[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

                              ----------                              
                                                                   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:]





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