Chemical and Water Security Act of 2009 - H.R. 2868

The House of Representatives recently passed the Chemical and Water Security Act of 2009 (H.R. 2868). The bill increases security requirements at chemical plants and drinking water and wastewater facilities by establishing risk-based security standards for these critical assets. H.R. 2868 reauthorizes the Department of Homeland Security's (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) program, which is scheduled to expire October 2010. It also authorizes the EPA to establish similar security programs for drinking water and wastewater facilities.

The Chemical and Water Security Act of 2009:

• Makes the DHS CFATS program permanent. The legislation strengthens the chemical security program by requiring the review and, in some cases, the implementation of safer technologies, adding enforcement tools, and protecting the right of workers to participate in developing and implementing chemical facility security plans.
• Authorizes EPA to create a risk-based, performance-based program for the water sector similar to the one established by DHS for chemical plants.
• Requires the riskiest chemical facilities, drinking water facilities, and water treatment works to assess and, when appropriate, implement methods to reduce the consequences of a terrorist attack (also known as inherently safer technologies).
• Strengthens the enforcement of the CFATS program by allowing citizens to bring suit against the Secretary of DHS for failure to perform non-discretionary obligations.
  

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OSHA Amends Hazard Communication Standard Proposed Rule

The Hazard Communication Standard proposed rule, published in the Federal Register on September 30, 2009, contained eight errors according OSHA — four in the preamble and four that appear in Appendix A: Table A.1.1, Table A.1.2, Table A.2.3, and Table A7.1.

The corrections made are:

• The “For further information contact” information has been corrected to read as follows:
  For general information and press inquiries, contact Jennifer Ashley, Office of Communications, Room N–3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693–1999.
  For technical information, contact Maureen Ruskin, Directorate of Standards and Guidance, Room N–3718, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693–1950.
• The net benefits OSHA expects that societal welfare will increase as a result of these standards has been changed from, over $500 million annually to over $700 million annually.
• The potential small entities affected by the proposal, based on the definitions of small entities developed by SBA for each industry, has been changed from 4,215,404 to 3,877,457.
• The estimated benefits from the proposed rule has been corrected to accurately reflect the $133 million decline annually. Originally, OSHA said that estimated benefits of the proposed rule would decline from $754 million to $610 million annually. The corrected numbers are $754 million to $621 million annually.

In Hazard Communication Standard Appendix A Table A.1.1: Acute toxicity hazard categories and acute toxicity estimate (ATE) values defining the respective categories have also been amended:

• In Appendix A, Table A.1.2: Conversion from experimentally obtained acute toxicity range values (or acute toxicity hazard categories) to acute toxicity point estimates for use in the formulas for the classification of mixtures has been corrected.
• In Appendix A, Table A.2.3: Concentration of ingredients of a mixture classified as skin Category 1 or 2 that would trigger classification of the mixture as hazardous to skin (Category 1 or 2) has been corrected.
• In Appendix A, Table A.7.1: Cut-off values/concentration limits of ingredients of a mixture classified as reproductive toxicants or for effects on or via lactation that trigger classification of the mixture has been corrected.
  

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Sixty Day Rule - Minnesota Environmental Review Process

With some exceptions, Minnesota Statute 15.99 requires that an agency must approve or deny within 60 days a written request relating to some specific petitions, including

• zoning,
• septic systems,
• watershed district review,
• soil and water conservation district review, or
• expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action.

Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.


The “sixty day rule” (MN Statute 15.99) does not apply to projects that are going through the environmental review process. Because environmental review decisions can often take months (and in some cases years) to be reached, environmental review is one of the exceptions to the rule. The clock stops ticking on the “sixty day rule” until environmental review has been completed and, once environmental review has been completed, the clock is reset at 60 days.

Caltha LLP provides specialized expertise to Minnesota project proposers in the completion of Environmental Assessment Worksheets, Environmental Impact Statements, and Environmental Analysis required to determine Categorical Exclusion under NEPA.

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Minnesota Environmental Review - Who is the RGU?

In Minnesota, any environmental review begins by determining what organization will serve as the Responsible Government Unit, or RGU. This includes Environmental Assessment Worksheets (EAW) and Environmental Impact Statements (EIS). Minnesota rules list what organizations serve as the RGU for all projects that must undergo some sort of mandatory review. State organizations that serve as RGUs include the Environmental Quality Board (EQB), Minnesota Pollution Control Agency (MPCA), Dept. of Natural Resources (DNR), Dept. of Transportation (MDOT) and the Dept. of Health (MDH). The Metropolitan Airports Commission (MAC) serves as the RGU for some types of airport projects. Local units of government serve as the RGU for many smaller scale projects.

If a unit of government orders some form of discretionary environmental review, that unit of government also serves as the RGU. In some instances, the EQB has the authority to change the RGU. The EQB can make this change only if the newly appointed RGU has greater expertise in analyzing the potential environmental impacts of a proposed project.

Caltha LLP provides specialized expertise to Minnesota project proposers in the completion of Environmental Assessment Worksheets, Environmental Impact Statements, and Environmental Analysis required to determine Categorical Exclusion under NEPA.

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