[House Hearing, 113 Congress]
[From the U.S. Government Printing Office]
WEST FERTILIZER, OFF THE GRID: THE PROBLEM OF UNIDENTIFIED CHEMICAL
FACILITIES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CYBERSECURITY,
INFRASTRUCTURE PROTECTION,
AND SECURITY TECHNOLOGIES
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
AUGUST 1, 2013
__________
Serial No. 113-30
__________
Printed for the use of the Committee on Homeland Security
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__________
COMMITTEE ON HOMELAND SECURITY
Michael T. McCaul, Texas, Chairman
Lamar Smith, Texas Bennie G. Thompson, Mississippi
Peter T. King, New York Loretta Sanchez, California
Mike Rogers, Alabama Sheila Jackson Lee, Texas
Paul C. Broun, Georgia Yvette D. Clarke, New York
Candice S. Miller, Michigan, Vice Brian Higgins, New York
Chair Cedric L. Richmond, Louisiana
Patrick Meehan, Pennsylvania William R. Keating, Massachusetts
Jeff Duncan, South Carolina Ron Barber, Arizona
Tom Marino, Pennsylvania Dondald M. Payne, Jr., New Jersey
Jason Chaffetz, Utah Beto O'Rourke, Texas
Steven M. Palazzo, Mississippi Tulsi Gabbard, Hawaii
Lou Barletta, Pennsylvania Filemon Vela, Texas
Chris Stewart, Utah Steven A. Horsford, Nevada
Richard Hudson, North Carolina Eric Swalwell, California
Steve Daines, Montana
Susan W. Brooks, Indiana
Scott Perry, Pennsylvania
Mark Sanford, South Carolina
Greg Hill, Chief of Staff
Michael Geffroy, Deputy Chief of Staff/Chief Counsel
Michael S. Twinchek, Chief Clerk
I. Lanier Avant, Minority Staff Director
------
SUBCOMMITTEE ON CYBERSECURITY, INFRASTRUCTURE PROTECTION, AND SECURITY
TECHNOLOGIES
Patrick Meehan, Pennsylvania, Chairman
Mike Rogers, Alabama Yvette D. Clarke, New York
Tom Marino, Pennsylvania William R. Keating, Massachusetts
Jason Chaffetz, Utah Filemon Vela, Texas
Steve Daines, Montana Steven A. Horsford, Nevada
Scott Perry, Pennsylvania, Vice Bennie G. Thompson, Mississippi
Chair (ex officio)
Michael T. McCaul, Texas (ex
officio)
Alex Manning, Subcommittee Staff Director
Dennis Terry, Subcommittee Clerk
C O N T E N T S
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Page
STATEMENTS
The Honorable Patrick Meehan, a Representative in Congress From
the State of Pennsylvania, and Chairman, Subcommittee on
Emergency Preparedness, Response, and Communications:
Oral Statement................................................. 1
Prepared Statement............................................. 3
The Honorable Michael T. McCaul, a Representative in Congress
From the State of Texas, and Chairman, Committee on Homeland
Security:
Oral Statement................................................. 6
Letters........................................................ 7
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Ranking Member, Committee on
Homeland Security:
Oral Statement................................................. 3
Prepared Statement............................................. 5
The Honorable Yvette D. Clarke, a Representative in Congress From
the State of New York, and Ranking Member, Subcommittee on
Emergency Preparedness, Response, and Communications:
Oral Statement................................................. 32
Prepared Statement............................................. 65
WITNESSES
Panel I
Mr. David Wulf, ISCD Director, National Protection and Programs
Directorate, U.S. Department of Homeland Security:
Oral Statement................................................. 14
Prepared Statement............................................. 17
Mr. Stephen L. Caldwell, Director, Homeland Security and Justice,
U.S. Government Accountability Office:
Oral Statement................................................. 22
Prepared Statement............................................. 23
Panel II
Mr. Donnie Dippel, President, Texas Ag Industries Association:
Oral Statement................................................. 87
Prepared Statement............................................. 90
Mr. Paul Derig, Environmental Health and Safety Manager III, J.R.
Simplot Company:
Oral Statement................................................. 91
Prepared Statement............................................. 93
Mr. Timothy J. Scott, Chief Security Officer, Corporate Director,
Emergency Services and Security, Dow Chemical:
Oral Statement................................................. 99
Prepared Statement............................................. 100
Mr. Sean Moulton, Director, Open Government Policy, Center for
Effective Government:
Oral Statement................................................. 104
Prepared Statement............................................. 106
FOR THE RECORD
The Honorable Yvette D. Clarke, a Representative in Congress From
the State of New York, and Ranking Member, Subcommittee on
Emergency Preparedness, Response, and Communications:
Statement of Dr. M. Sam Mannan and Mr. John S. Bresland, Mary
Kay O'Connor Process Safety Center, Artie McFerrin Department
of Chemical Engineering, Texas A&M University System......... 34
Statement of Rick Hind, Legislative Director, Greenpeace....... 52
Article........................................................ 58
Statement of Paul Orum, Consultant, Coalition to Prevent
Chemical Disasters........................................... 60
Statement of the U.S. Environmental Protection Agency.......... 63
Letter......................................................... 83
The Honorable Susan W. Brooks, a Representative in Congress From
the State of Indiana:
Letter From Timothy D. White................................... 75
WEST FERTILIZER, OFF THE GRID: THE PROBLEM OF UNIDENTIFIED CHEMICAL
FACILITIES
----------
Thursday, August 1, 2013
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 10:04 a.m., in
Room 311, Cannon House Office Building, Hon. Patrick Meehan
[Chairman of the subcommittee] presiding.
Present: Representatives Meehan, McCaul, Clarke, Vela, and
Thompson.
Also present: Representatives Flores and Brooks.
Mr. Meehan. The Committee on Homeland Security Subcommittee
on Cybersecurity, Infrastructure Protection, and Security
Technologies will come to order. The subcommittee is meeting
today to examine the West, Texas fertilizer plant explosion and
the problem with unidentified chemical facilities.
I recognize myself for an opening statement. I want to
welcome everyone to today's hearing, titled ``West Fertilizer:
Off the Grid, the Problem of Unidentified Chemical
Facilities.'' The April 17, 2013 explosion at the West
Fertilizer plant in West, Texas was most likely not the result
of terrorist activity or foul play. Therefore, the Chemical
Facility's Antiterrorism Standards or, as we call it, CFATS,
the program was not directly implicated. But the tragic
incident did reveal a disturbing fact, a fact about the CFATS
program itself. There are literally thousands of facilities
across the country that store or handle threshold quantities of
high-risk chemicals that have gone under the radar at the
Department of Homeland Security.
I am grateful that Mr. Caldwell is here today. I know that
the GAO has looked at this particular issue, among others. In
the words of his report, the preliminary findings of the
investigation at West, Texas by the U.S. Chemical Safety Board
showed that the explosion killed at least 14 people and injured
more than 200 others, severely damaged or destroyed nearly 200
homes, three nearby schools, a nursing home, and an apartment
complex. According to the Chemical Safety Board, the fire at
the facility detonated about 30 tons of an ammonium nitrate. As
of July 2013, the cause of the fire had not been determined.
I think what that report states so clearly is the real-life
ramifications of the inability to be able to identify where the
dangerous chemicals are stored and of the conditions. The
hearing will focus on these outlier facilities and we should
take--but before we do so, I want to take a moment to remember
the victims of this terrible tragedy, including the brave first
responders who sacrificed their lives to save others, the men
and women who walked into the fire, not aware of what was
there: Morris Bridges, Perry Calvin, Jerry Chapman, Cody
Dragoo, Kenneth Harris, Jimmy Matus, Judith Monroe, Joseph
Pustejovsky, Cyrus Reed, Mariano Saldivar, Kevin Sanders,
Douglas Snokhous, Robert Snokhous, and Buck Uptmore.
The truth is, these are brave fire fighters. But they are
real Americans, whose lives and a community and families whose
lives have been affected by the inability for all of us to be
able to understand the nature of the threat before it presented
itself. While we do know that this was not likely an act of
terrorism, imagine if it had been, what kind of questioning
would be going on today about the failure to connect the dots
or the failure to perform. West, Texas is the backdrop for
today's hearing. The overarching mission is to identify the
reasons for the Department's lack of awareness at these
outlying facilities.
West Fertilizer stored large amounts of anhydrous ammonia
and ammonium nitrate. Both chemicals have been identified as
high-risk under the Department of Homeland Security and the
Environmental Protection Agency and the Occupational Safety and
Health Administration. It was very discouraging to learn that
although DHS is supposed to be securing the facilities that
store these chemicals, not only was the plant not registered
with the Department's CFATS program, they didn't even know of
the plant's existence. We must understand what the Department
is doing to correct this serious shortcoming.
I was encouraged to see that, just this morning, the White
House announced that they are taking this issue seriously, as I
know that they do, and that the administration will be
encouraging agencies to share information and provide greater
transparency. I know Mr. Wulf will be prepared to speak to
those issues. I am looking forward to further reviewing the
Executive Order, and look to our witnesses today to understand
the current and potential information-sharing environment among
Federal agencies overseeing chemical facilities and the State
agencies that implement CFATS.
The deficiencies brought to light by the West explosion
have the potential to seriously limit CFATS' mission of
securing America's chemical infrastructure. Shortly after the
explosion, Chairman McCaul and I sent a letter to Secretary
Napolitano asking for an explanation to the problem of
identifying outliers, and specifically pointed to the lack of
interagency cooperation. I am pleased that the Department took
these concerns to heart when they crafted the Executive Order,
and I hope that today we will be able to receive a more in-
depth understanding of not only the shortcomings, but the
efforts to ameliorate them.
The disaster at West illustrates the level of harm that our
communities can suffer when something at even a small facility
holding hazardous chemicals goes wrong. Whether the harm is
intentional or the result is an accident, the effects are
devastating. That is why it is so important that these outliers
are accounted for. I appreciate the Members of the subcommittee
and our two witness panels who recognize the solemnity of this
tragic situation which killed 14 people. With those victims in
mind, I look forward to hearing your testimony for the work of
this committee to address, as best we can, the shortcomings
that have been recognized.
[The statement of Chairman Meehan follows:]
Statement of Chairman Patrick Meehan
August 1, 2013
Welcome everyone to today's hearing titled, ``West Fertilizer, Off
the Grid: The Problem of Unidentified Chemical Facilities.'' The April
17, 2013 explosion at the West Fertilizer Plant in West, TX was most
likely not the result of terrorist activity or foul play. Therefore,
the Chemical Facility Anti-Terrorism Standards, or CFATS program was
not directly implicated. But the tragic incident did reveal a
disturbing fact about the CFATS program: There are literally thousands
of facilities across the country that store or handle threshold
quantities of high-risk chemicals that have gone under the radar at the
Department of Homeland Security.
While today's hearing will focus on these ``outlier'' facilities,
we should take a moment to remember the victims of this terrible
tragedy, including the brave first responders who sacrificed their
lives to save others: Morris Bridges, Perry Calvin, Jerry Chapman, Cody
Dragoo, Kenneth Harris, Jimmy Matus, Judith Monroe, Joseph Pusteivosky,
Cyrus Reed, Mariano Saldivar, Kevin Sanders, Douglas Snokhous, Robert
Snokhous, and Buck Uptmor.
I thank the witnesses for joining us today and offering their
testimonies.
While West, Texas is the backdrop for today's hearing, the
overarching mission is to identify the reasons for the Department's
lack of awareness of these outlying facilities.
West Fertilizer stored large amounts of anhydrous ammonia and
ammonium nitrate. Both chemicals have been identified as ``high-risk''
under the Department of Homeland Security, the Environmental Protection
Agency, and the Occupational Safety and Health Administration.
It was very discouraging to learn that although DHS is supposed to
be securing facilities that store these chemicals, not only was the
plant not registered with the Department's CFATS program, but they
didn't even know of the plant's existence.
We must understand what the Department is doing to correct this
serious shortcoming. I was encouraged to see that just this morning,
the White House announced that they are taking this issue seriously and
that the administration will be encouraging agencies to share
information and provide greater transparency. I am looking forward to
further reviewing the Executive Order, and look to our witnesses today
to understand the current and potential information-sharing environment
among Federal agencies overseeing chemical facilities, and the State
agencies that implement CFATS.
The deficiencies brought to light by the West explosion have the
potential to seriously limit CFATS' mission of securing America's
chemical infrastructure.
Shortly after the explosion, Chairman McCaul and I sent a letter to
Secretary Napolitano asking for an explanation of the problem of
identifying outliers, and specifically pointed to the lack of
interagency cooperation. I am pleased that the Department took these
concerns to heart when they crafted the Executive Order, and I hope
today we will be able to receive a more in-depth understanding of these
shortcomings.
The disaster at West illustrates the level of harm that our
communities can suffer when something at even a small facility holding
hazardous chemicals goes wrong. Whether the harm is intentional or the
result of an accident, the effects are devastating. That's why it is so
important that these outliers are accounted for.
I appreciate the Members of the subcommittee and our two witness
panels recognizing the solemnity of this tragic situation, which killed
14 people. With the victims in mind, I look forward to hearing your
testimonies.
Mr. Thompson. The Chairman now recognizes the Ranking
Member of the full committee, the gentleman from Mississippi,
Mr. Thompson, for any statement he may have.
Thank you very much, Mr. Chairman. I thank our witnesses
for their expected testimony. In the 4 months since the
explosions at a fertilizer facility shook the small town of
West, Texas to its core, shock waves have been felt across the
country, here in Washington and even at 1600 Pennsylvania
Avenue. As the scale of death and destruction has come into
focus, Americans have been forced to ask themselves some very
tough questions. Could a West-type event happen here in my
community? Do facilities with explosives or lethal chemicals
pose a risk to my family, my home, or my community?
For most people, the likely response is ``Maybe,'' followed
by, ``Well, I don't know, but surely my local fire chief does.
Surely the Federal Government does. And they will keep my
family safe.'' Unfortunately, the West facility explosion
undermines that sense of confidence. The West fire fighters
heroically went in to do as they had been trained--fight a
fire. But this was a chemical fire, fueled by ammonium nitrate.
In the end, 12 of these heroes lost their lives. Until these
explosions, the Department of Homeland Security, the Federal
lead for chemical security, did not know that the West plant
even existed.
DHS administers the risk-based, performance-based CFATS
program that requires facilities with threshold quantities of
certain chemicals to submit information through the Top Screen
process. DHS then performs a risk analysis to determine whether
the plant should be regulated. Facilities that DHS determined
to be high-risk are required to do vulnerability assessments
and site security plans. When I drafted the originating
legislation, I envisioned a high level of collaboration between
high-risk tiered facilities and DHS inspectors to ensure that
security practices would be tailored to actual vulnerabilities.
I also envisioned that site security plan information would
be shared with local first responders. Had that information
sharing occurred in West, Texas, some of the death and property
damage could have been mitigated. Today, for CFATS to work,
facilities have to pay attention to the Federal Register. For
large operations that have regulatory affairs departments that
is probably not too difficult. Facilities that maintain
membership in National associations like the ones we will hear
from later today also have access to this information. It is
unaffiliated, usually small so-called ``outliers'' that dot our
Nation's landscape that are of concern.
Many of these facilities operate in areas where the only
responders are volunteers who do not have the access to the
kind of specialized training and resources that are necessary
to respond to West-type explosions. As the Congressman for a
rural area and a former volunteer fire fighter, I am troubled
by the prospect that thousands, maybe tens of thousands, of
these facilities operate under the radar screen. There needs to
be a sense of urgency on this issue at all levels. Interagency
coordination is essential between EPA, ATF, OSHA, DHS, Coast
Guard, and State regulators. There should be enough information
available to identify those facilities that pose a risk.
That information needs to be shared. The next challenge is
probably far more difficult: Ensuring that DHS properly analyze
the risk at facilities that provide information. GAO has told
us that when it comes to assessing risk and assigning risk
tiers, arguably the most essential aspect of the CFATS program,
VHS analysis, is neither reliable or consistent. To that point,
the Blue Rhino propane facility in Florida that, just this
week, exploded--sending 200-foot fireballs into the night sky--
was not determined by DHS to be high-risk. But I believe that
with a lot of work and a lot of smart people in the CFATS
program, we can do better.
That is why I join my colleague on the Energy and Commerce
Committee, Mr. Waxman, in calling on the President to bring
together experts to tackle the fundamental issues. In response,
I was pleased to see the President establish an interagency
working group to collaborate on improving information sharing
and chemical safety and security. Hopefully, this renewed focus
will yield meaningful results.
Thank you, Mr. Chairman, and I yield back the balance of my
time.
[The statement of Ranking Member Thompson follows:]
Statement of Ranking Member Bennie G. Thompson
August 1, 2013
In the 4 months since explosions at a fertilizer facility shook the
small town of ``West, Texas'' to its core, shockwaves have been felt
across the country, here in Washington, and even at 1600 Pennsylvania
Avenue.
As the scale of death and destruction has come into focus,
Americans have been forced to ask themselves some very tough
questions----
Could a ``West-type'' event happen here, in my community? Do
facilities with explosives or lethal chemicals that pose a risk to my
family, my home, my community?
For most people, the likely response is ``maybe''--followed by
``well, I don't know but surely my local fire chief does. Surely, the
Federal Government does, and they will keep my family safe.''
Unfortunately, the West facility explosion undermines that sense of
comfort.
The West fire fighters heroically went in to do as they had been
trained, fight a fire. But this was a chemical fire--fueled by ammonium
nitrate. In the end, 12 of these heroes lost their lives. And, until
these explosions, the Department of Homeland Security--the Federal lead
for chemical security did not know that the West plant even existed.
DHS administers the risk-based, performance-based CFATS program
which requires facilities with threshold quantities of certain
chemicals to submit information through the ``Top Screen'' process. DHS
then performs a risk analysis to determine whether the plant should be
regulated. Facilities that DHS determines to be ``high-risk'' are
required to do vulnerability assessments and site security plans.
When I drafted the originating legislation, I envisioned a high
level of collaboration between risk-tiered facilities and DHS
inspectors to ensure that security practices would be tailored to
actual vulnerabilities.
I also envisioned that site security plan information would be
shared with local first responders. Had that information sharing
occurred in West, Texas, some of the death and property damage could
have been mitigated.
Today, for CFATS to work, facilities have to pay attention to the
Federal Register. For large operations that have regulatory affairs
departments, that is probably not too difficult. Facilities that
maintain membership in National associations, like the ones we will
hear from later today, also have access to this information.
It is the unaffiliated, usually small, so-called ``outliers'' that
dot our Nation's landscape that are of concern.
Many of these facilities operate in areas where the only responders
are volunteers, who do not have access to the kind of specialized
training and resources that are necessary to respond West-type
explosions.
As the Congressman for a rural area and a former volunteer fire
fighter, I am troubled by the prospect that thousands, maybe tens of
thousands, of these facilities operate under the regulatory radar.
There needs to be a sense of urgency on this issue, at all levels
of government.
Interagency coordination is essential. Between the EPA, ATF, OSHA,
DHS, Coast Guard, and State Regulators, there should be enough
information available to identify those facilities that pose a risk.
That information needs to be shared.
The next challenge is probably far more difficult--ensuring that
DHS properly analyzes the risks at facilities that provide information.
GAO has told us that when it comes to assessing risk and assigning
risk tiers--arguably the most essential aspect of the CFATS program--
DHS' analysis is neither reliable nor consistent.
To that point, the Blue Rhino propane facility in Florida that,
just this week, exploded, sending 200-foot fireballs into the night
sky, was not determined by DHS to be ``high-risk''.
But, I believe that with a lot of work and a lot of smart people,
in the CFATS program can be better. That is why I joined my colleague
on the Energy and Commerce Committee, Mr. Waxman, in calling on the
President to bring together experts to tackle these fundamental issues.
In response, I was pleased to see the President establish an
interagency working group to collaborate on improving information
sharing and chemical safety and security. Hopefully, this renewed focus
will yield meaningful results.
Mr. Meehan. I want to thank the Ranking Member of the full
committee for his opening statement and for being here at this
hearing. I think it demonstrates the significance and
importance of this issue. I think that is further underscored
by the presence today of the full committee Chairman, the
gentleman from Texas, Mr. McCaul. So at this point in time I
would like to recognize the full committee Chairman, Mr.
McCaul, for any statement he would like to make.
Mr. McCaul. I thank the Chairman for holding this important
hearing on a tragedy that occurred in my home State of Texas.
Of the importance of our Nation's chemical infrastructure,
security cannot be overstated. It is not just a concern on the
National level, it is a local concern. As the explosion in West
demonstrates, the harm to individual communities resulting from
a chemical incident, the destruction suffered at the local
level can be devastating. As I said, as a Texan, this tragedy
feels especially personal. Fourteen people lost their lives,
hundreds more were injured, schools were leveled, nursing homes
were destroyed, dozens of homes were lost, entire neighborhoods
were annihilated, and more than 120 people are filing for
unemployment.
The cost of the physical damage alone is estimated to be
nearly $100 million. Whether an industrial accident, as this
appears to be, or the result of foul play a chemical disaster
wreaks havoc at the local level. Chemical facilities that are
not run with the utmost care are a liability to everyone. Over
the years, West Fertilizer had been broken into and vandalized
repeatedly. The local residents complained about the strong
smell of ammonia, a smell so potent it burned their eyes. The
facility was routinely left open after-hours, and police
reports indicate 11 burglaries occurred over the last 10 years.
West Fertilizer was literally a disaster waiting to happen.
Yet as vulnerable as this facility was known to be, DHS had
no idea it even existed. The plant's owner failed to knock on
the Department's door and introduce himself. So West remained
unidentified and unknown. What is even more disturbing is that
West Fertilizer was just one of literally thousands of similar-
situated facilities across the country that DHS has no
knowledge of. On May 2, Chairman Meehan and I sent a letter to
Secretary Napolitano asking her to explain how it was that West
had managed to stay off the radar and what the Department was
doing to improve their outreach.
The Department's response was wholly insufficient, and the
reply letter simply reiterated the Department's current
efforts, saying nothing about what DHS had learned from these
new steps. I was encouraged to receive a call from the White
House last night, talking about the President's Executive Order
on chemical safety. I think this is a step in the right
direction, and I look forward to the results of this Executive
Order. But while these improvements indicate potential
progress, if they indeed materialize, they alone will not be
sufficient to get CFATS where it needs to be.
In July, I again wrote to Secretary Napolitano, joined by
Energy and Commerce Chairman, Fred Upton, and together we
expressed our dissatisfaction with the Department's failure to
implement even the most fundamental components of the CFATS
program, including the identification of potentially covered
facilities. We state in our letter that we believe in the
program's mission, and we ultimately want CFATS to succeed. But
in order for CFATS to be viable, DHS needs to property manage
this program's basics.
The first step in securing America's chemical
infrastructure is identifying those facilities that need to be
secure. So I look forward to hearing from Director Wulf as to
how he intends to work smarter, and not just harder, to right
this ship. It is imperative not only to our National security,
but also to our community's, that this problem be solved.
With that, Mr. Chairman, I yield back.
[The information follows:]
Letter Submitted For the Record
May 2, 2013.
Honorable Janet Napolitano,
Secretary, U.S. Department of Homeland Security, Washington, DC 20528.
Honorable Suzanne Spaulding,
Acting Under Secretary, National Protection and Programs, U.S.
Department of Homeland Security, Washington, DC 20528.
Dear Secretary Napolitano and Acting Under Secretary Spaulding: On
April 17, 2013 the West Fertilizer plant in West, Texas exploded,
killing 15 people and injuring hundreds more. Numerous media outlets
have reported that the plant was storing large quantities of both
anhydrous ammonia and ammonium nitrate at the time of the incident.
These particular chemicals are considered ``high-risk'' under
Department of Homeland Security (DHS), Environmental Protection Agency
(EPA) and Occupational Safety and Health Administration (OSHA)
standards, and Federal law requires these agencies to regulate the
facilities that handle them.
DHS's role is to secure facilities that produce, store, or use
hazardous chemicals that could be used by terrorists to inflict mass
casualties in the United States. The program designed to accomplish
this, the Chemical Facilities Anti-Terrorism Standards (CFATS), is not
necessarily implicated in the West Fertilizer disaster, since initial
reports indicate that the fire and subsequent explosion were the result
of an industrial accident, and not of any terrorist activity or
malicious intent.
However, the West Fertilizer explosion has brought to light some
serious concerns about the efficacy of the CFATS program. To date, we
have learned that although West Fertilizer stored high-risk quantities
of CFATS-regulated chemicals, the plant was not registered with the
CFATS program. What's even more troubling is the fact that DHS did not
even know of the plant's existence.
The Government Accountability Office (GAO),\1\ the DHS Office of
Inspector General (IG),\2\ and the DHS Office of Infrastructure
Protection (IP) itself \3\ have recognized that over the past 5 years,
ineffectual management and implementation of the CFATS program have
frustrated the Department's critical mission to secure America's
chemical infrastructure. To its credit, the Department has brought in
new leadership for CFATS, and is working in earnest to correct the
program's deficiencies. But this latest incident reveals yet another
serious problem that must be addressed.
---------------------------------------------------------------------------
\1\ GOA-12-515T ``Critical Infrastructure Protection: DHS is Taking
Action to Better Manage its Chemical Security Program, but it is Too
Early to Assess Results.'' July 26, 2012.
\2\ OIG-13-55 ``Effectiveness of the Infrastructure Security
Compliance Division's Management Practices to Implement the Chemical
Facility Anti-Terrorism Standards Program.'' March, 2013.
\3\ Memorandum from Penny Anderson, Director, Infrastructure
Security Compliance Division, Office of Infrastructure Protection and
David Wulf, Deputy Director to NPPD Under Secretary, Rand Beers:
``Challenges Facing ISCD, and the Path Forward.'' November 10, 2011.
---------------------------------------------------------------------------
Although the CFATS Authorizing Statute (Pub. L. 109-295 550) does
not compel the DHS Secretary to affirmatively seek out and identify
chemical facilities presenting high levels of security risk, this
certainly does not suggest that DHS's approach should be purely
passive. Yet the IP Office of Legislative Affairs estimates there are
thousands of chemical facilities in the United States that have failed
to report under CFATS facilities of which DHS has no knowledge.
The explosion of the West Fertilizer plant is a terrible tragedy,
no matter what the cause. But had the event been the result of
terrorist infiltration, how could DHS possibly justify the investment
of resources the Department has made over the past 5 years to implement
CFATS when it didn't even know of this plant's existence? The
identification of facilities at risk of terrorist infiltration is the
foundation of the CFATS program. It is the first step. The fact that
CFATS relies on facilities to self-report cannot operate as an excuse
for DHS's failure to adequately carry out its vital responsibilities.
If the CFATS reporting program is ineffectual, the Department has a
responsibility to fix it. DHS must reevaluate its outreach campaign to
ensure that it is robust and comprehensive. Facilities which are either
inadvertently or willfully off the grid--facilities like West
Fertilizer--must be both aware of their requirement to report, and held
to account for failing to do so.
In order to completely understand the Department's failure to know
about the West Fertilizer plant, and other ``outlier'' facilities, we
would appreciate answers to the following questions by Monday, June 3.
(1) Please describe the CFATS process for identifying chemical
facilities of interest. Does DHS have any mechanism by which it
can identify facilities which have not self-reported? How many
``outliers'' do you estimate exist?
(2) To what do you attribute DHS's failure to identify all
facilities of interest, and what is DHS currently doing to
correct this critical deficiency?
(3) Does DHS share information with EPA, OSHA, and the other
Federal agencies responsible for chemical facilities oversight?
If so, to what extent? If not, why not?
(4) What is the relationship between DHS and State and local
authorities with regard to identifying and regulating chemical
facilities? Does DHS exchange information with local emergency
planning authorities? Does DHS play any role in educating first
responders as to handling chemical incidents?
(5) Under CFATS, DHS is authorized to issue penalties for
noncompliance. DHS can even go so far as to order a
noncompliant facility to cease operations. To date, how many
facilities has DHS penalized for noncompliance? Has DHS
penalized any outliers for failure to submit a ``Top Screen?''
If not, how would you describe DHS's effectiveness in enforcing
compliance?
(6) The Ammonium Nitrate Security Program (ANSP) is a proposed
regulation developed by DHS in response to direction from
Congress to ``regulate the sale and transfer of ammonium
nitrate by an ammonium nitrate facility . . . to prevent the
misappropriation or use of ammonium nitrate in an act of
terrorism.'' Implementation of this program has been long
delayed. Can you please update us on the status of the ANSP?
(7) Although CFATS is intended to regulate the security of chemical
facilities--as opposed to industrial safety--could CFATS
compliance have helped to mitigate the disaster at West
Fertilizer in any way?
Thank you for your attention to this matter. We look forward to
continuing to work with you to ensure that America's chemical
facilities are adequately protected against terrorist attack.
Sincerely,
Michael T. McCaul,
Chairman, Committee on Homeland Security.
Patrick L. Meehan,
Chairman, Subcommittee on Cybersecurity, Infrastructure Protection,
and Security Technologies, Committee on Homeland Security.
Attachment.--DHS Responses to Rep. McCaul and Rep. Meehan's May 2, 2013
Letter Regarding the Chemical Facility Anti-Terrorism Standards (CFATS)
Program
Question 1. Please describe the CFATS process for identifying
chemical facilities of interest. Does DHS have any mechanism by which
it can identify facilities which have not self-reported? How many
``outliers'' do you estimate exist?
Answer. Like many regulatory regimes, the first step in identifying
potentially regulated facilities is through self-reporting by members
of the affected population. In the case of CFATS, any facility that
possesses a threshold level of one or more chemicals of interest (COI)
established by the Department is required to submit a Top-Screen to the
Department.
DHS continues to undertake significant outreach at the National,
State, and local level to inform potentially regulated entities of
their requirements under CFATS and to ensure affected facilities submit
Top-Screens. This outreach includes thousands of engagements ranging
from presentations at large conferences, to briefings for pertinent
industry associations as well as individual meetings with facility
owners and operators. The Department has co-hosted an annual Chemical
Security Summit for the past 6 years with industry stakeholders, has
given joint presentations and conducted joint site visits with Federal
partners such as the U.S. Coast Guard, and has participated in
engagements with various State Homeland Security Advisors (HSA) and
other State and local security partners. The Department also has
participated in numerous meetings with Local Emergency Planning
Committees, Area Maritime Security Committees, Sector Coordinating
Councils, and Fusion Centers. These outreach efforts have contributed
to the ever-growing body of public information on CFATS, including
articles and blog postings that have been written since the CFATS final
rule was published in 2007.
As a result of these and other efforts, DHS has received over
44,000 Top-Screen submissions to date, roughly 4,300 of which have
resulted in the identification of facilities determined by the
Department to be high-risk. As the total number of chemical facilities
in the United States is both unknown and dynamic, the Department cannot
speculate on how many facilities should have submitted CFATS Top-
Screens but have intentionally or unknowingly failed to do so.
The Department has been working to address the issues of
identifying non-compliant actors since 2008. These efforts have
included:
A pilot program with the State HSAs from the States of New
Jersey and New York to identify potentially non-compliant
facilities within their respective States;
The creation of the CFATS Share tool, through which State
HSAs, appropriate DHS components, and other stakeholders have
access to data on the CFATS-regulated facilities within their
jurisdictions;
A pilot program to exchange data with the Environmental
Protection Agency (EPA) to identify facilities that, based on
their EPA Risk Management Plan (RMP) filings, likely should
have submitted a Top-Screen but failed to do so;
Analysis of the CFATS-regulated population to identify
communities from which the Department would have expected a
higher number of Top-Screen submissions, followed by targeted
outreach to the identified communities;
The development of a toll-free CFATS Tip Line through which
individuals can anonymously submit information on potential
security issues, to include potentially non-compliant
facilities; and,
A regional pilot program through which Chemical Security
Inspectors in a CFATS region review data maintained in EPA's
Computer Aided Management of Emergency Operations system and
other sources to identify facilities with threshold levels of
COI who had not submitted Top-Screens, followed by attempts to
contact each of the identified facilities.
These efforts resulted in the identification of a small number of
high-risk chemical facilities who previously had not self-reported to
CFATS. Several of these efforts were resource-intensive and were not
continued beyond the initial pilot efforts as the resources were
determined to be of greater use on other CFATS-related implementation
actions. Others, such as the CFATS Share tool and the CFATS Tip Line,
are still in use.
Question 2. To what do you attribute DHS's failure to identify all
facilities of interest, and what is DHS currently doing to correct this
critical deficiency?
Answer. The CFATS-regulated community is expansive and dynamic and
DHS is committed to pursuing all reasonable measures to identify
potentially noncompliant facilities and urge them toward compliance. In
order to further reduce the likelihood that potential high-risk
chemical facilities intentionally or unintentionally avoid
identification under the CFATS program, the Department is engaging in a
variety of efforts. The Department is reinvigorating coordination with
EPA and review of EPA RMP data to identify facilities that, based on
their EPA RMP filings, may possess threshold levels of CFATS COI but
have failed to submit a Top-Screen. This is being carried out in
conjunction with a larger effort being coordinated by the White House
to review chemical safety and security regulations across departments
and agencies for potential gaps in coverage and explore ways to
mitigate those gaps through existing authorities. DHS is also expanding
outreach efforts to target segments of the chemical sector with higher
likelihoods of potential non-compliance. In addition, the Department is
examining ways to more efficiently coordinate with other Federal,
State, and local entities to identify potentially non-compliant
facilities within their jurisdictions. These efforts would be in
addition to providing State HSAs and their designees with access to
information on CFATS-regulated facilities in their jurisdictions via
CFATS Share. Finally, the Department is continuing to operate its CFATS
Tip Line and follow up on any reports of potentially non-compliant
facilities submitted through the Tip Line.
Question 3. Does DHS share information with EPA, OSHA, and the
other Federal agencies responsible for chemical facilities oversight?
If so, to what extent? If not, why not?
Answer. The Infrastructure Security Compliance Division within the
Department, which administers the CFATS program, has shared CFATS-
regulated facility information with a variety of Federal partners
including EPA, the Federal Bureau of Investigation, the U.S. Coast
Guard, and the National Infrastructure Coordinating Center. The
information has ranged from comprehensive lists of all regulated
facilities to specific information on individual facilities, depending
on the circumstances surrounding the exchange of information. The
Department in coordination with the White House is exploring options,
for sharing appropriate CFATS-regulated facility information with the
Occupational Safety and Health Administration consistent with any
applicable information-handling protocols such as Chemical-terrorism
Vulnerability Information handling requirements.
Question 4. What is the relationship between DHS and State and
local authorities with regard to identifying and regulating chemical
facilities? Does DHS exchange information with local emergency planning
authorities? Does DHS play any role in educating first responders as to
handling chemical incidents?
Answer. Most States have one or more State or local authority
regulating various aspects of operations at chemical facilities,
ranging from workplace safety to emergency planning and security. Given
the myriad different regimes and approaches that States employ in
regulating chemical facilities, the Department primarily works through
the State HSAs; the State, Local, Territorial, and Tribal Government
Coordinating Council (SLTTGCC); and regional Fusion Centers to
coordinate CFATS-related activities with States. As noted above, this
has included a pilot program with representatives of the State HSAs for
New York and New Jersey to identify potentially non-compliant
facilities, as well as the dissemination of CFATS Share access to
multiple Fusion Centers and all State HSAs and their designees.
The Department also has engaged numerous local planning authorities
and routinely interacts with first responders across the country, with
the majority of those engagements focused on providing introductions to
and overviews or updates on the CFATS program. Starting in July 2012,
the Department began sharing lists of CFATS facilities with local
emergency responders upon request. Educating first responders on how to
handle chemical incidents, however, is outside of the scope of the
Department's CFATS authorities. Nevertheless, the CFATS program does
encourage facilities to have an active outreach program with their
community, local law enforcement, and emergency responders, to include
participation in Local Emergency Planning Committees and similar local
emergency responder-based organizations, and even looks for the
inclusion of such activities in a facility's SSP as one potential way
for the facility to comply in part with Risk-Based Performance
Standards (RBPS) 9--Response.
Question 5. Under CFATS, DHS is authorized to issue penalties for
noncompliance. DHS can even go so far as to order a noncompliant
facility to cease operations. To date, how many facilities has DHS
penalized for noncompliance? Has DHS penalized any outliers for failure
to submit a ``Top Screen?'' If not, how would you describe DHS's
effectiveness in enforcing compliance?
Answer. By statute and under the CFATS regulation, the Department
cannot issue a fine against a facility or direct it to cease operations
simply for failing to comply with the statute or regulations. Prior to
DHS issuing a penalty (monetary or cease operations), the Department
must issue an Administrative Order that identifies the specific steps
the facility must take to come into compliance and provide the facility
with a reasonable opportunity to correct its non-compliance. The
Department may only issue a civil penalty and/or direct a facility to
cease operations for violating a previously issued Administrative
Order.
To date, the Department has issued 66 Administrative Orders against
facilities that failed to submit a Site Security Plan in a timely
manner. The Department did not need to follow up with issuing a penalty
order in any of these instances because the facilities receiving the
Administrative Orders subsequently came into compliance in a timely
fashion or explained to the Department's satisfaction why the action
specified in the Administrative Order was not required for the facility
to be in compliance with CFATS. None of these Administrative Orders
were the result of a failure to submit a Top-Screen.
Question 6. The Ammonium Nitrate Security Program (ANSP) is a
proposed regulation developed by DHS in response to direction from
Congress to regulate the sale and transfer of ammonium nitrate by an
ammonium nitrate facility . . . to prevent the misappropriation or use
of ammonium nitrate in an act of terrorism.'' Implementation of this
program has been long delayed. Can you please update us on the status
of the ANSP?
Answer. The Department is continuing to adjudicate comments
received on the Ammonium Nitrate Security Program Notice of Proposed
Rulemaking issued in August 2011.
Question 7. Although CFATS is intended to regulate the security of
chemical facilities--as opposed to industrial safety--could CFATS
compliance have helped to mitigate the disaster at West Fertilizer in
any way?
Answer. The authority provided to the Department to develop
regulations is specifically focused on security at high-risk chemical
facilities and was not intended to help prevent or mitigate industrial
accidents arising from failure to meet applicable safety standards. At
this time, there is no indication that the West Fertilizer explosion
was a security incident. It should also be noted there is no certainty
whether West Fertilizer would be regulated under CFATS if the facility
had submitted a Top-Screen. Until more information is known, the
Department cannot speculate as to whether compliance with applicable
CFATS requirements would have helped to mitigate the disaster.
Generally, compliance with CFATS might help mitigate the
consequences of an incident like the West Fertilizer explosion. For
example, to comply with CFATS RBPS 9--Response, many CFATS-regulated
facilities will develop emergency response plans, establish emergency
notification systems, and/or implement safeguards that allow units
containing and/or using hazardous materials to safely shutdown in an
emergency. Similarly, in support of RBPS 11--Training, many facilities
conduct drills and exercises, including with local law enforcement or
first responders. While a CFATS-regulated facility is not required to
perform any of these activities and may propose other ways to comply
with the applicable RBPS, the activities covered under the applicable
RBPS may overlap with requirements administered under other Federal and
State regulatory regimes focused on safety and environmental
protection.
______
Letter Submitted for the Record
July 21, 2013.
The Honorable Janet Napolitano,
Secretary, U.S. Department of Homeland Security, Washington, DC 20528.
Dear Secretary Napolitano: In 2006, Congress authorized the
creation of the Chemical Facilities Anti-Terrorism Standards (CFATS)
program, to secure facilities with chemicals that ``present high levels
of security risk.'' The program's enacting statute directs the
Secretary of Homeland Security to issue ``regulations establishing
risk-based performance standards for security of chemical facilities
and requiring vulnerability assessments and the development and
implementation of site security plans for chemical facilities.'' (Pub.
L. 109-295 550).
While the interim final regulations issued in 2007 were faithful to
the legislation, implementation since then has fallen far short of what
the legislation and the regulations promised.
The Government Accountability Office (GAO),\1\ the Department of
Homeland Security (DHS) Office of Inspector General,\2\ and the DHS
Office of Infrastructure Protection itself \3\ have all recognized
that, over the past 5 years, DHS's ineffectual management and
implementation of the CFATS program has frustrated the Department's
critical mission to secure America's facilities containing chemicals of
interest. As the authorizers and appropriators of this program, we
write to you to express serious reservations about continuing to extend
CFATS funding without evidence of substantial programmatic improvement.
The basic programmatic building blocks of CFATS are missing, and we are
running short on both patience and confidence with regard to the
Department's ability to correct its deficiencies.
---------------------------------------------------------------------------
\1\ GOA-12-515T ``Critical Infrastructure Protection: DHS is Taking
Action to Better Manage its Chemical Security Program, but it is Too
Early to Assess Results.'' July 26, 2012.
\2\ OIG-13-55 ``Effectiveness of the Infrastructure Security
Compliance Division's Management Practices to Implement the Chemical
Facility Anti-Terrorism Standards Program.'' March 2013.
\3\ Memorandum from Penny Anderson, Director, Infrastructure
Security Compliance Division, Office of Infrastructure Protection and
David Wulf, Deputy Director to NPPD Under Secretary, Rand Beers:
``Challenges Facing ISCD, and the Path Forward.'' November 10, 2011.
---------------------------------------------------------------------------
Specifically, the risk evaluation system used to tier regulated
facilities is not consistent with the Department's basic standard, nor
with what Congress expected based upon the 2006 CFATS legislation and
the 2007 regulations. The Department's standard for risk requires that
threat, vulnerability, and consequence each be weighed. Yet, with
regard to CFATS-covered facilities, consequence is only partially
considered, while threat and vulnerability are not factored in at all.
Because CFATS, by law, is a risk-based program, this failure to develop
an accurate and effective risk evaluation system could not be more
problematic.
Despite this flawed risk methodology, thousands of facilities
across the country have attempted to comply with CFATS requirements by
submitting their initial risk assessment information (the ``Top
Screen''), and have been assigned a final tier. These facilities have
invested time and resources into the development of their site security
plans. Yet, GAO estimates it could take up to 9 years for the
Department to review these plans and certify each facility's security.
Within that time, technology changes, plans become outdated, and
facilities remain vulnerable to attack. The scope and pace of this
backlog is simply unacceptable.
Perhaps the most basic step toward achieving the security of
facilities with chemicals of concern is identifying those facilities
that are at risk. Yet, even here, the Department has failed to
implement an effective process. As the tragic explosion of the West
Fertilizer plant in April brought to light, DHS is unaware of the
existence of thousands of small facilities across the country that are
potentially covered under the statute. The identification of facilities
at risk of terrorist infiltration is the very foundation of the CFATS
program.
Additionally, we are concerned that it has been 5 years since
Congress passed section 563 of the Fiscal Year 2008 Department of
Homeland Security Appropriations Act (Pub. L. 110-161), which requires
DHS to regulate the sale and transfer of ammonium nitrate to prevent
the misappropriation or use of ammonium nitrate in an act of terrorism.
Although DHS published the Ammonium Nitrate Security Program Notice of
Proposed Rulemaking (NPRM) in the Federal Register in 2011, DHS has yet
to issue any guidance on the Ammonium Nitrate Security Program.
Unfortunately, problems with the Department's efforts to implement
these programs are not limited to those discussed here. As the
Chairmen, responsible for authorizing and funding CFATS, we are
convinced the program should not continue in its present condition.
While the need to secure American facilities with chemicals of concern
is a critical one, the CFATS program is simply not getting the job
done.
The Committees on Energy and Commerce and on Homeland Security, as
authorizes, did not object to the appropriation of funds to CFATS in
the Fiscal Year 2014 Homeland Security Bill because the House Committee
on Appropriations, in both its bill, and its accompanying Report,
requires the Department to formally justify its expenditures, create a
plan to reduce its backlog, and report to Congress on its progress to
correct some of its most serious shortcoming.
But these requirements will not be enough to justify the program in
the long term.
As discussed, we believe in the vital importance of seeming
America's facilities with chemicals of concern. Moreover, hundreds of
millions of American tax dollars have been spent on developing the
CFATS program, and private industry has spent billions of dollars
complying with it. Therefore, we would like to see the program
continue. However, what's most important is that the security mission
is fulfilled.
Over the course of this fiscal year, the Energy and Commerce
Committee and the Homeland Security Committee will continue the
rigorous oversight and strict guidance needed to get CFATS on track. We
intend to identify specific milestones the program must achieve in
order to establish its viability. Ultimately, we would like to consider
a multi-year reauthorization of CFATS--but only if it is the right
program for the job.
To begin with, we would like to see the National Protections and
Programs Directorate (NPPD) meet the requirements articulated in the
Appropriations Committee Report Language Accompanying H.R. 2217 (H.
Rept. 113-91). Among those requirements are the following:
(1) A report explaining how ISCD will further accelerate the review
process for facilities which have already been assigned a final
tier, reduce the current backlog of approximately 3,120
facilities, and detail the actions DHS is taking to better
manage its chemical security program, including its progress in
addressing the recommendations in the GAO report (GAO-13-353)
and in implementing the associated action plan. Please submit
this report not later than September 30, 2013.
(2) A report to focus on program implementation, and collaboration
and communication within the Infrastructure Security Compliance
Division (ISCD) and between ISCD and the regulated community.
Specifically, the review should address the following sets of
questions: 1. How will ISCD improve its facilities
identification methodology to include the full universe of
covered facilities in the United States? Is the ISCD sharing
information with State authorities overseeing CFATS-regulated
facilities, such as State Emergency Management Directors? 2. Is
the ISCD organized to efficiently and effectively carry out the
requirements detailed in Section 563 of Public Law 110-161
(ammonium nitrate security)? If not, what are the
organizational gaps? How should it be structured and staffed to
ensure effective execution of Section 563 of Public Law 110-
161? Does the program include the appropriate level of outreach
to address valid stakeholder concerns? What mechanisms are in
place to ensure consistent outreach? Additionally, the review
should include a comprehensive update on the status of the
corrective measures being taken to ensure that facilities with
chemicals of interest are notified by ISCD when they fall
within the purview of the CFATS program; an estimate of the
potential number of outlier facilities unaware of the CFATS
requirement; and a detailed performance evaluation of the
Chemical Security Inspectors within ISCD. This report should be
submitted not later than September 30, 2013.
We look forward to receiving these reports, and to working with
you to help secure our Nation against the risk of terrorism.
Sincerely,
Michael T. McCaul,
Chairman, Committee on Homeland Security.
Fred Upton,
Chairman, Committee on Energy and Commerce.
John Carter,
Chairman, Homeland Security Appropriations Subcommittee.
Mr. Meehan. Well, I thank you, Mr. Chairman. Again, for
your direct concern and presence in this. I know that you and I
have had numerous conversations. We have awaited the GAO report
and some further activity and a response from our original
letter. But I know as one who represents Texas, the numerous
times you have spoken to me about your own very genuine and
sincere personal interest in this issue, and I am pleased to
have been able to have this hearing and to have you participate
to the extent you may.
I am also very pleased and privileged to be able to share
the responsibility of this committee with the Ranking Minority
Member, the gentlelady from New York, Ms. Clarke, who did
inform me that she would likely be detained with some other
responsibilities prior to this. So what I will elect to do is
perhaps--well, here is Ms. Clarke, as she sits. But if she
chooses, she can jump in. Or what I would do is be happy to
introduce our witnesses, ask for your opening statements. At
the conclusion of the opening statements, I will recognize the
Ranking Member, enable her to make her opening statements, and
then we will move into the questions.
So I would identify for the other Members, committee
Members, reminding the opening statements may be submitted for
the record. Now, we are pleased to have two distinguished
panels of witnesses before us today on this important topic. I
am going to introduce the first panel, and then recognize each
of you for your testimony.
Our first witness is Mr. David Wulf, the director of the
Infrastructure Security Compliance Division within the National
Protection and Programs Directorate at the Department of
Homeland Security. In essence, Mr. Wulf is the principle person
at DHS who oversees this program, and we are grateful for your
presence here today. As the director, Mr. Wulf helps the ISCD
lead National efforts to implement the collaborative security
planning and assess high-risk chemical facilities as well as
assisting DHS in creating regulations for detonable ammonium
nitrate products.
Mr. Stephen Caldwell is the director of the Government
Accountability's Office Homeland Security and Justice team.
Thank you, nice to see you again, Mr. Caldwell. It has been a
busy week. We had the chance to share some time together
yesterday with some very good work Mr. Caldwell has done on one
of the other issues we were dealing with the Coast Guard. Mr.
Caldwell's focus has been related to protecting critical
infrastructure and promoting resiliency. He recently raised
concerns about the risk assessment process used by the ISCD in
assessing terrorist risk to the 3,500 chemical facilities under
the CFATS program.
So I thank you both for being here. Your full written
statements will appear in the record, but I recognize you now
for 5 minutes to testify. So Mr. Wulf, thank you for being here
and I turn to you first.
STATEMENT OF DAVID WULF, ISCD DIRECTOR, NATIONAL PROTECTION AND
PROGRAMS DIRECTORATE, U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. Wulf. Thank you, Chairman Meehan.
Mr. Meehan. Mr. Wulf, we need you to push the button.
Mr. Wulf. Thank you so much. Thank you, Chairman Meehan,
Chairman McCaul, Ranking Member Thompson, Ranking Member
Clarke, and distinguished Members of the subcommittee for the
opportunity to appear before you today.
My team and I, and our colleagues across the Department,
are absolutely committed to preventing incidents like the
tragic explosion at West, Texas. Our hearts go out to the
families of the heroic first responders and the people of the
West community as they recover.
Although it doesn't appear that this incident was the
result of a terrorist act, we have been working with our
interagency partners and our industry stakeholders to find
solutions that will prevent these types of disasters in the
future. Today, I want to highlight the progress the CFATS
program has made and how we have moved forward on several
fronts since the explosion at the West, Texas fertilizer in
April of this year. While the CFATS program has had its
challenges, we have made significant strides over the past
year.
We have developed improved policies and training to ensure
that inspections are conducted in a consistent and thorough
fashion. We have implemented an effective, streamlined site
security plan review process which has greatly enhanced our
ability to authorize and, as appropriate, grant approval for
security plans. We have authorized 589 site security plans and
granted final approval for 182 of those; most of those in the
highest-risk categories, Tiers 1 and 2. Reviews and
authorizations of Tier 3 site security plans are now underway,
as well, and I am very proud of the pace at which our staff is
operating.
I do recognize, however, that we must continue to find ways
to become more efficient and effective in our inspection NSSP
review processes. We are looking closely at options to
streamline the review and approval cycle for facilities in
Tiers 3 and 4, and are soliciting stakeholder input on how to
do so.
I do anticipate that alternative security program templates
will be an important tool to enhance the efficiency of our
reviews. The American Chemistry Council recently worked with us
to develop an ASP template, and we continue to work with
industry associations such as SOCMA, AFPM, and NACD, who have
been considering the adoption of ASP templates for their member
companies.
I expect you will hear from our industry stakeholders that
they have seen progress and improvements in the program, as
well. We remain committed to working with stakeholders and with
Congress on a path forward so that the CFATS program continues
to improve. Engagement with industry is absolutely critical to
the success of CFATS. Since the program's inception, we have
conducted extensive outreach with industry, resulting in the
submission of more than 44,000 Top Screens. Chemical security
is a shared responsibility, and we feel very strongly that our
private-sector stakeholders are key to our efforts to implement
the program.
Enhancing security across the chemical sector is not
something a single company, industry, or even Government can do
by itself. I am very grateful to our stakeholders for the hard
work they have put into fostering security at America's
highest-risk chemical facilities. In our engagements with
industry stakeholders since the West, Texas explosion we have
all agreed that we must work together to prevent future
incidents. Industry has offered to further spread our message
and to do its part to promote safety and security at chemical
facilities.
Recently, associations such as the Fertilizer Institute and
Agricultural Retailers Association have played a critical role
in our outreach efforts facilitating our outreach to State-
level agricultural association executives. First responders are
also a critical part of chemical safety and security Nation-
wide. It is absolutely essential that we continue to engage
with them through the CFATS program. Our past efforts include
sharing lists of CFATS facilities with local responders, as
well as disseminating outreach material targeted at members of
the emergency response community.
The CFATS program will continue to encourage facilities to
conduct their own outreach to responders. I would also like to
recognize the perspectives that GAO has offered us on the CFATS
risk-tiering methodology and on stakeholder outreach
activities. As part of our commitment to continue moving the
CFATS program forward, we are reviewing our risk assessment
process, including through the conduct of an external peer
review. We expect the peer review to provide input on how we
can enhance the CFATS tiering model as appropriate in a fashion
that comports with the practical realities of implementing the
program.
We are also committed to meeting the challenge of
identifying facilities that have not reported threshold
quantities of chemicals of interest. From the early days of the
CFATS program, DHS recognized that it would be a challenge to
identify and find every failure with chemicals of interest.
Over the years, we have undertaken and continue to support
extensive outreach and industry engagement to ensure that non-
exempt facilities that possess threshold levels of chemicals of
interest comply with their Top Screen submission requirements.
Since the West explosion, we have committed to doubling down on
these efforts, and working with partners at Federal and State
agencies, and with industry, to identify non-compliant
facilities.
It is also important to note that improving chemical
facility safety and security is a priority for this
administration. That is why the President today signed an
Executive Order to improve the safety and security of chemical
facilities and to reduce the risks of hazardous chemicals to
workers and communities. The Executive Order directs Federal
agencies to improve coordination with State, local, and Tribal
partners, including first responders; to collaborate on
innovative approaches to inspections, enforcement, incident
investigation and identification of high-risk facilities, as
well as enhancing the collection and sharing of chemical
facility information; and also to modernize policies,
regulations, and standards to improve chemical safety and
security, including by examining new options to address the
safe and secure storage, handling, and sale of ammonium
nitrate.
So these coordinated efforts will compliment many of the
individual efforts being taken within the Department and across
other Federal departments and agencies following the tragic
events in West, Texas. This issue is a priority for the
administration, and will continue to be in the future as we
focus on building on steps already underway to mitigate
chemical risks. In closing, I would like to note that the
Department supports a permanent authorization for the CFATS
program. We firmly believe that permanent authorization will
provide industry with the necessary stability to move forward
in effectively implementing CFATS.
It will send a clear message to facilities that may be
seeking to avoid their obligation to report dangerous chemicals
that the CFATS program is here to stay. We are gratified to
hear our industry stakeholders say the same. The Department has
turned a corner on the CFATS program. As we implement CFATS, we
will continue to work with stakeholders to get the job done of
preventing terrorists from exploiting chemicals or chemical
facilities. We do firmly believe that CFATS is making the
Nation more secure by reducing the risks associated with our
Nation's chemical infrastructure. Along with our stakeholders,
we are committed to its success.
Thank you for the opportunity to be here today. I look
forward to answering any questions you may have.
[The prepared statement of Mr. Wulf follows:]
Prepared Statement of David Wulf
August 1, 2013
Thank you, Chairman Meehan, Ranking Member Clarke, and
distinguished Members of the subcommittee. I appreciate the opportunity
to appear before you today to discuss the Department of Homeland
Security's (DHS) regulation of high-risk chemical facilities under the
Chemical Facility Anti-Terrorism Standards (CFATS). Over the past year,
the CFATS program has made significant progress, advancing
programmatically while simultaneously addressing internal operational
concerns. The Department remains committed to working with stakeholders
and with Congress on a path forward so that the CFATS program continues
to improve. Today I will focus on the progress made over the last year-
and-a-half, as well as activities undertaken since the explosion at the
West Fertilizer Company in April 2013.
The CFATS program has made our Nation more secure by identifying
and regulating high-risk chemical facilities to ensure they have
security measures in place to reduce the risks associated with their
possession of chemicals of interest. CFATS has also played a role in
reducing the number of high-risk chemicals, as more than 3,000
facilities have eliminated, reduced, or modified their holdings of
certain chemicals of interest. The significant reduction in the number
of chemical facilities that represent the highest risk is an important
success of the CFATS program and is attributable both to the design of
the program as enacted by Congress and to the work of CFATS personnel
and industry at thousands of chemical facilities. I welcome the
opportunity to work with stakeholders to further improve this vital
National security program.
The National Protection and Programs Directorate (NPPD)
Infrastructure Security Compliance Division (ISCD) continually
evaluates the program to identify areas for improvement to ensure
proper implementation. Through ISCD's comprehensive Action Plan, we
have identified and acted decisively to address areas in which
improvements to the CFATS program and associated supporting activities
were warranted. As of July 15, 2013, 90 of the 95 action items
contained in the current Action Plan have been completed. In fact, this
spring, the DHS Office of the Inspector General (OIG) issued a report
on ISCD progress, which examined many of the program's historic
challenges. The OIG report confirmed what we had made efforts to
correct through the Action Plan--23 of the 24 Recommendations were
deemed resolved. Now that the Department has concluded this period of
internal improvements, programmatic processes and structures are in
place so we can focus our efforts on implementing the program.
As you are aware, the Department's current statutory authority to
implement CFATS--Section 550 of the Fiscal Year 2007 Department of
Homeland Security Appropriations Act, as amended--currently extends
through October 4, 2013. DHS recognizes the significant work that the
subcommittee and others have undertaken to reauthorize the CFATS
program. The Department supports a permanent authorization for the
CFATS program and is committed to working with Congress and other
security partners to establish a permanent authority for the CFATS
program in Federal law. We firmly believe permanent authorization will
provide industry with the necessary stability to move forward in
effectively implementing CFATS and will send a clear message to
facilities that may be seeking to avoid their obligation to report
dangerous chemicals that the CFATS program is here to stay.
cfats implementation progress
The cornerstone of the CFATS program in regulating the security of
high-risk chemical facilities is the development, submission, and
implementation of Site Security Plans (SSPs), or Alternative Security
Programs (ASPs) in lieu of SSPs, which document the security measures
that high-risk chemical facilities utilize to satisfy the applicable
Risk-Based Performance Standards (RBPS) under CFATS. It is important to
note that these plans are not ``one size fits all,'' but in-depth,
highly customized, and dependent on each facility's unique
circumstances.
STATUS OF CFATS-REGULATED FACILITIES
----------------------------------------------------------------------------------------------------------------
Received Authorized Authorization Approved
Tier* Total No. of Final SSPs and Inspection SSPs and
Facilities Tier ASPs Conducted ASPs
----------------------------------------------------------------------------------------------------------------
1............................................. 125 113 103 85 63
2............................................. 457 367 202 176 91
3............................................. 1,228 1,017 230 97 6
4............................................. 2,426 1,865 1 0 0
-----------------------------------------------------------------
Total................................... 4,298 3,362 536 358 160
----------------------------------------------------------------------------------------------------------------
* As of July 15, 2013.
In order to determine whether a facility is regulated under CFATS,
the facility uses the web-based Chemical Security Assessment Tool
(CSAT), to submit a Top-Screen to ISCD. Since we began collecting this
information in 2007, ISCD has data from more than 44,000 Top-Screens
submitted by chemical facilities, providing important information about
their chemical holdings. Based on the information received in the Top-
Screens, ISCD identified more than 8,500 facilities that were initially
designated as high-risk facilities potentially regulated by CFATS.
These facilities then compiled and submitted Security Vulnerability
Assessments, which are used by ISCD to identify which facilities
present a terrorism risk that is sufficiently high to warrant the
assignment of a final high-risk tier under CFATS.
As of July 15, 2013, CFATS covers 4,298 high-risk facilities
Nation-wide; of these, 3,362 have received final high-risk tier
determinations and are required to develop SSPs (or ASPs) for ISCD
review. The remaining facilities are awaiting final tier determinations
based on their Security Vulnerability Assessment submissions. The
tiered population is dynamic and subject to change, depending on the
conditions at facilities.
As a part of our commitment to continue moving the CFATS program
forward, NPPD is conducting a thorough review of the risk assessment
process. In support of this, NPPD has implemented a phased approach,
which is captured in the ISCD Action Plan and includes: Documenting all
processes and procedures relating to the risk assessment methodology;
conducting an internal NPPD review of the risk assessment process; and
initiating an external peer review of the risk assessment methodology.
We expect the peer review to provide input on how DHS can enhance the
CFATS tiering models as appropriate. ISCD continues to issue final tier
notifications to facilities across all four risk tiers. Facilities that
receive a final high-risk determination are notified of the requirement
to complete and submit an SSP or an ASP. Tiering determinations are
dynamic and can change based on actions a facility takes. For example,
a tiering determination can change when a facility voluntarily alters
its operations in a material way that reduces its risk profile.
Inspections.--ISCD is currently carrying out authorization
inspections for Tier 1, 2, and 3 facilities. Authorization inspections
are scheduled after ISCD's review of an SSP (or ASP) results in a
preliminary determination that the SSP satisfies applicable RBPS and
issues a Letter of Authorization. From Fall 2011 to Spring 2012, ISCD
updated and revised its internal inspections policy and guidance
materials for conducting inspections. After releasing the updated
guidance materials, inspector training sessions were conducted, which
focused on the updated policy, procedures, and related materials to
better prepare Chemical Security Inspectors to resume authorization
inspections. Since resuming authorization inspections in July 2012,
ISCD has conducted more than 350 authorization inspections. The
authorization inspection results, as well as any further revisions that
the facility may make to the SSP (or ASP), are reviewed to make a final
determination as to whether the facility's SSP satisfies the applicable
RBPS and whether to issue a Letter of Approval. ISCD anticipates that
we will complete the approvable Tier 1 security plans by first quarter
fiscal year 2014 and approvable Tier 2 security plans by third quarter
fiscal year 2014. Once issued a Letter of Approval, the facility must
implement the security measures detailed in the SSP (or ASP). ISCD has
made great strides in improving our inspection process over the past
year, and we continue to identify efficiencies to keep moving forward.
In September 2013, ISCD plans to begin conducting compliance
inspections for facilities with approved SSPs. These inspections will
generally be conducted approximately 1 year after their SSPs were
approved.
a shared responsibility
We feel strongly that our private-sector partners are key to our
efforts to enhance data sharing, increase cross-training, and identify
areas for possible regulatory changes as well as identifying possible
gaps in existing statutory authorities. Enhancing security and building
resilience across the chemical sector is not something a single
company, industry, or even Government can do by itself. This has to be
a collaborative effort. It also has to be a comprehensive effort,
because of the sheer complexity of the sector, its linkages to other
sectors, and the potential cascading effects and consequences of a
significant attack or disruption.
Since the West, Texas tragedy, we have engaged with numerous
members of industry and all have agreed that we must work together to
prevent future incidents. Industry has offered to spread our message
and do their part to promote safety and security at chemical
facilities. The Department appreciates this support and looks forward
to working with industry and our Government partners to carry out these
activities. We've made a lot of progress in advancing chemical security
in this country, though we still have a lot of work to do. We must
remain steadfast in our commitment to continue to collectively identify
and develop programs that improve our security posture.
outreach to stakeholders
Industry Engagement and Information Sharing.--Since the
establishment of the CFATS program in April 2007, NPPD has conducted
significant outreach to the regulated community and other interested or
affected entities so that they are aware of the program's requirements.
NPPD and ISCD management and staff have presented at hundreds of
security and chemical industry gatherings and participated in a variety
of other meetings. As part of this outreach initiative, NPPD and ISCD
leadership have regularly updated affected sectors through their Sector
Coordinating Councils and the Government Coordinating Councils--
including the Chemical, Oil and Natural Gas, and Food and Agriculture
Sectors. To promote information sharing, ISCD has developed several
communication tools for stakeholder use, including: The Chemical
Security website (www.DHS.gov/chemicalsecurity); a help desk for CFATS-
related questions; a CFATS tip-line for anonymous chemical security
reporting; and CFATS-Share, a web-based information-sharing portal that
provides certain Federal, State, and local agencies access to key
details on CFATS facility information as needed.
Compliance Assistance and Facility Outreach.--Chemical Security
Inspectors provide assistance and outreach directly to facilities. At
any point in the CFATS process, a facility can request a Compliance
Assistance Visit to provide support in preparing the necessary
security-related documentation required under CFATS. During these
visits, chemical inspectors offer compliance and technical assistance
in the completion of the CSAT registration, Top Screen, Security
Vulnerability Assessment, or Site Security Plan. As of July 15, 2013,
ISCD has conducted more than 1,260 Compliance Assistance Visits. In
addition to conducting inspections and supporting Compliance Assistance
Visits at regulated facilities, NPPD's chemical inspectors actively
work with facilities, local stakeholders, and governmental agencies
across the country. Collectively, they have participated in more than
5,260 meetings with Federal, State, and local officials; held more than
4,680 introductory meetings with owners and operators of CFATS-
regulated or potentially regulated facilities.
Engaging First Responders.--The Department also has engaged
numerous local emergency planning committees and routinely interacts
with first responders across the country. Additionally, starting in
July 2012, the Department began, upon request, sharing lists of CFATS
facilities with local emergency responders. The Department has also
developed and disseminated outreach material targeted at members of the
emergency response community, and encourages facilities to conduct
their own outreach to their community, local law enforcement, and
emergency responders, to include participation in Local Emergency
Planning Committees and similar local emergency responder-based
organizations. To satisfy CFATS RBPS-9 (Response), a high-risk facility
generally will be expected to maintain and exercise an emergency plan
to respond to security incidents internally and with the assistance of
local law enforcement and first responders. Finally, DHS, the
Environmental Protection Agency (EPA), and the State of New Jersey
recently convened a meeting with representatives from approximately 25
fire stations within New Jersey to discuss their level of preparedness
to respond to an incident at a chemical facility within their
jurisdiction and identify both potential ways to increase their
preparedness and lessons learned that can be shared with other fire
departments.
early efforts to identify non-compliant facilities
The first step in identifying potentially regulated facilities is
through self-reporting by members of the affected population. Under the
CFATS, any facility that possesses a threshold level of one or more
chemicals of interest established by the Department is required to
submit a Top-Screen to DHS. Throughout the existence of CFATS, DHS has
undertaken and continues to support extensive outreach and industry
engagement to ensure that non-exempt facilities that possess threshold
levels of chemicals of interest comply with their Top-Screen submission
requirements. These activities have, in concert with the efforts of our
industry stakeholders, accounted for the significant number of Top-
Screens industry members have submitted to date. The CFATS-regulated
community, however, is expansive and dynamic, and, like many other
regulators, the Department must be able to count on facilities that
possess threshold levels of chemicals of interest to meet their
reporting obligations under CFATS. DHS is committed to pursuing all
reasonable measures to identify potentially non-compliant facilities,
encouraging and assisting them in coming into compliance, and, where
appropriate, using the enforcement mechanisms available to DHS to bring
any non-compliant facilities into compliance.
Since the inception of CFATS, DHS has undertaken efforts to
identify facilities that should have submitted a Top-Screen but have
failed to do so. Beginning in the summer of 2008, ISCD identified
multiple approaches to identifying and contacting facilities that were
potentially non-compliant for failure to submit a Top-Screen,
including:
A pilot program with the State Homeland Security Advisors
(HSAs) from New York and New Jersey to identify potentially
non-compliant facilities within their respective States;
Exchanges of data with the EPA in an attempt to identify
facilities that, based on filings submitted pursuant to EPA
regulations, likely should have submitted a Top-Screen but
failed to do so;
An analysis--by industry segment/sector and chemical of
interest--of the CFATS-regulated population to identify
communities from which the Department would have expected a
higher number of Top-Screen submissions, followed by targeted
outreach to the identified communities;
The creation of the CFATS-Share tool, through which State
HSAs, appropriate DHS components, and other stakeholders have
access to data on the CFATS-regulated facilities within their
jurisdictions;
The development of a toll-free CFATS Tip Line through which
individuals can anonymously submit information on potential
security issues, to include facilities that may have failed to
submit a required Top-Screen;
A regional pilot program through which Chemical Security
Inspectors in one CFATS region reviewed data maintained in
EPA's Computer Aided Management of Emergency Operations system
and other sources to identify facilities with threshold levels
of chemicals of interest who had not submitted Top-Screens.
These efforts resulted in the identification of a small number of
chemical facilities that failed to submit a Top-Screen as required
under CFATS. Several of these efforts were resource-intensive, however,
and were not continued beyond the initial pilot efforts as the
Division's resources were determined to be of greater use on other
CFATS-related implementation actions. Others, such as the CFATS-Share
tool and the CFATS Tip Line, are still in use.
re-focused efforts to identify non-compliant facilities
Following the explosion at West, Texas, the Department, in
coordination with other Federal agencies, has reinvigorated some of the
efforts mentioned above and is exploring other potentially cost-
effective means for identifying facilities that should have submitted a
Top-Screen.
Interagency Data Sharing.--One effort involves the review of EPA
data under the Risk Management Plan (RMP) program to identify
facilities that, based on their EPA RMP submissions, appear likely to
possess a threshold amount of one or more CFATS chemicals of interest
but have not submitted a Top-Screen to DHS. To facilitate this effort,
EPA and DHS both have provided updated lists of facilities (in EPA's
case, the list of RMP facilities; in DHS' case, the list of facilities
that have completed a CFATS Top-Screen) to Oak Ridge National
Laboratory (ORNL), which developed a set of heuristics to rate possible
matches based on several categories including facility name, address,
latitude/longitude, EPA Identification Number, and facility owner/
operator. The initial matching process was completed in June, and ORNL
has provided DHS with lists of facilities that, based on their filings
with one of the two entities, potentially should have submitted a
filing to the other entity but appear to have failed to do so. ISCD
reviewed the lists to attempt to identify and remove exempted
facilities and thereafter contacted through written correspondence the
non-exempt facilities identified through this effort to inform them
about their potential obligation to submit a Top-Screen.
Even though ISCD previously had limited access to EPA data in late
2008 through a database with information from EPA regulations,
differences between the DHS and EPA datasets and taxonomy made it
difficult to cross-walk the data in an efficient manner. As a result of
the Action Plan implementation, ISCD has realigned its organizational
structure and created a branch dedicated to information technology
operations. The Division is now in a much better position to utilize
the information provided by EPA to successfully compare large
quantities of data to identify potential matches and inconsistencies.
Depending on the results of the on-going crosswalk of EPA RMP data and
CFATS data and available resources, a determination will be made on how
often to repeat this effort. DHS is also looking at similar efforts
involving the Department of Labor's Occupational Safety and Health
Administration (OSHA) and data regarding Federal explosives licensees
and permittees that has been shared by the Department of Justice's
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and facility
data that has been shared by the State of Texas.
Outreach to State and Local Officials and Chemical Industry.--Most
States have at least one State or local authority regulating various
aspects of operations at chemical facilities, ranging from workplace
safety to emergency planning to security. Given the myriad regimes and
approaches that States employ in regulating chemical facilities, the
Department primarily works through the State HSAs; the State, Local,
Territorial, and Tribal Government Coordinating Council; and State and
major urban area fusion centers to coordinate CFATS-related activities
with States. Following the incident at West, Texas, we have also
initiated steps aimed at increasing information-sharing efforts with
various State and local partners, as well as increased outreach to the
chemical industry and State and local first responders. ISCD has
expanded efforts to reach State and local officials, including in-
person meetings with State HSAs.
chemical facility safety and security improvement
Following the explosion in West, Texas, the administration has
taken a number of steps to try to reduce the likelihood that incidents
like this occur in the future. Federal agencies are exploring potential
areas for improvement in existing chemical facility safety and security
oversight and working to identify and implement steps to ensure that
facilities such as West Fertilizer are identified and complying with
their chemical safety and security regulatory responsibilities. We have
already identified a number of potential activities, including:
Improving operational coordination with State and local
partners;
Enhancing Federal coordination;
Enhancing information collection and sharing;
Policy, regulation, and standards modernization;
Identification of best practices.
These coordinated efforts will help ensure that the Federal
Government most effectively uses the collective resources available to
us for managing chemical risk. These activities complement many of the
individual efforts being taken within the Department, and other Federal
departments and agencies, following the tragic events in West, Texas.
Should the effort result in proposals for legislative action, we will
look forward to working with you to achieve those recommendations. This
issue area is a priority for the administration, and will continue to
be in the future as we focus on building on steps already underway to
mitigate risks.
ammonium nitrate security program
In addition to carrying out the CFATS program, ISCD also is working
to implement the Ammonium Nitrate Security Program. The Department is
continuing to adjudicate comments received on the Ammonium Nitrate
Security Program Notice of Proposed Rulemaking issued in August 2011
and is developing a final rule. The authorizing statute provides the
Department with the authority to require individuals engaging in the
purchase, sale, or transfer of ammonium nitrate to register with the
Department and submit to vetting against the Terrorist Screening
Database, and requires facilities transferring or selling ammonium
nitrate to maintain records on such sales and transfers and report any
identified thefts or losses of ammonium nitrate to appropriate
authorities.
funding reductions
The Department is reevaluating the methods and resources dedicated
towards encouraging facility self-reporting and identifying facilities
that, intentionally or unintentionally, fail to comply with their Top-
Screen reporting requirements. However, the expanded efforts noted
above must be conducted using current resources while ISCD continues
its progress towards security plan inspections and approvals. The House
Appropriations Committee has proposed a reduction in funding to ISCD
for fiscal year 2014. With this proposed reduction, the Division's
capability to implement and enforce the CFATS regulations, which
include activities to identify non-compliant facilities, would be
adversely impacted. The Department asks for the subcommittee's
continuing support in providing adequate resources to successfully
carry out this essential mission.
conclusion
The Department has turned a corner on the CFATS program. We are
moving forward strategically to address the challenges before us. As we
implement CFATS, we will continue to work with stakeholders to get the
job done of preventing terrorists from exploiting chemicals or chemical
facilities. I firmly believe that CFATS is making the Nation more
secure by reducing the risks associated with our Nation's chemical
infrastructure and we are--along with our stakeholders--committed to
its success.
Mr. Meehan. Thank you, Mr. Wulf.
The Chairman now recognizes Mr. Caldwell for his testimony.
STATEMENT OF STEPHEN L. CALDWELL, DIRECTOR, HOMELAND SECURITY
AND JUSTICE, U.S. GOVERNMENT ACCOUNTABILITY OFFICE
Mr. Caldwell. Chairman Meehan, thank you. It is good to see
you again today. Ms. Clarke, and also to Mr. Thompson and Mr.
McCaul, who were here earlier, thank you for inviting GAO here
today to talk about chemical security and, particularly, the
issue of the outliers such as in West, Texas. I would like to
also express my sympathies to the community in West, Texas for
the disaster. My written testimony summarizes some of the
earlier work we had done on CFATS. I now also try to focus on
some of the issues that came out related to the issue
specifically related to outliers.
Since we issued our 2013 report on April 5, just one week
before the explosion in West, Texas, we have continued to
monitor the situation, including some discussions with DHS
about some of the steps they are taking, some of which Mr. Wulf
has already outlined. But let me briefly summarize our April
report, and then describe some of those key points related to
the outliers. Regarding risk assessments by both DHS and GAO--
have well-established criteria for risk assessments. Some
aspects of those were not followed closely in developing the
CFATS program.
This has already been mentioned. Maybe one of the key
examples there is that vulnerability aspect of risk assessment
is not applied until later in the process. In terms of the
security plan reviews, we found that DHS had a cumbersome
process and a backlog of unapproved plans. As mentioned, they
have now streamlined that process to do this. But I think it
will still take several years to finish those inspections on
the facilities that have been tiered so far.
Regarding outreach to industry, we found that the CFATS
program had increased its efforts for such outreach. Much of
that outreach was focused on the major National trade
associations, which will generally represent the larger
chemical facilities. Nevertheless, the CFATS program could be
more systematic in monitoring the effectiveness of some of that
outreach. Now I would like to make three points based on the
experience we had reviewing CFATS that may be contributed to
the existence of the outlier issue that we are discussing here
today.
I think my first point is that the CFATS regulatory regime
in general is based on self-reporting. Facilities start that
process by reporting their chemical holdings, reporting these
to DHS for the risk assessment, and that is how it starts with
the Top Screen assessment. For facilities such as one of these
outliers does not report, basically nothing happens. Also
related to the self-reporting, it is not until well along in
the process--which could be months or even years--before DHS
would actually inspect the facility to verify the information
that has been reported to it.
To the extent that DHS prioritizes inspections for the
highest-risk sites, these are not likely to be the kind of
facilities such as those in West, Texas. The second point I
would like to make is that the reliance on self-reporting that
I just mentioned makes the outreach process even more
important. So the explosion in West, Texas indicates a need for
outreach to maybe the smaller associations to get to those
smaller facilities and maybe even some direct outreach to such
facilities. The explosion may also indicate a need for more
coordination between DHS and other Federal agencies, as has
been discussed here, to maybe help those other agencies;
particularly some of the State or local agencies that may have
information on some of these outlier facilities that are off
the grid, at least in terms of CFATS' visibility.
My third point is that the initial risk assessment done by
DHS to categorize the facilities into risk tiers is based very
heavily on consequences, and very specifically on the number of
casualties, which would tend to favor the more urban
population-dense areas. So it is quite feasible that even if a
facility, the facility in West, Texas did report its chemical
holdings, and that if those quantities exceeded CFATS'
reporting thresholds, that DHS would not necessarily have
categorized it as a high-risk facility. Thus it would not have
had to go through the process to develop a vulnerability
assessment and security plan.
So in closing, certainly late-breaking news such as Mr.
Wulf's update on today's new Executive Order, certainly provide
positive steps toward improved Federal coordination and maybe
expanded identification of outlier facilities. But I will be
happy to respond to any questions now.
Thank you.
[The prepared statement of Mr. Caldwell follows:]
Prepared Statement of Stephen L. Caldwell
August 1, 2013
gao highlights
Highlights of GAO-13-801T, a testimony before the Subcommittee on
Cybersecurity, Infrastructure Protection, and Security Technologies,
Committee on Homeland Security, House of Representatives.
Why GAO Did This Study
Facilities that produce, store, or use hazardous chemicals could be
of interest to terrorists intent on using toxic chemicals to inflict
mass casualties in the United States. As required by statute, DHS
issued regulations that establish standards for the security of high-
risk chemical facilities. DHS established the CFATS program to assess
the risk posed by these facilities and inspect them to ensure
compliance with DHS standards. ISCD, which manages the program, places
high-risk facilities in risk-based tiers and is to conduct inspections
after it approves facility security plans. This statement summarizes
the results of GAO's April 2013 report on the extent to which DHS: (1)
Assigned chemical facilities to tiers and assessed its approach for
doing so, (2) revised its process to review facility security plans,
and (3) communicated and worked with owners and operators to improve
security. GAO reviewed DHS reports and plans on risk assessments,
security plan reviews, and facility outreach and interviewed DHS
officials. GAO also received input from 11 trade associations
representing chemical facilities, about ISCD outreach. The results of
this input are not generalizable but provide insights.
What GAO Recommends
In its April 2013 report, GAO recommended that DHS enhance its risk
assessment approach to incorporate all elements of risk, conduct a peer
review after doing so, and explore opportunities to gather systematic
feedback on facility outreach. DHS concurred with the recommendations
and has actions underway to address them.
critical infrastructure protection.--dhs needs to improve its risk
assessments and outreach for chemical facilities
What GAO Found
In April 2013, GAO reported that, since 2007, the Department of
Homeland Security's (DHS) Infrastructure Security Compliance Division
(ISCD) assigned about 3,500 high-risk chemical facilities to risk-based
tiers under its Chemical Facility Anti-Terrorism Standards (CFATS)
program, but it has not fully assessed its approach for doing so. The
approach ISCD used to assess risk and make decisions to place
facilities in final tiers does not consider all of the elements of
consequence, threat, and vulnerability associated with a terrorist
attack involving certain chemicals. For example, the risk assessment
approach is based primarily on consequences arising from human
casualties, but does not consider economic consequences, as called for
by the National Infrastructure Protection Plan (NIPP) and the CFATS
regulation, nor does it consider vulnerability, consistent with the
NIPP. ISCD had taken some actions to examine how its risk assessment
approach could be enhanced, including commissioning a panel of experts
to assess the current approach and recommend improvements. In April
2013, GAO reported that ISCD needed to incorporate the results of these
efforts to help ensure that the revised assessment approach includes
all elements of risk. After ISCD has incorporated all elements of risk
into its approach, an independent peer review would provide better
assurance that ISCD can appropriately identify and tier chemical
facilities, better inform CFATS planning and resource decisions, and
provide the greatest return on investment consistent with the NIPP.
GAO also reported that DHS's ISCD has revised its process for
reviewing facilities' site security plans--which are to be approved
before ISCD performs compliance inspections. The past process was
considered by ISCD to be difficult to implement and caused bottlenecks
in approving plans. ISCD viewed its revised process to be an
improvement because, among other things, teams of experts reviewed
parts of the plans simultaneously rather than sequentially, as occurred
in the past. ISCD intends to measure the time it takes to complete
reviews, but will not be able to do so until the process matures. GAO
estimated that it could take another 7 to 9 years before ISCD is able
to complete reviews on the approximately 3,120 plans in its queue at
the time of GAO's review. Thus, the CFATS regulatory regime, including
compliance inspections, would likely be implemented in 8 to 10 years.
ISCD officials said that they are exploring ways to expedite the
process such as streamlining inspection requirements.
Furthermore, GAO reported that DHS's ISCD has also taken various
actions to work with owners and operators, including increasing the
number of visits to facilities to discuss enhancing security plans, but
trade associations that responded to GAO's query had mixed views on the
effectiveness of ISCD's outreach. ISCD solicits informal feedback from
facility owners and operators on its efforts to communicate and work
with them, but it does not have an approach for obtaining systematic
feedback on its outreach activities. GAO found that ISCD's on-going
efforts to develop a strategic communication plan may provide
opportunities to explore how ISCD can obtain systematic feedback on
these activities. A systematic approach for gathering feedback and
measuring the results of its outreach efforts could help ISCD focus
greater attention on targeting potential problems and areas needing
improvement.
Chairman Meehan, Ranking Member Clarke, and Members of the
subcommittee: I am pleased to be here today to discuss the findings
from our April 2013 report on the Department of Homeland Security's
(DHS) efforts to address the various challenges in implementing and
managing the Chemical Facility Anti-Terrorism Standards (CFATS)
program.\1\ Chemicals held at facilities that use or store hazardous
chemicals could be used to cause harm to surrounding populations during
terrorist attacks, and could be stolen and used as chemical weapons,
such as improvised explosive devices, or as the ingredients for making
chemical weapons. Earlier this year, ammonium nitrate--one of the
chemicals covered by the CFATS program--detonated during a fire at a
fertilizer storage and distribution facility in West, Texas. The
preliminary findings of an investigation by the U.S. Chemical Safety
Board (CSB) showed that the explosion killed at least 14 people and
injured more than 200 others, severely damaged or destroyed nearly 200
homes, 3 nearby schools, a nursing home, and an apartment complex.\2\
According to CSB, the fire at the facility detonated about 30 tons of
ammonium nitrate. As of July 2013, the cause of the fire had not been
determined. This event serves as a tragic reminder of the extent to
which chemicals covered by the CFATS program can pose a risk to
surrounding populations.
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\1\ GAO, Critical Infrastructure Protection: DHS Efforts to Assess
Chemical Security Risk and Gather Feedback on Facility Outreach Can Be
Strengthened, GAO-13-353 (Washington, DC: April 5, 2013).
\2\ Rafael Moure-Eraso, Chairperson, U.S. Chemical Safety Board,
testimony before the Senate Committee on Environment and Public Works,
113th Congress 1st Sess., June 27, 2013. The CSB is an independent
Federal agency charged with investigating industrial chemical
accidents. The CSB board members are appointed by the President and
confirmed by the Senate. According to the CSB website, CSB does not
issue fines or citations, but makes recommendations to plants,
regulatory agencies, industry organizations, and labor groups.
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The DHS appropriations act for fiscal year 2007 \3\ required DHS to
issue regulations to establish risk-based performance standards for
securing high-risk chemical facilities, among other things.\4\ In 2007,
DHS established the CFATS program to assess the risk posed by chemical
facilities; place high-risk facilities in one of four risk-based tiers;
require high-risk facilities to develop security plans; review these
plans; and inspect the facilities to ensure compliance with regulatory
requirements. DHS's National Protection and Programs Directorate (NPPD)
is responsible for the CFATS program. Within NPPD, the Infrastructure
Security Compliance Division (ISCD), a division of the Office of
Infrastructure Protection (IP), manages the program.
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\3\ Pub. L. No. 109-295, 550, 120 Stat. 1355, 1388 (2006).
\4\ According to DHS, a high-risk chemical facility is one that, in
the discretion of the Secretary of Homeland Security, presents a high
risk of significant adverse consequences for human life or health,
National security, or critical economic assets if subjected to a
terrorist attack, compromise, infiltration, or exploitation. 6 C.F.R.
27.105.
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In 2011, a leaked internal memorandum prompted some Members of
Congress and chemical facility owners and operators to become concerned
about ISCD's ability to implement and manage a regulatory regime under
the CFATS program. This memorandum, prepared by the then-ISCD Director,
raised concerns about the management of the program. The memorandum
cited an array of challenges that ISCD had experienced implementing the
CFATS program, including an inability to hire staff with the needed
skills, an overly complicated security plan review process, and a
compliance inspection process that had yet to be developed.
My testimony today summarizes the results of our April 2013 work on
ISCD's efforts to address key mission issues that could affect the
success of the program. Specifically, my testimony will address the
extent to which DHS: (1) Assigned chemical facilities to risk-based
tiers and assessed its approach for doing so, (2) revised the process
used to review security plans, and (3) communicated and worked with
facilities to help improve security. To conduct our work, we reviewed
ISCD documents and data on tiered facilities and the approach used to
determine a facility's risk; assessed ISCD's process for reviewing
security plans and data on the number of plans reviewed, authorized,
and approved from program inception through December 2012; and reviewed
information on ISCD outreach activities. We also obtained the views of
officials representing 11 trade associations with members regulated by
CFATS on DHS efforts to work with facility owners and operators.\5\ The
information we obtained from association officials is not generalizable
to the universe of chemical facilities covered by CFATS; however, it
provides insights into DHS efforts to perform outreach and seek
feedback on the implementation of the CFATS rule. We conducted this
performance audit from October 2012 through April 2013 in accordance
with generally accepted Government auditing standards. Those standards
require that we plan and perform the audit to obtain sufficient,
appropriate evidence to provide a reasonable basis for our findings and
conclusions based on our audit objectives. We believe that the evidence
obtained provides a reasonable basis for our findings and conclusions
based on our audit objectives. More detailed information on the scope
and methodology of our published report can be found therein.
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\5\ The 11 trade associations were among 15 that we contacted
during our review and represent those that provided responses to our
query about ISCD outreach activities. We selected the 15 trade
associations because they are listed in the National Infrastructure
Protection Plan (NIPP) as those with which DHS works on a regular basis
on chemical security matters. According to the NIPP, working with these
trade associations presents a more manageable number of contact points
through which DHS can coordinate activities with a large number of the
asset owners and operators in the chemical sector.
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background
Section 550 of the DHS Appropriations Act for fiscal year 2007 \6\
requires DHS to issue regulations establishing risk-based performance
standards for the security of facilities that the Secretary determines
to present high levels of security risk, among other things.\7\ The
CFATS rule was published in April 2007,\8\ and appendix A to the rule,
published in November 2007, listed 322 chemicals of interest and the
screening threshold quantities for each.\9\ ISCD has direct
responsibility for implementing DHS's CFATS rule, including assessing
potential risks and identifying high-risk chemical facilities,
promoting effective security planning, and ensuring that high-risk
facilities meet applicable standards through site security plans
approved by DHS. From fiscal years 2007 through 2012, DHS dedicated
about $442 million to the CFATS program. Appendix I describe the
process for administering the CFATS program, as outlined in the rule.
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\6\ Pub. L. No. 109-295, 550, 120 Stat. 1355, 1388 (2006).
\7\ The CFATS rule establishes 18 risk-based performance standards
that identify the areas for which a facility's security posture are to
be examined, such as perimeter security, access control, and
cybersecurity. To meet these standards, facilities are free to choose
whatever security programs or processes they deem appropriate so long
as DHS determines that the facilities achieve the requisite level of
performance in each applicable standard.
\8\ 72 Fed. Reg. 17,688 (Apr. 9, 2007) (codified at 6 C.F.R. pt.
27).
\9\ 72 Fed. Reg. 65,396 (Nov. 20, 2007). According to DHS, CFATS
not only covers facilities that manufacture chemicals but also covers
facilities that store or use certain chemicals as part of their daily
operations. This can include food-manufacturing facilities that use
chemicals of interest in the manufacturing process, universities that
use chemicals to do experiments, or warehouses that store ammonium
nitrate, among others.
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ISCD uses a risk assessment approach to develop risk scores to
assign chemical facilities to one of four final tiers. Facilities
placed in one of these tiers (Tier 1, 2, 3, or 4) are considered to be
high-risk, with Tier 1 facilities considered to be the highest risk.
According to an ISCD document that describes how ISCD develops its
CFATS risk score, the risk score is intended to be derived from
estimates of consequence (the adverse effects of a successful attack),
threat (the likelihood of an attack), and vulnerability (the likelihood
of a successful attack, given an attempt). ISCD's risk assessment
approach is composed of three models, each based on a particular
security issue: (1) Release, (2) theft or diversion, and (3) sabotage,
depending on the type of risk associated with the 322 chemicals.\10\
Once ISCD estimates a risk score based on these models, it assigns the
facility to a final tier.
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\10\ For release, the model assumes that a terrorist will release
the chemical of interest at the facility and then estimates the risk to
the surrounding population. For theft or diversion, the model assumes
that a terrorist will steal or have the chemical of interest diverted
to him or herself and then estimates the risk of a terrorist attack
using the chemical of interest in a way that causes the most harm at an
unspecified off-site location. For sabotage, the model assumes that a
terrorist will remove the chemical of interest from the facility and
mix it with water, creating a toxic release at an unspecified off-site
location, and then estimates the risk to a medium-sized U.S. city.
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iscd has assigned thousands of facilities to tiers, but iscd's approach
to risk assessment did not reflect all elements of risk
ISCD Has Tiered Thousands of High-Risk Facilities
In July 2007, ISCD began reviewing information submitted by the
owners and operators of approximately 40,000 facilities. By January
2013, ISCD had designated about 4,400 of the 40,000 facilities as high-
risk and thereby covered by the CFATS rule.\11\ ISCD had assigned about
3,500 of those facilities to a final tier, of which about 90 percent
were tiered because of the risk of theft or diversion. The remaining 10
percent were tiered because of the risk of release or the risk of
sabotage.\12\
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\11\ According to ISCD officials, approximately 35,600 facilities
were not considered high-risk because after preliminary evaluation, DHS
concluded that they were considered not to be high-enough risk to be
covered by the program; thus they were no longer covered by the rule.
\12\ According to ISCD officials, depending on the chemicals on-
site, a facility can be final-tiered for more than one security issue.
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ISCD's Risk Assessment Approach Did Not Consider All Elements of Risk
In April, 2013, we reported that the tiering approach ISCD uses to
assess risk and assign facilities to final tiers did not consider all
of the elements of risk associated with a terrorist attack involving
certain chemicals. According to the National Infrastructure Protection
Plan (NIPP), which, among other things, establishes the framework for
managing risk among the Nation's critical infrastructure, risk is a
function of three components--consequence, threat, and vulnerability--
and a risk assessment approach must assess each component for every
defined risk scenario. Furthermore, the CFATS rule calls for ISCD to
review consequence, threat, and vulnerability information in
determining a facility's final tier. However, ISCD's risk assessment
approach did not fully consider all of the core criteria or components
of a risk assessment, as specified by the NIPP, nor did it comport with
parts of the CFATS rule.
Consequence.--The NIPP states that at a minimum,
consequences should focus on the two most fundamental
components--human consequences and the most relevant direct
economic consequences. The CFATS rule states that chemical
facilities covered by the rule are those that present a high
risk of significant adverse consequences for human life or
health, or critical economic assets, among other things, if
subjected to terrorist attack, compromise, infiltration, or
exploitation.\13\ Our report showed that ISCD's risk assessment
approach was limited to focusing on one component of
consequences--human casualties associated with a terrorist
attack involving a chemical of interest--and did not consider
consequences associated with economic criticality. ISCD
officials said that the economic consequences part of their
risk-tiering approach will require additional work before it is
ready to be introduced. In September 2012, ISCD officials said
they engaged Sandia National Laboratories to examine how ISCD
could gather needed information and determine the risk
associated with economic impact, but this effort is in its
early stages.
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\13\ 6 C.F.R. 27.105, .205.
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Threat.--ISCD's risk assessment approach was not consistent
with the NIPP because it did not consider threat for the
majority of regulated facilities. According to the NIPP, risk
assessments should estimate threat as the likelihood that the
adversary would attempt a given attack method against the
target. The CFATS rule requires that, as part of assessing site
vulnerability, facilities conduct a threat assessment, which is
to include a description of the internal, external, and
internally-assisted threats facing the facility and that ISCD
review the site vulnerability assessment as part of the final
determination of a facility's tier.\14\ Our report showed that:
(1) ISCD was inconsistent in how it assessed threat using the
different models because while it considers threat for the 10
percent of facilities tiered because of the risk of release or
sabotage, it did not consider threat for the approximately 90
percent of facilities tiered because of the risk of theft or
diversion, and (2) ISCD did not use current threat data for the
10 percent of facilities tiered because of the risk of release
or sabotage. ISCD officials said that they were considering
reexamining their approach and exploring how they could use
more current threat data for the 10 percent of facilities
tiered because of the risk of release or sabotage.
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\14\ 6 C.F.R. 27.215, .220.
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Vulnerability.--ISCD's approach was also not consistent with
the NIPP because it did not consider vulnerability when
developing risk scores. According to the NIPP, risk assessments
should identify vulnerabilities, describe all protective
measures, and estimate the likelihood of an adversary's success
for each attack scenario. Similar to the NIPP, the CFATS rule
calls for ISCD to review facilities' security vulnerability
assessments as part of its tiering process.\15\ This assessment
is to include the identification of potential security
vulnerabilities and the identification of existing
countermeasures and their level of effectiveness in both
reducing identified vulnerabilities and meeting the
aforementioned risk-based performance standards. We reported
that the security vulnerability assessment contains numerous
questions aimed at assessing vulnerability and security
measures in place but the information was not used to assign
facilities to risk-based tiers. ISCD officials said they do not
use the information because it is ``self-reported'' by
facilities and they have observed that it tends to overstate or
understate vulnerability. Thus, ISCD's risk assessment approach
treats every facility as equally vulnerable to a terrorist
attack regardless of location and on-site security. ISCD
officials told us that they consider facility vulnerability
during the latter stages of the CFATS regulatory process,
particularly with regard to the development and approval of the
facility site security plan.
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\15\ 6 C.F.R. 27.220.
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ISCD Had Begun to Take Actions to Examine How Its Approach Can Be
Enhanced
In April 2013, we reported that ISCD had begun to take some actions
to examine how its risk assessment approach can be enhanced. For
example, ISCD had commissioned a panel of subject matter experts to
examine the strengths and weaknesses of its risk assessment approach.
We stated that ISCD appeared to be moving in the right direction, but
would need to incorporate the various results of these efforts to help
it ensure that the revised risk assessment approach includes all of the
elements of risk. We further stated that once ISCD develops a more
complete approach for assessing risk, it would then be better-
positioned to commission an independent peer review. In other past
work, we have found that peer reviews are a best practice in risk
management \16\ and that independent expert review panels can provide
objective reviews of complex issues.\17\ As we previously stated in
these reports, independent peer reviews cannot ensure the success of a
risk assessment approach, but they can increase the probability of
success by improving the technical quality of projects and the
credibility of the decision-making process.\18\ In our April 2013
report, we recommended that DHS enhance its risk assessment approach to
incorporate all elements of risk, and conduct a peer review after doing
so. DHS concurred with our recommendations and stated that it had
efforts under way to address them.
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\16\ See GAO, Coast Guard: Security Risk Model Meets DHS Criteria,
but More Training Could Enhance Its Use for Managing Programs and
Operations, GAO-12-14 (Washington, DC: Nov. 17, 2011). Peer reviews can
identify areas for improvement and can facilitate sharing best
practices.
\17\ See GAO, Aviation Security: Efforts to Validate TSA's
Passenger Screening Behavior Detection Program Underway, but
Opportunities Exist to Strengthen Validation and Address Operational
Challenges, GAO-10-763 (Washington, DC: May 20, 2011).
\18\ See GAO, Coast Guard: Security Risk Model Meets DHS Criteria,
but More Training Could Enhance Its Use for Managing Programs and
Operations, GAO-12-14 (Washington, DC: November 17, 2011) and GAO,
Homeland Security: Summary of Challenges Faced in Targeting Ocean-going
Cargo Containers for Inspection, GAO-04-557T (Washington, DC: Mar. 31,
2004).
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iscd had revised its security plan review process, but plan approvals
could take years
ISCD Revised Its Security Plan Review Process Because of ISCD Managers'
Concerns, and Plans to Measure Related Improvements Moving
Forward
In April 2013 we reported that ISCD had made various revisions to
its security plan review process to address concerns expressed by ISCD
managers about slow review times. Under the CFATS rule, once a facility
is assigned a final tier, it is to submit a site security plan to
describe security measures to be taken and how it plans to address
applicable risk-based performance standards.\19\ In November 2011, ISCD
acknowledged that the security plan review process it was using was
overly complicated and created bottlenecks and officials stated that
revising the process was a top program priority.\20\ Shortly
thereafter, ISCD developed an interim review process. ISCD officials
subsequently told us that the interim process was unsustainable, labor-
intensive, and time-consuming because individual reviewers were
sequentially looking at pieces of thousands of plans that funneled to
one quality reviewer.\21\ In July 2012, ISCD began using a newly-
revised process, which entailed using contractors, teams of ISCD
employees (e.g., physical, cyber, and chemical specialists), and ISCD
field inspectors to review plans simultaneously.\22\
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\19\ 6 C.F.R. 27.210(a)(3), .225.
\20\ The specific security measures and practices discussed in
DHS's guidelines state that they are neither mandatory nor necessarily
the ``preferred solution'' for complying with the risk-based
performance standards. Rather, according to DHS, they are examples of
measures and practices that a facility may choose to consider as part
of its overall strategy to address the standards. High-risk facility
owners and operators have the ability to choose and implement other
measures to meet the risk-based performance standards based on
circumstances, security issues and risks, and other factors, so long as
DHS determines that the suite of measures implemented achieves the
levels of performance established by the standards.
\21\ Using the interim review process, ISCD officials estimated
that they authorized about 60 security plans and notified the
facilities that inspectors would schedule visits to determine if the
security measures described in the plan were in place.
\22\ According to ISCD officials, this newly-revised process, like
its predecessor, entailed a ``holistic'' review whereby individual
reviewers were to consider how layers of security measures met the
intent of each of the CFATS performance standards.
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ISCD officials said that they believed the revised process was a
``quantum leap'' forward, but they did not capture data that would
enable them to measure how, if at all, the revised process is more
efficient (i.e., less time-consuming) than the former processes. Moving
forward, ISCD officials said they intended to measure the time it takes
to complete parts of the revised site security plan review process and
had recently implemented a plan to measure various aspects of the
process. We reported that collecting data to measure performance about
various aspects of this process is a step in the right direction, but
it may take time before the process has matured to the point where ISCD
is able to establish baselines and assess progress.
Security Plan Reviews Could Take Years to Complete, but ISCD Is
Examining How It Can Accelerate the Review Process
We also reported in April 2013 that even with the most recent
revisions to the review process, it could take years to review the
plans of thousands of facilities that had already been assigned a final
tier. ISCD hoped to address this by examining how it could further
accelerate the review process. According to ISCD officials, between
July 2012 and December 2012, ISCD had approved 18 security plans, with
conditions.\23\ ISCD officials told us that they anticipate that the
revised security plan review process could enable ISCD to approve
security plans at a rate of about 30 to 40 a month.
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\23\ All authorization letters include a condition noting that ISCD
has not fully approved the personnel surety risk-based performance
standard of plans because ISCD has not yet determined what the
facilities are to do to meet all aspects of personnel surety. The
personal surety risk-based performance standard requires that regulated
chemical facilities implement measures designed to identify people with
terrorist ties, among other things.
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Using ISCD's estimated approval rate of 30 to 40 plans a month, our
April 2013 report showed that it could take anywhere from 7 to 9 years
to complete reviews and approvals for the approximately 3,120 plans
\24\ submitted by facilities that had been final-tiered that ISCD had
not yet begun to review.\25\ Figure 1 shows our April 2013 estimate of
the number of years it could take to approve all of the security plans
for the approximately 3,120 facilities that, as of January 2013, had
been final-tiered, assuming an approval rate of 30 to 40 plans a month.
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\24\ ISCD data showed that 380 security plans had started the
review process and were at different phases of review.
\25\ ISCD officials stated that the approval rate could reach 50
plans a month in the third quarter of fiscal year 2013, as the review
process becomes more efficient. We did not calculate the time to
complete reviews of the approximately 3,120 plans that had been final-
tiered using ISCD's estimate of 50 per month because of uncertainty
over when and if ISCD would reach this goal during the third quarter of
fiscal year 2013.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
It is important to note that our 7- to 9-year estimate did not
include other activities central to the CFATS mission, either related
to or aside from the security plan review process. In addition, our
estimate did not include developing and implementing the compliance
inspection process, which occurs after security plans are approved and
is intended to ensure that facilities covered by the CFATS rule are
compliant with the rule, within the context of the 18 performance
standards. ISCD officials estimated that the first compliance
inspections would commence in 2013, which means that the CFATS
regulatory regime would likely be fully implemented for currently
tiered facilities (to include compliance inspections) in 8 to 10 years.
ISCD officials stated that they were actively exploring ways to
expedite the speed with which the backlog of security plans could be
cleared, such as reprioritizing resources and streamlining inspection
and review requirements.
iscd has increased its efforts to communicate and work with facilities
and may have an opportunity to systematically gather feedback on its
outreach efforts
ISCD's External Communication Efforts With Facilities Have Increased
Since 2007, but Selected Trade Associations Had Mixed Views
About ISCD Efforts
Our April 2013 report stated that ISCD's efforts to communicate and
work with owners and operators to help them enhance security had
increased since the CFATS program's inception in 2007. ISCD had taken
various actions to communicate with facility owners and operators and
various stakeholders--including officials representing State and local
governments, private industry, and trade associations--to increase
awareness about CFATS. For example, among other things, ISCD has
increased the number of visits to facilities to discuss enhancing
security plans.\26\ However, trade associations' responses to questions
we sent them about the program showed mixed views about ISCD's efforts
to communicate with owners and operators through ISCD's outreach
efforts. For example, 3 of the 11 trade associations that responded to
our questions indicated that ISCD's outreach program was effective in
general, 3 reported that the effectiveness of ISCD's outreach was
mixed, 4 reported that ISCD's outreach was not effective, and 1
respondent reported that he did not know.\27\
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\26\ Among other outreach activities, ISCD manages the Chemical
Security website, which includes a searchable database to answer
questions about the CFATS program. ISCD also manages a Help Desk (call
service center), which is operated on a contract basis by the Oak Ridge
National Laboratory.
\27\ We originally sent questions to 15 trade associations
representing various members of the chemical industry and received
responses from 11 of the 15. The trade associations that responded
provided responses that represent, to their knowledge, the general view
of their members. In some instances, the associations provided
responses directly from member companies.
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ISCD Sought Informal Feedback, but Did Not Solicit Systematic Feedback
on the Effectiveness of Its Outreach Efforts
Our report showed that ISCD sought informal feedback on its
outreach efforts but did not systematically solicit feedback to assess
the effectiveness of outreach activities,\28\ and it did not have a
mechanism to measure the effectiveness of these activities. Trade
association officials reported that in general ISCD seeks informal
feedback on its outreach efforts and that members provide feedback to
ISCD. According to ISCD officials, feedback had been solicited from the
regulated community generally on an informal basis, but inspectors and
other staff involved in ISCD's outreach activities were not required to
solicit feedback during meetings, presentations, and assistance visits
on the effectiveness of the outreach. ISCD, as part of its annual
operating plan, has established a priority for fiscal year 2013 to
develop a strategic communications plan intended to address external
communication needs including industry outreach, which may provide an
opportunity to explore how ISCD can obtain systematic feedback on these
activities. We concluded that a systematic approach for gathering
feedback and measuring the results of its outreach efforts could help
ISCD focus greater attention on targeting potential problems and areas
needing improvement. We recommended that DHS explore opportunities to
gather systematic feedback on facility outreach. DHS agreed and stated
that it agreed with our recommendation and identified actions under way
to address it.
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\28\ ISCD solicits voluntary feedback via a survey provided to Help
Desk users on their experience with call center representatives. The
survey asks: Did the service meet expectations, were questions answered
in a timely manner, and was the call service representative friendly
and knowledgeable?
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Chairman Meehan, Ranking Member Clarke, and Members of the
subcommittee, this completes my prepared statement. I would be happy to
respond to any questions you may have at this time.
Appendix I: Department of Homeland Security's (DHS) Process for
Administering the Chemical Facility Anti-Terrorism Standards (CFATS)
Program
This appendix discusses DHS's process for administering the CFATS
program. DHS's CFATS rule outlines a specific process for administering
the program. Any chemical facility that possesses any of the 322
chemicals in the quantities that meet or exceed the threshold quantity
outlined in Appendix A of the rule is required to use DHS's Chemical
Security Assessment Tool (CSAT)--a web-based application through which
owners and operators of chemical facilities provide information about
the facility.\29\ Once a facility is registered in CSAT, owners and
operators are to complete the CSAT Top Screen--which is the initial
screening tool or document whereby the facility is to provide DHS
various data, including the name and location of the facility and the
chemicals and their quantities at the site.\30\ DHS is to analyze this
information using its risk assessment approach, which is discussed in
more detail below, to initially determine whether the facility is high-
risk.\31\ If so, DHS is to notify the facility of its preliminary
placement in one of four risk-based tiers--Tier 1, 2, 3, or 4.\32\
Facilities preliminarily placed in any one of these tiers are
considered to be high-risk, with Tier 1 facilities considered to be the
highest risk. Facilities that DHS initially determines to be high-risk
are required to then complete the CSAT security vulnerability
assessment, which includes the identification of potential critical
assets at the facility and a related vulnerability analysis.\33\ DHS is
to review the security vulnerability assessment and notify the facility
of DHS's final determination as to whether or not the facility is
considered high-risk, and if the facility is determined to be a high-
risk facility, about its final placement in one of the four tiers.\34\
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\29\ 6 C.F.R. 27.200(b).
\30\ For example, under the CFATS rule, a facility that possesses
butane at a quantity equal to or exceeding 10,000 pounds must submit
information to DHS because the substance is considered flammable if
subject to release. A facility possessing another chemical, oxygen
difluoride, would have to submit information to DHS if it possessed a
quantity equal to or exceeding 15 pounds of the substance, which,
according to the rule, is considered vulnerable to theft for use as a
weapon of mass effect.
\31\ 6 C.F.R. 27.205(a).
\32\ 6 C.F.R. 27.220(a), (c).
\33\ 6 C.F.R. 27.215. Preliminary Tier 4 facilities also have the
option of submitting an alternate security program in lieu of a
security vulnerability assessment. 6 C.F.R. 27.235(a)(1).
\34\ 6 C.F.R. 27.220(b), (c).
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Once assigned a final tier, the facility is required to use CSAT to
submit a site security plan or participate in an alternative security
program in lieu of a site security plan.\35\ The security plan is to
describe the security measures to be taken to address the
vulnerabilities identified in the vulnerability assessment, and
identify and describe how security measures selected by the facility
are to address the applicable risk-based performance standards.\36\ DHS
then is to conduct a preliminary review of the security plan to
determine whether it meets the regulatory requirements. If these
requirements appear to be satisfied, DHS is to issue a letter of
authorization for the facility's plan. DHS then is to conduct an
authorization inspection of the facility and subsequently determine
whether to approve the security plan. If DHS determines that the plan
does not satisfy CFATS requirements, DHS then notifies the facility of
any deficiencies and the facility must submit a revised plan correcting
them.\37\ If the facility fails to correct the deficiencies, DHS may
disapprove the plan.\38\ Following approval, DHS may conduct further
inspections to determine if the facility is in compliance with its
approved security plan.\39\ As of April 2013, DHS had not conducted any
compliance inspections. Figure 2 illustrates the CFATS regulatory
process.
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\35\ An Alternative Security Program (ASP) is a third-party,
facility, or industry organization's security program that has been
determined to meet the requirements of, and provides for an equivalent
level of security to that established by the CFATS regulation. CFATS
allows regulated chemical facilities to submit an ASP in lieu of a Site
Security Plan. 6 C.F.R. 27.235.
\36\ 6 C.F.R. 27.225.
\37\ According to Infrastructure Security Compliance Division
(ISCD) officials, site security plans can also be sent back to
facilities to be revised for any number of reasons. For example, during
the preliminary review, if ISCD finds that a plan does not contain all
the requisite data needed to meet regulatory requirements, ISCD can
return the plan to the facility for more information.
\38\ 6 C.F.R. 27.245.
\39\ 6 C.F.R. 27.250.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Meehan. I want to thank you, Mr. Caldwell. Before we
take a moment to engage with our panelists, I want to recognize
the Ranking Member for her opening statement.
Ms. Clarke. Let me thank you for your indulgence this
morning, Mr. Chairman, and thank you for convening this very
important hearing. There are many central questions to be
answered today, and I want to thank the Ranking Member, Mr.
Thompson, as well as Chairman McCaul for being here earlier
this morning and for their interest today.
I have heard it described that 2 hours after a fertilizer
distribution center exploded in the small community of West,
Texas around sunset on Wednesday, April 17 much of the town, 18
miles north of Waco, resembled a war zone. Some people were
missing, hundreds more were rushed off to area hospitals, homes
burnt, others threatened to collapse. The Texas Department of
Public Safety, spokesman D.L. Wilson, offered this grim but
accurate assessment of the devastation many saw via TV.
``Massive, just like Iraq, just like the Murrah Building in
Oklahoma City.''
The explosion destroyed an apartment complex and a nursing
home that sat within a few hundred yards. A nearby unoccupied
elementary school was severely damaged. Walls and roofs of
homes and businesses within a half-mile of the plant cracked,
and windows even further. There were no Federal setback
guidelines or requirements to separate extremely hazardous
substances from surrounding populations, such as schools,
houses, nursing homes, apartments, and businesses based on a
worst-case scenario. I have been told that at least 800,000
people across the United States live near hundreds of sites
that store large amounts of potentially explosive ammonium
nitrate.
Hundreds of schools, hospitals, and churches, as well as
hundreds of thousands of households also sit near these sites.
Nationally, at least 12 ammonium nitrate facilities have 10,000
or more people living within a mile, according to a Reuters
analysis of hazardous chemical storage data maintained by 29
States. Complaints about the DHS CFATS program have recently
focused on the fact that facilities that should be reporting to
CFATS are not being contacted about their required reporting
duty under the program. The program has also come under
scrutiny about the slow pace of inspecting and approving site
security plans, or SSPs.
A faster pace in the CFATS inspection and review process
could have produced more tangible results in reducing
vulnerabilities and consequences of a successful terrorist
attack on its facilities. It could have also helped--excuse me,
it could have also been a help for community emergency
preparation for all hazardous material--excuse me, events, such
as the apparent industrial accident we are examining today. It
seems to me they are all intertwined.
However, the current rush to approve SSPs in today's CFATS
program may not build confidence among the public. When airline
passengers face a flight delay they are frustrated and they
complain. But they also don't want the flight rushed onto the
runway at the expense of safety. The tragic events in West,
Texas may bring into sharper focus the issue of how we as a
country protect our citizens from not only the threat of
terrorist attack on facilities that store explosive chemicals,
but how we identify and classify these types of facilities to
begin with.
Will these methods be enough to protect hundreds of
thousands of people living within chemical facility
vulnerability zones? Will it help local emergency planning
committees prepare for events like the one in West, Texas. As
one of our witnesses has testified today--and it is just common
sense that an engaged and informed public is a vigilant public.
Citizens, first responders, medical professionals, plant
workers, and local officials will need to be better informed
about local chemical safety and safety information in order to
be prepared for all types of emergencies.
We do know that West Fertilizer did report the possession
and storage of ammonium nitrate to the State Emergency Response
Commission, or SERC. This was done under the Emergency Planning
and Community Right-to-Know Act, or EPCRA. The SERC in Texas
apparently maintains Tier 2 reports in electronic format, which
is important to remember. It is critical that we continue to
examine whether the Department of Homeland Security has
established a norm, or a protocol if you will, that compares
their list of CFATS Top Screen facilities to the Emergency
Planning and Community Right-to-Know reports held
electronically by each State, a relatively simple procedure
that might have helped identify facilities that failed, like
West, to conduct a Top Screen under CFATS.
It would seem to me that DHS should have a memorandum of
understanding with each State for routine electronic access to
EPCRA data in that State. But I look forward for answers, I am
looking for answers and someone on the panels who will be able
to tell us that today. These questions, at the core of today's
hearing, naturally produce other questions like what
technological or business practice changes have enabled
operating facilities that have submitted Top Screens to tier
out of CFATS.
I have been told that there are apparently some 3,000
formerly-tiered facilities which are now considered less-
attractive terrorist targets and no longer of interest to DHS.
Is there a specific development, technological or procedural,
that encourages facilities to tier out? I would like to learn
more about that. Another feature that I have learned about is
that West Fertilizer seemingly lacked adequate liability
insurance. While not a requirement in the CFATS program,
companies that hold extremely hazardous substances and maintain
liability insurance commensurate with a worst-case scenario
would provide an incentive for companies to use methods that
reduce potential consequences.
This is just standard business practice, nothing earth-
shattering. Another critical infrastructure piece involved in
this tragic event is rail transportation. West Fertilizer
apparently received shipments of ammonium nitrate by rail.
Under common carrier obligations, do shippers of extremely
hazardous substances, or rail carriers, routinely carry enough
insurance to cover liability associated with a worst-case
release or explosion? I would be interested to find out.
Federal, State, and local interagency planning and cooperation
may be the key to finding solutions to prevent events like
West, Texas from happening, whatever the cost.
DHS must step up to the plate on security and find ways to
identify outliers and retool efforts to assess risk-based
vulnerabilities. Other agencies like EPA already have
authorities under the Clean Air Act to incorporate methods to
reduce consequences into their risk management plans. I
understand the White House Chemical Security Interagency group
is working on this issue. It will be helpful to find out what
the President's Executive Order released this morning will
actually do.
So I thank you, Mr. Chairman, for holding this very
critical hearing, and I look forward to the rest of this
morning's testimony. I would like to just mention that,
speaking on behalf of the Members on this side of the aisle, we
are extremely pleased to see that the President's Executive
Order on chemical facility security has been issued. It is
especially timely for this hearing. Mr. Thompson wrote the
President soon after the tragedy at West, Texas, calling for
him to look at improving chemical security.
If such an effort is established, it should include members
with background in Government information policy on hazardous
chemicals. This is always overlooked. Also, it should include
members from labor, environmental, community, and environmental
justice communities. So we look forward to learning these
details. Mr. Chairman, I also have a submission for the record,
and I would like to ask unanimous consent to have several of
these pieces submitted for the record.
Mr. Meehan. I have been given a copy of the materials that
are asked to be submitted for the record, have reviewed them,
and so ordered. Unanimous consent.
[The information follows:]
Statement of Dr. M. Sam Mannan and Mr. John S. Bresland, Mary Kay
O'Connor Process Safety Center, Artie McFerrin Department of Chemical
Engineering, Texas A&M University System
August 1, 2013
introduction
Dr. M. Sam Mannan holds a BS, MS, and PhD in chemical engineering.
He is a registered professional engineer in the States of Louisiana and
Texas and a certified safety professional. He is 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. He is
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. His area
of expertise within the chemical engineering discipline is process
safety. He teaches process safety engineering both at the undergraduate
and graduate level. He also teaches continuing education courses on
process safety and other specialty process safety courses in the United
States and overseas. His research and practice is primarily in the area
of process safety and related subjects. Mr. John S. Bresland graduated
in chemistry from Londonderry Technical College, Northern Ireland and
Salford University, England and has extensive experience in the Federal
Government and the chemical industry, working for the United States
Chemical Safety Board (as chairman/CEO and board member), Honeywell
International Inc. and as a staff consultant for the Center for
Chemical Process Safety. He is currently a research fellow at the Mary
Kay O'Connor Process Safety Center. His technical and management
expertise includes chemicals manufacturing, safety and environmental
programs, re-engineering and facility design and construction. He has
strong managerial track record of facilitating cross-functional
teamwork and fostering positive community relationships. He also has an
acknowledged reputation for opening doors of communication among
diverse stakeholders. The opinions presented in this document represent
the personal positions of Dr. Mannan and Mr. Bresland on these issues.
background
Chemicals play a key role in today's high-tech world. The chemical
industry is linked to every technologically-advanced industry. Only a
handful of the goods and services we enjoy on a daily basis would exist
without essential chemical products. Chemicals are also a big part of
the economy in Texas and many other States. For example, the Texas
chemical industry alone provides more than 100,000 jobs, and the
State's chemical products are shipped world-wide at a value of more
than $20 billion dollars annually.
But the use of chemicals is a two-edged sword. Safe use creates a
healthier economy and a higher standard of living. Unsafe use threatens
our lives, our businesses, and our environment. As the industry's
sophistication increases, so does the need to work and live safely with
chemicals. In order to accomplish this, many stakeholders must work
together diligently and with persistent determination. A common theme
that also must be present is competence at all levels with regard to
knowledge and execution of responsibilities.
Today's hearings, ``West Fertilizer, Off the Grid: The Problem of
Unidentified Chemical Facilities,'' are an appropriate Congressional
response to the recent events in West, Texas. This event in West, Texas
is tragic and our heart goes out to the affected people, neighborhoods
and cities, and the local authorities. We must as a Nation and
individuals explore and investigate such incidents and do our best to
prevent the recurrence of such incidents. At the Center we had one
Ph.D. researcher working on ammonium nitrate before the West, Texas
incident happened, and since the West, Texas incident, we have had a
team of five Ph.D. researchers researching this whole issue and
associated topics. Mr. Bresland also led this team of five Ph.D.
researchers on a visit to the incident site in West, Texas. This
testimony and opinions are derived from looking at the aftermath of the
West incident. It must also be stated that much is still unknown about
the incident and as the root causes are identified and more definitive
information becomes available, some of these conclusions and opinions
may have to be revisited.
Description of the West, Texas, Incident
On Wednesday, April 18, 2013, an initial fire exacerbated into an
explosion at West Fertilizer in West, Texas, causing the death of 15
people and injuring more than 200. The blast wave completely destroyed
the facility and also caused varying levels of damage to many
buildings, businesses, and homes at significantly long distances from
the plant. More than 50 homes, a 50-unit apartment building, a nursing
home, and four schools were in the impact zone. Of the 15 people who
died, 12 were emergency responders, who were responding to the initial
fire and trying to control and extinguish the fire when the
catastrophic explosion occurred.
alternatives for identifying the regulated community
Following the West, Texas, incident, it has come to light that the
facility was covered by the Department of Homeland Security's Chemical
Facility Anti-Terrorism Standards (CFATS). However, the facility did
not file any compliance documents with DHS, neither was the facility
inspected by DHS. Thus the premise of this hearing, i.e., how can
Federal agencies identify all the facilities covered by a specific
regulation. While we pose a broad general question, we have primarily
based our findings on how the West facility may have been identified
for Federal oversight prior to the incident.
The West Fertilizer facility had a capacity to store 110,000 lbs of
ammonia and 540,000 lbs of ammonium nitrate (Tier II reporting data
from 2012). All Federal agencies with responsibility to regulate
safety/risk and associated issues should be required to conduct a
primary screening to determine their regulatory landscape. We believe
that a screening process can be conducted where information from
different databases and sources can be mined to develop a comprehensive
list of regulated facilities. We outline below a step-by-step approach
that would have identified the West facility.
1. North American Industry Classification System (NAICS)
The North American Industry Classification System (NAICS) is a
system of grouping establishments into industries based on their
production processes. The U.S. Census Bureau assigns each establishment
one NAICS code based on its primary activity (the activity that
generates the most revenue for the establishment). Information about
the type of activity of the establishment is typically requested when a
company applies for an Internal Revenue Service Employer Identification
Number (EIN). A review of the NAICS databases would immediately flag
the West facility as NAICS code 424510 (Grain and Field Bean Merchant
Wholesalers). This determination alone would not be enough to determine
coverage by CFATS but would at least indicate a need for further
probing. Details about the NAICS system are given in Appendix A.
2. Tier II reports
Any facility covered by Emergency Planning and Community Right-to-
Know Act (EPCRA) requirements must submit an Emergency and Hazardous
Chemical Inventory Form to the Local Emergency Planning Committee
(LEPC), the State Emergency Response Commission (SERC), and the local
fire department. Any facility required under OSHA regulations to
maintain material safety data sheets (MSDS) for hazardous chemicals
stored or used in the work place with chemicals in quantities that
equal or exceed a certain thresholds must submit annually an emergency
and hazardous chemical inventory form to the Local Emergency Planning
Committee (LEPC), the State Emergency Response Commission (SERC) and
the local fire department. Facilities provide either a Tier I or Tier
II form. Most States, such as Texas, require the Tier II form. Tier II
forms require basic facility identification information, such as name,
address, Dun & Bradstreet number, NAICS code, employee contact
information (for emergencies and non-emergencies) and information about
chemicals stored or used at the facility. The chemical information
includes chemical name and maximum amount stored. It should be noted
that the West, Texas, facility was exempted from filing the Tier II
reports. However, a search of the Texas Tier II data indicates that the
facility did file a Tier II report in which they indicated the storage
of ammonium nitrate at quantities of 270 tons. Thus, given the
information from NAICS data (described in item 1 above), a query of
Texas Tier II reports would have immediately identified the West
facility as covered by the CFATS regulation. This would be enough for
DHS to communicate with the facility and request compliance
submissions.
Detailed information about the Tier II reporting is given in
Appendix B.
3. Office of the Texas State Chemist (OTSC)--Texas Feed and Fertilizer
Control Service
According to the Fertilizer Control Act--Texas Agriculture Code
(1981), Chapter 63, ``a person may not manufacture or distribute a
commercial fertilizer in this state without a valid current permit
issued by the Service and a person may not manufacture or distribute a
commercial fertilizer in this state, other than customer-formula
fertilizer, unless the person first registers the fertilizer with the
Service.'' According to this regulation, an application for a
registration by any person that owns an ammonium nitrate facility must
be submitted on a form, which includes information about the amount of
ammonium nitrate. Again, a query of Records from the OTSC could be used
to identify facilities potentially storing Ammonium Nitrate.
Detailed information about the OTSC regulation and program
requirements is given in Appendix C.
4. Other Sources of Information
The Agricultural Retailers Association (ARA) is a non-profit trade
association representing the interests of retailers on legislative and
regulatory issues Nation-wide. The Fertilizer Institute (TFI) is the
leading voice for the Nation's fertilizer industry, including
producers, importers, wholesalers, and retailers. Fertilizer companies
can become members of ARA and/or TFI through a registration process.
Once a company becomes a member of ARA, it can get benefits such as
technical assistance, ARA Retailer Fact$ Newsletter, member alerts,
unlimited access to valuable website features and annual conference and
exposition. It is not known if the West facility was a member of either
association. While the list of members is not available on-line, it is
conceivable that the DHS could develop outreach programs in conjunction
with ARA and TFI to inform the potentially-regulated community about
CFATS regulation and associated compliance requirements.
Most municipalities require a Certificate of Occupancy (CO) for any
building and/or facility. The CO is a document issued by Building
Inspection, which permits land, and/or buildings to be used for the
purpose(s) listed on the CO. COs are required prior to occupancy of a
building or land. Again, it is conceivable that the DHS could develop
outreach programs in conjunction with cities and local government to
inform the potentially-regulated community about CFATS regulation and
associated compliance requirements. Appendix D provides more details
about occupancy permit requirements.
conclusions and recommendations
The incident at West, Texas, is a tragedy that could and should
have been avoided. However, this requires continued and committed
efforts by all stakeholders. A major part of getting this accomplished
is identifying the regulated community. We have presented above a case
study of how the West facility could have been identified for coverage
by the CFATS regulation. We believe a similar case can be made for any
chemical and any regulation, i.e., a systematic approach requiring
minimal effort can be used to identify covered facilities, develop
communication, and provide outreach. Our conclusions and
recommendations are primarily focused on that aspect.
(1) Based on the case study presented here, we strongly urge the
U.S. Congress to mandate a study to determine the best possible
way for mining currently-available sources of information to
develop a methodology for identifying the regulated community
for any given regulation.
(2) Notwithstanding the study recommended in: (1) Above, all
Federal agencies with responsibility to regulate safety/risk
and associated issues should be required to conduct a primary
screening to determine their regulatory landscape.
(3) Once the regulatory landscape is determined in item: (2) Above,
each Federal agency should be charged with developing a plan
and schedule for ensuring compliance through regular
inspections.
(4) The U.S. Congress should require all Federal agencies
participating in the National Response Team (NRT) to conduct
inter-agency training and briefings with regard to what each
agency is covering and how they are enforced. Federal agencies
should be encouraged to develop protocols for referrals from
one agency to another.
(5) Inspections can only yield positive results when an adequate
number of qualified, trained, and competent inspectors is
available. Clearly, in these days of budget restrictions,
hiring and training hundreds or thousands more inspectors is
going to be a challenge at least and at worst impossible. A
cost-effective and viable alternative is third-party certified
audits and inspections mentioned in item (6) below.
(6) Congress should consider directing Federal agencies to create
verifiable and certified third-party auditing and inspection
systems. This approach has worked for ISO-9000 certifications
and other programs. There are market-based approaches through
which this regime can be implemented without causing a major
burden on the regulatory authority or the regulated community.
For example, refer to the studies done by the University of
Pennsylvania's Risk Management and Decision Processes Center
regarding third-party audits and inspections for EPA's Risk
Management Program \1\ and Environmental Programs.\2\
---------------------------------------------------------------------------
\1\ http://opim.wharton.upenn.edu/risk/library/
2001_JCB_3rdPartyAudits.pdf.
\2\ http://opim.wharton.upenn.edu/risk/downloads/archive/
arch272.pdf.
---------------------------------------------------------------------------
(7) EPCRA Sections 301-303 provide a systematic framework for
coordination of hazard information, prevention programs, and
emergency planning and response involving the Federal
Government, State emergency response commissions (SERC), and
the local emergency planning committees (LEPC). However,
because of a lack of systematic funding and operational
capability, most LEPCs are dysfunctional or exist in name only.
Some further examination into better communication between the
Federal and State partners is needed. We urge the U.S. Congress
to look into ways to solve this problem and utilize the LEPC
framework in an effective manner.
(8) The fact that a nursing home, schools, residential
neighborhoods, and other public facilities were so near the
blast zone in the West Fertilizer incident raises questions
about zoning and land-use planning. We urge the U.S. Congress
to look into ways to encourage States and local governments to
improve and enforce risk-based zoning and land-use planning.
summary
We applaud the U.S. Congress for providing leadership in developing
appropriate programs for preventing and addressing chemical threats. We
have made a lot of progress in moving forward to overcome the
challenges we face in using chemicals to improve our lives without
hurting the industry employees, the public, and the environment. We all
can agree that chemicals do improve our lives but we also can agree
that they can hurt us as well, and if we do not do the right things,
they can make us extinct as well. This is a serious matter and we are
pleased that people at the highest level of Government are involved at
looking at this matter.
Appendix A.--North American Industry Classification System (NAICS)
The North American Industry Classification System (NAICS) is a
system of grouping establishments into industries based on their
production processes. NAICS classifies industries using 2-, 3-, 4-, 5-,
and 6-digit levels of detail. This classification replaces the
previously used Standard Industrial Classification (SIC) codes.
There is no central Government agency with the role of assigning,
monitoring, or approving NAICS codes for establishments. The U.S.
Census Bureau assigns each establishment one NAICS code based on its
primary activity (the activity that generates the most revenue for the
establishment).\3\ Information about the type of activity at the
establishment is typically requested when a company applies for an
Employer Identification Number (EIN) in order to assign the appropriate
NAICS code.\4\
---------------------------------------------------------------------------
\3\ What is NAICS and how is it used? http://www.census.gov/eos/
www/naics/faqs/faqs.html#q1.
\4\ http://www.naics.com/faq.htm.
---------------------------------------------------------------------------
The NAICS Association, LLC can provide lists of establishments
classified according to their NAICS code. Lists provided by the NAICS
Association can be customized by multiple criteria in order to obtain a
more targeted list. Several types of records are available, which
include different levels of information for each establishment (See
Table 1). The price of each type of report is shown in Table 2.
TABLE 1.--STANDARD RECORD LAYOUTS *
----------------------------------------------------------------------------------------------------------------
Enhanced Telemarketing
Mailing Record Telemarketing Record Record Prospecting Record
----------------------------------------------------------------------------------------------------------------
DUNS Number......................... DUNS Number............. DUNS Number............ DUNS Number.
Business Name....................... Business Name........... Business Name.......... Business Name.
Tradestyle Name..................... Tradestyle Name......... Tradestyle Name........ Tradestyle Name.
Mail Address........................ Mail Address............ Mail Address........... Mail Address.
Street Address...................... Street Address.......... Street Address......... Street Address.
SIC Codes (up to 4)................. SIC Codes (up to 4)..... SIC Codes (up to 4).... SIC Codes (up to 4).
Top Contact Name/Title.............. Top Contact Name/Title.. Top Contact Name/Title. Top Contact Name/Title.
Two NAICS Codes & Descriptions...... Two NAICS Codes & Two NAICS Codes & Two NAICS Codes &
Descriptions. Descriptions. Descriptions.
2nd NAICS Code Des...... 2nd NAICS Code & Des... 2nd NAICS Code & Des.
Telephone Number**...... Telephone Number....... Telephone Number.
Sales Volume OR No. of Sales Volume.
Employees**.
Employees Here.**
E-mail addresses also ....................... Employees Total.**
available. Ask for
details!.
Year Started.**
Status Indicator (HQ,
SL, Branch).**
----------------------------------------------------------------------------------------------------------------
* http://www.naics.com/record-types.html.
** [Sic].
TABLE 2.--PRICING FOR CUSTOMIZED BUSINESS LISTS *
------------------------------------------------------------------------
Record Types Domestic List Pricing
------------------------------------------------------------------------
Mailing Record............................ $100/thousand.
Telemarketing Record...................... $140/thousand.
Enhanced Telemarketing Record............. $200/thousand.
Prospective Records....................... $300/thousand.
Prospective Records with linkage.......... $900/thousand.
------------------------------------------------------------------------
* Adapted from: http://www.naics.com/Service-CustomLists.html.
Since NAICS codes represent the primary activity of an
establishment in the U.S. Census Bureau database, other activities may
not be apparent if only the primary code is checked. For example, the
West fertilizer used the NAICS code 42451 on its Risk Management Plan
(submitted in 2011).\5\ This code only stands for grain and field bean
merchant wholesalers; the activity as a fertilizer distributor is not
apparent. But each establishment can have more than one NAICS code
because various other Government agencies, trade associations, and
regulation boards adopted the NAICS classification system to assign
codes to establishments for their own programmatic needs. For example,
the West fertilizer company employed the NAICS code 325314 on its Tier
II form,\6\ which stands for fertilizer (mixing only) manufacturing.
---------------------------------------------------------------------------
\5\ Risk Management Plan of the West fertilizer http://
www.rtknet.org/db/rmp/
rmp.php?facility_id=100000135597&database=rmp&detail=3&datype=T.
\6\ Tier II form of the West fertilizer.
---------------------------------------------------------------------------
Hence, in order to identify every establishment involved in a
certain activity, more than one NAICS code needs to be checked. For
example, in order to determine the number of businesses that deal with
ammonium nitrate, at least four codes need to be checked. Detailed
results on the number of facilities with potential to store ammonium
nitrate obtained from the NAICS Association website are provided in the
Table 3.
TABLE 3.--INDUSTRIES WITH A HIGH PROBABILITY OF HAVING AMMONIUM NITRATE
*
------------------------------------------------------------------------
Number of
Business
Code Industry Title in United
States
------------------------------------------------------------------------
325311.............................. Nitrogenous Fertilizer 543
Manufacturing.
325314.............................. Fertilizer (Mixing 618
Only) Manufacturing.
424910.............................. Farm Supplies Merchant 19,474
Wholesalers.
424510.............................. Grain and Field Bean 8,201
Merchant Wholesalers.
------------------------------------------------------------------------
* NAICS search http://www.naics.com/search.htm.
additional information on naics codes
TABLE A1.--NEW HIERARCHICAL STRUCTURE OF NAICS CODES*
------------------------------------------------------------------------
The New Hierarchical
Structure
------------------------------------------------------------------------
XX........................................ Industry Sector (20 broad
sectors up from 10 SIC).
XXX....................................... Industry Sub sector.
XXXX...................................... Industry Group.
XXXXX..................................... Industry.
XXXXXX.................................... U.S., Canadian or Mexican
National specific.
------------------------------------------------------------------------
* http://www.naics.com/info.htm.
TABLE A2.--NAICS SECTORS*
----------------------------------------------------------------------------------------------------------------
Code NAICS Sectors Count
----------------------------------------------------------------------------------------------------------------
11............................................ Agriculture, Forestry, Fishing and Hunting...... 553,708
21............................................ Mining.......................................... 37,975
22............................................ Utilities....................................... 37,237
23............................................ Construction.................................... 1,837,084
31-33......................................... Manufacturing................................... 762,527
42............................................ Wholesale Trade................................. 929,149
44-45......................................... Retail Trade.................................... 2,206,681
48-49......................................... Transportation and Warehousing.................. 564,026
51............................................ Information..................................... 410,057
52............................................ Finance and Insurance........................... 817,617
53............................................ Real Estate Rental and Leasing.................. 929,217
54............................................ Professional, Scientific, and Technical Services 2,648,062
55............................................ Management of Companies and Enterprises......... 53,806
56............................................ Administrative and Support and Waste Management 3,372,309
and Remediation Services.
61............................................ Educational Services............................ 402,000
62............................................ Health Care and Social Assistance............... 1,611,468
71............................................ Arts, Entertainment, and Recreation............. 359,010
72............................................ Accommodation and Food Services................. 869,846
81............................................ Other Services (except Public Administration)... 2,174,657
92............................................ Public Administration........................... 299,778
----------------------------------------------------------------------------------------------------------------
* Ibid.
Under NAICS code system, sectors 31 to 33 stand for manufacturing.
The first three digits 325 stand for chemical manufacturing. The first
four digits 3253 stand for pesticide, fertilizer, and other
agricultural chemical manufacturing. It includes sub codes 325311,
325312, 325314, and 325320.\7\ Details of these codes are given in
Table A3.
---------------------------------------------------------------------------
\7\ 2012 NAICS Definition http://www.census.gov/eos/www/naics/.
TABLE A3.--DETAILED TYPES OF INDUSTRY UNDER NAICS CODE STARTING WITH
3253
------------------------------------------------------------------------
Number of
Codes Title U.S.
Business
------------------------------------------------------------------------
325311....................... Nitrogenous Fertilizer 543
Manufacturing.
325312....................... Phosphatic Fertilizer 149
Manufacturing.
325314....................... Fertilizer (Mixing Only) 618
Manufacturing.
325320....................... Pesticide and Other 982
Agricultural Chemical
Manufacturing.
------------------------------------------------------------------------
If we look deeper into these codes, we will get much more
information from them. For example, code 325311 comprises
establishments primarily engaged in one or more of the following:
(1) manufacturing nitrogenous fertilizer materials and mixing
ingredients into fertilizers;
(2) manufacturing fertilizers from sewage or animal waste; and
(3) manufacturing nitrogenous materials and mixing them into
fertilizers.
The corresponding index entries are listed in Table A4.\8\ Clearly,
anhydrous ammonia and ammonium nitrate are involved in the
establishment with this code.
---------------------------------------------------------------------------
\8\ 325311 Nitrogenous Fertilizer Manufacturing http://
www.census.gov/cgi-bin/sssd/naics/naicsrch.
TABLE A4.--CORRESPONDING INDEX ENTRIES UNDER CODE 325311
------------------------------------------------------------------------
2012 NAICS Corresponding Index Entries
------------------------------------------------------------------------
325311................................. Ammonia, anhydrous and aqueous,
manufacturing.
325311................................. Ammonium nitrate manufacturing.
325311................................. Ammonium sulfate manufacturing.
325311................................. Anhydrous ammonia
manufacturing.
325311................................. Fertilizers, mixed, made in
plants producing nitrogenous
fertilizer materials.
325311................................. Fertilizers, natural organic
(except compost),
manufacturing.
325311................................. Fertilizers, of animal waste
origin, manufacturing.
325311................................. Fertilizers, of sewage origin,
manufacturing.
325311................................. Nitric acid manufacturing.
325311................................. Nitrogenous fertilizer
materials manufacturing.
325311................................. Plant foods, mixed, made in
plants producing nitrogenous
fertilizer materials.
325311................................. Urea manufacturing.
------------------------------------------------------------------------
The Census Bureau can provide statistics of chemical production
quarterly with regard to fertilizer products.\9\ A detailed spreadsheet
can be found by searching 3253. Part of this spreadsheet is captured as
Figure A1.\10\ We can get detailed fertilizer-related chemicals from
this sheet. Anhydrous ammonia and ammonium nitrate are inside.
---------------------------------------------------------------------------
\9\ NAICS 3253 http://www.census.gov/econ/industry/current/
c3253.htm.
\10\ MQ325B--Fertilizer and Related Chemicals http://
www.census.gov/manufacturing/cir/historical_data/mq325b/.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Appendix B
tier ii reports
Any facility covered by Emergency Planning and Community Right-to-
Know Act (EPCRA) requirements must submit an Emergency and Hazardous
Chemical Inventory Form to the Local Emergency Planning Committee
(LEPC), the State Emergency Response Commission (SERC), and the local
fire department. Facilities required under OSHA regulations to maintain
material safety data sheets (MSDS) for hazardous chemicals stored or
used in the work place with chemicals in quantities that equal or
exceed a certain thresholds must submit an emergency and hazardous
chemical inventory form to the LEPC, the SERC, and the local fire
department annually. Facilities provide either a Tier I or Tier II
form. Most States, such as Texas, require the more comprehensive Tier
II form.\11\ In Texas, the reports are collected by the Department of
State Health Services.
---------------------------------------------------------------------------
\11\ What facilities are covered? http://www.epa.gov/osweroe1/
content/epcra/epcra_stor- age.htm.
---------------------------------------------------------------------------
Tier II forms require basic facility identification information,
such as name, address, Dun & Bradstreet number, NAICS code, employee
contact information (for emergencies and non-emergencies) and
information about chemicals stored or used at the facility. The latter
includes the following:\12\
---------------------------------------------------------------------------
\12\ How do I submit a Tier I or Tier II inventory report? http://
www.epa.gov/osweroe1/content/epcra/epcra_storage.htm.
---------------------------------------------------------------------------
The chemical name or the common name as indicated on the
MSDS;
An estimate of the maximum amount of the chemical present at
any time during the preceding calendar year and the average
daily amount;
A brief description of the manner of storage of the
chemical;
The location of the chemical at the facility;
An indication of whether the owner of the facility elects to
withhold location information from disclosure to the public.
Tier II information for a specific chemical at a facility may be
obtained by sending a written request to the State emergency response
commission or the local emergency planning committee. If they do not
have the requested Tier II information, they must obtain it from the
facility. For chemicals present below 10,000 pounds, the response is
discretionary by either the State Emergency Response Commission or the
Local Emergency Planning Committee and depends on the justification of
need by the requestor. The facility must make the information available
to the SERC or LEPC if they request it on behalf of an individual.\13\
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\13\ How will citizens have access to Tier I or Tier II inventory
forms? http://emergencymanagement.supportportal.com/link/portal/23002/
23016/Article/17885/How-will-citizens-have-access-to-Tier-I-or-Tier-II-
inventory-forms.
---------------------------------------------------------------------------
In general, Tier II forms have comprehensive information and could
be useful to track a certain chemical such as ammonium nitrate.
However, some facilities may be exempted from submitting Tier II.\14\
---------------------------------------------------------------------------
\14\ Exemptions/Applicability Section 311 & 312 http://www.epa.gov/
osweroe1/content/epcra/epcra-qa_exempt_311.htm.
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Appendix C
office of the texas state chemist (otsc)--texas feed and fertilizer
control service
OTSC includes two units: The Texas Feed and Fertilizer Control
Service and the Agricultural Analytical Service. The Texas Feed and
Fertilizer Control Service (FFCS) is the State government agency
responsible for administering the Texas Commercial Fertilizer Control
Act of the Texas Agriculture Code Chapter 63, and the Texas
Administrative Code Title 4 Chapter 65 Commercial Fertilizer Rules.\15\
---------------------------------------------------------------------------
\15\ http://otscweb.tamu.edu/Reports/pdf/nwl/2013/May-2013-NL.pdf.
---------------------------------------------------------------------------
OTSC's mission is to ``protect consumers and enhance agribusiness
through its feed and fertilizer regulatory compliance program,
surveillance and monitoring of animal-human health and environmental
hazards, and preparedness planning.''\16\
---------------------------------------------------------------------------
\16\ http://otscweb.tamu.edu/About/Mission.aspx.
---------------------------------------------------------------------------
According to the Fertilizer Control Act--Texas Agriculture Code
Chapter 63, ``a person may not manufacture or distribute a commercial
fertilizer in this state [Texas] without a valid current permit issued
by the Service [OTSC] and a person may not manufacture or distribute a
commercial fertilizer in this state, other than customer-formula
fertilizer, unless the person first registers the fertilizer with the
Service''.\17\
---------------------------------------------------------------------------
\17\ http://otscweb.tamu.edu/Laws/PDF/FertilizerControlAct.pdf.
---------------------------------------------------------------------------
The application form for the permit to distribute commercial
fertilizer requires the following information: Tax number (Federal
I.D.); name of firm; telephone and fax number; mailing address; email
and website address; and the class of permit applied for.
The fertilizer application registration requires the following
information: Name; address; and telephone number of the fertilizer
facility; name of authorized representative; a list of the brands or
product names of all fertilizers distributed in Texas; the ``Net
Weight'' of each package in which the product will be distributed (or
bulk); and identification of the product by type: Pesticide; Specialty;
On-Farm-Use; Liquid or Dry.\18\
---------------------------------------------------------------------------
\18\ Office of the Texas State Chemist; Texas Feed And Fertilizer
Control Service. Fertilizer Registration Application Form. http://
otscweb.tamu.edu/Forms-Fees/Forms/FertilizerRegistrationApplication-2-
19-2008.pdf.
---------------------------------------------------------------------------
In addition, the Texas Agriculture Code Chapter 63 has a subchapter
on ammonium nitrate, which specifically requires the following: ``A
person may not produce, store, transfer, offer for sale or sell
ammonium nitrate or ammonium nitrate material unless the person holds a
certificate of registration issued by the service under this
subchapter.''\19\ Accordingly, OTSC has records of those facilities or
individuals handling ammonium nitrate. The information required in the
permit to distribute ammonium nitrate or ammonium nitrate material
includes the following: Permit number, tax number, name, telephone
number, mailing address, and email address or website of the company.
---------------------------------------------------------------------------
\19\ http://otscweb.tamu.edu/Laws/PDF/FertilizerControlAct.pdf.
---------------------------------------------------------------------------
The Texas Agriculture Code Chapter 63 Subchapter E (Fees)
establishes an inspection fee for a commercial fertilizer distributed
in Texas as 36 cents per ton of fertilizer. A facility must report the
tonnage and pay the inspection fee ``(1) quarterly if the total amount
of inspection fees in a year is $100 or more; or (2) annually if the
total amount of inspection fees in a year is less than $100.''\20\
Therefore, OTSC also has records of the total quantity of fertilizer
handled by each facility. However, the quantity of each type of
fertilizer (e.g. ammonium nitrate or other) is not specified in the
tonnage report.
---------------------------------------------------------------------------
\20\ Fertilizer Control Act. 63.072. Tonnage Report and
Inspection Fee Payment.
---------------------------------------------------------------------------
equivalent agencies in other states
State agencies equivalent to OTSC--Texas Feed and Fertilizer
Control Service also exist in other States.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
agencies regulating fertilizers in different states
The following is a brief list of agencies regulating fertilizers in
several States. This is not a comprehensive list and it was included to
emphasize that there are agencies in each State which likely maintain
records on fertilizer facilities that can be used as source of
information for DHS or other Federal agency.
California--California Department of Food and Agriculture
Fertilizing Materials Registration Application \21\
---------------------------------------------------------------------------
\21\ http://www.tsgusa.com/capabilities/state_fertilizers/
california.htm.
---------------------------------------------------------------------------
In California, fertilizers and amending materials are regulated by
the California Department of Food and Agriculture (CDFA) under the
Feed, Fertilizer and Livestock Drugs Regulatory Services Branch
(FFLDERS).
Fertilizing Materials inspection program \22\
---------------------------------------------------------------------------
\22\ http://www.cdfa.ca.gov/is/ffldrs/fertilizer.html.
---------------------------------------------------------------------------
The Fertilizing Materials Inspection Program is an industry-funded
program that ensures consumers receive fertilizing materials that are
safe and effective and meet the quality and quantity guaranteed by the
manufacturer. Inspectors and investigators located throughout the State
conduct routine sampling and inspections; respond to consumer
complaints; and enforce the laws and regulations that govern the
manufacturing and distribution of fertilizing materials. Registration
Specialists carefully review product labels for misleading claims and
compliance with existing labeling requirements. (Fertilizing Materials
Licensing, Registration & Labeling Guide)
Washington--Washington State Department of Agriculture
All fertilizer products distributed in Washington must first be
registered with Washington State Department of Agriculture (WSDA). An
additional registration requirement for waste-derived fertilizers was
added to the fertilizer law in 1998. Waste-derived and micronutrient
fertilizers must go through a Department of Ecology (Ecology) review
before being registered by WSDA. All registration applications must
first be submitted to WSDA. WSDA will forward information to Ecology
for further review on an as-needed basis.\23\
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\23\ http://agr.wa.gov/pestfert/fertilizers/
productregistration.aspx.
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Florida--Florida Department of Agriculture and Consumer Services \24\
---------------------------------------------------------------------------
\24\ http://www.freshfromflorida.com/onestop/aes/fertilizer.html.
---------------------------------------------------------------------------
The Fertilizer Section is responsible for enforcing the
requirements of Florida's Commercial Fertilizer Law, Chapter 576,
Florida Statutes and Chapter 5E-1, Florida Administrative Code.
Applicant(s) requesting to distribute fertilizer in the State of
Florida with their name appearing on the fertilizer label as guarantor
are required to complete the following registration requirements using
the Fertilizer Regulatory Website on-line located at: http://
lims.flaes.org. All registered licensees report monthly tonnage using
the Fertilizer Regulatory Website and pay an inspection fee of $1.00
per ton for mixed fertilizer and fertilizer materials, including an
additional $.50 per ton if the fertilizer contains nitrogen or
phosphate. The inspection fee for liming materials and untreated
phosphatic materials is $.30 per ton.
Minnesota--Minnesota Department of Agriculture \25\ \26\
---------------------------------------------------------------------------
\25\ http://www.mda.state.mn.us/licensing/licensetypes/
specialty.aspx.
\26\ http://www.mda.state.mn.us/licensing/licensetypes/
fertilizer.aspx.
---------------------------------------------------------------------------
The objective of the Fertilizer Licensing Program is to promote
fair trade practices among businesses that offer fertilizer products
for sale and provide consumer awareness/protection by providing
accurate, meaningful, and uniform labeling and licensing standards.
Michigan--Michigan Department of Agriculture and Rural Development
The Michigan Department of Agriculture and Rural Development \27\
(MDARD) administers licenses, registrations, inspects and tests
fertilizer, soil conditioner, and liming materials distributed or
manufactured in Michigan.\28\
---------------------------------------------------------------------------
\27\ http://www.michigan.gov/mdard.
\28\ https://www.michigan.gov/statelicensesearch/0,4671,7-180-
24786_24812-81089--,00.html.
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New Mexico--New Mexico Department of Agriculture \29\
---------------------------------------------------------------------------
\29\ http://www.nmda.nmsu.edu/fsf/fertilizer-and-soil-conditioners/
fertilizersoil-conditioner-registration-and-tonnage/.
---------------------------------------------------------------------------
In New Mexico, products are registered by the individual product
label. Registration fees are $5.00 per product in any size quantities.
There is a $10.00 annual inspection fee per product if distributed in
quantities of 5 pounds or less in lieu of the quarterly inspection
fees. There is no exemption for sample size containers. A registration
application packet consists of a complete fertilizer/soil conditioner
registration application, complete, legible label for each product
being registered and fees.
North Dakota--North Dakota Department of Agriculture \30\
---------------------------------------------------------------------------
\30\ http://www.nd.gov/ndda/general-resource/north-dakota-state-
government/ndda-fertilizer-registration-and-licensing-guidelines.
---------------------------------------------------------------------------
The North Dakota Department of Agriculture regulates fertilizer and
soil amendment products through the authority provided by Chapter 19-
20.1 of the North Dakota Century Code (N.D.C.C.). The fertilizer law is
primarily a consumer protection law, ensuring that labeling for
fertilizer products accurately reflects product composition and the
concentration of key ingredients. N.D.C.C. 19-20.1 is also a licensing
law, requiring certain businesses to be licensed to distribute and sell
fertilizer products, thereby providing a level playing field for
businesses and uniform regulatory oversight. Therefore, the Department
uses its statutory authority to regulate the registration,
distribution, sale, and labeling of fertilizer products.
Oklahoma--Oklahoma Department of Agriculture, Food and Forestry,
Consumer Protection Services \31\ \32\
---------------------------------------------------------------------------
\31\ http://www.ok.gov/okag/forms/cps/cfa.pdf.
\32\ http://www.ok.gov/okag/cps-fertilizer.htm.
---------------------------------------------------------------------------
This department deals with Fertilizer License Application, which
indicates the products stored in bulk and/or distributed, including
Anhydrous Ammonia, Liquid Fertilizer, Ammonium Nitrate, Dry Bulk
Fertilizer and Bagged Fertilizer.
Oregon--Oregon Department of Agriculture \33\ \34\ \35\
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\33\ http://www.oregon.gov/ODA/pest/Pages/fertilizer.aspx.
\34\ http://oda.state.or.us/dbs/heavy_metal/search.lasso.
\35\ http://www.oregon.gov/ODA/PEST/docs/pdf/2011_fert_guide_0.pdf.
---------------------------------------------------------------------------
ODA fertilizer program governs fertilizer, agricultural mineral,
agricultural amendment and lime products. It provides registration
procedure, guides, and forms.
Appendix D
building occupancy permits
A Certificate of Occupancy (CO) is a document issued by Building
Inspection, which permits land and/or buildings to be used for the
purpose(s) listed on the CO.\36\ COs are required prior to occupancy of
a building or land.
---------------------------------------------------------------------------
\36\ http://www.dallascityhall.com/building_inspection/
building_inspection_faqs.html#A5.
---------------------------------------------------------------------------
Classification.--According to uniform fire code, Ammonium Nitrate
(AN) would ordinarily be classified as an oxidizer class 1, which is an
oxidizer that ``can undergo an explosive reaction due to contamination
or exposure to thermal or physical shock.''\37\ Table D1 shows the
classification of oxidizers.
---------------------------------------------------------------------------
\37\ http://www2.iccsafe.org/states/oregon/07_structural/07_PDFs/
Chapter%203_Use%20and%20Occupancy%20Classification.pdf.
TABLE D1.--OXIDIZER CLASSIFICATION *
------------------------------------------------------------------------
Oxidizer Class Description
------------------------------------------------------------------------
Class 1................................ An oxidizer that can undergo an
explosive reaction due to
contamination or exposure to
thermal or physical shock.
Additionally, the oxidizer
will enhance the burning rate
and can cause spontaneous
ignition of combustibles.
Class 2................................ An oxidizer that will cause a
severe increase in the burning
rate of combustible materials
with which it comes in contact
or that will undergo vigorous
self-sustained decomposition
due to contamination or
exposure to heat.
Class 3................................ An oxidizer that will cause a
moderate increase in the
burning rate or that causes
spontaneous ignition of
combustible materials with
which it comes in contact.
Class 4................................ An oxidizer whose primary
hazard is that it slightly
increases the burning rate but
which does not cause
spontaneous ignition when it
comes in contact with
combustible materials.
------------------------------------------------------------------------
* https://law.resource.org/pub/us/code/ibr/icc.ifc.2009.pdf.
This means that according to table 2703.1.1 \38\ of the fire code
it would be classified as a high hazard (H-1) when the max allowable
quantity is exceeded. Because agricultural materials are exempt from H-
1 classification, AN would then be reclassified as moderate hazard
storage (S-1).
---------------------------------------------------------------------------
\38\ https://law.resource.org/pub/us/code/ibr/icc.ifc.2009.pdf.
TABLE D2.--EXCERPT OF TABLE 2703.1.1 FROM THE INTERNATIONAL FIRE CODE
----------------------------------------------------------------------------------------------------------------
Group when the maximum
Material Class allowable quantity is Solid pounds (cubic
exceeded feet)
----------------------------------------------------------------------------------------------------------------
Oxidizer............................. 4...................... H-1.................... 1.
3...................... H-2 or H-3............. 10.
2...................... H-3.................... 200.
1...................... Not Applicable......... 4,000.
----------------------------------------------------------------------------------------------------------------
Requirements.--The information required for a CO varies from city
to city. Although each is unique, much of the information is consistent
such as address, business name, total area, floor plan, and other
fields.\39\ \40\ \41\ \42\ Some CO applications are very detailed and
contain useful information such as a full inventory and MSDS for all
chemicals present, however this is not a general requirement. Some
applications ask only whether or not hazardous chemicals are present on
site.\43\ Also, the CO application is just the first step. In order to
obtain a CO, the building is commonly inspected by a building inspector
or by a fire inspector. In order to see what additional information the
inspectors looked for and how much of the information the fire fighters
had access to, the local building permit office and fire department in
College Station, Texas were interviewed.
---------------------------------------------------------------------------
\39\ http://www.dallascityhall.com/pdf/Building/
CertOfOccupancy.pdf.
\40\ http://www.ci.garland.tx.us/documents/COOtherPackage811.pdf.
\41\ http://www.ci.greenville.tx.us/DocumentCenter/Home/View/924.
\42\ https://webapps1.sanantonio.gov/dsddocumentcentral/upload/
form_CertificateOfOccupancyApplication.pdf.
\43\ http://www.ci.garland.tx.us/documents/COOtherPackage811.pdf.
---------------------------------------------------------------------------
The building permit office has an application that contractors must
complete before a new building is built or before making alterations to
an existing building.\44\ These applications are all public records
that can be requested from the office, and filtered based on their
answers to a checklist found in the document. They also keep a database
of all submissions to the office according to date submitted.\45\ Below
is an excerpt of their June 2013 submissions.
---------------------------------------------------------------------------
\44\ http://www.bryantx.gov/resources/Bldgpermit.pdf.
\45\ http://www.bryantx.gov/departments/?id=435.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Unfortunately, the information this document contains is focused on
zoning issues and does not ask about the quantities and types of
chemicals that can be found at different locations.
The College Station, TX fire department was also interviewed about
building occupancy permits. The fire department has a database with a
list of hazardous chemicals handled by local industries. Unfortunately,
some companies file commercial names of their products rather than the
actual chemical names, but provide accurate information about the
hazards of the chemicals and include the NFPA fire diamond. While this
is useful for fire departments, it might not be helpful in finding
which companies store which chemicals. According to the Fire Marshal,
the most reliable and complete source of information is the Tier II
reports.
______
Statement of Rick Hind, Legislative Director, Greenpeace
August 1, 2013
lessons of the west, texas chemical disaster
Department of Homeland Security's Chemical Security Statute Is Fatally
Flawed
New Clean Air Act Rules Could Eliminate the Catastrophic Consequences
of an Attack, Accident, or Natural Disaster
introduction
Too often key stakeholders are not at the table in Washington when
important issues are discussed. In this case, it's the safety of more
than 100 million Americans who live and work in ``vulnerability zones''
similar to West, Texas. The following are some words of wisdom from a
few them:
``Should there be a successful terrorist attack on a chemical facility,
the first question policy makers will be asked is this: `Why, when
you've known for more than ten years that America's chemical facilities
were vulnerable to terrorist attack, did you consistently fail to take
the steps needed to reduce that vulnerability and save lives?'
``Members of Congress need to think long and hard about how they'd
answer that question if they continue to avoid taking the sensible
steps required to make these facilities safer and less vulnerable to
acts of terrorism.''--Bob Bostock, Special Assistant to the
Administrator (EPA) for Homeland Security (2001-2003).
``According to the 9/11 Commission, urgent warnings were ignored before
the September 11 attacks. In addition, the Commission concluded that
our government's first failure was a `failure of imagination.' My
husband was a victim of that failure.
``Yet today we continue to lack the imagination to prevent another
tragedy. While we are all aware of the vulnerability and catastrophic
hazards posed by our nation's highest risk chemical plants, we also
know much more about the many safer chemical processes that can
eliminate a plant's attractiveness as terrorist target.
``The fact that special interest lobby groups and allied politicians
want to stand in the way of requirements to prevent such a disaster is
unthinkable. I fear that when we suffer a catastrophic failure or
attack at one of these facilities, those same elected officials will
finally learn that the loss of human life is not worth the campaign
dollars of moneyed special interests. Of course, by then, it will be
too late.''--Kristen Breitweiser, 9/11 widow.
``In the event of a catastrophic chemical release in a major U.S. city,
first responders would likely face the same fate as thousands of
workers and community residents who would quickly be overcome by poison
gas before they had a chance to evacuate. In addition, our emergency
room capacity to treat thousands of poison gas victims on such a mass
scale would be overwhelmed. Preventing such a disaster is the only
effective means of treatment.''--Peter Orris, MD, MPH Professor and
Chief of Service, Occupational and Environmental Medicine, University
of Illinois Hospital and Health Science System.
``Our members work in many of these facilities. We know how vulnerable
they are, not just to terrorist attack, but to plain old accidents
caused by any number of system failures.''--Michael J. Wright, Director
of Health, Safety and Environment, United Steelworkers.
``Early in my career as a Fire Fighter, I responded to an accident at a
chemical plant. As the workers were evacuating, we were going into the
plant, unsure of what dangers we would encounter and unsure of our own
survival. The risks to both fire fighters and plant employees have
increased as a result of more chemical plants in urban areas and the
threat of terrorism. These risks can be reduced using safer
alternatives and safer chemical processes that can prevent catastrophic
events and save lives.
``New regulations are needed to require the use of safer and more
secure alternatives wherever they are feasible to lower the risk to
first responders, plant employees, and residents in the surrounding
communities.''--Fire Captain Ed Schlegel, Ret. County of Los Angeles
Fire Department.
``There are 473 chemical plants in the U.S. that each put 100,000 or
more Americans at risk of a Bhopal-like disaster. In addition, several
thousand other plants also use and store poison gases such as chlorine
and anhydrous ammonia on their property. Too many of these facilities
are in lower-income neighborhoods and communities of color. The
families in these communities have already waited too long for the
federal government to make these neighborhoods safe from the dangers
posed by these plants.
``The government needs to stop pointing fingers and take responsibility
to eliminate the risks these facilities pose and prevent an avoidable
chemical disaster.''--Stephen Lester, Science Director Center for
Health, Environment & Justice, Falls Church, VA.
``How many lives must be lost before we have a policy that fully
protects our communities and workers?''--Richard Moore of Los Jardines
Institute (The Gardens Institute), and former chair of the EPA's
National Environmental Justice Advisory Council.
``Sheltering in place does not protect the health and well-being of
residents and communities. Requiring the use of safer alternatives will
provide communities real protection from needless catastrophic
hazards.''--Michele Roberts, Environmental Justice Health Alliance.
``Regrettably, our world is becoming more dangerous and risky, and
policymakers can ill-afford to ignore the potential of risk prevention
as another element of mainstream mandatory regulation. Clearly, the
risk prevention paradigm raises significant design and implementation
issues that require careful attention and reasonable resolution. Yet,
these issues are not unlike those faced by existing risk management
programs and, thus, justify caution rather than rejection of this
valuable regulatory approach.''--Timothy F. Malloy, University of
California, Los Angeles Law School.
the chemical facility anti-terrorism standards (cfats) did not protect
west texas and will not protect communities from preventable hazards
The April 17 disaster in West, Texas that claimed 14 lives and
injured hundreds is was an unnecessary, preventable tragedy. Among the
Preliminary Findings of the U.S. Chemical Safety Board (CSB):
``Industry has developed other forms of ammonium nitrate that are
reported to reduce or eliminate the risk of accidental detonation. For
example, compounding the ammonium nitrate with calcium carbonate
(limestone) `practically eliminates any risk of explosion in its
storage, transportation, and handling,' while preserving the AN's
nutritive value. Calcium ammonium nitrate fertilizers have been widely
used in Europe. Ammonium sulfate nitrate also has been found to be non-
explosive provided the percentage of AN is held below about 37%.''
Without the use of a safer formulations of ammonium nitrate or
other fertilizers a number of interim policies will need to be
implemented to at least mitigate risks if not prevent future
explosions. These policies should include but are not limited to:
Minimum buffer zones for facilities storing bulk quantities
of ultra-hazardous materials must be established similar to
what the Bureau of Alcohol Tobacco and Firearms and Explosives
(ATF) has required for explosives.
Enforcement of right-to-know laws to ensure that communities
and first responders know of the location, volume, and nature
all ultra-hazardous materials stored at local facilities.
Establishment of strict fire-proof storage facility
requirements and fire codes.
Require minimum liability coverage for facilities
commensurate with potential damage, injury, and death.
In the mean time, Federal Emergency Management Agency (FEMA) should
designate West, Texas a Federal disaster zone, making it eligible for
disaster relief so the city can rebuild.
west, texas is the tip of a chemical disaster iceberg
U.S. chemical facilities were never designed to defend against
terrorist attacks and predicting where the next attack or accident will
take place is a fool's errand. No one predicted that Timothy McVeigh
would attack the Federal Building in Oklahoma City in 1995, killing 168
innocent people. And no one predicted the two fatal chemical accidents
in Louisiana (Geismar and Donaldsonville) in June. Last October,
Secretary of Defense Leon Panetta issued a warning to business
executives in NY City regarding the increasing threat of cyber attacks
saying, ``The collective result of these kinds of attacks could be a
cyber Pearl Harbor; an attack that would cause physical destruction and
the loss of life . . . '' He also gave the example of ``computer
control systems that operate chemical, electricity and water plants and
those that guide transportation throughout this country.'' http://
www.defense.gov/transcripts/transcript.aspx?transcriptid=5136.
a worst-case accident or successful attack would be catastrophic
In July, 2004, the Homeland Security Council estimated that
an attack on a single chlorine facility could kill 17,500
people, severely injure an additional 10,000 and result in
100,000 hospitalizations and 70,000 evacuations.
In January, 2004, the U.S. Naval Research Laboratory
testified before the Washington, D.C. City Council warning that
100,000 people could be killed or injured in the first 30
minutes of a catastrophic release of a tank car of chlorine or
similar chemical within blocks of Capitol Hill. They further
estimated that people could ``die at rate of 100 per second.''
a comprehensive prevention program is essential and the epa has the
authority to implement it
Despite the inadequacy of existing regulatory measures, EPA has
unambiguous legal authority under the Clean Air Act to take actions
requiring safer technologies to reduce the possibility of catastrophic
releases. In particular, section 112(r) of the Clean Air Act contains
two sources of authority: (1) EPA's hitherto unused authority under
section 112(r)(7)(A) ``to promulgate release prevention, detection, and
correction requirements which may include monitoring, record-keeping,
reporting, training, vapor recovery, secondary containment, and other
design, equipment, work practice, and operational requirements.'' 42
U.S.C. 7412(r)(7)(A); and (2) the ``general duty clause,'' section
112(r)(1), which imposes an obligation on all owners and operators of
facilities that use extremely hazardous substances to ``design and
maintain a safe facility taking such steps as are necessary to prevent
releases, and to minimize the consequences of accidental releases which
do occur,'' 42 U.S.C. 7412(r)(1).
In outlining the policies he would implement if he were elected,
President Obama stated that his administration would ``[s]ecure our
chemical plants by setting a clear set of Federal regulations that all
plants must follow, including improving barriers, containment,
mitigation, and safety training, and, where possible, using safer
technology, such as less toxic chemicals.''\1\ The President, Vice
President, and other administration officials have repeatedly stated
their support for inherently safer technology requirements. Former EPA
Administrator Christine Todd Whitman has recently called upon EPA to
exercise its powers under the section 112(r) to address chemical
threats,\2\ and Chemical Safety Board Chair Rafael Moure-Eraso has
called upon EPA to make enforceable requirements for the use of safer
chemicals and processes ``a cornerstone of its accident prevention
programs.''\3\ As elaborated above, such requirements are necessary to
protect the public against possible chemical releases, including those
that may be caused by terrorist attacks, and are well within EPA's
existing authority under section 112(r) of the Clean Air Act.
---------------------------------------------------------------------------
\1\ Change We Can Believe In: Barack Obama's Plan to Renew
America's Promise, at 116 (2008).
\2\ See The Danger Downwind, N.Y. Times, May 23, 2012, http://
www.nytimes.com/2012/05/24/opinion/the-danger-downwind-of-chemical-
plants.html.
\3\ R. Moure-Eraso, ``It's time for government and industry to
adopt inherently safer technology,'' Charleston Gazettte, June 23,
2012, http://wvgazette.com/Opinion/OpEdCommentaries/201206230057.
---------------------------------------------------------------------------
On April 25, former EPA Administrator Lisa Jackson told MSNBC,
``What needs to happen is that we need to use the authority that we
have now . . . '' http://www.nbcnews.com/id/51675545/ns/msnbc-
all_in_with_chris_hayes/t/all-chris-hayes-thursday-april-th/
#.Ufhk4XiNdMw. The EPA drafted just such a proposal in 2002: https://
www.documentcloud.org/documents/332410-epachemsecurityrollout-
june02.html. Having already drafted safer chemical process requirements
in 2002 and again in 2009 for security legislation, the EPA is well-
positioned to begin rulemaking proceedings under Clean Air Act section
112(r)(7), and take action to revise its guidance for enforcement of
the general duty clause of Clean Air Act section 112(r)(1).
current dhs rules (cfats) are fatally flawed
The best that can be said for the DHS's chemical security
regulations known as ``Chemical Facilities Anti-Terrorism Standards''
(CFATS) is that they represent an official recognition of the
widespread vulnerability of U.S. chemical plants to terrorism.
Unfortunately the 744-word ``rider'' (Section 550) to the Homeland
Security Appropriations Act 2007 was designed to authorize ``interim''
regulations that were expected to expire on October 4, 2009 but have
since been given a series of short-term extensions.
To the DHS's and EPA's credit they have repeatedly testified before
Congress since 2009 recommending that CFATS be amended to require high-
risk facilities to assess safer chemical processes and to conditionally
require the highest-risk facilities to implement safer chemical
processes where feasible. Examples of DHS and EPA testimony since
October 2009 are at: http://www.dhs.gov/ynews/testimony/
testimony_1297438322830.shtm, http://www.epa.gov/ocir/hearings/
testimony/111_2009_2010/2010_0728_ccd.pdf, http://www.dhs.gov/ynews/
testimony/testimony_1301517368947.shtm.
In November of 2009 the House passed permanent, comprehensive
legislation (H.R. 2868) that also included the DHS and EPA
recommendations on prevention and eliminating security gaps but it
never became law. If enacted H.R. 2868 would have seamlessly continued
CFATS while addressing its fatal flaws.
Specifically, the underlying statute (Section 550) which authorized
CFATS:
Bars the DHS from requiring any ``particular security
measure,'' including safer chemical processes, what Senator
Lieberman (I-CT) called, ``the only foolproof way to defeat a
terrorist determined to strike a chemical facility.'' It
therefore fails to reduce the consequences of an attack at any
of approximately 4,000 ``high-risk'' chemical facilities now in
the program..--Alternatively H.R. 2868 conditionally required
safer chemical processes. (Section 2111).
Exempts thousands of the 12,361 chemical facilities in the
EPA's chemical disaster program, including an estimated 2,400
U.S. drinking water & waste treatment plants, and hundreds of
chemical facilities located on navigable water ways including a
majority of the U.S.'s 150 refineries.--Alternatively H.R. 2868
covered all of these facilities. (Section 2103).
Fails to require deadlines for the completion of
vulnerability assessment and facility security plans, or
deadlines to notify facilities of a disapproval of security
plans.--Alternatively H.R. 2868 set deadlines for completion of
vulnerability assessments and security plans. (Section 2103).
Fails to authorize unannounced inspections or increased
inspectors.--Alternatively H.R. 2868 authorized unannounced
inspections and added at least 100 new inspectors. (Section
2104).
Fails to require annual progress reports to Congress on the
numbers of security plans approved & disapproved, numbers of
compliance orders, and penalties issued, etc.--Alternatively
H.R. 2868 required annual progress reports to Congress on
security plans approved & disapproved, compliance orders, and
penalties issued. (Section 2119).
Fails to provide for citizen enforcement suits or petitions
of the Government to ensure implementation of required
programs, or protection for whistleblowers.--Alternatively H.R.
2868 provided for citizen enforcement suits, petitions, and
whistleblower protections. (2116, 2117 & Sections 2108).
Fails to provide funding to convert publicly-owned water
treatment systems or private chemical facilities to safer
chemical processes.--Alternatively H.R. 2868 provided grants
for the conversion to safer processes at publicly-owned water
treatment plants and privately-owned facilities. (Section
1433). An in independent analysis of H.R. 2868 showed that
8,000 jobs would have been created, benefiting publicly-owned
water systems and the chemical industry sectors the most:
http://www.misi?net.com/publications.html.
Fails to require meaningful involvement of plant employees
in developing security plans.--Alternatively H.R. 2868 provided
for employee participation in the development of security
plans. (Sections 2103 & 2115).
Complaints about the DHS CFATS program have harped on the slow pace
of approving site security plans (SSPs) and the general lack of
transparency of the DHS in too many aspects of the program. Again, H.R.
2868 would have put the DHS on a schedule and made them and the
industry more accountable through unannounced inspections, reports to
Congress, citizen enforcement suits and petitions, etc.
A faster pace in the CFATS program envisioned in H.R. 2868 would
also have coincided with a faster pass in reducing hazards and the
consequences of a successful attack. The rush, however, to approve SSPs
in today's CFATS program does not build confidence among the public.
When airline passengers face a flight delay they are frustrated but
they also don't want the flight rushed onto the runway at the expense
of safety.
The adoption of Alternative Security Plans (ASPs) developed by the
chemical industry lobbying organizations is also no comfort to millions
of people living within vulnerability zones. They have too often
``sheltered in place'' or been assured that strange odors, flares,
fires, or even explosions ``released no harmful levels'' of dangerous
substances (U.S. refineries have reported an average of 45 fires per
year since 2008). We are unaware of any ASPs that require disaster
prevention measures such as safer chemical processes.
Conspicuously absent from oversight hearings on CFATS are questions
about safer chemical processes that would prevent disasters. Given the
limitations of the underlying statute, the DHS could at least issue a
19th Risk-Based Performance Standard (RBPS) to encourage high-risk
facilities to evaluate safer available chemical processes or ``methods
to reduce the consequences'' of an attack. This idea was raised by
Senator Lieberman (I-CT) in his formal comments on the CFATS rules in
2007.
Regarding transparency, the DHS should also provide specific
information on facilities that have legitimately left the CFATS program
because they no longer use or store chemicals of interest (COI).
Without giving away confidential business information, concrete
examples of safer processes would be more useful to other high-risk
facilities which may want to reduce their liability, save money on
conventional security costs and have fewer regulatory obligations as
the Clorox Company has done.
In 2012 the DHS reported only 35 facilities in the two highest-risk
Tiers (1 and 2) that qualify as catastrophic ``release'' category
facilities. This is out of a total of about 579 facilities in those two
risk tiers. This is a symptom of how few high-risk facilities are in
CFATS and how many are exempt. Meanwhile in the EPA's RMP program there
are 473 facilities that each put 100,000 or more people at risk. If
CFATS were a comprehensive program all of those facilities would be in
risk Tiers 1 or 2.
Some of the highest-risk facilities in the country are more
loosely-regulated under other statutes such as the Maritime
Transportation Security Act (MTSA), Clean Water Act, and Safe Drinking
Water Act. None of these statutes contain prevention requirements.
Moreover, the MTSA statute is petro-chemical lobby's model for ASPs.
Some of the highest-risk chemical facilities in the country are exempt
from CFATS because they are located on navigable waterways and
therefore regulated by the Coast Guard under MTSA. Although DHS is
attempting to harmonize the two programs, the MTSA facilities are
never-the-less explicitly exempt from CFATS requirements should they
ever be enhanced.
There has also been little or no scrutiny of the Chemical Sector
Critical Infrastructure Partnership Advisory Council (CIPAC) that
operates autonomously and provides far too much access and opportunity
for influence by the regulated industry over its regulator (DHS) both
in the development of rules and their implementation. For more details,
see the November 25, 2010 Washington Post story on CIPAC: http://
www.washingtonpost.com/wp-dyn/content/article/2010/11/24/AR201011-
2407022.html.
The only non-Governmental members of the Chemical Sector CIPAC are
chemical industry lobbying organizations or chemical company
representatives. Although the DHS operates several committees under the
Federal Advisory Committee Act (FACA), but the CIPAC is exempt from
FACA regulations and most of its activity is done behind closed doors.
Even the names of the individuals representing the trade associations
are kept secret. The secrecy is rationalized as necessary to encourage
candor by the industry. Rather than receiving ``candid'' comments from
industry lobby groups who have led efforts to kill prevention policies,
the DHS should seek regularized candid input from all stakeholders.
Currently no residents living near or rank-and-file employees
working in high-risk plants, including community organizations or
unions, technical experts from academia, or any nonprofit organizations
that do not represent the industry are allowed to participate in CIPAC.
CIPAC's budget is more than $1 million a year and its charter
expires March 16, 2014. The DHS Secretary has authority to terminate
the council at any time or allow its charter to expire and create a
FACA council that represents all stakeholders.
The legislation (Section 550) which authorized CFATS was never
intended to be a comprehensive statute. Senator Susan Collins (R-ME),
chair of the Senate Homeland Security and Governmental Affairs
Committee addressed this in her February 7, 2007 comments to the DHS:
``In drafting Section 550, the intent of Congress was clear and
unambiguous--this statutory provision provides the Department strong,
interim authority for up to three years until permanent, comprehensive
authority can be enacted . . .
``Section 550 was a streamline version of chemical security
legislation; it was not the comprehensive authorizing legislation that
Congress intended to be the final authority on this matter . . .
``The Department does not have broad discretion to regulate beyond the
interim three-year period without a comprehensive authorization from
Congress. Any contrary interpretation of the `sunset' provision is
plainly wrong.''
since 2009 the actual number of high-risk chemical plants has grown
A November 16, 2012 CRS update of the number of high-risk chemical
facilities in the EPA's chemical disaster or Risk Management Program
(RMP) shows a growing number of chemical facilities that each put
thousands of people at risk of a catastrophic chemical release. https:/
/www.documentcloud.org/documents/557127-crs-rmp-update-11-16-12.html.
In 2012, there were 12,440 EPA facilities Nation-wide that
possessed thresholds quantities of ultra-hazardous chemicals requiring
reports to the EPA of their ``worst-case'' disaster scenarios. This was
an increase of 79 facilities over the CRS's 2011 update on this EPA
program. https://www.documentcloud.org/documents/557129-crs-update-of-
us-rmps-state-by-state-4-12-11.html.
The increase in 2012 included 28 additional facilities that put
between 10,000 and 99,999 people at risk in the following States:
Arizona, California, Colorado, Kansas, Louisiana, New Jersey, New
Mexico, New York, Ohio, Oregon, Rhode Island, South Dakota, Texas,
Utah, and Washington. The 2011 CRS update also showed an increase of
332 in the total number of RMP facilities over the 2009 CRS update.
https://www.documentcloud.org/documents/557128-crs?update-2009.html.
smart security can eliminate the catastrophic consequences of an attack
In February 2008, the CEO of Association of American Railroads
said, ``It's time for the big chemical companies to do their part to
help protect America. They should stop manufacturing dangerous
chemicals when safer substitutes are available. And if they won't do
it, Congress should do it for them . . . ''.
The good news is that there are many commercially-available safer
processes for virtually all of the poison gas or toxic-by-inhalation
(TIH) processes that pose the greatest risks to major urban centers.
The Center for American Progress (CAP) has done several reports
analyzing EPA's Risk Management Program data and in 2006 identified 284
facilities that have converted since 1999. See full report at: http://
www.americanprogress.org/issues/2006/04/b681085_ct2556757.html.
Examples of safer more secure chemical processes:
The Blue Plains sewage treatment plant in Washington, DC
halted its use of chlorine and switched to a safer chemical
process 90 days after the 9/11 attacks due to fears of another
attack. The plant had seven 90-ton rail cars of chlorine on-
site following the 9/11 attacks. The conversion cost
approximately $0.50 per year for each water customer.
By mid-2012, the Clorox Company converted all of its U.S.
facilities to ``strengthen our operations and add another layer
of security,'' according to their CEO Don Knauss. Clorox also
indicated that these changes ``won't affect the size of the
company's work-force.'' This conversion eliminated Clorox's
bulk use of chlorine gas and catastrophic risks to more than 13
million people in nearby communities. http://
investors.thecloroxcompany.com/releasedetail.cfm?-
ReleaseID=420583.
The 2006 CAP analysis also showed that 87% of the converted
facilities spent $1 million or less and one-third expected to save
money, particularly from reduced liability costs and reduced regulation
compliance costs. These costs pale in comparison to the billions of
dollars incurred in disaster response, relocating communities,
defending against personal injury law suits or resolving environmental
clean-up liability or long-term conventional security costs which add
nothing to the bottom line.
While the CAP analysis demonstrates the availability and
feasibility of safer alternatives, most of the examples are not at the
highest-risk facilities. A 2008 CAP analysis identified 300 chemical
facilities that together put 110 million Americans at risk. At the
current rate of voluntary conversions, without any new regulatory
requirements, it could take 40 years to eliminate these hazards to our
major cities.
Risk Management Solutions estimated that a ``chlorine spill
scenario results in 42,600 total casualties, over 10,000 of which are
fatal. Insurance claims covering these casualties would exceed $7
billion.'' http://www.rms.com/NewsPress/PR_042904_CasualtyStudy.asp.
threats continue
A November 21, 2011 MSNBC reported on a hacker that ``penetrated
the network of a South Houston, Texas, water-treatment plant to expose
the inherent vulnerabilities in critical industrial control facilities
and prove how easily they can be compromised.'' The potential
consequences of a real attack could result in the release of the
contents of a 90-ton chlorine rail car which are routinely used to
store chlorine gas at water treatment plants. http://www.msnbc.msn.com/
id/45394132/ns/technology_and_science-security/#.TsvL17LNlGUA.
A November 2010 Washington Post report revealed that the Lashkar-e-
Taiba terrorist organization that committed the 2008 attacks in Mumbai,
India, had also asked a now-convicted U.S. ally to ``conduct
surveillance of an unnamed chemical plant in Maryland.'' Lashkar-e-
Taiba was reportedly gathering intelligence on U.S. targets as early as
2001. http://tpmlivewire.talkingpointsmemo.com/2010/11/the-man-behind-
mumbai.php.
On August 2, 2010, two men were convicted of plotting to blow up
jet-fuel tanks at John F. Kennedy International Airport, a plan
authorities said was meant to outdo the September 11, 2001 attacks.
http://www.washingtontimes.com/news/2010/aug/2/ny-jury-convicts-2-jfk-
airport-tank-blast-plot/?page=1.
Since before 9/11, the Kuehne Chemical Company in South Kearny, NJ
has put up to 12 million people at risk of a chemical disaster due to
their chlorine gas storage adjacent to New York City. Former counter-
terrorism operative for the CIA, Charles Faddis visited the Kuehne
plant in July 2009. In his book Willful Neglect he wrote: ``Anybody
with minimal training in breaching and some basic equipment can go
through those gates in moments. After that, it is all over. There is no
way on earth that any guards inside are going to react, repel a team of
armed assailants and prevent the inevitable. Every tank in the facility
is going to be ruptured, either by satchel charges or vehicle-borne
explosive devices, and what happens in the surrounding area is then
going to be purely a function of meteorological conditions.'' (For
approximately 2 years the Kuehne website has claimed that the plant is
in the process of converting to a safer process but no details have
been made public.)
On August 29, 2007, a railroad tank car of chlorine rolled out of a
rail yard in Las Vegas, Nevada and ran for 20 miles before it slowed to
a stop on its own. During that 20-mile run it rolled through the heart
of Las Vegas and densely-populated neighborhoods reaching speeds of up
to 50 miles an hour. http://www.lvrj.com/news/9466232.html.
Security expert Stephen Flynn, a Senior Fellow in National Security
Studies at the Council on Foreign Relations warned in his 2007 book,
The Edge of Disaster: `` . . . While attacks on the electric grid, oil
and gas facilities, major ports, and the food-supply system have the
potential to create the greatest cascading economic effects, it is
chemical facilities near urban population centers that have the
potential to inflict the greatest casualties . . . In most cases,
chemical plants that threaten nearby populations can switch to less
dangerous substances. This practice is known as `inherently safer
technology,' or IST . . . Without a strong mandate from the federal
government, it's unrealistic to think they ever will. Yet voluntary
compliance is the premise of the legislation Congress passed last fall
[2006]; the new rules rest on the assumption that companies will now
suddenly begin taking steps they have so far refused to contemplate.''
______
Article Submitted For the Record by Ranking Member Clarke
chemical that sparked deadly texas explosion found across u.s.
By Ryan McNeill and M.B. Pell, New York, Wed. May 22, 2013 6:06pm EDT.
(Reuters).--At least 800,000 people across the United States live
near hundreds of sites that store large amounts of potentially
explosive ammonium nitrate, which investigators are blaming as the
source of last month's deadly blast at a fertilizer plant in West,
Texas, a Reuters analysis shows.
Hundreds of schools, 20 hospitals and 13 churches, as well as
hundreds of thousands of households, also sit near the sites. At least
12 ammonium-nitrate facilities have 10,000 or more people living within
a mile.
Fourteen people were killed and about 200 injured April 17 when a
fire at West Fertilizer Co. was followed by a massive explosion. Ten of
the dead were first responders from area fire departments.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The explosion destroyed an apartment complex and nursing home that
sat within a few hundred yards of the fertilizer plant, damaged homes
within a half mile of the plant and cracked windows even farther away.
Investigators say ammonium nitrate stored at the plant was the
source of the explosion, but they have not identified the cause.
Since 1990, companies have reported more than 380 incidents
involving ammonium nitrate to the National Response Center, a federal
agency that collects reports of spills, leaks and other discharges
within the United States. Eight people were killed, 66 injured and more
than 6,300 evacuated in those incidents, according to the center's
data. But reporting is voluntary, and center officials say the records
cover only a fraction of all incidents.
Reuters' analysis of hazardous chemical inventories found schools,
hospitals and churches within short distances of facilities storing
ammonium nitrate, such as an elementary school in Athens, Texas, that
is next door to a fertilizer plant. The Hiawatha Community Hospital in
Padonia, Kansas, is less than a quarter-mile from one site and three-
quarters of a mile from another.
The Athens school district said it is reviewing its emergency plans
now, but until a reporter called on Friday had not considered the
potential danger from the fertilizer plant.
``It's amazing how a tragedy like West makes us rethink things,''
said Janie Sims, assistant superintendent. ``Who would have even
mentioned it or thought of it before?''
Some sites are in heavily urbanized areas. Acid Products Co. in
Chicago, which reported storing between 10,000 and 99,999 pounds of
ammonium nitrate in 2012, is surrounded by about 24,000 people. Company
officials declined to comment.
The number of people affected nationwide, as well as the count of
nearby hospitals, churches and schools, are likely higher because
Reuters was unable to get information from all 50 states.
Reuters spent about four weeks obtaining copies of hazardous-
chemical inventories, known as Tier II reports, collected by states
under the federal Emergency Planning and Community Right to Know Act.
Twenty-nine states provided information, identifying 440 sites. Not all
sites in those states were included in the analysis because of
incomplete location information.
Reporters used mapping software, combined with Census and other
data, to identify the nearby population, schools, churches and
hospitals.
Of the 21 remaining states, 10 declined to provide their data, one
declined to provide it in electronic form, and the rest either provided
incomplete information, did not respond, do not maintain the filings
electronically or are still considering the requests. Federal law
allows 45 days to provide the information.
Among those that withheld data was Missouri, which The Fertilizer
Institute, an industry association, said is the No. 1 user of ammonium-
nitrate fertilizer in the United States. The group said Missouri
accounts for 20 percent of the nation's use of the product.
(M.B. Pell and Ryan McNeill reported from New York.; Edited by
Janet Roberts and Michael Williams.)
______
Statement of Paul Orum, Consultant, Coalition to Prevent Chemical
Disasters
August 1, 2013
My name is Paul Orum. I thank the committee for the opportunity to
present views important to a broad coalition of environmental health,
labor, and community organizations known as the Coalition to Prevent
Chemical Disasters. My background for 25 years is Government
information policy regarding hazardous materials.
Recent deadly explosions in West, TX and Geismar, LA, among others,
remind us of the need for more effective public protections from
industrial chemicals in populated areas.
These recent incidents are hardly rare. The National
Response Center recorded more than 11,000 oil and chemical
spills in the last year alone.\1\
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\1\ On-line search of National Response Center conducted June 20,
2013. NRC is the National point of contact for reporting oil and
chemical spills.
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The potential for large-scale incidents is ever-present. A
Congressional Research Service analysis indicates more than 470
facilities have vulnerability zones potentially affecting any
of 100,000 or more people in the event of a worst-case toxic
gas release.\2\
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\2\ Congressional Research Service memorandum to Senator Frank R.
Lautenberg, RMP Facilities in the United States, November 16, 2012.
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Similar scenarios repeat. The fire and explosion at West
Fertilizer is reminiscent of an event in Kansas City, Missouri,
at which a construction facility storing ammonium nitrate first
caught fire and then exploded killing six fire fighters after
they had responded to the fire. That was November 29, 1988.
In general, the chemical safety landscape includes a lot of
neglect, missed communication, static regulations, voluntary standards,
and prosecution afterwards. There is not enough on prevention,
technically competent inspections, community-wide awareness, producer
responsibility, and safer alternatives. Regulations should not only
control problems but also generate safer solutions. Accident prevention
is ultimately more effective than response.
Risk management and emergency planning should be revised and
updated in light of on-going and recent plant explosions.
(1) Risk management planning should include reactive chemicals like
the ammonium nitrate that detonated at West Fertilizer. Where there is
serious potential harm to the public, reactive chemical hazards should
be included in Risk Management Plans (RMP) under the Clean Air Act,
section 112(r). The Chemical Safety and Hazard Investigation Board has
an open recommendation to EPA to this end:
``Revise the Accidental Release Prevention Requirements, 40 CFR 68, to
explicitly cover catastrophic reactive hazards that have the potential
to seriously impact the public, including those resulting from self-
reactive chemicals and combinations of chemicals and process-specific
conditions. (Recommendation No. 2001-1-I-H-R3)''
While the general duty clause of the Clean Air Act presumably
covers all facilities that hold extremely hazardous substances--
including reactive substances that pose catastrophic hazards--the
general duty does not explicitly cover important proactive elements of
RMPs, such as the requirement to assess and communicate chemical
hazards. Adding ammonium nitrate to the RMP program could have informed
the owner of West Fertilizer, first responders, and the public about
the magnitude of the danger, including off-site consequences, and might
have prevented or reduced the tragic consequences of the explosion.
(2) Management systems and controls do fail. Chemical facility
owners and operators have a responsibility not only to understand their
own chemical hazards, but also to understand less hazardous
alternatives that are commercially available in their industry. EPA
should require chemical facilities to review and include in RMPs
available methods that prevent potential consequences of a worst-case
incident. Such methods are often the most effective measures to protect
workers at the site, emergency responders, and nearby populations.
Surveys show that the RMP process has prompted some companies to
reduce or remove chemical hazards, one of the objectives of the
program. The RMP process facilitates changes that companies may be
considering for a variety of reasons, including safety, security, and
other regulatory requirements.
More than 554 drinking water and wastewater facilities
converted from toxic inhalation hazard chemicals, removing
dangers to more than 40 million Americans. (The 554 facilities
are examples among other facilities that have converted to less
hazardous operations.)\3\
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\3\ Center for American Progress, Leading Water Utilities Secure
Their Chemicals, March 2010.
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Facilities across some 20 industries already use options
that do not pose the danger of a major toxic gas release,
including bleach producers, water utilities, power plants,
refineries, aluminum smelters, and many types of
manufacturers.\4\
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\4\ Center for American Progress, Chemical Security 101: What You
Don't Have Can't Leak, or Be Blown Up by Terrorists, November 2008.
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Facilities that convert to safer operations may save money
when all factors are considered, such as avoided costs of
release control devices, liability insurance, regulatory
compliance, personal protective equipment, site security, and
emergency planning.\5\
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\5\ Center for American Progress, Preventing Toxic Terrorism: How
Some Chemical Facilities Are Removing Danger to American Communities,
April 2006.
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These facilities typically substituted a less hazardous replacement
chemical or process; used a chemical in a less hazardous form (such as
less concentrated, or aqueous instead of gaseous); or adjusted the
process design to minimize use or storage (such as generating the
chemical on site as-needed without storage). These strategies are
distinct from conventional risk management approaches such as
containment, control, mitigation, or recovery of substances.
The House and Senate reports on the Clean Air Act Amendments of
1990 show that Congress viewed measures to remove avoidable chemical
hazards as integral to the statutory goal of preventing accidental
releases:
``Measures which entirely eliminate the presence of potential hazards
(through substitution of less harmful substances or by minimizing the
quantity of an extremely hazardous substances present at any one time),
as opposed to those which merely provide additional containment, are
the most preferred.''\6\
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\6\ Senate Report on the Clean Air Act Amendments of 1990 Report
No. 101-228 (S-1630), page 209.
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``Hazard assessments . . . include a review of the efficacy of various
release prevention and control measures, including process changes or
substitution of materials.''\7\
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\7\ House of Representatives, Clean Air Act of 1990: Conference
Report to Accompany S-1630. Report No. 101-952 (October 26, 1990), page
349.
EPA took public comment on inherently safer approaches for facility
design and operations when first implementing the RMP program.\8\
Unfortunately the agency did not develop the approach at the time. As a
result, covered facilities are not required to evaluate feasible
chemical hazard reduction alternatives that may be the most effective
safety measures. Basic prevention analysis elements such as the avoided
costs and liabilities associated with alternate technologies are not
standard elements of RMPs. Such elements are foundational to developing
knowledge of solutions. They are among the elements that help make
organizations intelligent about the advantages, costs, and feasibility
of technology options.
---------------------------------------------------------------------------
\8\ 60 Federal Register 13526, March 13, 1995.
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In March 2012, EPA's National Environmental Justice Advisory
Council urged the agency to prevent chemical disasters by more fully
using its authorities to advance safer chemical processes under the
Clean Air Act.\9\ In July 2012, more than 50 organizations petitioned
EPA to commence rulemaking under the Clean Air Act and to revise agency
guidance for enforcement of the general duty clause.\10\
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\9\ National Environmental Justice Advisory Council letter to EPA
Administrator Lisa P. Jackson, March 14, 2012.
\10\ Petition to the Environmental Protection Agency to Exercise
Authority Under Section 112(r) of the Clean Air Act to Prevent Chemical
Facility Disasters Through the Use of Safer Chemical Processes, July
25, 2012.
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The EPA Administrator has authority under the Clean Air Act,
section 112(r), to incorporate methods that prevent potential
consequences into RMPs and should do so.
(3) The explosion at West Fertilizer illustrates the importance of
the Clean Air Act's general duty to operate safely. West Fertilizer was
subject to an incomplete patchwork of chemical safety regulations
regarding ammonium nitrate. The general duty clause holds firms
responsible for understanding and managing their chemical hazards
regardless of the completeness of Government actions to regulate those
hazards. For example, the ammonium nitrate at West Fertilizer was not
on the RMP list of substances and thresholds. The general duty is an
important tool for not only enforcement but also prevention. EPA's
implementation guidance for the general duty clause recognizes that
removing chemical hazards can be an effective safety measure, but EPA
should further develop the concept in this guidance. We strongly oppose
restricting the general duty clause in ways that could hamper
enforcement or prevention. We also oppose arbitrarily fragmenting
Federal authorities between safety and security. By Presidential
Directive, the U.S. EPA is the lead agency to oversee security at
drinking water and wastewater facilities.\11\
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\11\ Homeland Security Presidential Directive/HSPD 7, Critical
Infrastructure Identification, Prioritization, and Protection, December
17, 2003.
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(4) Emergency planning notification is incomplete. The ammonium
nitrate that exploded at West Fertilizer was not on the Emergency
Planning and Community Right to Know Act (EPCRA) section 302 list of
substances that require emergency planning notification. EPCRA section
302 requires facilities that hold threshold amounts of listed chemicals
to notify their State Emergency Response Commission (SERC) and
designate a point of contact at the facility to participate in
emergency planning. It should be acknowledged that local emergency
response capacities are often starkly overmatched by the magnitude of
chemical hazards, and that activity levels of Local Emergency Planning
Committees (LEPC) vary widely. Too much is left to the mostly-volunteer
LEPCs--States should have fee-based programs that support hazard
reduction, inspections, and regular drills. Nonetheless, EPCRA 302
notifications are a starting point for local emergency planning. The
EPA administrator has responsibility to modify the EPCRA 302 list and
should do so. While lists and thresholds will inevitably fall short--
hence the need for a general duty to operate safely--EPA should revise
the EPCRA 302 list to include common substances that are known
emergency hazards. This process should include both proactive listing
criteria and a review of substances involved in serious incidents
reported to the National Response Center.
(5) EPCRA inventory reporting is valuable but insufficient. Owners
and operators of facilities that hold large amounts of hazardous
chemicals have an obligation to clearly communicate chemical hazards to
those who could be affected prior to an emergency. West Fertilizer did
report ammonium nitrate to the Texas SERC under EPCRA section 312 (a
Tier II report). Texas apparently maintains Tier II reports in an
electronic format, which is important. EPA should continue to support
and promote free electronic information management tools such as Tier
II Submit, RMP*Comp, and CAMEO. The EPA should also develop routine
electronic access to EPCRA 312 Tier II data from each State through
memoranda of understanding or other means (as should OSHA and DHS). EPA
should also promote awareness of reporting and planning obligations
among regulated facilities. However, simple awareness of chemicals on-
site is not sufficient. Local emergency planners and responders need
not only chemical inventories but also worst-case and planning-case
scenarios (which are included in RMPs but not EPCRA Tier II reports).
They also need regular information about the number and type of high-
hazard shipments in all modes of transportation. Fee-based programs
should support prevention, pre-fire planning, technically competent
inspections, drills, and NFPA-compliant hazmat training--including
clear reminders that evacuating may be the most prudent course of
action.
(6) Independent investigations are important. The Chemical Safety
and Hazard Investigation Board, also established by the Clean Air Act
112(r), produces root cause investigations and safety recommendations
after the most serious chemical accidents. These activities are
important to the public because they provide credible information and
focused recommendations for change. Barriers to effective
investigations, such as site access and preservation, should be
resolved.
Issues beyond EPCRA and Clean Air Act, 112(r):
(7) Schools and nursing homes shouldn't be in potential blast
zones. It is not an easy problem. Communities may grow up around
chemical facilities or vice versa, but they are too close together in
many places. State and local planners could benefit from Federal
guidelines for substantial safe set-back distances, based on a worst-
case scenario, in order not to continue to compound the problem when
siting new buildings. School buildings were badly damaged by the blast
in West, Texas. School siting criteria should take into account
proximity to hazardous chemical facilities. Recipients of Federal
construction funds for buildings that will be used by potentially
vulnerable populations (such as Head Start schools, hospitals, or
nursing homes) should be subject to oversight to prevent building in
the near zone of potential harm. In addition, the agricultural
chemicals security tax credit assists agricultural distributors with
conventional security measures such as fences and lights; it should
assist facilities that want to move locally to safer locations.
(8) Hazardous chemical operations shouldn't be underinsured. West
Fertilizer reportedly carried only $1 million in liability insurance, a
fraction of the estimated $100 million in property damage alone.
Companies that hold large amounts of extremely hazardous substances
should be required to maintain sufficient liability insurance to cover
a worst-case chemical release. Such a requirement would provide a
reasonable cost incentive for companies to develop and use feasible
alternatives. In addition, common carrier obligations encourage wide-
spread overuse of railcars for shipping and storing extremely hazardous
substances. Railroads have sought to have shippers share liability
risks associated with extremely hazardous substances (which they are
required to carry) and to have shippers develop safer substitutes.\12\
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\12\ Center for American Progress, Toxic Trains and the Terrorist
Threat: How Water Utilities Can Get Chlorine Gas Off the Rails and Out
of American Communities, April 2007.
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Sustained improvement in chemical hazard prevention, preparedness,
and response is long-term and involves a range of actions. Among the
most immediate lessons from the West Fertilizer explosion are for EPA
to make sure major recognized hazards are: (1) Included in the programs
designed to address them, (2) subject to safer alternatives analysis by
the companies that hold them, (3) covered by appropriate lists and
thresholds, and by the general duty to operate safely.
Thank you again for the opportunity to testify. I would be glad to
take any questions.
______
Statement of the U.S. Environmental Protection Agency
August 1, 2013
Mr. Chairman and Members of the subcommittee, we are pleased to
provide testimony for the record from the U.S. Environmental Protection
Agency (EPA) regarding issues concerning chemical facility safety. Our
testimony focuses on emergency planning and community right-to-know
efforts, and the EPA's Risk Management Program (RMP).
The EPA's Risk Management Program was one of the sources used by
the Department of Homeland Security (DHS) in developing the Chemical
Facility Anti-Terrorism Standards (CFATS) program. The essential
approach of RMP is largely incorporated in the CFATS program. The CFATS
program follows the RMP approach of employing a combination of lists of
chemicals, the nature of chemicals, along with threshold amounts of
those chemicals, to define the regulated community.
The EPA worked closely in support of DHS during the development
phase of the CFATS program, providing detailed explanations as to how
certain elements of the program worked and how the EPA implemented
those elements. Since the launch of CFATS, the EPA has continued to
support DHS in providing a regularly-updated database of the EPA-
regulated RMP facilities, and has continued to provide chemical
facility safety assistance to DHS as needed.
the emergency planning and community right-to-know act
In response to the devastating chemical disaster in Bhopal, India
in 1984, Congress passed the Emergency Planning and Community Right-to-
Know Act (EPCRA) in 1986 to ensure that local communities have the
authority they need to prevent, prepare for, and respond to chemical
accidents. The EPCRA provisions help increase local planners,
responders, and the public's knowledge and access to information on
chemicals at individual facilities and risks associated with them.
States and communities, working with facilities, can use the
information to improve chemical safety and protect public health and
the environment. The implementing regulations for emergency planning,
emergency release notification, and the chemicals subject to these
regulations are codified in 40 CFR part 355. The implementing
regulations for community right-to-know reporting (or hazardous
chemical reporting) are codified in 40 CFR part 370.
Subtitle A of EPCRA establishes the framework for local emergency
planning. The Act requires that the EPA publish a list of extremely
hazardous substances (EHSs). The EHS list was established by the EPA to
identify chemical substances that could cause serious irreversible
health effects from accidental releases (See 40 CFR part 355 (52 FR
13378, April 22, 1987)). The agency was also directed to establish a
threshold planning quantity (TPQ) for each extremely hazardous
substance.
The purpose of the EHS's list is to focus initial efforts in the
development of State and local contingency plans. Inclusion of a
chemical on the EHS's list indicates a need for the community to
undertake a program to investigate and evaluate the potential for
accidental exposure associated with the production, storage, or
handling of the chemical at a particular site and develop a chemical
emergency response plan around those risks.
Under EPCRA section 302, a facility that has an EHS on-site in
excess of its TPQ must notify the State Emergency Response Commission
(SERC) and Local Emergency Planning Committee (LEPC), as well as
participate in local emergency planning activities. Under the Statute,
the LEPC shall then develop a community emergency response plan.
Emergency Response plans contain information that community officials
can use at the time of a chemical accident.
The EPA and the National Oceanic and Atmospheric Administration
(NOAA) have developed a system of software applications used widely by
States and local emergency planning committees to plan for and respond
to chemical emergencies. This system is called the Computer-Aided
Management of Emergency Operations (CAMEO) and it was developed to
assist front-line chemical emergency planners and responders. Emergency
responders and planners use CAMEO to access, store, and evaluate
information critical for developing emergency plans. In addition, CAMEO
supports regulatory compliance by helping users meet the chemical
inventory reporting requirements of EPCRA. The CAMEO system integrates
a chemical database and a method to manage the data, an air dispersion
model, and a mapping capability. All modules work interactively to
share and display critical information in a timely fashion.
Subtitle B of EPCRA established community right-to-know
requirements in order to ensure information on chemicals in the
community is provided to the public as well as emergency responders.
Under ECPRA sections 311 and 312, facilities that have either: (1) A
hazardous chemical present at or above 10,000 pounds or (2) an EHS
present at or above its TPQ or 500 pounds--whichever is the lesser, are
required to submit an Emergency and Hazardous Chemical Inventory form
(Tier II) and a Material Safety Data Sheet (MSDS) for that chemical to
their SERC, LEPC, and local fire department. A chemical is hazardous as
defined under the Hazard Communication Standard (HCS) of the
Occupational Safety and Health Act (OSHA). There is not a separate list
of hazardous chemicals. If a facility is required by OSHA to develop
and/or maintain a MSDS for that chemical and it is present at or above
the threshold discussed above, it must be reported. Local fire
departments receive this information and should use it to understand
the chemical(s) present at facilities in their community and
precautions they may need to take in responding to an accident at the
facility.
Sections 311 and 312 of EPCRA make available to the local and State
emergency planners information on other chemicals and facilities,
beyond those identified under section 302, that they may wish to
include in their emergency planning efforts. The EPA has specified in
guidance that Tier II information under section 312 will provide
specific information on the quantities and locations of hazardous
chemicals. Thus, sections 311 and 312 provide information supportive of
the emergency planning required under Subtitle A. The facilities
identified as a result of that subtitle are only a ``first cut'' of the
facilities and potential chemical hazards for which emergency planning
may be necessary.
risk management program
The Clean Air Act (CAA) 112(r) provisions build on the planning and
preparedness groundwork laid by EPCRA. The CAA 112(r) provides the
authority for the EPA's Risk Management Program. RMP regulations apply
to the owner or operator of a stationary source with more than a
threshold quantity of a CAA section 112(r)-regulated substance in a
process. Section 112(r) chemicals and thresholds may overlap with
chemicals listed under other rules, but are not identical to those on
any other list. The section 112(r) list includes 63 flammable gases and
liquids and 77 acutely toxic chemicals. To develop the list, several
statutory factors were considered, including the severity of any acute
adverse health effects associated with accidental releases of the
substance, the likelihood of accidental releases of the substance, and
the potential magnitude of human exposure to accidental releases of the
substance. An accidental release is an unanticipated emission of a
regulated substance or other extremely hazardous substance into the
ambient air from a stationary source. Many of these substances are also
included on the EPCRA extremely hazardous substance (EHS) list. The
section 112(r) chemical list and corresponding thresholds for each
chemical are published at 40 CFR 68.130. Under CAA section 112(r), the
EPA is required to review the list of chemicals every 5 years or by its
own motion or by petition. The EPA also provides an on-going review of
new chemicals and hazards to see if any chemical warrants listing or
delisting.
Under the RMP regulations, a covered facility is required to review
the hazards associated with the covered substance, process, and
procedures, as well as develop an accident prevention program and an
emergency response program. The ``Hazard Review'' must identify
opportunities for equipment malfunction or human error that could in
turn cause the accidental release of the covered substance, as well as
safeguards to prevent the potential release, and steps to detect and
monitor for a release. A facility's compliance with these requirements
is documented in a Risk Management Plan that is submitted to the EPA.
Covered facilities must implement the Plan and update them every 5
years or when certain changes occur. The goal of the EPA's Risk
Management Program is to prevent accidental releases of substances to
the air that can cause serious harm to the public and the environment
from short-term exposures, and to mitigate the severity of releases
that do occur. Approximately 12,800 facilities are currently covered
under Risk Management Program regulations.
Under the CAA section 112(r) RMP facilities must submit a risk
management plan which includes:
Facility hazard assessments, including worst-case release
and alternative release scenarios;
Facility accident prevention activities, such as use of
special safety equipment, employee safety training programs,
and process hazards analyses conducted by the facility;
Past chemical accidents at a facility; and
Facility emergency response programs and plans.
Another key component of Section 112(r) of the Clean Air Act, is
section 112(r)(1), which is the General Duty Clause. This provision
requires owners and operators of any stationary sources producing,
processing, handling or storing an RMP substance or any other extremely
hazardous substance to identify hazards which may result from such
releases using appropriate hazard assessment techniques, to design and
maintain a safe facility taking such steps as are necessary to prevent
releases, and to minimize the consequences of accidental releases which
may occur. Under the General Duty, facilities are expected to comply
with recognized and generally accepted good engineering practices.
Both EPCRA and the CAA section 112(r) Risk Management Program
encourage communication between facilities and the surrounding
communities about chemical safety and chemical risks. Regulatory
requirements, by themselves, will not guarantee safety from chemical
accidents. Those who are handling hazardous substances must take the
responsibility and act to prevent, prepare for, and respond to chemical
emergencies. Information about hazards in a community will allow local
emergency officials and the public to work with industry to prevent
accidents.
conclusion
The EPA will continue its efforts to help prevent chemical
accidents and releases under the Risk Management Program. Strong
chemical accident prevention, preparedness, and response programs rely
upon effective partnerships with the public and all levels of
government. We will continue our outreach efforts to stakeholders and
work with our Federal, State, and local partners to promote chemical
safety, address chemical process safety issues, and explore
opportunities for improving chemical safety.
Ms. Clarke. I thank you, Mr. Chairman. I thank our
panelists this morning, and look forward to further
conversation.
[The statement of Ranking Member Clarke follows:]
Statement of Ranking Member Yvette D. Clarke
August 1, 2013
Two hours after a fertilizer plant exploded in West around sunset
on a Wednesday, on April 17, much of the town 18 miles north of Waco
resembled a war zone. Some people were missing. Hundreds more were
rushed off to area hospitals. Homes burned, others threatened to
collapse. The Texas Department of Public Safety spokesman D.L. Wilson
offered this grim but accurate assessment of the devastation many saw
via TV: ``Massive . . . just like Iraq, just like the Murrah Building
in Oklahoma City.''
The explosion destroyed an apartment complex and nursing home that
sat within a few hundred yards, a nearby unoccupied elementary school
was severely damaged, walls and roofs of homes and businesses within a
half-mile of the plant cracked, and windows even further.
There are no Federal setback guidelines or requirements to separate
extremely hazardous substances from surrounding populations, such as
schools, houses, nursing homes, apartments, and businesses, based on a
worst-case scenario.
I have been told at least 800,000 people across the United States
live near hundreds of sites that store large amounts of potentially
explosive ammonium nitrate, hundreds of schools, hospitals, and
churches, as well as hundreds of thousands of households, also sit near
the sites. Nationally, at least 12 ammonium-nitrate facilities have
10,000 or more people living within a mile, according to a Reuters
analysis of hazardous-chemical storage data maintained by 29 States.
Complaints about the DHS CFATS program have recently focused on the
fact that facilities that should be reporting to CFATS are not being
contacted about their required reporting duty under the program. The
program has also come under scrutiny about the slow pace of inspecting
and approving site security plans, or SSP's.
A faster pace in the CFATS inspection and review process could have
produced more tangible results in reducing vulnerabilities and
consequences of a successful terrorist attack on a facility, and it
could have also been a help for community emergency preparation for
all-hazards events, such as the apparent industrial accident we are
examining today. It seems to me they are intertwined.
However, the current rush to approve SSPs in today's CFATS program
may not build confidence among the public. When airline passengers face
a flight delay they are frustrated, and they complain, but they also
don't want the flight rushed onto the runway at the expense of safety.
The tragic events in West, Texas, may bring into sharper focus the
issue of how we as a country protect our citizens from not only the
threat of a terrorist attack on facilities that store explosive
chemicals, but how we identify and classify these types of facilities
to begin with. Will these methods be enough to protect hundreds of
thousands of people living within chemical facility vulnerability
zones? And will it help local emergency planning committees prepare for
events like the one in West, Texas?
As one of our witnesses will testify today, and it is just common
sense, that an engaged and informed public is a vigilant public.
Citizens, first responders, medical professionals, plant workers, and
local officials all need to be better informed about local chemical
security and safety information, in order to be prepared for all types
of emergencies.
We do know that West Fertilizer did report the possession and
storage of ammonium nitrate to the State Emergency Response Commission,
or SERC. This was done under the Emergency Planning and Community
Right-to-Know Act, or EPCRA. The SERC in Texas apparently maintains
Tier II reports in an electronic format, which is important to
remember.
I want to find out if The Department of Homeland Security did or
did not compare their list of CFATS top-screen facilities to the
Emergency Planning and Community Right-to-Know reports held
electronically by each State, a relatively simple procedure that might
have helped identify facilities that failed, like West, to conduct a
Top-Screen under CFATS.
It would seem to me that DHS should have a Memorandum of
Understanding with each State for routine electronic access to EPCRA
data in that State. But I'm looking for answers, and I hope someone on
the panels will be able to tell us today.
These questions, at the core of today's hearing, naturally produce
other questions, like--what technological or business practice changes
have enabled operating facilities that have submitted Top-Screens, to
tier out of CFATS? I have been told there are apparently some 3,000
formerly tiered facilities, which are now considered less attractive
terrorist targets and no longer of interest to DHS. Is there a specific
development, technological or procedural, that encourages facilities to
tier out? I'd like to learn more about that.
Another feature that I have learned about is that West Fertilizer
seemingly lacked adequate liability insurance. While not a requirement
in the CFATS program, companies that hold extremely hazardous
substances and maintain liability insurance commensurate with a worst-
case scenario would provide an incentive for companies to use methods
that reduce potential consequences. This is just standard business
practice, nothing earth-shattering. Another Critical Infrastructure
piece involved in this tragic event is rail transportation. West
Fertilizer apparently received shipments of ammonium nitrate by rail.
Under common carrier obligations, do shippers of extremely hazardous
substances, and rail carriers, routinely carry enough insurance to
cover liability associated with a worst-case release or explosion? I
will be interested to find out.
Federal, State, and local interagency planning and cooperation may
be the key to finding solutions to prevent events like West, Texas from
happening, whatever the cause. DHS must step up to the plate on
security, and find ways to identify outliers, and retool efforts to
assess risk-based vulnerabilities.
Other agencies, like EPA, already have authorities under the Clean
Air Act to incorporate methods to reduce consequences into their Risk
Management Plans, and I understand the White House chemical security
interagency group is working on this issue; it will be helpful to find
out what the President's Executive Order, released this morning, will
actually do.
Mr. Meehan. I thank the Ranking Member. Once again, I thank
our panelists for your presence here today. I now recognize
myself for 5 minutes of questioning.
Mr. Wulf, allow me to begin with you. Let's get to the
heart of the issue that we are here for today, the outlier
facilities. DHS, I appreciate, has concluded that this was not
a terrorist attack, and so we are not implicated specifically
in this. But nobody would deny that there was the possibility
that better activity on the part of collaboration and
communication should have been able to create enough
recognition that somewhere we would have known about this
facility and been able to take some kind of steps to have
protected those fire fighters.
The report has come. Thirty tons of ammonium nitrate were
there, and yet DHS had no knowledge of the facility, they had
never even heard of West Fertilizer before the tragic event.
So, have we gotten to the point where there are literally
thousands of chemical facilities like West throughout the
country that DHS is not aware of?
Mr. Wulf. Yes, I don't think I am in a position to
speculate as to the number of noncompliant facilities that are
out there. But, you know, I can certainly tell you that we are
absolutely committed to doubling down on the outreach efforts--
--
Mr. Meehan. Let me make sure that you don't believe that I
am pulling this number out of the air. Your own--it was the--
you know, the inspector's report from your own agency that
estimated that there are thousands out there. You are aware of
that?
Mr. Wulf. The OIG report?
Mr. Meehan. Well, it is--yes, well I will give it to you.
Mr. Wulf [continuing]. Report?
Mr. Meehan. Yes, I will get it for you. I mean, I have
reviewed it myself. That is why I am asking. It is not a secret
that there are thousands.
Mr. Wulf. Yes----
Mr. Meehan. Somebody has estimated that there are
thousands.
Mr. Wulf. Certainly, the West tragedy underscores, you
know, our need to ensure that we are doing all we can to reach
facilities that we have not yet been able to reach and that
have not complied with their obligation to report their
holdings of high-risk chemicals of interest.
So, you know, we have, over the course of the CFATS
program, done a significant amount of outreach. Actually,
upwards of 11,000 separate outreach engagements, compliance
assistance visits with facilities, presentations, outreach to
State and local agencies, including first responders.
But we are looking anew at those efforts, and ensuring that
where there have been gaps we are going to be in a position to
fill those gaps. So that includes things like redoubling our
efforts with State homeland security advisors and working with
those State homeland security advisors to reach down to the
level of State regulatory agencies so that where State
regulatory agencies are aware of facilities that may not have
come into our orbit. We can compare their lists against our
lists. I have worked personally in the last several weeks with
the State fire marshal for the State of Texas to ensure,
together, that we have mutually-exchanged lists of facilities
that have ammonium nitrate in the State of Texas.
Over the past 3 months, my staff has worked directly with
the offices of all 50 State homeland security advisors. We are
also working, and, you know, it was mentioned earlier this
morning that we had worked well with the National-level trade
associations, and that members of those associations, you know,
have probably a heightened ability to be aware of their
regulatory----
Mr. Meehan. Well, I think there is no doubt that there is a
heightened ability. I mean, this is part of the problem. We
have got a series of agencies, and we will explore some of
this, with regard to--I know what the intentions are. We will
explore some of this with regard to some of the other agencies:
OSHA, EPA, State overseers, your partners in this who want to
collaborate with you. Ag associations and others, all of whom,
in different sets of responsibilities, are actually collecting
this information. Yet it is not finding its way to you.
You are not able, somehow, to communicate with these other
groups. So I hear what you are saying about what you would like
to do. But we are 5 years into this program. We are close to
half a billion dollars that have been given to your group to
effectuate CFATS. Five years later we are beginning to hear
about the fact that you may begin to do more in the way of
conversations with other kinds of State partners. There was an
effort that was undertaken with the EPA and it failed. Then you
went back again and started another whole new way of comparing
data.
Why wasn't that followed up on? What was the problem
associated with that earlier effort to collaborate among
existing Federal agencies, and how can it be that complex an
issue? We can follow a package in the mail by the minute if we
send it with UPS or even our own mail service. Here we are
moving huge sums of chemicals and you are telling me you don't
know where they are, and people just don't get it.
Mr. Wulf. Yes, well, you know, I think, with regard to the
earlier EPA effort it did not yield significantly useful
results. I think largely, and this was in 2008-2009 time frame,
because of incompatibilities in the respective databases. So we
have done a lot of work organizationally, and we now find
ourselves in a better position to do that sort of crosswalk. We
have----
Mr. Meehan. Where--tell, me. Okay, I want to know, today,
what do you believe are going to be the time lines and what do
you believe are going to be the metrics so we can have some
measurables on some performance with regard to this? If you are
unprepared to give me that today I will accept that. But I want
to hear from you, very soon, with predictions on those metrics.
Can you speak to them today?
Mr. Wulf. I can speak with regard to EPA data. We have
reinvigorated that effort and we have already conducted the
crosswalk between the two databases. With regard to----
Mr. Meehan. What have you found?
Mr. Wulf. We have found that there are some facilities, and
I don't have the number with me on hand, that were found in the
EPA database and that had not submitted Top Screens to us. I
think, as well, and I don't want to speak on EPA's behalf, but
there are--you know, there are facilities in our database that
are not in EPA's. With regard to metrics, I think, you know,
the metric, off the top of my head, would be the numbers of Top
Screens that we receive from facilities.
I do think it is important to note that over the course of
the program, as a result of the efforts we have undertaken to
this point to get the word out--and it is not to say that there
is not more to do because, certainly, you know, we are
committed to doing all we can to get the word out--but we have
received 44,000 Top Screens from facilities that have met their
obligation to report their high-risk chemical holdings.
Mr. Meehan. All right. Well, I--my time has expired. I know
we will talk a little bit more about top fliers among other
things.
I thank you, and now turn it to the Ranking Member for her
questions.
Ms. Clarke. Thank you, Mr. Chairman. Mr. Wulf, would you
please describe how DHS, ISCD does or does not access other
relevant Federal, State, and local government agency and
interagency chemical information that is routinely gathered,
and that would have indicated threshold chemicals of interest
in inventory at West, Texas?
Mr. Wulf. Well, I talked a little bit about what we have
been doing with EPA, recently having shared our respective RMP
and CFATS databases of facilities. We are doing the same thing
with our colleagues at the Bureau of Alcohol, Tobacco,
Firearms, and Explosives, who are responsible for regulating
Federal explosives licensees and permitees across the Nation.
We are working also with the States, with State agencies,
through the State homeland security advisory----
Ms. Clarke. Has this been a standard practice, or is this
in the wake of what happened in West, Texas?
Mr. Wulf. We have certainly taken a look in the wake of
what happened at West, Texas, but this sort of activity has
happened, I would say, more episodically over the history of--
--
Ms. Clarke. So it wasn't a norm or a standard protocol.
Mr. Wulf. No.
Ms. Clarke. Okay. So are you saying that you are now
establishing a norm and a standard protocol with these
agencies?
Mr. Wulf. Yes. With respect to EPA, for instance, we have
done this initial crosswalk. We are sort of evaluating a time
line for repeating it on a regular cycle.
Ms. Clarke. Mr. Caldwell, do you agree that this is an
established norm or protocol that is in formation?
Mr. Caldwell. We have not looked at the program since the
West, Texas thing, but I think, obviously, the President's
Executive Order is going to put additional emphasis on this to
kind of force the agencies to work together to do the data
sharing. I have not seen the Executive Order yet, but at least
as to how it was summarized by Mr. Wulf.
Ms. Clarke. This is just a, you know, a basic sort of 101
DHS mission, which is to coordinate and collaborate with other
agencies to keep the homeland safe. You know, we have got to
come up to speed. The American people really expect more of
this agency. I just want to highlight that. Because we are
constantly talking about information sharing and, you know, if
we are, you know, not doing this, it is really flying in the
face of the mission of this agency, and impedes its growth,
quite frankly.
Mr. Wulf. The information sharing is absolutely a priority
for the CFATS program. Our inspectors across the country have
been plugged in to their communities, including with first
responders, local emergency planning committees. We have about
120 inspectors across the country, and it is a large country.
In Region 6, which includes the State of Texas, we have 13
inspectors for a 5-State region that spans from New Mexico to
Arkansas. So I can promise you they have been doing their best
to ensure that they are communicating with, and sharing
information with, local authorities, State and local
authorities.
Ms. Clarke. How long has this sort of staffing been the
case----
Mr. Wulf. As long as I have been in place, which has been
about 2 years.
Ms. Clarke. Well, that raises a concern for me. Mr. Wulf,
please describe how Oak Ridge National Lab, which is involved
in CFATS assessment tool development, gathers, stores, and
communicates interagency EPA information it acquires with ISCD
personnel, and why this relevant information was, or was not,
passed on to the ISCD headquarters.
Mr. Wulf. Well, we work for, you know, ISCD's part, we work
with Oak Ridge. They are the folks who sort-of run the
databases against one another; so crosswalk the databases. So
responsibility, for example, we received from EPA the list of
facilities that are regulated under the EPA's RMP program. We
provided that to Oak Ridge. They did the crosswalk between our
facilities and out database and the EPA database, and, you
know, have communicated back and forth with us. So they are
under contract with the Department for that purpose.
Ms. Clarke. So if this is the nature of the relationship
that you have with Oak Ridge, then why was this relevant
information, why wasn't it passed on?
Mr. Wulf. I don't believe I am familiar with an instance of
information not having been passed on.
Ms. Clarke. You feel like you are getting information in
real time?
Mr. Wulf. I feel confident in our relationship with Oak
Ridge, certainly.
Ms. Clarke. Okay.
Mr. Caldwell, the DHS office of inspector general reported
that DHS has inspected only 47 of approximately 4,400
facilities regulated under CFATS as of March 2013. Your office
has audited similar data at ISCD. Can you give an estimate of
how many chemical facilities that could likely contact COI
above the threshold of required reporting for CFATS? Describe
the plan you found in place to assess and contact the number of
non-repeating outlier facilities nationally.
Mr. Caldwell. I think Mr. Wulf in his statement provided
the most up-to-date information on the number of inspections.
So it sounds like the IG found there were 40-something
inspections. Mr. Wulf's data shows, oh, something under 200,
maybe. I don't remember the exact figure. So we did find they
had a cumbersome process for doing these inspections. We also
found that they were making it more streamlined, and they
seemed to be doing that. We have a mandate to look at that
again once they start their compliance inspections, which won't
be for several months, to do that.
So we haven't looked at the inspection data yet. But in
terms of your last question, in terms of to find more outliers,
again, we haven't done new work since the explosion in West,
Texas. So other than Mr. Wulf's discussion here of their new
steps, we have no new information to add on that, ma'am.
Ms. Clarke. Thank you.
Mr. Chairman, I yield back.
Mr. Meehan. Thank you. Let me just use the Chair's
prerogative to follow up for a second on that questioning. I
understand that you have got--I mean, there is a sort of an
analysis, a full checklist, a review, complex undertaking. But
we are asking about a specific bit of information. Why can't we
get a baseline report on the presence and amount of chemicals
at the facilities sent to you? Later on, you can go back and
look at all of the questions as to whether they are
appropriately stored or otherwise protected. But just the idea
of knowing what is where.
The idea that we are going to wait long periods of time
before we complete inspections at a place, and therefore now
know about the presence of these facilities at other places, is
there a way to report on the amount of ammonium nitrate and
other highly dangerous chemicals that will allow us to have an
understanding of the full map?
Mr. Wulf. Yes, there certainly is. That is something that
we can get done, and that we can make available, and have made
available, through our CFATS share on-line tool, which is
something that is available to State and local authorities.
Mr. Meehan. But you don't know now. I mean, again, we don't
know where they all are. Again, I talk about--and these were
the outliers. We keep talking about outliers, the facilities.
The literally, potentially thousands of outliers who are there.
We don't know about them.
Mr. Wulf. Yes, we know about, you know, the facilities that
have submitted the 44,000 Top Screens we have received. So we
can, you know, produce that. As we are able to bring more
outliers into the fold we will be able to aggregate that
information, as well.
Mr. Meehan. Okay, yes.
The Chairman will ask unanimous consent that the
gentlewoman from Indiana, Mrs. Brooks, and the gentleman from
Texas, Mr. Flores, who, I know, has a special interest in this
issue, be allowed to sit on the dais and participate in today's
hearings. Without objection, so ordered.
Mr. Flores has arrived, and he would therefore be the next
to be recognized for his questions.
Mr. Flores. Well, thank you, Mr. Chairman. Chairman Meehan
and Ranking Member Clarke, thank you for holding this important
hearing today. Additionally, I want to thank you on behalf of
the community of West for including me in your discussion
regarding the disaster that occurred in this small Texas town
on April 17, 2013. Hopefully, through this hearing, we can
learn from the incident in West and gain knowledge about
similar facilities around the country in order to prevent
future disasters of this nature.
The community of West has been through so much since the
tragic explosion in April. This incident took 12 lives,
including the 12 first responders that you see on the poster
behind me. It injured hundreds and caused tens of millions of
dollars in damage. The State of Texas and the entire West
community have been working tirelessly to rebuild and recover
with available resources. Since that day, the community has
desperately been seeking Federal assistance necessary to
rebuild. While FEMA has provided some important and much-needed
resources and assistance, the community of West is still in
dire need for additional assistance to rebuild their community.
In an effort to gain all of the necessary public assistance
from FEMA under the Stafford Act, Governor Rick Perry requested
a major disaster declaration on May 16, requesting all
essential categories of public assistance. On June 10, despite
reaching the monetary required threshold of uninsured damage,
FEMA denied the MDD request. Following that denial, Governor
Rick Perry, on July 9, appealed the President's decision to
deny an MDD that would have provided additional Federal
assistance to the people of West. While the State of Texas and
the city of West still await the President's decision on that
appeal, days continue to go by where people are still homeless,
without schools, without basic infrastructure, and with a
struggling community.
Now, looking forward, regarding the implications and
lessons from the disaster, it appears that the building blocks
of the incident were due to the following: The West Fertilizer
Company's failure to comply with existing regulations and the
lack of oversight and enforcement. It didn't occur from a lack
of regulations, it appears. This is evidenced by the National
Protection Program's director, or NPPD, failing to fully
implement a comprehensive ammonium nitrate security program.
Even though this was not a terrorist act, it is important to
stress that a functional and efficient chemical facility
antiterrorism standards programs should exist to prevent
against any future exploitation.
Finally, the events in West, Texas raise serious concerns
the Department of Homeland Security's chemical security
inspectors were unaware that West Fertilizer Company was
handling tons of potentially explosive ammonium nitrate.
Furthermore, the Chemical Safety Board, or the CSB, reports
that approximately 72 percent of their recommendations
regarding the risk management of ammonium nitrate and other
dangerous materials have been adopted. That, however, leaves 28
percent of their recommendations that have not been adopted.
This leads us to believe that the Federal--that the
Environmental Protection Agency, or EPA, can and should
immediately strengthen safety at facilities that handle
dangerous chemicals by implementing and following the remaining
guidelines set forth by the CSB.
Mr. Chairman, as you can see we have regulations on the
books and we have regulations from agencies with subject-matter
expertise. Now it is up to the Homeland Security department,
the EPA, and related Federal agencies and private industry to
act promptly to adopt safety measures that can save lives and
prevent similar disasters. Before Congress or regulatory
agencies consider new statutes or rulemaking, they should make
sure that the ones we have are being properly implemented and
adjudicated.
Again, Chairman Meehan and Ranking Member Clarke, on behalf
of the citizens and the community of West thank you for having
me here today. I appreciate this committee's work to address
this important issue that is on the table today. We want to
work hard to prevent future tragedies like this in the future.
Thank you, and I yield back.
Mr. Meehan. I thank the gentleman from Texas for his
statement.
I now recognize the gentleman, Mr. Vela, for his
questioning.
Mr. Vela. Thank you. I would like to also thank the
leadership of our committee and our subcommittee for bringing
the public's attention to this real tragedy. Sometimes life
goes on, and we forget how significant and what kind of an
impact these kinds of accidents have, and how they affect the
people of the certain communities where they happen. I, too,
wish to express my condolences to the people of West, Texas and
to the families of those who were killed and to those that were
injured.
I have a lot of questions arising from today's hearings,
and I hope that this subcommittee will continue to delve into
this very important matter so that we can ensure that a tragedy
like this never happens again.
So given time limitations, I think where I would like to
start is by taking the example of a refinery in, let's say,
Corpus Christi, Texas. It is my understanding that from the
Federal regulatory standpoint the agencies that would have
jurisdiction over safety issues at companies like--at a
refinery like that would be the EPA, OSHA. Are there any
others?
Mr. Wulf. Well, depending on the holdings at the refinery
and the location of the refinery, it could be a CFATS facility.
If it is on the water it could be regulated under the Coast
Guard's Maritime Transportation and Security Program, MTSA.
Mr. Vela. Okay, so that would be two separate agencies?
Mr. Wulf. Well, it would be one or the other. If it is a
MTSA facility it is exempt from CFATS. If it is a CFATS
facility, because it is not on the water.
Mr. Vela. Okay. So, for example, we have an eight--we are,
using the example I am talking about which is a refinery which
is basically on the water, then the three Federal agencies that
would have jurisdiction over safety issues would be OSHA, EPA,
and MTSA, for example.
Mr. Wulf. Yes, the Coast Guard.
Mr. Vela. If we had a refinery that was not close to the
water the agencies that would have jurisdiction over such would
be OSHA, EPA, and CFATS.
Mr. Wulf. I think that is accurate.
Mr. Vela. Would there be any other Federal agencies out
there in this world that would have jurisdiction over these
things?
Mr. Wulf. Not that immediately pop into my head.
Mr. Vela. Relating back to the incident at hand, or
facilities like this one in West, Texas, is it those same three
agencies that have jurisdiction over, for example, the West
Fertilizer plant?
Mr. Wulf. Well, with respect to--I think EPA was involved
in regulation at the West plant. I think OSHA certainly has
some role there. I certainly don't want to speak for other
agencies. With regard to DHS, based on the apparent chemical
holdings at the facility, the facility did not meet its
obligation to report to DHS whether such a report of those
holdings through what we call the Top Screen process would have
ultimately resulted in the issuance of a final tier, reflecting
that it was a facility at high risk of terrorist attack.
Because that is what the CFATS program is about, as you know;
preventing, or fostering security measures at facilities at
high risk of terrorist attack.
It is unclear, without more information, about what
holdings were in place before the explosion. But for it to come
into the, finally, into the regulatory ambit of DHS and the
CFATS program it would have to have submitted that filing and
been judged ultimately through the process to have been a high-
risk facility.
Mr. Vela. So would OSHA have jurisdiction over a facility
like this one in West, Texas?
Mr. Wulf. My understanding is they would, but I am not an
expert on OSHA regulations.
Mr. Vela. So relating--let's talk about a--let's assume we
are talking about a refinery in central Texas that CFATS shares
jurisdiction with EPA and OSHA. Can you give us an idea of how
your agency coordinates with OSHA and the EPA to ensure that
incidents like this do not occur?
Mr. Wulf. Yes. Well, what we are doing with EPA and we will
also be looking to do with OSHA is to share our respective
databases so that if there is a facility that is, you know,
known to one of us but not the other, we will be cognizant of
that and ensure that we can work with the facility to bring it
into compliance with the appropriate regulatory framework.
Mr. Vela. So if we had a list of every refinery in the
country over which EPA, OSHA, and CFATS had jurisdiction over,
would you be able to come in and give us an idea of what kind
of interaction the three agencies had over concerning each of
those facilities listed on such a list?
Mr. Wulf. I think that would be a possibility, yes. You
know, I would be remiss if I didn't mention that the Executive
Order issued today is, you know, is designed to foster, among
other things, the possibility of a shared database such as
that. So one of the things that the working group that has been
chartered by the President, the interagency working group, will
be looking at is the feasibility of developing just such a
consolidated database of chemical facilities.
Mr. Vela. So are you saying that, to date, the coordination
between the three agencies when we are talking about a facility
like that have just been lacking, or how would you describe the
state of things up until today?
Mr. Wulf. You know, my sense is that the coordination has
been occurring in the field. So our chemical security
inspectors and regional commanders have been working with their
counterparts at the local and regional levels to, you know, to
discuss and deconflict and coordinate their activities at
facilities. But there is not, at this point, the consolidated
National database of chemical facilities. That is something we
are going to look at doing, going forward.
Mr. Vela. I think I have run out of time.
Mr. Meehan. I didn't want to interrupt the gentleman while
he was on a roll.
Mr. Vela. Well, then, I yield back.
Mr. Meehan. Okay.
The Chairman now recognizes the distinguished woman from
Indianapolis, Mrs. Brooks.
Mrs. Brooks. Thank you, Mr. Chairman, for allowing me to
participate in today's hearing. I do chair the Subcommittee on
Emergency Preparedness, Response, and Communications, and so
that is in part what I would like to talk with you about. But
this particular topic is of particular interest to me as this
unfortunate, incredibly devastating disaster affected some of
my constituents, Jeanette and Tim White and their family
directly. Kevin Saunders is one of those first responders who
was killed. He is a brother to Jeanette, who lives in my
district.
Having worked with the fire fighter community and law
enforcement community, I ask unanimous consent to submit a
letter that has been provided from Mr. White for the record,
the brother-in-law.
Mr. Meehan. Yes, so ordered.
[The information follows:]
Letter From Timothy D. White
July 25, 2013, Zionsville, IN.
Representative Micheal McCaul,
Chairman of the Homeland Security Committee.
Dear Representative McCaul and Members of the Homeland Security
Committee: Let me begin by thanking you for the opportunity to address
the committee regarding the explosion at the fertilizer plant in West,
Texas. My brother-in-law Kevin Sanders was one of the first responders
that was killed in the explosion that day. Like many still grieving
their loved ones, I would like to see changes made to the policies
related to hazardous material regulation, use and tracking, but my
career as a chemist and my upbringing in a Midwest farm family balance
this need for change with the realization that change must be brought
about with well-thought-out solutions that take all perspectives into
account. The profound impact of this tragedy continues to affect our
family daily and while the changes proposed here will not bring Kevin
back to us, they will help ensure that other families and our country
do not experience this type of tragedy again.
The explosion in West was preventable and while on the surface it
appeared the necessary regulations were in place, the multiple agencies
involved were not all adequately informed, which lead to a situation
that ended in tragedy. While the current laws required the plant to
report the amount of hazardous materials they had on-site, the
Department of Homeland Security was not informed of the presence of
ammonium nitrate that was well above the levels that require
monitoring. Beyond reporting directly to an agency, there needs to be a
mechanism in place to ensure that ammonium nitrate, and other dangerous
chemicals, are tracked accurately which seems feasible when we are
talking about tons and not ounces of material. Tracking rail cars of
material coming into facilities and then subsequent tracking by those
facilities, like the one in West, should allow an easy electronic and
constantly updated account of the amount of any hazardous substance on-
site. This would require a financial investment by those companies but
the technology to track shipments is readily available and the
companies that manufacture the materials in bulk should also be
accountable for helping the smaller distributors like Adair Grain Inc.
in West, Texas. I can easily track my Amazon book order so tracking
rail cars of material should be something that can implemented in a
reasonable time frame. A tracking system like this would avoid
instances of ``outliers'' such as the one in West. The tracking of rail
cars of material would require a scan in at their destination so it
would not be possible for companies to exist undetected.
Until a system like this is in place, we are asking first
responders to face unnecessary uncertainty. The assessment of the
situation in West would have differed significantly if they had known
that multiple tons of a compound which can explosively decompose were
on-site and rather than fighting a fire they would have been evacuating
the residents of West. We rely every day on the heroic actions of the
brave first responders that protect us and they deserve to understand
the potential additional dangers beyond the fire itself that they are
encountering.
The current system requires small companies to report information
to a number of agencies involved in protecting and monitoring potential
safety issues. The tracking system mentioned above would allow local
authorities to have up-to-date information about the materials that are
on-site at the moment a fire call comes in. Additionally, at this time,
information provided to one agency is not necessarily shared with other
agencies that require the same information to guarantee safety to our
country. This again highlights the importance of the communication
between agencies that are all looking out for the safety of America
that often overlap in sometimes unexpected ways. Electronic
documentation of reports to these agencies should be able to
automatically trip an alert to other agencies that require the same
information.
A good example of how a system might be more effective is currently
in place in Wyoming where 23 planning districts with membership
including elected officials, law enforcement, health officials,
transportation, media, community groups and owners of the facilities
that are subject to reporting hazardous material. Wyoming alone has
approximately 7,500 facilities that need to report chemical inventories
to the State commission. This highlights the importance of a system
that works and is interconnected at all levels of government and again
most importantly to the first responders so they are aware of
additional hazards they face when fighting a fire.
Everything I've highlighted above is necessary to fix the problem
of tracking dangerous chemicals and keeping local authorities informed,
but I think it is important to also consider the hazards of ammonium
nitrate itself. While ammonium nitrate has been used for decades as an
important, cost-effective fertilizer in agriculture, the key liability
that manifested itself on April 17 was the explosive decomposition that
is possible when the compound is exposed to the wrong conditions. Urea
is an example of a valuable alternative that is successfully utilized
when conditions in the soil have the appropriate moisture content and
pH. Unfortunately, the dry pasture of Texas is perfect for
volatilization of the nitrogen in urea due to the absence of regular
soil moisture, so minimal levels of fertilizer actually remain in the
ground when urea is used. This is the key reason that ammonium nitrate
use is still prevalent in regions where these dry conditions exist for
most of the year.
As a chemist, every day I'm confronted with reactions where cheaper
but potentially more hazardous options exist to accomplish the
chemistry at hand. Part of my job for the past several years has been
to seek out safer ways to improve the synthesis of chemical compounds,
but this change often comes with a financial cost. With this in mind,
there are two important aspects to making an overall improvement beyond
the current options, the biggest will be the innovation necessary to
develop something that does not currently exist. The second will be
financial help for small farmers that are not equipped to absorb the
increased expense of new technology until the advances become common
practice and thereby cost-effective. I grew up on a small farm in
Illinois and my mother still owns and lives on that land so I
personally understand how every penny matters for today's small
farmers. An example of a potential replacement could be encapsulated
urea where the urea would not be exposed until water is present to
dissolve the outer coating revealing the urea inside and then, in the
presence of water, would be readily incorporated into the soil. Also,
because urea increases the acidity of the soil the encapsulation could
potentially also include a basic component to correct the pH.
In closing, what has allowed our family to get through this
horrible experience has been the outpouring of support especially from
the brotherhood of fire fighters. The fire fighters are asked to
perform dangerous and heroic work each and every day and need the help
of the entire country to ensure they can be as safe as possible. This
is the opportunity for this committee to impart change to ensure this
never happens again by monitoring the use and storage of ammonium
nitrate and other dangerous chemicals along with developing new and
innovative ways to ensure safer practices for fertilizer. This will
require compromise, but the potential of subsidies to farmers where
ammonium nitrate is the best option to help offset the cost for the
innovation of a new delivery method should provide the necessary drive
for everyone to achieve the goal of a safer and better country.
Respectfully,
Timothy D. White.
Mrs. Brooks. Thank you, Mr. Chairman. Mr. White does point
out in his letter that the first responders' assessment of the
situation in West could have differed significantly if they had
known exactly what was on that site. Mr. White, a chemist, by
the way, thinks that the first responders, with the right
information, would have potentially been evacuating those
residents of West rather than fighting that fire.
As the U.S. Chemical Safety Board's investigation of the
West explosion noted, West volunteer fire fighters were not
made aware of the explosion hazard from the ammonium nitrate
stored at West Fertilizer and were caught in harm's way when
the blast occurred.
Now, we all know--and there have been far too many both
natural and man-made disasters in this country--but we rely
every day on the heroic actions of our brave first responders
that protect us. They deserve to understand the potential harm
and the dangers beyond the fire itself before they run into a
disaster like this, and to be trained properly as to how to
protect themselves and our communities. My question, Mr. Wulf,
is, in 1986 the Emergency Planning and Community Right-to-Know
Act, or EPCRA, was created to help communities plan for
emergencies like this involving hazardous chemicals.
EPCRA established requirements for Federal, State, and
local governments, tribes, and industry regarding emergency
planning and a community's right to know reporting on hazardous
and toxic chemicals. According to the EPA, West, Texas was in
compliance with this reporting requirement. But did, my
question to you is: Did DHS have access to this EPCRA
information on West? If so, how was it used?
Mr. Wulf. I am not aware that we had access to it. But
going forward, among the things we are, you know, certainly
looking at, as we talk with State agencies and State homeland
security advisors, is ensuring that information is shared back
and forth between, you know, the Department, our CFATS facility
information, and information held by State agencies.
Mrs. Brooks. So what is your plan, though, to make sure you
are accessing this EPCRA information in communities across the
country?
Mr. Wulf. Yes, well, to the extent that the information is
held at the State level and, I guess, in this instance it was
held by the State Emergency Response Commission, I think we
will work with the State homeland security advisors to ensure
that the, you know, the information is flowing to us.
Similarly, that information we hold about facilities that have
holdings of high-risk chemicals flows to the States and
localities. So we have been engaging in discussions and sharing
information with State agencies and, certainly, intend to
double down on those efforts going forward.
Mrs. Brooks. Was there actually an unwillingness to
leverage that information, or a lack of knowledge in the need
to leverage that kind of information before this incident? Why
does this seem to be a new step for DHS?
Mr. Wulf. Yes. Now, there certainly wasn't an
unwillingness. You know, outreach, getting the word out about
CFATS and about the reporting requirements of facilities in the
chemical sector was a high priority of the Department. You
know, there, you know, have been sort of finite resources. We
have had competing priorities. The need, for instance, to work
with facilities that have submitted Top Screens have come into
the program to develop their security vulnerability assessments
and their site security plans and to conduct inspections.
You know, at the same time, we have, over the course of the
program, conducted over 11,000 outreach engagements, including
with State and local communities. So I think we have been doing
that sort of sharing on a sort of regional, localized basis.
But we are certainly committed to ensuring that we have
National protocols in place to make sure that that happens.
Mrs. Brooks. If I might, Mr. Chairman, I have one further
question. I was U.S. attorney when the Department of Homeland
Security was set up, and so I am familiar with the positions.
When you talk about a lack of resources, what are the positions
within DHS that actually are responsible for this in States? Is
there a DHS position in jurisdictions that is responsible for
this outreach to the--whether it is those, you know, in a
chemical community or others? What is the title of that
position?
Mr. Wulf. Well, within the CFATS program we have regional
commanders and district commanders who are responsible on the
chemical side. But more broadly, my broader organization, the
Office of Infrastructure Protection, manages the protective
security advisor program. Those protective security advisors
are the ones who do the more broad-based outreach and liaison
with folks at the State level, and look at Nationally-critical
infrastructure.
Mrs. Brooks. How many protective security advisors does the
Department of Homeland Security have?
Mr. Wulf. Approximately 100, but I would have to get back
to you with the exact number there.
Mrs. Brooks. Okay, thank you. I yield back. Thank you.
Mr. Meehan. I thank the gentlelady from Indiana.
I am going to ask a couple of follow-up questions myself.
Because we have the panelists that we have before us, there are
a couple of issues I would like to further explore. One of them
goes to the concept of outreach, as we are trying to do it. Let
me say, Mr. Wulf, that I do appreciate that there is a big
undertaking. You quote the numbers of 44,000 Top Screens and
other kinds of things. I think that there had been some
significant accomplishment in the form of the beginning
recognition, particularly by many in the industry, about the
desire to try to regulate--not regulate, to identify and
oversee the presence of these chemicals, the dangerous
chemicals.
Quite frankly, I think you would be the first to admit you
got a lot of great cooperation from many of the folks in the
industry. They are looking for more follow-up, having already
taken great steps, made great investments. They are looking for
the kind of timely follow-up on the efforts that you have
already undertaken with these Top Screens. I am a little
concerned by testimony that Mr. Caldwell presented in his
written testimony. If I am correct, Mr. Caldwell, you are
talking about estimates just to continue to do some of these
CFATS oversights of anywhere from 7 to 9 more years before we
are going to be even completed with this process. Seven to 9
more years. Can we wait 9 more years for this kind of
identification of critical information?
Mr. Wulf. You know, I would note at the outset that 7 to 9
years, in my view and the view of the Department, is not an
acceptable time frame for getting through the mass of site
security plans that we have on hand. We are committed to
ensuring that the pace of those authorizations, inspections,
and approvals continues to pick up. You know, I am happy to say
that although there is more to do, we have turned a corner and
have begun to make progress. At this time last year we had yet
to grant final approval to our first site security plan.
We are now coming up on 200 plans that will have been
granted final approval. We had authorized sort-of the mid-range
step about 50 site security----
Mr. Meehan. Well, how about, okay, so you are talking about
200, and you have got literally thousands to do.
Mr. Wulf. Yes.
Mr. Meehan. So it is a great undertaking.
Mr. Wulf. Yes.
Mr. Meehan. But 200 of thousands, I begin to question
sometimes whether the process is, in and of itself, well
conceived if, in fact, you can recognize that the end is so
difficult to realize in a reasonable period of time. You can
imagine how a business who has cooperated with you and is
waiting for years for a follow-up can be tremendously
frustrated. Now let me talk. Because today's thing is about the
outliers. I am just talking about those who are compliant and
working with you.
When we use the word ``outliers,'' the concern that I have
is that there is a suggestion that somehow these are people who
are looking to dodge the system or to get away. I think the
truth of the matter is, and sort of crystallized to me in
testimony and commentary that we got from a variety of other
people who are interested in this, and one of them came from a
small farmer. Basically, he said, you know, the truth of the
matter is we want to be compliant, but we are overwhelmed. We
are overwhelmed with responsibilities, first, in just managing
the facility.
Oftentimes, the person who is responsible for all the
compliance is also the person who is responsible for running
the operation at the facility. We don't have time to take a day
off to go to a meeting at the local agricultural association.
In fact, most probably aren't even members of the agricultural
association. So you are outreach to the association is good,
but it is just touching the core. But we are missing a whole
number of people. They don't have the time, and they are
confused. They are confused as was stated. The individual in
West, Texas thought he was in compliance.
What he was in compliance with was a State requirement.
They have got OSHA stopping in, they have the EPA that may stop
in, they have you who may stop in, they got State facilities
who may stop in. Some will tell you that it becomes
overwhelming. So don't we have a responsibility to coordinate
just a little bit better, and have a single point of contact
for some of these kinds of things, particularly with regard to
the very specific question about how much we have in the form
of certain chemicals on your property?
Mr. Wulf. Yes, I think you are right that we do. You know,
we are committed to doing just that. You know, the Executive
Order that the President has signed incorporates a pilot
through which we are going to work with our interagency
partners--the EPAs, the OSHAs, ATF--to validate best practices,
to look at doing joint outreach, to look at how we can do a
better job----
Mr. Meehan. Let me, because my time is expiring and I want
to ask Mr. Caldwell one specific question. But pilots and other
kinds of things, I mean, I get it. I know you are working. But
the bottom line is, there is a lot of information already out
there. OSHA is already collecting it, EPA is collecting it,
State facilities are collecting this very information. We seem
to be continuing to try to remake the wheel. I had a friend
that used to say ask me what time and they will tell me how to
build a watch. Why can't we just go and do the simple process
of asking about the presence of these chemicals, finding out
who has them, tracking the chemicals through the system, and
making sure people are reporting where they are?
Mr. Wulf. That is exactly what we are doing with EPA, ATF,
and with OSHA.
Mr. Meehan. Mr. Caldwell, you looked at something in your
report, and you have studied this, called a more systematic
response to outreach. Is that not the word you used, a
systematic response, or a systematic plan, or----
Mr. Caldwell. That is correct. There was----
Mr. Meehan. Can you explain to me what you mean by that,
and then I will----
Mr. Caldwell. Yes, there was a lot of outreach going on.
The CFATS program was maintaining statistics on that. But what
they weren't maintaining was the quality or results of that
feedback, or the outreach. So we made a recommendation that,
when they were doing this outreach they also look to see
whether it is, look for measures of effectiveness. Are they
are, you know, either hitting the right people, or are they
doing it the right way? The Department has agreed with that
recommendation, and is----
Mr. Meehan. So work doesn't necessarily mean productivity.
So how would----
Mr. Caldwell. Yes, and measuring results of the outreach.
Mr. Meehan. How do you recommend that they change that
effort into productivity?
Mr. Caldwell. We did not come up with specific ways, but
just kind of thinking out loud here it could be either surveys
back to the people that are a part of the outreach, or as part
of the outreach having them respond to whether this is useful
to them or not. Obviously, if it is not useful, then making
adjustments so it would be useful. And get their views of the
outreach, as well as just collecting the statistics on it, sir.
Mr. Meehan. It does seem to me that there is an awful lot
of opportunity for us to work with colleagues that look to work
with you. They are not trying to hide this stuff. They are
trying to cooperate with you, and they are asking for your
assistance on doing it. We got a big challenge, and we got to
get it right.
I now will turn it over to the Ranking Member for her
follow-up questions.
Ms. Clarke. Thank you, Mr. Chairman. I appreciate the
opportunity to follow up with a few questions. Mr. Wulf, I
understand the Department has sent letters to facilities in
recent weeks asking that information be submitted for a Top
Screen risk analysis by September 9. Mr. Chairman, I ask
unanimous consent for a copy of the letter to be submitted into
the record.
Given that the committee received, at least to my
knowledge, no notification of this effort, how many of these
letters were sent out? What is the universe of facilities that
received these letters?
Did it go to facilities that have already been tiered, or
did it go to facilities that have been previously tiered? Could
you just enlighten us a bit about these letters?
Mr. Wulf. Yes, those letters, the bulk of them, came out of
our effort to do the crosswalk with EPA's RMP database, and to
identify facilities that were in the EPA database, but that may
not have been in our database, that may not have filed Top
Screen. So it was an effort to try to bring into the fold non-
compliant facilities.
Ms. Clarke. Basically, doing some sort of reconciliation.
Mr. Wulf. That is right. Another small segment of that were
letters sent out to facilities in Texas that we had received
through our mutual sharing with the State of Texas. We also
sent some letters out to State-level agricultural executives in
an effort, with the help of the Fertilizer Institute and
Agricultural Retailers Association to reach down to that level
and sort of fill that gap.
Ms. Clarke. Once you have received your feedback after
September 9, would you reach back to the committee and give us
a sense of, you know, what the feedback has been in that
reconciliation? Just to give us a sense of, you know, whether
we have far more work to do in this regard or, you know, we are
pretty, there are just a few out there?
Mr. Wulf. Yes, absolutely.
Ms. Clarke. That this is going to be important.
Mr. Caldwell, given DHS' approach for deciding whether a
facility is high-risk, would the West, Texas facility, had it
reported to DHS, been considered high-risk and thereby covered
by the CFATS rule? If not, why not? Based on this committee's
research, it appears that different States have different rules
governing the handling, storage, and transfer of various
chemicals, including ammonium nitrate. Does DHS work with the
States to compile information about facilities that may have
certain chemicals covered by CFATS rule to determine if the
facilities may or may not have reported holdings to DHS?
Mr. Caldwell. Ms. Clarke, let me just make one first
comment here. I quoted a figure for you in terms of the number
of inspections that they have done since you had quoted some of
the figures from the IG and from Mr. Wulf's statement as 358
authorization inspections. I would also like to point out that
if you look at the percentage of the inspections for the Tier 1
of the highest-risk facilities it is actually quite a bit
higher. So as I said, they are concentrating on the highest-
risk facilities.
I would also like to say that in my opening statement I did
say that it is quite possible that the West facility would not
have been considered. Again, because when they look at whether
to, when they tour a facility the most important factor is the
consequences. So they look at figures like population. I will
just throw a question out there for, maybe, Mr. Wulf to answer
if it is appropriate. What we are not sure about is whether,
when they are doing the calculation of consequences and they
look at the potential casualties do they use a overall figure,
like the population density of that area. Or do they use
something more tactical, like looking at that specific
location; is there a school, is there a nursing home, is there
something like that that is in or near the facility?
That is a question I don't quite know but, obviously, that
would get to the heart of what the potential causalities might
be. Just again, thinking out loud, you might have some rural
areas where the population density is quite low, but that
school does happen to be a facility. So during school hours,
you could have quite a population there that would be put at
risk, depending on the vicinity. Thank you.
Ms. Clarke. So that is proximity that you are talking
about.
Mr. Caldwell. Correct. And Mr. Wulf can maybe address
whether they do that level of analysis or not. Then the last
question of working with States, again, we saw most of the
outreach was focused on industry. I think to be honest, they
were looking at who are the really big facilities out there,
how do you reach them quickly. It is through the National
associations, and it wasn't going through necessarily the State
route. Although as Mr. Wulf said, they do have their protective
security advisors at the State level off, working with the
State government.
But every State is organized a little bit differently. So
as you said, it could be regulated differently. In some cases
maybe a State would regulate this under their department of
agriculture or something like that. Other ones, it might be
under their equivalent of their environmental agency. Or it
could be under a public safety agency.
Ms. Clarke. Another fact that I just wanted to sort of get
your take on it is proximity to rail. So you have chemicals
that are being railed in, as in the case of West, Texas.
Wouldn't that be sort of a flag that, you know, that should be
part of the calculation of, you know, the threat to a
particular environment?
Mr. Caldwell. Yes, I mean, I think the regulations as
written are pretty specific to a facility. As Mr. Wulf has
pointed out, several facilities have reported that they have
moved some of these chemicals off-site. It could quite be
possible that their moved site by--they are just not storing as
much on-site because these are in railroad cars in some other
place.
I don't remember. There was an explosion in Canada, I
think, within the last month and I don't know what that
chemical was. But obviously, chemicals on rail cars can present
a threat. So how they are handled is important. Again, you
know, this is a complex issue, complex Federal Government. I
think the Transportation Security Agency actually has
regulatory authority over the security of those things in
transit.
Ms. Clarke. Thank you, Mr. Chairman.
Mr. Meehan. Thank you. I know the gentlelady asked for
unanimous consent to enter a letter into the record, and so
without objection so ordered.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman now recognizes Mr. Flores.
Mr. Flores. Thank you, Chairman Meehan. Director Wulf and
Mr. Caldwell, thank you for joining us today to help us as we
work through this important subject. Director Wulf, you
recently told the Global Security Newswire that CFATS is
absolutely a shared responsibility. You all, you further noted,
``Facilities that are in the business of dealing with high-risk
chemicals have an obligation to do that reporting, just as I
have an obligation to file our taxes with the IRS. The IRS
doesn't necessarily come out and look for us.''
So as you have said, I also think that most stakeholders
would agree that enhancing security and building a resilience
across the chemical sector is not something that a single
agency or a single company, or industry or even Government, can
do by itself. Just a--you know, I agree with what you have
said. But that said, how do you envision DHS' role among all
the players that are involved in this effort? To what extent do
you believe that DHS should take the lead in this effort?
Mr. Wulf. I think with respect to chemical facility
security, DHS does have an obligation to lead in this area. We
are committed to doing just that. We are part of a broader
picture on an interagency basis. I think that is reflected in
the President's Executive Order signed today. But with respect
to chemical facility security, we are committed to doing all
that we can to get the word out. But as I said, it is a shared
responsibility. Businesses do have an obligation to know their
regulatory responsibilities.
We will continue to do all we can, and we will, you know,
redouble our efforts to ensure that we get the word out there
as broadly as possible, including to folks at the State and
local levels, to include first responders. We are absolutely
committed to doing that.
Mr. Flores. Thank you, Mr. Chairman. I have no further
questions.
Mr. Meehan. Thank you.
The Chairman now recognizes Mr. Vela. Do you have any
follow-up questions?
Mr. Vela. I do not----
[Off mike.]
Mr. Wulf. Yes, yes, I wish we had a----
Mr. Vela. [Off mike.].
Mr. Wulf. Yes, but that is accurate.
Mr. Vela. I didn't to pose it in such a fashion, in an
accusatory fashion. I just--going forward, I know that we have
got a lot of work to do in regard to this issue to make sure we
figure out how, what the Federal Government could have done, if
anything, to prevent this accident. Just as importantly, to
make sure that in the future we prevent any further tragedies
like that. That was the purpose of the question.
Mr. Wulf. Yes, absolutely.
Mr. Meehan. I thank the gentleman.
The Chairman now recognizes Mrs. Brooks.
Mrs. Brooks. Thank you, Mr. Chairman. A bit of a follow-up
on my previous question regarding the resources, Mr. Wulf, that
you have dedicated to this. You have testified that DHS
representatives have participated, it is in your written
testimony, in more than 5,260 meetings with Federal, State, and
local officials, and held more than 4,600 introductory meetings
with owners and operators of CFATS potentially-regulated
facilities. Those are impressive statistics, but yet how is it
possible?
Maybe it is because of your resource issues that still so
many State and local authorities and so many small facilities
say they have never heard from the Department about CFATS. What
is it that is needed in order for you to touch and make sure
that our State and local authorities and the smaller
facilities, you know, become familiar with what these
obligations are?
Mr. Wulf. I think that what is important to do and what we
have been doing is to start to do more targeted, more
systematic outreach. To ensure that we are funneling through
folks like the State homeland security advisors, through State
emergency response commissions. Sort of strategically ensuring
that the message gets out at the, at kind-of the State and
local level. That also includes working through industry groups
at the State level. We can work with our stakeholders at the
National association level, as well, to ensure that we get that
done.
So, you know, we are committed to getting the job done. You
know, the resources are what they are. We have, certainly, a
lot on our plate. But we have very hardworking, committed folks
on the team who, you know, get up every day looking to ensure
that we safeguard our high-risk chemical facilities from
terrorist attack and prevent incidents such as the one that
occurred at West, Texas from occurring again. So, you know, we
will continue to keep at it. On the outreach front, to work
strategically to get the word out even more broadly.
Mrs. Brooks. Having worked with the one person I am
familiar with in Indiana, and that is all I believe Indiana had
at least when I was U.S. attorney, has there been any
discussion about reallocation of resources within the
Department, and within your Department specifically, to provide
you with more resources to make sure, especially post-West
incident, to try to expedite the efforts of outreach?
Mr. Wulf. You know, we have not had extensive discussions
in that respect. I do think that as we get into a, you know,
cycle of compliance inspection activity, which is actually
going to begin in September, we are going to begin conducting
the first compliance inspections of facilities that received
their final site security plan approvals. As we move forward to
implement an ammonium nitrate security program we are going to
have to look at the resources, as we also continue to look at
trying to ensure that we keep up the pace of strategic and
targeted outreach.
I would say another thing, if I could add, that would be
helpful to ensuring that, you know, facilities understand that
the program is here to stay, would be for the Congress to
permanently authorize the program. I think that would go a long
way to helping us get that word out to facilities that, you
know, may not have received that word.
Also to provide an important measure of stability to our
industry stakeholders who, as they consider looking to make
significant investments in security measures and to argue for
budget dollars in a constrained environment, even on the
private-sector side, can speak to their companies about the
importance of the program and the need to comply with its
regulatory framework.
Mrs. Brooks. Thank you for that suggestion. I want to just
thank the men and women who do that work out around the
country. It has been received very favorably. There just aren't
enough of them. Thank you.
Mr. Meehan. I thank the gentlelady. I thank this panel for
your presence here today. Mr. Wulf, I know you have got a big
job to do. I have asked you to look at the specific issue with
regard to the outliers and give us some metrics and give us
some time lines with regard to how you need to do it. I also
know the issue of the reauthorization of this program will soon
be front and center. It is as, you know, we want to support you
in these efforts.
That is our objective is to work with you, not against you.
But we have got to ask some tough questions, and an awful lot
of the times performance is going to be the biggest part of the
equation. You would be, I am sure, the first to admit that the
performance to this point, albeit a great challenge, has raised
a lot of fodder for questions. We have put a lot of money into
this, and we have got to be able to start to demonstrate the
ability to narrow so that the effort is matched with
productivity, as I said at the outset.
I thank you. There may be some committee Members who will
ask further questions with written questions. If they are
submitted, we ask that you do your best to be timely in your
response to them. I thank you for your presence here today.
Mr. Wulf. Thank you.
Mr. Caldwell. Thanks.
Mr. Meehan. So I dismiss the first panel, and the Members
of the subcommittee will now take a moment while we invite our
second panel to join us.
The Chairman is very grateful for the presence of our
panel. I thank you for taking the time to sit through the first
line of questioning. One of the opportunities and advantages,
although I am sure you may have wanted to ask some questions
yourself as you may be able to make a comment with regard to
some of the issues that were discussed. I invite you to do
that. But allow me to take a moment to introduce each of you.
We are joined by Mr. Donnie Dippel. He is the president for
the Texas Agricultural Industries Association. Previously, Mr.
Dippel served in the Texas Department of Agriculture from 1988
to 2002, ending in 2002 as assistant commissioner for pesticide
programs. Before joining the Texas Department of Agriculture,
Mr. Dippel worked as a manager and commercial pesticide
applicator for a farm service center.
Mr. Paul Derig is the environmental health and safety
manager for the J.R. Simplot Company, a large agribusiness
firm. As manager, Mr. Derig has to support regulatory affairs,
functions, and compliance within the company, and represents
J.R. Simplot in trade associations, organizations, and
activities.
Mr. Timothy Scott is the chief security officer and
corporate director of emergency services and security for the
Dow Chemical Company and a member of Dow's corporate crisis
management team. Mr. Scott currently serves on the advisory
board of the International Center for Chemical Safety and
Security, and is a member of the G8 Global Partnership
subworking group on chemical security. Previously, Mr. Scott
served on the executive committee of the Chemical Sector
Coordinating Council for the Department of Homeland Security.
Last, we are joined by Mr. Sean Moulton, who is the
director of open government policy program at the Center for
Effective Government, a nonpartisan watchdog group which aims
to promote Government accountability and openness. Previously,
Mr. Moulton served for several years as a research fellow and
contract employee at the United States Environmental Protection
Agency.
I want to thank all of you for being here. Your full
written statements will appear in the record, and I ask you do
your best to contain your testimony to the 5 minutes. We will
look forward to engaging you in questions.
So the Chairman now recognizes Mr. Dippel for 5 minutes.
STATEMENT OF DONNIE DIPPEL, PRESIDENT, TEXAS AG INDUSTRIES
ASSOCIATION
Mr. Dippel. My name is Donnie Dippel. I am president of
Texas Ag Industries Association. Subcommittee Chairman Meehan,
Subcommittee Ranking Member Clarke, and distinguished Members
thank you today for letting Texas Ag Industries testify at this
committee meeting.
Before I begin my testimony, I would like to extend my
thoughts and prayers to the fellow Texans who have expected
such great loss as the result of the West, Texas explosion.
Texas Ag Industries Association membership is comprised of
manufacturers, distributors, retail dealers, and allied
companies involved in the sale of fertilizer, agriculture
chemicals, and related services. TAI's mission statement is to
advocate, influence, educate, and provide services to support
its members in their quest to foster a sustainable business
environment while being productive stewards of agriculture. TAI
has always worked with its industry members and non-members to
help them in their compliance issues.
The Asmark Institute is a not-for-profit resource center
that provides compliance materials and services, develops
common-sense solutions to new regulation requirements, and
monitors enforcement. As stated earlier, I served as president
of TAI for since 2003. Prior to coming to Texas Ag Industries
Association I worked with the Texas Department of Agriculture,
serving as assistant commissioner for pesticide programs. Prior
to the Texas Department of Agriculture I managed a farm and
ranch retail business somewhat similar to the West, Texas
facility.
I currently serve on the Texas Feed and Fertilizer Control
Advisory Committee. TAI holds a minimum of five education
programs a year to help our industry be apprised of current
practices and concerns in crop production, laws, regulations,
and environmental issues. It has always been a concern that we
do not have more dealer participation at our educational
meetings. After surveying the dealer membership to find out
ways to improve participation, we found that many retail
dealers cannot leave their business to attend an all-day
meeting without closing the doors for the entire day.
Small dealers also do not have additional employees to
operate their business if they are not there. I believe this is
also a problem we see in regulatory compliance issues. Small
retail dealers may have one or two individuals that are trying
to run a business, and regulatory issues may not be their main
concern each day in operating their facilities. Nor are they
always aware of the extensive list of regulations that pertain
to their business. In contrast, distributors and manufacturers
typically have designated employees whose only job is to ensure
that they are in compliance with all the laws and regulations,
and that best management practices are implemented.
After the fire and explosion at West, Texas fertilizer, our
office was overwhelmed with calls; first from the press,
wanting us to speculate on what caused the tragedy. Next came
several calls from the manager at West Fertilizer Company. As
you can imagine, he had a tremendous difficulty even talking
about what happened that night. Being from a small town, he
most likely knew every one of the individuals who perished in
the explosion. On one of the calls, he expressed his concern
that the news was saying that West Fertilizer Company was not
registered with the U.S. Department of Homeland Security.
He told me, ``I had the certificate hanging on my office
wall that said we were registered to handle ammonium nitrate.''
I asked him if he was sure that they had completed a Top Screen
with DHS. He said that he had inspectors that came to his plant
to check the security of ammonium nitrate and check the sales
records. Then I realized he was referring to the inspectors
from the Texas Feed and Fertilizer Control Service. The Texas
Feed and Fertilizer Control Service estimates there are
approximately 546 retail dealers in the State of Texas, and
approximately 129 are registered to handle ammonium nitrate.
Texas law provides that the office of the State chemist,
whom the Texas Feed and Fertilizer Control Service is under,
with the responsibility for ensuring that facilities handling
ammonium nitrate are able to secure the product at all times
from theft and misuse, and that they have records of every
sale.
In addition to the State laws, once Homeland Security
finalizes the pending ammonium nitrate security program they
should know where every facility selling ammonium nitrate is
located, as this program will require anyone selling or
purchasing ammonium nitrate to register with them.
After the tragedy at West Fertilizer Company, TAI mailed
out a letter to every fertilizer retail dealer in the State,
asking them to make sure they are compliant with all the
regulations pertaining to their operation. With the help of
Asmark Institute, we were able to offer retail dealers access
to Asmark's compliance assessment tool. The compliance
assessment tool assists retail dealers with identifying the
specific activities in their business, and the program provides
them with a summary of their regulatory requirements and offers
suggested best management practices.
Asmark also made the compliance assessment tool available
to retail dealers across the United States through our National
associations, the Fertilizer Institute and Agriculture
Retailers Association. After sending the letter, we received
many calls from retail dealers, which led us to discover that
confusion between registering with DHS and the Texas Feed and
Fertilizer Control Service was very prevalent. The first
question I asked was: Do you handle ammonium nitrate? If so,
are you registered with DHS?
We have worked with several retail dealers to help them
register with Homeland Security. I have several more requests
on my desk. One of the big problems we have run into in getting
retail dealers registered is the requirement that they must
have a secure e-mail address. Many of the retail dealers use e-
mail addresses such as Hotmail, Gmail, AOL, GoDaddy, and others
that are not considered secure. The retail dealers also have to
be able to identify the longitude and latitude location of
their business. The Top Screen registration offers a program to
help find the location, but many times these coordinates are
not correct and they are not accepted by the program.
The majority of the registrants' attempts have been helped
over the phone. Many of the retail dealers' computer skills are
very limited and they have become very frustrated and have
asked to quit or have to quit the registration process to set
up a new e-mail address or find out why the program is not
taking their coordinates.
Even though ammonium nitrate is an east Texas fertilizer,
and very little is used west of the Interstate 35, the area is
simply too big to allow my travel to help each one of these
individual retail dealers that has problems registering.
The situations I have outlined I do not believe are unique
to Texas. There are many, many small retail dealers like West
Fertilizer Company throughout the United States. One suggestion
I would have is that DHS work with its local inspectors, the
State fertilizer officials such as Texas Feed and Fertilizer
Control Service, and through State associations such as TAI to
come up with a process to help these small facilities. Several
of the retail dealers have chosen to use the Asmark Institute's
compliance services. Many will use their insurance company.
Some will try to do it on their own.
Whatever way they choose, TAI will continue to work with
the agriculture industry through Texas to help them comply with
their regulatory requirements. Again, I thank you for the
invitation to testify at this hearing, and I will be glad to
answer any of your questions.
[The prepared statement of Mr. Dippel follows:]
Prepared Statement of Donnie Dippel
August 1, 2013
Chairman McCaul, Ranking Member Thompson, and Subcommittee Chairman
Meehan, Ranking Subcommittee Member Clarke, and Members of the House
Homeland Security Committee, Subcommittee on Cybersecurity,
Infrastructure Protection, and Security Technologies, thank you for
allowing the Texas Ag Industries Association (TAIA) the opportunity to
testify today on ``West Fertilizer, Off the Grid: The Problem of
Unidentified Chemical Facilities.'' Before I begin my testimony, I
would like to extend my thoughts and prayers to my fellow Texans who
have experienced such great loss as a result of the West, Texas
explosion.
Texas Ag Industries Association's membership is comprised of
manufacturers, distributors, retail dealers, and allied companies
involved in the sale of fertilizer, agriculture chemicals, and related
services. TAIA's mission statement is ``to advocate, influence,
educate, and provide services to support its members in their quest to
foster a sustainable business environment while being productive
stewards of agriculture.'' TAIA has always worked with its industry
members and non-members to help them with their compliance issues. For
the last several years TAIA has been affiliated with the ASMARK
Institute. The ASMARK Institute is a not-for-profit resource center
that provides compliance materials and services, develops common-sense
solutions to new regulatory requirements and monitors enforcement. I
have served as president of TAIA since 2003. Prior to coming to TAIA I
worked for the Texas Department of Agriculture serving as assistant
commissioner for the Pesticide Programs. Prior to the Texas Department
of Agriculture I managed a farm and ranch retail business somewhat
similar to the West Fertilizer Co. facility. I currently serve on the
Texas Feed and Fertilizer Adviser Committee representing TAIA.
TAIA holds a minimum of five educational programs a year to keep
our industry apprised of current practices and concerns in crop
production, laws, regulations, and environmental issues. It has always
been a concern that we do not have more dealer participation at our
educational meetings. After surveying the dealer membership to find
ways to improve participation, we found that many retail dealers cannot
leave their business to attend an all-day meeting without closing the
doors for an entire day. Small dealers also do not have additional
employees to operate their business if they are not there. I believe
this is also the problem we see with regulatory compliance issues.
Small retail dealers may have one or two individuals that are trying to
run a business and regulatory issues may not be their main concern each
day in operating their facility nor are they always aware of the
extensive list of regulations that pertain to their business. In
contrast, distributors and manufacturers typically have designated
employees whose only job is ensuring that they are in compliance with
all the laws and regulations and that best management practices are
implemented.
After the fire and explosion at West Fertilizer Co. our office was
overwhelmed with calls, first from the press wanting us to speculate on
what caused the tragedy. Next came several calls from the manager at
West Fertilizer Co. As you could imagine, he had a tremendous
difficulty even talking about what happened that night. Being from a
small town, he most likely knew every one of the individuals who
perished in the explosion. On one of the calls he expressed his concern
that the news was saying that West Fertilizer Co. was not registered
with the U.S. Department of Homeland Security (DHS). He told me ``I had
the certificate hanging on my office wall that said we were registered
to handle ammonium nitrate.'' I asked him if he was sure they had
completed a Top Screen with DHS. He said that he had inspectors that
came to his plant to check the security of ammonium nitrate and checked
his sales records. I then realized he was referring to the inspectors
from the Texas Feed and Fertilizer Control Service (TFFCS). The Texas
Feed and Fertilizer Control Service estimates that there are
approximately 546 retail dealers in the State of Texas, of which
approximately 129 handle ammonium nitrate.
Texas Law provides, the Office of the State Chemist, whom Texas
Feed and Fertilizer Control Service is under, with the responsibility
for ensuring that facilities handling ammonium nitrate are able to
secure the product at all times from theft and misuse and that they
have records of every sale. In attrition to State laws, once Homeland
Security finalizes the pending Ammonium Nitrate Security Program the
should know where every facility selling ammonium nitrate is located as
this program will require anyone selling or purchasing ammonium nitrate
to register with them. After the tragedy at West Fertilizer Co., TAIA
mailed a letter to every fertilizer retail dealer in the State asking
them to make sure they are incompliance with all the regulations that
pertain to their operation. With the help of the ASMARK Institute, we
were able to offer retail dealers access to ASMARK's Compliance
Assessment Tool. The Compliance Assessment Tool assists retail dealers
with identifying the specific activities in their businesses and the
program provides them with a summary of their regulatory requirements
and offers suggested best management practices. ASMARK also made the
Compliance Assessment Tool available to retail dealers all across the
United States through our National associations, The Fertilizer
Institute and the Agricultural Retailers Association.
After sending the letter we received many calls from retail dealers
which led us to discover that the confusion between registering with
DHS and the Texas Feed and Fertilizer Control service was very
prevalent. The first question I asked was ``Do you handle ammonium
nitrate and if so are you registered with DHS?'' We have worked with
several retail dealers to help them register with Homeland Security and
I have several more requests for help on my desk. One of the big
problems we have run into with getting retail dealers registered is the
requirement that they must have a secure email address. Many of the
retail dealers use email address such as Hotmail, Gmail, AOL, GoDaddy,
or others that are not considered ``secure.'' The retail dealers also
have to be able to identify the longitude and latitude location of
their businesses. The Top Screen registration offers a program to help
find the location, but many times these coordinates are not correct or
not accepted by the program. The majority of the registration attempts
we have helped with are over the phone. Many of the retail dealer's
computer skills are limited and they become very frustrated and ask to
quit or have to quit the registration process to set up a new email
address or find out why the program is not taking their coordinates.
Even though ammonium nitrate is an East Texas fertilizer and very
little is used west of Interstate 35, the area is simply too big to
allow my travel to help each individual retail dealer that has problems
registering.
The situations I have outlined I do not believe are unique to
Texas. There are many, many small retail dealers like West Fertilizer
Co. throughout the United States. One suggestion I would have is that
DHS work with its local inspectors, the State fertilizer control
officials such as the Texas Feed and Fertilizer Control Service, and
through State associations such as TAIA, to come up with a process to
help these small facilities.
Several of the retail dealers have chosen to use the ASMARK
Institute's compliance services, many will use their insurance company;
and some will try to do it on their own. Whatever way they choose, TAIA
will continue to work with the agricultural industries in Texas to help
them comply with their regulatory requirements. Again I thank you for
the invitation to testify at this hearing. I will be glad to answer any
questions you may have.
Mr. Meehan. Thank you, Mr. Dippel.
Mr. Derig, you are now recognized for your testimony.
STATEMENT OF PAUL DERIG, ENVIRONMENTAL HEALTH AND SAFETY
MANAGER III, J.R. SIMPLOT COMPANY
Mr. Derig. Thank you, Chairman Meehan, Ranking Member
Clarke, and distinguished Members of the subcommittee. As
introduced, my name is Paul Derig, and I am here to testify on
behalf of the Agricultural Retailers Association. ARA is a
trade association which represents America's agricultural
retailers and distributors of crop inputs, equipment, and
services. On behalf of ARA, our members, and in particular
myself, I also want to express heartfelt condolences and
prayers for the people of West after this tragic incident that
they have had to endure.
ARA members are scattered throughout all 50 States, and
range in size from small family-held businesses to farmer-owned
co-ops, and larger companies with hundreds of retail outlets. I
happen to be the H&S manager for a very diversified
agricultural company, and we operate approximately 100 farm
retail distribution centers throughout our network.
During the time that I have been in the retail business,
which covers a span of 35 years, I have played a dual role,
also as a public responder. So I understand what is happening
with those families and the loss that they have had for the
fire fighters that they had injured.
I have also spent a large amount of time, because when
EPA's program came out I saw the tie between the hazardous
materials that I worked with on a day-to-day basis in the
retail business and what EPA was trying to do under SARA Title
III. So I played a dual role for over 10 years, also being on a
regional hazardous materials response team in the State of
Oregon. So as playing those dual roles, I think it is important
because the ag retail sector plays an important role in feeding
the world. Our public responders play an important role in
protecting those people.
We provide essential crop inputs like seed, fertilizer,
crop protection products. With that, we face a complex problem.
It is a multifaceted issue. It involves not only the retailers,
not only the regulators, but a number of other areas within our
communities.
Prior to April 17, the ARA board of directors initiated the
largest undertaking in their history: The establishment of an
ammonia code of practice to help dealers in the retail world
understand the storage and handling of that product.
We have also expanded that down to include ammonium
nitrate. Ammonium nitrate was not originally considered because
as an industry we have had initiatives along those lines in the
past with storage and handling. The result of this initiative
we call responsible ag, a member-led performance management
system that will establish foundational EH&S practices at or
above compliance with third-party independent audit programs.
We ask for agency collaboration and communication within this
effort.
For ARA members, many handle products that are on the
chemical of interest list under DHS, including the high-profile
products like ammonium nitrate and anhydrous ammonia, which are
regulated under the CFATS program. Also regulated under a
number of other regulatory agencies. ARA members that have
filed under the CFATS program, for the most part fall out of
the tiering process. Those that are tiered are tiered in the
lower tiers, 3 and 4, in that CFATS-regulated community.
The Department of Homeland Security's current leadership
has made great strides in reforming the CFATS program and
outreach efforts. However, more needs to take place. ARA would
like to discuss the following enhancements: Reevaluating the
ammonium nitrate registration program; target unidentified
chemical facilities through intergovernmental and industry
cooperation; check the partnership model; raise partnership
outreach within industry, and reassess CFATS' small facility
compliance.
The West facility was required to comply with many
regulations: Compliance with OSHA's hazard communication
standard, DOT's transportation of hazardous materials security
program, as well as Department of Homeland Security and--as
well as standards that cover handling and storing of ammonium
nitrate. Some of those could have prevented this incident. I
don't believe that, or we don't believe that DHS alone would
have prevented what happened. For example, ANS stored in a
warehouse close to seed. The OSHA standard forbids commingling
of organic and combustible material, such as seed, with
ammonium nitrate.
ARA urges the Department of Homeland Security to issue an
ammonium nitrate fertilizer registration program that documents
and tracks the sales of the product without unduly burdening
the farmer's access. ARA testified before this committee in
support of the secure handling of ammonium nitrate in 2005,
which eventually became law in 2007. But nearly 6 years later,
there is still no rule. Congress should consider ARA's letter
to advise DHS advising them to take the following immediate
steps.
First, DHS should enter into a cooperative agreement with
State departments of agriculture or other agencies to perform
inspections and outreach. For example, the agricultural
community is already familiar with the restricted-use pesticide
program, where they need to be licensed and obtain a permit to
handle and apply certain products.
Second, leverage U.S. Department of Agriculture's expertise
and the effect it will have on food production. Include only
straight ammonium nitrate fertilizer at this time, and exclude
ammonium nitrate fertilizer mixtures. According to DHS, we
heard West was unidentified in their database. However, other
Federal and State agencies were aware of the facility.
Mr. Meehan. In the interest of time, may I ask you to
proceed to the conclusion?
Mr. Derig. Yes. We just think it important for the
collaboration and the communication to be able to enhance
compliance and use the industry initiatives that we spoke
about.
Mr. Meehan. Thank you.
Mr. Derig. Thank you.
[The prepared statement of Mr. Derig follows:]
Prepared Statement of Paul Derig
safety, security and feeding the world is a top priority for the
agricultural industry
Thank you, Chairman Meehan and Ranking Member Clarke, I appreciate
the opportunity to appear before this subcommittee. My name is Paul
Derig, and I am here to testify on behalf of the Agricultural Retailers
Association (ARA), a trade association which represents America's
agricultural retailers and distributors of crop inputs, equipment, and
services. ARA members are scattered throughout all 50 States and range
in size from small family-held businesses and farmer cooperatives to
larger companies with hundreds of retail outlets.
I am an environmental, health, and safety (EHS) manager for the
J.R. Simplot Company, which is headquartered in Boise, Idaho and is one
of the largest privately-held firms in the country. In more than 70
years, the company has grown into a global food and agribusiness
company with products that are sold in every State and many foreign
countries. We are a diversified agricultural company, with three main
operating groups; AgriBusiness, known for the fertilizer manufacturing
and ag retail outlets. We operate a retail farm supply distribution
system, Simplot Grower Solutions, and a professional product
distribution system Simplot Partners, comprised of over 100 facilities
in 16 western States that provide products, technical, and field
services to local farmers, horticulturists, and landscapers. Land and
Livestock raises cattle and grows crops, including potatoes, for which
we are widely known, and the Food group known for production and
processing food items, many of our company products are consumed by
Americans every day. This hearing is important to the company as the
ability to safely handle crop input products is vital to our industry
and food production.
I am directly responsible for the regulatory support and oversight
of regulatory programs for the J.R. Simplot AgriBusiness Retail
operations, including security. Over the past 30 years, I have been
involved with many aspects of fertilizer handling and security, both
through industry experience and as a public responder, where I have
served as a fire fighter and member of the State of Oregon Region X
Hazardous Materials Response team, State and National Fire Academy
instructor, and as a departmental and regional training officer for the
public sector. In my Simplot career, I also work with hazardous
materials, including leading Hazardous Waste Operations and Emergency
Response Standard (HAZWOPER). Because of the many roles that I have
been able to play, I understand the importance of safety and security
in the public and private sectors.
Before I address issues concerning the Chemical Facility Anti-
Terrorism Standards (CFATS) Program, I would like to explain the
important role that agricultural retailers play in feeding the world--
because it is too often taken for granted. Agricultural retailers
provide farmers with crop input products like seed, fertilizer, crop
protection products, and equipment. Agricultural retailers also provide
their farmer customers with crop consulting and custom application
services. Agricultural retailers can perform soil sampling so that the
right kind and amount of fertilizer is applied in the right place at
the right time; thus, providing sustainability.
proactive approach to the west fertilizer incident: responsible ag
On behalf of our members, we appreciate the opportunity to provide
the committee with the fertilizer industry's perspective on the tragic
incident that took place on April 17 at the fertilizer facility in
West, Texas. By working together, we will do everything we can to
prevent tragedies like West from happening again. Our employees live
and work in communities small and large across the country, and nothing
is more important than protecting our workers, first responders, and
their neighbors. A majority of our employees, like myself, are or have
been first responders in their communities. We are an accountable and
responsible industry committed to the safety of the communities in
which we live and operate.
Prior to April 17, the ARA Board of Directors initiated the largest
undertaking and most important mission in the Association's history--
the establishment of an Ammonia Code of Practice--with the intent of
establishing Codes of Practices for other products such as ammonium
nitrate (AN) fertilizer. The Fertilizer Institute was invited to join
the initiative and is a partner. The result--a Responsible Ag
management system that will help facilities establish foundational
EHS&S performance practices.
This member-led effort will lead to uniform guidelines that promote
continuous improvement in EHS&S performance for all fertilizer storage
facilities and designed to be sensitive and responsive to community
needs and public concerns. To ensure compliance with these guidelines,
a third-party inspection program will also be established.
Currently work is being done to reach our goal of designing a
system that is transparent, simple, and efficient for fertilizer
storage facilities, effective in improving safety, and provides more
frequent and efficient inspections than regulatory agencies. To ensure
that we are adequately responding to public concerns, this system will
include independent third-party audits and the adherence to stringent
industry and regulatory standards. Agricultural retailers,
distributors, and other fertilizer storage facilities' implementation
of this Responsible Ag program includes a commitment to comply with all
relevant EHS&S regulations as they affect company operations. We are
also soliciting Government, academia, and industry stakeholders for
input.\1\
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\1\ ARA reached out to the academic community such as Texas A&M for
input on AN storage. ARA has also sent letters requesting regulatory
checklists from: The Department of Transportation, Occupational Safety
and Health Administration, Environmental Protection Administration,
etc. (See letters attached)
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Responsible Ag Guiding Principles:
Communicate with and engage employees, business partners,
and the community to foster a greater understanding of EHS&S
matters regarding fertilizers and other hazards;
Foster new and continuing partnerships between the
agricultural industry, local first responders, and Local
Emergency Planning Committees;
Develop a code of practice for ammonium nitrate & anhydrous
ammonia storage and handling;
Create a comprehensive and efficient third-party auditing/
inspection process for facilities.
ara supports current and future improvements to cfats
For ARA members, crop input products like anhydrous ammonia and
ammonium nitrate fertilizer and pesticide fumigants are classified as
Chemical of Interest (COIs) and are regulated under the CFATS Program.
ARA members account for a large portion of the lower risk (Tier 3 & 4)
CFATS-regulated community. It is important for these chemicals to be
handled at the retail facility, as they become significantly less
regulated and in the case of CFATS not regulated at all once they are
on the farm.
DHS's current leadership has made great strides in reforming the
current CFATS program and outreach efforts. The CFATS approach allows
facilities to utilize a full range of potential security enhancements
depending on local site conditions and risk thus maximizing their
potential effectiveness. The level of inspections has increased
substantially over the last year, but inspection projections for lower-
risk facilities could improve from stakeholder input, which DHS plans
to solicit in a rulemaking.
ARA suggests the following enhancements on both the CFATS program
and the Ammonium Nitrate Fertilizer Registration Program:
(1) Reevaluate the Ammonium Nitrate Fertilizer Registration
Program;
(2) Target Unidentified Chemical Facilities Through
Intergovernmental and Industry Cooperation;
(3) Check the Partnership Model;
(4) Raise ``Partnership'' Outreach With Industry;
(5) Reassess CFATS Small Facility Compliance Burdens.
reevaluate the ammonium nitrate fertilizer registration program
Some claim that if a functional AN registration program was
implemented the West fertilizer accident would have never happened. We
believe that under the proposed registration framework, West fertilizer
would have at least registered under the program. West might have paid
more attention to their operations and AN inventory if the rule was
issued, but there is no way to make that determination.
The West facility was required to comply with specific OSHA
regulations, including the Hazard Communication Standard \2\ and
Explosives and Blasting Agents Standard.\3\ It can be argued that
compliance with these programs could have prevented or mitigated the
incident, while it's not clear what the compliance status of the
facility was at the time of the incident.
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\2\ 20 C.F.R. 1910.1200 (1994).
\3\ 29 C.F.R. 1910.109 (1978).
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The Explosives and Blasting Agents Standard has many measures that
would have prevented or mitigated the incident.\4\ For example, the AN
was stored in a warehouse, in very close proximity to the seed area.
``Ammonium nitrate shall be in a separate building or shall be
separated by approved type firewalls of not less than 1 hour fire-
resistance rating from storage of organic . . . ''.\5\ Seed is an
organic and combustible material, which could propagate the fire to
areas where AN was stored. Storage of AN at an adequate distance from
the seed area might have helped in preventing the explosion.
Unfortunately, we may never have the answer; however, it's time to look
forward to solutions.
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\4\ This conclusion is also supported by academic experts. See
Oversight of Federal Risk Management and Emergency Planning Programs to
Prevent and Address Chemical Threats, Including the Events Leading Up
to the Explosions in West, TX and Geismar, LA before the Senate Comm.
on Environment and Public Works, 113th Cong. (2013) (statement of Dr.
M. Sam Mannan, PE, CSP).
\5\ Id.
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Therefore, ARA urges the U.S. Department of Homeland Security (DHS)
to issue an ammonium nitrate fertilizer registration program that
documents and tracks the sale of the product without unduly burdening
the agricultural sector's access to AN for farming and other legitimate
agricultural purposes. The fertilizer industry approached Congress in
2005 to seek traceability regulations for ammonium nitrate. ARA
testified before this committee in support of The Secure Handling of
Ammonium Nitrate Act on December 14, 2005. This legislation was
eventually signed into law on December 2007. We feel that the program
should remain focused on registered AN facilities and AN purchasers as
originally intended by Congress.\6\ ARA certainly understands the
challenges faced by DHS in implementing a final AN rule, but it has
been nearly 6 years since this law was enacted.
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\6\ Section 563 of the 2008 Consolidated Appropriations Act, Secure
Handling of Ammonium Nitrate (Section 563) granted the Department of
Homeland Security (DHS) the authority to regulate the sale and transfer
of ammonium nitrate ``to prevent the misappropriation or use of
ammonium nitrate in an act of terrorism.'' In October 2008, DHS
published an Advanced Notice of Proposed Rulemaking (ANPRM) detailing
the activities expected to be covered under the ammonium nitrate
regulations and seeking comment from interested parties. In August
2011, DHS published an ammonium nitrate Notice of Proposed Rulemaking
(NPRM).
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Congress should consider ARA's letter \7\ to DHS advising them to
take the following immediate steps:
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\7\ See ARA letter ``Agricultural Retailers Association suggestions
on Ammonium Nitrate Security Program'' to Ms. Caitlin A. Durkovich,
Assistant Secretary for Infrastructure Protection U.S. Department of
Homeland Security (July 8th 2013).
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DHS should enter into cooperative agreements with State
agencies, either State departments of agriculture or agencies
within the land-grant universities like Texas A&M to perform
inspections and audits. Because State inspectors are more
familiar with the product and their regions it would be more
efficient for them to perform inspections and outreach. ARA
along with various State departments of agriculture support
this model. For example, farmers and the agricultural community
are already familiar with the Restricted Use Pesticide (RUP)
program, where they need to be certified and obtain a permit to
handle and apply the product.
Leverage the U.S. Department of Agriculture's (USDA)
expertise in agricultural-based products and the effect it will
have on food production. Currently to our knowledge, USDA does
not play a role in advising DHS.
Include only straight AN at this time and exclude
``mixtures'' in the definition of AN.
Include AN fertilizer and exclude explosive-grade AN
regulated by the Alcohol Tobacco and Firearms (ATF).
There should be a ``no-limit'' threshold--cold packs of AN
should be regulated to prevent terrorism.
In absence of a formal AN rule issued by DHS, ARA will continue to
work diligently with our members and various Government agencies to
implement voluntary measures that: (1) Secure AN fertilizer storage
(Responsible Ag), (2) screen purchases of AN fertilizer, and (3)
provide resources for AN facilities to use in response to suspicious
activities or actors.
target unidentified chemical facilities through intergovernmental and
industry cooperation
DHS should ensure that facilities with chemicals of interest are
notified by DHS when they fall within the purview of the CFATS program.
The comprehensive Federal regulatory program requires high-risk
chemical facilities to register with DHS (Top Screen), conduct a
thorough site security assessment and implement protective measures
that comply with 18 risk-based performance standards. According to DHS,
West Fertilizer was an unidentified chemical facility because they
failed to file a Top Screen under the CFATS program; however, other
Federal and State agencies were aware of the facility such as:
EPA's Risk Management Program (RMP);
Department of Transportation's Pipeline Hazardous Material
Safety Administration;
Emergency Planning and Community Right-to-Know Act (EPCRA)
Tier II reporting requirements;
Occupational Safety and Health Administration (OSHA);
Office of the Texas State Chemist (OTSC).
DHS should leverage Government partners to round up unidentified
chemical facilities and, then work with industry towards outreach.
There are a number of Federal and State databases that can assist DHS
in reaching its target objective ranging from State departments of
agriculture to EPA's RMP.\8\
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\8\ EPA's Risk Management Program data can be utilized by DHS for
chemical release threats like anhydrous ammonia.
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check the ``partnership'' model
ARA finds that DHS should reevaluate the partnership model to
develop better cooperation. Partnership is a relationship between
individuals or groups that is characterized by mutual cooperation and
responsibility, as for the achievement of a specified goal. ARA members
and DHS are both responsible to safeguard against fertilizer misuse and
manipulation but mutual cooperation can be enhanced.
In terms of dry fertilizer, State chemists and State departments of
agriculture can share date for facilities above the COI thresholds. For
products like ammonia nitrate (AN), there are already State programs
that regulate this product with databases. Lastly, information from
Department of Transportation safety program could yield more
unidentified chemical facilities.
Too often industry participates in the last stage of the decision-
making process. Placing key stakeholders \9\ in the early stages of
policy development would: (1) Lessen Congressional interference; (2)
enhance the mutual understanding between the private and public sector;
(3) reduce time and funds dedicated towards the rulemaking functions;
(4) and overall increase mutual trust and cooperation towards outreach.
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\9\ The Chemical Sector Coordinating Council (CSCC) is one of 18
critical infrastructure committees that were established under the
protection afforded by the Critical Infrastructure Partnership Advisory
Council (CIPAC). The purpose of the CSCC is to facilitate effective
coordination between Federal infrastructure protection programs with
the infrastructure protection activities of the private sector and of
State, local, territorial, and Tribal governments. Pursuant to the
Homeland Security Act of 2002, the Council helps to facilitate
strategic planning and effective discussion of critical infrastructure
issues and to provide appropriate protection for sensitive critical
infrastructure information.
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raise ``partnership'' outreach with industry
Outreach is an integral part of putting facilities like West on
notice that facilities need to protect their assets and comply with the
law(s). Facilities can't comply with CFATS if they don't know who and
what to comply with. This approach should be the focus of targeting
unidentified chemical facilities. Easy, simple ways of communication
works best, as well as fast and effective campaigns.
ARA has a long history with other agencies towards tangible and
successful partnerships:
Federal Bureau of Investigation (FBI).--ARA collaborated
with the FBI in the production of a ``Potential Indicators of
Terrorist Activities'' bulletin for display at facilities that
carry products that could be manipulated to make improvised
explosives. The bulletin/poster assists retailers in
identifying suspicious purchases and directs them to report
suspicious behavior to the FBI. Currently, there are 1,500 FBI
bulletins in distribution amongst ARA members.
Department of Defense's Joint Improvised Explosive Device
Defeat Organization (JIEDDO).--ARA is working with the JIEDDO
to counter global and enduring IED threats in Afghanistan. We
receive general unclassified fertilizer threat information that
keeps our members informed on how fertilizers are being
manipulated into IEDs.
First Responders Organizations.--ARA consulted first
responders in drafting ``ARA's First Responder Guidance'' for
use by industry, LEPCs, and local first responders. The
guidance sets the stage for a coordinated and effective
emergency response communication. In addition, it lays the
basis for building a close relationship with the first
responders through emergency response management.
National Fire Protection Association (NFPA).--For many years
the fertilizer industry has served on the NFPA Technical
Committee for Hazardous Chemicals (NFPA 400), which is the
committee of jurisdiction over the fire code for
recommendations for storage and handling of AN. The fertilizer
industry supports compliance with NFPA's code for AN.
Environmental Protection Agency (EPA).--ARA coordinated with
EPA and submitted comments to EPA's Ammonium Nitrate Alert in
order to further educate the industry on the hazards of AN
storage.
ARA partnered with EPA on other outreach opportunities, such
as: The container and containment rules for pesticides, Spill
Prevention, Control, and Countermeasure Plans and others. DHS
could learn some lessons from other agencies regarding
outreach. Great models do exist. Even prior to West, DHS has
made considerable efforts to engage ARA members and understand
the way we operate, but often Government bureaucracy has got in
the way.
ARA members would like DHS to step up partnership outreach to
continue the Chemical Sector Security Summit, develop alternative
security plans and promote CFATS compliance via webinars, targeted
publication ad postings, and flyers.
With the above positive steps, more can be done. ARA would also
like to see more efforts towards (electronic/video) \10\ training and
outreach opportunities targeting facilities that use, store, or
distribute chemicals above specified quantities listed under the CFATS
program. This includes quick and efficient co-branding literature for
distribution.
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\10\ See Simplot First Responder Training Video as an example.
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To ensure effective outreach, DHS must be able to co-brand
information for distribution with the trade associations and
stakeholders. DHS headquarters must quickly and effectively respond and
produce effective products for distribution. Often the cake-like layers
of bureaucracy hinder the ability to effectively get a pamphlet or
bulletin from DHS. This is a deterrent to the ``partnership'' model.
reassess small facility compliance burdens
We all share a responsibility to protect our chemical facilities;
but, regulations need to be practical, economically feasible, and not
outweigh the perceived benefits. As far as the current implementation
of the CFATS program is concerned, here are some suggestions that may
improve the program:
Quicker response from DHS on site security plans--some
members have submitted their site security plans and it has
been over 2 years with no response.
DHS should continue to work with ARA on alternative security
plans and increased inspections for lower-risk facilities.
Reform the Personnel Surety Program (PSP) \11\--Under the
CFATS Interim Final Rule issued in April 2007, it states that
DHS ``may disapprove a Site Security Plan (SSP) that fails to
satisfy the risk-based performance standards established in
27.230''. Section 27.230 lists the Risk-Based Performance
Standards (RBPS) each CFATS facility must select, develop in
their SSP, and implement appropriate measures to satisfy the
performance standards, which includes Personnel Surety.\12\
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\11\ 6 C.F.R. 27.230 (2007).
\12\ RBPS No. 12 was issued for personnel surety and DHS has
developed a CSAT application for high-risk chemical facilities to
submit information about facility personnel and, as appropriate,
unescorted visitors with access to restricted areas or critical assets
at those facilities. The goal as stated by DHS is to identify known or
suspected terrorists. While we fully agree with this goal we question
the manner in which DHS has decided to fulfill this RBPS as we feel it
goes beyond the statutory intent of Congress for chemical facilities to
take measures designed to identify people with terrorist ties.
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ARA acknowledges that several aspects of the PSP improved
thanks to our open and continuous discussions. However,
``electronic verification'' for individuals already enrolled in
legally equivalent programs such as Hazardous Materials
Endorsement (HME) Programs, still remains an obstacle.
DHS plans to limit the initial CFATS PSP implementation to
only Tier 1 and Tier 2 high-risk chemical facilities. The
current PSP requirements do not vary by risk-based tier. The
assistant secretary should accept measures used to meet
standards on a risk-based approach.\13\
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\13\ 6 C.F.R. 2.230(a) (2007).
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ARA members would like to see DHS leverage existing
credentialing programs by a reasonable visual inspection if the
facility can demonstrate a likelihood of detecting and
preventing fraudulent entry.\14\ This would be similar to the
visual inspection of Government-issued credentials by TSA
security officials.
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\14\ Id.
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It should be recognized that a ``facility-centered''
background check program cannot take advantages of portability
similar to a ``personnel-based'' programs, like the HME
program. DHS should look into employee-based models.
permanent cfats or long-term reauthorization is needed for regulatory
certainty
The CFATS program is not perfect, but it's not broken. We
understand that Congress will make efforts to reauthorize or
permanently reauthorize the CFATS program. ARA believes that it is
essential for DHS to be principal in chemical regulation and
enforcement. ARA supports the CFATS program because it ensures safety,
security, and efficiency by safeguarding our critical infrastructure.
Mandates on inherently safer technology and allowing civil suits will
not make facilities any safer. We hope that Congress will provide DHS
permanent statutory authority for the CFATS program, thus providing
regulatory certainty and operational stability that is necessary for
capital investments to be appropriately planned and budgeted.
DHS leadership is committed to working through the current issues
and working with stakeholders to improve the implementation of the
CFATS program. ARA also urges Congress to provide the agency with
sufficient resources to ensure that chemical facility security is
implemented in a timely fashion.
We look forward to working with the committee, Congress, and DHS to
further improve the CFATS program so that agricultural retailers and
distributors are able to continue to safely and securely provide these
important crop inputs to our farmers.
Mr. Meehan. Mr. Scott.
STATEMENT OF TIMOTHY J. SCOTT, CHIEF SECURITY OFFICER,
CORPORATE DIRECTOR, EMERGENCY SERVICES AND SECURITY, DOW
CHEMICAL
Mr. Scott. Thank you, Chairman Meehan, Ranking Member
Clarke, and Members of the subcommittee. I am Tim Scott, chief
security officer for the Dow Chemical Company. I am speaking
today on behalf of Dow and the American Chemistry Council, the
Nation's largest chemical industry trade representative.
We all mourn the loss of life suffered in West, Texas.
While the exact cause of the explosion may never be known, the
path that led to this disaster is clear: Noncompliance with
established regulations, lack of regulatory oversight, no
community awareness of the risk, no training for local first
responders, no warning system, no security.
This disaster might have been avoided, or at least the
impact minimized, if any one of those steps had been corrected.
There are regulations already in place at both the State and
Federal levels that require the submission of data relative to
chemicals of interest in quantities on-site. Compliance with
any one of these regulations would have identified this
facility as a potentially high-risk site. Clearly, the facility
owner, and the State and Federal regulatory agencies, failed in
their responsibilities. More regulations are not the answer,
but rather communication, understanding compliance, and
enforcement of the established regulations already in place.
While DHS has had many issues with the implementation of
CFATS, they are now making significant progress in identifying,
inspecting, and securing the high-risk sites in the U.S.
chemical sector. The facility in West, Texas flew below the
radar, and we can't have sites operating outside the
regulations for any reason. We support a multi-year
reauthorization of CFATS and DHS to continue this progress and
bring stability, compliance, and enforcement to the chemical
security process.
Non-complying outlier sites pose a risk to the communities
in which they operate, and that is of most importance. But they
also pose a risk to the chemical industry. By ``outlier
sites,'' I mean those facilities that may produce, mix, store,
or distribute chemical-related products, but are not a part of
the established chemical industry, members of chemical-related
industry associations or participants in the local emergency
planning committees. They are not the chemical industry to
which Dow and ACC belong, but their actions or lack of action
cast a shadow over our industry nonetheless.
ACC and Dow have been proactive in calling for chemical
security legislation for almost a decade now in order to bring
everyone, including these outlier sites, into the compliance
process. Public-private partnerships are successful. DHS and
the chemical industry, working together on common goals and
finding solutions that address the concerns of both partners,
have proven these partnerships can work. This public-private
partnership concept, initiated by DHS here in the United
States, along with the Responsible Care Code, have made their
way around the world and are accepted and promoted by the
International Council of Chemical Associations and the
International Center for Chemical Safety and Security in their
efforts to develop a chemical safety and security culture in
developing nations.
The DHS concept of public-private partnership is a leading
and recognized standard around the world. In addition to the
regulations already in place, there are many established
programs and partnerships that can address the issues around
the West, Texas disaster. At Dow, we implement the Responsible
Care Code at all sites around the world. This includes the
security code and also the Community Awareness and Emergency
Response, or CARE, initiative in the communities near our
facilities in the TransCare initiatives in communities along
the transportation routes used to distribute our products.
These initiatives include community advisory panels,
training and awareness for emergency responders, integrated
community or industry emergency response plans and systems, and
awareness for the general public, schools, hospitals and what
we call ``nearby neighbors.'' We participate in local emergency
planning committees, or LEPCs, created under Federal regs in
the mid-'80s and still in force and viable today. These LEPCs,
by law, include members of the community, media, special
interest groups, local government, emergency responders, and
industry.
These local partnerships are where the rubber meets the
road. If additional appropriations are being considered, it is
at the local level where they can do the most good. West, Texas
can and will recover from this terrible tragedy, but we must
identify and eliminate similar risks across our Nation. We must
enforce the regulations already in place. We must bring outlier
sites into the process. We must build robust and all-inclusive
public-private partnerships for chemical safety and security at
the local community, State, and Federal levels.
We must implement initiatives like CARE and TransCare at
the local level to be sure the communities and responders are
aware of potential hazards and capable of responding to
emergencies. We must constantly strive to do better at
identifying, communicating, regulating, mitigating, and
responding to the risk. ACC and Dow will continue to be
industry leaders in this effort, and we look forward to your
questions. Thank you.
[The prepared statement of Mr. Scott follows:]
Prepared Statement of Timothy J. Scott
August 1, 2013
introductory statement from timothy j. scott on the tragedy in west,
texas
The disaster in West, Texas, was both a National tragedy and a
deeply personal tragedy for the families of the brave first responders
that lost fathers, husbands, and even a grandmother. It is our shared
responsibility to fully examine this catastrophe and apply what we
learn to prevent future incidents and loss of life. While the cause of
the explosion may never be known with certainty, the path that led to
this disaster is clear--non-compliance with established regulations,
lack of regulatory oversight, little or no community awareness, little
or no training for local first responders, no warning system, and
little security at the West Fertilizer Company facility. There were
clear missed opportunities to avoid this tragedy or minimize the
impact.
West Fertilizer was what we refer to as an outlier site. Outlier
sites are facilities that store or distribute chemical-related
products, but are not part of the established chemical industry, are
not members of chemical-related industry associations, are not part of
an industry performance improvement program such as Responsible Care,
or participants in the local emergency planning committees (LEPCs) in
which they operate. Outlier sites can pose a threat not only to the
local communities in which they operate, but also to the chemical
industry as a whole, to ACC and The Dow Chemical Company. ACC and Dow
have been proactive in calling for legislation that will level the
playing field and bring these outlier sites into compliance.
The State and Federal regulatory agencies with oversight
responsibilities for the West, Texas facility must understand they
could have done better. There are regulations in place at both the
State and Federal levels that require the submission of data relative
to chemicals of interest and quantities on-site that would have
identified this facility as a potentially high-risk site. Compliance
and enforcement of these existing regulations is needed.
West, Texas, will recover from this terrible tragedy. On a National
level, we must work to build on a robust and all-inclusive public-
private partnership for chemical safety and security, which was built
from the local communities up through the Federal Government and across
the Nation. ACC and Dow stand ready to join that partnership.
safety and security are a top priority for the chemical industry
The American Chemistry Council (ACC) represents the leading
chemical companies that produce essential products critical to everyday
life. The business of chemistry is a vital aspect of our Nation's
economy since it employs more than 780,000 Americans and touches more
than 96 percent of all manufactured goods.
Because of our critical role in the economy, our commitment to our
customers and shareholders and our responsibility to our neighboring
communities, safety, and security remain a top priority.
The men and women of the chemical industry have worked hard to
develop a culture that has put our industry at the forefront of
manufacturing when it comes to safety. We are very proud of the fact
that the worker injury rate for the chemical sector is among the lowest
of any manufacturing sector according to U.S. Bureau of Labor
Statistics.
And, members of ACC have sought to build upon the overall
industry's safety performance through Responsible Care, the chemical
industry's world-class environmental, health, safety, and security
performance initiative. Under Responsible Care, ACC members work with
emergency responders and communities to coordinate response plans and
to continually improve industry performance. Implementation of
Responsible Care is mandatory for all members of ACC, as well as for
Responsible Care Partner companies, who represent chemical
transporters, distributors, warehouses, logistics planners, and others
along our supply chains.
The results of the program speak for themselves. Responsible Care
companies have reduced injury and illness rates at their facilities by
79 percent since 1990. Thanks to this effort, these same companies have
a worker injury rate 5 times lower than the U.S. manufacturing sector
as a whole and nearly 3 times better than the business of chemistry
overall. They also have reduced the number of process safety incidents
that resulted in a product spill, fire, explosion, or injury by 58
percent since 1995.
In addition to Responsible Care, ACC's CHEMTREC provides 24/7
emergency response assistance to requests from companies and from
emergency responders to help coordinate and communicate critical
product safety information that may be needed in mitigating a hazardous
material-related incident. In addition, ACC sponsors TRANSCAER
(Transportation Community Awareness and Emergency Response), a
voluntary National outreach effort that focuses on assisting
communities prepare for and respond to a possible hazardous material
transportation incident. For example, TRANSCAER has trained more than
60,000 emergency responders just during its first year of anhydrous
ammonia training. TRANSCAER was founded in 1986 by the Dow Chemical
Company and Union Pacific Railroad. Dow alone has completed 210 events
for 6,825 people under TRANSCAER since 2007.
Together, Responsible Care, CHEMTREC, and TRANSCAER include
community advisory panels, training, and awareness for emergency
responders; integrated community and industry emergency response plans
and systems; and awareness for the general public, schools, hospitals,
and nearby neighbors.
ACC and its member companies care deeply about the communities
where they operate. They do not just run businesses; they also live in
and contribute to the vitality of their towns and cities. They work
hard to establish relationships with their neighbors as well as local
officials and emergency responders to help address potential safety and
security issues. Our industry's on-going efforts are intended to
benefit not just the people we employ but also the communities
surrounding our facilities. Our commitment to harnessing the latest
technologies and innovations to help enhance safety and security has
never been stronger.
strong support for regulatory oversight
Because the Nation depends on chemical producers every day to form
the building blocks and processes necessary for safe drinking water, a
plentiful food supply, life-saving medicines, and modern technologies,
the Federal Government has established a comprehensive set of laws to
regulate all aspects of safety and security at chemical facilities.
In fact, multiple agencies, including the U.S. Environmental
Protection Agency (EPA), the Occupational Safety and Health
Administration (OSHA), U.S. Department of Homeland Security (DHS), U.S.
Department of Transportation (DOT), and the Transportation Security
Administration (TSA), have the authority to regulate the safety and
security of chemical facilities through a comprehensive array of
regulatory programs (see appendix).
ACC and its members fully support compliance with these Federal
regulations and believe that agencies should have the appropriate
resources to enforce safety and security regulations. We fully support
the role of the Government in overseeing safety and security through
the numerous Federal programs in place that regulate the operation of
chemical facilities, and we believe that agencies should have the
appropriate resources to effectively train its field inspectors,
educate the regulated community, and enforce regulations. And just as
important, we believe companies have an obligation to understand their
legal and regulatory obligations and take action to comply.
We also value the Chemical Safety Board's (CSB) independent and
technical insight. The CSB investigation of accidents and subsequent
recommendations are vital to determine what actions might be warranted
based on the root causes of incidents. As part of our effort to
continuously improve our performance, the chemical industry captures
and disseminates lessons learned from incidents and utilizes those
lessons to improve performance, as well as standards and practices.
critical role of cfats
DHS has created a solid regulatory framework under the Chemical
Facility Anti-Terrorism Standards (CFATS). ACC believes that CFATS has
had a positive impact on enhancing security, and we fully support
implementation of the program. Under CFATS, DHS has analyzed nearly
40,000 chemical facilities across the United States, identifying more
than 7,000 facilities as potentially high-risk chemical facilities.
Since then nearly 3,000 facilities have reduced their potential
security risks by making operational changes that reduced or eliminated
on-site chemical inventories. As a result, the CFATS regulated
community currently includes approximately 4,500 facilities across the
Nation.
While DHS has faced some challenges implementing the CFATS program,
these challenges are not insurmountable. Since the release of the DHS
internal memo, the agency has made progress on implementing the action
items and putting in place a workable management structure that will
enable an effective CFATS implementation process. The industry has seen
considerably increased inspection activity, improved quality of
inspections and expedited authorizations. Key management positions have
been filled with permanent, qualified professionals who have regulatory
program experience. DHS has reengaged the public/private-sector
security partnership that was so valuable early in the program and is
now providing an opportunity to make additional strides as we work
together to secure the Nation's chemical infrastructure.
DHS leadership has demonstrated a commitment to working through the
current issues and working with stakeholders to improve the
implementation of the CFATS program. ACC urges Congress to provide the
agency with sufficient resources to properly handle the workload and to
ensure that chemical facility security is implemented in a timely
fashion. Eventually, we hope that Congress will provide DHS permanent
statutory authority for the CFATS program, thus providing regulatory
certainty and operational stability that is necessary for capital
investments to be appropriately planned and budgeted. These
improvements will also ensure that long-term security decisions can be
made without concern as to whether the regulatory landscape under the
CFATS program will be altered.
the path forward
Just as we have seen with CFATS, a strong partnership is
fundamental to success. While determining the root cause of the West
incident and CSB's recommendations will be instrumental in pointing to
specific areas for improvement, we should act on an opportunity that is
available to us right now to enhance safety and security.
We need to make sure that the regulations are being implemented
fully and properly and that the agencies have the necessary resources
to get the job done. In addition, Federal officials at all levels have
to work together and coordinate their activities across all regulatory
programs. Equally significant is strengthening the partnership between
Government officials and a facility operator is sorely needed. Everyone
must be on the same page and working together when it comes to
protecting workers and communities. This can be accomplished by first
redirecting agency priorities towards training and educational
resources for the regulated community and for on-site field inspectors
to ensure they have the appropriate knowledge, skills, and
proficiencies to focus on verifying compliance with the various
programs.
Investing in compliance assistance programs for Federal, State, and
local officials that are responsible for certifying the accuracy and
applicability of agency reports will ultimately ensure the safety and
security of the community and environment. Moreover, an affirmative
investment in effective and consistent outreach programs for facility
owners and operators is equally imperative to ensure the regulated
community thoroughly understands the mission of each agency. A strong
financial and administrative commitment to educational outreach and
assistance programs and devoting technical resources to consistently
maintain, assess, and oversee the current chemical database systems
will likely improve overall compliance and understanding of agency
objectives, thus reducing ambiguities and inaccuracies in reporting and
auditing.
Facility operators need to be actively engaged in local
communities' emergency planning processes and ensure that local
responders are aware of the materials being used on their sites. This
includes opening plant gates to provide periodic tours for local
officials and coordinated training and drills. Emergency planning and
coordination does not have to be limited to plant events which can
impact the community. As I said earlier, we live in the communities
where we operate and there are other threats, both natural--hurricanes,
tornadoes--and man-made, for which local responders must prepare.
Local Emergency Planning Committees (LEPC) created under Title III
of the Superfund Amendments and Reauthorization Act (SARA Title III) in
the mid-1980s are still in force and viable today. Each State was
required to establish a State Emergency Response Commission, which in
turn specified where LEPCs needed to be established. These LEPCs
include members of the community, media, special interest groups, local
government, emergency responders, and industry. LEPCs need strong
support and active participation of facility operators as well as
continued support from local officials. LEPCs are a first line of
defense for the community and they deserve all the support the private
and public sectors can give them.
The Federal Government needs to work with industry to help share
and leverage existing best practices and industry program to make sure
``outliers'' are aware there are tools and resources available to them.
ACC and its members remain committed to working with government
officials at all levels to enhance safety and security at our
facilities, so we all continue to enjoy the essential benefits of a
strong and growing chemical industry in America.
Appendix--Current Safety & Security Regulatory Programs
safety
OSHA
Process Safety Management (PSM) Regulations (29 CFR 1910.119).--
This regulation helps prevent accidental releases of highly hazardous
chemicals, thus protecting employees, contractors and people who live
and work around chemical operations.
a. Chemical National Emphasis Program (NEP) establishes policies
and procedures for inspecting workplaces that are covered by
OSHA's process safety management (PSM) standard, protecting
workers from catastrophic releases of highly hazardous
chemicals.
Combustible Dust Rulemaking.--OSHA believes a comprehensive dust
standard is needed to prevent dust explosions and is therefore pursuing
a combustible dust rulemaking.
Voluntary Protection Program (VPP).--Many member companies
participate in VPP, a program that promotes effective worksite-based
safety and health.
Emergency Planning and Community Right-to-Know Act (EPCRA)
a. There are four major provisions of EPCRA:
i. Emergency Planning (Sections 301-303);
ii. Emergency Release Notification (Section 304);
iii. Hazardous Chemical Storage Reporting (Sections 311-312);
iv. Toxic Chemical Release Inventory (Section 313).
Responsible Care Process Safety Metrics.--Responsible Care
companies are committed to the safe operations of their chemical
processes. The enhanced Process Safety Code sets forth this collective
commitment to a culture of process safety throughout chemical facility
processing operations, management systems, and leadership
organizations. It is also intended to complement regulatory
requirements, such as OSHA's Process Safety Management (PSM) standard
and EPA's Risk Management Program (RMP) standard.
EPA
Risk Management Program (RMP).--Under the authority of section
112(r) of the Clean Air Act, the Chemical Accident Prevention
Provisions require facilities that produce, handle, process,
distribute, or store certain chemicals to develop a Risk Management
Program and prepare a Risk Management Plan (RMP).
U.S. Chemical Safety and Hazard Investigation Board (CSB)
While industry is not regulated by them, their recommendations are
factored into decision making.
Department of Transportation
The Hazardous Materials Regulations (HMR) govern the transportation
of hazardous materials by highway, rail, vessel, and air. The HMR
addresses hazardous materials classification, packaging, hazard
communication, emergency response information, and training.
chemical security regulations
Department of Homeland Security
The Chemical Facility Anti-Terrorism Standards (CFATS), also known
as 6 CFR, Part 27, are a set of U.S. Government security regulations
for high-risk chemical facilities such as chemical plants, electrical
generating facilities, refineries, and universities. The U.S.
Department of Homeland Security promulgated the Final Rule on April 9,
2007. The regulations came into effect on June 8, 2007, apart from
material covered in Appendix A, which took effect upon its publication
in the Federal Register on November 20, 2007.
U.S. Coast Guard
The Maritime Transportation Security Act of 2002 (MTSA) (Pub. L.
107-295) was signed into law by President George W. Bush on November
25, 2002. This law is the U.S. implementation of the International Ship
and Port Facility Security Code (ISPS). It requires port facilities to
conduct vulnerability assessments and develop security plans that may
include screening procedures; security patrols; establishing restricted
areas; personnel identification procedures; access control measures;
and/or installation of surveillance equipment. The act creates a
consistent security program for all the Nation's ports to better
identify and deter threats. The U.S. Coast Guard issued regulations to
enact the provisions of the act and to align domestic regulations with
the maritime security standards of SOLAS and the ISPS Code. The
regulations are found in Title 33 of the Code of Federal Regulations,
Parts 101 through 107. Part 105 contains port facility security
regulations, including those that apply to chemical facilities.
Mr. Meehan. Thank you, Mr. Scott.
The Chairman now recognizes Mr. Moulton.
STATEMENT OF SEAN MOULTON, DIRECTOR, OPEN GOVERNMENT POLICY,
CENTER FOR EFFECTIVE GOVERNMENT
Mr. Moulton. Chairman Meehan, Ranking Member Clarke,
Members of the subcommittee thank you for inviting me to
testify today on the Chemical Facility Antiterrorism Standards,
CFATS, and steps needed in the aftermath of the West Fertilizer
tragedy. I want to also offer my deep condolences to the West,
Texas community and the families that lost loved ones.
My name is Sean Moulton, and I am the director of open
government policy at the Center for Effective Government,
formerly OMB Watch, an independent nonpartisan policy
organization dedicated to ensuring Government is effective and
responsive to the priorities of the American people. I wish to
make four points. First, excessive secrecy and information
restriction contribute to gaps, oversights, and inefficiencies
in chemical security efforts in the CFATS program specifically.
CFATS was unaware of the West Fertilizer plant and its
storage of ammonium nitrate. EPA knew about the facility
through its risk management program, but didn't know about the
ammonium nitrate. State emergency officials knew about the
ammonium nitrate through hazardous chemical inventory reports,
but didn't know the facility was missing from CFATS. These gaps
are especially troubling because much of the needed information
was reported, but not reported to everyone. The information
that was reported wasn't sufficiently shared.
These breakdowns reveal disturbing loopholes in the
regulatory system and a fundamental problem with the way we
manage chemical security and safety information. We have
adopted an overly-secretive approach to this information, which
slows sharing and impedes risk mitigation. This need-to-know
approach also promotes cultures of secrecy and isolation in
agencies, which lead to information gaps such as unreported
facilities in CFATS.
This raises my second point: Better collaboration among
Federal agencies and State authorities is needed to address
these gaps. The most effective way for agencies to share
information and avoid bureaucratic, technical, and other
barriers is to narrow the amount of protected information and
make the rest public in open data formats. Need-to-know access
tools, such as requiring special logins and requesting approval
for access, impedes sharing and limits cross-agency
collaboration, and should only be used for the most sensitive
information.
If a list of CFATS' facilities was public, perhaps an
official in Texas or a plant employee would have noticed that
West Fertilizer was not on this list. Third, engaging and
informing the public is essential to protecting communities
from chemical facility risks. Citizens, first responders, plant
workers, and local officials all need to be better-informed to
prepare for chemical emergencies. Basic information, such as
facility location, identity and quantity of chemicals,
compliance status are vital for communities to properly
identify and prepare for chemical risk.
On the other hand, excessive secrecy could cost lives in a
chemical emergency. The tragedy at West Fertilizer may be an
example of this. Emergency guidelines for large ammonium
nitrate fires recommend evacuation and trying to contain the
fire from a distance. However, the West fire fighters,
apparently unaware of the ammonium nitrate, may not have been
able to properly judge the situation and adopt these tactics.
Furthermore, greater public access to information can help
reduce or eliminate risk.
Adopting safer chemicals and processes can remove dangerous
substances from communities and better protect Americans.
Preliminary findings indicate that West Fertilizer's ammonium
nitrate could have been mixed with calcium carbonate to
eliminate the risk of explosion, while preserving its use as a
fertilizer. Communities and agencies need more complete
information on current chemical storage to be able to advocate
for safer alternatives.
Finally, increased transparency for CFATS can improve its
effectiveness and accountability. When programs operate behind
closed doors with little public oversight, they often suffer
from delays, wasted resources, and management problems. The DHS
inspector general and the Government Accountability Office both
recently found delays and significant management problems in
the CFATS program. We need transparency to know if reform
efforts are working. CFATS should publish data on assessments
received and reviewed, security plans certified, inspectors
trained, and inspections completed.
Citizens understandably want and deserve more than a trust-
us approach to programs addressing their safety. In conclusion,
to be successful, CFATS and other chemical safety programs
should rein in secrecy, partner with other agencies to identify
and address gaps, strike a better balance in public disclosure
and engage communities as participants in upholding chemical
safety and security. The Executive Order released earlier today
is a welcome step towards closing regulatory and information
gaps among the main agencies overseeing chemical facilities.
However, Congressional action may well be needed to achieve
all these reforms in a timely way.
I sincerely thank you for the opportunity to address this
committee. Chairman and Members of the subcommittee, I look
forward to your questions.
[The prepared statement of Mr. Moulton follows:]
Prepared Statement of Sean Moulton
August 1, 2013
Chairman Meehan, Ranking Member Clarke, Members of the
subcommittee: My name is Sean Moulton and I am the director of Open
Government Policy at the Center for Effective Government, formerly OMB
Watch--an independent, nonpartisan policy organization dedicated to
ensuring Government is effective and responsive to the priorities of
the American people. We believe transparency of Government actions
promotes accountability and empowers citizens. The Center for Effective
Government has been a leader on environmental right-to-know issues
since the late 1980s when it created RTK NET as an on-line public
source of environmental data. This resource helps citizens gain
information about workplace and public health risks from chemical
exposure.
Thank you for inviting me to testify today about how we can improve
the effectiveness of the Chemical Facility Anti-Terrorism Standards
(CFATS) so that the program better ensures the security of our chemical
plants and the safety of the American people.
The massive explosion at the West Fertilizer plant on April 17 that
killed 15 people and injured more than 200 was a terrible tragedy. In
its aftermath, it has become clear that the network of regulatory
programs that seeks to identify facilities with chemical risks in order
to ensure the protection of workers, first responders, and nearby
communities failed. The facility had never filed a risk assessment with
the CFATS program despite the approximately 270 tons of explosive
ammonium nitrate stored on-site. The Department of Homeland Security
(DHS) seemed unaware of the facility and its lack of compliance with
CFATS reporting. This raises serious questions about the CFATS program
and its effectiveness in collecting, managing, and sharing information
necessary to its mission.
In March, the DHS Inspector General issued findings from its review
of the management practices to implement the CFATS program. The
assessment found significant problems, specifically:
``Program progress has been slowed by inadequate tools, poorly executed
processes, and insufficient feedback on facility submissions. In
addition, program oversight had been limited, and confusing terminology
and absence of appropriate metrics led to misunderstandings of program
progress. The Infrastructure Security Compliance Division still
struggles with a reliance on contractors and the inability to provide
employees with appropriate training. Overall efforts to implement the
program have resulted in systematic noncompliance with sound Federal
Government internal controls and fiscal stewardship, and employees
perceive that their opinions have been suppressed or met with
retaliation.''\1\
---------------------------------------------------------------------------
\1\ Effectiveness of the Infrastructure Security Compliance
Division's Management Practices to Implement the Chemical Facility
Anti-Terrorism Standards Program, Department of Homeland Security,
Inspector General, March 2013, p. 1.
In April, the Government Accountability Office (GAO) released the
results of its investigation into the progress made under the CFATS
program in assigning facilities to risk tiers, reviewing security
plans, and communicating with owners and operators to improve security.
While improvements from early efforts were noted, significant problems
were discovered. The GAO estimated that it could take the program
another 7 to 9 years to review all the security plans, which would mean
the rest of the regulatory process, including compliance inspections,
could take 8 to 10 years to be completed.
My testimony will examine four issues.
First, the culture of excessive secrecy and limited
information sharing has contributed to gaps, oversights, and
inefficiencies in chemical security efforts in general and the
CFATS program specifically.
Second, better collaboration among Federal agencies and
between Federal and State authorities will be needed to address
these gaps and make the CFATS program operate more effectively.
Third, engaging and informing the public is essential if
CFATS is to become an integral part of the broader Government
effort to protect communities from chemical facility risks.
Fourth, increased transparency in the CFATS program is
necessary to improve its long-term effectiveness and
accountability to the public it serves.
excessive secrecy and restricted access don't work
Despite operating for 6 years and having received thousands of risk
assessments from facilities around the country, the CFATS program was
unaware that the West Fertilizer plant had large amounts of ammonium
nitrate stored on-site. The facility never filed a risk assessment with
the program. There is no indication that CFATS knew the assessment had
not been filed. There has been no announcement of commutations with the
facility urging it to file the assessment and no notices of violations
or fines.
According to the preliminary findings of the U.S. Chemical Safety
Board (CSB), local first responders ``were not made aware of the
explosion hazard from the ammonium nitrate stored at West
Fertilizer.''\2\ And nearby residents, including an elementary school,
hospital, and retirement home, all within a mile of the facility, were
almost certainly unaware of the risks posed by the facility.
---------------------------------------------------------------------------
\2\ Preliminary Findings of the U.S. Chemical Safety Board from its
Investigation of the West Fertilizer Explosion and Fire, U.S. Chemical
Safety Board, July 2013.
---------------------------------------------------------------------------
This lack of oversight is a troubling discovery for a program
charged with such an important responsibility. Gaps could mean that
dangerous facilities go without improved security and safety plans. And
statistically, it is highly unlikely that West Fertilizer is the only
facility with significant quantities of hazardous chemicals missing
from CFATS.
These informational gaps are especially troubling because the plant
had been filing Risk Management Plans with the Environmental Protection
Agency (EPA) since 1999 and been reporting the quantity of ammonium
nitrate it stored to State officials in its Tier II Hazardous Inventory
reporting under the Emergency Planning and Community Right to Know Act.
So information was collected and reported to certain agencies, but it
seems it wasn't sufficiently utilized or shared.
These communication breakdowns reveal a fundamental problem with
the way chemical security and safety information is managed by the
CFATS program and other related regulatory programs. Since the Sept.
11, 2001 terrorist attack, there has been an excessive level of secrecy
related to chemical safety and security, which slows sharing and
impedes risk mitigation.
When the Department of Homeland Security established the CFATS
program, it created a category of information called Chemical-terrorism
Vulnerability Information (CVI). The rules made clear that access to
CVI would be limited to those persons with ``a need to know.'' But such
a ``need-to-know'' approach creates unclear lines of authority for
determining access to information and unnecessary bureaucracy that
significantly interferes when emergencies arise.
Need-to-know approaches also cultivate broader cultures of secrecy
and isolation within the agencies and programs that utilize them. Such
isolation can directly contribute to information gaps, such as
unreported facilities in CFATS, because of nonexistent or difficult
information sharing with other agencies and programs.
The 9/11 Commission recognized the problems that arise when
information isn't shared. In 2005, in testimony before the House
Committee on Homeland Security, Lee Hamilton, former Vice Chair of the
9/11 Commission, stated: ``Poor information sharing was the single
greatest failure of our government in the lead-up to the
9/11 attacks.''\3\ To remedy the problem, Hamilton concluded that the
Government had to change its approach to information collection and
control:
---------------------------------------------------------------------------
\3\ Prepared Statement of Lee H. Hamilton before the Committee on
Homeland Security, U.S. House of Representatives, November 8, 2005, p.
1.
``The 9/11 story included numerous examples of how a mentality of
limiting information sharing to those with a `need to know' in fact
kept information from getting to the right people at the right time.
Cultures will not change without policies in place that actively
encourage such change, and without the sustained implementation of
those policies.''\4\
---------------------------------------------------------------------------
\4\ Ibid., p. 5.
The CFATS program has not embraced or encouraged that needed
change. Instead, it has continued to cling to a flawed ``need-to-know''
framework and culture that leaves agencies isolated and individuals who
need chemical security or safety information in the dark.
better sharing across agencies is crucial
There are various Federal and State agencies responsible for
different aspects of chemical safety and security, and these agencies
need to do a much better job of cooperating and collaborating among
themselves.
Section 550 of the Department of Homeland Security
Appropriations Act of 2007 authorized the CFATS program at DHS
to assess the risk of chemical plants and require high-risk
facilities to develop and comply with a security plan.
The Clean Air Act Amendments of 1990 authorized the EPA to
establish the Risk Management Plan program, which requires
facilities storing significant quantities of 140 toxic or
flammable chemicals to submit a plan describing the facilities'
activities to prevent the accidental release those chemicals
and how it would respond to any emergencies involving such a
release.
The Emergency Planning and Community Right to Know Act of
1986 required Emergency and Hazardous Chemical Inventory
reports that detail the hazardous materials stored on-site at
facilities and are submitted to the local fire department,
State Emergency Response Commissions, and Local Emergency
Planning Committees.
And the Occupational Safety and Health Act of 1970 created
the Occupational Safety and Health Administration (OSHA) to
ensure safe and healthful working conditions by setting and
enforcing standards and by providing training, outreach,
education, and assistance.
Those are just a few of the agencies and programs that had some
overlapping coverage of chemical security and safety at West Fertilizer
and other plants. But these agencies do not sufficiently share
information or collaborate on chemical plant safety. Many have such
significant restrictions on accessing their information that even other
Government agencies can have difficulty using the data. For instance,
many States treat the Emergency and Hazardous Inventories as restricted
or classified information, refusing to post the information on-line or
disclose it in response to requests.
The CFATS treats even the most basic information about its program
with the same type of protected secrecy. If a public list of facilities
that had submitted information to the CFATS program for evaluation
existed, perhaps a State or local official in Texas or a plant employee
would have noticed that West Fertilizer was not on that list.
The solution to the secrecy problem is to narrow the amount of
protected information and broadly share the other information. State
and local officials should be able to find information through on-line
searches and immediately access it. Requiring public officials to apply
for access, get approved, establish log-ins, etc. will create a huge
disincentive for officials to gather information. And that means cross-
agency collaboration will be minimal.
The collaboration among agencies should not be limited to the
exchange of information. The CFATS program should be using the
personnel of other State and Federal agencies to expand its capacity to
inspect facilities and perform other necessary on-site activities.
Combined, the Federal and State agencies that overlap in their concern
for chemical facility security and safety have more on-the-ground
personnel than any single agency. While it is difficult to say how many
personnel they could contribute to a shared chemical facility
inspection approach, collaboration would certainly undertake
significantly more inspections than CFATS could alone. This expanded
network of inspectors could identify and address more risks than the
individual agencies can do on their own.
DHS should also be collecting information from people closest to
the facilities--employees, local first responders, and community
members. Such stakeholders can have a wealth of information about
potential problems with chemical storage, security, or emergency
preparedness that may not be submitted on company filings. There needs
to be a mechanism or process to collect this information as it could
help identify missing outlier facilities, fill in other data gaps, and
correct erroneous information the program may have received.
And when a plant employee or State official steps forward and
reports on-going and unaddressed problems or vulnerabilities, those
people should be protected from any retaliation by their employers.
an informed and engaged public makes communities safer
An engaged and informed public is a vigilant public. Citizens,
first responders, medical professionals, plant workers, and local
officials all need to be better informed about chemical security and
safety information in order to be prepared for emergencies.
I am not suggesting that all the information collected by CFATS and
other regulatory programs addressing chemical plant safety and security
should be open to the public. I am suggesting we have not yet found the
right balance between disclosure and information security.
Unfortunately, we have all but abandoned early efforts to provide
useful information to the public while restricting access to truly
dangerous, detailed information.
We continue to try to solve the complex problem of information
management with an overly simplistic solution of blanket secrecy. Those
wishing to damage chemical facilities and harm the public need
detailed, specific information. Secrecy may be justified in some
limited instances--vulnerability assessments, plant operations details,
etc.--where specific information may need to be restricted.
But when we hide such basic information as facility identities and
locations, chemicals stored, and compliance status, we trade away
citizen vigilance and important agency collaboration that can ensure
more accurate information and better emergency preparedness. This type
of information can be essential for use by other officials and the
public.
Studies done on hazardous materials placards,\5\ digital maps and
global positioning information,\6\ and biological research \7\ have
each found that openness and disclosure is essential to keeping the
public safer, and it helps us stay ahead of terrorists. For instance,
in 2003, the Department of Transportation explored the possibility of
removing hazardous materials placards from trucks, railcars, and
shipping containers to better protect the materials from theft or use
by terrorists. But the study found that ``removal of placards offers
little to no security benefit'' and that the placards were a critical
source of hazard information that facilitated effective emergency
responses and protected lives.
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\5\ The Role of Hazardous Material Placards In Transportation
Safety and Security, Jan. 15, 2003. U.S. Department of Transportation,
Research and Special Programs Administration, Office of Hazardous
Materials Safety and John A. Volpe National Transportation Systems
Center.
\6\ Mapping the Risks: Assessing the Homeland Security Implications
of Publicly Available Geospatial Information, 2004. RAND National
Defense Research Institute, John C. Baker, Beth E. Lachman, David R.
Frelinger, Kevin M. O'Connell, Alexander C. Hou, Michael S. Tseng,
David Orletsky, Charles Yost.
\7\ Globalization, Biosecurity, and the Future of the Life
Sciences, 2006. Committee on Advances in Technology and the Prevention
of Their Application to Next Generation Biowarfare Threats, National
Research Council.
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Excessive and unnecessary secrecy around chemical security programs
like CFATS could cost lives in the event of a chemical emergency. If an
emergency occurred at a chemical facility, people might not know where
to go and could evacuate into the path of a chemical hazard. Schools
would be ill-prepared to evacuate children and inform parents. Doctors
would not know how to treat those exposed, and first responders would
not know what emergency equipment to use. Awareness, preparedness, and
prevention save lives.
The catastrophe in West, Texas may wind up being an example of this
problem. In its preliminary findings, the CSB notes that the National
Fire Protection Association recommends that fire fighters evacuate from
massive ammonium nitrate fires and that the Department of
Transportation's Emergency Response Guidebook recommends flooding large
ammonium nitrate fires with water from a distance. Despite the lack of
clarity on judging the size of a fire or exactly how much distance
should be used, it's clear that at least some ammonium nitrate fires
should be dealt with by evacuating the area and trying to contain the
fire from a greater distance. However, the West volunteer fire fighters
were unaware that they were facing a fire with ammonium nitrate, so
they could not properly judge if these tactics should be used.
Carolyn Merritt, then-chair of the CSB, stressed the importance of
community awareness and preparedness in responding to and mitigating
the impacts of a chemical accident during Senate testimony in 2007. She
noted a ``lack of chemical emergency preparedness that our
investigations have found among many communities where accidents
strike.''\8\ Merritt illustrated the consequences of such situations
with a compelling real-life example:
---------------------------------------------------------------------------
\8\ Prepared Statement of Carolyn W. Merritt, Chairman U.S.
Chemical Safety Board before the Committee on Environment and Public
Works' Subcommittee on Transportation, Safety, Infrastructure Security,
and Water Quality, U.S. Senate, July 10, 2007, p. 8.
``When a small chemical firm in northwest Georgia experienced a
reactive chemical accident that released toxic vapor into the
community, fire fighters and police lacked the planning, equipment, and
training to respond effectively, and the city lacked an emergency
notification system for residents. More than 200 families had to be
evacuated, and 154 people had to be decontaminated and treated at the
hospital. The most seriously-impacted were police officers, who were
instructed to conduct the community evacuation without protective
gear.''\9\
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\9\ Ibid, p. 9.
Beyond emergency preparedness, greater public access to chemical
safety and security information can allow communities to engage in
dialogs with officials and company representatives about reducing the
risks through Inherently Safer Technologies (IST). There are many safer
chemicals and processes that industry can use to replace dangerous
substances and better protect Americans in the process. In fact, some
communities no longer face risks of dangerous chemical exposures
because nearby plants have switched to safer alternatives. For example,
in 2009, the Clorox Company announced it would replace bulk quantities
of chlorine gas with safer chemicals.
The preliminary findings of the CSB for the West Fertilizer
explosion indicate that there are IST options to more safely store,
ship, and handle ammonium nitrate as a fertilizer. Compounding the
ammonium nitrate with calcium carbonate practically eliminates any risk
of explosion while preserving its use as a fertilizer.
Hundreds of chemical facilities have switched to safer and more
secure chemicals and processes since 2001, but more work is needed.
Agencies and communities need to use the collected information and
become advocates for IST solutions in more facilities.
A better approach to management of chemical security and safety
information would disclose basic information necessary to inform the
public of risks from chemical facilities, explore the use of safer
alternatives to eliminate the risk, and enable community members to
participate in emergency planning. For instance, disclosing the names
and locations of facilities, identities and quantities of chemicals
stored, status of facilities' reporting, status of inspections, notices
of violations, and other general information would allow the public to
better understand which facilities are following safety rules (and
which aren't). Information restrictions should be limited to detailed
information about facilities' vulnerability assessments and chemical
security plans. No detailed information about specific chemical
security vulnerabilities and facilities should be released.
public transparency works
When programs are allowed to operate behind closed doors with
little to no on-going public oversight, they often suffer from delays,
wasted resources, and management problems.
We have seen the importance of transparency in addressing the
significant delays and other management problems in the CFATS program
with the investigations conducted by the DHS Inspector General and the
Government Accountability Office. They prompted increased oversight and
public scrutiny that should help motivate CFATS leadership to fix the
problems.
But we need continued transparency to know that reforms are
actually being put in place. Basic information about the CFATS program
activities and progress should be made public on a regular time table.
Statistics on the number of assessments received and reviewed,
facilities placed in risk-based tiers, security plans certified,
inspectors trained, and inspections completed should be made available
to the public on an on-going basis.
Because the DHS Inspector General review found an over-reliance on
contractors, as well as noncompliance with internal controls and fiscal
stewardship, the program should also regularly provide information on
its spending, including contracts awarded and status of work being
conducted. Finally, to address the other management and program
problems identified in the Inspector General and GAO reports, the CFATS
program should offer regular updates on the steps taken to address the
management issues. Such information would allow the public and
oversight officials to better understand and evaluate the progress
toward achieving chemical safety.
Chemical security is supposed to be about protecting the public. As
such, the public has a fundamental right to know and understand the
oversight the Government has in place. Citizens understandably want and
deserve more than a ``trust-us'' approach to their safety.
conclusion
Like the committee, the Center for Effective Government wants the
CFATS program to succeed and help ensure the safety and security of
chemical facilities. To accomplish that, CFATS must become a more
integral and collaborative component of the regulatory network
overseeing facilities with significant amounts of hazardous chemicals.
The other programs within this network also need to update their
disclosure policies and improve their collaboration efforts.
We encourage CFATS to take the lead and become a genuine partner
with agencies and stakeholders, to strike a new balance in information
disclosure, and to engage first responders, facility employees, and
communities as participants in chemical safety and security.
I sincerely thank you for the opportunity to address this
committee. Chairman and Members of the subcommittee, I look forward to
your questions.
Mr. Meehan. Well, thank you, Mr. Moulton. I would like to
thank each of the panel members, not only for your preparation
and your appearance here, but I know that you have all
professionally been committed to work in this important area. I
thank you for sharing your expertise with us here today.
So I now recognize myself for 5 minutes of questions. Mr.
Dippel, you, I had actually used your testimony when I asked
some of the previous questions. Because to me, it reflected so
well the sense of the independent operator. He is not trying to
be an outlier, but there is a tremendous sense of frustration
and you used the words, ``confusion out there.'' Can you tell
me? You have been experienced in this area. What are we missing
in terms of the ability to reach out to the kind of operator
that you have, I think you called them ``dealers.''
Mr. Dippel. Yes, sir.
Mr. Meehan. So what is missing, what can we do better?
Mr. Dippel. Well, I think it is just the cooperation with
our State agency, Texas has an ammonium nitrate law. They are
one of the six States that has ammonium nitrate law which
requires that the product be secured. You cannot ship to a
retailer before they have a plan in place with the Feed and
Fertilizer Control Service. So all they would have to do is
contact the Feed and Fertilizer Control Service and they would
know where every facility is in----
Mr. Meehan. Has that ever happened, to your knowledge?
Mr. Dippel. Not to my knowledge they have not.
Mr. Meehan. This is a big part of the failure for the
connection to be made to the State and local level, where there
is already oversight and information contained.
Mr. Dippel. Yes, sir. They have to, they protect ammonium
nitrate very securely in Texas, in that every sale has to be
registered and you would have to have identification of the
person that is buying it. It is very similar to the CFATS law.
Mr. Meehan. Mr. Derig, you had discussed this idea, and it
may tie into this. I think when I was going through your
testimony this concept of third-party identification or third-
party participation, it speaks to the issue of we have got a
lot of resources out there but it seems to me people are either
not asking for those who have some expertise and capacity here
in this area to participate with DHS. Or there is some other
kind of an impediment to information sharing even with agencies
that have the same information. So can you explain to me what
you mean by this sort of third-party verifier program and how
that might operate?
Mr. Derig. Yes, that is the initiative under Responsible Ag
that ARA and TFI are partnering on. What that does is, as Mr.
Dippel stated, there is confusion out there. There are a lot of
rules, a lot of agencies that apply to the retail business.
What we want to do is consolidate those rules into what we
might consider to be a management plan or a system from the ag
retailer to get involved in, know where they need to be for
compliance for the products that they handle, and then have a
third-party auditor certified to come through periodically,
whether it is annually or every other year, and do an audit of
that management system to ensure that compliance is taking----
Mr. Meehan. So would you include in that, now, you are down
in Texas. Are you in Texas?
Mr. Derig. I am actually in Idaho.
Mr. Meehan. No, you are in----
Mr. Derig. We do have facilities in Texas.
Mr. Meehan. Okay, but, whether you are in Idaho. I mean, we
are talking about Texas, but suppose you have a facility in
Idaho and Texas. Is it your idea that you would consolidate
both the Federal requirements and State and local requirements
so that your agency would sort of help somebody in Idaho and in
Texas?
Mr. Derig. That is correct. Actually, one of the working
groups are right now, presently as we speak, is working on what
we call the common codes of practice. So they would be working
specifically with State rules as they tie to the Federal rule
so an ag retailer, no matter what State they are in, would be
audited under their State rules and how they overlap with the
Federal rules.
Mr. Meehan. Okay, and the idea being that even if something
may be a little bit different from a local perspective or in a
different State, you would still have the capacity to try to
consolidate these. That would be part of the audit process,
would be the local auditor might know what is expected locally.
Mr. Derig. That would be correct.
Mr. Meehan. I will be curious too, have you had
communications with DHS on this process?
Mr. Derig. We have spoken to them, and as this process goes
along we certainly want their cooperation, we want to partner
with them as well as to other agencies that have a regulatory
authority to get their input and recognize the system as
industry's approach to products stewardship and ensuring that
our industry is strong and vital, into the future.
Mr. Meehan. Well, thank you. Mr. Scott, you had talked a
little bit about this concept, not altogether different--maybe
a little bit different approach. But the concept is the same.
The public-private partnership, if I am correct in your
testimony. Certainly you have got a tremendous amount of
experience, looking at this from the perspective of a large
company, to be sure, but your chemicals are going down to local
dealers, and I know you have a great deal of interest in
assuring the security of those all the way through the process.
Tell me what your process, explain a little bit further
what you mean by this public-private partnership and how you
think it could be realized to help us to reach these outliers.
Mr. Scott. The way it works, it has worked at least for us
and for the ACC companies at both the Federal levels, the State
levels, and down at the local level. When DHS was first
launched, we worked very closely to sit down and really work on
a common issue of securing the chemical industry, and what
makes sense, and how can it be beneficial and not overly
burdensome for either side. We worked through a lot of details
in a collaborative effort that made the process at least a
workable process to move forward and start to make some
progress.
We have started to see some progress. There have been a lot
of downsides on the DHS implementation. But I think they are
fixing those right now. At the local level, I think that is
where you can really make the progress. If you look at the
West, Texas incident this was a local issues that had a
National impact. If you look at the local emergency planning
committees that have been in place for 20-plus years now, in
every county in the United States you can go to a local, you
should be able to find a local emergency planning committee
that involves all the industry that is in the community. The
media, the----
Mr. Meehan. They know the community. They are living there.
Mr. Scott. They are there. They know the people, they know
the industries. It is an information-sharing process that the
community and the companies that are there, the chemical
companies that are there, have to share information. You have
to show them information of what you have on the site, and you
have to have integrated emergency plans so that people know
what to do. If there is an emergency, how are they going to
know about an emergency? What should they do in an emergency?
How should they react?
It is a very collaborative process. So at the State and the
local levels, it works very well and we have had very good
relationships with things like the CARE----
Mr. Meehan. From your awareness, has that kind of a local
emergency coordinating group ever been reached by DHS with
regard to their cooperation or collaboration on this issue?
Mr. Scott. In some States, I would say yes. I mean, it is
typically the States where we were very active ACC members or
Dow is very active, and you bring the two together to come out.
In other States, I don't know. But that is the easiest route
for the State DHS folks that we talked about earlier, the PSAs
that Mr. Wulf talked about, can reach out to the local
community and be a part of that. They should be a part of that.
The local sheriff and the fire departments and DHS and TCEQ
in Texas, the environmental groups, and the media and the
public are all members of those LEPCs.
Mr. Meehan. Well, my time has expired so I will have a
follow-up question.
But let me turn it now to the Ranking Member for her
questions.
Ms. Clarke. Thank you, Mr. Chairman, and I thank our
panelists for bringing your observations to bear here. I want
to pick up a bit on what you have just stated, Mr. Scott, and
actually pose a question to Mr. Dippel. Because it is
interesting that Texas has a law regulating ammonium nitrate,
but does it concern you, Mr. Dippel, that West, Texas had a
wooden storage facility under, I mean, is that part of Texas
State law?
Mr. Dippel. No, it is not, and robably 95 percent of the
facilities in Texas are wood. You know, their bands are made of
wood. So that is not uncommon in the State of Texas.
Ms. Clarke. Um-hmm. As a result of this, has their been new
guidance put out about storage, or is it too much of a
financial burden for, you know, smaller firms to look at
changing that?
Mr. Dippel. It is a big financial burden, and I have met
with the fire marshal and we have discussed this. It is
something they are recommending possibly that they change their
facilities. But again, the, I think there are bigger concerns,
you know, than just your walls and your seals. It is a lot of
the locations of the facilities similar to West.
Ms. Clarke. Yes.
Mr. Dippel. There again, you know, West was a facility that
was brought in probably in 1963 and all these things were built
up around it. So there, again, there is a zoning problem in a
lot of these small cities that bring on these problems.
Ms. Clarke. Very well. Let me turn to you, Mr. Moulton. You
have testified today and written extensively on the issue that
engaging and informing the public is essential if CFATS and
other programs are to become an integral part of the broader
Government effort to protect communities from chemical facility
risk, and I agree. Would you expand on the concept that culture
of excessive secrecy and limited information sharing has
contributed to the gaps, oversights, and inefficiencies in the
chemical security efforts in general and, specifically, in the
CFATS program?
Mr. Moulton. Sure. I think there are a number of barriers
that impede sharing of information between agencies and CFATS'
program specifically. There are regulatory barriers. CFATS'
program, when it established its information category, the
chemical terrorism, vulnerability information it basically
treated the information as almost classified. It treated very
similar to that. It was a very broad definition of the
information. So understandably that creates a regulatory
restriction on what you can do with the information very
easily.
There are bureaucratic barriers. This need-to-know approach
means that people have to ask to get access and wait for
approval and wait for logins. It depends on the fact that
whoever at the other end, whether it is DHS deciding whether or
not to share their information or EPA deciding whether or not
to share their RMP information, it depends on that agency
making the right determination of this person deserves access
and at what level. We don't always get those decisions right.
There are cultural barriers, as I said. Agencies,
interagency cooperation has long been a difficult issue. When
it comes to areas where security gets involved and security
concerns are raised, it becomes even more difficult for
agencies to release information and share it more freely.
Finally, I would say there is a technical barrier. These
agencies have their own information and their own systems.
Those systems don't often talk to each other very well.
We heard Mr. Wulf this morning talk about when they first
tried to access RMP data at EPA it was hard to get the system
to work with their system right and get the information they
needed from it. Again, if we leave these systems separate and
closed you are going to run into those technical barriers more
often. If we open them up and release more information out to
the public in open formats it removes all of these barriers.
The agencies can use it. Citizens, first responders, they can
use it as well.
Ms. Clarke. It would seem to me that in a case like West,
where, as Mr. Dippel has already stated, you have sort of an
older facility that had development grow around it, it would
have been flagged at some point along that continuum. That the
zoning challenges of building nursing homes, you know, those
types of facilities in proximity to the place it would have
been apparent. So I think that there are a whole host of ways
in which this information sharing becomes critical to the
mission of homeland security.
I want to thank you for your testimony, and yield back, Mr.
Chairman.
Mr. Meehan. I thank the Ranking Member.
The Chairman now recognizes Mr. Vela for any questions he
may have.
Mr. Vela. Mr. Scott, you mentioned that for 10 years that
your organizations have tried pushing forward certain pieces of
legislation. Can you elaborate on that?
Mr. Scott. Well, we have been behind chemical security
regulations and focused on DHS, getting them as the authorized
agency so we get some clarity around the whole security
process. A big part of pushing for legislation is to get
everybody on the same playing field so that one industry is not
doing one thing while another one is doing a different thing.
So we wanted to push legislation to get that clarity around
what agency is responsible for chemical security and who are
all the players that are involved.
We are still not there yet. But we have got the
legislation, but we have got to get everybody around the table.
Mr. Vela. Now, have there been bills along those lines
filed, or have you not even gotten to that point?
Mr. Scott. Well, we have been working, every time there is
a piece of legislation out or a committee working on chemical
security we have been involved in that. So yes, we were very
involved in the whole CFATS discussion from the very beginning.
Mr. Vela. I guess what I am asking is, are there any
current proposals that you would be asking us to take a look at
as we move forward?
Mr. Scott. Well, I--one thing we wanted, we would like to
get is, get authorization, a multi-year authorization, for DHS.
I mean, that is one of the issues that you have is it is
getting very difficult. We have spent about $250 million on
security upgrades for Dow Chemical alone. As the economy gets
tougher, it is harder to get that money to complete the
upgrades. With the uncertainty of, well, is DHS going to be
here next year, is there going to be somebody else, it gets
very difficult to sustain the program internally.
Mr. Vela. Now, you mentioned there was quite a difference
in terms of the regulatory jurisdiction, or maybe regulatory
action, if you compared, for example, the role that these
agencies might play in a Dow Chemical plant versus the role
that they play at West Fertilizer. What can you tell me about
that? What is the difference?
Mr. Scott. There really is no difference except in size. I
mean, we have very big sites. But we have sites that are
regulated by EPA and DHS for security and environmental
incidents. We have sites that are regulated by the Coast Guard
and EPA. So we have multi-jurisdictional issues at most of our
sites. OSHA is involved at all of our sites in the United
States and similar government agencies outside the United
States.
Mr. Vela. I guess what I am asking is: Do you see or prior
to this accident would you have seen, a difference in the level
of action to prevent this accident by those agencies if we
compare how actively they were involved in doing what they are
supposed to do at, for example, Dow Chemical plant versus the
West Fertilizer plant?
Mr. Scott. Well, I mean, we are surmising here. But a lot
of the risk analysis that you do, whether it is EPA or whether
it is DHS, are population-related. So when you go through and
look at, if you put the chemicals of interest in the computer,
and it comes out that you do have a chemical of interest, and
this is the quantity that you have the risk is also based on
the impact, off-site impact, to the population around you. So
smaller population areas typically are a lower risk type of
scenario in the DHS and EPA worlds for that off-site impact.
So I think the risk analysis is very different from site to
site, depending on where that site is located. Regardless of if
you have the same chemicals or not.
Mr. Vela. Now, in reference to insurance liability rules,
what insurance liability, what Federal rules are there that
would require a Dow Chemical plant, for example, to have
certain liability limits?
Mr. Scott. I don't know of any regulations. I know that in
order to be approved for the SAFETY Act through DHS, and our
DHS, our sites, our site security programs and our
transportation security programs, are both designated under the
SAFETY Act with DHS. The Responsible Care program is also
authorized, or designated, under the SAFETY Act, with DHS
Responsible Care program that ACC implements. There is a
liability requirement associated with the SAFETY Act
application.
Mr. Vela. Do you know what that is, or what those limits
are?
Mr. Scott. No, not off the top of my head.
Mr. Vela. So the place to look would be the SAFETY Act?
Mr. Scott. Well, that is only for people that are applying
for the SAFETY Act designation. That is not everybody. That is
different from the regulations. We are covered by CFATS under
regulations, but we also apply for SAFETY Act recognition from
the DHS SAFETY Act Office. SAFETY Act is an acronym for
something, I don't know what it is. But there is a requirement
for insurance coverage there, and both ACC and Dow have met
those requirements.
Mr. Vela. You may not know the answer to this. I mean, are
there any Federal regulations that would have required the West
Fertilizer plant to have a certain level of insurance limits?
Mr. Scott. I don't know the answer to that.
Mr. Vela. I will yield back.
Mr. Meehan. I thank the gentleman. I have just a quick
follow-up question. Mr. Dippel, I was sort of intrigued, again,
by your observation speaking for the common man out there;
people who are dealing with this, and a local dealer being
asked to have to create a second kind of secure communication
capacity on computers. To your knowledge, was that limited just
so that they would be able to report back and forth about the
compliance issues with the chemicals?
Mr. Dippel. I am not sure. But, you know, it is, you got to
understand that in these small facilities there is very limited
computer skills to start with. I got a call the other day on
the way up here and talked to a lady, and asked her. I told her
I was coming to help her in a couple of weeks. And told her
make sure they had a secure e-mail address. She said we don't
have e-mail. So this is what you are dealing with. To make it
complicated on top of this, it is really hard for these dealers
to work with.
I got another call that said, you know, they called DHS for
help and they stayed on the line for an hour-and-a-half waiting
for somebody to answer the phone. You know, so things like that
just gets these guys frustrated and they just, you know, it
just needs to be made simple and make it workable. When they
got to go through the list of chemicals it is pages and pages
and pages, and probably they only have one or two chemicals
that possibly could be on that list. So it is very complicated,
and I think it just needs to be simplified a lot. To make
people come into compliance it would sure help.
Mr. Meehan. Mr. Moulton, you have been an advocate for
simplification and, you know, openness in this kind of a
process. I will ask you to comment on that kind of a
requirement. But let me just flip it for one second because I
need to know--DHS isn't here--put your hat on and make yourself
a member of DHS. Why the necessity for certain kinds of
security? I am assuming it relates to not wanting to tip our
hand as to where the location is, recognizing that these drugs
can be used by drug dealers looking to make methamphetamine,
can be targets for any other kind of person that wants to use
that fertilizer, you know, for a criminal act or a terroristic
act.
So is it not unreasonable for some level of secrecy, and
where is the boundary?
Mr. Moulton. No, I don't think it is unreasonable for some
level of secrecy. I certainly wouldn't say we should throw the
doors open and release all information that we are collecting.
But I think we waste time, energy, and resources trying to
protect secrets that aren't really secrets. The names and
locations of these facilities, they are not secret. That is
just the reality. They report to lots of other systems, EPA,
OSHA, there are lots of ways to find them.
So by trying to hide who is in CFATS, who is reported to
CFATS, who is in what tier even, we are only hiding CFATS. We
are only hiding the program itself and what it is accomplishing
and if it is not accomplishing something. What I think we need
to do is, we need to really focus in and be very specific about
what are the critical, detailed pieces of information that do
need security. These are the vulnerability assessments, the
site security plans. This isn't the basic information that is
going to help first responders and the public and State
officials to better understand these facilities in the broad
strokes and prepare for chemical emergencies.
I think the need for this, again, another technical hurdle
here, this need for a secure transmission of information
because CFATS is treating almost everything as on par with
classified information again makes the program more difficult
and makes it more difficult for facilities out there that want
to comply to do so.
Mr. Meehan. Well, you couldn't have given a better closing
argument for, often, why a program gets in its own way in the
form of why, in terms of the objective that needs to be
realized. I mentioned the tremendous frustration that I know
many in the industry share. We are 5 years into a program, and
by the very testimony of the inspector general or that was
here, they are looking at another 7 years just to finish this
part of the process. Yet, by your articulation, there is very
simple information already contained in many places that should
be able to be communicated and need not even be private.
So I thank you for bringing, again, as I said, the common
man's perspective, the understanding of those out in the
industry. We do get the frustration that you feel. I mean, I
don't want to constantly just beat up DHS. There are a lot of
people there with a tough mission that are working very, very
hard to accomplish it. But sometimes what you set out to do,
designing that appropriately, so that you accomplish what you
need to accomplish without creating a million other things that
get in the way of the resolution of your objective I think can,
would move us far down the path.
I thank you for your testimony here today. I thank you
particularly for your presence on what we know is a tough
issue. Tough because it has a lot of complexity and deals with
your companies. But toughest because we know that real people
have paid a price where information may have been sufficient to
have enabled them to continue doing what they do and not being
the casualties that we know them to be. So I thank you for your
presence here today. I thank you for your continuing effort.
We look forward to working with you to try to get this
right. I thank my panel for all of their good work on this. So
you may get some follow-up questions from members of the panel.
If, in fact, that happens we ask that you do your best to be as
responsive as you can in a timely manner. So without objection,
the subcommittee stands adjourned.
[Whereupon, at 12:42 p.m., the subcommittee was adjourned.]
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