and seeks to address them.

But members of the T&I Committee argue the compromise deal would not provide effective security because it would lead to two different regulations from two federal agencies for water facilities. Furthermore, they noted that 40 percent of drinking water and wastewater treatment facilities are managed by the same companies and in some cases share property space.

"Anything to do with this type of water facilities would come to this committee," Johnson said in explaining why her committee is stepping forward now. "I think coordination of it makes it more simple, because many of the places are small municipalities so having to answer to several different agencies on any of these topics can be cumbersome."

Added Oberstar in a statement: "While it is a laudatory goal to enact mandatory security requirements applicable to POTWs [publicly owned treatment works] and to ensure that the chemicals used to treat wastewater do not fall into the wrong hands, taking a fragmented approach will not make our wastewater treatment facilities safer."

The move was applauded by Ken Kirk, executive director of the National Association of Clean Water Agencies, who wrote in a letter to the committee that "any new legislation focusing on security at wastewater treatment facilities should fall under the oversight of the T&I Committee."

Thompson disputed that characterization, saying the regulations currently under review in his committee and in the Energy and Commerce Committee are similar from a security standpoint and would not lead to conflicting regulations. "They're similar," he said. "You won't see a difference in the requirements, but we're streamlining it so all parties concerned are covered from a security, not a safety perspective."

The Homeland Security Committee meets tomorrow to vote on H.R. 2868. The Energy and Commerce panel has not yet introduced its part of the bill.

Debate on H.R. 2868
It is unclear how this latest jurisdictional question will work itself out. The current regulations expire in October, and lawmakers are feeling the heat to act before then. To ensure there will not be a gap in security measures, the Obama administration proposed in its fiscal 2010 budget request to extend the regulations through October 2010, and most Republicans on the Homeland Security Committee at a hearing yesterday pushed to give DHS another year to complete its implementation of the law before rushing to impose new requirements.

"I see no purpose why we are rushing forward today," said ranking member Peter King (R-N.Y.).

But environmental lobbyists joined Democrats in arguing that the current law has several critical shortcomings, including oversight of water facilities, pointing to the need for a more comprehensive bill, such as the one currently under consideration.

"If we delay it for another year, that's one more year when communities that live in the shadows of these chemical facilities are less secure, less safe in their own homes," said Elizabeth Hitchcock, a public health advocate for U.S. PIRG.

H.R. 2868 would give the Department of Homeland Security the authority to create a list of "substances of concern," determine which facilities manufacturing those substances are at high risk for a terrorist attack and require action to reduce risk if appropriate. Under the bill, state governments would be allowed to implement their own chemical security regulations as long as they expand on or exceed federal rules.

The bill would also authorize $325 million for fiscal 2011, $300 million for fiscal 2012 and $275 million for fiscal 2013.
Beyond the jurisdictional and reauthorization question, there are likely to be two main sticking points as the bill moves forward -- safer technology language and a provision allowing third parties to sue either facilities or DHS if the regulations are not met.

One contentious issue is a provision requiring that facilities assess methods to reduce the consequences of a terrorist attack, whether they are cost-feasible and would actually reduce risk. Those facilities that DHS designates as the highest risk would be required to implement those changes if feasible.

This provision received the most attention at the hearing, with industry groups arguing that the DHS secretary should not be in a position of determining which technologies a facility should implement. Marty Durbin, vice president of federal affairs for the American Chemistry Council, said that current regulations essentially push facilities to consider safer technologies when developing a security plan, so the new provision would be unnecessary.

There was also debate about the civil lawsuits. Philip Reitinger, deputy undersecretary for DHS, said the provision raises significant concerns about the potential to disclose sensitive security information during litigation and requires a careful balance between the public's right to information and the need to protect critical security data.