[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]
PREVENTING CHEMICAL TERRORISM: BUILDING A FOUNDATION OF SECURITY AT OUR
NATION'S CHEMICAL FACILITIES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CYBERSECURITY,
INFRASTRUCTURE PROTECTION,
AND SECURITY TECHNOLOGIES,
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
FEBRUARY 11, 2011
__________
Serial No. 112-3
__________
Printed for the use of the Committee on Homeland Security
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13
Available via the World Wide Web: http://www.gpo.gov/fdsys/
__________
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COMMITTEE ON HOMELAND SECURITY
Peter T. King, New York, Chairman
Lamar Smith, Texas Bennie G. Thompson, Mississippi
Daniel E. Lungren, California Loretta Sanchez, California
Mike Rogers, Alabama Jane Harman, California
Michael T. McCaul, Texas Sheila Jackson Lee, Texas
Gus M. Bilirakis, Florida Henry Cuellar, Texas
Paul C. Broun, Georgia Yvette D. Clarke, New York
Candice S. Miller, Michigan Laura Richardson, California
Tim Walberg, Michigan Donna M. Christensen, U.S. Virgin
Chip Cravaack, Minnesota Islands
Joe Walsh, Illinois Danny K. Davis, Illinois
Patrick Meehan, Pennsylvania Brian Higgins, New York
Ben Quayle, Arizona Jackie Speier, California
Scott Rigell, Virginia Cedric L. Richmond, Louisiana
Billy Long, Missouri Hansen Clarke, Michigan
Jeff Duncan, South Carolina William R. Keating, Massachusetts
Tom Marino, Pennsylvania
Blake Farenthold, Texas
Mo Brooks, Alabama
Michael J. Russell, Staff Director/Chief Counsel
Michael S. Twinchek, Chief Clerk
I. Lanier Avant, Minority Staff Director
------
SUBCOMMITTEE ON CYBERSECURITY, INFRASTRUCTURE PROTECTION, AND SECURITY
TECHNOLOGIES
Daniel E. Lungren, California, Chairman
Michael T. McCaul, Texas Yvette D. Clarke, New York
Tim Walberg, Michigan, Vice Chair Laura Richardson, California
Patrick Meehan, Pennsylvania Cedric L. Richmond, Louisiana
Billy Long, Missouri William R. Keating, Massachusetts
Tom Marino, Pennsylvania Bennie G. Thompson, Mississippi
Peter T. King, New York (Ex (Ex Officio)
Officio)
Coley O'Brien, Staff Director
Alan Carroll, Subcommittee Clerk
Dr. Chris Beck, Minority Subcommittee Director
C O N T E N T S
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Page
Statements
The Honorable Daniel E. Lungren, a Representative in Congress
From the State of California, and Chairman, Subcommittee on
Cybersecurity, Infrastructure Protection, and Security
Technologies................................................... 1
The Honorable Yvette D. Clark, a Representative in Congress From
the State of New York, and Ranking Member, Subcommittee on
Cybersecurity, Infrastructure Protection, and Security
Technologies................................................... 14
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Ranking Member, Committee on
Homeland Security.............................................. 15
The Honorable Laura Richardson, a Representative in Congress From
the State of California:
Prepared Statement............................................. 16
Witnesses
Mr. Rand Beers, Under Secretary, National Protection and Programs
Directorate, Department of Homeland Security:
Oral Statement................................................. 17
Prepared Statement............................................. 18
Mr. Timothy J. Scott, Chief Security Officer, The Dow Chemical
Company, Testifying on Behalf of The American Chemistry
Council:
Oral Statement................................................. 34
Prepared Statement............................................. 36
Dr. M. Sam Mannan, PhD, PE, CSP, Regents Professor and Director,
Mary Kay O'Connor Process Safety Center, Texas A&M University
System:
Oral Statement................................................. 37
Prepared Statement............................................. 39
Mr. George S. Hawkins, General Manager, District of Columbia
Water and Sewer Authority:
Oral Statement................................................. 44
Prepared Statement............................................. 46
For the Record
The Honorable Daniel E. Lungren, a Representative in Congress
From the State of California, and Chairman, Subcommittee on
Cybersecurity, Infrastructure Protection, and Security
Technologies:
Letter From the Society of Chemical Manufacturers and
Affiliates (SOCMA)........................................... 4
Statement of the National Petrochemical & Refiners Association
(NPRA)....................................................... 11
Appendix
Question From Ranking Member Yvette D. Clarke for Timonthy J.
Scott.......................................................... 61
PREVENTING CHEMICAL TERRORISM: BUILDING A FOUNDATION OF SECURITY AT OUR
NATION'S CHEMICAL FACILITIES
----------
Friday, February 11, 2011
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Cybersecurity, Infrastructure Protection,
and Security Technologies,
Washington, DC.
The subcommittee met, pursuant to call, at 10:06 a.m., in
Room 311, Cannon House Office Building, Hon. Daniel Lungren
[Chairman of the subcommittee] presiding.
Present: Representatives Lungren, Walberg, Meehan, Long,
Marino, Clarke of New York, Thompson, Richardson, and Richmond.
Also present: Representative Jackson Lee.
Mr. Lungren [presiding]. Even though the time has come, we
just completed a classified briefing over at the skiff, over at
the visitor center. Ms. Clarke was over there, and she is on
her way. I would like to wait a few minutes before we start.
The Committee on Homeland Security Subcommittee on
Cybersecurity, Infrastructure Protection, and Security
Technologies will come to order. The subcommittee is meeting
today to receive testimony from two panels. The first panel
will include testimony from the Honorable Rand Beers, Under
Secretary of the National Protection and Programs Directorate
at the Department of Homeland Security.
Panel two will consist of testimony from Mr. Timothy Scott,
Chief Security Office of the Dow Chemical Company, Mr. Sam
Mannan, a Regents Professor and Director of the Mary Kay
O'Connor Process Safety Center, and Mr. George Hawkins, General
Manager, District of Columbia Water and Sewer Authority.
First, I would like to welcome our witnesses to our first
subcommittee hearing under the new Republican majority. I would
like to also thank the Ranking Member of the full committee Mr.
Thompson and the Ranking Member of the subcommittee Ms. Clarke
for the bipartisan working relationship we enjoyed in the 111th
Congress in this subcommittee. We will continue to endeavor
that we work in the same bipartisan spirit in the 112th
Congress.
I am very happy to welcome my new Republican colleagues to
our subcommittee, Mr. Meehan and Mr. Marino. We hopefully will
be joined later by Mr. Walberg and Mr. Long. We have a veteran
of our subcommittee, Mr. McCaul as well.
Our subcommittee will be examining many critical issues in
this Congress from the physical and cyber threats to our
critical infrastructure to radiologic and nuclear and
biological threats to our cities. We intend to be aggressive in
our oversight of the Department and its many security programs,
especially those that provide more substantial security
improvement for the amount of taxpayer dollars spent.
What I mean by that is we are suffering from difficult
budget times. No department and no office, no part of the
Federal Government is going to be immune from that. We are
going to have to look with an even more careful eye at the
effectiveness of various programs. So it is going to be a
matter of setting priorities. We hope that we will work with
the Department to be able to set the correct ones.
One of those critical issues within our jurisdiction is
chemical security. In many ways, chemicals underpin our way of
life in our 21st Century economy. They employ over 800,000
workers. They produce 19 percent of the world's chemical
products.
Because of this critical economic role of the chemical
industry and the danger of these chemicals for facility workers
and surrounding populations due to the terrorist threat,
securing chemical facilities is a top priority for our
committee.
My interest in this issue dates back to the time when I was
Chairman of the predecessor subcommittee and introduced the
Chemical Security Anti-Terrorism Act of 2006. At that time, the
chemical industry was operating under a voluntary security
regime, which left many security gaps because of the
nonparticipating facilities.
So in order to address those security gaps, I introduced my
bill, which would have established a risk-based performance
approach targeting high-risk chemical facilities. While the
bill did not finally pass the entire House, it did provide the
model used by the administration and House Appropriations to
craft a comprised National risk-based security plan for all
high-risk chemical facilities.
That was Section 550 of the Homeland Security
Appropriations Act of 2007. That was done in the closing weeks
of the 109th Congress.
The authority to regulate chemical facility security is
historic and critically important. Dangerous chemicals listed
in Appendix A as chemicals of interest, or COI, when stored or
processed above threshold quantities pose serious threats to
facility workers and neighboring populations. They are also
attractive terrorist targets.
So we need to bolster security of chemical facilities and
the best way to do that is to allow the CFATS, that is the
Chemical Facility Anti-Terrorism program, to be fully
implemented before any significant program changes are enacted.
In our judgment the best way to strengthen the foundation of
security that CFATS is building at our Nation's chemical
facilities is to provide a long-term extension of the CFATS
authority.
This will provide our chemical facility partners, and we
have to be partners in this regard if we are going to be
successful, those who are spending collectively millions of
dollars implementing new security measures. We have to provide
them with the assurance that the rules and requirements won't
change from year to year as the CFATS program is being
implemented.
That is not to say we won't make changes as we find they
are necessary, but rather we will not look at a complete
overhaul of the regime. This will also provide the Department
with a certainty that the Congress believes chemical security
will be a priority for years to come as they continue to
implement, evolve, and invest in the CFATS program.
Another controversial issue that has emerged during
chemical security debate centers on the understanding of
inherently safe technology, sometimes called IST. I just want
to make it clear, I don't support mandating a single solution
security approach. IST, from the testimony we have had in the
past, isn't something you can buy off the shelf or simply plug
in.
It is a concept; not a very well-understood concept at
that. It is a very complex process or series of procedures that
should not be mandated at least according to the testimony of
the three non-governmental witnesses today. There is no--at
least I have not been able to find a single definition of what
IST is because it differs so greatly from chemical to chemical
and from facility to facility.
I do support, and I know the administration generally
supports, risk-based security solutions including layered
approaches as part of that that reduce identified
vulnerabilities and would oppose mandating specific security
measures.
Requiring a specific type of security measure in many ways
goes against the very principles of risk-informed performance-
based approaches. CFATS is building a strong chemical security
foundation by enabling multiple risk-based solutions and
flexibility for facilities to select the security approaches
that best fit their unique security needs while still meeting
the risk-based performance standards established by DHS.
The original bipartisan Congressional goal of these
regulations was to strike the proper balance between improving
security at our high-risk chemical facilities while preserving
the economic vitality of this critical sector.
While CFATS we would all agree still has a long way to go,
I believe that the CFATS authority enabling the regulatory
structure and use today is providing our Nation the best
opportunity to meet that Congressional goal.
So in pursuit of that, I would like to thank our witnesses
for appearing today. I would look forward to hearing your
testimony. I would ask unanimous consent to insert into the
record the testimony from Lawrence Sloan, President and CEO of
the Society of Chemical Manufacturers and Affiliates and
testimony from the National Petrochemical and Refiners
Association. Without objection, that will occur.
[The information follows:]
Letter Submitted For the Record by Chairman Daniel E. Lungren
February 11, 2011.
The Honorable Dan Lungren,
Chairman, Subcommittee on Cybersecurity, Infrastructure Protection, and
Security Technologies, H2-176, Ford House Office Building,
Washington, DC 20515.
The Honorable Yvette Clarke,
Ranking Member, Subcommittee on Cybersecurity, Infrastructure
Protection, and Security Technologies, H2-117, Ford House
Office Building, Washington, DC 20515.
Re: Subcommittee Hearing on ``Preventing Chemical Terrorism: Building A
Foundation of Security At Our Nation's Chemical Facilities''
Dear Chairman Lungren and Ranking Member Thompson: On behalf of the
members of the Society of Chemical Manufacturers and Affiliates
(SOCMA), I would like to share with you our perspective on the subject
of your hearing this week, the Chemical Facility Anti-Terrorism
Standards (CFATS).
Working in a bipartisan manner, Congress enacted a strong chemical
security regulatory program in late 2006. It was the sustained effort
over a 2-year period by the House Homeland Security Committee and the
Senate Homeland Security and Government Affairs Committee that drove
that legislation. Thanks to this leadership, the U.S. Department of
Homeland Security (DHS) was finally able--6 years after 9/11--to
initiate a regulatory program to assure the security of the Nation's
vital chemical sector. DHS and regulated facilities are still deep in
the middle of implementing these Chemical Facility Anti-Terrorism
Standards (CFATS) in a focused, cooperative manner. On behalf of the
most innovative component of the chemical sector, SOCMA appreciates the
interest that the subcommittee is showing in the CFATS program by
holding this hearing so early in the 112th Congress.
SOCMA strongly supports DHS's current CFATS program. This demanding
program is now requiring over almost 5,000 chemical facilities Nation-
wide to develop and deploy meaningful security enhancements. Equally
important, it has led over 2,000 facilities to voluntarily take steps
reduce their risk profile sufficiently that they no longer warrant
regulation under the program. This performance-based regulation
protects facilities against attack without impairing the industry's
ability to remain innovative and maintains some of the Nation's
highest-paid jobs in the manufacturing sector.
While CFATS has had bumps in the road like any other regulatory
program, it is working well and making the Nation safer for all
Americans. Congress can best assure the program's success and continued
forward momentum by passing a 3- to 5-year extension of the current
authorization without making any other changes.
i. socma and the current state of chemical facility security
A. SOCMA
SOCMA is the leading trade association representing the batch,
custom, and specialty chemical industry. SOCMA's nearly 300 member
companies employ more than 100,000 workers across the country and
produce some 50,000 products--valued at $60 billion annually--that make
our standard of living possible. From pharmaceuticals to cosmetics,
soaps to plastics, and all manner of industrial and construction
products, SOCMA members make materials that save lives, make our food
supply safe and abundant, and enable the manufacture of literally
thousands of other products. Over 80% of SOCMA's active members are
small businesses.
ChemStewards is SOCMA's flagship environmental, health, safety,
and security (EHS&S) continuous performance improvement program. It was
created to meet the unique needs of the batch, custom, and specialty
chemical industry, and reflects the industry's commitment to reducing
the environmental footprint left by members' facilities. As a mandatory
requirement for SOCMA members engaged in the manufacturing or handling
of synthetic and organic chemicals, ChemStewards is helping
participants reach for superior EHS&S performance.
B. SOCMA's Security Achievements To Date
Maintaining the security of our facilities has always been a
priority for SOCMA members, and was so before September 11. After the
tragic events of 9/11, SOCMA members did not wait for new Government
regulations before researching, investing in, and implementing
additional and far-reaching facility security measures to address these
new threats. Under the ChemStewards initiative, SOCMA members were
required to conduct security vulnerability assessments (SVAs) and to
implement security measures.
SOCMA designed an SVA methodology specifically for batch, custom,
and specialty chemical facilities that was approved by the Center for
Chemical Process Safety (CCPS) as meeting its requirements for an
effective methodology. SOCMA members have spent billions of dollars and
have devoted countless man-hours to secure their facilities and
operations. These investments will naturally continue for the
foreseeable future.
Many (though by no means all) SOCMA member company facilities are
encompassed by the CFATS program. These facilities have completed their
Site Security Plans (SSPs) and are being (or will soon be) inspected by
DHS to verify the adequacy of those plans and their conformance to
them. SOCMA is actively engaged with DHS to accelerate and continuously
improve the implementation of the CFATS program, collaborating on new
approaches to personnel surety and Alternative Security Programs.
Many of our member companies' other facilities comply with the
Coast Guard's facility security requirements under the Maritime
Transportation Security Act (MTSA).
Looking well beyond regulatory requirements, our members have also
partnered with DHS on many important voluntary security initiatives and
programs through the years, including the Risk Assessment Methodology
for Critical Asset Protection (RAMCAP), the Buffer Zone Protection
Plans, and the Homeland Security Information Network (HSIN). SOCMA is a
founding member of the Chemical Sector Coordinating Council, which has
served as a model for how critical infrastructure sectors should work
together and with DHS.
SOCMA also works jointly with DHS in organizing a free annual
Chemical Sector Security Summit and Expo that brings together
Government representatives, chemical security experts, and industry
professionals to share knowledge and best practices.
Through the Sector Council and other avenues, we and our members
have developed close and open working relationships with DHS and other
Federal agencies, and with State and local governments, to exchange
information and coordinate roles in maintaining the security of our
critical chemical facility infrastructure.
C. Preserving the Progress Under CFATS
While we will leave a detailed progress report on the CFATS program
to DHS, SOCMA wants to emphasize that we regard the program thus far as
a success. Due to the outstanding cooperation of the chemical sector,
there has been 100% compliance with the requirements to submit Top-
Screens, SVAs, and SSPs--DHS has not yet had to institute a single
administrative penalty action to enforce compliance. And as noted
earlier, over 2,000 facilities--over a quarter of the preliminarily
tiered facilities--have changed processes or inventories in ways that
have enabled them to screen out of the program. Thus, as predicted,
CFATS is driving facilities to reduce inherent hazards, where in their
expert judgment doing so is in fact safer, does not transfer risk to
some other point in the supply chain, and makes economic sense.
To fully gauge the effectiveness of the CFATS program, Congress
should allow it to be fully implemented--for all tiered facilities to
fully come into compliance. Completing the program's implementation
from start to finish would provide DHS and chemical companies the
ability to assess the overall efficacy of CFATS, identify its areas of
strength and weakness, and subsequently make (or recommend to Congress)
any necessary improvements.
Conversely, the need for annual reauthorization of the program has
created uncertainty for the chemical industry, which is making large
financial investments in tools and technology in order to comply with
the current CFATS standards. Without the assurance of a long-term
authorization of chemical security regulations, companies run a risk of
investing in costly activities today that might not satisfy regulatory
standards tomorrow. With statutory authority for CFATS set to expire
March 4 of this year, Congress must act now to ensure continuation of
the current standards and reauthorize the underlying statute for
another 3 to 5 years.
ii. lessons from the 111th congress
In 2009, Senate Homeland Security and Government Affairs Committee
Ranking Member Collins introduced S. 2996, the ``Continuing Chemical
Facilities Antiterrorism Security Act of 2010,'' together with Senators
Pryor, Voinovich, and Landrieu. This bill would have reauthorized the
CFATS program until 2015, thus allowing DHS and facilities to remain
focused on successfully implementing that program as quickly as
possible. SOCMA strongly supported Senator Collins' legislation.
The House took a very different approach than the Senate, passing a
largely partisan bill (H.R. 2868) by a vote of 230-193 with no support
from then-minority Republican members--not a single vote in favor. That
bill included provisions that are fundamentally unwise and potentially
counterproductive to our shared goal of preventing terrorist incidents
at chemical facilities.
H.R. 2868 was approved despite testimony from numerous witnesses
who shared strong concerns regarding these provisions, particularly a
requirement that facilities implement so-called ``inherently safer
technology'' (IST) in their processes. This mandate would have shifted
DHS's focus from securing our industry against terrorism to conducting
engineering and chemistry assessments, while potentially phasing out
legitimate products that improve our daily lives and enhance our
safety. The House-approved bill would have jeopardized the progress
that industry and DHS have made together thus far under CFATS.
The Senate Homeland Security and Governmental Affairs Committee
shared our industry's concern. During a markup of H.R. 2868, the bill's
text was substituted with Ranking Member Susan Collins' chemical
security legislation, S. 2996, which did not include the controversial
IST provision. The committee approved the substituted language by
unanimous consent, but the full Senate did not have the opportunity to
vote on it by the end of the last Congress. In the end, Congress
extended authorization for the current CFATS program via the continuing
resolutions that have funded the Government for this fiscal year.
iii. mandatory ist is an inherently risky proposition
SOCMA vehemently believes that this Congress should enact
legislation like that reported last year in the Senate, thus extending
the CFATS program for 3 to 5 years. Congress should not devote any
further time to discussing the discredited concept of mandatory IST.
The balance of this statement explains in significant detail why
mandatory IST would be so unwise.
An IST mandate such as that contained in last year's House bill
would have amended Section 2111 of the CFATS statute to require Tier 1
and 2 facilities to implement ``methods to reduce the consequences of a
terrorist attack''--i.e., IST--whenever DHS made specified findings
about risk reduction and technical and economic feasibility. However
common-sense such a mandate might appear on the surface, it is
fundamentally a bad idea in the security context. Inherent safety is a
superficially simple but truthfully very complex concept, and one that
is inherently unsuited to regulation. Any IST mandate is bound to
create situations that will actually increase or transfer overall
risks. It would also wreak economic havoc on regulated facilities,
notwithstanding the findings DHS would have to make. Makers of active
pharmaceutical ingredients, common fuels, and other Federally-regulated
substances would be most at risk of such economic damage.
a. what inherent safety really is and why mandating it is not
inherently better
First and foremost, it is important to clarify a common
misunderstanding about inherent safety. Quite simply, IST is a process-
related engineering concept, not a security one. It is premised on the
belief that, if a particular chemical process hazard can be reduced,
the overall risk associated with that process will also be reduced. In
its simplicity, it is an elegant concept, but the reality is almost
never that simple. A reduction in hazard will reduce overall risk if,
and only if, that hazard is not displaced to another time or location,
or result in the creation of some new hazard.
Inherent safety is only successful if the sum total of all risks
associated with a process life cycle is reduced. This is rarely a
simple calculation, and to some extent it is an irreducibly subjective
one (for example, a substitute chemical that may reduce explosion risks
may also pose chronic health risks).
The calculation becomes even more difficult when it is being done
not solely for reasons of process safety (where accident probabilities
can be estimated with some degree of confidence) but also for reasons
of security (where the probability of terrorist attack is highly
uncertain but certainly low). There is no agreed-upon methodology to
measure whether one process is inherently safer than another process--
something DHS's Science & Technology Directorate is attempting to
address--in a multi-million dollar, multi-year process that may or may
not succeed. This is why the world's foremost experts in IST and
chemical engineering consistently recommend against regulating inherent
safety for security purposes.
Here are several examples of how difficult it can be to reduce
overall risk when attempting to reduce hazard:
Eliminating the use of a hazardous catalyst
A chemical company wants to eliminate the use of a hazardous
catalyst, which is typically used in small amounts. The catalyst serves
as a booster to start a chemical reaction to make a building block for
a drug used to treat cancer. Catalysts tend to be hazardous by nature,
which reduces the number of available alternatives. The only way the
company can initiate the reaction without using a hazardous catalyst is
to increase the temperature and pressure of the system. The overall
risk of the new system, aggravated by increasing the temperature and
pressure, may actually be greater than the risk associated with use of
the catalyst, because catalysts are typically used in small amounts and
the likelihood of an accident is remote.
Reducing the amount of a chemical stored on-site
A manufacturing plant is considering a reduction in the volume of a
particular chemical stored on-site. The chemical is used to manufacture
a critical nylon additive, which is sold to another company and used to
make seat belts stronger. Because it is a critical component for nylon
strength and seatbelt production cannot be disrupted, the production
schedule cannot change. If the amount stored on-site is reduced, the
only way to maintain the production schedule is to increase the number
of shipments to the site. This leads to more deliveries (an increase in
transportation risk) and more transfers of chemical from one container
to another (an increase in transfer risk). Economic risks are also
increased since there is now a greater chance that production could be
disrupted by a late shipment.
How location and individual circumstance affect risk
perception
It is difficult to describe a scenario in which moving a hazard
does not result in a simple transfer of risk from one location to
another. For example, location can highlight different risk
perspectives, such as the use of chlorine, a hazardous gas that comes
in various types of containers. A commonly used example compares the
inherent safety of a rail car, which typically holds up to 90 tons,
versus storage in one-ton cylinders. Residents near the facility would
probably view the one-ton cylinder as inherently safer than a rail car.
On the other hand, workers who have to connect and disconnect the
cylinders 90 times, instead of just once for the rail car, would
probably consider the rail car inherently safer.
B. IST's Impact on Pharmaceuticals and Microelectronics
One of SOCMA's greatest concerns with IST is the real possibility
that it will negatively restrict the production of active
pharmaceutical ingredients (APIs), many of the key raw materials of
which are included on DHS's Appendix A of covered chemicals. APIs are
used in prescription and generic drugs, life-saving vaccines, and over-
the-counter medicines. They are thoroughly regulated by the FDA and
must meet demanding quality and purity requirements. Substituting
chemicals or processes used for the production of APIs 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. The lengthy 1- to 4-year
approval timeline for a new or equivalent replacement chemical would be
a high price to pay for American consumers, many of whom rely on ready
access to pharmaceuticals. To meet continuing consumer demand, API
production would likely shift to foreign countries, where the FDA is
less able to monitor conformance to quality standards.
Many SOCMA members' products are also vital to the manufacture of
microelectronics. Below, we offer several examples, provided by SOCMA
members, of how IST could cripple the pharmaceutical and
microelectronics industries.
Lifesaving Antibiotics: Company A
Company A is a minority-owned small business regulated by DHS under
CFATS. It produces an active pharmaceutical ingredient critical to
specific antibiotics used in the treatment of a life-threatening
bacterial infection. For this purpose, the company is also regulated by
the FDA. Since the product's specifications are likely not to be
attainable via any chemical substitution or altered process, if a
``safer'' manufacturing process alternative was mandated, the company
would likely be forced to discontinue production, lay off workers and
increase our Nation's vulnerability to bacteriological threats. The
impact of a mandatory alternative would thus be swift and direct.
Common Pain Reliever: Company B
Company B manufactures the active pharmaceutical ingredient
Ibuprofen. Ibuprofen is a non-steroidal anti-inflammatory drug (NSAID)
used to treat pain and relieves symptoms of arthritis such as
inflammation, swelling, stiffness, and joint pain. It is one of the
world's most successful and widely-used pain relievers, and is listed
on the World Health Organization's model list of medicines.\1\ Changing
the raw materials, and consequently the process, used to manufacture it
presents a risk to public health and a substantial cost for re-
qualification from a technical, regulatory, and potentially clinical
perspective.
---------------------------------------------------------------------------
\1\ World Health Organization, WHO Model List of Essential
Medicines (March 2005).
---------------------------------------------------------------------------
Company B's 32-year old process to manufacture Ibuprofen bulk
active is well characterized and controlled, and consistently makes a
safe and efficacious product. The process-characteristic impurity
profile, specified under the prevailing USP and European Pharmacopoeia
compendia, is proven to have no impact to public health by its use by
millions of people worldwide. The costs derived from IST, if it
impaired production quantities or product quality, would ultimately be
felt by consumers.
Microelectronics: Company C
Company C manufactures two Appendix A chemicals of interest
targeted by industry critics. First, Company C uses small amounts of
hydrochloric acid (HCl) in a very high purity, aqueous form (37%) to
manufacture a product that represents almost half of the company's
revenue worldwide ($30 million/yr). The product is used in the
microelectronics industry to manufacture integrated circuits and LCD
displays. If HCl were not available, Company C would be unable to make
its largest product, resulting in at least a 50% reduction in
workforce, which would equate to losing 60 jobs. If the company chose
to continue the business, alternatives would have to be developed and
implemented to continue manufacture of those products, which could
easily require billions of dollars of research, development, and
implementation, resources that small companies like Company C, which
include many of SOCMA's members, do not have. Additionally, Company C
uses HCl to protect the environment: Its use brings the pH of the
company's wastewater into the range dictated by its wastewater permit.
The company also uses small volume products using aqueous (49%)
hydrofluoric acid (HF) that are sold into the microelectronics
industry. Customers of Company C that need HF for their products
require Company C to undergo specific certification standards as a
product supplier. If Company C was forced to use a substitute, it would
immediately be out of compliance with its customers' product standards,
which (obviously) would negatively impact Company C's business. In some
cases, the HF is being used as a safer alternative to replace
hydroxylamine (HA), the use of which has been reduced due to the
multiple explosions at HA manufacturing facilities. In some cases,
anhydrous HF may be necessary as water may be incompatible with the
manufacturing process. If manufacturers of microelectronics were denied
a supply of HF, there would be a negative consequence to the domestic
manufacturing of integrated circuits and LCD displays.
The Energy & Commerce Committee's 2009 report on H.R. 2868
attempted to assuage concerns like those just discussed, opining that,
where mandated IST ``could result in a product that is less effective
or less available to those who need it,'' or ``forced the company to
seek new regulatory approvals (such as from the Food and Drug
Administration) that could take years to obtain, that could mean that
the covered facility could not continue its business'' and ``the
Department must consider such unintended consequences.''\2\
Respectfully, SOCMA's concerns cannot be alleviated by such non-binding
language. Not only would DHS not be required to follow it, but DHS
would also be free to conclude that the amount of delay required to get
an FDA approval, or the degree to which the effectiveness of a product
would be diminished, would not mean that the facility could not
continue its business. After all, a sufficiently large and flexible
facility might well be able to stay in business even though it has lost
an important product or market. But this subcommittee should not be
encouraging the destruction of products and markets for questionable
benefits in this economy (or any other).
---------------------------------------------------------------------------
\2\ House Committee on Energy and Commerce, Report No. 111-205, pt.
2, at 48 (Oct. 23, 2009).
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C. IST's Impact on Jobs
It goes without saying that process or product changes will have a
negative impact on the jobs at facilities forced to make these changes.
There are multiple pressures on SOCMA's members, not just whether there
is a market that can afford to purchase what they produce or whether
they can compete with the lower wages and resource costs in foreign
countries. Chemical manufacturers are required to comply with many
State, local, and Federal regulations. Regulatory requirements cost
money, money that is used to hire workers, train them, to innovate,
develop new products, and to provide health care to them. The chemical
industry is one of the most regulated industries in the United States.
Spending money to comply with new regulations necessarily causes
companies to assess how they will pay for it. There isn't much
available capital these days for manufacturers to take on new
regulations aimed at their very livelihood, especially small
manufacturers.
Because they lack the economies of scale and resources of larger
companies, small businesses will be the most vulnerable to the IST
provisions of the House bill. The unintended consequences of this
provision will not only affect chemical manufacturers, but also
resonate throughout their value chain. Since the economic downturn,
small businesses have been hit hard by the economic recession.
Meanwhile, unemployment remains high at 9 percent despite recent job
gains in the last 2 months. States in which chemical manufacturing is
concentrated represent some of the hardest hit areas. For example,
California's unemployment rate at the end of 2010 was 12.5%. Michigan--
where SOCMA has a number of manufacturing members, most of which are
small companies but which pay competitive wages--is not far behind at
11.7%. Missouri follows at 9.5%, New Jersey at 9.2%, and Texas at
8.3%.\3\ SOCMA members from most of these States wrote to their
Representatives last Congress asking you to support the current CFATS
program and oppose mandatory IST requirements.
---------------------------------------------------------------------------
\3\ U.S. Bureau of Labor Statistics, February 2011.
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D. Experts Agree IST Should Not Be Mandated
As these examples demonstrate, a ``simple'' reduction in hazard may
not necessarily result in a reduction of overall risk, and a poorly
constructed or incomplete analysis could result in a ``safer''
alternative producing more harm than good. That is why Government
agencies and experts who really understand inherent safety have
consistently opposed giving Government the power to mandate it. This
includes:
Neal Langerman, representing the American Chemical Society--
the minority's own technical witness at the Homeland Security
Committee hearing in June of 2009.\4\
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\4\ See http://chsdemocrats.house.gov/SiteDocuments/20090616103505-
95857.pdf, p.7: In conclusion, the existing regulatory structure, under
the U.S. EPA Risk Management program and the U.S. OSHA Process Safety
Management standard, provide strong incentives to examine and implement
IST. These programs work in natural conjunction with Homeland
Security's mandate to enhance infrastructure security. The provisions
of the Chemical Facility Antiterrorism Act of 2006 provide a sufficient
legislative framework for this purpose. The most effective steps to
further infrastructure protections will likely include incentives,
rather than new regulations.
Sam Mannan, Director of the Mary Kay O'Connor Process Safety
Center at Texas A&M University, in testimony before the
Homeland Security Committee on December 12, 2007.\5\
---------------------------------------------------------------------------
\5\ See http://chsdemocrats.house.gov/SiteDocuments/20071212094415-
39931.doc, Dr. Mannan's testimony, pp. 6-7: [I]n developing inherently
safer technologies, there are significant technical challenges that
require research and development efforts. These challenges make
regulation of inherent safety very difficult . . . Instead of
prescriptive requirements for inherently safer technology and
approaches, facilities should be allowed the flexibility of achieving a
manageable level of risk using a combination of safety and security
options . . . Over the past 10-15 years, and more so after 9/11,
consideration of Inherently Safer Technology (IST) options and
approaches has effectively become part of industry standards, with the
experts and persons with know-how assessing and implementing inherently
safer options, without prescriptive regulations that carry risks (both
as trumping other tools or potentially shifting risk). A better
approach for applying IST in security is by allowing the companies to
assess IST as part of their overall safety, security, and environmental
operations and therefore, cannot be prescriptive.
Dennis Hendershot, testifying on behalf of the Center for
Chemical Process Safety before the Senate Environment & Public
Works Committee on June 21, 2006.\6\
---------------------------------------------------------------------------
\6\ See http://epw.senate.gov/109th/Hendershot_Testimony.pdf, at 4-
8, esp. 5-6: There are tens of thousands of chemical products
manufactured, most of them by unique and specialized processes. The
real experts on these technologies, and on the hazards associated with
the technology, are the people who invent the processes and run the
plants. In many cases they have spent entire careers understanding the
chemistry, hazards, and processes. They are in the best position to
understand the best choices, rather than a regulator or bureaucrat
with, at best, a passing knowledge of the technology.
It is likewise instructive that the State of New Jersey, whose
chemical facility security program is regularly contrasted with the
CFATS program, only requires consideration of IST--it does not require
facilities to implement it. Congress should not require DHS to do what
all these experts have concluded is unwise, and what it is unwilling to
do directly when the public is picking up the tab.
E. Conditioning the IST Mandate Does Not Solve the Problem
SOCMA is aware that last year's House bill would only have allowed
DHS to impose mandatory on Tier 1 and 2 facilities when it could make
various findings about feasibility, cost impacts and risk transfers.
But that approach does not address our fundamental objection to the
concept, which is that it would take IST decisions away from the
process safety experts who know their own processes the best and would
allow their judgments to be second-guessed by busy Government officials
sitting miles away reviewing documents. While these officials may be
sincerely trying to do their best, we simply do not trust that their
judgments will be better than ours. We also fear the prospect of
liability if a ``safer'' process or chemical that one of our member
companies is compelled to use ends up causing an accident or some other
harm. Will the Federal Government indemnify facilities in the cases
where it overrules their judgments regarding inherent safety? And even
if a facility ultimately succeeds in persuading DHS to allow it to
retain its proposed approach, that process will inevitably have costs
in time and resources.
Preceding all these concerns, moreover, is an even more basic one:
No one knows how to compare the ``inherent safety'' of two processes.
Here is what the experts have told Congress:
I do not believe that the science currently exists to
quantify inherent safety . . . The first challenge is simply to
measure the degree of inherent safety in a way that allows
comparisons of alternative designs . . . \7\
---------------------------------------------------------------------------
\7\ Testimony of Sam Mannan, supra note 5, at 6.
Inherently safer design is not a specific technology or set
of tools and activities at this point in its development . . .
Current books and other literature on inherently safer design .
. . describe a design philosophy and give examples of
implementation, but do not describe a methodology.\8\
---------------------------------------------------------------------------
\8\ Testimony of Dennis Hendershot, supra note 6, at 1-2.
While scientists and engineers have made great strides in
understanding the impacts of industrial processes and products
over the past several decades, there is still no guaranteed
formula for developing inherently safer production
processes.\9\
---------------------------------------------------------------------------
\9\ Testimony of Neal Langerman, supra note 4, at 6-7.
The experts at the National Research Council concluded recently:
``Inherently safer chemistry . . . offers the potential for improved
safety at chemical facilities. While applications show promise and have
found use within the chemical industry, these applications at present
are still quite limited in scope.''\10\
---------------------------------------------------------------------------
\10\ National Research Council, Board on Chemical Sciences &
Technology, Terrorism and the Chemical Infrastructure: Protecting
People and Reducing Vulnerabilities (2006), at 106.
---------------------------------------------------------------------------
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 implementation, they would need to know that
methodologies exist to compare various alternatives from the standpoint
of inherent safety. As discussed above, DHS has launched a major effort
to develop a methodology for comparing the inherent safety of two or
more processes. SOCMA members and staff have been participating in this
effort and cautiously support it. It is too early to tell, however, how
successful it will be. Congress should avoid legislating in this area
while that process is still on-going.
iv. conclusion
The many small and large chemical manufacturers that employ
thousands of employees in key manufacturing States such as Michigan,
Missouri, Texas, and New Jersey stand to lose greatly should an IST
provision be included in any legislation that advances this Congress.
It is a wonder why IST proponents still support such a provision when
there is so much uncertainty about the concept and how DHS could apply
it--and during a historic economic recession in which our Nation's
unemployment rate still wavers around 9%. Mandating inherently safer
technology as a security measure will inevitably create negative
unintended consequences, and Congress should not require DHS to do so.
Rather, SOCMA supports chemical site security standards that are risk-
based, realistic, and not subject to change in any given year.
As the House takes up the issue of chemical security anew in the
112th Congress, SOCMA asks that you act with the same bipartisanship
that the House and Senate demonstrated in 2006 in the process that led
to the creation of CFATS, and support legislation that would extend
authorization of existing chemical facility security standards for 3 or
more years.
I appreciate this opportunity to submit for the record the
Association's views on these important issues.
Sincerely,
Lawrence Sloan,
President and CEO, SOCMA.
______
Statement of the National Petrochemical & Refiners Association (NPRA)
February 11, 2011
NPRA, the National Petrochemical & Refiners Association,
appreciates the opportunity to submit this statement on ``Preventing
Chemical Terrorism: Building a Foundation of Security at Our Nation's
Chemical Facilities.'' America's refining and petrochemical companies
play a pivotal role in ensuring and maintaining the security of
America's energy and petrochemical infrastructure. Nothing is more
important to our member companies than the safety and security of our
facilities. We have worked extensively with the Department of Homeland
Security--and have invested millions of dollars--toward strengthening
facility security. NPRA strongly supports the current Chemical Facility
Anti-Terrorism Standards (CFATS) and encourages Congress to make the
current program permanent, which will allow both DHS and industry the
time needed to fully implement the CFATS program.
NPRA is a trade association representing high-tech American
manufacturers of virtually the entire U.S. supply of gasoline, diesel,
jet fuel, other fuels and home heating oil, as well as the
petrochemicals used as building blocks for thousands of products vital
to your daily life. NPRA members make modern life possible, meet the
needs of our Nation and local communities, strengthen economic and
National security, and provide jobs directly and indirectly for more
than 2 million Americans.
Maintaining a high level of security has always been, and remains,
a top priority at America's refineries and petrochemical manufacturing
plants. Operators of these facilities are fully engaged in the
maintenance and enhancement of facility security. Many of our member
companies have long operated globally, often in unstable regions
overseas, where security is an integral part of providing for the
world's energy and petrochemical needs.
In the aftermath of the September 11 attacks, our member companies
realized that additional and unconventional threats must be considered
in order to protect our Nation critical energy manufacturing and
distribution infrastructure. In full understanding of the potential and
significance of these threats, we did not wait for the adoption of new
Government mandates before implementing additional, far-reaching
facility security measures. Instead, we immediately initiated measures
to strengthen and enhance security, including: 100 percent ID
verification and bag screening; comprehensive vehicle inspections;
limitations on visitor access and tours; and, a reduction in plant
access points to minimize risk. Furthermore, we have been active
participants in the Chemical Sector Council and the Oil and Natural Gas
Sector Council, as well as many other DHS-sponsored efforts.
Since the creation of the current CFATS regulations, our member
companies have submitted their Top Screens, Site Vulnerability
Assessments (SVAs) and Site Security Plans (SSPs) in accordance with
DHS time tables and are awaiting approval of those submissions. Many
NPRA members' manufacturing plants have been subject to Pre-
Authorization Inspections (PAI) and await final tiering status.
Throughout this process, we have developed productive and collaborative
working relationships with DHS and other key Federal agencies, and have
strengthened relationships with State and local law enforcement
offices. These relationships ensure that all parties obtain and
exchange information critical to the maintenance of infrastructure
security, enabling all to respond rapidly to terrorist threats.
We firmly believe that the current CFATS program has been
successful, but needs to be made permanent without the addition of any
extraneous provisions. CFATS must be allowed to be fully implemented by
DHS before any amendments to the program are considered. As a result of
the CFATS program, there has been a surge in security awareness across
all industries and among industry employees. The operators and
employees of our manufacturing plants and our distribution facilities
are now even more keenly aware of vulnerabilities at each site,
potential off-site consequences and methods to reduce risks at these
sites. NPRA members also report that the current regulations have
helped with better chemical inventory management. In fact, many of our
member companies regularly conduct security awareness training and
complete Site Vulnerability Assessments to enhance security at
unregulated sites that do not fall under the CFATS program. We have an
excellent working relationship with DHS and have repeatedly volunteered
to help the Department through activities ranging from site tours to
joint training activities and serving as technical experts. In order to
fully gauge the success of the current version of CFATS, however,
Congress should allow for the complete implementation of the current
program. Only then should Congress and DHS determine whether or not
significant changes to this highly innovative program are required.
Specific focus on the existing CFATS program and related security
activities indicates the following:
1. America's refining and petrochemical manufacturing plants will
continue to maintain and improve security operations to protect
the vital network that provides a reliable supply of fuels and
other petroleum and petrochemical products that are required to
keep our Nation strong and our economy growing.
2. Essential working relationships and information networks have
been established between Government security agencies and our
members' manufacturing facilities to exchange ``real-time''
intelligence data on security issues. These relationships allow
for rapid response to terrorist threats. We believe that
unwarranted and potentially counter-productive revisions to
this successful program could significantly alter these
relationships, thus placing unnecessary obstacles in the way of
the Nation's over-arching goals regarding homeland security.
3. We have partnered with the Department of Homeland Security on
many important security initiatives and programs, including the
Risk Assessment Methodology for Critical Asset Protection
(RAMCAP), the Homeland Security Information Network (HSIN),
Buffer Zone Protection Plans, SVAs, Site Security Plans (SSPs)
and Industry Sector Councils.
When reviewing the current program, NPRA and our member companies
strongly caution against the inclusion of any unrelated amendments,
such as inherently safer technology (IST) or increased information-
sharing provisions. The following issues should be considered before
any potential update of the current CFATS program.
inherently safer technology (ist)
IST continues to be a misinterpreted concept to those outside the
field of engineering. Proponents of IST as part of security legislation
believe that the only way to ensure security at chemical facilities is
by reducing the amount of hazardous substances used in chemical
manufacturing and processing by way of ``simple'' chemical
substitution. Application of IST, however, is bound by the laws of
physics and nature; a simple reduction or switch in the use of
hazardous chemicals is rarely possible within the context of a specific
reaction or process. NPRA members' facilities are custom-built
according to specifications that accommodate very specific chemical
processes, and every facility in the country is different. It is
usually not possible to simply ``substitute'' one chemical for another
in the context of refining and petrochemical facilities. Furthermore,
in terms of the reduction of certain substances, there is a serious
risk of simply transferring risk to other points along the chemical
supply chain--thereby not decreasing risk, but simply transferring it
to other areas that may not be as secure as CFATS-covered chemical
facilities.
IST is a conceptual and often complex framework that covers
procedures, equipment, protection and, when feasible, the use of less
hazardous chemicals. IST is not just a safety program; it is a process
safety program that involves understanding chemical engineering and the
supply chain for petroleum-based, natural gas liquids-based and other
organic chemicals derived from these basic feedstocks. Its premise is
that if a particular hazard can be reduced, the overall risk associated
with a chemical process will also be reduced. In its simplicity, it is
an intuitive concept; however, reality is not always that simple.
A reduction in hazard will reduce overall risk if, and only if,
that hazard is not displaced to another time or location, or does not
amplify another hazard. If the hazard is displaced, then the risk will
simply be transferred, not reduced. We strongly oppose the inclusion of
any IST provisions in chemical security legislation. IST and chemical
engineering decisions should be left to individual sites and not
mandated by the Federal Government.
Another factor that makes the implementation of an IST regulatory
program unrealistic is that there are no methods with which to measure
whether one process is inherently safer than another. DHS would not be
able to measure the effectiveness of its regulations, which runs
counter to the Government Performance and Results Act.
sharing of information
We also caution against broadening any of the information-sharing
provisions in the CFATS program. Currently, security information such
as Site Security Plans, Security Vulnerability Assessments and security
infrastructure information is kept between DHS and those at the
facility who can demonstrate a ``need to know.'' Allowing broad access
to this information weakens the security of the site, increases the
likelihood that this information will be leaked to the public and could
lead to situations ranging from an increase in vulnerability to
terrorist attacks at the site to internal threats such as theft and
diversion. It should be strongly noted that security and intelligence
information has traditionally been shared on a strict need to know
basis and has not been made accessible to those who do not have a need
to know. There is plenty of historical evidence to support and continue
limited disclosure of sensitive security and business information.
While all employees should have security awareness training, detailed
site security information should be strictly limited to those specific
individuals with a need to know.
background checks (personnel surety)
Under CFATS, it is required that personnel with access to sensitive
information or relevant operations be vetted against the National
Terrorism Screening Database (NTSDB)--no matter if the person has
already been vetted by other Government credentialing programs, such
the Transportation Worker Identification Card (TWIC) program, the
Hazardous Materials Endorsement (HME) or a host of others. Having to
obtain and maintain multiple Government credentials is duplicative,
burdensome, and costly for industry and DHS. NPRA recommends that DHS
develop a new, universal Federal security credential for personnel with
access to sensitive information or relevant operations that meet the
requirements of CFATS RBPS No. 12--Personnel Surety. A possible first
step toward this end would be the creation of a Chemical Industry
Worker Identification Card (CIWIC) to replace all other Federal
chemical security credentials. In the interim there should reciprocity
of other Federal chemical security credentials.
maritime transportation security act
Many of our member companies comply with the security requirements
under the Maritime Transportation Security Act (MTSA), a program
administered by the U.S. Coast Guard (USCG). The Coast Guard and NPRA
members have worked together closely to achieve the security goals of
MTSA.
If CFATS and MTSA are harmonized, the work that sites have done to
comply with MTSA must be recognized. Further, MTSA sites should not be
subject to dual inspections and that the USCG should continue its role
at traditional MTSA sites.
pipelines
Any new CFATS legislation should exclude pipelines, as they are
regulated by the Transportation Security Administration's Pipeline
Security Division.
exercises and drills
Red team drills are unnecessary for CFATS sites and may lead to
unintended injuries and tension in surrounding communities. However, we
do support security training drills with local law enforcement,
emergency response personnel, and surrounding communities that would
allow all parties to be better prepared for a terrorist event.
conclusion
America's refiners and petrochemical manufacturers are committed to
complying with CFATS. We do not oppose a reasonable review of the
current program; however, the existing program is still developing and
should be allowed to be fully implemented before it is significantly
altered. The program should also be made permanent to provide
regulatory certainty and a stable security framework for the future. We
urge the committee to reject any attempts to significantly amend the
current program--particularly with provisions that would undermine both
security and economic development.
NPRA appreciates the opportunity to submit this statement for the
record and stands ready and willing to work with the committee and
Congress towards the implementation of sound, responsible, effective
chemical facility security policy.
Mr. Lungren. The Chairman will now recognize the Ranking
Minority Member of the subcommittee, the gentlelady from New
York, Ms. Clarke, for any statement she may have.
Ms. Clarke of New York. Thank you, Mr. Chairman, and let me
welcome you, Mr. Beers. I would like to congratulate you first
of all, Mr. Chairman, in the last Congress our places on this
dais were reversed as Chairman and Ranking Member of the
Emerging Threat Subcommittee.
Our subcommittee has now been given the added
responsibility of infrastructure protection. It is a topic that
I know we both have interest and a shared concern.
Even though our respective roles have been changed and the
scope and membership of the subcommittee has changed as well, I
know that one thing will not change is our effective working
relationship and our shared commitment to put partisanship
aside and to do our best to protect our country.
The security of our Nation's chemical facilities is an
important topic for this committee and this subcommittee, and I
thank you for holding this hearing. I would also like to thank
our witnesses for appearing before us today. I look forward to
your testimony and our discussion here today.
As most of you know, I am from New York. The city itself
has industries of every kind, many of them chemical
manufacturers and many of them use chemicals. Right across the
Hudson River stands a collection of refinery, chemical
facilities between Newark Airport and Port Elizabeth that has
been referred to by terrorism experts as the most dangerous 2
miles in America because a major release of toxic chemicals
from any of these facilities could injure or kill tens or
hundreds of thousands of people and possibly impact millions.
So it is important to me not just as the Ranking Member of
this subcommittee, but also in my duty to protect my
constituents that we do our best to make these chemical
facilities as secure as possible. The Chemical Facility Anti-
Terrorism Standards program, CFATS, has been successful to date
even though its final implementation has not been complete.
Even though CFATS is in its middle stages, we can already
see its value. For just the first two phases, the initial tox
screen phase where facilities report their chemicals of
interest and the second, security vulnerability assessment
phase, where vulnerabilities are identified, over 3,000
facilities that were initially in the program have made changes
that lowered their risk to the point that their participation
in CFATS is no longer required.
I am sure, Mr. Chairman, that you share my conviction that
this program should be made permanent through a comprehensive
authorization. I am also sure that you recognize that while
several facilities subject to CFATS have lowered their risk by
examining their holdings and making process changes, there is a
large and important group of facilities, drinking water,
wastewater, and facilities located at ports that have been
exempted from CFATS and therefore have not had the incentive to
lower their risk.
I should note that one of our witnesses who will be on the
second panel is from a wastewater facility that on its own
initiative changed from dangerous to benign substances. We in
this room today are all safer for it. I think that DC Water
should be viewed as an example of two important points.
No. 1, water facilities can represent as much of a hazard
as other chemical facilities and No. 2, that inherently safer
practices do work, are well understood and can significantly
increase security by reducing consequences of release of
chemicals.
If a toxic gas is present in my district, I don't care if
it comes from a chemical facility, a refinery, a water
treatment facility or a chemical tank, or in the port, we still
have the same consequences.
Mr. Chairman, I look forward to working together with you
to close this and other important security gaps while at the
same time giving permanent status to the current CFATS
authority that have worked well so far. I thank you for holding
this hearing, and I yield back.
Mr. Lungren. Thank you very much.
Now it is my pleasure to recognize the Ranking Minority
Member of the full committee, the gentleman from Mississippi,
Mr. Thompson, for any statement that he might make.
Mr. Thompson. Thank you very much, Mr. Chairman, and I too
salute you in your maiden voyage as Chairman of this
subcommittee.
As you know, however, enhancing security of the chemical
sector is a major interest of mine. Over the years you and I
both have worked together effectively on this important
homeland security issue. I was disappointed that last year when
we finally were able to get the House to approve a
comprehensive chemical security bill, you chose not to support
it. But we are going to do better this time.
I hope that we can recapture the bipartisan spirit that we
had in the 109th, 110th, and most of the 111th Congress on the
committee to bring an equally strong chemical security bill to
the House floor.
Today we are meeting to get a progress report from Under
Secretary Beers on the Chemical Facility Anti-Terrorism
Standards or CFATS program. DHS in the 4 years since it was
given authority to regulate the chemical section for security,
has not only moved forward expeditiously but thoughtfully with
the CFATS regulations.
As a result all over the country, the level of risk posed
by chemical facilities to their surrounding communities has
declined as more and more operators have chosen to reduce or
even eliminate their holding of certain chemicals of interest.
Operators have come to realize that simple changes to
chemical holdings not only make security sense but business
sense. The Department deserves credit for all it has done to
promulgate and carry out the CFATS process. Equal credit,
however, is due to the companies that make up the chemical
sector for their positive response and willingness to work with
DHS to make our country more secure.
There have, of course, been a few missteps, but the
Department and the sector have adapted quickly and made
adjustments as necessary. As the CFATS process moves forward,
there continues to be some statutory gaps that must be
addressed.
These gaps include the exemption of drinking water,
wastewater in port facilities, the lack of strong whistleblower
protection, and the absence of methods to reduce consequences
of terrorist attacks in the risk-based program.
The bill that passed the House last year closed all of
these and would have given CFATS permanent status. I hope, Mr.
Chairman, that we can use last year's bill as a starting point
to continue discussion and ultimately reach a bipartisan
solution.
I know we have some jurisdictional obstacles to overcome on
the House floor. Certainly the failure of the new House
leadership to fix jurisdiction remains a problem, but the work
goes on. I look forward to hearing from our witnesses. I thank
all of you for contributing to this process. I yield back.
Mr. Lungren. I thank the gentleman for his comments. I am
sorry that it has been a bipartisan failure to grant this
committee the jurisdiction that it should have. Hopefully we
can get a bipartisan response to that some time and move in the
right direction.
I would just say at the outset that other Members of the
committee are reminded that opening statements may be submitted
for the record.
[The statement of Hon. Richardson follows:]
Prepared Statement of Honorable Laura Richardson
February 11, 2011
I would like to thank Chairman Lungren and Ranking Member Clarke
for holding this important hearing today on maintaining the security of
our Nation's chemical facilities. I look forward to hearing the
testimony of our distinguished panel of witnesses today as Congress
continues to work on reauthorizing the Department of Homeland
Security's authority to regulate chemical facilities.
The Chemical Facility Anti-Terrorism Standards (CFATS) is an
example where the Department of Homeland Security, Congress, and
industry have come together to implement safety standards that have had
a positive effect on improving our National security. While we may not
always agree with every provision in these standards, I think we can
all agree that CFATS have been a proven tool in helping to keep our
facilities, workers, and communities safe.
The chemical industry employs nearly a million Americans and
accounts for nearly $600 billion of our Nation's GDP. More than 70,000
industrial, consumer, and defense-related products from plastics to
fiber optics are produced by the Nation's chemical facilities. The
economic and strategic value of the chemical industry also makes it an
attractive target to terrorists, especially given the destructive power
of many of the chemicals housed in these facilities. When misused,
these chemicals could have a devastating impact on the surrounding
communities.
The chemical industry is extremely important to my district. The
37th Congressional District of California is home to the Port City of
Long Beach. My district is also home to several major oil refineries,
gas treatment facilities, and petro chemical facilities. The chemical
facilities in my district employ nearly 2,600 employees in high-paying
positions.
In 1984, a poison gas leak at Union Carbide's Bhopal plant killed
10,000 people within 72 hours and more than 25,000 people after the
blast. This was just an accident! If a terrorist successfully carried
out an attack on one of the chemical facilities in my district the
death count would be significantly higher.
Finally, it is my prerogative to make sure that not only the
chemical facilities in my district are protected against a potential
terrorist attack, but that all facilities across the country are secure
against attacks.
Again, I thank you Mr. Chairman, and Ranking Member Clarke for
convening this very important hearing today. I look forward to working
with you and my other colleagues on this subcommittee. I also look
forward to hearing from our excellent panel of witnesses. I yield back
the balance of my time.
Mr. Lungren. Although Ms. Jackson Lee is not a Member of
this committee, she has permission to sit in on it and without
objection that will occur. However, Members of the subcommittee
will be recognized before a Member of the committee who is not
a Member of the subcommittee.
We are pleased to have a distinguished witness before us
today on this panel for this important topic. I would just
remind him that your entire written statement will made a part
of the record and you might summarize. We would you ask you to
attempt to summarize that in 5 minutes and then be open to
questions, although I am not one that will hammer you down
after 5 minutes if you would just keep that in mind.
It is our pleasure to have before us today as our opening
witness, Under Secretary Rand Beers from the Department of
Homeland Security. He is in charge of the National Protection
and Programs Directorate and has a distinguished career, one
that gives him a great opportunity to provide great leadership
in his current position. One of the obligations they have is to
try and implement the CFATS program.
So I am waiting with an earnest heart to hear what you have
to say about this program. Mr. Beers, thank you for appearing
before us, and we are ready to receive your testimony.
STATEMENT OF RAND BEERS, UNDER SECRETARY, NATIONAL PROTECTION
AND PROGRAMS DIRECTORATE, DEPARTMENT OF HOMELAND SECURITY
Mr. Beers. Thank you very much, Chairman Lungren, and I
will definitely try to abide by the 5-minute rule. Thank you
also Ranking Member Clarke, Ranking Committee Member Thompson
and other distinguished Members of this subcommittee and
Congresswoman Jackson Lee as well.
It is a pleasure to appear before you all today to discuss
the Department of Homeland Security's efforts to secure the
high-risk chemical facilities. As you are aware, the
Department's current authority under Section 550 of the fiscal
year 2007 Homeland Security Appropriations Act as amended was
set to expire in October 2010 but has temporarily been extended
under the current continuing resolution.
DHS is eager to work with this committee and the Congress
and all levels of government and the private sector to achieve
passage of legislation that permanently authorizes and
appropriately matures the Chemical Facilities Anti-Terrorism
Standards program.
While the inspection process is still on-going, our
analyses indicate that the program is delivering tangible
results that make the Nation more secure.
For example, since the program's inception, 1,246
facilities completely removed their chemicals of interest and
an additional 584 facilities no longer possess the quantity of
chemicals of interest that meet the threshold requirements to
be considered as high-risk facilities.
CFATS currently covers 4,755 high-risk facilities Nation-
wide across all 50 States of which 4,094 facilities have
received final high-risk determinations and due dates for the
submission of a site security or an alternative security plan.
This is a reflection of the significant work of 39,000
facilities that submitted initial consequence screenings. More
than 4,000 facilities have submitted their security plans, and
in February 2010, the Department began conducting inspections
of final tiered facilities starting with the highest risk or
Tier 1 facilities. The Department has completed 175
preauthorization hearings.
An important point that I hope does not get lost in all
these statistics is the open dialogue that DHS has established
with industry through this program and the successful security
gains that are implemented already as a result.
We have also enjoyed a constructive dialogue with the
Congress, including Members of this committee, and we are very
much looking forward to your contemplation of new authorizing
legislation of the CFATS program.
The Department, as I said, supports permanent authorization
and is committed to working with you on that to pass stand-
alone chemical security legislation that includes that
permanent authorization this year.
As you know, the administration believes in an
authorization that should close security gaps that exist in the
current statute, such as eliminating the exemption for water
and wastewater facilities and prudently approaching mandatory
consideration of inherently safer technology.
I am looking forward to this dialogue. Thank you for having
this important hearing. I would be happy to respond to any
questions which you might have. Thank you.
[The statement of Mr. Beers follows:]
Prepared Statement of Rand Beers
February 11, 2011
Thank you, Chairman Lungren, Ranking Member Clarke, and
distinguished Members of the subcommittee. It is a pleasure to appear
before you today to discuss the Department of Homeland Security's (DHS)
efforts to secure high-risk chemical facilities. As you are aware, the
Department's current authority under Section 550 of the fiscal year
2007 Department of Homeland Security Appropriations Act, as amended,
was set to expire in October 2010, but has been temporarily extended
under the current Continuing Resolution. DHS is eager to work with this
committee, Congress, and all levels of government and the private
sector to achieve passage of legislation that permanently authorizes
and appropriately matures the Chemical Facility Anti-Terrorism
Standards (CFATS) program. In the interest of facilitating that
collaboration, my testimony focuses on the current program and the key
principles that DHS would like to see guide the program's maturation.
chemical security regulations
Section 550 of the fiscal year 2007 Department of Homeland Security
Appropriations Act directed the Department to develop and implement a
regulatory framework to address the high level of security risk posed
by certain chemical facilities. Specifically, Section 550(a) of the Act
authorized the Department to adopt rules requiring high-risk chemical
facilities to complete Security Vulnerability Assessments (SVAs),
develop Site Security Plans (SSPs), and implement protective measures
necessary to meet risk-based performance standards established by the
Department. Consequently, the Department published an Interim Final
Rule, known as CFATS, on April 9, 2007. Section 550, however, expressly
exempts from those rules certain facilities that are regulated under
other Federal statutes, including those regulated by the United States
Coast Guard pursuant to the Maritime Transportation Security Act
(MTSA), drinking water and wastewater treatment facilities as defined
by Section 1401 of the Safe Water Drinking Act and Section 212 of the
Federal Water Pollution Control Act, and facilities owned or operated
by the Departments of Defense and Energy, as well as certain facilities
subject to regulation by the Nuclear Regulatory Commission (NRC).
The following core principles guided the development of the CFATS
regulatory structure:
(1) Securing high-risk chemical facilities is a comprehensive
undertaking that involves a National effort, including all
levels of government and the private sector.--Integrated and
effective participation by all stakeholders--Federal, State,
local, Tribal, and territorial government partners as well as
the private sector--is essential to securing our critical
infrastructure, including high-risk chemical facilities.
Implementing this program means tackling a sophisticated and
complex set of issues related to identifying and mitigating
vulnerabilities and setting security goals. This requires a
broad spectrum of input, as the regulated facilities bridge
multiple industries and critical infrastructure sectors. By
working closely with experts, members of industry, academia,
and Federal Government partners, we leveraged vital knowledge
and insight to develop the regulation.
(2) Risk-based tiering to guide resource allocations.--Not all
facilities present the same level of risk. The greatest level
of scrutiny should be focused on those facilities that present
the highest risk--those that, if attacked, would endanger the
greatest number of lives.
(3) Reasonable, clear, and calibrated performance standards will
lead to enhanced security.--The current CFATS rule includes
enforceable risk-based performance standards. High-risk
facilities have the flexibility to develop appropriate site-
specific security measures that will effectively address risk.
The Department will analyze each final tiered facility's SSP to
see if it meets CFATS performance standards. If necessary, DHS
will work with the facility to revise and resubmit an
acceptable plan.
(4) Recognition of the progress many companies have already made in
improving facility security leverages those advancements.--Many
companies have made significant capital investments in security
since 9/11. Building on that progress in implementing the CFATS
program will raise the overall security baseline at high-risk
chemical facilities.
On Nov. 20, 2007, the Department published Appendix A to CFATS,
which lists 322 chemicals of interest--including common industrial
chemicals such as chlorine, propane, and anhydrous ammonia--as well as
specialty chemicals, such as arsine and phosphorus trichloride. The
Department included chemicals based on the consequences associated with
one or more of the following three security issues:
(1) Release.--Toxic, flammable, or explosive chemicals that have
the potential to create significant adverse consequences for
human life or health if intentionally released or detonated;
(2) Theft/Diversion.--Chemicals that have the potential, if stolen
or diverted, to be used or converted into weapons that could
cause significant adverse consequences for human life or
health; and
(3) Sabotage/Contamination.--Chemicals that, if mixed with other
readily available materials, have the potential to create
significant adverse consequences for human life or health.
The Department also established a Screening Threshold Quantity for
each chemical of interest based on its potential to create significant
adverse consequences to human life or health in one or more of these
ways.
Implementation and execution of the CFATS regulation requires the
Department to identify which facilities it considers high-risk. The
Department developed the Chemical Security Assessment Tool (CSAT) to
identify potentially high-risk facilities and to provide methodologies
that facilities can use to conduct SVAs and to develop SSPs. CSAT is a
suite of on-line applications designed to facilitate compliance with
the program; it includes user registration, the initial consequence-
based screening tool (Top-Screen), an SVA tool, and an SSP template.
Through the Top-Screen process, the Department initially identifies and
sorts facilities based on their associated risks.
If a facility is initially identified during the Top-Screen process
as potentially having a level of risk subject to regulation under
CFATS, the Department assigns the facility to one of four preliminary
risk-based tiers, with Tier 1 representing the highest level of
potential risk. Those facilities must then complete SVAs and submit
them to the Department, although facilities preliminarily designated as
Tier 4 facilities also have the option of submitting an Alternative
Security Program (ASP). Results from the SVA inform the Department's
final determinations as to whether a facility is in fact high-risk and,
if so, of the facility's final tier assignment. Each SVA is carefully
reviewed for its description of how chemicals of interest are actually
held at the site, how those chemicals are managed, and for physical,
cyber, and chemical security risks.
After completing its review of a facility's SVA, the Department
makes a final determination as to whether the facility is considered
high-risk and assigns the facility a final risk-based tier. Final high-
risk facilities are then required to develop an SSP or, if they so
choose, an ASP that addresses its identified vulnerabilities and
security issues. Only facilities that receive a final high-risk
determination letter under CFATS will be required to complete and
submit an SSP or, if the facility so chooses, an ASP. DHS' final
determinations of which facilities are high-risk are based on each
facility's individual consequentiality and vulnerability as determined
by its Top-Screen, SVA, and any other available information. The higher
the facility's risk-based tier, the more robust the security measures
and the more frequent and rigorous the inspections will be. The purpose
of inspections is to validate the adequacy of a facility's SSP and to
verify that measures identified in the plan are being implemented.
implementation status
To date, the Department has reviewed more than 39,000 Top-Screen
consequence assessment questionnaires submitted by potentially high-
risk chemical facilities. Since June 2008, we have notified more than
7,000 preliminarily tiered facilities that they have been initially
designated as high-risk and are thus required to submit SVAs; we have
nearly completed our review of the almost 6,200 SVAs that have been
submitted. In May 2009, we began notifying facilities of their final
high-risk determinations, risk-based tiering assignments, and the
requirement to complete and submit an SSP or ASP.
In May 2009, the Department issued 141 final tier determination
letters to the highest risk (Tier 1) facilities, confirming their high-
risk status and initiating the 120-day time frame for submitting an
SSP. After issuing this initial set of final tier determinations, the
Department periodically issued notifications to additional facilities
of their final high-risk status. To date, more than 4,000 additional
facilities have received final high-risk determinations and tier
assignments, and several hundred that were preliminarily tiered by DHS
were informed that they are no longer considered high-risk.
CFATS currently covers 4,755 high-risk facilities Nation-wide
across all 50 States, of which 4,094 facilities have received final
high-risk determinations and due dates for submission of an SSP or ASP.
More than 4,000 facilities have submitted SSPs (or ASPs) to date, and
the Department is in the process of reviewing these submissions. The
Department continues to issue final tier notifications to facilities
across all four risk tiers as additional final tier determinations are
made by the Department.
In February 2010, the Department began conducting inspections of
final-tiered facilities, starting with the Tier 1-designated
facilities, and has completed more than 175 pre-authorization
inspections to date. The Department intends to use these initial
inspections to help gain a comprehensive understanding of the
processes, risks, vulnerabilities, response capabilities, security
measures and practices, and any other factors that may be in place at a
regulated facility that affect security risk in order to help
facilities submit SSPs that can be approved under CFATS. After DHS
issues a letter of authorization for a facility's SSP, DHS will conduct
a comprehensive and detailed compliance inspection before making a
final determination as to whether the facility has appropriately
enacted their SSP. Facilities that have successfully implemented their
approved SSPs and have passed an inspection will be considered in
compliance with the required performance standards.
A critical element of the Department's efforts to secure the
Nation's high-risk chemical facilities, the SSP enables final high-risk
facilities to document their individual security strategies for meeting
the Risk-Based Performance Standards (RBPS) established under CFATS.
Each high-risk facility's security strategy will be unique, as it
depends on the facility's risk level, security issues, characteristics,
and other factors. Therefore, the SSP tool collects information on each
of the 18 RBPS for each facility. The RBPS cover the fundamentals of
security, such as restricting the area perimeter, securing site assets,
screening and controlling access, cybersecurity, training, and
response. The SSP tool is designed to take into account the complicated
nature of chemical facility security and allows facilities to describe
both facility-wide and asset-specific security measures. The Department
understands that the private sector generally, and CFATS-affected
industries in particular, are dynamic. The SSP tool allows facilities
to involve their subject-matter experts from across the facility,
company, and corporation, as appropriate, in completing the SSP and
submitting a combination of existing and planned security measures to
satisfy the RBPS. The Department expects that most approved SSPs will
consist of a combination of existing and planned security measures.
Through a review of the SSP, in conjunction with an on-site inspection,
DHS will determine whether a facility has met the requisite level of
performance given its risk profile and thus whether its SSP should be
approved.
Along with the initial group of final Tier 1 notifications and the
activation of the SSP tool in May 2009, DHS issued the Risk-Based
Performance Standards Guidance document. The Department developed this
guidance to assist high-risk chemical facilities subject to CFATS in
determining appropriate protective measures and practices to satisfy
the RBPS. It is designed to help facilities comply with CFATS by
providing detailed descriptions of the 18 RBPS as well as examples of
various security measures and practices that could enable facilities to
achieve the appropriate level of performance for the RBPS at each tier
level. The Guidance also reflects public and private sector dialogue on
the RBPS and industrial security, including public comments on the
draft guidance document. High-risk facilities are free to make use of
whichever security programs or processes they choose--whether or not in
the Guidance--provided that they achieve the requisite level of
performance under the CFATS RBPS. The Guidance will, however, help
high-risk facilities gain a sense of what types and combination of
security measures may satisfy the RBPS. The Department has also offered
regular SSP training webinars to assist high-risk facilities with
completing their SSPs.
For additional context, I would like to provide you with an example
of how some facilities may be approaching the development and
submission of their SSPs: In the case of a Tier 1 facility with a
release hazard security issue, the facility is required to restrict the
area perimeter appropriately, which may include preventing breach by a
wheeled vehicle. To meet this standard, the facility is able to
consider numerous security measures, such as cable anchored in concrete
block along with movable bollards at all active gates or perimeter
landscaping (e.g., large boulders, steep berms, streams, or other
obstacles) that would thwart vehicle entry. The Department will approve
the security measure as long as it is determined by the Department to
be sufficient to address the applicable performance standard. Under
Section 550, the Department cannot mandate a specific security measure
to approve the SSP.
In June 2010, the Department issued its first Administrative Orders
under CFATS to 18 chemical facilities for failure to submit an SSP.
Throughout the remainder of the year, the Department issued an
additional 47 Administrative Orders to chemical facilities that had
failed to submit an SSP in a timely manner. Administrative Orders are
the first step toward enforcement under CFATS. An Administrative Order
does not impose a penalty or fine, but directs the facility to take
specific action to comply with CFATS--in this case, to complete the SSP
within 10 days of receipt. If the facility does not comply with the
Administrative Order, however, the Department may issue an Order
Assessing Civil Penalty of up to $25,000 each day the violation
continues, or an Order to Cease Operations. All 65 facilities that
received an Administrative Order ultimately completed their SSPs
following receipt of the Administrative Order, or providing amplifying
information to the Department, that satisfactorily explained why they
had failed to meet the deadline for submitting their SSPs, and thus, no
further enforcement action was necessary. As CFATS implementation
progresses, the Department expects to continue to exercise its
enforcement authority to ensure CFATS compliance.
outreach efforts
Since the release of CFATS in April 2007, the Department has taken
significant steps to publicize the rule and ensure that the regulated
community and our security partners are aware of its requirements. As
part of this outreach program, the Department has regularly updated
impacted sectors through their Sector Coordinating Councils and the
Government Coordinating Councils of industries most impacted by CFATS,
including the Chemical, Oil and Natural Gas, and Food and Agriculture
Sectors. We have also solicited feedback from our public and private
sector partners and, where appropriate, have reflected that feedback in
our implementation activities. As the program continues to mature, the
Department participates in an average of 250 CFATS-specific outreach
engagements annually, not including formal coordination activities with
individual facilities such as pre-authorization inspections and
Compliance Assistance Visits. We have presented at numerous security
and chemical industry conferences; participated in a variety of other
meetings of relevant security partners; established a Help Desk for
CFATS questions that receives between 40 and 80 calls daily; put in
place a CFATS tip-line for anonymous chemical security reporting; and
developed and regularly updated a highly regarded Chemical Security
website (www.DHS.gov/chemicalsecurity). This month, the Department
updated the CFATS website to include a more robust, searchable
Knowledge Center, which further supports the regulated community. These
efforts are having a positive impact: Again, more than 39,000 Top-
Screens have been submitted to the Department via CSAT.
In addition, the Department continues to focus on fostering solid
working relationships with State and local officials as well as first
responders in jurisdictions with high-risk facilities. To meet the
risk-based performance standards under CFATS, facilities need to
cultivate and maintain effective working relationships--including a
clear understanding of roles and responsibilities--with local officials
who aid in preventing, mitigating, and responding to potential attacks.
To facilitate these relationships, our inspectors have been actively
working with facilities and officials in their areas of operation, and
they have participated in more than 100 Local Emergency Planning
Committee meetings to provide a better understanding of CFATS
requirements. Last year, the Department, in collaboration with the
State, local, Tribal, and territorial Government Coordinating Council,
issued a tri-fold brochure which summarizes CFATS programs and
processes for local emergency responders.
In May 2010, the Department launched a web-based information-
sharing portal called ``CFATS-Share.'' This tool provides interested
State Homeland Security Advisors, DHS Protective Security Advisors, and
fusion centers access to detailed CFATS facility information as needed.
In the future, DHS plans to make this tool available to other Federal
security partners, such as the Federal Bureau of Investigation. The
Department continues to improve the CFATS-Share web portal based on
feedback from users.
Additionally, the Department continues to actively collaborate
across components within DHS and with other Federal agencies in the
area of chemical security, including routine coordination between the
Department's National Protection and Programs Directorate (NPPD) and
the United States Coast Guard (USCG), the Transportation Security
Administration, the Department of Justice's Federal Bureau of
Investigation and Bureau of Alcohol, Tobacco, Firearms and Explosives,
the NRC, and the Environmental Protection Agency (EPA). One primary
example of this coordination includes the establishment of a joint
NPPD/USCG CFATS-MTSA Working Group to evaluate and, where appropriate,
implement methods to harmonize the CFATS and MTSA regulations.
Similarly, the Department has been working closely with the EPA to
begin evaluating how the CFATS approach could be used for water and
wastewater treatment facilities, should the water and wastewater
treatment facility exemption be removed by Congress in future versions
of chemical facility security or water facility security regulations.
The Department also launched an Agricultural Facility Survey in
July 2010. The goal of the survey is to provide the Department with
additional information on the potential risks related to agricultural
Chemicals of Interest throughout the distribution chain--including
manufacturers, distributors, retailers, commercial applicators, and
end-users. The survey results will also help the Department determine
the most appropriate approach for addressing the existing extension of
the CFATS Top Screen due date for agricultural production facilities.
The Department received completed surveys from nearly 1,200 CFATS
facilities and is currently analyzing the results to determine the best
approach to take regarding agricultural production facilities.
Internally, we are continuing to build the Infrastructure Security
Compliance Division that is responsible for implementing CFATS. We have
hired, or are in the process of on-boarding, more than 178 people, and
we are continuing to hire throughout this fiscal year to meet our
staffing goal of 268 positions. These numbers include our field
inspector cadre, where we have hired 95 of 103 field inspector
positions and 14 of 14 field leadership positions.
legislation to permanently authorize cfats
We have enjoyed the constructive dialogue with Congress, including
Members of this committee, as it contemplates new authorizing
legislation. The Department recognizes the significant work that this
committee and others, including the Senate Committee on Homeland
Security and Governmental Affairs, the Senate Committee on Environment
and Public Works and the House Committee on Energy and Commerce, have
completed in reauthorizing the CFATS program to date and to address
chemical facility security. We appreciate this effort and look forward
to continuing the constructive engagement with Congress on these
important matters.
The Department supports a permanent authorization for the CFATS
program. The Department is committed to working with Congress and other
security partners to pass stand-alone chemical security legislation
that includes permanent authority beginning in fiscal year 2011. The
latest Continuing Resolution authorizes an extension of the statutory
authority for CFATS, which otherwise would have sunset on Oct. 4, 2010.
It is important to highlight that the administration has developed
a set of guiding principles for the reauthorization of CFATS. These
principles are the foundation for the Department's position on
permanent CFATS reauthorization:
The administration supports permanent authorization to
regulate security of high-risk chemical facilities through
risk-based performance standards.
The Department should be given reasonable deadlines by
Congress to promulgate new rules to implement any new
legislative requirements. CFATS, as currently being
implemented, should remain in effect until or unless it is
supplemented by new regulations.
The administration supports, where possible, using safer
technology, to enhance the security of the Nation's high-risk
chemical facilities. Similarly, we recognize that risk
management requires balancing threat, vulnerabilities, and
consequences with the costs and benefits of mitigating risk. In
this context, the administration has established the following
policy principles in regard to inherently safer technologies
(IST) at high-risk chemical facilities:
The administration supports consistency of IST approaches
for facilities regardless of sector.
The administration believes that all high-risk chemical
facilities, Tiers 1-4, should assess IST methods and report
the assessment in the facilities' SSPs.
Further, the appropriate regulatory entity should have the
authority to require facilities posing the highest degree
of risk (Tiers 1 and 2) to implement IST method(s) if such
methods demonstrably enhance overall security, are
determined to be feasible, and, in the case of water sector
facilities, consider public health and environmental
requirements.
For Tier 3 and 4 facilities, the appropriate regulatory
entity should review the IST assessment contained in the
SSP. The entity should be authorized to provide
recommendations on implementing IST, but it would not have
the authority to require facilities to implement the IST
methods.
The administration believes that flexibility and staggered
implementation would be required in implementing this new
IST policy.
The administration supports maintaining the Department's
current Chemical-terrorism Vulnerability Information regime for
protecting sensitive information relating to chemical facility
security. This regime is similar to, but distinct from, other
Controlled Unclassified Information protection regimes.
The Department supports amending the current exemption for
drinking water and wastewater facilities to specify that the
Environmental Protection Agency (EPA) would have the lead on
regulating for security, with DHS supporting EPA to ensure
consistency across all sectors. This consistency could be
achieved, for example, by the use of CFATS compliance tools and
risk analysis with modifications as necessary to reflect the
uniqueness of the water sector and statutory requirements. As
DHS and EPA have stated before, we believe that there is a
critical gap in the U.S. chemical facility security regulatory
framework--namely, the exemption of drinking water and
wastewater treatment facilities from CFATS. We need to work
with Congress to close this gap to secure chemicals of interest
at these facilities and to protect the communities that they
serve; drinking water and wastewater treatment facilities that
meet CFATS thresholds for chemicals of interest should be
regulated. We do, however, recognize the unique public health
and environmental requirements and responsibilities of such
facilities. For example, we understand that a cease-operations
order that might be appropriate for another facility under
CFATS would have significant public health and environmental
consequences when applied to a water facility.
As you are aware, facilities regulated under MTSA authority
are statutorily exempted from CFATS and thus are not required
to submit Top-Screens to DHS. In order to help DHS develop a
more comprehensive picture of security issues at the Nation's
chemical facilities, and to help DHS evaluate whether any
regulatory gaps exist that may pose an unacceptable security
risk, the Department has begun the process, with close
cooperation between NPPD and USCG, for determining whether and
how to require MTSA-covered facilities that possess CFATS
chemicals of interest to complete and submit CFATS Top-Screens.
With respect to the other current statutory exemptions, the
Department supports:
Maintaining the exemptions for both Defense and Energy
Department facilities. Although the Department of Energy is
exempt from the current statute, DOE policy does require
chemical sabotage assessments utilizing the select agents
lists and the adoption of protection measure where
necessary; and
Amending the exemption for facilities regulated under the
NRC to clarify the scope of the NRC exemption and to
specify that DHS and the NRC shall work together to make a
final determination on whether a facility or an area within
a facility is subject to NRC regulation and is thus exempt
from DHS regulation.
Given the complexity of chemical facility regulation,
implementation logistics, and resource implications, any requirements
considered in prospective legislation should also be taken into account
to avoid having the Department extensively revisit aspects of the
program that are either currently in place or which will be implemented
in the near future.
conclusion
The Department is collaborating extensively with the public,
including members of the chemical sector and other interested groups,
to work toward our collective goals under the CFATS regulatory
framework. In many cases, industry has voluntarily made tremendous
progress to ensure the security and resiliency of its facilities and
systems. As we implement CFATS, we will continue to work with industry,
our Federal partners, States, and localities to get the job done.
The administration recognizes that CFATS reauthorization requires
further technical work. The Department is ready to engage in technical
discussions with 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. We look forward to
collaborating with the committee, industry, and Government partners to
ensure that the chemical facility security regulatory effort achieves
success in reducing risk in the chemical sector.
Thank you for holding this important hearing. I would be happy to
respond to any questions you may have.
Mr. Lungren. Well, thank you very much for your testimony.
Maybe that will be a template for others who testify coming
well within the 5 minutes. But I don't want to hold people too
much to that because then I would have to hold myself to that.
Thank you, Mr. Beers, for your testimony. We do know that
your time is valuable, and we appreciate you being here today
to discuss the state of NPPD and the ways to improve its
effectiveness and efficiency in stopping the threats of
terrorism against our chemical facilities. I will recognize
myself for 5 minutes to ask questions.
I happen to agree with you that we have made progress and
that DHS is going in the right direction. However, I just have
to ask this question: In your testimony you report that a
little over 4,700 facilities are covered by CFATS but only 175
preauthorization inspections have been completed, only four
authorization inspections completed. I believe one you either
know or one site security plan is formally approved or
disapproved.
So this is 4 years later. You have had the authority to
regulate these facilities and hundreds of millions of
taxpayers' dollars later, why is the pace so slow? Is it
because of some inherent problem with the CFATS program as we
set it up? Do we have to start all over again? Is it because
you haven't had enough people? We haven't had enough resources?
Is it some other reason because, you know, we are looking
at effective and efficient Government, and if I go home and
talk to my constituents and say hey, I am proud of the fact
that I helped start this program 4 years ago with the initial
thought in our legislation, and yet we only have one site or no
sites that have actually fully been approved, they are going to
say how is that efficient?
How is that effective? What are you going to do about it?
So I guess I would ask you: How is that efficient? How is that
effective? What are you going to about it?
Mr. Beers. Sir, that is an excellent question, and let me
just answer by saying several points. The first point is yes,
we started off with potentially 47,000 programs that might be
within the program. We reduced it in the first instance to
8,000. We have now reduced the number of affected facilities to
a little over 4,000.
In that process, we have determined that, No. 1, the number
of facilities that need to be looked at is less. No. 2, the
number of facilities that were in the initial cut to be looked
at have made adjustments as I indicated in my oral testimony
that have made them safer by no longer putting them in the
position of being high-risk facilities.
No. 3, as we have given final tier notices to the various
facilities they have begun the process of their site selection
plans. They have begun in parallel the movement in the
direction of security measures.
So actually getting to a final approved site security
program does not mean that security hasn't improved over the
process. We have to date nine facilities who have received
letters of authorization, you are correct. We have had four
subsequent site security visits. We have not approved a single
plan yet, but I think it is absolutely fair to say that we have
moved in the direction of making America safer.
With respect to the program overall, I don't believe that
all of the good work that has been done and all of the progress
that has made and the approach to the completion of the site
security plans in any way suggest that the program isn't
working or that we ought to start over again.
With respect to the issue of resources and people which you
asked, I think this is still a growing program. We have in
terms of chemical inspectors approximately 109 who are located
in the field with some in headquarters. We still have a 40
percent growth path with respect to those inspectors that we
have to hire.
So it's--it would be imprudent of me to tell you at this
point that we need more people. We just to complete the hiring
process, which we are doing in a deliberate fashion in order to
ensure that when the people come on-board they will be ready
and that there will infrastructure to support them.
It is my expectation that with respect to the Tier 1
facilities that we will be through with the inspection process
by the end of this calendar year. Thank you, sir.
Mr. Lungren. I appreciate that, and I hope that is true.
You do recall that you testified before us a year ago, and when
we asked when you would be completed with the process you told
us in a year. Now I am hearing the same thing from you.
Why should I believe it is going to be at the end of this
year when you had thought we were going to do it at the end of
last year? If you and I are both fortunate enough to be here
next year, why should I expect I am not going to hear that
again?
Mr. Beers. A very fair question, sir. What we discovered in
the process of the time between when I made that statement last
year and the end of this calendar year was that the submissions
on the part of the industry that made those submissions was
inadequate with respect to the actual site security plan
proposals that they put forward.
As a result of that, we have gone back to them with
requests for more information, with technical assistance as
appropriate in order to build solid, respectable site security
plans. That ended up occupying the course of this year.
I think from the lessons learned during the course of this
year that I think my projection of finishing the Tier 1
facilities by the end of this year is in order. But I certainly
respect your question and my statement last year.
Mr. Lungren. Thank you very much. My time is up.
I now recognize the gentlelady from New York, the Ranking
Member of the subcommittee for 5 minutes of questions.
Ms. Clarke of New York. Thank you very much, Mr. Chairman.
Under Secretary Beers, it is my feeling and the feeling of many
of my colleagues that CFATS has worked pretty well so far. But
we agree with you that a large gap still exists in chemical
security due to the exemption of drinking water, wastewater,
and port facilities and that this gap must be closed. Please
elaborate on the reasons why the administration believes this
gap should be closed?
Mr. Beers. Thank you, Congresswoman Clarke. Let me start on
the port facilities first.
Recognizing that the ports were exempted from this and
recognizing that the Secretary of Homeland Security is both the
Cabinet Secretary for the CFATS program and for port security
with the Coast Guard, she has asked NPPD to work together with
the Coast Guard without the requirement for legislation to
bring about a harmonization of those two regimes to ensure that
from a real perspective that that does not represent a gap. I
think I can report that the working group that has this under
way has made some important progress.
With respect to water and wastewater, I think this was an
area in which some number of the water and wastewater
facilities are known to possess quantities of chemicals of
interest that would put them in the high-risk category.
They are prevalent in every community in this country.
Those which we estimate to be roughly 6,000 that might be
tiered into the four categories, represent a gap that we ought
to find a solution for. So that is the basis for that proposal
that the administration made during the last Congress. Thank
you.
Ms. Clarke of New York. With regards to drinking water,
what are the concerns there? Why is it that the administration
feels that the gap at the port facilities needs the type of
remedies that you have already outlined?
Mr. Beers. Well, in the case of the drinking water, as with
the wastewater, it has to do with the treatment of that water
and the use of chlorine as the basis. Chlorine is on our
chemical of interest list. We know that there are facilities
that have it in quantities that could be potentially dangerous.
Likewise with the port facilities, there are a number of
chemical facilities, refineries, and whatnot that exist in
those port areas, that while the Coast Guard is clearly
responsible for the safety and security of those areas, the
actual requirements that are looked at, the actual issues that
are looked at, I should say, are not exactly the same.
We believe that the safety and security of those areas
ought to be similarly treated as the facilities that do fall
under the Chemical Facilities Anti-Terrorism Standards Act.
Thank you.
Ms. Clarke of New York. Is there an assurance that they
don't get caught between CFATS and the MTSA requirement?
Mr. Beers. That is the intention, to ensure that two
different regimes are administered in roughly the same or in a
harmonized fashion. This is an effort on our part to try to do
the job that we believe in the spirit of the Congress asking us
to do this. Thank you.
Ms. Clarke of New York. Thank you. I yield back, Mr.
Chairman.
Mr. Lungren. Thank you very much. I will now recognize
other Members of the committee for questions that they wish to
ask. In accordance with our committee rules and practice I
would plan to recognize Members who were present at the start
of the hearing by the seniority on the subcommittee. Those
coming in later will be recognized on the order of arrival on
the floor.
I recognize Mr. Meehan. I would just say that as the prime
author of the SAFE Port Act, I appreciate the fact that you are
trying to accommodate that authority along with CFATS and see
if you can work that out. Whether we need specific legislation
or not, we will be in conversation with you about.
But we need to make sure that we are not duplicative in
that effort, and the Coast Guard has done a very good job in
implementing the SAFE Port Act with the ports of the country.
Mr. Meehan is recognized for 5 minutes.
Mr. Meehan. Thank you, Mr. Chairman. Thank you, Mr. Beers,
for your testimony here today. Let me ask you a specific
question. How much chlorine in terms of, you know, an actual
amount represents a threat?
Mr. Beers. Sir, I don't have that figure in front of me
now, but I would be happy to get back to you with a specific
amount that that represents in an explanation of how we came to
the judgment of that amount.
Mr. Meehan. I mean, would a vat of chlorine be a potential
threat, a terroristic threat? Somebody could use a vat of
chlorine, say, at a swimming pool?
Mr. Beers. Sir, that is what I need to get back to you on.
We are really here talking about drinking water and wastewater,
and I don't believe a swimming pool could fall into that. But
it has to do with the level, that is the amount, the actual
amount of a chemical of interest that is held on site.
Mr. Meehan. Right, that is the question I am trying to get
to because that is the answer.
Mr. Beers. I don't have the answer to that specific amount,
but we can get you that information. In fact, we can give you
that information with respect to all the chemicals that are in
Appendix A.
Mr. Meehan. I am an advocate of your interest in trying to
reach beyond where we are going. I guess I am just watching
this anew. We are 10 years after September 11. We are asking
tough questions about the steps that we are taking. Are they
really working? I notice that we are already apparently
significantly behind in the form of doing the inspections that
were discussed earlier at the chemical facilities.
Now we are talking about trying to expand work into the
wastewater facilities. I am thinking back, from days as a
lifeguard, there are big vats of chlorine in every municipal
pool and every private pool and other kinds of places. Do they
pose a threat?
Mr. Beers. As I said, sir, it is not my belief that what we
are talking about is the level of chlorine that would be
available at a swimming pool, as opposed to a drinking water or
a wastewater facility, which are, as you well know, at least
insofar as the ones that would fall under the screening, much
larger facility.
There are tens of thousands of water and wastewater
facilities, yet our estimate of the number that would fall
under the high-risk category is only 6,000. Now, that is also a
large number, and I recognize that. But it is not every vat of
chlorine in every location in the country that is going to fall
under that.
Mr. Meehan. I share the frustration of trying to make sure
that we can balance assuring the safety of the homeland with
what is practical with respect to trying to secure or oversee.
I think about the implications of this to so many of our
municipal water authorities that are already struggling under
tremendous pressure just to be able to keep antiquated systems
running.
To what extent are these kinds of new regulations or
attempts to do further regulation going to deter what limited
capacity they have just to keep their places operating from,
you know, from diverting dollars for this, when they are
already struggling just to do the job that they need to do?
Mr. Beers. Sir, that is absolutely part of the
consideration that we bring to bear in conceiving and
publishing and implementing regulations that Congress might
choose to provide to the administration. The water and
wastewater facilities would be worked on jointly between the
Environmental Protection Administration and the Department of
Homeland Security.
The administration's proposal is to take the experience and
the relationships which EPA has with those facilities and marry
it, so to speak, with the experience that we have in working to
define regulations that make sense, that are smart, that impose
little or no cost on facilities to try to make the
implementation not be an onerous fiscal requirement for these
administrations.
Because you are certainly right with respect to
municipalities and the rigid budget environment that they, as
we in the Federal Government, are already under. This is not
something that would happen overnight. This is not something
that would come down like a ton of bricks.
I think you will find that our relationship with the
chemical and related industries has been a partnership in
implementing these regulations. If we are given authority for
water and wastewater, we would proceed no differently.
Mr. Lungren. The gentleman's time is expired.
The Ranking Member of the Full Committee, the gentleman
from Mississippi, Mr. Thompson, is recognized for 5 minutes.
Mr. Thompson. Thank you very much, Mr. Chairman. Mr. Beers,
first state for the record, could you kind of talk very briefly
about the tiering system under CFATS to kind of give new
Members of the committee a, you know, who we are talking about
and who we are trying to address the most?
Mr. Beers. Yes, sir. So we have four tiers in the high-risk
facilities. In terms of those tiers with respect to the
facilities that are in each of them we have 218 facilities in
Tier 1, currently, and we have three pending final tiering. We
have 535 in Tier 2, with 38 pending final tiering. We have
1,126 in Tier 3, with 146 pending final tiering. We have 2,215
in Tier 4, with 474 pending final tiering.
Tier 1 is the highest tier, the highest risk level. Tier 4
is the lowest risk level. If Members would like, we would be
happy to provide as information the criteria that distinguish
each of those tiers, one from the other.
Mr. Thompson. Mr. Chairman, I think that would be helpful
for the new Members if I would go to New Jersey, for instance,
some of those facilities are right along the interstate. So
part of what we are trying to do is to secure some of those
facilities.
Some of them the committee visited, and we became very
concerned that we have to do something. Some of them, it is
just a mere fence that is the difference between those
facilities and a potential terrorist threat.
But also in this, I understand that we had about 3,000
companies to voluntarily go through a process of getting off
the list by just looking at how they do things and coming into
compliance. Can you share that with the committee, also?
Mr. Beers. That is correct. I think when the initial
regulations were put out, approximately 8,000 facilities
submitted tox screen reports believing that they fell within
that. Of the 3,000 that fell out, some of those were the result
of an inadequate or incorrect understanding, I should say, of
what fell in and what fell out.
But among those I think it is also important to know that
over 1,000, 1,246, completely removed their chemicals of
interest and therefore were no longer within the screening. In
584 of those facilities reduced their holdings to the level
that they were no longer within.
So as I have said, this program has increased security,
even if we haven't gotten to final approval of a specific
security plans because, this has happened. But also it is also
true that companies are not waiting for approval of their final
security plans to begin some of the implementation of the
measures that are included in their security plans.
Mr. Thompson. I yield back.
Mr. Lungren. The gentleman yields back.
The gentleman from Missouri, Mr. Long, is recognized for 5
minutes.
Mr. Long. Thank you, Mr. Chairman, and thank you, Under
Secretary Beers, for being here today and for your testimony.
We are talking about water and wastewater. As far as high-water
marks, if I was to ask you the top three high-water marks, the
top three things in your mind that have been achieved since the
implementation of CFATS, what would I put on my report card?
Mr. Beers. I think the first thing that you would say is
that we have a pretty clear picture of where the security
challenges are located in this country. I think that that is an
important piece of information, both to those of us who are
concerned about security, but also to the citizens who live in
those communities.
I think the second thing that I would say and strongly
believe in is that we have gone about the implementation of
this program in true partnership with the chemical industry,
and we meet with them on a regular basis. As I have said here,
and to some Members outside of the committee hearing room, I
think you would hear the same thing from the chemical
industries.
The third thing I would say is going from zero to where we
are today, that I think we have built the infrastructure within
the Federal Government to be a true partner to the chemical
industry in moving forward in this regard.
Without detracting from the Member's time, please, I would
like to answer Congressman Meehan's question. It is 5,000
pounds--500 pounds of chlorine for theft and diversion, and
2,500 pounds that might be subject to release and that should
not include any swimming pool in the country, sir.
Mr. Long. So on the top three achievement list we have
identified the challenges. Is that kind of No. 1?
Mr. Beers. We defined the problem.
Mr. Long. Defined the problem.
Mr. Beers. We defined the problem. We have created a
working relationship with the chemical industry. We have built
the infrastructure to be a real partner to the industry in
terms of implementing this regulation. We are not doing this
willy-nilly. We are doing it in full consultation.
Mr. Long. So we are ready to start seeing results?
Mr. Beers. We have been seeing the results, but we have got
a ways still to go, sir.
Mr. Long. Let me ask, I have heard you a couple times, your
opening statement and later referred to that the chemicals were
removed from the facilities if that is correct? My question
would be were these chemicals they didn't need? Where did they
go?
I know you said some were reduced to a level where they are
no longer a threat. But I am kind of trying to sort out where
chemicals that they needed in their function have--we tell
them, ``These are going to be a threat. You need to take these
out.'' What do they do?
Mr. Beers. Well, let us just talk for a minute about the
reduction part of this. The amount of chemicals that might be
stored at a particular installation for use in the past was
because they thought that that was the size of inventory that
made the most sense.
That said, you can also set up a supply chain from the
production facility that allows you to have a delivery schedule
that still allows you to have an operating chemical----
Mr. Long. Right. Well, those haven't been removed. They
have just adjusted the quantity they kept on the side.
Mr. Beers. They just adjusted the quantity.
Mr. Long. Right, but the ones that have been removed are
what I am kind of curious about.
Mr. Beers. I think that what that represents is that they
came to believe that they did not need that particular chemical
for whatever it was that that chemical was used for. In some
cases, that may well have been with a substitute of another
chemical that was not a chemical of interest, but was
satisfactory to doing whatever it was that that particular
chemical had been doing. So it is a substitute.
Mr. Long. Okay. So let me ask you another question, here.
To what extent does DHS and other agencies share information
about security at these facilities?
Mr. Beers. We do share information. The point, to go back
to Congresswoman Long's question--Congresswoman Clarke's
question, excuse me--was that we are very much working with the
Coast Guard to share information and best practices about what
we have been doing in this area, as well as them sharing how
they have managed their security and safety operations. So that
is very much the case.
Mr. Long. What barriers, if any, do you think impede the
ability to share information between Federal agencies about the
security?
Mr. Beers. I am not aware of any barriers, sir.
Mr. Long. Really? Good, okay. Thank you for your testimony.
I yield back.
Mr. Lungren. The gentleman's time is expired.
The gentlelady from California, Ms. Richardson, is
recognized for 5 minutes.
Ms. Richardson. Thank you, Mr. Chairman, I just have two
questions. Under Secretary Beers, last year you were designated
the Department's lead for counterterrorism issues. To my
knowledge, you are the first person to be specifically named in
this capacity in the Department's history. Could you give us a
brief overview of what responsibilities and authorities are
associated with your role?
Mr. Beers. Thank you, Congresswoman. The title or the
position to which I have been put into is the Coordinator for
Counterterrorism. This is not a line responsibility. I do not
have the authority to order pieces and parts of the Department
to do A or B.
My job is to make sure that people in the Department are
adequately sharing information, are talking with one another,
are building programs that key off of one another.
I think the best example of that is something that we call
Silent Partner, which is an air security program, which brings
about the cooperation of the Transportation Security
Administration and the Customs and Border Protection Office
where they each took authorities that they had individually and
put them together in a working program that identifies people
of interest who represent threats and who are traveling from
overseas to the United States.
Keeping them off those planes or requiring that they have
additional security screening before they get on planes coming
to the United States, coordination, not authority to order
anything to be done. We have begun working. I think it is a
useful information sharing device that helps the Secretary do a
better job.
Ms. Richardson. Thank you. My second question is to my
understanding, the Department of Homeland Security only screens
against a terrorist watch list. A person who is not on the
terrorist watch list, but prohibited from purchasing a gun, for
example under the National Instant Criminal Background Check
System, could be possibly cleared by DHS.
No. 1, could you clarify for me if that is true? Second of
all, do you think that this is a security risk that may need to
be addressed during the reauthorization? Do you think that
there should be a coordination among the various background
databases maintained by the Federal Government?
Mr. Beers. Congresswoman, thank you very much for that
question.
Ms. Richardson. Yes. Thank you.
Mr. Beers. The answer at the beginning of the question is
no. We only check the terrorist database. That is by counsel's
review of the drafting of the existing legislation. So someone
who was only within the National criminal database would be
permitted to come on to a facility.
If Congress so chooses, to alter that to allow criminal
background checks, as are allowed for the Transportation
Workers Identification Card, we would be pleased to receive
that additional authority. Thank you.
Ms. Richardson. Thank you, sir. I yield back.
Mr. Lungren. Thank you very much. Now the gentlelady from
Texas is recognized, not a Member of the subcommittee, but a
Member of the full committee. I recognize her for 5 minutes.
Ms. Jackson Lee. Chairman Lungren, let me add my
appreciation for the courtesies extended by you and to Ranking
Member Clarke. Thank you very much, and as well, Chairman, let
me congratulate you for your new leadership on this committee.
To the Under Secretary, we have had the opportunity to engage
before. So I am delighted to see you.
I live in the land of chemical plants, if you will. Many of
you may have heard of the Enterprise Products accident that
occurred just about 48 hours ago in that area surrounding
Houston. As I understand the media has reported, one possibly
lost. That may be an accident that had nothing to do with
issues of cybersecurity, but it does show the volatility of the
region and the area.
I believe that we live in a atmosphere of ``Hackers
International,'' some who do it for the thrill, and some who do
it to do us harm. So I believe the urgency of this committee's
work cannot be underestimated.
My question, is the issue of urgency on behalf of the
Federal Government? The tools that you may need? I just saw one
tool expressed, but we have been trying to work on the
authority--or we gave the authority to DHS to regulate chemical
security since 2006. In 2010, there were a minimum of 113
facilities in the Houston area that merited some level of
security in the CFATS.
These inspection delays allow facilities to operate with
less than optimal safety and security. So my question is on the
sense of urgency, how much or how fast or how much faster can
we go? Is there a sense of the negative impact that the cyber
security violations of a bad intent may happen so much so that
we can ramp up these inspections or that we can ask publicly
now, today, for more tools to allow us to act on that sense of
urgency? Mr. Secretary.
Mr. Beers. Thank you for the question, Congresswoman. Let
me assure you that the people who are working in this area,
chemical security generally and the cyber sub-element thereof,
are absolutely committed to the urgency of improving America's
security.
Ms. Jackson Lee. Can you go to what you need to increase
these inspections or to act upon that sense of urgency?
Mr. Beers. What we have done over the course of the last
year, is come to a better appreciation and understanding of how
to accelerate our ability to complete the inspection process
and approve improved site security plans.
With respect to the cyber part of this, let me assure you
that any cyber breach that occurs today in any of these
chemical facilities or any other facility around the United
States, if it is reported to US-CERT, the Computer Emergency
Readiness Team, which is also part of NPPD, that organization
will speedily provide a definition of what the problem looks
like, a patch to cover that problem in a form of remediation
that prevents that problem from occurring again.
But I also have to tell you we don't have all of the
choices that hackers or nation-states might use to intrude into
our cyberspace, neither we nor the rest of the U.S. Government.
So some of it we can stop before it ever gets there as a
firewall in your personal computer. Others of it, we have to
see it in order to prevent it.
But if we see it, and this is important, if the chemical
facilities report it to us, then we can help them fix it. More
importantly, we can prevent it from occurring more broadly than
the individual facility that was affected by it.
That is why the reporting process on cyber intrusions is so
critically important to dealing with these problems. Hackers
invent new ideas every day. If we don't see it and know about
it, we can't fix it. Thank you.
Ms. Jackson Lee. Thank you. Mr. Chairman, thank you, and I
just want to welcome Mr. Sam Mannan, who comes from my neck of
the woods and Director of the Mary Kay O'Connor--from Texas--
Safety Center from Texas A&M University. Let me thank you, Mr.
Chairman, I yield back.
Mr. Lungren. Thank you, Ms. Jackson Lee, and that will
conclude our first panel.
Thank you very much, Mr. Under Secretary, for test--excuse
me--for testifying. In our second panel, we have three
distinguished witnesses. I think it will take just a moment to
get them to the table and set it up. Then we will proceed with
the second panel.
Once again, thank you very much, Mr. Secretary.
Mr. Beers. Thank you the whole committee for the
opportunity to testify. I stand ready to come back, either
privately or publicly to any of you at any time.
Mr. Lungren. You can be assured we will take you up on that
invitation.
Mr. Beers. I wouldn't have made it if I didn't mean it.
[Laughter.]
Mr. Lungren. We are pleased to have three distinguished
witnesses before us today on this important topic. Before I
introduce them, let me remind the witnesses that their entire
witness statements will appear in the record. We would ask that
you might summarize within approximately 5 minutes.
We have, on our panel, Mr. Timothy Scott, Chief Security
Office for the Dow Chemical Company, testifying on behalf of
the American Chemistry Council. Welcome, Mr. Scott.
We have Dr. Sam Mannan, Regents Professor and Director of
the Mary Kay O'Connor Process Safety Center at Texas A&M
University. Thank you, Doctor, for being here.
We have Mr. George S. Hawkins, General Manager of the
District of Columbia Water and Sewer Authority, and we thank
you for being here, as well.
We will start with Mr. Scott. We would ask all three of you
for your testimony in the order that I introduced you. Then
after that we will proceed with our questions, each Member
receiving a 5-minute period of time.
So Mr. Scott, thank you for being here, and we welcome your
testimony.
STATEMENT OF TIMOTHY J. SCOTT, CHIEF SECURITY OFFICER, THE DOW
CHEMICAL COMPANY, TESTIFYING ON BEHALF OF THE AMERICAN
CHEMISTRY COUNCIL
Mr. Scott. Thank you. Chairman Lungren, Ranking Member
Clarke and Ranking Member of the Full Committee Thompson, my
name is Timothy Scott. I am the Chief Security Officer for the
Dow Chemical Company. Dow is a member of the American Chemistry
Council, and I am speaking today on behalf of Dow and the ACC.
I have three points for consideration in your effort to
secure the Nation's chemical facilities. First, the chemical
industry has taken aggressive action to improve our security
posture voluntarily before DHS and CFATS and now with the on-
going implementation of the standards.
Second, CFATS is in fact achieving its objectives to reduce
the number of high-risk sites and lower the risk profile of the
remaining high-risk sites. Third, we have gained momentum, and
we need to maintain that momentum to complete the task at hand
without further delays.
President Obama issued an Executive Order laying out
regulatory principles that promote economic growth, innovation,
competitiveness and job creation. They also call for
regulations that promote predictability and use the best, most
innovative, and least burdensome tools for achieving regulatory
ends.
We couldn't agree more that we need a strong, sound,
efficient regulation that will improve security but not hinder
the ability of American companies to complete and create jobs.
Chemistry is the source of new technologies that would help
create jobs in the future, drive economic growth and achieve
the goals articulated by the President. The chemical industry
employs nearly 800,000 people indirectly in high-paying, high-
skilled jobs.
Safety and security are a top priority for Dow and the
members of ACC. We have demonstrated this commitment throughout
our history. We have implemented innovative process
technologies in the design and construction of new facilities,
by far the most efficient and logical time to achieve the
maximum value in process safety improvements.
We have initiated voluntary programs for communities and
local responders including training and information sharing. We
have improved security measures at our sites and throughout the
distribution chain.
Our focus on security is clear and evident. Before DHS and
CFATS, ACC members voluntarily adopted the Responsible Care
Security Code, a comprehensive security program addressing
physical, supply chain, and cybersecurity and requiring ACC
members to perform an extensive assessment of their security
risks.
Implementation of the code and the regular independent
review are mandatory for membership in the ACC. The strength of
the code is proven in its designation as a qualified
antiterrorism technology under the Safety Act.
Dow along with ACC has been proactive in calling for a
National regulatory program to consistently address security
across the chemical sector. We strongly support a bipartisan
legislation that gave DHS authority to regulate chemical
security and create CFATS.
CFATS takes a well-designed risk-based approach, sets a
high bar to performance standards and holds high-risk
facilities accountable for meeting those standards. The program
is predicated on the idea that performance standards are the
regulatory tool of choice for ensuring security and its
standards can be met by the facility selecting from a variety
of layered security measures that best suit that specific
facility.
This is clearly in line with the goal of the administration
to establish the best, most innovative, and least burdensome
tools for achieving regulatory ends. This drives facilities to
consider all potential risk reduction options including
potential process safety improvements when developing a site
security plan.
After DHS approval, the result is a security plan uniquely
and appropriately designed by the site to address the specific
risk issues of that site. The bottom line is that the
performance standards are met.
CFATS is yielding measurable results. DHS is screening
chemical facilities across the country, identifying those
deemed as high-risk. Many sites have already taken action and
DHS reports the number of high-risk facilities has already been
significantly reduced.
It is important that we don't lose this momentum. Dow and
ACC support the permanent reauthorization of CFATS. We believe
it is a success and meets the regulatory principles outlined by
the President.
We have a solid foundation to address chemical security
while providing industry the flexibility needed to remain
competitive and a vital contributor to the Nation's economy.
We believe changes to CFATS that require implementation or
enhance scrutiny of any single-risk reduction option such as
the mandatory consideration or implementation of inherently
safer technology are unnecessary and would be overly burdensome
to industry and to DHS.
Dow and ACC do not support mandatory consideration or
mandatory implementation of IST or any other single-risk
reduction tool. Dow, along with the members of the ACC, are
committed to continuing our aggressive risk-based approach to
safeguarding America's chemical facilities. We look forward to
working with DHS and this committee. Thank you.
[The statement of Mr. Scott follows:]
Prepared Statement of Timothy J. Scott
February 11, 2011
Chairman Lungren, Ranking Member Clarke and Members of the
committee, I'm Timothy Scott, Chief Security Officer for the Dow
Chemical Company. Dow is a member of the American Chemistry Council,
and I'm speaking today on behalf of Dow and our industry association.
I would like to make three key points in my statement today that I
think will demonstrate that we have a strong foundation in place to
build from when it comes to securing the Nation's chemical facilities:
First--The chemical industry is critical to our National economy as
well as the quality of life of our people. We recognize the historical
and current risks to our industry and have taken aggressive action to
improve our security posture--voluntarily well before the creation of
DHS and the Chemical Facility Anti-Terrorism Standards (CFATS) and
continuing now with the on-going implementation of CFATS.
Second--The implementation of CFATS to date is demonstrably
achieving its objectives to reduce the number of high-risk sites and
lower the risk profile of remaining high-risk sites.
And third--and most important--we need to continue on this
successful path, maintain the momentum we've achieved and complete the
task at hand without further delays or calls for change that would
result in slowing the progress being made on chemical facility security
by both DHS and the chemical industry.
Last month, President Obama issued an Executive Order which lays
out a set of regulatory principles. These principles call for a system
that promotes ``economic growth, innovation, competiveness and job
creation.'' They also call for regulations that promote predictability,
and use the ``best, most innovative and least burdensome tools for
achieving regulatory ends.''
We couldn't agree more that we need strong, sound, efficient
regulations that will not hinder the ability of American companies to
compete and create jobs.
This is particularly important for an industry like ours. Chemistry
is the source of many of the new technologies that will help create
jobs in the future, drive economic growth and achieve the goals
articulated by the President during his State of the Union including
clean energy; improved infrastructure; efficient transportation
options; medical advancements that bring down the cost of health care;
and even a strong defense.
And the Business of Chemistry employs nearly 800,000 people
directly in high-paying, high-skill jobs. These are the kind of jobs
that not only put food on the table, but boost consumer spending, send
kids to college, allow families to own homes, and save for retirement.
Because of our critical role in the economy and our responsibility
to our employees, communities, and shareholders--safety and security
continues to be a top priority for Dow and the members of ACC. And, we
have actively demonstrated the commitment to security. Throughout our
history, the chemical industry has implemented innovative processes and
technologies to enhance safety. Starting from the design and
construction phase of new facilities--by far the most efficient and
logical time to achieve the maximum value and process safety
improvements--to measures that are implemented throughout the
distribution chain, our focus on security is clear and evident.
In 2001, ACC members voluntarily adopted an aggressive security
program--already in draft form before 9/11--that became the Responsible
Carer Security Code (RCSC). The Security Code is a comprehensive
security program that addresses both physical and cybersecurity
vulnerabilities, and requires ACC members to perform an extensive
assessment of its security risks. Implementation of the Code and
regular independent review is mandatory for membership in the ACC. In
fact, the strength of the Code has been recognized by DHS and is
designated as a qualified anti-terrorism technology under the Safety
Act.
Recognizing the important role of Government to address the risk of
and thwart terrorism, Dow, along with ACC, has been proactive in our
support for a National regulatory program to address security across
the chemical sector. We strongly supported the bi-partisan legislation
that gave DHS the authority to regulate chemical security and create
the Chemical Facility Anti-Terrorism Standards (CFATS).
CFATS is by far the most robust, comprehensive, and demanding
chemical security regulatory program to date. It takes a well-designed
risk-based approach, sets a high bar through performance-based
standards, and holds high-risk facilities accountable for meeting those
standards.
The accountability within the program drives facilities to consider
all potential risk-reduction options, including potential process
safety improvements, when developing a site security plan. Just as
important, it leaves the decision of how to meet the standards to the
site's discretion and subject to DHS approval of the site security
plan. The result is a security plan approved by DHS that is uniquely
and appropriately designed by the site to address the specific risk
issues of each individual facility and meet the performance standards
of DHS.
While still in the initial implementation stages, these tough
regulations are yielding measurable results to manage or in some cases
eliminate security risks. DHS has screened chemical facilities across
the country and identified all of the facilities it deems are a ``high-
risk'' for a potential terrorist attack. These facilities have been
notified of their regulatory obligations and many have already taken
action. For example, DHS reports the number of ``high-risk'' facilities
has already been reduced by more than 2,000.
It's important that we don't lose this momentum. Dow and ACC
support the permanent reauthorization of CFATS because we believe it is
a successful program that meets the regulatory principles outlined by
the President. The program has laid a solid foundation to address
security at chemical facilities while at the same time providing
industry the flexibility it needs to remain competitive and provide the
innovative products that are vital to the Nation's economy.
We believe any changes to the program that would require
implementation or even enhanced scrutiny of any single risk-reduction
option that is available to industry, such as the mandatory
consideration or implementation of inherently safer technology (or
``IST''), are unnecessary. The program is predicated on the idea that
performance standards are the regulatory tool of choice for ensuring
security, as they can be met by the facility selecting from a variety
of layered security measures that best suit that specific facility.
Allowing for the imposition of a single type of risk-mitigation measure
would only serve to undermine the success of the program to date and
flies in the face of the goal of the administration to establish the
``best, most innovative, and least burdensome tools for achieving
regulatory ends.'' Such a change at this critical juncture would add an
unacceptable degree of uncertainty to a program that is maturing, and
place an unjustifiably large burden on chemical facilities and DHS.
Accordingly, Dow and ACC do not support mandatory consideration or
mandatory implementation of IST or any other single risk reduction
tool.
As I have outlined in my testimony, Dow along with the members of
the ACC are committed to continuing an aggressive approach in
safeguarding America's chemical facilities. It is in this spirit that
we look forward to working alongside DHS and this committee. Thank you
for this opportunity and I am happy to answer any questions at the
appropriate time.
Mr. Lungren. Thank you very much.
Five minutes, Dr. Mannan.
STATEMENT OF M. SAM MANNAN, PH D, PE, CSP, REGENTS PROFESSOR
AND DIRECTOR, MARY KAY O'CONNOR PROCESS SAFETY CENTER, TEXAS
A&M UNIVERSITY SYSTEM
Mr. Mannan. Thank you, Chairman Lungren, Ranking Member
Clarke, Ranking Member of the subcommittee, Mr. Thompson,
Congresswoman Sheila Jackson Lee, thank you for recognizing me
earlier and other distinguished Members of this subcommittee.
My name is Samuel Mannan, and I am the director for the Mary
Kay O'Connor Process Safety Center, a holder of the T. Michael
O'Connor Chair I in chemical engineering and Regents Professor
at Texas A&M University.
The center seeks to develop safer processes, equipment,
procedures, and management strategies that will minimize losses
in the process industry. The opinions presented during this
hearing represent my personal position on these issues.
Chemical security and protection of the chemical
infrastructure is of extreme importance to our Nation. I am
pleased that the U.S. Congress is continuing to pay attention
to issues related to chemical facility antiterrorism.
Hazardous materials can be grouped into three tiers of
vulnerability categories. The first category includes
stationary facilities that are members of major industry
associations. Even though these facilities have large
inventories of hazardous materials and are quite visible, they
are the best pr,epared against attacks because of voluntary
programs that have been developed and implemented.
The second tier of vulnerability category includes smaller
and medium-size facilities that manufacture or use chemicals
but may or may not be members of any industry associations.
These facilities are less visible but are also in general less
prepared and more widely distributed.
Finally, the third category of vulnerability includes all
hazardous materials that are in transit throughout the United
States. In addition to being present almost anywhere in the
United States at any given time, this category represents high
visibility and the highest vulnerability.
I will limit the rest of my oral testimony to some key
issues with regard to inherent safety. It must be understood
that determination of inherent safety options is a complex
process and not an off-the-shelf technology.
In some cases, a seemingly clear choice with regard to
inherent safety may create some unintended consequences. Issues
such as risk migration, risk transfer, and/or risk accumulation
should be evaluated whenever an inherent safety option is
considered.
With regard to chemical facility antiterrorism standards, I
have the following specific comments. No. 1, the U.S. Congress
must give the Department of Homeland Security permanent and
continued authority to regulate chemical security in the United
States.
No. 2, the use of a risk-based approach and risk tiering in
evaluating the vulnerability of any facility is a good
approach.
No. 3, the Department of Homeland Security does not
currently have appropriate and adequate expertise to implement
and enforce inherent safety.
No. 4, despite a significant amount of work in the area of
inherent safety design and technology, it still remains a very
complex task to determine on a case-to-case basis what is an
inherent safety technology or approach. In many cases, a
seemingly inherent safety approach may result in unintended
consequences, risk transfer, and/or risk accumulation.
No. 5, I strongly believe that science should precede
regulations. I do not believe that science currently exists to
quantify inherent safety.
No. 6, the current risk tiering of stationary sources
inherently encourages the use of IST. For example, a facility
that is in Tier 1 would consider all IST options if they move
the facility to Tier 3 or Tier 4.
So it could be argued that consideration of IST options is
already part of the market-driven, incentive-based approach
within the current CFATS legislation.
In fact, I would suggest that if facilities under the
current CFATS legislation use IST approaches to change their
tier designation, they should be required to prove that overall
risk has been reduced, that unintended consequences have not
been created, that risk transfer and a risk accumulation has
not occurred, and that actions taken or proposed have not just
simply resulted in the departure of industry from one area to
another.
In summary, I applaud the U.S. Congress for providing
leadership in this important area of chemical security.
Inherently safer technology is an objective that should
continually be pursued but must always be based on sound
science as well as sound risk assessment and management
strategies.
Mandating the evaluation and/or implementation of inherent
safety options must be based on good science. Before such steps
can be taken, important issues must be resolved such as
generally accepted understanding of the definition of
inherently safer technology, methods for quantification of
inherent safety, and methods for evaluation of inherent safety
options.
I do not believe that the current know-how and science
exists to adequately define and quantify any of these issues.
Thank you for inviting me to present my opinions, and I will be
happy to answer any questions.
[The statement of Mr. Mannan follows:]
Statement of M. Sam Mannan
February 11, 2011
introduction
My name is M. Sam Mannan and I hold a BS, MS, and PhD in chemical
engineering. I am a registered professional engineer in the States of
Louisiana and Texas and I am a certified safety professional. I am a
Fellow of the American Institute of Chemical Engineers and a member of
the American Society of Safety Engineers, the International Institute
of Ammonia Refrigeration, and the National Fire Protection Association.
I am Director of the Mary Kay O'Connor Process Safety Center, holder of
the T. Michael O'Connor Chair I in Chemical Engineering, and Regents
Professor of Chemical Engineering at Texas A&M University. The Center
seeks to develop safer processes, equipment, procedures, and management
strategies that will minimize losses in the process industry. My area
of expertise within the chemical engineering discipline is process
safety. I teach process safety engineering both at the undergraduate
and graduate level. I also teach continuing education courses on
process safety and other specialty process safety courses in the United
States and overseas. My research and practice is primarily in the area
of process safety and related subjects. The opinions presented in this
document represent my personal position on these issues. These opinions
are based on my education, experience, research, and training.
Chemical security and protection of the chemical infrastructure is
of extreme importance to our Nation, and I am pleased that the U.S.
Congress is continuing to pay attention to issues relating to Chemical
Facility Anti-Terrorism. I have provided testimony previously on this
subject to the U.S. House of Representatives Subcommittee on
Transportation Security and Infrastructure Protection of the Committee
on Homeland Security, on December 12, 2007 and the U.S. Senate Homeland
Security and Governmental Affairs Committee on March 3, 2010. Since
then, I have continued to study various issues related to inherent
safety and the implementation of inherent safety. While we have gained
additional insight about inherent safety issues, my opinions remain
much the same as then.
background
Hazardous materials can be grouped into three tiers of
vulnerability categories. The first category includes the stationary
facilities that are members of major industry associations. Even though
these facilities have large inventories of hazardous materials and are
quite visible, they are the best prepared against attack because of
voluntary programs that have been developed and implemented. The second
tier of vulnerability category includes smaller and medium-sized
facilities that manufacture or use chemicals but may or may not be
members of any industry associations. These facilities are less
visible, but are also, in general, less prepared and more widely
distributed. Finally, the third category of vulnerability includes all
hazardous materials that are in transit (by whatever means) throughout
the United States. In addition to being present almost anywhere in the
United States at any given time, this category also represents high
visibility and the highest vulnerability. It could also be argued that
this category is the least prepared to deal with intentionally caused
catastrophic scenarios.
Some pertinent subjects of interest with regard to attacks on the
chemical infrastructure are: Active protection measures; passive
protection measures; vulnerability analyses, response, and recovery
plans; and long-term needs and priorities. Active protection measures
include increased security, limited access to facilities, and
background checks. Examples of passive protection measures include
development of exclusion areas and process and engineering measures.
Vulnerability analysis, response, and recovery plans are needed not
only to help devise the prevention and protection plans, but also to
develop the response and recovery plans. In this respect, it must be
mentioned that most of the large, multi-national facilities that are
members of major industry associations have voluntarily conducted some
form of vulnerability analysis. What is not clear is whether these
analyses have been used to integrate planning for response and recovery
efforts in coordination with local agencies and the public. One very
stark lesson from the
9/11 events is that the ``first'' first-responders are usually members
of the public. Additionally, area- and region-specific vulnerability
analysis and assessment of infrastructure availability for response and
recovery have not been conducted. Finally, a National vulnerability
analysis and assessment of infrastructure availability for response and
recovery is a critical need.
Whether natural or man-made, disasters will continue to happen.
However, as we have seen with the 9/11 events, Hurricanes Katrina and
Rita, and chemical incidents such as the Bhopal disaster, planning and
response is crucial in being able to reduce the consequences and to
recover from the disaster more rapidly. In this regard, it is essential
to conduct vulnerability analysis, response, and recovery planning at
the following three levels:
Plant-specific vulnerability analysis and assessment of
infrastructure availability and preparedness for response and
recovery is needed. As mentioned earlier, most of the large
multi-national facilities that belong to prominent industry
associations have voluntarily conducted some form of
vulnerability analysis. What is not clear is whether these
analyses have been used to integrate planning for response and
recovery efforts in coordination with local agencies and the
public.
Area- and region-specific vulnerability analysis and
assessment of infrastructure availability for response and
recovery should be conducted. Each area- and region-specific
analysis should include an assessment and planning for
evacuation and shelters.
National vulnerability analysis and assessment of
infrastructure availability for response and recovery is
critically needed. In doing this National analysis, impact on
international issues and criteria should also be considered.
Inherent safety options can be considered; however, it must be
understood that determination of inherent safety options is a ``complex
process'' and not an ``off-the-shelf technology". We must be aware of
the differences in implementing inherent safety options for existing
plants, as compared to new plants. Also, in some cases, a seemingly
clear choice with regard to inherent safety may create some undesired
and unintended consequences. Issues such as risk migration, reduction
of overall risk, and practical risk reduction should be evaluated
whenever an inherent safety option is considered. Such an approach
should be based upon the triple-pronged philosophy: Evaluation and
assessment, prevention and planning, and response and recovery.
Planning and preparedness is required for all three areas. Only through
a comprehensive, uniform, and risk-based approach can we protect the
people and communities of our Nation as well as protect our Nation's
critical chemical infrastructure.
long-term goals and priorities
Long-term goals and priorities to prevent and/or reduce the
consequences of intentional catastrophic scenarios require clear
thinking and hard work. While no one would argue that making hazardous
materials less attractive as a target should be a goal that all
stakeholders should accept, differences arise in how we realize that
goal.
Another long-term goal is to develop technology and know-how with
regard to resilient engineered systems and terrorism-resistant plants.
In this respect, research and technological advances are needed in many
areas, such as bio-chemical detection, sensors, and self-healing
materials. Protection of the chemical infrastructure, like many other
challenges, requires the commitment and effort of all stakeholders.
I feel very strongly that science should precede regulations and
standards. With regard to science and technology investments, many
initiatives have been proposed and are being implemented. However, some
important additional initiatives that should also be considered are
given below:
1. The fact is that the chemical infrastructure and all components
including the individual sites, supply, and delivery systems
were never built with terrorism in mind. Research must be
conducted to determine how we might have designed and built the
chemical plants and the infrastructure had we considered these
threats. The ultimate goal for such research would be two-
pronged. First, determine options for what can be feasibly
implemented for existing plants. Second, if necessary,
prescribe new standards and procedures for new plants.
2. Research investments should be made on advanced transportation
risk assessment methods. Before transportation of any hazardous
materials, a transportation risk assessment should be conducted
using available information and methodology, as well as time-
specific data that may be available.
3. Additional science and technology investments that should be
considered are:
Development of incident databases and lessons learned.
This knowledge base could then be used to improve planning,
response capability, and infrastructure changes. Recent
experience in this regard is the improvement in planning
and response for the Hurricane Rita from lessons learned
from the Hurricane Katrina.
Research should be conducted on decision-making,
particularly under stress, and how management systems can
be improved.
Research on inherent safety options and technologies. This
type of research should be combined with systems life-cycle
analysis and review of practical risk reduction. In other
words, implementation of inherent safety options should not
be allowed to create other unintended consequences, risk
migration, or risk accumulation. While transportation is
outside the scope of the Chemical Facility Antiterrorism
Standards (CFATS), it must be included in vulnerability
assessments to avoid transfer of facility risks to
transportation risks.
Basic and fundamental research is also needed on design of
resilient engineered systems. For example, if the collapse
of the World Trade Center towers could have been extended
by any amount of time, additional lives could likely have
been saved.
Basic and fundamental research is also needed on resilient
and fail-safe control systems.
Long-term research is also needed in the area of self-
healing materials and biomimetics.
specific comments relevant to ``preventing chemical terrorism: building
a foundation of security at our nation's chemical facilities''
With regard to the Chemical Facility Antiterrorism Standards, I
have the following specific comments:
1. The U.S. Congress must give the Department of Homeland Security
permanent and continuing authority to regulate chemical
security in the United States. While many facilities are
voluntarily taking appropriate measures, I am concerned that
many are not. A regulation that creates a minimum and level
playing field is very important.
2. The use of a risk-based approach and risk-tiering in evaluating
the vulnerability of any facility is a good approach.
3. The Department of Homeland Security does not currently have
appropriate and adequate expertise to implement and enforce
inherent safety.
4. With regard to mandated consideration and/or implementation of
inherent safety in chemical facility antiterrorism regulations,
I have the following comments:
a. Despite a significant amount of work in the area of inherent
safety design and technology, it still remains a very
complex task to determine on a case-to-case basis what is
an inherently safer technology or approach. In many cases,
a seemingly inherent safety approach may result in
unintended consequences, risk transfer, and/or risk
accumulation.
b. Based on current know-how and science, there does not exist any
widely accepted scientific process by which to require (by
legislation or regulation) a mandatory assessment of
``inherently safer technology,'' at a chemical facility. As
a result, there are dangers associated with mandating a
specific assessment model or requiring an overly burdensome
assessment regime.
c. There are many methods available to the industry for potentially
reducing risk and vulnerability. Vulnerability assessments
should consider the feasibility of all methods for
improving security to determine the method to achieve the
optimum balance of cost effectiveness and vulnerability
reduction.
d. As I stated earlier, science should precede regulations. I do
not believe that the science currently exists to quantify
inherent safety. Regulations or any actions taken as a
result of regulations should not create unintended and
unwanted consequences. An example in this context is the
substitution of hydrogen fluoride (HF) with sulfuric acid
(H2SO4) for refinery alkylation
processes. While it is true that HF is more toxic than
H2SO4, the amount of
H2SO4 needed to do the same amount of
processing is 100-140 times or more than HF. Thus changing
from HF to H2SO4 would require large
storage facilities and more transportation. In fact,
changing from HF to H2SO4 may provide
more opportunities for a terrorist attack. On the other
hand, a well-managed plant with a smaller amount of HF and
appropriate safety protective systems may represent a lower
overall risk.
e. An example of risk transfer as well as risk accumulation is the
replacement of chlorine with sodium hypochlorite for water
treatment processes. The sodium hypochlorite itself is
manufactured from chlorine and thus the risk is transferred
somewhere else. In fact, if all water treatment is
converted to sodium hypochlorite processes, it would lead
to risk accumulation where a mega-plant would have to be
constructed somewhere with large quantities of chlorine
representing a high-value target. Thus, while conversion to
sodium hypochlorite may be advisable in some cases, but not
in all cases. The determination should be made on a case-
by-case basis depending on case-specific information and
life-cycle risk analysis.
f. In the case of conversion from chlorine to sodium hypochlorite,
there could also be unintended consequences. Sodium
hypochlorite is known to be unstable and can decompose into
chlorates which subsequently convert to perchlorates.
Depending on the duration and conditions of storage of
sodium hypochlorite, the formation of perchlorates can
occur. This presents an obstacle when this alternative is
introduced as an inherently safer technology than that of
chlorine since perchlorates are toxic and have been noted
to induce thyroid problems from extended exposure.
Moreover, perchlorates have been found in more than 90% of
sodium hypochlorite samples, and its concentration is
believed to increase with age. Contamination of drinking
water during its treatment is the most likely way of
entering the human body. However, it has also been found
that plants can absorb perchlorates without adverse effects
to themselves. The perchlorates are then stored may be
passed along in the food chain.\1\
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\1\ http://www.watertechonline.com/news.asp?N_ID=70952.
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A study performed by Orica (an Australian company) found that
the number of incidents involving chlorine gas formed by
the inadvertent mixing of acid with sodium hypochlorite was
larger than those directly from chlorine gas alone.\2\ This
fact, along with the hazardous properties of the chlorates
formed by improper storage of sodium hypochlorite shows
that this option cannot be readily listed as an inherently
safer alternative for chlorine and that its risks cannot be
overlooked.
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\2\ http://www.wioa.org.au/conference_papers/04/paper2.htm.
g. When inherent safety options are considered, we must understand
and account for the challenges and difficulties in
implementing inherently safer technology and options. The
first challenge is simply to measure the degree of inherent
safety in a way that allows comparisons of alternative
designs, which may or may not increase safety or may simply
redistribute the risk. The second is that because inherent
safety is an intrinsic feature of the design, it is best
implemented early in the design of a process plant, while
the United States has a huge base of installed process
plants and little new construction. Finally, in developing
inherently safer technologies, there are significant
technical challenges that require research and development
efforts. These challenges make regulation of inherent
safety very difficult. We believe that a coordinated long-
term research and development effort involving government,
industry, and academia is essential to develop and
implement inherently safer technologies. A similar
collaborative approach has shown success in related areas
such as green chemistry, energy conservation, and
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sustainable development.
h. Instead of prescriptive requirements for inherently safer
technology and approaches, facilities should be allowed the
flexibility of achieving a manageable level of risk using a
combination of safety and security options. For example,
nuclear facilities have very high-hazard materials, but
they protect their site and the public with a combination
of multiple layers of security and safety protective
features. All methods of reducing vulnerability should be
considered on a case-by-case basis, and the implementation
of any one particular method should not take or appear to
take precedence over the others.
i. Over the past 15-20 years, and more so after 9/11, consideration
of Inherently Safer Technology (IST) options and approaches
has effectively become part of industry standards, with the
experts and persons with know-how assessing and
implementing inherently safer options, without prescriptive
regulations that carry risks (both as trumping other tools
or potentially shifting risk). A better approach for
applying IST in security is by allowing the companies to
assess IST as part of their overall safety, security, and
environmental operations and therefore, cannot be
prescriptive. In fact, it seems that the current risk
tiering of stationary sources inherently encourages the use
of IST. For example, a facility that is in Tier 1 would
consider all IST options if they could move the facility to
Tier 3 or Tier 4. So, it could be argued that consideration
of IST options is part of the market-driven incentive-based
approach within the current CFATS legislation. In fact,
when facilities use IST approaches to change their tier
designation, they should be required to prove that:
Overall risk has been reduced;
That unintended consequences have not been created;
That risk transfer and/or risk accumulation has not
occurred;
That the actions taken or proposed have not just
simply resulted in the departure of industry from one area
to another.
5. Cost-benefit analysis of inherent safety options is another very
important and pertinent issue that should be a significant part
of any decision-making process.
6. Currently there does not exist a generally accepted
understanding on the definition of ``inherently safer
technology.'' Given that background, if regulations require all
plants to be ``inherently safe,'' there might be a tendency to
broaden the definition of ``inherently safe,'' so that almost
everything fits the definition.
7. Before adopting any regulatory framework requiring the
evaluation and/or implementation of inherently safer
technology, significant research questions must be answered to
reach a universally accepted definition of ``inherently safer
technology.'' Research in critical areas such as system
reliability and resilience must also provide information to
help develop appropriate guidance for facilities, both new and
old, regarding methods to assess the costs, benefits, and
potential risks of process changes at their facilities and
throughout the supply chain and market.
summary
I applaud the U.S. Congress for providing leadership in this
important area of chemical security. It is clear that many companies
are taking reasonable and responsible steps in chemical security,
including the consideration of inherent safety options. Inherently
safer technology is an objective that should continually be pursued,
but must always be based upon sound science as well as sound risk
assessment and management principles. Mandating the evaluation and/or
implementation of inherent safety options must be based on good
science. Before such steps can be taken, important issues must be
resolved such as a generally accepted understanding on the definition
of ``inherently safer technology,'' methods for quantification of
inherent safety, and methods for evaluation of inherent safety options.
I do not believe that current know-how and science exists to adequately
define and quantify any of these issues.
Requirements for inherently safer technology should be based upon
good science aimed at making the industry secure, avoid over-
regulation, and create a level playing field. U.S. facilities could be
at a competitive disadvantage if required to implement unproven
technologies simply to meet a regulator's position that such technology
is more inherently safe.
I am encouraged by the leadership of Congress and by continued
efforts to seek expertise and opinion from all stakeholders.
Mr. Lungren. Thank you very much, Doctor.
Now we are pleased to hear from Mr. George Hawkins.
STATEMENT OF GEORGE S. HAWKINS, GENERAL MANAGER, DISTRICT OF
COLUMBIA WATER AND SEWER AUTHORITY
Mr. Hawkins. Good morning, Chairman Lungren, Ranking Member
Clarke, and Ranking Committee Member Thompson. My name is
George Hawkins. I am the general manager of DC Water, your
water and wastewater authority here for Washington, DC.
By way of a brief background, DC Water provides drinking
water services to every enterprise in the District of Columbia
and several in northern Virginia including the National airport
and the Pentagon.
Once that water is used and we get it back from you to
cleanse it prior to putting it into the Potomac River, we treat
wastewater from Montgomery County, Prince George's County,
Fairfax, Loudon, and Arlington.
It is the only enterprise in the United States that crosses
two State boundaries and the District of Columbia, and we
operate in the largest advanced wastewater treatment plant in
the world which you are welcome to come visit. I guarantee you
will be fascinated and be astonished at the set level of
technology that we employ to clean water before it is put into
our rivers.
I am here today to tell the story of the change that we
made at this facility which is at the very southern tip of
Washington, DC. It is the last facility you see on 295 before
you cross into Maryland and then go across the bridge to
Virginia, 162 acres treating over 300 million gallons of
wastewater every single day.
Before 9/11 we were using gaseous chlorine and sodium
dioxide to treat wastewater both in the odor reduction process
up-front and then prior to effluent going to the Potomac. These
chemicals are inherently dangerous on both ends, both gaseous
chlorine and sulfur dioxide, I am sorry, are both dangerous,
quite dangerous, were brought in on 90-ton rail cars.
These rail cars went through CSX lines. There is one
actually not far here from the capital you can----
Mr. Lungren. Could you just refrain for a moment? I would
ask those people in the back to please put whatever
demonstration it is that they have down. That is a violation of
the rules of the House during procedures. So if you would
please do that, I would appreciate it. If you don't, you will
be asked to be removed. You will be removed.
Mr. Hawkins.
Mr. Hawkins. Yes. Prior to 9/11, we had six----
Mr. Lungren. If it happens again they will be removed.
Mr. Hawkins [continuing]. Rail cars on our facility, two of
which were 90-ton rail cars, two with gaseous chlorine, two
with sulfur dioxide and two that were being unloaded. After
that event, DC WASA, as it was called at the time, initiated
its own process to remove these chemicals because of the
threat.
I must say it has been a decision that has received more
support from every foot soldier up to the board and our
customers of almost any decision we have made at the authority.
Within 20 days of 9/11, we had a plan for how to remove
these chemicals from the plant. Within 60 days, we had spent
$600,000 to actually temporarily figure out a solution to
remove gaseous chlorine and sulfur dioxide. In 2 years, we had
fully and permanently made the transformation to using sodium
hydrochloride and liquid sodium bisulfite. That was at the cost
of $16.4 million.
We had members of our security team, our facilities team,
process management, engineering, the entire organization,
round-the-clock training, so that within a short period of time
we had eliminated this threat from our facility.
But those tanker cars that had to get to our facility had
to go through Naval Research Center, had to go through Boeing
Airport space and this city in order to deliver those chemicals
to our site. So it was an excellent decision.
Of note, we were planning to make this change prior to 9/
11. It was already in our planning process. But the threat, and
staff has said they could see the smoke from the Pentagon from
our facility, elevated the importance and from the top to the
bottom of the organization we implemented this step.
As an operating cost, it is more expensive to make this
change. Prior to this change, gaseous chlorine and the
chemicals we were using cost us about $800,000 a year.
Currently, the alternative chemicals which are much safer cost
slightly more than $2 million a year. So it is not only the
capital cost that were necessary but an on-going operating
increase.
We presented this information to our customers and have
received wholesale support for this change given the security
and safety it offers everyone we serve.
We have been asked about whether and how we would regulate
or change anything that has been done. All I can say for what
we have done for our facilities, one of the best decisions we
have made, we would make it again, and we regularly advise our
compatriots about why and how we did the decision.
I don't feel qualified to know whether the decision we made
is applicable to every facility of every size and every
location across the country. Whether there are other
circumstances that may differ is unclear to us. For us, it was
a clear decision.
Secondly, how we should be regulated? We are carefully
regulated by OSHA and by U.S. EPA. We have done vulnerability
assessments. We are doing a second vulnerability assessment
now. So we consider ourselves to be carefully and faithfully
regulated currently. We will continue to do so. We will satisfy
all regulations that are imposed upon us but believe we are
following safe practices to date.
We are glad to serve you both generally and specifically
and are glad to answer questions. Thank you.
[The statement of Mr. Hawkins follows:]
Prepared Statement of George S. Hawkins
Good afternoon Chairman Lungren, Ranking Member Clarke and Members
of the Subcommittee on Cybersecurity, Infrastructure Protection, and
Security Technologies. My name is George Hawkins and I am the General
Manager of the District of Columbia Water and Sewer Authority--also
known simply as DC Water. I'd like to thank you for inviting me to
testify today on the circumstances surrounding the decision to have the
Blue Plains Wastewater Treatment Facility voluntarily switch from using
a chlorine in the treatment of wastewater to a potentially safer
alternative.
introduction
First, by way of background, DC Water purchases treated drinking
water at wholesale from our Federal partner, the Washington Aqueduct,
which disinfects our drinking water supply and is a unit of the U.S.
Army Corps of Engineers. We then deliver this water through our pumping
stations and pipes to our retail customers in the District of
Columbia--including this very building. We also operate the world's
largest advanced wastewater treatment plant, at Blue Plains, for the
benefit of our customers in the District and several suburban
jurisdictions. We serve more than 2 million customers in the
metropolitan Washington, DC, area. The disinfection of wastewater
provides critical public health protection. Disinfection destroys
bacteria and viruses, helping to protect ecosystems and prevent
waterborne disease. The most commonly used disinfectant for both
drinking water and wastewater treatment is chlorine. Its effectiveness
against a wide spectrum of disease-causing organisms, its relatively
low cost, and high reliability contribute to its popularity. Chlorine
can be applied to water directly as a gas, or through the use of
chlorinating chemicals. A number of alternative disinfectants, such as
chlorine dioxide, chloramines, ozone, and ultraviolet radiation, are
also used to varying degrees. Each disinfection technology has unique
benefits, limitations, and costs. Individual water system operators
must weigh these trade-offs and choose disinfection methods based on
local water quality conditions, climate, physical limitation of plant
location, cost, compliance with the Clean Water Act (CWA) and the needs
and resources of the communities they serve. Based on this wide variety
of factors, use of alternative chemicals may not be possible for all
wastewater utilities.
My colleagues throughout the water sector are currently examining
this issue very closely, not only to protect the populations they serve
but also to protect their most critical asset--their workforce. In
2009, the National Association of Clean Water Agencies (NACWA)
conducted an informal survey of its membership which shows that clean
water agencies are using other treatment technologies when local
factors enable them to do so. In fact, 66% of survey respondents
indicated they no longer use gaseous chlorine in their disinfection
process. Of the 33% that continue to utilize gaseous chlorine, 20%
planned to switch to another disinfectant within a 1- to 2-year time
frame. Keeping in mind that NACWA members account for about 80% of the
treated sewerage stream in the United States you can see utilities
switching to other treatments when possible. Given this information we
do not believe a Federal mandate is necessary, rather we believe that
decisions regarding treatment technologies should reside within the
local community.
blue plains
The Blue Plains Wastewater Treatment Facility sits on the Potomac
River in southwest Washington, DC. Like most facilities before 9/11,
Blue Plains used chlorine gas and other hazardous compounds in its
treatment process. In fact, when the plane hit the Pentagon on 9/11,
Blue Plains had six 90-ton railcars on site storing dangerous chemicals
just 4 miles away from the Capitol. Three were filled with chlorine
gas, one was filled with sulfur dioxide, and two railcars were being
unloaded; each filled with chlorine gas and sulfur dioxide.
Not only were these chemicals a threat when in storage on the site,
but they also created a hazard in transit as they were hauled by rail
through downtown District of Columbia on their way to Blue Plains. To
get a sense of the exposure they represented, consider that in January
2005, when a freight train pulling three tankers full of liquidized
chlorine and one tanker of sodium hydroxide slammed into a parked train
in Graniteville, South Carolina, it released 11,500 gallons of chlorine
gas. Nine people died and at least 529 were injured. That was without
any malicious intent and in a rural location.
Chlorine gas was infamous during trench warfare in World War I. It
irritates the eyes, nose, and skin in small amounts, but in
concentrated form, the yellowish green gas causes the lungs to fill
with liquid, drowning the victims to death.
Prior to 9/11, personnel at Blue Plains were concerned over the
hazardous nature of the disinfecting chemicals and the potential for
accidental release. A Capital Project was introduced into the 10-year
Capital Planning Cycle to replace chlorine and sulfur dioxide gases
with safer liquid chemicals such as sodium hypochlorite (bleach) and
sodium bisulfite. Liquid bleach is much safer than chlorine gas, being
6 percent stronger than household bleach and easy to contain if
spilled. After 9/11, facility personnel at Blue Plains were concerned
over the prospect of terrorism. We evaluated our situation and decided
it would make more sense for our location in the Nation's capital to
fast-track the switch over to liquid chemicals that are much safer. The
solution was to switch to using sodium hypochlorite for the purpose of
disinfection and to the use of liquid sodium bisulfite for de-
chlorination of residual chlorine in the waters being discharged to the
river. A Process Safety Management (PSM) Committee was formed,
including safety, engineering, facilities and maintenance personnel to
ensure that chlorination and dechlorination systems were safe as
possible until they were finally decommissioned. We completed this
conversion in two phases. In the first phase, a temporary liquid
disinfection/dechlorination system was designed, installed, and made
operational within 60 days of 9/11 allowing removal of the chemical
rail cars from site. We simultaneously fast-tracked the Capital Project
for the installation of the permanent liquid disinfection/
dechlorination system.
costs
As discussed, we first built a temporary facility and purchased
additional storage tanks for the liquid bleach and bisulfite, as well
as pumps and piping to deliver the chemicals to the wastewater in the
right dose and at the correct locations while we pursued construction
of the more capital-intensive permanent conversion. By October 2003, we
had finished the permanent conversion to our plant. The process of
converting the old plant was costly; it required adding more storage
tanks, pumps, piping, and instrumentation than had been needed before.
We also had to build additional storage facilities for the liquid
bleach and sodium bisulfate--used for dechlorination. The total cost
was $16.4 million, including the installation of the temporary
facilities.
Operating costs are also now higher as well. The driving factor is
that liquid bleach is much more expensive than chlorine gas. The annual
cost of purchasing chemicals has increased from approximately $800,000
annually for gas chlorine to over $2 million annual average for sodium
hypochlorite.
In our case, the switch effectively removed the threat of harmful
exposure for 1.7 million people living near the Blue Plains plant.
There is no longer any risk to the public since the conversion. Second,
the switch from chlorine gas also simplified the plant's operations in
several ways. For example, because liquid bleach is much safer to
handle, the switch has limited the amount of training that employees
need and reduced accidents. Last, the threat of a terrorist attack has
diminished. At one time we routinely stored five or six tankers on
site. Had a catastrophic leak occurred, this could have caused many
fatalities and injuries within a 10-mile radius.
regulation
Since the enactment of the Public Health Protection and
Bioterrorism Preparedness and Response Act of 2002, the Environmental
Protection Agency has regulated the physical security of the Nation's
drinking water systems through Section 1433 of the Safe Drinking Water
Act (SDWA). Under this law, drinking water systems serving more than
3,300 people were required to prepare vulnerability assessments
detailing risks related to possible terrorist attacks, and emergency
response plans outlining procedures for responding for such an attack.
EPA has reported that virtually all covered drinking water systems are
in compliance with these requirements, and in 2006 Congress exempted
the water sector from additional physical security regulation through
the Department of Homeland Security's Chemical Facilities Anti-
Terrorism Standards (CFATS).
Given the importance of coordinating drinking water security rules
with the public health requirements of SDWA, most drinking water
systems believe that their exemption from CFATS is appropriate, and
that EPA should continue oversight of any new or revised drinking water
security program. Similarly, any Federal security regulations imposed
on the wastewater and water sector should come through a comparable EPA
program rather than CFATS. A regulatory approach that were to divide
drinking water and wastewater security among different Federal agencies
could lead to confusing and contradictory standards--especially for
utilities that provide both drinking water and wastewater service to a
community.
The Obama administration has gone on record in support of ensuring
water and wastewater systems are regulated by the Environmental
Protection Agency and not the Department of Homeland Security,
testifying in 2009, ``EPA should be the lead agency for chemical
security for both drinking water and wastewater systems.'' Chairman
Lungren, Members of the subcommittee, this concludes my prepared
remarks. Thank you again for the opportunity to testify, and I look
forward to answering any questions you may have.
Mr. Lungren. Thank you very much. I want to thank this
panel as well as our previous panelists for staying within the
times. That is unusual. Hopefully that is a good sign for the
rest of this Congress. We will go to a round of questions, 5
minutes apiece. I will start.
First of all, Mr. Scott, representing both your company and
the association, your testimony indicates that you believe that
the CFATS program is working well.
Mr. Beers stressed the fact that there is a cooperative
spirit that has been implemented between the regulatory
authority and the industry. Some might say from the outside
that looks like it is too cozy or why should that occur? What
would you say in response to that?
Mr. Scott. Well, I think we have had a very good working
relationship or working partnership with DHS since the
beginning. We had a lot of experience in the chemical industry
prior to the birth of DHS.
We had the Responsible Care Code for Security already in
place. Many of the companies already had security upgrades in
place. We really had a focus on how to do security around the
chemical facilities in the United States and for Dow what we
are implementing on a global basis.
So when DHS came into being, there was already a lot of
work in progress or already completed. They recognized that.
They also recognized that it takes a good working relationship,
working with business, with the National infrastructure to make
significant progress in what they were doing.
So working in concert, and it has obviously been a working
relationship, we have been able to develop a very strong and
very positive relationship that has made a lot of progress. I
think a lot of the progress that they have made has been
because of this relationship.
Mr. Lungren. Some looking in from the outside would say
that sounds good but boy, look at the results. There are only--
they haven't had a single one where they have had a final
approval with the site inspection. They have only got a few
which they are sort of almost there. If this is the way
Government works, it takes too long, costs too much, we don't
get the results, maybe we should start over? What would you say
to that?
Mr. Scott. We definitely should not start over. I mean, we
have made a lot of progress. A lot of the progress was made,
again, as you heard. There are some companies that have already
done a lot of things that moved them out of the tier, the high-
risk tier level.
There are a lot of companies, and I can speak for Dow
specifically. We have put security upgrades in place at all of
our sites across the United States. Actually around the world
we implement the same standards around the world that we have
here in the United States. Regardless of whether we have an
MTSA site or a CFATS-regulated site, we put the same upgrades
in place.
So a lot of that partnership has been driven and a lot of
the progress has been driven by the industry side. We are
moving very fast on the industry side. We wish DHS could move a
little bit faster. I think permanence and consistency by
reauthorizing the CFATS would be the way to go.
Mr. Lungren. Let me ask a question directed both to you and
to Dr. Mannan, and that is, you mentioned that one of the
successes has been a number of companies have moved from one
tier to the other or out completely and possibly that is the
result of changing to different chemicals.
Even though I have some strong reservations about mandating
IST, some might say looking at that, well, you know, you said
that some have reduced their exposure, some have gotten out of
this by moving to other chemicals. Isn't that what IST is? Why
shouldn't the Government mandate IST? I would ask both of you
if you could respond to that question.
Mr. Scott. I will go first. We are not in support of
mandating any single risk-reduction tool. We look at the whole
package. I think that gives the site the flexibility to put the
right tool in place to reduce the risk at that particular site.
I think mandating any one specific tool takes the focus off
of the rest of the tools. That is what we have seen over the
last few years. If we focus in one area, you lose focus in
another area.
So we look at the whole. We take a holistic approach
towards security, looking at all the tools that are available
to us including process safety controls or improvements. When
we do our SVAs we go out with a security person and a process
safety person and look at the whole picture.
We look at the whole picture from including site security,
transportation security, and cybersecurity so that we don't
shift risk from one to the other. So taking that holistic
approach is the way we need to look at things. That is why we
don't support the mandating of any one single tool.
Mr. Mannan. Yes, Mr. Chairman, that is a very good
question. I would start with saying that when you mandate
things, you know for sure what is the right thing to do. For
example, if a worker is climbing up a stairway onto the top of
a 30-meter tank, then you know that the hazard is he is going
to fall off. We know what the cure for that is. Provide him
scaffolding.
The problem with IST is that we don't know on a case-to-
case basis what is the solution. Even for the same chemical
under different circumstances as even our other witness, Mr.
Hawkins, has said, it could be a different solution.
So I think mandating that would be, in my opinion, a wrong
approach to take at this time. I would rather that the market-
based, incentive-based approaches work.
The other issue is that when you mandate it, you force the
Department of Homeland Security to be able to enforce it and
develop some compliance program. I firmly believe that
currently the Department does not have the qualitative or
quantitative expertise to be able to deal with enforcing and
complying with inherent safety.
Mr. Lungren. Thank you very much. My time is up.
I would now recognize Ms. Clarke for 5 minutes.
Ms. Clarke of New York. Thank you, Mr. Chairman. Mr.
Hawkins, both of us in this hearing room right now are much
safer from chemical terrorism or accidental chemical release
due to the actions of DC Water in removing gaseous chlorine
from the Blue Plains facility.
In your testimony, you discussed that decision and
indicated that this change would be considered prior to 9/11
but that that event gave an extra push to that decision.
You also noted that a high percentage, 66 percent, in a
recent sector survey, indicated that they had switched from
chlorine gas to other methods and that more indicated they plan
to do so. Do you believe that safety and security are driving
those decisions?
Mr. Hawkins. I do.
Ms. Clarke of New York. Well, let me ask my next question
then. I am glad you were so emphatic about it. You caught me
off guard.
Dr. Mannan, I have my next question for you. In your
testimony, you conclude by stating that you are concerned that
inherently safer technologies are not defined and as such
cannot be pursued until the definitions of them is agreed to
and that then you don't think that a definition is possible.
Do you understand the definition of process safety review
as it is common industry practice carried out by any reputable
business in this sector? Would you agree that requiring a
process safety review is feasible?
How about if we promoted methods such as those outlined in
Mr. Scott's previous testimony, reduce inventory, reduce
pressures, lower temperature, making use in process without
storage and use alternates where process allows? Are those
well-defined and understood and can you pursue those to enhance
security?
Mr. Mannan. Madam Ranking Member, you ask a very difficult
question.
Ms. Clarke of New York. Yes.
Mr. Mannan. But the premise of the process safety reviews
which are mandated now under OSHA's process safety management
law and the risk management program of EPA, those are
reasonably well understood, what you have to do and what you
don't have to do.
The problem with inherent safety is that while the concepts
are reasonably well-understood, get rid of the chemical, reduce
the quantity, reduce the pressure, reduce the temperature, when
you go into the implementation phase that is when you get into
a problem.
For example, if you are going to eliminate the chemical,
the question is: Where does the chemical go? So I will give you
an example which I hope I can explain properly.
Ms. Clarke of New York. Yes.
Mr. Mannan. If you think of risk as a balloon, and the
balloon has a certain size, and if you push the balloon from
one side, and it pops out on the other side, then really it
does not reduce the risk or the size of the balloon.
I would like to see inherent safety defined or quantified
to a certain extent where you are able to see the full size of
the balloon and so that you don't displace risk from one area
to another area, maybe an economically disadvantaged area,
maybe to another country, or to a place where risk or security
could not be managed properly.
Ms. Clarke of New York. Well, I just think by virtue of
your response, you would be going to put that framework in
place. It seemed to me in your testimony that there was this, I
guess, ambivalence to try to create that framework. Do you
think establishing that framework is possible?
Mr. Mannan. Yes. I think ultimately we need to get to a
point where we are able to establish that framework. How long
that is going to take, I am not sure. But until we get there, I
am opposed to having legislation in place which would be
difficult to implement. I will be very short but I will give
you an example.
Ms. Clarke of New York. Yes.
Mr. Mannan. Let us say prior to the time when the
temperature scale was invented, we still referred to
temperature but in a relative basis. For example, we said warm,
warmer, hot, hotter, cold, colder, so on and so forth.
The problem with that scale was that what was warm to
somebody may not be warm to somebody else. So there was this
very subjective evaluation of the measurement of temperature.
I think with regard to inherent safety we are pale right
now. Hopefully when Lord Kelvin will come along, who invented
the temperature scale, and we will have an inherent safety
scale. Thereby then we will be able to easily implement it.
Ms. Clarke of New York. We are hoping you are him, Dr.
Mannan. Thank you, and I yield back, Mr. Chairman.
Mr. Lungren. I recognize for 5 minutes, Mr. Meehan.
Mr. Meehan. Well, thank you, Mr. Chairman and thank you
each for your presentations here today. I am coming back to
this issue of inherently safer technology because to me it
seems like it is a moving standard.
On one hand we are looking at industry. We are looking for
innovation and other kinds of things. If you have an existing
chemical compound or utilization of things, does that require
you to report then on, you know, this is what we have at our
facility?
Then as your business model changes do you have to report
back again on if you use new chemicals and different
combinations or you have a new business line that opens up? How
are you affected by these mandated rules in the form of just
the daily operation of your businesses, or businesses or
industry, Dr. Mannan, speaking for the industries?
Mr. Mannan. Well, first of all I don't speak for the
industry. As I said, my opinions here are my personal opinions.
But with regard to your question there are a couple of things.
First of all, right now as we speak, in addition to the current
CFATS legislation, which is the law of the land, we also have
risk management program standard under EPA.
Under EPA standards, RMP standards, every facility that is
covered by the RMP standard whenever their inventory of
chemicals changes or even under certain conditions the quantity
of chemicals they have on-site changes, they have to file a new
report to EPA. So under that rule there is some kind of
regulation or enforcement going on.
With regard to inherent safety, as I said, I still don't
think that we are where we can legislate regulated, okay? But I
would think a prudent business practice in this, my colleague
here, Mr. Tim Scott could probably better be able to answer,
but a prudent business operator who is aware of the kind of
business risk as well as manufacturing risk that they are
undertaking every time their inventory or business model
changes they would evaluate what kind of risk they are
undertaking.
Mr. Meehan. Thank you. Mr. Scott, do you have thoughts on
that in general, the question that I asked?
Mr. Scott. I will ride in on that and yes, process safety
and especially in the development of new facilities is the best
time to implement safer technologies or new technologies that
you have in place. In new construction we regularly go through
that.
We also go through process safety reviews on a regular
basis or the processes that we have in place. When we do our
site security and vulnerability assessments, and then we
started those in 2002 on a global basis, we had process safety
in mind as well.
We conducted those vulnerability assessments with a
security person and a process safety person to look at it from
both perspectives. We made minor tweaks at those points in
time, but again, safer technology is best implemented on a new
facility, a new construction process.
Once you are regulated under CFATS, if you do have process
changes that would impact the chemicals of interest, yes, you
need to report that back to DHS and have an inspection or
possibly have an inspection of that facility to see if
additional increases in security are necessary.
Mr. Meehan. What is going to happen when you identify as we
move forward and create not only new technologies but new
infrastructure that the business would put together for their,
you know, their operations?
What happens with our existing sort of graying
infrastructure? I have petroleum refining facilities in my
district that are struggling just to keep the operation working
today with aging materials. Are we by virtue of putting more
regulations on them with regard to meeting these homeland
standards effectively perhaps putting them out of business?
Mr. Scott. There is a significant cost to upgrading
security across the business. I mean we have, Dow in
particular, we spent a quarter of a billion dollars on security
upgrades since we started this process.
Mr. Meehan. How much did you spend?
Mr. Scott. A quarter of a billion dollars, $250 million
dollars since 2002. Now, that is on a global basis, but most of
that money is being spent in the United States where the
industry is being regulated relative to security. But again, we
implement our security upgrades on a global basis. So what we
do in Texas is the same thing we do in Germany is the same
thing we do in India, wherever we have sites.
So we have spent a significant amount of money to in
advance of CFATS, actually, to get into preparation. We started
those in 2002, and if you go to our sites now you are going to
see significant physical security upgrades in place.
We have also worked on the risk-based performance standards
to match up our personnel surety programs and those sorts of
things here in the United States. So there is a significant
cost to doing this.
Again, on process safety changes they are best implemented
on new facilities. So the old facilities may be able to make
some minor changes, but making significant changes in processes
of established facilities is overly burdensome.
Mr. Lungren. The gentleman's time has expired.
I now recognize the Ranking Member of the Full Committee,
Mr. Thompson, for 5 minutes.
Mr. Thompson. Thank you very much, Mr. Chairman. Mr. Scott,
I appreciate your testimony and you have been before us in the
past. I think the point that you make is very important, that
Dow as a matter of doing business looks at certain aspects of
security and determined that it is pretty much in the company's
best interests to do certain things. By doing that your good
business is secure and safe.
While that has a cost associated with it, I think it is the
risk of not doing it which you can't really put a finger on
that we are trying to do with this legislation. So it is not
coming in and saying you must do this, but it is working in a
partnership that this legislation was put forward.
It is in that spirit that we continue to promote it. But if
you have an aging plant that is at risk from a security
standpoint, would you not agree that once those vulnerabilities
are identified they have to be addressed?
Mr. Scott. The vulnerabilities identified in the
inspections need to be addressed for your site security plan to
be approved.
Mr. Thompson. Absolutely.
Mr. Scott. So you look at every option that is available to
that site to meet those standards. Everything is on the table
including process safety improvements. It is already in CFATS
that that is one of the tools that you look at.
Mr. Thompson. Yes. From time to time your testimony also
was that you can build in those things with a new facility,
obviously, which I think we all agree. But we don't have all
new facilities.
Mr. Scott. Right.
Mr. Thompson. Therefore we have to have a regimen
established so that we can secure those facilities. I do
understand the investment, but we are trying to make sure that
the public at large is not harmed because of facilities not
meeting minimum standards. So I thank you for that.
Dr.--is it Mannan?
Mr. Mannan. Yes, sir.
Mr. Thompson. Dr. Mannan, you have testified before this
committee that we should not do this until we define inherently
safer technology and some other things. Is that what you are
saying?
Mr. Mannan. Yes, sir.
Mr. Thompson. Tell me again why.
Mr. Mannan. I can give you several examples, but just to be
brief, one of the first things is that if you were to mandate
IST considerations without a clear definition of IST, without
clear ways of determining IST options, there is a possibility
that unintended consequences could occur. There is also a
possibility that some facilities could end up transferring risk
where we don't want it transferred. All----
Mr. Thompson. Transferring risk where?
Mr. Mannan. For example, when a facility goes from one
chemical to another chemical or stops using that chemical, the
chemical that they go to may be a derivative of the first
chemical. That first chemical may now be manufactured elsewhere
where now you have a risk transfer where they may not have the
same kind of chemical security.
Mr. Thompson. But would they not be required to demonstrate
and prove that what they are going to reduces the
vulnerability?
Mr. Mannan. The facility from which the risk has been
transferred or the one that it----
Mr. Thompson. The one that you are in fact inspecting.
Mr. Mannan. If they are required to prove that risk in only
their facility has been reduced then it is an easy thing. But
if they are required to prove that the overall risk going back
to my balloon example, that the overall risk has been reduced
then that is another issue.
Mr. Thompson. Well, but I don't want you to say if I move
it somewhere else then we have to go there. I think we have to
inspect that facility and so I am a little concerned.
But will you also just--I know you represent a prestigious
university, but would you just stipulate for the record that
there is no financial interest on the chemical side of your
institution that would cause you not to present information to
this committee that is not correct?
Mr. Mannan. No, sir, there is not financial interest either
on my side or I am sure from the university that would prevent
me from representing testimony that is not correct.
Mr. Thompson. So do you receive any money from any chemical
companies to operate what you do?
Mr. Mannan. We receive money from a lot of different
organizations, including money from chemical companies.
Mr. Thompson. That is----
Mr. Mannan. Our main contributors are people who have been
hurt by incidents in the chemical industry.
Mr. Thompson. Mr. Chairman, I will just for the record like
to follow up this with a written communication to Dr. Mannan
based on what he just said.
Mr. Lungren. Yes. I hope, Doctor, you will include the fact
that I believe you get some funding from DHS directorate if I
am not mistaken. The gentleman's time has expired.
Mr. Long is recognized for 5 minutes.
Mr. Long. Thank you, Mr. Chairman, and thank you to the
witnesses for taking your time out today and being here. When
we talk about CFATS, when we talk about IST, a majority of the
time we are talking about external threats, external risks, but
I would like to start with you, Mr. Scott, if I may?
What do you do on internal threats, sabotage, what type of
steps do you take in that regard and is that of concern to you?
Mr. Scott. The insider threat has always been--it is a
concern in all industry. As part of our SVA the vulnerability
assessments, we have looked at internal threats in areas as
well, prior to CFATS being implemented.
One of the things that we do on our Dow internal
vulnerability assessments is we go to the facilities inside our
plants that are in question, that happen to produce a higher
risk to our site or to the community, and we talk to the
operators of those plants in the control rooms. We get their
opinion on how an insider threat could be involved in creating
some kind of an internal or an off-site impact.
So insider threats have always been part of our Responsible
Care Codes for Security audits and also our Dow internal
vulnerability assessments. When you go to CFATS, when you add
CFATS on top of that insider threat, the theft scenario, the
theft and diversion scenario is also included in CFATS.
Mr. Long. Okay, but I would think that that would be with
all the external, CFATS, and IST and everything that we are
trying to do, I would think--I would hope that that would be
job one because that would be an awful easy way to harm a lot
of people. I will go to--thank you.
I will go to Mr. Hawkins with the same question. What do
you do as far as internal threats in your organization?
Mr. Hawkins. We have installations throughout the city. We
have both internal and external safety and threat reviews.
Internally we have a significant police force that we operate
within our facilities.
We do checks on our employees, all of whom we think are
wonderful members of what we call Team Blue. We do safety and
security walkthroughs on our facility on a regular basis to
assess what potential threats there would be.
I would want to say to the answer to a number of the
questions here, there is no question--there may be no more
regulated facility for health and safety broader than just
security than Blue Plains because of the discharge to the
Potomac, the largest point source to the Chesapeake Bay, the
most-studied water body in the world.
We are very used to regularly updating our plant to the
tune of your money. You are our rate payers of hundreds of
millions of dollars. We have had a $4 billion 10-year capital
program where we are updating existing facilities. You rarely
build new treatment facilities. You are constantly updating
existing treatment facilities.
We comply and will comply with every regulation that we are
asked to comply with. Security is one of our highest
priorities. But make no mistake. We always do what is obligated
to us. So you have a regulation or a law, we will comply with
it. We always do the emergency so when there is a break out on
Constitution Avenue we will fix that break.
The system itself, the pipes that you have out on the
street that you live in are perilously old. The apparatus
leading to the plants, which are pretty secure, pretty well
protected, are perilously old. So there is a risk of shifting
whenever new obligations are put on us, which we will comply
with. We consider job public health and safety as job one.
What tends to be overlooked is the system that is out in
the cities which are getting older and older and older. We have
had over 500 water main breaks in this city since December 1,
not to mention the ones you have seen out in the suburbs. So we
comply. We do have internal security. But there is the risk of
where you have money being spent based on where regulations are
written to the cost of that you don't always expend in other
areas.
Mr. Long. The technology and the process that you use to
disinfect and treat the water, do you find that applicable to a
chemical manufacturing plant?
Mr. Hawkins. I am not qualified to answer that question.
For what we use it for, it is applicable in the wastewater
treatment system. We disinfect. The chemicals that we use now,
which are much safer and while they cost more to buy, the
training and safety precautions that we must spend money on are
less because they are less dangerous on our facilities.
Our employees are much more pleased to be working with less
dangerous chemicals is applicable in other wastewater treatment
facilities. So yes, it certainly applies in the wastewater
industry. I just don't know the applicability to other
industries.
Mr. Long. Okay. Again, thank you all for your testimony
here today, and I yield back, Mr. Chairman.
Mr. Lungren. Thank you.
The gentlelady from California, Ms. Richardson, is
recognized for 5 minutes.
Ms. Richardson. Yes. Thank you, Mr. Chairman. First of all,
if I step on wrong grounds feel free to help me here because I
am a new back on the committee. I actually wanted to entertain
in a colloquy with you if I might?
It is my understanding you were the author of 2006, this
legislation, and I was just curious since we have a DC Water
person here, what was your thought back then, you know, looking
back, why we didn't include water facilities, wastewater
facilities, and port facilities especially, since I happen to
know your history of having those in Long Beach, where we have
all of those?
I am just a little curious why you didn't include those and
would you be open of you informing? We didn't get this
information until Wednesday evening so this is really my
opportunity to now having read it to chat with you about it
so----
Mr. Lungren. Well, you know, I will be happy to discuss
that with you. It was both a jurisdictional question and a
question of whether or not we could have compatibility of the
various agencies involved. Also it had to do with how we could
get our bill to the floor without going to other committees.
Ms. Richardson. Are you open to the changing that as we
move forward?
Mr. Lungren. I am extremely opposed to including inherently
safer technologies to mandate, but I am agnostic on the water
issue.
Ms. Richardson. Thank you, sir. Reclaiming my time, Mr.
Scott, I asked the question of Mr. Beers what was his thought
about the fact that Homeland Security only screens against
terrorist watch list. However, a person who is not on the
terrorist watch list but prohibited from purchasing a gun under
the National Instant Criminal Background Check System would be
cleared by DHS.
What are your thoughts now as things are kind of changing
in this environment? What would you think about your facilities
in terms of if we were to look at some further legislation or
would you be open to leading that within the council, the
Chemical Council?
Mr. Scott. Most of the industry or most of the companies in
ACC and certainly Dow has--we have done background checks
historically, criminal background checks historically on all
Dow employees and any contract employees that are working on
our sites.
We also had several sites that are covered by MTSA, and
they use the TWIC card. Having a TWIC does not automatically
authorize you entry into a Dow site. You still have to have our
Dow background check, but working in harmony those two
processes work.
So we have been discussing the personnel surety issue with
the Department of Homeland Security, and they are looking at or
considering a card, either the TWIC program or a card like the
TWIC program on recognizing other similar cards, which many of
the companies are already operating under those similar
Federally issued cards. If we could harmonize those programs
both the industry and DHS would benefit from that.
Ms. Richardson. Thank you, sir. Then my next question, when
we brought forward the legislation last year I had worked on an
amendment called the whistleblower protection, and it just gave
a little more protection for those who might be observing
things. I just came from a committee, for example. It was Coast
Guard and water where we were dealing with the oil spill.
Some might say that now witnesses are testifying to the
fact that they did in fact see some problems. What is your
position on the whistleblower protections and do you guys as a
council support them?
Mr. Scott. I would have to see the details of them before I
could say I would support it or not support it, but in Dow----
Ms. Richardson. Well, two----
Mr. Scott. In Dow, for example, we have anonymous tip
lines. We have awareness programs in place for all of our
employees and give them the numbers to call if they do see
anything that is suspicious.
We use the DHS numbers that they can call if they do see
anything suspicious. We have an 800 number anonymous line that
they can call in and report anything at all, ethics violations
or anything suspicious that is happening in the company either
from a security perspective or an operational perspective.
Ms. Richardson. Okay.
Mr. Scott. We have a lot of those same things in place.
Ms. Richardson. To your credit, sir, though, Dow I think
might have some different standards than what might be applied
across the country. What I would like to do because my time is
now running out, is supply you with that information, and then
if you could provide your thoughts on not only your perspective
but on behalf of the council as well? It would be helpful to
me.
Mr. Scott. Will do.
Ms. Richardson. And move forward. Thank you, sir. Thank
you, Mr. Chairman, for----
Mr. Lungren. Thank you.
Ms. Richardson [continuing]. Interacting with me on that.
Mr. Lungren. Mr. Walberg, welcome to the subcommittee, and
you are recognized for 5 minutes.
Mr. Walberg. Thank you, Mr. Chairman. Mr. Scott, good to
see someone here that has some base in Michigan, that is still
left.
Mr. Scott. We have a pretty big base in Michigan.
Mr. Walberg. I know that.
[Laughter.]
Mr. Walberg. We thank you for that base, and we want to
make sure it continues and has ability to hire more and
unrestricted by unnecessary regulation but restricted by
regulation that works for all of us.
Some have cited the New Jersey chemical facility law as a
model for IST consideration. I am concerned, however, that the
New Jersey model is not necessarily appropriate model for
Federal Government regulations in that it creates undue focus
on IST versus other less costly and more easily implemented
security measures that may allow facilities to meet the
performance standards. What are your views on that position?
Mr. Scott. Dow has a very small footprint in New Jersey,
but in talking with other folks that have a larger presence
there they have stated exactly that. The focus on mandatory IST
has taken the focus pretty much away from other upgrades that
could be in place to meet performance standards.
I have heard the stories of most of the audits or most of
the inspection the time is spent in going through paperwork and
background and concepts on IST, spending a lot of time trying
to understand what and why the industry does it the way it does
it with very little output at the end that makes significant
improvement compared to the time and the effort that is spent
and the time and effort that is taken away from the other
options.
Mr. Walberg. Thank you. To follow that up, do you agree
with Dr. Mannan that the science is just not there to be able
to define, quantify, and evaluate IST and generate accepted and
applicable forms?
Mr. Scott. It is a very complex subject, and every time we
have a discussion about it with DHS it obviously is very
complex. So I think we are not at the point where we can
mandate that particular topic or that particular tool or any
other particular tool. But I think it is part of the process
now that is available to industry to use to meet the standards.
So I don't think we should mandate any particular tool,
especially IST.
Mr. Walberg. Okay. Thank you. Dr. Mannan, I appreciate your
real-world illustrations using balloons and other things. That
makes it simpler for a guy like me to understand cause and
consequences. What types of experts in what kind of disciplines
would DHS need to adequately review IST assessments and make
decisions on how facilities should implement their processes?
Mr. Mannan. As you can see, someone who has spent a career
in chemical engineering for a vast number of years, more than I
care to remember, and someone who has been working in IST for
the last 10, 15 years, where now I sincerely am struggling with
some of these issues. But to get there first of all I think we
have to develop the science. I cannot emphasize that more
enough.
Then the types of people you would need at DHS in general
chemical engineers, mechanical engineers, who understand
processes, No. 1, who understand risk and how to calculate risk
and then are able to factor that in with operational issues and
all the other issues that fall out of making such complex
decisions.
So I don't know if I have given you the job specifications
of a person like that, but that is where I would start with.
Mr. Walberg. Well, does that type of expertise reside
within DHS?
Mr. Mannan. Currently it is not. As I said in my oral and
written testimony, there is not either adequate or appropriate
expertise as far as that is concerned, the inherent safety
part. I think DHS has the capability to do the current CFATS
regulation and compliance.
They may not have the appropriate number of staff to do it,
but they have the type of people that they need to do it. But
the type of people you need to do inherent safety compliance, I
believe, they absolutely don't have.
Mr. Walberg. Okay. Thank you very much. I yield back.
Mr. Lungren. Okay. Mr. Walberg, I would just say this goes
to the question of whether we should impose performance
standards versus a mandated technological fix. Particularly in
an area where we have had testimony before of those who came up
with the concept of IST telling us that it is not an off-the-
shelf or completed product.
It is a process. It is a method of analysis that should be
alongside the others. That is why I keep coming back to how do
you mandate that? Does that lead us in the right direction? So
I thank you for your questions. Your time is expired.
All time is expired. We thank our witnesses for coming
before us. We really do appreciate it. I think you have added
valuable testimony both in terms of what you have said orally
and in your written testimony.
Members of the committee may have some additional questions
for you. If we do we would ask you to respond to these in
writing. This hearing record will be held open for 10 days.
Without objection, the subcommittee stands adjourned.
[Whereupon, at 12:05 p.m., the subcommittee was adjourned.]
A P P E N D I X
----------
Question From Ranking Member Yvette D. Clarke for Timothy J. Scott
Question. To the best of your knowledge, have any facilities been
adversely affected economically, including loss of revenue, reduced
workforce, or even facility shutdown or relocation, due to CFATS
compliance?
Answer. CFATS implementation is just now getting started with the
first round of inspections to begin later this year or in 2012. Sites
will have another year to complete implementation or develop plans for
implementation of any necessary security upgrades. It's too early to
tell if there will be any adverse economic impact on the industry, but
that's also the reason to let the current process continue to
completion without additional changes, requirements, or delays. I can
say that Dow has voluntarily upgraded security on a global basis since
2001 and has spent hundreds of millions of dollars during a period of
difficult economic times for the chemical industry. Dow has been
proactive in support of risk-based legislation that would create
certainty in the regulations and our upgrades have been implemented to
meet predicted Government expectations. Additional changes to the
requirements at this point would add little value and detract from
voluntary efforts already in place.
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