[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
H.R. 3258, THE DRINKING WATER SYSTEM SECURITY ACT OF 2009, AND H.R.
2868, THE CHEMICAL FACILITY ANTI-TERRORISM ACT OF 2009
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENERGY AND ENVIRONMENT
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
OCTOBER 1, 2009
__________
Serial No. 111-68
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
_____
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COMMITTEE ON ENERGY AND COMMERCE
HENRY A. WAXMAN, California, Chairman
JOHN D. DINGELL, Michigan JOE BARTON, Texas
Chairman Emeritus Ranking Member
EDWARD J. MARKEY, Massachusetts RALPH M. HALL, Texas
RICK BOUCHER, Virginia FRED UPTON, Michigan
FRANK PALLONE, Jr., New Jersey CLIFF STEARNS, Florida
BART GORDON, Tennessee NATHAN DEAL, Georgia
BOBBY L. RUSH, Illinois ED WHITFIELD, Kentucky
ANNA G. ESHOO, California JOHN SHIMKUS, Illinois
BART STUPAK, Michigan JOHN B. SHADEGG, Arizona
ELIOT L. ENGEL, New York ROY BLUNT, Missouri
GENE GREEN, Texas STEVE BUYER, Indiana
DIANA DeGETTE, Colorado GEORGE RADANOVICH, California
Vice Chairman JOSEPH R. PITTS, Pennsylvania
LOIS CAPPS, California MARY BONO MACK, California
MICHAEL F. DOYLE, Pennsylvania GREG WALDEN, Oregon
JANE HARMAN, California LEE TERRY, Nebraska
TOM ALLEN, Maine MIKE ROGERS, Michigan
JANICE D. SCHAKOWSKY, Illinois SUE WILKINS MYRICK, North Carolina
CHARLES A. GONZALEZ, Texas JOHN SULLIVAN, Oklahoma
JAY INSLEE, Washington TIM MURPHY, Pennsylvania
TAMMY BALDWIN, Wisconsin MICHAEL C. BURGESS, Texas
MIKE ROSS, Arkansas MARSHA BLACKBURN, Tennessee
ANTHONY D. WEINER, New York PHIL GINGREY, Georgia
JIM MATHESON, Utah STEVE SCALISE, Louisiana
G.K. BUTTERFIELD, North Carolina
CHARLIE MELANCON, Louisiana
JOHN BARROW, Georgia
BARON P. HILL, Indiana
DORIS O. MATSUI, California
DONNA M. CHRISTENSEN, Virgin
Islands
KATHY CASTOR, Florida
JOHN P. SARBANES, Maryland
CHRISTOPHER S. MURPHY, Connecticut
ZACHARY T. SPACE, Ohio
JERRY McNERNEY, California
BETTY SUTTON, Ohio
BRUCE BRALEY, Iowa
PETER WELCH, Vermont
Subcommittee on Energy and Environment
EDWARD J. MARKEY, Massachusetts, Chairman
MICHAEL F. DOYLE, Pennsylvania RALPH M. HALL, Texas
G.K. BUTTERFIELD, North Carolina FRED UPTON, Michigan
CHARLIE MELANCON, Louisiana ED WHITFIELD, Kentucky
BARON HILL, Indiana JOHN SHIMKUS, Illinois
DORIS O. MATSUI, California JOHN B. SHADEGG, Arizona
JERRY McNERNEY, California STEVE BUYER, Indiana
PETER WELCH, Vermont GREG WALDEN, Oregon
JOHN D. DINGELL, Michigan SUE WILKINS MYRICK, North Carolina
RICK BOUCHER, Virginia JOHN SULLIVAN, Oklahoma
FRANK PALLONE, New Jersey MICHAEL C. BURGESS, Texas
ELIOT ENGEL, New York
GENE GREEN, Texas
LOIS CAPPS, California
JANE HARMAN, California
CHARLES A. GONZALEZ, Texas
TAMMY BALDWIN, Wisconsin
MIKE ROSS, Arkansas
JIM MATHESON, Utah
JOHN BARROW, Georgia
C O N T E N T S
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Page
Hon. Edward J. Markey, a Representative in Congress from the
Commonwealth of Massachusetts, opening statement............... 1
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, opening statement.................................... 3
Hon. Henry A. Waxman, a Representative in Congress from the State
of California, opening statement............................... 4
Hon. Cliff Stearns, a Representative in Congress from the State
of Florida, prepared statement................................. 6
Hon. Charlie Melancon, a Representative in Congress from the
State of Louisiana, opening statement.......................... 7
Hon. Michael C. Burgess, a Representative in Congress from the
State of Texas, opening statement.............................. 8
Hon. Gene Green, a Representative in Congress from the State of
Texas, prepared statement...................................... 9
Hon. Lois Capps, a Representative in Congress from the State of
California, opening statement.................................. 10
Hon. John Sullivan, a Representative in Congress from the State
of Oklahoma, prepared statement................................ 12
Hon. Joseph R. Pitts, a Representative in Congress from the
Commonwealth of Pennsylvania, opening statement................ 13
Hon. G.K. Butterfield, a Representative in Congress from the
State of North Carolina, opening statement..................... 13
Hon. Joe Barton, a Representative in Congress from the State of
Texas, prepared statement...................................... 116
Witnesses
Rand Beers, Under Secretary, National Protection and Programs
Directorate, Department of Homeland Security................... 14
Prepared statement........................................... 17
Answers to submitted questions............................... 162
Peter Silva, Assistant Administrator, Office of Water,
Environmental Protection Agency................................ 30
Prepared statement........................................... 32
Answers to submitted questions............................... 186
Brian Ramaley, Director, Newport News Waterworks, and President,
Board of Directors, Association of Metropolitan Water Agencies. 52
Prepared statement........................................... 54
Answers to submitted questions............................... 194
Marty Durbin, Vice President, Federal Affairs, American Chemistry
Council........................................................ 67
Prepared statement........................................... 69
Answers to submitted questions............................... 200
Darius Sivin, Legislative Representative, CWA-UAW Legislative
Alliance....................................................... 78
Prepared statement........................................... 80
Answers to submitted questions............................... 203
Stephen Poorman, International EHS Manager, Fujifilm Imaging
Colorants, and Chair, Safety and Security Committee, Society of
Chemical Manufacturers and Affiliates.......................... 91
Prepared statement........................................... 93
Submitted Material
Analysis of H.R. 3258 and H.R. 2868.............................. 123
Letter of September 30, 2009, from American Forest & Paper
Association to the Committee................................... 137
Letter of August 11, 2009, from American Water Works Association
to the Committee............................................... 139
Letter of September 28, 2009, from chemical and petrochemical
organizations to the Committee................................. 143
Statement of Partnership for a Secure America.................... 146
Letter of August 19, 2009, from public interest groups to the
Committee...................................................... 158
H.R. 3258, THE DRINKING WATER SYSTEM SECURITY ACT OF 2009, AND H.R.
2868, THE CHEMICAL FACILITY ANTI-TERRORISM ACT OF 2009
THURSDAY, OCTOBER 1, 2009
House of Representatives,
Subcommittee on Energy and Environment,
Committee on Energy and Commerce,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:00 a.m., in
Room 2123 of the Rayburn House Office Building, Hon. Edward
Markey [Chairman of the Subcommittee] presiding.
Members present: Representatives Markey, Butterfield,
Melancon, McNerney, Green, Capps, Gonzalez, Barrow, Waxman (ex
officio), Upton, Stearns, Shimkus, Pitts, Walden, Sullivan,
Burgess and Scalise.
Staff present: Greg Dotson, Chief Counsel, Energy and
Environment; Jackie Cohen, Counsel; Melissa Bez, Professional
Staff Member; Alison Cassady, Professional Staff Member;
Caitlin Haberman, Special Assistant; Peter Kethcham-Colwill,
Special Assistant; Dave Leviss, Chief Oversight Counsel; Karen
Lightfoot, Communications Director, Senior Policy Advisor;
Lindsay Vidal, Special Assistant; Earley Green, Chief Clerk;
Matt Eisenberg, Staff Assistant; Jerry Couri, Minority
Professional Staff; Mary Neumayr, Minority Counsel; and Garrett
Golding, Minority Legislative Analyst.
OPENING STATEMENT OF HON. EDWARD J. MARKEY, A REPRESENTATIVE IN
CONGRESS FROM THE COMMONWEALTH OF MASSACHUSETTS
Mr. Markey. Good morning, ladies and gentlemen. We welcome
you to the Subcommittee on Energy and Environment and this very
important hearing which we are going to conduct today.
My congressional district is one that harbored Mohamed Atta
and the other nine who hijacked the two planes from Boston on
9/11. They walked the streets. They scoped out Logan Airport.
They took whatever actions it took and for however long it took
in order to then successfully hijack those two planes with 150
citizens on them. It was very clear to me that they spent a lot
of time trying to determine what the line of least resistance
is in their efforts to attack our country, and at the end of
those two plane trips unfortunately they were thousands of
others who perished as well. We have spent much of the last 8
years in trying to develop strategies in order to reduce
opportunities for terrorists to exploit our vulnerabilities.
Since 9/11, we have enacted legislation to secure the aviation,
maritime, rail, mail transit, nuclear energy and other sectors.
But what we have yet to do is to act on comprehensive
legislation to secure the facilities that make or store
dangerous chemicals. Instead, we have relied on the incomplete
and inadequate legislative language that was inserted into the
2007 appropriations bill behind closed doors that amounted to
little more than a long, run-on sentence.
The chemical sector represents the best of American
technological might. Its products help to purify our water,
make the microchips used in our computers, cell phones and
military technologies, refine our oil and grow our food. But
these same chemicals could also be turned into a weapon of mass
destruction, something that we were reminded of last week when
we learned of a disrupted terrorist plot to use hydrogen
peroxide purchased in Colorado for use as a bomb in New York.
Yet the incomplete 2007 legislation that gave the Department of
Homeland Security interim authority to regulate chemical
facilities included several glaring security loopholes. It
exempted all drinking and wastewater facilities. It exempted
all maritime facilities. It prevented the Department from
requiring any specific security measure at any facility. So if
there was a hole in a fence, DHS couldn't order it to be fixed,
and if there was a cost-effective alternative to a particular
chemical or process that greatly would reduce the risk the
facility posed to the surrounding community, DHS couldn't order
that either, and it prevented citizens living around these
facilities from being able to ensure that regulations were
being met or enforced.
At the beginning of this Congress, Energy and Commerce
Committee Chairman Henry Waxman and Homeland Security Committee
Chairman Bennie Thompson agreed on the need to quickly act to
comprehensively and permanently ensure the security of all
facilities containing dangerous chemicals. The chairman agreed
to work together on two separate pieces of legislation. First,
we would craft comprehensive chemical security legislation to
require the Department of Homeland Security to build on the
good work it has already begun but do so in a manner that
closed the loopholes included in the interim authority Congress
provided several years ago. The Chemical Facility Anti-
Terrorism Security Act of 2009 was introduced following 5
months of bipartisan Energy and Commerce and Homeland Security
staff negotiations and has the support of a wide range of labor
and environmental organizations.
Second, we would craft legislation to provide EPA with the
enhanced authority to ensure the security of drinking water
facilities in recognition of the unique public health role
these facilities play in providing a safe supply of drinking
water. The Drinking Water System Security Act of 2009, which is
exclusively within the jurisdiction of the Energy and Commerce
Committee, has the support of the environmental and labor
communities and also the Association of Metropolitan Water
Agencies whose member utilities provide safe drinking water to
more than 125 million Americans.
Though the two pieces of legislation provide authority to
two different agencies, their intent and purpose is very
similar. The bills require EPA and DHS to coordinate efforts
with one another to minimize duplication in order to ensure
that we make an assignment to one of four risk-based tiers and
implement the bills' requirements. We want to work together
with all of the members of the committee as we move forward in
this process so that we can act wisely and we do so in a way
that is consistent with the traditions of the committee.
[The information appears at the conclusion of the hearing.]
Mr. Markey. Let me now turn and recognize the ranking
member of the Committee, the gentleman from Michigan, Mr.
Upton, for an opening statement.
OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Upton. Thank you, Mr. Chairman.
Like every member on this Committee and in the communities,
homeland security is a concern and certainly a priority, and
today we are examining two bills that deal with the security
implications of facilities that use various chemicals. I do
have a number of concerns with the bills before us today.
However, I will primarily focus my remarks on H.R. 2868, the
Chemical Facility Anti-Terrorism Security Act.
There have been disagreements about how chemical facilities
should be regulated to address security issues but Congress was
able to enact provisions to authorize the DHS to regulate
security at designated chemical facilities. Rather than enact
new legislation, we should give DHS the opportunity to fully
enact the laws that we have already passed. I believe that it
is too soon for Congress to start over with new regulations. I
support a 3-year extension of the existing law to give DHS the
time to finalize implementation of the security regs and allow
Congress to determine what works and what doesn't, and I prefer
that to what we are looking at perhaps today.
We must legislate from a body of experience and accumulated
evidence, not ideological notions of what sounds like a good
idea, especially when it means stranding billions of dollars in
investments at a time when we have frozen domestic financing
market with the struggling economy. I have been made aware of a
few real tangible examples on the impacts of this legislation,
and I recommend to the members of this subcommittee that they
talk to companies in their districts and States about how the
legislation would impact them. This legislation is not just
about chemical facilities. It also covers facilities with
chemicals too. It isn't something that it just going to hit the
big guys. Small businesses will be swept in too, then perhaps
even swept overseas.
A recent study looked at the impact of inherently safer
technology, IST, mandate on oil refineries. IST may sound good
but it is in reality a government-mandated product
substitution. The study found that in certain terrorist
situations, sulfuric acid, the mandated IST, can be just as
dangerous as hydrofluoric acid, which is commonly used today.
But under the federally mandated IST, the refining process
would require roughly 250 times more sulfuric acid than
hydrofluoric. To put this into scale, we are talking about the
difference between one and two truckloads per month versus
three to four truckloads each day. The IST, which doesn't make
us safer, costs between $45 million to $150 million per
refinery and an increase in operating costs of between 200 to
400 percent. What do you think would happen to gas prices with
refineries moving abroad? Between this and cap and trade, we
will be stuck importing virtually every single gallon of
gasoline from overseas.
The problems with this legislation extend beyond the
economic realm. The citizen lawsuit provisions in the chemical
plant security bill are completely inappropriate for national
security legislation. Allowing these types of lawsuits could
harm security at these facilities, not make it stronger.
Citizen supervisions in the bill are an over-the-top example of
why we should not be rushing, especially considering that
terrorists hire lawyers and could use them. Citizen suits are
not used in a national defense context and shouldn't be used
here. Folks should not be able to compel the release of
roadmaps to destruction by simply using the legal discovery
process.
Additionally, the information protection language rolls
back traditional protections of information that Congress has
employed since 9/11. It eliminates penalties against those who
recklessly disclose sensitive information to the public. Even
though we have been blessed not to have been attacked since 9/
11, we should not relax our resolve to sanction violators
swiftly or aggressively.
In closing, H.R. 2868 would increase costs and send jobs
abroad without bolstering national security. In fact, an
argument can actually be made that it weakens our security.
Chemical manufacturers have already invested millions of
dollars in chemical security upgrades to ensure that the
communities where they operate are safe, secure and efficient.
The requirements in this bill will not improve that security.
It will only shift the security risks to other sectors such as
transportation or manufacturing while hindering the economic
profitability in the process. Hundreds of thousands of jobs
have been lost over the past year, resulting in plant closures
and other facilities operating on the margins. Michigan's
unemployment is still about 15 percent. The chemical industry
has been hit hard by the economic recession and now is not the
time to jeopardize those jobs while weakening our national
security. This isn't the right prescription for making our
country stronger. We need a bill that secures the economy, not
just re-engineers and exports. I yield back my time.
Mr. Markey. The gentleman's time has expired. The chair
recognizes the chairman of the full Committee, the gentleman
from California, Mr. Waxman.
OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Waxman. Thank you very much, Mr. Chairman.
Since 2001, federal officials, the Government
Accountability Office, and outside experts have warned that the
Nation's drinking water utilities and chemical facilities
remain vulnerable to terrorist attack. The risk that hazardous,
but useful, chemicals can be wielded against us is not
theoretical or abstract. Just last week, we read news accounts
that the FBI arrested an individual suspected of plotting to
blow up a federal building using common chemicals purchased at
a beauty supply store. It doesn't take much imagination to be
concerned about what a motivated terrorist group could do with
access to a facility containing large quantities of lethal
substances.
The bills we will learn more about today are unfinished
business from 9/11. They are critical not only to homeland
security but to the safety of workers at these facilities and
overall public health.
First, I would like to note the process by which this
legislation was developed. At the beginning of this Congress, I
sat down with Homeland Security Committee Chair Bennie
Thompson. We agreed that our committees needed to work together
to address the vulnerability of chemical facilities to
terrorist attack and other intentional acts.
The Chemical Facility Anti-Terrorism Act, H.R. 2868, is the
product of these discussions. This legislation will establish a
chemical security program to address the threat posed by the
Nation's vulnerable chemical facilities. Committee staffs on
both sides of the aisle spent hundreds of hours methodically
working through these issues.
The second bill we are discussing today, H.R. 3258, the
Drinking Water System Security Act, creates a security program
for drinking water facilities similar to the chemical security
program. While this legislation is exclusively within the
jurisdiction of our committee, it also is the product of dozens
of discussions on both sides of the aisle at the staff level. I
cannot claim we have achieved consensus on these bills but they
are well considered and respond to each of the concerns raised.
I would like to highlight what each of these bills will do.
The Chemical Facility Anti-Terrorism Act begins with the
recognition that DHS has made tremendous progress in developing
a strong chemical security program and gives DHS permanent
authority to strengthen security at America's chemical
facilities. It then fills in some important gaps in the
existing program. The bill requires all covered chemical
facilities to assess whether they can adopt safer chemicals,
processes or technologies to reduce the consequences of a
terrorist attack. The bill gives the Secretary the authority,
under certain circumstances, to mandate that the riskiest
facilities adopt safer technology. This is a commonsense policy
that will help make facilities reduce the likelihood that they
will become an attractive terrorist target.
We have also added an important citizen enforcement tool to
the chemical facility security program where citizens can use
the provisions to hold DHS accountable for failing to perform
their duties.
H.R. 3258, the Drinking Water System Security Act,
authorizes EPA to create a security program for drinking water
facilities similar to the chemical security program under DHS.
There are a couple of important aspects in that bill that
deserve to be highlighted.
First, the bill makes permanent EPA's authority under the
Drinking Water Act to regulate security at drinking water
facilities. Second, just like the chemical facility bill, this
bill requires all covered water systems that use a certain
amount of dangerous chemicals to assess whether they can switch
to safer chemicals or processes. Since States play a unique
role in implementing the Safe Drinking Water Act and are most
familiar with local drinking water concerns, we give the
States--not EPA--the authority, under certain circumstances, to
require the riskiest facilities to adopt safer technology.
We worked closely with the water sector to balance the
needs of safe drinking water with homeland security concerns,
and I am pleased that the Association of Metropolitan Water
Agencies has endorsed H.R. 3258. AMWA is an organization
representing the largest publicly owned drinking water systems
in the United States, and we will hear from one of its members
on the second panel.
We still have some significant issues to work through on
these bills and I hope we can find common ground to close these
security gaps once and for all to make our country safer. Thank
you, Mr. Chairman.
Mr. Markey. Great. The gentleman's time has expired. The
Chair recognizes the gentleman from Florida, Mr. Stearns.
OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Mr. Stearns. Thank you, Mr. Chairman.
I would say to you, Mr. Chairman, and to Mr. Waxman, in
2002 we passed the Drinking Water Security Act, part of Title
IV of the Bioterrorism Act. And then we also passed the
Chemical Plant Security Act in 2006, so I really think we
should just extend those bills and see if the industry can
comply. I think the industry is having difficulty complying
with what we have already passed so I agree with the ranking
member, Mr. Upton, when he said just have an extension for 3
years and not start all over, let industry comply with what we
passed, and as Mr. Upton said, see what works and what doesn't
work and just correct it. You know, frankly, we haven't had a
terrorist attack. We have had attempts but we really have not
had enough to drive these two bills to ask urgent passage, you
know, and this is particularly a concern of mine when millions
of Americans have already lost their jobs due to economic
slowdown and so you put these two bills in place, I think they
will have a negative effect on raising prices for everyday
products including food, water, pharmaceutical drugs,
fertilizers, energy at a time when people can least afford the
price increase.
The proposed legislation goes beyond increasing security
protections by imposing mandates on American manufacturers as
to which products and processes they will use without any
regard for practicality and availability or cost. Absent
federal preemption and a uniform national standard, this
legislation would create overlapping and conflicting security
requirements that would cause disruption of federal security
standards, increase government red tape and obvious create more
economic instability.
So I am here at this hearing, Mr. Chairman, but based upon
what we passed in 2002 and 2006, I think the simple thing to
do, as Mr. Upton pointed out, just extend the bill, see what
works, what doesn't work, because these folks are having a hard
time complying with what we already passed. Thank you, Mr.
Chairman.
Mr. Markey. Great. The gentleman's time has expired. The
Chair recognizes the gentleman from Louisiana, Mr. Melancon.
OPENING STATEMENT OF HON. CHARLIE MELANCON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF LOUISIANA
Mr. Melancon. Thank you, Mr. Chairman. I appreciate the
opportunity to do an opening statement.
I too would like to thank you, Mr. Markey, and Chairman
Waxman for your efforts to bring attention to this very
important issue.
My State is particularly affected by the proposals in this
legislation. Louisiana is home to 61 chemical manufacturing
companies that have 96 sites and at least 10 refineries
throughout the State. These sites employ thousands of
hardworking men and women, oftentimes multiple generations in
the same plant. These jobs are not minimum-wage employment.
These jobs pay good salaries and offer a strong set of
balances. People are paying attention to this bill in
Louisiana, not only because of its potential impact on jobs and
employment but plant workers in the communities surrounding the
facilities are also concerned for their safety. My son, Seth,
works within the confines of one of those chemical plants along
the Mississippi River in my district as a safety supervisor,
and what I have come to learn through the years and especially
since he has become active in the industry is that the key to
every one of these facilities is safety, safety, safety. That
is the number one priority to all of them, management and
workers.
Despite existing rigorous safety protocols in these plants,
there are still national and community security considerations
addressed in this bill. Some of the chemicals we use every day
in this country such as chlorine are used to make drinking
water safe but can also represent a real security hazard in the
wrong circumstances. As we continue to work toward a final
bill, we must balance national security with the means to
ensure that we do not create mandates that will threaten the
jobs of tens of thousands of workers who are the backbone of
this vital industry. We must make certain that our efforts do
not shift rather than eliminate risk. We must examine existing
models and learn from the success of State chemical security
plants. Finally, we must guarantee that critical security
information is not made available to those who might use it to
harm us.
The chemical facility security bill being considered today
has considerable expansions on the original authorization
passed in 2006 and the motivation for this broadened initiative
is commendable. However, I encourage my colleagues on this
committee to keep an open dialog with all parties affected by
the statute, and remember that while our responsibility to
secure this Nation from terrorist attacks is paramount, we must
also have a duty to legislate responsibly and consider all
sides of the matter.
I would like to take the opportunity to applaud the groups
such as American Chemical Council and Crop Life America for
their contributions in recent months and constructive
viewpoints from the industry perspective, and I would also like
to recognize the Blue Green Alliance for their diligence in
making sure that there are strong protections for both the
facility employees and surrounding communities. Lastly, I would
like to thank the Committee staff and the staff of
Representative Markey for working so hard to try and
accommodate the interests of this wide variety of affected
parties. With that, I yield back my time.
Mr. Markey. Great. We appreciate that. The Chair recognizes
the gentleman from Texas, Mr. Burgess.
OPENING STATEMENT OF HON. MICHAEL C. BURGESS, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF TEXAS
Mr. Burgess. Thank you, Mr. Chairman, and thank you for
having a hearing on this important issue.
Securing our Nation's drinking water and chemical
facilities should be a priority for every Member of Congress,
indeed, every Congressional district. There is little doubt
that these are centers where great damage could be inflicted on
the communities and surrounding areas. It does seem that there
is disagreement how to go most effectively go about ensuring
the safety of these facilities while at the same time
protecting their economic viability. Imposing regulations on
facilities that are still in the process of implementing
Congress's last round of regulations does appear to be ill
advised at this time. Congress last addressed this issue of
chemical facility security in the homeland security for fiscal
year 2007 in the appropriations bill. The regulations put in
place following the enactment of this legislation are in the
process of being implemented and the Department of Homeland
Security has yet to make any onsite assessments regarding the
covered facilities' compliance with the regulations. It seems
to me a prudent course of action, indeed, if any further
regulations are necessary, would be to wait until the
Department of Homeland Security has had an opportunity to
report back to Congress, study their recommendations and look
at the success or failure of the current regulations. Chemical
manufacturing facilities are some of the most highly regulated
entities in the country, and in many cases for good reason.
Moving the ball every few years by piling on additional
regulations without assessing how well the existing rules and
recently created regulations are working creates both confusion
and uncertainty for these entities. Having to redo and rewrite
the security plan every year or two Congress keeps changing
course means businesses cannot focus on their core mission and
indeed on their bottom line growing their operations and
creating more jobs.
Congress should tread carefully when we consider extending
security regulations to drinking water facilities including
facilities that serve relatively small amounts of people. I
think it is important that we have the dialog that we will have
today but more investigation is needed as to how to properly
craft any legislation that would impose new burdens on drinking
water facilities which are already struggling to meet the
demands of growing population, specifically in rural areas and
specifically in rural areas that I represent back in Texas.
My concerns on both pieces of legislation that we will be
discussing today center around the mandate of using inherently
safer technology but it is not always necessarily a one-size-
fits-all application for all facilities. Further, the
provisions allowing citizens to bring suits against covered
facilities pose potential for placing an additional burden on
our court system and tying up the facilities' resources in
court proceedings rather than simply making their plants safer.
I hope the hearing today will be productive and we will
enter into a dialog of how we may best go about keeping the
American people safe and keeping chemical plants secure and
drinking water supplies safe. I look forward to listening to
the testimony of the panels today and working with others on
the dais on these matters. Thank you, Mr. Chairman. I will
yield back.
Mr. Markey. Great. The gentleman's time has expired. The
gentleman from Texas, Mr. Green, is recognized.
OPENING STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Green. Thank you, Mr. Chairman, for holding the hearing
today on H.R. 2868 and H.R. 3258, the legislation that seeks to
protect chemical facilities and drinking water systems across
the country.
Chemical facility security is especially important to the
protection of public health and safety and particularly in our
Congressional district. The Houston Ship Channel area is the
heart of the largest petrochemical complex in our country that
stretches along the Texas Gulf Coast, producing many essential
products for modern life. People who live near and work in
these facilities deserve the best security possible to prevent
the risk of death or injury. Our industry, federal, State and
local law enforcement have been working together since 2001 to
do this. Chemical facilities have already invested nearly $8
billion in security improvements since 2001 and are fully
complying with DHS's Chemical Facility Anti-Terrorism
Standards, or CFATS, which is not yet fully implemented.
Today, DHS continues to review thousands of security
vulnerability assessments to determine the Nation's highest
risk facilities that require appropriate risk-based security
measures. Our hearing should shed some light on the progress of
existing regulations for chemical and drinking water facilities
so we can learn what is working and what isn't from these
programs. We need to understand the impact of these pieces of
legislation on the various responsibilities of EPA, DHS and the
Coast Guard, which regulates many of the chemical facilities in
our district under the Maritime Transportation Security Act, or
MTSA. In 2006, the appropriations rider that authorized CFATS
exempted MTSA facilities to avoid unnecessary duplication. We
should continue to avoid overlap of the existing security
programs including and regarding background checks for
employees. We have the same agency, Homeland Security and Coast
Guard looking at one plant that is on the waterside and a
neighboring plant that may not have a waterside. Those security
standards should be the same.
The hearing is also a good opportunity to learn more about
the risk government concept and inherently safer technology, or
IST, which is already in use in various chemical facilities
today. If available, IST can be the most efficient step to
improve security. The difficulties with IST is whether or how
to involve government agencies like DHS that have few, if any
process safety experts, chemical engineers or other qualified
staff. Hopefully we can promote the adoption of inherently
safer technology while avoiding unqualified judgments and
unintended consequences.
I also question whether broad, private right-to-sue
authorities similar to civil suit provisions found in
environmental statutes are appropriate for the security
legislation. It should at least limit the affected party
including the neighbors and employees that live near a
facility.
Mr. Chairman, I look forward to the testimony of today's
witnesses so we can learn how to protect our communities with
feasible and affected standards, and I yield back my time.
Mr. Markey. Great. The gentleman's time has expired. The
Chair recognizes the gentleman from Illinois, Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman.
More regulation, more costs, more uncertainty, less jobs.
It is curious that we would try to move more legislation when
we haven't fully enacted the previous legislation nor do we
have a full handle or facilities have been inspected, and that
is the frustrating thing in this environment that we would move
to do so. We are talking about more than--based upon language,
we are talking more than just chemical plants. We are talking
about farms, hospitals, universities, deep underground wells.
Based upon this terminology of substance of concern, I call it
terminology of concern because it is undefined. Chemical
facility security efforts are not a branch of environmental
law. The use of inherently safer technology is not a protection
panacea against terrorism. Citizen suits are not used in
national defense context and should not be used here.
The last thing is the preemption regime in these bills
allows States and localities to enact more stringent laws. That
is obviously problematic. And with that, Mr. Chairman, I think
we have a long way to go. We shouldn't rush since the budget
has a year extension and there are folks who are pushing for
time to look and review the process that is going on, and I
yield back my time.
Mr. Markey. The gentleman's time has expired. The Chair
recognizes the gentlelady from California, Ms. Capps.
OPENING STATEMENT OF HON. LOIS CAPPS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mrs. Capps. Thank you, Mr. Chairman.
Today we will hear about the threat posed by toxic
chemicals and the need to ensure the security of those
chemicals. As has been stated, we will have testimony on two
bolls that seek to provide essential protections to millions of
workers and communities now living in the shadow of preventable
chemical disasters.
Since 2001, we have had to reorder our priorities as a
number of issues have taken on new urgency. The security of
toxic chemicals and our drinking water remains very high on
this list. Security experts continue to list the Nation's
chemical and drinking water plants as vulnerable and a deadly
part of our Nation's infrastructure. The threat is very real
and it requires immediate action, and that is why Congress must
act quickly to pass protective and comprehensive legislation.
H.R. 3258, the Drinking Water System Security Act, is an
excellent start. This legislation will help us protect and
secure our Nation from potential acts of terrorism against our
Nation's drinking water facilities. It advances the use of
safer, more secure chemicals and technologies where feasible
and, importantly, involves plant employees in developing
security programs. I am pleased this bill has the support of
the Nation's largest water utilities as well as environmental
and labor groups. This broad coalition shows that this bill
provides a commonsense approach to securing American's drinking
water.
Mr. Chairman, just let me say that I understand the value
of chemicals in our society. We are not here to question
whether or not we need chemicals, but as a public health nurse,
I am well aware of the fact that what we need to do is protect
those chemicals, especially the most hazardous ones, and also
protect the employees that handle them every day from terrorist
threats. Action is long overdue to address these preventable
chemical disasters. All of us have a responsibility to make
sure we do all we can to keep this country safe. I hope we can
enact this legislation as soon as possible to eliminate that
threat, and I yield back.
Mr. Markey. Great. The gentlelady's time has expired. The
Chair recognizes the gentleman from Oklahoma, Mr. Sullivan.
Mr. Sullivan. I would like to waive my opening statement,
and I will submit a statement for the record.
[The prepared statement of Mr. Sullivan follows:]
Mr. Markey. The gentleman's time will be preserved. The
Chair recognizes the gentleman from Pennsylvania, Mr. Pitts.
OPENING STATEMENT OF HON. JOSEPH R. PITTS, A REPRESENTATIVE IN
CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA
Mr. Pitts. Thank you, Mr. Chairman. I would like to thank
you for convening this hearing today on H.R. 2868, the Chemical
Facility Anti-Terrorism Act, and H.R. 3258, the Drinking Water
System Security Act.
I think we can all agree that there is a great need to
protect our chemical facilities from terrorist attacks. To this
end, 3 years ago Congress enacted section 550 of the Department
of Homeland Security Appropriations Act for 2007. This section
authorizes DHS to regulate security at designated chemical
facilities. Though the law sunsets in a few days, there has not
been enough time to fully implement the program. Realizing
this, the Obama Administration's fiscal year 2010 budget
recommended a straight 1-year extension of section 550, which
was included in the fiscal year 2010 Department of Homeland
Security Appropriations Act. However, there are several new
provisions in H.R. 2868 that are very concerning.
First of all, the application of inherently safer
technology, IST, is not a protection panacea against terrorism.
The National Petrochemical and Refiners Association says, ``IST
is not a technique or procedure, it is an engineering
philosophy. There is no valid method for objectively
characterizing whether a process is as inherently safe as it
can be.'' I do not believe it is Congress's role to mandate
engineering philosophies or chemical substitutions as a
security cure-all.
In addition, regarding the citizen suits provisions, there
is a great concern that every person including terrorists could
use these types of suits to threaten litigation. Citizen suits
are not used in a national defense context and should not be
used here.
Finally, as I mentioned earlier, the existing program under
section 550 has not yet been fully implemented. We need a full
record of what works, what doesn't, what lessons we have
learned before we change the rules. Mr. Chairman, there is no
need to race legislation through this committee. Let us allow
the existing law to be fully implemented, then take a careful,
reasoned assessment of it.
I appreciate the witnesses' coming today, and I look
forward to hearing their testimony. I yield back.
Mr. Markey. Great. The gentleman's time has expired. The
Chair recognizes the gentleman from California, Mr. McNerney.
Mr. McNerney. Thank you, Mr. Chairman. I believe I will
waive my opening statement.
Mr. Markey. The chair recognizes the gentleman from North
Carolina, Mr. Butterfield.
OPENING STATEMENT OF HON. G.K. BUTTERFIELD, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NORTH CAROLINA
Mr. Butterfield. Thank you very much, Mr. Chairman, for
convening this important hearing. You told us at the beginning
of the session that we would have these hearings and they would
be forward thinking, and today is certainly an example of that.
Mr. Chairman, one of the outcomes of that fateful day in
2001 was our expanded awareness of potential threats and
vulnerabilities. In the wake of that tragedy on September 11,
we found renewed responsibility to secure chemical facilities
and water treatment plants from intentional harm. We are
exercising that responsibility in the consideration of these
two pieces of legislation. Though my support for securing these
facilities is unequivocal, I would be remiss not to convey
concerns that I have received from some of my constituents with
regard to the proposed legislation. The authority that grants
the Secretary of Homeland Security to mandate inherently safer
technologies troubles many of these constituents that I
represent. I am appreciative of the language for highlighting
the Secretary's need to factor economic and cost concerns into
the final determination on the need for ISTs. I urge that the
economic consideration provision be as strong as possible,
given existing incentives and CFATS for covered facilities to
improve their security.
Fertilizer producers and retailers in particular have
expressed concern that the IST provision could be detrimental
to their businesses. The 1st District in North Carolina is in
large part agrarian and with many people dependent upon the
farm economy. Yes, it is farm country for their livelihood.
Fertilizer is a major input for these farmers and increasing
the cost of fertilizer has enormous consequences for the bottom
line of the family farm. This is just one example, Mr.
Chairman, of economic concerns, and I do hope that we keep
these concerns and other concerns in mind as we go forward.
I thank you for convening the hearing. I yield back.
Mr. Markey. We thank the gentleman very much. All time for
opening statements has been completed. We will now turn to our
panel, our very distinguished first panel, and we will hear
first from Rand Beers, who serves as the under secretary for
National Protection and Programs Directorate at the U.S.
Department of Homeland Security. In this role, Mr. Beers
oversees the coordinated operational and policy functions of
the directorate's subcomponents which include infrastructure
protection, risk management and analysis, cybersecurity and
communications. Mr. Beers previously served on the National
Security Council staff under Presidents Reagan, Bush, Clinton
and George W. Bush. So we welcome you, sir. Whenever you are
ready, please begin.
STATEMENTS OF HON. RAND BEERS, UNDER SECRETARY, NATIONAL
PROTECTION AND PROGRAMS DIRECTORATE, DEPARTMENT OF HOMELAND
SECURITY; AND HON. PETER SILVA, ASSISTANT ADMINISTRATOR, OFFICE
OF WATER, ENVIRONMENTAL PROTECTION AGENCY
STATEMENT OF RAND BEERS
Mr. Beers. Thank you, Chairman Markey, Ranking Member Upton
and distinguished members of this Committee. It is a pleasure
to appear before you today as the committee considers H.R.
3258, the Drinking Water System Security Act of 2009. This Act
is intended to close the security gap at drinking water
facilities that possess substances of concern.
We have enjoyed a constructive dialog with Congress
including this Committee as it works on new authorizing
legislation. The Department recognizes the significant work of
this Committee and others, particularly the House Committee on
Homeland Security, that you all have devoted to drafting this
legislation to reauthorize the CFATS program and to address
chemical security at the Nation's water systems. We appreciate
this effort and look forward to continuing the constructive
engagement with Congress on these important matters.
CFATS is enhancing security today by helping to ensure
high-risk chemical facilities throughout the country have
security postures commensurate with the levels of risk. We have
made significant progress since the implementation of CFATS in
2007. CFATS currently covers approximately 6,200 high-risk
facilities nationwide. The current state of coverage reflects
changes related to chemicals of interest that facilities have
made since receiving preliminary tiering notifications in June
of 2008 including security measures implemented and the
consolidation or closure or some facilities.
The following core principles guided the development of the
CFATS regulatory structure: securing high-risk chemical
facilities in a comprehensive undertaking that involves a
national effort including all levels of government and the
private sector, risk-based tiering that ensures that resources
are appropriately deployed, reasonable, clear and equitable
performance standards that will lead to enhanced security, and
recognition of the progress many companies have already made in
improving facilities that leverages that advantages.
It is important to note that the Administration has
developed a set of guiding principles for this reauthorization
of CFATS and for addressing the security of our Nation's
wastewater and drinking water treatment facilities. These
principles are that the Administration supports a permanent
chemical facility security authority and a detailed and
deliberate process in so doing. Hence, our preference for a
full-scale process that will be completed in fiscal year 2010.
Nonetheless, CFATS single-year reauthorization in this session
prevents an opportunity to promote the consideration and
adoption of inherently safer technology among high-risk
chemical facilities. We look forward to working with this
committee and others on this important matter.
CFATS reauthorization also presents an opportunity to close
the existing security gap for wastewater and drinking water
facilities by addressing the statutory exemption of these
facilities from CFATS. The Administration supports closing this
gap. The Administration believes that EPA should be the lead
agency for chemical security for both drinking water and
wastewater systems with DHS supporting EPA's efforts with its
security expertise and the leveraging of the CFATS process and
structure to include the risk-based performance standards,
tiering methodology, compliance tools, inspector training and
other support. This will ensure that the water facilities
identified as high-risk chemical facilities are addressed
consistently nationwide with modification where necessary to
reflect the unique characteristics of such facilities.
With regard to policies surrounding inherently safer
technology, the Administration had established the following
policy principles in regard to IST at high-risk chemical
facilities. The Administration supports consistency of IST
approaches for facilities regardless of sector, and DHS will be
responsible for ensuring such consistency. The Administration
believes that all high-risk chemical facilities, that is tiers
1 through 4, should assess IST methods and report the
assessment in the facility security plans. Furthermore, the
appropriate regulatory entity should have the authority to
require facilities posing the highest degrees of risk, that is,
tiers 1 and 2, to implement IST methods if such methods enhance
overall security are feasible, and in the case of water sector
facilities especially, though obviously not exclusively, that
such methods consider public health and environmental
requirements. With respect to tier 3 and 4 facilities, the
appropriate regulatory entity should review the IST assessment
contained in the site security plan and the entity should be
authorized to provide recommendations on implementing ISTs but
that entity would not require those facilities to implement
those IST methods. The Administration believes that flexibility
and staggered implementation would be required in implementing
this new IST policy. Clearly, this process could not happen
overnight and care and the collection of good data will be
necessary. DHS in coordination with EPA would develop an IST
implementation plan for timing and phase-in at water facilities
designated as high-risk chemical facilities. DHS would develop
an IST implementation plan for other high-risk chemical
facilities in all other applicable sectors.
The Administration recognizes that further technical work
to clarify policy positions regarding IST and water treatment
security facility is required. The policy positions discussed
above represent starting points in renewed dialog in these
important areas. DHS and EPA staff are ready to engage in
technical discussions with the committee staff, affected
stakeholders and others to work out remaining technical
details. We must focus our efforts on implementing a risk- and
performance-based approach to regulation and in parallel
fashion continue to pursue the voluntary programs that have
already resulted in considerable success.
Again, I thank you for the opportunity to discuss these
issues with the Subcommittee and look forward to answering your
questions on this important issue.
[The prepared statement of Mr. Beers follows:]
Mr. Markey. Thank you, Mr. Beers, very much.
Our next witness is Peter Silva. He serves as the assistant
administrator for water at the Environmental Protection Agency
where he supervises water office programs, implementing laws
that include the Safe Drinking Water Act and the Clean Water
Act. Mr. Silva is a civil engineer with 32 years of experience
in the field of water and wastewater management. We welcome
you, sir. Whenever you are ready, please begin.
STATEMENT OF PETER SILVA
Mr. Silva. Thank you. Good morning, Mr. Chairman, Ranking
Member Upton and member of the Subcommittee. I welcome this
opportunity to discuss EPA's efforts to promote security and
resiliency in the water sector with an emphasis on our role in
addressing chemical security at drinking water facilities.
I will also reiterate with my colleague from DHS our shared
conclusion that a critical gap exists with respect to the water
sector and the framework for regulating the security of
chemicals in the United States. The subcommittee has
demonstrated both leadership and thoughtfulness in drafting a
bill, the Drinking Water System Security Act of 2009, with the
intention of closing this gap for drinking water systems. In my
remarks, I will offer some comments on this bill as well as the
importance of EPA coordinating with DHS in addressing chemical
security at water and wastewater facilities.
EPA has worked over the last several years to support the
water sector in improving security and resiliency, and I am
pleased to report that the sector has taken its role very
seriously. EPA has been entrusted with important
responsibilities for coordinating the protection of the water
sector through Congressional authorization under the
Bioterrorism Act of 2002 and through Presidential mandates
under Homeland Security Presidential Directives 7, 9 and 10.
Promoting the security and preparedness of the Nation's
water infrastructure is a priority of this Agency in a post-9/
11 and post-Hurricane Katrina world. A loss of water service
can seriously jeopardize the public health, economic vitality
and general viability of a community. In working with the water
sector, we have emphasized a multi-layered approach to security
consisting of prevention, detection, response and recovery. We
support the Drinking Water System Security Act of 2009 because
it will enable us to reduce the risks associated with chemical
security in the water sector without compromising the public
health and environmental protection standards. We also support
the structure of the bill as to its tiering process,
vulnerability and assessments, site security plans, risk-based
performance standards and other provisions that are consistent
with the proposed CFATS reauthorization language of H.R. 2868.
With respect to the inherently safer technology issue, the
EPA and DHS support the bill's requirement for covered systems
that use substances of concern above threshold levels to
conduct assessment methods to reduce consequences, or MRCs.
This requirement should promote the sector's consideration and
adoption of safer methods.
Further, we concur with authorizing the regulatory agency
to require the highest-risk facilities to implement MRCs under
certain conditions. Although we find much to support in the
bill, EPA and DHS share a significant concern that the
bifurcation of the water sector under two separate bills with
wastewater facilities covered under H.R. 2868 and drinking
water facilities covered under H.R. 3258. We urge the committee
to authorize EPA in coordination with DHS to regulate chemical
security at both drinking water and wastewater facilities.
The Committee's bill correctly recognizes the importance of
coordination between EPA and DHS in regulating chemical
security in the water sector. EPA and DHS have each acquired
valuable insight through their respective experience with both
the water and wastewater sectors. We recommend that EPA utilize
DHS's chemical security risk assessment tools and performance
standards and modify as necessary for the water sector.
In implementing H.R. 3258, we envision that DHS would
conduct initial reviews of vulnerability assessments and
recommend risk tier assignments for water and wastewater
facilities to EPA. DHS also would support EPA's evaluation of
site security and train inspectors to ensure consistency of
inspections nationwide. EPA also supports authority for the
States to implement certain provisions including a prominent
role in MRC determinations in both auditing and inspections.
In conclusion, we have made significant progress in
enhancing the security of our Nation's drinking water and
wastewater systems. With respect to chemical security, we look
forward to continuing to work with members of the Committee on
legislation that ensures the security of substances of concern
at water and wastewater facilities while supporting the
critical mission of these facilities for public health
protection.
Thank you again for the opportunity to testify about our
role in water security. I look forward to answering your
questions.
[The prepared statement of Mr. Silva follows:]
Mr. Markey. Thank you very much, Mr. Silva, and again, we
thank the witnesses for all their hard work and their work with
our staff in moving towards today. And for the purposes of the
question-and-answer period, Mr. Beers will be joined by Sue
Armstrong from the DHS and Mr. Silva will be joined by Cynthia
Dougherty from the EPA staff if they would like to come up to
the table, and we welcome you both.
The Chair will now recognize him and we will begin with
you, Mr. Beers. There has been, Mr. Beers, many inaccurate
statements made about the language in the bill that requires
facilities to assess whether there are safer practices or
technologies that they could use and for facilities in the two
highest risk tiers, the language that provides DHS with the
authority to require them to be used in some cases. Some have
said that the provision might shift the security risk because a
company could change the location of the dangerous chemical or
store it outside the facility's fence. H.R. 2868 says that
before DHS can require a facility to adopt a safer process or
technology that it needs to find that there wouldn't be this
kind of risk shifting. Do you think it makes sense to ensure
that risk is not shifted?
Mr. Beers. Mr. Chairman, we certainly are of the view at
DHS that as we look at any issue with respect to security, be
it under the mandate that this committee is seeking with
respect to inherently safer technology or the screening and
assessment process that DHS already undertakes, that measures
to reduce risk are not shifting of risk to other areas. That is
a basic bedrock position that DHS has held up to this point and
would like to see continued as we consider any kinds of
security measures.
Mr. Markey. OK. Thank you.
Mr. Beers. It does not help us otherwise.
Mr. Markey. Thank you. And H.R. 2868 says that before DHS
can require a facility to adopt a safer process or technology
that it needs to find that the facility would be able to stay
in business at its current position. Do you think that it makes
sense for the Department to consider the cost before requiring
a facility to adopt a safer chemical or process?
Mr. Beers. Sir, as we look at any kind of legislative
impact, be it the existing CFATS legislation or what this
committee has under consideration, we believe quite strongly
that we have to take into account a number of factors including
economic considerations in any move to seek facilities to
change their practices. So in moving forward in an area of
concern with inherently safer technology, we would certainly
want to be able to take that into account.
Mr. Markey. Thank you. Now, there have been some proposals
to exempt small businesses from some of the requirements to
assess and implement safer chemicals or processes. Do you
believe that the risk to the surrounding community is smaller
just because the business is smaller if al-Qaeda could launch a
successful attack on a chemical facility that was unprotected?
Mr. Beers. Sir, the risk process that we undertake in
reviewing facilities looks at the risk as the risk exists. It
is not an issue of whether a business is large or small, and
the risk to a community is not determined by the size of the
business, it is determined by the size of the risk. So as we
look at these issues, we would be looking at the size of the
risk. As I said in answer to my previous question, we would
also take into account economic considerations, but risk is
risk, and that is no difference between the size of the
business.
Mr. Markey. In your opinion, is it reasonable to assume
that Mullah Omar and Osama bin Laden in Pakistan right now have
plans if they could implement them to strike at the United
States once again?
Mr. Beers. Sir, it is the view of our intelligence
community that al-Qaeda and its affiliate organizations still
represent a risk to the homeland of the United States. We have
not deviated from that view across a change of Administration
and the recent events in New York clearly suggest that that
risk is alive.
Mr. Markey. And could chemical facilities be a high
priority target for al-Qaeda within the United States if
security was inadequate?
Mr. Beers. We certainly believe that chemical facilities
represent a potential target. That was the purpose behind the
original CFATS legislation and we continue to believe that that
is the case.
Mr. Markey. Thank you, Mr. Beers, very much.
Let me turn and recognize the gentleman from Michigan for
his questions.
Mr. Upton. Thank you, Mr. Chairman.
Mr. Beers, you know, the Congress passed in 2006 and funded
the chemical facility anti-terrorism bill and the 2007
appropriations bill. How many facilities are actually impacted
by the legislation in the United States, about? I don't know if
you know the exact number or not.
Mr. Beers. I am going to turn to my colleague here, Sue
Armstrong, to answer that detailed question.
Ms. Armstrong. Good morning, I will apologize in advance
for my voice today.
Mr. Upton. Sounds fine to me.
Ms. Armstrong. There are currently 6,156 covered facilities
in the four CFATS tiers.
Mr. Upton. And if those 6,156 facilities, how many of them
have been inspected since the bills passed?
Ms. Armstrong. Well, the first regulatory deadline under
CFATS was January 22, 2008, to file top screen, which is the
initial consequence screening that a facility possessing
appendix A chemicals of interest must file with the Department,
and at that point in time we had 29,453 top screens in. In June
of last year, June 23, 2008, we notified 7,010 facilities
nationwide that they were preliminarily tiered under CFATS and
needed to do a security vulnerability assessment, again under
the program, and----
Mr. Upton. And then you dropped it down to 6,156?
Ms. Armstrong. Yes.
Mr. Upton. And of those 6,156, how many of them have you
actually gone to visit?
Ms. Armstrong. Well, we have done a number of compliance
assistance visits over the past year or so to, number one, make
sure we understand what we are seeing in a security
vulnerability assessment or if a facility requests a visit we
will pay them one.
Mr. Upton. So has that happened? Have you actually visited
any of these sites?
Ms. Armstrong. Yes, sir. Compliance assistance visits have
been occurring regularly. Facilities are also able to visit us
in Washington for a technical consultation regarding their
tiering if they want to. We have not begun inspections formally
yet. We expect to do so in December. The first site security
plans for a group of tier 1 facilities that were notified of
their final tiering status this May were due September 15.
Mr. Upton. OK. The reason I ask that is that I know that in
the budget request, the President's budget request that was
made, he sought a 1-year extension of the bill, which as I
understand it, the Homeland Security appropriation bill is
going to comply with that. I think there is a 1-year extension
in both the House and the Senate bill. And as a former OMB
official, I know that this is about the time of year that the
agencies submit their requests for the next budget to be
presented early next year. Can you tell us where the Department
of Homeland Security is as they look at the 2011 budget? Are
they going to pursue a 1-year extension again?
Mr. Beers. No, that is not our intention. That was a good-
faith effort to indicate that it was our preference that we
work with the Houses of Congress on a permanent reauthorization
during fiscal year 2010.
Mr. Upton. Are you aware from receiving the information
from these 6,000-some facilities that there are any
shortcomings in their compliance?
Ms. Armstrong. We have not taken any enforcement actions
under the program at this point in time. We did receive
approximately 6,300 total security vulnerability assessments
and we have been in the process of reviewing those since they
were due at the beginning of--or late last year and the
beginning of this year. We have tier 1, 2 and 3 reviewed
pending new submissions of top screen and we are reviewing the
tier 4 vulnerability assessments at this time and continuing to
make final tiering determination notification.
Mr. Upton. Mr. Beers, you said in response to Mr. Markey's
question, you wanted to take into account economic
considerations of the changes that they are making. Do you have
any estimate of what these facilities have done financially to
comply with the regulations that are on the books now? Do you
have any total costs?
Ms. Armstrong. While I don't have a total cost, I do know,
and you can see from the numbers, 7,010 initial preliminary
tiering notifications and a covered population of 6,156 at this
point in time. To me, that says that facilities are taking a
look at their chemical holdings. They are taking a look at
their internal corporate supply chain and security posture and
making change. The rule specifically provides that when a
facility makes a material modification, it needs to refile its
top screen with us. So we have had thousands of top screen
resubmissions. We have received 36,960 top screens as of this
date. So facilities are looking at their holdings, looking at
their practices and----
Mr. Upton. I know my time is expired but do you have any
idea what the cost has been on these facilities to comply?
Ms. Armstrong. I do not at this point.
Mr. Upton. Thank you.
Mr. Markey. The gentleman's time has expired. The Chair
recognizes the gentleman from Louisiana, Mr. Melancon.
Mr. Melancon. I will waive questions for right now. Thank
you.
Mr. Markey. The Chair recognizes the gentleman from Texas,
Mr. Green.
Mr. Green. Thank you, Mr. Chairman.
Mr. Beers, as you know, H.R. 2868 requires DHS to review
facilities of IST assessment. In your testimony, you mentioned
that the infrastructure security compliance is responsible for
implementing the CFATS, has hired in the process over 125
people. Can you tell me how many of those 125 people who are
either on board or in the process are experts in the field of
chemical engineering, chemical process, safety, design and
engineering or occupational health, which are only a few fields
that would be required under IST? Do you have that information
for us?
Ms. Armstrong. We have approximately at this point in time
130 people either on board or in the selection process. Of
those, we have a number, five or six, who are either civil or
physical engineers or chemical engineers. We have a chemist on
site--on staff, sorry--and we have several inspectors who
joined us from industry.
Mr. Green. I have to admit, with the state of the industry
right now, it is probably not a bad time to be out seeking
someone with a chemical engineering degree, at least in my
area. What type of expertise do you feel is necessary, DHS, to
make the IST determinations?
Ms. Armstrong. Well, I think as with everything we have
done with the CFATS program, it needs to be an inclusive
process. It needs to include industry. It needs to include DHS
security expertise, which we have on staff. It needs to include
academia. It needs to include the covered facilities themselves
so we envision as we move forward if this legislation is
enacted working with the covered community as closely as we
have in standing up the CFATS program.
Mr. Green. And that gives me some comfort. And I know you
are not here representing the Coast Guard, and I have some
questions regarding the Coast Guard's current security regimen
under the Maritime Transportation which has been cooperative
between the industry in my area and the Coast Guard. MTSA's
requirement is to prevent maritime transportation security
incidents defined as any incident that results in a significant
loss of life, environmental damage, transportation system
disruption or economic disruption in a particular area. Do you
see this vision significantly different from what H.R. 2868
seeks to prevent in chemical facilities that may not be
waterside or under MTSA?
Mr. Beers. The Secretary of Homeland Security as she was
becoming familiar with the activities of the Department of
Homeland Security was informed early on in her tenure of the
potential for differing enforcement with respect to the Coast
Guard's responsibilities under MTSA and the NPPD
responsibilities under CFATS and asked the commandant of the
Coast Guard and myself to ensure that we work together over the
course of this year to seek full harmony in terms of the
implementation between our two regulatory regimes. As a result
of that, Sue, on behalf of NPPD and a senior flag officer of
the Coast Guard have a committee that has met and is in the
process of trying to ensure that those two regulatory regimes
are in full harmony.
Mr. Green. Great. Let me--I only have 5 minutes. Do you
believe this legislation is absolutely clear that MTSA
facilities only have to deal with one federal agency or one
subagency of DHS as the Coast Guard, and to follow up, right
now, and I think a number of members have bought our TWIC card,
because I spend a lot of times on plant sites in our district,
it kind of concerns me that a chemical worker at, say, ABC
Chemical Company at waterside uses a TWIC card, and yet if they
go to their plant facility at another location it may not have
waterside but have to have a different set of regimens. Is
there any way through this legislation or through DHS we can
harmonize that so it will just make it much more efficient, you
know, using the TWIC card as a basis?
Mr. Beers. I understand your concern, Congressman, and that
is one if the areas obviously that we want to look very
carefully at to ensure that we have if not a single regulatory
regime at least a fully harmonized regulatory regime. That card
issue is an issue that is much broader than just these two
regimes as well.
Mr. Green. I know, you know, it covers not only workers. I
have five refineries and I would say a boatload of chemical
facilities in my area and I appreciate DHS partnering with our
community over the years, both the local law enforcement and
federal law enforcement, to make sure we safeguard.
Thank you, Mr. Chairman.
Mr. Markey. Great. We thank the gentleman very much. There
are three roll calls that we will have to attend to as members
out on the House Floor and so we will take a brief recess after
we recognize the gentleman from Illinois, Mr. Shimkus, for his
5 minutes of questioning.
Mr. Shimkus. Thank you, Mr. Chairman, and this kind of
follows up to my opening statement. I appreciate you all being
here. One of the comments I made was that we are talking about
farms, hospitals, universities, deep underground wells,
basically anyone anywhere who possesses a, quote, unquote,
substance of concern as defined by the legislation. At a June
29, 2009, meeting to update the chemical sector security
summit, a leading official at the Department of Homeland
Security stated that the Department is doing targeted outreach
to colleges, universities and medical and public health
facilities. Does this mean that you consider--and this is for
Mr. Beers--that you consider colleges and universities to be in
the high-risk tiers?
Ms. Armstrong. I was actually the official who made that
statement, so I will elaborate. What I was announcing is that
we are beginning some targeted outreach for awareness purposes
in certain segments of industry, colleges and universities and
public health and health care facilities among them. There are
currently colleges and universities and other health care
facilities that are tiered under CFATS. We want to make sure
that those communities understand the CFATS programs and their
potential requirements under it and our willingness to work
with them to incorporate into their security plans their unique
circumstances.
Mr. Shimkus. So the answer is yes?
Ms. Armstrong. The answer is yes, they are.
Mr. Shimkus. OK. So if yes, they are tiered----
Ms. Armstrong. Some of them.
Mr. Shimkus [continuing]. We are talking about colleges and
universities, are they in tier 1 or tier 2?
Ms. Armstrong. They are in actually at this point in time
lower tiers, primarily 3 and 4.
Mr. Shimkus. Does that mean that DHS considers hospitals
and other public health clinics or facilities, you are saying
that they are falling into the lower risk tiers, not in 1 and
2?
Ms. Armstrong. Correct.
Ms. Shimkus. According to this presentation, DHS considers
certain federal facilities to be outliers. Section 550 exempted
many federal facilities. Since DHS is having trouble
implementing section 550 before it expires, what is the
Department doing chasing entities that it considers outliers
when you don't have the legal authority to do anything about
it?
Ms. Armstrong. Well, we do have the authority to identify
facilities as high risk based on other considerations and their
submission of top screen. That is in our rule. What the
reference to outliers was getting at was, we have worked with
two States in particular, New York and New Jersey, to have them
based on their knowledge help us identify facilities in their
jurisdictions who may have not have filed top screen and need
to do so.
Mr. Shimkus. Going back to the opening statement, so we
have addressed hospitals and universities. What about the issue
of the terminology, substance of concern, for farms and deep
underground wells?
Mr. Beers. The current policy is that there is an extension
of those entities having to file. That is ongoing.
Mr. Shimkus. And when will you make a determination?
Mr. Beers. We have begun a data gathering effort. We expect
to be issuing some data calls to supplier firms in the not-too-
distant future. That will be the beginning of the process of
collecting information in order to make a determination. This
will be all done publicly and transparently so that affected or
potentially affected entities will be fully aware of what is
happening.
Mr. Shimkus. OK, Mr. Chairman. That is all I have. Thank
you very much.
Mr. Markey. The gentleman's time is expired. What we are
going to do right now is to take a brief recess and we should
be back here in about 15 minutes to reassemble and to continue
the questioning. So the committee stands in recess.
[Recess.]
Mr. Markey. Welcome back, everybody, and we thank you for
your patience. There was an extended period of time for the
roll call. Let me turn and recognize the gentlelady from
California, Ms. Capps.
Mrs. Capps. I am still out of breath, Mr. Chairman.
Mr. Markey. No, good, you made the right decision, though.
Getting back here first is a big payoff.
Mrs. Capps. Thank you very much.
As has already been referenced, and this is for Under
Secretary Beers again, recent events have demonstrated that we
live in a world where terrorists can go to a beauty supply
store in Colorado to secure chemicals for a bomb they intend to
use for an attack in New York City. Incidents like this
illustrate how security vulnerabilities in one place can result
in injuries or deaths all the way across the country. My
questions are going to be in the area of citizen suit
provisions. The Administration has not taken a position on
this. Am I right?
Mr. Beers. That is correct.
Mrs. Capps. Well, I would like to frame this in a broader
context then. Do you agree that broad enforcement of CFATS
requirements is central to our security?
Mr. Beers. We certainly believe that the ability to work
with industry to increase the security and safety for the
country is absolutely critical. If that requires some kind of
leverage, then we are prepared to consider it. Obviously we
prefer not to have to use it----
Mrs. Capps. Well, let me just sort of work up to that. Is
it fair to say that the Department perhaps lacks the personnel
and resources to observe for all violations at all regulated
facilities at all times?
Mr. Beers. I am sorry?
Mrs. Capps. Would it be fair to say that the Department
lacks personnel and resources to observe for violations at all
regulated facilities at all times?
Mr. Beers. Oh, that goes without question. I mean, our
intent is to be able to visit each of the tier 1 sites in this
fiscal year and 50 percent of the tier 2 sites based on the
current resources that we have.
Ms. Capps. Well, that isn't everywhere at every time. I
mean, that is kind of omniscient if you were able to do that.
So that leads me to say, is it possible that neighbors who live
around a chemical facility and observe it in their neighborhood
every day may be in a position to spot evidence of security
violations that the Department of Homeland Security may not be
aware of on any particular day?
Mr. Beers. That is possible, yes.
Mrs. Capps. Well, that is what I am leading to in the area
of concerns that many neighborhoods have raised about their
opportunities to recommend and have their concerns addressed in
this way. Can I ask you what you feel should be done about
this?
Mr. Beers. Well, we have a system now in which citizens can
report their issues or concerns to the Department of Homeland
Security and it appears at this particular point in time to be
working. Sue, do you want to add anything?
Mrs. Capps. Yes, and I would like to add, what are the
steps that are taken and what kind of guarantee would neighbors
have that there would be the kind of follow-up that they would
know about too?
Ms. Armstrong. Well, what we have done in CFATS
implementation is to, number one, have a very publicly
accessible Web site where people can get information about the
program. It is a subset of the DHS main Web site. And we have
also established a tip line where an individual can either call
anonymously or call and identify themselves if they would like
to be contacted in follow-up to report any kind of security
concerns.
Mrs. Capps. Would they have any assurance or is there any
feedback, is there a procedure that they know this is being
addressed?
Ms. Armstrong. Well, if they identify themselves and
request follow-up, one of our staff will get back to them.
Mrs. Capps. And is there record of this having happened?
Ms. Armstrong. Yes.
Mrs. Capps. So that it is possible that there is a record
of citizens--well, how about if they are not satisfied with the
answer. Is there a possibility for legal action?
Mr. Beers. At this particular point in time, they can
certainly go to you as their Congressperson or to someone like
that, but we are dealing with information here in some cases
where the information that is relevant to the decision that we
might take for inaction or different action from what they were
suggesting or requesting. We are not in a position to reveal to
them the basis for which we would undertake to act differently
than they thought we ought to act.
Mrs. Capps. So if they feel that their reporting has not
been followed up upon to their satisfaction, they have no
further recourse at this time?
Mr. Beers. They can come to you.
Mrs. Capps. They can come to their Member of Congress?
Well, I am not going to pursue it any further, but this
committee has a long history with citizen enforcement and
citizen suit provisions. For close to 40 years this Committee
has included citizen enforcement provisions in each of our
environmental laws from the Clean Air Act to the Safe Drinking
Water Act, and we have now ascertained that this is a valuable
tool in enforcing our laws. I appreciate your thoughts on this
matter.
Thank you very much, Mr. Chairman.
Mr. McNerney [presiding]. Thank you. The gentlelady's time
has expired. The Chair recognizes himself for 7 minutes.
Mr. Silva, I just want to say, my father is a civil
engineer and I appreciate the work civil engineers do to make
our country work, and this is certainly an important part of
it. In your testimony, you mentioned that there was a security
gap or that a security gap exists. I am going to ask you sort
of an open-ended question here. What is not part of the
security gap? In other words, what do you feel good about in
terms of the security of our Nation's water supplies?
Mr. Silva. Well, right now I think that the gap is just in
terms of the fact that we don't have coverage in both the water
and wastewater sectors, and so with this bill and hopefully
with further action by the committee, as was mentioned, EPA
would take the lead in ensuring that those two sectors would be
covered for security purposes.
Mr. McNerney. OK, but is there anything you feel good about
in terms of what part of our water infrastructure do you feel
is secure and we don't need to worry too much about in terms of
terrorist attack or so on?
Mr. Silva. Well, again, right now we do have existing site
security plans and assessments that we do as part of the Safe
Drinking Water Act, but again, we feel that there could be a
gap and so, you know, we would feel more comfortable working
with DHS to ensure that all facilities are covered and that
there are more of the tier 1 and tier 2-type facilities out
there that they could be covered under this.
Mr. McNerney. All right. What are some of the more
significant challenges that the EPA might face in meeting the
obligations under this legislation and do you think that they
are adequately addressed in H.R. 3258?
Mr. Silva. Well, I think some of the more principal ones
probably would be funding for communities to perform the
inspections, to do the plans and also to carry out any kind of
changes that would come out of any IST type of review, and so
we comfortable if we get the legislation through and that we
have the funding that is available in the legislation that we
could work with States and communities to fund those types of
requirements.
Mr. McNerney. So you don't have any particular
recommendations then on improving the legislation?
Mr. Silva. Well, no, again, the recommendation would be
again to be able to cover both water and wastewater and somehow
get those two under the same umbrella through EPA, again,
working with DHS.
Mr. McNerney. OK, you did mention that in your testimony. I
appreciate that.
Mr. Beers, I am going to follow up on a question that Mr.
Markey asked or a similar question regarding exemptions for
small businesses, and I understand the need for small
businesses to be able to move forward and work without too much
hindrance but I see a potential for a significant risk with
regard to small business in terms of risk to the population.
How can you address that?
Mr. Beers. As I tried to convey, we have a process that
currently exists in which we are prepared to work with each of
the facilities that are covered for them to present their
assessments to work with them with respect to their development
of responses and plans in order that we can do this in a way
that both protects public safety and security and at the same
time doesn't undermine the economic viability of the small-
business concern. My point earlier, though, was, this is not an
issue of defining whether the risk is less important because
the size of the firm is small. The risk doesn't change with
respect to the size of the firm.
Mr. McNerney. Well, earlier I think the testimony was that
there are 6,156 facilities. I think that was the number that
was given. That is a large number. Do you feel that this
legislation will increase the risk of layoffs or some of these
facilities closing because of regulatory burdens that are being
placed on them by this legislation?
Mr. Beers. It is certainly not our intention to enforce any
legislation that Congress should pass that would automatically
have that effect. We will try to work with all of the concerned
facilities not to have that kind of an economic impact. That is
certainly where we start from.
Mr. McNerney. And Mr. Silva and Mr. Beers, you see
opportunity for cooperation between your two agencies. There is
not too much reason why there wouldn't be any hurdles or
personalities that will cause problems in enforcing this new
legislation?
Mr. Beers. One of the, I think, benefits of the process
with respect to working with this committee is the agreement
that our two agencies have come to, to think through how we
would work together and cooperate. Obviously the devil is in
the details and we will have some other issues that we will
want to have to work through but I think we have got a really
solid start here, an ability to work together with EPA in the
lead.
Mr. Silva. I would definitely concur with that.
Mr. McNerney. Well, thank you. That is all the questions I
have.
Mr. Upton, do you have any additional questions?
Mr. Upton. I just want to say, I know Dr. Burgess had some
questions, and they have a weekly Texas meeting, Texas
delegation lunch, and I might just ask that we keep the record
open for questions for members that did not come back so we
might be able to forward those questions to both of you for a
response and allow that to be placed into the record if I
might.
Mr. McNerney. Without objection.
Mr. Upton. No one is here to object.
Mr. McNerney. That concludes our first panel. Thank you for
coming out here to testify today.
We now welcome the second panel starting with Brian
Ramaley. Mr. Ramaley serves as president of the Association of
Metropolitan Water Agencies, the AMWA, which is an organization
representing the largest publicly owned drinking water
providers in the United States. Mr. Ramaley is also a director
of the Newport News Waterworks in Newport News, Virginia, which
provides drinking water to more than 400,000 customers. He
previously served as chairman of EPA's National Drinking Water
Advisory Council from 2004 to 2007. Thank you, Mr. Ramaley.
Martin Durbin, who is vice president of federal affairs for the
American Chemistry Council, where he is responsible for
directing federal legislative advocacy. In his previous tenure
leading the ACC's security program, Mr. Durbin was responsible
for public policy, advocacy, communications and operational
activities of the association as related to site, cyber and
value chain security for the business of chemistry. Welcome
aboard. Thank you for coming. Darius Sivin, Dr. Darius D.
Sivin. Dr. Darius Sivin served as the legislative
representative for the international union UAW since November
2007. His work with the UAW includes 5 years in the UAW health
and safety department where he conducted numerous workplace
entries to investigate health and safety issues at a wide
variety of facilities. Prior to joining the UAW, he was
employed by the Occupational Safety and Health Administration
and by the Washington State OSHA program. Dr. Sivin received
his Ph.D. in environmental and occupational health from the
Johns Hopkins School of Public Health and his master's in
environmental studies from Evergreen State College. Thank you
for participating. Stephen Poorman. Mr. Poorman presently
serves as the manager of environmental health, safety and
security for the Fujifilm Imaging Colorants. He also chairs the
Society of Chemical Manufacturing Affiliates' safety and
security committee and has been actively involved in chemical
security issues while serving in this capacity. Mr. Poorman's
previous experience includes serve as a program supervisor at
the Ohio Environmental Protection Agency and EHS manager with
responsibility for chemical security at chemical manufacturing
sites and corporate headquarters. Thank you for participating.
I will begin our panel's testimony with Mr. Ramaley. You
have approximately 5 minutes. Begin when you are ready.
STATEMENTS OF BRIAN RAMALEY, DIRECTOR, NEWPORT NEWS WATERWORKS,
AND PRESIDENT, BOARD OF DIRECTORS, ASSOCIATION OF METROPOLITAN
WATER AGENCIES; MARTY DURBIN, VICE PRESIDENT, FEDERAL AFFAIRS,
AMERICAN CHEMISTRY COUNCIL; DARIUS SIVIN, LEGISLATIVE
REPRESENTATIVE, CWA-UAW LEGISLATIVE ALLIANCE; AND STEPHEN
POORMAN, INTERNATIONAL EHS MANAGER, FUJIFILM IMAGING COLORANTS,
AND CHAIR, SAFETY AND SECURITY COMMITTEE, SOCIETY OF CHEMICAL
MANUFACTURERS AND AFFILIATES
STATEMENT OF BRIAN RAMALEY
Mr. Ramaley. Good afternoon, Mr. Chairman and members of
this Committee. My name is Brian Ramaley and I am the director
of Newport News Waterworks which, as you indicated, provides
drinking water to more than 400,000 people each day in
southeastern Virginia. I am also the president of the
Association of Metropolitan Water Agencies, or AMWA, an
organization that represents the largest publicly owned
drinking water providers in the United States.
In my testimony today, I am going to focus on H.R. 3258,
the Drinking Water System Security Act. AMWA understands that
H.R. 2868, the Chemical Facility Anti-Terrorism Act, is not
intended to apply to drinking water systems. However, we
opposed similar legislation last year, H.R. 5577, that would
have subjected drinking water systems to federally mandated
inherently safer technologies through the DHS CFATS program and
we would do so again this year if such a bill were proposed.
Turning to the Drinking Water System Security Act of 2009,
while H.R. 3258 is not perfect, there are several components of
the bill that enable AMWA to offer it support for that
legislation. First, it continues EPA's regulation of drinking
water system security, thus avoiding duplicative requirements
with DHS. Second, the bill maintains the important concept of
local choice in water disinfectant and does not allow EPA or
any other federal entity to broadly force drinking water
systems across the country to change their disinfection methods
or chemicals. Instead, the bill requires drinking water systems
that employ certain chemicals to evaluate the feasibility of
potential IST operations and decide on their own whether the
utility will begin using those alternates in the future. Only a
State drinking water enforcement agency, not EPA, is given a
direct opportunity to review a utility's analysis and mandate
the change in disinfectants after considering factors such as
feasibility, cost and possible water quality implications. I
must point out that AMWA's acceptance of this State-level
review is based on our expectation and experience that State
drinking water enforcement agencies, which have an awareness of
local water utility operations, will act responsibly when
reviewing a utility's disinfectant choice. AMWA could not
support this approach if EPA or another federal agency had the
direct ability to dictate a State or local water disinfection
decision.
Additionally, the bill reflects AMWA's request that the
current civil penalty, criminal penalties, I should say, of up
to 1 year in prison and substantial fines be maintained for
individuals found to have unlawfully distributed protected
utility information. Any weakening of the penalties for the
unlawful disclosure of protected information would increase the
changes of an unauthorized leak of sensitive utility security
documents and such a leak could provide terrorists and
criminals with a detailed account of where and precisely how a
utility's security could best be compromised.
The legislation does direct EPA to formulate standards to
facilitate the appropriate sharing of protected information
with entities such as local first responders, certain water
utility employees and their union representatives. AMWA looks
forward to participating in EPA's development of standards that
will set the ground rules for how this information may be
accessed.
Some suggested improvements: AMWA hopes to continue working
with the committee and other members of Congress to further
strengthen H.R. 3258. For example, the legislation should
include an appeals process that a utility may initiate if they
disagree with their primacy State agency's order to adopt an
alternate water disinfection method. Because the decision on
water disinfectants is so critical to public health and public
health protection, I believe the opportunity to be heard in an
appeal process is a reasonable request.
AMWA also remains concerned that the legislation would
apply only to the Nation's drinking water systems while H.R.
2868 as approved by the House Homeland Security Committee would
regulate the security of wastewater utilities under DHS CFATS
program. I think we have heard today that there is some
agreement that that should fall under EPA as well. This
approach would be especially problematic for municipalities
that operate both water and wastewater systems as do many AMWA
members as it would force the employees of such systems to
comply with two varying sets of security rules issued by two
different federal entities. To resolve this issue, AMWA
recommends and supports that the security of wastewater
utilities be regulated under the same EPA program that this
legislation would apply to drinking water systems and that both
drinking water and wastewater utilities remain explicitly
exempt from CFATS.
In closing, I want to thank the Committee for working with
AMWA on H.R. 3258. Because of the improvements made to the
bill, AMWA is pleased to offer its support and hopes to
continue to work with the Committee to further strengthen the
bill in the weeks and months ahead.
That concludes my testimony, and I will defer answering
questions until the rest of the panel speaks, if that is your
choice.
[The prepared statement of Mr. Ramaley follows:]
Mr. McNerney. Thank you, Mr. Ramaley.
Mr. Durbin, you may begin.
STATEMENT OF MARTY DURBIN
Mr. Durbin. Mr. Chairman, Mr. Upton, thank you very much
for the opportunity to again speak with you on this very
important subject on behalf of the members of the American
Chemistry Council.
Having worked on this issue for 8 years and testified
before Congress on numerous occasions, I know that this issue
is always accompanied by heated rhetoric and emotion.
Regardless of what I consider to be significant actions taken
by all those involved, enormous progress has been made. So
while there are clearly differences on how best to achieve the
objectives of securing our Nation's chemical facilities, I
think it is useful to reflect on what has been accomplished.
First, after September 11, ACC and many others in the
chemical industry stepped up and implemented serious, stringent
security programs at their facilities before there was any
specific government direction. Second, Congress stepped in and
enacted national legislation to ensure that these assets, their
workers and the communities where they operate are protected.
And third, DHS has acted swiftly to develop and implement
comprehensive security regulations. CFATS is by far the most
robust, comprehensive and demanding chemical security program
to date and DHS should be commended. ACC believes CFATS
provides a solid foundation and that Congress should provide
DHS the necessary staff and resources to ensure continued
success.
As Congress now analyzes CFATS and identifies areas for
improvement, ACC is committed to being a constructive partner.
While our views are not always in alignment, I want to
acknowledge the willingness of the Energy and Commerce
Committee and its staff to seek our input and consider our
viewpoint. We have had constructive discussions and we hope to
continue working together to make a smart regulatory program
even better. I believe our common goal is greater than our
differences.
ACC's record of accomplishment and cooperation with
Congress, DHS and other agencies is well established. Since
2001, our members have invested nearly $8 billion in security
enhancements under our own Responsible Care Security Code and
we continue to support strong federal chemical security
regulations. Our security code not only provided a model for
chemical security programs in New Jersey, New York and Maryland
but it was also recognized as an alternative security plan
under the U.S. Coast Guard's Maritime Transportation Security
Program.
Turning to the DHS program, at each step of the regulatory
development process, our members volunteered to pilot core
program elements and assist DHS in rapidly and successfully
developing the tools needed to implement the program and
swiftly meet their deadlines. CFATS is a tough yet flexible
program that allows facilities to utilize a full range of
potential security enhancements including inherently safer
approaches to address potential security vulnerabilities. This
is exactly what a strong, smart regulatory approach must do:
set a high bar through performance-based standards and then
hold facilities accountable.
The legislation being considered today by this committee
represents an important step toward making CFATS permanent. We
are pleased to see H.R. 2868 reflects many of the security
measures that will be implemented under CFATS and we appreciate
the efforts made to minimize duplication of effort by
facilities that have already acted or will take further action
under the program. However, I would like to highlight just a
few provisions we have discussed with the committee where our
members continue to have questions and concerns. For example,
we believe the provision that would give DHS authority to
mandate process changes is unnecessary. Through its use of
risk-based performance standards, CFATS drives each facility to
consider all possible risk reduction options including
inherently safer approaches while developing a site security
plan. While you can't mandate innovation, CFATS does allow DHS
to unleash the ingenuity, expertise and resources of the
chemical sector.
In addition, we feel the provision that provides for
private right of action is counterproductive to the ultimate
success of CFATS. Unlike environmental statutes, CFATS is not a
series of prescriptive statutory measures like emissions
standards or discharge limitations. It will therefore be
difficult for a citizen or a judge to ascertain if a standard
is being met or to decide what needs to be done to address an
alleged deficiency. However, let me clear that we fully support
strong enforcement so we would again urge Congress to provide
DHS with the necessary tools and resources to ensure
compliance.
Also, since employees are the first line of defense when it
comes to chemical security, we appreciate provisions that
address employee involvement. One of the core components of
ACC's Responsible Care Security Code stresses employee
involvement including training, drills and guidance, so we
would like to continue to work with the committee to ensure
that the right people with the right knowledge are involved in
our efforts to secure chemical facilities.
The crucial partnership between our industry and the
federal government requires each of us to do our part. ACC and
its member companies are committed to safeguarding America's
chemical facilities and we will continue to work with Congress
and DHS in that spirit. Thank you.
[The prepared statement of Mr. Durbin follows:]
Mr. McNerney. Thank you, Mr. Durbin.
Mr. Sivin, would you please begin your testimony? Now, we
just got called so we have about 10 or 15 minutes before we
need to leave, so there is plenty of time.
STATEMENT OF DARIUS SIVIN
Mr. Sivin. Mr. Chairman, Ranking Member Upton, members of
the Subcommittee, thank you for the opportunity to testify
today. I am Dr. Darius Sivin representing the CWA-UAW
Legislative Alliance. We represent more than 2 million active
and retired workers who are members of the Communications
Workers of America and of the international union UAW. Both
unions represent members who work at facilities potentially
covered by the legislation before us today. The CWA and the UAW
strongly support H.R. 2868, the Chemical Facility Anti-
Terrorism Act of 2009, and H.R. 3258, the Drinking Water System
Security Act of 2009. We urge the subcommittee and the entire
House to grant prompt and favorable consideration to these two
bills. We would not like to see delay beyond the 1-year
reauthorization already in process. We have heard how enhancing
the regulation now might strand some costs. Additional delay
will offer the opportunity for further costs which will
ultimately be sunk and stranded.
Chemical security is an issue of great importance to
organized labor because our members get hurt first and worst in
case of any attack. CWA and UAW believe that government should
have the authority to require the higher-risk tiers to
implement their own plans to reduce the consequences of an
attack. We have heard examples supposedly of how this would
result in bad solutions being imposed on industries that would
increase risk. We disagree because the language of the bill
clearly says that a solution cannot be imposed unless it would
reduce risk. The only thing that would have to happen is a
facility would have to submit an analysis showing that a
solution would not reduce risk and then they would not have to
implement it.
We are very pleased that members on both sides of the aisle
are concerned about protecting our jobs. Nothing is more
important to the men and the women of the labor movement than
the protection of jobs. We want to make it clear that we do not
believe that anything in the MRC provisions of this
legislation, H.R. 2868, as introduced is a threat to jobs.
There does not need to be any additional requirement for
analysis or administrative law review to protect jobs. We think
that the addition of additional requirements to the bill as
introduced would only make it harder to implement necessary
security measures and would not add any protection of jobs.
Further, we would like to strongly support Under Secretary
Beers' statement that the size of the risk is not related to
the size of the business. We would like the subcommittee to
move very, very carefully if it seeks to protect small
businesses. For example, using the Small Business
Administration's definition of a small business could exempt
very high-risk facilities including one that puts 12 million
people at risk. We think it is very important that government
be able to give weight to the degree of the security risk as
well as the size of the security.
We are quite concerned about some of the background checks
because we think they could provide an opportunity for rare but
very real unscrupulous employers to go on fishing expeditions,
and if a fishing expedition is undertaken in the name of
security, it would be very difficult to question it.
We would like to see the following improvements made to
H.R. 2868. First, adverse employment decisions should be made
only pursuant to a determination by DHS that an individual's
offenses could cause the individual to be a terrorism security
risk. Second, employees subject to adverse employment decisions
should be informed of the basis of the decision and that they
have a right to appeal and/or file for a waiver as provided by
H.R. 2868. Third, an employee subject to an adverse employment
decision should have the option to exercise any rights they
have under a collective bargaining agreement without losing the
right to appeal. We are pleased with the language that supports
participation of employee representatives in both bills. We
would like to see in the water bill the additional thing
whereby employee representatives would have a right to a copy
of the MRC provisions after they are jointly developed, and we
do not believe there should be any additional stipulations as
to how employee representatives should be chosen and we do not
believe employee representatives should be subject to criminal
penalties for disclosing vulnerability information to those who
have a legitimate role in fixing problems.
We think that H.R. 2868 should be amended to give employees
and their representatives the right to accompany an inspection
similar to that which they have under OSHA. We also believe
that to develop public confidence, there needs to be additional
information made available to the public to allow for
government accountability for enforcement.
Finally, I want to reiterate that we support favorable
action on both these bills and we look forward to continuing to
work with the Committee to improve them. Thank you on behalf of
the Communications Workers of America and the international
union UAW.
[The prepared statement of Mr. Sivin follows:]
Mr. Markey. Well, thank you so much, and we have time to
get in the final opening statement of our witnesses, Mr.
Poorman, and then we are going to recess again to attend to the
roll calls on the House Floor and we will then return to
complete the session.
So whenever you are ready, please begin.
STATEMENT OF STEPHEN POORMAN
Mr. Poorman. Good afternoon, Chairman Markey, Ranking
Member Upton, members of the Subcommittee, I am pleased to
testify before you regarding H.R. 2868, the Chemical Facility
Anti-Terrorism Act of 2009.
I speak today on behalf of the Society of Chemical
Manufacturers and Affiliates. SOCMA represents the batch and
custom chemical manufacturing industry. Over 70 percent of
SOCMA's members are small businesses that employ more than
100,000 workers nationwide. From pharmaceuticals to cosmetics,
soaps to plastics and all manner of industrial and construction
products, SOCMA members make materials that save lives, make
our food supply safe and abundant and enable the manufacture of
literally thousands of other products. For over 88 years SOCMA
has partnered with the federal, State and local governments to
protect America's critical infrastructure.
SOCMA encourages Congress to make the current risk-based
CFATS program permanent, or at least to reauthorize it for
another year. The CFATS program protects our Nation from
terrorist attacks by requiring thousands of chemical facilities
nationwide to deploy hardened security measures. Our members
have spent billions of dollars before and now under CFATS to
secure their facilities and operations.
We support those aspects of H.R. 2868 that would codify the
current CFATS program but we have serious concerns about two
aspects of the bill: the requirement for mandatory
implementation of inherently safer technology and the citizen
suit provision. These provisions are inherently unwise and
potentially counterproductive to our shared goal of preventing
terrorist incidents. They would slow and possibly undo the
progress that industry and DHS have made thus far.
First, inherently safety is not a simple technology or fix
despite what you may hear today. Inherent safety is a
philosophy by which engineers, operations and management work
together to reduce the level of risk that may be associated
with a chemical process lifecycle. Inherent safety analysis
must be conducted very thoughtfully by people who understand
the process. Empowering even well-intentioned regulators to
second-guess the judgments of the engineers who know their
processes best could result in actually increasing or
transferring overall risks. It could also wreak economic havoc
on regulated facilities, especially small businesses. Makers of
active pharmaceutical ingredients and other federally regulated
substances would be most at risk. For example, one SOCMA member
is a small business regulated under both CFATS and the rules of
the Food and Drug Administration. This company produces an
active pharmaceutical ingredient used in the treatment of life-
threatening bacterial infections. If a mandated safer
manufacturing process was outside the terms of the FDA's
approval, the company would likely be forced to discontinue
production, lay off workers and increase our Nation's
vulnerability to grave health threats. Production of that
crucial ingredient would likely shift to foreign countries
where FDA is less able to monitor quality standards. The
world's experts in chemical engineering have told Congress that
there is no consensus methodology to measure whether one
process is inherently safer than another. For this reason and
others, they have consistently recommended against regulating
inherent safety for security purposes.
Today, the Administration now supports mandating IST for
tier 1 and tier 2 facilities when unspecified key criteria are
met. We acknowledge that DHS officials are sincerely trying to
do their very best under ever-mounting political pressure but
it is imperative for Congress to listen to chemical engineers
and not political scientists. Consistent with the experts'
recommendations, Congress should direct DHS to submit to a
report that explains in detail how DHS intends to compare
various IST alternatives. Such a report should be developed
with broad participation by the expert community and
stakeholders. DHS should be allowed to focus all its other
resources on completing the current CFATS program.
Secondly, we strongly oppose applying environmental laws
citizen suit provisions to security laws. We are concerned that
no matter what protections courts impose, sensitive security
information inevitably will be disclosed and could be used by
terrorists to target a facility and its surrounding
communities. A citizen suit provision will also divert needed
resources from DHS's efforts to finish implementing and
enforcing CFATS. If people believe they see security
weaknesses, they have effective options now such as calling the
CFATS tip line at 1-877-FYI-4DHS.
Again, SOCMA supports permanent risk-based chemical site
security standards and we urge Congress to authorize the
existing CFATS program. I look forward to your questions.
[The prepared statement of Mr. Poorman follows:]
Mr. Markey. Great. Thank you so much, Mr. Poorman.
Again, we apologize. We will have to take a recess for--why
don't we schedule about 15 minutes from now and then we will
come back. I think it will be 15 minutes this time. The
Committee stands in recess.
[Recess.]
Mr. Markey. Welcome back, everyone, and we apologize for
having the United States House of Representatives meet
simultaneously with this hearing. It is an unavoidable conflict
that unfortunately is characteristic of my life in 33 years in
the institution. It would be so much better if they would plan
their lives around ours rather than the other way around but
like so many other things in life, as William Shakespeare said,
the will is infinite but the execution is confined. And so we
are confined by these roll calls on the House Floor and we
return here to complete the hearing with our gratitude to the
witnesses and to everyone else, the remaindermen of history who
are still sitting out in our audience and whatever C-SPAN
audience we still have left for this vitally important issue.
There is kind of a ``get a life'' quality to this hearing at
this point for anyone who is still watching and we appreciate
the attention which is being paid for whoever is out there in a
non-somnolent state.
So let us turn, let me recognize the ranking member, Mr.
Upton, if he would like to ask his questions at this time.
Mr. Upton. Well, thank you, Mr. Chairman. I do have a
number of questions.
First I would like to put a couple of letters into the
record and ask unanimous consent that that happen.
[The information appears at the conclusion of the hearing.]
Mr. Markey. Without objection.
Mr. Upton. I have a number of questions, and I talked to a
number of members on the Homeland Security Committee during
this last series of votes and I know that they have marked up
their bill earlier this year, and I don't know if we have a
date of when you are thinking about what the next step is, but
the questions that I have do relate to the economic
consideration of these facilities and I accept the statement
that was made on the last panel. Mr. Durbin, in your read of
this bill, what does this do to your membership? Do we see as
some have suggested that a number of companies will pull up
stakes and go someplace else? What is the economic impact as it
relates to jobs? And certainly I want these jobs to stay here
but what is your sense as you have talked to your members?
Mr. Durbin. Well, Mr. Upton, let me take a step back first
and let you know what our member companies have done to date,
you know, because they really looked at the issue of security
at their facilities as their responsibility and a cost of doing
business and to date have already before having to implement
under CFATS have invested $8 billion to----
Mr. Upton. Billion?
Mr. Durbin. Billion, to enhance security at their
facilities, and we represent roughly 2,000 facilities around
the country. So these are obviously investments that have
already been made. We do expect that the CFATS program will
require some additional investment. It is kind of hard to put a
number on exactly what that will be. You know, DHS in some of
their earlier testimony have estimated, you know, an additional
$8 billion across the industry, across all of the regulated
facilities to implement CFATS. But as far as what additional
costs will come about through CFATS or through this bill,
again, many of those investment decisions have been made, are
being made and have been part of the plan. The extent to which
additional requirements might add to that, I can't say that
they won't. I think it certainly is going to--there will be
more resources that will have to be put into further analysis
and potentially further investments. But again, at this point
there is no way of quantifying, here is what the cost will be
or here is how many facilities will or will not, you know, end
up having to make significant changes or consider not operating
anymore.
Mr. Upton. Now, Mr. Poorman, you ended your testimony
talking about the citizen lawsuits and the potential for what
is pretty secure information relating to the security of these
facilities to be in fact opened up. Is that right?
Mr. Poorman. Yes. The concern that we have is that the
information that is put into DHS through their secure
information systems would be leaked out and could get into the
wrong hands and create situations that obviously would not be
desirable.
Mr. Upton. Is any of that information now available to
folks, I mean in terms of security relating to any of these
thousands of facilities that are out there? Is it pretty
difficult to be able to obtain at this point?
Mr. Poorman. Yes, it is, and it has been that way even
since when we did other pieces of legislation and regulatory
programs such as RMP. The Justice Department made sure that
that information was protected as well because it does have a
security aspect.
Mr. Upton. Dr. Sivin, is the UAW or the Communication
Workers taking a position as it relates to the release of
information as to the secure aspects of those facilities? Do
they have a position on that part of this bill?
Mr. Sivin. If you mean facility-specific information such
as that contained in security vulnerability assessments and
site security plans, the only people we favor having access to
that information are those employees and their representatives
who participate in developing those plans. If you mean other
types of government accountability information such as is a
particular facility covered by the statute and the regulations,
in a general sense is it in compliance, we believe that the
public at large needs to have that kind of information in order
to know that all responsible parties are doing their jobs.
Mr. Upton. I know my time is expiring rapidly here but is
it your sense that if this bill were to move forward ultimately
to the President's desk, what impact would it have on your
membership in terms of being able to continue to operate as
they are doing now? Do you think that this in fact would
provide as an incentive for companies to move someplace else
outside of the United States borders?
Mr. Sivin. Reading from the language of the bill, sir, it
says that the Secretary of Homeland Security must show that
implementation of methods to reduce the consequences of a
terrorist attack would not significantly and demonstrably
impair the ability of the owner or operator of the covered
chemical facility to continue the business of the facility at
its location. That is to say if a facility could show that it
would have to move from Adrian, Michigan, to Toledo, Ohio, the
Secretary of Homeland Security has no authority to require
implementation and certainly if a facility could show that it
would have to close its doors. Therefore, I expect zero impact
on employment.
Mr. Upton. Dr. Durbin, do you accept that?
Mr. Durbin. Well, thank you for promoting me to doctor.
Mr. Upton. Oh, I am sorry.
Mr. Durbin. That is quite all right. I would just say that,
you know, again, there are provisions in that bill that we
continue to have concerns with that we think would be more
difficult to operate and as I mentioned in my testimony about
the civil lawsuits and the IST provisions. However, we are
eager and anxious to continue working with the committee to
make changes to the bill as it moves forward.
Mr. Upton. Thank you. I yield back.
Mr. Markey. Great. You didn't just call him Mr. Chairman by
accident, did you? Because the fact that he can make you a
phony doctor can't make him----
Mr. Upton. Once the chairman, always the chairman. Isn't
that what it is?
Mr. Markey. Let me turn and recognize the gentleman from
Texas, Mr. Green.
Mr. Green. Thank you, Mr. Chairman, and I always heard when
I was a State legislator, once a State senator, always a State
senator, but I don't get called that in D.C. very much, only in
Austin.
Mr. Durbin, H.R. 2868, you mentioned in your testimony has
civil suits for an uninjured party, and in my open statement
you may have heard that I have some concern about that. Would
you feel more comfortable if we actually limit it to someone
who could show harm, whether it be an employee or a neighbor,
similar or what current law is, you know, someone who had
actually been harmed?
Mr. Durbin. Well, I think that is certainly true that--I
think one of the complications you have is being able to show
harm under a security statute as opposed to environmental
statute as we have discussed before, but certainly finding ways
of limiting the applicability is going to improve that.
Mr. Green. Well, and maybe you can comment because I am
familiar with our public's right to know statutes that all my
plants have their committees that they meet with and I don't
have any problem with plants and people who live near the
plants or work there knowing what is going on. I do have some
problem with someone across the world or somewhere else who
really shouldn't be interested in what is going on in a
chemical plant or refinery in my district but the folks who
live there because of the security issue. That is why I know
the security issue is something--and we had to deal with that
after 9/11 that we wanted, in fact we crafted legislation to
show that someone living near there had that right but someone
in a cave in Afghanistan looking on the Internet shouldn't have
that capability, and so that is why hopefully we will be able
to deal with that in this bill.
I know sometimes IST is confused as a new concept but
inherently safer technology has been around for many years and
I know most businesses in production or manufacturing use that.
Is the chemical industry opposed to legislation that requires
companies to assess IST?
Mr. Durbin. Well, again, I will only speak for ACC. I think
because ACC members are already required to assess inherent
safety in their own operations under the security code, under
the Process Safety Code that existed prior to 9/11, and I would
hasten to add that in the State of New Jersey they require
consideration of IST. Our companies operate there as well. That
program frankly has been very effective that ACC members would
be comfortable with a requirement to consider because again, I
would also say we think that the regulations as they are today,
when you are trying to meet performance-based standards, you
are going to have to consider all the options on the table.
Mr. Green. Well, and I know New Jersey, the State does
mandate--the State of New Jersey doesn't have where they can
mandate the IST, they just can mandate the consideration.
Mr. Durbin. Correct.
Mr. Green. Dr. Sivin, in your testimony, several
recommendations you believe on the importance to approve the
legislation, particularly in the background checks. Can you
elaborate on your suggestion the bill should codify statutory
language that protects individuals who have fully equivalent
federal background checks? And you heard my comments earlier.
If I have a plant that, you know, is under Maritime and they
have the TWIC card, transport worker identification card, and
yet they have a plant that is not covered by that, would you
feel comfortable with the TWIC card or that background check
that the TWIC card should also stand in the place of what is
now CFATS or this legislation?
Mr. Sivin. Sir, that is precisely the kind of thing we were
thinking. If someone has already undergone a background check
and has a TWIC card and let us say they are transferred from
the plant with the waterfront to the other plant, we think
since they have already undergone a background check they
shouldn't have to undergo another one under CFATS. That is
exactly the kind of thing we were thinking of.
Mr. Green. I would hope this legislation would give that
guidance to Homeland Security because they are actually the
same agency. I mean, Coast Guard obviously works with Homeland
Security, and like I said, in our district in Houston after 9/
11 if we didn't have Homeland Security partnering with us with
the Port of Houston and our local law enforcement, federal
enforcement and our refinery and chemical industry, we wouldn't
be near as safe as we are today because there has been great
cooperation in East Harris County on what we try to do, I mean
obviously for the folks who live and work there.
Mr. Ramaley, I have heard concerns from drinking water
systems about unfunded mandates that arise from this bill. If
the State regulatory agency directs a drinking water system to
implement IST, do you feel the legislation provides enough
assistance to water systems to defray the cost of any of the
inherently safer technology requirements?
Mr. Ramaley. I think you are asking me if I would consider
the imposition of IST on water and wastewater utilities an
unfunded mandate, and at this stage I am not aware of programs
that would provide money to water utilities for making
technology switches to accommodate chemical changes and things
like that. So yes, it will have some impact, and I don't
believe that there is adequate funding. I know there is not
adequate funding to cover those costs at some of the Nation's
largest drinking water utilities where those costs would be
significant.
Mr. Green. And I have shared this concern with a lot of
other folks. You know, I have part of the city of Houston,
which is a huge water supplier, but I also have very small
water suppliers, some of my smaller communities, and the city
of Houston may be able to do some of the things but some of my
smaller suppliers can't do it because their tax base is not
near as large as the city of Houston.
In your testimony you mentioned the EPA should be the lead
agency for chemical security on both drinking water and
wastewater, and you know the two pieces before us today place
drinking water systems under EPA and wastewater systems under
DHS. How many facilities nationwide have joint drinking and
wastewater systems and what kind of regulatory burden would
arise if these facilities were shifted to two different
security regimens?
Mr. Ramaley. I can't give you a precise number but I can
tell you that many municipalities around America operate both a
water and the wastewater facilities. My guess would be tens of
thousands.
Mr. Green. And I know in my area everyone who has--you
know, we may have a freshwater district that may not have
wastewater but the municipalities all do it themselves.
Mr. Ramaley. Many of the very large and countless small
cities and towns have both water and wastewater operations.
What was the second part of your question?
Mr. Green. Well, what regulatory burden would arise with
these facilities being subject to two different security
regimens, you know, what EPA may require as compared to the
Department of Homeland Security?
Mr. Ramaley. In those situations where you have utilities,
municipal utilities in particular, that are both responsible
for both facilities, you would have to have staff trained in
both sets of procedures. There are other complicating factors
as well. For example, the Information Sharing and Analysis
Center that both water and wastewater facilities depend on for
security information would have to be up to speed in both the
DHS and EPA requirements to provide that information because
that is shared and accessed by both water and wastewater
systems. So there are a number of complicating factors--
personnel training, investments, different procedures. There
are quite a few complications.
Mr. Green. Mr. Chairman, I know you have been patient, and
thank you.
Mr. Markey. I thank the gentleman very much, and the Chair
will recognize himself for some questions.
And I will just begin by pointing out that on page 40 of
the bill in dealing with the handling of sensitive information
in judicial proceedings that on page 40 it says ``in a
proceeding under this title, protected information described in
subsection G or related vulnerability or security information
shall be treated in any judicial or administrative action in a
manner consistent with the treatment of sensitive security
information under section 525 of the Department of Homeland
Security Appropriations Act of 2007,'' in other words, those
protections that in 2006 were put in by the Republican Congress
and signed by George Bush. So the provision actually states
that that should be the standard and I think that was a good
standard that we agreed upon in a bipartisan fashion back then,
and I just wanted to make sure that everyone understood that
those safeguards will still be in place because there is a
little bit of confusion on that.
I would also add that we just talked about funds for
implementing IST, and on page 36 of the legislation we
authorized $125 million for the EPA to be able to ensure that
there are grants to water systems to assist them with cost as
well as more funds for other costs of compliance, so I just
want to make sure that everyone understands that is also in the
legislation.
Mr. Ramaley.
Mr. Ramaley. Yes, I would just comment, $125 million spread
over the Nation's largest water and wastewater utility systems
in my opinion would not go very far, but I appreciate that
information.
Mr. Markey. Well, you know, we have looked at the question.
We think that can do the job. And so that is our perspective on
it. But we can continue to talk about this in terms of what the
proper funding is.
As you know, I have been a longstanding advocate for the
use of inherently safer technologies. I have spent the last 5
years attempting to ensure that comprehensive chemical security
legislation includes language that reduces the consequences of
terrorist attacks by requiring facilities to switch to safer
chemicals or processes when it is economically and
technologically possible for them to do so, and I met many of
you during my 6 years on the Homeland Security Committee making
the amendments on IST and making the amendments on water safety
and all of down the line so we have a long relationship at this
point since 9/11 with my membership on the Homeland Security
Committee. So I would like to thank all of you for being here
and for your colleague, Judah Prero, for all of your work and
efforts on trying to narrow differences and to come up with
potential solutions, and I want to continue to work with you
towards that goal.
First of all, isn't it true that all ACC companies are
required to assess already whether they could utilize safer
chemicals or processes under your Responsible Care Code and
that the American Chemical Council therefore is supportive of
including that requirement in the legislation?
Mr. Durbin. Mr. Chairman, first of all, let me also
acknowledge what a great discussion we have had with your staff
as well and I think we have been able to make some real
progress trying to find some common ground but as I was saying
to Mr. Green as well, yes, within the ACC security code, member
companies do have to analyze inherent safety as they are doing
vulnerability assessments and putting their plans together, and
also in the State of New Jersey are operating under where they
are required to consider IST and that program is considered to
be working very effectively and the State of New Jersey I think
will tell you the same. So yes, our membership at this point is
comfortable with the idea of mandatory consideration of IST as
we are already doing.
Mr. Markey. Thank you. The Department of Homeland Security
puts facilities into different risk-based tiers based on the
type of risk the chemicals at the facilities pose. If the
chemicals are highly toxic and the facility is located in a
densely populated area, the facility would be tiered because an
attack to cause the release of those chemicals might be the
greatest risk. If the chemicals are highly toxic but the
facility isn't located near any residential community, the
facility would be tiered because a terrorist would be more
likely to steal those chemicals and blow them up somewhere
else. Do you think that we should be looking at the type of
risk that facilities pose as we consider which facilities
should be subject to authority to mandate the use of safer
chemicals or processes, Mr. Durbin?
Mr. Durbin. Yes, in general, ACC members would clearly say
that risk should always be used to help determine the priority
levels of which facilities should be taking which actions.
Mr. Markey. Do you agree with that, Mr. Poorman?
Mr. Poorman. Yes, we do agree with that.
Mr. Markey. Dr. Sivin.
Mr. Sivin. Yes.
Mr. Markey. And Mr. Ramaley.
Mr. Ramaley. Yes.
Mr. Markey. Great. Thank you. So I think it makes a lot of
sense to look at risk obviously, and that will help us then to
obviously put different facilities in the correct tiers. Do you
think that limiting the authority to mandate the use of safer
chemicals or processes to the tier 1 and 2 facilities that have
been deemed by DHS to pose a risk of a chemical release might
be a more targeted way for Congress to proceed, Mr. Durbin?
Mr. Durbin. Well, again, as the Administration has now made
very clear that they are going to--you know, they have taken a
position in favor of having some limited IST mandate on
implementation, we certainly want to continue to be part of the
discussion on how best to do that so yes, by limiting it in
that way that would certainly be a more focused way of getting
to that solution.
Mr. Markey. And we want to work with you and all the other
parties here to make sure that we accomplish that goal.
During the Homeland Security Committee markup, an amendment
was offered that would allow a facility to appeal to an
administrative law judge if it felt that the Department of
Homeland Security's initial IST determination was inaccurate.
It seems to me that given the highly technical nature of the
safer processes and chemicals involved that a more suitable
appeal might be more scientific in nature. Would you like to
talk about that, Mr. Durbin?
Mr. Durbin. Certainly, and I think again, as our members
look at this issue, as I said, we are very comfortable with the
idea of mandatory consideration. Going further than that, one
of the concerns that we have expressed with regard to the
provisions in the bill was the lack of a robust appeals process
if there were a determination. So by adding one, I think that
is helpful and I would certainly agree that having folks who
are technically proficient in the technologies available here
and the chemical engineering and the process safety and health
and what have you is going to be a more appropriate way of
handling that.
Mr. Markey. Thank you. I appreciate that. You know, I
remember in my first year of college there were 200 of us in
pre-law and then you had the 200 over there in theology and
philosophy and then you had the 200 kids who were going to be
doctors, so it was 200, 200, 200. And then they had organic
chemistry freshman year for those future doctors and then
sophomore year we had 300 people in pre-law, and then when the
additional chemistry and other courses were given they kept
building the number of lawyers, and while I am one of those
people who became history and political science majors, our
technical capacities are more limited, let us say, than those
people who stayed the course. So I think it would be helpful
for us to find a way to have scientific determinations be made
even on appeal that reflect scientists making these evaluations
so that we don't wind up having some court process where, with
all due respect to myself and any others in this room that
might be offended by my comments, making the determinations. So
we thank you for that.
I tell you what I am going to do. Let us give each 1 minute
to summarize to us what you would like the committee to
remember as we are moving forward on the creation of this
legislation just so that we have got your kind of summary
statements in our brain. So we will begin with you, Mr.
Poorman.
Mr. Poorman. Thank you once again for allowing us to be
here today. Really, the summary would be that we really would
like to see the CFATS program extended. A lot of good work has
been done. We want to continue that good work. In regards to
the IST issue, we want to just be cognizant of the myriad of
programs that we are subject to. Our membership in particular,
we have a lot of different chemical processes represented
there, and when we make our material, we are making it under
registration of different agencies, and if we are asked by DHS
to discontinue the use of a chemical compound, it could have
ripple effects that could reach out into even consumer safety
where certain active ingredients for drugs won't be available.
So we want you to keep that in mind, and also make sure that as
you said, we agree that there needs to be really a technical
review and we feel our people, our engineers, our chemists are
best qualified to determine that per process.
Mr. Sivin. In my summary I would like to point out again
that the only thing that the bill authorizes the Department of
Homeland Security to require implementation of is a facility's
own plan. I cannot imagine that some of the examples we have
heard today, a plan that would violate the FDA or a plan that
would actually make the facility more dangerous would ever be
in a facility's plan. I would like to reemphasize that we do
not believe that the ability to mandate this because of the
language that already exists in the bill is a threat to jobs. I
also would like to emphasize that we are concerned about the
background-check language in the bill and we do believe it
needs to be improved to provide adequate protection against
unfair adverse employment decisions. And finally, I want to
emphasize that I think that certain parts of the employee
participation need to be enhanced.
Mr. Markey. Thank you, Doctor, very much.
Mr. Durbin.
Mr. Durbin. Thank you, Mr. Chairman. At its core I think
ACC members firmly believe that the CFATS program that is in
place now is a very solid foundation, a good program, and we
want to make sure we can continue the success of that program
and are committed to working constructively with you on finding
areas that may need improvement. Again, with regard to the IST
provisions in here, our members continue to have concerns about
that but we are willing and eager to continue working with you
and the Committee on those issues, and as I mentioned in my
testimony, we as well continue to have concerns on the civil
lawsuit provisions, but again, I think there is much more
common ground here than there are differences to help us get to
the objective of protecting these facilities.
Mr. Markey. Thank you very much.
And you have the final word, Mr. Ramaley.
Mr. Ramaley. Yes. First of all, I appreciate the working
relationship between AMWA and the Committee staff in developing
the legislation. As you know AMWA supports 3258. A few points.
We believe EPA should continue its oversight of the drinking
water sector and our exemption from DHS's CFATS and IST
programs must continue. We also believe that wastewater should
be included under EPA as we testified. We think that security
information resulting from vulnerability assessments and
gathered information must be protected and must be strongly
protected against public disclosure. We believe the bill now
does that. And maintaining the current criminal penalties is
important and we do look forward to working with EPA to
formulate the appropriate standards for the sharing of that
information as needed. Thank you.
Mr. Markey. Thank you, Mr. Ramaley, and we thank each of
you for working with the committee thus far and again we would
like to keep a close working relationship with you and work
with the minority as well on these issues. It has been 8 years
since al-Qaeda attacked and obviously I am very sensitive to it
because Mohamed Atta and the other nine were right there in
Boston in my district preparing for that attack. And in 2000, I
will be honest with you, Abdul Ghani Misqini, who was one of
the millennium bombing plotters for the LAX, he came in from
Algeria off of an LNG tank and just jumped off in Everett,
Massachusetts, as did other al-Qaeda into the United States
into my district, and that was an LNG facility that was
unprotected. Now, they had a different plan and it involved the
L.A. airport and thank God that they were apprehended before
that happened but I am very sensitive to that huge LNG
facility, to the port, to Boston, to what happened and to my
constituents who were on those planes and who actually were
working in New York City at the time. So it is something that I
focused on very closely and why I asked the Speaker to put me
on the Homeland Security Committee so I could make sure that we
did in protections that nuclear weapons could not be put on
ships that could then be detonated in the harbor of Boston but
any harbor in the United States, that we screen for cargo on
planes that we weren't screening. We were screening the shoes
that people wore and the computers that they were putting
through but not the cargo that went under their feet of
passengers who weren't even on the plane, and chemical security
into this as does water security. We know they are out there.
We know they want to hit. We know that they would in fact
implement their plan if somehow or other they could get through
our outer security perimeters overseas and here, and so we must
balance because the impact, for example, just on Boston alone
of that successful attack was, we had a 27 percent reduction in
air travel out of Boston for 3 or 4 years. That kills jobs.
That kills the economy. That alters people's lives so they
cannot be successful. So we have to find a formula here that
works. And by the way, airports across the country might have
gone down an average of 10 percent just as a derivative of what
happened in Boston and in New York City and down here in
Washington on September 11. But all of it was profound in terms
of its economic impact.
So we have to make sure that they are not allowed to
successfully implement a terrorist attack because that is what
terror does. It scares people. They don't fly, they don't move,
they don't buy things, and everyone suffers as a result. And we
know that chemical facilities are on their list. We just have
enough security information to be well aware that they are very
near the very top of the al-Qaeda terrorist target list. And so
our responsibilities are great, and we must make sure that
especially in urban areas where these chemical facilities,
where these water facilities might be located, you know, if we
could all do it again we would not put them right there in the
middle of downtown Boston right on the harbor and other cities
across the United States. We would make those beaches or
waterfront parks if we could do it all over again, but we
didn't do it that way. They are there. They are in densely
populated areas. We have to deal with it realistically, try to
put together a formula that works, doesn't hurt industry and
comes up with something that does protect the American people.
That is our goal.
We very much enjoyed working with all of you so far and we
look forward to the relationship. With that, this hearing is
adjourned. Thank you.
[Whereupon, at 2:00 p.m., the Subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]