[Senate Hearing 111-1020]
[From the U.S. Government Printing Office]
S. Hrg. 111-1020
CHEMICAL SECURITY: ASSESSING PROGRESS AND CHARTING A PATH FORWARD
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
----------
MARCH 3, 2010
----------
Available via the World Wide Web: http://www.fdsys.gov/
Printed for the use of the Committee on Homeland Security
and Governmental Affairs
CHEMICAL SECURITY--2010
S. Hrg. 111-1020
CHEMICAL SECURITY: ASSESSING PROGRESS AND CHARTING A PATH FORWARD
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
MARCH 3, 2010
__________
Available via the World Wide Web: http://www.fdsys.gov/
Printed for the use of the Committee on Homeland Security
and Governmental Affairs
U.S. GOVERNMENT PRINTING OFFICE
56-889 WASHINGTON : 2011
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri LINDSEY GRAHAM, South Carolina
JON TESTER, Montana ROBERT E. BENNETT, Utah
ROLAND W. BURRIS, Illinois
PAUL G. KIRK, JR., Massachusetts
Michael L. Alexander, Staff Director
Holly A. Idelson, Senior Counsel
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Robert L. Strayer, Minority Director of Homeland Security Affairs
Devin F. O'Brien, Minority Professional Staff Member
Trina Driessnack Tyrer, Chief Clerk
Patricia R. Hogan, Publications Clerk and GPO Detailee
Laura W. Kilbride, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Lieberman............................................ 1
Senator Collins.............................................. 3
Senator Voinovich............................................ 14
Senator Pryor................................................ 15
Senator Carper............................................... 16
Senator Levin................................................ 19
Prepared statements:
Senator Lieberman............................................ 39
Senator Collins.............................................. 41
WITNESSES
Wednesday, March 3, 2010
Hon. Rand Beers, Under Secretary, National Protection and
Programs Directorate, U.S. Department of Homeland Security,
accompanied by Sue Armstrong, Acting Deputy Assistant Secretary
for Infrastructure Protection, U.S. Department of Homeland
Security....................................................... 5
Hon. Peter S. Silva, Assistant Administrator for Water, U.S.
Environmental Protection Agency................................ 8
Darius D. Sivin, Ph.D., Legislative Representative, International
Union, United Automobile, Aerospace, and Agricultural Implement
Workers of America............................................. 22
Timothy J. Scott, Chief Security Officer and Corporate Director,
Emergency Services and Security, The Dow Chemical Company, on
behalf of the American Chemistry Council....................... 25
Stephen E. Poorman, International Environment, Health, Safety,
and Security Manager, Fujifilm Imaging Colorants, Inc., on
behalf of the Society of Chemical Manufacturers and Affiliates. 27
Alphabetical List of Witnesses
Beers, Hon. Rand:
Testimony.................................................... 5
Prepared statement........................................... 44
Poorman, Stephen E.:
Testimony.................................................... 27
Prepared statement........................................... 75
Scott, Timothy J.:
Testimony.................................................... 25
Prepared statement........................................... 71
Silva, Hon. Peter S.:
Testimony.................................................... 8
Prepared statement........................................... 56
Sivin, Darius D., Ph.D.:
Testimony.................................................... 22
Prepared statement........................................... 64
APPENDIX
Submitted for the Record by Senator Lieberman:
Center for American Progress, survey and reports............. 87
United Steel Workers, letter in support of H.R. 2868......... 189
Greenpeace, prepared statement with attachments.............. 192
Submitted for the Record by Senator Collins:
Letters in support of S. 2996................................ 238
American Water Works Association, prepared statement......... 270
National Petrochemical and Refiners Association, prepared
statement.................................................. 280
M. Sam Mannan, Ph.D., Texas A&M University, prepared
statement with attachments................................. 286
Responses to questions for the Record:
Mr. Beers.................................................... 306
Mr. Sivin.................................................... 322
CHEMICAL SECURITY: ASSESSING PROGRESS AND CHARTING A PATH FORWARD
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WEDNESDAY, MARCH 3, 2010
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:34 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Joseph I.
Lieberman, Chairman of the Committee, presiding.
Present: Senators Lieberman, Levin, Carper, Pryor, Collins,
and Voinovich.
OPENING STATEMENT OF CHAIRMAN LIEBERMAN
Chairman Lieberman. The hearing will come to order. One of
our witnesses on the first panel is not here yet. Senator
Collins and I will proceed with our opening statements, and the
two witnesses, and I am sure that in short order Mr. Beers will
be here.
We have called this hearing this morning to review the
Federal Government's efforts to strengthen the security of
hundreds of chemical sites around our country and to chart, if
we can, a path forward to reduce the possibility that
terrorists could take advantage of existing security
vulnerabilities at these sites.
In the aftermath of September 11, 2001, all of us developed
a new awareness of potential targets of terrorists in our
homeland. Many quickly realized that some of our Nation's most
robust and varied industries--while obviously a source of great
economic strength and job creation--also inherently posed
substantial security risks, if attacked. And that included the
many facilities that produce or use hazardous chemicals that
could be turned against us and converted effectively into pre-
positioned weapons of mass destruction.
In a worst-case scenario, a successful attack on a facility
using toxic chemicals in a densely populated area--and we know
that those facilities do exist--could put hundreds of thousands
of lives at risk. So there was a need for action.
In 2005 and 2006, under the leadership of Senator Collins,
this Committee spent a fair amount of time exploring these
risks and drafting legislation to address the threat. I was
pleased to cosponsor that legislation, and while it did not
itself become law, it certainly helped prompt Congress, in late
2006, to grant the Department of Homeland Security (DHS)
limited authority to begin a chemical site security program.
DHS has taken up that charge and launched the Chemical
Facilities Antiterrorism Standards program (CFATS). The
Department deserves credit for the hard work it has done to
design and begin to implement these standards. It is a
particularly challenging task because of the wide array of
companies that use potentially dangerous chemicals and the
limited guidance Congress gave in the initial authorization.
Today we want to take stock of how the program is faring
and determine how to strengthen it going forward, since the
program's initial 3-year authorization has lapsed and we are
now operating on a 1-year extension.
I am pleased to say that though there was intense
controversy over whether to begin a chemical security program
at all because of opposition to government regulation in this
area, there now seems to be general agreement that CFATS is
making a positive contribution to our national and homeland
security and should be continued. So the question becomes:
Should we improve it and, if so, how can we improve the CFATS
program as we extend it?
I want to briefly discuss in this statement two issues that
are commonly cited by some as ways to add strength to the
program.
First, the current authorization exempts drinking and waste
water facilities, even though we know that some of these
facilities would pose a high risk to surrounding communities in
the event of a terrorist attack because of the chemicals used
there. Does that exemption make sense? Personally, I join with
the Administration in thinking that exemption leaves a
troublesome security gap.
Second, the current authorization is silent on the issue of
inherently safer technology (IST), the practice of using safer
chemicals or processes to reduce the risks at a chemical
facility. I think it is important to look at these alternatives
as part of a comprehensive security system since they are the
only foolproof way to defeat a terrorist determined to strike a
chemical facility. And there are encouraging developments on
this front. For instance, Clorox recently announced it will
begin substituting high-strength bleach for chlorine in its
manufacturing process, a move that should greatly reduce the
transport and storage of toxic chlorine gas in relation to its
operations. I know that some of my colleagues strongly oppose
mandating inherently safer technology systems, or even
mandating consideration of them, so we are going to have a good
healthy debate on that as we move forward, and we should.
The House has already passed a CFATS reauthorization bill,
which is H.R. 2868, which has been referred to this Committee.
The House bill would make significant changes in the program,
such as including an IST component and creating parallel
security programs for drinking and waste water facilities at
the Environmental Protection Agency (EPA).
Closer to home, here in the Senate and this Committee,
Senators Collins, Pryor, Voinovich, and Landrieu have offered a
5-year reauthorization of the existing rules, and that is S.
2996. So we have before us two different approaches on how to
move forward, and we may, I would guess, hear some additional
ideas this morning from the witnesses or from other Members of
the Committee.
We are fortunate to have as witnesses some Administration
and private sector leaders on these issues, and we will call on
them soon and look forward to their testimony.
Senator Collins.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you, Mr. Chairman.
More than 70,000 products are created through the use of
chemicals, helping to supply the consumer, industrial,
construction, and agricultural sectors of our economy. The
United States is home to thousands of facilities that
manufacture, use, or store chemicals.
This industry is vital to our economy, with annual sales of
nearly half a trillion dollars, exports of $174 billion, and
direct employees exceeding 850,000 people.
But as the Chairman indicated, after September 11, 2001, we
realized that chemical facilities were vulnerable to terrorist
attack. Given the hazardous chemicals present at many
locations, terrorists could view them as attractive targets,
yielding a terrible loss of life, significant injuries, and
major destruction if they were successfully attacked.
In 2005, as Chairman of this Committee, I held a series of
hearings on chemical security. Following these hearings,
Senators Lieberman, Carper, Levin, and I introduced bipartisan
legislation authorizing the Department of Homeland Security to
set and enforce security standards at high-risk chemical
facilities. My view of what happened to that bill is a little
different from the Chairman's. In my view, it was incorporated
into the homeland security appropriations act and signed into
law in 2006. In fact, I remember well how difficult the
negotiations were with the Bush Administration and the House as
we proceeded with that bill.
To implement this new authority, DHS established the
Chemical Facility Antiterrorism Standards program. This program
sets 18 risk-based performance standards that high-risk
chemical facilities must meet. The security standards cover a
wide range of threats, such as perimeter security, access
control, theft, internal sabotage, and cybersecurity.
High-risk chemical plants covered by the program are
required to conduct vulnerability assessments, develop site
security plans, and invest in protective measures. The
Department must approve these assessments and site security
plans, using audits and inspections to ensure compliance. The
Secretary--and this was an authority that I insisted on--is
empowered to actually shut down facilities that are non-
compliant.
This risk-based approach has made the owners and operators
of chemical plants partners with the Federal Government in
implementing a successful, collaborative security program.
This landmark law has been in place slightly more than 3
years. Taxpayers have invested nearly $300 million in the
program. Chemical plants also have invested hundreds of
millions more to comply with the law. As a direct result,
security at our Nation's chemical facilities is much stronger
than it was 5 years ago.
Now we are at a juncture where we must reauthorize the
program or, as some have proposed, scrap what has clearly been
a clear success and set off in a different direction. My view
is that we should reauthorize the law.
Simply put, the program works and should be extended.
Proposals to drastically change this successful law would
discard what is working for an unproven and burdensome plan. We
must not undermine the substantial investments of time and
resources already made in CFATS implementation by both DHS and
the private sector. Worse would be requiring additional
expenditures with no demonstrable increase to the overall
security of our Nation.
Last November, as the Chairman has indicated, the House
passed a bill that would alter the fundamental nature of the
chemical security law. It would require the Department to
completely rework the program. I am concerned about several
aspects of the House bill, not the least of which is the
authority to mandate the use of so-called inherently safer
technology.
What is IST? It is an approach to process engineering. It
is not, however, a security measure. An IST mandate may
actually increase or unacceptably transfer risk to other points
in the chemical process or elsewhere in the supply chain.
Currently DHS cannot dictate specific security measures like
IST, nor should it. The Federal Government's job should be to
set the performance standards, but to leave it up to the
private sector to decide precisely how to achieve those
standards. Forcing chemical facilities to implement IST could
actually cost jobs at some facilities and affect the
availability of many vital products.
Last year, one of the associations which will be testifying
before us today testified that mandatory IST would restrict the
production of pharmaceuticals and microelectronics, hobbling
those industries. The increased cost of a mandatory IST program
may force chemical companies to simply transfer their
operations overseas, costing American workers thousands of
jobs, at a time when we can least afford job loss.
Now, I want to be clear that some owners and operators of
chemical facilities may choose and do choose to implement IST.
But that decision should be theirs, not a decision established
in Washington. Our focus is to make sure that the standards are
met, not to dictate how to meet those standards.
Congress should not dictate specific industrial processes--
we do not have that expertise--under the guise of security when
a facility could choose other alternatives that meet the
Nation's security needs.
A straightforward, common-sense reauthorization of this
program is, however, critical. The legislation which I have
introduced with Senators Pryor, Voinovich, and Landrieu would
extend the CFATS program for 5 more years. And, Mr. Chairman, I
would ask to submit for the record 27 letters of support for S.
2996. They range from the Chamber of Commerce to the American
Forest and Paper Association, and many others, and I would ask
that those be submitted for the record.\1\
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\1\ The letters submitted by Senator Collins appear in the Appendix
on page 238.
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Chairman Lieberman. Without objection, so ordered.
Senator Collins. Mr. Chairman, no one is more conscious
than I of the risks that our Nation faces through an attack on
a chemical facility. That is why I was the primary author of
the chemical facility security bill, and it is why I battled
considerable opposition to get this landmark law enacted. We
should support the continuation of a program that is working,
and we should do so without the addition of costly and unproven
Federal mandates.
Thank you, Mr. Chairman.
Chairman Lieberman. Thanks, Senator Collins.
Mr. Beers, welcome. We are not going to abuse you as we
have earlier when Secretary Napolitano did not make it here at
the starting time of a hearing, but we are just glad to see you
here.
Mr. Beers is the Under Secretary for the National
Protection and Programs Directorate (NPPD) at the Department of
Homeland Security. In this capacity, he leads the Department's
efforts to reduce risks to physical, communications, and cyber
infrastructure. Accompanying Mr. Beers today is Sue Armstrong,
Acting Deputy Assistant Secretary for Infrastructure Protection
in the Department of Homeland Security.
Mr. Beers, we would welcome your testimony now.
TESTIMONY OF HON. RAND BEERS,\1\ UNDER SECRETARY, NATIONAL
PROTECTION AND PROGRAMS DIRECTORATE, U.S. DEPARTMENT OF
HOMELAND SECURITY, ACCOMPANIED BY SUE ARMSTRONG, ACTING DEPUTY
ASSISTANT SECRETARY FOR INFRASTRUCTURE PROTECTION, U.S.
DEPARTMENT OF HOMELAND SECURITY
Mr. Beers. Thank you very much, Mr. Chairman, Ranking
Member Collins, Senator Voinovich, and other Members of the
Committee who are not present. It is a pleasure for me to be
here today to discuss with you the Department of Homeland
Security's regulatory authority for security at high-risk
chemical facilities. I am pleased to be joined by Peter Silva
from the Environmental Protection Agency and, of course, my
colleague at DHS, Sue Armstrong. I think we have developed a
constructive relationship with the Environmental Protection
Agency and look forward to a continued dialogue with them as we
move forward together on this important issue.
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\1\ The prepared statement of Mr. Beers appears in the Appendix on
page 44.
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As you are aware, and as Senator Collins just noted, the
Department's current authority expires in October of this year,
and we are eager to work with this Committee as one of the
central elements of the Congress and, as Senator Collins
indicated, the author of the original CFATS legislation. We are
eager to work with you, with all levels of government, and with
the private sector to achieve passage of appropriate
legislation that permanently authorizes and appropriately
matures our chemical security program.
The CFATS program has been, I think, a tremendous success
to date, due in large part to the work of this Committee which,
through its initial work on this issue, gave the Department of
Homeland Security a solid foundation upon which to build a
comprehensive chemical security program. CFATS currently covers
over 6,000 high-risk facilities nationwide across all 50
States. The Department continues to issue final tier
notifications to approximately 500 facilities across all four
risk tiers each month and expects to notify all of the 6,000-
plus facilities of their final tier assignments by the end of
the summer of 2010.
We began in February of this year the inspection program of
the final tiered facilities starting with the Tier 1
facilities, or the highest-risk facilities. Since the release
of CFATS in April 2007, the Department has taken significant
steps to publicize the rule and to ensure that our security
partners are aware of its requirements. We have also made a
point to solicit feedback from both the public and private
sector partners in this endeavor and, where appropriate, to
reflect that feedback in our implementation activities.
The Department also continues to focus on fostering solid
working relationships with State and local officials as well as
first responders in jurisdictions with the high-risk
facilities. To meet the risk-based performance standards under
CFATS, facilities need to cultivate and maintain an effective
working relationship--including a clear understanding of roles
and responsibilities--with local officials who could aid in
preventing or mitigating or responding to potential attacks.
In addition, we are working with the private sector as well
as all levels of government to identify facilities that may
meet the threshold for CFATS regulation but have not yet
registered. We have completed pilot efforts in both New York
and New Jersey, and we have commenced a targeted outreach
effort to certain segments of the industry for which we believe
compliance may need improvement.
We have also enjoyed a constructive dialogue with Congress,
including this Committee, as it contemplates new authorizing
legislation. The Department supports a permanent authorization
for the CFATS program, and we intend to provide Congress with a
draft of a comprehensive authorization bill this fiscal year.
We recognize, however, the time constraints and challenges
in passing such comprehensive legislation, which is why the
President's fiscal year 2011 budget indicates a request for a
1-year extension of CFATS to ensure the time, if needed, to
complete enactment of a permanent program.
It is important to highlight, therefore, the
Administration's guiding principles in this reauthorization of
CFATS, which will be the foundation of the Department's
legislative position on the permanent CFATS reauthorization.
The Department believes that we should be given reasonable
deadlines to implement any new legislative requirements, and
CFATS, as currently implemented, should remain in effect until
supplemented by any new regulations which the Congress should
deem to put forward.
The Administration also supports, where possible, using
inherently safe technology such as less toxic chemicals to
enhance the security of the Nation's high-risk chemical
facilities. We recognize, however, that risk management
requires balancing threat, vulnerabilities, and consequences
with the costs and benefits that might mitigate risk.
Similarly, we would take into account potential public health
or environmental consequences of any alternative chemical that
might be considered with respect to the use of safer
technology.
In this context, the Administration has established the
following policy principles in regard to inherently safer
technology at high-risk chemical facilities:
The Administration supports consistency of IST approaches
for facilities regardless of the sector.
The Administration believes that all high-risk chemical
facilities should assess IST methods and report that assessment
in the facility's site security plan and that the appropriate
regulatory entity using regime-wide guidelines should have the
authority to require Tier 1 and Tier 2 facilities to implement
IST methods if such methods demonstrate an enhancement of
overall security, are determined to be feasible, and in the
case of the water sector in particular, consider public health
and environmental requirements.
The Administration believes that flexibility and staggered
implementation would be required in implementing any new IST
policy, should Congress choose to pass that policy.
The Administration also supports maintaining the
Department's current Chemical Terrorism Vulnerability
Information (CVI), regime for protecting sensitive information
relating to chemical facility security.
As DHS and EPA have stated before, we believe that there is
a critical gap in the U.S. chemical security regulatory
framework, namely, the exemption of drinking water and
wastewater treatment facilities from CFATS. The Department
supports amending the current exemption to specify that EPA
should have the lead on regulating for security with the
Department of Homeland Security supporting EPA to ensure
consistency across all sectors.
The Department supports modifying the exemption for
facilities regulated under the Maritime Transportation Security
Act (MTSA), to require facilities currently subject to MTSA to
submit information to the Secretary of Homeland Security to
determine whether they should be designated as high-risk
chemical facilities under CFATS.
We are ready to engage in technical discussions with the
Committee staff, affected stakeholders, and others to work out
the remaining details. 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 resulted in considerable
success.
Thank you for holding this important hearing, and I would
be happy to respond to your questions at an appropriate time.
Thank you, Mr. Chairman.
Chairman Lieberman. Thanks very much, Under Secretary
Beers.
I understand that Ms. Armstrong will be available to answer
questions but has no opening statement. Is that correct?
Ms. Armstrong. Yes.
Chairman Lieberman. Thank you very much.
Now we are going to hear from Peter Silva, who is the
Assistant Administrator for Water at the Environmental
Protection Agency. With more than 30 years in the water and
wastewater management fields, Mr. Silva is a leader in efforts
to ensure the safety of drinking water and the viability of
aquatic ecosystems.
We appreciate your presence and would ask for your
testimony now.
TESTIMONY OF HON. PETER S. SILVA,\1\ ASSISTANT ADMINISTRATOR
FOR WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. Silva. Thank you. Good morning, Mr. Chairman, Ranking
Member Collins, and Members of the Committee. I am Peter Silva,
Assistant Administrator for Water at the U.S. EPA. I welcome
the opportunity to discuss EPA's efforts to promote security
and resiliency in the water sector with an emphasis in
addressing chemical security at water facilities, and I am very
pleased to be here with Under Secretary Beers as we discuss
this important issue.
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\1\ The prepared statement of Mr. Silva appears in the Appendix on
page 56.
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EPA has worked over the last several years to support the
water sector in improving security and resiliency, and I am
pleased to report that the sector has taken its charge
seriously. EPA has been entrusted with important
responsibilities for coordinating the protection of the water
sector through congressional authorization under the Public
Health Security and Bioterrorism Preparedness and Response Act
of 2002--the Bioterrorism Act--and through presidential
mandates under Homeland Security Presidential Directives 7, 9,
and 10.
Promoting the security and preparedness of the Nation's
water infrastructure remains a priority of the Agency in a
post-September 11, 2001, and post-Katrina world. A loss of
water service can seriously jeopardize the public health,
economic vitality, and general viability of a community. In
working with the water sector, we have emphasized a multi-
layered approach to security consisting of prevention,
detection, response, and recovery so that we can assist water
facilities in avoiding incidents and, should an incident occur,
in quickly identifying and recovering from such events.
At this point I would like to take a step back to consider
the broader implications of chemical security for the water
sector. It is of paramount importance to us to acknowledge in
this discussion that the primary purpose of drinking water
systems is the provision of safe drinking water, while that of
wastewater systems is the protection of water bodies. In fact,
the effective treatment of drinking water to control infectious
diseases like typhoid and cholera has been hailed by the U.S.
Centers for Disease Control and Prevention as one of the
greatest public health achievements of the 20th Century.
Therefore, chemical security regulations, when applied to
the water sector, should enable a reasoned balance of multiple,
important factors so that we can achieve the joint policy goals
of protecting public health and the environment while at the
same time enhancing security.
EPA has worked closely with the water sector to assess and
reduce the risks associated with hazardous chemicals. To this
end, EPA and industry associations, often in partnership, have
developed tools, training, and technical assistance to help
drinking water utilities identify and mitigate those risks.
For example, EPA has developed software tools that assist
drinking water systems with assessing vulnerabilities,
including chemical storage and handling.
I understand this Committee and others in Congress are in
the process of considering chemical security legislation. To
inform those deliberations, the Administration has developed a
set of guiding principles.
First, the Administration supports permanent chemical
facility security authorities.
Second, cover systems that use substances of concern above
threshold levels should be required to conduct an assessment of
inherently safer technologies. Further, the appropriate
regulatory agency should be authorized to require the highest-
risk facilities to implement IST under certain conditions.
Third, the existing security gap for wastewater and
drinking water facilities should be closed, with EPA having the
authority to regulate chemical security at such water
facilities.
As a final thought on the legislation, EPA supports a
robust State role in the regulation of chemical security in the
water sector, including a prominent role in IST determinations
and auditing and inspections. This approach would leverage
decades-old EPA and State relationships under the drinking
water and wastewater programs, as well as the States' unique
expertise and familiarity with individual water facilities.
In conclusion, over the past several years, we have made
progress in ensuring the security of our Nation's drinking
water and wastewater systems. We have produced a broad array of
tools, training, and other assistance that the water sector
uses to assess its vulnerabilities, reduce risk, and prepare
for emergencies, including chemical theft and release. In
developing these tools, we have worked effectively with our
partners within the sector, and reached out to build new
relationships beyond the sector, to ensure that water utilities
can be prepared to prevent, detect, respond to, and recover
from intentional incidents and natural disasters.
With respect to security at water sector facilities, we
look forward to continuing to work with Members of the
Committee on legislation that ensures the security of drinking
water and wastewater facilities while supporting the critical
mission of these facilities for public health and environmental
protection.
Thank you again for the opportunity to--for my role here in
terms of water security, and I would be happy to answer any
questions that you may have.
Chairman Lieberman. Thanks, Mr. Silva. That is a good
beginning. We will do 7-minute rounds of questioning for the
Members.
Under Secretary Beers, I appreciate that in your opening
statement you have committed to providing suggested bill
language from the Administration that we might consider. What
is your sense of timing on that? In other words, when do you
think you could have that for us?
Mr. Beers. Sir, the draft legislation exists within NPPD.
It is awaiting the completion of this hearing before we start
the clearance process in terms of moving forward to clear it
both within the Department of Homeland Security and obviously
with the rest of the Administration. It is not just DHS's
legislative proposal. It would have to be an Administration
proposal.
The time frame for that process is entirely dependent upon
the degree of controversy that the draft legislation creates. I
am a little reluctant to tell you--certainly I would not want
to suggest that it is going to be up in the next couple of
weeks.
Chairman Lieberman. Right.
Mr. Beers. I am hoping that it can be up in the next couple
of months.
Chairman Lieberman. That gives us a helpful guide as we go
forward.
Let me ask you, Under Secretary Beers, a historical
question about this, which is what we have learned about who in
our communities is using these chemicals and where they are
located. I know that many of the chemicals that are covered by
CFATS may be regulated for safety or environmental purposes on
an industry-specific basis. But the CFATS program was an
attempt to craft broad security standards across a wide array
of industries.
I know that at the beginning it was a challenge for the
Department of Homeland Security to reach judgments about who
should fall under the CFATS program, and I wanted to ask you
whether based on that experience you think we, and the
Department, have a clearer picture of where these potentially
dangerous chemicals are located, and if so, how we might put
that information to use both in our legislating but also to
prepare communities against the risks of a possible attack.
Mr. Beers. You are absolutely correct, this was a process
that I think all of us learned from in terms of the development
of the list of chemicals of interest and then the outreach
program to get those firms who were going to be covered or who
thought they might be covered to begin the process of providing
materials to the Office of Infrastructure Protection so we
could begin to catalog those.
As I indicated in my oral statement and in my written
testimony, this is still an ongoing process, quite honestly.
There is a category that we call outliers that were not covered
in the original screening process, and which we are looking for
in conjunction with state governments to try to make sure that
the regime, in fact, covers all of those.
Having said that, in the two pilot programs that we have
conducted in New Jersey and in New York State, based on the
initial calculation of who might be covered and the end
determination of who might be covered, we are pleased to
discover that it is a very small number of firms that would
actually be covered. Ms. Armstrong, correct me. It was in the
neighborhood of 20?
Ms. Armstrong. Yes.
Mr. Beers. In each of those, and we thought it was a larger
number, quite honestly, when we began the process.
So this has been a learning process which we would be happy
to share with the Committee at any point in time to the extent
that would be helpful in your considerations.
Chairman Lieberman. Good. It would be helpful.
Let me ask you to speak a little bit more about the debate
and discussion about inherently safer technologies. I
appreciate your statement that the Administration would like to
build a meaningful IST component into the CFATS program. I
wonder at this point if you could talk about how you think that
might best be done.
Mr. Beers. If I can suggest that we all bear in mind that
the legislation that you all produced was over the objection of
a large segment of the chemical sector of the economy, and that
the implementation of that regulation that you gave us ends up
now being something that you tell us, not we tell you, that has
been well received by the chemical industry, we would expect to
take the same kinds of deliberative measures and the same kind
of broad-based outreach before we even set the guidelines that
we would have to set in order to ask facilities to modify their
site security plans or their vulnerability assessments based on
the consideration of an inherently safer technology.
We are not going to say in some kind of a blast email
everybody revise your plans. We are going to sit down; we are
going to talk to the industry; we are going to talk about what
the environment in this area looks like. We are going to
understand their concerns, and then we are going to suggest
what the guidelines might be in order that they can then report
back to us.
We would expect that this will be implemented, if it is
passed, in a manner exactly consonant with the efforts to
listen to all the stakeholders in this process before moving
toward final implementation and the mandate or requirement to
compel changes if we get to that point.
Chairman Lieberman. So you have not reached a conclusion,
am I right, about whether the Administration will recommend
legislation that would mandate inherently safer technologies,
for instance at a top tier based on risk, of chemical
facilities, or whether the legislation would simply mandate
consideration of inherently safer technologies?
Mr. Beers. There are two levels in our proposal, sir. One
would take the Tier 1 and Tier 2 facilities and give the
Administration the ability to require that they adopt an
inherently safer technology. That is a decision that would be
made on a facility-by-facility basis. It would not take into
account simply the issue that there was a clearly agreed upon
inherently safer technology, that is, a change of the chemical
or a change of the process.
Chairman Lieberman. Right.
Mr. Beers. There are other factors that would be taken into
consideration, including the economic impact of such a change,
the time frame over which such a change might, in fact, be
implemented, whether or not they are in conflict with some
public health or environmental requirement. This is not, ``Gee,
we have discovered this inherently safer technology; now you
all go ahead and do it.'' It is going to be a dialogue starting
from the very beginning of the process.
Chairman Lieberman. I appreciate your answer. My time is
up. Thank you. Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Mr. Secretary, only 10 months ago during your nomination
before this Committee, you stated that the chemical security
law, ``is an effective program for addressing the security
risks associated with the Nation's high-risk chemical
facilities and is helping to make our country more secure.''
You went on to say, ``I believe the Department has
developed an effective approach for both identifying high-risk
chemical facilities and assessing the security risks associated
with them.''
Finally, when you were asked whether you believed the CFATS
program's current requirements for physical protection of a
facility were sufficient, you said yes.
Just to clarify for the record, since it is obvious from
that testimony--and indeed your testimony today--that this law
has worked well and that it has made a difference, is it fair
to say that your first priority is to prevent the law from
expiring?
Mr. Beers. Were we unable to agree between the Congress and
the Administration--and ultimately it is your decision to
change the law, not ours--on the enhancements that we would be
seeking, then it is absolutely critical that this legislation
be reauthorized in its current form as a minimal statement of
maintaining the progress that I think we have made, that you
have given us the opportunity to make, yes.
Senator Collins. I want to talk a little bit about the
inherently safer technology issue, since that is a major
difference between the bill that Senator Pryor is the chief
Democratic cosponsor of, and Senators Voinovich and Landrieu
are cosponsors of, to extend the law.
Just this past weekend, in Houston, the Department of
Homeland Security, working with the Center for Chemical Process
Safety, held a conference with the world's leading experts in
chemical process safety, and the conference title is
instructive. It is ``Creating a Technical Definition of IST.''
We have talked to many of the participants of that
conference, and I want to read to you what one of the leading
experts emailed to us. He said, ``With regard to the IST
meeting in Houston, one thing is very clear. That is that there
is still a lot of disagreement on just the definition of IST,
let alone quantification methods, assessment methods, and a
host of other issues.''
One expert, Dr. Sam Mannan, who is a leading expert in this
field, has submitted testimony for the record, and I want to
highlight a statement that he makes. He says, ``There is no
clearly established scientific basis on which inherently safer
technology options could be mandated by any legislation or
regulation at chemical facilities.''
The reason I mention this conference, which DHS helped to
sponsor, is that it shows all the uncertainties surrounding
IST. When the leading experts in the world say that there is
not even a commonly agreed upon definition of IST, how in the
world can we consider making that a Federal mandate?
Mr. Beers. I would respectfully submit that the same kinds
of issues were of concern when we drew up the list of chemicals
of interest. This is an area that requires a great deal more
work, and that is why I want to repeat that we are not, if you
give us this authority, intending to proceed willy-nilly into
an implementation regime.
We have been asking our Science and Technology Office for
some time now to help us with the definition of inherently
safer technology, to help us with models of inherently safer
technology, to give us the kind of information that we would
need were we to be required to do this.
So I fully understand and am aware that this is an area
that requires a great deal more work. But we are in the process
at this point in time of looking at what we would regard as a
permanent reauthorization of the chemical facilities anti-
terrorism legislation, and we would like to have this authority
as part of that permanent reauthorization. So, yes, there is
still work to be done. No question.
Senator Collins. Well, I guess the point that I would make
is the Department has done a first-rate job of implementing
this law. It has made a difference by your own assessment. And
it is appropriate for us to set the security standards, but for
us to mandate a particular approach, particularly an approach
about which there are so many questions, to me is premature at
best.
Let me just quickly in my remaining time switch to a
different issue. In June of last year, your Deputy Under
Secretary testified before the House Homeland Security
Committee and was asked about the civil enforcement provisions
included in the House bill, and he said, ``I have a concern
that civil litigation involving the CFATS regime would lead to
a higher likelihood of disclosure of sensitive information.''
Does DHS continue to oppose the civil suits included in the
House-passed bill reauthorizing and changing the law?
Mr. Beers. Before answering your question, I am obligated
to tell you that the Administration has not taken a position
yet on this particular issue. So in that context, the concern
that we had previously, which is that the civil suit entry into
a security regime and the need for a civil plaintiff to have
the information necessary to bring this suit to bear or for the
government to defend why it was opposed to this suit, will
inevitably raise questions about an array of information that
in the first instance would be information that was proprietary
information on the part of the facility and vulnerability
information on the part of the facility, both of which are
currently protected by the regime that you have given us.
Second, the decision process for getting to a decision
about a security plan, whether or not it included an inherently
safer technology decision, or a non-decision, would also have
potential as part of that process the use of even higher
classified information that might bear on a specific threat to
either the facility itself or to the sector. And we would like
to keep that information in the security regime that it is. And
while people have indicated that there might be a carve-out
that would say that we could say, well, that was protected
information, if that judgment were then subject to
consideration by sources outside the government, then we would
still be in the process possibility in which that information
might be disclosed.
So we would very much be concerned about this, and the
Administration will be taking this issue into consideration for
an Administration position in the weeks ahead. But we do not
have a position. That is our concern at this point.
Senator Collins. Thank you.
Chairman Lieberman. Thanks, Senator Collins. Senator
Voinovich.
OPENING STATEMENT OF SENATOR VOINOVICH
Senator Voinovich. Thank you, Mr. Chairman.
I just went over the bill's history. This bill passed in
October 2006, and my recollection is that we spent an enormous
amount of time on this piece of legislation listening to
everybody, any group that was out there. The rules were issued
in April 2007. The process, in November 2007, began with
initial Top-Screen assessments, and inspections will commence
in March 2010.
We have not even got into implementing the legislation that
we have already passed, and I think to myself, in terms of
management, do you have the people that you need to get the job
done. You have also indicated in your testimony that DHS is
currently undertaking a multi-year examination of inherently
safer technology.
Do we realize where we are at today? Do we understand that
we have a Federal Government that is in deep trouble and we
keep expanding it and expanding it? For what? What are we going
to get out of the inherently safer technologies?
Then we are going to move into the area of involving the
EPA. Do you know, Mr. Silva, that many State EPAs in this
country have laid off people? Do you realize how bad things are
out in the States? And you are going to get them involved in
more of this stuff? Do you realize that in my State we have 100
jurisdictions that are under orders from the EPA and their rate
increases are 13 and 14 percent a year and they still cannot
pay their bills? And you are talking about getting EPA more
involved and increasing the cost of running those facilities?
Let us get real. Do the people in this Administration, does
the President understand how bad things are out there? Does he
understand it? And we just keep growing and growing the
government, and the departments are being given more and more
responsibilities and do not have the human capital to get the
job done.
I think we need to get real, Mr. Chairman. If we are going
to spend time on this issue, it is going to take a whole lot of
time for us to go through this. It seems to me at this stage of
the game the best thing we could do is reauthorize the program,
give DHS the chance to get the program implemented, see how it
works out, and then go on maybe 2 or 3 years from now and see
how this program is working out. But to spend this Committee's
time on going through this issue, getting the testimony, all of
the other stuff that we are going to have to do, amendments and
the rest of it--let us put it in perspective.
The real issue is: What is the need? Is there an overriding
need that we have to do this now? Is there something that is
going to happen that is catastrophic or something of that sort?
We have not even implemented the program yet.
So that is the only thing I have to say. I could ask a
bunch of questions whether you have the management people to
get the job done or do you have the people, Mr. Silva, or where
are you in terms of this IST assessment work and how long is it
going to take you to figure out that issue. And once you grant
the Letter of Approval to somebody that says they have complied
with the law, are you going to come back with them 2 years
later or 6 months later and say, by the way, we forgot about
IST and let us go back over and do that?
Thank you, Mr. Chairman.
Chairman Lieberman. Thanks, Senator Voinovich. I would just
say for the record--obviously, I understand what you are
saying--that because the CFATS program has essentially run out,
the President has recommended a 1-year extension in the budget
to keep it going. And the House bill, which extends the program
but alters it, came to the Committee, and Senator Collins,
yourself, Senator Pryor, and Senator Landrieu have introduced
legislation to extend it to 5 years. That is why we are holding
the hearing as part of our oversight to see what we should do.
Obviously, the Committee ultimately will work its will, but
that is why I thought it was worth the hearing this morning.
Senator Pryor.
OPENING STATEMENT OF SENATOR PRYOR
Senator Pryor. Thank you, Mr. Chairman, and I want to thank
Senator Collins for taking the lead on this piece of
legislation. As always, she is showing great leadership and I
think really is trying to set the right public policy and the
right course for the country.
Let me start with you, if I may, Under Secretary Beers, and
let me ask about inherently safer technologies. I know we have
already had a little bit of discussion about it today, but the
Administration's guiding principles indicated that there should
be a consistency of IST approaches for all facilities. Can you
tell me what that means, a consistency of approaches for all
facilities?
Mr. Beers. Because we are also considering and proposing
that the Environmental Protection Agency would retain its
primary relationship with water and wastewater and would be the
regulating authority, with or without inherently safer
technology. Were inherently safer technology added to that then
with respect to both the existing legislation and that possible
addition, DHS--together with EPA--would set up a consistent
regime for implementation across all the sectors.
We do not want to have one sector--let us just say water or
wastewater--in a different regime. Obviously, the regimes will
adapt, as we do already within DHS, with respect to the
chemicals of interest that are not necessarily in the chemical
sector.
So the notion here is to convey to you that there will not
be a differentiated regime just because EPA is going to have
responsibility for some part of the implementation of whatever
the CFATS regime looks like, should you remove the exemption.
Senator Pryor. But you are not talking about a one-size-
fits-all.
Mr. Beers. Absolutely not. This is sector by sector,
facility by facility, and that is why the outreach program at
the sector level is so important and why the individualized
approach to each of the facilities is important.
Senator Pryor. I think one thing that at least some of the
Members of the Committee have, maybe all, is just this lack of
clarity on what IST means and how it will be applied. So, I
have some concerns about that, and I also have a concern about
the cost factor if this concept or a similar concept goes
forward. Because safety is one thing, and certainly that is
very important. But there is also a very real cost factor for
industries, communities, etc. Have you all talked about the
cost factor?
Mr. Beers. We have talked about that. That is a specific
element in the consideration. In fact, for those who have also
expressed a concern about the added cost of revising their
security plan and/or assessments, we will take that into
account in terms of the guidelines where we are asking for
additional information with respect to inherently safer
technology and, in particular, assist smaller firms if this
legislation is implemented in the actual preparation.
The larger firms may have that information already
available in their own data banks. We are not expecting that
all firms will have that, and we are really not interested in
imposing some kind of initial research requirement on any of
the companies. That is why the other part of the outreach
program will be the scientific community. That is why our
Science and Technology Office has already begun trying to think
about that issue well before this Administration came to
office.
Senator Pryor. And it sounds like you are working with the
scientific community as well as with the private sector?
Mr. Beers. Yes, sir.
Senator Pryor. And are there new technologies that are
coming online that may indeed be safer and maybe should be
implemented?
Mr. Beers. Sir, that issue is the particular issue in
question. My understanding--and I profess not to be an expert
in this issue, but I am trying to ensure that I am sufficiently
informed. My understanding is that is the case, but let me ask
my colleague Ms. Armstrong here with respect to that.
Ms. Armstrong. Well, I think it is fair to say that part of
the U.S. economy is being innovative and inventive, and I think
from our dealings with the industry through the Sector
Coordinating Councils that we have socialized a lot of CFATS
and the tools and compliance mechanisms for CFATS with private
industry, I think they are looking at newer advanced
technologies. I think you may be hearing about some of those
from the next panel, in fact.
Senator Pryor. Thank you, Mr. Chairman. That is all I have.
Chairman Lieberman. Thanks very much, Senator Pryor.
Senator Carper.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Thanks very much. Ms. Armstrong, are there
any questions you would like for me to ask of you? [Laughter.]
They are taking it pretty easy on you here this morning.
Mr. Beers. Actually, I already prompted Senator Collins to
ask me the two questions that I wanted asked on the
reauthorization and DHS's concern about civil suits.
Senator Carper. Good. I did not get the memo.
Mr. Beers. We are trying to be bipartisan here.
Senator Carper. A good thing. It is good to see all of you.
Mr. Silva, very nice to see you. We thank you again for coming
to Southern Delaware to help us move forward on a thoughtful
approach to reducing runoff waste from chickens on the Delmarva
Peninsula.
Mr. Silva. Thank you, sir.
Senator Carper. I hope we are making some progress. I am
encouraged that we might be. But thank you for coming and thank
you for continuing to pay attention to that issue.
As I think each of you might know, the Northeastern United
States--and that includes Midatlantic States like Delaware--are
the home of many of our Nation's largest chemical plants, and
these plants can pose significant harm to the surrounding areas
and to the people who live and work in those surrounding areas
if they are not properly secured.
I believe that the Federal Government has an obligation to
work with States to identify what works for a particular
facility rather than imposing strict mandates that might hurt,
we will say, a company as a whole.
I also understand that there is still considerable debate
over inherently safer technologies--we have heard that again
here this morning--and whether or not Congress should impose
inherently safer technologies as an approach onto the chemical
industry.
And I would just have maybe at least one of you take a
minute to discuss the Administration's perspective, again, on
inherently safer technologies and what would be the cost/
benefit to mandating such a policy.
Mr. Beers. Let me start on that, Senator Carper. We
recognize that this is an area that is still in a process of
being better defined. But having said that, we believe that
just because an issue is difficult is not a reason to avoid
trying to deal with that issue. We believe that in addition to
the possibility in the chemical security regime to put in place
a number of physical and procedural safeguards that will
protect an individual facility and the surrounding citizenry,
changing the way that facility actually conducts its operations
is an additional way in which security can be increased.
So let me start with what we already have as a process, and
that is that a facility can change the level of its holdings of
a chemical of interest in order to reduce the risk, the
security risk to the surrounding community. As Senator Collins
has already said, that same facility could choose to change the
way that it processes the chemicals or that it substitutes a
less risky chemical for that, the notion here being that there
is a range of activity that might allow these vulnerable
facilities to reduce the risk both to themselves and to the
surrounding communities. And if that process could result in
the total reduction of risk for that facility to that
community, then it seems to us that represents a forward
security movement to totally remove that risk, and inherently
safer technologies represent an approach to that.
This process I think will help all of us come to a better
understanding and I think for facilities that we are working
with to make their facilities safer. So that is the underlying
idea behind wanting this authority.
Senator Carper. All right. Thank you.
In the Administration's point of view, how has the CFATS,
the Chemical Facility Antiterrorism Standards program been in
protecting chemical plants since its enactment in 2007? What
have been the challenges facing the Department of Homeland
Security in the program's implementation, including maybe a
lack of resources or a lack of funding?
Mr. Beers. I am going to let my colleague here, who has
lived through the entirety of this program, provide the real
flavor to this. But let me just say from my own perspective, I
think that the challenges have also been opportunities, and I
think the opportunity here was to show that the Administration
could be given responsibility for a program that it could
implement in a way in which at the other end at this particular
point in time Senator Collins tells me that the report from the
chemical industry is that the Administration has done a good
job, has been open to suggestions and comments and ideas from
the regulated sector, while at the same time I think achieving
a sense that all of us have that security at chemical
facilities is a heck of a lot better than it was before you all
provided us with this opportunity.
But, Ms. Armstrong, you have been close to this on a daily,
weekly, and monthly basis, so why don't you add to that?
Ms. Armstrong. Thank you, sir.
I would echo the Under Secretary in that implementing CFATS
has been a challenge because it is doing something new to the
Federal Government inside a new Department. But it has also
been a successful opportunity to use the effective public-
private partnership set forth in the National Infrastructure
Protection Plan to engage the affected sectors, to have them
tell us what they think all along the way, to have them pilot
the tools that they will then use to comply with the program.
And I think we have substantially grown the CFATS program both
in terms of staffing, opening field offices, hiring the right
people to do the job, and staying closely connected with
industry.
So we have progressed from our initial regulatory due date
for Top-Screens on January 22.
Senator Carper. What are you saying, due date for Top-
Screen?
Ms. Armstrong. Top-Screen is the initial step to determine
if a facility is preliminarily determined to be high risk. It
is a consequence assessment that a facility in possession of
Appendix A chemical of interest at or above screening threshold
quantities submits to us and we evaluate it. So at that point
in 2008, we had 29,453 Top-Screens in. We preliminarily tiered
7,010 facilities, and over 6,300 of those submitted security
vulnerability assessments, which we are continuing to review.
We have assigned over 3,500 facilities a final tier, and
they are doing and submitting their site security plans. We
have 1,600 completed plans, and we are reviewing them, and we
have begun the inspections process. So I think we have made,
again, substantial progress.
Senator Carper. All right. Thanks so much. My time has
expired. Our thanks to each of you. Good to see you again.
Thank you.
Chairman Lieberman. Thanks, Senator Carper.
Senator Carper, Senator Collins, and I always look forward
to your first question, because it is always unique and
refreshing, and you did not disappoint.
Senator Carper. I almost asked Ms. Armstrong, why do we use
so many acronyms in the Federal Government? One of my briefing
memos, we had in one sentence four acronyms.
Chairman Lieberman. See?
Senator Carper. I will save that one for the next panel.
[Laughter.]
Ms. Armstrong. Thank you, sir.
Mr. Beers. I asked you that when I started the job, too.
Ms. Armstrong. Oh, wait. Let me get to the best one: The
State, Local, Territorial, and Tribal Government Coordinating
Council (SLTTGCC).
Mr. Beers. SLTTGCC. [Laughter.]
Senator Carper. I rest my case.
Mr. Beers. And I have worked in the State Department and
with the Pentagon, so I know acronyms. That one just blew me
away when I first heard it.
Chairman Lieberman. I am not even going to ask you how you
pronounce it. [Laughter.]
Mr. Beers. We have been struggling with that, too, Senator
Lieberman.
Chairman Lieberman. Thank you. Senator Levin.
OPENING STATEMENT OF SENATOR LEVIN
Senator Levin. I am going to have to check the record to
see what the first question was that I missed. It was not about
acronyms, though, I guess. Thank you, Mr. Chairman, and our
Ranking Member, for holding the hearing.
Has the Administration specifically taken a position on the
House bill that they oppose or do not oppose?
Mr. Beers. No, sir, we have not taken a position on the
House bill.
Senator Levin. Do you oppose it or support it?
Mr. Beers. I cannot speak for the Administration at this
point.
Senator Levin. Can anybody here speak for the
Administration?
Mr. Beers. On that bill, no.
Senator Levin. On that question.
Mr. Beers. No. We have not taken a position. You can draw
an interpretation in that we plan to submit our own
legislation.
Senator Levin. OK, and I understand the question was asked
regarding when you are going to be submitting that language.
Of the 6,000-plus high-risk facilities that are covered
under the--does everyone call it ``CFATS''? I am afraid to use
an acronym--CFATS standards, half apparently received final
risk determinations, tier assignments, but only a quarter of
the high-risk facilities have submitted security plans, and
apparently only a few of the facilities have been inspected.
How long do you expect it will take to approve the plans?
And how long will it take to inspect the facilities?
Mr. Beers. Our plan is to inspect all the Tier 1 facilities
by the end of this calendar year, sir.
Senator Levin. And the plans?
Mr. Beers. That will be dependent upon the plans and the
iteration back and forth. We had, in all candor, hoped to begin
the inspection process in December. We did not, in part because
of the iteration back and forth on the site security plans.
But, Ms. Armstrong, do you have a better, more precise answer
on that?
Ms. Armstrong. No. That is correct. We have done
preliminary inspections at two Tier 1 facilities this month; we
will do 10 more next month, and our target is to get all of
Tier 1, which is 235 facilities, done this year.
Senator Levin. And do you think that the inspections of
high-risk facilities might help inform the reauthorization
process? Will your experience in going and looking at those
high-risk facilities give us some useful information, practical
information to help us in the reauthorization issues?
Mr. Beers. I cannot but believe that it would, but let me
talk specifically about that question.
Part of the reason that we are doing the preliminary
assessments is to ensure that the regime of the full
inspections is informed by an understanding of that. At any
point in this process of your deliberations, we would be happy
to come forward and brief you on what we have done with respect
to that as you would consider legislation.
Senator Levin. All right. Well, you might want to furnish
that even if we do not ask if there is specific information
that you get which----
Mr. Beers. Point taken, sir.
Senator Levin. Thanks. There are, as I understand it, a
number of current standards which are inconsistent with the
House bill. Some of those CFATS standards are inconsistent. For
instance, what information would be provided to law
enforcement? Is there any consistency between the House
language on that issue and the current regulation which
protects that information more carefully? Could you give this
Committee the list of what current standards are inconsistent
with the House bill? Could you do that for the record?
Mr. Beers. Yes, sir.
Senator Levin. Now on the IST issue, your testimony, as I
understand it, says that the Administration will support IST
for the Tier 1 and 2 facilities if the IST method
``demonstrably enhances overall security'' or is ``determined
to be feasible,'' and then something relative to the water
sector. Who would have the burden to demonstrate under your
proposed language? Is it the regulator that has the burden? Who
has that burden?
Mr. Beers. The decision process would be done by the
regulator, and the decision information would be developed
between the facility to be regulated and the regulator.
Senator Levin. Well, the decision, but who has the burden
of demonstrating?
Mr. Beers. The burden of demonstration would presumably be
on the part of the facility.
Senator Levin. They have to demonstrate that it does not
enhance overall security?
Mr. Beers. If we are in a discussion about the
Administration having a view that it does, they would have the
opportunity to represent a countervailing view, yes, sir.
Senator Levin. Yes, but then where does the burden lie, the
burden of proof? I mean, one says yes, one says, Hey, there is
a----
Mr. Beers. Then the regulator becomes the judge.
Senator Levin. The regulator is the judge. Then that goes
to court?
Mr. Beers. I am not a lawyer, sir, so----
Senator Levin. Oh, that is OK. Now, where does the cost
come in here? And where does the impact on the environment of
something which may be more secure but which has a negative
environmental impact, how is that incorporated in your
language?
Mr. Beers. With respect to the cost, we would be seeking to
understand what the cost of the facility would be to change
from----
Senator Levin. Is that in your standard, your test?
Mr. Beers. That is absolutely a part of our standards. This
is not an effort to drive firms out of business or to impose--
--
Senator Levin. I understand that. I understand that it is
not an effort to do that. The question is whether you
inadvertently might do it or have such large cost increases
that it may not be worth it in terms of the additional security
compared to the additional cost and the additional negative
environmental impact which might be created.
Mr. Beers. Yes, sir.
Senator Levin. There are many specific situations where it
may not be worth the cost. The delta, the improvement in
security, may not be worth the cost. It may be a minor increase
compared to a major cost increase. And there could be a
negative environmental impact in that additional security
requirement. And I want to know how in your standard is that
incorporated. In the language that you used today, I do not see
it. Was it in your opening statement, both those factors? All I
saw was ``demonstrably enhance overall security'' and ``be
feasible.'' So something could be feasible but not worth it.
Mr. Beers. Cost is specifically a factor that will be part
of the decision process, and your formulation about whether the
marginal return on security versus the cost required to do it
would be a consideration which might bear on not choosing to do
it.
With respect to public health and environmental
requirements or risks that would somehow be created by an
alternative chemical being used in the process, we are not
going to make--that is, I think, a pretty clear balancing issue
that says what security gain for what environmental or public
health risk.
Senator Levin. I agree. It is clear it should be.
Mr. Beers. Without being able to comment on a specific
case, my view would be that would trump other considerations.
But I am giving you a personal view now, sir.
Senator Levin. Well, that is my personal view, too, but I
did not see it in your formulation. So I agree with your
common-sense response to that, and I hope it is incorporated.
I am over my time.
Mr. Beers. Well, it will be if I am the administrator of
this, yes, sir.
Senator Levin. Thank you.
Mr. Beers. Thank you for the opportunity, sir.
Chairman Lieberman. Thanks, Under Secretary Beers. Thanks,
Senator Levin.
I thank the members of the panel. We have a second panel,
so the remainder of our questions we will submit to you for
answers for the record. I thank you very much for your time,
and we would now call the second panel to the table.
That would be Darius Sivin, Timothy Scott, and Stephen
Poorman. While we are waiting, I, by unanimous consent, ask
that we enter into the record letters in favor of the House
bill on this subject and several reports on IST.\1\
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\1\ The letters submitted by Senator Lieberman appear in the
Appendix on pages 189-237.
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I will begin some biographical information of our witnesses
while they are shifting.
Darius Sivin is the legislative representative of the
International Union of the United Automobile, Aerospace, and
Agricultural Implement Workers of America (UAW), and also
worked in UAW's Health and Safety Department.
Timothy Scott will testify on behalf of the American
Chemistry Council (ACC). He is the Chief Security Officer and
Corporate Director of Emergency Services and Security at the
Dow Chemical Company responsible for managing security crisis
management and emergency planning for Dow facilities around the
world.
Stephen Poorman is the International Environmental Health
Safety and Security Manager for Fujifilm Imaging Colorants. He
has worked for more than 20 years in environmental safety and
regulation in both the private and public sector, and he will
testify today on behalf of the Society of Chemical
Manufacturers and Affiliates, of which Fuji is one of almost
300 corporate members.
We thank the three of you for being here, and, Mr. Sivin,
we look forward to your testimony now.
TESTIMONY OF DARIUS D. SIVIN, PH.D.,\2\ LEGISLATIVE
REPRESENTATIVE, INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA
Mr. Sivin. Chairman Lieberman, Senator Collins, and Members
of the Committee, I am Dr. Darius Sivin. I represent the
International Union, and we appreciate the opportunity to
testify at this hearing on ``Chemical Security: Assessing
Progress and Charting a Path Forward.''
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\2\ The prepared statement of Mr. Sivin appears in the Appendix on
page 64.
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We and more than 50 partners in a coalition of labor,
public interest, public health, and environmental organizations
strongly believe that the existing Chemical Facility
Antiterrorism Standard is inadequate. The path forward must be
a comprehensive chemical security bill at least as strong as
H.R. 2868.
As indicated, DHS has identified about 6,000 high-risk U.S.
chemical facilities and classified them into four tiers. That
number does not include drinking water or MTSA facilities, as
indicated earlier. According to the Congressional Research
Service (CRS), almost 100 U.S. facilities each put a million or
more people at risk. Union members are concerned that their
workplaces and communities are not adequately protected from
deadly terrorist attacks on chemical facilities and drinking
water systems, and it is the employees who will get hurt first
and worst in case of any attack.
The UAW represents workers at more than 15 facilities that
are required to file EPA risk management plans (RMPs), and
therefore are potentially covered by chemical security
legislation. These include a chemical manufacturer in Adrian,
Michigan, and a wastewater facility in Detroit. Both of them
use chlorine gas transported by the rail car. We are concerned
that Detroit has recently been a terrorist target, and many of
our members live and work in the vulnerability zone of the
Detroit wastewater facility, which is more than 2 million
people. Should there be a chlorine release from that facility
due to a terrorist attack, the question will not be: Is
government too big? Instead it will be: Why wasn't the
government's authorities expanded to protect people from that?
We are encouraged by the fact that 11 wastewater treatment
facilities in Michigan have already converted from chlorine gas
to ultraviolet light or liquid chlorine bleach and that the
Detroit facility can likely do the same thing.
Other UAW-represented facilities that are required to file
RMPs include: A pigment facility in St. Louis, Missouri; a
brewery in Trenton, Ohio; and a plumbing fixture manufacturer
in Searcy, Arkansas. The Missouri facility could expose up to
88,000 people to anhydrous ammonia in case of an attack.
The UAW and our coalition partners believe that water
facilities should be covered by chemical security legislation.
In 2006, the Government Accountability Office reported that
two-thirds of large U.S. wastewater facilities use a
disinfectant other than chlorine gas or plan to switch away
from chlorine gas. Many switches, according to the Center for
American Progress, about 15, between 1999 and 2007, removed
about 26 million people in nearby communities from
vulnerability zones. The Center for American Progress reported
that the cost of converting was typically no more than $1.50
per ratepayer per year, and many more could convert, removing
another 25 million people from vulnerability zones. The cost is
low. The alternatives, including chlorine bleach and
ultraviolet radiation, are well established, safe for public
health, and there is no reason that water facilities should not
be covered.
We think that the solution is comprehensive chemical
security legislation, and we oppose a mere extension of the
existing CFATS program. Its authorizing statute, as mentioned,
called Section 550, exempts wastewater treatment and MTSA
plants. It also prohibits DHS from disapproving a plan merely
because of the presence or absence of a particular measure.
In addition to the IST question, DHS, for example, could
not disapprove a plan because a surveillance camera was put in
a gaping hole in a fence instead of actually repairing the
fence.
Also, Section 550 provides no redress procedure for an
employee who poses no security risk, but who suffers an adverse
employment decision due to erroneous or irrelevant information
arising from a background check. And it fails to recognize that
security requires that the public have enough information to
hold the government accountable for protecting its security.
This kind of protection needs to balance protection of security
information.
It has been claimed that replacing CFATS with comprehensive
chemical security legislation would force facilities to redo
work they have already done. This claim is simply a red
herring. It ignores the fact that H.R. 2868 was intentionally
written to build seamlessly on the existing CFATS and that the
ACC acknowledged that in its testimony of October 1, 2009. We
and our coalition partners believe that Senate passage of a
bill similar to H.R. 2868 would provide continuity and
permanence to the CFATS program.
Such legislation should cover water facilities, require
assessments of methods to reduce the consequences of a
terrorist attack, and here I would like to address some issues.
One, it has been said in this room today that people favor
a facility-by-facility method. H.R. 2868 is exactly that.
Two, the biggest change in IST, which is both true for
water facilities and industrial facilities, is simply
converting from chlorine gas to liquid chlorine. In many
industries, that is the solution. It is tried and true. It is
not radical. It is not new. It is not undefined. There are
other solutions such as converting from hydrofluoric acid to
sulfuric acid in refining, and we can go over them. But the
major point here is we are not talking about anything radically
new or undefined.
Also, the bill has a precise definition of methods to
reduce the consequences of a terrorist attack, and the fact
that academics may disagree on the definition of IST is simply
irrelevant to H.R. 2868 because the words ``inherently safer
technology'' appear nowhere in the bill.
I would like to say that we were very pleased with the
process that led to the passage of H.R. 2868, which included
input from all stakeholders, especially the ACC who praised the
process both in testimony and in a letter to the Committee.
I would also like to say that we are quite convinced that
requiring a facility to implement its own plan to reduce the
consequences of a terrorist attack will have no negative impact
on jobs. There are studies that show so. There is also the fact
that Clorox expects no negative impact from its conversion of a
paper mill in New Jersey, similarly. In contrast, jobs can be
lost when disasters strike. For example, there is a Sunoco
facility that is not going to be reopened after an ethylene
unit exploded in Philadelphia.
In addition to that, should there be an exceptional case,
H.R. 2868 has specific language endorsed by six unions who
believe that the existing language of H.R. 2868 is such that
those exceptional cases will be covered and are adequate to
protect jobs. The requirement in H.R. 2868 that allows DHS to
require a facility to implement its own plan, according to a
letter signed by Representative Charlie Melancon and four
colleagues from the Blue Dog Coalition, indicates that the
provisions will apply to less than 3 percent of all facilities
under CFATS, and they indicate that they endorse: ``The
legislation also provides a robust technical appeals process
for chemical facilities that disagree with this determination.
The Energy and Commerce Committee developed this provision
using considerable input from the largest chemical industry
association, the American Chemistry Council.''
Chairman Lieberman. Dr. Sivin, excuse me. Let me ask you if
you would put the rest of your statement in the record because
you are over your time.
Mr. Sivin. Sure.
Chairman Lieberman. I appreciate it. We will get back to
you in the questions and answers.
Mr. Scott, welcome.
TESTIMONY OF TIMOTHY J. SCOTT,\1\ CHIEF SECURITY OFFICER AND
CORPORATE DIRECTOR, EMERGENCY SERVICES AND SECURITY, THE DOW
CHEMICAL COMPANY, ON BEHALF OF THE AMERICAN CHEMISTRY COUNCIL
Mr. Scott. Chairman Lieberman, Ranking Member Collins, and
Members of the Committee, my name is Timothy Scott, and I am
the Chief Security Officer for the Dow Chemical Company. Dow is
a member of the American Chemistry Council, and I am here today
speaking on behalf of our industry association.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Scott appears in the Appendix on
page 71.
---------------------------------------------------------------------------
The three points I would like Committee Members to take
away from my remarks are:
First, safety and security are top priorities of the
chemical industry. Our industry, which is critical to our
Nation's infrastructure and the quality of life in the United
States and around the world, has taken aggressive action to
improve its security posture voluntarily before the Chemical
Facility Antiterrorism Standards were launched and continuing
now with the successful implementation of CFATS.
Second, DHS has had many success stories in its short
history, and the implementation of CFATS to date is already
achieving its objectives to reduce the number of high-risk
sites, lower the risk profile of remaining high-risk sites, and
improve the security of all sites. CFATS is, in fact, working.
And, third, DHS should be allowed to maintain the current
momentum and complete the task at hand using a risk-based
methodology to establish stringent performance standards, and
industry should be allowed to use the security tools that best
address the security, operational, and business issues at each
unique site to meet those established standards.
The American Chemistry Council represents the leading
chemical companies in the United States who produce the
essential products used in everyday life. Because of our
critical role in the economy and our responsibility to our
employees, communities, and shareholders, security continues to
be a top priority for ACC members. In 2001, our members
voluntarily adopted an aggressive security program that became
the Responsible Care Security Code. Responsible Care
implementation and regular independent review is mandatory for
membership in the ACC.
The security code is a comprehensive security program that
addresses both physical and cybersecurity vulnerabilities and
requires ACC members to perform a comprehensive assessment of
its security risks and implement appropriate protective
measures throughout a company's value chain.
On April 9, 2007, the U.S. Department of Homeland Security
published CFATS. This comprehensive Federal regulatory program
requires every chemical facility to register with DHS using
their Top-Screen to identify chemicals of interest above a
threshold value and, for those considered a high risk, to
conduct a thorough site security assessment and implement
protective measures that comply with 18 risk-based performance
standards.
Since CFATS became effective, the number of high-risk
chemical facilities has been reduced by close to 1,000
facilities, a 14-percent improvement. This clearly demonstrates
that CFATS is working, even though we are in the early stages
of implementation.
CFATS is, in fact, working. Progress is being made, and we
need to maintain the momentum without unnecessary diversions or
obstacles. We were, therefore, pleased to see that Congress
approved the DHS 2010 budget request and provided a 1-year
extension for CFATS to November 2010. While this extension is
helpful, we encourage Congress to provide permanence to the
CFATS program, ensuring certainty and providing stability so
the industry can continue to move forward making security
investments.
On February 4, 2010, Ranking Member Collins introduced a
bipartisan bill to extend the current CFATS regulations for 5
years. Titled ``Continuing Chemical Facilities Antiterrorism
Security Act of 2010,'' S. 2996 would give DHS sufficient time
to fully implement the standards that are just now gaining
traction. ACC supports that goal.
CFATS is by far the most robust, comprehensive, and
demanding chemical security regulatory program to date. CFATS
takes a well-designed approach, sets a high bar through
performance-based standards, and then holds facilities
accountable for meeting those standards by choosing from a full
potential range of security enhancements.
The result is a security plan that is uniquely designed to
address the specific risk issues of each individual facility.
It is a risk-based and performance-based approach.
We, therefore, believe that it is unnecessary and
inadvisable for Congress to provide DHS the authority to
mandate prescriptive chemical process changes by including an
IST provision within the CFATS regulatory program. Through the
use of risk-based performance standards, CFATS has demonstrated
that it drives facilities to consider all possible risk
reduction options, including inherently safer approaches, when
developing a site security plan. We are focused on results.
The highest-risk facilities subject to CFATS face
significant capital investments to implement enhancements, thus
providing additional incentive for the facility to consider all
such risk reduction options in order to move into a lower risk-
based tier or potentially out of the program. While you cannot
mandate innovation, CFATS already provides the incentives to
unleash the ingenuity, expertise and resources of the chemical
industry. Congress should not abandon a strategy that employs
performance-based security standards that recognizes the need
for site-specific solutions and that holds facilities
accountable while avoiding the potential for risk shifting.
CFATS is working today, and we need to continue the
momentum to fully implement the standards developed in 2007. We
need to let DHS finish the current task before revising the
scope. The American Chemistry Council supports the bipartisan
Senate legislation before this Committee as a step that
provides certainty and ensures that this country continues to
benefit from the security measures in place while recognizing
the significant efforts already underway.
The members of the ACC are committed to a continuing and
aggressive approach in safeguarding America's chemical
facilities, and it is in this spirit that we look forward to
working alongside DHS and this Committee. Thank you.
Chairman Lieberman. Thank you, Mr. Scott. Very helpful
testimony. I appreciate it. I look forward to the questions.
Mr. Poorman.
TESTIMONY OF STEPHEN E. POORMAN,\1\ INTERNATIONAL ENVIRONMENT,
HEALTH, SAFETY, AND SECURITY MANAGER, FUJIFILM IMAGING
COLORANTS, INC., ON BEHALF OF THE SOCIETY OF CHEMICAL
MANUFACTURERS AND AFFILIATES
Mr. Poorman. Good morning, Chairman Lieberman, Ranking
Member Collins, and Members of the Committee. My name is Steve
Poorman, and I am the International Environment, Health and
Safety Manager for Fujifilm Imaging Colorants, Incorporated. I
am pleased to provide this testimony regarding the Chemical
Facility Antiterrorism Acts Standards. I speak before you today
on behalf of the Society of Chemical Manufacturers and
Affiliates (SOCMA), of which my company is a member.
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\1\ The prepared statement of Mr. Poorman appears in the Appendix
on page 75.
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Less than 4 years ago, and working in a bipartisan manner,
Congress enacted a strong chemical security regulatory program.
It was this Committee's sustained effort over 2 years that
drove that legislation. Thanks to the bipartisan leadership
shown by your Committee, DHS and regulated facilities are deep
in the middle of implementing this vital program in a focused
and cooperative manner.
SOCMA strongly supports DHS's current CFATS program. This
demanding program is now requiring over 6,000 chemical
facilities nationwide to develop and deploy meaningful security
enhancements. It protects facilities against attack without
impairing the industry's ability to remain innovative and
maintain some of the Nation's highest-paid jobs in the
manufacturing sector.
Congress can best assure the CFATS program's success and
forward momentum by passing S. 2996, the Continuing Chemical
Facilities Antiterrorism Security Act of 2010, as recently
introduced by Ranking Member Collins, together with Senators
Pryor, Voinovich, and Landrieu. This bill would reauthorize the
CFATS program until 2015, thus allowing DHS and facilities to
remain focused on successfully implementing that program as
quickly as possible.
SOCMA is also supportive of the bill's provisions to create
voluntary chemical security training and exercise programs.
Properly executed, such programs would enhance the capabilities
of high-risk chemicals facilities to prevent, prepare, and
respond to acts of terrorism. Similar to provisions in the
Security and Accountability for Every (SAFE) Port Act, these
features of the bill would create valuable solutions to protect
our Nation's critical infrastructure from a terrorist attack.
Training and exercise programs would support a collaborative
environment, involving Federal, State, and local governments,
facilities, and public and private universities, all dedicated
to achieving the goals set forth in the National Infrastructure
Protection Plan.
The House has taken a very different approach than the
Senate so far to address the future of CFATS. First, it
approved largely a partisan bill, H.R. 2868, with no support
from the minority, not a single vote in favor. That bill
includes provisions such as inherently safer technology that
are fundamentally unwise and potentially counterproductive to
our shared goal of preventing terrorist incidents at chemical
facilities. The House bill was approved despite testimony from
numerous witnesses who share strong concerns regarding these
provisions.
As the voice of many small, medium, and large chemical
manufacturers that employ thousands of employees in key
manufacturing States, we ask you to please seriously consider
our concerns about mandatory IST, especially in a security
regulatory context.
One of SOCMA's greatest concerns with the House bill is the
real possibility that its IST provisions will negatively
restrict the production of active pharmaceutical ingredients
(APIs), key raw materials that are included in DHS's Appendix A
of covered chemicals. These APIs are used in prescription and
generic drugs, life-saving vaccines, and over-the-counter
medicines. They are thoroughly regulated by the Food and Drug
Administretion (FDA) and must meet demanding quality and purity
requirements. Substituting chemicals or processes used for API
production would likely violate the conditions of their FDA
approvals. Requiring IST could delay clinical trials while new
replacement chemicals are identified or invented, and would
force API manufacturers and their customer drug manufacturers
to reapply for FDA approval of their products because of the
significant change in the manufacturing.
SOCMA and its members have supported Federal regulations
that require manufacturers to adhere to workplace safety
requirements such as the Occupational Safety and Health
Administration's Process Safety Management standard as well as
mitigating off-site consequences in the event of an accident,
such as EPA's risk management program. These are comprehensive,
effective regulations that are already in place. However,
process or product changes driven by IST mandates will have a
negative impact on the jobs at facilities forced to make these
changes. Spending money to design new products or conduct
process changes necessarily causes companies to assess how they
will pay for it. There is not much available capital these days
for manufacturers to take on new regulations that are aimed at
their livelihood, especially our small manufacturers.
There are other reasons not to require IST mandates other
than cost, despite whether it is only an assessment
requirement. Safety experts and academics have testified
against mandating it. There is no consensus among experts about
how to define it in a security regulatory context, and there is
no method with which to measure it. While it may be feasible to
develop a technical consensus methodology for measuring and
comparing inherent safety, none exists at present. Before
Congress and the Administration could even consider mandating
IST assessment or implementation, they would need to know that
methodologies exist to compare various alternatives from the
standpoint of inherent safety.
As a pragmatic alternative, Congress might ask DHS to study
the over 1,000 facilities that have changed products or
processes and, thus, reduce their risk sufficiently that they
have been removed from the CFATS program. But Congress should
otherwise avoid legislating in this area while that process is
still ongoing.
In conclusion, SOCMA supports permanent chemical site
security standards that are risk-based and realistic, and we
urge Congress to reauthorize the existing CFATS program.
Mandating inherently safer technology as a security measure
will inevitably create negative unintended consequences, and
Congress should not require DHS to do so. SOCMA asks that you
please support S. 2996 and maintain the same bipartisanship
this Committee demonstrated in 2005 when it initiated the
process that led to CFATS.
On behalf of SOCMA, I appreciate this opportunity to
present the association's views on these important issues, and
I look forward to your questions.
Chairman Lieberman. Thanks, Mr. Poorman.
Let me begin with some questions about IST since it is at
the center of this discussion about how to go forward. Both of
you, I think, have stated in your opening statements and the
ones you have given us for the record that existing CFATS rules
have and will motivate facilities, chemical facilities, to
consider and, at their own discretion, obviously, adopt
inherently safer technology measures, in part because of the
natural desire to move to a lower risk tier or potentially out
of the program altogether.
Can you be more specific? Have there been cases that you
are aware of where the existing CFATS rules have, in fact,
motivated chemical facilities to consider and, at their
discretion, adopt IST?
Mr. Scott. I can take a shot at answering that question.
There are several examples. The easiest example of IST to see
is reduction of inventories below the threshold level of any
particular chemical that might be on the list. And in going
back and looking at your process, that is a fairly easy thing
to do in some cases, but not in all cases. So if you can reduce
that inventory, you have come below the threshold value, and
that would take you off the list. But there are other examples
where we have looked at IST, and it is simply not economically
feasible or operationally feasible to implement.
The bottom line on this is that IST is a part of the
toolkit that you have available to meet the risk-based
performance standards. And we think that is the way it should
be included, as one of many security enhancements that you can
look at to address the risk-based performance standards and
meet those standards. And then the results are the proof of the
effort that you have gone through.
Chairman Lieberman. Mr. Poorman, do you want to add
anything to that about the experience of your members?
Mr. Poorman. Yes, absolutely. I think we can say pretty
much the same type of thing where I would say that the examples
that I have heard of from other member companies are where they
are able to reduce inventory. And whether that shifts that
inventory's risk to some other off-site location or not, I do
not know. I do not know the complete details. But it does
remove the risk from that particular facility, which would
either lower its tier or, as you said, push it out of the
program and remove it from the burden of the regulation.
Our members, we have a lot of small manufacturers, and we
are batch manufacturers, and our processes are very unique. The
value that comes from the chemicals that we produce are
basically because it is the uniqueness of that molecule, and,
therefore, the process is very specific.
So looking at that process, which we have done internally,
it is a no-go or it is a go, and we really have limitations as
to how much we can really alter our processes.
Chairman Lieberman. Mr. Scott, obviously you are here on
behalf of the American Chemistry Council. We appreciate that
and have a lot of good working relations with the ACC. In the
House, Marty Durbin, who represents the ACC, testified that ACC
members are comfortable with a requirement to consider IST
because they already do so under the group's Responsible Care
Code. So I wanted to ask you two questions about that. One, is
that correct? And, two, can you describe the approach Dow
particularly or other ACC members have used to consider IST
options?
Mr. Scott. Well, inherently safer technology is best
considered in new process development when you are building a
plan. That is the easiest time and the most economically
feasible and operationally feasible time to implement IST.
Going back to a facility that is already built and the process
is already running and your products are already designed
around that process is much more difficult. But Dow does
include IST in the process design.
Chairman Lieberman. Right.
Mr. Scott. We do include IST in the process design when we
are developing plants. We include reviews of IST and process
safety throughout on a regular review basis. And we included it
in our site vulnerability assessments (SVAs) that we did both
for the Responsible Care Security Code and as a result of
CFATS.
You go back and you look at the sites, and we took in every
situation with the SVAs, we had a physical security person and
a process safety person go along and conduct those SVAs and
looked at it from both perspectives to see what alternatives
were there.
Chairman Lieberman. Good to hear. So is it fair to say, as
Mr. Durbin did in the House, that the ACC would be comfortable
with a requirement to consider IST as opposed to mandating
implementation of it?
Mr. Scott. In mandating, we have always been willing to sit
down and talk with any organization or any group or any
legislative body about various options around inherently safer
technology. We have never come to a formal agreement where we
have sat down and formalized the agreement that is our
position. So we are not in support of mandating implementation
or mandating consideration of IST.
Chairman Lieberman. So perhaps we will take that second
alternative up with you as this goes on.
Dr. Sivin, we have talked a few times, both Mr. Silva and
yourself, about drinking water facilities and whether they
ought to be included. And I think we have approached it on a
somewhat technical and statutory basis. Just take a moment,
because it may not be obvious, with a typical chemical
facility, people understand how that might be the target of an
attack. But what are we worried about when it comes to drinking
water facilities?
Mr. Sivin. We are worried about drinking water facilities
that bring in chlorine gas by the rail car to treat the
drinking water, and the releases of chlorine gas could affect
both the workers who work there and the surrounding population.
The most simple change with demonstrably zero public health
impact is instead of bringing chlorine in in gaseous form,
bring it in in aqueous form as liquid bleach.
Chairman Lieberman. Right.
Mr. Sivin. In other cases, it may be possible to go to
other technologies such as ultraviolet radiation, but at least
there you have to do some public health analysis to see whether
there is an impact or a change. Bringing in chlorine in liquid
bleach, there is no question it is the same chlorine. It is
just in a different form which cannot be breathed.
Chairman Lieberman. Right. So are we concerned about an
escape of chlorine in its non-bleach form or that it might be a
subject of an attack, for instance, a terrorist attack?
Mr. Sivin. Both.
Chairman Lieberman. Both.
Mr. Sivin. If a facility brings in chlorine gas by the rail
car, the rail cars could be attacked at the facility. They
could be attacked in the process of transferring chlorine from
the rail car to the facility to treat the water could be
attacked. And they could be attacked anywhere on the open rail.
I realize the last case is a problem for the Transportation
Committee and not this Committee, but just in terms of
describing the problem, that is the problem.
Chairman Lieberman. Very helpful. Thanks. My time is up.
Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Mr. Chairman, it is obviously legitimate for us to have a
robust debate over what the chemical security reauthorization
bill should include. But I want to start my questioning of this
panel by noting an issue that is not legitimate, and that is,
when the Blue-Green Coalition in its letter to this Committee
completely misrepresents comments that I previously made in
2007, doing so does not advance the debate and is certainly
disappointing.
The coalition's letter to the Committee, dated March 1,
2010,\1\ quotes me as saying, ``In fact, Senator Collins' own
comments to DHS in 2007 were clear. She said, `The Department
does not have broad discretion to regulate beyond the interim
3-year period without a comprehensive authorization from
Congress. Any contrary interpretation of the sunset provision
is plainly wrong.' ''
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\1\ The letter referenced by Senator Collins appears in the
Appendix on page 201.
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That is exactly what I did say, and as the Chairman and
other Members may recall, the debate back in 2007 with the Bush
Administration was that the Bush Administration wanted the
authorization to expire and to have only a continuing
appropriation, which the Department was saying that it could
use to set standards however it wanted to. And I was making
very clear that it was Congress' prerogative to reauthorize the
law.
So I think it is extremely disappointing that the Blue-
Green Coalition, represented by Dr. Sivin today, deliberately
misrepresented my comments, and I know it was deliberate
because my staff has communicated with the coalition. So I just
wanted to put that on the record. It was very disappointing,
and it also does nothing to advance what is an important debate
and legitimate disagreements over IST and other issues which
reasonable people could certainly disagree on.
There is another gross misinterpretation that I want to
bring out, and we just heard it in Dr. Sivin's testimony. He
claimed that based on his interpretation of the chemical
security law and regulations, it ``would be very difficult for
DHS to disapprove of a plan that indicates that a surveillance
camera would be used instead of fixing a gaping hole in a
fence.''
Now, first of all, I cannot imagine any chemical facility
not caring about a gaping hole in its fence. But let us accept
the premise that maybe there is an irresponsible chemical
facility that does indeed have a gaping hole in its fence. I
find the interpretation of the law by Mr. Sivin to be a gross
misinterpretation of the authorizing law, the final rule, and
the Department's own risk-based performance standards guidance
document.
If you look at Section 550 of this document, there is a
whole area on the perimeter's security, and Section 550 clearly
states that the Secretary may disapprove a site security plan
if it fails to satisfy the risk-based performance standards
established by this rule.
I could go on and on, but I would like instead to ask our
two experts here today, Mr. Poorman and Mr. Scott, whether you
agree with Mr. Sivin's testimony that it would be very
difficult for DHS to deal with that gap in perimeter security.
Mr. Poorman.
Mr. Poorman. Well, I would say that I would agree with you,
Senator Collins, that I have never worked for any entity that
would allow for such a gap to stay in effect, and I think that
DHS could easily, through their risk-based standards that they
are holding us all accountable to, do enforcement if somebody
left a gap like that in their security perimeter fence in this
case, absolutely.
We basically take a lot of time and effort and spend a lot
of money in meeting these standards which are designed to
harden our facilities against a terrorist attack. And that is
the idea of the risk-based performance standards, and that is
why we are fully in support of S. 2996, because it continues
this program, which we think is very good for the chemical
security of our country.
Senator Collins. Mr. Scott.
Mr. Scott. I agree with you, Senator Collins. First of all,
the performance standards are very clear, and a security
program that started off with a gaping hole in the fence, the
plan would not be approved, and the site would be sent back to
square one to come up with a better plan.
In addition, there is another risk-based performance
standard. If you have an approved plan and your fence is whole
and in good shape and you have electronic surveillance but you
have to do maintenance and open a hole in that fence, there is
a maintenance performance standard that you have to follow in
how you secure that hole while the maintenance is being done,
and when it is closed, it needs to be reported back to DHS.
So there is a very clear guidance on situations like that,
and DHS certainly has the authority to disapprove a plan.
Senator Collins. Thank you.
Mr. Chairman, if I could proceed? Thank you. I want to
discuss with our witnesses the issue of whether an IST mandate
could transfer the risk to a different part of the supply chain
or actually increase other risks. This is a complicated issue,
and we just had a discussion of wastewater treatment plans and
about the benefits of converting from chlorine gas to other
procedures for purifying the water.
But the fact is it is not nearly that simple, and I would
like to give an example that a water utility that is located in
an isolated area of the Northwest gave to me. It told me that
if Congress were to force the replacement of chlorine gas with
sodium hypochlorite, then the utility would have to use as much
as seven times the current quantity of treatment chemicals to
get the same kind of water quality results.
Now, what does that mean? That means that the utility would
have to have far more trucks delivering the bulk chemical into
the watershed, and the greater quantities of chemicals and the
increased frequency of truck deliveries would heighten the risk
of an accident that would result in a chemical spill into the
watershed. And, in fact, according to this utility, the
accidental release of sodium hypochlorite into the watershed
would likely cause greater harm to the soils, and vegetation,
and streams than a release of chlorine gas in this remote area.
My point is that it is difficult to assess exactly what the
replacement of one chemical for supposedly a less hazardous
chemical will produce. And I would like to ask both of you to
comment on the issue of transferring risk.
Mr. Scott, we will start with you.
Chairman Lieberman. Senator Collins, if I may, and I
apologize for interrupting. As Senator Collins knows, I have a
previous commitment. I have to go on to another meeting. I have
some other questions which I will submit for the record, and if
you can, go as long as you like and then please wind up.
Senator Collins. Thank you.
Chairman Lieberman. I thank the witnesses. It has been a
good, thoughtful discussion, and the Committee will try to also
act in a good and thoughtful way.
Senator Collins [presiding]. Thank you, Mr. Chairman. I
will only proceed for a few more moments, but I very much
appreciate your holding this hearing.
Chairman Lieberman. Thank you.
Senator Collins. Mr. Scott.
Mr. Scott. There is the potential for shifting risk. As you
mentioned, there are a lot of examples where the balance is
very critical on how you apply the process or IST technologies
to your process.
The other piece of this is the product differentiation,
which I think was also mentioned earlier, the differences in
the processes that make a Dow product, for example, those sorts
of things.
So the shifting of risk is one of the major concerns that
we have as far as the mandatory implementation of IST in the
whole language, and that is why we think the best result is for
the site to apply the whole realm of potential security
enhancements to each site-specific instance so that we do not
shift the risk but we meet the risk-based performance
standards, which is the end goal, to meet those standards using
any one of these alternatives.
The IST is not a panacea for all things security and all
things process safety. It is a good tool, but it is one of many
tools that we have available to us so we do make the right
answer, we meet the risk-based performance standards, and we do
not shift the risk to other areas at our sites.
Senator Collins. Mr. Sivin, do you not see a concern with
shifting the risk?
Mr. Sivin. H.R. 2868 prohibits DHS from approving any plan
that shifts risk.
Senator Collins. Mr. Poorman, is it that easy to determine
whether risk will be switched to a different part of the supply
chain or to a different area?
Mr. Poorman. Well, I think it would be very difficult. In
our company members' specific situations, many of us are small
batch manufacturers, as I said earlier, and our processes are
very unique, and we know them best, and there is just a great
concern about DHS telling us what to do with our processes.
They are very specific to deliver a certain type of end product
that goes to a customer. It has to meet their specifications
and in some cases has to meet specifications that are basically
written in stone with FDA, the Toxic Substances Control Act,
the Federal Insecticide, Fungicide, and Rodenticide Act, or
other regulatory programs.
So it brings up a whole host of, I will say, collateral
damage that could occur if we are instructed by the Department
of Homeland Security to do something that would alter our
process and shift risk potentially but also shifts risk to our
ability to conduct business.
Senator Collins. From talking to many experts in this
field, it seems that there is a great deal of dispute and that
there is not an established scientific methodology for making
that determination. Do you agree with that?
Mr. Poorman. We certainly do, and we have been privy to
witness a great deal of this debate. But we also know from our
experience that chemical processes are complex, and the
expertise lies usually in-house in the companies that develop
it. Again, I go back to our example. We specifically develop
very specific processes using really world-class expertise,
process chemistry, and process technology. And when we do that
effort, we make sure that these processes are as safe as can be
to deliver the end result. And so we just feel that tinkering
with that process could wreak havoc not only with shifting
risks or making things more unsafe as an unwanted consequence,
but also impacting our ability to do business.
Senator Collins. Mr. Scott, you made an interesting point
that when Dow Chemical applies IST as a possibility or as a
method of reducing risk, that is much easier to do if you are
building a new plant or you are starting a new process. And,
indeed, the water associations have told us about the overly
simplistic assumption that mandatory chemical substitution is
something that is easy, and they talk about the switch
specifically from using chlorine gas to other chemicals and
talk about that it would require a complete overhaul of a
plant's units and that it could cause upwards of $100 million
in some cases.
So could you comment further on the cost issue as far as
the application of mandatory IST rather than focusing on what
the goal is, what the standard is rather than telling a company
how to achieve that standard. What are the cost implications?
Mr. Scott. Well, I do not have a dollar figure, but the
cost implications could be significant. You are talking about
process changes. You are talking about significant changes in
the way you do your business, maybe in the products that you
are able to make as opposed to developing a layered security
approach around identified special targets within your facility
that really improve the physical security.
One example that we have in Dow is that we produce
chlorine, but we use our chlorine internally. We are an
integrated facility, and have integrated sites within Dow
across the United States. So that chlorine is used internally,
but we do have to shift chlorine between facilities.
We were looking at opportunities to reduce the risk by
stopping the shipment of chlorine from one plant to another and
looked at a provider that was closer. But a molecule as simple
as chlorine, the locally available chlorine was not compatible
with our process. It is not an easy task to say chlorine is
chlorine or any chemical is the same as that chemical somewhere
else.
So, as a result, we are partnering with a company to build
a facility closer to our facility. The difference, that is a
considerable investment that is being made, but the end result
is very good in that we have made some improvements in shipment
at a facility that is not the same issue.
So we focus on IST as one of the potential options that is
available to us to improve security, but it is only one of the
options, and we have to look at that and get the right balance.
Senator Collins. Mr. Poorman, when people think of the
chemical industry, they tend to think of Dow Chemical. They
tend to think of large multinational enterprises, multi-
billion-dollar corporations. And, of course, those large
companies do make valuable contributions to our way of life and
our economy.
But the fact is that the chemical industry is also
compromised of thousands of small and medium-sized chemical
companies, and they may focus on the production of just a few
specific chemicals. They may sell their products to larger
companies that use them for manufacturing or other industrial
purposes. So their financial resources for regulatory
compliance are far less than those of large companies.
Could you talk about what the implementation of inherently
safer technology would mean for those smaller companies both in
terms of their ability to operate efficiently, to provide jobs?
Your comments in general.
Mr. Poorman. Sure. I appreciate that opportunity, Senator
Collins. Just relating back, the small chemical manufacturers
are, again, typically batch manufacturers, making what we will
call unique or novel molecules that provide some type of
benefit to a product that is being made by the customer in many
cases, and those are used in all sorts of applications and
impact us in very positive ways.
But the problem lies in the complexities around this. The
processes are very specific. They have been developed through a
great deal of effort and expenditure to get to that point, and
approvals in some cases by not only customers who are being
sold the products that we make but also by regulatory entities
such as FDA, an example of the pharmaceutical intermediates.
So if that changes, if someone comes in and indicates that,
well, we could trade a raw material out, for instance, with
something that somebody deems will be safer, of course, there
will be debate as to whether that is true or not, but also we
have to approach our customers and say we are going to have to
ask you to change your proprietary formulation so that we can
meet the requirements of the Department of Homeland Security,
and you can probably imagine how our customers would react,
especially when they can have the opportunity to have this
material made outside of the United States of America.
So we are very concerned about that type of impact, but
also, by changing the formulation, we may have to go back to a
regulatory body such as FDA and make a request to change our
proprietary formulation on a particular material that we are
manufacturing. And that can take 1 to 4 years to go through
that process. What do we do in the interim?
So these are the concerns we have about that, and these are
the impacts that we would face as a small chemical
manufacturer.
Senator Collins. Thank you. I want to thank our witnesses
today for helping us understand this complex issue. I am going
to submit three additional statements from various
organizations for the record. In particular, the testimony of
Dr. Sam Mannan, the Director of the Process Safety Center at
Texas A&M, is very illuminative. He is a leading expert in the
fields of chemical engineering and process safety, and his
testimony focuses on the need for far more research and data
before any kind of Federal mandate to implement or even
consider IST should be incorporated into the law. So I am going
to submit those three statements for the record.\1\
---------------------------------------------------------------------------
\1\ The prepared statements submitted by Senator Collins appear in
the Appendix on pages 270-305.
---------------------------------------------------------------------------
The Committee is going to be continuing to look at this
important issue. It is ironic, as I look back on this law's
birth, because it was extremely difficult to get this law
enacted in the first place because the previous Administration
was not enamored with having chemical security authorization.
And today we can look back with pride on a lot that has been
implemented effectively and in my view is working very well.
And I think some of the skepticism in the chemical industry
about having a Federal law has been replaced by a true
partnership where industry has worked with the Department of
Homeland Security and as a result, as Under Secretary Beers
said today, our Nation is far safer.
So I look forward to working with the Administration, with
my colleagues on both sides of the aisle, and with the Chairman
as we pursue this issue.
I also want to thank my staff for their hard work on this
issue. This is enormously complex, and it is very important
that we get it right. And in that regard, I thank our witnesses
as well.
The record for this hearing will be held open for 15 days
to allow for the submission of any questions for the record
from our colleagues as well as additional testimony and other
documents.
And, again, I want to thank all of the witnesses for being
here today, and this hearing is now adjourned.
[Whereupon, at 11:50 a.m., the Committee was adjourned.]
A P P E N D I X
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