The Committee on Energy and Commerce met on Wednesday, October 21, 2009, at 10:00 a.m. in room 2123 of the Rayburn House Office Building to consider: H.R. 3276, American Medical Isotopes Production Act of 2009, H.R. 3258, Drinking Water System Security Act of 2009, H.R. 2868, Chemical Facility Anti-Terrorism Act of 2009, and H.R. 2190, Mercury Pollution Reduction Act.
H.R. 3276, the American Medical Isotopes Production Act of 2009, was amended by a bipartisan managers amendment in the nature of a subsitute. For text of this amendment, click here.
This amendment was agreed to by voice vote and H.R. 3276 was favorably reported out of the Committee by voice vote.
Amendments to H.R. 3258, The Drinking Water System Security Act of 2009
An amendment offered by Rep. Steve Scalise, R-LA., would amend H.R. 3258 so that a Union representative would not be required to have access to a given water treatment plant's vulnerability assessment and site security plan. Under the current legislation, this requirement is additional to required access for at least one supervisory and at least one non-supervisory employee of the covered water system. There is no reason for anyone other than the facility’s employees and necessary government officials to have access to this sensitive information. The more individuals who have access to sensitive site security information, the less secure that information is. For text of this amendment, click here.
This amendment was not agreed to by voice vote.
An amendment offered by Rep. George Radanovich, R-CA., would extend the same penalties in place in current law for those who tamper with a public water system to those who "knowing or recklessly" publish, divulge, disclose, or make known protected information regarding a drinking water facility's security. These penalties are up to 10 years in prison and a $1 million fine for committing the act and $100,000 for threatening to commit the act. Under the Majority’s bill, a person would have to “purposefully” publish, disclose, or divulge protected information before they could receive 1 year in jail, and/or a fine and loss of Federal employment. This presents two problems as there is no legal precedent fo the term "purposefully" which makes it extremely difficult to prosecute, and 1 year in jail does not provide an adequate deterrent for exposing our drinking water facilities to the potential dangers of terrorism. Mr. Radanovich's amendment would provide clear standards of liability for those handling sensitive security information and appropriate penalties for those who divulge such information. For text of this amendment, click here.
This amendment was not agreed to by voice vote.
An amendment offered by Rep. Fred Upton, R-MI., would prevent the Environmental Protection Agency(EPA) from forcing drinking water facilities to alter their operating processes or chemical inputs unless it would improve the security of the covered water system. Under the bill's current language, the EPA is granted the new authority to essentially dictate to state and local facilities what processes and chemicals can be used to treat their drinking water, regardless of the effect on plant security. For example, under the current legislation, even if a drinking water facility was more secure than Fort Knox, it would still have to justify to EPA its current water treatment scheme to avoid a mandatory change of process. This amendment makes plant security a key prerequisite for such mandates, preventing costly and arbitrary changes not in keeping with the purpose of this bill. For text of this amendment, click here.
This amendment was not agreed to by voice vote.
An amendment offered by Rep. Cliff Stearns, R-FL., would place provisions in the bill allowing the new Federal drinking water facility regulations enacted by this bill to preempt state and local was that "hinder, pose obstacles to, conflict with, or frustrate the purpose of the federal program". This amendment is critical to the effectiveness of this bill. It will prevent unnecessary and unproductive regulatory conflicts, and help set clear guidelines for what's necessary to protect this Nation's drinking water facilities. For text of this amendment, click here.
This amendment was not agreed to by voice vote.
An amendment offered by Rep. Fred Upton, R-MI., would nullify the citizen suit provisions in this bill. Currently, provisions in H.R. 3258 would allow any citizen to sue any company owning a drinking water facility or the Environmental Protection Agency, should they feel the provisions of H.R. 3258 are not being implemented effectively. This expansion of trial lawyer jurisdiction could not only have serious economic effects, but it would also weaken existing anti-terrorist protections. Drinking water facilities could be forced to disclose their security plans in a citizen suit, which would mean any individual, or terrorist, with a lawyer could gain access to a plant's vulnerabilities as well as the security methods in place to protect those vulnerabilities. Finally, trial lawyers should not be tasked with enforcing matters of National and Homeland security. For text of this amendment, click here.
This amendment was not agreed to by voice vote.
An amendment offered by Rep. John Shimkus, R-IL., would prevent the Environmental Protection Agency(EPA) from forcing drinking water facilities to alter their operating processes or chemical inputs. Currently, facilities which EPA considers higher-risk must justify to EPA why they shouldn't change their entire operating model or chemicals used for water treatment. For example, under the current legislation, even if a drinking water facility was more secure than Fort Knox, it would still have to justify to EPA its current water treatment scheme in order to prevent a mandatory change of process. In many cases, the economic impacts of such a change would be extreme, raising water costs for rate-payers and not representative of the most cost-effective method to secure a drinking water facility. This amendment would not alter the security standards that drinking water facilities would be required to meet. For text of this amendment, click here.
This amendment was not agreed to by voice vote.
H.R. 3258, The Drinking Water System Security Act of 2009 was reported favorably as amended out of the Full Committee by voice vote.
Amendments to H.R. 2868, the Chemical Facility Anti-Terrorism Act of 2009
An amendment offered by Rep. Michael Burgess, R-TX., would exempt chemicals that are integral to public health from the new operational process mandates granted to DHS under this leglisation if those mandates would affect production of items used for public health Judging from testimony before the Subcommittee on October 1, 2009, many of the chemicals that DHS would consider "switching out" are integral ingredieints in drugs such as ibuprofen and tamiflu. Mr. Burgess' amdment protect lifesaving medicines and products critical to public health from DHS mandates, thus ensuring that they are available and effective in times of pandemic. For text of this amendment, and a detailed vote tally, click here.
This amendment was defeated by a vote of 30 to 19.
An amendment offered by Rep. Phil Gingrey, R-GA., would require that DHS has the expertise in place to enforce and carry out the provisions of this H.R. 2868 before they are implemented. The bill currently requires DHS to review facility self-assessments concerning thier chemical processes and storage activities and then make judgments on whether these companies should make changes to their production or operational process. This amendment suspends the requirements for assessment and evaluation until DOE has hired 100 chemical safety engineers to actually carry out the evaluations. The new operational and manufacturing mandates granted to DHS from this bill cover over 7,000 facilities. It is only prudent to ensure that DHS has the staff in place to capably carry out these provisions so that DHS' new powers can be responsibly implmented. For text of this amendment and a detailed vote tally, click here.
This amendment was not agreed to by a vote of 29 to 13.
An amendment offered by Rep. Steve Scalise, R-LA., would require that employee representatives who by mandate have access to a chemical facility's vulnerability assessments and security plans be subjected to background checks. Chemical facility employees have a vested interest in their plant's security and are subject to security background checks. These background checks determined if an individual is on a terrorist watchlist, has been found guilty of murder, espionage, terrorism, treason, sedition, racketeering, or found guilty of an attempt to commit any of said crimes. Considering the sensitive nature of the information these employee representatives can access, it only makes sense that they should first complete a background check. For text of this amendment, click here.
This amendment passed by voice vote.
An amendment offered by Rep. Joe Pitts, R-PA., would exempt chemical facilities already regulated by the Maritime Transportation Security Act of 2002(MTSA) from the provisions of H.R. 2868. Chemical facilities located at U.S. ports are already regulated by MTSA, and as such, already perform vulnerability assessments and develop security plans. Subjecting these facilities to duplicative regulations and two sets of regulators serves no purpose, other than to waste taxpayer money. For text of this amendment , click here.
This amendment was not agreed to by voice vote.
An amendment offered by Rep. Joe Barton, R-TX., would strengthen information protection provisions in H.R. 2868 for a chemical plants vulnerability assessment and site security plan. Under the current bill's language, individuals divulging sensitive security information regarding a chemical plant's security would only be subject to civil or monetary penalties for 'purposely' releasing sensitive information. In current law, there is no statutory standard for the word 'purposely' in this context. There is however a standard for the terms 'knowingly' and 'recklessly' in present Federal chemical plant security laws. Changing the law to use the unprecedented term 'purposely' will make it far more difficult to prosecute those who place vital security information into the hands of terrorists. This amendment will extend liability to those who recklessly or knowingly divulge sensitive security information; a standard that is already in place in current chemical plant security regulations. In addition, this amendment would expand penalties to include criminal penalties. For text of this amendment and a detailed vote tally, click here.
This amendment was not agreed to by a vote of 28 to 19.
An amendment offered by Rep. John Shimkus, R-IL., would prevent the Department of Homeland Security(DHS) from forcing chemical facilities to alter their manufacturing process or chemical inputs. Currently, facilities which DHS considers higher-risk must justify to DHS why they shouldn't change their entire manufacturing model or list of chemical inputs. In most cases the economic impacts of such a change would be extreme, and not representative of the most cost-effective method to secure a chemical facility. According to the U.S. Bureau of Labor Statistics, chemical manufacturing “employment is projected to decline” with wage and salary employment in this sector dropping by 16 percent. Congress shouldn't burden this industry anymore with arbitrary and unneeded regulations. This amendment would in no way alter the security standards that chemical facilities would be required to meet. For text of this amendment and a detailed vote tally, click here.
This amendment was not agreed to by a vote of 28 to 14.
An amendment offered by Rep. John Sullivan, R-OK., would prevent the Department of Homeland Security(DHS) from forcing chemical facilities to alter their manufacturing process or chemical inputs. Currently, facilities which DHS considers higher-risk must justify to DHS why they shouldn't change their entire manufacturing model or list of chemical inputs. In most cases the economic impacts of such a change would be extreme, and not representative of the most cost-effective way to secure a chemical facility. Mr. Sullivan's amendment would still require facilities to assess their chemical inputs and processes from a terrorism perspective, but prevent DHS from forcing them to retool based on the assessment. This amendment would in no way alter the security standards that chemical facilities would be required to meet. For text of this amendment and a detailed vote tally, click here.
This amendment was not agreed to by a vote of 17 to 30.
An amendment offered by Rep. Fred Upton, R-MI., would remove the citizen suit provisions in this bill. Currently, provisions in H.R. 2868 would allow any citizen to sue any Federally owned chemical facility or the Department of Homeland Security, should they feel the provisions of H.R. 2868 are not being implemented effectively. This expansion of trial lawyer jurisdiction could easily bog down DHS in frivolous litigation, distracting the agency from its mission of National security. New citizen suit provisions were not requested by either the Obama administration or DHS. Furthermore, the Administration testified before the House Homeland Security Committee that third-party lawsuits may lead to the release of sensitive and protected information. Citizen suits are not a mechanism for enforcing matters of national or homeland security provisions and so do not belong in this bill. For text of this amendment and a detailed vote tally, click here.
This amendment was not agreed to by a vote of 28 to 15.
An amendment offered by Rep. Fred Upton, R-MI., would install critical job-protection provisions in the bill. Currently, this legislation grants DHS the authority to force a chemical plant to change it's manufacturing process should they deem a "safer" alternative technology exist. Chemical plants would only be exempted from this forced re-tooling, if DHS determined that it would "significantly and demonstrably" impair the ability of the business to continue at it's current location. These terms would be open to interpretation by the Secretary. Mr. Upton's amendment would install a real economic safeguard, by exempting a chemical facility from de-facto forced retooling if such a process would force the facility to lay off more than 15% of its workforce. This amendment would not lower security requirements that a given facility would be forced to meet. For text of this amendment and a detailed vote tally, click here.
This amendment was not agreed to by a vote of 28 to 11.
An amendment offered by Rep. Cliff Stearns, R-FL., would strike the current legislation and extend the current chemical safety provisions through 2012. Currently, chemical facilities are already regulated by both the Maritime Transportation Security Act of 2002, as well as Section 550 of the Homeland Security Appropriations Act of 2007. Under current regulations, Chemical plants are evaluated by Government according to risk levels. Those at a High risk of terrorist attack, are presently required to assess their vulnerabilities, and then and implement site security plans to lower risk levels to an acceptable level as determined by the Department of Homeland Security(DHS).
H.R. 2868, would expand Government regulation of chemical plants to all plants, not just those considered high-risk. In addition, it would grant DHS the power to effectively outlaw certain manufacturing processes or even the manufacturing of certain chemicals, if it deemed their were other "safer" alternatives. In this situation, levels of "safety" would take precedent over matters of economic viability or chemical effectiveness. According to the U.S. Bureau of Labor Statistics, chemical manufacturing “employment is projected to decline” with wage and salary employment in this sector dropping by 16 percent. Congress shouldn't burden this industry anymore with arbitrary and unneeded regulations.
Finally, H.R. 2868 would implement citizen suit provisions, allowing any citizen to sue DHS if they feel this act is not being implemented effectively. This expansion of trial lawyer jurisdiction would serve only to bog DHS down in lawsuits, and distract it from its mission of keeping America safe.
Mr. Stearns' amendment would strike these new provisions, and extend existing security provisions through 2012. This would ensure robust security for this nation's chemical plants while giving lawmakers ample time to evaluate the relatively new Chemical Plant security provisions of 2007 before moving forward with further regulation.
For text of this amendment and a detailed vote tally, click here.
This amendment was not agreed to by a vote of 16 to 28.
H.R. 2868, the Chemical Facility Anti-Terrorism Act of 2009 was reported favorably as amended out of the Committee on Energy and Commerce by a vote of 29 to 18. For a detailed vote tally, click here.
Amendment to H.R. 2190, the Mercury Pollution Reduction Act
An amendment offered by Reps. Phil Gingrey, R-GA., Tim Murphy, R-PA., and Marsha Blackburn, R-TN., would emplace provisions in the bill more realistic than a two year phase out of mercury-cell technology so that the 4 plants in America still using this process would be able to convert, instead of close. The amendment requires companies using the mercury cell process to certify by 2015 whether they want to convert to a new technology. This time line gives the companies the necessary time to weather the current financial crisis and emerge with a strong plan for the future. For companies that do not wish to stay in the chlorine making business, they have to stop using mercury cell technology within one year, by the end of 2016. For companies that want to covert to another process, this amendment gives those plants three years to make the transition. This time line is consistent with past industry conversion efforts. Lastly, if a company is making good faith efforts to convert, but hits a permitting, financing, or building snag, this Amendment gives the plant the chance to ask EPA for one more year. This would make the final deadline for conversion 2020, which is consistent with the EU's voluntarily phase out for its 37 mercury cell plants.
The EPA estimates that conversion costs approximately $100 million. Given the current financial climate and unrealistic deadlines, this bill will force the four American mercury-cell based plants to close, forcing over 1,000 Americans out of work. All four of these plants are in communities with over 10% unemployment. This amendment would provide a workable timeline for conversion, saving the jobs and communities of these hardworking Americans. For amendment text and a detailed vote tally, click here.
This amendment was not agreed to by a vote of 26 to 19.
Rep. John Shimkus, R-IL., offered two amendments en bloc
The first amendment would prevent this bill from drastically impacting the Nation's supply of chlorine, a key chemical used for the treatment of our drinking water. In addition, chlorine is used to make high-tech first-responder equipment, sustainable building materials, food protection chemicals, computer microprocessor chips and more than 90 percent of prescription pharmaceuticals. This amendment would equire the EPA Administrator to conduct a study by 2011 on the impact this bill would have on America’s domestic chlorine supply. If the administrator determines that this bill will have a detrimental effect on the nation’s domestic supply of chlorine, which is used for disinfecting public drinking water and a variety of other important uses, the provisions of the act will be suspended.
The second amendment would require EPA and DHS to certify that the provisions of the bill will not cause a threat to homeland security. This bill will effectively close four major chlorine manufacturing facilities in the United States, which will mean that more chlorine will have to be shipped longer distances, thereby increasing potential security risks associated with chlorine transport. When improperly used, chlorine can be dangerous chemical with some explosive properties, that could be attractive as a target for terrorists.
For text of these amendments and a detailed vote tally, click here.
These amendments were not agreed to by a vote of 26 to 13.
An amendment offered by Rep. Michael Burgess, R-TX., would help prevent the stringent mandates in this bill from forcing the closure of any of America's four remaining chlor-alkali facilities. These facilities provide over 1,000 jobs all in communities with more than 10% unemployment. In addition, these plants produce negligible mercury emissions, with one of these plants accounting for only 5 millionths of one percent of atmospheric mercury levels. Currently, Chinese coal emissions are the leading source of athmospheric merucry. Mr. Burgess' amendment would require the EPA administrator to conduct a study by January, 2011, to determine if one or more plants will be forced to close as a result of the act. Should it find that a any plant will be forced to close, that plant would be exempted from the bills provisions, thus preventing its closure and the loss of jobs. Preventing plant closure means saving jobs and saving these communities. For text of this amendment, and a detailed vote tally, click here.
This amendment was not agreed to by a vote of 30 to 15.
Rep. Joe Barton, R-TX., and Rep. Cliff Stearns, R-FL., offered two amendments en bloc.
Rep. Joe Barton's amendment would require that China take comparable steps to outlaw the use of the chlor-alkali process by January 1st, 2011, before the provisions of this act go into effect. The four American plants using the chlor-alkali process contribute almost nothing to atmospheric mercury levels, with one of these plants accounting for only 5 millionths of One Percent of atmospheric mercury levels. According to the USGS, “consumption of ocean fish and shellfish account for over 90 percent of human methylmercury exposure in the United States, and tuna harvested in the Pacific Ocean account for 40 percent of this total exposure.” The methlymercury found in fish comes from the global emissions of mercury, but particularly those from Asia. In addition, it is now estimated that China is the leading contributor to atmospheric mercury levels. If the four American plants are forced to close because of this legislation, this amendment will help ensure that these jobs at least stay in the Country, and aren’t outsourced to our less environmentally conscious competitors.
Rep. Cliff Stearns' Amendment would help prevent American jobs from going overseas if the four plants this bill affects are forced to close. H.R. 2190 will essentially ban the manufacturing process used by four American chlor-alkali plants in 2011. The EU has 37 of such plants and is allowing them to voulntarily phase out their manufacturing process by 2020. If this bill becomes law, and these plants are forced to close, it is likely that large portions of their production capacity and the 1,000 jobs they provide, will go to the European Union. This Amendment would require that the European Union take comparable steps to outlaw the use of the chlor-alkali process by January 1st, 2011. Otherwise, the provisions of this act would be suspended. This amendment will help prevent needless job loss in the United States and sensless wealth transfers to our foriegn competitors.
For text of these amendments and a detailed vote tally, click here.
This amendment was not agreed to by a vote of 29 to 13.
An amendment offered by Rep. Michael Burgess, R-TX., would provide a valuable safety mechanism for the already economically-pinched communities that this legislation will affect. This legislation will essentially outlaw a manufacturing process used by four plants located in Augusta, GA., Charleston, TN., Wletzer County, WV., and Ashtabula County, OH. Currently, all four of these locales are suffering from over 10% unemployment. Upgrading a chlor-alkali plant to a new manufacturing process can cost upwards of a hundred million dollars; a nearly unattainable sum given the current state of our financial industry as well as the current capacity glut in the chlorine and caustic soda industry. Mr. Burgess' amendment would protect workers at these plants by requiring the EPA administrator, in consultation with the Secretary of Labor, to submit a report to Congress by 2011 examining job loss from this Act. Should this bill’s provisions cause more than 500 jobs to be lost, the act would be permanently suspended to protect the jobs hard-working Americans. For text of this amendment and a detailed vote tally, click here.
This amendment was not agreed to 21 to 16.
An amendment offered by Rep. Michael Burgess, R-TX., would provide a valuable safety mechanism for the already economically-pinched communities that this legislation will affect. This legislation will essentially outlaw a manufacturing process used by four plants located in Augusta, GA., Charleston, TN., Wletzer County, WV., and Ashtabula County, OH. All four of these locales are suffering from over 10% unemployment. Upgrading a chlor-alkali plant to a new manufacturing process can cost upwards of a hundred million dollars; a nearly unattainable sum given the current state of our financial industry as well as the current capacity glut in the chlorine and caustic soda industry. Mr. Buramendment would protect workers at these plants by requiring the EPA administrator, in consultation with the Secretary of Labor, to submit a report to Congress by 2011 examining job loss from this Act. Should this bill’s provisions cause more than 100 jobs to be lost, the act would be permanently suspended to protect the jobs hard-working Americans. For text of this amendment and a detailed vote tally, click here.
This amendment was not agreed to by a vote of 30 to 15.
H.R. 2190, the Mercury Pollution Reduction Act was reported favorably as amended out of the Committee on Energy and Commerce by a vote of 29 to 14.
For a detailed vote tally, click here.
