[House Hearing, 111 Congress]
[From the U.S. Government Printing Office]
H.R. 2868, THE ``CHEMICAL FACILITY ANTI-TERRORISM ACT OF 2009''
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HEARING
before the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JUNE 16, 2009
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Serial No. 111-25
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Printed for the use of the Committee on Homeland Security
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COMMITTEE ON HOMELAND SECURITY
Bennie G. Thompson, Mississippi, Chairman
Loretta Sanchez, California Peter T. King, New York
Jane Harman, California Lamar Smith, Texas
Peter A. DeFazio, Oregon Mark E. Souder, Indiana
Eleanor Holmes Norton, District of Daniel E. Lungren, California
Columbia Mike Rogers, Alabama
Zoe Lofgren, California Michael T. McCaul, Texas
Sheila Jackson Lee, Texas Charles W. Dent, Pennsylvania
Henry Cuellar, Texas Gus M. Bilirakis, Florida
Christopher P. Carney, Pennsylvania Paul C. Broun, Georgia
Yvette D. Clarke, New York Candice S. Miller, Michigan
Laura Richardson, California Pete Olson, Texas
Ann Kirkpatrick, Arizona Anh ``Joseph'' Cao, Louisiana
Ben Ray Lujan, New Mexico Steve Austria, Ohio
Bill Pascrell, Jr., New Jersey
Emanuel Cleaver, Missouri
Al Green, Texas
James A. Himes, Connecticut
Mary Jo Kilroy, Ohio
Eric J.J. Massa, New York
Dina Titus, Nevada
Vacancy
I. Lanier Avant, Staff Director
Rosaline Cohen, Chief Counsel
Michael Twinchek, Chief Clerk
Robert O'Connor, Minority Staff Director
C O N T E N T S
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Page
STATEMENTS
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Committee on
Homeland Security:
Oral Statement................................................. 1
Prepared Statement............................................. 2
The Honorable Peter T. King, a Representative in Congress From
the State of New York, and Ranking Member, Committee on
Homeland Security.............................................. 3
The Honorable Loretta Sanchez, a Representative in Congress From
the State of California:
Prepared Statement............................................. 5
WITNESSES
Panel I
Mr. Philip R. Reitinger, Deputy Under Secretary, National
Protection and Programs Directorate, Department of Homeland
Security:
Oral Statement................................................. 6
Joint Prepared Statement with Sue Armstrong, Director,
Infrastructure Security Compliance Division, Office of
Infrastructure Protection, Department of Homeland Security... 7
Panel II
Mr. Paul Baldauf, Assistant Director, Radiation Protection and
Release Prevention, New Jersey Department of Environmental
Protection:
Oral Statement................................................. 47
Prepared Statement............................................. 49
Mr. Marty Durbin, Vice President, Federal Affairs, American
Chemistry Council:
Oral Statement................................................. 53
Prepared Statement............................................. 55
Mr. Neal Langerman, Principle Scientist and Chief Executive
Officer, Advanced Chemical Safety, Inc.:
Oral Statement................................................. 58
Prepared Statement............................................. 59
Mr. Martin Jeppeson, Director of Regulatory Affairs, California
Ammonia Company:
Oral Statement................................................. 67
Prepared Statement............................................. 69
FOR THE RECORD
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Committee on
Homeland Security:
Statement of Rick Hind, Legislative Director, Greenpeace....... 87
Statement of Elizabeth Hitchcock, U.S. Public Interest Research
Group........................................................ 38
The Honorable Charles W. Dent, a Representative in Congress From
the State of Pennsylvania:
Letters Submitted For the Record............................... 22
APPENDIX
Questions From Hon. Christopher P. Carney of Pennsylvania........ 101
H.R. 2868, THE ``CHEMICAL FACILITY ANTI-TERRORISM ACT OF 2009''
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Tuesday, June 16, 2009
U.S. House of Representatives,
Committee on Homeland Security,
Washington, DC.
The committee met, pursuant to call, at 10:05 a.m., in Room
311, Cannon House Office Building, Hon. Bennie G. Thompson
[Chairman of the committee] presiding.
Present: Representatives Thompson, Norton, Jackson Lee,
Cuellar, Carney, Clarke, Richardson, Pascrell, Cleaver, Green,
Himes, Titus, King, Smith, Souder, Lungren, McCaul, Dent,
Broun, Miller, Olson, Cao, and Austria.
Chairman Thompson [presiding]. The Committee on Homeland
Security will come to order.
The committee is meeting today to receive testimony on H.R.
2868, the Chemical Facility Anti-Terrorism Act of 2009.
At the outset, let me indicate that we have been told that
the air is out in all of Cannon. So I would assume that that
means the testimony we receive today will not include hot air,
but only the truth. We have been told that the maintenance
personnel are working on it. So shedding coats and other things
would absolutely be in order if the need arises.
Otherwise, good morning.
When I assumed the Chairmanship of this committee, I
identified the needs to shield the Nation's critical
infrastructure from foreign and domestic terrorism as one of
the many key goals in charting the course toward freedom from
fear.
To that end, reauthorization of the Department of Homeland
Security's chemical security program, the Chemical Facilities
Anti-Terrorism Standards program, before it expires on October
2009 is a major priority.
Yesterday, I was pleased to introduce H.R. 2868, which not
only reauthorizes CFATS, but also enhances it in a number of
critical ways. H.R. 2868, Chemical Facility Anti-Terrorism Act
of 2009, is a product of over 6 months of stakeholder meetings
and bipartisan discussions between the Committees on Homeland
Security and Energy and Commerce. In the end, we have produced
a bill that is both comprehensive and common-sense.
I have made no secret of my disappointment that past
efforts to enhance chemical security legislation been bogged
down between and because of jurisdictional conflicts.
This Congress, I have a partner that shares my commitment
to enacting comprehensive chemical security legislation this
year: Henry Waxman, the Chairman of Energy and Commerce
Committee.
At our direction, over the past 6 months, committee staff
worked in an open and bipartisan manner and sought input from a
wide range of experts and stakeholders, including: The
Department of Homeland Security; large and small chemical
manufacturers; fertilizer manufacturers; petroleum and propane
manufacturers and distributors; the explosive industry; key
associations in the chemical sector; the State of New Jersey--I
really wish Mr. Pascrell was here to hear that; representatives
from labor unions that represent chemical facility workers;
drinking water and wastewater organizations; academic and other
experts.
Today's hearing will continue in that open and
collaborative spirit. While at introduction the bill does not
yet have a Republican cosponsor, I am hopeful that, in the end,
it will garner bipartisan support just as similar committee-
developed legislation has received.
After all, many of the key provisions that were accepted
during the negotiations were offered by Republican staff.
Today, in addition to discussing the new legislation, we will
also be discussing how things are going with the implementation
of CFATS.
As a close observer, I give credit to the Department for
the good job it has done so far in promulgating and enforcing
the CFATS regulations. There have been a few missteps, but the
Department has adapted quickly and made adjustments as
necessary.
The legislation we will discuss today represents a
continuation of that effort. As the CFATS program has been
implemented, it is evident that there are a number of areas
that need to be addressed legislatively. These include: The
current exemption on security regulations for drinking water,
wastewater, and port facilities; the absence of strong
whistleblower protection; restrictions of citizen suits; and
absence of the requirement that facilities include methods to
reduce consequences of terror attacks--a best practice in the
chemical sector--in their vulnerability assessments.
The introduced version of H.R. 2868, together with
forthcoming provisions that the Energy and Commerce Committee
plans include, will take each of these issues on directly.
I look forward to hearing from our witnesses today as we
move forward with reauthorizing and enhancing the CFATS
program. Thank you.
[The statement of Chairman Thompson follows:]
Prepared Statement of Chairman Bennie G. Thompson
Good morning.
When I assumed the chairmanship of this committee, I identified the
need to shield the Nation's critical infrastructure from foreign and
domestic terrorism as one of my key goals in Charting the Course
Towards Freedom from Fear.
To that end, reauthorization of the Department of Homeland
Security's chemical security program--the ``Chemical Facilities Anti-
Terrorism Standards'' program--before it expires in October 2009 is a
major priority.
Yesterday, I was pleased to introduce H.R. 2868 which not only
reauthorizes CFATS but also enhances it in a number of critical ways.
H.R. 2868, the ``Chemical Facility Anti-Terrorism Act of 2009,'' is
the product of over 6 months of stakeholder meetings and bipartisan
discussions between the Committees on Homeland Security and Energy and
Commerce.
In the end, we have produced a bill that is both comprehensive and
common-sense.
I have made no secret of my disappointment that past efforts to
enact chemical security legislation been bogged down because of
jurisdictional conflict.
This Congress, I have a partner that shares my commitment to
enacting comprehensive chemical security legislation this year--Henry
Waxman--the Chairman of the Energy and Commerce Committee.
At our direction, over the past 6 months, committee staff worked in
an open and bipartisan manner and sought input from a wide range of
experts and stakeholders including:
the Department of Homeland Security;
large and small chemical manufacturers;
fertilizer manufacturers;
petroleum and propane manufacturers and distributors;
the explosives industry;
key associations in the chemical sector;
the State of New Jersey;
representatives from labor unions that represent chemical
facility workers;
drinking water and wastewater organizations, and
academic and other experts.
Today's hearing will continue in that open, collaborative spirit.
While, at introduction, the bill does not yet have a Republican
cosponsor, I am hopeful that, in the end, it will garner bipartisan
support just as similar committee-developed legislation has received.
After all, many of the key provisions that were accepted during the
negotiations were offered by Republican staff.
Today, in addition to discussing the new legislation, we will also
be discussing how things are going with the implementation of CFATS.
As a close observer, I give credit to the Department for the good
job it has done so far in promulgating and enforcing the CFATS
regulations.
There have been a few missteps, but the Department has adapted
quickly and made adjustments as necessary.
The legislation we will discuss today represents a continuation of
that effort.
As the CFATS program has been implemented, it is evident that there
are a number of areas that need to be addressed legislatively.
These include: (1) The current exemption on security regulations
for drinking water, wastewater, and port facilities; (2) the absence of
strong whistleblower protections; (3) restrictions of citizen suits;
and (4) the absence of a requirement that facilities include methods to
reduce consequences of terrorist attacks--a ``best practice'' in the
chemical sector--in their vulnerability assessments.
The introduced version of H.R. 2868--together with forthcoming
provisions that the Energy and Commerce Committee plans include--will
take each of these issues on--directly.
I look forward to hearing from our witnesses today, as we move
forward with reauthorizing and enhancing the CFATS program.
Thank you.
Mr. King. I now recognize the Ranking Member of the full
committee, the gentleman from New York, Mr. King, for an
opening statement.
Thank you very much, Mr. Chairman. Like you, I look forward
to the testimony today.
I must say at the outset, though, that I do have very real
concerns about going forward with this legislation. We adopted
very comprehensive legislation back in 2006.
Mr. Lungren was in the forefront of the negotiations and
discussions where we forged, I thought, very real and workable,
amenable compromises. As the Chairman said in his opening
statement, the Department has made real progress.
My understanding is that the President and the
administration and the Department itself are asking that the
legislation be extended for 1 year, that we do not rush to
judgment, that we do not rush to revise the bill or to change
it, but give the Department 1 year to fully comply with and
implement the legislation, which was passed in 2006.
Rand Beers, when testifying before the Senate as the
President's nominee for under secretary, also requested that a
1-year extension be granted. My understanding is that the
homeland security appropriations bill, which will be on the
floor tomorrow or Friday, has included a 1-year extension.
So, we have the appropriations bill going forward with a 1-
year extension, and yet we are attempting to revise the bill.
That shows, I think, part of the weakness of not having an
authorization bill, because we have the Appropriations
Subcommittee on Homeland Security setting policy. We are coming
in afterwards, setting different policy. That, I think, shows
the inherent weakness in the multiplicity of jurisdictional
committees in this issue of homeland security.
So, I have real concerns, and I see no purpose for rushing
forward today against the wishes of the President, against the
wishes of the Department, and against the wishes of the
appropriations committee.
Now, I have real concerns about the issue of third-party
suits. I would be interested in the testimony from the
Department as to how they feel about having citizens bring
lawsuits off of this legislation.
Again, the overall concern I have is that, in many ways, we
are giving the environmental lobby too much of an in here. This
is a homeland security issue; it is not environmental.
Obviously, there are environmental concerns, but the prime
concern here should be homeland security, keeping Americans
safe, and saving the lives of Americans. We get into the whole
issue of inherently safer technology. I recall with some
anguish listening to the debates between Mr. Lungren and Mr.
Markey in 2006 over inherently safer technology.
I thought the compromise we worked out at that time made
sense, because, without oversimplifying it, inherently safer
technology is a concept. I just think it is dangerous for us to
be jumping the gun, coming in a year before the Department
wants to have all of its regulations and policies in place, and
imposing a concept of security, rather than actual science and
precise methodologies.
So, again, I look forward to the testimony. Mr. Chairman, I
have to say, I have real concerns about the direction in which
we are going. I am wondering, how much of this is almost wasted
effort, in view of what the appropriations committee is going
to be doing on the House floor this week and what I assume the
Senate will be doing. We will be coming in too late with
legislation, which serves no real purpose.
So with that, I still look forward to the hearing, and I
thank the Chairman for his courtesy. I yield back the balance
of my time.
Chairman Thompson. Thank you very much. I am happy to see
my Ranking Member supports my President. I look forward to
further----
Mr. King. Somebody has to.
Chairman Thompson [continuing]. Opportunities to do that.
Obviously, there are points of disagreement. That is why we are
here.
Other Members of the committee are reminded that, under the
committee rules, opening statements may be submitted for the
record.
[The statement of Honorable Loretta Sanchez follows:]
Prepared Statement of the Honorable Loretta Sanchez
I am pleased that today the full Committee on Homeland Security is
holding this hearing on H.R. 2868, the Chemical Facility Anti-Terrorism
Act of 2009.
Last Congress, a similar bill was presented in this committee and
reported out.
However, I was disheartened when that legislation did not move
through Congress.
To this end, I am thankful for the leadership that Chairman
Thompson has shown in engaging Chairman Waxman of the Energy and
Commerce Committee and working to find a compromise to move this bill
forward.
I am also glad to see that an amendment I successfully proposed
last Congress, requiring a minimum level of security training for all
chemical facility employees, was included in the underlying legislation
this Congress.
This provision, in Section 2103 will ensure that employees at
chemical facilities will receive annual training that will improve the
overall security of these facilities.
Oftentime, these employees are at the front lines and affected
first by any crisis or accident at a facility.
This training is comprehensive and educates employees about the
security procedures in their workplace.
Furthermore the training must:
Provide an analysis of the potential hazards at the
facility,
Explain the specific prevention, preparedness, and response
plan for the facility,
Provide an opportunity to reduce the vulnerabilities of the
facility, and
Provide the opportunity to discuss and practice emergency
response procedures.
These requirements will ensure that chemical facility workers have
the tools to try to prevent an incident and, follow an effective
response plan if a terrorist incident occurs.
We need to prepare these employees to effectively protect
themselves, their coworkers, and the facility as a whole and I am
pleased to see this provision included in H.R. 2868.
I hope today's hearing is productive and I look forward to this
legislation moving swiftly through the committee process.
Chairman Thompson. I welcome our first panel of witnesses.
Our first witness is Mr. Philip Reitinger. Mr. Reitinger is the
deputy under secretary and currently acting under secretary for
the National Protection and Programs Directorate at DHS. Prior
to joining DHS, Mr. Reitinger served as the chief
infrastructure strategist at Microsoft.
Our second witness is Ms. Sue Armstrong. Ms. Armstrong
serves as the director of the Infrastructure Security
Compliance Division within the Office of Infrastructure
Protection at DHS. She is responsible for development and
implementation of existing CFATS regulation.
Without objection, the witnesses' full statements will be
inserted in the record.
Mr. Reitinger and Ms. Armstrong provided one joint
testimony. I now recognize Mr. Reitinger to summarize their
joint statement for 5 minutes.
STATEMENTS OF PHILIP R. REITINGER, DEPUTY UNDER SECRETARY,
NATIONAL PROTECTION AND PROGRAMS DIRECTORATE, DEPARTMENT OF
HOMELAND SECURITY, AND SUE ARMSTRONG, DIRECTOR, INFRASTRUCTURE
SECURITY COMPLIANCE DIVISION, OFFICE OF INFRASTRUCTURE
PROTECTION, DEPARTMENT OF HOMELAND SECURITY
Mr. Reitinger. Thank you, Chairman Thompson, Ranking Member
King, and distinguished Members of the committee. It is indeed
an honor to appear before you today to address the Department's
authority over high-risk chemical facilities through the
Chemical Facilities Anti-Terrorism Standards, or CFATS, program
and to discuss the Department's views on its reauthorization.
As the committee is aware, Section 550 of the fiscal year
2007 Department of Homeland Security Appropriations Act
directed the Department to develop and implement a regulatory
framework to address the high level of security risk posed by
certain chemical facilities.
Consequently, the Department published the CFATS interim
final rule on April 9, 2007. Specifically, Section 550(a) of
the act authorized the Department to adopt rules requiring
high-risk chemical facilities to complete security
vulnerability assessments for SVAs, develop site security plan,
or SSPs, and implement protective security measures necessary
to meet risk-based performance standards established by the
Department.
Section 550, however, expressly exempted from these rules
certain facilities regulated under other Federal statutes. For
example, Section 550 exempts facilities regulated by the United
States Coast Guard pursuant to the Maritime Transportation
Security Act; drinking water and wastewater treatment
facilities regulated under Section 1401 of the Safe Drinking
Water Act and Section 212 of the Federal Water Pollution
Control Act, respectively, are similarly exempted, as are some
other facilities.
Since publication of the interim final rule in April 2007,
the Department has made significant progress in implementing
the CFATS program. I would like to highlight some of this
progress.
We have reviewed over 36,500 top-screen consequence
assessment questionnaires. In June 2008, we notified 7,010
preliminarily tiered facilities of the Department's initial
high-risk determination and of the facilities' requirement to
submit security vulnerability assessments.
We received and are reviewing over 6,100 SVAs. We have
recently began to notify facilities of their final high-ranking
determination, tiering assignments, and requirements to
complete and submit SSPs or alternative security programs.
Per Section 550, the CFATS program is scheduled to expire
in October 2009. The President's fiscal year 2010 budget
request would extend the authorization for a period of 1 year
to October 2010 to allow time for Congress and the
administration to develop an appropriate reauthorization bill.
To this end, we have enjoyed a constructive dialogue with
Congress, particularly this committee, as it works on new
authorizing legislation for CFATS. We urge that, in authorizing
continued implementation of this important program, Congress
provide adequate time and resources to implement any new
requirements under the legislation.
We are in the process of reviewing the most recent, current
reauthorization bill. In general, we support some aspects of
the bill, but do have concerns with other sections of the bill,
particularly the provision relating to citizen suits.
We look forward to our continued collaboration with the
committee to ensure that chemical sector security regulatory
effort achieves success in reducing risk in the chemical sector
and protects the public.
In addition to our Federal Government partners, success is
dependent upon continued cooperation with industry and State
and local government partners as we move towards a more secure
future.
I am accompanied today by Sue Armstrong, who leads the
CFATS program at DHS. Sue has been involved in this program
since it was first established and can assist in answering the
Members' questions regarding its implementation.
Thank you for the opportunity to appear today, and Sue and
I are happy to answer any questions the committee may have.
[The joint statement of Mr. Reitinger and Ms. Armstrong
follows:]
Joint Prepared Statement of Philip R. Reitinger and Sue Armstrong
June 16, 2009
Thank you, Chairman Thompson, Ranking Member King, and
distinguished Members of the committee. It is a pleasure to appear
before you today to address the Department's authority over high-risk
chemical facilities through the Chemical Facility Anti-Terrorism
Standards (CFATS) program. We have made significant progress since
CFATS' implementation. We have reviewed over 36,500 facilities' Top-
Screen consequence assessment questionnaires. In June 2008, we notified
7,010 preliminarily tiered facilities of the Department's initial high-
risk determination and of the facilities' requirement to submit
Security Vulnerability Assessments (SVAs). We received and are
reviewing over 6,100 SVAs; we have recently begun to notify facilities
of their final high-risk determinations, tiering assignments, and the
requirement to complete and submit Site Security Plans (SSPs) or
Alternative Security Programs (ASPs). CFATS currently covers
approximately 6,400 high-risk facilities Nation-wide, which reflects
changes related to chemicals of interest that facilities have made
since receiving preliminary tiering notifications in June 2008.
chemical security regulations
Section 550 of the fiscal year 2007 Department of Homeland Security
Appropriations Act directed the Department to develop and implement a
regulatory framework to address the high level of security risk posed
by certain chemical facilities. Consequently, the Department published
an Interim Final Rule, known as the Chemical Facility Anti-Terrorism
Standards (CFATS), on April 9, 2007. Specifically, Section 550(a) of
the Act authorized the Department to adopt rules requiring high-risk
chemical facilities to complete SVAs, develop SSPs, and implement
protective measures necessary to meet risk-based performance standards
established by the Department. Section 550, however, expressly exempts
from those rules certain facilities that are regulated under other
Federal statutes. For example, Section 550 exempts facilities regulated
by the United States Coast Guard pursuant to the Maritime
Transportation Security Act (MTSA); drinking water and wastewater
treatment facilities regulated under Section 1401 of the Safe Water
Drinking Act and Section 212 of the Federal Water Pollution Control
Act, respectively, are similarly exempted. In addition, Section 550
exempted facilities owned or operated by the Department of Defense and
the Department of Energy, and certain facilities subject to regulation
by the Nuclear Regulatory Commission.
The following core principles guided the development of the CFATS
regulatory structure:
(1) Securing high-risk chemical facilities is an immense
undertaking that involves a national effort, including all levels of
Government and the private sector.--Integrated and effective
participation by all stakeholders--Federal, State, local, and the
private sector--is essential to securing our national critical
infrastructures, including high-risk chemical facilities. Implementing
this program means tackling a sophisticated and complex set of issues
related to identifying and mitigating vulnerabilities and setting
security goals. This requires a broad spectrum of input. By working
closely with experts, members of industry, academics, and Federal
Government partners, we leveraged vital knowledge and insight to
develop the regulation.
(2) Risk-based tiering will ensure that resources are appropriately
deployed.--Not all facilities present the same level of risk. The
greatest level of scrutiny should be focused on those facilities that,
if attacked, present the most risks and could endanger the greatest
number of lives.
(3) Reasonable, clear, and equitable performance standards will
lead to enhanced security.--The CFATS rule includes enforceable risk-
based performance standards. High-risk facilities have the flexibility
to select among appropriate site-specific security measures that will
effectively address risk. The Department will analyze each tiered
facility's SSP, to see if it meets CFATS performance standards; if
necessary, DHS will work with the facility to revise and resubmit an
acceptable plan.
(4) Recognition of the progress many companies have already made in
improving facility security leverages those advancements.--Many
responsible companies have made significant capital investments in
security since 9/11. Building on that progress in implementing the
CFATS program will raise the overall security baseline of high-risk
chemical facilities.
Appendix A to CFATS lists 322 chemicals of interest, including
common industrial chemicals such as chlorine, propane, and anhydrous
ammonia, as well as specialty chemicals, such as arsine and phosphorus
trichloride. The Department included chemicals based on the consequence
associated with one or more of the following three security issues:
(1) Release--toxic, flammable, or explosive chemicals that have the
potential to create significant adverse consequences for human
life or health if intentionally released or detonated;
(2) Theft/Diversion--chemicals that have the potential, if stolen
or diverted, to be used or converted into weapons that could
cause significant adverse consequences for human life or
health; and
(3) Sabotage/Contamination--chemicals that, if mixed with other
readily available materials, have the potential to create
significant adverse consequences for human life or health.
The Department established a Screening Threshold Quantity for each
chemical based on its potential to create significant adverse
consequences for human life or health in light of the security issues
listed above.
implementation status
Implementation and execution of the CFATS regulation requires the
Department to identify which facilities it considers high-risk. The
Department developed the Chemical Security Assessment Tool (CSAT) to
identify potentially high-risk facilities and to provide methodologies
facilities can use to conduct SVAs and to develop SSPs. CSAT is a suite
of on-line applications designed to facilitate compliance with the
program; it includes user registration, the initial consequence-based
screening tool (Top-Screen), an SVA tool, and an SSP template. Through
the Top-Screen process, the Department can initially identify and sort
facilities based on their associated risks.
If a facility is not designated as low-risk during the Top-Screen
process, the Department assigns the facility to one of four preliminary
risk-based tiers, with Tier 1 indicating the highest level of risk.
Those facilities must then complete SVAs and submit them to the
Department. Results from the SVA inform the Department's final
determinations as to whether a facility is high-risk and, if it is
high-risk, of the facility's final tier assignment. To date, the
Department has received over 6,100 SVAs. Each one is carefully reviewed
for its physical, cyber, and chemical security content.
Only facilities that receive a final high-risk determination letter
under CFATS will be required to complete and submit an SSP or an
Alternative Security Program. DHS's final determinations as to which
facilities are high-risk are largely based on each facility's
individual consequentiality and vulnerability as determined by the Top-
Screen and SVA.
After approval of their SVAs, the final high-risk facilities are
required to develop SSPs (or ASPs) that address their identified
vulnerabilities and security issues. The higher the risk-based tier,
the more robust the security measures and the more frequent and
rigorous the inspections will be. The purpose of inspections is to
validate the adequacy of a facility's SSP and to verify that measures
identified in the SSP are being implemented.
In May, the Department issued about 140 final tiering determination
letters to the highest risk (Tier 1) facilities, which confirm their
high-risk status, and begin their time frame (120 days) for submitting
an SSP. Following preliminary authorization of the SSPs, the Department
expects to begin performing inspections in the first quarter of fiscal
year 2010, starting with the designated Tier 1 facilities.
Along with issuing the initial set of final tiering determination
notifications, the Department launched the SSP tool, which was
developed by DHS with input from an industry working group. A critical
element of the Department's efforts to identify and secure the Nation's
high-risk chemical facilities, the SSP enables final high-risk
facilities to document their individual security strategies for meeting
the Risk-Based Performance Standards (RBPS) established under CFATS.
Each final high-risk facility's security strategy will be unique,
depending on its risk level, security issues, characteristics, and
other factors. Therefore, the SSP tool collects information and data on
each of the 18 RBPS for each facility. The RBPS cover the fundamentals
of security, such as restricting the area perimeter, securing site
assets, screening and controlling access, cyber, training, and
response. The SSP tool also recognizes that facilities typically
administer most security measures on a facility-wide basis but that
facilities also customize security for certain assets. That being the
case, facilities can describe facility-wide and/or asset-specific
security measures. Moreover, the Department understands that the
private sector in general and, the CFATS-affected industries in
particular are dynamic. The SSP tool allows facilities to involve its
subject-matter experts from across the facility, company, and
corporation, if appropriate, in completing the SSP and to submit a
combination of existing and planned security measures to satisfy the
RBPS. The Department expects that most approved SSPs will consist of a
combination of existing and planned security measures. It will be
through a review of the SSP, in conjunction with an on-site inspection,
that DHS will determine whether a facility has met the requisite level
of performance given its risk profile and thus whether its SSP should
be approved.
With the launch of the SSP tool, DHS also issued the Risk-Based
Performance Standards Guidance document. The Department developed this
guidance to assist high-risk chemical facilities subject to CFATS in
considering appropriate protective measures and practices to meet the
RBPS. It seeks to help facilities comply with CFATS by describing in
greater detail the 18 RBPS and by providing examples of various
security measures and practices that could be considered by facilities
to achieve the appropriate level of performance for the RBPS at each
tier level. This guidance also reflects public and private sector
dialogue on the RBPS and industrial security, including public comments
on the draft guidance document. High-risk facilities are free to make
use of whatever security programs or processes that they would like,
provided that they achieve the requisite level of performance under the
CFATS RBPS. The guidance will help high-risk facilities gain a sense of
what types and combination of security measures may satisfy the RBPS.
To provide a concrete example: in the case of a Tier 1 facility
with a release hazard security issue, the ``restrict area perimeter''
performance standard at the Tier 1 level may involve the facility
establishing a clearly defined perimeter that cannot be breached by a
wheeled vehicle. To meet the performance standard, the facility is able
to consider a vast number of security measures. Among other options, a
facility could, install cable anchored in concrete block along with
movable bollards at all active gates, or it could ``landscape'' its
perimeter with large boulders, steep berms, streams, or other obstacles
that would thwart a wheeled vehicle. As long as the specific measures
in the SSP are sufficient to address the performance standards, the
Department would approve the plan.
outreach efforts and program implementation
Since the release of CFATS in April 2007, the Department has taken
significant steps to publicize the rule and make sure that our security
partners are aware of CFATS and its requirements. As part of a
dedicated outreach program, the Department has regularly updated the
Sector Coordinating and Government Coordinating councils of sectors
impacted by CFATS, including the Chemical, Oil and Natural Gas, and
Food and Agriculture Sectors. We have also made it a point to solicit
feedback from our public and private sector partners as we interact
with them and, where appropriate, to reflect that feedback in our
implementing activities. We have presented at numerous security and
chemical industry conferences, participated in a variety of other
meetings of relevant security partners, established a Help Desk for
CFATS questions, and developed and regularly updated a highly-regarded
Chemical Security Web site. These efforts are having a positive impact:
approximately 36,500 facilities have submitted Top-Screens to the
Department via CSAT.
Additionally, the Department continues to focus efforts on
fostering solid working relationships with State and local officials
and first responders in jurisdictions with high-risk facilities. To
meet the risk-based performance standards under CFATS, facilities
likely will need to develop effective working relationships--including
a clear understanding of roles and responsibilities--with local
officials who would aid in delaying and responding to potential
attacks. To facilitate these relationships, our inspectors have been
actively working with facilities and officials in their assigned areas,
and have participated in almost 100 Local Emergency Planning Committee
meetings to give a better understanding of CFATS' requirements.
We are also pursuing efforts on several levels to identify
facilities that may meet the threshold for potential CFATS compliance
but have not yet registered with CSAT or filed a Top-Screen. We have
recently completed pilot efforts at the State level with New York and
New Jersey to identify such facilities in those jurisdictions; we will
use those pilots to design an approach that all States can use to
assist in this effort. Further, we are in the process of commencing
targeted outreach efforts to certain segments of industry where we
believe compliance may not be at the level it should be.
We continue to build the Infrastructure Security Compliance
Division that is implementing CFATS. We have hired or are in the
process of on-boarding over 125 people, and we will continue to hire
throughout this fiscal year to meet our goals. Likewise, we continue
our relationship with the Federal Protective Service to detail
personnel with extensive physical security experience. The budget
request for fiscal year 2010 contains an increase to support the
hiring, training, equipping, and housing of additional inspectors to
support the CFATS program as well as to continue to deploy and maintain
compliance tools for covered facilities.
new legislation
We have enjoyed a constructive dialogue with Congress as it works
on new draft authorizing legislation for CFATS. CFATS is enhancing
security by helping to ensure high-risk chemical facilities throughout
the country have security postures commensurate with their level of
risk; thus, we support a permanent authorization of the program. Since
the Department's authority under Section 550 is due to sunset on
October 4, 2009, the administration's fiscal year 2010 budget includes
a request for a 1-year extension of the statutory authority for CFATS.
We look forward to working closely with Congress to extend the program
permanently. We urge that, in authorizing continued implementation of
this important program, Congress provide adequate time and resources to
implement any new requirements under the legislation and ensure that
new requirements would not require the Department to extensively
revisit aspects of the program that are either currently in place or
will be implemented in the near future. Throughout our discussions with
Congressional committees, including the Committee on Homeland Security,
the Department has communicated a series of issues for consideration to
be discussed as part of any legislative proposal involving CFATS.
As DHS has stated before, we believe that there is an important gap
in the framework for regulating the security of chemicals in the United
States, namely drinking water and wastewater treatment facilities. We
need to work with the Congress to close this gap in order to secure
substances of concern at these facilities and protect the communities
they serve. Drinking water and wastewater treatment facilities that
would be considered high-risk due to the presence of substances of
concern should be regulated; however, we do recognize the unique public
health and environmental requirements and responsibilities of such
facilities. For example, we understand that a cease operations order
that might be appropriate for a chemical facility under CFATS could
have significant public health and environmental consequences when
applied to a water facility.
In addition, the Department's current authority under Section 550
does not extend to certain exempt facilities, including those regulated
by the U.S. Coast Guard under MTSA and by the Nuclear Regulatory
Commission. Because CFATS and MTSA both address chemical facility
security, there certainly should be harmonization, where applicable,
between these programs. We are working with the Coast Guard to review
the processes and procedures of both programs in an on-going dialogue.
We also support further clarification in the statute concerning the
type of nuclear facilities exempt from CFATS.
CFATS currently provides facilities with flexibility to assess and
determine what measures to include in their SSPs to meet the RBPS. This
includes adoption of safer technologies, where appropriate. Under
CFATS, facilities are also required to submit a revised Top-Screen when
they make a material modification to their operations. Based on revised
Top-Screens many facilities have already made voluntary changes to,
among other things, their chemical holdings and distribution practices
(for example, completely eliminating use of certain chemicals of
interest). We support such voluntary measures when they reduce risk.
In the area of enforcement, we support eliminating the requirement
that an Order Assessing Civil Penalty may only be issued following the
issuance of an Administrative Order for compliance. This would greatly
streamline the civil enforcement process, thereby enhancing the
Department's ability to obtain compliance from facilities. We also
support language that would authorize the Department to enforce
compliance by initiating a civil penalty action in district court or
commencing a civil action to obtain appropriate relief, including
temporary or permanent injunction.
The Department has significant concerns with the citizen suit
provision being contemplated under some legislative proposals.
The Department is concerned about the potential for disclosure of
sensitive or classified information in such proceedings. Similarly, the
Department urges that it retain discretion in determining the manner
and extent to which information about the reasons for placing a
facility in a given tier is divulged, as those reasons may involve
classified information.
conclusion
The Department is collaborating extensively with the public,
including members of the chemical sector and other interested groups,
to work toward achieving our collective goals under the CFATS
regulatory framework. In many cases, industry has voluntarily done a
tremendous amount to ensure the security and resiliency of its
facilities and systems. As we implement the chemical facility security
regulations, we will continue to work with industry, States, and
localities to get the job done.
We must focus our efforts on implementing a risk- and performance-
based approach to regulation and, in parallel fashion, continue to
pursue the voluntary programs that have already experienced
considerable success. We look forward to collaborating with the
committee to ensure that the chemical security regulatory effort
achieves success in reducing risk in the chemical sector. In addition
to our Federal Government partners, success is dependent upon continued
cooperation with our industry and State and local government partners
as we move toward a more secure future.
Thank you for holding this important hearing. I would be happy to
respond to any questions you may have.
Chairman Thompson. I thank you for your testimony. I remind
each Member that he or she will have 5 minutes to question the
panel.
I now recognize myself for the first question.
Getting right to it, in your statement, you noted that the
Department's request for a 1-year extension of CFATS, you
followed that by saying that you look forward to working with
Congress to extend the program permanently. So it's fair to
characterize a 1-year extension proposal as a backstop to
ensure that CFATS isn't interrupted if Congress is unable to
complete its work before October 2009, when the program is
scheduled to sunset?
Mr. Reitinger. Thank you, sir. I would say that the
proposal for a 1-year extension is so that we would have time
to work on an appropriate reauthorization of the bill.
Obviously, we believe this is a critical program that needs to
continue, and we would like to work with the committee to have
the most effective reauthorization possible.
A 1-year extension would give us the time to move forward
and achieve the best possible authorization bill, and that was
why it was requested in the President's budget. Thank you, sir.
Chairman Thompson. So where are you along the way if this
bill that we are considering now becomes law?
Mr. Reitinger. If the question, sir, relates to, where are
we on implementation of the CFATS regime?
Chairman Thompson. That is correct.
Mr. Reitinger. We are substantially into the implementation
of the regime. As my testimony indicated, we have issued an
interim final rule. The appropriate top screens have been
submitted, and we are now in the process of identifying
facilities on a rolling basis of where they are tiered with a
recent notification to roughly 140 facilities that they are
within the top tier or tier one.
As a result of that, they will be required to issue or to
provide to DHS site security plans within 120 days. We will
continue to do those notifications, review them, approve them,
or engage in discussions with the regulated facilities, and
move forward on implementation throughout all of the tiers and
begin the inspections process, which would be the next step,
during the next fiscal year.
Chairman Thompson. So if the bill passes before the sunset
occurs, what interruption do you see occurring?
Mr. Reitinger. Sir, if the bill were passed before the
reauthorization, I think there would be no interruption in the
actual regime. However, we would like the opportunity to
continue to work with the committee to make sure that the
reauthorization is as effective as possible.
Chairman Thompson. The other issue speaks to this issue
around civil suits. Now, am I to say to you that civil suits
under this legislation is still subject to certain sensitive
material and that, even if a lawsuit was brought, based on
existing law, there are certain items that would not be
available for public review in this civil suit?
Mr. Reitinger. Sir, I would need to spend, I think, more
time to fully understand the nature of the language in H.R.
2868. I would say that, in general on civil suit provisions, I
have a concern that civil litigation involving the CFATS regime
would lead to a higher likelihood of disclosure of sensitive
information covered under the existing CVI regime.
As the committee knows, that information is highly
sensitive and would be of use to people who wanted to do harm
to the Nation or the public. Therefore, I think it is important
to give full consideration to all of the different factors that
are involved.
Also, somewhat concerned with regard to civil suits that--I
am sorry, sir.
Chairman Thompson. Well, without going through it, but are
you aware that there are certain--and maybe you need to study
it a little more--but there are some classifications in the
bill that would prevent access to this information?
Mr. Reitinger. I understand that, sir, and we would be
happy to work with the committee to make sure that those are as
effective as possible. I am generally concerned, though, that
civil litigation leads to, no matter what the protections are,
a higher likelihood of disclosure of information.
So I would want to work effectively with the committee to
make sure that those protections were optimal for ensuring
sensitive information were not released.
Chairman Thompson. But you do--and I am not trying to
debate it, but in America, that is one of the ways that our
citizens have access to things they disagree with is the court
of law. What we have tried to do is craft in this bill access,
but also protect some of the secret or top-secret issues
associated with it.
Mr. Reitinger. I understand, sir. Obviously, there is
always a balance between availability to information possessed
by Government, the First Amendment implications of that, and
protection of sensitive information that could be used to harm
the public.
I understand that. That is a difficult balance to draw, and
we would be happy to work with the committee going forward.
I am not, however, in a position to take a formal position
on the bill that the committee introduced yesterday at this
point in time, and I apologize for that.
Chairman Thompson. Thank you.
I yield to the Ranking Member from New York.
Mr. King. Thank you, Mr. Chairman.
Mr. Chairman, when I assumed my position as Ranking Member
back in January, I did not think I would be sitting here as the
defender of the Obama administration and their policies, but I
do believe, in a bipartisan way, that when we believe the
administration is right, we should stand with them. I believe
they are right, in some respects.
As far as the 1-year extension, Mr. Reitinger, in your
testimony, you said that you wanted to work with Congress to
make the implementation of the regulations and legislation as
effective as possible, and you believed it would take over the
course of the next year to do that.
Now, the legislation has been introduced. I am not trying
to play word games here, but you must not believe that this
legislation is as effective as it could be and is not the most
effective piece of legislation. We are talking about a very
complex area. That is why I believe extending it out for a year
makes a lot more sense, rather than rush to judgment.
What would you envision doing over the next year, assuming
that the bill passes on the floor, the appropriations committee
prevails, and there is a 1-year extension? What do you have in
mind as far as what has to be done during the course of that
year, as opposed to rushing it through within the next few
weeks?
Mr. Reitinger. So, sir, once again, I am not in a position
to take a DHS or administration position on the bill itself.
But, certainly, you know, within whatever time frame is
allowed, we would intend to work effectively with the committee
to make sure that we crystallize a position and provide the
best advice possible we can to the committee so that the bill
addresses the needs that are--that the committee is already
discussing, and includes appropriate resolution of all of the
issues that are included within the bill.
Mr. King. On the issue of civil suits, have you considered
how much time would go into responding to lawsuits, how much
manpower and personnel would have to be expended to do this? My
understanding is that right now senior officials in the
Department have to testify before 108 committees and
subcommittees of Congress, which is an extraordinary waste of
time.
You add to that lawsuits being brought. As you said, there
has to be a balance between security and what is open to the
public. But have you looked into the amount of manpower that
would be required and personnel hours required it were open to
civilian lawsuits?
Mr. Reitinger. No, sir. I can't say that it is, I think,
possible to determine that in advance.
My understanding is that there are some civil suit
provisions that are rarely exercised and take little time and
there are others that are rapidly or often exercised and take
more time.
Certainly, reviewing such civil suit information and if
testimony from the Department was required, it would take some
time from the Department. We would want to work, if a civil
suit provision were included, with the committee to make sure
that there was as little risk of disclosure of information as
possible and that the diversion from other substantive work
that the Department is undertaking was as limited as possible.
Certainly, it is true that any civil suit provision at
least raises the specter of some diversion of resources.
Mr. King. Now, as I understand it, this will be the first
time that the Department would be open to civil lawsuits. Is
that true?
Mr. Reitinger. I do not know of any other provisions where
the Department is open, but I can't say, sir, that I have
talked with our office of general counsel and had them conduct
an exhaustive survey yet.
Mr. King. Could you expand at all upon your concern with
the danger of vital information being disclosed as a result of
these lawsuits, whether it is in discovery or in part of the
proceeding?
Mr. Reitinger. Well, sir, I perhaps have some degree of
innate caution about this. Having spent a large chunk of my
career as a litigator, first on the civil side and then on the
criminal side, and understanding what the scope of discovery
and information disclosure is, I think that inevitably there is
some risk of disclosure of information. This information is
very sensitive and is, indeed, pursuant to the authorizing
legislation, treated as classified for some particular
purposes.
That said, as the Chairman indicated before, there are
First Amendment concerns; the public needs access to
information. Those need to be carefully balanced. I would want
to have the Department continue to work effectively with the
committee as it has been to make sure that balance is drawn in
the appropriate place.
Mr. King. If I could just make one more statement for the
record as to why this should not be rushed and why we should
wait out the year.
My understanding is that two of the senior positions at
DHS, the assistant secretary for infrastructure protection and
the under secretary for national protection and programs
directorate, have not been filled and they have a vital role to
play in implementation of the regulations and carrying forth of
the legislation. Is that true?
Mr. Reitinger. Neither of those positions has been filled
yet, sir.
Mr. King. They would play a vital role in this legislation
being implemented?
Mr. Reitinger. Yes, sir.
Mr. King. I yield back.
Chairman Thompson. The Chair now recognizes other Members
for questions they may wish to ask the witnesses.
In accordance with our committee rules, I will recognize
Members who are present at the start of the hearing based on
seniority on the committee, alternating between majority and
minority. Those Members coming in later will be recognized in
the order of their arrival.
The Chair now recognizes for 5 minutes the gentleman from
Pennsylvania, Mr. Carney.
Mr. Carney. Thank you, Mr. Chairman.
I would like to thank you, Mr. Reitinger and Ms. Armstrong,
for joining us today.
Ms. Armstrong, I actually have a question for you to start
off. Now, as I understand it, present regulations and tiering
structures, about 10 percent of underground natural gas
reservoirs are subject to additional CFATS security
requirements. Is that correct?
Ms. Armstrong. There are underground natural gas storage
facilities that are subject to CFATS, primarily based on the
amount of methane stored there.
Mr. Carney. Okay. TSA and PHMSA also recommend and monitor
security practices at these facilities, as well?
Ms. Armstrong. If there is a pipeline nexus, yes.
Mr. Carney. Okay, just a pipeline nexus. Okay, all right.
Are there any conflicts between CFATS and TSA and PHMSA on
how they monitor and regulate, if you are storing the gas,
and--monitoring the system, is there----
Ms. Armstrong. No, we actually have worked fairly closely
with TSA, their rule--on their freight rail rule. We coordinate
with them on a routine basis as we identify facilities that are
subject to CFATS or are in some cases with other agencies
exempt.
Mr. Carney. Okay. Now, when CFATS was first written, first
developed, do you think it was intended to regulate, include
underground natural gas storage?
Ms. Armstrong. CFATS was designed to regulate the security
of chemicals of interest, as published in our appendix A, which
is 322 chemicals that--at or above screening threshold
quantity, holding those chemicals triggers compliance with
CFATS.
Mr. Carney. Does that include natural gas and if CFATS has
a role to play in this?
Ms. Armstrong. It includes fuel mixtures that have a
chemical of interest in them, such as pentane, butane, or
methane.
Mr. Carney. Understood. Cleared that up.
In your mind, are the regulations sufficient? Are they too
much? Or are they--do they conflict with TSA or PHMSA?
Ms. Armstrong. Sir, I don't see any conflicts with TSA and
CFATS.
Mr. Carney. Okay. No further questions at this time.
Chairman Thompson. Thank you.
We now recognize the gentleman from California, Mr.
Lungren, for 5 minutes.
Mr. Lungren. Thank you very much, Mr. Chairman.
First, Ms. Armstrong, I want to thank you and the others in
the Department who have worked hard to make CFATS work. We
tried to get CFATS as freestanding legislation. We did not get
that, but we did have it in appropriation language, which
allowed us to go forward with H.R. 2868. I think the spirit of
cooperation in the industry and the work done at DHS has been
very helpful to the security of this country.
There is one fact I would like to establish. As I
understand, our staff has broken down the various steps in the
CFATS regulatory process. They have broken it down into eight
steps.
According to their analysis, we are at about step five
currently. In other words, we are in the middle of the process
making sure it is a completed, matured process. Would that be
correct, as far as you are concerned?
Ms. Armstrong. On May 15, we took another step in the
program to move from reviewing security vulnerability
assessments submitted by CFATS facilities to completing review
of the initial group of preliminary tier-one SVAs and issued
approximately 140 facilities of final tiering notification,
which included the deadline for their submission of their site
security plan, which for that group is September 15.
Mr. Lungren. But for the completed CFATS regulatory
process, the last step would be for DHS to conduct inspections,
both targeted and random, to ensure the facility's compliance
with its SVA. We are not there yet, correct?
Ms. Armstrong. Correct. We have not done any inspections.
Our inspectors have done a number over the past couple of
months of compliance assistance visits to make sure we
understand the content of a facility's security----
Mr. Lungren. More directly, my question is this: We have
not completed the process of the entire regulated community at
this point so that we would be at full maturity, correct?
Ms. Armstrong. Correct. We have not verified content of
site security plans.
Mr. Lungren. I have concerns about us passing legislation
when we haven't even finished the process of CFATS, which you
and the industry have been working on in order to evaluate how
we are doing at that point in time.
Excuse me. Is it ``Reitinger'' or ``Reitinger''? Or
something else?
Mr. Reitinger. Sir, I will answer to just about anything.
Mr. Lungren. I know that. But I like to get it--I remember,
``I before E except after C or pronounced as A as in neighbor
and weigh.'' But that is only how you spell it. How do you
pronounce it?
Mr. Reitinger. I think my name is roughly unpronounceable,
but I generally say ``Reitinger.''
Mr. Lungren. Reitinger, okay. Mr. Reitinger, with respect
to the issue of civil lawsuits, if I were to tell you there
were potentially 304 million civil lawsuits, would that disturb
you?
Mr. Reitinger. Yes, sir.
Mr. Lungren. Well, the language which Section 2116 has
introduced says, ``any person may commence a civil action on
the person's own behalf against any person, including the
United States or other governmental instrumentality or agency
who is alleged to be in violation of any standard, regulation,
condition, requirement, prohibition, or order which has become
effective pursuant to this title.''
Now, you are a former civil litigator. I am a former civil
litigator. Normally, you have, not an expanded universe, but
rather a contracted universe of potential litigants, however
this language says any person. Don't you think that is a little
bit of an overreach?
Mr. Reitinger. Sir, I regret, again, I am not in a position
to take a position.
Mr. Lungren. Okay. Well, I will say that I think it is an
overreach. Anybody involved in the civil litigation arena knows
that if you have a potential universe of litigants who have no
skin in the game, then there doesn't need to be any single
allegation that they have suffered a loss as a result of this.
There is no indication that they have been injured.
So what you would have, for the first time since the
creation of DHS, is a requirement that the Department be liable
to uninjured third parties in civil lawsuits. So I know you
want to very careful about what you say.
You have said the administration has concerns about civil
lawsuits. I would suggest it is more than just a concern with
civil lawsuits. Rather, it is a concern with civil lawsuits
that are open to anybody in the United States, yet it is not
even limited to just the United States. I will limit my
question to any person in the United States, but it doesn't
even have to be that limited solely to millions of potential
lawsuits.
One of my concerns is that we have had the industry work in
collaboration with the Department with a certain level of
trust. Would that trust in some ways be undermined by the
possibility of lawsuits down the line, undetermined at this
point in terms of its nature and its number?
Although you would say we will try to make sure we keep
this information secure, do we recall not many years ago that
we required, as a matter of law, all nuclear facilities to have
their blueprint available to the public on the Internet? If
that is not a problem in terms of terrorism, I think this would
be.
So I thank you for your testimony.
Mr. Reitinger. Thank you, sir.
Chairman Thompson. Thank you.
Since the gentleman from California raised the lawsuit
possibility, I want to read you what is in the act itself under
hearing today. It says, ``The bill requires a 60-day notice
before a suit can commence. If the secretary takes action to
fix a problem or require compliance in that time, the suit is
terminated. In addition, the court is only allowed to issue
orders directing specific action on the part of the agency or
facility in civil fines that are returned to the Treasury.
Thus, there is no incentive for frivolous lawsuits.''
In other words, if you want to sue under this lawsuit, you
have to notify the Government within 60 days, and then the
Government has 60 days to fix the violation that you are
alleging. If so, the suit goes away.
Mr. Lungren. Would the gentleman yield on that?
Chairman Thompson. I yield to the gentleman from
California.
Mr. Lungren. By the terms of what the gentleman has just
said, it requires action on behalf of the Department presumably
to investigate the allegations contained in the lawsuit before
they can make a judgment as to whether or not it is worthy of
remedy and then they can remedy it.
I thank the Chairman.
Chairman Thompson. Well, thank you. Sixty days, we think,
is good enough to see whether something is broken. Obviously,
whatever needs fixing, we can fix by filing it with the court
indicating so.
We will now recognize the gentleman from Kansas City, Mr.
Cleaver, for 5 minutes.
Mr. Cleaver. Thank you, Mr. Chairman.
Mr. Reitinger, in July, you notified 7,000 facilities of
their initial high-risk assessment. Of the 7,000, 141 of them
have been assigned tier-one status. My concern is that the
time-line with regard to the rest of the tier assignment, as
well as the requirements to complete and submit site security
plans.
Mr. Reitinger. Yes, sir. So I will give a quick answer and
then ask Ms. Armstrong to supplement where we are in the
process, because she is--her level of detail knowledge far
exceeds mine.
As you said, we have done the first notifications to some
of the highest-risk facilities. We will be, over the next few
months, notifying the remainder of those who have been tiered.
They will all have 120 days after notification to submit site
security plans.
Let me ask Ms. Armstrong if she can supplement that.
Ms. Armstrong. Certainly. Sir, you are correct. Last year
right about this time, on June 23, we notified 7,010 facilities
of their preliminary tiering determination and their
requirement to do an SVA, security vulnerability assessment. We
have moved in the last couple of weeks, last month or so, into
making final tiering notifications based on SVA review.
One thing to remember about the CFATS numbers is that they
are constantly changing, because new facilities are filing a
top screen and starting their clock, if you will, if they
screen in.
Facilities are also resubmitting top screen, notifying the
Department that they have made, for example, a material
modification at the site and their COI holdings are now
different, and they are putting us on notice of that, as
required in the rule. So that is why you see some of the
changes in the numbers.
The time frame we are on right now is to, by the end of
this month, notify a group of tier-two facilities of their
final tiering determination and site security plan requirement
and then move into perhaps, as time goes on, monthly
notifications of threes and fours as their SVAs are reviewed.
Mr. Cleaver. Now, what is the on-going process? I mean,
after you have--site security plan has been authorized, does
DHS then require another assessment every year, every 6 months?
I mean, what are we going to do in the on-going plan to make
sure that we have, in fact, done the--made the proper step--
taken the proper steps with regard to security?
Ms. Armstrong. Well, the rule itself speaks to the time
frame that facilities are on, but to--suffice it to say that,
once we accept a site security plan, we will inspect the
facility. We will be inspecting tier-one facilities under the
current construct every year and tier-two every 2 years.
Mr. Cleaver. Okay.
Ms. Armstrong. Then handle the threes and fours
accordingly.
Mr. Cleaver. Okay, yes, that was my concern, whether it
was--whether we were going to do a one-time visit and that is
it or rotating or reoccurring visits. You are saying----
Ms. Armstrong. Correct. There will be----
Mr. Cleaver [continuing]. Once a year?
Ms. Armstrong [continuing]. Inspection cycle for each
facility, depending on its tier.
Mr. Cleaver. All right.
Thank you, Mr. Chairman.
Chairman Thompson. Thank you.
We now recognize the gentleman from Texas, Mr. McCaul, for
5 minutes.
Mr. McCaul. Thank you, Mr. Chairman.
Let me thank the panel and thank you, Mr. Reitinger, for
your service, not only in the Justice Department, where I
worked, as well, but also on the CSI cybersecurity commission,
making recommendations to the President regarding
cybersecurity, many of which were adopted. It was great work,
and I am glad to see you in the Department serving this country
well.
I just have a couple of questions. I don't want to sound
redundant, but I am curious. When did you get a copy of this
draft legislation, Mr. Reitinger?
Mr. Reitinger. Sir, first, let me briefly thank you and
thank you for your leadership of the CSIC commission. It was a
pleasure to serve under your Chairmanship there.
Mr. McCaul. Thanks.
Mr. Reitinger. In terms of the legislation, I personally
reviewed a draft copy last week. I believe the formal copy was
just introduced yesterday, so I have begun to review that now,
but have not completed it yet.
Mr. McCaul. Okay. In your testimony last week, you
testified that the President and the Department requested a 1-
year reauthorization or extension, as the Ranking Member has
pointed out, to have more time to work effectively with the
Congress for a permanent reauthorization. To me, that seems to
make eminent sense. It seems like a reasonable request on the
part of the administration.
Can you perhaps explain to this committee why it is
important for the Department--and the President clearly also
believes it is necessary--to have this 1-year extension?
Mr. Reitinger. Yes, sir. At least it seems to me, based on
the questions around the table, that there is near consensus
that the CFATS regime is--has been an essential step forward
towards protecting chemical site security. Obviously, we did
not want the regime to lapse while further discussions were
taking place about a reauthorization of the program, and so the
President requested a 1-year extension to give time for the
discussions around what that authorization might look like.
Mr. McCaul. I would submit to the Chairman that it is
certainly the position on our side, that a 1-year extension
makes eminent sense to get the bill right. However, that is
just our view.
The litigation issues concern me, as well. An uninjured
plaintiff can bring a third-party lawsuit. This could include
almost anybody, which could tie down the Department with
extensive litigation. You and I, having worked in the Justice
Department, know the burden of that type of litigation.
Is this the first time the Department will be open to these
types of lawsuits?
Mr. Reitinger. Yes, sir. I cannot specifically say it would
be the first time. I am not aware of other provisions like
this. But I have not done either the exhaustive research
myself, nor do I have access to the appropriate legal schools
to do that anymore, nor have I asked our Office of General
Counsel to engage in that inquiry yet, but----
Mr. McCaul. Based upon my experience, I can tell you, it
will increase their workload and their burden. I think it will
perhaps jeopardize some of the protected information, as the
gentleman from California discussed.
We have critical infrastructures that want to work with the
Government cooperatively. If this litigation risk calculation
arises where this type of protected information could
potentially be disclosed in a public lawsuit, I think, it will
hurt our relationship with the private sector, in terms of our
goals with security being the ultimate issue.
Finally, with respect to implementing inherently safer
technologies, you stated in your testimony that the CFATS
regulations did not prohibit companies from implementation
today, is that correct?
Mr. Reitinger. Yes, sir.
Mr. McCaul. Okay. Now, this would actually mandate that
implementation. Do you think the Department is in a position to
be able to make those kinds of evaluations? Or is the private
sector and the market a better place to make those decisions?
Mr. Reitinger. Sir, what I would say is, as you point out,
the existing regime allows for regulated entities to use
inherently safer technologies to tier down or perhaps tier out
or as a part of their protected plans, but it is not mandatory.
Were we responsible for judging whether ISTs--whether they
should be imposed and what those particular ISTs should look
like, we would--although we are developing expertise in our
chemical inspector corps, we would need to go farther and
certainly bring in some additional experts to be able to
effectively fulfill that mission.
Mr. McCaul. I see my time is expired. Thank you.
Chairman Thompson. Thank you very much.
Ms. Armstrong, for the record, since you have primary
responsibility for CFATS and some other responsibilities
directly related to where we are, are you familiar with this
legislation? Have you been provided a draft routinely by
committee staff?
Ms. Armstrong. Yes, sir.
Chairman Thompson. Over what period of time?
Ms. Armstrong. I believe we saw an April draft and an early
June draft, in addition to the bill that was released last
night.
Chairman Thompson. So basically you have had knowledge of
everything going on so far?
Ms. Armstrong. Yes, sir.
Chairman Thompson. Thank you.
The other point I want to make is that every other piece of
legislation related to this--Clean Water Act, Safe Drinking
Water Act, Toxic Substance Control Act, Water Pollution Control
Act, Atomic Energy Act--all of them have references to civil
suits. Clearly, because we are a Nation of laws, our citizens
have to have an opportunity to have their day in court, whether
they are right or wrong.
What we have done with this 60-day provision is to screen
out what we think frivolous lawsuits would work an undue burden
on the agency by saying the secretary can take that complaint
within 60 days, file whatever response with the court, and go
away. That is the intent of the legislation.
We now recognize Ms. Clarke, from New York, for 5 minutes.
Ms. Clarke. Thank you, Mr. Chairman. I, too, find this
whole topic of civil litigation somewhat intriguing and just
wanted to get a sense from both of you--and good morning. It is
good to see you again, Under Secretary Reitinger and Assistant
Secretary Ms. Armstrong.
There has been discussion today about civil suits and how
they will impact the functioning of the Department. Is DHS
subject to suit under environmental statutes?
Mr. Reitinger. I am going to defer that question to Ms.
Armstrong.
Ms. Armstrong. Just for the record, I am the director of
the Infrastructure Security Compliance Division, though thank
you for the promotion.
Ms. Clarke. Okay, we have to fix the materials here. Go on.
Ms. Armstrong. In terms of subject to environmental
litigation, I would say, at a very high level, the Department
is subject to NEPA-type requirements when we impact the
environment, but I don't know of any provisions that we are
expressly subject to under how we implement CFATS at this point
in time.
Ms. Clarke. Okay. So, I mean, are we splitting hairs here?
Or would you say that the Department is subject, particularly
in the area of environment?
Mr. Reitinger. Let me see if I can supplement what I have
said, Ms. Clarke. I worry about several things with civil suits
that amount to concerns about a provision that would subject
the Department to civil suits in these circumstances. One is
disclosure of confidential information. Another is diversion of
resources.
As I said before, while I--there are clear reasons why one
might want to empower private citizens to bring these sorts of
actions, and there are also concerns about public access to
information, those have to be carefully balanced about with
respect to both maintaining the confidentiality of highly
sensitive information and enabling the Department to
effectively implement the regime, you know, from the--you know,
less importantly at the politically level, but much more
importantly down through the subject matter experts.
So I would want to be very sure that any legislation drew
the right balance to enable the strongest possible protections
for chemical facilities and, therefore, strongest possible
protections for the public.
Ms. Clarke. So are you saying that you are not in favor of
citizens being able to bring suit if it is warranted? I mean, I
understand your position with respect to privacy of the
information that may be contained regarding chemical
facilities, but your emphasis seems to be very heavily on that.
You know, you say you are trying to strike a balance, but it
just doesn't come across that way.
Mr. Reitinger. So I would say that, I am not in a position
to take a formal position on the bill that was introduced
yesterday. But I and the Department have significant concerns
about civil suits in the context of CFATS.
Ms. Clarke. Are you aware that the Nuclear Regulatory
Commission is subject to citizen suits, as well, and, in any
given year, it is sued 10 to 15 times within that year? This
is--you know, in mind, is there any real reason to expect that
there will be like a flurry of litigation with regard to
citizen suits being included in this bill?
Mr. Reitinger. Ms. Armstrong may have additional
information.
The one other thing I would point out, ma'am, is that there
are obviously a very large number of high-risk chemical
facilities around the country around----
Ms. Clarke. Some very close to New York City.
Mr. Reitinger. Understood, ma'am. So I think that bears a
potential risk for a high amount of litigation. But I am not in
a position now to do a comparative analysis with the Nuclear
Regulatory Commission provisions.
Ms. Clarke. Well, we will just hope you will bear that in
mind as you go through your review of the provision within this
bill.
Having said that, Mr. Chairman, I yield back the balance of
my time.
Chairman Thompson. Thank you very much.
The gentleman from Pennsylvania, Mr. Dent, is recognized
for 5 minutes.
Mr. Dent. Thank you, Mr. Chairman.
I want to say first that I have letters here from over 40
organizations opposing H.R. 2868, the Chemical Facility
Antiterrorism Act of 2009. These organizations include the Farm
Bureau, Trucking Association, Chamber of Commerce, and many
others. I would like to submit these for the record.
Chairman Thompson. Without objection.
[The information follows:]
Letters Submitted for the Record by Honorable Charles W. Dent
June 11, 2009.
Dear Member of Congress: We represent American businesses and local
city services that provide millions of jobs and our national
infrastructure. Protecting our communities and complying with Federal
security standards is a top priority for us.
We ask that you cosponsor H.R. 2477, ``The Chemical Facility
Security Authorization Act'', to reauthorize the DHS chemical facility
security standards enacted by Congress in 2006. Extending the sunset
date for the chemical security regulations would provide the certainty
needed to both protect our citizens and enable our economic recovery.
However, we strongly urge you to oppose disrupting this security
program by adding provisions that would mandate Government-favored
substitutions, weaken protection of sensitive information, impose
stifling penalties for administrative errors, create conflicts with
other security standards or move away from a performance (or risk-
based) approach.
For example, last year's ``Chemical Facility Anti-Terrorism Act''
could have caused disruptions of new Federal security standards and
reduced jobs in the short term, and in the long term weakened
infrastructure protection and economic stability.
Our top concern is that legislation could go beyond security
protections by creating a mandate to substitute products and processes
with a Government-selected technology. Congressional testimony found
that this could actually increase risk to the businesses that the bill
intends to protect. Such a standard is not measurable and would likely
lead to confusion, loss of viable products, prohibitive legal
liability, and business failures.
We ask that you ensure that any security legislation avoid overlap
and conflict with existing Federal security requirements, such as the
U.S. Coast Guard's ``Maritime Transportation Security Act.'' Any
proposal must also protect from release any sensitive security
information on site vulnerability.
Companies in thousands of communities are complying with the
landmark new DHS chemical security standards while continuing to
provide essential products and services for our daily lives. We believe
that counter-productive adjustments to the current law would undermine
security and endanger businesses in communities all around the country.
Thank you for your consideration of our views.
Agricultural Retailers Association; American Exploration & Production
Council; American Farm Bureau Federation; American Forest & Paper
Association; American Petroleum Institute; American Trucking
Association; Chemical Producers and Distributors Assn; Consumer
Specialty Products Association; Croplife America; Edison Electric
Institute; Environmental Technology Council; Institute of Makers of
Explosives; International Assn of Drilling Contractors; International
Assn of Refrigerated Warehouses; International Dairy Foods Association;
International Liquid Terminals Association; International Warehouse
Logistics Association; Midwest Food Processors Association; National
Agricultural Aviation Association; National Association of Chemical
Distributors; National Association of Manufacturers; National Mining
Association; National Oilseed Processors Association; National Paint
and Coatings Association; National Pest Management Association;
National Petrochemical & Refiners Assn; National Propane Gas
Association; North American Millers' Association; Petroleum Equipment
Suppliers Association; Petroleum Marketers Association of America;
Synthetic Organic Chemical Manufacturers Assn; The Fertilizer
Institute; USA Rice Federation; U.S. Chamber of Commerce.
______
June 12, 2009.
The Honorable Bennie Thompson,
Chairman, Committee on Homeland Security, 176 Ford House Office
Building, Washington, DC 20515.
The Honorable Peter King,
Ranking Member, Committee an Homeland Security, 117 Ford House Office
Building, Washington, DC 20515.
Dear Chairman Thompson and Ranking Member King: As the Committee on
Homeland Security moves toward consideration of legislation to ensure
the security of our Nation's chemical facilities, the undersigned agri-
business community organizations would like to highlight several
concerns that we believe must be addressed in any legislation
ultimately approved by the committee. We look forward to working with
you to provide solutions to our issues of concern as legislation moves
through the legislative process.
We believe homeland security and the protection of America's food
supply is a top priority. The Nation's agricultural industry continues
to take pro-active steps to properly secure crops and livestock as well
as critical crop input materials such as fertilizer and pesticides
throughout the distribution chain. Our organizations and members are
working closely with the Department of Homeland Security (DHS) to
implement and ensure compliance with the Chemical Facility Anti-
Terrorism Standards (CFATS) regulations. We encourage you to maintain
the existing regulations and allow DHS to complete the first phase of
their implementation.
We also want to raise with you our concerns with certain provisions
in the ``Chemical Facility Anti-Terrorism Security Act of 2009,'' which
we believe would disrupt the current partnership that exists between
DHS and the private sector and detrimentally impact American
agriculture. Our key areas of concern include:
Inherently Safer Technology (IST).--While some may believe that IST
is a valid goal at a manufacturing site for OSHA Process Safety
Management (PSM) reasons, the requirement to assess the use of product
substitution at all regulated chemical facilities, including
manufacturers, wholesale distributors and retailers, as proposed in
draft legislation, could have a devastating impact on American
agriculture. If an IST mandate is put in place for the Nation's
agricultural industry, such a mandate could jeopardize the availability
of lower-cost sources of plant nutrient products or certain
agricultural pesticides used by farmers and ranchers, as well as
products which are used for specific agronomic reasons.
It is disconcerting that this legislation actively discourages the
use of products which are vital to American agriculture in all levels
of the supply chain. In the report accompanying H.R. 5577, the
``Chemical Facility Anti-Terrorism Act of 2007,'' the committee
recognized the unique issues associated with IST and the agricultural
sector. The committee explicitly stated in its report, ``It is not the
intention of the committee to promote or discourage the use of any
particular chemical in agriculture though the provisions in this
section.'' We therefore request that you alter the legislation to
reflect the committee's intent with regards to the impact of IST on
American agriculture and remove any language, for agricultural
facilities, which implicitly or explicitly discourages the use of
products.
Inclusion of MTSA Regulated Facilities.--The Maritime
Transportation Security Act (MTSA) of 2002 is designed to protect our
Nation's ports and chemical facilities located therein. MTSA facilities
are required to conduct the same vulnerability assessments and develop
security plans just as facilities regulated under CFATS. Due to the
strong regulations currently in place, these facilities, which are
regulated by the U.S. Coast Guard, were exempted by statute from the
CFATS legislation. To continue to maintain this successful program and
avoid duplicative regulation, it is necessary to maintain the MTSA
exemption. We encourage you to alter the draft legislation to
acknowledge and maintain the Coast Guard's important role and long-term
commitment to the protection of chemical facilities currently located
along our Nation's navigable waterways.
Third-Party Lawsuits.--The Ag Security Working Group is alarmed
that the ``Chemical Facility Anti-Terrorism Act of 2009'' includes
provisions allowing for private rights of action against regulated
parties and against DHS to enforce compliance with applicable
requirements. Such private rights of action provisions have fostered
enormous amounts of litigation in other contexts and have no place in
the legislation under consideration. First, we believe that these
provisions increase the likelihood of disclosure to the public of
sensitive security information. We also believe that these provisions
provide a disincentive for chemical facility employees to take
responsibility for implementing the legislation's provisions due to the
personal liabilities associated with being named in a citizen's suit.
In addition, we believe that citizen suits jeopardize cooperation
between DHS and the regulated entity, specifically in an instance when
cooperation is crucial for the protection of our Nation's critical
infrastructure.
Information Protection.--A facility's information should be
protected to the highest degree. Information should be treated as
classified material in a court setting and should not be released to
the general public. Section 2110 of the draft bill weakens certain
information protection provisions and potentially exposes sensitive
vulnerability information to the public domain. As the Federal
Government has recently learned with the release of sensitive nuclear
information, once information is released to the public, it can not be
retrieved. Security vulnerability assessments and site security plans
can provide those very terrorists that this legislation intends to
protect us against with a roadmap to attack our Nation's critical
infrastructure, an circumstance that this legislation seeks to
mitigate. We believe it is necessary to treat this information as
Critical-Terrorism Vulnerability Information (CVI) as currently defined
by DHS.
Federal Preemption.--The agribusiness community is particularly
concerned that Congress intends to encourage the creation of a
patchwork of conflicting rules that stretch across Federal, State, and
local lines. The DHS CFATS regulations should pre-empt inconsistent
State and local chemical security laws and rules by preempting State or
local requirements only if (1) there is an actual conflict between the
two, or (2) the State or local program ``frustrates the purpose'' of
the Federal program. Neither of these problems appears to be occurring
with the way existing State programs are being implemented; thus,
Congress should not need to act to ``save'' any current programs.
We support efforts in Congress to permanently authorize the
existing DHS CFATS regulations. However, any legislation considered by
the Committee on Homeland Security, or on the House floor, needs to
take into account the regulatory and economic impact on American
agriculture and the consumer for whom we provide essential food, fiber,
and bioenergy.
We look forward to working with you both in a cooperative manner as
the committee moves this measure forward. Thank you for your
consideration of our concerns and unique perspectives shared in
American agriculture.
Sincerely,
American Farm Bureau Federation; Agricultural Retailers Association;
CropLife America; Chemical Producers and Distributors Association;
National Agricultural Aviation Association; National Cattlemen's Beef
Association; National Corn Growers Association; National Council of
Farmer Cooperatives; The Fertilizer Institute.
______
June 15, 2009.
The Honorable Bennie G. Thompson,
Chairman, Committee on Homeland Security, U.S. House of
Representatives, Washington, DC 20515.
RE: Reauthorization of Chemical Facility Anti-Terrorism Standards
(CFATS)
Dear Chairman Thompson: On behalf of the member companies of the
Chemical Industry Council of California (CICC) \1\ and the California
Manufacturers & Technology Association (CMTA),\2\ we write to urge the
Committee on Homeland Security to reauthorize the Department of
Homeland Security (DHS) Chemical Facility Anti-Terrorism Standards
(CFATS) enacted by Congress in 2006. The security of our California
chemical and chemical user facilities ranks among our highest
priorities and as such we have proactively collaborated with the
Governor's Emergency Management Agency (Cal/EMA), the State's Regional
Terrorist Threat Assessment Centers (RTTAC's), the DHS Regional
Offices, and the FBI InfraGard chapters throughout the State. Our
organizations believe extending the chemical security regulations will
provide the certainty needed to protect workers and the general public,
critical infrastructure and jobs, and the environment from violent and
reckless acts of terrorism.
---------------------------------------------------------------------------
\1\ The Chemical Industry Council of California (CICC) is a
voluntary State-wide trade association comprised of large and small
chemical manufacturers and distributors throughout California. CICC
represents multiple facilities including: forty-three (43)
manufacturing plants; five (5) research laboratories; and sixty-seven
(67) sales, service, and distribution centers. Our California members
account for annual sales in excess of $3,000,000,000 and directly
employ more than 5,700 workers, with combined annual payroll in excess
of $283,000,000. An additional 11,000 indirect jobs are created by CICC
member companies with an additional combined annual payroll of some
$360,000,000.
\2\ The California Manufacturers & Technology Association (formerly
the California Manufacturers Association) works to improve and enhance
a strong business climate for California's 30,000 manufacturing,
processing, and technology-based companies. Since 1918, CMTA has worked
with State government to develop balanced laws, effective regulations,
and sound public policies to stimulate economic growth and create new
jobs while safeguarding the State's environmental resources. CMTA
represents businesses from the tire manufacturing community--an
economic sector that generates more than $250 billion every year and
employs more than 1.5 million Californians.
---------------------------------------------------------------------------
However, we are compelled to express strong opposition to proposals
which threaten to compromise the anti-terrorism security and law
enforcement aspects of the program. Among these are new provisions
which would add mandates for chemical substitutions, weaken protection
of sensitive information, impose stifling penalties for administrative
errors, create conflicts with other security standards or move away
from a performance (or risk-based) approach.
California recently enacted comprehensive science-based ``Green
Chemistry'' environmental legislation to identify and prioritize
``chemicals of concern'' and to enable a search for safer alternatives
employing multi-media life cycle analysis to avoid the unintended
negative consequences of improper substitutions. In contrast, we
believe the concepts in the CFATS reauthorization proposal regarding
Inherently Safer Technologies (IST) should more appropriately be
debated in the context of environmental legislation rather than anti-
terrorist legislation.
Further, California passed legislation in 2005 to protect sensitive
critical infrastructure vulnerability assessments from disclosure under
its Public Records Act. Weakening Federal protections for critical
infrastructure information is moving in the wrong direction, and CICC
and CMTA urge you to reject such provisions.
Chemical manufacturers, distributors, and downstream users of
chemicals throughout California are complying with landmark CFATS
legislation while continuing to provide essential products and services
for daily life. CICC and CMTA strongly believe the aforementioned
provisions (i.e., imposing IST, and softening security protections for
critical infrastructure information, et al) if implemented will prove
to be counter-productive; and will undermine security, endanger
communities, and place critical infrastructure at greater risk--not
only in California but all around the country. We urge the committee to
reject such measures. Thank you for your consideration.
Sincerely,
John R. Ulrich,
Executive Director, CICC.
Mike Rogge,
Director, Environmental Policy, CMTA.
______
June 4, 2009.
The Honorable Joe L. Barton,
2109 Rayburn HOB, Washington, DC 20515.
Dear Congressman Barton: The Texas Chemical Council (TCC) urges you
to support legislation to reauthorize the Department of Homeland
Security (DHS) chemical facility security standards which were enacted
by Congress in 2006.
TCC is a State-wide trade association representing 77 chemical
manufacturers operating more than 200 manufacturing facilities in
Texas. Our industry has invested more than $50 billion in physical
assets in the State and pays over $1 billion annually in State and
local taxes. TCC's members provide approximately 70,000 direct jobs and
over 500,000 indirect jobs to Texans across the State.
TCC supports Congress enacting into statute the regulatory
framework known as the ``Chemical Facility Anti-Terrorism Standards''
that the DHS carefully established and is now enforcing. Removing the
sunset date and making the chemical security regulations permanent
would provide the certainty needed to both protect our citizens and
support our Nation's economic recovery.
TCC is strongly opposed to legislation that would disrupt this
security program by adding provisions that would mandate Government-
favored substitutions, weaken protection of sensitive information,
impose onerous penalties for administrative errors, create conflicts
with other security standards or move away from a risk-based approach.
We ask that you oppose legislation that would go beyond security
protections and create a mandate to substitute products and processes
with a Government-selected technology. TCC also requests that you
ensure that any security legislation avoid overlap and conflict with
existing Federal security requirements, such as the U.S. Coast Guard's
``Maritime Transportation Security Act.''
Our members' highest priority is protecting their employees and the
communities where they live and work. We feel this is being
accomplished through compliance with the landmark new DHS chemical
security standards. We ask that you oppose counter-productive changes
to the current law that would undermine security and endanger
businesses and communities. We appreciate your consideration of our
concerns. If you have any questions or would like additional
information, please do not hesitate to contact me.
Sincerely,
Hector L. Rivero,
President and CEO.
______
June 11, 2009.
The Honorable Nancy Pelosi,
Speaker of the House, House of Representatives, Washington, DC 20515.
Dear Speaker Pelosi: The undersigned organizations representing
wastewater and drinking water utilities throughout the Nation, write to
express our concerns with jurisdictional conflicts arising over
reauthorization of the Chemical Facilities Anti-Terrorism Act (CFAT)
with respect to drinking water and wastewater utilities. If these
conflicts are not resolved, we believe that security at drinking water
and wastewater facilities will potentially be placed at greater risk.
Over the last several months, we have communicated with the House
Homeland Security Committee, Energy and Commerce Committee, and
Transportation and Infrastructure Committee setting forth our concerns
over the prospect of multiple Federal agencies regulating chemical
security at drinking water and wastewater treatment plants. We have
urged the committees to draft legislation that places both drinking
water and wastewater facilities under one security program at a single
Federal agency. We believe this approach is the only way to ensure the
highest level of security at these facilities while avoiding
duplicative and overly burdensome regulatory regimes that will lead to
increased costs to taxpayers with no appreciable public benefit.
However, we understand that the House Committee on Homeland
Security intends to assert jurisdiction over chemical security at
wastewater treatment utilities when it marks up a CFATS reauthorization
bill on June 18 for the program administered by the Department of
Homeland Security (DHS). On May 20, the House Committee on Energy and
Commerce released draft legislation entitled the Drinking Water System
Security Act which proposes a regulatory regime for security at
drinking water facilities under the Environmental Protection Agency
(EPA), per an agreement between HS Chairman Bennie Thompson and E&C
Chairman Henry Waxman. To date, there has been no similar agreement
between Chairman Thompson and T&I Chairman James Oberstar, though we
understand that Mr. Oberstar intends to introduce separate wastewater
security legislation as early as this week. We believe that wastewater
treatment utilities should be placed under the jurisdictional authority
of the EPA and its security program along with drinking water
utilities,
If wastewater utilities are regulated under a CFATS program at DHS
while drinking water utilities are regulated under a security program
at EPA, separate security programs for water supply and wastewater
treatment operators will be in place, thereby creating duplication of
efforts, increased costs to ratepayers, and compliance mandates for two
Federal programs without any discernable public benefit. The
problematic nature of this approach is best crystallized by the example
of water and wastewater utilities that are jointly owned and managed by
a single entity. Under separate Federal agency authorities, these
facilities would face the prospect of being regulated by two different
Federal agencies for the same policy purpose. Indeed, we believe a
splintered Federal regulatory oversight approach will result in greater
security vulnerabilities at wastewater and drinking water systems vis-
a-vis intentional acts of terrorism.
Therefore, we ask your assistance and support in our efforts to
sort out these juridictional issues. Specifically, we ask your support
that wastewater treatment utilities be granted an exemption from the
CFATS program at DHS with the understanding that these utilities will
be placed under the jurisdictional authority of the EPA and its
security program, along with drinking water utilities. We also request
that the Committee on Transportation and Infrastructure receive a
jurisdictional referral on the CFATS reauthorization bill in order to
appropriately incorporate wastewater utilities into the overall House
legislative package on chemical security.
We appreciate your consideration and assistance with this matter.
If you have any questions or wish to discuss this matter further,
please contact Patricia Sinicropi, Legislative Director of the National
Association of Clean Water Agencies.
Sincerely,
Ken Kirk,
Executive Director, National Association of Clean Water Agencies.
Diane VanDe Hei,
Executive Director, Association of Metropolitan Water Agencies.
Wade Miller,
Executive Director, WateReuse Association.
Bill Bertera,
Executive Director, Water Environment Federation.
Catherine Smith,
Executive Director, California Association of Sanitation Agencies.
Tim Quinn,
Executive Director, Association of California Water Agencies.
______
June 15, 2009.
The Honorable James L. Oberstar,
Chairman, House T&I Committee, U.S. House of Representatives,
Washington, DC, 20515.
The Honorable John L. Mica,
Ranking Member, House T&I Committee, U.S. House of Representatives,
Washington, DC, 20515.
The Honorable Eddie Bernice Johnson,
Chairman, House T&I Subcommittee on Water Resources and Environment,
U.S. House of Representatives, Washington, DC, 20515.
The Honorable John Boozman,
Ranking Member, House T&I Subcommittee on Water Resources and
Environment, U.S. House of Representatives, Washington, DC,
20515.
Dear Chairman Oberstar, Ranking Member Mica, Chairwoman Johnson,
and Ranking Member Boozman: The National Association of Clean Water
Agencies (NACWA), the leading advocacy organization representing the
Nation's municipal wastewater treatment agencies supports the
Wastewater Treatment Works Security Act of 2009. The bill, introduced
by Rep. Eddie Bernice Johnson (D-Texas), Chair of the House
Transportation and Infrastructure Subcommittee on Water Resources and
Environment, would place wastewater facilities under the same security
program as drinking water facilities at the U.S. Environmental
Protection Agency (EPA). We believe this approach is the only way to
ensure a consistent level of security at these facilities while
avoiding duplicative and overly burdensome regulatory regimes that will
lead to increased costs to taxpayers with no appreciable public
benefit.
However, we understand that the House Committee on Homeland
Security intends to assert jurisdiction over chemical security at
wastewater treatment utilities when it marks-up a CFATS reauthorization
bill on June 18 for the program administered by the Department of
Homeland Security (DHS). If wastewater utilities are regulated under a
CFATS program at DHS while drinking water utilities are regulated under
a security program at EPA, separate security programs for water supply
and wastewater treatment operators will be in place, thereby creating
duplication of efforts, increased cost to ratepayers, and compliance
mandates for two Federal programs without any discernible public
benefit.
The problematic nature of this approach is best crystallized by the
example of water and wastewater utilities that are jointly owned and
managed by a single entity. Under separate Federal agency authorities,
these facilities would face the prospect of being regulated by two
different Federal agencies for the same policy purpose. Indeed, we
believe a splintered Federal regulatory oversight approach will result
in greater security vulnerabilities at wastewater and drinking water
systems vis-a-vis intentional acts of terrorism.
NACWA recognizes Congress' interest in ensuring the best possible
protections for the Nation's critical infrastructure but including
publicly owned treatment works (POTWs), whose sole mission is the
protection of public health and the environment, into regulations aimed
at securing private chemical plants is not a sound approach. POTWs are
already heavily regulated under the Clean Water Act (CWA), which is
administered by EPA and overseen by the T&I committee.
NACWA has worked diligently with EPA's water security division on
effective security protocols to protect their facilities.The
Association developed a suite of vulnerability self-assessment tools
(VSAT TM) that was distributed broadly for use by wastewater
and drinking water agencies and also worked to develop its chlorine gas
decision tree to help utilities assess the feasibility of switching to
alternative disinfection method. The CFATS bill has the potential to
undermine both this work and EPA's ability to implement the CWA by
giving overly broad discretion to DHS.
Clearly, any new legislation focusing on security at wastewater
treatment facilities should fall under the oversight of the T&I
committee. NACWA fully supports the committee in its efforts to assert
jurisdiction over wastewater treatment sector security through the
Wastewater Treatment Works Security Act of 2009 and we look forward to
working with you on these efforts going forward.
Sincerely,
Ken Kirk,
NACWA Executive Director.
Mr. Dent. Thank you.
Also, Mr. Reitinger, good to see you again.
Ms. Armstrong, good to be with you, too.
I want to say a few things first, Mr. Reitinger. How many
IST specialists do you have on staff currently in DHS?
Mr. Reitinger. Sir, I think the answer is none, because we
don't have any positions that are formally IST specialists, but
I think we are in the process of hiring chemical inspectors who
may have some--will have an increasing degree of knowledge
generally around chemical facility security.
Mr. Dent. That is not particularly reassuring, but I
understand. With the $19 million increase in the President's
fiscal year 2010 budget request for the Office of
Infrastructure Protection, how many IST specialists will you
hire? Would you hire two or three people with some background?
Mr. Reitinger. Sir, again, I don't know that we have anyone
that I would firmly say now is an IST specialist, because we
are budgeting under the current regime.
Ms. Armstrong, can you supplement that answer?
Ms. Armstrong. Certainly. I would agree that we don't have
anybody that is by title an IST specialist on staff. We have
hired chemists, chemical engineers, inspectors, and other
program staff for the program. The budget increase is to allow
us to continue to staff up to full complement and to continue
to deploy and maintain compliance tools for industry.
Mr. Dent. Okay, so you have a limited staff. Following up
on Mr. McCaul's question, I would like to ask a yes-or-no
question. Do you believe that requiring IST implementation is
necessary or simply preferable? I think we need it on the
record.
Mr. Reitinger. Sir, I regret, giving you a yes-or-no answer
would require me taking a specific position on the bill, and I
am not ready to do that. What I can say is that the current
regime allows for companies to use inherently safer
technologies in either tiering out or in responding to--
including within their site security plan, excuse me, tiering
out or reducing their tier.
Therefore, we would be happy--and we would be happy to work
with Congress to have the best possible provision going
forward.
Mr. Dent. Understood. I have another issue. As you know,
many industry- and company-specific studies show massive costs
to substitute chemical products. This committee has discussed
this issue numerous times over the years.
Has there been any DHS analysis of the cost required to
mandate product substitution for chemical facilities? Has there
been any analysis on potential job loss as a result of
mandating such a substitution?
Mr. Reitinger. Let me defer that question to Ms. Armstrong.
Ms. Armstrong. Thank you. I don't--we are not in ISCD at
the point of such specific analysis. The Science and Technology
Directorate of the Department is doing and should complete this
summer a literature review related to the topic of IST to start
building a base of information on that topic.
Mr. Dent. Do you agree that IST is essentially an
engineering practice? Do you agree that IST really deals more
with workplace safety issues, perhaps, than plant security
issues?
Ms. Armstrong. I think that there is enough debate in
industry and academia, et cetera, that I can't take a position
on that very topic.
Mr. Dent. However, somebody will have to implement this,
and we have to understand what it is and what it is not. I have
talked with a number of engineers who tell me that this is
really a workplace safety issue. It is not a chemical plant
security issue. Therefore, it should not be mandated into
legislation.
If we are going to mandate such a practice, we ought to
know what we are doing here. I would appreciate receiving some
guidance from the Department.
I think you are right to ask for this 1-year extension on
the CFATS regulations because of these types of questions for
which you may be unable to provide an answer or you may not be
permitted to do so. Therefore I would appreciate some
clarification on that point.
Another question: Has there ever been any analysis or study
completed that shows MTSA is not working or MTSA facilities are
unsafe?
Ms. Armstrong. I don't think that there has been any
specific analysis at that question. I am sure that the Coast
Guard has requirements to provide reports on progress in
implementing MTSA.
Mr. Dent. Has DHS conducted a strict assessment of the
current CFATS program? If so, has it been presented to the
Congress?
Ms. Armstrong. We don't have a requirement at this point in
time to provide a sort of annual congressional report.
Mr. Dent. Okay, thank you.
Chairman Thompson. Thank you very much.
Ms. Armstrong, Mr. Dent talked about staffing. Am I to
understand that some of the requirements for CFATS and others
is on-going and that you are, in fact, still hiring as we
speak, whether this legislation passes or not?
Ms. Armstrong. Yes, sir, we are continuing to hire. I have
a selection certificate for three positions to bring security
specialist expertise to the program on my desk. As of this
date, we either have on-board or are in the process of on-
boarding approximately 125 people.
Chairman Thompson. Thank you. With respect to the
legislation, we are talking about an additional $100 million to
provide the Department for both regulatory and staffing
requirements to implement it. So we are indeed not adding
burden to the agency without providing the resources to do the
job.
I now recognize the gentleman from Texas for 5 minutes, Mr.
Cuellar.
Mr. Cuellar. Thank you, Mr. Chairman.
I guess what a lot of us are trying to do is find a balance
between security and, of course, industries that we represent.
As you know, in Texas, the chemical industry down there, we
have over 77 chemical manufacturers operating more than 200
facilities, a lot of jobs are created, and I know there has
been concern.
I appreciate you working with myself, but I think with Al
Green on some language. I am in particular talking about
Section 2111 and 2103, and I believe you also have shown a
willingness to work with us on some report language. I
certainly want to work with you on that report language, but I
do want to thank you for enhancing that language on that,
whether it comes as a form of a manager's amendment or
whatever--you are going to use.
So I know Al Green has shown some concern, so I want to
thank you and look forward to working with you to further
enhance the language to address some of the issues, Mr.
Chairman.
Thank you.
Chairman Thompson. Thank you very much. The gentleman
yields back?
Mr. Cuellar. Yes, sir.
Chairman Thompson. I recognize Mr. Cao for 5 minutes.
Mr. Cao. Thank you, Mr. Chairman.
Mr. Secretary, my main concern in connection with this bill
is the mandatory implementation of IST. Small businesses, which
make up the bulk of my district's local economy, will pay tens
of thousands of dollars to implement these measures. The impact
of this bill on the agriculture industry will be enormous.
According to the Louisiana Department of Agriculture, more
than 30,000 farms in our State will be affected at a cost of
more than $120 million. To quote the State agriculture
commissioner, ``If we are not very careful with how we regulate
the cost of implementation of this bill and jumps in fertilizer
costs could cost food inflation upwards of 10 percent. At the
rate we are going in this country, we will have regulated
ourselves into a position in which we can't feed ourselves.''
How is evaluating alternative processes that are necessary
to produce synthetics, such as rubber, paint, and fertilizer,
among others related to homeland security?
Mr. Reitinger. Sir, let me say that, first off, with regard
to agricultural end users under the CFATS regime, my
understanding is that, in December 2007, an extension was
granted to submit top screen. So there are no current
regulatory requirements under the CFATS regime with regard to
them.
I could ask Ms. Armstrong to supplement that answer.
Ms. Armstrong. That is correct. At the time of publication
of Appendix A to CFATS, we noted that there was an unintended
consequence of the rule in that, at current screening threshold
quantities, we would screen in potentially individual homes,
small businesses, and farms, which was not the intent of the
CFATS program. It is to identify and protect high-risk chemical
facilities.
So we did issue an indefinite extension for certain
agricultural chemical end-users, and we are working right now
to resolve that situation.
Mr. Cao. Besides the unintended consequences that you just
outlined, what other unintended consequences do you know of
that may result due to this bill?
Mr. Reitinger. If the question is the bill that was
introduced yesterday, I regret I will need a little more time
to look at the bill to formulate a position and work
effectively with the committee. But you have my personal
commitment to work effectively with the committee on the
authorization language.
Mr. Cao. My second concern in connection with this bill is
the inherent jurisdictional conflicts between DHS and EPA and
between DHS and the U.S. Coast Guard. Do you have procedures in
place that will resolve this conflict?
Mr. Reitinger. Let me talk about this--both of those
things, and then perhaps Ms. Armstrong may want to supplement
that.
With regard to the issue with MTSA, we are in on-going
discussions with the Coast Guard to work towards harmonization
of the CFATS and MTSA regimes so that we have a consistent
level of protection across both MTSA and CFATS.
With regard to wastewater and water treatment facilities,
drinking water facilities, we believe that there is a coverage,
a security gap with regard to them that needs to be addressed.
Ms. Armstrong. I would just add that we don't have a
conflict with either EPA or the Coast Guard. To echo the point,
currently, water and wastewater treatment facilities are exempt
from CFATS, and we are working very closely with the Coast
Guard within DHS to harmonize our approach to both MTSA and
CFATS implementation.
Mr. Cao. Thank you, Mr. Chairman. I yield back the balance
of my time.
Chairman Thompson. Thank you.
For the record, again, Ms. Armstrong, you clarified the
agricultural concern. Basically, this legislation adds no new
burden on agriculture. CFATS is CFATS. It is already law.
So whatever concern that individuals would have, it
wouldn't be with this bill. It would be with existing law from
a CFATS standpoint.
Ms. Armstrong. Yes.
Chairman Thompson. Am I correct?
Ms. Armstrong. That is correct, sir, yes.
Chairman Thompson. Thank you.
The Chair now recognizes the gentlelady from Nevada for 5
minutes, Ms. Titus.
Ms. Titus. Thank you, Mr. Chairman.
I would address this to both of you. On May 4, 1988, there
was an explosion at the PEPCON facility. That was a rocket fuel
manufacturer that had been built originally, you know, in kind
of an isolated area of the desert. But by the time it exploded,
it was surrounded by the suburbs of Henderson.
As a result of that explosion, two workers were killed, 372
people were injured, and $100 million in damage was done up to
10 miles away to buildings, homes, other facilities. Resulting
from that, the Nevada legislature enacted a very tough storage
disclosure, safety law to prevent that from happening again.
Now, we want to keep workers and residents safe and
facilities secure, but we don't want to create a kind of
bureaucratic nightmare where there are all these kind of
conflict regulations and duplication of reports that have to be
filed.
Would you address how you work with States and how this
regulation or legislation might interact with what we have
already got in place?
Mr. Reitinger. I will give a quick response and then ask
Ms. Armstrong to supplement it.
The point I would make on pre-emption is that there is
nothing in the current regime that prohibits States from
implementing regimes that are more protective, facilities or
people in the States than the existing regime, at least insofar
as those regimes do not expressly conflict with the purpose of
CFATS.
In addition, I know that well prior to my arrival at the
Department of Homeland Security, Sue and her team and other
people across the Department were working very effectively with
States and local governments to ensure we had the best regime
possible.
With that, I will ask her to supplement.
Ms. Armstrong. Thank you. One of the kind of tenants of
CFATS is that we don't intend it to conflict with existing
regulatory compliance that is out there, as we know there are
many, many, many Federal and State programs. So we built the--
in particular, the site security plan template for CFATS to
allow reporting and articulating how a facility is in
compliance with other regulations, if that facility is, indeed,
covered by CFATS due to holdings of chemicals of interest.
I would echo that we have worked very closely with States.
We recognize homeland security advisers as authorized CVI users
and share information with them to help them better secure
facilities that are in their jurisdiction.
If you look at the risk-based performance standards that
underlie CFATS, there are a few that do speak to the working
relationship between owners and operators and their first
responders in State and local jurisdictions. We will be looking
for multi-jurisdictional joint planning and exercising of those
plans at high-risk chemical facilities.
Ms. Titus. Thank you, Mr. Chairman. I yield back.
Chairman Thompson. Thank you.
The Chair now recognizes the gentleman from Michigan, is--
oh, Olson, I am sorry, Olson from Texas.
Mr. Olson. Thank you very much, Mr. Chairman.
I have a couple questions, again, getting back to CFATS. As
my colleague from California mentioned, there is an eight-step
process that the Department is going through. We are
essentially at step five.
We have three steps remaining, with facilities completing
their site security plans, followed by a DHS review--and either
approving or rejecting their plans. Then, finally, DHS conducts
inspections.
This has been a 3-year process to get to where we are on
``step five.'' How much longer will it take to get through the
next three steps, and get the CFATS program fully running?
Mr. Reitinger. I would start by saying, the CFATS program
is up and running. We haven't completed all the steps yet. But
as I think the time line shows, we have been working very
avidly to do that and, I think, have made steady progress.
In terms of where we--the last step is essentially that
inspections I think on the eight-step program you did. My
understanding is that those inspections will start during the
next fiscal year, but let me ask Sue to supplement that.
Ms. Armstrong. That is correct. We anticipate doing the
first inspections of tier-one facilities in the first quarter
of fiscal year 2010.
Mr. Olson. Okay, that makes sense. That is why the
administration is asking for the 1-year extension. It will be
fully up and running at the eighth step of the process by the
end of the year.
One other question I would like to ask is about the
Maritime Transportation Security Act. How many facilities that
are affected by the MTSA from CFATS have claimed an exemption?
Ms. Armstrong. In the initial submission of top screens and
preliminary tiering, 365 facilities claimed full exemption
under MTSA and 135 claimed partial extremism under--due to
MTSA.
Mr. Olson. Three hundred seventy-five whole and 135
partial?
Ms. Armstrong. Partial.
Mr. Olson. Is that correct? Okay. How many inspectors will
you have at the end of 2010? We have talked about a lot of the
manpower needs that will probably arise if we do have the
inherently safer technology and the civil suits while leaving
the Department exposed to them, so it certainly sounds like you
will have to grow the Department. Are you going to have the
manpower of inspectors at the end of 2010?
Mr. Reitinger. Yes, sir. For those of you who were at the
committee hearing I testified at last week, you know that
continuing to expand the personnel resources in the National
Protection and Programs Directorate is my personal top
priority. We have some great people, and we need to continue to
get more of them.
The plan for fiscal year 2010 in terms of field inspectors
is to have 135 CFATS inspectors and 20--throughout a term--20
FTE, 40 FTP--full-term positions--or, sorry, full-time
positions--and who are cross-trained, ammonium nitrate CFATS
inspectors during the fiscal year 2010.
Mr. Olson. Okay. Thank you very much.
One final question. I have a little more time than I
thought I would have, and the Texas Chemical Council has
written to me, that they are concerned about some of the
overlap in conflict that may exist with the Maritime
Transportation Security Act, the MTSA, which we talked about
earlier.
As you know, they have begun hiring. I believe they have
hired over 200 maritime inspectors in the last year. These
inspectors will oversee the MTSA facilities. How do you think
they can inspect over 7,000 facilities with 200 inspectors? I
mean, those numbers don't seem to match up. Do you have any
comments?
Mr. Reitinger. I am not sure I understood the question,
sir. The----
Mr. Olson. Let me rephrase my question. Again, this is
under the MTSA, but there are 7,000 facilities that are covered
by the MTSA. Last year the Coast Guard began hiring their
inspectors. They have about 200 currently. So we have 200
inspectors who are basically tasked with inspecting over 7,000
facilities. That is quite a big discrepancy in numbers.
I just wanted to get your thoughts on how they can make
that work.
Mr. Reitinger. Sir, I would have to defer that question to
the Coast Guard. I don't think it is appropriate for me to
comment on their resourcing of their statutory missions. I am
sorry.
Mr. Olson. I appreciate the answer, and I appreciate your
time. Thank you both very much.
I yield back my time, Mr. Chairman.
Chairman Thompson. Thank you.
The Chair now recognizes the gentlelady from California,
Ms. Richardson, for 5 minutes.
Ms. Richardson. Thank you, Mr. Chairman.
I would like to take this opportunity to get us back on
track of the actual bill itself, which is the Chemical Facility
Anti-Terrorism Act of 2009. It is my understanding the reason
why we are considering this bill is for very serious reasons,
and I think the public needs to get back on track of that
discussion.
No. 1, we are talking about it because there is the
potential release of toxic, flammable, and explosive chemicals
that could have a potential to create adverse consequences for
human life and health. So when we talk about a year, we are
talking about on-going possibilities that the American people
are facing on a day-to-day basis.
The second concern is theft and diversion, chemicals that
have the potential to be stolen or diverted and to be used and
converted into weapons that could cause significant, adverse
consequences for human life.
Then the third reason is the potential for sabotage and
contamination.
Now, sir, in your own testimony, on page 6, you say, ``As
DHS has stated before, we believe that there is an important
gap in the framework of regulating the security of chemicals in
the United States, namely drinking water and wastewater
treatment facilities. We need to work with Congress to close
this gap in order to secure the substances of concerns at these
facilities and protect the communities that they serve.''
``Drinking water and wastewater treatment facilities that
would be considered high-risk due to the presence of substance
of concern should be regulated. However, we do recognize the
unique public health and environmental requirements and
responsibility of such facilities. For example, we understand
that a cease-operations order that might be appropriate for a
chemical facility under CFATS could have a significant public
health and environmental consequence when applied to a water
facility.''
In my district, we have several chemical facilities. My
whole comment is, it is my understanding, we have waited on
legislation such as this for 3 years. My comment is, I am not
willing to continue to put the residents that I am responsible
to ensure that we have the adequate protections and preparation
in place to wait another year.
In closing, I just wanted to reiterate, because I have
heard several questions from my colleagues, and you didn't say
this in the answer, and I think it is important to restate, and
then I would ask your comment on.
According to the legislation that we have before us, it is
intended to reduce the consequences of a terrorist attack. The
bill authorizes the DHS secretary to require the implementation
of inherently safer technologies, or IST, for tier one and tier
two, which are the highest-risk tiers.
However--and this is, I think, the thing that needs to be
repeated here today--however, before the secretary can require
the implementation of an IST bill, he or she--but in this case,
he--must make the factual determination of that implementation.
Within the secretary, the secretary has the purview to
determine, is it technically feasible? Is it cost-effective?
Will it lower the overall risk that is not--without
disproportionately shifting the risks elsewhere in the supply
chain and, No. 4, would not impair the ability of the facility
to continue its operations in its current location?
So the legislation is quite clear and gives the secretary a
tremendous amount of discretion and flexibility to adjust. Do
you agree? Do you understand that? Have you read this?
Mr. Reitinger. I have read that provision, ma'am. I am not
in a position to take a position on it yet, but I understand
that the committee has made efforts to ensure that the
secretary retains discretion in that space.
I would like to go to what you said before. Certainly, as
your quoting of my testimony points out, we believe that there
is a gap around wastewater treatment and drinking water
facilities that ought to be addressed.
I would also say that we at the Department do not intend to
sit on our hands, but intend to move forward and continue
implementation of CFATS as we have been doing to do our
absolute best under the existing regime or whatever regime may
come to protect the public from the risk of the release of the
various threats and vulnerabilities you pointed out.
Ms. Richardson. We both have different jobs. Your job is to
implement the legislation and then ensure that the laws are
carried out. Our job is to create the legislation to make sure
that that happens. I think there is a role for both of us.
So, again, I want to come back to my point of the
secretary's flexibility, because there were questions here of
my colleagues. The secretary does have the flexibility that, if
it is not technically feasible, if it is not cost-effective, if
it would lower the overall risks and disproportionately shift
the risks elsewhere in the supply chain, and if it would impair
the ability of the facility to operate, the secretary has the
discretion to step forward, and that needs to be clearly said
in testimony.
Mr. Reitinger. Thank you.
Ms. Richardson. Do you agree?
Mr. Reitinger. My understanding is that is what the bill
provides.
Ms. Richardson. Okay.
Mr. Reitinger. We would be happy to continue to work with
Congress----
Ms. Richardson. I just wanted to make sure you acknowledged
that. Thank you, sir.
Chairman Thompson. Thank you very much.
The Chair now recognizes the gentleman from Indiana for 5
minutes, Mr. Souder.
Mr. Souder. Thank you, Mr. Chairman. The more I hear, the
more concerned I get.
To follow from Congresswoman Richardson, do you, Mr.
Reitinger, agree that--since 9/11--the reason for the creation
of the Department of Homeland Security was terrorism, and
rather than having kind of a mission creep it has been more
like a potential mission leap. Do you view any of your
responsibilities in dealing with the risk of these chemical
facilities when there is a flood, a hurricane, or tornado? Or
is your focus solely on terrorism?
Mr. Reitinger. Let me defer that question to Ms. Armstrong,
who is much more deeply familiar with the statutory----
Ms. Armstrong. Well, CFATS is in and of itself a security
regulatory program with a definite anti-terrorism bent to it.
As we heard, it is focused at looking at three main types of
security issues: the potential for a toxic, flammable, or
explosive release at a facility----
Mr. Souder. But caused by a terrorist or just----
Ms. Armstrong. Caused by a----
Mr. Souder [continuing]. From an industrial accident, for
example? Do you view yourself as trying to make things safer
from an industrial accident or from terrorism?
Ms. Armstrong. From an intentional act, yes, sir.
Mr. Souder. Okay. Looking at it as an intentional terrorist
act, how do you move from, say, protecting a facility to
micromanaging what a facility might make? In other words, do
you view part of your mission as telling a facility that given
some of the guidelines, if they don't shut down, in order, for
example, to take a product that is more expensive and less
effective, because you have concluded that it is safer from
terrorists?
Ms. Armstrong. Well, there is no requirement to do that at
this point in time, but I would be not inclined to tell
industry how to do its business and what a cost-effective
process is for a particular facility. Our focus is on security.
But if I could go back to your original point, the ISCD is
one division in the Office of Infrastructure Protection, and
the larger mission of I.P. is to coordinate the national effort
to protect all CI/KR across all 18 sectors. I.P. has a distinct
role in incident management to support CI/KR owners and
operators when there is an incident to help them with doing
damage assessment, to help provide credentialing and access to
damaged facilities for workers who need to get back to get a
facility back up on-line, or to--and also to participate as the
infrastructure liaison in a joint Federal office.
Mr. Souder. Are you thinking like in a traditional FEMA
function?
Ms. Armstrong. No, we are focused--FEMA is focused on human
lives and disaster response. We are focused on helping owners
and operators get back up and operating to provide key things
like clean water, food, et cetera.
Mr. Souder. The challenge that I have, whether it be these
random lawsuits which commonly occur--I remember where I--in an
earlier life, when I worked for the senator from Indiana, that
there was an aluminum facility where at least a few people who
would certainly file a lawsuit, using whatever angle they
could, were convinced that this aluminum company was replacing
the cows at night because they were dying during the day due to
pollutants and, therefore, they were doing this at night. They
would have found any reason to try to harass this facility.
My congressional district is the No. 1 manufacturing
district in the United States. Every single thing is a
collection of chemicals. Agriculture needs chemicals, and when
two hydrogen facilities went down because of Katrina, even
though steel production only requires a little bit of hydrogen,
all the steel industry would have gone down. The auto industry
would have gone down. The truck industry would have gone down.
Any time there are additional lawsuits, there is a cost.
Any time there are regulations that may not be directly related
to the issue at hand, there is an increase in cost.
Where the average unemployment rate is 15 percent in my
eight counties, it puts the companies there at additional risk
of being unable to produce. It puts them at additional cost to
the consumers in a time when this Government is worried about
deflation, not inflation. It puts additional cost on the
consumers while they are making less.
There needs to be a definite, clearly stated terrorism
risk, rather than just micromanaging potential things that
might be preferable, which could blow up 10 people here or
there. I am worried that we are drifting away from our
original, targeted mission.
I yield back.
Chairman Thompson. Thank you.
The Chair would like, with unanimous consent, to enter into
the record a statement for this hearing from U.S. PIRG,
federation of State PIRGs, without objection.
[The information follows:]
Prepared Statement of Elizabeth Hitchcock, U.S. Public Interest
Research Group
June 16, 2009
Chairman Thompson, Representative King, Members of the committee: I
am Elizabeth Hitchcock, public health advocate for the U.S. Public
Interest Research Group. U.S. PIRG is the federation of State PIRGs,
which are non-profit, non-partisan public interest advocacy
organizations with 1 million members across the country.
We are pleased to present our views at this hearing on the Chemical
Facilities Anti-Terrorism Act of 2009. The State PIRGs have long been
concerned with the important issues of toxic hazards in our
communities, and the ability of the Federal Government to protect us
from preventable hazards. We commend you for your efforts to improve
security and safety at U.S. chemical facilities, including last year's
passage of H.R. 5577 in this committee, and are happy to support the
legislation before the committee today.
Attached to this testimony is a letter from the more than 50 labor,
public health, first responder, environment and other public interest
organizations with whom U.S. PIRG joins in advocating comprehensive
action on chemical security this year.
summary
In August 2008, a huge explosion occurred at Bayer CropScience
chemical plant in Institute, WV, killing two employees and sickening
six volunteer firefighters. The blast was felt 10 miles away, and a
tank weighing several thousand pounds ``rocketed 50 feet through the
plant.'' The tank luckily did not go in the direction of a tank holding
methyl isocyanate, or MIC, the same chemical that killed thousands in
the 1984 chemical plant explosion in Bhopal, India.\1\
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\1\ House Energy and Commerce Committee Majority Staff, MEMORANDUM:
Supplemental Information Regarding the 2008 Bayer Chemical Plant
Explosion, April 21, 2009.
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In October 2006, an after-hours chemical fire at a hazardous waste
handling facility in Apex, North Carolina triggered multiple
explosions, and created a toxic gas cloud that forced officials to
evacuate 17,000 residents. Low winds and steady rain helped rescue the
town by suppressing the toxic cloud. It truly was a miracle that no one
died or was seriously injured.\2\
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\2\ CASE STUDY: Fire and Community Evacuation in Apex, North
Carolina, Environmental Quality Company, April 16, 2008, available at
http://www.csb.gov/investigations/detail.aspx?SID=15&print=y.
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The safety and security of America's communities should not be a
question of good fortune or circumstance. The United States needs
comprehensive chemical plant security legislation that includes safer
and more secure technologies as the most effective way to reduce
chemical threats. Despite repeated attempts since 1999, Congress has
been unable to pass a comprehensive chemical security bill. With
security experts listing chemical plants as a vulnerable and deadly
part of our Nation's infrastructure, the implications of this delay are
at once ominous and a missed opportunity.
Across the country, there are more than 7,000 chemical facilities
that each put any of 1,000 or more people at risk of serious injury or
death in the event of a chemical release from the facility. In March
2008, the Congressional Research Service reported that 100 of these
plants each put more than 1 million people at such risk.
In 2006, the House Homeland Security Committee passed a strong
bipartisan bill. Regrettably, that effort was derailed in favor of a
much weaker temporary program set to expire in October of this year.
The interim chemical security law enacted in 2006 does little to
eliminate the risks to our communities from these facilities. It
prohibits the Department of Homeland Security from requiring safer more
secure chemicals or processes that can eliminate or dramatically reduce
the consequence of an attack. It also exempts thousands of chemical
facilities such as water treatment facilities. We urge the committee to
work quickly to pass a protective and comprehensive bill before the
expiration of the existing CFATS program.
Congress should pass, and the President should sign, a chemical
security bill that dramatically enhances security by:
Reducing the consequence of an attack through the use of
safer, more secure chemicals and processes where feasible;
Involving plant employees including hourly workers and their
representatives in developing plant security programs;
Ensuring that both chemical companies and Government are
accountable;
Allowing States to set more protective security standards;
Including all categories of facilities such as water
treatment plants.
Enacting a comprehensive law will provide essential protections to
millions of workers and communities now living in the shadow of
preventable disasters.
Any legislation that Congress considers should replace dangerous
toxics with safer alternatives where feasible and set a floor, not a
ceiling, for stronger State chemical security laws. A May 2006 National
Academy of Sciences study found that ``the most desirable solution to
preventing chemical releases is to reduce or eliminate the hazard where
possible, not to control it.'' This means that the most certain way to
make chemical plants safer and more secure is, where feasible, to
eliminate the toxic chemicals that are the source of the danger by
switching to safer and more secure technologies.
Fortunately, many safer alternatives are readily available.
Hundreds of water treatment plants, power plants, and manufacturers
have already switched to safer technologies and eliminated toxic
exposure threats from these facilities to an estimated 38 million
Americans. Most chemical manufacturing facilities have not adopted
available safer technologies, and we need a chemical security bill that
addresses these remaining chemical threats.
A deliberate or accidental release of toxic chemicals could have
grave consequences, and action is long overdue to address these
preventable chemical hazards. We urge the committee to pass chemical
plant safety and security legislation that uses American ingenuity to
substitute available safer and more secure alternatives for toxic
chemicals where feasible and prevents preemption of State chemical
security laws.
chemical plant threats are widespread and ominous
Chemical plants pose a unique and serious threat because they are
widely distributed in hundreds of communities across the country, and a
single strategic strike could release toxic chemicals capable of
killing thousands.
Of the more than 15,000 chemical plants in the United States, the
Environmental Protection Agency (EPA) \3\ estimates that 100 put any of
more than 1 million Americans at risk of death or serious injury from
the release of toxic chemicals. Another 700 facilities place at least
100,000 in harm's way, and an additional 3,000 facilities put 10,000 or
more at risk. Stephen Flynn with the Council on Foreign Relations
described \4\ chemical plant dangers as ``[t]he equivalent of weapons
of mass destruction prepositioned in some of the most congested parts
of our country.''
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\3\ Voluntary Initiatives Are Under Way at Chemical Facilities but
the Extent of Security Preparedness Is Unknown, United States General
Accounting Office, Mar. 2003, available at http://www.gao.gov/
new.items/d03439.pdf.
\4\ Angie C. Merek, The Toxic Politics of Chemicals. Securing
chemical plants: legislation and obfuscation, U.S. News and World
Report, Jan. 15, 2006, available at http://www.usnews.com/usnews/news/
articles/060123/23chemical.htm.
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current chemical security legislation
The bill before the committee establishes a more protective program
that requires an assessment of safer and more secure chemicals by the
facilities posing a risk to American communities and would require, in
certain limited circumstances, implementation by the facilities in the
two highest-risk tiers. The bill is the product of months of work by
the staff of the committee with input from our ``blue-green'' coalition
of labor, public health, first responder, environment, and other public
interest organizations, as well as the input of a variety of other
stakeholders.
serious threats call for real solutions
Legislation passed by Congress must adhere to three principal
concepts if it is to effectively protect against loss of human life by
securing chemical plants.
It must reduce the consequence of an attack at a facility
through the use of safer more secure chemicals and processes.
This encompasses a broad array of technological improvements
including safer and more secure chemicals, real-time production
methods that use up hazardous chemicals without accumulation,
process redesign, reducing hazardous pressures or temperatures,
and improving chemical use efficiency. Such technological
improvements make chemical plants less attractive terrorist
targets. Because physical security measures alone are not
failsafe, safer more secure chemicals and processes offer the
best protection for local communities by incorporating measures
that will reduce or eliminate the loss of human life in the
event of a successful attack.
It must involve plant employees, including hourly workers
and their representatives, in developing plant security
programs. Workers at the facility have a vested interest in a
safer and more secure facility because, simply put, they would
be hurt first and worst in the event of an attack on the
facility. Because of their intimate knowledge of their own
workplaces they are also able to identify ways to reduce the
consequences of an attack. Employees and their representatives
should also be afforded basic rights to join inspections.
It must require Government oversight of chemical security.
As with other anti-terrorism efforts, oversight of security at
chemical plants should be a collaborative effort between
Federal, State, and local governments. Specifically, Federal
legislation must preserve the authority of States to establish
more stringent security standards when necessary. States occupy
a superior position to determine when local circumstances
dictate additional security measures. State and local
governments can also develop innovative security approaches,
such as those already adopted by New Jersey and Maryland, which
can instruct other State and Federal efforts.
experts have repeatedly warned of chemical plant threats
For years, Government and private security experts have repeatedly
warned of the inherent threats at chemical plants. Prior to 2001, the
focus of concern was on catastrophic chemical accidents, such as the
1984 Union Carbide accident in Bhopal, India \5\ that killed thousands
of people and serious injured countless more. Since September 11,
expert warnings have increased in frequency and gravity, and now
include the realistic potential for tactical terrorist attacks on
chemical plants.
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\5\ Edward Broughton, ``The Bhopal disaster and its aftermath: a
review'', Environmental Health, 2005; 4:6. May 10, 2005, available at
http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1142333.
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The Justice Department \6\ repeatedly warned of the
terrorist threats at chemical facilities and concluded that the
risk of an attempt in the foreseeable future to cause an
industrial chemical release is both real and credible.
---------------------------------------------------------------------------
\6\ See Note 3.
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In 2002, the U.S. Army Surgeon General concluded \7\ that as
many as 2.4 million people could be killed or injured in a
terrorist attack against a chemical plant in a densely
populated area.
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\7\ Pianin, Eric. Study Assesses Risk of Attack on Chemical Plant.
The Washington Post. Mar. 12, 2002, available at http://
www.washingtonpost.com/ac2/wp-dyn/A10616-2002Mar11.
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Since 2003, the Department of Homeland Security (DHS) and
the Environmental Protection Agency (EPA) \8\ have consistently
stated that exclusive reliance on voluntary security efforts by
the chemical industry are not sufficient to assure protection
of public health and safety.
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\8\ See Note 3.
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In 2004 Stephen Flynn of the Council on Foreign Relations
wrote in his book, America the Vulnerable,\9\ that ``[t]he
chemical industry deserves urgent attention because the stakes
are high, the opportunities for terrorists are rich, and no
credible oversight process exists. It is the very ubiquity of
the U.S. chemical industry that gives it potential to be a
serious source of national alarm.''
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\9\ Flynn, Stephen. America the Vulnerable: How Our Government is
Failing to Protect Us from Terrorism. New York: HarperCollins, 2004.
---------------------------------------------------------------------------
Appearing before the Senate Homeland Security and Government
Affairs Committee in January 2005, President Bush's former
Deputy Homeland Security Adviser Richard Falkenrath \10\
testified that ``[o]f all the various remaining civilian
vulnerabilities in America today, one stands alone as uniquely
deadly, pervasive and susceptible to terrorist attack: toxic-
inhalation-hazard industrial chemicals . . . To date the
federal government has made no material reduction in the
inherent vulnerabilities of hazardous chemical targets inside
the United States.''
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\10\ Department of Homeland Security Oversight: Hearing Before the
Senate Committee on Homeland Security and Governmental Affairs, 109th
Congress (2005). (Statement of Richard A. Falkenrath, Visiting Fellow,
The Brookings Institution), available at http://hsgac.senate.gov/
public/_files/HSGACFalkenrathStatement.pdf.
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In a February 2008 news release, Association of American
Railroads President & CEO Edward R. Hamberger said, ``We can no
longer continue to risk the lives of millions of Americans by
using, transporting and storing highly toxic chemicals when
there are safer alternatives commercially available. It is time
for the nation's big chemical companies to stop making the
dangerous chemicals that can be replaced by safer substitutes
or new technologies currently in the marketplace.''
states acting to fill the chemical security void
In the absence of Federal efforts to secure chemical plants, three
States, New Jersey, Maryland, and New York, have taken actions to
improve the security and safety of chemical plants within their
borders.
In October 2001 New Jersey became the first State to begin
to assess and address chemical plant security. Under the
Domestic Security Preparedness Act, the New Jersey Department
of Environmental Protection established best security practices
for the State's 140 chemical facilities. These best practices
include requirements to assess and remedy security
vulnerabilities, and to conduct a review of the potential for
adopting inherently safer technologies that could dramatically
reduce or eliminate chemical plant threats.
In July 2004, New York adopted chemical plant security
measures when it passed the Anti-Terrorism Preparedness Act.
Pursuant to the Act, the New York Office of Homeland Security
oversees the development of vulnerability assessments at
certain chemical plants. Although the New York law takes an
important first step, it does not give the State any authority
to require specific security improvements and is therefore
weaker than the Maryland program.
safer and more secure chemicals and processes
The most effective method to secure chemical facilities is to
replace dangerous chemicals and processes with safer alternatives when
such alternatives are feasible and cost-effective. Safer chemicals and
processes can effectively reduce the consequences of a successful
terrorist attack.
The National Research Council asserts that ``[t]he most
desirable solution to preventing chemical releases is to reduce
or eliminate the hazard where possible, not to control
it.''\11\
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\11\ Terrorism and the Chemical Infrastructure, National Research
Council, May 2006, available at http://www.nap.edu/
catalog.php?record_id=11597#toc.
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According to the Government Accountability Office,
``[i]mplementing inherently safer technologies potentially
could lessen the consequences of a terrorist attack by reducing
the chemical risks present at facilities, thereby making
facilities less attractive terrorist targets.''\12\
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\12\ DHS Is Taking Steps to Enhance Security at Chemical
Facilities, but Additional Authority Is Needed, Government
Accountability Office, Jan. 2006, available at http://gao.gov/
new.items/d06150.pdf.
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According to report prepared for EPA, four toxic gases
account for 55% of the chemical processes that pose off-site
consequences to surrounding communities.\13\ These toxics
substances are chlorine gas, anhydrous ammonia, hydrogen
fluoride and sulfur dioxide. All four chemicals have readily
available and proven safer alternatives that are cost
effective.\14\ Alternatives typically include: using alternate
chemical or process, using the chemical in a less dangerous
form (a less concentrated one, or aqueous instead of gaseous,
for example), or generating the chemical as needed on-site
without storage. For example:
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\13\ Belke, James C., Chemical accident risks in U.S. industry--A
preliminary analysis of accident risk data from U.S. hazardous chemical
facilities, Environmental Protection Agency, Sept. 2000, available at
http://www.epa.gov/ceppo/pubs/stockholmpaper.pdf.
\14\ Preventing Toxic Terrorism: How Some Chemical Facilities Are
Removing Danger To American Communities, Center for American Progress,
Apr. 2006, available at http://www.americanprogress.org/issues/2006/04/
b681085_ct2556757.html.
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More than 200 water treatment facilities (including
Washington, DC) have converted to safer alternatives such
as ultraviolet light, eliminating the use of chlorine and
sulfur dioxide gas. But over 100 water treatment plants
still threaten more than 100,000 people.\15\
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\15\ Preventing Toxic Terrorism: How Some Chemical Facilities Are
Removing Danger To American Communities, Center for American Progress,
Apr. 2006, available at http://www.americanprogress.org/issues/2006/04/
b681085_ct2556757.html.
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Ninety-eight petroleum refineries use safer alternatives
to hydrogen fluoride (HF). But 50 refineries still threaten
millions people with the use of HF.\16\
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\16\ Needless Risk: Oil Refineries And Hazard Reduction, U.S. PIRG,
August 2005, available at http://www.uspirg.org/home/reports/report-
archives/healthy-communities/healthy-communities/needless-risk-oil-
refineries-and-hazard-reduction#5B_967IsFWvKGMKfKGZkNw.
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conclusion
We commend you, Mr. Chairman, for conducting this important
hearing. We hope that you find our comments helpful. We look forward to
working with you and your committee staff to move legislation
addressing these concerns forward. We would also be happy to discuss
other possible actions under the committee's jurisdiction to protect
Americans against unnecessary risk from highly toxic chemicals in their
communities.
Chairman Thompson. The Chair now recognizes the gentleman
from New Jersey for 5 minutes, Mr. Pascrell.
Mr. Pascrell. Thank you, Mr. Chairman.
Mr. Chairman, I have a different definition of mission
creep. That is when you listen to citizens' phone calls without
justifiable reason or a court order. That is mission creep.
We have been discussing this issue for 4 years. We have had
bipartisan support, moving in a very specific direction to try
to resolve problems rather than create them.
Now, the question I have for the deputy under secretary and
madam assistant secretary of Homeland Security deals with the
subject of delegating oversight responsibility to State
governments.
Now, New Jersey, which has a large chemical industry, it is
a standard-bearer nationally for chemical security protections.
I believe that in many ways the Federal Government is catching
up to New Jersey through the critical legislation we are
considering today, which I totally support.
In fact, New Jersey passed the Toxic Catastrophic
Prevention Act of 1986, when I imagine few people even believed
chemical security was an issue. It is an issue, but New Jersey
has successfully implemented these standards in a State that is
not only the most densely populated in the Nation and amongst
the most active in commerce, but also in a State that has 800
different chemical facilities, including 45 facilities that
manage extraordinary hazardous materials. As we all know, New
Jersey is home to the most dangerous 2 miles in America, just
to get the picture here.
You know, beyond special interests of a specific industry,
we ought to consider the safety interests of the American
people, specifically those who live near these chemical
facilities. I think that is important.
We have seen over the last 4 years what happens, God
forbid, if there is any kind of a man-made or just an accident
disaster, the toxic chemicals that would affect many lives and
kill many people, not only in those 2 miles.
I believe that the States should play a greater role, Mr.
Chairman, in the oversight of this new and much-needed chemical
security regime. A similar relationship is shared between the
States and the EPA, the Environmental Protection Agency, with
regards to environmental protections. It already exists.
So, Mr. Under Secretary and Madam Assistant Secretary, let
me ask you both: Do you believe that the Department of Homeland
Security can support permissive enabling language delegating
some oversight responsibility to State governments in the
Chemical Facility Anti-Terrorism Act of 2009? I would ask you
to be specific.
Thank you.
Mr. Reitinger. So I will take a crack at that first, sir.
The current statutory regime authorizes States to go beyond
CFATS, in the sense that it does not pre-empt State regulation
that is more restrictive and does not conflict with the basic
purposes of CFATS, and the regulations do the same.
So States, in essence, already have the capability if they
want to go farther than CFATS to do it. At the same time, I
think it is important to have a comprehensive and baseline
national regime that sets a floor across the country or a
baseline that ensures that we have a sufficient level of
protection in order to address the risk of a terrorist act to
protect the public around the country.
The other thing I would say is that we are working very
effectively with States--and with New Jersey in particular--on
not only the CFATS regime, but in the case of New Jersey,
ensuring that there is sufficient outreach to the private
entities in the State so that we can have a greater degree of
assurance that everyone who is subject to CFATS and should
submit a top screen is aware of that requirement and does so.
With that, let me ask Ms. Armstrong if she would like to
supplement the answer.
Ms. Armstrong. Thank you. I would just add that, at this
stage in CFATS, the program itself, we are working to manage
risk at the national level, and we are also working to
implement the program at the national level. By that, I mean
ensuring consistency in our interactions with covered
facilities, particularly when we do inspections. So I think it
is important to ensure that there is a national level oversight
of the program as we move forward.
I would also add that, indeed, one of the witnesses that
you will be hearing from next from New Jersey helped us in a
pilot that we did both with New York and New Jersey to come up
with a way to engage States to help us identify facilities that
perhaps should be in compliance with CFATS, but for whatever
reason are not at this point in time.
Mr. Pascrell. Just in conclusion, Mr. Chairman, thank you
both. I am not in any way suggesting do not have a national
baseline. What I am suggesting is a delegation of some of the
oversight responsibility--everybody has skin in this game. This
is critical. This is important. This is life and death. I think
we ought to take a look at that.
Thank you, Mr. Chairman.
Chairman Thompson. Thank you very much.
The Chair now recognizes the gentleman from Ohio for 5
minutes, Mr. Austria.
Mr. Austria. Do you believe that these authorized amounts
for grants are adequate in accomplishing what we are setting
out to do and we will achieve the desired effects we are trying
to accomplish with this plan?
Mr. Reitinger. Sir, I would need, I think, to spend more
time with the bill before I could do a full cost analysis and
prepare a budget proposal for what implementation of the regime
would be.
As Ms. Armstrong said before, we are actively budgeting and
working to fulfill our mission under the existing regime and
under whatever changes Congress may impose.
Ms. Armstrong. I don't have anything to add. I concur.
Mr. Austria. Okay. Again, I think it is important that we
make sure while we are going through this difficult time that
we are not burdening the industry with duplicative and nebulous
regulations that are going to hurt businesses during a
difficult economic time.
Mr. Chairman, if it is all right, I will just submit the
rest of my statement, for the record.
Chairman Thompson. Thank you very much.
The Chair now recognizes the gentlelady from Texas for 5
minutes, Ms. Jackson Lee.
Ms. Jackson Lee. Mr. Chairman, let me thank you very much.
Maybe I should say it: Thank you, thank you, thank you.
Because as I have been briefed and listened to some of the
questioning, I respect greatly the interest and concern. As I
have lived through the legislative process in this Nation, I
realize that we work through compromise. We work through
collaboration. We seek a bipartisan solution.
As I know this new administration, I think they have been
the marker for bipartisan collaboration. We are delighted to be
able to work with the administration to get this right. We want
to work with the industry of which a number of representatives
will be on the second panel.
But might I suggest, in the words of a wonderful icon of
this Nation, Dr. Martin Luther King, if not now, then when?
When are we going to wake up that we are only sitting on the
fringes of a potential Bhopal? How many times have we seen an
incident and we speak to the words of, ``We wish we could have,
would have, and should have''?
The tragedy of 9/11, the horrific tragedy of 9/11, got us
to thinking about aviation security. It began to analyze our
border entry process, and we made changes, but 3,000-plus souls
lost their life.
Before Three Mile Island in the United States, how many of
us thought about nuclear spills and the catastrophe that would
happen to a nuclear plant? I don't know how many of us were
focused. We lived with Three Mile Island. It was a neighbor of
that community. Didn't expect anything to happen.
So, frankly, I want the industry--of which I have had the
pleasure of speaking before a number of organizations--to call
us to speak to you again, because this has to happen. The
synergy and the timing is here and now.
The Chairman of the Energy and Commerce Committee is an
original cosponsor with myself, Mr. Markey, and Chairman
Thompson. Frankly, it is now time to move on this legislation.
We have worked for a period of time. I have visited
particularly, Mr. Reitinger and Ms. Armstrong, wastewater
plants sitting comfortably in the midst of residential
neighborhoods, in rural communities, seemingly tranquil and
mild and unapproachable. I have not been necessarily impressed
with the security there, because they don't think about those
issues.
But we in the Congress are the ones that are supposed to
think about the security of America. We have to be the forward-
thinking individuals.
So let me just pose these questions to both of you. I
noticed that the President extended his budget request--a 1-
year extension was sought in the anticipation that Congress
would act on a free-standing legislation for CFATS to make
CFATS permanent.
My question then is, is the 1-year extension to work with
Congress so that we can act on a free-standing legislation to
make CFATS permanent, is that correct, this 1-year extension in
the President's budget? Do you have that understanding?
Mr. Reitinger. The 1-year extension is to provide time to
work with Congress--for the Department to work with Congress on
a longer reauthorization.
Ms. Jackson Lee. So we can collaborate.
Let me quickly go to--Ms. Armstrong, do you have that
understanding?
Ms. Armstrong. Yes, ma'am.
Ms. Jackson Lee. Thank you. Let me quickly go to dealing
with wastewater. There is a concern that this has had the
effect of making an uneven security landscape. I am talking
about the regulations under CFATS and the Maritime
Transportation Security Act.
If these facilities are included under CFATS--and I am
speaking of water and wastewater facilities--or in the case of
drinking water facilities regulated by EPA--using regulations
similar to CFATS, can your office--and I want both of you--
effectively coordinate and cooperate with the Coast Guard and
the EPA to ensure that security grants are met without
duplication or contradiction, as is required in this bill?
It is important, especially in the case of the Maritime
Transportation Security Act facilities, that companies are not
caught in between the Coast Guard and infrastructure protection
and that they will continue to deal directly with the Coast
Guard, there be one face from DHS for security regulations for
these facilities.
Mr. Reitinger, you mentioned earlier you don't want to
speak for the Coast Guard. I don't ask you to speak for them,
but I want to know, if we get this right, if we get wastewater
and water treatment in the bill working the way it should be,
can we expect from this administration a collaborative effort
to make this work to secure America, Mr. Reitinger and Ms.
Armstrong?
Mr. Reitinger. So they are a little different. Let me
respond to both of them ma'am.
With regard to working with the Coast Guard, either under
the existing regime or any follow-on regime, you can expect the
National Protection and Programs Directorate to work
effectively and cooperatively with the Coast Guard to ensure we
are providing the most effective protections for the regulated
facilities and not randomizing our stakeholders by working
towards harmonization of regimes so we have a consistent level
of protection.
With regard to the wastewater and water treatment
facilities, you can expect us to work effectively with EPA. I
think we both agree that there is a gap with regard to coverage
of those types of facilities right now that needs to be
addressed.
Ms. Jackson Lee. Ms. Armstrong.
Ms. Armstrong. I would just add that I take very seriously
my responsibility to work within the Department and with other
Federal agencies to harmonize regulatory programs.
Ms. Jackson Lee. Mr. Chairman, did I just ask them--if we
have this in this legislation, can you work--will you be
working with those respective parties, if this regulation--if
this language on wastewater and water get in this legislation
or in this legislation?
Mr. Reitinger. I apologize, ma'am. I thought I answered the
question, but let me be clearer.
Under the existing regime or on any follow-on regime,
including this legislation, we will work those parties.
Ms. Armstrong. I agree. We are currently working with the
Coast Guard actively. If we need to because of the provisions
of this bill, we will certainly work alongside EPA.
Ms. Jackson Lee. Thank you, Mr. Chairman.
I yield back.
Chairman Thompson. Thank you very much.
I thank our first panel of witnesses for their valuable
testimony and the Members for their questions.
Before being dismissed, I would remind our first panel of
witnesses that the Members of the committee may have additional
questions for you. We will ask you to respond expeditiously in
writing to those questions. Thank you very much.
I now ask the clerk to prepare the witness table for our
second panel of witnesses.
Mr. Pascrell [presiding]. Okay. We are into the second
panel. I want to welcome you all.
First, Mr. Paul Baldauf. Mr. Chairman, Ranking Member, it
is my pleasure to introduce Mr. Baldauf. He serves as assistant
director for radiation protection and release prevention, New
Jersey Department of Environmental Protection. He is the
assistant director.
He manages three bureaus devoted to various aspects of
radiation protection, one bureau charged with preventing the
release of toxic and hazardous substances from industry. These
duties include a substantial role in the development and
implementation of homeland security initiatives.
He holds a B.S. degree in mechanical engineering from
Pennsylvania State University, an M.S., a master of science
degree in civil and environmental engineering from Rutgers
University, correct?
I want to point out that he has a very rare credential, in
that he has an M.A., master's degree in homeland security
studies from the Naval Postgraduate School, which is under
sponsorship of the Federal Department of Homeland Security. I
think it is testament to Paul's commitment to his work. Mr.
Baldauf is also a licensed professional engineer in the States
of New Jersey and New York and in Pennsylvania.
Our second witness will be Mr. Martin Durbin. Mr. Martin
Durbin serves as the vice president of Federal affairs for the
American Chemical Council. During his tenure with the ACC, Mr.
Durbin has served as the head of the site, cyber, and value
chain security through the business of security. You must be
very busy.
Our third witness is Dr. Neal Langerman. Dr. Langerman
serves as the principal scientist and CEO for Advanced Chemical
Safety, Incorporated. His experience includes working with
companies to improve chemical-handling practices, developing
emergency response teams, and upgrading industrial safety
procedures. He has been a member of the American Chemical
Society for 45 years.
Then, fourth is the final witness. It will be Mr. Martin
Jeppeson. Mr. Jeppeson serves as the director of the regulatory
affairs for the California Ammonia Company, the majority
supplier of ammonia in California. His experience includes work
on issues of safety, health, transportation, environmental
issues and government, labor, and education.
Without objection, the witnesses' full statements will be
inserted in the record. We say that because we like you to
speed up the process if you want to summarize.
I want to recognize Mr. Baldauf to summarize his statement
for 5 minutes.
Mr. Baldauf.
STATEMENT OF PAUL BALDAUF, ASSISTANT DIRECTOR, RADIATION
PROTECTION AND RELEASE PREVENTION, NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION
Mr. Baldauf. Thank you.
Good morning, Chair, Ranking Member, and the committee
Members. It is an honor to testify here today.
I would like to focus my testimony on New Jersey's
experience in implementing a homeland security program over the
past 6 years, with special attention to our requirement for
inherently safer technology evaluation.
In a very quick summary, New Jersey adopted its security
statute in October 2001, formerly adopted chemical sector best
practices in September 2003, and formerly adopted chemical
standards in November 2005.
At this point, we have 6 years of on-the-ground experience
implementing our best practices and standards for our universe
of approximately 800 chemical facilities.
In addition, the Toxic Catastrophe Prevention Act, which
regulates sites that store extraordinarily hazardous
substances, are also required to conduct inherently safer
technology analysis.
IST analysis, if you are subject to them, you are required
to evaluate reducing the amount of extraordinarily hazardous
substances you have on-site, substituting less hazardous
materials if possible, using extraordinarily hazardous
substances in a least hazardous process condition or form, and,
lastly, designing equipment and processes to minimize the
potential for equipment failure or human error.
We have been extremely pleased over the years with the
compliance levels we have seen to our standards. Initially, IST
evaluation was required of 45 TCPA facilities out of a total
universe of 157 chemical facilities that were subject to our
standards.
All 45 of those facilities conducted an IST evaluation. All
those facilities documented having implemented some form of IST
or similar risk reduction initiatives over time.
Thirty-two percent provided a specific schedule for
implementing additional IST. An additional 19 percent
identified additional IST measures, but have yet to submit the
implementation schedule.
It is very clear to us that IST evaluation is not overly
burdensome to the chemical sector and simply represents good
business practice for any facility storing or utilizing
extraordinarily hazardous materials from an economic, workers'
safety, and regulatory compliance standpoint.
In May 2008, the DEP took one additional regulatory step to
require all companies subject to the TCPA program to evaluate
IST. Beyond chemical plants, this rule covers additional
sectors, such as food, water, wastewater, refineries, and
energy.
Forty-two water, wastewater, food, petroleum and energy
facilities are required to submit an IST evaluation to the
Department by September 2008. All of the 19 chemical reports
evaluated to date were found to be deficient. The most common
deficiencies include a failure to identify all potential IST
alternatives and failure to provide justification for
determination of infeasible option.
IST in some form has been a practice in the chemical sector
for many years, but it is a relatively new concept to the other
covered sectors, so we expect long-term compliance in the non-
chemical sector areas to happen, and it will compare favorably,
but there is going to be a lead time, we believe, to bringing
these other sectors up to speed.
Briefly, with respect to the Chemical Facility Anti-
Terrorism Act of 2009, some comments. Section 2109, Federal
pre-emption, we fully support this language since States retain
the unqualified authority to adopt enhanced security
requirements based upon risk and consequence factors within
their State.
The proposed act would capture chemical facilities
currently exempt from the existing CFATS, expand the universe
of regulated sites, and require assessments of methods to
reduce the consequences of a terrorist attack at high-risk
sites. Overall, the act addresses many of the comments
previously submitted by New Jersey.
One final policy point we would like to respectfully make.
We strongly recommend consideration of permissive enabling
language toward delegating oversight responsibility to State
governments, along with appropriate levels of Federal funding
to support homeland security efforts.
This is standard practice and the way most Federal
environmental laws have worked through the years, where U.S.
EPA or U.S. NRC may at its discretion delegate program
implementation responsibility to qualified States.
In our case, we have a maturing State oversight program
already in place and, frankly, know our facilities much better
than DHS, in our opinion. We feel well qualified to undertake
delegated responsibilities and would ask for consideration in
adding such permissive authority to the draft bill.
I would like to once again thank the Chairman, Ranking
Member, and Members of the committee for this opportunity to
address you. We would happy to entertain any questions you may
have and are available at any time should additional
information be valuable to the critical work of your committee.
Thank you.
[The statement of Mr. Baldauf follows:]
Prepared Statement of Paul Baldauf
June 16, 2009
Good morning Chairman Thompson, Ranking Member King and Members of
the House Committee on Homeland Security. My name is Paul Baldauf and I
serve as the Assistant Director of Radiation Protection and Release
Prevention for the New Jersey Department of Environmental Protection
(DEP). I have lead responsibility along with DEP Director of Operations
Gary Sondermeyer for implementation of New Jersey's homeland security
program for chemical facilities under the direction of DEP Acting
Commissioner Mark N. Mauriello and Director Richard L. Canas of our
Office of Homeland Security and Preparedness (OHSP). I would first like
to thank the committee for the opportunity to appear before you to
discuss the Chemical Facility Anti-Terrorism Act of 2009 and
specifically the on-going inherently safer technology and chemical
sector security initiatives within the State of New Jersey.
Chemical plant security is a subject that Governor Jon S. Corzine
has maintained as a top priority while serving in the United States
Senate and over the past 3\1/2\ years as our Governor. We view our
Chemical Standards, including requirements for inherently safer
technology evaluation, as vital to providing New Jersey with an
accurate reflection of our current state of security preparedness, as I
will further outline in my testimony.
In response to the risks posed by a possible terrorist attack on
New Jersey's chemical facilities, New Jersey has taken significant
steps to strengthen the security precautions at these plants. At this
point we have close to 6 years of on-the-ground experience in
implementing a homeland security program for all chemical facilities
operating in our State. Best Security Practices were adopted for the
Chemical Sector working cooperatively with industry leaders through the
Infrastructure Advisory Committee on September 18, 2003. Since November
2005, New Jersey went further and adopted enforceable plant security
practices for its chemical facilities as well as requirements for
facility security assessments to evaluate potential security threats
and vulnerabilities. The facilities that pose the most significant
risks are subject to the State's Toxic Catastrophe Prevention Act
(TCPA) program, which incorporates EPA's Risk Management Program but is
stricter and broader in scope. I shall begin with a brief overview of
New Jersey's domestic security preparedness activities, and then turn
to the specific reasons why the evaluation of inherently safer
technologies in the chemical industry is of vital importance.
overview of new jersey's domestic security preparedness effort
New Jersey's unique vulnerabilities have made us a leader among
States in initiating and implementing measures to counter potential
terrorist operatives, to reduce the risk of attack at critical
infrastructure facilities, and to reduce the potential impacts to
public health and safety if any such attacks should occur in the
future. New Jersey undertakes these efforts through our Domestic
Security Preparedness Task Force (Task Force), chaired by Director
Richard L. Canas of our OHSP.
As Assistant Director of Radiation Protection and Release
Prevention, I serve as the DEP liaison to the chemical, nuclear, and
petroleum sectors of our critical infrastructure. Through the Task
Force and the OHSP, I also participate in New Jersey's preparedness and
response effort for other sectors. In addition, I serve as a subject
matter expert to the State, Local, Tribal, and Territorial Government
Coordinating Council's Chemical Vulnerability Information Working
Group.
The Task Force has undertaken a comprehensive program to reduce
terror risk, to ensure preparedness at critical infrastructure
facilities, and to test the efficacy of both public agencies and the
private sector in responding to acts of terrorism. Every Task Force
agency and every sector of our critical infrastructure has developed,
through public-private collaboration, a series of ``Best Practices''
for domestic security. Each set of Best Practices was reviewed and
approved by the Task Force and the Governor. Every Task Force agency
and every sector of our critical infrastructure has also participated
in appropriate exercises to test the strengths and limits of terror
detection and response capability.
new jersey's toxic catastrophe prevention act (tcpa) program
New Jersey has managed an oversight program to increase safety at
chemical plants and other facilities that store or utilize
extraordinarily hazardous materials for over 20 years. The Toxic
Catastrophe Prevention Act (TCPA) program was created in 1986 as a
result of a chemical accident in Bhopal, India that killed thousands of
nearby residents. Several chemical facilities in New Jersey had
experienced minor accidents prior to this time, clearly indicating that
a similar risk existed in New Jersey. The TCPA requires facilities that
handle extraordinarily hazardous substances above certain inventory
thresholds to prepare and implement risk management plans. The plans
must include detailed procedures for safety reviews of design and
operation, operating procedures, maintenance procedures, training
activities, emergency response, process hazard analysis with risk
assessment and self-auditing procedures. An extraordinarily hazardous
substance is defined as a substance, which if released into the
environment would result in a significant likelihood of causing death
or permanent disability.
In 1998 the program adopted USEPA's 112(r) Accidental Release
Prevention Program (40 CFR 68) by reference. This program included
additional toxic substances and highly flammable substances. It also
required each facility to complete a worst-case scenario analysis. The
worst-case scenario models the resultant toxic cloud to a predetermined
concentration. The USEPA end-point concentrations are approximately
one-tenth of the concentration that would cause death to persons
exposed.
On August 4, 2003, the re-adoption of the TCPA rules added reactive
hazards substances to the list of extraordinarily hazardous substances
covered under the program. Industrial accidents in New Jersey resulting
from reactive hazards demonstrated the need to include reactives under
the TCPA program. Owners and operators having listed reactive hazard
substances in quantities that meet or exceed thresholds are required to
develop risk management plans to reduce the risk associated with these
unstable substances. In addition, and the focus of this testimony, this
re-adoption included a requirement that owners and operators evaluate
inherently safer technology for newly designed and constructed covered
processes.
In April, 2007 the DEP proposed amendments to the TCPA rule to
require all companies subject to the program to evaluate the potential
of incorporating inherently safer technology at their facility. This
proposal also covers many sectors such as food, water/wastewater,
petroleum, and energy which are outside the chemical industry. A
relatively small number of facilities within these sectors store
threshold amounts of extraordinarily hazardous substances. A final rule
requiring the evaluation of inherently safer technology at all TCPA
sites was adopted on May 5, 2008.
chemical sector best practices standards
New Jersey recognizes that facilities in the Chemical Sector are
diverse in size, complexity, and potential for off-site impacts to the
community and therefore a blanket approach to addressing security
concerns may not be practical. The Best Practices represent a risk-
based approach to security consisting of a site-specific vulnerability
assessment that evaluates threats to a facility's operation, its
particular vulnerabilities and likely consequences of a chemical
release, and the physical and procedural security measures already in
place. The Chemical Sector Best Practices were predominantly derived
from the Security Code of the American Chemistry Council's Responsible
Care program.
Subsequently the Task Force determined that additional measures
were necessary to ensure that appropriate prevention and response
measures are implemented by the chemical sector to address emerging
domestic security threats. As a result, Chemical Sector Best Practices
Standards (Standards) were put in place on November 21, 2005.
The Standards require chemical sector facilities to, among other
things:
comply with the Chemical Sector Security Best Practices;
conduct a terrorism-based security vulnerability assessment;
and
develop a prevention, preparedness, and response plan to
minimize the risk of a terrorist attack.
In addition, chemical sector facilities subject to TCPA are
required to conduct a review of the practicability and potential for
adopting inherently safer technology.
inherently safer technology
Facilities required to conduct an inherently safer technology
review must evaluate:
reducing the amount of extraordinarily hazardous substances
materials that potentially may be released;
substituting less hazardous materials;
using extraordinarily hazardous substances in the least
hazardous process conditions or form; and,
designing equipment and processes to minimize the potential
for equipment failure and human error.
I must emphasize that the inherently safer technology requirement
under the Standards represents a practicability test; it is not
mandatory that a covered facility implement IST, only that they
evaluate. The results of the evaluations are held at the facility site,
and are made available to DEP inspectors during an on-site visit.
Compliance with the Standards was required within 120 days of the
effective date, March 21, 2006. We have been extremely pleased with the
compliance levels we have seen to our standards. Compliance of the New
Jersey requirements exceeded 98 percent. The Standards applied to
facilities that are subject to either the Toxic Catastrophe Prevention
Act (TCPA) or the Discharge Prevention, Containment, and Countermeasure
(DPCC) program, and report under certain Standard Industrial
Classification (SIC) or North American Industrial Classification System
(NAICS) codes. Of the total 157 facilities covered under the Standards,
45 are regulated TCPA facilities required to perform IST analysis. In
all cases, facilities required under the Standards to conduct IST
review have done so. All of these facilities have documented that they
have previously implemented IST or similar risk reduction measures.
Thirty-two percent of the facilities have provided a schedule to
implement additional IST or other risk reduction measures, and 19
percent have identified additional IST or risk reduction measures but
have not yet scheduled their completion. The remaining 49 percent of
the facilities had no additional recommendations. It should be noted
that these are facilities that have been regulated under the TCPA
program for many years resulting in the past implementation of IST and
risk reduction measures.
The TCPA rule amendment requiring IST evaluation required all
sites, regardless of their industry sector affiliation, to submit IST
evaluations to the DEP by September 2, 2008. The total universe of all
covered facilities in New Jersey is 87. The IST rule covered, for the
first time, 42 water, wastewater, food, petroleum, and energy sector
sites. The 45 chemical sector sites which had previously conducted an
IST evaluation were required to submit their previous evaluation to
achieve compliance. All TCPA sites completed and submitted their IST
evaluation to the DEP. The DEP prioritized the review of the reports by
sector to ensure consistency and efficiency. The water/wastewater
sector includes 13 TCPA sites in New Jersey. It is important to note
that the TCPA program has evolved from regulating over 300 water/
wastewater facilities in 1987 to our current number of 13. The majority
of these facilities have already deregistered from the TCPA program
through a combination of IST implementation and consolidation over the
last 20 years.
The DEP has completed the initial review of 19 of the 42 new IST
evaluations with the remaining 23 expected to be completed by July 31,
2009. All of the 19 non-chemical sector reports evaluated to date were
found to be deficient with each owner being granted 60 days to rectify
outstanding issues. The most common deficiencies included failure to
identify all potential IST alternatives and failure to provide
justification for determination of an infeasible option. In terms of
feasibility, sufficient documentation was not provided to support
statements of economic, public health and safety, and technological
infeasibility. It is important to note that IST in some form has been a
practice in the chemical sector for many years, but is a relatively new
concept to many of the other covered sectors. However, we do expect
that in the long term the results of the non-chemical sector sites will
compare favorably with those of the chemical industry subject to the
Standards.
I believe that our compliance results clearly indicate that the
evaluation of inherently safer technology is not overly burdensome on
industry and is an effective tool for critically evaluating the risk
reduction opportunities available at a specific facility. It is clear
to us that IST analysis is simply good business practice for any
facility storing or utilizing extraordinarily hazardous materials from
an economic, worker safety and regulatory compliance standpoint.
But these measures alone are merely a starting point. Our knowledge
of both the threat and the appropriate response is evolving daily. As
we implement the ``Best Practices'' and work with facilities on site-
by-site review of security vulnerabilities, we also have begun a
process to review what additional regulatory measures may be
appropriate to harden potential targets, to reduce risk to surrounding
communities, and to involve workers and communities in the process.
chemical facility anti-terrorism act of 2009
New Jersey has expressed serious concerns on a number of occasions
about any language in Federal regulations that has the potential to
preempt existing State chemical security initiatives or limit future
State actions to address unique vulnerabilities. Section 2109, Federal
Preemption, clearly allows States to adopt or enforce any regulation,
requirement, or standard of performance with respect to a covered
chemical facility that is more stringent than a regulation,
requirement, or standard of performance issued under Title XXI. We
fully support this language since States retain the unqualified
authority to adopt enhanced security requirements based upon risk and
consequence factors within that State.
The proposed Act would capture chemical facilities currently exempt
from the existing Chemical Facility Anti-Terrorism Standards, 6 CFR
Part 27, expand the universe of regulated sites, and require
assessments of methods to reduce the consequences of a terrorist attack
at high-risk sites. Overall, the Act addresses many of the comments
previously submitted by New Jersey on 6 CFR Part 27.
Section 2106, Timely Sharing of Threat Information, requires the
owner or operator of a covered chemical facility to provide information
in a timely manner about any significant security incident or threat to
their facility. To ensure a similar timely notification to local law
enforcement and emergency response organizations, an additional
requirement to notify the appropriate fusion center for that
jurisdiction is warranted.
As we have testified in the past, we do continue to strongly
recommend consideration of permissive enabling language toward
delegating oversight responsibility to State governments, along with
appropriate levels of Federal funding to support homeland security
efforts. This would include a petition process to DHS by interested
State governments and granting of delegated authority on a
discretionary basis. In the case of New Jersey, the actions taken in
chemical security preparedness since September 11 have left the State
well qualified to undertake such delegated responsibilities. State
security (Office of Homeland Security and Preparedness and New Jersey
State Police) and the chemical process safety experts (Department of
Environmental Protection) are intimately familiar with the chemical
facilities in question and have conducted multiple security and safety
inspections at each site over the last 6 years. Leveraging and
augmenting State resources is vital to ensuring that our chemical
facilities are adequately protected from acts of terrorism.
conclusion
Although New Jersey took critical steps to address chemical
facility security well over 5 years ago, we recognize that most States
have not taken formal regulatory action and therefore, Federal
regulations to create minimum national chemical facility security
standards are essential. At the same time, it is also important not to
penalize those pro-active States and allow the States to retain the
authority to adopt enhanced security requirements if States determine
they are necessary. No two States are alike, and the risks posed by
every facility present unique challenges based on location, population
size, and other factors. Security standards that are appropriate to
safeguard a facility in a rural area, for example, may not be
sufficient for a facility located in one of the most densely populated
and heavily traveled sections of the country. Simply put, one size does
not fit all.
New Jersey's critical infrastructure concentration and high
population density may have no comparison in the United States; our
State needs to retain the ability to go beyond any Federal security
baseline standard to ensure that our preparedness is measured in line
with our potential vulnerabilities. We need Federal standards, but they
must be a floor ensuring a base level of protection, not a ceiling that
constrains our ability to protect our citizens, as well as our
neighbors. Governor Corzine has gone on record previously to express
his concern for the safety of New Jersey's residents. In serving
Governor Corzine, it is our duty to protect the citizens of our State
and it is imperative that Federal legislation enhances New Jersey's
ability to protect our chemical sector critical infrastructure.
I once again would like to thank you Chairman Thompson, Ranking
Member King and Members of the House Committee on Homeland Security. On
behalf of DEP Acting Commissioner Mark N. Mauriello and Director of
Homeland Security and Preparedness Richard L. Canas, I sincerely want
to thank you for the opportunity to share some of New Jersey's
experience in implementing our chemical security and inherent safety
program. We would be happy to entertain any questions you may have and
are available at any time should additional information be valuable to
the critical work of your committee.
Mr. Pascrell. Thank you, Mr. Baldauf.
Mr. Durbin.
STATEMENT OF MARTY DURBIN, VICE PRESIDENT, FEDERAL AFFAIRS,
AMERICAN CHEMISTRY COUNCIL
Mr. Durbin. Thank you, Mr. Chairman, Ranking Member, and
Members of the committee. Thanks for the invitation to be here
today to testify on this important topic on behalf of the
American Chemistry Council.
In short, security in all its dimensions is a top priority
for ACC members, and our record of accomplishment and
cooperation with Congress, DHS, other Federal and State
agencies is well established. Since 2001, ACC's member
companies have invested $7.7 billion in security enhancements
under our own responsible care security code.
The effectiveness of ACC's mandatory security program has
been broadly recognized. In fact, our code not only provided a
model for State-level chemical security programs in New Jersey,
New York, and Maryland, but was deemed equivalent to the Coast
Guard's Maritime Transportation Security Act.
While we are understandably proud of our members'
performance under the code, it is important to acknowledge that
many non-ACC member companies out there have also taken
aggressive action to enhance security through industry
programs.
But turning to the DHS regulatory program, we believe CFATS
is by far the most robust, comprehensive, and demanding
chemical security program to date. CFATS is a strong regulatory
program that takes an effective approach, set a high bar
through performance-based standards, and then holds facilities
accountable.
This approach allows facilities to utilize a full range of
potential security measures to address vulnerabilities
identified by the Department's assessment tool.
The ACC not only called for the legislation that
established these regulations, but at each step of the process
our member companies volunteered to pilot core program elements
and assisted DHS in rapidly and successfully developing the
tools needed to implement the program and meet the regulatory
deadlines.
DHS should be commended for the speed with which they have
developed and implemented this comprehensive program, and DHS
staff demonstrated outstanding commitment and effort. So we
would urge Congress to provide the agency with the resources
necessary to fully and quickly implement this important
program.
The legislation being considered by this committee, we
believe, represents an important step in making CFATS
permanent. We are pleased to see that H.R. 2868 reflects many
of the security measures that have been and will be implemented
under CFATS. We appreciate the efforts made to minimize
duplication of effort by facilities that have already acted and
will take further action under the program.
However, I would like to highlight a few provisions that we
have discussed with the committee where we continue to have
questions and concerns. For example, we believe the provision
that would give DHS authority to mandate methods to reduce
consequences is unnecessary.
Through its use of risk-based performance standards, CFATS
essentially drives each facility to consider all possible risk-
reduction options when developing a site security plan,
including methods to reduce consequences or inherently safer
approaches.
Further, the highest-risk facilities subject to CFATS have
a strong incentive to implement security enhancements that
could move the facility to a lower-risk tier or potentially
even move it out of the program. While you can't mandate
innovation, CFATS allows DHS to unleash the ingenuity,
expertise, and resources of the chemical sector.
In addition, there has been much discussion already this
morning, but we feel the provision that provides for citizen
suits is both unnecessary and potentially counterproductive.
Unlike an environmental statute, CFATS is not a series of
prescriptive, statutory measures, like emissions standards or
discharge limitations. It will therefore be difficult for a
citizen or a judge to ascertain if a standard is being met or
to decide what needs to be done to address an alleged
deficiency.
We also share the agency's stated concern about the
potential for disclosure of sensitive or classified information
in judicial proceedings.
However, let me be clear that we fully support strong
enforcement of the act, so we would, again, urge Congress to
provide DHS with necessary staff and resources to ensure
compliance.
Now, while we have strong views on these issues, I want to
acknowledge the willingness of both this committee and the
Energy and Commerce Committee to seek our input and consider
our viewpoint. We have had constructive discussions, and I
remain hopeful that our concerns can be addressed as the
legislative process continues.
The crucial partnership between our industry and the
Federal Government requires each of us to do our part. ACC and
its member companies are committed to safeguarding our
facilities, and we will continue to work with Congress and DHS
in that spirit.
Thank you.
[The statement of Mr. Durbin follows:]
Prepared Statement of Marty Durbin
Mr. Chairman, Ranking Member King, and Members of the committee, my
name is Marty Durbin, and I am Vice President, Federal Affairs for the
American Chemistry Council (ACC). Thank you for this opportunity to
again speak with you on behalf of the Council's members on the
important subject of security in the business of chemistry, a critical
sector of America's infrastructure.
My testimony today will highlight three primary points as we
present our view of the pending legislation:
1. Security is and will remain a top priority for our members.
Following 9/11, ACC members launched the mandatory Responsible
Care Security Code to enhance physical and cyber security at
their facilities and throughout their supply chain. When it
comes to security, our members are committed to a process of
continuous improvement.
2. Since passage of Federal chemical security legislation in 2006--
an effort ACC strongly supported--the Department of Homeland
Security (DHS) has moved swiftly to set meaningful, risk-based
standards for the entire industry under the Chemical Facility
Anti-Terrorism Standards (CFATS). Along with thousands of our
industry partners, ACC members continue the steady
implementation of CFATS.
3. ACC welcomes the efforts of both Congress and DHS to make CFATS
permanent, review how the program is working, and ensure DHS
has the resources required to do its job.
1. security and safety--acc's top priorities
ACC represents 140 leading companies who manufacture approximately
85 percent of basic industrial chemical production in the United
States. The business of chemistry is an important part of our Nation's
economy and employs more than 850,000 Americans, and produces 19
percent of the world's chemicals. ACC member companies manufacture
essential products critical to everyday items that keep the economy
moving and are essential to developing the greener, cleaner, more
competitive economy the Nation seeks. More than 96 percent of all
manufactured goods are directly touched by the business of chemistry.
Our members provide the chemistry that is used to produce life-saving
medications and medical devices, body armor used by our military and
law enforcement officers, light weight components for vehicles, energy-
saving insulation and windows, silicon for solar panels, wind turbine
blades and so much more.
Because of our critical role in the economy and our responsibility
to our communities, security is a priority for ACC members. In 2001,
our members adopted an aggressive security program that became the
Responsible Care Security Code (RCSC). It is part of the overall
Responsible Care initiative which is ACC's signature program of ethical
principles and management systems designed to continuously improve our
members' safety, health, environmental, and security performance.
Implementation of Responsible Care is mandatory for all members of
the American Chemistry Council, as well as for Responsible Care Partner
companies, who represent chemical transporters, distributors,
warehouses, logistics planners and others along the supply chains. In
developing the Code, we consulted closely with first responders and
government agencies at all levels. With its risk-based provisions, the
RCSC provided a model for State-level chemical security regulatory
programs in New Jersey, New York, and Maryland and was deemed
equivalent to the U.S. Coast Guard's Maritime Transportation Security
Act program.
To date, ACC members have invested $7.7 billion in security
enhancements under the RCSC which requires an assessment of security
risks; implementation of protective measures at facilities; and
evaluation and protection of products throughout a company's value
chain. Certification of the management system is conducted by
independent, credentialed third-party auditors.
The Code has won praise from Congress, senior DHS officials, and
the media. While we are understandably proud of our member's
performance under our Code, it is important to acknowledge that non-ACC
members have also taken aggressive action to enhance security at their
facilities through similar industry programs.
Our Security Code also covers the crucial area of cyber security,
to protect our highly automated operations from being attacked
electronically. Here again, the efforts of ACC members provide a model
to other industries employing similar automated systems.
We were gratified that the Obama administration has made
cybersecurity a top priority. Along with physical security, ACC members
actively addressed cybersecurity issues immediately following 9/11 and
by June 2002, they developed and began implementation of the Chemical
Sector Cyber Security Strategy. Additionally, the ACC's Chemical Sector
Cyber Security Program created a Cyber Security Guidance Document,
which not only was referenced by the Bush administration's National
Strategy to Secure Cyberspace of 2003, it is still in use today. A 2009
Program Update can be found on the Obama administration's Web site--
``Making Strides to Improve Cyber Security in the Chemical Sector.''
ACC participated in the White House 60-Day Cyber Policy Review and
our professionals work closely with the DHS National Cyber Security
Division (NCSD) in many areas including: National Cyber Storm
exercises, information sharing pilot programs, development of the
Roadmap to Control Systems Security for the Chemical Sector.
In short, security in all its dimensions is a top priority for ACC,
and our record of accomplishment and cooperation with Congress, DHS and
other agencies is well established.
2. dhs is moving aggressively to enforce regulations, and chemical
facilities are moving aggressively to comply
Last month, DHS issued its site security plan requirements and
Risk-Based Performance Standards Guidance to assist high-risk chemical
facilities in selecting and implementing the specific measures they
will adopt to meet the DHS performance standards.
This guidance makes it perfectly clear that the current DHS
chemical security rules are tough yet appropriately flexible. ``Among
other things, CFATS established eighteen Risk-Based Performance
Standards (RBPSs) that identify the areas for which a facility's
security posture will be examined, such as perimeter security, access
control, personnel surety and cyber security,'' DHS explains.
The Department adds, ``To meet the RBPSs, covered facilities are
free to choose whatever security programs or processes they deem
appropriate, so long as they achieve the requisite level of performance
in each applicable area.'' DHS inspectors will review each of these
submitted plans and only approve them when they meet the established
performance level.
For ACC members, this is exactly what a strong regulatory approach
must do--set a high bar through performance-based standards and then
hold facilities accountable. The approach taken by CFATS allows
facilities to utilize a full range of potential security enhancements--
including ``methods to reduce consequences'' or ``inherently safer''
approaches--to address potential security vulnerabilities identified by
the Department's assessment tool.
CFATS is by far the most robust, comprehensive, and demanding
chemical security regulatory program to date. It will require
significant additional investment from ACC member company facilities
deemed ``high risk.'' In fact, DHS anticipates that an additional $8
billion will be needed to implement CFATS over the first 8 years of the
program.
Yet, despite the cost and other requirements for compliance, ACC
not only called for these regulations, but at each step of the process
our member companies volunteered to pilot core program elements and
assist DHS in rapidly and successfully developing the tools needed to
implement the program and swiftly meet their regulatory deadlines.
While most regulatory programs can take years to develop, DHS, with
the support of the industry, has proposed and finalized a comprehensive
regulation, evaluated the risk of over 35,000 facilities, required
detailed risk assessments from over 7,000 of these facilities that were
deemed high-risk, and now has those high-risk sites implementing
security measures--all within the 3 years currently granted for this
program--a significant accomplishment. ACC members are committed to
security and to working with DHS and Congress to protect the Nation's
chemical infrastructure, and we are grateful DHS has developed an
effective program.
3. congress must provide dhs with all resources required to protect
chemical facilities and make cfats permanent
CFATS lays out clear, comprehensive requirements for covered
chemical facilities on an aggressive timeline, and DHS and these sites
are implementing the rule as rapidly as possible. DHS personnel have
already conducted reviews of site-specific vulnerability information
and are now assisting facilities as they develop site security plans.
DHS is in the process of visiting the regulated sites to review and
approve each of these security plans. This will include assessing how
each facility has addressed the applicable risk-based performance
standards for facilities in its risk tier--a complex, site-specific,
evaluation.
While DHS has gotten off to a solid start, there is a crucial need
for Congress to support DHS' budget requests and make CFATS permanent.
DHS staff has demonstrated outstanding commitment and effort to date,
so we urge Congress to provide the agency with the necessary resources
to handle the workload and to ensure that chemical facility security is
properly implemented in a timely manner.
4. acc comments on ``the chemical facility antiterrorism act of 2009''
The legislation drafted by Chairman Thompson and the committee
represents an important first step to establishing permanent chemical
facility security regulations. ACC clearly supports that goal. We're
pleased to see the draft bill reflect many of the security measures
that will be implemented under CFATS, and we appreciate the efforts
made to minimize duplication of effort by facilities that have already
acted or will take further action under the program.
However, I'd like to highlight a few provisions we've discussed
with the committee where we continue to have questions and concerns.
For example, we believe the provision that would give DHS authority to
mandate process changes is unnecessary. Through its use of risk-based
performance standards, CFATS essentially drives each facility to
consider all possible risk reduction options--including ``methods to
reduce consequences'' or ``inherently safer'' approaches when
developing a site security plan. We believe that Congress should not
abandon a strategy to enhance security that employs performance-based
security standards to avoid the potential for shifting risk, and allows
DHS to unleash the ingenuity, expertise, and resources of the chemical
sector. The reason this occurs is that the highest risk facilities
subject to CFATS face significant cost to implement the stringent
requirements and thus have a strong incentive to implement enhancements
that could move the facility to a lower-risk tier, or potentially even
move it out of the program. This is a substantial incentive to reduce
regulatory requirements.
A fair amount of discussion around inherently safer approaches and
chemical security has tended to focus on the consideration of chemical
substitution. It is important to remember the inherent value or benefit
of chemicals like chlorine to modern society. For example, there are no
chlorine-free processes that produce silicon of the purity required for
products such as integrated circuits. Nor is there an economically
viable chlorine-free route to the production of titanium. In these
instances, you cannot simply eliminate potential security risks, you
must work to manage or mitigate them.
In addition, we feel the provision that provides for ``Private
Right of Action'' is counterproductive to the ultimate success of
CFATS. Unlike environmental statutes, CFATS is not a series of
prescriptive statutory measures with which compliance is mandatory,
like emission standards or discharge limitations, and therefore it is
much more difficult for an outsider--whether it be a citizen or judge--
to ascertain if a standard is being met or to decide what needs to be
done to address an alleged deficiency.
In its earliest stages, one of the goals of the program is to have
more secure sites through a collaborative effort between DHS and the
regulated community. Creating a litigious environment will most
certainly undermine such an effort. If Congress truly believes that DHS
will have a problem with running the program, it should ensure that it
has staff and resources to do the job and allow DHS to have a tight
grip on compliance.
in conclusion
We agree with Congress that our shared priority is to enhance
security at sites Nation-wide. CFATS is already driving over 7,000
high-risk facilities toward that goal as we speak. We ask that Congress
provide DHS the support necessary to implement the current program.
The crucial partnership between our industry and the Federal
Government requires each of us to do our part. ACC and its member
companies are committed to safeguarding America's chemical facilities,
and will continue to work with Congress and DHS in that spirit.
Mr. Pascrell. Thank you, Mr. Durbin.
Dr. Langerman.
STATEMENT OF NEAL LANGERMAN, PRINCIPLE SCIENTIST AND CHIEF
EXECUTIVE OFFICER, ADVANCED CHEMICAL SAFETY, INC.
Mr. Langerman. Thank you, Chairman Pascrell, Ranking
Member, Members of the committee.
I am Neal Langerman. I am a Ph.D. chemist. I have 30 years
of experience as a consultant helping industrial clients handle
chemical safety and regulatory issues.
I have worked on these issues for 20 years through my
professional organization, the American Chemical Society, a
scientific and educational organization of 154,000 chemists and
chemical engineers.
I would like to share the society's policy recommendations
on the use of inherently safer technologies and on the
regulation of research labs and give an example to help put
these recommendations in context.
Inherently safer technologies are vital to the goals of
homeland security to secure the Nation's chemical
infrastructure and safeguard against the consequences of
terrorist attack.
Achieving these goals requires research, development,
technology investments. In particular, ACS has long advocated
Federal support of green chemistry research and development as
a means to develop safer technologies.
ACS has also been concerned about the role that regulations
play in slowing down innovation, particularly in laboratory
settings, when regulations intended for industrial settings are
inappropriately applied. For example, the proposed CFATS rule
under the 2006 law unintentionally captured most research and
academic laboratories into the top screen process.
The proposed legislation adds the requirement to assess
inherent safety options at covered facilities. It should be
noted that changing processes to eliminate inherent risk is
only one of many approaches to achieve risk reduction, and its
application is complex and nuanced. Professionals in the real-
world context need to apply IST principles and processes where
appropriate.
This can perhaps best be appreciated through a recently
published example. In order to reduce the quantity of nitrogen
oxide air pollutants emitted from a boiler, a design team chose
an ammonia-based catalytic reducer to convert nitrogen oxide to
nitrogen and water.
The initial design proposed bringing liquid ammonia to the
reactor through a 600-foot pipe. Ammonia is toxic if inhaled,
and inherent safety strategies suggested that a less hazardous
solution of ammonia and water, also known as ammonium
hydroxide, be substituted.
As the formal safety review proceeded, it was determined
that ammonium hydroxide option had the potential to release
7,900 pounds of ammonia, while the liquid ammonia process could
only release 530 pounds. Further, the liquid ammonia process
provided better overall operating efficiency. The design team
ultimately concluded the original plan was the safer option.
This example illustrates several issues for this committee
to consider. Existing internal process safety engineering
programs and the existing regulatory structure provides strong
incentives to examine and implement the safest possible
options.
The review of the design options in this example was
conducted as part of the company's process hazardous analysis.
It met the requirements of the OSHA standard but was not driven
by them.
The chemical enterprise has considerable experience
advancing in inherent safety, training chemists and engineers
with the concept, incorporating it into internal process safety
management programs. Ideally, an IST approach is integrated
into the original designs of a process that can also be
achieved when experts familiar with the plant modify existing
technology.
This distinction must be noted, as much of the proposed
legislation's emphasis is on existing facilities, some
constructed several decades ago. Great care must be taken to
ensure that the new processes do not create unrecognized
health, safety, or environmental impacts. Careful application
of IST options requires addressing multiple technical issues,
including the volume and hazard of the materials and the
frequency, consequence and severity of potential releases.
Considerable effort must also be expended to develop, scale
up, test, and install new, safer processes. ACS believes that
the most effective steps to further infrastructure protection
will likely include incentives such as grants, tax incentives,
preferential government purchasing, and award programs.
The law must provide sufficient flexibility to both DHS and
the regulated community to enhance security in an efficient and
efficient manner. I thank you for the opportunity to share
these thoughts today, and I look forward to answering your
questions.
[The statement of Mr. Langerman follows:]
Prepared Statement of Neal Langerman
June 16, 2009
Good morning. My name is Dr. Neal Langerman. I am a Ph.D. chemist
and I have more than 30 years of experience in the field of chemical
safety. I helped establish and run my first consulting firm, Chemical
Safety Associates, in 1980 and am now the Principal Scientist and CEO
of Advanced Chemical Safety, Inc., which I founded and have led since
1997. In that role, I provide training to industrial clients in all
areas related to chemical management and consulting on chemical,
safety, and regulatory issues.
I have authored numerous manuals, peer-reviewed publications, and
reports, and led seminars, workshops, and meeting symposia on topics
related to chemical safety, and serve on the editorial board of the
Journal of Chemical Health & Safety.
I have also worked on these issues for 20 years through my
professional organization, the American Chemical Society (ACS). I am a
past chair and now the treasurer of ACS's Division of Chemical Health
and Safety and serve as a consultant to the ACS Committee on Chemical
Safety.
The American Chemical Society is a scientific society of chemists
and chemical engineers. It was created in 1876 and today is the world's
largest scientific society with a membership of more than 154,000. It
also has the distinction of having a national charter of incorporation
passed by Congress in 1937 and signed by President Franklin Delano
Roosevelt.
I'm here to share some of the thoughts ACS has developed on the use
of Inherently Safer Technologies \1\ and on the regulation of research
labs.\2\
---------------------------------------------------------------------------
\1\ The official American Chemical Society Position Statement on
Inherently Safer Technology for Chemical and Related Industrial Process
Operations is presented in Attachment 1.
\2\ The official American Chemical Society Position Statement on
Regulation of Laboratory Waste is presented in Attachment 2.
---------------------------------------------------------------------------
Inherently safer industrial technologies for the production,
transport, and use of industrial and agricultural chemicals,
pharmaceuticals, and both commodity and advanced materials is vital to
homeland security, including the protection of the public and of
critical infrastructure. Achieving these goals requires research,
development, and technology investments to help secure the Nation's
chemical infrastructure and safeguard against the consequences of a
terrorist attack.
For many years, ACS has encouraged the Federal Government to take a
leading role in developing technology. In particular, ACS has long
advocated Federal support of green chemistry research & development as
a means to develop safer technologies. ACS has also been concerned
about the role that regulations play in slowing down innovation,
particularly in laboratory settings, when regulations intended for
industrial settings are inappropriately applied.
While many industrial processes and sectors use various definitions
of inherently safer technologies, the term collectively captures a
group of processes and technologies that improve safety by greatly
reducing or eliminating hazards through a permanent and inseparable
element of the process. Thus, safety is built into the process from the
outset, not added on, and hazards are reduced or eliminated, not simply
controlled. This is not a new or recent idea. In fact, industries have
applied this concept for many decades.
Many organizations involved in the chemical, pharmaceutical, and
related process industries have strongly advocated and advanced
inherent safety, supporting the work of professional societies and
academic institutions, utilizing the concept in training chemists and
engineers, and incorporating it into internal process safety management
programs. Inherent safety is a well recognized engineering process
concept that is based on the belief that a hazard can be moderated or
eliminated, thereby reducing risk and possibly removing the risk
altogether.
There is a rich literature addressing the technical aspects of IST.
The publications of Dennis Hendershot,\3\ for example, discuss methods
of implementation as well as limitations and circumstances wherein IST
may not produce the safest design. Many of the publications of the
Center for Chemical Process Safety, such as ``Inherently Safer Chemical
Processes: A Life Cycle Approach, 2nd Edition'' discuss design and
operations considerations for reducing the risks associated with
chemical processes. These publications and many others show that
inherently safer systems and technologies can make adverse events less
likely and (when an event occurs) less severe. They also show that
other important factors must be taken into consideration.
---------------------------------------------------------------------------
\3\ Hendershot, D.C. (2008). ``Incorporating Inherent Safety into
Process Hazard Studies.'' 1st Latin American Process Safety Conference
and Exhibition, May 27-29, 2008, Buenos Aires, Argentina.
Amyotte, P.R., A.U. Goraya, D.C. Hendershot, and F.I. Khan (2007).
``Incorporation of Inherent Safety Principles in Process Safety
Management.'' Process Safety Progress 26, 4 (December), 333-346.
Hendershot, D.C. (2007). ``Rethink Your Approach to Process
Safety.'' Chemical Processing 70, 9 (September), 36-40.
Hendershot, D.C. (2006). ``An Overview of Inherently Safer
Design.'' Process Safety Progress 25, 2 (June), 98-107.
Hendershot, D.C., J.A. Sussman, G.E. Winkler, and G.L. Dill (2006).
``Implementing Inherently Safer Design in an Existing Plant.'' Process
Safety Progress 25, 1 (March), 52-57.
Hendershot, D.C., and J.P. Gupta (2004). ``Inherently Safer
Design.'' Lees' Loss Prevention in the Process Industries, 3rd Edition.
ed. M.S. Mannan, 32/1-32/24. Oxford, UK: Butterworth-Heinemann.
Hendershot, D.C. (2004). ``Engineering Design for Safety:
Inherently Safer Design.'' Annual Ramazzini Days 2004, International
Scientific Conference, Preventing Chemical Accidents: Lessons Learned
Since the Bhopal Disaster in 1984, October 28-29, 2004, Session IV:
Advances in Preparation. Carpi, Italy: Collegium Ramazzini.
Hendershot, D.C. (2004). ``Inherently Safer Design.'' Accident
Precursor Analysis and Management: Reducing Technological Risk Through
Diligence, ed. J.R. Phimister, V.M. Bier, and H.C. Kunreuther, 103-117.
Washington, DC: The National Academies Press.
---------------------------------------------------------------------------
IST may include engineering changes, material substitution, or
quantity reduction, and is only one of many approaches that may be
employed to achieve risk reduction. A successful approach to changing
technology in this area comes through an application of system safety
analysis that extends from the top to the bottom of the organization.
Designing safer systems also includes safer practices and an
organizational prejudice toward safety.
Ideally, an IST approach is integrated into the original design and
engineering of a process to lower operational risk. This is best done
at the initial conceptual design stage, but can also be achieved by
modifying existing technology. The distinction must be noted, as much
of the emphasis of the Chemical Facility Antiterrorism Act of 2009 is
aimed at existing facilities--some constructed several decades ago.
The chemical enterprise has considerable experience in developing
and implementing inherently safer systems and welcomes creative
approaches for encouraging additional IST research and development.
Several recent industry association security codes require member
companies to conduct vulnerability assessments of their facilities as a
condition of continued membership. These codes recommend consideration
of inherently safer and more secure technologies, especially during
facility design, redesign, or modernization.
The proposed legislation adds a strong requirement for implementing
something like Inherently Safer Technologies at facilities covered
under the Chemical Facility Antiterrorism Act. However, application of
IST is a complex and nuanced process. Professionals, in a real-world
context, need to apply these principles and processes where
appropriate. This can perhaps be appreciated through some examples.
inherently safer design
It is generally thought that designing a unit to achieve the
maximum inherent safety is straightforward. The design team is
typically guided by the strategies of ``minimize'', ``substitute'',
``moderate'', and ``simplify'' and chooses the design which provides
the best balance of process safety with production efficiency. This
approach seems reasonable when one considers the meaning of the four
terms. ``Minimize'' refers to reducing the quantities of hazardous
substances to the lowest practical amount, consistent with production
requirements. ``Substitute'' refers to using a less hazardous material.
``Moderate'' refers to using safer conditions, such as lower
temperature or pressure. And, ``simplify'' refers to designing the
process to reduce the potential for human and operating errors and
making the unit by design more tolerant of upset conditions.
A case study recently published in the peer-reviewed Journal of
Hazardous Materials illustrated the complexity of achieving a
reasonable balance of safety and efficiency in its discussion \4\ of
modifications to an existing boiler.
---------------------------------------------------------------------------
\4\ Study, K. (2007), ``A real-life example of choosing an
inherently safer process option'', J. Hazardous Materials, 142, 771-
775.
---------------------------------------------------------------------------
The facility was working to meet new environmental regulations that
required the reduction of nitrogen oxides (NOX) air
pollutants emitted from the boiler. A design team chose the technology
to clean-up the emissions: a reactor that used ammonia gas to reduce
the NOX. The initial design proposed bringing liquid ammonia
approximately 600 ft through a 2-inch pipe to a vaporizer which would
convert the liquid ammonia to its gaseous form. The gas would then be
injected into the reactor, reducing the NOX into simple
nitrogen and water vapor. Due to process safety concerns related to
piping the liquid ammonia over 600 feet, the design was reviewed using
the strategies of inherently safer design/technologies.
``Substitute'' and ``moderate'' strategies were investigated to
lower the overall risk. The design team proposed to replace the liquid
ammonia, which is toxic if inhaled, with a less hazardous solution of
ammonium hydroxide in water.
However, as the formal hazard and safety review proceeded, it was
determined that the ammonium hydroxide in water option had the
potential to release 7,900 lbs of ammonia while the liquid ammonia
process would only release 530 lbs. Further, the liquid ammonia process
provided better overall operating efficiency. The design team
ultimately selected liquid ammonia as the lower risk, inherently safer
process, even though the initial consideration suggested this was not
the ``safer'' alternative.
This example illustrates that deciding among several designs
requires evaluating a variety of metrics, including volume of hazardous
materials, area affected by and frequencies of releases, consequence
and severity of releases, and the life-cycle costs. This particular
review of the design options for inherently safer characteristics was
conducted as part of the company's process hazard analysis. It met
``management of change'' requirements of OSHA's Process Safety
Management standard, in which ``contemplated changes to a process must
be evaluated to fully assess their impact on employee safety and
health.''\5\ However, it was not driven by the OSHA requirements.
---------------------------------------------------------------------------
\5\ ``Process Safety Management.'' U.S. Department of Labor,
Occupational Safety and Health Administration. OSHA 3132. 2000, 22.
---------------------------------------------------------------------------
minimization of hazardous materials \6\
---------------------------------------------------------------------------
\6\ Hendershot, D.C., J.A. Sussman, G.E. Winkler, and G.L. Dill
(2006). ``Implementing Inherently Safer Design in an Existing Plant.''
Process Safety Progress 25, 1 (March), 52-57.
---------------------------------------------------------------------------
While my last example illustrated the complexity of decisions about
inherent safety, the next example should showcase its benefits.
A facility brought in a design team to study the replacement of a
large aging bromine gas storage tank with smaller bromine cylinders.
The design team was instructed to evaluate the overall hazards
associated with bulk storage versus the smaller cylinders, which
require increased frequency of transportation. After review, the design
team recommended that the cylinders option be implemented. The existing
tank had a capacity of 100 cubic feet (19,000 lbs) and was refilled
once every couple of months from a 15,000-lb highway tanker. The
transfer from the tanker to the storage tank was done outside, using
low pressure nitrogen to drive the liquid. The bulk tank was inside a
containment building, protected with a caustic scrubber.
The proposed replacement used the ``minimize'' strategy of IST. Two
16-cubic-foot (3,100-lb) cylinders of bromine, the size of helium
cylinders used to fill balloons in grocery stores and parties, would
replace the 1,000 cubic foot tank. This would reduce the overall
quantity of bromine on-site by 67%. It would require the truck to
deliver a single 16-cubic-foot cylinder about once per month. In
addition, the quantity change resulted in the facility no longer being
regulated under the U.S. EPA Risk Management Program.
The design team performed both ``consequence analysis'' and a
``quantitative risk assessment''. The results of these studies clearly
supported the reduced risk approach, and the decision was made to
switch to the smaller cylinders.
unintended consequences
Finally, I want to offer a word of caution about unintended
consequences of some of the measures that may be considered in these
discussions.
The draft wording of the Chemical Facility Anti-Terrorism Standards
(CFATS) regulations under the 2006 law unintentionally captured most
research and academic laboratories into the Top Screen process. Had
this wording remained in force, much effort would have been expended by
both DHS and the research community which would not have enhanced
security. In cooperation with a number of organizations, including ACS,
a task force worked with DHS to modify the Appendix A list and thereby
reduce the number of research institutions which were required to file
a Top Screen report.
ACS endorses regulations targeted specifically to research
laboratories in academia, Government, and industry, rather than
regulations that accidentally capture labs in rules developed for
industrial settings. In applying regulations designed to address large-
scale industrial operations to smaller laboratories, disproportionate
environmental regulatory burdens are inappropriately placed on many
academic, commercial, and Government laboratories. By applying an
industrial regulatory scheme to laboratories, unintended, ineffective,
and inappropriate burdens are placed on these facilities, thus slowing
U.S. innovation.
Unfortunately, substantive issues remain unresolved. For instance,
the screening threshold for nitric acid, a very common laboratory
reagent, requires that a campus with fewer than 50 bottles of the acid
distributed among more than 1,000 teaching and research laboratories
scattered across a campus must file a Top Screen report, and possibly
be required to implement the same security vulnerability reviews and
procedures as that of a major chemical facility. The security
vulnerability tools and procedures applicable to a chemical
manufacturing facility are not well-suited to an academic campus. A
performance model similar to OSHA's ``Laboratory Standard'' would be
better.
These illustrations are only a few examples among many which
demonstrate several issues for this committee to consider. First,
existing process safety engineering programs, performed under both
regulatory and corporate umbrellas, are adequate to invoke and
implement an IST approach when appropriate. Second, the implementation
of one or more IST strategies at a particular process unit may or may
not result in enhanced security. The only justification for
implementing a technology must be in solid engineering and science.
Third, the law must provide sufficient flexibility to both the DHS and
the regulated community to enhance security in an efficient and
effective manner.
ACS has consistently supported research and development initiatives
that promote advancements in inherent safety and risk reduction. For
example, ACS is a strong supporter of the Green Chemistry Research and
Development Act, which has been passed by the House in the last three
Congresses and is expected to be considered in the Senate this year.
The Act seeks to promote green chemistry by authorizing a coordinated
green chemistry research and development program at the National
Science Foundation, the Department of Energy, and other agencies. Such
a program would enhance green engineering, which is the practical
application of green chemistry to develop simpler, more cost efficient,
and generally safer and environmentally benign processes. It also
recognizes that the elimination of all hazardous industrial materials
and processes is not currently feasible, but that methods to minimize
the risks associated with their use can be employed.
policy recommendations
ACS supports increased attention on safer technologies and
believes the focus should be on a broad portfolio of timely and
effective methods of reducing risk and mitigating potential
damage.
The portfolio of risk reduction methods and tools should include
IST and other inherent safety techniques. However, when risk
analyses require replacing or significantly modifying current
process technologies, considerable effort must be expended to
develop, scale-up, test, and install new, safer processes.
Great care must be taken to ensure that the new processes do
not result in inferior products or create unrecognized health,
safety, or environmental impacts.
While scientists and engineers have made great strides in
understanding the impacts of industrial processes and products
over the past several decades, there is still no guaranteed
formula for developing inherently safer production processes.
In the future, chemical, and related industries will benefit
greatly from increased educational and professional development
and training of scientists and engineers in the disciplines of
green chemistry and engineering, risk analysis, and industrial
ecology.
ACS supports involvement of Federal agencies in researching
and facilitating the advancement of safer technologies.
Several Federal agencies, including but not limited to the
Environmental Protection Agency (EPA), Department of Homeland
Security (DHS), the Occupational Safety and Health
Administration (OSHA), actively work with the manufacturing
sector to promote safer and more secure facilities. These
agencies, through their collaborations and oversight of the
manufacturing sector, have a keen understanding of private-
sector efforts being developed and implemented to further the
advancement of safer and more secure facilities. ACS believes
that these agencies should support and encourage research and
development--both in the public and private sector--to foster
cost-effective, inherently safer chemistries and chemical
processes. ACS also believes that these agencies, in
collaboration with other appropriate agencies should evaluate,
and where appropriate, make recommendations on potential
incentives and disincentives that would best encourage the
private sector to advance continued improvement in their safety
and security performance. The National Research Council has
made similar recommendations,\7\ stating, among other
recommendations, that:
---------------------------------------------------------------------------
\7\ ``Terrorism and the Chemical Infrastructure: Protecting People
and Reducing Vulnerabilities'', (2006), The National Academic Press.
---------------------------------------------------------------------------
``DHS should support research and development to foster
cost effective, inherently safer chemistries and chemical
processes,'' and;
``DHS should support research to determine the
combinations of incentives and disincentives that would
best encourage the private sector to invest in safety and
security. This will require research to identify the nature
of the interdependencies and weak links in the supply chain
and consideration of public-private partnerships to
encourage voluntary adoption of protective measures by the
weakest links in the chain.''
In the long term, both the public and industry will benefit from
the discovery of economically viable, inherently safer technologies.
The benefits to the public of safer technology are obvious. For
industry, moving towards a safer industrial model will lead to lower
insurance and risk costs while ensuring the safety of customers and
employees and protecting investors from excessive risk. ACS also
supports examination of the potential of public-private partnerships to
encourage voluntary adoption of protective measures.
conclusion
In conclusion, the existing regulatory structure, under the U.S.
EPA Risk Management Program and the U.S. OSHA Process Safety Management
standard, provide strong incentives to examine and implement IST. These
programs work in natural conjunction with Homeland Security's mandate
to enhance infrastructure security. The provisions of the Chemical
Facility Antiterrorism Act of 2006 provide a sufficient legislative
framework for this purpose.
The most effective steps to further infrastructure protections will
likely include incentives, rather than new regulations. Tools that the
Government could and should invoke to this end include the following:
Grants in support of research by universities, industry, and
Government to develop inherently safer and environmentally
benign processes and technologies, renewable energy, fuels, and
chemical feedstocks, and other research needs.
Tax incentives that encourage private investment in research
and development of inherently safer technologies and processes.
Tax incentives and patent subsidies that allow safer
technologies to compete in the market, particularly when their
up-front costs and risks are higher than for conventional
technologies.
Guaranteed preferential Government purchasing of safer and
more sustainable technologies.
Award programs, such as the Presidential Green Chemistry
Challenge Awards, that recognize businesses that incorporate
sustainability and safety principles into their overall goals
and objectives. Such recognition will help foster replication
by others in industry.
The ACS believes that support for research guided by the principles
of sustainability, green chemistry, and green engineering, combined
with industrial incentives for the adoption of safer technologies and
new regulatory strategies that promote safer products and processes,
will be instrumental in meeting the challenges of enhancing national
and homeland security, protecting human health and the environment, and
strengthening the economy.
I would like to thank the committee for the opportunity to share
these thoughts here today, and I am ready to answer any questions
committee members may have. Thank you.
Attachment 1
inherently safer technology for chemical and related industrial process
operations
acs position
Inherently safer industrial technologies for the production,
transport, and use of industrial and agricultural chemicals,
pharmaceuticals, and both commodity and advanced materials is a vital
concept that is currently the focus of significant activity in a wide
range of forums in the industrial, academic, and governmental arenas.
While many industrial processes and sectors use various definitions of
this term, collectively, they capture a group of processes and
technologies that improve safety by greatly reducing or eliminating
hazards through a permanent and inseparable element of the process.
Thus, safety is built into the process, not added on, and hazards are
reduced or eliminated, not simply controlled.
Where feasible, inherently safer process technology can greatly
reduce potential threats to public and worker safety, health, the
environment and plant and public infrastructure from a variety of
scenarios that might result in the release--fugitive or otherwise--of
hazardous and toxic materials.
Many organizations involved in the chemical, pharmaceutical, and
related process industries have strongly advocated and advanced
inherent safety, supporting the work of professional societies and
academic institutions, utilizing the concept in training chemists and
engineers, and incorporating it into internal process safety management
programs. Inherent safety is a well-recognized engineering process
concept that is based on the belief that a hazard can be moderated or
eliminated, thereby reducing risk and possibly removing the risk
altogether. Certainly an inherently safer system or technology can make
hazardous events less likely and less intense if there is an accident.
Change in ``technology'' is one aspect of inherent safety. The term
inherently safer technology (IST) has received considerable attention
in recent years, but it is only one of many approaches that may be
employed to achieve risk reduction. A successful approach to changing
technology in this area will come about through a holistic application
of safety analysis that extends from the top to the bottom of the
organization, designing safer systems which include safer practices and
an organizational prejudice toward safety.
ACS has consistently supported research and development initiatives
that promote advancements in inherent safety and risk reduction. For
example, ACS is a strong supporter of the Green Chemistry Research and
Development Act, which is now being considered by Congress. The Act
seeks to promote green chemistry by authorizing a coordinated green
chemistry research and development program at the National Science
Foundation, the Department of Energy, and other agencies. Such a
program would enhance green engineering, which is the practical
application of green chemistry to develop simpler, more cost-efficient,
and generally safer and environmentally benign processes. It also
recognizes that the elimination of all hazardous industrial materials
and processes is not currently feasible, but that methods to minimize
the risks associated with their use can be employed.
The Federal Government has made homeland security, including the
protection of the public and critical infrastructure, a priority. To
achieve that goal, it is necessary to make research, development, and
technology investments that would help secure the Nation's chemical
infrastructure and safeguard against the consequences of a terrorist
attack.
The chemical enterprise has considerable experience in developing
and implementing inherently safer systems and should welcome creative
approaches for encouraging additional IST research and development.
Several recent industry association security codes require member
companies to conduct vulnerability assessments of their facilities.
These codes recommend consideration of inherently safer and more secure
technologies, especially during facility design or redesign.
action requests
The American Chemical Society (ACS) supports increased
attention on safer technologies and believes the focus should
be on a broad portfolio of timely and effective methods of
reducing risk and mitigating potential damage.
The portfolio of risk reduction methods and tools should include
IST and other inherent safety techniques. However, when risk
analyses require replacing or significantly modifying current
process technologies, considerable effort must be expended to
develop, scale-up, test and install new, safer processes. Great
care must be taken to ensure that the new processes do not
result in inferior products or create unrecognized health,
safety, or environmental impacts.
While scientists and engineers have made great strides in
understanding the impacts of industrial processes and products
over the past several decades, there is still no guaranteed
formula for developing inherently safer production processes.
In the future, chemical and related industries will benefit
greatly from increased educational and professional development
and training of scientists and engineers in the disciplines of
green chemistry and engineering, risk analysis, and industrial
ecology.
ACS supports involvement of Federal agencies in researching
and facilitating the advancement of safer technologies.
Several Federal agencies, including but not limited to the
Environmental Protection Agency (EPA), Department of Homeland
Security (DHS), the Occupational Safety and Health
Administration (OSHA), actively work with the manufacturing
sector to promote safer and more secure facilities. These
agencies, through their collaborations and oversight of the
manufacturing sector, have a keen understanding of private-
sector efforts being developed and implemented to further the
advancement of safer and more secure facilities. ACS believes
that these agencies should support and encourage research and
development--both in the public and private sector--to foster
cost-effective, inherently safer chemistries and chemical
processes. ACS also believes that these agencies, in
collaboration with other appropriate agencies should evaluate,
and where appropriate, make recommendations on potential
incentives and disincentives that would best encourage the
private sector to advance continued improvement in their safety
and security performance. Similar actions have also recently
been recommended by the National Research Council.\1\
---------------------------------------------------------------------------
\1\ Terrorism and the Chemical Infrastructure: Protecting People
and Reducing Vulnerabilities, The National Academies Press, 2006.
---------------------------------------------------------------------------
In the long term, both the public and industry will benefit from
the discovery of economically viable, inherently safer
technologies. The benefits to the public of safer technology
are obvious. For industry, moving towards a safer industrial
model will lead to lower insurance and risk costs while
ensuring the safety of customers and employees and protecting
investors from excessive risk. ACS also supports examination of
the potential of public-private partnerships to encourage
voluntary adoption of protective measures.
Attachment 2--Public Policy Statement 2006-2009
regulation of laboratory waste
acs position
In applying regulations designed to address large-scale industrial
operations to laboratories, disproportionate environmental regulatory
burdens are inappropriately placed on many academic, commercial, and
Government laboratories. Research, development, instructional, and
service laboratories generate a broad range of small quantities of
hazardous wastes, but are forced to individually manage each type of
waste with the same rigor applied to those who create large amounts of
relatively few wastes. By applying an industrial regulatory scheme to
laboratories, unintended, ineffective, and inappropriate burdens are
placed on these facilities.
The American Chemical Society is committed to environmental,
health, and safety in all of the operations of the chemical enterprise,
but excessive regulation of laboratories hampers their efficiency and
effectiveness and slows the progress of science and technology. To this
end, the American Chemical Society makes the following recommendations.
Consistent Interpretation of Regulations by State and Federal Agencies
The U.S. regulatory system involves multiple Federal and State
regulators. This often leads to inconsistent interpretations and makes
development of ``best practices'' for waste management treatment
difficult. State regulations must be at least as stringent as related
Federal ones. For consistency, when a State regulation is identical to
the Federal, that regulation should be interpreted and enforced in an
identical manner.
ACS encourages consistent interpretation and enforcement of
regulations at the State and Federal levels.
Simplification of Paperwork
In the current regulatory system, laboratories are burdened by
duplicative, unnecessary, and ineffective paperwork. As an example,
laboratories are required to notify waste disposal facilities of EPA's
disposal requirements for each waste. This requirement for land
disposal restriction notification is duplicative because these disposal
facilities already know how they are required to handle the wastes and
any information relevant to health and safety issues is transmitted by
the laboratories on other required forms. The burden of this useless
form is almost exclusively placed on laboratories since it must only be
completed once for each type of waste. Major industrial facilities
disposing of large amounts of routine waste complete the form only at
the inception of a new process, but laboratories have to treat most
wastes as unique and fill out the paperwork for each shipment
ACS recommends the elimination of unnecessary paperwork and
encourages the use of more efficient transfer of information
through means such as electronic systems.
Hazardous Waste Identification
Identifying regulated hazardous waste is a challenging task in the
laboratory setting. Currently, some jurisdictions effectively require
that research scientists perform these tasks. This can lead to
inconsistency in making these determinations. EPA and State agencies
should issue policies that clarify that other qualified individuals are
empowered to make these waste determinations based on appropriate
information supplied by the laboratory scientists.
ACS recommends that regulatory interpretations and
implementation be established that clearly allow scientists and
other qualified personnel to work together to identify and
minimize hazardous waste generated in laboratories. This
proposal could provide the basis for solving many of the
problems discussed herein.
Treatment of Hazardous Waste in the Laboratory Without A Permit
Current Environmental Protection Agency (EPA) and State regulations
have been interpreted to require costly permits or burdensome
conditions for the treatment of even very small quantities of waste in
a laboratory. Allowing laboratories the ability to treat limited
quantities on-site would minimize waste and reduce costs.
ACS recommends that legislation, rulemaking, and guidance
allow qualified laboratory personnel to treat small quantities
of hazardous waste without a permit.
One EPA ID Number Per Campus
EPA requirements have created a situation where hazardous waste
generators on the same campus have an identification (ID) number for
each city block. Institutions with many laboratory buildings separated
by roads are required to obtain different site ID numbers for different
parts of their property. This inhibits centralized hazardous waste
management and requires redundant record-keeping.
ACS recommends that the definition of ``on-site'' be
modified to allow generators with multiple laboratory buildings
on contiguous properties to have a single EPA ID number.
Waste Accumulation Times for Efficiency and Pollution Prevention
Unlike most other generators, laboratories generate very small
quantities of many types of waste. Multiple shipments of small
quantities are expensive. Accumulation of larger waste quantities
enables cost-effective pollution prevention. EPA has set precedents by
allowing flexibility for longer accumulation times of 180 to 270 days
to achieve specific policy goals.
ACS recommends that laboratories be allowed to accumulate
hazardous wastes for longer periods in order to allow more
efficient waste shipments and cost-effective pollution
prevention.
Redundant Regulation of Mixed Waste
Laboratories in academic, medical, and pharmaceutical research
facilities generate mixed wastes that contain both low-level
radioactive and hazardous chemical components. EPA and the Nuclear
Regulatory Commission (NRC) have ended the unnecessary and inefficient
dual regulation of most mixed wastes from laboratories. However, common
radiation-containing laboratory solvents that could be ignited are
still redundantly regulated for both radioactive and flammable
components in spite of the fact they could be safely and efficiently
managed under a single scheme.
ACS proposes that the NRC and EPA avoid the unnecessary and
inefficient dual regulation of laboratory mixed waste.
Specifically, ACS proposes that NRC and EPA modify their rules
to allow disposal of laboratory solvents with negligible levels
of radioactivity under a single scheme.
Mr. Pascrell. Mr. Jeppeson.
STATEMENT OF MARTIN JEPPESON, DIRECTOR OF REGULATORY AFFAIRS,
CALIFORNIA AMMONIA COMPANY
Mr. Jeppeson. Thank you, Mr. Chairman, Ranking Member, and
distinguished Members of the committee.
I am Martin Jeppeson, director of regulatory affairs for
the California Ammonia Company, CALAMCO, and I have worked
there since 1996. Prior to that, I served in the United States
Army, and I retired as a lieutenant colonel in the special
forces branch.
Thank you all for the opportunity to provide you with my
views and concerns regarding the Chemical Facility
Antiterrorism Act of 2009.
CALAMCO is a member of the Fertilizer Institute, and we are
a nonprofit farmer cooperative made up of approximately 1,200
growers and fertilizer dealers throughout California.
We specialize in providing nitrogen fertilizers, such as
anhydrous ammonia, ammonium hydroxide, and liquid ammonium
nitrate to these agricultural entities. We are only one of two
ammonia terminals in the State of California and account for
approximately 80 percent of all the ammonia used in California.
Fertilizer is essential to food production, and it accounts
for 40 percent to 60 percent of the food--of the percent of the
world's food supply. Because food production depletes the
soil's nutrients, farmers really rely on fertilizer to keep the
soil productive harvest after harvest.
DHS's Chemical Facilities Anti-Terrorism Standards, CFATS,
regulates facilities that possess several fertilizers,
including anhydrous ammonia, ammonium hydroxide, ammonium
nitrate, potassium nitrate, and sodium nitrate, if threshold
quantities are exceeded.
The result: Every aspect of the fertilizer industry falls
under the DHS regulation, manufacturer, wholesaler, retailer,
and potentially the farmer.
This morning, I would like to focus my comments on
inherently safer technology. We believe the requirement for all
regulated facilities to assess the use of product substitution
as proposed could have a devastating impact on American
agriculture.
The chemistry behind the production of nitrogen fertilizer
limits the manufacturer of options with regards to IST.
Anhydrous ammonia must be produced before other nitrogen
fertilizers can be produced. As a result, there is no IST which
could eliminate anhydrous ammonia at the manufacturing level.
The applicability of these provisions to an agricultural
retail operation is different, however. Their options are
similar to those available to CALAMCO: Either switch to a safer
product or reduce the quantity on site. Both options
potentially remove several CFATS-regulated products from the
farmer's agronomic toolbox.
Only with the broad understanding and analysis of the
fertilizer supply chain can we conclude that it is not
economically feasible to switch to alternative products. An
individual retailer may determine that it is feasible to switch
from anhydrous ammonia or ammonium nitrate to an unregulated
product such as urea, but it is unreasonable to assume that
each regulated entity can adequately analyze the impact of
their IST decisions on the rest of the fertilizer supply chain.
Because of that, we believe it is the responsibility of
this committee to understand and address the impact of these
potential requirements.
As the Center for American Progress stated in its report
entitled ``Chemical Security 101,'' what you don't have can't
leak or be blown up by terrorists. Similarly, in agriculture,
what you don't have can't help you grow our Nation's food
supply.
I am also concerned about the impact of an IST assessment
on smaller businesses. It is unknown how the process described
in Section 2111 will be implemented. We anticipate that the
team analyzing ISTs would require a chemical engineer, a
process safety engineer, and a legal and risk-management
perspective.
While a manufacturing facility may have these individuals
on staff, a facility such as CALAMCO, that only employs 34
individuals, or a small agricultural retailer will not. We
anticipate that the cost to perform such an assessment will be
substantial.
Due to strong regulation by the Coast Guard, facilities
regulated under MTSA were exempted by statute from CFATS
authorizing legislation. The current draft legislation
acknowledges and maintains the Coast Guard's important role
with regards to security, but we are distressed that facilities
which have been successfully regulated, inspected, and secured
for more than 5 years, such as our facility in Stockton, would
have additional requirements imposed by this legislation.
In closing, I would encourage the committee to simply
reauthorize the existing regulations for a 3-year period and
allow DHS to complete the first phase of implementation before
altering the existing program.
Thank you for allowing me to provide my perspectives on
this legislation, and I look forward to answering your
questions.
[The statement of Mr. Jeppeson follows:]
Prepared Statement of Martin Jeppeson
June 16, 2009
Good morning Chairman Thompson, Ranking Member King and
distinguished Members of the committee. I am Martin Jeppeson, director
of regulatory affairs at the California Ammonia Company--CALAMCO. I
have been with CALAMCO for more than 10 years and am responsible for
all aspects of regulatory compliance, including safety, security, and
environmental regulation. I was previously in the U.S. Army for 24
years and reached the rank of lieutenant colonel. I am a Certified
Safety Professional, Associate in Risk Management and Certified in
Homeland Security Level 5.
I appreciate the opportunity to appear before you this morning and
look forward to providing you with my views and concerns regarding the
``Chemical Facility Anti-Terrorism Act of 2009,'' as currently in draft
form.
CALAMCO is a non-profit farmer cooperative made up of approximately
1,150 grower-members throughout California, and we also have 42
fertilizer dealer stockholders. We are headquartered in Stockton,
Calif., and operate terminals at the Port of Stockton and in Sycamore.
CALAMCO specializes in providing nitrogen fertilizers to its grower
members and authorized dealers, including anhydrous ammonia, ammonium
hydroxide (or aqua ammonia) and liquid ammonium nitrate. We are one of
only two ammonia terminals in the State of California and account for
approximately 80 percent of all of the ammonia used in California. Our
authorized fertilizer dealers are located throughout California and
distribute our product to our farmer customers and shareholders.
CALAMCO's mission is to reduce fertilizer costs for our farmer
owners and ensure a reliable supply of nitrogen. We import
approximately 225,000 tons of anhydrous ammonia, primarily from
Trinidad, via bulk vessel into the Port of Stockton, where we transload
the product into large storage vessels, and subsequently to rail cars
or trucks for delivery to our authorized dealers.
CALAMCO is a member of The Fertilizer Institute (TFI), the leading
voice of the Nation's fertilizer industry, representing manufacturers,
wholesale distributors, importers, retailers, and transporters of
fertilizer. TFI and its members have worked closely with the Department
of Homeland Security (DHS) to establish appropriate standards and
ensure compliance with the Chemical Facility Anti-Terrorism Standards
(CFATS).
fertilizer
Fertilizer is essential to food production. The use of fertilizer
currently accounts for 40 to 60 percent of the world's food supply.
Because food production depletes the soil's supply of nutrients,
farmers rely on fertilizer to keep the soil productive harvest after
harvest.
The three main fertilizer nutrients are nitrogen, phosphorous, and
potassium. My testimony today will focus on the nitrogen industry. To
make nitrogen fertilizer, fertilizer manufacturers take nitrogen out of
the atmosphere and convert it into a form plants can easily use by
combining the nitrogen with hydrogen from natural gas to form anhydrous
ammonia. Anhydrous ammonia is then used to create other nitrogen
fertilizer products, such as ammonium nitrate, urea, urea ammonium
nitrate and aqua ammonia, to name a few. Ammonia can also be directly
applied as a fertilizer. It is the cheapest and most widely used form
of nitrogen.
the fertilizer supply chain
The fertilizer supply chain is made up of manufacturers, importers,
wholesale terminals, such as CALAMCO, and the agricultural retailer or
farm supply store, which provides product directly to the farmer
customers. In the past decade, much of the nitrogen industry in the
United States has shut down primarily due to the high cost of energy,
increasing our reliance on foreign sources of nitrogen and increasing
the importance of terminals such as CALAMCO. Because of CALAMCO's role
in distributing ammonia in California, I believe I am in a unique
position to identify the impact of proposed changes to the existing
CFATS regulations, both to our terminal operations, our authorized
retailer dealers and in the end, our farmer customers.
the fertilizer industry and security
The fertilizer industry has a long history of protecting our
products and the facilities where we produce and store those products.
Much of the fertilizer supply chain was regulated in 2002, with the
passage of the Maritime Transportation Security Act of 2002. For
example, CALAMCO's facility at the Port of Stockton falls under these
regulations.
From the time it was first introduced until it was signed into law
by President George W. Bush in December 2007, TFI supported the
``Secure Handling of Ammonium Nitrate Act.'' TFI appreciates the
support of the Chairman for his leadership in securing a common sense
set of rules and regulations for the safe sale of ammonium nitrate. The
fertilizer industry further looks forward to working with DHS to ensure
this important product is monitored throughout the distribution chain.
cfats
As you are aware, Congress authorized DHS to regulate the Nation's
highest risk chemical facilities in October 2006. In the regulation,
which became effective on November 20, 2007, DHS subjects to regulation
several fertilizers if designated quantities are exceeded. These
include: anhydrous ammonia, 10,000 lb. screening threshold quantity
(STQ); aqua ammonia, 20,000 lb. STQ; ammonium nitrate, 2,000 lb. STQ;
potassium nitrate, 400 lb. STQ; and sodium nitrate, 400 lb. STQ.
With the thresholds set at these levels, every aspect of the
fertilizer industry falls under the DHS regulation--the manufacturer,
the wholesale terminal, the agricultural retailer and potentially, the
farmer. In TFI's May 8, 2007, comments to DHS on the proposed list of
chemicals and thresholds, TFI requested clarification on the
applicability of CFATS to the farming community, commenting, ``An
average nurse tank contains approximately 1,000 gallons, which is
equivalent to more than two tons of anhydrous ammonia [4,000 lbs.]. An
eighty-acre field would require the application of four nurse tanks of
anhydrous ammonia, bringing into regulation [every] farm with an
eighty-acre field.''
In a Dec. 21, 2007, letter from Assistant Secretary for
Infrastructure Protection Robert Stephan, DHS chose to stay the
regulation with respect to the fertilizer industry's farmer customers,
stating, ``DHS intended to limit the coverage of that requirement, as
related to farmers and other agricultural users of the chemicals of
interest, by revising screening thresholds and counting rules for
certain chemicals. Since publication of the final list of CFATS
chemicals, however, additional questions and concerns have been raised
regarding the applicability of the Top-Screen requirement to
agricultural facilities and operations.'' This decision by DHS left the
entire fertilizer supply chain regulated, with the exception of the
industry's farmer customers.
TFI and its member companies support DHS in its efforts to
implement regulations, such as CFATS, that ensure the security of crop
nutrients that are produced, transported, and distributed by the
fertilizer industry. What is important to recognize and analyze,
however, is the impact of changes to the CFATS regulation on not just
fertilizer manufacturers, but all aspects of the fertilizer supply
chain and still, potentially, our farmer customers.
DHS has acted aggressively to establish a comprehensive regulatory
regime which we support. While neither of CALAMCO's operations is
regulated under CFATS, I can assure you that our industry is regulated
and many of CALAMCO's authorized dealers are regulated. It is with this
understanding that I now provide you with specific comments about the
impact of problematic provisions in the legislation before the
committee.
inherently safer technologies
We fundamentally disagree with the notion that chemical facility
security legislation should mandate the use of inherently safer
technologies (IST), and we do recognize that IST is a part of every day
life in the manufacturing portions of our industry. We believe the
requirement for all regulated facilities to assess the use of product
substitution, including manufacturers, wholesale distributors, and
retailers, as proposed in the draft legislation, could have a
devastating impact on American agriculture. Such a mandate could
jeopardize the availability of lower-cost sources of plant nutrient
products, which our farmer customers depend on for specific agronomic
reasons. I would now like to explain how a mandate to assess or
implement IST could impact each aspect of the fertilizer supply chain.
As defined in Sec. 2101, IST or ``methods to reduce the consequence
of a terrorist attack'' means, ``the elimination or reduction in the
amount of a substance of concern . . . through the use of alternative
substances, formulations or processes; the modification of pressures,
temperatures or concentrations of a substance of concern; and the
reduction or elimination of on-site handling of a substance of concern
through improvement of inventory control and on-site handling.''
The chemistry behind the production of nitrogen fertilizer limits a
manufacturer's options with regards to IST. Manufacturers of nitrogen
fertilizer must produce anhydrous ammonia, a toxic by inhalation
chemical, before they can produce any other form of nitrogen
fertilizer. As a result, there is currently no IST which could result
in the elimination of anhydrous ammonia at the manufacturing level.
This determination is simple to come by, when there are no other
options for producing nitrogen fertilizer. Our industry's primary
concern, therefore, is not the ability of the owner or operator of a
covered manufacturing facility to continue the business of its
facility. Our industry's concern is the impact of an IST assessment or
mandate on the fertilizer supply chain.
The ability to make changes to formulations, processes, pressures,
and temperatures does not apply throughout the supply chain. The only
alternative which exists when a facility's business is to sell products
to the farmer or to move products through the supply chain is the use
of safer nitrogen fertilizer products, or to store less on-site. These
provisions therefore, when applied to CFATS-regulated terminal or
agricultural retailers, implicitly and explicitly discourage the use of
products which are vital to our Nation's food production.
Within a wholesale distribution facility, such as CALAMCO, our
options are to decrease the product stored on-site or switch to a
``safer'' alternative. As I previously mentioned, CALAMCO meets
approximately 80 percent of California's anhydrous ammonia needs. As
such, our facility is a major import terminal. Even the Center for
American Progress report recognized that a major ``marine cargo
terminal which receives, stores and transfers several hundred million
pounds of anhydrous ammonia each year'' has ``no single-facility
alternative.'' Furthermore, even given the minor protections that were
included in the draft legislation, which I have reviewed, it would be
difficult for DHS to force our facility to switch to an alternative
product. After all, the business of our facility isn't just to supply a
crop nutrient to farmers; it is to supply the State of California with
anhydrous ammonia. Were our facility, however, to be a major fertilizer
terminal, the protections included in the legislation would apply with
far less certainty.
The applicability of these provisions to an agricultural retail
operation is different, however. The options for IST at this level are
similar to the options which are applicable to CALAMCO. The choices
presented to the retailer are to switch to a ``safer'' product or
reduce the amount of product on-site at the facility. If these
facilities are regulated in the highest tiers, DHS could even force an
agricultural retailer to switch to a ``safer'' nitrogen fertilizer
product, potentially removing CFATS-regulated products, such as
anhydrous ammonia, aqua ammonia, ammonium nitrate, potassium nitrate,
and sodium nitrate from the farmer's agronomic tool box. The
protections which apply to the ammonium nitrate producer or the
anhydrous ammonia terminal do not apply in the same way to our
agricultural retail operation. The business of our authorized dealers,
the agricultural retailers, and farm supply stores, is to provide
fertilizer to the farmer. Not a specific fertilizer, but fertilizer in
general. The limited protections in this legislation therefore do not
adequately protect an agricultural retailer from being forced to
eliminate the use of anhydrous ammonia or ammonium nitrate at their
facilities. As long as these facilities will be able to continue to
sell a fertilizer, not necessarily a fertilizer needed by the community
which they supply, but any fertilizer, DHS will have the ability to
mandate the implementation of IST, which in this population segment
means the elimination of products.
We are further concerned about the assessment of IST in this
segment of the agricultural community. Given the liabilities that could
result from continuing to sell a DHS-regulated product as opposed to
switching to a safer alternative, the lack of understanding at a small
agricultural facility regarding the meaning of an IST assessment and
the poor communication about requirements for this portion of the
regulated community, it is unknown exactly what impact a mandate to
assess the use of safer products will have on the farmers which we
supply, the terminals like CALAMCO that are responsible for moving the
products and the manufacturers which produce the products which we
move.
It is only with this broad understanding and analysis of the
fertilizer supply chain, and the supply chains of other segments of the
regulated community, that we can conclude understand that it is not
economically feasible to switch to alternative products that would
threaten our Nation's economy and food supply. It is reasonable to
assume that an individual agricultural retailer may determine that it
is ``economically feasible'' to switch away from anhydrous ammonia and
ammonium nitrate to unregulated products such as urea, but it is
unreasonable to assume that each regulated entity, including the
manufacturers, terminals, and retailers, can adequately analyze the
impact of their IST decisions on the rest of the fertilizer supply
chain. We believe it is the responsibility of this committee to
understand and address the impact of these potential requirements on
each regulated supply chain, especially ours, which accounts for 40 to
60 percent of the world's food supply. As the Center for American
Progress stated in its November 2008 report entitled Chemical Security
101, ``What you don't have can't leak, or be blown up by
terrorists.''\1\ Similarly, in agriculture, what you don't have can't
help grow our Nation's food supply.
---------------------------------------------------------------------------
\1\ Paul Orum, ``Chemical Security 101,'' Center for American
Progress. November 2008.
---------------------------------------------------------------------------
I would now like to provide an analysis of the estimated economic
impact on the fertilizer supply chain.
If an agricultural retailer were to switch from anhydrous ammonia
to a different nitrogen fertilizer product, the likely alternative
would be urea. Anhydrous ammonia is the cheapest form of nitrogen and
often the most appropriate for certain crops. In California, anhydrous
ammonia is most commonly applied on corn, wheat, alfalfa, tomatoes,
cotton, and onions. Similarly, in the Midwest, you find anhydrous
ammonia applied to our Nation's corn crop. The additional cost for a
typical 1,000-acre corn farm utilizing urea instead of anhydrous
ammonia, given the current cost and nitrogen content of each product,
would exceed $15,000. However, this does not provide an accurate and
fully comprehensive picture as this cost increase would only hold true
if there was ample additional urea available at today's prices. The
United States, however, is already the world's largest importer of
nitrogen fertilizer and the second largest importer of urea, accounting
for a full 17 percent of urea traded in the world. If the United States
had to turn to the world market to import an additional 7,576,066 tons
of urea to replace the nitrogen in anhydrous ammonia--a 116 percent
increase (more than double) from our level of imports in the latest
fiscal year 07/08--it would drive the world price of urea sky high. A
higher imported urea price would mean significantly higher urea prices
paid by U.S. farmers, as the U.S. currently imports 75 percent of its
total solid urea supply. This would result in a significant increase
from the $15,000 estimate, which I previously noted for a typical
1,000-acre corn farm.
Furthermore, we estimate that the cost for a U.S. manufacturer of
nitrogen fertilizers to alter an existing facility to accommodate for
the change in demand would be substantial. To build a 1,000-ton-per-day
urea liquor plant on an existing site would cost approximately $120
million. It would cost an additional $60 million to granulate, dry, and
store the dry urea. To build a 1,500-ton-per-day urea ammonium nitrate
(UAN) solution plant, you would need both a urea liquor and nitric acid
facility. In addition to the $120 million urea liquor plant, you would
need a nitric acid plant at the approximate cost of $60 million. On-
site storage for a 50,000-ton UAN tank would cost an additional $8
million. The upgrades described above would likely take 2 years from
the point of ground-breaking to complete and the essential production
equipment would need to be imported.
While nitrogen manufacturers do not typically employ more than 170
individuals, these jobs tend to be staples within the foundation of
their communities, averaging an annual salary of $70,000, often in
communities where ours are the best-paying jobs.
I am also concerned about the impact of an IST assessment on small
businesses and non-profit entities such as CALAMCO. It is unknown how
the process described in Sec. 2111 will be implemented, including which
individuals will need to participate or the legal liabilities that will
exist due to the assessment. The legislation describes a process which
must consider the technical viability, costs, avoided costs (including
liabilities), saving, and applicability of each IST method which is
considered. We anticipate that the team responsible for analyzing the
ISTs would require a chemical engineer, process safety engineer, and a
legal and risk management presence. While a manufacturing facility may
have these individuals on staff, and a facility such as CALAMCO that
employs 34 individuals may have some of these individuals on staff, a
small agricultural retailer will not. We anticipate that the cost to
perform such an assessment will be substantial for a facility of this
size.
Specifically, the overwhelming majority of retail facilities do not
store quantities of regulated products that would result in being
placed in a tier level where they are considered a high-security risk
to their community. As a result, the majority of agricultural retailers
in California can not afford to maintain regulatory compliance or risk
specialists at each facility. Under such a mandate, these retailers
would have to hire consultants to assess whether the products they
carry could be replaced by IST. Since retailers can not afford to
maintain risk specialists, the perception of risk from products
identified as products that should be assessed for IST, would likely
drive retailers to alternative products that may be more costly and
less efficacious than their original products at delivering essential
plant nutrients. Replacement products would also place retailers in
jeopardy of not qualifying for State environmental initiatives, such as
the agricultural truck rule provisions of the California State Air
Resources Board's Diesel Engine Replacement regulations. Finally, in a
highly litigious State like California, the perception of risk would
likely lead to high insurance rates for retailers. All of these
examples translate into higher costs to retailers and as a consequence,
their grower customers.
We ask that you not misinterpret our position with regards to
security. Our concern regarding the mandate to assess the use of ISTs
and products does not mean that we do not take the protection of our
products and the fertilizer supply chain seriously. We believe,
however, that our facilities can be protected without implicitly or
explicitly discouraging the use of our products in legislative text.
maritime transportation security act regulated facilities
As stated earlier, CALAMCO's port facility in Stockton, Calif., is
regulated under the Maritime Transportation Security Act of 2002 (Pub.
L. No. 107-295). Due to the regular shipment of bulk fertilizers by
barge and vessel, many TFI members, including manufacturers,
wholesalers, and retailers, have facilities regulated by the Coast
Guard under MTSA. In addition, two fertilizer products are classified
as Certain Dangerous Cargo (CDC), bringing under jurisdiction of MTSA
many retail and wholesale warehouses on our Nation's inland water
system.
Due to the strong regulation by the Coast Guard, facilities
regulated under MTSA were exempted, by statute, from CFATS-authorizing
legislation. While we understand that the current draft legislation
acknowledges and maintains the Coast Guard's important role with
regards to security at MTSA facilities, we are discouraged that
facilities, which have been successfully regulated, inspected, and
secured, would have any additional requirements imposed by this
legislation. TFI supports maintaining this exemption.
If the Infrastructure Security Compliance Division, the agency
within DHS which is responsible for the CFATS regulations, chooses to
enter into a memorandum of understanding (MOU) to encourage information
sharing with the Coast Guard, TFI would support these provisions. We
cannot support, however, any additional requirements on MTSA facilities
which have successfully complied with the Coast Guard's regulation over
the past several years. We are further concerned that the requirements
of Sec. 2111 would apply at Coast Guard-regulated facilities. As we
have previously addressed, agricultural facilities at our Nation's port
facilities have limited alternatives, other than increased shipments of
fertilizer products or the elimination of products.
private right of action
Section 2115 of the proposed legislation includes provisions
allowing for private rights of action against regulated parties and
against DHS to enforce compliance with applicable requirements. Such
private rights of action provisions have proven extremely problematic
in other statutory schemes and have fostered enormous amounts of
litigation in other contexts. We first and foremost believe that these
provisions are not only unnecessary but could prove detrimental to the
task at hand--protecting our Nation's critical infrastructure.
Agency desires to avoid citizen suits often result in agencies
taking less cooperative and more adversarial approaches towards the
regulated community in order to ensure compliance. The more adversarial
and aggressive the agency action, the less likely a citizen plaintiff
will view the action as adequate and file its own suit to enforce
compliance.\2\ The agency thereby avoids the cost of litigation, but at
the expense of essential cooperation with the regulated facility. Such
aggressive actions are counterproductive, particularly in situations,
such as counterterrorism, where cooperation between Government and
private interests is critical.
---------------------------------------------------------------------------
\2\ Matthew D. Zinn, ``Policing Environmental Regulatory
Enforcement,'' 21 Stan. Envtl. L.J. 81 (2002).
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Additionally, citizen suits would be unnecessarily redundant with
third-party common law claims. Furthermore, the broad discovery rights
enjoyed by a plaintiff in a judicial action increases the likelihood of
disclosure to the public of sensitive information, which could be used
in terrorist activities. The legislation only provides that DHS shall
take measures to prevent disclosure, but does not provide any
mechanisms to prevent disclosure of sensitive information in the
context of a judicial challenge where broad discovery would be
necessary to bring and defend any claim. We also believe that potential
personal liabilities associated with being named in citizen suits would
provide a disincentive for chemical facility employees to take
responsibility for implementing the requirements of CFATS.
Finally, citizen suit provisions create incentives to litigate
fiercely, but none to encourage citizen plaintiffs to pick their
battles in an effort to achieve socially-optimal compliance and
enforcement. Where citizen litigants are reimbursed for their
litigation expenses and fees (as they would be under the legislation),
they have little budgetary incentive to eschew enforcement. Citizen
plaintiffs will also bring suit to attract members, increase their
public profile or contributions. Citizen plaintiffs tend to be
ideologically predisposed to aggressive enforcement, as they have no
ongoing relationship with the facility (as the agency would)
necessitating a cooperative relationship. Indeed, studies have
indicated that citizen suits do not achieve optimal enforcement levels
but instead result in excessive numbers of claims and excessive
penalties.\3\
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\3\ See David R. Hodas, ``Enforcement of Environmental Law in
Triangular Federal System,'' 54 Md. L. Rev. 1552 (1995); see also Barry
Boyer & Erroll Meidinger, ``Privatizing Enforcement,'' 34 Buff. L. Rev.
833 (1985); Ross MacFarlane & Lori Terry, ``Citizen Suits: Impacts on
Permitting and Agency Enforcement,'' Nat. Resources & Env't J. (Spring
1997).
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federal preemption
Sec. 2109 allows any State or political subdivision thereof to
adopt or enforce any regulation that is more stringent than the Federal
regulation. We are concerned that the legislation before this committee
will encourage the creation of a patchwork of conflicting rules that
stretch across Federal, State, and local lines. We believe that CFATS
should preempt inconsistent State and local chemical security laws and
rules by preempting State or local requirements only if there is an
actual conflict between the two, or the State or local program
``frustrates the purpose'' of the Federal program. Current State
chemical facility security laws have not been found to conflict with
Federal CFATS regulation. Therefore, changes to the existing conflict
preemption standards should not be made.
miscellaneous issues
Finally, I would like to quickly describe a few additional
provisions which raise concern and I believe could easily be amended.
Sec. 2103 discusses training for employees. While CALAMCO, due to
its size, may provide each employee with a full knowledge of these
aspects of the facility's security, we believe it is inappropriate to
provide this level of detail to every individual who may work within
the confines of our facility. The prescriptive nature of this provision
would result in every contractor, including temporary contractors
during manufacturing plant turn-around, interns, front desk staff, and
other temporary employees, having an intimate knowledge of the
potential consequences of a terrorist incident and the facility's
ability to respond. While we recognize the need for employees at a
facility to be aware of the certain vulnerabilities and the methods
which may be used to mitigate an incident at a facility, we do not
believe that all individuals have a need to know the information which
is mandated in Sec. 2104. We encourage you to review and alter these
provisions so that they are not only performance-based, but allow the
owner or operator to determine which information is appropriate for
distribution.
Sec. 2105 mandates that a covered facility with one or more
certified bargaining agents provide an employee representative, as
defined in Sec. 2101, with a copy of any security vulnerability
assessment or site security plan. We fundamentally believe that this
information should only be provided to employees at the facility with a
specific need to know. The definition of ``employee representative''
does not clarify whether or not this individual must be an employee of
the facility. Furthermore, Sec. 2105 would require that the employee
representative ensure that security vulnerability assessments and site
security plans are properly handled; but it does not specify that an
employee representative must keep any information received stored at
the covered chemical facility. An owner or operator of a covered
chemical facility, or an employee with security responsibilities at
multiple facilities may have a need to transfer or transport sensitive
security information, removing these documents from the facility should
not be permitted by the employee representative.
conclusion
We encourage the committee to take decisive action to extend the
existing CFATS authority, which expires in September 2009, but we
remain concerned about many of the provisions which are included in the
draft legislation. We encourage you to maintain the existing
regulations and allow DHS to complete the first phase of implementation
before altering the existing program. We ultimately believe that DHS
could effectively implement their regulation with 3-year extension.
I would like to once again thank you for allowing me to provide my
perspective on the impact of this legislation at CALAMCO and to the
broader fertilizer industry supply chain. I look forward to answering
any questions which you may have.
Mr. Pascrell. Thank you for your testimony.
Without objection, the witnesses' full statements will be
inserted in the record. So now we are going to go to questions.
I have a question for Mr. Baldauf. As a Member of the
Homeland Security Committee, as well as a Member of the Ways
and Means Committee, I believe strongly that we need to
implement rigorous security standards without unduly impeding
commerce. I think you believe in the same thing; I have heard
you speak before.
But it could be a difficult balance to maintain. The
legislation we are considering today would implement a new,
more stringent chemical security regime for the entire Nation.
But we have often heard the refrain from the chemical industry
that these standards would significantly restrict its ability
to do business.
Now, Mr. Baldauf, as I pointed out earlier in New Jersey,
that that State has been implementing many of these chemical
standards, security standards for years, including the
assessment of inherently safer technologies, which we have
heard mentioned a few times in the testimony of the gentlemen.
The chemical industry has vigorously opposed this in the
past. As I mentioned before, there is 800 chemical facilities
in New Jersey, 45 of them have extraordinarily hazardous
materials.
So, Mr. Baldauf, quite simply, has the ability of the
chemical industry in New Jersey to do business really been
stunted? That is my first question. Has the sky fallen on the
chemical industry in New Jersey since you implemented tougher
chemical security standards, including IST?
Then I have a follow-up question. When he is finished,
gentlemen, jump in. We need to hear from everybody. This is not
meant to be pedantic. Go ahead.
Mr. Baldauf. Thank you.
We actually heard the same concerns in 2005 and 2008. In
2005 and 2008, we actually heard the same concerns before we
enacted our standards and our IST rule.
What experience has shown since 2005 is, no, it has not
been overly burdensome for the chemical facility, the chemical
sector to comply with our standards and complete the IST
evaluations.
The main reason, I believe, for that is that, on the IST
evaluation side, there is a feasibility test. If it is not
feasible to do the IST work, it is not going to be done. If it
is feasible, then they can go forward. I think that is the key
there. It is an evaluation we require, and you have to meet a
feasibility test to go forward.
Mr. Pascrell [continuing]. More efficient?
Mr. Baldauf. I don't think there is any question. I don't
think there is any question.
Mr. Pascrell. Can you cite any specific cases that come to
your mind?
Mr. Baldauf. Well, I think if you look at the IST reports
that we have reviewed over the years, they pay very close
attention to the types of chemicals they bring in, the timing,
the frequency, the amount, and they stage things so they aren't
in a position to have more than what they need on-site at a
given time. That helps their bottom line in the long run, also,
in many times because it is just by demand when necessary.
Mr. Pascrell. Would I be exaggerating if I said that the
chemical industry in the State of New Jersey, which is one of
the most robust in the entire Nation, have been extremely
cooperative with these standards?
Mr. Baldauf. I think we went through a very long process.
Yes, I would like to say that it is a cooperative relationship
we have had.
Mr. Pascrell. Just one more brief question before I turn it
over to the Ranking Member. Just give me a brief summation of
this feasibility that you have talked about and referred to in
your testimony. This is very critical, I think, to the entire
discussion of whether we should have stronger standards or
weaker standards or whatever.
Mr. Baldauf. Okay. How it works is, it is up to the
company, the facility, to explore the possible IST options that
may be available to them. So they basically start with a clean
slate, and they come up with, let's say for argument, 10 things
that are possible.
Then feasibility goes through, is it economically feasible?
Is it technologically feasible? Do you have space for it? There
are multiple things that we include in the rule.
So, at the end of the day, if you come up with 10 things
that are possible, you also come up with 10 reasons why they
are or are not feasible, and you make that argument back to us,
and we review it to make sure that we agree with the steps
taken and their evaluation.
Mr. Pascrell. Any--yes, Mr. Durbin?
Mr. Durbin. If I could----
Mr. Pascrell. Absolutely.
Mr. Durbin [continuing]. Because I don't want to leave the
impression here that the industry, at least speaking for ACC
member companies, have been adversarial to what New Jersey has
done or that we are on----
Mr. Pascrell. No, your record has been pretty clear.
Mr. Durbin. I think that, you know, for ACC members--and,
again, a lot of other non-ACC members, as well--the idea of
considering inherently safer approaches, again, it is required
as part of our responsible care security code.
As I think Mr. Baldauf in his written statement
acknowledges, you know, the initial best practices in New
Jersey were modeled on responsible care security code. I will
say, I believe we have a very cooperative relationship between
the industry and the State, and we have 70,000 employees in
your State, as you said----
Mr. Pascrell. How many is that?
Mr. Durbin. Seventy thousand. So, you know, we take our
responsibility seriously. I think that it really does, you
know, show some--there are some models here on how to move
forward.
Mr. Pascrell. Thank you.
Mr. Langerman, do you have any comment?
Mr. Langerman. Well, as I said, the ACS position is that
inherent safer technology is certainly part of the overall
process for reducing the inherent risk associated with the
unit, which overall improves both safety and security.
It is a holistic approach that requires a relatively high
level of expertise to design and implement and a relatively
high level of expertise to review, if you will, at a State or a
Federal regulatory agency.
Mr. Pascrell. Mr. Langerman, do you know of any facility
that would not be able to sustain operations as they exist
right now if this legislation was passed, yes or no?
Mr. Langerman. That is going to have to be answered on a--
literally a case-by-case basis. There are facilities that I
have been involved with as a consultant in my professional
career that would be hard-pressed economically to make changes.
I certainly am aware of facilities that have chosen to move
out of my home State, California, because of regulatory
oversight.
Mr. Pascrell. Okay, and that is the purpose of having
feasibility.
Mr. Jeppeson. Put your mic on, please. Thank you.
Mr. Jeppeson. If you look at it from the perspective of our
particular facility, as I mentioned earlier on, there does not
appear to be--anhydrous ammonia. If we were regulated out of
that business, i.e., we had to get rid of the anhydrous
ammonia, we would basically be out of business.
Mr. Pascrell. Anyone else?
Thank you.
Mr. Lungren. Thank you very much, Mr. Chairman.
With all due respect, Mr. Chairman, it is easy for us to
ask whether a bill could legislate something out of existence.
Now in California as a result of Federal law, we have had
implementation by a Federal judge to protect the Delta smelt.
So we have turned off the water to central California.
Currently, we have some communities with as high as 40 percent
unemployment. Some of the greatest farmland in the world is now
going dry because of the United States Federal Government, with
the Congress passing laws that wouldn't put anybody out of
business, and it is having dire consequences.
But we cannot do anything, because a Federal judge has made
a determination that the pumps have to go off and species Homo
sapien is considered subservient to species that are included
in the Delta smelt.
So I am very, very concerned about the impact of Federal
legislation that we just grandly say will have no impact
whatsoever. It sounds like we have found the magic bullet. We
have found the holy grail. It is called IST, inherently safer
technology.
Is that the answer to everything, Mr. Baldauf?
Mr. Baldauf. No, I would say it certainly isn't. In my
opinion, IST is a process, one of many processes, that would
help ensure that everything is being evaluated to get the
facilities to a point where they are as safe as possible. But
certainly it is not the final answer.
Mr. Lungren. New Jersey does not mandate it, does it?
Mr. Baldauf. No, strictly evaluation.
Mr. Lungren. Strictly evaluation.
Mr. Baldauf. Yes.
Mr. Lungren. Which is different than mandating it under the
authority of the secretary of DHS.
Mr. Durbin, what are your comments on IST?
Mr. Durbin. Again, we believe that IST is an important tool
to be used, as you have been developing your site security
plan. It is a requirement under ACC's responsible care security
code.
Again, we, too, believe that it is not appropriate to
mandate, that the decision is best left to the--you know, the
process----
Mr. Lungren. Why isn't it the silver bullet?
Mr. Durbin. No, I didn't mean to say it was the silver
bullet.
Mr. Lungren. No, but why isn't it the silver bullet?
Mr. Durbin. Why isn't it?
Mr. Lungren. Yes.
Mr. Durbin. Because it doesn't----
Mr. Lungren. It sounds great, inherently safer technology.
Who could be against inherently safer technology?
Mr. Durbin. Well, it does sound great. Frankly, you know,
if you can institute those types of changes in your process, it
is good business. It is good business. You know, it makes
things more efficient. It makes things safer, what have you.
But----
Mr. Lungren. You don't have confidence that we on the
Federal level can mandate it in the circumstances that we think
it ought to be mandated?
Mr. Durbin. Our view is that those decisions are best left
to the security and process safety experts.
Mr. Lungren. Dr. Langerman.
Mr. Langerman. First, let me thank you for defending the
water. I live at the end of the water supply.
Mr. Lungren. Well, you don't have to worry about getting
wet.
Mr. Langerman. No, in fact, we are in a stage two drought
right now.
You chose very good words in is--in your question, is IST a
silver bullet? Absolutely not. I would urge the Members of this
historic legislative body to look back to the history of the
language, inherently safer technology. It traces back to a
colleague, Trevor Kletz, in the United Kingdom, who invoked it
as one of a large group of engineering processes which, taken
as a whole, can build into a process unit safety and, in fact,
security, as a part of the unit, not as a Band-Aid or an add-
on.
Professor Kletz and all of my chemical and engineering
colleagues who have worked on this and myself have recognized
it is just one of the tools in a relatively rich tool box that
we can bring to bear to make our units operate safer.
The example that I gave in both my oral and my written
testimony was chosen very carefully, because it points out a
case in which all of our preliminary judgment said substitute,
substitute, substitute. That seems to be what inherent safer
technology focuses on, the language, where when we did the
detailed, quantitative risk assessment, looked at the process
in detail, and we did a consequence analysis, we got these
amazing results, 7,900-pound release was possible when the
alternative was implemented versus 538-pound release if the
original were implemented, which, in fact, was the safer.
Mr. Lungren. See, I remember when the Federal Government,
the Congress mandated MTBE as the additive to gasoline. We made
the determination here that it needed to be used. What did we
find out? MTBE turned out to be a disaster for the environment,
almost ruining places like Lake Tahoe and other areas where it
was used as gasoline and an additive for marine vehicles.
We are mandating corn-based ethanol at greater and greater
levels here in the Federal Government, and it is my concern
when we come up with an idea that came out of the industry,
using inherently safer technology, as a process, and as one of
the tools, then latching on to it and saying, ``My god, we have
found it, the holy grail, and we are going to mandate it.''
It will have a devastating impact, in my judgment, if we go
overboard with it. I thank the gentlemen for your testimony.
Mr. Pascrell. Does anyone else want to respond to what you
have already heard?
Mr. Jeppeson. If I may make a comment, sir? Talking about
IST, let's just take, for instance, an example of it, if a
farmer did have to switch from anhydrous ammonia to an
alternative product.
There are a number of costs involved in that to the farmer.
We will take a 1,000-acre corn farm, since you, sir, mentioned
corn in your comments there. Given the current nitrogen costs
that are on the market, the results of that farmer would be an
additional $15,000 of expenses. Those expenses would only be
true if there were additional urea in the marketplace, in the
supply chain in order to provide that farmer with a product
that he needed.
Currently, we are the largest supplier--the largest
importer of nitrogen fertilizer in the world. We are the second
largest importer of urea, according for about 17 percent of the
total world production.
Our estimate is that it would take an additional 7.6
million tons of urea to replace the ammonia that would not be
used in order to get similar production levels. So that is
about 116 percent increase in imports from the latest fiscal
year of 2007-2008.
We think that that would probably drive the prices of urea
sky high. That is assuming that there is enough urea there to
take the place of what is needed. In order to get that
additional urea, then obviously additional plants would have to
be put in place.
Mr. Pascrell. Mr. Jeppeson, I just want to make it clear
that in this legislation, the one we are talking about today,
not the Delta smelt, we are talking about a very specific
legislation. You are bringing comparison of apples and oranges
here.
But in this particular legislation, nothing in this bill
that I know of mandates any particular process. Nothing in the
bill mandates any particular process.
Anybody else have any comments?
Mr. Cleaver.
Mr. Cleaver. Thank you, Mr. Chairman.
I am on the Financial Services Committee. It used to be
called the Banking Committee. I painfully remember hearings
like this a couple years ago, as the ABA and others from the
financial services industry argued that, if we try to do any
tightening of regulations, that there would be unintended
consequences, the world would essentially collapse, and the
Washington Nationals would win games, all kinds of things
would--were going to go wrong.
[Laughter.]
So, as a result, now that we have seen--we have walked to
the precipice of a collapse of the world economy, and a part of
the reason has been the failure to do, I think, congressional
responsibility, in terms of regulations.
I am wondering, if something tragic should happen, who do
you think will get the blame because we refused to take action
on this legislation? How many of you would volunteer to say,
``Well, I stood up and asked them not to do anything''?
Mr. Durbin. Mr. Cleaver, I would answer in a different way.
I think we have stepped up and----
Mr. Cleaver. No, no, no, no. I appreciate what you are
saying, but before you say that, if you would answer my
question. You said you would answer it another way. What I
would like for you to do is not--I am not trying to be too
mean--is to answer it the way I asked, which is whether or not
who you--who do you think will receive the blame?
Mr. Durbin. Likely we will.
Mr. Cleaver. Well, that is not quite the way I see it,
based on history. We would get beat up, as usual, and then we
would hear all the things--lobbyists, they control everything,
and people wouldn't make decisions. Am I wrong?
Mr. Durbin. Well, again, if I could, I think this is a case
where, you know, you had--and speaking for the American
Chemistry Council, this was a group--I am a lobbyist, so I will
go ahead and take the mantle there.
I have come before this committee several times and other
committees encouraging and supporting the passage of
legislation to regulate chemical facilities for security.
Thankfully, Congress did so in 2006. I am here today to say, we
want to make that program permanent, that we want to continue
to work with DHS.
So I guess I would look at it a little differently. We are
not starting from scratch. You know, we have an industry that
has already invested $8 billion in security. We want to make
sure the program that is in place, being implemented now is
going to be even stronger.
This is a responsibility we all have. Frankly, we are never
going to be done. We are going to have to continue to work at
this and improve our ability to make sure that we can meet the
threats that are out there.
So I do understand what you are saying, but I think that we
are in a better position in that we do have a collaborative
relationship here to actually address this concern.
Mr. Cleaver. You know, Mr. Langerman, before you answer
that question, let me--to follow up, the IST is sometimes
dismissed as safety masquerading as security. I believe that if
we are going to lower overall risk, which is usually defined as
a product of threat times vulnerability times consequences, and
that we should, Mr. Langerman, try to reduce each of these
three, including consequences, if we are going to reduce
overall risk. Do you agree with that?
Mr. Langerman. Thank you, Representative. First, the
American Chemical Society fully concurs with Mr. Durbin. He has
just stated, so I am not going to repeat that.
To address your follow-up question, if I may, inherent--the
process, the engineering process that runs under the mantle of
inherently safer technologies is aimed at reducing the built-in
risk, the inherent risk of a unit. By doing that, it improves
both safety and security.
So in that sense, I do concur with your statement.
Mr. Cleaver. My time is running out, and I have a lot more
stuff. But I yield back, Mr. Chairman.
Mr. Pascrell. Thank you.
Mr. McCaul.
Mr. McCaul. Thank you, Mr. Chairman.
I ask that the Chair recognize Dr. Broun for 5 minutes, as
he has a conflicting hearing, and then perhaps come back to me.
Mr. Pascrell. The gentleman from Georgia is recognized.
Mr. Broun. Well, thank you, Mr. McCaul, for your indulgence
in this. I owe you one, sir. I say that for the record.
Mr. Jeppeson, as a former farmer, I understand that
inherently safer technology requirements would significantly
increase the cost for the majority of small businesses, such as
agricultural retailers, and specifically for hiring consultants
to perform assessments, due to the costs of switching to more
expensive uncovered products, increased insurance rates, et
cetera.
Would it be fair to say that some small businesses
struggling with these increased compliance cost may be forced
out of business?
Mr. Jeppeson. I think, sir, that probably would be a good
statement. I think what might also happen is that those smaller
retailers could very possibly switch away from those products
that are more dangerous, if you will, and also go to much less
costly products, which may not serve the farmer quite as well.
So I think there is a possibility that if they were--if
these assessments were imposed upon them at fairly large
expense, there is a possibility some of them may go under.
Mr. Broun. I believe very firmly that a nation cannot feed
itself, and cannot clothe itself, if it is not energy
independent, so that it is not a secure nation. As we go to
these other modalities of trying to grow our crops which are
much costlier, I think it will drive our food costs up making
us more dependent upon foreign food sources, which is not in
our best security interests as a Nation.
So I agree with Mr. Lungren. I am very concerned about the
mandatory requirements that this legislation would cost. I
understand Mr. Cleaver's questions, but we cannot be entirely
risk-free.
It is my understanding that the purpose of IST requirements
is to increase facility safety by reducing the on-site volume
of a covered chemical. But wouldn't reducing the on-site amount
of a product result in increased truck, rail, and barge traffic
to ensure continued and adequate supply?
Therefore, wouldn't these IST requirements merely shift the
risk to other, perhaps more vulnerable entities in the supply
chain, resulting in increased Government regulation without any
additional protection against terrorist activities, thus
further increasing the cost to everybody in America?
Mr. Jeppeson. I think that is a very true position on that,
sir. Take, for instance, we have Product A, which is a
dangerous product, and we decide to replace it with Product B,
but we need three times as much of Product B as we did of
Product A to serve the farmer, and we are putting three times
as many trucks on the road, three times as many rail cars on
the rails, and three times as many ships on the high seas. So,
yes, we are definitely increasing the risk there.
Mr. Broun. Then, also, increasing carbon emissions and
other things that the folks concerned with so-called climate
change or global warming are talking about.
I thank the panel for coming, and I appreciate all of your
testimonies.
Mr. Chairman, I yield back the balance of my time.
I thank Mr. McCaul for his indulgence.
Mr. Pascrell. Thank you, the gentleman from Georgia.
Just one quick point. In the direct language of the--I
wasn't sure, but now I am sure. The substance, the secretary,
the Department of Homeland Security--homeland security
secretary can require implementation of a high risk, if it
would significantly reduce the risk of death, injury, serious,
adverse, et cetera, and is technically and economically
feasible to be incorporated into the facility's operations, and
would not significantly impair the ability of the facility to
sustain operations at its current location. A high-risk
facility that cannot comply with an implementation order is
required to provide a written explanation to the secretary
within 60 days of receipt.
Oh, do you want to ask questions?
Mr. McCaul. Yes, Mr. Chairman. Thank you.
For clarification, Mr. Baldauf, in New Jersey, you have an
IST review process that seems to be working fairly well, but it
is not a mandatory process, correct?
Mr. Baldauf. It is mandatory that you have to do the
evaluation, but the results of your evaluation, you are not
required to implement them. So, basically, at the end of the
day, you have to put feasible alternatives on the table, but
you aren't forced to implement any of them.
Mr. McCaul. So the implementation is not mandated, is this
what you are saying?
Mr. Baldauf. Correct. Correct.
Mr. McCaul. Okay. I just wanted clarification on that.
Mr. Durbin, I know you were quoted today in the BNA Daily
Environmental Report as saying that you would like to make the
IST provision more manageable for facilities to deal with.
There is a Texas A&M report that talks about the subjectivity
involved with IST.
First of all, explain your quote. Then, do you agree with
the Texas A&M report, that this is a very subjective standard?
Mr. Durbin. I haven't read the Texas report, but I do
think--again, as I think I had maybe been quoted there, that
IST does require subjective decisions there.
But, no, my--the point of my quote this morning and, you
know, consistent with my testimony here today, you know, we
continue to believe that the provision is unnecessary, that the
current regulations, you know, provide the encouragement, in
fact, that is essentially going to require you, you know, to
consider all different types of security enhancements,
including methods to reduce consequences, and that there is a
strong incentive to implement those, because you may end up
putting yourself into a lower tier or perhaps coming--taking
yourself out of the program.
Having said that, you know, the provision that is in the
bill that was introduced yesterday is essentially the same
provision that was in the bill last year, which was approved by
this committee. It is very similar to a provision that was in
the bill in the previous Congress that was approved by this
committee.
So from a practical standpoint, if the committee is going
to move forward with a provision that is going to give
authority to DHS to mandate IST, we clearly would like to see
changes to that provision to make sure that it is a more robust
definition, that it entails risk, you know, not just
consequence, that it has a more robust process involved, both
for the determination by the agency and the facility's ability
to appeal that process.
Mr. Pascrell. Would the gentleman yield for one second?
Mr. McCaul. I will yield to the Chair.
Mr. Pascrell. Thank you. We have to make it clear, don't
we, Mr. Durbin, that this legislation does not prescribe a
specific methodology?
Mr. Durbin. Correct, Mr. Chairman. As I said, it provides
the authority to the secretary, to--correct.
Mr. McCaul. The current arrangement seems to be a
cooperative arrangement between industry and the Government. It
actually seems to be working fairly well, according to your
testimony.
In fact, the current President and current administration
seem to think so as well, but they have asked this Congress to
delay for another year so they can work with the Congress on
any further legislation. Is that correct?
Mr. Durbin. That is my understanding, based on----
Mr. McCaul. We heard that testimony from the previous
panel. Mr. Chairman, I don't know why we are not listening to
the President and the administration in this instance rather
than forcing this legislation upon the Congress.
I think this is one instance where I agree with the
President and the administration. I think it is a more
reasonable approach to work with the industry and with the
Congress on delaying this by 1 year.
Let me ask another question. With respect to civil
liability, this bill opens up the industry to civil lawsuits
and DHS to third-party lawsuits. Mr. Durbin, can you comment
upon the impact that this could potentially have not only on
your industry, but also on the information that should be
protected?
Mr. Durbin. Well, as I mentioned in my testimony, we do
share the concerns that DHS expressed this morning, that--about
the potential release of sensitive and classified information
in judicial settings.
I think, more broadly, and to your point and as others have
noted this morning, as well, you know, success of a security
regime here and a risk-based program really does require an
atmosphere of trust and collaboration between the DHS and the
regulated community here.
As I said, we are--in no way want to be perceived of
apologizing for either a facility or the agency if they are not
complying with the regulations of the--you know, of the
statute. However, we simply think that litigation is the wrong
way to go about making sure that that occurs and succeeds.
Mr. McCaul. By opening this up to litigation, would that in
any way damage the level of cooperation and trust between the
industry and the Government?
Mr. Durbin. That is one of our fears, that it would end up
undermining that trust that we think really has been built,
both, frankly, at the State level and at the Federal level.
Mr. McCaul. Mr. Jeppeson, a final question, if the Chair
would indulge. I know the Farm Bureau has come out openly
against this bill. Can you elaborate on the impact this would
have on all the farmers in my district and elsewhere?
Mr. Jeppeson. I think from our facility perspective to
start with, one of the concerns that we really have is the
sharing of information, as has been voiced by other members of
the panel and homeland security people before.
So if the bill goes through as written, then we are
required to share facility security plans and facility security
assessments with people that we don't feel should be privy to
that type of information.
As to the effect on the members of your district, sir, any
changes in the costs from the manufacturer down to the
distributors, such as--to the transporters down to the
retailers is obviously going to have an impact on the farmer,
the end user.
So, to answer your question, it is going to have an impact
if there is an additional cost on the front end of it.
Mr. McCaul. They are having a pretty tough time right now,
from what I gather. So I thank the Chair for indulging me.
Mr. Pascrell. The gentleman from Texas needs to be aware I
want to update him that the administration did have some
question about the implementation, but was not knowledgeable at
the time of the progress that we have made in negotiations with
all the entities.
So as far as the administration--and correct me if I am
wrong, staff--the administration is perfectly happy with moving
along if we have, you know, all our eggs in place.
Mr. McCaul. If the gentleman will yield----
Mr. Pascrell. Sure.
Mr. McCaul. The testimonies we heard from the prior panel
of representatives from the Department of Homeland Security,
specifically stated that a 1-year extension would be in the
best interest of the administration.
Mr. Pascrell. Well, Congress opposes and the executive
disposes. So that is where we are at this particular time----
Mr. Souder. In all fairness, they have had only 2 days to
look at it.
I want to put on the record a couple of things for
clarification, because I am comparing apples to apples. In the
earlier example, the American banking industry was regulated,
and that 60 percent wasn't the problem. It was the 40 percent
that didn't have any regulations at all, the non-bank sector,
and the banks that got into the non-bank sector.
Here we have a regulated sector, and we more closely
resemble the banking industry arguing over how regulated they
should be, rather than whether they should be like the non-
banks that caused the financial sector problems.
Second, Mr. Lungren almost convinced me maybe, because I
like ethanol, that maybe the Government should make
regulations, but I will try to hang loose here and not get into
an ethanol debate.
The third question I want to get into is this process about
which I thought Mr. Langerman made a good point. Mr. Baldauf,
if New Jersey recommends to a company that this is a process
that could, in fact, save them money, those savings are
presumably over the life of the process?
Mr. Baldauf. Yes.
Mr. Souder. Do you take into consideration whether that
company has the cash to do it? Dr. Langerman made a very good
point that sometimes things don't appear the way they actually
are, whether it is the layout of the building, or whether it is
the mix of the processes that are confidential.
Unless we are going to set up a TARP program to fund IST,
part of the challenge right now for more marginal companies is,
a question of feasibility, whether they have the cash, since
the long term is irrelevant. In the bill, the only thing it
said is that the owner of the chemical is to ``continue in
business''. The bill does not indicate whether money is lost,
or if it gradually gets lost putting the owner in a risky
position. This will simply say ``continue in business.''
Mr. Pascrell. Would the gentleman let the witness answer
the question? I want to refer you to Section 2111, which talks
specifically about the costs and a technical liability. It is
in the bill.
Mr. Baldauf. In New Jersey's experience, we in no way,
shape or form recommend IST options or force them on a company.
It is possible, if we are aware that Company B does something
in a different State, you should look into this, but we would
not force it or recommend it.
However, if it was on the company's list of recommendations
and the company came to us and said, ``Feasibility this is
going to put us out of business. We can't afford it''----
Mr. Souder. I didn't say it necessarily put the company out
of business. I said it would cash strap them further. I was in
the retail franchise business. People would walk in and go,
``Improve the lighting. It will increase your sales. Improve
your radio advertising. It will increase your sales. Improve
your distribution, or painting on the trucks. It will improve
your sales.'' If you do them all, you will go out of business.
The challenge here is, infeasibility. It is not whether
they will go out of business, but rather what other tradeoffs
do they have? Is this truly essential to its security? Or is it
just a preference?
What is the marginal potential gain versus the cost to the
industry, not whether they will go out of business, but rather
within the range of their activities and within the realm of
competitive and international business, for example issues that
Mr. Jeppeson raised in the tradeoffs of farmers' yield, by
ending use of the product?
Technically, this doesn't cover transportation, so just-in-
time inventory may be better for the company to reduce costs,
however, we are putting more chemicals on the road more
frequently without even the jurisdiction to cover that area.
My specific question is, in terms of feasibility, do you
look at questions of cash flow, management, timing, and
implementation as opposed to just whether or not companies will
go out of business?
Mr. Baldauf. The answer is----
Mr. Pascrell. Can I read that section of the bill, please,
before you answer?
Mr. Souder. Mr. Pascrell, can I ask my question?
Mr. Pascrell. All right. You answer, and then I will read
the bill to you.
Mr. Souder. Then we can----
Mr. Pascrell. It is obvious you didn't read it. Go ahead.
Mr. Baldauf. The answer is----
Mr. Souder. I asked him about----
Mr. Baldauf [continuing]. Yes, we do look at all those
areas when we are looking at the feasibility. From our
experience, the facilities that have done IST at their site as
a part of our review to our knowledge have not put themselves
at a competitive disadvantage because of IST options they have
implemented since our rules came in place.
Mr. Souder. Is it true, that only 45 of the 157 chemical
companies in New Jersey are evaluated? In other words, have you
done a risk assessment, rather than doing this with every
company?
Mr. Baldauf. A risk assessment, an IST evaluation were the
45 chemical ones that were done, where 42 additional TCPA sites
are doing the IST evaluations now, so there will be a total of
87 IST evaluations done in the State at sites.
Mr. Souder. How did you determine which ones were assessed?
Mr. Baldauf. They were the high risks. They were the ones
in our toxic catastrophe prevention program, our State version
of EPA's 112(r) program.
Mr. Souder. So in the State of New Jersey, which is being
held up as a model here, about half will eventually at some
point be targeted, because you are doing a risk assessment. You
don't make mandatory recommendations. You don't have the
Department of Homeland Security making an arbitrary decision
and then letting the company appeal with the Department of
Homeland Security as the judge and jury.
You try to limit mandates--as a State model. However, that
really isn't what this bill is doing. Would you like to allow
civil lawsuits in New Jersey? Do you think that would be
helpful?
Mr. Baldauf. The way----
Mr. Souder. Would you like to be sued?
Mr. Baldauf. The way TCPA is delegated from EPA, EPA has
that citizen suit language in it. It tracks pretty close. I am
not a lawyer, but it seems to track pretty close. TCPA, over
the almost, well, 20-some years we have had it, we haven't had
an instance where the citizen suit was--we got to that point.
Mr. Pascrell. So, in other words, we have--time is up. We
are going to go vote.
But, in other words, Mr. Baldauf, there has not been a
flood of litigation in the State of New Jersey. True or false?
Mr. Baldauf. I can speak for the TCPA program, and that is
true. There has not been.
Mr. Souder. Mister----
Mr. Pascrell. Thank you. The committee has received written
testimony----
Mr. Souder. Mr. Chairman, when you ask a question that
contradicts some of my testimony, may I respond?
Mr. Pascrell. Go right ahead.
Mr. Souder. As I understand it, you said that you had
delegated potential lawsuits coming off of EPA. There is not a
statute that says they can sue you directly. It is a presumed
right; is that correct?
Mr. Baldauf. That is correct.
Mr. Pascrell. There hasn't been. There hasn't been, period.
We are talking about how many years, 20?
Mr. Baldauf. 1986.
Mr. Souder. He doesn't have a clause in the bill that says
that--the attorneys would have to go through their EPA-
designated transferred authority.
Mr. Pascrell. My friend from Indiana, are you finished?
Thank you.
The committee has received written testimony from
Greenpeace. Without objection, it will be added to the hearing
record.
Hearing no objections, so ordered.
[The information follows:]
Prepared Statement of Rick Hind, Legislative Director, Greenpeace
June 16, 2009
homeland security regulations (cfats) are wholly inadequate
comprehensive legislation is essential to security
inherently safer technologies will eliminate the catastrophic
consequences of an attack
``I feel very comfortable that we've taken all the reasonable steps,
but obviously if someone wants to fly an airplane into a plant, it's
very hard to guard against it.''--Charles O. Holliday, Jr., Chief
Executive Officer, DuPont, June, 2007.
``You know, the threat is just staring us in the face. I mean, all
you'd have to do is to have a major chemical facility in a major
metropolitan area go up and there'd be hell to pay politically. People
will say, `Well, didn't we know that this existed?' Of course, we
knew.''--Former Senator Warren Rudman (R-NH), November, 2003.
The September 11 terrorist attacks successfully used our own
infrastructure against us with tragic results. They also demonstrated
that tight perimeter security, such as in the case of the Pentagon, is
incapable of preventing such attacks. Should a chemical plant be
targeted, a truck bomb, a small plane, helicopter, or a high-powered
rifle would easily render the industry's current reliance on fence-line
security totally useless. In fact, U.S. chemical facilities have been
referred to as ``pre-positioned'' weapons of mass destruction (WMD).
Reports during the summer of 2007 of renewed terrorist's capacity
to carry out attacks inside the United States are a sobering reminder
of the nearly 6 years of neglect following the 9/11 attacks. The
vulnerability of U.S. chemical plants to terrorism and serious
accidents such as the 1984 disaster in Bhopal, India have been widely
recognized. The potential magnitude of these risks surpasses the 9/11
attacks. Once released these chemicals and gases can remain dangerous
for up to 14 miles in an urban area (20 miles in a rural area) and put
the lives of millions of people at risk.
The nature of these risks meets any definition of a weapon of mass
destruction. The manner in which people would be killed and injured is
terrifying. Poison gases such as chlorine will literally melt the lungs
of its victims causing them to drown in their own lung fluid (pulmonary
edema). Survivors could be left with life-long disorders.
Following the 9/11 attacks it was reported that 9/11 ringleader,
Mohamed Atta, visited a Tennessee chemical plant asking lots of
questions (December 16, 2001 Washington Post).
In the first 6 months of 2007 at least five successful terrorist
attacks in Iraq used relatively small (150 to 250 pound) cylinders of
chlorine gas to kill dozens of people. As a result the DHS began
briefing local bomb squads and chemical plants across the country
(April 24, 2007 USA Today).
In February and April, 2007 thefts of 150-pound cylinders of
chlorine gas occurred in California prompting questions by Members of
this committee to the DHS about their response to these thefts, any
other thefts, and plans to eliminate these vulnerabilities by using
inherently safer technologies.
U.S. chemical facilities were not built or designed to defend
against terrorist attacks. And predicting where an attack will take
place is a fool's errand. No one predicted that Timothy McVeigh would
attack the Federal Building in Oklahoma City in 1995, killing 168
innocent people.
On June 25, 2007, DuPont Chairman Charles O. Holliday Jr. told the
media that he worries most about a computer system failure or a
security breach at one of the company's chemical plants around the
world. ``I feel very comfortable that we've taken all the reasonable
steps, but obviously if someone wants to fly an airplane into a plant,
it's very hard to guard against it,'' said Holliday.
The Nation's most infamous example of this threat is the Kuehne
Chemical Company in South Kearny, New Jersey. According to Kuehne's own
reports to the U.S. Environmental Protection Agency (EPA), their plant
puts 12 million people in the Newark-New York City region at risk in
the event of a catastrophic release of chlorine gas stored on-site.
This is the largest single chemical plant risk in the Nation, but
according to the DHS more than 3,000 other plants each put 1,000 or
more people at risk. More than 100 U.S. plants each put a million or
more people at risk, according to their reports to the EPA.
What makes the Kuehne plant inherently dangerous is the use of
large quantities of chlorine gas to produce relatively harmless liquid
bleach (sodium hypochlorite). While Kuehne's largest business is water
disinfection, there are many safer alternatives to chlorine, including
ultra-violet light, ozone, and liquid bleach. A company in the very
same business as Kuehne, K2pure Solutions, plans to build multiple
facilities in the United States using a new just-in-time process for
producing chlorine gas that will not only eliminate the need for any
bulk shipments of chlorine gas but will also limit on-site storage of
chlorine gas to approximately 50 pounds at any one time. More details
on their technology are at: http://www.k2pure.com/.
what happens when perimeter security fails?
Continuing negligence by industry or Government will not be judged
kindly by posterity. Stephen Flynn, Senior Fellow in National Security
Studies at the Council on Foreign Relations wrote in his book, America
the Vulnerable, ``The morning after the first terrorist strike on this
sector, Americans will look around their neighborhoods and suddenly
discover that potentially lethal chemicals are everywhere, and be
aghast to learn that the U.S. Government has still not developed a plan
to secure them. The subsequent political pressure to shut down the
industry until some minimal new safeguards can be put in place--as we
did with commercial aviation following the 9/11 attacks--will be
overwhelming.''
In July, 2004, the Homeland Security Council estimated that
an attack on a single chlorine facility could kill 17,500
people, severely injure an additional 10,000 and result in
100,000 hospitalizations and 70,000 evacuations.
In January, 2004, the U.S. Naval Research Laboratory
testified before the Washington, DC City Council warning that
100,000 people could be killed or injured in the first 30
minutes of a catastrophic release of a tank car of chlorine or
similar chemical within blocks of Capitol Hill. They further
estimated that people could ``die at rate of 100 per second.''
In June, 2003 FBI specialist on weapons of mass destruction,
Troy Morgan, in a speech at a chemical industry conference
warned, ``You've heard about sarin and other chemical weapons
in the news. But it's far easier to attack a rail car full of
toxic industrial chemicals than it is to compromise the
security of a military base and obtain these materials.''
the 2006 interim chemical security law and regulations are fatally
flawed
The best that can be said for the new Department of Homeland
Security (DHS) chemical security regulations, ``Chemical Facilities
Anti-Terrorism Standards'' (CFATS) is that they represent an official
recognition of the widespread vulnerability of U.S. chemical plants to
terrorism.
The new DHS rules are based on a 744-word ``rider,'' Sec. 550 of
the Homeland Security Appropriations Act 2007. Sec. 550 authorizes
``interim'' regulations that will expire on October 4, 2009. It was
enacted with the expectation that Congress would expeditiously enact
permanent, comprehensive legislation to ``supersede'' Sec. 550's
regulations.
The DHS rules finalized on November 20, 2007 fail to provide
adequate protection for the Nation and communities living in the shadow
of thousands of U.S. chemical plants.
the interim chemical security law and dhs rules (cfats)
Prohibit the DHS from requiring any ``particular security
measure'' including safer technologies that can reduce or
eliminate the magnitude of an attack at virtually any chemical
facility.
To satisfy the chemical lobby, this was added to Sec. 550(a) to
prevent the use of safer technologies as a security measure but it also
undermines the effectiveness of the entire statute by undercutting the
DHS to credibly require ANY ``particular security measure.''
Fail to ensure priority protection of the 3,400 to 4,391
facilities each of which put 1,000 or more people at risk
according to the DHS.
The DHS reports that they now have approximately 6,000 facilities
in one of the four risk tiers with 140 in risk tier 1 and 680 in tier
2. This leaves approximately 5,000 in the lower two tiers with risk
profiles that likely put 1,000 or more people at risk. Furthermore,
Sec. 550 gives the Secretary of the DHS full discretion in determining
which facilities will be considered to ``present high levels of
security risk.'' Clearly more guidance is needed in prioritizing high-
risk facilities.
Fail to protect approximately 2,600 U.S. water treatment
plants as well as several other exempted categories.
Approximately 100 water treatment plants each put 100,000 or
more people at risk.
This exemption, also in Sec. 550(a), covers public water systems
regulated by the Safe Drinking Water Act and the Federal Water
Pollution Control Act, the Maritime Transportation Security Act of
2002, facilities owned or operated by the Department of Defense,
Department of Energy or regulated by the Nuclear Regulatory Commission.
In June 2007 Secretary Chertoff spoke to water facilities operators
warning them that even though they are exempt under the interim law
they are ``on the hook because you're going to have to do this
yourselves because the consequences of ignoring risks . . . will be
quite severe.'' Once again this gap needs to be closed with
comprehensive legislation.
DHS asserted the authority to prohibit States from
establishing stronger security standards.
Without any explicit statutory authority, the DHS asserted the
authority to preempt State programs that ``frustrate'' their
regulations. Although no State has yet been cited, this policy could
have had a chilling effect on new programs and appears aimed at serving
a chemical industry agenda to prevent States, such as New Jersey, from
requiring safer more secure technologies. However, this provision was
reversed in an amendment to Sec. 550 by Senator Frank Lautenberg (D-NJ)
in the DHS omnibus spending bill in December 2007. However, the interim
law expires in October 2009 and permanent legislation must retain the
right of States to set more protective standards than the Federal
Government.
Fail to protect the public's right-to-know by asserting
authority to classify previously public information as secret,
including information used in civil or criminal enforcement
actions.
Sec. 550(c) and resulting new DHS regulations overreach by going
beyond protecting common-sense security plans and vulnerabilities into
undermining enforcement and covering up governmental incompetence or
corporate liability.
Fail to require meaningful involvement of plant employees in
developing Security Vulnerability Assessments and Site Security
Plans.
The DHS responded to comments saying that ``there is nothing in the
rule that prohibits chemical facilities from involving employees in
their security efforts.'' While we should be thankful for that, such a
policy fails to tap the expertise of a workforce that is formally
trained in chemical hazard protection, accident prevention and
emergency response. Employees are the first line of defense and the
eyes, ears, and noses of chemical facilities. The failure to formally
involve employees in developing vulnerability assessments and security
plans is foolish from both a security and scarce resource perspective.
Fail to include whistleblower protections that would enhance
enforcement.
The DHS rules promise to set up an anonymous tip line but ignores
the long history of whistleblowers who have exposed waste, fraud, and
abuse. And in this case they could save thousands of lives.
Fail to enhance enforcement by allowing citizens to sue to
enforce the law, while allowing companies liberal appeals
procedures to challenge DHS orders and decisions.
Sec. 550(d) prevents anyone but the DHS from suing a plant owner or
operator to enforce any provision of this law. Once again, the law is
balanced in favor of protecting the rights of recalcitrant facilities
and/or violators and leaving innocent citizens facing overriding lethal
risks with no legal recourse.
Prohibit the public from knowing which facilities are
``high-risk'' or ``Top Tier'' plants.
Both DHS and corporate credibility will be in jeopardy if
communities cannot determine if a local chemical plant that poses a
threat is being dealt with or is in violation or is resisting orders by
the DHS. Nor will communities have the peace of mind of knowing whether
a plant has voluntarily converted to safer technologies and no longer
poses a threat to their community.
prioritize the most dangerous chemicals
The largest category of hazardous substances that can be
transformed into chemical weapons of mass destruction (WMDs) are toxic-
by-inhalation (TIH) gases. According to the U.S. EPA just four TIH
gases account for 55 percent of all chemical processes that threaten
communities Nation-wide. These are:
anhydrous ammonia--32.5% (8,343 processes);
chlorine--18.3% (4,682 processes);
sulfur dioxide--3% (768 processes);
hydrogen fluoride--1.2% (315 processes).
Unfortunately, the DHS has set dangerously high threshold
quantities for many of these substances such as: Anhydrous Ammonia--
10,000 lbs.; Chlorine--500 to 2,500 lbs.
Given the successful terrorist attacks in Iraq using small
quantities of chlorine (approximately 150 lbs.) and recent thefts in
the United States, it would be prudent to establish lower threshold
quantities for such ubiquitous hazardous substances. Lower thresholds
won't necessarily trigger more regulations, they simply give the DHS a
more complete picture of where hazards are. Regulations should be
driven by populations at risk.
safer processes & technologies eliminate the consequences of an attack
While these chemical processes deserve high priority because of
their prevalent use at thousands of facilities, especially at high-
threat facilities, there are widely available safer alternatives for
each of them. For example, the Center for American Progress (CAP)
conducted an analysis of EPA's Risk Management Program data and
identified 284 facilities that have converted since 1999. See full
report at: http://www.americanprogress.org/issues/2006/04/
b681085_ct2556757.html.
Examples of conversions from these chemicals and continuing threats
include:
More than 200 water treatment facilities (including
Washington, DC) converted to safer alternatives such as
ultraviolet light, eliminating the use of chlorine and sulfur
dioxide gas. But over 100 water treatment plants still threaten
more than 100,000 people.
Ninety-eight petroleum refineries use safer alternatives to
hydrogen fluoride (HF). But 50 refineries still threaten
millions of people with the use of HF.
At least 36 electric power plants use safer alternatives to
anhydrous ammonia gas such as dry urea. But 166 power plants
still use anhydrous ammonia gas each threatening an average of
21,506 people.
While the CAP analysis proves the technological feasibility of
safer alternatives, CAP estimates that at this rate of conversion,
without any new regulatory requirements, it will take 45 years to
eliminate hazards that pose the highest risk to America's hometowns.
The CAP analysis shows that 87% of the converted facilities spent
less than $1 million and half spent less than $100,000. Clearly these
conversion costs pale in comparison to the cost of disaster response,
relocating communities, defending against personal injury law suits or
resolving environmental clean up liability or even conventional
security costs.
A 2006 GAO report (GAO-06-150), Homeland Security: DHS Is Taking
Steps to Enhance Security at Chemical Facilities, But Additional
Authority Is Needed, concluded, ``Implementing inherently safer
technologies potentially could lessen the consequences of a terrorist
attack by reducing the chemical risks present at facilities, thereby
making facilities less attractive targets.''
A Government Accountability Office report (GAO-05-165) identified
chlorine gas and 90-ton chlorine rail cars as ``among the top five
terrorist-related wastewater system vulnerabilities.'' Among the top
three recommendations: ``Replacing gaseous chemicals used in wastewater
treatment with less hazardous alternatives.'' In addition, the largest
majority of experts gave replacing these chlorine facilities the
highest priority for Federal funding.
examples of safer technologies at water facilities
For example, the Blue Plains sewage treatment plant in Washington,
DC halted its use of chlorine and switched to safer chemicals just 8
weeks after the 9/11 attacks due to fears of another attack. The plant
had seven rail cars of chlorine on-site following the 9/11 attacks. The
conversion only cost approximately $0.50 per year for each water
customer. In other words, by using safer technologies we can neutralize
and eliminate targeting by terrorists and prevent catastrophic
accidents as well at negligible costs.
Switching to safer ``drop-in'' chemicals, such as relatively
harmless sodium hypochlorite (liquid bleach) without a long-term plan
can leave lingering risks in communities where the bleach is produced.
While switching to bleach at a sewage plant clearly eliminates the
immediate hazard at that facility, the bleach formulators who use and
store large quantities of chlorine gas to make bleach still pose
serious risks to workers and surrounding communities.
A new North American company, K2pure Solutions, have announced
plans to build multiple facilities in California and other States using
a new just-in-time process for producing chlorine gas that will not
only eliminate the need for any bulk shipments of chlorine gas but will
also limit on-site storage of chlorine gas to approximately 50 pounds
at any one time. More details on their technology are at: http://
www.k2pure.com/.
Bleach and water disinfectant formulators are also well positioned
to guide their customers toward other safer alternatives such as ozone
and ultra-violet light (UV) which are widely available and do not pose
catastrophic hazards. UV is superior to chlorine or chlorine bleach
because it also kills deadly anthrax and the parasite cryptosporidium
which chlorine does not. In 1993 more than 100 people were killed and
400,00 were made sick by cryptosporidium when it overwhelmed the
chlorine treated drinking water system of Milwaukee, Wisconsin.
______
Q&A on Methods to Reduce the Consequences in Sec. 2111 of the June 9,
2009 Homeland Security Committee Discussion Draft of ``The Chemical
Facility Anti-Terrorism Act of 2009''
Question. Does the bill require ALL chemical facilities to adopt
``methods to reduce the consequences of a terrorist attack''?
Answer. No, this requirement is conditional and only covers the
highest-risk (Tiers 1 & 2) facilities selected by the Department of
Homeland Security (DHS). As of May 2009, the DHS designated
approximately 820 facilities in the two highest risk tiers.
The conditions for implementing safer methods and technologies are:
They must significantly reduce the risk of death or injury;
They must not shift risks to other U.S. facilities;
The must be technically feasible;
They must not impair the plant's ability to do business at
that location.
Question. Will wastewater facilities be regulated and therefore be
required to implement safer methods or technologies?
Answer. Yes, the bill does include wastewater facilities. Only
those water facilities that are designated in the highest risk tiers by
the DHS would be conditionally required to implement safer methods or
technologies.
Question. Will this requirement burden facilities with unacceptable
costs?
Answer. No, a survey by the Center for American Progress identified
284 facilities that switched to safer methods since 1999. They found
that 87 percent spent less than $1 million, and one half reported
spending less than $100,000. And 34% of facilities expected ``cost
savings or improved profitability.'' Washington, DC converted its
sewage treatment plant within 90 days after the 9/11 attacks for less
than $0.50 per water customer per year. The bill also authorizes
funding for 3 years to defray the cost of implementing safer methods
and technologies.
Question. Will this requirement result in job losses?
Answer. No, plants that invest in the safety and security of their
infrastructure invest in American communities and eliminate or reduce
their: liability, regulatory costs and improve workplace safety. Major
trade unions, such as the United Steelworkers, United Auto Workers,
International Chemical Workers/UFCW and Communication Workers of
America support the bill.
Question. Will the use of safer technologies shift risks locally or
nationally?
Answer. No, the bill specifically prohibits the shifting of these
risks to other facilities in the United States.
Question. Does the bill micro-manage chemical facilities by
requiring them to adopt a specific safer technology?
Answer. No, each high-risk facility is free to choose the most
appropriate technology or process for their facility.
Question. Should Government require safer design and technologies
to be used in the private sector?
Answer. Yes, the Federal Aviation Administration (FAA) has required
airplane security and safety standards for decades. The feasibility and
cost-effectiveness are balanced against security and safety needs.
After 9/11 all commercial airliners were required to harden cockpit
doors and X-ray machines for airline baggage were installed at hundreds
of airports.
Question. Is this requirement more appropriate for environmental
legislation than security legislation?
Answer. No, in 2006 the GAO (GAO-06-150), concluded that
``Implementing inherently safer technologies potentially could lessen
the consequences of a terrorist attack by reducing the chemical risks
present at facilities, thereby making facilities less attractive
targets.'' And a June 2006 National Academy of Sciences study endorsed
the adoption of safer technologies as ``the most desirable solution to
preventing chemical releases'' from a terrorist attack.
In a February 27, 2008 statement the Association of American
Railroads said, ``It's time for the big chemical companies to do their
part to help protect America. They should stop manufacturing dangerous
chemicals when safer substitutes are available. And if they won't do
it, Congress should do it for them in the Chemical Facility Anti-
Terrorism Act of 2008.''
Question. Can different types of chemical facilities use safer
methods to reduce the consequences of risks at more than 6,000
regulated facilities?
Answer. Yes, many types of facilities are among the 284 facilities
that have already converted since 1999. Most facilities (89 percent )
are ``users'' of chemicals rather than chemical makers. These plants
can often switch to safer methods even faster than chemical makers.
______
additional expert opinions on safer technologies
2006 GAO report (GAO-06-150), Homeland Security: DHS Is Taking
Steps to Enhance Security at Chemical Facilities, But Additional
Authority Is Needed, concluded, ``Implementing inherently safer
technologies potentially could lessen the consequences of a terrorist
attack by reducing the chemical risks present at facilities, thereby
making facilities less attractive targets.''
May 2006 report by the National Academy of Sciences, ``Terrorism
and the Chemical Infrastructure: Protecting people and Reducing
Vulnerabilities,'' recommended more research on new technologies but
stated, ``The most desirable solution to preventing chemical releases
is to reduce or eliminate the hazard where possible, not to control it.
This can be achieved by modifying processes where possible to minimize
the amount of hazardous material used, lower the temperatures and
pressures required, replace a hazardous substance with a less hazardous
substitute, or minimize the complexity of a chemical process.''
``Railroads agree, and strongly support efforts aimed at finding
and utilizing `inherently safer technologies' as substitutes for
hazardous materials, especially TIH.''--Association of American
Railroads (AAR) President, and CEO Edward R. Hamberger in testimony
before the House Transportation and Infrastructure Committee's Railroad
Subcommittee.
Retired Rohm and Haas engineer, Dennis Hendershot advised, ``The
first solution to a process safety problem should always be to get rid
of the hazard, not control it.''
Trever Kletz, formerly with Imperial Chemical Industries (ICI)
said, ``The very best way to prevent an explosion is to simply replace
the material that explodes with one that does not or at least keep the
stock down so low that it hardly matters if it all leaks out.''
state preemption
As the DHS acknowledged in their proposed rule, ``Sec. 550 was
silent on preemption'' of States' authority to set stronger security
standards. However, the DHS chose to assert Federal preemption without
statutory authority in an apparent effort ``to preserve chemical
facilities flexibility to choose security measures.'' Fortunately, this
provision was reversed in an amendment to Sec. 550 by Senator Frank
Lautenberg (D-NJ) in the DHS omnibus spending bill in December 2007.
However, the interim law expires in October 2009. Any permanent
legislation must clearly retain the right of States to set more
protective standards than the Federal Government.
While few would argue that the Federal Government should not
preempt States' authority to establish minimum standards, it is self-
defeating to bar States from setting stronger security standards by
establishing a Federal limit or ceiling on security protections.
The Federal Government should welcome every State pitching in to
address the unique situation it faces. New Jersey was the first State
to implement a chemical security program that requires an assessment of
safer, more secure technologies. According to Governor Corzine, a
Federally mandated roll-back of New Jersey's protections ``could have
the effect of weakening chemical security and leaving New Jersey and
its neighbors--including New York City--more vulnerable to devastation
from a terrorist attack on our chemical facilities.''
risk-based performance standards and safer technologies
A safer technology provision was contained in the 2006 and 2008
House Homeland Security Committee passed bills, H.R. 5695 and H.R. 5577
respectively. Those bills required priority chemical facilities to
utilize safer, more secure technologies, where feasible and cost-
effective to reduce or eliminate the magnitude of an attack on a
chemical facility. By substituting inherently dangerous chemicals or
processes with inherently safer technologies (IST) the risk of a
catastrophic release at a chemical plant can be eliminated or
dramatically reduced. IST is the best tool available to completely
mitigate facility vulnerabilities and safe guard communities.
The DHS has had wide discretion to establish ``risk-based
performance standards.'' The DHS could have chosen to establish
performance standards that deter an attack or mitigate the consequence
of an attack by safeguarding, reducing, or eliminating the risk or
desirability of the facility as a target. This could have been achieved
by issuing guidance to suggest that counter measures include the use of
safer, more secure technologies to meet the performance standard or opt
out of the regulations entirely.
In fact, the DHS mentioned in their Federal Register notice of
proposed rule making, Annex B, page 78315, that a ``security event may
be larger than the typical EPA Risk Management Program (RMP) worst-case
analysis.'' In a 2001 U.S. Army Surgeon General study estimated that
900,000 to 2.4 million people could be killed or injured in a terrorist
attack on a U.S. chemical plant in a densely populated area. According
to the Environmental Protection Agency (EPA), 106 chemical plants
threaten a million or more people. Chlorine gas is the most common
industrial chemical hazard at the 100 highest risk plants. According to
the Chlorine Institute, a chlorine gas cloud can drift through a city
and remain dangerous for at least 14 miles and 20 to 25 miles in rural
areas.
These alternatives include a wide range of options such as process
changes, chemical substitutions, smaller storage vessels or any other
measures that will reduce or eliminate the inherent hazard posed by the
facility's storage, use, or production of an ultra-hazardous substance.
This range of options is far from requiring any ``particular security
measure,'' it is up to the plant operator to choose which safer
technology, process, chemical, or storage vessel reduces or eliminates
these risks.
Only about 13 percent of the universe of facilities in the EPA's
Risk Management Program (RMP) are members of the chemical manufacturers
trade association, the American Chemistry Council. Whereas the
overwhelming majority of RMP facilities are chemical users, including:
Petroleum refineries that use hydrogen fluoride; power plants that use
anhydrous ammonia; and water treatment plants that use chlorine and
sulfur dioxide gas. All of these have safer alternatives already widely
in use at hundreds of facilities.
benefits of safer technologies
The use of safer technologies offers a more competitive and stable
business plan with fewer regulations, potentially zero liability,
sustainable profitability, better relationships with workers and
neighboring communities, and no threat of a catastrophic attack or
accident. Specifically, the use of safer technologies will likely
result in a facility no longer being subject to DHS's CFATS
regulations.
Obviously, chemical facilities located on-site at nuclear power
plants, water treatment works, iconic facilities such as Disney World,
Camp David, etc. also need to be considered for priority protection.
However, using safer technologies as a countermeasure at these
facilities will lessen the lethality that an attack on them would pose.
Given DHS's finite resources and the late start the Nation has in
addressing chemical security it is urgent that we use safer
technologies to mitigate the consequence of an attack. By doing so we
eliminate risks, safeguard communities and save scarce money and
resources to protect targets that cannot be so neutralized (airports,
U.S. Capitol, etc.).
The Annex in the DHS proposed rule suggests that plant owners and
operators should assume that ``international terrorism'' is possible at
every facility. A better assumption would be to recognize that every
plant could be the target of someone no one anticipated. The bombing of
the Federal Building in Oklahoma City in 1995 was initially thought to
be committed by ``Middle Eastern terrorists.'' It turned out to be the
insane act of a U.S. Army trained Gulf War veteran. How many more
Americans have been trained in the art of war since then? Other
incidents and threats ranging from Columbine, to international drug
cartels and the spectacularly failed intelligence leading up to the 9/
11 attacks, makes guessing where such an attack will come from nothing
more than a fool's errand. The only prudent thing to do is attempt to
remove unnecessary vulnerabilities as soon as technically feasible.
Even without terrorist attacks, we will save countless lives in
accident prevention.
top-tier high-risk facilities
According to a June 2005 Congressional Research Service report
examining EPA's RMP database, the EPA has identified 6,883 facilities
that each put 1,000 or more nearby residents at risk and 553 of these
put 100,000 or more people at risk.
However, using a methodology that includes only one-sixth the area
surrounding a plant, the Department of Homeland Security (DHS) has
estimated at different times a range of 3,400 to 4,391 chemical
facilities that each put 1,000 or more people at risk. Of these, DHS
identified 272 facilities that each put 50,000 or more people at risk.
The DHS calculation looks at a 60 degree ``kill zone'' down wind from a
facility. The EPA's RMP program uses a methodology that creates a 360
degree ``vulnerability zone'' around a facility. Under the RMP,
chemical plant owners and operators submit worst-case disaster
scenarios using U.S. Census data to calculate the number of people
living in each ``vulnerability zone.'' In Annex B of the DHS proposed
rule on FR page 78315 warns, ``the security event may be larger than
the typical EPA RMP worst case analysis.''
At a minimum, any facility that endangers 1,000 or more people
should be considered a ``top tier'' or ``high-risk'' facility.
alternative security plans (asps)
ASPs were written by and for oil and chemical industry trade
associations. All of them avoid requiring safer technologies and do not
represent the best way to safeguard communities at risk. Congress
should not allow the DHS to substitute ASPs for Site Security Plans for
high priority facilities.
consultation with other agencies
As a new department with minimal resources, the DHS should
routinely collaborate and consult with other more experienced
Government agencies. In their January 2006 report (GAO-06-150) the
Government Accountability Office concluded, ``By tapping EPA's
expertise on chemical facilities and general facility safety issues,
DHS can enhance its efforts to identify high-priority facilities and
assess facility vulnerabilities as well as better target Government
resources to those facilities posing the greatest risk.''
Congress should require the DHS to consult with the EPA as the GAO
recommended and develop guidance documents to rapidly identify high-
risk facilities and promote the use of inherently safer technologies as
a mitigation and countermeasure technique to reduce risks and safeguard
communities. Similar consultation with the U.S. Chemical Safety and
Hazard Investigation Board, which has enormous experience in diagnosing
chemical accidents and recommending mitigation techniques, should be
aggressively pursued.
buffer zones
According to the EPA (Belke, 2000), the high number of facilities
that put residents at risk as far as 14 to 25 miles away from a release
``is primarily due to the prevalent use of 90-ton rail tank cars for
chlorine storage.'' The Chlorine Institute pamphlet 74, ``Estimating
the Area Affected by a Chlorine Release'' (1998), shows a plume can be
hazardous up to 41.5 miles.
The Bureau of Alcohol Tobacco, Firearms, and Explosives regulations
(27 CFR 555.218) prohibits the storage of a similar quantity of
explosives within 2,010 feet of inhabited buildings.
In 2006 the Netherlands and Akzo Nobel completed a $270 million
program to relocate chlorine production facilities within Holland to a
location that will eliminate the transport of chlorine by rail in the
Netherlands.
Given the large potential plume of toxic-by-inhalation substances
and large quantities of some flammables such as propane, a much larger
buffer zone is called for with regard to high-risk TIH facilities.
Without the use of safer technologies to convert existing plants
into safer functioning plants, relocating them to more remote areas
should be a an option, especially if an owner/operator insists that
there is no safer alternative.
Short of relocation, the DHS should be required to issue guidance
to mitigate these threats by using smaller storage vessels that would
help reduce risks, deter, and discourage potential attackers. In
addition, the DHS should facilitate owner/operator collaboration with
local government and emergency responders to conduct practice
evacuation drills. If a plant cannot substantially reduce its risks,
the owner/operators and Government agencies have an obligation to
ensure that at-risk citizens can reasonably be evacuated.
New facilities should be prohibited from locating in densely
populated areas.
brief history of federal inaction
While the DHS proposed rule issued December 28, 2006 contained a
``Brief History of Federal Pre-Existing Chemical Security and Safety
Programs,'' it ignored the ``general duty clause'' in 13 Section 112(r)
of the 1990 Clean Air Act which gives the President and the
Environmental Protection Agency (EPA) broad authority to require
chemical facilities to prevent catastrophic releases of poison
chemicals. After drafting legislation, guidance, and regulations in
June 2002, the administration withdrew its proposals, in part, under
pressure from the oil and chemical industry.
On July 22, 2004 ``The 9/11 Commission Report'' identified four
failures in preventing an attack by the U.S. Government, the first of
which was the failure of ``imagination.'' A continuing lack of
imagination today exposes millions of Americans to Bhopal magnitude
risks largely because new laws or regulations have not yet been adopted
to clarify the chemical industry's obligation to prevent catastrophic
releases at U.S. chemical plants. In June, 2002 a promising proposal
drafted by the EPA could have completed the first phase of such a
program by the middle of 2003 but it was derailed by the White House in
the fall of 2002. It was not unlike a bill (S. 1602) authored in 2001
by Senator Jon Corzine (D-NJ) and based on a bill introduced by Senator
Frank Lautenberg (D-NJ) in 1999.
The EPA's 2002 proposal included ``substituting less hazardous
chemicals for extremely hazardous ones.'' The conversion of Washington,
DC's main sewage treatment plant from chlorine to safer chemicals, just
8 weeks after 9/11, exemplifies the feasibility of such a strategy. At
the time of the attacks they had 7 90-ton rail cars of chlorine stored
on-site.
Of the 15,000 facilities required to report their worst-case
chemical disaster scenarios to the EPA's RMP, 7,728 plants pose an
``off-site consequence'' (OSC) to more than 1,000 people. Approximately
100 facilities reported an OSC to the EPA putting 1 million or more
people at risk. Approximately 65 percent of these facilities' ``worst-
case scenarios'' are chlorine disasters. Rather than address these
risks through the new regulations suggested by the EPA, the DHS used a
new methodology that downsized the priority list of chemical plants by
43 percent to 3,400 facilities that put 1,000 or more people at risk.
EPA's 2002 chemical security proposal was slated for a media
``rollout'' at the White House. According to draft documents, ``higher
priority chemical facilities should be able to complete a vulnerability
assessment and address security vulnerabilities as described in the
guidance in 12-18 months.'' In other words many facilities could
already have eliminated or reduced their hazards by early 2004.
EPA's 2002 documents included a question and answer sheet for EPA
Administrator Whitman which said, ``Using existing authority under the
Clean Air Act, we believe that the guidance and regulation I have
announced today are the quickest paths to improving chemical facility
security . . . If we later find that there are legislative gaps, then
we will consider seeking legislation.''
Ultimately, the reversal by the Bush administration and the
lobbying pressure by the industry (American Chemistry Council, American
Petroleum Institute, etc.) paid off and chemical security legislation
was excluded from the Homeland Security Act signed into law in November
2002.
In March, 2003 a report by the General Accounting Office (GAO)
concluded ``EPA has not attempted to use these Clean Air Act provisions
[because] EPA is concerned that such an interpretation would pose
significant litigation risk . . . ''. The GAO concluded that chemical
facility security would be more effectively addressed by passage of
specific legislation.
In December 2003 President Bush further undermined EPA's authority
and issued a directive (Directive/HSPD-7) limiting EPA's role on
chemical security to ``drinking water and water treatment systems.''
Under questionable legal authority, this directive attempts to shift
responsibility for 15,000 chemical plants to the DHS, which at the time
had no legislative authority, experience, or inclination to regulate
this industry.
In January 2005, former White House homeland security deputy,
Richard Falkenrath told the Senate Homeland Security and Governmental
Affairs Committee, ``the federal government has made no material
reduction in the inherent vulnerability of hazardous chemical targets
inside the United States. Doing so should be the highest critical
infrastructure protection priority for the Department of Homeland
Security in the next two years.''
In his book, ``America the Vulnerable'' Stephen Flynn, of the
Council on Foreign Relations warned, ``The chemical industry deserves
urgent attention because the stakes are high, the opportunities for
terrorists are rich, and no credible oversight process exists. It is
the very ubiquity of the U.S. chemical industry that gives it potential
to be a serious source of national alarm.''
In 2006 an intensive industry lobbying campaign successfully killed
comprehensive chemical security legislation (H.R. 5695 and S. 2145)
that was voted out of the authorizing committees in the House and
Senate in 2006. Instead, the industry worked closely with Republican
leaders to draft a 740-word ``rider'' to the 2007 DHS Appropriations
bill. The only major concession they made was to keep it an ``interim''
3-year statute until Congress enacts permanent legislation. In 2007,
the industry is urging Congress NOT to change this temporary statute.
To better understand the lobbying resources the industry used to
derail legislation since 2001 we surveyed the lobbying records of the
relevant industries in the Office of the Secretary of the Senate at:
http://sopr.senate.gov.
Greenpeace identified 238 industry lobbyists that listed chemical
security as part of their portfolio in 2007. Based on their lobby
reports we estimate that industry lobbyists spent approximately $12
million to lobby on chemical plant security legislation in 2007. Lobby
organizations identified included trade associations such as the
American Chemistry Council (ACC), American Petroleum Institute (API),
U.S. Chamber of Commerce and companies such as Dow Chemical, DuPont,
ExxonMobil and Halliburton and lobby firms such as Bob Moss, Ogilvy and
Holland & Knight.
Alternatively, member companies of the Association of American
Railroads (AAR), such as CSX, BNSF & Norfolk Southern, are members of
trade associations lobbying with the chemical industry, yet the AAR
issued a statement in February 2008 saying, ``It's time for the big
chemical companies to do their part to help protect America. They
should stop manufacturing dangerous chemicals when safer substitutes
are available. And if they won't do it, Congress should do it for
them.''
deadly accidents
The 1984 Union Carbide's Bhopal, India plant had the worst
industrial accident in history. Forty tons (half a rail car) of methyl
isocyanate (MIC) leaked into the community at midnight killing 8,000
people within days and claiming another 12,000 lives since.
In June, 2004, three people were killed in a train accident in a
remote area southwest of San Antonio, Texas when a tank car carrying
chlorine broke open in the 25 mph crash, releasing a portion of the
tank car contents.
On January 6, 2005 ten people were killed, 58 hospitalized and
hundreds sought treatment in Graniteville, South Carolina when chlorine
was released again when one train slammed into a parked train in the
middle of the night. The cars involved were allegedly state-of-the-art
construction.
Both of these tragedies could have resulted in a much higher number
of fatalities and injuries if they had occurred in densely populated
areas.
comprehensive and permanent chemical security legislation is urgently
needed
We have lost over 6 years since the 9/11 attacks. Legislation in
name only will not protect communities. Programs limited to fence-line
or perimeter security will not prevent an attack or eliminate the
consequence of a successful attack.
A key test of whether chemical facility security legislation will
protect the millions of Americans still at risk is whether it contains
minimum standards and truly protective provisions that:
Require all plants to assess the feasibility of safer more
secure methods and technologies that can eliminate the
consequences of an attack on a chemical plant.
Require ``high-risk'' facilities to use safer methods,
technologies, or chemicals.
Insure that the 3,400 to 4,400 facilities that DHS
identified as posing a risk to 1,000 or more people are
included in the ``high-risk tier.''
Includes protection of approximately 3,000 U.S. water
treatment plants and other chemical facilities currently
explicitly exempted by the temporary law.
Expedite deadlines by when DHS will require and approve Site
Security Plans.
Require meaningful involvement of plant employees in
developing Security Plans.
Include whistle-blower protections to enhance enforcement.
Provide basic information to the public on facility
compliance or non-compliance of the law.
Ensure the right of all States to establish stronger
security standards.
Enhance enforcement by allowing citizen suits.
NOTE: See April 14, 2009 blue-green coalition letter to U.S. House
of Representatives from 52 organizations in Appendix A on page 18.
References
Ackerman, Frank; Massey, Rachel. ``The Economics of Phasing Out
PVC''. 2003 Global Development and Environmental Institute, Tufts
University.
Adams, Valerie, Chemical Warfare, Chemical Disarmament 1990,
Indiana University Press.
Andress, Carol, ``Eliminating Hometown Hazards: Cutting Chemical
Risks at Wastewater Treatment Facilities,'' Environmental Defense 2003.
Argonne National Laboratories, ``A National Risk Assessment for
Selected Hazardous Materials Transportation,'' 2000 www.dis.anl.gov/ep/
ca/ep_ca_home.html.
Belke, James, ``Chemical Accident Risks in U.S. Industry--A
Preliminary Analysis of Accident Risk Data From U.S. Hazardous Chemical
Facilities,'' U.S. Environmental Protection Agency September 2000.
Briggs, Rachel A., Basic Guide to Pesticides: Their Characteristics
and Hazards. 1992, Taylor and Francis, Washington, DC.
Durnil, Gordon K. The Making of a Conservative Environmentalist.
1995 Gordon K. Durnil.
Geiser, Kenneth. Materials Matter: Toward a Sustainable Materials
Policy. 2001 Massachusetts Institute of Technology.
Grace, Robert. ``Cargill Dow Launches PLA Plant''. Plastics News.
November 12, 2001. p. 16.
Flynn, Stephen. America the Vulnerable How Our Government Is
Failing to Protect Us from Terrorism. 2004 Harper Collins.
International Chemical Secretariat. Report 6:04: Cry Wolf--
predicted costs by industry in the face of new regulations. 2004
International Chemical Secretariat.
International Joint Commission. ``A Strategy for Virtual
Elimination of Persistent Toxic Substances, Volume 1''. 1993,
International Joint Commission.
International Joint Commission. ``A Strategy for Virtual
Elimination of Persistent Toxic Substances, Volume 2''. 1993,
International Joint Commission.
International Joint Commission. ``Sixth Biennial Report on Great
Lakes Water Quality''. 1992 International Joint Commission.
International Joint Commission. ``Seventh Biennial Report on Great
Lakes Water Quality''. 1994 International Joint Commission.
Johnson, Jeff. ``Simply Safer: Inherently safer design promises
safer plants through better chemistry and engineering.'' Chemical and
Engineering News, Vol. 81, No. 5. February 3, 2003, pp. 23-26.
Lewis, Sanford. The Safe Hometowns Guide: How to do a Community
Reassessment of Chemical Site Safety and Security After September 11,
2001. 2002 The Safe Hometowns Initiative.
McDonough, William; Braungart, Michael. Cradle to Cradle: Remaking
the Way We Make Things. 2002 McDonough and Braungart. North Point
Press.
McGinn, Anne Platt. Worldwatch Paper 153: Why Poison Ourselves? A
Precautionary Approach to Synthetic Chemicals. 2000, Worldwatch
Institute.
National Research Council. Alternative Agriculture. 1989 National
Academy Press.
Orum, Paul, ``Preventing Toxic Terrorism How Some Chemical
Facilities are Removing Danger to American Communities,'' the Center
for American Progress, April 2006.
Schierow, Linda-Jo, Congressional Research Service, ``Chemical
Facility Security'' Updated March 24, 2006.
Stringer, Ruth; Johnston, Paul. Chlorine and the Environment: An
Overview of the Chlorine Industry. 2001 Kluwer Academic Publishers.
The 9/11 Commission Report. Final Report of the National Commission
on Terrorist Attacks Upon the United States. 2004 W.W. Norton &
Company
The Chlorine Institute, Inc. Pamphlet 74: Estimate the Area
Affected by a Chlorine Release. 1998 The Chlorine Institute, Inc.
The Chlorine Institute, Inc. Pamphlet 66: Recommended Practices for
Handling Chlorine Tank Cars January 2001 The Chlorine Institute, Inc.
Thornton, Joe. Pandora's Poison: Chlorine, Health, and a New
Environmental Strategy. 2000 Massachusetts Institute of Technology.
U.S. General Accounting Office, ``Rail Safety and Security: Some
Actions Already Taken to Enhance Rail Security, but Risk-based Plan
Needed,'' (GAO-03-435).
U.S. Government Accountability Office, ``Wastewater Facilities:
Experts' Views on How Federal Funds Should Be Spent to Improve
Security'' (GAO-05-165), January 2005.
U.S. Government Accountability Office, ``Homeland Security: DHS Is
Taking Steps to Enhance Security at Chemical Facilities, But Additional
Authority Is Needed,'' (GAO-06-150), January 2006.
U.S. Naval Research Laboratory, testimony before the City Council
of Washington, DC by Dr. Jay P. Boris, Chief Scientist and Director of
the Laboratory for Computational Physics and Fluid Dynamics, October 6,
2003.
Appendix A.--Letter*
---------------------------------------------------------------------------
* Submitted by: International Chemical Workers Union Council/UFCW;
Sierra Club United Steelworkers (USW); International Brotherhood of
Teamsters; United Automobile Aerospace and Agricultural Implement
Workers of America (UAW); American Federation of State, County and
Municipal Employees (AFSCME); Communications Workers of America (CWA);
Physicians for Social Responsibility; OMB Watch; Greenpeace; NJ Work
Environment Council; U.S. Public Interest Research Group; Environmental
Health Fund; Advocates for Environmental Human Rights; American
Association on Intellectual and Developmental Disabilities; Clean New
York; Environment America; Clean Water Action; Connecticut Coalition
for Environmental Justice; Empire State Consumer Project; Ecology
Center Healthy Building Network; Environmental Health Strategy Center;
Healthy Schools Network; Environmental Justice Action Group of WNY
Kentucky Environmental Foundation; Citizens' Environmental Coalition;
Michigan Environmental Council; Mossville Environmental Action Now;
Service Employees International Union (SEIU); Natural Resources Council
of Maine; Sciencecorps; Silicon Valley Toxics Coalition; US Campaign
for Justice in Bhopal; Friends of the Earth Commonweal; Deep South
Center for Environmental Justice; National Refinery Reform Campaign;
National Bucket Brigade Coalition; Center for International
Environmental Law; Environmental Working Group; Institute for
Children's Environmental Health International; Association of Fire
Fighters (IAFF); Detroiters Working for Environmental Justice; Green
Harvest Technologies; Alliance@IBM; Environmental Defense Fund Maryland
Pesticide Network; Beyond Pesticides; Strategic Counsel on Corporate
Accountability; Natural Resources Defense Council; Maine People's
Alliance.
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April 14, 2009.
Dear Representative: U.S. chemical plants remain one of the sectors
of America's infrastructure most vulnerable to terrorist attacks. The
Department of Homeland Security (DHS) has identified approximately
7,000 high-risk U.S. chemical facilities. However, unless Congress
replaces a flawed temporary law with a comprehensive chemical security
program, millions of Americans will remain at risk.
The statute Congress passed in 2006 temporarily authorized
``interim'' regulations that are wholly inadequate to protect
communities. Furthermore these rules expire on October 4, 2009 leaving
the 111th Congress only 6 months to enact truly protective legislation.
Congress must pass comprehensive legislation before the temporary law
expires.
Among the fatal flaws in the ``interim'' statute:
It prohibits the DHS from requiring the most ironclad
security measures. DHS cannot require any specific ``security
measure,'' including the use of safer and more secure chemical
processes that can eliminate catastrophic hazards posed by
poison gas, even when cost-effective alternatives are readily
available.
It explicitly exempts thousands of chemical facilities,
including approximately 2,650 water treatment facilities, some
of which put major cities at risk.
It fails to involve plant employees in the development of
vulnerability assessments and security plans or protect
employees from excessive background checks.
In March 2008 the House Homeland Security Committee adopted the
``Chemical Facility Anti-Terrorism Act of 2008'' (H.R. 5577) in a
bipartisan vote. H.R. 5577 addresses many of the flaws in the interim
law. However, the chemical manufacturers lobby opposed it and favors
making the interim law permanent.
The price of failure could be staggering. According to a 2008
Congressional Research Service review of EPA data, 100 U.S. chemical
plants each put 1 million or more people at risk. In 2004 the Homeland
Security Council projected that an attack on a chemical facility would
kill 17,500 people, seriously injure 10,000 more people and send an
additional 100,000 people to the hospital.
The good news is that most of these hazards are preventable. Since
2001 more than 220 chemical facilities have switched to safer and more
secure chemicals or processes which have eliminated risks to millions
of people. Cost-effective safer technologies are used in a wide variety
of facilities including water treatment plants, power plants, oil
refineries, and other manufacturers. Many facilities, however, have yet
to adopt safer technologies. More than 7 years after the 9/11 attacks
we need chemical security standards that put all high-risk facilities
on an even playing field.
President Obama raised this issue in his campaign and was a leader
on chemical security in the Senate. In a March 2006 floor statement, he
said, `` . . . there are other ways to reduce risk that need to be part
of the equation. Specifically, by employing safer technologies, we can
reduce the attractiveness of chemical plants as a target . . . Each one
of these methods reduces the danger that chemical plants pose to our
communities and makes them less appealing targets for terrorists.''
To that end, Congress should pass, and the President should sign,
chemical security legislation that at a minimum:
(1) Reduces the consequence of an attack through the use of safer
and more secure chemicals and processes;
(2) Includes all categories of facilities such as water treatment
plants;
(3) Involves plant employees in developing plant security programs
and gives employees protection from excessive background
checks;
(4) Ensures equal enforcement for chemical facilities and
accountability for Government;
(5) Allows States to set more protective security standards;
(6) Requires collaboration between the DHS, EPA and other agencies
to avoid regulatory redundancy, inconsistency, or gaps in
supply chain security.
In the face of potentially ruinous liability from a catastrophic
chemical release, some business leaders agree. In February 2008, the
Association of American Railroads said, ``It's time for the big
chemical companies to do their part to help protect America. They
should stop manufacturing dangerous chemicals when safer substitutes
are available. And if they won't do it, Congress should do it for
them.'' We look forward to working with you on this critical
legislation.
Sincerely,
Holly Hart, United Steelworkers (USW); Rick Hind, Greenpeace; Elizabeth
Hitchcock, U.S. Public Interest Research Group; LaMont Byrd,
International Brotherhood of Teamsters; Tracey Easthope, Ecology
Center; John Morawetz, International Chemical Workers Union Council/
UFCW; Ed Hopkins, Sierra Club; Kristen Welker-Hood, ScD, MSN, RN;
Physicians for Social Responsibility; Shawnee Hoover, Friends of the
Earth; Rick Engler, New Jersey Work Environment Council; Charles
Loveless, American Federation of State, County, and Municipal Employees
(AFSCME); Brian Turnbaugh, OMB Watch; Daniel Rosenberg, National
Resources Defense Council; Judith Robinson, Environmental Health Fund;
Kathleen A. Curtis, Clean New York, a Project of Women's Voices for the
Earth; Elizabeth Crowe, Kentucky Environmental Foundation; Monique
Harden, Advocates for Environmental Human Rights; Edgar Mouton, Jr.,
Mossville Environmental Action Now, Inc.; Christy Leavitt, Environment
America; Bill Borwegen, Service Employees International Union, CTW, CLC
(SEIU); Lynn Thorp, Clean Water Action; Aquene Freechild, U.S. Campaign
for Justice in Bhopal; Michael Belliveau, Environmental Health Strategy
Center; Kathleen Burns, PhD, Sciencecorps; Judy Braiman, Empire State
Consumer Project; Barbara Warren, Citizens' Environmental Coalition;
Claire Barnett, Healthy Schools Network, Inc.; Richard Denison,
Environmental Defense Fund; Matt Prindiville, Natural Resources Council
of Maine; Lauren Ornelas, Silicon Valley Toxics Coalition; Bill Walsh,
Healthy Building Network; Mark A. Mitchell, MD, Connecticut Coalition
for Environmental Justice; Judith M. Anderson, Environmental Justice
Action Group of WNY; Laura Abulafia, American Association on
Intellectual and Developmental Disabilities; Denny Larson, National
Refinery Reform Campaign & National Bucket Brigade Coalition; Daryl
Ditz, Center for International Environmental Law; Sandra Schubert, JD,
MA, Environmental Working Group; Elise Miller, M.Ed., Institute for
Children's Environmental Health; Chris Kolb, President, Michigan
Environmental Council; Barry Kasinitz, Director of Governmental
Affairs, International Association of Fire Fighters; Dave LeGrande,
Communications Workers of America (CWA); Alan Reuther, Legislative
Director, International Union, United Automobile Aerospace and
Agricultural Implement Workers of America (UAW); Sharyle Patton,
Commonweal; Beverly H. Wright, PhD, Deep South Center for Environmental
Justice, Inc.; Donele Wilkins, Detroiters Working for Environmental
Justice; David Levine, Green Harvest Technologies; Rick White,
Alliance@IBM; Ruth Berlin, LCSW-C, Maryland Pesticide Network; Jay
Feldman, Beyond Pesticides; Sanford Lewis, Attorney, Strategic Counsel
on Corporate Accountability; Ryan Tapping-Spitz, Maine People's
Alliance.
Mr. Pascrell. I thank all our witnesses for their very
valuable testimony and the Members for all of their questions.
I would remind our second panel of witnesses that the
Members of this committee may have additional questions for
you. We will ask you to respond expeditiously in writing to
those questions.
There being no further business, the committee stands
adjourned. Thank you very much.
[Whereupon, at 12:54 p.m., the committee was adjourned.]
A P P E N D I X
----------
Questions From Honorable Christopher P. Carney for Philip Reitinger,
Deputy Under Secretary, National Protection and Programs Directorate,
Department of Homeland Security and Sue Armstrong, Director,
Infrastructure Security Compliance Division, Office of Infrastructure
Protection, Department of Homeland Security
Question 1. As I understand, under the present regulations and
tiering structure, about 10% of underground natural gas reservoirs are
subject to additional CFATS security requirements because of their
excess amounts of methane (primary component in natural gas). TSA and
PHMSA already recommend and monitor security practices at these
underground storage sites. As you can imagine, this presently leads,
and will to continue to lead, to a lot of redundant and conflicting
security requirements for these underground gas reservoirs who must
comply with TSA, PHMSA, and CFATS. Practically speaking, can you
explain how implementation of the CFATS regulation of the natural gas
is different from TSA's and PHMSA's security requirements of the
facilities which store the natural gas? Especially, when the only way
you can get to the natural gas stored 2,000 feet below surface is
through the pipelines which are already governed by TSA and PHMSA?
Question 2. Do you believe these underground storage reservoirs
were a part of the intended purpose of CFATS, which is to ``enhance
security and protect against acts of terrorism against chemical
facilities''?
Answer. The preliminary determination to include or not include a
facility in the group of high-risk facilities is made based on
information submitted to the Department by the facility itself using a
data-collection instrument called a ``Top-Screen.'' Facilities that are
preliminarily deemed high-risk based on Top-Screens are required to
provide a more detailed assessment using an instrument called the
Security Vulnerability Assessment (SVA) and, based on that more
detailed information, may or may not be finally determined to be ``high
risk.'' Only the final high-risk facilities are then required to comply
with the more substantive requirements of CFATS (i.e., to submit Site
Security Plans meeting the CFATS risk-based performance standards).
Using this process, a small number of natural gas underground
storage facilities have been deemed ``high risk'' and are thus
regulated under CFATS. In general, there are two reasons why such a
facility would remain inside the regulatory scope of CFATS after
analysis of Top-Screen and SVA data:
The facility has surface extraction points for methane (a
chemical of interest under CFATS) that are close enough to a
civilian population and/or critical infrastructure that
radiated heat from burning methane being released at the
extraction point would pose a clear danger; or
The facility has other chemicals of interest onsite, not
stored underground, that pose a clear danger to the civilian
population or critical infrastructure or both.
To date, we have not included any underground natural gas storage
facility in the CFATS regulatory community for reasons of economic
criticality, but we do intend to examine them for economic criticality
in the near future and may determine that some underground natural gas
storage facilities are high-risk based on their economic criticality.
Under CFATS, underground natural gas storage facilities that are
finally determined to be high-risk are required to include security
measures in their Site Security Plans that address the 18 risk-based
performance standards under CFATS, such as perimeter security,
cybersecurity, and personnel security.
Some degree of regulatory overlap may be unavoidable where Congress
authorizes or directs more than one agency to regulate various aspects
of a given industry or function--for example, the Department of
Transportation regulates some aspects of chemicals in transit, as do
the U.S. Coast Guard and TSA under their respective statutory
authorities. Such overlapping programs do not necessarily present a
significant concern, provided that the relevant agencies reasonably
exercise their respective authorities in such a way as to avoid or
minimize potentially inconsistent or duplicative requirements. In this
case, the preamble to the CFATS final regulation expressly stated that
DHS does not intend CFATS to impede the authorities of other Federal
agencies and that DHS will work closely with other Federal agencies to
ensure that regulated facilities can comply with applicable regulations
while minimizing any duplication
Moreover, with respect to regulation of underground natural gas
facilities, there are legal and practical differences between CFATS and
other agencies' regulatory authorities. CFATS is designed to require
high-risk facilities to meet security performance standards. TSA, on
the other hand, is responsible for the security and functionality of
the Nation's transportation systems, not for fixed chemical
facilities--although TSA does provide some security advice to pipeline
operators. Pipeline and Hazardous Materials Safety Administration
(PHMSA) supervises and regulates the safety and integrity of the
National's pipeline infrastructure including certain storage facilities
and tanks and while this can include surface piping at underground gas
storage facilities, PHMSA does not currently regulate underground
starage and has only a limited role in security. In providing authority
to DHS to regulate the security practices of high-risk chemical
facilities, Congress recognized the need for regulation of many
different types of facilities possessing potentially dangerous
chemicals. Congress was aware that some of those facilities are or
could be regulated by other agencies and expressly exempted certain
facilities from regulation under CFATS (e.g., facilities regulated by
the U.S. Coast Guard under the Maritime Transportation Security Act,
facilities regulated the Nuclear Regulatory Commission, facilities
owned or operated by the Departments of Defense or Energy). Congress
did not, however, exempt natural gas storage facilities regulated by
TSA or PHMSA. DHS has concluded that certain natural gas storage
facilities should be regulated under the CFATS program due to the
potentially high-risk they pose from possession of methane or other
chemicals of interest. Of course, DHS also recognizes the need to
coordinate our activities with all of our components (NPPD, TSA) and
other Federal agencies such as PHMSA in order to avoid any
inconsistencies and to eliminate or minimize any potentially
unnecessary or duplicative requirements.
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