[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]






  WEST FERTILIZER, OFF THE GRID: THE PROBLEM OF UNIDENTIFIED CHEMICAL 
                               FACILITIES

=======================================================================

                                HEARING

                               before the

                     SUBCOMMITTEE ON CYBERSECURITY,
                       INFRASTRUCTURE PROTECTION,
                       AND SECURITY TECHNOLOGIES

                                 of the

                     COMMITTEE ON HOMELAND SECURITY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             AUGUST 1, 2013

                               __________

                           Serial No. 113-30

                               __________

       Printed for the use of the Committee on Homeland Security
                                     


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                               __________

                     COMMITTEE ON HOMELAND SECURITY

                   Michael T. McCaul, Texas, Chairman
Lamar Smith, Texas                   Bennie G. Thompson, Mississippi
Peter T. King, New York              Loretta Sanchez, California
Mike Rogers, Alabama                 Sheila Jackson Lee, Texas
Paul C. Broun, Georgia               Yvette D. Clarke, New York
Candice S. Miller, Michigan, Vice    Brian Higgins, New York
    Chair                            Cedric L. Richmond, Louisiana
Patrick Meehan, Pennsylvania         William R. Keating, Massachusetts
Jeff Duncan, South Carolina          Ron Barber, Arizona
Tom Marino, Pennsylvania             Dondald M. Payne, Jr., New Jersey
Jason Chaffetz, Utah                 Beto O'Rourke, Texas
Steven M. Palazzo, Mississippi       Tulsi Gabbard, Hawaii
Lou Barletta, Pennsylvania           Filemon Vela, Texas
Chris Stewart, Utah                  Steven A. Horsford, Nevada
Richard Hudson, North Carolina       Eric Swalwell, California
Steve Daines, Montana
Susan W. Brooks, Indiana
Scott Perry, Pennsylvania
Mark Sanford, South Carolina
                       Greg Hill, Chief of Staff
          Michael Geffroy, Deputy Chief of Staff/Chief Counsel
                    Michael S. Twinchek, Chief Clerk
                I. Lanier Avant, Minority Staff Director
                                 ------                                

SUBCOMMITTEE ON CYBERSECURITY, INFRASTRUCTURE PROTECTION, AND SECURITY 
                              TECHNOLOGIES

                 Patrick Meehan, Pennsylvania, Chairman
Mike Rogers, Alabama                 Yvette D. Clarke, New York
Tom Marino, Pennsylvania             William R. Keating, Massachusetts
Jason Chaffetz, Utah                 Filemon Vela, Texas
Steve Daines, Montana                Steven A. Horsford, Nevada
Scott Perry, Pennsylvania, Vice      Bennie G. Thompson, Mississippi 
    Chair                                (ex officio)
Michael T. McCaul, Texas (ex 
    officio)
               Alex Manning, Subcommittee Staff Director
                    Dennis Terry, Subcommittee Clerk
                            C O N T E N T S

                              ----------                              
                                                                   Page

                               STATEMENTS

The Honorable Patrick Meehan, a Representative in Congress From 
  the State of Pennsylvania, and Chairman, Subcommittee on 
  Emergency Preparedness, Response, and Communications:
  Oral Statement.................................................     1
  Prepared Statement.............................................     3
The Honorable Michael T. McCaul, a Representative in Congress 
  From the State of Texas, and Chairman, Committee on Homeland 
  Security:
  Oral Statement.................................................     6
  Letters........................................................     7
The Honorable Bennie G. Thompson, a Representative in Congress 
  From the State of Mississippi, and Ranking Member, Committee on 
  Homeland Security:
  Oral Statement.................................................     3
  Prepared Statement.............................................     5
The Honorable Yvette D. Clarke, a Representative in Congress From 
  the State of New York, and Ranking Member, Subcommittee on 
  Emergency Preparedness, Response, and Communications:
  Oral Statement.................................................    32
  Prepared Statement.............................................    65

                               WITNESSES
                                Panel I

Mr. David Wulf, ISCD Director, National Protection and Programs 
  Directorate, U.S. Department of Homeland Security:
  Oral Statement.................................................    14
  Prepared Statement.............................................    17
Mr. Stephen L. Caldwell, Director, Homeland Security and Justice, 
  U.S. Government Accountability Office:
  Oral Statement.................................................    22
  Prepared Statement.............................................    23

                                Panel II

Mr. Donnie Dippel, President, Texas Ag Industries Association:
  Oral Statement.................................................    87
  Prepared Statement.............................................    90
Mr. Paul Derig, Environmental Health and Safety Manager III, J.R. 
  Simplot Company:
  Oral Statement.................................................    91
  Prepared Statement.............................................    93
Mr. Timothy J. Scott, Chief Security Officer, Corporate Director, 
  Emergency Services and Security, Dow Chemical:
  Oral Statement.................................................    99
  Prepared Statement.............................................   100
Mr. Sean Moulton, Director, Open Government Policy, Center for 
  Effective Government:
  Oral Statement.................................................   104
  Prepared Statement.............................................   106

                             FOR THE RECORD

The Honorable Yvette D. Clarke, a Representative in Congress From 
  the State of New York, and Ranking Member, Subcommittee on 
  Emergency Preparedness, Response, and Communications:
  Statement of Dr. M. Sam Mannan and Mr. John S. Bresland, Mary 
    Kay O'Connor Process Safety Center, Artie McFerrin Department 
    of Chemical Engineering, Texas A&M University System.........    34
  Statement of Rick Hind, Legislative Director, Greenpeace.......    52
  Article........................................................    58
  Statement of Paul Orum, Consultant, Coalition to Prevent 
    Chemical Disasters...........................................    60
  Statement of the U.S. Environmental Protection Agency..........    63
  Letter.........................................................    83
The Honorable Susan W. Brooks, a Representative in Congress From 
  the State of Indiana:
  Letter From Timothy D. White...................................    75

 
  WEST FERTILIZER, OFF THE GRID: THE PROBLEM OF UNIDENTIFIED CHEMICAL 
                               FACILITIES

                              ----------                              


                        Thursday, August 1, 2013

             U.S. House of Representatives,
                    Committee on Homeland Security,
 Subcommittee on Cybersecurity, Infrastructure Protection, 
                                 and Security Technologies,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:04 a.m., in 
Room 311, Cannon House Office Building, Hon. Patrick Meehan 
[Chairman of the subcommittee] presiding.
    Present: Representatives Meehan, McCaul, Clarke, Vela, and 
Thompson.
    Also present: Representatives Flores and Brooks.
    Mr. Meehan. The Committee on Homeland Security Subcommittee 
on Cybersecurity, Infrastructure Protection, and Security 
Technologies will come to order. The subcommittee is meeting 
today to examine the West, Texas fertilizer plant explosion and 
the problem with unidentified chemical facilities.
    I recognize myself for an opening statement. I want to 
welcome everyone to today's hearing, titled ``West Fertilizer: 
Off the Grid, the Problem of Unidentified Chemical 
Facilities.'' The April 17, 2013 explosion at the West 
Fertilizer plant in West, Texas was most likely not the result 
of terrorist activity or foul play. Therefore, the Chemical 
Facility's Antiterrorism Standards or, as we call it, CFATS, 
the program was not directly implicated. But the tragic 
incident did reveal a disturbing fact, a fact about the CFATS 
program itself. There are literally thousands of facilities 
across the country that store or handle threshold quantities of 
high-risk chemicals that have gone under the radar at the 
Department of Homeland Security.
    I am grateful that Mr. Caldwell is here today. I know that 
the GAO has looked at this particular issue, among others. In 
the words of his report, the preliminary findings of the 
investigation at West, Texas by the U.S. Chemical Safety Board 
showed that the explosion killed at least 14 people and injured 
more than 200 others, severely damaged or destroyed nearly 200 
homes, three nearby schools, a nursing home, and an apartment 
complex. According to the Chemical Safety Board, the fire at 
the facility detonated about 30 tons of an ammonium nitrate. As 
of July 2013, the cause of the fire had not been determined.
    I think what that report states so clearly is the real-life 
ramifications of the inability to be able to identify where the 
dangerous chemicals are stored and of the conditions. The 
hearing will focus on these outlier facilities and we should 
take--but before we do so, I want to take a moment to remember 
the victims of this terrible tragedy, including the brave first 
responders who sacrificed their lives to save others, the men 
and women who walked into the fire, not aware of what was 
there: Morris Bridges, Perry Calvin, Jerry Chapman, Cody 
Dragoo, Kenneth Harris, Jimmy Matus, Judith Monroe, Joseph 
Pustejovsky, Cyrus Reed, Mariano Saldivar, Kevin Sanders, 
Douglas Snokhous, Robert Snokhous, and Buck Uptmore.
    The truth is, these are brave fire fighters. But they are 
real Americans, whose lives and a community and families whose 
lives have been affected by the inability for all of us to be 
able to understand the nature of the threat before it presented 
itself. While we do know that this was not likely an act of 
terrorism, imagine if it had been, what kind of questioning 
would be going on today about the failure to connect the dots 
or the failure to perform. West, Texas is the backdrop for 
today's hearing. The overarching mission is to identify the 
reasons for the Department's lack of awareness at these 
outlying facilities.
    West Fertilizer stored large amounts of anhydrous ammonia 
and ammonium nitrate. Both chemicals have been identified as 
high-risk under the Department of Homeland Security and the 
Environmental Protection Agency and the Occupational Safety and 
Health Administration. It was very discouraging to learn that 
although DHS is supposed to be securing the facilities that 
store these chemicals, not only was the plant not registered 
with the Department's CFATS program, they didn't even know of 
the plant's existence. We must understand what the Department 
is doing to correct this serious shortcoming.
    I was encouraged to see that, just this morning, the White 
House announced that they are taking this issue seriously, as I 
know that they do, and that the administration will be 
encouraging agencies to share information and provide greater 
transparency. I know Mr. Wulf will be prepared to speak to 
those issues. I am looking forward to further reviewing the 
Executive Order, and look to our witnesses today to understand 
the current and potential information-sharing environment among 
Federal agencies overseeing chemical facilities and the State 
agencies that implement CFATS.
    The deficiencies brought to light by the West explosion 
have the potential to seriously limit CFATS' mission of 
securing America's chemical infrastructure. Shortly after the 
explosion, Chairman McCaul and I sent a letter to Secretary 
Napolitano asking for an explanation to the problem of 
identifying outliers, and specifically pointed to the lack of 
interagency cooperation. I am pleased that the Department took 
these concerns to heart when they crafted the Executive Order, 
and I hope that today we will be able to receive a more in-
depth understanding of not only the shortcomings, but the 
efforts to ameliorate them.
    The disaster at West illustrates the level of harm that our 
communities can suffer when something at even a small facility 
holding hazardous chemicals goes wrong. Whether the harm is 
intentional or the result is an accident, the effects are 
devastating. That is why it is so important that these outliers 
are accounted for. I appreciate the Members of the subcommittee 
and our two witness panels who recognize the solemnity of this 
tragic situation which killed 14 people. With those victims in 
mind, I look forward to hearing your testimony for the work of 
this committee to address, as best we can, the shortcomings 
that have been recognized.
    [The statement of Chairman Meehan follows:]
                  Statement of Chairman Patrick Meehan
                             August 1, 2013
    Welcome everyone to today's hearing titled, ``West Fertilizer, Off 
the Grid: The Problem of Unidentified Chemical Facilities.'' The April 
17, 2013 explosion at the West Fertilizer Plant in West, TX was most 
likely not the result of terrorist activity or foul play. Therefore, 
the Chemical Facility Anti-Terrorism Standards, or CFATS program was 
not directly implicated. But the tragic incident did reveal a 
disturbing fact about the CFATS program: There are literally thousands 
of facilities across the country that store or handle threshold 
quantities of high-risk chemicals that have gone under the radar at the 
Department of Homeland Security.
    While today's hearing will focus on these ``outlier'' facilities, 
we should take a moment to remember the victims of this terrible 
tragedy, including the brave first responders who sacrificed their 
lives to save others: Morris Bridges, Perry Calvin, Jerry Chapman, Cody 
Dragoo, Kenneth Harris, Jimmy Matus, Judith Monroe, Joseph Pusteivosky, 
Cyrus Reed, Mariano Saldivar, Kevin Sanders, Douglas Snokhous, Robert 
Snokhous, and Buck Uptmor.
    I thank the witnesses for joining us today and offering their 
testimonies.
    While West, Texas is the backdrop for today's hearing, the 
overarching mission is to identify the reasons for the Department's 
lack of awareness of these outlying facilities.
    West Fertilizer stored large amounts of anhydrous ammonia and 
ammonium nitrate. Both chemicals have been identified as ``high-risk'' 
under the Department of Homeland Security, the Environmental Protection 
Agency, and the Occupational Safety and Health Administration.
    It was very discouraging to learn that although DHS is supposed to 
be securing facilities that store these chemicals, not only was the 
plant not registered with the Department's CFATS program, but they 
didn't even know of the plant's existence.
    We must understand what the Department is doing to correct this 
serious shortcoming. I was encouraged to see that just this morning, 
the White House announced that they are taking this issue seriously and 
that the administration will be encouraging agencies to share 
information and provide greater transparency. I am looking forward to 
further reviewing the Executive Order, and look to our witnesses today 
to understand the current and potential information-sharing environment 
among Federal agencies overseeing chemical facilities, and the State 
agencies that implement CFATS.
    The deficiencies brought to light by the West explosion have the 
potential to seriously limit CFATS' mission of securing America's 
chemical infrastructure.
    Shortly after the explosion, Chairman McCaul and I sent a letter to 
Secretary Napolitano asking for an explanation of the problem of 
identifying outliers, and specifically pointed to the lack of 
interagency cooperation. I am pleased that the Department took these 
concerns to heart when they crafted the Executive Order, and I hope 
today we will be able to receive a more in-depth understanding of these 
shortcomings.
    The disaster at West illustrates the level of harm that our 
communities can suffer when something at even a small facility holding 
hazardous chemicals goes wrong. Whether the harm is intentional or the 
result of an accident, the effects are devastating. That's why it is so 
important that these outliers are accounted for.
    I appreciate the Members of the subcommittee and our two witness 
panels recognizing the solemnity of this tragic situation, which killed 
14 people. With the victims in mind, I look forward to hearing your 
testimonies.

    Mr. Thompson. The Chairman now recognizes the Ranking 
Member of the full committee, the gentleman from Mississippi, 
Mr. Thompson, for any statement he may have.
    Thank you very much, Mr. Chairman. I thank our witnesses 
for their expected testimony. In the 4 months since the 
explosions at a fertilizer facility shook the small town of 
West, Texas to its core, shock waves have been felt across the 
country, here in Washington and even at 1600 Pennsylvania 
Avenue. As the scale of death and destruction has come into 
focus, Americans have been forced to ask themselves some very 
tough questions. Could a West-type event happen here in my 
community? Do facilities with explosives or lethal chemicals 
pose a risk to my family, my home, or my community?
    For most people, the likely response is ``Maybe,'' followed 
by, ``Well, I don't know, but surely my local fire chief does. 
Surely the Federal Government does. And they will keep my 
family safe.'' Unfortunately, the West facility explosion 
undermines that sense of confidence. The West fire fighters 
heroically went in to do as they had been trained--fight a 
fire. But this was a chemical fire, fueled by ammonium nitrate. 
In the end, 12 of these heroes lost their lives. Until these 
explosions, the Department of Homeland Security, the Federal 
lead for chemical security, did not know that the West plant 
even existed.
    DHS administers the risk-based, performance-based CFATS 
program that requires facilities with threshold quantities of 
certain chemicals to submit information through the Top Screen 
process. DHS then performs a risk analysis to determine whether 
the plant should be regulated. Facilities that DHS determined 
to be high-risk are required to do vulnerability assessments 
and site security plans. When I drafted the originating 
legislation, I envisioned a high level of collaboration between 
high-risk tiered facilities and DHS inspectors to ensure that 
security practices would be tailored to actual vulnerabilities.
    I also envisioned that site security plan information would 
be shared with local first responders. Had that information 
sharing occurred in West, Texas, some of the death and property 
damage could have been mitigated. Today, for CFATS to work, 
facilities have to pay attention to the Federal Register. For 
large operations that have regulatory affairs departments that 
is probably not too difficult. Facilities that maintain 
membership in National associations like the ones we will hear 
from later today also have access to this information. It is 
unaffiliated, usually small so-called ``outliers'' that dot our 
Nation's landscape that are of concern.
    Many of these facilities operate in areas where the only 
responders are volunteers who do not have the access to the 
kind of specialized training and resources that are necessary 
to respond to West-type explosions. As the Congressman for a 
rural area and a former volunteer fire fighter, I am troubled 
by the prospect that thousands, maybe tens of thousands, of 
these facilities operate under the radar screen. There needs to 
be a sense of urgency on this issue at all levels. Interagency 
coordination is essential between EPA, ATF, OSHA, DHS, Coast 
Guard, and State regulators. There should be enough information 
available to identify those facilities that pose a risk.
    That information needs to be shared. The next challenge is 
probably far more difficult: Ensuring that DHS properly analyze 
the risk at facilities that provide information. GAO has told 
us that when it comes to assessing risk and assigning risk 
tiers, arguably the most essential aspect of the CFATS program, 
VHS analysis, is neither reliable or consistent. To that point, 
the Blue Rhino propane facility in Florida that, just this 
week, exploded--sending 200-foot fireballs into the night sky--
was not determined by DHS to be high-risk. But I believe that 
with a lot of work and a lot of smart people in the CFATS 
program, we can do better.
    That is why I join my colleague on the Energy and Commerce 
Committee, Mr. Waxman, in calling on the President to bring 
together experts to tackle the fundamental issues. In response, 
I was pleased to see the President establish an interagency 
working group to collaborate on improving information sharing 
and chemical safety and security. Hopefully, this renewed focus 
will yield meaningful results.
    Thank you, Mr. Chairman, and I yield back the balance of my 
time.
    [The statement of Ranking Member Thompson follows:]
             Statement of Ranking Member Bennie G. Thompson
                             August 1, 2013
    In the 4 months since explosions at a fertilizer facility shook the 
small town of ``West, Texas'' to its core, shockwaves have been felt 
across the country, here in Washington, and even at 1600 Pennsylvania 
Avenue.
    As the scale of death and destruction has come into focus, 
Americans have been forced to ask themselves some very tough 
questions----
    Could a ``West-type'' event happen here, in my community? Do 
facilities with explosives or lethal chemicals that pose a risk to my 
family, my home, my community?
    For most people, the likely response is ``maybe''--followed by 
``well, I don't know but surely my local fire chief does. Surely, the 
Federal Government does, and they will keep my family safe.'' 
Unfortunately, the West facility explosion undermines that sense of 
comfort.
    The West fire fighters heroically went in to do as they had been 
trained, fight a fire. But this was a chemical fire--fueled by ammonium 
nitrate. In the end, 12 of these heroes lost their lives. And, until 
these explosions, the Department of Homeland Security--the Federal lead 
for chemical security did not know that the West plant even existed.
    DHS administers the risk-based, performance-based CFATS program 
which requires facilities with threshold quantities of certain 
chemicals to submit information through the ``Top Screen'' process. DHS 
then performs a risk analysis to determine whether the plant should be 
regulated. Facilities that DHS determines to be ``high-risk'' are 
required to do vulnerability assessments and site security plans.
    When I drafted the originating legislation, I envisioned a high 
level of collaboration between risk-tiered facilities and DHS 
inspectors to ensure that security practices would be tailored to 
actual vulnerabilities.
    I also envisioned that site security plan information would be 
shared with local first responders. Had that information sharing 
occurred in West, Texas, some of the death and property damage could 
have been mitigated.
    Today, for CFATS to work, facilities have to pay attention to the 
Federal Register. For large operations that have regulatory affairs 
departments, that is probably not too difficult. Facilities that 
maintain membership in National associations, like the ones we will 
hear from later today, also have access to this information.
    It is the unaffiliated, usually small, so-called ``outliers'' that 
dot our Nation's landscape that are of concern.
    Many of these facilities operate in areas where the only responders 
are volunteers, who do not have access to the kind of specialized 
training and resources that are necessary to respond West-type 
explosions.
    As the Congressman for a rural area and a former volunteer fire 
fighter, I am troubled by the prospect that thousands, maybe tens of 
thousands, of these facilities operate under the regulatory radar.
    There needs to be a sense of urgency on this issue, at all levels 
of government.
    Interagency coordination is essential. Between the EPA, ATF, OSHA, 
DHS, Coast Guard, and State Regulators, there should be enough 
information available to identify those facilities that pose a risk. 
That information needs to be shared.
    The next challenge is probably far more difficult--ensuring that 
DHS properly analyzes the risks at facilities that provide information.
    GAO has told us that when it comes to assessing risk and assigning 
risk tiers--arguably the most essential aspect of the CFATS program--
DHS' analysis is neither reliable nor consistent.
    To that point, the Blue Rhino propane facility in Florida that, 
just this week, exploded, sending 200-foot fireballs into the night 
sky, was not determined by DHS to be ``high-risk''.
    But, I believe that with a lot of work and a lot of smart people, 
in the CFATS program can be better. That is why I joined my colleague 
on the Energy and Commerce Committee, Mr. Waxman, in calling on the 
President to bring together experts to tackle these fundamental issues.
    In response, I was pleased to see the President establish an 
interagency working group to collaborate on improving information 
sharing and chemical safety and security. Hopefully, this renewed focus 
will yield meaningful results.

    Mr. Meehan. I want to thank the Ranking Member of the full 
committee for his opening statement and for being here at this 
hearing. I think it demonstrates the significance and 
importance of this issue. I think that is further underscored 
by the presence today of the full committee Chairman, the 
gentleman from Texas, Mr. McCaul. So at this point in time I 
would like to recognize the full committee Chairman, Mr. 
McCaul, for any statement he would like to make.
    Mr. McCaul. I thank the Chairman for holding this important 
hearing on a tragedy that occurred in my home State of Texas. 
Of the importance of our Nation's chemical infrastructure, 
security cannot be overstated. It is not just a concern on the 
National level, it is a local concern. As the explosion in West 
demonstrates, the harm to individual communities resulting from 
a chemical incident, the destruction suffered at the local 
level can be devastating. As I said, as a Texan, this tragedy 
feels especially personal. Fourteen people lost their lives, 
hundreds more were injured, schools were leveled, nursing homes 
were destroyed, dozens of homes were lost, entire neighborhoods 
were annihilated, and more than 120 people are filing for 
unemployment.
    The cost of the physical damage alone is estimated to be 
nearly $100 million. Whether an industrial accident, as this 
appears to be, or the result of foul play a chemical disaster 
wreaks havoc at the local level. Chemical facilities that are 
not run with the utmost care are a liability to everyone. Over 
the years, West Fertilizer had been broken into and vandalized 
repeatedly. The local residents complained about the strong 
smell of ammonia, a smell so potent it burned their eyes. The 
facility was routinely left open after-hours, and police 
reports indicate 11 burglaries occurred over the last 10 years. 
West Fertilizer was literally a disaster waiting to happen.
    Yet as vulnerable as this facility was known to be, DHS had 
no idea it even existed. The plant's owner failed to knock on 
the Department's door and introduce himself. So West remained 
unidentified and unknown. What is even more disturbing is that 
West Fertilizer was just one of literally thousands of similar-
situated facilities across the country that DHS has no 
knowledge of. On May 2, Chairman Meehan and I sent a letter to 
Secretary Napolitano asking her to explain how it was that West 
had managed to stay off the radar and what the Department was 
doing to improve their outreach.
    The Department's response was wholly insufficient, and the 
reply letter simply reiterated the Department's current 
efforts, saying nothing about what DHS had learned from these 
new steps. I was encouraged to receive a call from the White 
House last night, talking about the President's Executive Order 
on chemical safety. I think this is a step in the right 
direction, and I look forward to the results of this Executive 
Order. But while these improvements indicate potential 
progress, if they indeed materialize, they alone will not be 
sufficient to get CFATS where it needs to be.
    In July, I again wrote to Secretary Napolitano, joined by 
Energy and Commerce Chairman, Fred Upton, and together we 
expressed our dissatisfaction with the Department's failure to 
implement even the most fundamental components of the CFATS 
program, including the identification of potentially covered 
facilities. We state in our letter that we believe in the 
program's mission, and we ultimately want CFATS to succeed. But 
in order for CFATS to be viable, DHS needs to property manage 
this program's basics.
    The first step in securing America's chemical 
infrastructure is identifying those facilities that need to be 
secure. So I look forward to hearing from Director Wulf as to 
how he intends to work smarter, and not just harder, to right 
this ship. It is imperative not only to our National security, 
but also to our community's, that this problem be solved.
    With that, Mr. Chairman, I yield back.
    [The information follows:]
                    Letter Submitted For the Record
                                       May 2, 2013.
Honorable Janet Napolitano,
Secretary, U.S. Department of Homeland Security, Washington, DC 20528.
Honorable Suzanne Spaulding,
Acting Under Secretary, National Protection and Programs, U.S. 
        Department of Homeland Security, Washington, DC 20528.
    Dear Secretary Napolitano and Acting Under Secretary Spaulding: On 
April 17, 2013 the West Fertilizer plant in West, Texas exploded, 
killing 15 people and injuring hundreds more. Numerous media outlets 
have reported that the plant was storing large quantities of both 
anhydrous ammonia and ammonium nitrate at the time of the incident. 
These particular chemicals are considered ``high-risk'' under 
Department of Homeland Security (DHS), Environmental Protection Agency 
(EPA) and Occupational Safety and Health Administration (OSHA) 
standards, and Federal law requires these agencies to regulate the 
facilities that handle them.
    DHS's role is to secure facilities that produce, store, or use 
hazardous chemicals that could be used by terrorists to inflict mass 
casualties in the United States. The program designed to accomplish 
this, the Chemical Facilities Anti-Terrorism Standards (CFATS), is not 
necessarily implicated in the West Fertilizer disaster, since initial 
reports indicate that the fire and subsequent explosion were the result 
of an industrial accident, and not of any terrorist activity or 
malicious intent.
    However, the West Fertilizer explosion has brought to light some 
serious concerns about the efficacy of the CFATS program. To date, we 
have learned that although West Fertilizer stored high-risk quantities 
of CFATS-regulated chemicals, the plant was not registered with the 
CFATS program. What's even more troubling is the fact that DHS did not 
even know of the plant's existence.
    The Government Accountability Office (GAO),\1\ the DHS Office of 
Inspector General (IG),\2\ and the DHS Office of Infrastructure 
Protection (IP) itself \3\ have recognized that over the past 5 years, 
ineffectual management and implementation of the CFATS program have 
frustrated the Department's critical mission to secure America's 
chemical infrastructure. To its credit, the Department has brought in 
new leadership for CFATS, and is working in earnest to correct the 
program's deficiencies. But this latest incident reveals yet another 
serious problem that must be addressed.
---------------------------------------------------------------------------
    \1\ GOA-12-515T ``Critical Infrastructure Protection: DHS is Taking 
Action to Better Manage its Chemical Security Program, but it is Too 
Early to Assess Results.'' July 26, 2012.
    \2\ OIG-13-55 ``Effectiveness of the Infrastructure Security 
Compliance Division's Management Practices to Implement the Chemical 
Facility Anti-Terrorism Standards Program.'' March, 2013.
    \3\ Memorandum from Penny Anderson, Director, Infrastructure 
Security Compliance Division, Office of Infrastructure Protection and 
David Wulf, Deputy Director to NPPD Under Secretary, Rand Beers: 
``Challenges Facing ISCD, and the Path Forward.'' November 10, 2011.
---------------------------------------------------------------------------
    Although the CFATS Authorizing Statute (Pub. L. 109-295  550) does 
not compel the DHS Secretary to affirmatively seek out and identify 
chemical facilities presenting high levels of security risk, this 
certainly does not suggest that DHS's approach should be purely 
passive. Yet the IP Office of Legislative Affairs estimates there are 
thousands of chemical facilities in the United States that have failed 
to report under CFATS facilities of which DHS has no knowledge.
    The explosion of the West Fertilizer plant is a terrible tragedy, 
no matter what the cause. But had the event been the result of 
terrorist infiltration, how could DHS possibly justify the investment 
of resources the Department has made over the past 5 years to implement 
CFATS when it didn't even know of this plant's existence? The 
identification of facilities at risk of terrorist infiltration is the 
foundation of the CFATS program. It is the first step. The fact that 
CFATS relies on facilities to self-report cannot operate as an excuse 
for DHS's failure to adequately carry out its vital responsibilities.
    If the CFATS reporting program is ineffectual, the Department has a 
responsibility to fix it. DHS must reevaluate its outreach campaign to 
ensure that it is robust and comprehensive. Facilities which are either 
inadvertently or willfully off the grid--facilities like West 
Fertilizer--must be both aware of their requirement to report, and held 
to account for failing to do so.
    In order to completely understand the Department's failure to know 
about the West Fertilizer plant, and other ``outlier'' facilities, we 
would appreciate answers to the following questions by Monday, June 3.
    (1) Please describe the CFATS process for identifying chemical 
        facilities of interest. Does DHS have any mechanism by which it 
        can identify facilities which have not self-reported? How many 
        ``outliers'' do you estimate exist?
    (2) To what do you attribute DHS's failure to identify all 
        facilities of interest, and what is DHS currently doing to 
        correct this critical deficiency?
    (3) Does DHS share information with EPA, OSHA, and the other 
        Federal agencies responsible for chemical facilities oversight? 
        If so, to what extent? If not, why not?
    (4) What is the relationship between DHS and State and local 
        authorities with regard to identifying and regulating chemical 
        facilities? Does DHS exchange information with local emergency 
        planning authorities? Does DHS play any role in educating first 
        responders as to handling chemical incidents?
    (5) Under CFATS, DHS is authorized to issue penalties for 
        noncompliance. DHS can even go so far as to order a 
        noncompliant facility to cease operations. To date, how many 
        facilities has DHS penalized for noncompliance? Has DHS 
        penalized any outliers for failure to submit a ``Top Screen?'' 
        If not, how would you describe DHS's effectiveness in enforcing 
        compliance?
    (6) The Ammonium Nitrate Security Program (ANSP) is a proposed 
        regulation developed by DHS in response to direction from 
        Congress to ``regulate the sale and transfer of ammonium 
        nitrate by an ammonium nitrate facility . . . to prevent the 
        misappropriation or use of ammonium nitrate in an act of 
        terrorism.'' Implementation of this program has been long 
        delayed. Can you please update us on the status of the ANSP?
    (7) Although CFATS is intended to regulate the security of chemical 
        facilities--as opposed to industrial safety--could CFATS 
        compliance have helped to mitigate the disaster at West 
        Fertilizer in any way?
    Thank you for your attention to this matter. We look forward to 
continuing to work with you to ensure that America's chemical 
facilities are adequately protected against terrorist attack.
            Sincerely,
                                         Michael T. McCaul,
                          Chairman, Committee on Homeland Security.
                                         Patrick L. Meehan,
Chairman, Subcommittee on Cybersecurity, Infrastructure Protection, 
         and Security Technologies, Committee on Homeland Security.
Attachment.--DHS Responses to Rep. McCaul and Rep. Meehan's May 2, 2013 
Letter Regarding the Chemical Facility Anti-Terrorism Standards (CFATS) 
                                Program
    Question 1. Please describe the CFATS process for identifying 
chemical facilities of interest. Does DHS have any mechanism by which 
it can identify facilities which have not self-reported? How many 
``outliers'' do you estimate exist?
    Answer. Like many regulatory regimes, the first step in identifying 
potentially regulated facilities is through self-reporting by members 
of the affected population. In the case of CFATS, any facility that 
possesses a threshold level of one or more chemicals of interest (COI) 
established by the Department is required to submit a Top-Screen to the 
Department.
    DHS continues to undertake significant outreach at the National, 
State, and local level to inform potentially regulated entities of 
their requirements under CFATS and to ensure affected facilities submit 
Top-Screens. This outreach includes thousands of engagements ranging 
from presentations at large conferences, to briefings for pertinent 
industry associations as well as individual meetings with facility 
owners and operators. The Department has co-hosted an annual Chemical 
Security Summit for the past 6 years with industry stakeholders, has 
given joint presentations and conducted joint site visits with Federal 
partners such as the U.S. Coast Guard, and has participated in 
engagements with various State Homeland Security Advisors (HSA) and 
other State and local security partners. The Department also has 
participated in numerous meetings with Local Emergency Planning 
Committees, Area Maritime Security Committees, Sector Coordinating 
Councils, and Fusion Centers. These outreach efforts have contributed 
to the ever-growing body of public information on CFATS, including 
articles and blog postings that have been written since the CFATS final 
rule was published in 2007.
    As a result of these and other efforts, DHS has received over 
44,000 Top-Screen submissions to date, roughly 4,300 of which have 
resulted in the identification of facilities determined by the 
Department to be high-risk. As the total number of chemical facilities 
in the United States is both unknown and dynamic, the Department cannot 
speculate on how many facilities should have submitted CFATS Top-
Screens but have intentionally or unknowingly failed to do so.
    The Department has been working to address the issues of 
identifying non-compliant actors since 2008. These efforts have 
included:
   A pilot program with the State HSAs from the States of New 
        Jersey and New York to identify potentially non-compliant 
        facilities within their respective States;
   The creation of the CFATS Share tool, through which State 
        HSAs, appropriate DHS components, and other stakeholders have 
        access to data on the CFATS-regulated facilities within their 
        jurisdictions;
   A pilot program to exchange data with the Environmental 
        Protection Agency (EPA) to identify facilities that, based on 
        their EPA Risk Management Plan (RMP) filings, likely should 
        have submitted a Top-Screen but failed to do so;
   Analysis of the CFATS-regulated population to identify 
        communities from which the Department would have expected a 
        higher number of Top-Screen submissions, followed by targeted 
        outreach to the identified communities;
   The development of a toll-free CFATS Tip Line through which 
        individuals can anonymously submit information on potential 
        security issues, to include potentially non-compliant 
        facilities; and,
   A regional pilot program through which Chemical Security 
        Inspectors in a CFATS region review data maintained in EPA's 
        Computer Aided Management of Emergency Operations system and 
        other sources to identify facilities with threshold levels of 
        COI who had not submitted Top-Screens, followed by attempts to 
        contact each of the identified facilities.
    These efforts resulted in the identification of a small number of 
high-risk chemical facilities who previously had not self-reported to 
CFATS. Several of these efforts were resource-intensive and were not 
continued beyond the initial pilot efforts as the resources were 
determined to be of greater use on other CFATS-related implementation 
actions. Others, such as the CFATS Share tool and the CFATS Tip Line, 
are still in use.
    Question 2. To what do you attribute DHS's failure to identify all 
facilities of interest, and what is DHS currently doing to correct this 
critical deficiency?
    Answer. The CFATS-regulated community is expansive and dynamic and 
DHS is committed to pursuing all reasonable measures to identify 
potentially noncompliant facilities and urge them toward compliance. In 
order to further reduce the likelihood that potential high-risk 
chemical facilities intentionally or unintentionally avoid 
identification under the CFATS program, the Department is engaging in a 
variety of efforts. The Department is reinvigorating coordination with 
EPA and review of EPA RMP data to identify facilities that, based on 
their EPA RMP filings, may possess threshold levels of CFATS COI but 
have failed to submit a Top-Screen. This is being carried out in 
conjunction with a larger effort being coordinated by the White House 
to review chemical safety and security regulations across departments 
and agencies for potential gaps in coverage and explore ways to 
mitigate those gaps through existing authorities. DHS is also expanding 
outreach efforts to target segments of the chemical sector with higher 
likelihoods of potential non-compliance. In addition, the Department is 
examining ways to more efficiently coordinate with other Federal, 
State, and local entities to identify potentially non-compliant 
facilities within their jurisdictions. These efforts would be in 
addition to providing State HSAs and their designees with access to 
information on CFATS-regulated facilities in their jurisdictions via 
CFATS Share. Finally, the Department is continuing to operate its CFATS 
Tip Line and follow up on any reports of potentially non-compliant 
facilities submitted through the Tip Line.
    Question 3. Does DHS share information with EPA, OSHA, and the 
other Federal agencies responsible for chemical facilities oversight? 
If so, to what extent? If not, why not?
    Answer. The Infrastructure Security Compliance Division within the 
Department, which administers the CFATS program, has shared CFATS-
regulated facility information with a variety of Federal partners 
including EPA, the Federal Bureau of Investigation, the U.S. Coast 
Guard, and the National Infrastructure Coordinating Center. The 
information has ranged from comprehensive lists of all regulated 
facilities to specific information on individual facilities, depending 
on the circumstances surrounding the exchange of information. The 
Department in coordination with the White House is exploring options, 
for sharing appropriate CFATS-regulated facility information with the 
Occupational Safety and Health Administration consistent with any 
applicable information-handling protocols such as Chemical-terrorism 
Vulnerability Information handling requirements.
    Question 4. What is the relationship between DHS and State and 
local authorities with regard to identifying and regulating chemical 
facilities? Does DHS exchange information with local emergency planning 
authorities? Does DHS play any role in educating first responders as to 
handling chemical incidents?
    Answer. Most States have one or more State or local authority 
regulating various aspects of operations at chemical facilities, 
ranging from workplace safety to emergency planning and security. Given 
the myriad different regimes and approaches that States employ in 
regulating chemical facilities, the Department primarily works through 
the State HSAs; the State, Local, Territorial, and Tribal Government 
Coordinating Council (SLTTGCC); and regional Fusion Centers to 
coordinate CFATS-related activities with States. As noted above, this 
has included a pilot program with representatives of the State HSAs for 
New York and New Jersey to identify potentially non-compliant 
facilities, as well as the dissemination of CFATS Share access to 
multiple Fusion Centers and all State HSAs and their designees.
    The Department also has engaged numerous local planning authorities 
and routinely interacts with first responders across the country, with 
the majority of those engagements focused on providing introductions to 
and overviews or updates on the CFATS program. Starting in July 2012, 
the Department began sharing lists of CFATS facilities with local 
emergency responders upon request. Educating first responders on how to 
handle chemical incidents, however, is outside of the scope of the 
Department's CFATS authorities. Nevertheless, the CFATS program does 
encourage facilities to have an active outreach program with their 
community, local law enforcement, and emergency responders, to include 
participation in Local Emergency Planning Committees and similar local 
emergency responder-based organizations, and even looks for the 
inclusion of such activities in a facility's SSP as one potential way 
for the facility to comply in part with Risk-Based Performance 
Standards (RBPS) 9--Response.
    Question 5. Under CFATS, DHS is authorized to issue penalties for 
noncompliance. DHS can even go so far as to order a noncompliant 
facility to cease operations. To date, how many facilities has DHS 
penalized for noncompliance? Has DHS penalized any outliers for failure 
to submit a ``Top Screen?'' If not, how would you describe DHS's 
effectiveness in enforcing compliance?
    Answer. By statute and under the CFATS regulation, the Department 
cannot issue a fine against a facility or direct it to cease operations 
simply for failing to comply with the statute or regulations. Prior to 
DHS issuing a penalty (monetary or cease operations), the Department 
must issue an Administrative Order that identifies the specific steps 
the facility must take to come into compliance and provide the facility 
with a reasonable opportunity to correct its non-compliance. The 
Department may only issue a civil penalty and/or direct a facility to 
cease operations for violating a previously issued Administrative 
Order.
    To date, the Department has issued 66 Administrative Orders against 
facilities that failed to submit a Site Security Plan in a timely 
manner. The Department did not need to follow up with issuing a penalty 
order in any of these instances because the facilities receiving the 
Administrative Orders subsequently came into compliance in a timely 
fashion or explained to the Department's satisfaction why the action 
specified in the Administrative Order was not required for the facility 
to be in compliance with CFATS. None of these Administrative Orders 
were the result of a failure to submit a Top-Screen.
    Question 6. The Ammonium Nitrate Security Program (ANSP) is a 
proposed regulation developed by DHS in response to direction from 
Congress to regulate the sale and transfer of ammonium nitrate by an 
ammonium nitrate facility . . . to prevent the misappropriation or use 
of ammonium nitrate in an act of terrorism.'' Implementation of this 
program has been long delayed. Can you please update us on the status 
of the ANSP?
    Answer. The Department is continuing to adjudicate comments 
received on the Ammonium Nitrate Security Program Notice of Proposed 
Rulemaking issued in August 2011.
    Question 7. Although CFATS is intended to regulate the security of 
chemical facilities--as opposed to industrial safety--could CFATS 
compliance have helped to mitigate the disaster at West Fertilizer in 
any way?
    Answer. The authority provided to the Department to develop 
regulations is specifically focused on security at high-risk chemical 
facilities and was not intended to help prevent or mitigate industrial 
accidents arising from failure to meet applicable safety standards. At 
this time, there is no indication that the West Fertilizer explosion 
was a security incident. It should also be noted there is no certainty 
whether West Fertilizer would be regulated under CFATS if the facility 
had submitted a Top-Screen. Until more information is known, the 
Department cannot speculate as to whether compliance with applicable 
CFATS requirements would have helped to mitigate the disaster.
    Generally, compliance with CFATS might help mitigate the 
consequences of an incident like the West Fertilizer explosion. For 
example, to comply with CFATS RBPS 9--Response, many CFATS-regulated 
facilities will develop emergency response plans, establish emergency 
notification systems, and/or implement safeguards that allow units 
containing and/or using hazardous materials to safely shutdown in an 
emergency. Similarly, in support of RBPS 11--Training, many facilities 
conduct drills and exercises, including with local law enforcement or 
first responders. While a CFATS-regulated facility is not required to 
perform any of these activities and may propose other ways to comply 
with the applicable RBPS, the activities covered under the applicable 
RBPS may overlap with requirements administered under other Federal and 
State regulatory regimes focused on safety and environmental 
protection.
                                 ______
                                 
                    Letter Submitted for the Record
                                     July 21, 2013.
The Honorable Janet Napolitano,
Secretary, U.S. Department of Homeland Security, Washington, DC 20528.
    Dear Secretary Napolitano: In 2006, Congress authorized the 
creation of the Chemical Facilities Anti-Terrorism Standards (CFATS) 
program, to secure facilities with chemicals that ``present high levels 
of security risk.'' The program's enacting statute directs the 
Secretary of Homeland Security to issue ``regulations establishing 
risk-based performance standards for security of chemical facilities 
and requiring vulnerability assessments and the development and 
implementation of site security plans for chemical facilities.'' (Pub. 
L. 109-295  550).
    While the interim final regulations issued in 2007 were faithful to 
the legislation, implementation since then has fallen far short of what 
the legislation and the regulations promised.
    The Government Accountability Office (GAO),\1\ the Department of 
Homeland Security (DHS) Office of Inspector General,\2\ and the DHS 
Office of Infrastructure Protection itself \3\ have all recognized 
that, over the past 5 years, DHS's ineffectual management and 
implementation of the CFATS program has frustrated the Department's 
critical mission to secure America's facilities containing chemicals of 
interest. As the authorizers and appropriators of this program, we 
write to you to express serious reservations about continuing to extend 
CFATS funding without evidence of substantial programmatic improvement. 
The basic programmatic building blocks of CFATS are missing, and we are 
running short on both patience and confidence with regard to the 
Department's ability to correct its deficiencies.
---------------------------------------------------------------------------
    \1\ GOA-12-515T ``Critical Infrastructure Protection: DHS is Taking 
Action to Better Manage its Chemical Security Program, but it is Too 
Early to Assess Results.'' July 26, 2012.
    \2\ OIG-13-55 ``Effectiveness of the Infrastructure Security 
Compliance Division's Management Practices to Implement the Chemical 
Facility Anti-Terrorism Standards Program.'' March 2013.
    \3\ Memorandum from Penny Anderson, Director, Infrastructure 
Security Compliance Division, Office of Infrastructure Protection and 
David Wulf, Deputy Director to NPPD Under Secretary, Rand Beers: 
``Challenges Facing ISCD, and the Path Forward.'' November 10, 2011.
---------------------------------------------------------------------------
    Specifically, the risk evaluation system used to tier regulated 
facilities is not consistent with the Department's basic standard, nor 
with what Congress expected based upon the 2006 CFATS legislation and 
the 2007 regulations. The Department's standard for risk requires that 
threat, vulnerability, and consequence each be weighed. Yet, with 
regard to CFATS-covered facilities, consequence is only partially 
considered, while threat and vulnerability are not factored in at all. 
Because CFATS, by law, is a risk-based program, this failure to develop 
an accurate and effective risk evaluation system could not be more 
problematic.
    Despite this flawed risk methodology, thousands of facilities 
across the country have attempted to comply with CFATS requirements by 
submitting their initial risk assessment information (the ``Top 
Screen''), and have been assigned a final tier. These facilities have 
invested time and resources into the development of their site security 
plans. Yet, GAO estimates it could take up to 9 years for the 
Department to review these plans and certify each facility's security. 
Within that time, technology changes, plans become outdated, and 
facilities remain vulnerable to attack. The scope and pace of this 
backlog is simply unacceptable.
    Perhaps the most basic step toward achieving the security of 
facilities with chemicals of concern is identifying those facilities 
that are at risk. Yet, even here, the Department has failed to 
implement an effective process. As the tragic explosion of the West 
Fertilizer plant in April brought to light, DHS is unaware of the 
existence of thousands of small facilities across the country that are 
potentially covered under the statute. The identification of facilities 
at risk of terrorist infiltration is the very foundation of the CFATS 
program.
    Additionally, we are concerned that it has been 5 years since 
Congress passed section 563 of the Fiscal Year 2008 Department of 
Homeland Security Appropriations Act (Pub. L. 110-161), which requires 
DHS to regulate the sale and transfer of ammonium nitrate to prevent 
the misappropriation or use of ammonium nitrate in an act of terrorism. 
Although DHS published the Ammonium Nitrate Security Program Notice of 
Proposed Rulemaking (NPRM) in the Federal Register in 2011, DHS has yet 
to issue any guidance on the Ammonium Nitrate Security Program.
    Unfortunately, problems with the Department's efforts to implement 
these programs are not limited to those discussed here. As the 
Chairmen, responsible for authorizing and funding CFATS, we are 
convinced the program should not continue in its present condition. 
While the need to secure American facilities with chemicals of concern 
is a critical one, the CFATS program is simply not getting the job 
done.
    The Committees on Energy and Commerce and on Homeland Security, as 
authorizes, did not object to the appropriation of funds to CFATS in 
the Fiscal Year 2014 Homeland Security Bill because the House Committee 
on Appropriations, in both its bill, and its accompanying Report, 
requires the Department to formally justify its expenditures, create a 
plan to reduce its backlog, and report to Congress on its progress to 
correct some of its most serious shortcoming.
    But these requirements will not be enough to justify the program in 
the long term.
    As discussed, we believe in the vital importance of seeming 
America's facilities with chemicals of concern. Moreover, hundreds of 
millions of American tax dollars have been spent on developing the 
CFATS program, and private industry has spent billions of dollars 
complying with it. Therefore, we would like to see the program 
continue. However, what's most important is that the security mission 
is fulfilled.
    Over the course of this fiscal year, the Energy and Commerce 
Committee and the Homeland Security Committee will continue the 
rigorous oversight and strict guidance needed to get CFATS on track. We 
intend to identify specific milestones the program must achieve in 
order to establish its viability. Ultimately, we would like to consider 
a multi-year reauthorization of CFATS--but only if it is the right 
program for the job.
    To begin with, we would like to see the National Protections and 
Programs Directorate (NPPD) meet the requirements articulated in the 
Appropriations Committee Report Language Accompanying H.R. 2217 (H. 
Rept. 113-91). Among those requirements are the following:
    (1) A report explaining how ISCD will further accelerate the review 
        process for facilities which have already been assigned a final 
        tier, reduce the current backlog of approximately 3,120 
        facilities, and detail the actions DHS is taking to better 
        manage its chemical security program, including its progress in 
        addressing the recommendations in the GAO report (GAO-13-353) 
        and in implementing the associated action plan. Please submit 
        this report not later than September 30, 2013.
    (2) A report to focus on program implementation, and collaboration 
        and communication within the Infrastructure Security Compliance 
        Division (ISCD) and between ISCD and the regulated community. 
        Specifically, the review should address the following sets of 
        questions: 1. How will ISCD improve its facilities 
        identification methodology to include the full universe of 
        covered facilities in the United States? Is the ISCD sharing 
        information with State authorities overseeing CFATS-regulated 
        facilities, such as State Emergency Management Directors? 2. Is 
        the ISCD organized to efficiently and effectively carry out the 
        requirements detailed in Section 563 of Public Law 110-161 
        (ammonium nitrate security)? If not, what are the 
        organizational gaps? How should it be structured and staffed to 
        ensure effective execution of Section 563 of Public Law 110-
        161? Does the program include the appropriate level of outreach 
        to address valid stakeholder concerns? What mechanisms are in 
        place to ensure consistent outreach? Additionally, the review 
        should include a comprehensive update on the status of the 
        corrective measures being taken to ensure that facilities with 
        chemicals of interest are notified by ISCD when they fall 
        within the purview of the CFATS program; an estimate of the 
        potential number of outlier facilities unaware of the CFATS 
        requirement; and a detailed performance evaluation of the 
        Chemical Security Inspectors within ISCD. This report should be 
        submitted not later than September 30, 2013.
     We look forward to receiving these reports, and to working with 
you to help secure our Nation against the risk of terrorism.
            Sincerely,
                                         Michael T. McCaul,
                          Chairman, Committee on Homeland Security.
                                                Fred Upton,
                        Chairman, Committee on Energy and Commerce.
                                               John Carter,
           Chairman, Homeland Security Appropriations Subcommittee.

    Mr. Meehan. Well, I thank you, Mr. Chairman. Again, for 
your direct concern and presence in this. I know that you and I 
have had numerous conversations. We have awaited the GAO report 
and some further activity and a response from our original 
letter. But I know as one who represents Texas, the numerous 
times you have spoken to me about your own very genuine and 
sincere personal interest in this issue, and I am pleased to 
have been able to have this hearing and to have you participate 
to the extent you may.
    I am also very pleased and privileged to be able to share 
the responsibility of this committee with the Ranking Minority 
Member, the gentlelady from New York, Ms. Clarke, who did 
inform me that she would likely be detained with some other 
responsibilities prior to this. So what I will elect to do is 
perhaps--well, here is Ms. Clarke, as she sits. But if she 
chooses, she can jump in. Or what I would do is be happy to 
introduce our witnesses, ask for your opening statements. At 
the conclusion of the opening statements, I will recognize the 
Ranking Member, enable her to make her opening statements, and 
then we will move into the questions.
    So I would identify for the other Members, committee 
Members, reminding the opening statements may be submitted for 
the record. Now, we are pleased to have two distinguished 
panels of witnesses before us today on this important topic. I 
am going to introduce the first panel, and then recognize each 
of you for your testimony.
    Our first witness is Mr. David Wulf, the director of the 
Infrastructure Security Compliance Division within the National 
Protection and Programs Directorate at the Department of 
Homeland Security. In essence, Mr. Wulf is the principle person 
at DHS who oversees this program, and we are grateful for your 
presence here today. As the director, Mr. Wulf helps the ISCD 
lead National efforts to implement the collaborative security 
planning and assess high-risk chemical facilities as well as 
assisting DHS in creating regulations for detonable ammonium 
nitrate products.
    Mr. Stephen Caldwell is the director of the Government 
Accountability's Office Homeland Security and Justice team. 
Thank you, nice to see you again, Mr. Caldwell. It has been a 
busy week. We had the chance to share some time together 
yesterday with some very good work Mr. Caldwell has done on one 
of the other issues we were dealing with the Coast Guard. Mr. 
Caldwell's focus has been related to protecting critical 
infrastructure and promoting resiliency. He recently raised 
concerns about the risk assessment process used by the ISCD in 
assessing terrorist risk to the 3,500 chemical facilities under 
the CFATS program.
    So I thank you both for being here. Your full written 
statements will appear in the record, but I recognize you now 
for 5 minutes to testify. So Mr. Wulf, thank you for being here 
and I turn to you first.

STATEMENT OF DAVID WULF, ISCD DIRECTOR, NATIONAL PROTECTION AND 
   PROGRAMS DIRECTORATE, U.S. DEPARTMENT OF HOMELAND SECURITY

    Mr. Wulf. Thank you, Chairman Meehan.
    Mr. Meehan. Mr. Wulf, we need you to push the button.
    Mr. Wulf. Thank you so much. Thank you, Chairman Meehan, 
Chairman McCaul, Ranking Member Thompson, Ranking Member 
Clarke, and distinguished Members of the subcommittee for the 
opportunity to appear before you today.
    My team and I, and our colleagues across the Department, 
are absolutely committed to preventing incidents like the 
tragic explosion at West, Texas. Our hearts go out to the 
families of the heroic first responders and the people of the 
West community as they recover.
    Although it doesn't appear that this incident was the 
result of a terrorist act, we have been working with our 
interagency partners and our industry stakeholders to find 
solutions that will prevent these types of disasters in the 
future. Today, I want to highlight the progress the CFATS 
program has made and how we have moved forward on several 
fronts since the explosion at the West, Texas fertilizer in 
April of this year. While the CFATS program has had its 
challenges, we have made significant strides over the past 
year.
    We have developed improved policies and training to ensure 
that inspections are conducted in a consistent and thorough 
fashion. We have implemented an effective, streamlined site 
security plan review process which has greatly enhanced our 
ability to authorize and, as appropriate, grant approval for 
security plans. We have authorized 589 site security plans and 
granted final approval for 182 of those; most of those in the 
highest-risk categories, Tiers 1 and 2. Reviews and 
authorizations of Tier 3 site security plans are now underway, 
as well, and I am very proud of the pace at which our staff is 
operating.
    I do recognize, however, that we must continue to find ways 
to become more efficient and effective in our inspection NSSP 
review processes. We are looking closely at options to 
streamline the review and approval cycle for facilities in 
Tiers 3 and 4, and are soliciting stakeholder input on how to 
do so.
    I do anticipate that alternative security program templates 
will be an important tool to enhance the efficiency of our 
reviews. The American Chemistry Council recently worked with us 
to develop an ASP template, and we continue to work with 
industry associations such as SOCMA, AFPM, and NACD, who have 
been considering the adoption of ASP templates for their member 
companies.
    I expect you will hear from our industry stakeholders that 
they have seen progress and improvements in the program, as 
well. We remain committed to working with stakeholders and with 
Congress on a path forward so that the CFATS program continues 
to improve. Engagement with industry is absolutely critical to 
the success of CFATS. Since the program's inception, we have 
conducted extensive outreach with industry, resulting in the 
submission of more than 44,000 Top Screens. Chemical security 
is a shared responsibility, and we feel very strongly that our 
private-sector stakeholders are key to our efforts to implement 
the program.
    Enhancing security across the chemical sector is not 
something a single company, industry, or even Government can do 
by itself. I am very grateful to our stakeholders for the hard 
work they have put into fostering security at America's 
highest-risk chemical facilities. In our engagements with 
industry stakeholders since the West, Texas explosion we have 
all agreed that we must work together to prevent future 
incidents. Industry has offered to further spread our message 
and to do its part to promote safety and security at chemical 
facilities.
    Recently, associations such as the Fertilizer Institute and 
Agricultural Retailers Association have played a critical role 
in our outreach efforts facilitating our outreach to State-
level agricultural association executives. First responders are 
also a critical part of chemical safety and security Nation-
wide. It is absolutely essential that we continue to engage 
with them through the CFATS program. Our past efforts include 
sharing lists of CFATS facilities with local responders, as 
well as disseminating outreach material targeted at members of 
the emergency response community.
    The CFATS program will continue to encourage facilities to 
conduct their own outreach to responders. I would also like to 
recognize the perspectives that GAO has offered us on the CFATS 
risk-tiering methodology and on stakeholder outreach 
activities. As part of our commitment to continue moving the 
CFATS program forward, we are reviewing our risk assessment 
process, including through the conduct of an external peer 
review. We expect the peer review to provide input on how we 
can enhance the CFATS tiering model as appropriate in a fashion 
that comports with the practical realities of implementing the 
program.
    We are also committed to meeting the challenge of 
identifying facilities that have not reported threshold 
quantities of chemicals of interest. From the early days of the 
CFATS program, DHS recognized that it would be a challenge to 
identify and find every failure with chemicals of interest. 
Over the years, we have undertaken and continue to support 
extensive outreach and industry engagement to ensure that non-
exempt facilities that possess threshold levels of chemicals of 
interest comply with their Top Screen submission requirements. 
Since the West explosion, we have committed to doubling down on 
these efforts, and working with partners at Federal and State 
agencies, and with industry, to identify non-compliant 
facilities.
    It is also important to note that improving chemical 
facility safety and security is a priority for this 
administration. That is why the President today signed an 
Executive Order to improve the safety and security of chemical 
facilities and to reduce the risks of hazardous chemicals to 
workers and communities. The Executive Order directs Federal 
agencies to improve coordination with State, local, and Tribal 
partners, including first responders; to collaborate on 
innovative approaches to inspections, enforcement, incident 
investigation and identification of high-risk facilities, as 
well as enhancing the collection and sharing of chemical 
facility information; and also to modernize policies, 
regulations, and standards to improve chemical safety and 
security, including by examining new options to address the 
safe and secure storage, handling, and sale of ammonium 
nitrate.
    So these coordinated efforts will compliment many of the 
individual efforts being taken within the Department and across 
other Federal departments and agencies following the tragic 
events in West, Texas. This issue is a priority for the 
administration, and will continue to be in the future as we 
focus on building on steps already underway to mitigate 
chemical risks. In closing, I would like to note that the 
Department supports a permanent authorization for the CFATS 
program. We firmly believe that permanent authorization will 
provide industry with the necessary stability to move forward 
in effectively implementing CFATS.
    It will send a clear message to facilities that may be 
seeking to avoid their obligation to report dangerous chemicals 
that the CFATS program is here to stay. We are gratified to 
hear our industry stakeholders say the same. The Department has 
turned a corner on the CFATS program. As we implement CFATS, we 
will continue to work with stakeholders to get the job done of 
preventing terrorists from exploiting chemicals or chemical 
facilities. We do firmly believe that CFATS is making the 
Nation more secure by reducing the risks associated with our 
Nation's chemical infrastructure. Along with our stakeholders, 
we are committed to its success.
    Thank you for the opportunity to be here today. I look 
forward to answering any questions you may have.
    [The prepared statement of Mr. Wulf follows:]
                    Prepared Statement of David Wulf
                             August 1, 2013
    Thank you, Chairman Meehan, Ranking Member Clarke, and 
distinguished Members of the subcommittee. I appreciate the opportunity 
to appear before you today to discuss the Department of Homeland 
Security's (DHS) regulation of high-risk chemical facilities under the 
Chemical Facility Anti-Terrorism Standards (CFATS). Over the past year, 
the CFATS program has made significant progress, advancing 
programmatically while simultaneously addressing internal operational 
concerns. The Department remains committed to working with stakeholders 
and with Congress on a path forward so that the CFATS program continues 
to improve. Today I will focus on the progress made over the last year-
and-a-half, as well as activities undertaken since the explosion at the 
West Fertilizer Company in April 2013.
    The CFATS program has made our Nation more secure by identifying 
and regulating high-risk chemical facilities to ensure they have 
security measures in place to reduce the risks associated with their 
possession of chemicals of interest. CFATS has also played a role in 
reducing the number of high-risk chemicals, as more than 3,000 
facilities have eliminated, reduced, or modified their holdings of 
certain chemicals of interest. The significant reduction in the number 
of chemical facilities that represent the highest risk is an important 
success of the CFATS program and is attributable both to the design of 
the program as enacted by Congress and to the work of CFATS personnel 
and industry at thousands of chemical facilities. I welcome the 
opportunity to work with stakeholders to further improve this vital 
National security program.
    The National Protection and Programs Directorate (NPPD) 
Infrastructure Security Compliance Division (ISCD) continually 
evaluates the program to identify areas for improvement to ensure 
proper implementation. Through ISCD's comprehensive Action Plan, we 
have identified and acted decisively to address areas in which 
improvements to the CFATS program and associated supporting activities 
were warranted. As of July 15, 2013, 90 of the 95 action items 
contained in the current Action Plan have been completed. In fact, this 
spring, the DHS Office of the Inspector General (OIG) issued a report 
on ISCD progress, which examined many of the program's historic 
challenges. The OIG report confirmed what we had made efforts to 
correct through the Action Plan--23 of the 24 Recommendations were 
deemed resolved. Now that the Department has concluded this period of 
internal improvements, programmatic processes and structures are in 
place so we can focus our efforts on implementing the program.
    As you are aware, the Department's current statutory authority to 
implement CFATS--Section 550 of the Fiscal Year 2007 Department of 
Homeland Security Appropriations Act, as amended--currently extends 
through October 4, 2013. DHS recognizes the significant work that the 
subcommittee and others have undertaken to reauthorize the CFATS 
program. The Department supports a permanent authorization for the 
CFATS program and is committed to working with Congress and other 
security partners to establish a permanent authority for the CFATS 
program in Federal law. We firmly believe permanent authorization will 
provide industry with the necessary stability to move forward in 
effectively implementing CFATS and will send a clear message to 
facilities that may be seeking to avoid their obligation to report 
dangerous chemicals that the CFATS program is here to stay.
                     cfats implementation progress
    The cornerstone of the CFATS program in regulating the security of 
high-risk chemical facilities is the development, submission, and 
implementation of Site Security Plans (SSPs), or Alternative Security 
Programs (ASPs) in lieu of SSPs, which document the security measures 
that high-risk chemical facilities utilize to satisfy the applicable 
Risk-Based Performance Standards (RBPS) under CFATS. It is important to 
note that these plans are not ``one size fits all,'' but in-depth, 
highly customized, and dependent on each facility's unique 
circumstances.

                                      STATUS OF CFATS-REGULATED FACILITIES
----------------------------------------------------------------------------------------------------------------
                                                                 Received  Authorized   Authorization   Approved
                     Tier*                       Total No. of     Final     SSPs and     Inspection     SSPs and
                                                  Facilities       Tier       ASPs        Conducted       ASPs
----------------------------------------------------------------------------------------------------------------
1.............................................             125        113         103              85         63
2.............................................             457        367         202             176         91
3.............................................           1,228      1,017         230              97          6
4.............................................           2,426      1,865           1               0          0
                                               -----------------------------------------------------------------
      Total...................................           4,298      3,362         536             358       160
----------------------------------------------------------------------------------------------------------------
* As of July 15, 2013.

    In order to determine whether a facility is regulated under CFATS, 
the facility uses the web-based Chemical Security Assessment Tool 
(CSAT), to submit a Top-Screen to ISCD. Since we began collecting this 
information in 2007, ISCD has data from more than 44,000 Top-Screens 
submitted by chemical facilities, providing important information about 
their chemical holdings. Based on the information received in the Top-
Screens, ISCD identified more than 8,500 facilities that were initially 
designated as high-risk facilities potentially regulated by CFATS. 
These facilities then compiled and submitted Security Vulnerability 
Assessments, which are used by ISCD to identify which facilities 
present a terrorism risk that is sufficiently high to warrant the 
assignment of a final high-risk tier under CFATS.
    As of July 15, 2013, CFATS covers 4,298 high-risk facilities 
Nation-wide; of these, 3,362 have received final high-risk tier 
determinations and are required to develop SSPs (or ASPs) for ISCD 
review. The remaining facilities are awaiting final tier determinations 
based on their Security Vulnerability Assessment submissions. The 
tiered population is dynamic and subject to change, depending on the 
conditions at facilities.
    As a part of our commitment to continue moving the CFATS program 
forward, NPPD is conducting a thorough review of the risk assessment 
process. In support of this, NPPD has implemented a phased approach, 
which is captured in the ISCD Action Plan and includes: Documenting all 
processes and procedures relating to the risk assessment methodology; 
conducting an internal NPPD review of the risk assessment process; and 
initiating an external peer review of the risk assessment methodology. 
We expect the peer review to provide input on how DHS can enhance the 
CFATS tiering models as appropriate. ISCD continues to issue final tier 
notifications to facilities across all four risk tiers. Facilities that 
receive a final high-risk determination are notified of the requirement 
to complete and submit an SSP or an ASP. Tiering determinations are 
dynamic and can change based on actions a facility takes. For example, 
a tiering determination can change when a facility voluntarily alters 
its operations in a material way that reduces its risk profile.
    Inspections.--ISCD is currently carrying out authorization 
inspections for Tier 1, 2, and 3 facilities. Authorization inspections 
are scheduled after ISCD's review of an SSP (or ASP) results in a 
preliminary determination that the SSP satisfies applicable RBPS and 
issues a Letter of Authorization. From Fall 2011 to Spring 2012, ISCD 
updated and revised its internal inspections policy and guidance 
materials for conducting inspections. After releasing the updated 
guidance materials, inspector training sessions were conducted, which 
focused on the updated policy, procedures, and related materials to 
better prepare Chemical Security Inspectors to resume authorization 
inspections. Since resuming authorization inspections in July 2012, 
ISCD has conducted more than 350 authorization inspections. The 
authorization inspection results, as well as any further revisions that 
the facility may make to the SSP (or ASP), are reviewed to make a final 
determination as to whether the facility's SSP satisfies the applicable 
RBPS and whether to issue a Letter of Approval. ISCD anticipates that 
we will complete the approvable Tier 1 security plans by first quarter 
fiscal year 2014 and approvable Tier 2 security plans by third quarter 
fiscal year 2014. Once issued a Letter of Approval, the facility must 
implement the security measures detailed in the SSP (or ASP). ISCD has 
made great strides in improving our inspection process over the past 
year, and we continue to identify efficiencies to keep moving forward. 
In September 2013, ISCD plans to begin conducting compliance 
inspections for facilities with approved SSPs. These inspections will 
generally be conducted approximately 1 year after their SSPs were 
approved.
                        a shared responsibility
    We feel strongly that our private-sector partners are key to our 
efforts to enhance data sharing, increase cross-training, and identify 
areas for possible regulatory changes as well as identifying possible 
gaps in existing statutory authorities. Enhancing security and building 
resilience across the chemical sector is not something a single 
company, industry, or even Government can do by itself. This has to be 
a collaborative effort. It also has to be a comprehensive effort, 
because of the sheer complexity of the sector, its linkages to other 
sectors, and the potential cascading effects and consequences of a 
significant attack or disruption.
    Since the West, Texas tragedy, we have engaged with numerous 
members of industry and all have agreed that we must work together to 
prevent future incidents. Industry has offered to spread our message 
and do their part to promote safety and security at chemical 
facilities. The Department appreciates this support and looks forward 
to working with industry and our Government partners to carry out these 
activities. We've made a lot of progress in advancing chemical security 
in this country, though we still have a lot of work to do. We must 
remain steadfast in our commitment to continue to collectively identify 
and develop programs that improve our security posture.
                        outreach to stakeholders
    Industry Engagement and Information Sharing.--Since the 
establishment of the CFATS program in April 2007, NPPD has conducted 
significant outreach to the regulated community and other interested or 
affected entities so that they are aware of the program's requirements. 
NPPD and ISCD management and staff have presented at hundreds of 
security and chemical industry gatherings and participated in a variety 
of other meetings. As part of this outreach initiative, NPPD and ISCD 
leadership have regularly updated affected sectors through their Sector 
Coordinating Councils and the Government Coordinating Councils--
including the Chemical, Oil and Natural Gas, and Food and Agriculture 
Sectors. To promote information sharing, ISCD has developed several 
communication tools for stakeholder use, including: The Chemical 
Security website (www.DHS.gov/chemicalsecurity); a help desk for CFATS-
related questions; a CFATS tip-line for anonymous chemical security 
reporting; and CFATS-Share, a web-based information-sharing portal that 
provides certain Federal, State, and local agencies access to key 
details on CFATS facility information as needed.
    Compliance Assistance and Facility Outreach.--Chemical Security 
Inspectors provide assistance and outreach directly to facilities. At 
any point in the CFATS process, a facility can request a Compliance 
Assistance Visit to provide support in preparing the necessary 
security-related documentation required under CFATS. During these 
visits, chemical inspectors offer compliance and technical assistance 
in the completion of the CSAT registration, Top Screen, Security 
Vulnerability Assessment, or Site Security Plan. As of July 15, 2013, 
ISCD has conducted more than 1,260 Compliance Assistance Visits. In 
addition to conducting inspections and supporting Compliance Assistance 
Visits at regulated facilities, NPPD's chemical inspectors actively 
work with facilities, local stakeholders, and governmental agencies 
across the country. Collectively, they have participated in more than 
5,260 meetings with Federal, State, and local officials; held more than 
4,680 introductory meetings with owners and operators of CFATS-
regulated or potentially regulated facilities.
    Engaging First Responders.--The Department also has engaged 
numerous local emergency planning committees and routinely interacts 
with first responders across the country. Additionally, starting in 
July 2012, the Department began, upon request, sharing lists of CFATS 
facilities with local emergency responders. The Department has also 
developed and disseminated outreach material targeted at members of the 
emergency response community, and encourages facilities to conduct 
their own outreach to their community, local law enforcement, and 
emergency responders, to include participation in Local Emergency 
Planning Committees and similar local emergency responder-based 
organizations. To satisfy CFATS RBPS-9 (Response), a high-risk facility 
generally will be expected to maintain and exercise an emergency plan 
to respond to security incidents internally and with the assistance of 
local law enforcement and first responders. Finally, DHS, the 
Environmental Protection Agency (EPA), and the State of New Jersey 
recently convened a meeting with representatives from approximately 25 
fire stations within New Jersey to discuss their level of preparedness 
to respond to an incident at a chemical facility within their 
jurisdiction and identify both potential ways to increase their 
preparedness and lessons learned that can be shared with other fire 
departments.
           early efforts to identify non-compliant facilities
    The first step in identifying potentially regulated facilities is 
through self-reporting by members of the affected population. Under the 
CFATS, any facility that possesses a threshold level of one or more 
chemicals of interest established by the Department is required to 
submit a Top-Screen to DHS. Throughout the existence of CFATS, DHS has 
undertaken and continues to support extensive outreach and industry 
engagement to ensure that non-exempt facilities that possess threshold 
levels of chemicals of interest comply with their Top-Screen submission 
requirements. These activities have, in concert with the efforts of our 
industry stakeholders, accounted for the significant number of Top-
Screens industry members have submitted to date. The CFATS-regulated 
community, however, is expansive and dynamic, and, like many other 
regulators, the Department must be able to count on facilities that 
possess threshold levels of chemicals of interest to meet their 
reporting obligations under CFATS. DHS is committed to pursuing all 
reasonable measures to identify potentially non-compliant facilities, 
encouraging and assisting them in coming into compliance, and, where 
appropriate, using the enforcement mechanisms available to DHS to bring 
any non-compliant facilities into compliance.
    Since the inception of CFATS, DHS has undertaken efforts to 
identify facilities that should have submitted a Top-Screen but have 
failed to do so. Beginning in the summer of 2008, ISCD identified 
multiple approaches to identifying and contacting facilities that were 
potentially non-compliant for failure to submit a Top-Screen, 
including:
   A pilot program with the State Homeland Security Advisors 
        (HSAs) from New York and New Jersey to identify potentially 
        non-compliant facilities within their respective States;
   Exchanges of data with the EPA in an attempt to identify 
        facilities that, based on filings submitted pursuant to EPA 
        regulations, likely should have submitted a Top-Screen but 
        failed to do so;
   An analysis--by industry segment/sector and chemical of 
        interest--of the CFATS-regulated population to identify 
        communities from which the Department would have expected a 
        higher number of Top-Screen submissions, followed by targeted 
        outreach to the identified communities;
   The creation of the CFATS-Share tool, through which State 
        HSAs, appropriate DHS components, and other stakeholders have 
        access to data on the CFATS-regulated facilities within their 
        jurisdictions;
   The development of a toll-free CFATS Tip Line through which 
        individuals can anonymously submit information on potential 
        security issues, to include facilities that may have failed to 
        submit a required Top-Screen;
   A regional pilot program through which Chemical Security 
        Inspectors in one CFATS region reviewed data maintained in 
        EPA's Computer Aided Management of Emergency Operations system 
        and other sources to identify facilities with threshold levels 
        of chemicals of interest who had not submitted Top-Screens.
    These efforts resulted in the identification of a small number of 
chemical facilities that failed to submit a Top-Screen as required 
under CFATS. Several of these efforts were resource-intensive, however, 
and were not continued beyond the initial pilot efforts as the 
Division's resources were determined to be of greater use on other 
CFATS-related implementation actions. Others, such as the CFATS-Share 
tool and the CFATS Tip Line, are still in use.
        re-focused efforts to identify non-compliant facilities
    Following the explosion at West, Texas, the Department, in 
coordination with other Federal agencies, has reinvigorated some of the 
efforts mentioned above and is exploring other potentially cost-
effective means for identifying facilities that should have submitted a 
Top-Screen.
    Interagency Data Sharing.--One effort involves the review of EPA 
data under the Risk Management Plan (RMP) program to identify 
facilities that, based on their EPA RMP submissions, appear likely to 
possess a threshold amount of one or more CFATS chemicals of interest 
but have not submitted a Top-Screen to DHS. To facilitate this effort, 
EPA and DHS both have provided updated lists of facilities (in EPA's 
case, the list of RMP facilities; in DHS' case, the list of facilities 
that have completed a CFATS Top-Screen) to Oak Ridge National 
Laboratory (ORNL), which developed a set of heuristics to rate possible 
matches based on several categories including facility name, address, 
latitude/longitude, EPA Identification Number, and facility owner/
operator. The initial matching process was completed in June, and ORNL 
has provided DHS with lists of facilities that, based on their filings 
with one of the two entities, potentially should have submitted a 
filing to the other entity but appear to have failed to do so. ISCD 
reviewed the lists to attempt to identify and remove exempted 
facilities and thereafter contacted through written correspondence the 
non-exempt facilities identified through this effort to inform them 
about their potential obligation to submit a Top-Screen.
    Even though ISCD previously had limited access to EPA data in late 
2008 through a database with information from EPA regulations, 
differences between the DHS and EPA datasets and taxonomy made it 
difficult to cross-walk the data in an efficient manner. As a result of 
the Action Plan implementation, ISCD has realigned its organizational 
structure and created a branch dedicated to information technology 
operations. The Division is now in a much better position to utilize 
the information provided by EPA to successfully compare large 
quantities of data to identify potential matches and inconsistencies. 
Depending on the results of the on-going crosswalk of EPA RMP data and 
CFATS data and available resources, a determination will be made on how 
often to repeat this effort. DHS is also looking at similar efforts 
involving the Department of Labor's Occupational Safety and Health 
Administration (OSHA) and data regarding Federal explosives licensees 
and permittees that has been shared by the Department of Justice's 
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and facility 
data that has been shared by the State of Texas.
    Outreach to State and Local Officials and Chemical Industry.--Most 
States have at least one State or local authority regulating various 
aspects of operations at chemical facilities, ranging from workplace 
safety to emergency planning to security. Given the myriad regimes and 
approaches that States employ in regulating chemical facilities, the 
Department primarily works through the State HSAs; the State, Local, 
Territorial, and Tribal Government Coordinating Council; and State and 
major urban area fusion centers to coordinate CFATS-related activities 
with States. Following the incident at West, Texas, we have also 
initiated steps aimed at increasing information-sharing efforts with 
various State and local partners, as well as increased outreach to the 
chemical industry and State and local first responders. ISCD has 
expanded efforts to reach State and local officials, including in-
person meetings with State HSAs.
           chemical facility safety and security improvement
    Following the explosion in West, Texas, the administration has 
taken a number of steps to try to reduce the likelihood that incidents 
like this occur in the future. Federal agencies are exploring potential 
areas for improvement in existing chemical facility safety and security 
oversight and working to identify and implement steps to ensure that 
facilities such as West Fertilizer are identified and complying with 
their chemical safety and security regulatory responsibilities. We have 
already identified a number of potential activities, including:
   Improving operational coordination with State and local 
        partners;
   Enhancing Federal coordination;
   Enhancing information collection and sharing;
   Policy, regulation, and standards modernization;
   Identification of best practices.
    These coordinated efforts will help ensure that the Federal 
Government most effectively uses the collective resources available to 
us for managing chemical risk. These activities complement many of the 
individual efforts being taken within the Department, and other Federal 
departments and agencies, following the tragic events in West, Texas. 
Should the effort result in proposals for legislative action, we will 
look forward to working with you to achieve those recommendations. This 
issue area is a priority for the administration, and will continue to 
be in the future as we focus on building on steps already underway to 
mitigate risks.
                   ammonium nitrate security program
    In addition to carrying out the CFATS program, ISCD also is working 
to implement the Ammonium Nitrate Security Program. The Department is 
continuing to adjudicate comments received on the Ammonium Nitrate 
Security Program Notice of Proposed Rulemaking issued in August 2011 
and is developing a final rule. The authorizing statute provides the 
Department with the authority to require individuals engaging in the 
purchase, sale, or transfer of ammonium nitrate to register with the 
Department and submit to vetting against the Terrorist Screening 
Database, and requires facilities transferring or selling ammonium 
nitrate to maintain records on such sales and transfers and report any 
identified thefts or losses of ammonium nitrate to appropriate 
authorities.
                           funding reductions
    The Department is reevaluating the methods and resources dedicated 
towards encouraging facility self-reporting and identifying facilities 
that, intentionally or unintentionally, fail to comply with their Top-
Screen reporting requirements. However, the expanded efforts noted 
above must be conducted using current resources while ISCD continues 
its progress towards security plan inspections and approvals. The House 
Appropriations Committee has proposed a reduction in funding to ISCD 
for fiscal year 2014. With this proposed reduction, the Division's 
capability to implement and enforce the CFATS regulations, which 
include activities to identify non-compliant facilities, would be 
adversely impacted. The Department asks for the subcommittee's 
continuing support in providing adequate resources to successfully 
carry out this essential mission.
                               conclusion
    The Department has turned a corner on the CFATS program. We are 
moving forward strategically to address the challenges before us. As we 
implement CFATS, we will continue to work with stakeholders to get the 
job done of preventing terrorists from exploiting chemicals or chemical 
facilities. I firmly believe that CFATS is making the Nation more 
secure by reducing the risks associated with our Nation's chemical 
infrastructure and we are--along with our stakeholders--committed to 
its success.

    Mr. Meehan. Thank you, Mr. Wulf.
    The Chairman now recognizes Mr. Caldwell for his testimony.

 STATEMENT OF STEPHEN L. CALDWELL, DIRECTOR, HOMELAND SECURITY 
       AND JUSTICE, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

    Mr. Caldwell. Chairman Meehan, thank you. It is good to see 
you again today. Ms. Clarke, and also to Mr. Thompson and Mr. 
McCaul, who were here earlier, thank you for inviting GAO here 
today to talk about chemical security and, particularly, the 
issue of the outliers such as in West, Texas. I would like to 
also express my sympathies to the community in West, Texas for 
the disaster. My written testimony summarizes some of the 
earlier work we had done on CFATS. I now also try to focus on 
some of the issues that came out related to the issue 
specifically related to outliers.
    Since we issued our 2013 report on April 5, just one week 
before the explosion in West, Texas, we have continued to 
monitor the situation, including some discussions with DHS 
about some of the steps they are taking, some of which Mr. Wulf 
has already outlined. But let me briefly summarize our April 
report, and then describe some of those key points related to 
the outliers. Regarding risk assessments by both DHS and GAO--
have well-established criteria for risk assessments. Some 
aspects of those were not followed closely in developing the 
CFATS program.
    This has already been mentioned. Maybe one of the key 
examples there is that vulnerability aspect of risk assessment 
is not applied until later in the process. In terms of the 
security plan reviews, we found that DHS had a cumbersome 
process and a backlog of unapproved plans. As mentioned, they 
have now streamlined that process to do this. But I think it 
will still take several years to finish those inspections on 
the facilities that have been tiered so far.
    Regarding outreach to industry, we found that the CFATS 
program had increased its efforts for such outreach. Much of 
that outreach was focused on the major National trade 
associations, which will generally represent the larger 
chemical facilities. Nevertheless, the CFATS program could be 
more systematic in monitoring the effectiveness of some of that 
outreach. Now I would like to make three points based on the 
experience we had reviewing CFATS that may be contributed to 
the existence of the outlier issue that we are discussing here 
today.
    I think my first point is that the CFATS regulatory regime 
in general is based on self-reporting. Facilities start that 
process by reporting their chemical holdings, reporting these 
to DHS for the risk assessment, and that is how it starts with 
the Top Screen assessment. For facilities such as one of these 
outliers does not report, basically nothing happens. Also 
related to the self-reporting, it is not until well along in 
the process--which could be months or even years--before DHS 
would actually inspect the facility to verify the information 
that has been reported to it.
    To the extent that DHS prioritizes inspections for the 
highest-risk sites, these are not likely to be the kind of 
facilities such as those in West, Texas. The second point I 
would like to make is that the reliance on self-reporting that 
I just mentioned makes the outreach process even more 
important. So the explosion in West, Texas indicates a need for 
outreach to maybe the smaller associations to get to those 
smaller facilities and maybe even some direct outreach to such 
facilities. The explosion may also indicate a need for more 
coordination between DHS and other Federal agencies, as has 
been discussed here, to maybe help those other agencies; 
particularly some of the State or local agencies that may have 
information on some of these outlier facilities that are off 
the grid, at least in terms of CFATS' visibility.
    My third point is that the initial risk assessment done by 
DHS to categorize the facilities into risk tiers is based very 
heavily on consequences, and very specifically on the number of 
casualties, which would tend to favor the more urban 
population-dense areas. So it is quite feasible that even if a 
facility, the facility in West, Texas did report its chemical 
holdings, and that if those quantities exceeded CFATS' 
reporting thresholds, that DHS would not necessarily have 
categorized it as a high-risk facility. Thus it would not have 
had to go through the process to develop a vulnerability 
assessment and security plan.
    So in closing, certainly late-breaking news such as Mr. 
Wulf's update on today's new Executive Order, certainly provide 
positive steps toward improved Federal coordination and maybe 
expanded identification of outlier facilities. But I will be 
happy to respond to any questions now.
    Thank you.
    [The prepared statement of Mr. Caldwell follows:]
               Prepared Statement of Stephen L. Caldwell
                             August 1, 2013
                             gao highlights
    Highlights of GAO-13-801T, a testimony before the Subcommittee on 
Cybersecurity, Infrastructure Protection, and Security Technologies, 
Committee on Homeland Security, House of Representatives.
Why GAO Did This Study
    Facilities that produce, store, or use hazardous chemicals could be 
of interest to terrorists intent on using toxic chemicals to inflict 
mass casualties in the United States. As required by statute, DHS 
issued regulations that establish standards for the security of high-
risk chemical facilities. DHS established the CFATS program to assess 
the risk posed by these facilities and inspect them to ensure 
compliance with DHS standards. ISCD, which manages the program, places 
high-risk facilities in risk-based tiers and is to conduct inspections 
after it approves facility security plans. This statement summarizes 
the results of GAO's April 2013 report on the extent to which DHS: (1) 
Assigned chemical facilities to tiers and assessed its approach for 
doing so, (2) revised its process to review facility security plans, 
and (3) communicated and worked with owners and operators to improve 
security. GAO reviewed DHS reports and plans on risk assessments, 
security plan reviews, and facility outreach and interviewed DHS 
officials. GAO also received input from 11 trade associations 
representing chemical facilities, about ISCD outreach. The results of 
this input are not generalizable but provide insights.
What GAO Recommends
    In its April 2013 report, GAO recommended that DHS enhance its risk 
assessment approach to incorporate all elements of risk, conduct a peer 
review after doing so, and explore opportunities to gather systematic 
feedback on facility outreach. DHS concurred with the recommendations 
and has actions underway to address them.
  critical infrastructure protection.--dhs needs to improve its risk 
            assessments and outreach for chemical facilities
What GAO Found
    In April 2013, GAO reported that, since 2007, the Department of 
Homeland Security's (DHS) Infrastructure Security Compliance Division 
(ISCD) assigned about 3,500 high-risk chemical facilities to risk-based 
tiers under its Chemical Facility Anti-Terrorism Standards (CFATS) 
program, but it has not fully assessed its approach for doing so. The 
approach ISCD used to assess risk and make decisions to place 
facilities in final tiers does not consider all of the elements of 
consequence, threat, and vulnerability associated with a terrorist 
attack involving certain chemicals. For example, the risk assessment 
approach is based primarily on consequences arising from human 
casualties, but does not consider economic consequences, as called for 
by the National Infrastructure Protection Plan (NIPP) and the CFATS 
regulation, nor does it consider vulnerability, consistent with the 
NIPP. ISCD had taken some actions to examine how its risk assessment 
approach could be enhanced, including commissioning a panel of experts 
to assess the current approach and recommend improvements. In April 
2013, GAO reported that ISCD needed to incorporate the results of these 
efforts to help ensure that the revised assessment approach includes 
all elements of risk. After ISCD has incorporated all elements of risk 
into its approach, an independent peer review would provide better 
assurance that ISCD can appropriately identify and tier chemical 
facilities, better inform CFATS planning and resource decisions, and 
provide the greatest return on investment consistent with the NIPP.
    GAO also reported that DHS's ISCD has revised its process for 
reviewing facilities' site security plans--which are to be approved 
before ISCD performs compliance inspections. The past process was 
considered by ISCD to be difficult to implement and caused bottlenecks 
in approving plans. ISCD viewed its revised process to be an 
improvement because, among other things, teams of experts reviewed 
parts of the plans simultaneously rather than sequentially, as occurred 
in the past. ISCD intends to measure the time it takes to complete 
reviews, but will not be able to do so until the process matures. GAO 
estimated that it could take another 7 to 9 years before ISCD is able 
to complete reviews on the approximately 3,120 plans in its queue at 
the time of GAO's review. Thus, the CFATS regulatory regime, including 
compliance inspections, would likely be implemented in 8 to 10 years. 
ISCD officials said that they are exploring ways to expedite the 
process such as streamlining inspection requirements.
    Furthermore, GAO reported that DHS's ISCD has also taken various 
actions to work with owners and operators, including increasing the 
number of visits to facilities to discuss enhancing security plans, but 
trade associations that responded to GAO's query had mixed views on the 
effectiveness of ISCD's outreach. ISCD solicits informal feedback from 
facility owners and operators on its efforts to communicate and work 
with them, but it does not have an approach for obtaining systematic 
feedback on its outreach activities. GAO found that ISCD's on-going 
efforts to develop a strategic communication plan may provide 
opportunities to explore how ISCD can obtain systematic feedback on 
these activities. A systematic approach for gathering feedback and 
measuring the results of its outreach efforts could help ISCD focus 
greater attention on targeting potential problems and areas needing 
improvement.
    Chairman Meehan, Ranking Member Clarke, and Members of the 
subcommittee: I am pleased to be here today to discuss the findings 
from our April 2013 report on the Department of Homeland Security's 
(DHS) efforts to address the various challenges in implementing and 
managing the Chemical Facility Anti-Terrorism Standards (CFATS) 
program.\1\ Chemicals held at facilities that use or store hazardous 
chemicals could be used to cause harm to surrounding populations during 
terrorist attacks, and could be stolen and used as chemical weapons, 
such as improvised explosive devices, or as the ingredients for making 
chemical weapons. Earlier this year, ammonium nitrate--one of the 
chemicals covered by the CFATS program--detonated during a fire at a 
fertilizer storage and distribution facility in West, Texas. The 
preliminary findings of an investigation by the U.S. Chemical Safety 
Board (CSB) showed that the explosion killed at least 14 people and 
injured more than 200 others, severely damaged or destroyed nearly 200 
homes, 3 nearby schools, a nursing home, and an apartment complex.\2\ 
According to CSB, the fire at the facility detonated about 30 tons of 
ammonium nitrate. As of July 2013, the cause of the fire had not been 
determined. This event serves as a tragic reminder of the extent to 
which chemicals covered by the CFATS program can pose a risk to 
surrounding populations.
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    \1\ GAO, Critical Infrastructure Protection: DHS Efforts to Assess 
Chemical Security Risk and Gather Feedback on Facility Outreach Can Be 
Strengthened, GAO-13-353 (Washington, DC: April 5, 2013).
    \2\ Rafael Moure-Eraso, Chairperson, U.S. Chemical Safety Board, 
testimony before the Senate Committee on Environment and Public Works, 
113th Congress 1st Sess., June 27, 2013. The CSB is an independent 
Federal agency charged with investigating industrial chemical 
accidents. The CSB board members are appointed by the President and 
confirmed by the Senate. According to the CSB website, CSB does not 
issue fines or citations, but makes recommendations to plants, 
regulatory agencies, industry organizations, and labor groups.
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    The DHS appropriations act for fiscal year 2007 \3\ required DHS to 
issue regulations to establish risk-based performance standards for 
securing high-risk chemical facilities, among other things.\4\ In 2007, 
DHS established the CFATS program to assess the risk posed by chemical 
facilities; place high-risk facilities in one of four risk-based tiers; 
require high-risk facilities to develop security plans; review these 
plans; and inspect the facilities to ensure compliance with regulatory 
requirements. DHS's National Protection and Programs Directorate (NPPD) 
is responsible for the CFATS program. Within NPPD, the Infrastructure 
Security Compliance Division (ISCD), a division of the Office of 
Infrastructure Protection (IP), manages the program.
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    \3\ Pub. L. No. 109-295,  550, 120 Stat. 1355, 1388 (2006).
    \4\ According to DHS, a high-risk chemical facility is one that, in 
the discretion of the Secretary of Homeland Security, presents a high 
risk of significant adverse consequences for human life or health, 
National security, or critical economic assets if subjected to a 
terrorist attack, compromise, infiltration, or exploitation. 6 C.F.R.  
27.105.
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    In 2011, a leaked internal memorandum prompted some Members of 
Congress and chemical facility owners and operators to become concerned 
about ISCD's ability to implement and manage a regulatory regime under 
the CFATS program. This memorandum, prepared by the then-ISCD Director, 
raised concerns about the management of the program. The memorandum 
cited an array of challenges that ISCD had experienced implementing the 
CFATS program, including an inability to hire staff with the needed 
skills, an overly complicated security plan review process, and a 
compliance inspection process that had yet to be developed.
    My testimony today summarizes the results of our April 2013 work on 
ISCD's efforts to address key mission issues that could affect the 
success of the program. Specifically, my testimony will address the 
extent to which DHS: (1) Assigned chemical facilities to risk-based 
tiers and assessed its approach for doing so, (2) revised the process 
used to review security plans, and (3) communicated and worked with 
facilities to help improve security. To conduct our work, we reviewed 
ISCD documents and data on tiered facilities and the approach used to 
determine a facility's risk; assessed ISCD's process for reviewing 
security plans and data on the number of plans reviewed, authorized, 
and approved from program inception through December 2012; and reviewed 
information on ISCD outreach activities. We also obtained the views of 
officials representing 11 trade associations with members regulated by 
CFATS on DHS efforts to work with facility owners and operators.\5\ The 
information we obtained from association officials is not generalizable 
to the universe of chemical facilities covered by CFATS; however, it 
provides insights into DHS efforts to perform outreach and seek 
feedback on the implementation of the CFATS rule. We conducted this 
performance audit from October 2012 through April 2013 in accordance 
with generally accepted Government auditing standards. Those standards 
require that we plan and perform the audit to obtain sufficient, 
appropriate evidence to provide a reasonable basis for our findings and 
conclusions based on our audit objectives. We believe that the evidence 
obtained provides a reasonable basis for our findings and conclusions 
based on our audit objectives. More detailed information on the scope 
and methodology of our published report can be found therein.
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    \5\ The 11 trade associations were among 15 that we contacted 
during our review and represent those that provided responses to our 
query about ISCD outreach activities. We selected the 15 trade 
associations because they are listed in the National Infrastructure 
Protection Plan (NIPP) as those with which DHS works on a regular basis 
on chemical security matters. According to the NIPP, working with these 
trade associations presents a more manageable number of contact points 
through which DHS can coordinate activities with a large number of the 
asset owners and operators in the chemical sector.
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                               background
    Section 550 of the DHS Appropriations Act for fiscal year 2007 \6\ 
requires DHS to issue regulations establishing risk-based performance 
standards for the security of facilities that the Secretary determines 
to present high levels of security risk, among other things.\7\ The 
CFATS rule was published in April 2007,\8\ and appendix A to the rule, 
published in November 2007, listed 322 chemicals of interest and the 
screening threshold quantities for each.\9\ ISCD has direct 
responsibility for implementing DHS's CFATS rule, including assessing 
potential risks and identifying high-risk chemical facilities, 
promoting effective security planning, and ensuring that high-risk 
facilities meet applicable standards through site security plans 
approved by DHS. From fiscal years 2007 through 2012, DHS dedicated 
about $442 million to the CFATS program. Appendix I describe the 
process for administering the CFATS program, as outlined in the rule.
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    \6\ Pub. L. No. 109-295,  550, 120 Stat. 1355, 1388 (2006).
    \7\ The CFATS rule establishes 18 risk-based performance standards 
that identify the areas for which a facility's security posture are to 
be examined, such as perimeter security, access control, and 
cybersecurity. To meet these standards, facilities are free to choose 
whatever security programs or processes they deem appropriate so long 
as DHS determines that the facilities achieve the requisite level of 
performance in each applicable standard.
    \8\ 72 Fed. Reg. 17,688 (Apr. 9, 2007) (codified at 6 C.F.R. pt. 
27).
    \9\ 72 Fed. Reg. 65,396 (Nov. 20, 2007). According to DHS, CFATS 
not only covers facilities that manufacture chemicals but also covers 
facilities that store or use certain chemicals as part of their daily 
operations. This can include food-manufacturing facilities that use 
chemicals of interest in the manufacturing process, universities that 
use chemicals to do experiments, or warehouses that store ammonium 
nitrate, among others.
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    ISCD uses a risk assessment approach to develop risk scores to 
assign chemical facilities to one of four final tiers. Facilities 
placed in one of these tiers (Tier 1, 2, 3, or 4) are considered to be 
high-risk, with Tier 1 facilities considered to be the highest risk. 
According to an ISCD document that describes how ISCD develops its 
CFATS risk score, the risk score is intended to be derived from 
estimates of consequence (the adverse effects of a successful attack), 
threat (the likelihood of an attack), and vulnerability (the likelihood 
of a successful attack, given an attempt). ISCD's risk assessment 
approach is composed of three models, each based on a particular 
security issue: (1) Release, (2) theft or diversion, and (3) sabotage, 
depending on the type of risk associated with the 322 chemicals.\10\ 
Once ISCD estimates a risk score based on these models, it assigns the 
facility to a final tier.
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    \10\ For release, the model assumes that a terrorist will release 
the chemical of interest at the facility and then estimates the risk to 
the surrounding population. For theft or diversion, the model assumes 
that a terrorist will steal or have the chemical of interest diverted 
to him or herself and then estimates the risk of a terrorist attack 
using the chemical of interest in a way that causes the most harm at an 
unspecified off-site location. For sabotage, the model assumes that a 
terrorist will remove the chemical of interest from the facility and 
mix it with water, creating a toxic release at an unspecified off-site 
location, and then estimates the risk to a medium-sized U.S. city.
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iscd has assigned thousands of facilities to tiers, but iscd's approach 
        to risk assessment did not reflect all elements of risk
ISCD Has Tiered Thousands of High-Risk Facilities
    In July 2007, ISCD began reviewing information submitted by the 
owners and operators of approximately 40,000 facilities. By January 
2013, ISCD had designated about 4,400 of the 40,000 facilities as high-
risk and thereby covered by the CFATS rule.\11\ ISCD had assigned about 
3,500 of those facilities to a final tier, of which about 90 percent 
were tiered because of the risk of theft or diversion. The remaining 10 
percent were tiered because of the risk of release or the risk of 
sabotage.\12\
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    \11\ According to ISCD officials, approximately 35,600 facilities 
were not considered high-risk because after preliminary evaluation, DHS 
concluded that they were considered not to be high-enough risk to be 
covered by the program; thus they were no longer covered by the rule.
    \12\ According to ISCD officials, depending on the chemicals on-
site, a facility can be final-tiered for more than one security issue.
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ISCD's Risk Assessment Approach Did Not Consider All Elements of Risk
    In April, 2013, we reported that the tiering approach ISCD uses to 
assess risk and assign facilities to final tiers did not consider all 
of the elements of risk associated with a terrorist attack involving 
certain chemicals. According to the National Infrastructure Protection 
Plan (NIPP), which, among other things, establishes the framework for 
managing risk among the Nation's critical infrastructure, risk is a 
function of three components--consequence, threat, and vulnerability--
and a risk assessment approach must assess each component for every 
defined risk scenario. Furthermore, the CFATS rule calls for ISCD to 
review consequence, threat, and vulnerability information in 
determining a facility's final tier. However, ISCD's risk assessment 
approach did not fully consider all of the core criteria or components 
of a risk assessment, as specified by the NIPP, nor did it comport with 
parts of the CFATS rule.
   Consequence.--The NIPP states that at a minimum, 
        consequences should focus on the two most fundamental 
        components--human consequences and the most relevant direct 
        economic consequences. The CFATS rule states that chemical 
        facilities covered by the rule are those that present a high 
        risk of significant adverse consequences for human life or 
        health, or critical economic assets, among other things, if 
        subjected to terrorist attack, compromise, infiltration, or 
        exploitation.\13\ Our report showed that ISCD's risk assessment 
        approach was limited to focusing on one component of 
        consequences--human casualties associated with a terrorist 
        attack involving a chemical of interest--and did not consider 
        consequences associated with economic criticality. ISCD 
        officials said that the economic consequences part of their 
        risk-tiering approach will require additional work before it is 
        ready to be introduced. In September 2012, ISCD officials said 
        they engaged Sandia National Laboratories to examine how ISCD 
        could gather needed information and determine the risk 
        associated with economic impact, but this effort is in its 
        early stages.
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    \13\ 6 C.F.R.  27.105, .205.
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   Threat.--ISCD's risk assessment approach was not consistent 
        with the NIPP because it did not consider threat for the 
        majority of regulated facilities. According to the NIPP, risk 
        assessments should estimate threat as the likelihood that the 
        adversary would attempt a given attack method against the 
        target. The CFATS rule requires that, as part of assessing site 
        vulnerability, facilities conduct a threat assessment, which is 
        to include a description of the internal, external, and 
        internally-assisted threats facing the facility and that ISCD 
        review the site vulnerability assessment as part of the final 
        determination of a facility's tier.\14\ Our report showed that: 
        (1) ISCD was inconsistent in how it assessed threat using the 
        different models because while it considers threat for the 10 
        percent of facilities tiered because of the risk of release or 
        sabotage, it did not consider threat for the approximately 90 
        percent of facilities tiered because of the risk of theft or 
        diversion, and (2) ISCD did not use current threat data for the 
        10 percent of facilities tiered because of the risk of release 
        or sabotage. ISCD officials said that they were considering 
        reexamining their approach and exploring how they could use 
        more current threat data for the 10 percent of facilities 
        tiered because of the risk of release or sabotage.
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    \14\ 6 C.F.R.  27.215, .220.
---------------------------------------------------------------------------
   Vulnerability.--ISCD's approach was also not consistent with 
        the NIPP because it did not consider vulnerability when 
        developing risk scores. According to the NIPP, risk assessments 
        should identify vulnerabilities, describe all protective 
        measures, and estimate the likelihood of an adversary's success 
        for each attack scenario. Similar to the NIPP, the CFATS rule 
        calls for ISCD to review facilities' security vulnerability 
        assessments as part of its tiering process.\15\ This assessment 
        is to include the identification of potential security 
        vulnerabilities and the identification of existing 
        countermeasures and their level of effectiveness in both 
        reducing identified vulnerabilities and meeting the 
        aforementioned risk-based performance standards. We reported 
        that the security vulnerability assessment contains numerous 
        questions aimed at assessing vulnerability and security 
        measures in place but the information was not used to assign 
        facilities to risk-based tiers. ISCD officials said they do not 
        use the information because it is ``self-reported'' by 
        facilities and they have observed that it tends to overstate or 
        understate vulnerability. Thus, ISCD's risk assessment approach 
        treats every facility as equally vulnerable to a terrorist 
        attack regardless of location and on-site security. ISCD 
        officials told us that they consider facility vulnerability 
        during the latter stages of the CFATS regulatory process, 
        particularly with regard to the development and approval of the 
        facility site security plan.
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    \15\ 6 C.F.R.  27.220.
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ISCD Had Begun to Take Actions to Examine How Its Approach Can Be 
        Enhanced
    In April 2013, we reported that ISCD had begun to take some actions 
to examine how its risk assessment approach can be enhanced. For 
example, ISCD had commissioned a panel of subject matter experts to 
examine the strengths and weaknesses of its risk assessment approach. 
We stated that ISCD appeared to be moving in the right direction, but 
would need to incorporate the various results of these efforts to help 
it ensure that the revised risk assessment approach includes all of the 
elements of risk. We further stated that once ISCD develops a more 
complete approach for assessing risk, it would then be better-
positioned to commission an independent peer review. In other past 
work, we have found that peer reviews are a best practice in risk 
management \16\ and that independent expert review panels can provide 
objective reviews of complex issues.\17\ As we previously stated in 
these reports, independent peer reviews cannot ensure the success of a 
risk assessment approach, but they can increase the probability of 
success by improving the technical quality of projects and the 
credibility of the decision-making process.\18\ In our April 2013 
report, we recommended that DHS enhance its risk assessment approach to 
incorporate all elements of risk, and conduct a peer review after doing 
so. DHS concurred with our recommendations and stated that it had 
efforts under way to address them.
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    \16\ See GAO, Coast Guard: Security Risk Model Meets DHS Criteria, 
but More Training Could Enhance Its Use for Managing Programs and 
Operations, GAO-12-14 (Washington, DC: Nov. 17, 2011). Peer reviews can 
identify areas for improvement and can facilitate sharing best 
practices.
    \17\ See GAO, Aviation Security: Efforts to Validate TSA's 
Passenger Screening Behavior Detection Program Underway, but 
Opportunities Exist to Strengthen Validation and Address Operational 
Challenges, GAO-10-763 (Washington, DC: May 20, 2011).
    \18\ See GAO, Coast Guard: Security Risk Model Meets DHS Criteria, 
but More Training Could Enhance Its Use for Managing Programs and 
Operations, GAO-12-14 (Washington, DC: November 17, 2011) and GAO, 
Homeland Security: Summary of Challenges Faced in Targeting Ocean-going 
Cargo Containers for Inspection, GAO-04-557T (Washington, DC: Mar. 31, 
2004).
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 iscd had revised its security plan review process, but plan approvals 
                            could take years
ISCD Revised Its Security Plan Review Process Because of ISCD Managers' 
        Concerns, and Plans to Measure Related Improvements Moving 
        Forward
    In April 2013 we reported that ISCD had made various revisions to 
its security plan review process to address concerns expressed by ISCD 
managers about slow review times. Under the CFATS rule, once a facility 
is assigned a final tier, it is to submit a site security plan to 
describe security measures to be taken and how it plans to address 
applicable risk-based performance standards.\19\ In November 2011, ISCD 
acknowledged that the security plan review process it was using was 
overly complicated and created bottlenecks and officials stated that 
revising the process was a top program priority.\20\ Shortly 
thereafter, ISCD developed an interim review process. ISCD officials 
subsequently told us that the interim process was unsustainable, labor-
intensive, and time-consuming because individual reviewers were 
sequentially looking at pieces of thousands of plans that funneled to 
one quality reviewer.\21\ In July 2012, ISCD began using a newly-
revised process, which entailed using contractors, teams of ISCD 
employees (e.g., physical, cyber, and chemical specialists), and ISCD 
field inspectors to review plans simultaneously.\22\
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    \19\ 6 C.F.R.  27.210(a)(3), .225.
    \20\ The specific security measures and practices discussed in 
DHS's guidelines state that they are neither mandatory nor necessarily 
the ``preferred solution'' for complying with the risk-based 
performance standards. Rather, according to DHS, they are examples of 
measures and practices that a facility may choose to consider as part 
of its overall strategy to address the standards. High-risk facility 
owners and operators have the ability to choose and implement other 
measures to meet the risk-based performance standards based on 
circumstances, security issues and risks, and other factors, so long as 
DHS determines that the suite of measures implemented achieves the 
levels of performance established by the standards.
    \21\ Using the interim review process, ISCD officials estimated 
that they authorized about 60 security plans and notified the 
facilities that inspectors would schedule visits to determine if the 
security measures described in the plan were in place.
    \22\ According to ISCD officials, this newly-revised process, like 
its predecessor, entailed a ``holistic'' review whereby individual 
reviewers were to consider how layers of security measures met the 
intent of each of the CFATS performance standards.
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    ISCD officials said that they believed the revised process was a 
``quantum leap'' forward, but they did not capture data that would 
enable them to measure how, if at all, the revised process is more 
efficient (i.e., less time-consuming) than the former processes. Moving 
forward, ISCD officials said they intended to measure the time it takes 
to complete parts of the revised site security plan review process and 
had recently implemented a plan to measure various aspects of the 
process. We reported that collecting data to measure performance about 
various aspects of this process is a step in the right direction, but 
it may take time before the process has matured to the point where ISCD 
is able to establish baselines and assess progress.
Security Plan Reviews Could Take Years to Complete, but ISCD Is 
        Examining How It Can Accelerate the Review Process
    We also reported in April 2013 that even with the most recent 
revisions to the review process, it could take years to review the 
plans of thousands of facilities that had already been assigned a final 
tier. ISCD hoped to address this by examining how it could further 
accelerate the review process. According to ISCD officials, between 
July 2012 and December 2012, ISCD had approved 18 security plans, with 
conditions.\23\ ISCD officials told us that they anticipate that the 
revised security plan review process could enable ISCD to approve 
security plans at a rate of about 30 to 40 a month.
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    \23\ All authorization letters include a condition noting that ISCD 
has not fully approved the personnel surety risk-based performance 
standard of plans because ISCD has not yet determined what the 
facilities are to do to meet all aspects of personnel surety. The 
personal surety risk-based performance standard requires that regulated 
chemical facilities implement measures designed to identify people with 
terrorist ties, among other things.
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    Using ISCD's estimated approval rate of 30 to 40 plans a month, our 
April 2013 report showed that it could take anywhere from 7 to 9 years 
to complete reviews and approvals for the approximately 3,120 plans 
\24\ submitted by facilities that had been final-tiered that ISCD had 
not yet begun to review.\25\ Figure 1 shows our April 2013 estimate of 
the number of years it could take to approve all of the security plans 
for the approximately 3,120 facilities that, as of January 2013, had 
been final-tiered, assuming an approval rate of 30 to 40 plans a month.
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    \24\ ISCD data showed that 380 security plans had started the 
review process and were at different phases of review.
    \25\ ISCD officials stated that the approval rate could reach 50 
plans a month in the third quarter of fiscal year 2013, as the review 
process becomes more efficient. We did not calculate the time to 
complete reviews of the approximately 3,120 plans that had been final-
tiered using ISCD's estimate of 50 per month because of uncertainty 
over when and if ISCD would reach this goal during the third quarter of 
fiscal year 2013. 


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



    It is important to note that our 7- to 9-year estimate did not 
include other activities central to the CFATS mission, either related 
to or aside from the security plan review process. In addition, our 
estimate did not include developing and implementing the compliance 
inspection process, which occurs after security plans are approved and 
is intended to ensure that facilities covered by the CFATS rule are 
compliant with the rule, within the context of the 18 performance 
standards. ISCD officials estimated that the first compliance 
inspections would commence in 2013, which means that the CFATS 
regulatory regime would likely be fully implemented for currently 
tiered facilities (to include compliance inspections) in 8 to 10 years. 
ISCD officials stated that they were actively exploring ways to 
expedite the speed with which the backlog of security plans could be 
cleared, such as reprioritizing resources and streamlining inspection 
and review requirements.
iscd has increased its efforts to communicate and work with facilities 
 and may have an opportunity to systematically gather feedback on its 
                            outreach efforts
ISCD's External Communication Efforts With Facilities Have Increased 
        Since 2007, but Selected Trade Associations Had Mixed Views 
        About ISCD Efforts
    Our April 2013 report stated that ISCD's efforts to communicate and 
work with owners and operators to help them enhance security had 
increased since the CFATS program's inception in 2007. ISCD had taken 
various actions to communicate with facility owners and operators and 
various stakeholders--including officials representing State and local 
governments, private industry, and trade associations--to increase 
awareness about CFATS. For example, among other things, ISCD has 
increased the number of visits to facilities to discuss enhancing 
security plans.\26\ However, trade associations' responses to questions 
we sent them about the program showed mixed views about ISCD's efforts 
to communicate with owners and operators through ISCD's outreach 
efforts. For example, 3 of the 11 trade associations that responded to 
our questions indicated that ISCD's outreach program was effective in 
general, 3 reported that the effectiveness of ISCD's outreach was 
mixed, 4 reported that ISCD's outreach was not effective, and 1 
respondent reported that he did not know.\27\
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    \26\ Among other outreach activities, ISCD manages the Chemical 
Security website, which includes a searchable database to answer 
questions about the CFATS program. ISCD also manages a Help Desk (call 
service center), which is operated on a contract basis by the Oak Ridge 
National Laboratory.
    \27\ We originally sent questions to 15 trade associations 
representing various members of the chemical industry and received 
responses from 11 of the 15. The trade associations that responded 
provided responses that represent, to their knowledge, the general view 
of their members. In some instances, the associations provided 
responses directly from member companies.
---------------------------------------------------------------------------
ISCD Sought Informal Feedback, but Did Not Solicit Systematic Feedback 
        on the Effectiveness of Its Outreach Efforts
    Our report showed that ISCD sought informal feedback on its 
outreach efforts but did not systematically solicit feedback to assess 
the effectiveness of outreach activities,\28\ and it did not have a 
mechanism to measure the effectiveness of these activities. Trade 
association officials reported that in general ISCD seeks informal 
feedback on its outreach efforts and that members provide feedback to 
ISCD. According to ISCD officials, feedback had been solicited from the 
regulated community generally on an informal basis, but inspectors and 
other staff involved in ISCD's outreach activities were not required to 
solicit feedback during meetings, presentations, and assistance visits 
on the effectiveness of the outreach. ISCD, as part of its annual 
operating plan, has established a priority for fiscal year 2013 to 
develop a strategic communications plan intended to address external 
communication needs including industry outreach, which may provide an 
opportunity to explore how ISCD can obtain systematic feedback on these 
activities. We concluded that a systematic approach for gathering 
feedback and measuring the results of its outreach efforts could help 
ISCD focus greater attention on targeting potential problems and areas 
needing improvement. We recommended that DHS explore opportunities to 
gather systematic feedback on facility outreach. DHS agreed and stated 
that it agreed with our recommendation and identified actions under way 
to address it.
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    \28\ ISCD solicits voluntary feedback via a survey provided to Help 
Desk users on their experience with call center representatives. The 
survey asks: Did the service meet expectations, were questions answered 
in a timely manner, and was the call service representative friendly 
and knowledgeable?
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    Chairman Meehan, Ranking Member Clarke, and Members of the 
subcommittee, this completes my prepared statement. I would be happy to 
respond to any questions you may have at this time.
    Appendix I: Department of Homeland Security's (DHS) Process for 
 Administering the Chemical Facility Anti-Terrorism Standards (CFATS) 
                                Program
    This appendix discusses DHS's process for administering the CFATS 
program. DHS's CFATS rule outlines a specific process for administering 
the program. Any chemical facility that possesses any of the 322 
chemicals in the quantities that meet or exceed the threshold quantity 
outlined in Appendix A of the rule is required to use DHS's Chemical 
Security Assessment Tool (CSAT)--a web-based application through which 
owners and operators of chemical facilities provide information about 
the facility.\29\ Once a facility is registered in CSAT, owners and 
operators are to complete the CSAT Top Screen--which is the initial 
screening tool or document whereby the facility is to provide DHS 
various data, including the name and location of the facility and the 
chemicals and their quantities at the site.\30\ DHS is to analyze this 
information using its risk assessment approach, which is discussed in 
more detail below, to initially determine whether the facility is high-
risk.\31\ If so, DHS is to notify the facility of its preliminary 
placement in one of four risk-based tiers--Tier 1, 2, 3, or 4.\32\ 
Facilities preliminarily placed in any one of these tiers are 
considered to be high-risk, with Tier 1 facilities considered to be the 
highest risk. Facilities that DHS initially determines to be high-risk 
are required to then complete the CSAT security vulnerability 
assessment, which includes the identification of potential critical 
assets at the facility and a related vulnerability analysis.\33\ DHS is 
to review the security vulnerability assessment and notify the facility 
of DHS's final determination as to whether or not the facility is 
considered high-risk, and if the facility is determined to be a high-
risk facility, about its final placement in one of the four tiers.\34\
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    \29\ 6 C.F.R.  27.200(b).
    \30\ For example, under the CFATS rule, a facility that possesses 
butane at a quantity equal to or exceeding 10,000 pounds must submit 
information to DHS because the substance is considered flammable if 
subject to release. A facility possessing another chemical, oxygen 
difluoride, would have to submit information to DHS if it possessed a 
quantity equal to or exceeding 15 pounds of the substance, which, 
according to the rule, is considered vulnerable to theft for use as a 
weapon of mass effect.
    \31\ 6 C.F.R.  27.205(a).
    \32\ 6 C.F.R.  27.220(a), (c).
    \33\ 6 C.F.R.  27.215. Preliminary Tier 4 facilities also have the 
option of submitting an alternate security program in lieu of a 
security vulnerability assessment. 6 C.F.R.  27.235(a)(1).
    \34\ 6 C.F.R.  27.220(b), (c).
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    Once assigned a final tier, the facility is required to use CSAT to 
submit a site security plan or participate in an alternative security 
program in lieu of a site security plan.\35\ The security plan is to 
describe the security measures to be taken to address the 
vulnerabilities identified in the vulnerability assessment, and 
identify and describe how security measures selected by the facility 
are to address the applicable risk-based performance standards.\36\ DHS 
then is to conduct a preliminary review of the security plan to 
determine whether it meets the regulatory requirements. If these 
requirements appear to be satisfied, DHS is to issue a letter of 
authorization for the facility's plan. DHS then is to conduct an 
authorization inspection of the facility and subsequently determine 
whether to approve the security plan. If DHS determines that the plan 
does not satisfy CFATS requirements, DHS then notifies the facility of 
any deficiencies and the facility must submit a revised plan correcting 
them.\37\ If the facility fails to correct the deficiencies, DHS may 
disapprove the plan.\38\ Following approval, DHS may conduct further 
inspections to determine if the facility is in compliance with its 
approved security plan.\39\ As of April 2013, DHS had not conducted any 
compliance inspections. Figure 2 illustrates the CFATS regulatory 
process.
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    \35\ An Alternative Security Program (ASP) is a third-party, 
facility, or industry organization's security program that has been 
determined to meet the requirements of, and provides for an equivalent 
level of security to that established by the CFATS regulation. CFATS 
allows regulated chemical facilities to submit an ASP in lieu of a Site 
Security Plan. 6 C.F.R.  27.235.
    \36\ 6 C.F.R.  27.225.
    \37\ According to Infrastructure Security Compliance Division 
(ISCD) officials, site security plans can also be sent back to 
facilities to be revised for any number of reasons. For example, during 
the preliminary review, if ISCD finds that a plan does not contain all 
the requisite data needed to meet regulatory requirements, ISCD can 
return the plan to the facility for more information.
    \38\ 6 C.F.R.  27.245.
    \39\ 6 C.F.R.  27.250. 


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    

    Mr. Meehan. I want to thank you, Mr. Caldwell. Before we 
take a moment to engage with our panelists, I want to recognize 
the Ranking Member for her opening statement.
    Ms. Clarke. Let me thank you for your indulgence this 
morning, Mr. Chairman, and thank you for convening this very 
important hearing. There are many central questions to be 
answered today, and I want to thank the Ranking Member, Mr. 
Thompson, as well as Chairman McCaul for being here earlier 
this morning and for their interest today.
    I have heard it described that 2 hours after a fertilizer 
distribution center exploded in the small community of West, 
Texas around sunset on Wednesday, April 17 much of the town, 18 
miles north of Waco, resembled a war zone. Some people were 
missing, hundreds more were rushed off to area hospitals, homes 
burnt, others threatened to collapse. The Texas Department of 
Public Safety, spokesman D.L. Wilson, offered this grim but 
accurate assessment of the devastation many saw via TV. 
``Massive, just like Iraq, just like the Murrah Building in 
Oklahoma City.''
    The explosion destroyed an apartment complex and a nursing 
home that sat within a few hundred yards. A nearby unoccupied 
elementary school was severely damaged. Walls and roofs of 
homes and businesses within a half-mile of the plant cracked, 
and windows even further. There were no Federal setback 
guidelines or requirements to separate extremely hazardous 
substances from surrounding populations, such as schools, 
houses, nursing homes, apartments, and businesses based on a 
worst-case scenario. I have been told that at least 800,000 
people across the United States live near hundreds of sites 
that store large amounts of potentially explosive ammonium 
nitrate.
    Hundreds of schools, hospitals, and churches, as well as 
hundreds of thousands of households also sit near these sites. 
Nationally, at least 12 ammonium nitrate facilities have 10,000 
or more people living within a mile, according to a Reuters 
analysis of hazardous chemical storage data maintained by 29 
States. Complaints about the DHS CFATS program have recently 
focused on the fact that facilities that should be reporting to 
CFATS are not being contacted about their required reporting 
duty under the program. The program has also come under 
scrutiny about the slow pace of inspecting and approving site 
security plans, or SSPs.
    A faster pace in the CFATS inspection and review process 
could have produced more tangible results in reducing 
vulnerabilities and consequences of a successful terrorist 
attack on its facilities. It could have also helped--excuse me, 
it could have also been a help for community emergency 
preparation for all hazardous material--excuse me, events, such 
as the apparent industrial accident we are examining today. It 
seems to me they are all intertwined.
    However, the current rush to approve SSPs in today's CFATS 
program may not build confidence among the public. When airline 
passengers face a flight delay they are frustrated and they 
complain. But they also don't want the flight rushed onto the 
runway at the expense of safety. The tragic events in West, 
Texas may bring into sharper focus the issue of how we as a 
country protect our citizens from not only the threat of 
terrorist attack on facilities that store explosive chemicals, 
but how we identify and classify these types of facilities to 
begin with.
    Will these methods be enough to protect hundreds of 
thousands of people living within chemical facility 
vulnerability zones? Will it help local emergency planning 
committees prepare for events like the one in West, Texas. As 
one of our witnesses has testified today--and it is just common 
sense that an engaged and informed public is a vigilant public. 
Citizens, first responders, medical professionals, plant 
workers, and local officials will need to be better informed 
about local chemical safety and safety information in order to 
be prepared for all types of emergencies.
    We do know that West Fertilizer did report the possession 
and storage of ammonium nitrate to the State Emergency Response 
Commission, or SERC. This was done under the Emergency Planning 
and Community Right-to-Know Act, or EPCRA. The SERC in Texas 
apparently maintains Tier 2 reports in electronic format, which 
is important to remember. It is critical that we continue to 
examine whether the Department of Homeland Security has 
established a norm, or a protocol if you will, that compares 
their list of CFATS Top Screen facilities to the Emergency 
Planning and Community Right-to-Know reports held 
electronically by each State, a relatively simple procedure 
that might have helped identify facilities that failed, like 
West, to conduct a Top Screen under CFATS.
    It would seem to me that DHS should have a memorandum of 
understanding with each State for routine electronic access to 
EPCRA data in that State. But I look forward for answers, I am 
looking for answers and someone on the panels who will be able 
to tell us that today. These questions, at the core of today's 
hearing, naturally produce other questions like what 
technological or business practice changes have enabled 
operating facilities that have submitted Top Screens to tier 
out of CFATS.
    I have been told that there are apparently some 3,000 
formerly-tiered facilities which are now considered less-
attractive terrorist targets and no longer of interest to DHS. 
Is there a specific development, technological or procedural, 
that encourages facilities to tier out? I would like to learn 
more about that. Another feature that I have learned about is 
that West Fertilizer seemingly lacked adequate liability 
insurance. While not a requirement in the CFATS program, 
companies that hold extremely hazardous substances and maintain 
liability insurance commensurate with a worst-case scenario 
would provide an incentive for companies to use methods that 
reduce potential consequences.
    This is just standard business practice, nothing earth-
shattering. Another critical infrastructure piece involved in 
this tragic event is rail transportation. West Fertilizer 
apparently received shipments of ammonium nitrate by rail. 
Under common carrier obligations, do shippers of extremely 
hazardous substances, or rail carriers, routinely carry enough 
insurance to cover liability associated with a worst-case 
release or explosion? I would be interested to find out. 
Federal, State, and local interagency planning and cooperation 
may be the key to finding solutions to prevent events like 
West, Texas from happening, whatever the cost.
    DHS must step up to the plate on security and find ways to 
identify outliers and retool efforts to assess risk-based 
vulnerabilities. Other agencies like EPA already have 
authorities under the Clean Air Act to incorporate methods to 
reduce consequences into their risk management plans. I 
understand the White House Chemical Security Interagency group 
is working on this issue. It will be helpful to find out what 
the President's Executive Order released this morning will 
actually do.
    So I thank you, Mr. Chairman, for holding this very 
critical hearing, and I look forward to the rest of this 
morning's testimony. I would like to just mention that, 
speaking on behalf of the Members on this side of the aisle, we 
are extremely pleased to see that the President's Executive 
Order on chemical facility security has been issued. It is 
especially timely for this hearing. Mr. Thompson wrote the 
President soon after the tragedy at West, Texas, calling for 
him to look at improving chemical security.
    If such an effort is established, it should include members 
with background in Government information policy on hazardous 
chemicals. This is always overlooked. Also, it should include 
members from labor, environmental, community, and environmental 
justice communities. So we look forward to learning these 
details. Mr. Chairman, I also have a submission for the record, 
and I would like to ask unanimous consent to have several of 
these pieces submitted for the record.
    Mr. Meehan. I have been given a copy of the materials that 
are asked to be submitted for the record, have reviewed them, 
and so ordered. Unanimous consent.
    [The information follows:]
   Statement of Dr. M. Sam Mannan and Mr. John S. Bresland, Mary Kay 
 O'Connor Process Safety Center, Artie McFerrin Department of Chemical 
                Engineering, Texas A&M University System
                             August 1, 2013
                              introduction
    Dr. M. Sam Mannan holds a BS, MS, and PhD in chemical engineering. 
He is a registered professional engineer in the States of Louisiana and 
Texas and a certified safety professional. He is a fellow of the 
American Institute of Chemical Engineers and a member of the American 
Society of Safety Engineers, the International Institute of Ammonia 
Refrigeration, and the National Fire Protection Association. He is 
director of the Mary Kay O'Connor Process Safety Center, holder of the 
T. Michael O'Connor Chair I in Chemical Engineering, and Regents 
Professor of Chemical Engineering at Texas A&M University. The Center 
seeks to develop safer processes, equipment, procedures, and management 
strategies that will minimize losses in the process industry. His area 
of expertise within the chemical engineering discipline is process 
safety. He teaches process safety engineering both at the undergraduate 
and graduate level. He also teaches continuing education courses on 
process safety and other specialty process safety courses in the United 
States and overseas. His research and practice is primarily in the area 
of process safety and related subjects. Mr. John S. Bresland graduated 
in chemistry from Londonderry Technical College, Northern Ireland and 
Salford University, England and has extensive experience in the Federal 
Government and the chemical industry, working for the United States 
Chemical Safety Board (as chairman/CEO and board member), Honeywell 
International Inc. and as a staff consultant for the Center for 
Chemical Process Safety. He is currently a research fellow at the Mary 
Kay O'Connor Process Safety Center. His technical and management 
expertise includes chemicals manufacturing, safety and environmental 
programs, re-engineering and facility design and construction. He has 
strong managerial track record of facilitating cross-functional 
teamwork and fostering positive community relationships. He also has an 
acknowledged reputation for opening doors of communication among 
diverse stakeholders. The opinions presented in this document represent 
the personal positions of Dr. Mannan and Mr. Bresland on these issues.
                               background
    Chemicals play a key role in today's high-tech world. The chemical 
industry is linked to every technologically-advanced industry. Only a 
handful of the goods and services we enjoy on a daily basis would exist 
without essential chemical products. Chemicals are also a big part of 
the economy in Texas and many other States. For example, the Texas 
chemical industry alone provides more than 100,000 jobs, and the 
State's chemical products are shipped world-wide at a value of more 
than $20 billion dollars annually.
    But the use of chemicals is a two-edged sword. Safe use creates a 
healthier economy and a higher standard of living. Unsafe use threatens 
our lives, our businesses, and our environment. As the industry's 
sophistication increases, so does the need to work and live safely with 
chemicals. In order to accomplish this, many stakeholders must work 
together diligently and with persistent determination. A common theme 
that also must be present is competence at all levels with regard to 
knowledge and execution of responsibilities.
    Today's hearings, ``West Fertilizer, Off the Grid: The Problem of 
Unidentified Chemical Facilities,'' are an appropriate Congressional 
response to the recent events in West, Texas. This event in West, Texas 
is tragic and our heart goes out to the affected people, neighborhoods 
and cities, and the local authorities. We must as a Nation and 
individuals explore and investigate such incidents and do our best to 
prevent the recurrence of such incidents. At the Center we had one 
Ph.D. researcher working on ammonium nitrate before the West, Texas 
incident happened, and since the West, Texas incident, we have had a 
team of five Ph.D. researchers researching this whole issue and 
associated topics. Mr. Bresland also led this team of five Ph.D. 
researchers on a visit to the incident site in West, Texas. This 
testimony and opinions are derived from looking at the aftermath of the 
West incident. It must also be stated that much is still unknown about 
the incident and as the root causes are identified and more definitive 
information becomes available, some of these conclusions and opinions 
may have to be revisited.
Description of the West, Texas, Incident
    On Wednesday, April 18, 2013, an initial fire exacerbated into an 
explosion at West Fertilizer in West, Texas, causing the death of 15 
people and injuring more than 200. The blast wave completely destroyed 
the facility and also caused varying levels of damage to many 
buildings, businesses, and homes at significantly long distances from 
the plant. More than 50 homes, a 50-unit apartment building, a nursing 
home, and four schools were in the impact zone. Of the 15 people who 
died, 12 were emergency responders, who were responding to the initial 
fire and trying to control and extinguish the fire when the 
catastrophic explosion occurred.
          alternatives for identifying the regulated community
    Following the West, Texas, incident, it has come to light that the 
facility was covered by the Department of Homeland Security's Chemical 
Facility Anti-Terrorism Standards (CFATS). However, the facility did 
not file any compliance documents with DHS, neither was the facility 
inspected by DHS. Thus the premise of this hearing, i.e., how can 
Federal agencies identify all the facilities covered by a specific 
regulation. While we pose a broad general question, we have primarily 
based our findings on how the West facility may have been identified 
for Federal oversight prior to the incident.
    The West Fertilizer facility had a capacity to store 110,000 lbs of 
ammonia and 540,000 lbs of ammonium nitrate (Tier II reporting data 
from 2012). All Federal agencies with responsibility to regulate 
safety/risk and associated issues should be required to conduct a 
primary screening to determine their regulatory landscape. We believe 
that a screening process can be conducted where information from 
different databases and sources can be mined to develop a comprehensive 
list of regulated facilities. We outline below a step-by-step approach 
that would have identified the West facility.
1. North American Industry Classification System (NAICS)
    The North American Industry Classification System (NAICS) is a 
system of grouping establishments into industries based on their 
production processes. The U.S. Census Bureau assigns each establishment 
one NAICS code based on its primary activity (the activity that 
generates the most revenue for the establishment). Information about 
the type of activity of the establishment is typically requested when a 
company applies for an Internal Revenue Service Employer Identification 
Number (EIN). A review of the NAICS databases would immediately flag 
the West facility as NAICS code 424510 (Grain and Field Bean Merchant 
Wholesalers). This determination alone would not be enough to determine 
coverage by CFATS but would at least indicate a need for further 
probing. Details about the NAICS system are given in Appendix A.
2. Tier II reports
    Any facility covered by Emergency Planning and Community Right-to-
Know Act (EPCRA) requirements must submit an Emergency and Hazardous 
Chemical Inventory Form to the Local Emergency Planning Committee 
(LEPC), the State Emergency Response Commission (SERC), and the local 
fire department. Any facility required under OSHA regulations to 
maintain material safety data sheets (MSDS) for hazardous chemicals 
stored or used in the work place with chemicals in quantities that 
equal or exceed a certain thresholds must submit annually an emergency 
and hazardous chemical inventory form to the Local Emergency Planning 
Committee (LEPC), the State Emergency Response Commission (SERC) and 
the local fire department. Facilities provide either a Tier I or Tier 
II form. Most States, such as Texas, require the Tier II form. Tier II 
forms require basic facility identification information, such as name, 
address, Dun & Bradstreet number, NAICS code, employee contact 
information (for emergencies and non-emergencies) and information about 
chemicals stored or used at the facility. The chemical information 
includes chemical name and maximum amount stored. It should be noted 
that the West, Texas, facility was exempted from filing the Tier II 
reports. However, a search of the Texas Tier II data indicates that the 
facility did file a Tier II report in which they indicated the storage 
of ammonium nitrate at quantities of 270 tons. Thus, given the 
information from NAICS data (described in item 1 above), a query of 
Texas Tier II reports would have immediately identified the West 
facility as covered by the CFATS regulation. This would be enough for 
DHS to communicate with the facility and request compliance 
submissions.
    Detailed information about the Tier II reporting is given in 
Appendix B.
3. Office of the Texas State Chemist (OTSC)--Texas Feed and Fertilizer 
        Control Service
    According to the Fertilizer Control Act--Texas Agriculture Code 
(1981), Chapter 63, ``a person may not manufacture or distribute a 
commercial fertilizer in this state without a valid current permit 
issued by the Service and a person may not manufacture or distribute a 
commercial fertilizer in this state, other than customer-formula 
fertilizer, unless the person first registers the fertilizer with the 
Service.'' According to this regulation, an application for a 
registration by any person that owns an ammonium nitrate facility must 
be submitted on a form, which includes information about the amount of 
ammonium nitrate. Again, a query of Records from the OTSC could be used 
to identify facilities potentially storing Ammonium Nitrate.
    Detailed information about the OTSC regulation and program 
requirements is given in Appendix C.
4. Other Sources of Information
    The Agricultural Retailers Association (ARA) is a non-profit trade 
association representing the interests of retailers on legislative and 
regulatory issues Nation-wide. The Fertilizer Institute (TFI) is the 
leading voice for the Nation's fertilizer industry, including 
producers, importers, wholesalers, and retailers. Fertilizer companies 
can become members of ARA and/or TFI through a registration process. 
Once a company becomes a member of ARA, it can get benefits such as 
technical assistance, ARA Retailer Fact$ Newsletter, member alerts, 
unlimited access to valuable website features and annual conference and 
exposition. It is not known if the West facility was a member of either 
association. While the list of members is not available on-line, it is 
conceivable that the DHS could develop outreach programs in conjunction 
with ARA and TFI to inform the potentially-regulated community about 
CFATS regulation and associated compliance requirements.
    Most municipalities require a Certificate of Occupancy (CO) for any 
building and/or facility. The CO is a document issued by Building 
Inspection, which permits land, and/or buildings to be used for the 
purpose(s) listed on the CO. COs are required prior to occupancy of a 
building or land. Again, it is conceivable that the DHS could develop 
outreach programs in conjunction with cities and local government to 
inform the potentially-regulated community about CFATS regulation and 
associated compliance requirements. Appendix D provides more details 
about occupancy permit requirements.
                    conclusions and recommendations
    The incident at West, Texas, is a tragedy that could and should 
have been avoided. However, this requires continued and committed 
efforts by all stakeholders. A major part of getting this accomplished 
is identifying the regulated community. We have presented above a case 
study of how the West facility could have been identified for coverage 
by the CFATS regulation. We believe a similar case can be made for any 
chemical and any regulation, i.e., a systematic approach requiring 
minimal effort can be used to identify covered facilities, develop 
communication, and provide outreach. Our conclusions and 
recommendations are primarily focused on that aspect.
    (1) Based on the case study presented here, we strongly urge the 
        U.S. Congress to mandate a study to determine the best possible 
        way for mining currently-available sources of information to 
        develop a methodology for identifying the regulated community 
        for any given regulation.
    (2) Notwithstanding the study recommended in: (1) Above, all 
        Federal agencies with responsibility to regulate safety/risk 
        and associated issues should be required to conduct a primary 
        screening to determine their regulatory landscape.
    (3) Once the regulatory landscape is determined in item: (2) Above, 
        each Federal agency should be charged with developing a plan 
        and schedule for ensuring compliance through regular 
        inspections.
    (4) The U.S. Congress should require all Federal agencies 
        participating in the National Response Team (NRT) to conduct 
        inter-agency training and briefings with regard to what each 
        agency is covering and how they are enforced. Federal agencies 
        should be encouraged to develop protocols for referrals from 
        one agency to another.
    (5) Inspections can only yield positive results when an adequate 
        number of qualified, trained, and competent inspectors is 
        available. Clearly, in these days of budget restrictions, 
        hiring and training hundreds or thousands more inspectors is 
        going to be a challenge at least and at worst impossible. A 
        cost-effective and viable alternative is third-party certified 
        audits and inspections mentioned in item (6) below.
    (6) Congress should consider directing Federal agencies to create 
        verifiable and certified third-party auditing and inspection 
        systems. This approach has worked for ISO-9000 certifications 
        and other programs. There are market-based approaches through 
        which this regime can be implemented without causing a major 
        burden on the regulatory authority or the regulated community. 
        For example, refer to the studies done by the University of 
        Pennsylvania's Risk Management and Decision Processes Center 
        regarding third-party audits and inspections for EPA's Risk 
        Management Program \1\ and Environmental Programs.\2\
---------------------------------------------------------------------------
    \1\ http://opim.wharton.upenn.edu/risk/library/
2001_JCB_3rdPartyAudits.pdf.
    \2\ http://opim.wharton.upenn.edu/risk/downloads/archive/
arch272.pdf.
---------------------------------------------------------------------------
    (7) EPCRA Sections 301-303 provide a systematic framework for 
        coordination of hazard information, prevention programs, and 
        emergency planning and response involving the Federal 
        Government, State emergency response commissions (SERC), and 
        the local emergency planning committees (LEPC). However, 
        because of a lack of systematic funding and operational 
        capability, most LEPCs are dysfunctional or exist in name only. 
        Some further examination into better communication between the 
        Federal and State partners is needed. We urge the U.S. Congress 
        to look into ways to solve this problem and utilize the LEPC 
        framework in an effective manner.
    (8) The fact that a nursing home, schools, residential 
        neighborhoods, and other public facilities were so near the 
        blast zone in the West Fertilizer incident raises questions 
        about zoning and land-use planning. We urge the U.S. Congress 
        to look into ways to encourage States and local governments to 
        improve and enforce risk-based zoning and land-use planning.
                                summary
    We applaud the U.S. Congress for providing leadership in developing 
appropriate programs for preventing and addressing chemical threats. We 
have made a lot of progress in moving forward to overcome the 
challenges we face in using chemicals to improve our lives without 
hurting the industry employees, the public, and the environment. We all 
can agree that chemicals do improve our lives but we also can agree 
that they can hurt us as well, and if we do not do the right things, 
they can make us extinct as well. This is a serious matter and we are 
pleased that people at the highest level of Government are involved at 
looking at this matter.
   Appendix A.--North American Industry Classification System (NAICS)
    The North American Industry Classification System (NAICS) is a 
system of grouping establishments into industries based on their 
production processes. NAICS classifies industries using 2-, 3-, 4-, 5-, 
and 6-digit levels of detail. This classification replaces the 
previously used Standard Industrial Classification (SIC) codes.
    There is no central Government agency with the role of assigning, 
monitoring, or approving NAICS codes for establishments. The U.S. 
Census Bureau assigns each establishment one NAICS code based on its 
primary activity (the activity that generates the most revenue for the 
establishment).\3\ Information about the type of activity at the 
establishment is typically requested when a company applies for an 
Employer Identification Number (EIN) in order to assign the appropriate 
NAICS code.\4\
---------------------------------------------------------------------------
    \3\ What is NAICS and how is it used? http://www.census.gov/eos/
www/naics/faqs/faqs.html#q1.
    \4\ http://www.naics.com/faq.htm.
---------------------------------------------------------------------------
    The NAICS Association, LLC can provide lists of establishments 
classified according to their NAICS code. Lists provided by the NAICS 
Association can be customized by multiple criteria in order to obtain a 
more targeted list. Several types of records are available, which 
include different levels of information for each establishment (See 
Table 1). The price of each type of report is shown in Table 2.

                                       TABLE 1.--STANDARD RECORD LAYOUTS *
----------------------------------------------------------------------------------------------------------------
                                                                 Enhanced Telemarketing
           Mailing Record               Telemarketing Record             Record             Prospecting Record
----------------------------------------------------------------------------------------------------------------
DUNS Number.........................  DUNS Number.............  DUNS Number............  DUNS Number.
Business Name.......................  Business Name...........  Business Name..........  Business Name.
Tradestyle Name.....................  Tradestyle Name.........  Tradestyle Name........  Tradestyle Name.
Mail Address........................  Mail Address............  Mail Address...........  Mail Address.
Street Address......................  Street Address..........  Street Address.........  Street Address.
SIC Codes (up to 4).................  SIC Codes (up to 4).....  SIC Codes (up to 4)....  SIC Codes (up to 4).
Top Contact Name/Title..............  Top Contact Name/Title..  Top Contact Name/Title.  Top Contact Name/Title.
Two NAICS Codes & Descriptions......  Two NAICS Codes &         Two NAICS Codes &        Two NAICS Codes &
                                       Descriptions.             Descriptions.            Descriptions.
                                      2nd NAICS Code Des......  2nd NAICS Code & Des...  2nd NAICS Code & Des.
                                      Telephone Number**......  Telephone Number.......  Telephone Number.
                                                                Sales Volume OR No. of   Sales Volume.
                                                                 Employees**.
                                                                                         Employees Here.**
                                      E-mail addresses also     .......................  Employees Total.**
                                       available. Ask for
                                       details!.
                                                                                         Year Started.**
                                                                                         Status Indicator (HQ,
                                                                                          SL, Branch).**
----------------------------------------------------------------------------------------------------------------
* http://www.naics.com/record-types.html.
** [Sic].


            TABLE 2.--PRICING FOR CUSTOMIZED BUSINESS LISTS *
------------------------------------------------------------------------
               Record Types                     Domestic List Pricing
------------------------------------------------------------------------
Mailing Record............................  $100/thousand.
Telemarketing Record......................  $140/thousand.
Enhanced Telemarketing Record.............  $200/thousand.
Prospective Records.......................  $300/thousand.
Prospective Records with linkage..........  $900/thousand.
------------------------------------------------------------------------
* Adapted from: http://www.naics.com/Service-CustomLists.html.

    Since NAICS codes represent the primary activity of an 
establishment in the U.S. Census Bureau database, other activities may 
not be apparent if only the primary code is checked. For example, the 
West fertilizer used the NAICS code 42451 on its Risk Management Plan 
(submitted in 2011).\5\ This code only stands for grain and field bean 
merchant wholesalers; the activity as a fertilizer distributor is not 
apparent. But each establishment can have more than one NAICS code 
because various other Government agencies, trade associations, and 
regulation boards adopted the NAICS classification system to assign 
codes to establishments for their own programmatic needs. For example, 
the West fertilizer company employed the NAICS code 325314 on its Tier 
II form,\6\ which stands for fertilizer (mixing only) manufacturing.
---------------------------------------------------------------------------
    \5\ Risk Management Plan of the West fertilizer http://
www.rtknet.org/db/rmp/
rmp.php?facility_id=100000135597&database=rmp&detail=3&datype=T.
    \6\ Tier II form of the West fertilizer.
---------------------------------------------------------------------------
    Hence, in order to identify every establishment involved in a 
certain activity, more than one NAICS code needs to be checked. For 
example, in order to determine the number of businesses that deal with 
ammonium nitrate, at least four codes need to be checked. Detailed 
results on the number of facilities with potential to store ammonium 
nitrate obtained from the NAICS Association website are provided in the 
Table 3.

 TABLE 3.--INDUSTRIES WITH A HIGH PROBABILITY OF HAVING AMMONIUM NITRATE
                                    *
------------------------------------------------------------------------
                                                               Number of
                                                                Business
                Code                       Industry Title      in United
                                                                 States
------------------------------------------------------------------------
325311..............................  Nitrogenous Fertilizer         543
                                       Manufacturing.
325314..............................  Fertilizer (Mixing             618
                                       Only) Manufacturing.
424910..............................  Farm Supplies Merchant      19,474
                                       Wholesalers.
424510..............................  Grain and Field Bean         8,201
                                       Merchant Wholesalers.
------------------------------------------------------------------------
* NAICS search http://www.naics.com/search.htm.

                 additional information on naics codes

          TABLE A1.--NEW HIERARCHICAL STRUCTURE OF NAICS CODES*
------------------------------------------------------------------------
                                                The New Hierarchical
                                                      Structure
------------------------------------------------------------------------
XX........................................  Industry Sector (20 broad
                                             sectors up from 10 SIC).
XXX.......................................  Industry Sub sector.
XXXX......................................  Industry Group.
XXXXX.....................................  Industry.
XXXXXX....................................  U.S., Canadian or Mexican
                                             National specific.
------------------------------------------------------------------------
* http://www.naics.com/info.htm.


                                            TABLE A2.--NAICS SECTORS*
----------------------------------------------------------------------------------------------------------------
                     Code                                         NAICS Sectors                        Count
----------------------------------------------------------------------------------------------------------------
11............................................  Agriculture, Forestry, Fishing and Hunting......         553,708
21............................................  Mining..........................................          37,975
22............................................  Utilities.......................................          37,237
23............................................  Construction....................................       1,837,084
31-33.........................................  Manufacturing...................................         762,527
42............................................  Wholesale Trade.................................         929,149
44-45.........................................  Retail Trade....................................       2,206,681
48-49.........................................  Transportation and Warehousing..................         564,026
51............................................  Information.....................................         410,057
52............................................  Finance and Insurance...........................         817,617
53............................................  Real Estate Rental and Leasing..................         929,217
54............................................  Professional, Scientific, and Technical Services       2,648,062
55............................................  Management of Companies and Enterprises.........          53,806
56............................................  Administrative and Support and Waste Management        3,372,309
                                                 and Remediation Services.
61............................................  Educational Services............................         402,000
62............................................  Health Care and Social Assistance...............       1,611,468
71............................................  Arts, Entertainment, and Recreation.............         359,010
72............................................  Accommodation and Food Services.................         869,846
81............................................  Other Services (except Public Administration)...       2,174,657
92............................................  Public Administration...........................        299,778
----------------------------------------------------------------------------------------------------------------
* Ibid.

    Under NAICS code system, sectors 31 to 33 stand for manufacturing. 
The first three digits 325 stand for chemical manufacturing. The first 
four digits 3253 stand for pesticide, fertilizer, and other 
agricultural chemical manufacturing. It includes sub codes 325311, 
325312, 325314, and 325320.\7\ Details of these codes are given in 
Table A3.
---------------------------------------------------------------------------
    \7\ 2012 NAICS Definition http://www.census.gov/eos/www/naics/.

  TABLE A3.--DETAILED TYPES OF INDUSTRY UNDER NAICS CODE STARTING WITH
                                  3253
------------------------------------------------------------------------
                                                               Number of
            Codes                           Title                 U.S.
                                                                Business
------------------------------------------------------------------------
325311.......................  Nitrogenous Fertilizer                543
                                Manufacturing.
325312.......................  Phosphatic Fertilizer                 149
                                Manufacturing.
325314.......................  Fertilizer (Mixing Only)              618
                                Manufacturing.
325320.......................  Pesticide and Other                   982
                                Agricultural Chemical
                                Manufacturing.
------------------------------------------------------------------------


    If we look deeper into these codes, we will get much more 
information from them. For example, code 325311 comprises 
establishments primarily engaged in one or more of the following:
    (1) manufacturing nitrogenous fertilizer materials and mixing 
        ingredients into fertilizers;
    (2) manufacturing fertilizers from sewage or animal waste; and
    (3) manufacturing nitrogenous materials and mixing them into 
        fertilizers.
    The corresponding index entries are listed in Table A4.\8\ Clearly, 
anhydrous ammonia and ammonium nitrate are involved in the 
establishment with this code.
---------------------------------------------------------------------------
    \8\ 325311 Nitrogenous Fertilizer Manufacturing http://
www.census.gov/cgi-bin/sssd/naics/naicsrch.

        TABLE A4.--CORRESPONDING INDEX ENTRIES UNDER CODE 325311
------------------------------------------------------------------------
               2012 NAICS                  Corresponding Index Entries
------------------------------------------------------------------------
325311.................................  Ammonia, anhydrous and aqueous,
                                          manufacturing.
325311.................................  Ammonium nitrate manufacturing.
325311.................................  Ammonium sulfate manufacturing.
325311.................................  Anhydrous ammonia
                                          manufacturing.
325311.................................  Fertilizers, mixed, made in
                                          plants producing nitrogenous
                                          fertilizer materials.
325311.................................  Fertilizers, natural organic
                                          (except compost),
                                          manufacturing.
325311.................................  Fertilizers, of animal waste
                                          origin, manufacturing.
325311.................................  Fertilizers, of sewage origin,
                                          manufacturing.
325311.................................  Nitric acid manufacturing.
325311.................................  Nitrogenous fertilizer
                                          materials manufacturing.
325311.................................  Plant foods, mixed, made in
                                          plants producing nitrogenous
                                          fertilizer materials.
325311.................................  Urea manufacturing.
------------------------------------------------------------------------

    The Census Bureau can provide statistics of chemical production 
quarterly with regard to fertilizer products.\9\ A detailed spreadsheet 
can be found by searching 3253. Part of this spreadsheet is captured as 
Figure A1.\10\ We can get detailed fertilizer-related chemicals from 
this sheet. Anhydrous ammonia and ammonium nitrate are inside.
---------------------------------------------------------------------------
    \9\ NAICS 3253 http://www.census.gov/econ/industry/current/
c3253.htm.
    \10\ MQ325B--Fertilizer and Related Chemicals http://
www.census.gov/manufacturing/cir/historical_data/mq325b/. 


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



                               Appendix B
                            tier ii reports
    Any facility covered by Emergency Planning and Community Right-to-
Know Act (EPCRA) requirements must submit an Emergency and Hazardous 
Chemical Inventory Form to the Local Emergency Planning Committee 
(LEPC), the State Emergency Response Commission (SERC), and the local 
fire department. Facilities required under OSHA regulations to maintain 
material safety data sheets (MSDS) for hazardous chemicals stored or 
used in the work place with chemicals in quantities that equal or 
exceed a certain thresholds must submit an emergency and hazardous 
chemical inventory form to the LEPC, the SERC, and the local fire 
department annually. Facilities provide either a Tier I or Tier II 
form. Most States, such as Texas, require the more comprehensive Tier 
II form.\11\ In Texas, the reports are collected by the Department of 
State Health Services.
---------------------------------------------------------------------------
    \11\ What facilities are covered? http://www.epa.gov/osweroe1/
content/epcra/epcra_stor- age.htm.
---------------------------------------------------------------------------
    Tier II forms require basic facility identification information, 
such as name, address, Dun & Bradstreet number, NAICS code, employee 
contact information (for emergencies and non-emergencies) and 
information about chemicals stored or used at the facility. The latter 
includes the following:\12\
---------------------------------------------------------------------------
    \12\ How do I submit a Tier I or Tier II inventory report? http://
www.epa.gov/osweroe1/content/epcra/epcra_storage.htm.
---------------------------------------------------------------------------
   The chemical name or the common name as indicated on the 
        MSDS;
   An estimate of the maximum amount of the chemical present at 
        any time during the preceding calendar year and the average 
        daily amount;
   A brief description of the manner of storage of the 
        chemical;
   The location of the chemical at the facility;
   An indication of whether the owner of the facility elects to 
        withhold location information from disclosure to the public.
    Tier II information for a specific chemical at a facility may be 
obtained by sending a written request to the State emergency response 
commission or the local emergency planning committee. If they do not 
have the requested Tier II information, they must obtain it from the 
facility. For chemicals present below 10,000 pounds, the response is 
discretionary by either the State Emergency Response Commission or the 
Local Emergency Planning Committee and depends on the justification of 
need by the requestor. The facility must make the information available 
to the SERC or LEPC if they request it on behalf of an individual.\13\
---------------------------------------------------------------------------
    \13\ How will citizens have access to Tier I or Tier II inventory 
forms? http://emergencymanagement.supportportal.com/link/portal/23002/
23016/Article/17885/How-will-citizens-have-access-to-Tier-I-or-Tier-II-
inventory-forms.
---------------------------------------------------------------------------
    In general, Tier II forms have comprehensive information and could 
be useful to track a certain chemical such as ammonium nitrate. 
However, some facilities may be exempted from submitting Tier II.\14\
---------------------------------------------------------------------------
    \14\ Exemptions/Applicability Section 311 & 312 http://www.epa.gov/
osweroe1/content/epcra/epcra-qa_exempt_311.htm.
---------------------------------------------------------------------------
                               Appendix C
  office of the texas state chemist (otsc)--texas feed and fertilizer 
                            control service
    OTSC includes two units: The Texas Feed and Fertilizer Control 
Service and the Agricultural Analytical Service. The Texas Feed and 
Fertilizer Control Service (FFCS) is the State government agency 
responsible for administering the Texas Commercial Fertilizer Control 
Act of the Texas Agriculture Code Chapter 63, and the Texas 
Administrative Code Title 4 Chapter 65 Commercial Fertilizer Rules.\15\
---------------------------------------------------------------------------
    \15\ http://otscweb.tamu.edu/Reports/pdf/nwl/2013/May-2013-NL.pdf.
---------------------------------------------------------------------------
    OTSC's mission is to ``protect consumers and enhance agribusiness 
through its feed and fertilizer regulatory compliance program, 
surveillance and monitoring of animal-human health and environmental 
hazards, and preparedness planning.''\16\
---------------------------------------------------------------------------
    \16\ http://otscweb.tamu.edu/About/Mission.aspx.
---------------------------------------------------------------------------
    According to the Fertilizer Control Act--Texas Agriculture Code 
Chapter 63, ``a person may not manufacture or distribute a commercial 
fertilizer in this state [Texas] without a valid current permit issued 
by the Service [OTSC] and a person may not manufacture or distribute a 
commercial fertilizer in this state, other than customer-formula 
fertilizer, unless the person first registers the fertilizer with the 
Service''.\17\
---------------------------------------------------------------------------
    \17\ http://otscweb.tamu.edu/Laws/PDF/FertilizerControlAct.pdf.
---------------------------------------------------------------------------
    The application form for the permit to distribute commercial 
fertilizer requires the following information: Tax number (Federal 
I.D.); name of firm; telephone and fax number; mailing address; email 
and website address; and the class of permit applied for.
    The fertilizer application registration requires the following 
information: Name; address; and telephone number of the fertilizer 
facility; name of authorized representative; a list of the brands or 
product names of all fertilizers distributed in Texas; the ``Net 
Weight'' of each package in which the product will be distributed (or 
bulk); and identification of the product by type: Pesticide; Specialty; 
On-Farm-Use; Liquid or Dry.\18\
---------------------------------------------------------------------------
    \18\ Office of the Texas State Chemist; Texas Feed And Fertilizer 
Control Service. Fertilizer Registration Application Form. http://
otscweb.tamu.edu/Forms-Fees/Forms/FertilizerRegistrationApplication-2-
19-2008.pdf.
---------------------------------------------------------------------------
    In addition, the Texas Agriculture Code Chapter 63 has a subchapter 
on ammonium nitrate, which specifically requires the following: ``A 
person may not produce, store, transfer, offer for sale or sell 
ammonium nitrate or ammonium nitrate material unless the person holds a 
certificate of registration issued by the service under this 
subchapter.''\19\ Accordingly, OTSC has records of those facilities or 
individuals handling ammonium nitrate. The information required in the 
permit to distribute ammonium nitrate or ammonium nitrate material 
includes the following: Permit number, tax number, name, telephone 
number, mailing address, and email address or website of the company.
---------------------------------------------------------------------------
    \19\ http://otscweb.tamu.edu/Laws/PDF/FertilizerControlAct.pdf.
---------------------------------------------------------------------------
    The Texas Agriculture Code Chapter 63 Subchapter E (Fees) 
establishes an inspection fee for a commercial fertilizer distributed 
in Texas as 36 cents per ton of fertilizer. A facility must report the 
tonnage and pay the inspection fee ``(1) quarterly if the total amount 
of inspection fees in a year is $100 or more; or (2) annually if the 
total amount of inspection fees in a year is less than $100.''\20\ 
Therefore, OTSC also has records of the total quantity of fertilizer 
handled by each facility. However, the quantity of each type of 
fertilizer (e.g. ammonium nitrate or other) is not specified in the 
tonnage report.
---------------------------------------------------------------------------
    \20\ Fertilizer Control Act.  63.072. Tonnage Report and 
Inspection Fee Payment.
---------------------------------------------------------------------------
                  equivalent agencies in other states
    State agencies equivalent to OTSC--Texas Feed and Fertilizer 
Control Service also exist in other States. 


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



          agencies regulating fertilizers in different states
    The following is a brief list of agencies regulating fertilizers in 
several States. This is not a comprehensive list and it was included to 
emphasize that there are agencies in each State which likely maintain 
records on fertilizer facilities that can be used as source of 
information for DHS or other Federal agency.
California--California Department of Food and Agriculture
            Fertilizing Materials Registration Application \21\
---------------------------------------------------------------------------
    \21\ http://www.tsgusa.com/capabilities/state_fertilizers/
california.htm.
---------------------------------------------------------------------------
    In California, fertilizers and amending materials are regulated by 
the California Department of Food and Agriculture (CDFA) under the 
Feed, Fertilizer and Livestock Drugs Regulatory Services Branch 
(FFLDERS).
            Fertilizing Materials inspection program \22\
---------------------------------------------------------------------------
    \22\ http://www.cdfa.ca.gov/is/ffldrs/fertilizer.html.
---------------------------------------------------------------------------
    The Fertilizing Materials Inspection Program is an industry-funded 
program that ensures consumers receive fertilizing materials that are 
safe and effective and meet the quality and quantity guaranteed by the 
manufacturer. Inspectors and investigators located throughout the State 
conduct routine sampling and inspections; respond to consumer 
complaints; and enforce the laws and regulations that govern the 
manufacturing and distribution of fertilizing materials. Registration 
Specialists carefully review product labels for misleading claims and 
compliance with existing labeling requirements. (Fertilizing Materials 
Licensing, Registration & Labeling Guide)
Washington--Washington State Department of Agriculture
    All fertilizer products distributed in Washington must first be 
registered with Washington State Department of Agriculture (WSDA). An 
additional registration requirement for waste-derived fertilizers was 
added to the fertilizer law in 1998. Waste-derived and micronutrient 
fertilizers must go through a Department of Ecology (Ecology) review 
before being registered by WSDA. All registration applications must 
first be submitted to WSDA. WSDA will forward information to Ecology 
for further review on an as-needed basis.\23\
---------------------------------------------------------------------------
    \23\ http://agr.wa.gov/pestfert/fertilizers/
productregistration.aspx.
---------------------------------------------------------------------------
Florida--Florida Department of Agriculture and Consumer Services \24\
---------------------------------------------------------------------------
    \24\ http://www.freshfromflorida.com/onestop/aes/fertilizer.html.
---------------------------------------------------------------------------
    The Fertilizer Section is responsible for enforcing the 
requirements of Florida's Commercial Fertilizer Law, Chapter 576, 
Florida Statutes and Chapter 5E-1, Florida Administrative Code. 
Applicant(s) requesting to distribute fertilizer in the State of 
Florida with their name appearing on the fertilizer label as guarantor 
are required to complete the following registration requirements using 
the Fertilizer Regulatory Website on-line located at: http://
lims.flaes.org. All registered licensees report monthly tonnage using 
the Fertilizer Regulatory Website and pay an inspection fee of $1.00 
per ton for mixed fertilizer and fertilizer materials, including an 
additional $.50 per ton if the fertilizer contains nitrogen or 
phosphate. The inspection fee for liming materials and untreated 
phosphatic materials is $.30 per ton.
Minnesota--Minnesota Department of Agriculture \25\ \26\
---------------------------------------------------------------------------
    \25\ http://www.mda.state.mn.us/licensing/licensetypes/
specialty.aspx.
    \26\ http://www.mda.state.mn.us/licensing/licensetypes/
fertilizer.aspx.
---------------------------------------------------------------------------
    The objective of the Fertilizer Licensing Program is to promote 
fair trade practices among businesses that offer fertilizer products 
for sale and provide consumer awareness/protection by providing 
accurate, meaningful, and uniform labeling and licensing standards.
Michigan--Michigan Department of Agriculture and Rural Development
    The Michigan Department of Agriculture and Rural Development \27\ 
(MDARD) administers licenses, registrations, inspects and tests 
fertilizer, soil conditioner, and liming materials distributed or 
manufactured in Michigan.\28\
---------------------------------------------------------------------------
    \27\ http://www.michigan.gov/mdard.
    \28\ https://www.michigan.gov/statelicensesearch/0,4671,7-180-
24786_24812-81089--,00.html.
---------------------------------------------------------------------------
New Mexico--New Mexico Department of Agriculture \29\
---------------------------------------------------------------------------
    \29\ http://www.nmda.nmsu.edu/fsf/fertilizer-and-soil-conditioners/
fertilizersoil-conditioner-registration-and-tonnage/.
---------------------------------------------------------------------------
    In New Mexico, products are registered by the individual product 
label. Registration fees are $5.00 per product in any size quantities. 
There is a $10.00 annual inspection fee per product if distributed in 
quantities of 5 pounds or less in lieu of the quarterly inspection 
fees. There is no exemption for sample size containers. A registration 
application packet consists of a complete fertilizer/soil conditioner 
registration application, complete, legible label for each product 
being registered and fees.
North Dakota--North Dakota Department of Agriculture \30\
---------------------------------------------------------------------------
    \30\ http://www.nd.gov/ndda/general-resource/north-dakota-state-
government/ndda-fertilizer-registration-and-licensing-guidelines.
---------------------------------------------------------------------------
    The North Dakota Department of Agriculture regulates fertilizer and 
soil amendment products through the authority provided by Chapter 19-
20.1 of the North Dakota Century Code (N.D.C.C.). The fertilizer law is 
primarily a consumer protection law, ensuring that labeling for 
fertilizer products accurately reflects product composition and the 
concentration of key ingredients. N.D.C.C. 19-20.1 is also a licensing 
law, requiring certain businesses to be licensed to distribute and sell 
fertilizer products, thereby providing a level playing field for 
businesses and uniform regulatory oversight. Therefore, the Department 
uses its statutory authority to regulate the registration, 
distribution, sale, and labeling of fertilizer products.
Oklahoma--Oklahoma Department of Agriculture, Food and Forestry, 
        Consumer Protection Services \31\ \32\
---------------------------------------------------------------------------
    \31\ http://www.ok.gov/okag/forms/cps/cfa.pdf.
    \32\ http://www.ok.gov/okag/cps-fertilizer.htm.
---------------------------------------------------------------------------
    This department deals with Fertilizer License Application, which 
indicates the products stored in bulk and/or distributed, including 
Anhydrous Ammonia, Liquid Fertilizer, Ammonium Nitrate, Dry Bulk 
Fertilizer and Bagged Fertilizer.
Oregon--Oregon Department of Agriculture \33\ \34\ \35\
---------------------------------------------------------------------------
    \33\ http://www.oregon.gov/ODA/pest/Pages/fertilizer.aspx.
    \34\ http://oda.state.or.us/dbs/heavy_metal/search.lasso.
    \35\ http://www.oregon.gov/ODA/PEST/docs/pdf/2011_fert_guide_0.pdf.
---------------------------------------------------------------------------
    ODA fertilizer program governs fertilizer, agricultural mineral, 
agricultural amendment and lime products. It provides registration 
procedure, guides, and forms.
                               Appendix D
                       building occupancy permits
    A Certificate of Occupancy (CO) is a document issued by Building 
Inspection, which permits land and/or buildings to be used for the 
purpose(s) listed on the CO.\36\ COs are required prior to occupancy of 
a building or land.
---------------------------------------------------------------------------
    \36\ http://www.dallascityhall.com/building_inspection/
building_inspection_faqs.html#A5.
---------------------------------------------------------------------------
    Classification.--According to uniform fire code, Ammonium Nitrate 
(AN) would ordinarily be classified as an oxidizer class 1, which is an 
oxidizer that ``can undergo an explosive reaction due to contamination 
or exposure to thermal or physical shock.''\37\ Table D1 shows the 
classification of oxidizers.
---------------------------------------------------------------------------
    \37\ http://www2.iccsafe.org/states/oregon/07_structural/07_PDFs/
Chapter%203_Use%20and%20Occupancy%20Classification.pdf.

                  TABLE D1.--OXIDIZER CLASSIFICATION *
------------------------------------------------------------------------
             Oxidizer Class                        Description
------------------------------------------------------------------------
Class 1................................  An oxidizer that can undergo an
                                          explosive reaction due to
                                          contamination or exposure to
                                          thermal or physical shock.
                                          Additionally, the oxidizer
                                          will enhance the burning rate
                                          and can cause spontaneous
                                          ignition of combustibles.
Class 2................................  An oxidizer that will cause a
                                          severe increase in the burning
                                          rate of combustible materials
                                          with which it comes in contact
                                          or that will undergo vigorous
                                          self-sustained decomposition
                                          due to contamination or
                                          exposure to heat.
Class 3................................  An oxidizer that will cause a
                                          moderate increase in the
                                          burning rate or that causes
                                          spontaneous ignition of
                                          combustible materials with
                                          which it comes in contact.
Class 4................................  An oxidizer whose primary
                                          hazard is that it slightly
                                          increases the burning rate but
                                          which does not cause
                                          spontaneous ignition when it
                                          comes in contact with
                                          combustible materials.
------------------------------------------------------------------------
* https://law.resource.org/pub/us/code/ibr/icc.ifc.2009.pdf.

    This means that according to table 2703.1.1 \38\ of the fire code 
it would be classified as a high hazard (H-1) when the max allowable 
quantity is exceeded. Because agricultural materials are exempt from H-
1 classification, AN would then be reclassified as moderate hazard 
storage (S-1).
---------------------------------------------------------------------------
    \38\ https://law.resource.org/pub/us/code/ibr/icc.ifc.2009.pdf.

                      TABLE D2.--EXCERPT OF TABLE 2703.1.1 FROM THE INTERNATIONAL FIRE CODE
----------------------------------------------------------------------------------------------------------------
                                                                 Group when the maximum
               Material                         Class            allowable quantity is     Solid pounds (cubic
                                                                        exceeded                  feet)
----------------------------------------------------------------------------------------------------------------
Oxidizer.............................  4......................  H-1....................  1.
                                       3......................  H-2 or H-3.............  10.
                                       2......................  H-3....................  200.
                                       1......................  Not Applicable.........  4,000.
----------------------------------------------------------------------------------------------------------------

    Requirements.--The information required for a CO varies from city 
to city. Although each is unique, much of the information is consistent 
such as address, business name, total area, floor plan, and other 
fields.\39\ \40\ \41\ \42\ Some CO applications are very detailed and 
contain useful information such as a full inventory and MSDS for all 
chemicals present, however this is not a general requirement. Some 
applications ask only whether or not hazardous chemicals are present on 
site.\43\ Also, the CO application is just the first step. In order to 
obtain a CO, the building is commonly inspected by a building inspector 
or by a fire inspector. In order to see what additional information the 
inspectors looked for and how much of the information the fire fighters 
had access to, the local building permit office and fire department in 
College Station, Texas were interviewed.
---------------------------------------------------------------------------
    \39\ http://www.dallascityhall.com/pdf/Building/
CertOfOccupancy.pdf.
    \40\ http://www.ci.garland.tx.us/documents/COOtherPackage811.pdf.
    \41\ http://www.ci.greenville.tx.us/DocumentCenter/Home/View/924.
    \42\ https://webapps1.sanantonio.gov/dsddocumentcentral/upload/
form_CertificateOfOccupancyApplication.pdf.
    \43\ http://www.ci.garland.tx.us/documents/COOtherPackage811.pdf.
---------------------------------------------------------------------------
    The building permit office has an application that contractors must 
complete before a new building is built or before making alterations to 
an existing building.\44\ These applications are all public records 
that can be requested from the office, and filtered based on their 
answers to a checklist found in the document. They also keep a database 
of all submissions to the office according to date submitted.\45\ Below 
is an excerpt of their June 2013 submissions.
---------------------------------------------------------------------------
    \44\ http://www.bryantx.gov/resources/Bldgpermit.pdf.
    \45\ http://www.bryantx.gov/departments/?id=435. 


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    
    Unfortunately, the information this document contains is focused on 
zoning issues and does not ask about the quantities and types of 
chemicals that can be found at different locations.
    The College Station, TX fire department was also interviewed about 
building occupancy permits. The fire department has a database with a 
list of hazardous chemicals handled by local industries. Unfortunately, 
some companies file commercial names of their products rather than the 
actual chemical names, but provide accurate information about the 
hazards of the chemicals and include the NFPA fire diamond. While this 
is useful for fire departments, it might not be helpful in finding 
which companies store which chemicals. According to the Fire Marshal, 
the most reliable and complete source of information is the Tier II 
reports.
                                 ______
                                 
        Statement of Rick Hind, Legislative Director, Greenpeace
                             August 1, 2013
              lessons of the west, texas chemical disaster
Department of Homeland Security's Chemical Security Statute Is Fatally 
        Flawed
New Clean Air Act Rules Could Eliminate the Catastrophic Consequences 
        of an Attack, Accident, or Natural Disaster

                              introduction
    Too often key stakeholders are not at the table in Washington when 
important issues are discussed. In this case, it's the safety of more 
than 100 million Americans who live and work in ``vulnerability zones'' 
similar to West, Texas. The following are some words of wisdom from a 
few them:

``Should there be a successful terrorist attack on a chemical facility, 
the first question policy makers will be asked is this: `Why, when 
you've known for more than ten years that America's chemical facilities 
were vulnerable to terrorist attack, did you consistently fail to take 
the steps needed to reduce that vulnerability and save lives?'
``Members of Congress need to think long and hard about how they'd 
answer that question if they continue to avoid taking the sensible 
steps required to make these facilities safer and less vulnerable to 
acts of terrorism.''--Bob Bostock, Special Assistant to the 
Administrator (EPA) for Homeland Security (2001-2003).

``According to the 9/11 Commission, urgent warnings were ignored before 
the September 11 attacks. In addition, the Commission concluded that 
our government's first failure was a `failure of imagination.' My 
husband was a victim of that failure.
``Yet today we continue to lack the imagination to prevent another 
tragedy. While we are all aware of the vulnerability and catastrophic 
hazards posed by our nation's highest risk chemical plants, we also 
know much more about the many safer chemical processes that can 
eliminate a plant's attractiveness as terrorist target.
``The fact that special interest lobby groups and allied politicians 
want to stand in the way of requirements to prevent such a disaster is 
unthinkable. I fear that when we suffer a catastrophic failure or 
attack at one of these facilities, those same elected officials will 
finally learn that the loss of human life is not worth the campaign 
dollars of moneyed special interests. Of course, by then, it will be 
too late.''--Kristen Breitweiser, 9/11 widow.

``In the event of a catastrophic chemical release in a major U.S. city, 
first responders would likely face the same fate as thousands of 
workers and community residents who would quickly be overcome by poison 
gas before they had a chance to evacuate. In addition, our emergency 
room capacity to treat thousands of poison gas victims on such a mass 
scale would be overwhelmed. Preventing such a disaster is the only 
effective means of treatment.''--Peter Orris, MD, MPH Professor and 
Chief of Service, Occupational and Environmental Medicine, University 
of Illinois Hospital and Health Science System.

``Our members work in many of these facilities. We know how vulnerable 
they are, not just to terrorist attack, but to plain old accidents 
caused by any number of system failures.''--Michael J. Wright, Director 
of Health, Safety and Environment, United Steelworkers.

``Early in my career as a Fire Fighter, I responded to an accident at a 
chemical plant. As the workers were evacuating, we were going into the 
plant, unsure of what dangers we would encounter and unsure of our own 
survival. The risks to both fire fighters and plant employees have 
increased as a result of more chemical plants in urban areas and the 
threat of terrorism. These risks can be reduced using safer 
alternatives and safer chemical processes that can prevent catastrophic 
events and save lives.
``New regulations are needed to require the use of safer and more 
secure alternatives wherever they are feasible to lower the risk to 
first responders, plant employees, and residents in the surrounding 
communities.''--Fire Captain Ed Schlegel, Ret. County of Los Angeles 
Fire Department.

``There are 473 chemical plants in the U.S. that each put 100,000 or 
more Americans at risk of a Bhopal-like disaster. In addition, several 
thousand other plants also use and store poison gases such as chlorine 
and anhydrous ammonia on their property. Too many of these facilities 
are in lower-income neighborhoods and communities of color. The 
families in these communities have already waited too long for the 
federal government to make these neighborhoods safe from the dangers 
posed by these plants.
``The government needs to stop pointing fingers and take responsibility 
to eliminate the risks these facilities pose and prevent an avoidable 
chemical disaster.''--Stephen Lester, Science Director Center for 
Health, Environment & Justice, Falls Church, VA.

``How many lives must be lost before we have a policy that fully 
protects our communities and workers?''--Richard Moore of Los Jardines 
Institute (The Gardens Institute), and former chair of the EPA's 
National Environmental Justice Advisory Council.

``Sheltering in place does not protect the health and well-being of 
residents and communities. Requiring the use of safer alternatives will 
provide communities real protection from needless catastrophic 
hazards.''--Michele Roberts, Environmental Justice Health Alliance.

``Regrettably, our world is becoming more dangerous and risky, and 
policymakers can ill-afford to ignore the potential of risk prevention 
as another element of mainstream mandatory regulation. Clearly, the 
risk prevention paradigm raises significant design and implementation 
issues that require careful attention and reasonable resolution. Yet, 
these issues are not unlike those faced by existing risk management 
programs and, thus, justify caution rather than rejection of this 
valuable regulatory approach.''--Timothy F. Malloy, University of 
California, Los Angeles Law School.

the chemical facility anti-terrorism standards (cfats) did not protect 
  west texas and will not protect communities from preventable hazards
    The April 17 disaster in West, Texas that claimed 14 lives and 
injured hundreds is was an unnecessary, preventable tragedy. Among the 
Preliminary Findings of the U.S. Chemical Safety Board (CSB): 
``Industry has developed other forms of ammonium nitrate that are 
reported to reduce or eliminate the risk of accidental detonation. For 
example, compounding the ammonium nitrate with calcium carbonate 
(limestone) `practically eliminates any risk of explosion in its 
storage, transportation, and handling,' while preserving the AN's 
nutritive value. Calcium ammonium nitrate fertilizers have been widely 
used in Europe. Ammonium sulfate nitrate also has been found to be non-
explosive provided the percentage of AN is held below about 37%.''
    Without the use of a safer formulations of ammonium nitrate or 
other fertilizers a number of interim policies will need to be 
implemented to at least mitigate risks if not prevent future 
explosions. These policies should include but are not limited to:
   Minimum buffer zones for facilities storing bulk quantities 
        of ultra-hazardous materials must be established similar to 
        what the Bureau of Alcohol Tobacco and Firearms and Explosives 
        (ATF) has required for explosives.
   Enforcement of right-to-know laws to ensure that communities 
        and first responders know of the location, volume, and nature 
        all ultra-hazardous materials stored at local facilities.
   Establishment of strict fire-proof storage facility 
        requirements and fire codes.
   Require minimum liability coverage for facilities 
        commensurate with potential damage, injury, and death.
    In the mean time, Federal Emergency Management Agency (FEMA) should 
designate West, Texas a Federal disaster zone, making it eligible for 
disaster relief so the city can rebuild.
         west, texas is the tip of a chemical disaster iceberg
    U.S. chemical facilities were never designed to defend against 
terrorist attacks and predicting where the next attack or accident will 
take place is a fool's errand. No one predicted that Timothy McVeigh 
would attack the Federal Building in Oklahoma City in 1995, killing 168 
innocent people. And no one predicted the two fatal chemical accidents 
in Louisiana (Geismar and Donaldsonville) in June. Last October, 
Secretary of Defense Leon Panetta issued a warning to business 
executives in NY City regarding the increasing threat of cyber attacks 
saying, ``The collective result of these kinds of attacks could be a 
cyber Pearl Harbor; an attack that would cause physical destruction and 
the loss of life . . . '' He also gave the example of ``computer 
control systems that operate chemical, electricity and water plants and 
those that guide transportation throughout this country.'' http://
www.defense.gov/transcripts/transcript.aspx?transcriptid=5136.
    a worst-case accident or successful attack would be catastrophic
   In July, 2004, the Homeland Security Council estimated that 
        an attack on a single chlorine facility could kill 17,500 
        people, severely injure an additional 10,000 and result in 
        100,000 hospitalizations and 70,000 evacuations.
   In January, 2004, the U.S. Naval Research Laboratory 
        testified before the Washington, D.C. City Council warning that 
        100,000 people could be killed or injured in the first 30 
        minutes of a catastrophic release of a tank car of chlorine or 
        similar chemical within blocks of Capitol Hill. They further 
        estimated that people could ``die at rate of 100 per second.''
  a comprehensive prevention program is essential and the epa has the 
                       authority to implement it
    Despite the inadequacy of existing regulatory measures, EPA has 
unambiguous legal authority under the Clean Air Act to take actions 
requiring safer technologies to reduce the possibility of catastrophic 
releases. In particular, section 112(r) of the Clean Air Act contains 
two sources of authority: (1) EPA's hitherto unused authority under 
section 112(r)(7)(A) ``to promulgate release prevention, detection, and 
correction requirements which may include monitoring, record-keeping, 
reporting, training, vapor recovery, secondary containment, and other 
design, equipment, work practice, and operational requirements.'' 42 
U.S.C.  7412(r)(7)(A); and (2) the ``general duty clause,'' section 
112(r)(1), which imposes an obligation on all owners and operators of 
facilities that use extremely hazardous substances to ``design and 
maintain a safe facility taking such steps as are necessary to prevent 
releases, and to minimize the consequences of accidental releases which 
do occur,'' 42 U.S.C.  7412(r)(1).
    In outlining the policies he would implement if he were elected, 
President Obama stated that his administration would ``[s]ecure our 
chemical plants by setting a clear set of Federal regulations that all 
plants must follow, including improving barriers, containment, 
mitigation, and safety training, and, where possible, using safer 
technology, such as less toxic chemicals.''\1\ The President, Vice 
President, and other administration officials have repeatedly stated 
their support for inherently safer technology requirements. Former EPA 
Administrator Christine Todd Whitman has recently called upon EPA to 
exercise its powers under the section 112(r) to address chemical 
threats,\2\ and Chemical Safety Board Chair Rafael Moure-Eraso has 
called upon EPA to make enforceable requirements for the use of safer 
chemicals and processes ``a cornerstone of its accident prevention 
programs.''\3\ As elaborated above, such requirements are necessary to 
protect the public against possible chemical releases, including those 
that may be caused by terrorist attacks, and are well within EPA's 
existing authority under section 112(r) of the Clean Air Act.
---------------------------------------------------------------------------
    \1\ Change We Can Believe In: Barack Obama's Plan to Renew 
America's Promise, at 116 (2008).
    \2\ See The Danger Downwind, N.Y. Times, May 23, 2012, http://
www.nytimes.com/2012/05/24/opinion/the-danger-downwind-of-chemical-
plants.html.
    \3\ R. Moure-Eraso, ``It's time for government and industry to 
adopt inherently safer technology,'' Charleston Gazettte, June 23, 
2012, http://wvgazette.com/Opinion/OpEdCommentaries/201206230057.
---------------------------------------------------------------------------
    On April 25, former EPA Administrator Lisa Jackson told MSNBC, 
``What needs to happen is that we need to use the authority that we 
have now . . .  '' http://www.nbcnews.com/id/51675545/ns/msnbc-
all_in_with_chris_hayes/t/all-chris-hayes-thursday-april-th/
#.Ufhk4XiNdMw. The EPA drafted just such a proposal in 2002: https://
www.documentcloud.org/documents/332410-epachemsecurityrollout- 
june02.html. Having already drafted safer chemical process requirements 
in 2002 and again in 2009 for security legislation, the EPA is well-
positioned to begin rulemaking proceedings under Clean Air Act section 
112(r)(7), and take action to revise its guidance for enforcement of 
the general duty clause of Clean Air Act section 112(r)(1).
              current dhs rules (cfats) are fatally flawed
    The best that can be said for the DHS's chemical security 
regulations known as ``Chemical Facilities Anti-Terrorism Standards'' 
(CFATS) is that they represent an official recognition of the 
widespread vulnerability of U.S. chemical plants to terrorism. 
Unfortunately the 744-word ``rider'' (Section 550) to the Homeland 
Security Appropriations Act 2007 was designed to authorize ``interim'' 
regulations that were expected to expire on October 4, 2009 but have 
since been given a series of short-term extensions.
    To the DHS's and EPA's credit they have repeatedly testified before 
Congress since 2009 recommending that CFATS be amended to require high-
risk facilities to assess safer chemical processes and to conditionally 
require the highest-risk facilities to implement safer chemical 
processes where feasible. Examples of DHS and EPA testimony since 
October 2009 are at: http://www.dhs.gov/ynews/testimony/
testimony_1297438322830.shtm, http://www.epa.gov/ocir/hearings/
testimony/111_2009_2010/2010_0728_ccd.pdf, http://www.dhs.gov/ynews/
testimony/testimony_1301517368947.shtm.
    In November of 2009 the House passed permanent, comprehensive 
legislation (H.R. 2868) that also included the DHS and EPA 
recommendations on prevention and eliminating security gaps but it 
never became law. If enacted H.R. 2868 would have seamlessly continued 
CFATS while addressing its fatal flaws.
    Specifically, the underlying statute (Section 550) which authorized 
CFATS:
   Bars the DHS from requiring any ``particular security 
        measure,'' including safer chemical processes, what Senator 
        Lieberman (I-CT) called, ``the only foolproof way to defeat a 
        terrorist determined to strike a chemical facility.'' It 
        therefore fails to reduce the consequences of an attack at any 
        of approximately 4,000 ``high-risk'' chemical facilities now in 
        the program..--Alternatively H.R. 2868 conditionally required 
        safer chemical processes. (Section 2111).
   Exempts thousands of the 12,361 chemical facilities in the 
        EPA's chemical disaster program, including an estimated 2,400 
        U.S. drinking water & waste treatment plants, and hundreds of 
        chemical facilities located on navigable water ways including a 
        majority of the U.S.'s 150 refineries.--Alternatively H.R. 2868 
        covered all of these facilities. (Section 2103).
   Fails to require deadlines for the completion of 
        vulnerability assessment and facility security plans, or 
        deadlines to notify facilities of a disapproval of security 
        plans.--Alternatively H.R. 2868 set deadlines for completion of 
        vulnerability assessments and security plans. (Section 2103).
   Fails to authorize unannounced inspections or increased 
        inspectors.--Alternatively H.R. 2868 authorized unannounced 
        inspections and added at least 100 new inspectors. (Section 
        2104).
   Fails to require annual progress reports to Congress on the 
        numbers of security plans approved & disapproved, numbers of 
        compliance orders, and penalties issued, etc.--Alternatively 
        H.R. 2868 required annual progress reports to Congress on 
        security plans approved & disapproved, compliance orders, and 
        penalties issued. (Section 2119).
   Fails to provide for citizen enforcement suits or petitions 
        of the Government to ensure implementation of required 
        programs, or protection for whistleblowers.--Alternatively H.R. 
        2868 provided for citizen enforcement suits, petitions, and 
        whistleblower protections. (2116, 2117 & Sections 2108).
   Fails to provide funding to convert publicly-owned water 
        treatment systems or private chemical facilities to safer 
        chemical processes.--Alternatively H.R. 2868 provided grants 
        for the conversion to safer processes at publicly-owned water 
        treatment plants and privately-owned facilities. (Section 
        1433). An in independent analysis of H.R. 2868 showed that 
        8,000 jobs would have been created, benefiting publicly-owned 
        water systems and the chemical industry sectors the most: 
        http://www.misi?net.com/publications.html.
   Fails to require meaningful involvement of plant employees 
        in developing security plans.--Alternatively H.R. 2868 provided 
        for employee participation in the development of security 
        plans. (Sections 2103 & 2115).
    Complaints about the DHS CFATS program have harped on the slow pace 
of approving site security plans (SSPs) and the general lack of 
transparency of the DHS in too many aspects of the program. Again, H.R. 
2868 would have put the DHS on a schedule and made them and the 
industry more accountable through unannounced inspections, reports to 
Congress, citizen enforcement suits and petitions, etc.
    A faster pace in the CFATS program envisioned in H.R. 2868 would 
also have coincided with a faster pass in reducing hazards and the 
consequences of a successful attack. The rush, however, to approve SSPs 
in today's CFATS program does not build confidence among the public. 
When airline passengers face a flight delay they are frustrated but 
they also don't want the flight rushed onto the runway at the expense 
of safety.
    The adoption of Alternative Security Plans (ASPs) developed by the 
chemical industry lobbying organizations is also no comfort to millions 
of people living within vulnerability zones. They have too often 
``sheltered in place'' or been assured that strange odors, flares, 
fires, or even explosions ``released no harmful levels'' of dangerous 
substances (U.S. refineries have reported an average of 45 fires per 
year since 2008). We are unaware of any ASPs that require disaster 
prevention measures such as safer chemical processes.
    Conspicuously absent from oversight hearings on CFATS are questions 
about safer chemical processes that would prevent disasters. Given the 
limitations of the underlying statute, the DHS could at least issue a 
19th Risk-Based Performance Standard (RBPS) to encourage high-risk 
facilities to evaluate safer available chemical processes or ``methods 
to reduce the consequences'' of an attack. This idea was raised by 
Senator Lieberman (I-CT) in his formal comments on the CFATS rules in 
2007.
    Regarding transparency, the DHS should also provide specific 
information on facilities that have legitimately left the CFATS program 
because they no longer use or store chemicals of interest (COI). 
Without giving away confidential business information, concrete 
examples of safer processes would be more useful to other high-risk 
facilities which may want to reduce their liability, save money on 
conventional security costs and have fewer regulatory obligations as 
the Clorox Company has done.
    In 2012 the DHS reported only 35 facilities in the two highest-risk 
Tiers (1 and 2) that qualify as catastrophic ``release'' category 
facilities. This is out of a total of about 579 facilities in those two 
risk tiers. This is a symptom of how few high-risk facilities are in 
CFATS and how many are exempt. Meanwhile in the EPA's RMP program there 
are 473 facilities that each put 100,000 or more people at risk. If 
CFATS were a comprehensive program all of those facilities would be in 
risk Tiers 1 or 2.
    Some of the highest-risk facilities in the country are more 
loosely-regulated under other statutes such as the Maritime 
Transportation Security Act (MTSA), Clean Water Act, and Safe Drinking 
Water Act. None of these statutes contain prevention requirements. 
Moreover, the MTSA statute is petro-chemical lobby's model for ASPs. 
Some of the highest-risk chemical facilities in the country are exempt 
from CFATS because they are located on navigable waterways and 
therefore regulated by the Coast Guard under MTSA. Although DHS is 
attempting to harmonize the two programs, the MTSA facilities are 
never-the-less explicitly exempt from CFATS requirements should they 
ever be enhanced.
    There has also been little or no scrutiny of the Chemical Sector 
Critical Infrastructure Partnership Advisory Council (CIPAC) that 
operates autonomously and provides far too much access and opportunity 
for influence by the regulated industry over its regulator (DHS) both 
in the development of rules and their implementation. For more details, 
see the November 25, 2010 Washington Post story on CIPAC: http://
www.washingtonpost.com/wp-dyn/content/article/2010/11/24/AR201011- 
2407022.html.
    The only non-Governmental members of the Chemical Sector CIPAC are 
chemical industry lobbying organizations or chemical company 
representatives. Although the DHS operates several committees under the 
Federal Advisory Committee Act (FACA), but the CIPAC is exempt from 
FACA regulations and most of its activity is done behind closed doors. 
Even the names of the individuals representing the trade associations 
are kept secret. The secrecy is rationalized as necessary to encourage 
candor by the industry. Rather than receiving ``candid'' comments from 
industry lobby groups who have led efforts to kill prevention policies, 
the DHS should seek regularized candid input from all stakeholders.
    Currently no residents living near or rank-and-file employees 
working in high-risk plants, including community organizations or 
unions, technical experts from academia, or any nonprofit organizations 
that do not represent the industry are allowed to participate in CIPAC.
    CIPAC's budget is more than $1 million a year and its charter 
expires March 16, 2014. The DHS Secretary has authority to terminate 
the council at any time or allow its charter to expire and create a 
FACA council that represents all stakeholders.
    The legislation (Section 550) which authorized CFATS was never 
intended to be a comprehensive statute. Senator Susan Collins (R-ME), 
chair of the Senate Homeland Security and Governmental Affairs 
Committee addressed this in her February 7, 2007 comments to the DHS:

``In drafting Section 550, the intent of Congress was clear and 
unambiguous--this statutory provision provides the Department strong, 
interim authority for up to three years until permanent, comprehensive 
authority can be enacted . . . 
``Section 550 was a streamline version of chemical security 
legislation; it was not the comprehensive authorizing legislation that 
Congress intended to be the final authority on this matter . . . 
``The Department does not have broad discretion to regulate beyond the 
interim three-year period without a comprehensive authorization from 
Congress. Any contrary interpretation of the `sunset' provision is 
plainly wrong.''

  since 2009 the actual number of high-risk chemical plants has grown
    A November 16, 2012 CRS update of the number of high-risk chemical 
facilities in the EPA's chemical disaster or Risk Management Program 
(RMP) shows a growing number of chemical facilities that each put 
thousands of people at risk of a catastrophic chemical release. https:/
/www.documentcloud.org/documents/557127-crs-rmp-update-11-16-12.html.
    In 2012, there were 12,440 EPA facilities Nation-wide that 
possessed thresholds quantities of ultra-hazardous chemicals requiring 
reports to the EPA of their ``worst-case'' disaster scenarios. This was 
an increase of 79 facilities over the CRS's 2011 update on this EPA 
program. https://www.documentcloud.org/documents/557129-crs-update-of-
us-rmps-state-by-state-4-12-11.html.
    The increase in 2012 included 28 additional facilities that put 
between 10,000 and 99,999 people at risk in the following States: 
Arizona, California, Colorado, Kansas, Louisiana, New Jersey, New 
Mexico, New York, Ohio, Oregon, Rhode Island, South Dakota, Texas, 
Utah, and Washington. The 2011 CRS update also showed an increase of 
332 in the total number of RMP facilities over the 2009 CRS update. 
https://www.documentcloud.org/documents/557128-crs?update-2009.html.
smart security can eliminate the catastrophic consequences of an attack
    In February 2008, the CEO of Association of American Railroads 
said, ``It's time for the big chemical companies to do their part to 
help protect America. They should stop manufacturing dangerous 
chemicals when safer substitutes are available. And if they won't do 
it, Congress should do it for them . . . ''.
    The good news is that there are many commercially-available safer 
processes for virtually all of the poison gas or toxic-by-inhalation 
(TIH) processes that pose the greatest risks to major urban centers. 
The Center for American Progress (CAP) has done several reports 
analyzing EPA's Risk Management Program data and in 2006 identified 284 
facilities that have converted since 1999. See full report at: http://
www.americanprogress.org/issues/2006/04/b681085_ct2556757.html.
    Examples of safer more secure chemical processes:
   The Blue Plains sewage treatment plant in Washington, DC 
        halted its use of chlorine and switched to a safer chemical 
        process 90 days after the 9/11 attacks due to fears of another 
        attack. The plant had seven 90-ton rail cars of chlorine on-
        site following the 9/11 attacks. The conversion cost 
        approximately $0.50 per year for each water customer.
   By mid-2012, the Clorox Company converted all of its U.S. 
        facilities to ``strengthen our operations and add another layer 
        of security,'' according to their CEO Don Knauss. Clorox also 
        indicated that these changes ``won't affect the size of the 
        company's work-force.'' This conversion eliminated Clorox's 
        bulk use of chlorine gas and catastrophic risks to more than 13 
        million people in nearby communities. http://
        investors.thecloroxcompany.com/releasedetail.cfm?- 
        ReleaseID=420583.
    The 2006 CAP analysis also showed that 87% of the converted 
facilities spent $1 million or less and one-third expected to save 
money, particularly from reduced liability costs and reduced regulation 
compliance costs. These costs pale in comparison to the billions of 
dollars incurred in disaster response, relocating communities, 
defending against personal injury law suits or resolving environmental 
clean-up liability or long-term conventional security costs which add 
nothing to the bottom line.
    While the CAP analysis demonstrates the availability and 
feasibility of safer alternatives, most of the examples are not at the 
highest-risk facilities. A 2008 CAP analysis identified 300 chemical 
facilities that together put 110 million Americans at risk. At the 
current rate of voluntary conversions, without any new regulatory 
requirements, it could take 40 years to eliminate these hazards to our 
major cities.
    Risk Management Solutions estimated that a ``chlorine spill 
scenario results in 42,600 total casualties, over 10,000 of which are 
fatal. Insurance claims covering these casualties would exceed $7 
billion.'' http://www.rms.com/NewsPress/PR_042904_CasualtyStudy.asp.
                            threats continue
    A November 21, 2011 MSNBC reported on a hacker that ``penetrated 
the network of a South Houston, Texas, water-treatment plant to expose 
the inherent vulnerabilities in critical industrial control facilities 
and prove how easily they can be compromised.'' The potential 
consequences of a real attack could result in the release of the 
contents of a 90-ton chlorine rail car which are routinely used to 
store chlorine gas at water treatment plants. http://www.msnbc.msn.com/
id/45394132/ns/technology_and_science-security/#.TsvL17LNlGUA.
    A November 2010 Washington Post report revealed that the Lashkar-e-
Taiba terrorist organization that committed the 2008 attacks in Mumbai, 
India, had also asked a now-convicted U.S. ally to ``conduct 
surveillance of an unnamed chemical plant in Maryland.'' Lashkar-e-
Taiba was reportedly gathering intelligence on U.S. targets as early as 
2001. http://tpmlivewire.talkingpointsmemo.com/2010/11/the-man-behind-
mumbai.php.
    On August 2, 2010, two men were convicted of plotting to blow up 
jet-fuel tanks at John F. Kennedy International Airport, a plan 
authorities said was meant to outdo the September 11, 2001 attacks. 
http://www.washingtontimes.com/news/2010/aug/2/ny-jury-convicts-2-jfk-
airport-tank-blast-plot/?page=1.
    Since before 9/11, the Kuehne Chemical Company in South Kearny, NJ 
has put up to 12 million people at risk of a chemical disaster due to 
their chlorine gas storage adjacent to New York City. Former counter-
terrorism operative for the CIA, Charles Faddis visited the Kuehne 
plant in July 2009. In his book Willful Neglect he wrote: ``Anybody 
with minimal training in breaching and some basic equipment can go 
through those gates in moments. After that, it is all over. There is no 
way on earth that any guards inside are going to react, repel a team of 
armed assailants and prevent the inevitable. Every tank in the facility 
is going to be ruptured, either by satchel charges or vehicle-borne 
explosive devices, and what happens in the surrounding area is then 
going to be purely a function of meteorological conditions.'' (For 
approximately 2 years the Kuehne website has claimed that the plant is 
in the process of converting to a safer process but no details have 
been made public.)
    On August 29, 2007, a railroad tank car of chlorine rolled out of a 
rail yard in Las Vegas, Nevada and ran for 20 miles before it slowed to 
a stop on its own. During that 20-mile run it rolled through the heart 
of Las Vegas and densely-populated neighborhoods reaching speeds of up 
to 50 miles an hour. http://www.lvrj.com/news/9466232.html.
    Security expert Stephen Flynn, a Senior Fellow in National Security 
Studies at the Council on Foreign Relations warned in his 2007 book, 
The Edge of Disaster: `` . . . While attacks on the electric grid, oil 
and gas facilities, major ports, and the food-supply system have the 
potential to create the greatest cascading economic effects, it is 
chemical facilities near urban population centers that have the 
potential to inflict the greatest casualties . . . In most cases, 
chemical plants that threaten nearby populations can switch to less 
dangerous substances. This practice is known as `inherently safer 
technology,' or IST . . . Without a strong mandate from the federal 
government, it's unrealistic to think they ever will. Yet voluntary 
compliance is the premise of the legislation Congress passed last fall 
[2006]; the new rules rest on the assumption that companies will now 
suddenly begin taking steps they have so far refused to contemplate.''
                                 ______
                                 
       Article Submitted For the Record by Ranking Member Clarke
     chemical that sparked deadly texas explosion found across u.s.
By Ryan McNeill and M.B. Pell, New York, Wed. May 22, 2013 6:06pm EDT.
    (Reuters).--At least 800,000 people across the United States live 
near hundreds of sites that store large amounts of potentially 
explosive ammonium nitrate, which investigators are blaming as the 
source of last month's deadly blast at a fertilizer plant in West, 
Texas, a Reuters analysis shows.
    Hundreds of schools, 20 hospitals and 13 churches, as well as 
hundreds of thousands of households, also sit near the sites. At least 
12 ammonium-nitrate facilities have 10,000 or more people living within 
a mile.
    Fourteen people were killed and about 200 injured April 17 when a 
fire at West Fertilizer Co. was followed by a massive explosion. Ten of 
the dead were first responders from area fire departments.


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



    The explosion destroyed an apartment complex and nursing home that 
sat within a few hundred yards of the fertilizer plant, damaged homes 
within a half mile of the plant and cracked windows even farther away.
    Investigators say ammonium nitrate stored at the plant was the 
source of the explosion, but they have not identified the cause.
    Since 1990, companies have reported more than 380 incidents 
involving ammonium nitrate to the National Response Center, a federal 
agency that collects reports of spills, leaks and other discharges 
within the United States. Eight people were killed, 66 injured and more 
than 6,300 evacuated in those incidents, according to the center's 
data. But reporting is voluntary, and center officials say the records 
cover only a fraction of all incidents.
    Reuters' analysis of hazardous chemical inventories found schools, 
hospitals and churches within short distances of facilities storing 
ammonium nitrate, such as an elementary school in Athens, Texas, that 
is next door to a fertilizer plant. The Hiawatha Community Hospital in 
Padonia, Kansas, is less than a quarter-mile from one site and three-
quarters of a mile from another.
    The Athens school district said it is reviewing its emergency plans 
now, but until a reporter called on Friday had not considered the 
potential danger from the fertilizer plant.
    ``It's amazing how a tragedy like West makes us rethink things,'' 
said Janie Sims, assistant superintendent. ``Who would have even 
mentioned it or thought of it before?''
    Some sites are in heavily urbanized areas. Acid Products Co. in 
Chicago, which reported storing between 10,000 and 99,999 pounds of 
ammonium nitrate in 2012, is surrounded by about 24,000 people. Company 
officials declined to comment.
    The number of people affected nationwide, as well as the count of 
nearby hospitals, churches and schools, are likely higher because 
Reuters was unable to get information from all 50 states.
    Reuters spent about four weeks obtaining copies of hazardous-
chemical inventories, known as Tier II reports, collected by states 
under the federal Emergency Planning and Community Right to Know Act. 
Twenty-nine states provided information, identifying 440 sites. Not all 
sites in those states were included in the analysis because of 
incomplete location information.
    Reporters used mapping software, combined with Census and other 
data, to identify the nearby population, schools, churches and 
hospitals.
    Of the 21 remaining states, 10 declined to provide their data, one 
declined to provide it in electronic form, and the rest either provided 
incomplete information, did not respond, do not maintain the filings 
electronically or are still considering the requests. Federal law 
allows 45 days to provide the information.
    Among those that withheld data was Missouri, which The Fertilizer 
Institute, an industry association, said is the No. 1 user of ammonium-
nitrate fertilizer in the United States. The group said Missouri 
accounts for 20 percent of the nation's use of the product.
    (M.B. Pell and Ryan McNeill reported from New York.; Edited by 
Janet Roberts and Michael Williams.)
                                 ______
                                 
   Statement of Paul Orum, Consultant, Coalition to Prevent Chemical 
                               Disasters
                             August 1, 2013
    My name is Paul Orum. I thank the committee for the opportunity to 
present views important to a broad coalition of environmental health, 
labor, and community organizations known as the Coalition to Prevent 
Chemical Disasters. My background for 25 years is Government 
information policy regarding hazardous materials.
    Recent deadly explosions in West, TX and Geismar, LA, among others, 
remind us of the need for more effective public protections from 
industrial chemicals in populated areas.
   These recent incidents are hardly rare. The National 
        Response Center recorded more than 11,000 oil and chemical 
        spills in the last year alone.\1\
---------------------------------------------------------------------------
    \1\ On-line search of National Response Center conducted June 20, 
2013. NRC is the National point of contact for reporting oil and 
chemical spills.
---------------------------------------------------------------------------
   The potential for large-scale incidents is ever-present. A 
        Congressional Research Service analysis indicates more than 470 
        facilities have vulnerability zones potentially affecting any 
        of 100,000 or more people in the event of a worst-case toxic 
        gas release.\2\
---------------------------------------------------------------------------
    \2\ Congressional Research Service memorandum to Senator Frank R. 
Lautenberg, RMP Facilities in the United States, November 16, 2012.
---------------------------------------------------------------------------
   Similar scenarios repeat. The fire and explosion at West 
        Fertilizer is reminiscent of an event in Kansas City, Missouri, 
        at which a construction facility storing ammonium nitrate first 
        caught fire and then exploded killing six fire fighters after 
        they had responded to the fire. That was November 29, 1988.
    In general, the chemical safety landscape includes a lot of 
neglect, missed communication, static regulations, voluntary standards, 
and prosecution afterwards. There is not enough on prevention, 
technically competent inspections, community-wide awareness, producer 
responsibility, and safer alternatives. Regulations should not only 
control problems but also generate safer solutions. Accident prevention 
is ultimately more effective than response.
    Risk management and emergency planning should be revised and 
updated in light of on-going and recent plant explosions.
    (1) Risk management planning should include reactive chemicals like 
the ammonium nitrate that detonated at West Fertilizer. Where there is 
serious potential harm to the public, reactive chemical hazards should 
be included in Risk Management Plans (RMP) under the Clean Air Act, 
section 112(r). The Chemical Safety and Hazard Investigation Board has 
an open recommendation to EPA to this end:

``Revise the Accidental Release Prevention Requirements, 40 CFR 68, to 
explicitly cover catastrophic reactive hazards that have the potential 
to seriously impact the public, including those resulting from self-
reactive chemicals and combinations of chemicals and process-specific 
conditions. (Recommendation No. 2001-1-I-H-R3)''

    While the general duty clause of the Clean Air Act presumably 
covers all facilities that hold extremely hazardous substances--
including reactive substances that pose catastrophic hazards--the 
general duty does not explicitly cover important proactive elements of 
RMPs, such as the requirement to assess and communicate chemical 
hazards. Adding ammonium nitrate to the RMP program could have informed 
the owner of West Fertilizer, first responders, and the public about 
the magnitude of the danger, including off-site consequences, and might 
have prevented or reduced the tragic consequences of the explosion.
    (2) Management systems and controls do fail. Chemical facility 
owners and operators have a responsibility not only to understand their 
own chemical hazards, but also to understand less hazardous 
alternatives that are commercially available in their industry. EPA 
should require chemical facilities to review and include in RMPs 
available methods that prevent potential consequences of a worst-case 
incident. Such methods are often the most effective measures to protect 
workers at the site, emergency responders, and nearby populations.
    Surveys show that the RMP process has prompted some companies to 
reduce or remove chemical hazards, one of the objectives of the 
program. The RMP process facilitates changes that companies may be 
considering for a variety of reasons, including safety, security, and 
other regulatory requirements.
   More than 554 drinking water and wastewater facilities 
        converted from toxic inhalation hazard chemicals, removing 
        dangers to more than 40 million Americans. (The 554 facilities 
        are examples among other facilities that have converted to less 
        hazardous operations.)\3\
---------------------------------------------------------------------------
    \3\ Center for American Progress, Leading Water Utilities Secure 
Their Chemicals, March 2010.
---------------------------------------------------------------------------
   Facilities across some 20 industries already use options 
        that do not pose the danger of a major toxic gas release, 
        including bleach producers, water utilities, power plants, 
        refineries, aluminum smelters, and many types of 
        manufacturers.\4\
---------------------------------------------------------------------------
    \4\ Center for American Progress, Chemical Security 101: What You 
Don't Have Can't Leak, or Be Blown Up by Terrorists, November 2008.
---------------------------------------------------------------------------
   Facilities that convert to safer operations may save money 
        when all factors are considered, such as avoided costs of 
        release control devices, liability insurance, regulatory 
        compliance, personal protective equipment, site security, and 
        emergency planning.\5\
---------------------------------------------------------------------------
    \5\ Center for American Progress, Preventing Toxic Terrorism: How 
Some Chemical Facilities Are Removing Danger to American Communities, 
April 2006.
---------------------------------------------------------------------------
    These facilities typically substituted a less hazardous replacement 
chemical or process; used a chemical in a less hazardous form (such as 
less concentrated, or aqueous instead of gaseous); or adjusted the 
process design to minimize use or storage (such as generating the 
chemical on site as-needed without storage). These strategies are 
distinct from conventional risk management approaches such as 
containment, control, mitigation, or recovery of substances.
    The House and Senate reports on the Clean Air Act Amendments of 
1990 show that Congress viewed measures to remove avoidable chemical 
hazards as integral to the statutory goal of preventing accidental 
releases:

``Measures which entirely eliminate the presence of potential hazards 
(through substitution of less harmful substances or by minimizing the 
quantity of an extremely hazardous substances present at any one time), 
as opposed to those which merely provide additional containment, are 
the most preferred.''\6\
---------------------------------------------------------------------------
    \6\ Senate Report on the Clean Air Act Amendments of 1990 Report 
No. 101-228 (S-1630), page 209.
---------------------------------------------------------------------------
``Hazard assessments . . . include a review of the efficacy of various 
release prevention and control measures, including process changes or 
substitution of materials.''\7\
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    \7\ House of Representatives, Clean Air Act of 1990: Conference 
Report to Accompany S-1630. Report No. 101-952 (October 26, 1990), page 
349.

    EPA took public comment on inherently safer approaches for facility 
design and operations when first implementing the RMP program.\8\ 
Unfortunately the agency did not develop the approach at the time. As a 
result, covered facilities are not required to evaluate feasible 
chemical hazard reduction alternatives that may be the most effective 
safety measures. Basic prevention analysis elements such as the avoided 
costs and liabilities associated with alternate technologies are not 
standard elements of RMPs. Such elements are foundational to developing 
knowledge of solutions. They are among the elements that help make 
organizations intelligent about the advantages, costs, and feasibility 
of technology options.
---------------------------------------------------------------------------
    \8\ 60 Federal Register 13526, March 13, 1995.
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    In March 2012, EPA's National Environmental Justice Advisory 
Council urged the agency to prevent chemical disasters by more fully 
using its authorities to advance safer chemical processes under the 
Clean Air Act.\9\ In July 2012, more than 50 organizations petitioned 
EPA to commence rulemaking under the Clean Air Act and to revise agency 
guidance for enforcement of the general duty clause.\10\
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    \9\ National Environmental Justice Advisory Council letter to EPA 
Administrator Lisa P. Jackson, March 14, 2012.
    \10\ Petition to the Environmental Protection Agency to Exercise 
Authority Under Section 112(r) of the Clean Air Act to Prevent Chemical 
Facility Disasters Through the Use of Safer Chemical Processes, July 
25, 2012.
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    The EPA Administrator has authority under the Clean Air Act, 
section 112(r), to incorporate methods that prevent potential 
consequences into RMPs and should do so.
    (3) The explosion at West Fertilizer illustrates the importance of 
the Clean Air Act's general duty to operate safely. West Fertilizer was 
subject to an incomplete patchwork of chemical safety regulations 
regarding ammonium nitrate. The general duty clause holds firms 
responsible for understanding and managing their chemical hazards 
regardless of the completeness of Government actions to regulate those 
hazards. For example, the ammonium nitrate at West Fertilizer was not 
on the RMP list of substances and thresholds. The general duty is an 
important tool for not only enforcement but also prevention. EPA's 
implementation guidance for the general duty clause recognizes that 
removing chemical hazards can be an effective safety measure, but EPA 
should further develop the concept in this guidance. We strongly oppose 
restricting the general duty clause in ways that could hamper 
enforcement or prevention. We also oppose arbitrarily fragmenting 
Federal authorities between safety and security. By Presidential 
Directive, the U.S. EPA is the lead agency to oversee security at 
drinking water and wastewater facilities.\11\
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    \11\ Homeland Security Presidential Directive/HSPD 7, Critical 
Infrastructure Identification, Prioritization, and Protection, December 
17, 2003.
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    (4) Emergency planning notification is incomplete. The ammonium 
nitrate that exploded at West Fertilizer was not on the Emergency 
Planning and Community Right to Know Act (EPCRA) section 302 list of 
substances that require emergency planning notification. EPCRA section 
302 requires facilities that hold threshold amounts of listed chemicals 
to notify their State Emergency Response Commission (SERC) and 
designate a point of contact at the facility to participate in 
emergency planning. It should be acknowledged that local emergency 
response capacities are often starkly overmatched by the magnitude of 
chemical hazards, and that activity levels of Local Emergency Planning 
Committees (LEPC) vary widely. Too much is left to the mostly-volunteer 
LEPCs--States should have fee-based programs that support hazard 
reduction, inspections, and regular drills. Nonetheless, EPCRA 302 
notifications are a starting point for local emergency planning. The 
EPA administrator has responsibility to modify the EPCRA 302 list and 
should do so. While lists and thresholds will inevitably fall short--
hence the need for a general duty to operate safely--EPA should revise 
the EPCRA 302 list to include common substances that are known 
emergency hazards. This process should include both proactive listing 
criteria and a review of substances involved in serious incidents 
reported to the National Response Center.
    (5) EPCRA inventory reporting is valuable but insufficient. Owners 
and operators of facilities that hold large amounts of hazardous 
chemicals have an obligation to clearly communicate chemical hazards to 
those who could be affected prior to an emergency. West Fertilizer did 
report ammonium nitrate to the Texas SERC under EPCRA section 312 (a 
Tier II report). Texas apparently maintains Tier II reports in an 
electronic format, which is important. EPA should continue to support 
and promote free electronic information management tools such as Tier 
II Submit, RMP*Comp, and CAMEO. The EPA should also develop routine 
electronic access to EPCRA 312 Tier II data from each State through 
memoranda of understanding or other means (as should OSHA and DHS). EPA 
should also promote awareness of reporting and planning obligations 
among regulated facilities. However, simple awareness of chemicals on-
site is not sufficient. Local emergency planners and responders need 
not only chemical inventories but also worst-case and planning-case 
scenarios (which are included in RMPs but not EPCRA Tier II reports). 
They also need regular information about the number and type of high-
hazard shipments in all modes of transportation. Fee-based programs 
should support prevention, pre-fire planning, technically competent 
inspections, drills, and NFPA-compliant hazmat training--including 
clear reminders that evacuating may be the most prudent course of 
action.
    (6) Independent investigations are important. The Chemical Safety 
and Hazard Investigation Board, also established by the Clean Air Act 
112(r), produces root cause investigations and safety recommendations 
after the most serious chemical accidents. These activities are 
important to the public because they provide credible information and 
focused recommendations for change. Barriers to effective 
investigations, such as site access and preservation, should be 
resolved.
    Issues beyond EPCRA and Clean Air Act, 112(r):
    (7) Schools and nursing homes shouldn't be in potential blast 
zones. It is not an easy problem. Communities may grow up around 
chemical facilities or vice versa, but they are too close together in 
many places. State and local planners could benefit from Federal 
guidelines for substantial safe set-back distances, based on a worst-
case scenario, in order not to continue to compound the problem when 
siting new buildings. School buildings were badly damaged by the blast 
in West, Texas. School siting criteria should take into account 
proximity to hazardous chemical facilities. Recipients of Federal 
construction funds for buildings that will be used by potentially 
vulnerable populations (such as Head Start schools, hospitals, or 
nursing homes) should be subject to oversight to prevent building in 
the near zone of potential harm. In addition, the agricultural 
chemicals security tax credit assists agricultural distributors with 
conventional security measures such as fences and lights; it should 
assist facilities that want to move locally to safer locations.
    (8) Hazardous chemical operations shouldn't be underinsured. West 
Fertilizer reportedly carried only $1 million in liability insurance, a 
fraction of the estimated $100 million in property damage alone. 
Companies that hold large amounts of extremely hazardous substances 
should be required to maintain sufficient liability insurance to cover 
a worst-case chemical release. Such a requirement would provide a 
reasonable cost incentive for companies to develop and use feasible 
alternatives. In addition, common carrier obligations encourage wide-
spread overuse of railcars for shipping and storing extremely hazardous 
substances. Railroads have sought to have shippers share liability 
risks associated with extremely hazardous substances (which they are 
required to carry) and to have shippers develop safer substitutes.\12\
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    \12\ Center for American Progress, Toxic Trains and the Terrorist 
Threat: How Water Utilities Can Get Chlorine Gas Off the Rails and Out 
of American Communities, April 2007.
---------------------------------------------------------------------------
    Sustained improvement in chemical hazard prevention, preparedness, 
and response is long-term and involves a range of actions. Among the 
most immediate lessons from the West Fertilizer explosion are for EPA 
to make sure major recognized hazards are: (1) Included in the programs 
designed to address them, (2) subject to safer alternatives analysis by 
the companies that hold them, (3) covered by appropriate lists and 
thresholds, and by the general duty to operate safely.
    Thank you again for the opportunity to testify. I would be glad to 
take any questions.
                                 ______
                                 
         Statement of the U.S. Environmental Protection Agency
                             August 1, 2013
    Mr. Chairman and Members of the subcommittee, we are pleased to 
provide testimony for the record from the U.S. Environmental Protection 
Agency (EPA) regarding issues concerning chemical facility safety. Our 
testimony focuses on emergency planning and community right-to-know 
efforts, and the EPA's Risk Management Program (RMP).
    The EPA's Risk Management Program was one of the sources used by 
the Department of Homeland Security (DHS) in developing the Chemical 
Facility Anti-Terrorism Standards (CFATS) program. The essential 
approach of RMP is largely incorporated in the CFATS program. The CFATS 
program follows the RMP approach of employing a combination of lists of 
chemicals, the nature of chemicals, along with threshold amounts of 
those chemicals, to define the regulated community.
    The EPA worked closely in support of DHS during the development 
phase of the CFATS program, providing detailed explanations as to how 
certain elements of the program worked and how the EPA implemented 
those elements. Since the launch of CFATS, the EPA has continued to 
support DHS in providing a regularly-updated database of the EPA-
regulated RMP facilities, and has continued to provide chemical 
facility safety assistance to DHS as needed.
         the emergency planning and community right-to-know act
    In response to the devastating chemical disaster in Bhopal, India 
in 1984, Congress passed the Emergency Planning and Community Right-to-
Know Act (EPCRA) in 1986 to ensure that local communities have the 
authority they need to prevent, prepare for, and respond to chemical 
accidents. The EPCRA provisions help increase local planners, 
responders, and the public's knowledge and access to information on 
chemicals at individual facilities and risks associated with them. 
States and communities, working with facilities, can use the 
information to improve chemical safety and protect public health and 
the environment. The implementing regulations for emergency planning, 
emergency release notification, and the chemicals subject to these 
regulations are codified in 40 CFR part 355. The implementing 
regulations for community right-to-know reporting (or hazardous 
chemical reporting) are codified in 40 CFR part 370.
    Subtitle A of EPCRA establishes the framework for local emergency 
planning. The Act requires that the EPA publish a list of extremely 
hazardous substances (EHSs). The EHS list was established by the EPA to 
identify chemical substances that could cause serious irreversible 
health effects from accidental releases (See 40 CFR part 355 (52 FR 
13378, April 22, 1987)). The agency was also directed to establish a 
threshold planning quantity (TPQ) for each extremely hazardous 
substance.
    The purpose of the EHS's list is to focus initial efforts in the 
development of State and local contingency plans. Inclusion of a 
chemical on the EHS's list indicates a need for the community to 
undertake a program to investigate and evaluate the potential for 
accidental exposure associated with the production, storage, or 
handling of the chemical at a particular site and develop a chemical 
emergency response plan around those risks.
    Under EPCRA section 302, a facility that has an EHS on-site in 
excess of its TPQ must notify the State Emergency Response Commission 
(SERC) and Local Emergency Planning Committee (LEPC), as well as 
participate in local emergency planning activities. Under the Statute, 
the LEPC shall then develop a community emergency response plan. 
Emergency Response plans contain information that community officials 
can use at the time of a chemical accident.
    The EPA and the National Oceanic and Atmospheric Administration 
(NOAA) have developed a system of software applications used widely by 
States and local emergency planning committees to plan for and respond 
to chemical emergencies. This system is called the Computer-Aided 
Management of Emergency Operations (CAMEO) and it was developed to 
assist front-line chemical emergency planners and responders. Emergency 
responders and planners use CAMEO to access, store, and evaluate 
information critical for developing emergency plans. In addition, CAMEO 
supports regulatory compliance by helping users meet the chemical 
inventory reporting requirements of EPCRA. The CAMEO system integrates 
a chemical database and a method to manage the data, an air dispersion 
model, and a mapping capability. All modules work interactively to 
share and display critical information in a timely fashion.
    Subtitle B of EPCRA established community right-to-know 
requirements in order to ensure information on chemicals in the 
community is provided to the public as well as emergency responders. 
Under ECPRA sections 311 and 312, facilities that have either: (1) A 
hazardous chemical present at or above 10,000 pounds or (2) an EHS 
present at or above its TPQ or 500 pounds--whichever is the lesser, are 
required to submit an Emergency and Hazardous Chemical Inventory form 
(Tier II) and a Material Safety Data Sheet (MSDS) for that chemical to 
their SERC, LEPC, and local fire department. A chemical is hazardous as 
defined under the Hazard Communication Standard (HCS) of the 
Occupational Safety and Health Act (OSHA). There is not a separate list 
of hazardous chemicals. If a facility is required by OSHA to develop 
and/or maintain a MSDS for that chemical and it is present at or above 
the threshold discussed above, it must be reported. Local fire 
departments receive this information and should use it to understand 
the chemical(s) present at facilities in their community and 
precautions they may need to take in responding to an accident at the 
facility.
    Sections 311 and 312 of EPCRA make available to the local and State 
emergency planners information on other chemicals and facilities, 
beyond those identified under section 302, that they may wish to 
include in their emergency planning efforts. The EPA has specified in 
guidance that Tier II information under section 312 will provide 
specific information on the quantities and locations of hazardous 
chemicals. Thus, sections 311 and 312 provide information supportive of 
the emergency planning required under Subtitle A. The facilities 
identified as a result of that subtitle are only a ``first cut'' of the 
facilities and potential chemical hazards for which emergency planning 
may be necessary.
                        risk management program
    The Clean Air Act (CAA) 112(r) provisions build on the planning and 
preparedness groundwork laid by EPCRA. The CAA 112(r) provides the 
authority for the EPA's Risk Management Program. RMP regulations apply 
to the owner or operator of a stationary source with more than a 
threshold quantity of a CAA section 112(r)-regulated substance in a 
process. Section 112(r) chemicals and thresholds may overlap with 
chemicals listed under other rules, but are not identical to those on 
any other list. The section 112(r) list includes 63 flammable gases and 
liquids and 77 acutely toxic chemicals. To develop the list, several 
statutory factors were considered, including the severity of any acute 
adverse health effects associated with accidental releases of the 
substance, the likelihood of accidental releases of the substance, and 
the potential magnitude of human exposure to accidental releases of the 
substance. An accidental release is an unanticipated emission of a 
regulated substance or other extremely hazardous substance into the 
ambient air from a stationary source. Many of these substances are also 
included on the EPCRA extremely hazardous substance (EHS) list. The 
section 112(r) chemical list and corresponding thresholds for each 
chemical are published at 40 CFR 68.130. Under CAA section 112(r), the 
EPA is required to review the list of chemicals every 5 years or by its 
own motion or by petition. The EPA also provides an on-going review of 
new chemicals and hazards to see if any chemical warrants listing or 
delisting.
    Under the RMP regulations, a covered facility is required to review 
the hazards associated with the covered substance, process, and 
procedures, as well as develop an accident prevention program and an 
emergency response program. The ``Hazard Review'' must identify 
opportunities for equipment malfunction or human error that could in 
turn cause the accidental release of the covered substance, as well as 
safeguards to prevent the potential release, and steps to detect and 
monitor for a release. A facility's compliance with these requirements 
is documented in a Risk Management Plan that is submitted to the EPA. 
Covered facilities must implement the Plan and update them every 5 
years or when certain changes occur. The goal of the EPA's Risk 
Management Program is to prevent accidental releases of substances to 
the air that can cause serious harm to the public and the environment 
from short-term exposures, and to mitigate the severity of releases 
that do occur. Approximately 12,800 facilities are currently covered 
under Risk Management Program regulations.
    Under the CAA section 112(r) RMP facilities must submit a risk 
management plan which includes:
   Facility hazard assessments, including worst-case release 
        and alternative release scenarios;
   Facility accident prevention activities, such as use of 
        special safety equipment, employee safety training programs, 
        and process hazards analyses conducted by the facility;
   Past chemical accidents at a facility; and
   Facility emergency response programs and plans.
    Another key component of Section 112(r) of the Clean Air Act, is 
section 112(r)(1), which is the General Duty Clause. This provision 
requires owners and operators of any stationary sources producing, 
processing, handling or storing an RMP substance or any other extremely 
hazardous substance to identify hazards which may result from such 
releases using appropriate hazard assessment techniques, to design and 
maintain a safe facility taking such steps as are necessary to prevent 
releases, and to minimize the consequences of accidental releases which 
may occur. Under the General Duty, facilities are expected to comply 
with recognized and generally accepted good engineering practices.
    Both EPCRA and the CAA section 112(r) Risk Management Program 
encourage communication between facilities and the surrounding 
communities about chemical safety and chemical risks. Regulatory 
requirements, by themselves, will not guarantee safety from chemical 
accidents. Those who are handling hazardous substances must take the 
responsibility and act to prevent, prepare for, and respond to chemical 
emergencies. Information about hazards in a community will allow local 
emergency officials and the public to work with industry to prevent 
accidents.
                               conclusion
    The EPA will continue its efforts to help prevent chemical 
accidents and releases under the Risk Management Program. Strong 
chemical accident prevention, preparedness, and response programs rely 
upon effective partnerships with the public and all levels of 
government. We will continue our outreach efforts to stakeholders and 
work with our Federal, State, and local partners to promote chemical 
safety, address chemical process safety issues, and explore 
opportunities for improving chemical safety.

    Ms. Clarke. I thank you, Mr. Chairman. I thank our 
panelists this morning, and look forward to further 
conversation.
    [The statement of Ranking Member Clarke follows:]
              Statement of Ranking Member Yvette D. Clarke
                             August 1, 2013
    Two hours after a fertilizer plant exploded in West around sunset 
on a Wednesday, on April 17, much of the town 18 miles north of Waco 
resembled a war zone. Some people were missing. Hundreds more were 
rushed off to area hospitals. Homes burned, others threatened to 
collapse. The Texas Department of Public Safety spokesman D.L. Wilson 
offered this grim but accurate assessment of the devastation many saw 
via TV: ``Massive . . . just like Iraq, just like the Murrah Building 
in Oklahoma City.''
    The explosion destroyed an apartment complex and nursing home that 
sat within a few hundred yards, a nearby unoccupied elementary school 
was severely damaged, walls and roofs of homes and businesses within a 
half-mile of the plant cracked, and windows even further.
    There are no Federal setback guidelines or requirements to separate 
extremely hazardous substances from surrounding populations, such as 
schools, houses, nursing homes, apartments, and businesses, based on a 
worst-case scenario.
    I have been told at least 800,000 people across the United States 
live near hundreds of sites that store large amounts of potentially 
explosive ammonium nitrate, hundreds of schools, hospitals, and 
churches, as well as hundreds of thousands of households, also sit near 
the sites. Nationally, at least 12 ammonium-nitrate facilities have 
10,000 or more people living within a mile, according to a Reuters 
analysis of hazardous-chemical storage data maintained by 29 States.
    Complaints about the DHS CFATS program have recently focused on the 
fact that facilities that should be reporting to CFATS are not being 
contacted about their required reporting duty under the program. The 
program has also come under scrutiny about the slow pace of inspecting 
and approving site security plans, or SSP's.
    A faster pace in the CFATS inspection and review process could have 
produced more tangible results in reducing vulnerabilities and 
consequences of a successful terrorist attack on a facility, and it 
could have also been a help for community emergency preparation for 
all-hazards events, such as the apparent industrial accident we are 
examining today. It seems to me they are intertwined.
    However, the current rush to approve SSPs in today's CFATS program 
may not build confidence among the public. When airline passengers face 
a flight delay they are frustrated, and they complain, but they also 
don't want the flight rushed onto the runway at the expense of safety.
    The tragic events in West, Texas, may bring into sharper focus the 
issue of how we as a country protect our citizens from not only the 
threat of a terrorist attack on facilities that store explosive 
chemicals, but how we identify and classify these types of facilities 
to begin with. Will these methods be enough to protect hundreds of 
thousands of people living within chemical facility vulnerability 
zones? And will it help local emergency planning committees prepare for 
events like the one in West, Texas?
    As one of our witnesses will testify today, and it is just common 
sense, that an engaged and informed public is a vigilant public. 
Citizens, first responders, medical professionals, plant workers, and 
local officials all need to be better informed about local chemical 
security and safety information, in order to be prepared for all types 
of emergencies.
    We do know that West Fertilizer did report the possession and 
storage of ammonium nitrate to the State Emergency Response Commission, 
or SERC. This was done under the Emergency Planning and Community 
Right-to-Know Act, or EPCRA. The SERC in Texas apparently maintains 
Tier II reports in an electronic format, which is important to 
remember.
    I want to find out if The Department of Homeland Security did or 
did not compare their list of CFATS top-screen facilities to the 
Emergency Planning and Community Right-to-Know reports held 
electronically by each State, a relatively simple procedure that might 
have helped identify facilities that failed, like West, to conduct a 
Top-Screen under CFATS.
    It would seem to me that DHS should have a Memorandum of 
Understanding with each State for routine electronic access to EPCRA 
data in that State. But I'm looking for answers, and I hope someone on 
the panels will be able to tell us today.
    These questions, at the core of today's hearing, naturally produce 
other questions, like--what technological or business practice changes 
have enabled operating facilities that have submitted Top-Screens, to 
tier out of CFATS? I have been told there are apparently some 3,000 
formerly tiered facilities, which are now considered less attractive 
terrorist targets and no longer of interest to DHS. Is there a specific 
development, technological or procedural, that encourages facilities to 
tier out? I'd like to learn more about that.
    Another feature that I have learned about is that West Fertilizer 
seemingly lacked adequate liability insurance. While not a requirement 
in the CFATS program, companies that hold extremely hazardous 
substances and maintain liability insurance commensurate with a worst-
case scenario would provide an incentive for companies to use methods 
that reduce potential consequences. This is just standard business 
practice, nothing earth-shattering. Another Critical Infrastructure 
piece involved in this tragic event is rail transportation. West 
Fertilizer apparently received shipments of ammonium nitrate by rail. 
Under common carrier obligations, do shippers of extremely hazardous 
substances, and rail carriers, routinely carry enough insurance to 
cover liability associated with a worst-case release or explosion? I 
will be interested to find out.
    Federal, State, and local interagency planning and cooperation may 
be the key to finding solutions to prevent events like West, Texas from 
happening, whatever the cause. DHS must step up to the plate on 
security, and find ways to identify outliers, and retool efforts to 
assess risk-based vulnerabilities.
    Other agencies, like EPA, already have authorities under the Clean 
Air Act to incorporate methods to reduce consequences into their Risk 
Management Plans, and I understand the White House chemical security 
interagency group is working on this issue; it will be helpful to find 
out what the President's Executive Order, released this morning, will 
actually do.

    Mr. Meehan. I thank the Ranking Member. Once again, I thank 
our panelists for your presence here today. I now recognize 
myself for 5 minutes of questioning.
    Mr. Wulf, allow me to begin with you. Let's get to the 
heart of the issue that we are here for today, the outlier 
facilities. DHS, I appreciate, has concluded that this was not 
a terrorist attack, and so we are not implicated specifically 
in this. But nobody would deny that there was the possibility 
that better activity on the part of collaboration and 
communication should have been able to create enough 
recognition that somewhere we would have known about this 
facility and been able to take some kind of steps to have 
protected those fire fighters.
    The report has come. Thirty tons of ammonium nitrate were 
there, and yet DHS had no knowledge of the facility, they had 
never even heard of West Fertilizer before the tragic event. 
So, have we gotten to the point where there are literally 
thousands of chemical facilities like West throughout the 
country that DHS is not aware of?
    Mr. Wulf. Yes, I don't think I am in a position to 
speculate as to the number of noncompliant facilities that are 
out there. But, you know, I can certainly tell you that we are 
absolutely committed to doubling down on the outreach efforts--
--
    Mr. Meehan. Let me make sure that you don't believe that I 
am pulling this number out of the air. Your own--it was the--
you know, the inspector's report from your own agency that 
estimated that there are thousands out there. You are aware of 
that?
    Mr. Wulf. The OIG report?
    Mr. Meehan. Well, it is--yes, well I will give it to you.
    Mr. Wulf [continuing]. Report?
    Mr. Meehan. Yes, I will get it for you. I mean, I have 
reviewed it myself. That is why I am asking. It is not a secret 
that there are thousands.
    Mr. Wulf. Yes----
    Mr. Meehan. Somebody has estimated that there are 
thousands.
    Mr. Wulf. Certainly, the West tragedy underscores, you 
know, our need to ensure that we are doing all we can to reach 
facilities that we have not yet been able to reach and that 
have not complied with their obligation to report their 
holdings of high-risk chemicals of interest.
    So, you know, we have, over the course of the CFATS 
program, done a significant amount of outreach. Actually, 
upwards of 11,000 separate outreach engagements, compliance 
assistance visits with facilities, presentations, outreach to 
State and local agencies, including first responders.
    But we are looking anew at those efforts, and ensuring that 
where there have been gaps we are going to be in a position to 
fill those gaps. So that includes things like redoubling our 
efforts with State homeland security advisors and working with 
those State homeland security advisors to reach down to the 
level of State regulatory agencies so that where State 
regulatory agencies are aware of facilities that may not have 
come into our orbit. We can compare their lists against our 
lists. I have worked personally in the last several weeks with 
the State fire marshal for the State of Texas to ensure, 
together, that we have mutually-exchanged lists of facilities 
that have ammonium nitrate in the State of Texas.
    Over the past 3 months, my staff has worked directly with 
the offices of all 50 State homeland security advisors. We are 
also working, and, you know, it was mentioned earlier this 
morning that we had worked well with the National-level trade 
associations, and that members of those associations, you know, 
have probably a heightened ability to be aware of their 
regulatory----
    Mr. Meehan. Well, I think there is no doubt that there is a 
heightened ability. I mean, this is part of the problem. We 
have got a series of agencies, and we will explore some of 
this, with regard to--I know what the intentions are. We will 
explore some of this with regard to some of the other agencies: 
OSHA, EPA, State overseers, your partners in this who want to 
collaborate with you. Ag associations and others, all of whom, 
in different sets of responsibilities, are actually collecting 
this information. Yet it is not finding its way to you.
    You are not able, somehow, to communicate with these other 
groups. So I hear what you are saying about what you would like 
to do. But we are 5 years into this program. We are close to 
half a billion dollars that have been given to your group to 
effectuate CFATS. Five years later we are beginning to hear 
about the fact that you may begin to do more in the way of 
conversations with other kinds of State partners. There was an 
effort that was undertaken with the EPA and it failed. Then you 
went back again and started another whole new way of comparing 
data.
    Why wasn't that followed up on? What was the problem 
associated with that earlier effort to collaborate among 
existing Federal agencies, and how can it be that complex an 
issue? We can follow a package in the mail by the minute if we 
send it with UPS or even our own mail service. Here we are 
moving huge sums of chemicals and you are telling me you don't 
know where they are, and people just don't get it.
    Mr. Wulf. Yes, well, you know, I think, with regard to the 
earlier EPA effort it did not yield significantly useful 
results. I think largely, and this was in 2008-2009 time frame, 
because of incompatibilities in the respective databases. So we 
have done a lot of work organizationally, and we now find 
ourselves in a better position to do that sort of crosswalk. We 
have----
    Mr. Meehan. Where--tell, me. Okay, I want to know, today, 
what do you believe are going to be the time lines and what do 
you believe are going to be the metrics so we can have some 
measurables on some performance with regard to this? If you are 
unprepared to give me that today I will accept that. But I want 
to hear from you, very soon, with predictions on those metrics. 
Can you speak to them today?
    Mr. Wulf. I can speak with regard to EPA data. We have 
reinvigorated that effort and we have already conducted the 
crosswalk between the two databases. With regard to----
    Mr. Meehan. What have you found?
    Mr. Wulf. We have found that there are some facilities, and 
I don't have the number with me on hand, that were found in the 
EPA database and that had not submitted Top Screens to us. I 
think, as well, and I don't want to speak on EPA's behalf, but 
there are--you know, there are facilities in our database that 
are not in EPA's. With regard to metrics, I think, you know, 
the metric, off the top of my head, would be the numbers of Top 
Screens that we receive from facilities.
    I do think it is important to note that over the course of 
the program, as a result of the efforts we have undertaken to 
this point to get the word out--and it is not to say that there 
is not more to do because, certainly, you know, we are 
committed to doing all we can to get the word out--but we have 
received 44,000 Top Screens from facilities that have met their 
obligation to report their high-risk chemical holdings.
    Mr. Meehan. All right. Well, I--my time has expired. I know 
we will talk a little bit more about top fliers among other 
things.
    I thank you, and now turn it to the Ranking Member for her 
questions.
    Ms. Clarke. Thank you, Mr. Chairman. Mr. Wulf, would you 
please describe how DHS, ISCD does or does not access other 
relevant Federal, State, and local government agency and 
interagency chemical information that is routinely gathered, 
and that would have indicated threshold chemicals of interest 
in inventory at West, Texas?
    Mr. Wulf. Well, I talked a little bit about what we have 
been doing with EPA, recently having shared our respective RMP 
and CFATS databases of facilities. We are doing the same thing 
with our colleagues at the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives, who are responsible for regulating 
Federal explosives licensees and permitees across the Nation. 
We are working also with the States, with State agencies, 
through the State homeland security advisory----
    Ms. Clarke. Has this been a standard practice, or is this 
in the wake of what happened in West, Texas?
    Mr. Wulf. We have certainly taken a look in the wake of 
what happened at West, Texas, but this sort of activity has 
happened, I would say, more episodically over the history of--
--
    Ms. Clarke. So it wasn't a norm or a standard protocol.
    Mr. Wulf. No.
    Ms. Clarke. Okay. So are you saying that you are now 
establishing a norm and a standard protocol with these 
agencies?
    Mr. Wulf. Yes. With respect to EPA, for instance, we have 
done this initial crosswalk. We are sort of evaluating a time 
line for repeating it on a regular cycle.
    Ms. Clarke. Mr. Caldwell, do you agree that this is an 
established norm or protocol that is in formation?
    Mr. Caldwell. We have not looked at the program since the 
West, Texas thing, but I think, obviously, the President's 
Executive Order is going to put additional emphasis on this to 
kind of force the agencies to work together to do the data 
sharing. I have not seen the Executive Order yet, but at least 
as to how it was summarized by Mr. Wulf.
    Ms. Clarke. This is just a, you know, a basic sort of 101 
DHS mission, which is to coordinate and collaborate with other 
agencies to keep the homeland safe. You know, we have got to 
come up to speed. The American people really expect more of 
this agency. I just want to highlight that. Because we are 
constantly talking about information sharing and, you know, if 
we are, you know, not doing this, it is really flying in the 
face of the mission of this agency, and impedes its growth, 
quite frankly.
    Mr. Wulf. The information sharing is absolutely a priority 
for the CFATS program. Our inspectors across the country have 
been plugged in to their communities, including with first 
responders, local emergency planning committees. We have about 
120 inspectors across the country, and it is a large country. 
In Region 6, which includes the State of Texas, we have 13 
inspectors for a 5-State region that spans from New Mexico to 
Arkansas. So I can promise you they have been doing their best 
to ensure that they are communicating with, and sharing 
information with, local authorities, State and local 
authorities.
    Ms. Clarke. How long has this sort of staffing been the 
case----
    Mr. Wulf. As long as I have been in place, which has been 
about 2 years.
    Ms. Clarke. Well, that raises a concern for me. Mr. Wulf, 
please describe how Oak Ridge National Lab, which is involved 
in CFATS assessment tool development, gathers, stores, and 
communicates interagency EPA information it acquires with ISCD 
personnel, and why this relevant information was, or was not, 
passed on to the ISCD headquarters.
    Mr. Wulf. Well, we work for, you know, ISCD's part, we work 
with Oak Ridge. They are the folks who sort-of run the 
databases against one another; so crosswalk the databases. So 
responsibility, for example, we received from EPA the list of 
facilities that are regulated under the EPA's RMP program. We 
provided that to Oak Ridge. They did the crosswalk between our 
facilities and out database and the EPA database, and, you 
know, have communicated back and forth with us. So they are 
under contract with the Department for that purpose.
    Ms. Clarke. So if this is the nature of the relationship 
that you have with Oak Ridge, then why was this relevant 
information, why wasn't it passed on?
    Mr. Wulf. I don't believe I am familiar with an instance of 
information not having been passed on.
    Ms. Clarke. You feel like you are getting information in 
real time?
    Mr. Wulf. I feel confident in our relationship with Oak 
Ridge, certainly.
    Ms. Clarke. Okay.
    Mr. Caldwell, the DHS office of inspector general reported 
that DHS has inspected only 47 of approximately 4,400 
facilities regulated under CFATS as of March 2013. Your office 
has audited similar data at ISCD. Can you give an estimate of 
how many chemical facilities that could likely contact COI 
above the threshold of required reporting for CFATS? Describe 
the plan you found in place to assess and contact the number of 
non-repeating outlier facilities nationally.
    Mr. Caldwell. I think Mr. Wulf in his statement provided 
the most up-to-date information on the number of inspections. 
So it sounds like the IG found there were 40-something 
inspections. Mr. Wulf's data shows, oh, something under 200, 
maybe. I don't remember the exact figure. So we did find they 
had a cumbersome process for doing these inspections. We also 
found that they were making it more streamlined, and they 
seemed to be doing that. We have a mandate to look at that 
again once they start their compliance inspections, which won't 
be for several months, to do that.
    So we haven't looked at the inspection data yet. But in 
terms of your last question, in terms of to find more outliers, 
again, we haven't done new work since the explosion in West, 
Texas. So other than Mr. Wulf's discussion here of their new 
steps, we have no new information to add on that, ma'am.
    Ms. Clarke. Thank you.
    Mr. Chairman, I yield back.
    Mr. Meehan. Thank you. Let me just use the Chair's 
prerogative to follow up for a second on that questioning. I 
understand that you have got--I mean, there is a sort of an 
analysis, a full checklist, a review, complex undertaking. But 
we are asking about a specific bit of information. Why can't we 
get a baseline report on the presence and amount of chemicals 
at the facilities sent to you? Later on, you can go back and 
look at all of the questions as to whether they are 
appropriately stored or otherwise protected. But just the idea 
of knowing what is where.
    The idea that we are going to wait long periods of time 
before we complete inspections at a place, and therefore now 
know about the presence of these facilities at other places, is 
there a way to report on the amount of ammonium nitrate and 
other highly dangerous chemicals that will allow us to have an 
understanding of the full map?
    Mr. Wulf. Yes, there certainly is. That is something that 
we can get done, and that we can make available, and have made 
available, through our CFATS share on-line tool, which is 
something that is available to State and local authorities.
    Mr. Meehan. But you don't know now. I mean, again, we don't 
know where they all are. Again, I talk about--and these were 
the outliers. We keep talking about outliers, the facilities. 
The literally, potentially thousands of outliers who are there. 
We don't know about them.
    Mr. Wulf. Yes, we know about, you know, the facilities that 
have submitted the 44,000 Top Screens we have received. So we 
can, you know, produce that. As we are able to bring more 
outliers into the fold we will be able to aggregate that 
information, as well.
    Mr. Meehan. Okay, yes.
    The Chairman will ask unanimous consent that the 
gentlewoman from Indiana, Mrs. Brooks, and the gentleman from 
Texas, Mr. Flores, who, I know, has a special interest in this 
issue, be allowed to sit on the dais and participate in today's 
hearings. Without objection, so ordered.
    Mr. Flores has arrived, and he would therefore be the next 
to be recognized for his questions.
    Mr. Flores. Well, thank you, Mr. Chairman. Chairman Meehan 
and Ranking Member Clarke, thank you for holding this important 
hearing today. Additionally, I want to thank you on behalf of 
the community of West for including me in your discussion 
regarding the disaster that occurred in this small Texas town 
on April 17, 2013. Hopefully, through this hearing, we can 
learn from the incident in West and gain knowledge about 
similar facilities around the country in order to prevent 
future disasters of this nature.
    The community of West has been through so much since the 
tragic explosion in April. This incident took 12 lives, 
including the 12 first responders that you see on the poster 
behind me. It injured hundreds and caused tens of millions of 
dollars in damage. The State of Texas and the entire West 
community have been working tirelessly to rebuild and recover 
with available resources. Since that day, the community has 
desperately been seeking Federal assistance necessary to 
rebuild. While FEMA has provided some important and much-needed 
resources and assistance, the community of West is still in 
dire need for additional assistance to rebuild their community.
    In an effort to gain all of the necessary public assistance 
from FEMA under the Stafford Act, Governor Rick Perry requested 
a major disaster declaration on May 16, requesting all 
essential categories of public assistance. On June 10, despite 
reaching the monetary required threshold of uninsured damage, 
FEMA denied the MDD request. Following that denial, Governor 
Rick Perry, on July 9, appealed the President's decision to 
deny an MDD that would have provided additional Federal 
assistance to the people of West. While the State of Texas and 
the city of West still await the President's decision on that 
appeal, days continue to go by where people are still homeless, 
without schools, without basic infrastructure, and with a 
struggling community.
    Now, looking forward, regarding the implications and 
lessons from the disaster, it appears that the building blocks 
of the incident were due to the following: The West Fertilizer 
Company's failure to comply with existing regulations and the 
lack of oversight and enforcement. It didn't occur from a lack 
of regulations, it appears. This is evidenced by the National 
Protection Program's director, or NPPD, failing to fully 
implement a comprehensive ammonium nitrate security program. 
Even though this was not a terrorist act, it is important to 
stress that a functional and efficient chemical facility 
antiterrorism standards programs should exist to prevent 
against any future exploitation.
    Finally, the events in West, Texas raise serious concerns 
the Department of Homeland Security's chemical security 
inspectors were unaware that West Fertilizer Company was 
handling tons of potentially explosive ammonium nitrate. 
Furthermore, the Chemical Safety Board, or the CSB, reports 
that approximately 72 percent of their recommendations 
regarding the risk management of ammonium nitrate and other 
dangerous materials have been adopted. That, however, leaves 28 
percent of their recommendations that have not been adopted. 
This leads us to believe that the Federal--that the 
Environmental Protection Agency, or EPA, can and should 
immediately strengthen safety at facilities that handle 
dangerous chemicals by implementing and following the remaining 
guidelines set forth by the CSB.
    Mr. Chairman, as you can see we have regulations on the 
books and we have regulations from agencies with subject-matter 
expertise. Now it is up to the Homeland Security department, 
the EPA, and related Federal agencies and private industry to 
act promptly to adopt safety measures that can save lives and 
prevent similar disasters. Before Congress or regulatory 
agencies consider new statutes or rulemaking, they should make 
sure that the ones we have are being properly implemented and 
adjudicated.
    Again, Chairman Meehan and Ranking Member Clarke, on behalf 
of the citizens and the community of West thank you for having 
me here today. I appreciate this committee's work to address 
this important issue that is on the table today. We want to 
work hard to prevent future tragedies like this in the future.
    Thank you, and I yield back.
    Mr. Meehan. I thank the gentleman from Texas for his 
statement.
    I now recognize the gentleman, Mr. Vela, for his 
questioning.
    Mr. Vela. Thank you. I would like to also thank the 
leadership of our committee and our subcommittee for bringing 
the public's attention to this real tragedy. Sometimes life 
goes on, and we forget how significant and what kind of an 
impact these kinds of accidents have, and how they affect the 
people of the certain communities where they happen. I, too, 
wish to express my condolences to the people of West, Texas and 
to the families of those who were killed and to those that were 
injured.
    I have a lot of questions arising from today's hearings, 
and I hope that this subcommittee will continue to delve into 
this very important matter so that we can ensure that a tragedy 
like this never happens again.
    So given time limitations, I think where I would like to 
start is by taking the example of a refinery in, let's say, 
Corpus Christi, Texas. It is my understanding that from the 
Federal regulatory standpoint the agencies that would have 
jurisdiction over safety issues at companies like--at a 
refinery like that would be the EPA, OSHA. Are there any 
others?
    Mr. Wulf. Well, depending on the holdings at the refinery 
and the location of the refinery, it could be a CFATS facility. 
If it is on the water it could be regulated under the Coast 
Guard's Maritime Transportation and Security Program, MTSA.
    Mr. Vela. Okay, so that would be two separate agencies?
    Mr. Wulf. Well, it would be one or the other. If it is a 
MTSA facility it is exempt from CFATS. If it is a CFATS 
facility, because it is not on the water.
    Mr. Vela. Okay. So, for example, we have an eight--we are, 
using the example I am talking about which is a refinery which 
is basically on the water, then the three Federal agencies that 
would have jurisdiction over safety issues would be OSHA, EPA, 
and MTSA, for example.
    Mr. Wulf. Yes, the Coast Guard.
    Mr. Vela. If we had a refinery that was not close to the 
water the agencies that would have jurisdiction over such would 
be OSHA, EPA, and CFATS.
    Mr. Wulf. I think that is accurate.
    Mr. Vela. Would there be any other Federal agencies out 
there in this world that would have jurisdiction over these 
things?
    Mr. Wulf. Not that immediately pop into my head.
    Mr. Vela. Relating back to the incident at hand, or 
facilities like this one in West, Texas, is it those same three 
agencies that have jurisdiction over, for example, the West 
Fertilizer plant?
    Mr. Wulf. Well, with respect to--I think EPA was involved 
in regulation at the West plant. I think OSHA certainly has 
some role there. I certainly don't want to speak for other 
agencies. With regard to DHS, based on the apparent chemical 
holdings at the facility, the facility did not meet its 
obligation to report to DHS whether such a report of those 
holdings through what we call the Top Screen process would have 
ultimately resulted in the issuance of a final tier, reflecting 
that it was a facility at high risk of terrorist attack. 
Because that is what the CFATS program is about, as you know; 
preventing, or fostering security measures at facilities at 
high risk of terrorist attack.
    It is unclear, without more information, about what 
holdings were in place before the explosion. But for it to come 
into the, finally, into the regulatory ambit of DHS and the 
CFATS program it would have to have submitted that filing and 
been judged ultimately through the process to have been a high-
risk facility.
    Mr. Vela. So would OSHA have jurisdiction over a facility 
like this one in West, Texas?
    Mr. Wulf. My understanding is they would, but I am not an 
expert on OSHA regulations.
    Mr. Vela. So relating--let's talk about a--let's assume we 
are talking about a refinery in central Texas that CFATS shares 
jurisdiction with EPA and OSHA. Can you give us an idea of how 
your agency coordinates with OSHA and the EPA to ensure that 
incidents like this do not occur?
    Mr. Wulf. Yes. Well, what we are doing with EPA and we will 
also be looking to do with OSHA is to share our respective 
databases so that if there is a facility that is, you know, 
known to one of us but not the other, we will be cognizant of 
that and ensure that we can work with the facility to bring it 
into compliance with the appropriate regulatory framework.
    Mr. Vela. So if we had a list of every refinery in the 
country over which EPA, OSHA, and CFATS had jurisdiction over, 
would you be able to come in and give us an idea of what kind 
of interaction the three agencies had over concerning each of 
those facilities listed on such a list?
    Mr. Wulf. I think that would be a possibility, yes. You 
know, I would be remiss if I didn't mention that the Executive 
Order issued today is, you know, is designed to foster, among 
other things, the possibility of a shared database such as 
that. So one of the things that the working group that has been 
chartered by the President, the interagency working group, will 
be looking at is the feasibility of developing just such a 
consolidated database of chemical facilities.
    Mr. Vela. So are you saying that, to date, the coordination 
between the three agencies when we are talking about a facility 
like that have just been lacking, or how would you describe the 
state of things up until today?
    Mr. Wulf. You know, my sense is that the coordination has 
been occurring in the field. So our chemical security 
inspectors and regional commanders have been working with their 
counterparts at the local and regional levels to, you know, to 
discuss and deconflict and coordinate their activities at 
facilities. But there is not, at this point, the consolidated 
National database of chemical facilities. That is something we 
are going to look at doing, going forward.
    Mr. Vela. I think I have run out of time.
    Mr. Meehan. I didn't want to interrupt the gentleman while 
he was on a roll.
    Mr. Vela. Well, then, I yield back.
    Mr. Meehan. Okay.
    The Chairman now recognizes the distinguished woman from 
Indianapolis, Mrs. Brooks.
    Mrs. Brooks. Thank you, Mr. Chairman, for allowing me to 
participate in today's hearing. I do chair the Subcommittee on 
Emergency Preparedness, Response, and Communications, and so 
that is in part what I would like to talk with you about. But 
this particular topic is of particular interest to me as this 
unfortunate, incredibly devastating disaster affected some of 
my constituents, Jeanette and Tim White and their family 
directly. Kevin Saunders is one of those first responders who 
was killed. He is a brother to Jeanette, who lives in my 
district.
    Having worked with the fire fighter community and law 
enforcement community, I ask unanimous consent to submit a 
letter that has been provided from Mr. White for the record, 
the brother-in-law.
    Mr. Meehan. Yes, so ordered.
    [The information follows:]
                      Letter From Timothy D. White
                     July 25, 2013, Zionsville, IN.
Representative Micheal McCaul,
Chairman of the Homeland Security Committee.
    Dear Representative McCaul and Members of the Homeland Security 
Committee: Let me begin by thanking you for the opportunity to address 
the committee regarding the explosion at the fertilizer plant in West, 
Texas. My brother-in-law Kevin Sanders was one of the first responders 
that was killed in the explosion that day. Like many still grieving 
their loved ones, I would like to see changes made to the policies 
related to hazardous material regulation, use and tracking, but my 
career as a chemist and my upbringing in a Midwest farm family balance 
this need for change with the realization that change must be brought 
about with well-thought-out solutions that take all perspectives into 
account. The profound impact of this tragedy continues to affect our 
family daily and while the changes proposed here will not bring Kevin 
back to us, they will help ensure that other families and our country 
do not experience this type of tragedy again.
    The explosion in West was preventable and while on the surface it 
appeared the necessary regulations were in place, the multiple agencies 
involved were not all adequately informed, which lead to a situation 
that ended in tragedy. While the current laws required the plant to 
report the amount of hazardous materials they had on-site, the 
Department of Homeland Security was not informed of the presence of 
ammonium nitrate that was well above the levels that require 
monitoring. Beyond reporting directly to an agency, there needs to be a 
mechanism in place to ensure that ammonium nitrate, and other dangerous 
chemicals, are tracked accurately which seems feasible when we are 
talking about tons and not ounces of material. Tracking rail cars of 
material coming into facilities and then subsequent tracking by those 
facilities, like the one in West, should allow an easy electronic and 
constantly updated account of the amount of any hazardous substance on-
site. This would require a financial investment by those companies but 
the technology to track shipments is readily available and the 
companies that manufacture the materials in bulk should also be 
accountable for helping the smaller distributors like Adair Grain Inc. 
in West, Texas. I can easily track my Amazon book order so tracking 
rail cars of material should be something that can implemented in a 
reasonable time frame. A tracking system like this would avoid 
instances of ``outliers'' such as the one in West. The tracking of rail 
cars of material would require a scan in at their destination so it 
would not be possible for companies to exist undetected.
    Until a system like this is in place, we are asking first 
responders to face unnecessary uncertainty. The assessment of the 
situation in West would have differed significantly if they had known 
that multiple tons of a compound which can explosively decompose were 
on-site and rather than fighting a fire they would have been evacuating 
the residents of West. We rely every day on the heroic actions of the 
brave first responders that protect us and they deserve to understand 
the potential additional dangers beyond the fire itself that they are 
encountering.
    The current system requires small companies to report information 
to a number of agencies involved in protecting and monitoring potential 
safety issues. The tracking system mentioned above would allow local 
authorities to have up-to-date information about the materials that are 
on-site at the moment a fire call comes in. Additionally, at this time, 
information provided to one agency is not necessarily shared with other 
agencies that require the same information to guarantee safety to our 
country. This again highlights the importance of the communication 
between agencies that are all looking out for the safety of America 
that often overlap in sometimes unexpected ways. Electronic 
documentation of reports to these agencies should be able to 
automatically trip an alert to other agencies that require the same 
information.
    A good example of how a system might be more effective is currently 
in place in Wyoming where 23 planning districts with membership 
including elected officials, law enforcement, health officials, 
transportation, media, community groups and owners of the facilities 
that are subject to reporting hazardous material. Wyoming alone has 
approximately 7,500 facilities that need to report chemical inventories 
to the State commission. This highlights the importance of a system 
that works and is interconnected at all levels of government and again 
most importantly to the first responders so they are aware of 
additional hazards they face when fighting a fire.
    Everything I've highlighted above is necessary to fix the problem 
of tracking dangerous chemicals and keeping local authorities informed, 
but I think it is important to also consider the hazards of ammonium 
nitrate itself. While ammonium nitrate has been used for decades as an 
important, cost-effective fertilizer in agriculture, the key liability 
that manifested itself on April 17 was the explosive decomposition that 
is possible when the compound is exposed to the wrong conditions. Urea 
is an example of a valuable alternative that is successfully utilized 
when conditions in the soil have the appropriate moisture content and 
pH. Unfortunately, the dry pasture of Texas is perfect for 
volatilization of the nitrogen in urea due to the absence of regular 
soil moisture, so minimal levels of fertilizer actually remain in the 
ground when urea is used. This is the key reason that ammonium nitrate 
use is still prevalent in regions where these dry conditions exist for 
most of the year.
    As a chemist, every day I'm confronted with reactions where cheaper 
but potentially more hazardous options exist to accomplish the 
chemistry at hand. Part of my job for the past several years has been 
to seek out safer ways to improve the synthesis of chemical compounds, 
but this change often comes with a financial cost. With this in mind, 
there are two important aspects to making an overall improvement beyond 
the current options, the biggest will be the innovation necessary to 
develop something that does not currently exist. The second will be 
financial help for small farmers that are not equipped to absorb the 
increased expense of new technology until the advances become common 
practice and thereby cost-effective. I grew up on a small farm in 
Illinois and my mother still owns and lives on that land so I 
personally understand how every penny matters for today's small 
farmers. An example of a potential replacement could be encapsulated 
urea where the urea would not be exposed until water is present to 
dissolve the outer coating revealing the urea inside and then, in the 
presence of water, would be readily incorporated into the soil. Also, 
because urea increases the acidity of the soil the encapsulation could 
potentially also include a basic component to correct the pH.
    In closing, what has allowed our family to get through this 
horrible experience has been the outpouring of support especially from 
the brotherhood of fire fighters. The fire fighters are asked to 
perform dangerous and heroic work each and every day and need the help 
of the entire country to ensure they can be as safe as possible. This 
is the opportunity for this committee to impart change to ensure this 
never happens again by monitoring the use and storage of ammonium 
nitrate and other dangerous chemicals along with developing new and 
innovative ways to ensure safer practices for fertilizer. This will 
require compromise, but the potential of subsidies to farmers where 
ammonium nitrate is the best option to help offset the cost for the 
innovation of a new delivery method should provide the necessary drive 
for everyone to achieve the goal of a safer and better country.
            Respectfully,
                                          Timothy D. White.

    Mrs. Brooks. Thank you, Mr. Chairman. Mr. White does point 
out in his letter that the first responders' assessment of the 
situation in West could have differed significantly if they had 
known exactly what was on that site. Mr. White, a chemist, by 
the way, thinks that the first responders, with the right 
information, would have potentially been evacuating those 
residents of West rather than fighting that fire.
    As the U.S. Chemical Safety Board's investigation of the 
West explosion noted, West volunteer fire fighters were not 
made aware of the explosion hazard from the ammonium nitrate 
stored at West Fertilizer and were caught in harm's way when 
the blast occurred.
    Now, we all know--and there have been far too many both 
natural and man-made disasters in this country--but we rely 
every day on the heroic actions of our brave first responders 
that protect us. They deserve to understand the potential harm 
and the dangers beyond the fire itself before they run into a 
disaster like this, and to be trained properly as to how to 
protect themselves and our communities. My question, Mr. Wulf, 
is, in 1986 the Emergency Planning and Community Right-to-Know 
Act, or EPCRA, was created to help communities plan for 
emergencies like this involving hazardous chemicals.
    EPCRA established requirements for Federal, State, and 
local governments, tribes, and industry regarding emergency 
planning and a community's right to know reporting on hazardous 
and toxic chemicals. According to the EPA, West, Texas was in 
compliance with this reporting requirement. But did, my 
question to you is: Did DHS have access to this EPCRA 
information on West? If so, how was it used?
    Mr. Wulf. I am not aware that we had access to it. But 
going forward, among the things we are, you know, certainly 
looking at, as we talk with State agencies and State homeland 
security advisors, is ensuring that information is shared back 
and forth between, you know, the Department, our CFATS facility 
information, and information held by State agencies.
    Mrs. Brooks. So what is your plan, though, to make sure you 
are accessing this EPCRA information in communities across the 
country?
    Mr. Wulf. Yes, well, to the extent that the information is 
held at the State level and, I guess, in this instance it was 
held by the State Emergency Response Commission, I think we 
will work with the State homeland security advisors to ensure 
that the, you know, the information is flowing to us. 
Similarly, that information we hold about facilities that have 
holdings of high-risk chemicals flows to the States and 
localities. So we have been engaging in discussions and sharing 
information with State agencies and, certainly, intend to 
double down on those efforts going forward.
    Mrs. Brooks. Was there actually an unwillingness to 
leverage that information, or a lack of knowledge in the need 
to leverage that kind of information before this incident? Why 
does this seem to be a new step for DHS?
    Mr. Wulf. Yes. Now, there certainly wasn't an 
unwillingness. You know, outreach, getting the word out about 
CFATS and about the reporting requirements of facilities in the 
chemical sector was a high priority of the Department. You 
know, there, you know, have been sort of finite resources. We 
have had competing priorities. The need, for instance, to work 
with facilities that have submitted Top Screens have come into 
the program to develop their security vulnerability assessments 
and their site security plans and to conduct inspections.
    You know, at the same time, we have, over the course of the 
program, conducted over 11,000 outreach engagements, including 
with State and local communities. So I think we have been doing 
that sort of sharing on a sort of regional, localized basis. 
But we are certainly committed to ensuring that we have 
National protocols in place to make sure that that happens.
    Mrs. Brooks. If I might, Mr. Chairman, I have one further 
question. I was U.S. attorney when the Department of Homeland 
Security was set up, and so I am familiar with the positions. 
When you talk about a lack of resources, what are the positions 
within DHS that actually are responsible for this in States? Is 
there a DHS position in jurisdictions that is responsible for 
this outreach to the--whether it is those, you know, in a 
chemical community or others? What is the title of that 
position?
    Mr. Wulf. Well, within the CFATS program we have regional 
commanders and district commanders who are responsible on the 
chemical side. But more broadly, my broader organization, the 
Office of Infrastructure Protection, manages the protective 
security advisor program. Those protective security advisors 
are the ones who do the more broad-based outreach and liaison 
with folks at the State level, and look at Nationally-critical 
infrastructure.
    Mrs. Brooks. How many protective security advisors does the 
Department of Homeland Security have?
    Mr. Wulf. Approximately 100, but I would have to get back 
to you with the exact number there.
    Mrs. Brooks. Okay, thank you. I yield back. Thank you.
    Mr. Meehan. I thank the gentlelady from Indiana.
    I am going to ask a couple of follow-up questions myself. 
Because we have the panelists that we have before us, there are 
a couple of issues I would like to further explore. One of them 
goes to the concept of outreach, as we are trying to do it. Let 
me say, Mr. Wulf, that I do appreciate that there is a big 
undertaking. You quote the numbers of 44,000 Top Screens and 
other kinds of things. I think that there had been some 
significant accomplishment in the form of the beginning 
recognition, particularly by many in the industry, about the 
desire to try to regulate--not regulate, to identify and 
oversee the presence of these chemicals, the dangerous 
chemicals.
    Quite frankly, I think you would be the first to admit you 
got a lot of great cooperation from many of the folks in the 
industry. They are looking for more follow-up, having already 
taken great steps, made great investments. They are looking for 
the kind of timely follow-up on the efforts that you have 
already undertaken with these Top Screens. I am a little 
concerned by testimony that Mr. Caldwell presented in his 
written testimony. If I am correct, Mr. Caldwell, you are 
talking about estimates just to continue to do some of these 
CFATS oversights of anywhere from 7 to 9 more years before we 
are going to be even completed with this process. Seven to 9 
more years. Can we wait 9 more years for this kind of 
identification of critical information?
    Mr. Wulf. You know, I would note at the outset that 7 to 9 
years, in my view and the view of the Department, is not an 
acceptable time frame for getting through the mass of site 
security plans that we have on hand. We are committed to 
ensuring that the pace of those authorizations, inspections, 
and approvals continues to pick up. You know, I am happy to say 
that although there is more to do, we have turned a corner and 
have begun to make progress. At this time last year we had yet 
to grant final approval to our first site security plan.
    We are now coming up on 200 plans that will have been 
granted final approval. We had authorized sort-of the mid-range 
step about 50 site security----
    Mr. Meehan. Well, how about, okay, so you are talking about 
200, and you have got literally thousands to do.
    Mr. Wulf. Yes.
    Mr. Meehan. So it is a great undertaking.
    Mr. Wulf. Yes.
    Mr. Meehan. But 200 of thousands, I begin to question 
sometimes whether the process is, in and of itself, well 
conceived if, in fact, you can recognize that the end is so 
difficult to realize in a reasonable period of time. You can 
imagine how a business who has cooperated with you and is 
waiting for years for a follow-up can be tremendously 
frustrated. Now let me talk. Because today's thing is about the 
outliers. I am just talking about those who are compliant and 
working with you.
    When we use the word ``outliers,'' the concern that I have 
is that there is a suggestion that somehow these are people who 
are looking to dodge the system or to get away. I think the 
truth of the matter is, and sort of crystallized to me in 
testimony and commentary that we got from a variety of other 
people who are interested in this, and one of them came from a 
small farmer. Basically, he said, you know, the truth of the 
matter is we want to be compliant, but we are overwhelmed. We 
are overwhelmed with responsibilities, first, in just managing 
the facility.
    Oftentimes, the person who is responsible for all the 
compliance is also the person who is responsible for running 
the operation at the facility. We don't have time to take a day 
off to go to a meeting at the local agricultural association. 
In fact, most probably aren't even members of the agricultural 
association. So you are outreach to the association is good, 
but it is just touching the core. But we are missing a whole 
number of people. They don't have the time, and they are 
confused. They are confused as was stated. The individual in 
West, Texas thought he was in compliance.
    What he was in compliance with was a State requirement. 
They have got OSHA stopping in, they have the EPA that may stop 
in, they have you who may stop in, they got State facilities 
who may stop in. Some will tell you that it becomes 
overwhelming. So don't we have a responsibility to coordinate 
just a little bit better, and have a single point of contact 
for some of these kinds of things, particularly with regard to 
the very specific question about how much we have in the form 
of certain chemicals on your property?
    Mr. Wulf. Yes, I think you are right that we do. You know, 
we are committed to doing just that. You know, the Executive 
Order that the President has signed incorporates a pilot 
through which we are going to work with our interagency 
partners--the EPAs, the OSHAs, ATF--to validate best practices, 
to look at doing joint outreach, to look at how we can do a 
better job----
    Mr. Meehan. Let me, because my time is expiring and I want 
to ask Mr. Caldwell one specific question. But pilots and other 
kinds of things, I mean, I get it. I know you are working. But 
the bottom line is, there is a lot of information already out 
there. OSHA is already collecting it, EPA is collecting it, 
State facilities are collecting this very information. We seem 
to be continuing to try to remake the wheel. I had a friend 
that used to say ask me what time and they will tell me how to 
build a watch. Why can't we just go and do the simple process 
of asking about the presence of these chemicals, finding out 
who has them, tracking the chemicals through the system, and 
making sure people are reporting where they are?
    Mr. Wulf. That is exactly what we are doing with EPA, ATF, 
and with OSHA.
    Mr. Meehan. Mr. Caldwell, you looked at something in your 
report, and you have studied this, called a more systematic 
response to outreach. Is that not the word you used, a 
systematic response, or a systematic plan, or----
    Mr. Caldwell. That is correct. There was----
    Mr. Meehan. Can you explain to me what you mean by that, 
and then I will----
    Mr. Caldwell. Yes, there was a lot of outreach going on. 
The CFATS program was maintaining statistics on that. But what 
they weren't maintaining was the quality or results of that 
feedback, or the outreach. So we made a recommendation that, 
when they were doing this outreach they also look to see 
whether it is, look for measures of effectiveness. Are they 
are, you know, either hitting the right people, or are they 
doing it the right way? The Department has agreed with that 
recommendation, and is----
    Mr. Meehan. So work doesn't necessarily mean productivity. 
So how would----
    Mr. Caldwell. Yes, and measuring results of the outreach.
    Mr. Meehan. How do you recommend that they change that 
effort into productivity?
    Mr. Caldwell. We did not come up with specific ways, but 
just kind of thinking out loud here it could be either surveys 
back to the people that are a part of the outreach, or as part 
of the outreach having them respond to whether this is useful 
to them or not. Obviously, if it is not useful, then making 
adjustments so it would be useful. And get their views of the 
outreach, as well as just collecting the statistics on it, sir.
    Mr. Meehan. It does seem to me that there is an awful lot 
of opportunity for us to work with colleagues that look to work 
with you. They are not trying to hide this stuff. They are 
trying to cooperate with you, and they are asking for your 
assistance on doing it. We got a big challenge, and we got to 
get it right.
    I now will turn it over to the Ranking Member for her 
follow-up questions.
    Ms. Clarke. Thank you, Mr. Chairman. I appreciate the 
opportunity to follow up with a few questions. Mr. Wulf, I 
understand the Department has sent letters to facilities in 
recent weeks asking that information be submitted for a Top 
Screen risk analysis by September 9. Mr. Chairman, I ask 
unanimous consent for a copy of the letter to be submitted into 
the record.
    Given that the committee received, at least to my 
knowledge, no notification of this effort, how many of these 
letters were sent out? What is the universe of facilities that 
received these letters?
    Did it go to facilities that have already been tiered, or 
did it go to facilities that have been previously tiered? Could 
you just enlighten us a bit about these letters?
    Mr. Wulf. Yes, those letters, the bulk of them, came out of 
our effort to do the crosswalk with EPA's RMP database, and to 
identify facilities that were in the EPA database, but that may 
not have been in our database, that may not have filed Top 
Screen. So it was an effort to try to bring into the fold non-
compliant facilities.
    Ms. Clarke. Basically, doing some sort of reconciliation.
    Mr. Wulf. That is right. Another small segment of that were 
letters sent out to facilities in Texas that we had received 
through our mutual sharing with the State of Texas. We also 
sent some letters out to State-level agricultural executives in 
an effort, with the help of the Fertilizer Institute and 
Agricultural Retailers Association to reach down to that level 
and sort of fill that gap.
    Ms. Clarke. Once you have received your feedback after 
September 9, would you reach back to the committee and give us 
a sense of, you know, what the feedback has been in that 
reconciliation? Just to give us a sense of, you know, whether 
we have far more work to do in this regard or, you know, we are 
pretty, there are just a few out there?
    Mr. Wulf. Yes, absolutely.
    Ms. Clarke. That this is going to be important.
    Mr. Caldwell, given DHS' approach for deciding whether a 
facility is high-risk, would the West, Texas facility, had it 
reported to DHS, been considered high-risk and thereby covered 
by the CFATS rule? If not, why not? Based on this committee's 
research, it appears that different States have different rules 
governing the handling, storage, and transfer of various 
chemicals, including ammonium nitrate. Does DHS work with the 
States to compile information about facilities that may have 
certain chemicals covered by CFATS rule to determine if the 
facilities may or may not have reported holdings to DHS?
    Mr. Caldwell. Ms. Clarke, let me just make one first 
comment here. I quoted a figure for you in terms of the number 
of inspections that they have done since you had quoted some of 
the figures from the IG and from Mr. Wulf's statement as 358 
authorization inspections. I would also like to point out that 
if you look at the percentage of the inspections for the Tier 1 
of the highest-risk facilities it is actually quite a bit 
higher. So as I said, they are concentrating on the highest-
risk facilities.
    I would also like to say that in my opening statement I did 
say that it is quite possible that the West facility would not 
have been considered. Again, because when they look at whether 
to, when they tour a facility the most important factor is the 
consequences. So they look at figures like population. I will 
just throw a question out there for, maybe, Mr. Wulf to answer 
if it is appropriate. What we are not sure about is whether, 
when they are doing the calculation of consequences and they 
look at the potential casualties do they use a overall figure, 
like the population density of that area. Or do they use 
something more tactical, like looking at that specific 
location; is there a school, is there a nursing home, is there 
something like that that is in or near the facility?
    That is a question I don't quite know but, obviously, that 
would get to the heart of what the potential causalities might 
be. Just again, thinking out loud, you might have some rural 
areas where the population density is quite low, but that 
school does happen to be a facility. So during school hours, 
you could have quite a population there that would be put at 
risk, depending on the vicinity. Thank you.
    Ms. Clarke. So that is proximity that you are talking 
about.
    Mr. Caldwell. Correct. And Mr. Wulf can maybe address 
whether they do that level of analysis or not. Then the last 
question of working with States, again, we saw most of the 
outreach was focused on industry. I think to be honest, they 
were looking at who are the really big facilities out there, 
how do you reach them quickly. It is through the National 
associations, and it wasn't going through necessarily the State 
route. Although as Mr. Wulf said, they do have their protective 
security advisors at the State level off, working with the 
State government.
    But every State is organized a little bit differently. So 
as you said, it could be regulated differently. In some cases 
maybe a State would regulate this under their department of 
agriculture or something like that. Other ones, it might be 
under their equivalent of their environmental agency. Or it 
could be under a public safety agency.
    Ms. Clarke. Another fact that I just wanted to sort of get 
your take on it is proximity to rail. So you have chemicals 
that are being railed in, as in the case of West, Texas. 
Wouldn't that be sort of a flag that, you know, that should be 
part of the calculation of, you know, the threat to a 
particular environment?
    Mr. Caldwell. Yes, I mean, I think the regulations as 
written are pretty specific to a facility. As Mr. Wulf has 
pointed out, several facilities have reported that they have 
moved some of these chemicals off-site. It could quite be 
possible that their moved site by--they are just not storing as 
much on-site because these are in railroad cars in some other 
place.
    I don't remember. There was an explosion in Canada, I 
think, within the last month and I don't know what that 
chemical was. But obviously, chemicals on rail cars can present 
a threat. So how they are handled is important. Again, you 
know, this is a complex issue, complex Federal Government. I 
think the Transportation Security Agency actually has 
regulatory authority over the security of those things in 
transit.
    Ms. Clarke. Thank you, Mr. Chairman.
    Mr. Meehan. Thank you. I know the gentlelady asked for 
unanimous consent to enter a letter into the record, and so 
without objection so ordered.
    [The information follows:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



    The Chairman now recognizes Mr. Flores.
    Mr. Flores. Thank you, Chairman Meehan. Director Wulf and 
Mr. Caldwell, thank you for joining us today to help us as we 
work through this important subject. Director Wulf, you 
recently told the Global Security Newswire that CFATS is 
absolutely a shared responsibility. You all, you further noted, 
``Facilities that are in the business of dealing with high-risk 
chemicals have an obligation to do that reporting, just as I 
have an obligation to file our taxes with the IRS. The IRS 
doesn't necessarily come out and look for us.''
    So as you have said, I also think that most stakeholders 
would agree that enhancing security and building a resilience 
across the chemical sector is not something that a single 
agency or a single company, or industry or even Government, can 
do by itself. Just a--you know, I agree with what you have 
said. But that said, how do you envision DHS' role among all 
the players that are involved in this effort? To what extent do 
you believe that DHS should take the lead in this effort?
    Mr. Wulf. I think with respect to chemical facility 
security, DHS does have an obligation to lead in this area. We 
are committed to doing just that. We are part of a broader 
picture on an interagency basis. I think that is reflected in 
the President's Executive Order signed today. But with respect 
to chemical facility security, we are committed to doing all 
that we can to get the word out. But as I said, it is a shared 
responsibility. Businesses do have an obligation to know their 
regulatory responsibilities.
    We will continue to do all we can, and we will, you know, 
redouble our efforts to ensure that we get the word out there 
as broadly as possible, including to folks at the State and 
local levels, to include first responders. We are absolutely 
committed to doing that.
    Mr. Flores. Thank you, Mr. Chairman. I have no further 
questions.
    Mr. Meehan. Thank you.
    The Chairman now recognizes Mr. Vela. Do you have any 
follow-up questions?
    Mr. Vela. I do not----
    [Off mike.]
    Mr. Wulf. Yes, yes, I wish we had a----
    Mr. Vela. [Off mike.].
    Mr. Wulf. Yes, but that is accurate.
    Mr. Vela. I didn't to pose it in such a fashion, in an 
accusatory fashion. I just--going forward, I know that we have 
got a lot of work to do in regard to this issue to make sure we 
figure out how, what the Federal Government could have done, if 
anything, to prevent this accident. Just as importantly, to 
make sure that in the future we prevent any further tragedies 
like that. That was the purpose of the question.
    Mr. Wulf. Yes, absolutely.
    Mr. Meehan. I thank the gentleman.
    The Chairman now recognizes Mrs. Brooks.
    Mrs. Brooks. Thank you, Mr. Chairman. A bit of a follow-up 
on my previous question regarding the resources, Mr. Wulf, that 
you have dedicated to this. You have testified that DHS 
representatives have participated, it is in your written 
testimony, in more than 5,260 meetings with Federal, State, and 
local officials, and held more than 4,600 introductory meetings 
with owners and operators of CFATS potentially-regulated 
facilities. Those are impressive statistics, but yet how is it 
possible?
    Maybe it is because of your resource issues that still so 
many State and local authorities and so many small facilities 
say they have never heard from the Department about CFATS. What 
is it that is needed in order for you to touch and make sure 
that our State and local authorities and the smaller 
facilities, you know, become familiar with what these 
obligations are?
    Mr. Wulf. I think that what is important to do and what we 
have been doing is to start to do more targeted, more 
systematic outreach. To ensure that we are funneling through 
folks like the State homeland security advisors, through State 
emergency response commissions. Sort of strategically ensuring 
that the message gets out at the, at kind-of the State and 
local level. That also includes working through industry groups 
at the State level. We can work with our stakeholders at the 
National association level, as well, to ensure that we get that 
done.
    So, you know, we are committed to getting the job done. You 
know, the resources are what they are. We have, certainly, a 
lot on our plate. But we have very hardworking, committed folks 
on the team who, you know, get up every day looking to ensure 
that we safeguard our high-risk chemical facilities from 
terrorist attack and prevent incidents such as the one that 
occurred at West, Texas from occurring again. So, you know, we 
will continue to keep at it. On the outreach front, to work 
strategically to get the word out even more broadly.
    Mrs. Brooks. Having worked with the one person I am 
familiar with in Indiana, and that is all I believe Indiana had 
at least when I was U.S. attorney, has there been any 
discussion about reallocation of resources within the 
Department, and within your Department specifically, to provide 
you with more resources to make sure, especially post-West 
incident, to try to expedite the efforts of outreach?
    Mr. Wulf. You know, we have not had extensive discussions 
in that respect. I do think that as we get into a, you know, 
cycle of compliance inspection activity, which is actually 
going to begin in September, we are going to begin conducting 
the first compliance inspections of facilities that received 
their final site security plan approvals. As we move forward to 
implement an ammonium nitrate security program we are going to 
have to look at the resources, as we also continue to look at 
trying to ensure that we keep up the pace of strategic and 
targeted outreach.
    I would say another thing, if I could add, that would be 
helpful to ensuring that, you know, facilities understand that 
the program is here to stay, would be for the Congress to 
permanently authorize the program. I think that would go a long 
way to helping us get that word out to facilities that, you 
know, may not have received that word.
    Also to provide an important measure of stability to our 
industry stakeholders who, as they consider looking to make 
significant investments in security measures and to argue for 
budget dollars in a constrained environment, even on the 
private-sector side, can speak to their companies about the 
importance of the program and the need to comply with its 
regulatory framework.
    Mrs. Brooks. Thank you for that suggestion. I want to just 
thank the men and women who do that work out around the 
country. It has been received very favorably. There just aren't 
enough of them. Thank you.
    Mr. Meehan. I thank the gentlelady. I thank this panel for 
your presence here today. Mr. Wulf, I know you have got a big 
job to do. I have asked you to look at the specific issue with 
regard to the outliers and give us some metrics and give us 
some time lines with regard to how you need to do it. I also 
know the issue of the reauthorization of this program will soon 
be front and center. It is as, you know, we want to support you 
in these efforts.
    That is our objective is to work with you, not against you. 
But we have got to ask some tough questions, and an awful lot 
of the times performance is going to be the biggest part of the 
equation. You would be, I am sure, the first to admit that the 
performance to this point, albeit a great challenge, has raised 
a lot of fodder for questions. We have put a lot of money into 
this, and we have got to be able to start to demonstrate the 
ability to narrow so that the effort is matched with 
productivity, as I said at the outset.
    I thank you. There may be some committee Members who will 
ask further questions with written questions. If they are 
submitted, we ask that you do your best to be timely in your 
response to them. I thank you for your presence here today.
    Mr. Wulf. Thank you.
    Mr. Caldwell. Thanks.
    Mr. Meehan. So I dismiss the first panel, and the Members 
of the subcommittee will now take a moment while we invite our 
second panel to join us.
    The Chairman is very grateful for the presence of our 
panel. I thank you for taking the time to sit through the first 
line of questioning. One of the opportunities and advantages, 
although I am sure you may have wanted to ask some questions 
yourself as you may be able to make a comment with regard to 
some of the issues that were discussed. I invite you to do 
that. But allow me to take a moment to introduce each of you.
    We are joined by Mr. Donnie Dippel. He is the president for 
the Texas Agricultural Industries Association. Previously, Mr. 
Dippel served in the Texas Department of Agriculture from 1988 
to 2002, ending in 2002 as assistant commissioner for pesticide 
programs. Before joining the Texas Department of Agriculture, 
Mr. Dippel worked as a manager and commercial pesticide 
applicator for a farm service center.
    Mr. Paul Derig is the environmental health and safety 
manager for the J.R. Simplot Company, a large agribusiness 
firm. As manager, Mr. Derig has to support regulatory affairs, 
functions, and compliance within the company, and represents 
J.R. Simplot in trade associations, organizations, and 
activities.
    Mr. Timothy Scott is the chief security officer and 
corporate director of emergency services and security for the 
Dow Chemical Company and a member of Dow's corporate crisis 
management team. Mr. Scott currently serves on the advisory 
board of the International Center for Chemical Safety and 
Security, and is a member of the G8 Global Partnership 
subworking group on chemical security. Previously, Mr. Scott 
served on the executive committee of the Chemical Sector 
Coordinating Council for the Department of Homeland Security.
    Last, we are joined by Mr. Sean Moulton, who is the 
director of open government policy program at the Center for 
Effective Government, a nonpartisan watchdog group which aims 
to promote Government accountability and openness. Previously, 
Mr. Moulton served for several years as a research fellow and 
contract employee at the United States Environmental Protection 
Agency.
    I want to thank all of you for being here. Your full 
written statements will appear in the record, and I ask you do 
your best to contain your testimony to the 5 minutes. We will 
look forward to engaging you in questions.
    So the Chairman now recognizes Mr. Dippel for 5 minutes.

  STATEMENT OF DONNIE DIPPEL, PRESIDENT, TEXAS AG INDUSTRIES 
                          ASSOCIATION

    Mr. Dippel. My name is Donnie Dippel. I am president of 
Texas Ag Industries Association. Subcommittee Chairman Meehan, 
Subcommittee Ranking Member Clarke, and distinguished Members 
thank you today for letting Texas Ag Industries testify at this 
committee meeting.
    Before I begin my testimony, I would like to extend my 
thoughts and prayers to the fellow Texans who have expected 
such great loss as the result of the West, Texas explosion.
    Texas Ag Industries Association membership is comprised of 
manufacturers, distributors, retail dealers, and allied 
companies involved in the sale of fertilizer, agriculture 
chemicals, and related services. TAI's mission statement is to 
advocate, influence, educate, and provide services to support 
its members in their quest to foster a sustainable business 
environment while being productive stewards of agriculture. TAI 
has always worked with its industry members and non-members to 
help them in their compliance issues.
    The Asmark Institute is a not-for-profit resource center 
that provides compliance materials and services, develops 
common-sense solutions to new regulation requirements, and 
monitors enforcement. As stated earlier, I served as president 
of TAI for since 2003. Prior to coming to Texas Ag Industries 
Association I worked with the Texas Department of Agriculture, 
serving as assistant commissioner for pesticide programs. Prior 
to the Texas Department of Agriculture I managed a farm and 
ranch retail business somewhat similar to the West, Texas 
facility.
    I currently serve on the Texas Feed and Fertilizer Control 
Advisory Committee. TAI holds a minimum of five education 
programs a year to help our industry be apprised of current 
practices and concerns in crop production, laws, regulations, 
and environmental issues. It has always been a concern that we 
do not have more dealer participation at our educational 
meetings. After surveying the dealer membership to find out 
ways to improve participation, we found that many retail 
dealers cannot leave their business to attend an all-day 
meeting without closing the doors for the entire day.
    Small dealers also do not have additional employees to 
operate their business if they are not there. I believe this is 
also a problem we see in regulatory compliance issues. Small 
retail dealers may have one or two individuals that are trying 
to run a business, and regulatory issues may not be their main 
concern each day in operating their facilities. Nor are they 
always aware of the extensive list of regulations that pertain 
to their business. In contrast, distributors and manufacturers 
typically have designated employees whose only job is to ensure 
that they are in compliance with all the laws and regulations, 
and that best management practices are implemented.
    After the fire and explosion at West, Texas fertilizer, our 
office was overwhelmed with calls; first from the press, 
wanting us to speculate on what caused the tragedy. Next came 
several calls from the manager at West Fertilizer Company. As 
you can imagine, he had a tremendous difficulty even talking 
about what happened that night. Being from a small town, he 
most likely knew every one of the individuals who perished in 
the explosion. On one of the calls, he expressed his concern 
that the news was saying that West Fertilizer Company was not 
registered with the U.S. Department of Homeland Security.
    He told me, ``I had the certificate hanging on my office 
wall that said we were registered to handle ammonium nitrate.'' 
I asked him if he was sure that they had completed a Top Screen 
with DHS. He said that he had inspectors that came to his plant 
to check the security of ammonium nitrate and check the sales 
records. Then I realized he was referring to the inspectors 
from the Texas Feed and Fertilizer Control Service. The Texas 
Feed and Fertilizer Control Service estimates there are 
approximately 546 retail dealers in the State of Texas, and 
approximately 129 are registered to handle ammonium nitrate.
    Texas law provides that the office of the State chemist, 
whom the Texas Feed and Fertilizer Control Service is under, 
with the responsibility for ensuring that facilities handling 
ammonium nitrate are able to secure the product at all times 
from theft and misuse, and that they have records of every 
sale.
    In addition to the State laws, once Homeland Security 
finalizes the pending ammonium nitrate security program they 
should know where every facility selling ammonium nitrate is 
located, as this program will require anyone selling or 
purchasing ammonium nitrate to register with them.
    After the tragedy at West Fertilizer Company, TAI mailed 
out a letter to every fertilizer retail dealer in the State, 
asking them to make sure they are compliant with all the 
regulations pertaining to their operation. With the help of 
Asmark Institute, we were able to offer retail dealers access 
to Asmark's compliance assessment tool. The compliance 
assessment tool assists retail dealers with identifying the 
specific activities in their business, and the program provides 
them with a summary of their regulatory requirements and offers 
suggested best management practices.
    Asmark also made the compliance assessment tool available 
to retail dealers across the United States through our National 
associations, the Fertilizer Institute and Agriculture 
Retailers Association. After sending the letter, we received 
many calls from retail dealers, which led us to discover that 
confusion between registering with DHS and the Texas Feed and 
Fertilizer Control Service was very prevalent. The first 
question I asked was: Do you handle ammonium nitrate? If so, 
are you registered with DHS?
    We have worked with several retail dealers to help them 
register with Homeland Security. I have several more requests 
on my desk. One of the big problems we have run into in getting 
retail dealers registered is the requirement that they must 
have a secure e-mail address. Many of the retail dealers use e-
mail addresses such as Hotmail, Gmail, AOL, GoDaddy, and others 
that are not considered secure. The retail dealers also have to 
be able to identify the longitude and latitude location of 
their business. The Top Screen registration offers a program to 
help find the location, but many times these coordinates are 
not correct and they are not accepted by the program.
    The majority of the registrants' attempts have been helped 
over the phone. Many of the retail dealers' computer skills are 
very limited and they have become very frustrated and have 
asked to quit or have to quit the registration process to set 
up a new e-mail address or find out why the program is not 
taking their coordinates.
    Even though ammonium nitrate is an east Texas fertilizer, 
and very little is used west of the Interstate 35, the area is 
simply too big to allow my travel to help each one of these 
individual retail dealers that has problems registering.
    The situations I have outlined I do not believe are unique 
to Texas. There are many, many small retail dealers like West 
Fertilizer Company throughout the United States. One suggestion 
I would have is that DHS work with its local inspectors, the 
State fertilizer officials such as Texas Feed and Fertilizer 
Control Service, and through State associations such as TAI to 
come up with a process to help these small facilities. Several 
of the retail dealers have chosen to use the Asmark Institute's 
compliance services. Many will use their insurance company. 
Some will try to do it on their own.
    Whatever way they choose, TAI will continue to work with 
the agriculture industry through Texas to help them comply with 
their regulatory requirements. Again, I thank you for the 
invitation to testify at this hearing, and I will be glad to 
answer any of your questions.
    [The prepared statement of Mr. Dippel follows:]
                  Prepared Statement of Donnie Dippel
                             August 1, 2013
    Chairman McCaul, Ranking Member Thompson, and Subcommittee Chairman 
Meehan, Ranking Subcommittee Member Clarke, and Members of the House 
Homeland Security Committee, Subcommittee on Cybersecurity, 
Infrastructure Protection, and Security Technologies, thank you for 
allowing the Texas Ag Industries Association (TAIA) the opportunity to 
testify today on ``West Fertilizer, Off the Grid: The Problem of 
Unidentified Chemical Facilities.'' Before I begin my testimony, I 
would like to extend my thoughts and prayers to my fellow Texans who 
have experienced such great loss as a result of the West, Texas 
explosion.
    Texas Ag Industries Association's membership is comprised of 
manufacturers, distributors, retail dealers, and allied companies 
involved in the sale of fertilizer, agriculture chemicals, and related 
services. TAIA's mission statement is ``to advocate, influence, 
educate, and provide services to support its members in their quest to 
foster a sustainable business environment while being productive 
stewards of agriculture.'' TAIA has always worked with its industry 
members and non-members to help them with their compliance issues. For 
the last several years TAIA has been affiliated with the ASMARK 
Institute. The ASMARK Institute is a not-for-profit resource center 
that provides compliance materials and services, develops common-sense 
solutions to new regulatory requirements and monitors enforcement. I 
have served as president of TAIA since 2003. Prior to coming to TAIA I 
worked for the Texas Department of Agriculture serving as assistant 
commissioner for the Pesticide Programs. Prior to the Texas Department 
of Agriculture I managed a farm and ranch retail business somewhat 
similar to the West Fertilizer Co. facility. I currently serve on the 
Texas Feed and Fertilizer Adviser Committee representing TAIA.
    TAIA holds a minimum of five educational programs a year to keep 
our industry apprised of current practices and concerns in crop 
production, laws, regulations, and environmental issues. It has always 
been a concern that we do not have more dealer participation at our 
educational meetings. After surveying the dealer membership to find 
ways to improve participation, we found that many retail dealers cannot 
leave their business to attend an all-day meeting without closing the 
doors for an entire day. Small dealers also do not have additional 
employees to operate their business if they are not there. I believe 
this is also the problem we see with regulatory compliance issues. 
Small retail dealers may have one or two individuals that are trying to 
run a business and regulatory issues may not be their main concern each 
day in operating their facility nor are they always aware of the 
extensive list of regulations that pertain to their business. In 
contrast, distributors and manufacturers typically have designated 
employees whose only job is ensuring that they are in compliance with 
all the laws and regulations and that best management practices are 
implemented.
    After the fire and explosion at West Fertilizer Co. our office was 
overwhelmed with calls, first from the press wanting us to speculate on 
what caused the tragedy. Next came several calls from the manager at 
West Fertilizer Co. As you could imagine, he had a tremendous 
difficulty even talking about what happened that night. Being from a 
small town, he most likely knew every one of the individuals who 
perished in the explosion. On one of the calls he expressed his concern 
that the news was saying that West Fertilizer Co. was not registered 
with the U.S. Department of Homeland Security (DHS). He told me ``I had 
the certificate hanging on my office wall that said we were registered 
to handle ammonium nitrate.'' I asked him if he was sure they had 
completed a Top Screen with DHS. He said that he had inspectors that 
came to his plant to check the security of ammonium nitrate and checked 
his sales records. I then realized he was referring to the inspectors 
from the Texas Feed and Fertilizer Control Service (TFFCS). The Texas 
Feed and Fertilizer Control Service estimates that there are 
approximately 546 retail dealers in the State of Texas, of which 
approximately 129 handle ammonium nitrate.
    Texas Law provides, the Office of the State Chemist, whom Texas 
Feed and Fertilizer Control Service is under, with the responsibility 
for ensuring that facilities handling ammonium nitrate are able to 
secure the product at all times from theft and misuse and that they 
have records of every sale. In attrition to State laws, once Homeland 
Security finalizes the pending Ammonium Nitrate Security Program the 
should know where every facility selling ammonium nitrate is located as 
this program will require anyone selling or purchasing ammonium nitrate 
to register with them. After the tragedy at West Fertilizer Co., TAIA 
mailed a letter to every fertilizer retail dealer in the State asking 
them to make sure they are incompliance with all the regulations that 
pertain to their operation. With the help of the ASMARK Institute, we 
were able to offer retail dealers access to ASMARK's Compliance 
Assessment Tool. The Compliance Assessment Tool assists retail dealers 
with identifying the specific activities in their businesses and the 
program provides them with a summary of their regulatory requirements 
and offers suggested best management practices. ASMARK also made the 
Compliance Assessment Tool available to retail dealers all across the 
United States through our National associations, The Fertilizer 
Institute and the Agricultural Retailers Association.
    After sending the letter we received many calls from retail dealers 
which led us to discover that the confusion between registering with 
DHS and the Texas Feed and Fertilizer Control service was very 
prevalent. The first question I asked was ``Do you handle ammonium 
nitrate and if so are you registered with DHS?'' We have worked with 
several retail dealers to help them register with Homeland Security and 
I have several more requests for help on my desk. One of the big 
problems we have run into with getting retail dealers registered is the 
requirement that they must have a secure email address. Many of the 
retail dealers use email address such as Hotmail, Gmail, AOL, GoDaddy, 
or others that are not considered ``secure.'' The retail dealers also 
have to be able to identify the longitude and latitude location of 
their businesses. The Top Screen registration offers a program to help 
find the location, but many times these coordinates are not correct or 
not accepted by the program. The majority of the registration attempts 
we have helped with are over the phone. Many of the retail dealer's 
computer skills are limited and they become very frustrated and ask to 
quit or have to quit the registration process to set up a new email 
address or find out why the program is not taking their coordinates. 
Even though ammonium nitrate is an East Texas fertilizer and very 
little is used west of Interstate 35, the area is simply too big to 
allow my travel to help each individual retail dealer that has problems 
registering.
    The situations I have outlined I do not believe are unique to 
Texas. There are many, many small retail dealers like West Fertilizer 
Co. throughout the United States. One suggestion I would have is that 
DHS work with its local inspectors, the State fertilizer control 
officials such as the Texas Feed and Fertilizer Control Service, and 
through State associations such as TAIA, to come up with a process to 
help these small facilities.
    Several of the retail dealers have chosen to use the ASMARK 
Institute's compliance services, many will use their insurance company; 
and some will try to do it on their own. Whatever way they choose, TAIA 
will continue to work with the agricultural industries in Texas to help 
them comply with their regulatory requirements. Again I thank you for 
the invitation to testify at this hearing. I will be glad to answer any 
questions you may have.

    Mr. Meehan. Thank you, Mr. Dippel.
    Mr. Derig, you are now recognized for your testimony.

   STATEMENT OF PAUL DERIG, ENVIRONMENTAL HEALTH AND SAFETY 
               MANAGER III, J.R. SIMPLOT COMPANY

    Mr. Derig. Thank you, Chairman Meehan, Ranking Member 
Clarke, and distinguished Members of the subcommittee. As 
introduced, my name is Paul Derig, and I am here to testify on 
behalf of the Agricultural Retailers Association. ARA is a 
trade association which represents America's agricultural 
retailers and distributors of crop inputs, equipment, and 
services. On behalf of ARA, our members, and in particular 
myself, I also want to express heartfelt condolences and 
prayers for the people of West after this tragic incident that 
they have had to endure.
    ARA members are scattered throughout all 50 States, and 
range in size from small family-held businesses to farmer-owned 
co-ops, and larger companies with hundreds of retail outlets. I 
happen to be the H&S manager for a very diversified 
agricultural company, and we operate approximately 100 farm 
retail distribution centers throughout our network.
    During the time that I have been in the retail business, 
which covers a span of 35 years, I have played a dual role, 
also as a public responder. So I understand what is happening 
with those families and the loss that they have had for the 
fire fighters that they had injured.
    I have also spent a large amount of time, because when 
EPA's program came out I saw the tie between the hazardous 
materials that I worked with on a day-to-day basis in the 
retail business and what EPA was trying to do under SARA Title 
III. So I played a dual role for over 10 years, also being on a 
regional hazardous materials response team in the State of 
Oregon. So as playing those dual roles, I think it is important 
because the ag retail sector plays an important role in feeding 
the world. Our public responders play an important role in 
protecting those people.
    We provide essential crop inputs like seed, fertilizer, 
crop protection products. With that, we face a complex problem. 
It is a multifaceted issue. It involves not only the retailers, 
not only the regulators, but a number of other areas within our 
communities.
    Prior to April 17, the ARA board of directors initiated the 
largest undertaking in their history: The establishment of an 
ammonia code of practice to help dealers in the retail world 
understand the storage and handling of that product.
    We have also expanded that down to include ammonium 
nitrate. Ammonium nitrate was not originally considered because 
as an industry we have had initiatives along those lines in the 
past with storage and handling. The result of this initiative 
we call responsible ag, a member-led performance management 
system that will establish foundational EH&S practices at or 
above compliance with third-party independent audit programs. 
We ask for agency collaboration and communication within this 
effort.
    For ARA members, many handle products that are on the 
chemical of interest list under DHS, including the high-profile 
products like ammonium nitrate and anhydrous ammonia, which are 
regulated under the CFATS program. Also regulated under a 
number of other regulatory agencies. ARA members that have 
filed under the CFATS program, for the most part fall out of 
the tiering process. Those that are tiered are tiered in the 
lower tiers, 3 and 4, in that CFATS-regulated community.
    The Department of Homeland Security's current leadership 
has made great strides in reforming the CFATS program and 
outreach efforts. However, more needs to take place. ARA would 
like to discuss the following enhancements: Reevaluating the 
ammonium nitrate registration program; target unidentified 
chemical facilities through intergovernmental and industry 
cooperation; check the partnership model; raise partnership 
outreach within industry, and reassess CFATS' small facility 
compliance.
    The West facility was required to comply with many 
regulations: Compliance with OSHA's hazard communication 
standard, DOT's transportation of hazardous materials security 
program, as well as Department of Homeland Security and--as 
well as standards that cover handling and storing of ammonium 
nitrate. Some of those could have prevented this incident. I 
don't believe that, or we don't believe that DHS alone would 
have prevented what happened. For example, ANS stored in a 
warehouse close to seed. The OSHA standard forbids commingling 
of organic and combustible material, such as seed, with 
ammonium nitrate.
    ARA urges the Department of Homeland Security to issue an 
ammonium nitrate fertilizer registration program that documents 
and tracks the sales of the product without unduly burdening 
the farmer's access. ARA testified before this committee in 
support of the secure handling of ammonium nitrate in 2005, 
which eventually became law in 2007. But nearly 6 years later, 
there is still no rule. Congress should consider ARA's letter 
to advise DHS advising them to take the following immediate 
steps.
    First, DHS should enter into a cooperative agreement with 
State departments of agriculture or other agencies to perform 
inspections and outreach. For example, the agricultural 
community is already familiar with the restricted-use pesticide 
program, where they need to be licensed and obtain a permit to 
handle and apply certain products.
    Second, leverage U.S. Department of Agriculture's expertise 
and the effect it will have on food production. Include only 
straight ammonium nitrate fertilizer at this time, and exclude 
ammonium nitrate fertilizer mixtures. According to DHS, we 
heard West was unidentified in their database. However, other 
Federal and State agencies were aware of the facility.
    Mr. Meehan. In the interest of time, may I ask you to 
proceed to the conclusion?
    Mr. Derig. Yes. We just think it important for the 
collaboration and the communication to be able to enhance 
compliance and use the industry initiatives that we spoke 
about.
    Mr. Meehan. Thank you.
    Mr. Derig. Thank you.
    [The prepared statement of Mr. Derig follows:]
                    Prepared Statement of Paul Derig
   safety, security and feeding the world is a top priority for the 
                         agricultural industry
    Thank you, Chairman Meehan and Ranking Member Clarke, I appreciate 
the opportunity to appear before this subcommittee. My name is Paul 
Derig, and I am here to testify on behalf of the Agricultural Retailers 
Association (ARA), a trade association which represents America's 
agricultural retailers and distributors of crop inputs, equipment, and 
services. ARA members are scattered throughout all 50 States and range 
in size from small family-held businesses and farmer cooperatives to 
larger companies with hundreds of retail outlets.
    I am an environmental, health, and safety (EHS) manager for the 
J.R. Simplot Company, which is headquartered in Boise, Idaho and is one 
of the largest privately-held firms in the country. In more than 70 
years, the company has grown into a global food and agribusiness 
company with products that are sold in every State and many foreign 
countries. We are a diversified agricultural company, with three main 
operating groups; AgriBusiness, known for the fertilizer manufacturing 
and ag retail outlets. We operate a retail farm supply distribution 
system, Simplot Grower Solutions, and a professional product 
distribution system Simplot Partners, comprised of over 100 facilities 
in 16 western States that provide products, technical, and field 
services to local farmers, horticulturists, and landscapers. Land and 
Livestock raises cattle and grows crops, including potatoes, for which 
we are widely known, and the Food group known for production and 
processing food items, many of our company products are consumed by 
Americans every day. This hearing is important to the company as the 
ability to safely handle crop input products is vital to our industry 
and food production.
    I am directly responsible for the regulatory support and oversight 
of regulatory programs for the J.R. Simplot AgriBusiness Retail 
operations, including security. Over the past 30 years, I have been 
involved with many aspects of fertilizer handling and security, both 
through industry experience and as a public responder, where I have 
served as a fire fighter and member of the State of Oregon Region X 
Hazardous Materials Response team, State and National Fire Academy 
instructor, and as a departmental and regional training officer for the 
public sector. In my Simplot career, I also work with hazardous 
materials, including leading Hazardous Waste Operations and Emergency 
Response Standard (HAZWOPER). Because of the many roles that I have 
been able to play, I understand the importance of safety and security 
in the public and private sectors.
    Before I address issues concerning the Chemical Facility Anti-
Terrorism Standards (CFATS) Program, I would like to explain the 
important role that agricultural retailers play in feeding the world--
because it is too often taken for granted. Agricultural retailers 
provide farmers with crop input products like seed, fertilizer, crop 
protection products, and equipment. Agricultural retailers also provide 
their farmer customers with crop consulting and custom application 
services. Agricultural retailers can perform soil sampling so that the 
right kind and amount of fertilizer is applied in the right place at 
the right time; thus, providing sustainability.
   proactive approach to the west fertilizer incident: responsible ag
    On behalf of our members, we appreciate the opportunity to provide 
the committee with the fertilizer industry's perspective on the tragic 
incident that took place on April 17 at the fertilizer facility in 
West, Texas. By working together, we will do everything we can to 
prevent tragedies like West from happening again. Our employees live 
and work in communities small and large across the country, and nothing 
is more important than protecting our workers, first responders, and 
their neighbors. A majority of our employees, like myself, are or have 
been first responders in their communities. We are an accountable and 
responsible industry committed to the safety of the communities in 
which we live and operate.
    Prior to April 17, the ARA Board of Directors initiated the largest 
undertaking and most important mission in the Association's history--
the establishment of an Ammonia Code of Practice--with the intent of 
establishing Codes of Practices for other products such as ammonium 
nitrate (AN) fertilizer. The Fertilizer Institute was invited to join 
the initiative and is a partner. The result--a Responsible Ag 
management system that will help facilities establish foundational 
EHS&S performance practices.
    This member-led effort will lead to uniform guidelines that promote 
continuous improvement in EHS&S performance for all fertilizer storage 
facilities and designed to be sensitive and responsive to community 
needs and public concerns. To ensure compliance with these guidelines, 
a third-party inspection program will also be established.
    Currently work is being done to reach our goal of designing a 
system that is transparent, simple, and efficient for fertilizer 
storage facilities, effective in improving safety, and provides more 
frequent and efficient inspections than regulatory agencies. To ensure 
that we are adequately responding to public concerns, this system will 
include independent third-party audits and the adherence to stringent 
industry and regulatory standards. Agricultural retailers, 
distributors, and other fertilizer storage facilities' implementation 
of this Responsible Ag program includes a commitment to comply with all 
relevant EHS&S regulations as they affect company operations. We are 
also soliciting Government, academia, and industry stakeholders for 
input.\1\
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    \1\ ARA reached out to the academic community such as Texas A&M for 
input on AN storage. ARA has also sent letters requesting regulatory 
checklists from: The Department of Transportation, Occupational Safety 
and Health Administration, Environmental Protection Administration, 
etc. (See letters attached)
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    Responsible Ag Guiding Principles:
   Communicate with and engage employees, business partners, 
        and the community to foster a greater understanding of EHS&S 
        matters regarding fertilizers and other hazards;
   Foster new and continuing partnerships between the 
        agricultural industry, local first responders, and Local 
        Emergency Planning Committees;
   Develop a code of practice for ammonium nitrate & anhydrous 
        ammonia storage and handling;
   Create a comprehensive and efficient third-party auditing/
        inspection process for facilities.
         ara supports current and future improvements to cfats
    For ARA members, crop input products like anhydrous ammonia and 
ammonium nitrate fertilizer and pesticide fumigants are classified as 
Chemical of Interest (COIs) and are regulated under the CFATS Program. 
ARA members account for a large portion of the lower risk (Tier 3 & 4) 
CFATS-regulated community. It is important for these chemicals to be 
handled at the retail facility, as they become significantly less 
regulated and in the case of CFATS not regulated at all once they are 
on the farm.
    DHS's current leadership has made great strides in reforming the 
current CFATS program and outreach efforts. The CFATS approach allows 
facilities to utilize a full range of potential security enhancements 
depending on local site conditions and risk thus maximizing their 
potential effectiveness. The level of inspections has increased 
substantially over the last year, but inspection projections for lower-
risk facilities could improve from stakeholder input, which DHS plans 
to solicit in a rulemaking.
    ARA suggests the following enhancements on both the CFATS program 
and the Ammonium Nitrate Fertilizer Registration Program:
    (1) Reevaluate the Ammonium Nitrate Fertilizer Registration 
        Program;
    (2) Target Unidentified Chemical Facilities Through 
        Intergovernmental and Industry Cooperation;
    (3) Check the Partnership Model;
    (4) Raise ``Partnership'' Outreach With Industry;
    (5) Reassess CFATS Small Facility Compliance Burdens.
    reevaluate the ammonium nitrate fertilizer registration program
    Some claim that if a functional AN registration program was 
implemented the West fertilizer accident would have never happened. We 
believe that under the proposed registration framework, West fertilizer 
would have at least registered under the program. West might have paid 
more attention to their operations and AN inventory if the rule was 
issued, but there is no way to make that determination.
    The West facility was required to comply with specific OSHA 
regulations, including the Hazard Communication Standard \2\ and 
Explosives and Blasting Agents Standard.\3\ It can be argued that 
compliance with these programs could have prevented or mitigated the 
incident, while it's not clear what the compliance status of the 
facility was at the time of the incident.
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    \2\ 20 C.F.R.  1910.1200 (1994).
    \3\ 29 C.F.R.  1910.109 (1978).
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    The Explosives and Blasting Agents Standard has many measures that 
would have prevented or mitigated the incident.\4\ For example, the AN 
was stored in a warehouse, in very close proximity to the seed area. 
``Ammonium nitrate shall be in a separate building or shall be 
separated by approved type firewalls of not less than 1 hour fire-
resistance rating from storage of organic . . . ''.\5\ Seed is an 
organic and combustible material, which could propagate the fire to 
areas where AN was stored. Storage of AN at an adequate distance from 
the seed area might have helped in preventing the explosion. 
Unfortunately, we may never have the answer; however, it's time to look 
forward to solutions.
---------------------------------------------------------------------------
    \4\ This conclusion is also supported by academic experts. See 
Oversight of Federal Risk Management and Emergency Planning Programs to 
Prevent and Address Chemical Threats, Including the Events Leading Up 
to the Explosions in West, TX and Geismar, LA before the Senate Comm. 
on Environment and Public Works, 113th Cong. (2013) (statement of Dr. 
M. Sam Mannan, PE, CSP).
    \5\ Id.
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    Therefore, ARA urges the U.S. Department of Homeland Security (DHS) 
to issue an ammonium nitrate fertilizer registration program that 
documents and tracks the sale of the product without unduly burdening 
the agricultural sector's access to AN for farming and other legitimate 
agricultural purposes. The fertilizer industry approached Congress in 
2005 to seek traceability regulations for ammonium nitrate. ARA 
testified before this committee in support of The Secure Handling of 
Ammonium Nitrate Act on December 14, 2005. This legislation was 
eventually signed into law on December 2007. We feel that the program 
should remain focused on registered AN facilities and AN purchasers as 
originally intended by Congress.\6\ ARA certainly understands the 
challenges faced by DHS in implementing a final AN rule, but it has 
been nearly 6 years since this law was enacted.
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    \6\ Section 563 of the 2008 Consolidated Appropriations Act, Secure 
Handling of Ammonium Nitrate (Section 563) granted the Department of 
Homeland Security (DHS) the authority to regulate the sale and transfer 
of ammonium nitrate ``to prevent the misappropriation or use of 
ammonium nitrate in an act of terrorism.'' In October 2008, DHS 
published an Advanced Notice of Proposed Rulemaking (ANPRM) detailing 
the activities expected to be covered under the ammonium nitrate 
regulations and seeking comment from interested parties. In August 
2011, DHS published an ammonium nitrate Notice of Proposed Rulemaking 
(NPRM).
---------------------------------------------------------------------------
    Congress should consider ARA's letter \7\ to DHS advising them to 
take the following immediate steps:
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    \7\ See ARA letter ``Agricultural Retailers Association suggestions 
on Ammonium Nitrate Security Program'' to Ms. Caitlin A. Durkovich, 
Assistant Secretary for Infrastructure Protection U.S. Department of 
Homeland Security (July 8th 2013).
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   DHS should enter into cooperative agreements with State 
        agencies, either State departments of agriculture or agencies 
        within the land-grant universities like Texas A&M to perform 
        inspections and audits. Because State inspectors are more 
        familiar with the product and their regions it would be more 
        efficient for them to perform inspections and outreach. ARA 
        along with various State departments of agriculture support 
        this model. For example, farmers and the agricultural community 
        are already familiar with the Restricted Use Pesticide (RUP) 
        program, where they need to be certified and obtain a permit to 
        handle and apply the product.
   Leverage the U.S. Department of Agriculture's (USDA) 
        expertise in agricultural-based products and the effect it will 
        have on food production. Currently to our knowledge, USDA does 
        not play a role in advising DHS.
   Include only straight AN at this time and exclude 
        ``mixtures'' in the definition of AN.
   Include AN fertilizer and exclude explosive-grade AN 
        regulated by the Alcohol Tobacco and Firearms (ATF).
   There should be a ``no-limit'' threshold--cold packs of AN 
        should be regulated to prevent terrorism.
    In absence of a formal AN rule issued by DHS, ARA will continue to 
work diligently with our members and various Government agencies to 
implement voluntary measures that: (1) Secure AN fertilizer storage 
(Responsible Ag), (2) screen purchases of AN fertilizer, and (3) 
provide resources for AN facilities to use in response to suspicious 
activities or actors.
 target unidentified chemical facilities through intergovernmental and 
                          industry cooperation
    DHS should ensure that facilities with chemicals of interest are 
notified by DHS when they fall within the purview of the CFATS program. 
The comprehensive Federal regulatory program requires high-risk 
chemical facilities to register with DHS (Top Screen), conduct a 
thorough site security assessment and implement protective measures 
that comply with 18 risk-based performance standards. According to DHS, 
West Fertilizer was an unidentified chemical facility because they 
failed to file a Top Screen under the CFATS program; however, other 
Federal and State agencies were aware of the facility such as:
   EPA's Risk Management Program (RMP);
   Department of Transportation's Pipeline Hazardous Material 
        Safety Administration;
   Emergency Planning and Community Right-to-Know Act (EPCRA) 
        Tier II reporting requirements;
   Occupational Safety and Health Administration (OSHA);
   Office of the Texas State Chemist (OTSC).
    DHS should leverage Government partners to round up unidentified 
chemical facilities and, then work with industry towards outreach. 
There are a number of Federal and State databases that can assist DHS 
in reaching its target objective ranging from State departments of 
agriculture to EPA's RMP.\8\
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    \8\ EPA's Risk Management Program data can be utilized by DHS for 
chemical release threats like anhydrous ammonia.
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                    check the ``partnership'' model
    ARA finds that DHS should reevaluate the partnership model to 
develop better cooperation. Partnership is a relationship between 
individuals or groups that is characterized by mutual cooperation and 
responsibility, as for the achievement of a specified goal. ARA members 
and DHS are both responsible to safeguard against fertilizer misuse and 
manipulation but mutual cooperation can be enhanced.
    In terms of dry fertilizer, State chemists and State departments of 
agriculture can share date for facilities above the COI thresholds. For 
products like ammonia nitrate (AN), there are already State programs 
that regulate this product with databases. Lastly, information from 
Department of Transportation safety program could yield more 
unidentified chemical facilities.
    Too often industry participates in the last stage of the decision-
making process. Placing key stakeholders \9\ in the early stages of 
policy development would: (1) Lessen Congressional interference; (2) 
enhance the mutual understanding between the private and public sector; 
(3) reduce time and funds dedicated towards the rulemaking functions; 
(4) and overall increase mutual trust and cooperation towards outreach.
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    \9\ The Chemical Sector Coordinating Council (CSCC) is one of 18 
critical infrastructure committees that were established under the 
protection afforded by the Critical Infrastructure Partnership Advisory 
Council (CIPAC). The purpose of the CSCC is to facilitate effective 
coordination between Federal infrastructure protection programs with 
the infrastructure protection activities of the private sector and of 
State, local, territorial, and Tribal governments. Pursuant to the 
Homeland Security Act of 2002, the Council helps to facilitate 
strategic planning and effective discussion of critical infrastructure 
issues and to provide appropriate protection for sensitive critical 
infrastructure information.
---------------------------------------------------------------------------
              raise ``partnership'' outreach with industry
    Outreach is an integral part of putting facilities like West on 
notice that facilities need to protect their assets and comply with the 
law(s). Facilities can't comply with CFATS if they don't know who and 
what to comply with. This approach should be the focus of targeting 
unidentified chemical facilities. Easy, simple ways of communication 
works best, as well as fast and effective campaigns.
    ARA has a long history with other agencies towards tangible and 
successful partnerships:
   Federal Bureau of Investigation (FBI).--ARA collaborated 
        with the FBI in the production of a ``Potential Indicators of 
        Terrorist Activities'' bulletin for display at facilities that 
        carry products that could be manipulated to make improvised 
        explosives. The bulletin/poster assists retailers in 
        identifying suspicious purchases and directs them to report 
        suspicious behavior to the FBI. Currently, there are 1,500 FBI 
        bulletins in distribution amongst ARA members.
   Department of Defense's Joint Improvised Explosive Device 
        Defeat Organization (JIEDDO).--ARA is working with the JIEDDO 
        to counter global and enduring IED threats in Afghanistan. We 
        receive general unclassified fertilizer threat information that 
        keeps our members informed on how fertilizers are being 
        manipulated into IEDs.
   First Responders Organizations.--ARA consulted first 
        responders in drafting ``ARA's First Responder Guidance'' for 
        use by industry, LEPCs, and local first responders. The 
        guidance sets the stage for a coordinated and effective 
        emergency response communication. In addition, it lays the 
        basis for building a close relationship with the first 
        responders through emergency response management.
   National Fire Protection Association (NFPA).--For many years 
        the fertilizer industry has served on the NFPA Technical 
        Committee for Hazardous Chemicals (NFPA 400), which is the 
        committee of jurisdiction over the fire code for 
        recommendations for storage and handling of AN. The fertilizer 
        industry supports compliance with NFPA's code for AN.
   Environmental Protection Agency (EPA).--ARA coordinated with 
        EPA and submitted comments to EPA's Ammonium Nitrate Alert in 
        order to further educate the industry on the hazards of AN 
        storage.
   ARA partnered with EPA on other outreach opportunities, such 
        as: The container and containment rules for pesticides, Spill 
        Prevention, Control, and Countermeasure Plans and others. DHS 
        could learn some lessons from other agencies regarding 
        outreach. Great models do exist. Even prior to West, DHS has 
        made considerable efforts to engage ARA members and understand 
        the way we operate, but often Government bureaucracy has got in 
        the way.
    ARA members would like DHS to step up partnership outreach to 
continue the Chemical Sector Security Summit, develop alternative 
security plans and promote CFATS compliance via webinars, targeted 
publication ad postings, and flyers.
    With the above positive steps, more can be done. ARA would also 
like to see more efforts towards (electronic/video) \10\ training and 
outreach opportunities targeting facilities that use, store, or 
distribute chemicals above specified quantities listed under the CFATS 
program. This includes quick and efficient co-branding literature for 
distribution.
---------------------------------------------------------------------------
    \10\ See Simplot First Responder Training Video as an example.
---------------------------------------------------------------------------
    To ensure effective outreach, DHS must be able to co-brand 
information for distribution with the trade associations and 
stakeholders. DHS headquarters must quickly and effectively respond and 
produce effective products for distribution. Often the cake-like layers 
of bureaucracy hinder the ability to effectively get a pamphlet or 
bulletin from DHS. This is a deterrent to the ``partnership'' model.
               reassess small facility compliance burdens
    We all share a responsibility to protect our chemical facilities; 
but, regulations need to be practical, economically feasible, and not 
outweigh the perceived benefits. As far as the current implementation 
of the CFATS program is concerned, here are some suggestions that may 
improve the program:
   Quicker response from DHS on site security plans--some 
        members have submitted their site security plans and it has 
        been over 2 years with no response.
   DHS should continue to work with ARA on alternative security 
        plans and increased inspections for lower-risk facilities.
   Reform the Personnel Surety Program (PSP) \11\--Under the 
        CFATS Interim Final Rule issued in April 2007, it states that 
        DHS ``may disapprove a Site Security Plan (SSP) that fails to 
        satisfy the risk-based performance standards established in 
        27.230''. Section 27.230 lists the Risk-Based Performance 
        Standards (RBPS) each CFATS facility must select, develop in 
        their SSP, and implement appropriate measures to satisfy the 
        performance standards, which includes Personnel Surety.\12\
---------------------------------------------------------------------------
    \11\ 6 C.F.R.  27.230 (2007).
    \12\ RBPS No. 12 was issued for personnel surety and DHS has 
developed a CSAT application for high-risk chemical facilities to 
submit information about facility personnel and, as appropriate, 
unescorted visitors with access to restricted areas or critical assets 
at those facilities. The goal as stated by DHS is to identify known or 
suspected terrorists. While we fully agree with this goal we question 
the manner in which DHS has decided to fulfill this RBPS as we feel it 
goes beyond the statutory intent of Congress for chemical facilities to 
take measures designed to identify people with terrorist ties.
---------------------------------------------------------------------------
   ARA acknowledges that several aspects of the PSP improved 
        thanks to our open and continuous discussions. However, 
        ``electronic verification'' for individuals already enrolled in 
        legally equivalent programs such as Hazardous Materials 
        Endorsement (HME) Programs, still remains an obstacle.
   DHS plans to limit the initial CFATS PSP implementation to 
        only Tier 1 and Tier 2 high-risk chemical facilities. The 
        current PSP requirements do not vary by risk-based tier. The 
        assistant secretary should accept measures used to meet 
        standards on a risk-based approach.\13\
---------------------------------------------------------------------------
    \13\ 6 C.F.R.  2.230(a) (2007).
---------------------------------------------------------------------------
   ARA members would like to see DHS leverage existing 
        credentialing programs by a reasonable visual inspection if the 
        facility can demonstrate a likelihood of detecting and 
        preventing fraudulent entry.\14\ This would be similar to the 
        visual inspection of Government-issued credentials by TSA 
        security officials.
---------------------------------------------------------------------------
    \14\ Id.
---------------------------------------------------------------------------
   It should be recognized that a ``facility-centered'' 
        background check program cannot take advantages of portability 
        similar to a ``personnel-based'' programs, like the HME 
        program. DHS should look into employee-based models.
 permanent cfats or long-term reauthorization is needed for regulatory 
                               certainty
    The CFATS program is not perfect, but it's not broken. We 
understand that Congress will make efforts to reauthorize or 
permanently reauthorize the CFATS program. ARA believes that it is 
essential for DHS to be principal in chemical regulation and 
enforcement. ARA supports the CFATS program because it ensures safety, 
security, and efficiency by safeguarding our critical infrastructure. 
Mandates on inherently safer technology and allowing civil suits will 
not make facilities any safer. We hope that Congress will provide DHS 
permanent statutory authority for the CFATS program, thus providing 
regulatory certainty and operational stability that is necessary for 
capital investments to be appropriately planned and budgeted.
    DHS leadership is committed to working through the current issues 
and working with stakeholders to improve the implementation of the 
CFATS program. ARA also urges Congress to provide the agency with 
sufficient resources to ensure that chemical facility security is 
implemented in a timely fashion.
    We look forward to working with the committee, Congress, and DHS to 
further improve the CFATS program so that agricultural retailers and 
distributors are able to continue to safely and securely provide these 
important crop inputs to our farmers.

    Mr. Meehan. Mr. Scott.

    STATEMENT OF TIMOTHY J. SCOTT, CHIEF SECURITY OFFICER, 
   CORPORATE DIRECTOR, EMERGENCY SERVICES AND SECURITY, DOW 
                            CHEMICAL

    Mr. Scott. Thank you, Chairman Meehan, Ranking Member 
Clarke, and Members of the subcommittee. I am Tim Scott, chief 
security officer for the Dow Chemical Company. I am speaking 
today on behalf of Dow and the American Chemistry Council, the 
Nation's largest chemical industry trade representative.
    We all mourn the loss of life suffered in West, Texas. 
While the exact cause of the explosion may never be known, the 
path that led to this disaster is clear: Noncompliance with 
established regulations, lack of regulatory oversight, no 
community awareness of the risk, no training for local first 
responders, no warning system, no security.
    This disaster might have been avoided, or at least the 
impact minimized, if any one of those steps had been corrected. 
There are regulations already in place at both the State and 
Federal levels that require the submission of data relative to 
chemicals of interest in quantities on-site. Compliance with 
any one of these regulations would have identified this 
facility as a potentially high-risk site. Clearly, the facility 
owner, and the State and Federal regulatory agencies, failed in 
their responsibilities. More regulations are not the answer, 
but rather communication, understanding compliance, and 
enforcement of the established regulations already in place.
    While DHS has had many issues with the implementation of 
CFATS, they are now making significant progress in identifying, 
inspecting, and securing the high-risk sites in the U.S. 
chemical sector. The facility in West, Texas flew below the 
radar, and we can't have sites operating outside the 
regulations for any reason. We support a multi-year 
reauthorization of CFATS and DHS to continue this progress and 
bring stability, compliance, and enforcement to the chemical 
security process.
    Non-complying outlier sites pose a risk to the communities 
in which they operate, and that is of most importance. But they 
also pose a risk to the chemical industry. By ``outlier 
sites,'' I mean those facilities that may produce, mix, store, 
or distribute chemical-related products, but are not a part of 
the established chemical industry, members of chemical-related 
industry associations or participants in the local emergency 
planning committees. They are not the chemical industry to 
which Dow and ACC belong, but their actions or lack of action 
cast a shadow over our industry nonetheless.
    ACC and Dow have been proactive in calling for chemical 
security legislation for almost a decade now in order to bring 
everyone, including these outlier sites, into the compliance 
process. Public-private partnerships are successful. DHS and 
the chemical industry, working together on common goals and 
finding solutions that address the concerns of both partners, 
have proven these partnerships can work. This public-private 
partnership concept, initiated by DHS here in the United 
States, along with the Responsible Care Code, have made their 
way around the world and are accepted and promoted by the 
International Council of Chemical Associations and the 
International Center for Chemical Safety and Security in their 
efforts to develop a chemical safety and security culture in 
developing nations.
    The DHS concept of public-private partnership is a leading 
and recognized standard around the world. In addition to the 
regulations already in place, there are many established 
programs and partnerships that can address the issues around 
the West, Texas disaster. At Dow, we implement the Responsible 
Care Code at all sites around the world. This includes the 
security code and also the Community Awareness and Emergency 
Response, or CARE, initiative in the communities near our 
facilities in the TransCare initiatives in communities along 
the transportation routes used to distribute our products.
    These initiatives include community advisory panels, 
training and awareness for emergency responders, integrated 
community or industry emergency response plans and systems, and 
awareness for the general public, schools, hospitals and what 
we call ``nearby neighbors.'' We participate in local emergency 
planning committees, or LEPCs, created under Federal regs in 
the mid-'80s and still in force and viable today. These LEPCs, 
by law, include members of the community, media, special 
interest groups, local government, emergency responders, and 
industry.
    These local partnerships are where the rubber meets the 
road. If additional appropriations are being considered, it is 
at the local level where they can do the most good. West, Texas 
can and will recover from this terrible tragedy, but we must 
identify and eliminate similar risks across our Nation. We must 
enforce the regulations already in place. We must bring outlier 
sites into the process. We must build robust and all-inclusive 
public-private partnerships for chemical safety and security at 
the local community, State, and Federal levels.
    We must implement initiatives like CARE and TransCare at 
the local level to be sure the communities and responders are 
aware of potential hazards and capable of responding to 
emergencies. We must constantly strive to do better at 
identifying, communicating, regulating, mitigating, and 
responding to the risk. ACC and Dow will continue to be 
industry leaders in this effort, and we look forward to your 
questions. Thank you.
    [The prepared statement of Mr. Scott follows:]
                 Prepared Statement of Timothy J. Scott
                             August 1, 2013
 introductory statement from timothy j. scott on the tragedy in west, 
                                 texas
    The disaster in West, Texas, was both a National tragedy and a 
deeply personal tragedy for the families of the brave first responders 
that lost fathers, husbands, and even a grandmother. It is our shared 
responsibility to fully examine this catastrophe and apply what we 
learn to prevent future incidents and loss of life. While the cause of 
the explosion may never be known with certainty, the path that led to 
this disaster is clear--non-compliance with established regulations, 
lack of regulatory oversight, little or no community awareness, little 
or no training for local first responders, no warning system, and 
little security at the West Fertilizer Company facility. There were 
clear missed opportunities to avoid this tragedy or minimize the 
impact.
    West Fertilizer was what we refer to as an outlier site. Outlier 
sites are facilities that store or distribute chemical-related 
products, but are not part of the established chemical industry, are 
not members of chemical-related industry associations, are not part of 
an industry performance improvement program such as Responsible Care, 
or participants in the local emergency planning committees (LEPCs) in 
which they operate. Outlier sites can pose a threat not only to the 
local communities in which they operate, but also to the chemical 
industry as a whole, to ACC and The Dow Chemical Company. ACC and Dow 
have been proactive in calling for legislation that will level the 
playing field and bring these outlier sites into compliance.
    The State and Federal regulatory agencies with oversight 
responsibilities for the West, Texas facility must understand they 
could have done better. There are regulations in place at both the 
State and Federal levels that require the submission of data relative 
to chemicals of interest and quantities on-site that would have 
identified this facility as a potentially high-risk site. Compliance 
and enforcement of these existing regulations is needed.
    West, Texas, will recover from this terrible tragedy. On a National 
level, we must work to build on a robust and all-inclusive public-
private partnership for chemical safety and security, which was built 
from the local communities up through the Federal Government and across 
the Nation. ACC and Dow stand ready to join that partnership.
    safety and security are a top priority for the chemical industry
    The American Chemistry Council (ACC) represents the leading 
chemical companies that produce essential products critical to everyday 
life. The business of chemistry is a vital aspect of our Nation's 
economy since it employs more than 780,000 Americans and touches more 
than 96 percent of all manufactured goods.
    Because of our critical role in the economy, our commitment to our 
customers and shareholders and our responsibility to our neighboring 
communities, safety, and security remain a top priority.
    The men and women of the chemical industry have worked hard to 
develop a culture that has put our industry at the forefront of 
manufacturing when it comes to safety. We are very proud of the fact 
that the worker injury rate for the chemical sector is among the lowest 
of any manufacturing sector according to U.S. Bureau of Labor 
Statistics.
    And, members of ACC have sought to build upon the overall 
industry's safety performance through Responsible Care, the chemical 
industry's world-class environmental, health, safety, and security 
performance initiative. Under Responsible Care, ACC members work with 
emergency responders and communities to coordinate response plans and 
to continually improve industry performance. Implementation of 
Responsible Care is mandatory for all members of ACC, as well as for 
Responsible Care Partner companies, who represent chemical 
transporters, distributors, warehouses, logistics planners, and others 
along our supply chains.
    The results of the program speak for themselves. Responsible Care 
companies have reduced injury and illness rates at their facilities by 
79 percent since 1990. Thanks to this effort, these same companies have 
a worker injury rate 5 times lower than the U.S. manufacturing sector 
as a whole and nearly 3 times better than the business of chemistry 
overall. They also have reduced the number of process safety incidents 
that resulted in a product spill, fire, explosion, or injury by 58 
percent since 1995.
    In addition to Responsible Care, ACC's CHEMTREC provides 24/7 
emergency response assistance to requests from companies and from 
emergency responders to help coordinate and communicate critical 
product safety information that may be needed in mitigating a hazardous 
material-related incident. In addition, ACC sponsors TRANSCAER 
(Transportation Community Awareness and Emergency Response), a 
voluntary National outreach effort that focuses on assisting 
communities prepare for and respond to a possible hazardous material 
transportation incident. For example, TRANSCAER has trained more than 
60,000 emergency responders just during its first year of anhydrous 
ammonia training. TRANSCAER was founded in 1986 by the Dow Chemical 
Company and Union Pacific Railroad. Dow alone has completed 210 events 
for 6,825 people under TRANSCAER since 2007.
    Together, Responsible Care, CHEMTREC, and TRANSCAER include 
community advisory panels, training, and awareness for emergency 
responders; integrated community and industry emergency response plans 
and systems; and awareness for the general public, schools, hospitals, 
and nearby neighbors.
    ACC and its member companies care deeply about the communities 
where they operate. They do not just run businesses; they also live in 
and contribute to the vitality of their towns and cities. They work 
hard to establish relationships with their neighbors as well as local 
officials and emergency responders to help address potential safety and 
security issues. Our industry's on-going efforts are intended to 
benefit not just the people we employ but also the communities 
surrounding our facilities. Our commitment to harnessing the latest 
technologies and innovations to help enhance safety and security has 
never been stronger.
                strong support for regulatory oversight
    Because the Nation depends on chemical producers every day to form 
the building blocks and processes necessary for safe drinking water, a 
plentiful food supply, life-saving medicines, and modern technologies, 
the Federal Government has established a comprehensive set of laws to 
regulate all aspects of safety and security at chemical facilities.
    In fact, multiple agencies, including the U.S. Environmental 
Protection Agency (EPA), the Occupational Safety and Health 
Administration (OSHA), U.S. Department of Homeland Security (DHS), U.S. 
Department of Transportation (DOT), and the Transportation Security 
Administration (TSA), have the authority to regulate the safety and 
security of chemical facilities through a comprehensive array of 
regulatory programs (see appendix).
    ACC and its members fully support compliance with these Federal 
regulations and believe that agencies should have the appropriate 
resources to enforce safety and security regulations. We fully support 
the role of the Government in overseeing safety and security through 
the numerous Federal programs in place that regulate the operation of 
chemical facilities, and we believe that agencies should have the 
appropriate resources to effectively train its field inspectors, 
educate the regulated community, and enforce regulations. And just as 
important, we believe companies have an obligation to understand their 
legal and regulatory obligations and take action to comply.
    We also value the Chemical Safety Board's (CSB) independent and 
technical insight. The CSB investigation of accidents and subsequent 
recommendations are vital to determine what actions might be warranted 
based on the root causes of incidents. As part of our effort to 
continuously improve our performance, the chemical industry captures 
and disseminates lessons learned from incidents and utilizes those 
lessons to improve performance, as well as standards and practices.
                         critical role of cfats
    DHS has created a solid regulatory framework under the Chemical 
Facility Anti-Terrorism Standards (CFATS). ACC believes that CFATS has 
had a positive impact on enhancing security, and we fully support 
implementation of the program. Under CFATS, DHS has analyzed nearly 
40,000 chemical facilities across the United States, identifying more 
than 7,000 facilities as potentially high-risk chemical facilities. 
Since then nearly 3,000 facilities have reduced their potential 
security risks by making operational changes that reduced or eliminated 
on-site chemical inventories. As a result, the CFATS regulated 
community currently includes approximately 4,500 facilities across the 
Nation.
    While DHS has faced some challenges implementing the CFATS program, 
these challenges are not insurmountable. Since the release of the DHS 
internal memo, the agency has made progress on implementing the action 
items and putting in place a workable management structure that will 
enable an effective CFATS implementation process. The industry has seen 
considerably increased inspection activity, improved quality of 
inspections and expedited authorizations. Key management positions have 
been filled with permanent, qualified professionals who have regulatory 
program experience. DHS has reengaged the public/private-sector 
security partnership that was so valuable early in the program and is 
now providing an opportunity to make additional strides as we work 
together to secure the Nation's chemical infrastructure.
    DHS leadership has demonstrated a commitment to working through the 
current issues and working with stakeholders to improve the 
implementation of the CFATS program. ACC urges Congress to provide the 
agency with sufficient resources to properly handle the workload and to 
ensure that chemical facility security is implemented in a timely 
fashion. Eventually, we hope that Congress will provide DHS permanent 
statutory authority for the CFATS program, thus providing regulatory 
certainty and operational stability that is necessary for capital 
investments to be appropriately planned and budgeted. These 
improvements will also ensure that long-term security decisions can be 
made without concern as to whether the regulatory landscape under the 
CFATS program will be altered.
                            the path forward
    Just as we have seen with CFATS, a strong partnership is 
fundamental to success. While determining the root cause of the West 
incident and CSB's recommendations will be instrumental in pointing to 
specific areas for improvement, we should act on an opportunity that is 
available to us right now to enhance safety and security.
    We need to make sure that the regulations are being implemented 
fully and properly and that the agencies have the necessary resources 
to get the job done. In addition, Federal officials at all levels have 
to work together and coordinate their activities across all regulatory 
programs. Equally significant is strengthening the partnership between 
Government officials and a facility operator is sorely needed. Everyone 
must be on the same page and working together when it comes to 
protecting workers and communities. This can be accomplished by first 
redirecting agency priorities towards training and educational 
resources for the regulated community and for on-site field inspectors 
to ensure they have the appropriate knowledge, skills, and 
proficiencies to focus on verifying compliance with the various 
programs.
    Investing in compliance assistance programs for Federal, State, and 
local officials that are responsible for certifying the accuracy and 
applicability of agency reports will ultimately ensure the safety and 
security of the community and environment. Moreover, an affirmative 
investment in effective and consistent outreach programs for facility 
owners and operators is equally imperative to ensure the regulated 
community thoroughly understands the mission of each agency. A strong 
financial and administrative commitment to educational outreach and 
assistance programs and devoting technical resources to consistently 
maintain, assess, and oversee the current chemical database systems 
will likely improve overall compliance and understanding of agency 
objectives, thus reducing ambiguities and inaccuracies in reporting and 
auditing.
    Facility operators need to be actively engaged in local 
communities' emergency planning processes and ensure that local 
responders are aware of the materials being used on their sites. This 
includes opening plant gates to provide periodic tours for local 
officials and coordinated training and drills. Emergency planning and 
coordination does not have to be limited to plant events which can 
impact the community. As I said earlier, we live in the communities 
where we operate and there are other threats, both natural--hurricanes, 
tornadoes--and man-made, for which local responders must prepare.
    Local Emergency Planning Committees (LEPC) created under Title III 
of the Superfund Amendments and Reauthorization Act (SARA Title III) in 
the mid-1980s are still in force and viable today. Each State was 
required to establish a State Emergency Response Commission, which in 
turn specified where LEPCs needed to be established. These LEPCs 
include members of the community, media, special interest groups, local 
government, emergency responders, and industry. LEPCs need strong 
support and active participation of facility operators as well as 
continued support from local officials. LEPCs are a first line of 
defense for the community and they deserve all the support the private 
and public sectors can give them.
    The Federal Government needs to work with industry to help share 
and leverage existing best practices and industry program to make sure 
``outliers'' are aware there are tools and resources available to them. 
ACC and its members remain committed to working with government 
officials at all levels to enhance safety and security at our 
facilities, so we all continue to enjoy the essential benefits of a 
strong and growing chemical industry in America.
        Appendix--Current Safety & Security Regulatory Programs
                                 safety
OSHA
    Process Safety Management (PSM) Regulations (29 CFR 1910.119).--
This regulation helps prevent accidental releases of highly hazardous 
chemicals, thus protecting employees, contractors and people who live 
and work around chemical operations.
    a. Chemical National Emphasis Program (NEP) establishes policies 
        and procedures for inspecting workplaces that are covered by 
        OSHA's process safety management (PSM) standard, protecting 
        workers from catastrophic releases of highly hazardous 
        chemicals.
    Combustible Dust Rulemaking.--OSHA believes a comprehensive dust 
standard is needed to prevent dust explosions and is therefore pursuing 
a combustible dust rulemaking.
    Voluntary Protection Program (VPP).--Many member companies 
participate in VPP, a program that promotes effective worksite-based 
safety and health.
    Emergency Planning and Community Right-to-Know Act (EPCRA)
    a. There are four major provisions of EPCRA:
      i. Emergency Planning (Sections 301-303);
      ii. Emergency Release Notification (Section 304);
      iii. Hazardous Chemical Storage Reporting (Sections 311-312);
      iv. Toxic Chemical Release Inventory (Section 313).
    Responsible Care Process Safety Metrics.--Responsible Care 
companies are committed to the safe operations of their chemical 
processes. The enhanced Process Safety Code sets forth this collective 
commitment to a culture of process safety throughout chemical facility 
processing operations, management systems, and leadership 
organizations. It is also intended to complement regulatory 
requirements, such as OSHA's Process Safety Management (PSM) standard 
and EPA's Risk Management Program (RMP) standard.
EPA
    Risk Management Program (RMP).--Under the authority of section 
112(r) of the Clean Air Act, the Chemical Accident Prevention 
Provisions require facilities that produce, handle, process, 
distribute, or store certain chemicals to develop a Risk Management 
Program and prepare a Risk Management Plan (RMP).
U.S. Chemical Safety and Hazard Investigation Board (CSB)
    While industry is not regulated by them, their recommendations are 
factored into decision making.
Department of Transportation
    The Hazardous Materials Regulations (HMR) govern the transportation 
of hazardous materials by highway, rail, vessel, and air. The HMR 
addresses hazardous materials classification, packaging, hazard 
communication, emergency response information, and training.
                     chemical security regulations
Department of Homeland Security
    The Chemical Facility Anti-Terrorism Standards (CFATS), also known 
as 6 CFR, Part 27, are a set of U.S. Government security regulations 
for high-risk chemical facilities such as chemical plants, electrical 
generating facilities, refineries, and universities. The U.S. 
Department of Homeland Security promulgated the Final Rule on April 9, 
2007. The regulations came into effect on June 8, 2007, apart from 
material covered in Appendix A, which took effect upon its publication 
in the Federal Register on November 20, 2007.
U.S. Coast Guard
    The Maritime Transportation Security Act of 2002 (MTSA) (Pub. L. 
107-295) was signed into law by President George W. Bush on November 
25, 2002. This law is the U.S. implementation of the International Ship 
and Port Facility Security Code (ISPS). It requires port facilities to 
conduct vulnerability assessments and develop security plans that may 
include screening procedures; security patrols; establishing restricted 
areas; personnel identification procedures; access control measures; 
and/or installation of surveillance equipment. The act creates a 
consistent security program for all the Nation's ports to better 
identify and deter threats. The U.S. Coast Guard issued regulations to 
enact the provisions of the act and to align domestic regulations with 
the maritime security standards of SOLAS and the ISPS Code. The 
regulations are found in Title 33 of the Code of Federal Regulations, 
Parts 101 through 107. Part 105 contains port facility security 
regulations, including those that apply to chemical facilities.

    Mr. Meehan. Thank you, Mr. Scott.
    The Chairman now recognizes Mr. Moulton.

 STATEMENT OF SEAN MOULTON, DIRECTOR, OPEN GOVERNMENT POLICY, 
                CENTER FOR EFFECTIVE GOVERNMENT

    Mr. Moulton. Chairman Meehan, Ranking Member Clarke, 
Members of the subcommittee thank you for inviting me to 
testify today on the Chemical Facility Antiterrorism Standards, 
CFATS, and steps needed in the aftermath of the West Fertilizer 
tragedy. I want to also offer my deep condolences to the West, 
Texas community and the families that lost loved ones.
    My name is Sean Moulton, and I am the director of open 
government policy at the Center for Effective Government, 
formerly OMB Watch, an independent nonpartisan policy 
organization dedicated to ensuring Government is effective and 
responsive to the priorities of the American people. I wish to 
make four points. First, excessive secrecy and information 
restriction contribute to gaps, oversights, and inefficiencies 
in chemical security efforts in the CFATS program specifically.
    CFATS was unaware of the West Fertilizer plant and its 
storage of ammonium nitrate. EPA knew about the facility 
through its risk management program, but didn't know about the 
ammonium nitrate. State emergency officials knew about the 
ammonium nitrate through hazardous chemical inventory reports, 
but didn't know the facility was missing from CFATS. These gaps 
are especially troubling because much of the needed information 
was reported, but not reported to everyone. The information 
that was reported wasn't sufficiently shared.
    These breakdowns reveal disturbing loopholes in the 
regulatory system and a fundamental problem with the way we 
manage chemical security and safety information. We have 
adopted an overly-secretive approach to this information, which 
slows sharing and impedes risk mitigation. This need-to-know 
approach also promotes cultures of secrecy and isolation in 
agencies, which lead to information gaps such as unreported 
facilities in CFATS.
    This raises my second point: Better collaboration among 
Federal agencies and State authorities is needed to address 
these gaps. The most effective way for agencies to share 
information and avoid bureaucratic, technical, and other 
barriers is to narrow the amount of protected information and 
make the rest public in open data formats. Need-to-know access 
tools, such as requiring special logins and requesting approval 
for access, impedes sharing and limits cross-agency 
collaboration, and should only be used for the most sensitive 
information.
    If a list of CFATS' facilities was public, perhaps an 
official in Texas or a plant employee would have noticed that 
West Fertilizer was not on this list. Third, engaging and 
informing the public is essential to protecting communities 
from chemical facility risks. Citizens, first responders, plant 
workers, and local officials all need to be better-informed to 
prepare for chemical emergencies. Basic information, such as 
facility location, identity and quantity of chemicals, 
compliance status are vital for communities to properly 
identify and prepare for chemical risk.
    On the other hand, excessive secrecy could cost lives in a 
chemical emergency. The tragedy at West Fertilizer may be an 
example of this. Emergency guidelines for large ammonium 
nitrate fires recommend evacuation and trying to contain the 
fire from a distance. However, the West fire fighters, 
apparently unaware of the ammonium nitrate, may not have been 
able to properly judge the situation and adopt these tactics. 
Furthermore, greater public access to information can help 
reduce or eliminate risk.
    Adopting safer chemicals and processes can remove dangerous 
substances from communities and better protect Americans. 
Preliminary findings indicate that West Fertilizer's ammonium 
nitrate could have been mixed with calcium carbonate to 
eliminate the risk of explosion, while preserving its use as a 
fertilizer. Communities and agencies need more complete 
information on current chemical storage to be able to advocate 
for safer alternatives.
    Finally, increased transparency for CFATS can improve its 
effectiveness and accountability. When programs operate behind 
closed doors with little public oversight, they often suffer 
from delays, wasted resources, and management problems. The DHS 
inspector general and the Government Accountability Office both 
recently found delays and significant management problems in 
the CFATS program. We need transparency to know if reform 
efforts are working. CFATS should publish data on assessments 
received and reviewed, security plans certified, inspectors 
trained, and inspections completed.
    Citizens understandably want and deserve more than a trust-
us approach to programs addressing their safety. In conclusion, 
to be successful, CFATS and other chemical safety programs 
should rein in secrecy, partner with other agencies to identify 
and address gaps, strike a better balance in public disclosure 
and engage communities as participants in upholding chemical 
safety and security. The Executive Order released earlier today 
is a welcome step towards closing regulatory and information 
gaps among the main agencies overseeing chemical facilities.
    However, Congressional action may well be needed to achieve 
all these reforms in a timely way.
    I sincerely thank you for the opportunity to address this 
committee. Chairman and Members of the subcommittee, I look 
forward to your questions.
    [The prepared statement of Mr. Moulton follows:]
                   Prepared Statement of Sean Moulton
                             August 1, 2013
    Chairman Meehan, Ranking Member Clarke, Members of the 
subcommittee: My name is Sean Moulton and I am the director of Open 
Government Policy at the Center for Effective Government, formerly OMB 
Watch--an independent, nonpartisan policy organization dedicated to 
ensuring Government is effective and responsive to the priorities of 
the American people. We believe transparency of Government actions 
promotes accountability and empowers citizens. The Center for Effective 
Government has been a leader on environmental right-to-know issues 
since the late 1980s when it created RTK NET as an on-line public 
source of environmental data. This resource helps citizens gain 
information about workplace and public health risks from chemical 
exposure.
    Thank you for inviting me to testify today about how we can improve 
the effectiveness of the Chemical Facility Anti-Terrorism Standards 
(CFATS) so that the program better ensures the security of our chemical 
plants and the safety of the American people.
    The massive explosion at the West Fertilizer plant on April 17 that 
killed 15 people and injured more than 200 was a terrible tragedy. In 
its aftermath, it has become clear that the network of regulatory 
programs that seeks to identify facilities with chemical risks in order 
to ensure the protection of workers, first responders, and nearby 
communities failed. The facility had never filed a risk assessment with 
the CFATS program despite the approximately 270 tons of explosive 
ammonium nitrate stored on-site. The Department of Homeland Security 
(DHS) seemed unaware of the facility and its lack of compliance with 
CFATS reporting. This raises serious questions about the CFATS program 
and its effectiveness in collecting, managing, and sharing information 
necessary to its mission.
    In March, the DHS Inspector General issued findings from its review 
of the management practices to implement the CFATS program. The 
assessment found significant problems, specifically:

``Program progress has been slowed by inadequate tools, poorly executed 
processes, and insufficient feedback on facility submissions. In 
addition, program oversight had been limited, and confusing terminology 
and absence of appropriate metrics led to misunderstandings of program 
progress. The Infrastructure Security Compliance Division still 
struggles with a reliance on contractors and the inability to provide 
employees with appropriate training. Overall efforts to implement the 
program have resulted in systematic noncompliance with sound Federal 
Government internal controls and fiscal stewardship, and employees 
perceive that their opinions have been suppressed or met with 
retaliation.''\1\
---------------------------------------------------------------------------
    \1\ Effectiveness of the Infrastructure Security Compliance 
Division's Management Practices to Implement the Chemical Facility 
Anti-Terrorism Standards Program, Department of Homeland Security, 
Inspector General, March 2013, p. 1.

    In April, the Government Accountability Office (GAO) released the 
results of its investigation into the progress made under the CFATS 
program in assigning facilities to risk tiers, reviewing security 
plans, and communicating with owners and operators to improve security. 
While improvements from early efforts were noted, significant problems 
were discovered. The GAO estimated that it could take the program 
another 7 to 9 years to review all the security plans, which would mean 
the rest of the regulatory process, including compliance inspections, 
could take 8 to 10 years to be completed.
    My testimony will examine four issues.
   First, the culture of excessive secrecy and limited 
        information sharing has contributed to gaps, oversights, and 
        inefficiencies in chemical security efforts in general and the 
        CFATS program specifically.
   Second, better collaboration among Federal agencies and 
        between Federal and State authorities will be needed to address 
        these gaps and make the CFATS program operate more effectively.
   Third, engaging and informing the public is essential if 
        CFATS is to become an integral part of the broader Government 
        effort to protect communities from chemical facility risks.
   Fourth, increased transparency in the CFATS program is 
        necessary to improve its long-term effectiveness and 
        accountability to the public it serves.
           excessive secrecy and restricted access don't work
    Despite operating for 6 years and having received thousands of risk 
assessments from facilities around the country, the CFATS program was 
unaware that the West Fertilizer plant had large amounts of ammonium 
nitrate stored on-site. The facility never filed a risk assessment with 
the program. There is no indication that CFATS knew the assessment had 
not been filed. There has been no announcement of commutations with the 
facility urging it to file the assessment and no notices of violations 
or fines.
    According to the preliminary findings of the U.S. Chemical Safety 
Board (CSB), local first responders ``were not made aware of the 
explosion hazard from the ammonium nitrate stored at West 
Fertilizer.''\2\ And nearby residents, including an elementary school, 
hospital, and retirement home, all within a mile of the facility, were 
almost certainly unaware of the risks posed by the facility.
---------------------------------------------------------------------------
    \2\ Preliminary Findings of the U.S. Chemical Safety Board from its 
Investigation of the West Fertilizer Explosion and Fire, U.S. Chemical 
Safety Board, July 2013.
---------------------------------------------------------------------------
    This lack of oversight is a troubling discovery for a program 
charged with such an important responsibility. Gaps could mean that 
dangerous facilities go without improved security and safety plans. And 
statistically, it is highly unlikely that West Fertilizer is the only 
facility with significant quantities of hazardous chemicals missing 
from CFATS.
    These informational gaps are especially troubling because the plant 
had been filing Risk Management Plans with the Environmental Protection 
Agency (EPA) since 1999 and been reporting the quantity of ammonium 
nitrate it stored to State officials in its Tier II Hazardous Inventory 
reporting under the Emergency Planning and Community Right to Know Act. 
So information was collected and reported to certain agencies, but it 
seems it wasn't sufficiently utilized or shared.
    These communication breakdowns reveal a fundamental problem with 
the way chemical security and safety information is managed by the 
CFATS program and other related regulatory programs. Since the Sept. 
11, 2001 terrorist attack, there has been an excessive level of secrecy 
related to chemical safety and security, which slows sharing and 
impedes risk mitigation.
    When the Department of Homeland Security established the CFATS 
program, it created a category of information called Chemical-terrorism 
Vulnerability Information (CVI). The rules made clear that access to 
CVI would be limited to those persons with ``a need to know.'' But such 
a ``need-to-know'' approach creates unclear lines of authority for 
determining access to information and unnecessary bureaucracy that 
significantly interferes when emergencies arise.
    Need-to-know approaches also cultivate broader cultures of secrecy 
and isolation within the agencies and programs that utilize them. Such 
isolation can directly contribute to information gaps, such as 
unreported facilities in CFATS, because of nonexistent or difficult 
information sharing with other agencies and programs.
    The 9/11 Commission recognized the problems that arise when 
information isn't shared. In 2005, in testimony before the House 
Committee on Homeland Security, Lee Hamilton, former Vice Chair of the 
9/11 Commission, stated: ``Poor information sharing was the single 
greatest failure of our government in the lead-up to the 
9/11 attacks.''\3\ To remedy the problem, Hamilton concluded that the 
Government had to change its approach to information collection and 
control:
---------------------------------------------------------------------------
    \3\ Prepared Statement of Lee H. Hamilton before the Committee on 
Homeland Security, U.S. House of Representatives, November 8, 2005, p. 
1.

``The 9/11 story included numerous examples of how a mentality of 
limiting information sharing to those with a `need to know' in fact 
kept information from getting to the right people at the right time. 
Cultures will not change without policies in place that actively 
encourage such change, and without the sustained implementation of 
those policies.''\4\
---------------------------------------------------------------------------
    \4\ Ibid., p. 5.

    The CFATS program has not embraced or encouraged that needed 
change. Instead, it has continued to cling to a flawed ``need-to-know'' 
framework and culture that leaves agencies isolated and individuals who 
need chemical security or safety information in the dark.
               better sharing across agencies is crucial
    There are various Federal and State agencies responsible for 
different aspects of chemical safety and security, and these agencies 
need to do a much better job of cooperating and collaborating among 
themselves.
   Section 550 of the Department of Homeland Security 
        Appropriations Act of 2007 authorized the CFATS program at DHS 
        to assess the risk of chemical plants and require high-risk 
        facilities to develop and comply with a security plan.
   The Clean Air Act Amendments of 1990 authorized the EPA to 
        establish the Risk Management Plan program, which requires 
        facilities storing significant quantities of 140 toxic or 
        flammable chemicals to submit a plan describing the facilities' 
        activities to prevent the accidental release those chemicals 
        and how it would respond to any emergencies involving such a 
        release.
   The Emergency Planning and Community Right to Know Act of 
        1986 required Emergency and Hazardous Chemical Inventory 
        reports that detail the hazardous materials stored on-site at 
        facilities and are submitted to the local fire department, 
        State Emergency Response Commissions, and Local Emergency 
        Planning Committees.
   And the Occupational Safety and Health Act of 1970 created 
        the Occupational Safety and Health Administration (OSHA) to 
        ensure safe and healthful working conditions by setting and 
        enforcing standards and by providing training, outreach, 
        education, and assistance.
    Those are just a few of the agencies and programs that had some 
overlapping coverage of chemical security and safety at West Fertilizer 
and other plants. But these agencies do not sufficiently share 
information or collaborate on chemical plant safety. Many have such 
significant restrictions on accessing their information that even other 
Government agencies can have difficulty using the data. For instance, 
many States treat the Emergency and Hazardous Inventories as restricted 
or classified information, refusing to post the information on-line or 
disclose it in response to requests.
    The CFATS treats even the most basic information about its program 
with the same type of protected secrecy. If a public list of facilities 
that had submitted information to the CFATS program for evaluation 
existed, perhaps a State or local official in Texas or a plant employee 
would have noticed that West Fertilizer was not on that list.
    The solution to the secrecy problem is to narrow the amount of 
protected information and broadly share the other information. State 
and local officials should be able to find information through on-line 
searches and immediately access it. Requiring public officials to apply 
for access, get approved, establish log-ins, etc. will create a huge 
disincentive for officials to gather information. And that means cross-
agency collaboration will be minimal.
    The collaboration among agencies should not be limited to the 
exchange of information. The CFATS program should be using the 
personnel of other State and Federal agencies to expand its capacity to 
inspect facilities and perform other necessary on-site activities. 
Combined, the Federal and State agencies that overlap in their concern 
for chemical facility security and safety have more on-the-ground 
personnel than any single agency. While it is difficult to say how many 
personnel they could contribute to a shared chemical facility 
inspection approach, collaboration would certainly undertake 
significantly more inspections than CFATS could alone. This expanded 
network of inspectors could identify and address more risks than the 
individual agencies can do on their own.
    DHS should also be collecting information from people closest to 
the facilities--employees, local first responders, and community 
members. Such stakeholders can have a wealth of information about 
potential problems with chemical storage, security, or emergency 
preparedness that may not be submitted on company filings. There needs 
to be a mechanism or process to collect this information as it could 
help identify missing outlier facilities, fill in other data gaps, and 
correct erroneous information the program may have received.
    And when a plant employee or State official steps forward and 
reports on-going and unaddressed problems or vulnerabilities, those 
people should be protected from any retaliation by their employers.
         an informed and engaged public makes communities safer
    An engaged and informed public is a vigilant public. Citizens, 
first responders, medical professionals, plant workers, and local 
officials all need to be better informed about chemical security and 
safety information in order to be prepared for emergencies.
    I am not suggesting that all the information collected by CFATS and 
other regulatory programs addressing chemical plant safety and security 
should be open to the public. I am suggesting we have not yet found the 
right balance between disclosure and information security.
    Unfortunately, we have all but abandoned early efforts to provide 
useful information to the public while restricting access to truly 
dangerous, detailed information.
    We continue to try to solve the complex problem of information 
management with an overly simplistic solution of blanket secrecy. Those 
wishing to damage chemical facilities and harm the public need 
detailed, specific information. Secrecy may be justified in some 
limited instances--vulnerability assessments, plant operations details, 
etc.--where specific information may need to be restricted.
    But when we hide such basic information as facility identities and 
locations, chemicals stored, and compliance status, we trade away 
citizen vigilance and important agency collaboration that can ensure 
more accurate information and better emergency preparedness. This type 
of information can be essential for use by other officials and the 
public.
    Studies done on hazardous materials placards,\5\ digital maps and 
global positioning information,\6\ and biological research \7\ have 
each found that openness and disclosure is essential to keeping the 
public safer, and it helps us stay ahead of terrorists. For instance, 
in 2003, the Department of Transportation explored the possibility of 
removing hazardous materials placards from trucks, railcars, and 
shipping containers to better protect the materials from theft or use 
by terrorists. But the study found that ``removal of placards offers 
little to no security benefit'' and that the placards were a critical 
source of hazard information that facilitated effective emergency 
responses and protected lives.
---------------------------------------------------------------------------
    \5\ The Role of Hazardous Material Placards In Transportation 
Safety and Security, Jan. 15, 2003. U.S. Department of Transportation, 
Research and Special Programs Administration, Office of Hazardous 
Materials Safety and John A. Volpe National Transportation Systems 
Center.
    \6\ Mapping the Risks: Assessing the Homeland Security Implications 
of Publicly Available Geospatial Information, 2004. RAND National 
Defense Research Institute, John C. Baker, Beth E. Lachman, David R. 
Frelinger, Kevin M. O'Connell, Alexander C. Hou, Michael S. Tseng, 
David Orletsky, Charles Yost.
    \7\ Globalization, Biosecurity, and the Future of the Life 
Sciences, 2006. Committee on Advances in Technology and the Prevention 
of Their Application to Next Generation Biowarfare Threats, National 
Research Council.
---------------------------------------------------------------------------
    Excessive and unnecessary secrecy around chemical security programs 
like CFATS could cost lives in the event of a chemical emergency. If an 
emergency occurred at a chemical facility, people might not know where 
to go and could evacuate into the path of a chemical hazard. Schools 
would be ill-prepared to evacuate children and inform parents. Doctors 
would not know how to treat those exposed, and first responders would 
not know what emergency equipment to use. Awareness, preparedness, and 
prevention save lives.
    The catastrophe in West, Texas may wind up being an example of this 
problem. In its preliminary findings, the CSB notes that the National 
Fire Protection Association recommends that fire fighters evacuate from 
massive ammonium nitrate fires and that the Department of 
Transportation's Emergency Response Guidebook recommends flooding large 
ammonium nitrate fires with water from a distance. Despite the lack of 
clarity on judging the size of a fire or exactly how much distance 
should be used, it's clear that at least some ammonium nitrate fires 
should be dealt with by evacuating the area and trying to contain the 
fire from a greater distance. However, the West volunteer fire fighters 
were unaware that they were facing a fire with ammonium nitrate, so 
they could not properly judge if these tactics should be used.
    Carolyn Merritt, then-chair of the CSB, stressed the importance of 
community awareness and preparedness in responding to and mitigating 
the impacts of a chemical accident during Senate testimony in 2007. She 
noted a ``lack of chemical emergency preparedness that our 
investigations have found among many communities where accidents 
strike.''\8\ Merritt illustrated the consequences of such situations 
with a compelling real-life example:
---------------------------------------------------------------------------
    \8\ Prepared Statement of Carolyn W. Merritt, Chairman U.S. 
Chemical Safety Board before the Committee on Environment and Public 
Works' Subcommittee on Transportation, Safety, Infrastructure Security, 
and Water Quality, U.S. Senate, July 10, 2007, p. 8.

``When a small chemical firm in northwest Georgia experienced a 
reactive chemical accident that released toxic vapor into the 
community, fire fighters and police lacked the planning, equipment, and 
training to respond effectively, and the city lacked an emergency 
notification system for residents. More than 200 families had to be 
evacuated, and 154 people had to be decontaminated and treated at the 
hospital. The most seriously-impacted were police officers, who were 
instructed to conduct the community evacuation without protective 
gear.''\9\
---------------------------------------------------------------------------
    \9\ Ibid, p. 9.

    Beyond emergency preparedness, greater public access to chemical 
safety and security information can allow communities to engage in 
dialogs with officials and company representatives about reducing the 
risks through Inherently Safer Technologies (IST). There are many safer 
chemicals and processes that industry can use to replace dangerous 
substances and better protect Americans in the process. In fact, some 
communities no longer face risks of dangerous chemical exposures 
because nearby plants have switched to safer alternatives. For example, 
in 2009, the Clorox Company announced it would replace bulk quantities 
of chlorine gas with safer chemicals.
    The preliminary findings of the CSB for the West Fertilizer 
explosion indicate that there are IST options to more safely store, 
ship, and handle ammonium nitrate as a fertilizer. Compounding the 
ammonium nitrate with calcium carbonate practically eliminates any risk 
of explosion while preserving its use as a fertilizer.
    Hundreds of chemical facilities have switched to safer and more 
secure chemicals and processes since 2001, but more work is needed. 
Agencies and communities need to use the collected information and 
become advocates for IST solutions in more facilities.
    A better approach to management of chemical security and safety 
information would disclose basic information necessary to inform the 
public of risks from chemical facilities, explore the use of safer 
alternatives to eliminate the risk, and enable community members to 
participate in emergency planning. For instance, disclosing the names 
and locations of facilities, identities and quantities of chemicals 
stored, status of facilities' reporting, status of inspections, notices 
of violations, and other general information would allow the public to 
better understand which facilities are following safety rules (and 
which aren't). Information restrictions should be limited to detailed 
information about facilities' vulnerability assessments and chemical 
security plans. No detailed information about specific chemical 
security vulnerabilities and facilities should be released.
                       public transparency works
    When programs are allowed to operate behind closed doors with 
little to no on-going public oversight, they often suffer from delays, 
wasted resources, and management problems.
    We have seen the importance of transparency in addressing the 
significant delays and other management problems in the CFATS program 
with the investigations conducted by the DHS Inspector General and the 
Government Accountability Office. They prompted increased oversight and 
public scrutiny that should help motivate CFATS leadership to fix the 
problems.
    But we need continued transparency to know that reforms are 
actually being put in place. Basic information about the CFATS program 
activities and progress should be made public on a regular time table. 
Statistics on the number of assessments received and reviewed, 
facilities placed in risk-based tiers, security plans certified, 
inspectors trained, and inspections completed should be made available 
to the public on an on-going basis.
    Because the DHS Inspector General review found an over-reliance on 
contractors, as well as noncompliance with internal controls and fiscal 
stewardship, the program should also regularly provide information on 
its spending, including contracts awarded and status of work being 
conducted. Finally, to address the other management and program 
problems identified in the Inspector General and GAO reports, the CFATS 
program should offer regular updates on the steps taken to address the 
management issues. Such information would allow the public and 
oversight officials to better understand and evaluate the progress 
toward achieving chemical safety.
    Chemical security is supposed to be about protecting the public. As 
such, the public has a fundamental right to know and understand the 
oversight the Government has in place. Citizens understandably want and 
deserve more than a ``trust-us'' approach to their safety.
                               conclusion
    Like the committee, the Center for Effective Government wants the 
CFATS program to succeed and help ensure the safety and security of 
chemical facilities. To accomplish that, CFATS must become a more 
integral and collaborative component of the regulatory network 
overseeing facilities with significant amounts of hazardous chemicals. 
The other programs within this network also need to update their 
disclosure policies and improve their collaboration efforts.
    We encourage CFATS to take the lead and become a genuine partner 
with agencies and stakeholders, to strike a new balance in information 
disclosure, and to engage first responders, facility employees, and 
communities as participants in chemical safety and security.
    I sincerely thank you for the opportunity to address this 
committee. Chairman and Members of the subcommittee, I look forward to 
your questions.

    Mr. Meehan. Well, thank you, Mr. Moulton. I would like to 
thank each of the panel members, not only for your preparation 
and your appearance here, but I know that you have all 
professionally been committed to work in this important area. I 
thank you for sharing your expertise with us here today.
    So I now recognize myself for 5 minutes of questions. Mr. 
Dippel, you, I had actually used your testimony when I asked 
some of the previous questions. Because to me, it reflected so 
well the sense of the independent operator. He is not trying to 
be an outlier, but there is a tremendous sense of frustration 
and you used the words, ``confusion out there.'' Can you tell 
me? You have been experienced in this area. What are we missing 
in terms of the ability to reach out to the kind of operator 
that you have, I think you called them ``dealers.''
    Mr. Dippel. Yes, sir.
    Mr. Meehan. So what is missing, what can we do better?
    Mr. Dippel. Well, I think it is just the cooperation with 
our State agency, Texas has an ammonium nitrate law. They are 
one of the six States that has ammonium nitrate law which 
requires that the product be secured. You cannot ship to a 
retailer before they have a plan in place with the Feed and 
Fertilizer Control Service. So all they would have to do is 
contact the Feed and Fertilizer Control Service and they would 
know where every facility is in----
    Mr. Meehan. Has that ever happened, to your knowledge?
    Mr. Dippel. Not to my knowledge they have not.
    Mr. Meehan. This is a big part of the failure for the 
connection to be made to the State and local level, where there 
is already oversight and information contained.
    Mr. Dippel. Yes, sir. They have to, they protect ammonium 
nitrate very securely in Texas, in that every sale has to be 
registered and you would have to have identification of the 
person that is buying it. It is very similar to the CFATS law.
    Mr. Meehan. Mr. Derig, you had discussed this idea, and it 
may tie into this. I think when I was going through your 
testimony this concept of third-party identification or third-
party participation, it speaks to the issue of we have got a 
lot of resources out there but it seems to me people are either 
not asking for those who have some expertise and capacity here 
in this area to participate with DHS. Or there is some other 
kind of an impediment to information sharing even with agencies 
that have the same information. So can you explain to me what 
you mean by this sort of third-party verifier program and how 
that might operate?
    Mr. Derig. Yes, that is the initiative under Responsible Ag 
that ARA and TFI are partnering on. What that does is, as Mr. 
Dippel stated, there is confusion out there. There are a lot of 
rules, a lot of agencies that apply to the retail business. 
What we want to do is consolidate those rules into what we 
might consider to be a management plan or a system from the ag 
retailer to get involved in, know where they need to be for 
compliance for the products that they handle, and then have a 
third-party auditor certified to come through periodically, 
whether it is annually or every other year, and do an audit of 
that management system to ensure that compliance is taking----
    Mr. Meehan. So would you include in that, now, you are down 
in Texas. Are you in Texas?
    Mr. Derig. I am actually in Idaho.
    Mr. Meehan. No, you are in----
    Mr. Derig. We do have facilities in Texas.
    Mr. Meehan. Okay, but, whether you are in Idaho. I mean, we 
are talking about Texas, but suppose you have a facility in 
Idaho and Texas. Is it your idea that you would consolidate 
both the Federal requirements and State and local requirements 
so that your agency would sort of help somebody in Idaho and in 
Texas?
    Mr. Derig. That is correct. Actually, one of the working 
groups are right now, presently as we speak, is working on what 
we call the common codes of practice. So they would be working 
specifically with State rules as they tie to the Federal rule 
so an ag retailer, no matter what State they are in, would be 
audited under their State rules and how they overlap with the 
Federal rules.
    Mr. Meehan. Okay, and the idea being that even if something 
may be a little bit different from a local perspective or in a 
different State, you would still have the capacity to try to 
consolidate these. That would be part of the audit process, 
would be the local auditor might know what is expected locally.
    Mr. Derig. That would be correct.
    Mr. Meehan. I will be curious too, have you had 
communications with DHS on this process?
    Mr. Derig. We have spoken to them, and as this process goes 
along we certainly want their cooperation, we want to partner 
with them as well as to other agencies that have a regulatory 
authority to get their input and recognize the system as 
industry's approach to products stewardship and ensuring that 
our industry is strong and vital, into the future.
    Mr. Meehan. Well, thank you. Mr. Scott, you had talked a 
little bit about this concept, not altogether different--maybe 
a little bit different approach. But the concept is the same. 
The public-private partnership, if I am correct in your 
testimony. Certainly you have got a tremendous amount of 
experience, looking at this from the perspective of a large 
company, to be sure, but your chemicals are going down to local 
dealers, and I know you have a great deal of interest in 
assuring the security of those all the way through the process.
    Tell me what your process, explain a little bit further 
what you mean by this public-private partnership and how you 
think it could be realized to help us to reach these outliers.
    Mr. Scott. The way it works, it has worked at least for us 
and for the ACC companies at both the Federal levels, the State 
levels, and down at the local level. When DHS was first 
launched, we worked very closely to sit down and really work on 
a common issue of securing the chemical industry, and what 
makes sense, and how can it be beneficial and not overly 
burdensome for either side. We worked through a lot of details 
in a collaborative effort that made the process at least a 
workable process to move forward and start to make some 
progress.
    We have started to see some progress. There have been a lot 
of downsides on the DHS implementation. But I think they are 
fixing those right now. At the local level, I think that is 
where you can really make the progress. If you look at the 
West, Texas incident this was a local issues that had a 
National impact. If you look at the local emergency planning 
committees that have been in place for 20-plus years now, in 
every county in the United States you can go to a local, you 
should be able to find a local emergency planning committee 
that involves all the industry that is in the community. The 
media, the----
    Mr. Meehan. They know the community. They are living there.
    Mr. Scott. They are there. They know the people, they know 
the industries. It is an information-sharing process that the 
community and the companies that are there, the chemical 
companies that are there, have to share information. You have 
to show them information of what you have on the site, and you 
have to have integrated emergency plans so that people know 
what to do. If there is an emergency, how are they going to 
know about an emergency? What should they do in an emergency? 
How should they react?
    It is a very collaborative process. So at the State and the 
local levels, it works very well and we have had very good 
relationships with things like the CARE----
    Mr. Meehan. From your awareness, has that kind of a local 
emergency coordinating group ever been reached by DHS with 
regard to their cooperation or collaboration on this issue?
    Mr. Scott. In some States, I would say yes. I mean, it is 
typically the States where we were very active ACC members or 
Dow is very active, and you bring the two together to come out. 
In other States, I don't know. But that is the easiest route 
for the State DHS folks that we talked about earlier, the PSAs 
that Mr. Wulf talked about, can reach out to the local 
community and be a part of that. They should be a part of that.
    The local sheriff and the fire departments and DHS and TCEQ 
in Texas, the environmental groups, and the media and the 
public are all members of those LEPCs.
    Mr. Meehan. Well, my time has expired so I will have a 
follow-up question.
    But let me turn it now to the Ranking Member for her 
questions.
    Ms. Clarke. Thank you, Mr. Chairman, and I thank our 
panelists for bringing your observations to bear here. I want 
to pick up a bit on what you have just stated, Mr. Scott, and 
actually pose a question to Mr. Dippel. Because it is 
interesting that Texas has a law regulating ammonium nitrate, 
but does it concern you, Mr. Dippel, that West, Texas had a 
wooden storage facility under, I mean, is that part of Texas 
State law?
    Mr. Dippel. No, it is not, and robably 95 percent of the 
facilities in Texas are wood. You know, their bands are made of 
wood. So that is not uncommon in the State of Texas.
    Ms. Clarke. Um-hmm. As a result of this, has their been new 
guidance put out about storage, or is it too much of a 
financial burden for, you know, smaller firms to look at 
changing that?
    Mr. Dippel. It is a big financial burden, and I have met 
with the fire marshal and we have discussed this. It is 
something they are recommending possibly that they change their 
facilities. But again, the, I think there are bigger concerns, 
you know, than just your walls and your seals. It is a lot of 
the locations of the facilities similar to West.
    Ms. Clarke. Yes.
    Mr. Dippel. There again, you know, West was a facility that 
was brought in probably in 1963 and all these things were built 
up around it. So there, again, there is a zoning problem in a 
lot of these small cities that bring on these problems.
    Ms. Clarke. Very well. Let me turn to you, Mr. Moulton. You 
have testified today and written extensively on the issue that 
engaging and informing the public is essential if CFATS and 
other programs are to become an integral part of the broader 
Government effort to protect communities from chemical facility 
risk, and I agree. Would you expand on the concept that culture 
of excessive secrecy and limited information sharing has 
contributed to the gaps, oversights, and inefficiencies in the 
chemical security efforts in general and, specifically, in the 
CFATS program?
    Mr. Moulton. Sure. I think there are a number of barriers 
that impede sharing of information between agencies and CFATS' 
program specifically. There are regulatory barriers. CFATS' 
program, when it established its information category, the 
chemical terrorism, vulnerability information it basically 
treated the information as almost classified. It treated very 
similar to that. It was a very broad definition of the 
information. So understandably that creates a regulatory 
restriction on what you can do with the information very 
easily.
    There are bureaucratic barriers. This need-to-know approach 
means that people have to ask to get access and wait for 
approval and wait for logins. It depends on the fact that 
whoever at the other end, whether it is DHS deciding whether or 
not to share their information or EPA deciding whether or not 
to share their RMP information, it depends on that agency 
making the right determination of this person deserves access 
and at what level. We don't always get those decisions right.
    There are cultural barriers, as I said. Agencies, 
interagency cooperation has long been a difficult issue. When 
it comes to areas where security gets involved and security 
concerns are raised, it becomes even more difficult for 
agencies to release information and share it more freely. 
Finally, I would say there is a technical barrier. These 
agencies have their own information and their own systems. 
Those systems don't often talk to each other very well.
    We heard Mr. Wulf this morning talk about when they first 
tried to access RMP data at EPA it was hard to get the system 
to work with their system right and get the information they 
needed from it. Again, if we leave these systems separate and 
closed you are going to run into those technical barriers more 
often. If we open them up and release more information out to 
the public in open formats it removes all of these barriers. 
The agencies can use it. Citizens, first responders, they can 
use it as well.
    Ms. Clarke. It would seem to me that in a case like West, 
where, as Mr. Dippel has already stated, you have sort of an 
older facility that had development grow around it, it would 
have been flagged at some point along that continuum. That the 
zoning challenges of building nursing homes, you know, those 
types of facilities in proximity to the place it would have 
been apparent. So I think that there are a whole host of ways 
in which this information sharing becomes critical to the 
mission of homeland security.
    I want to thank you for your testimony, and yield back, Mr. 
Chairman.
    Mr. Meehan. I thank the Ranking Member.
    The Chairman now recognizes Mr. Vela for any questions he 
may have.
    Mr. Vela. Mr. Scott, you mentioned that for 10 years that 
your organizations have tried pushing forward certain pieces of 
legislation. Can you elaborate on that?
    Mr. Scott. Well, we have been behind chemical security 
regulations and focused on DHS, getting them as the authorized 
agency so we get some clarity around the whole security 
process. A big part of pushing for legislation is to get 
everybody on the same playing field so that one industry is not 
doing one thing while another one is doing a different thing. 
So we wanted to push legislation to get that clarity around 
what agency is responsible for chemical security and who are 
all the players that are involved.
    We are still not there yet. But we have got the 
legislation, but we have got to get everybody around the table.
    Mr. Vela. Now, have there been bills along those lines 
filed, or have you not even gotten to that point?
    Mr. Scott. Well, we have been working, every time there is 
a piece of legislation out or a committee working on chemical 
security we have been involved in that. So yes, we were very 
involved in the whole CFATS discussion from the very beginning.
    Mr. Vela. I guess what I am asking is, are there any 
current proposals that you would be asking us to take a look at 
as we move forward?
    Mr. Scott. Well, I--one thing we wanted, we would like to 
get is, get authorization, a multi-year authorization, for DHS. 
I mean, that is one of the issues that you have is it is 
getting very difficult. We have spent about $250 million on 
security upgrades for Dow Chemical alone. As the economy gets 
tougher, it is harder to get that money to complete the 
upgrades. With the uncertainty of, well, is DHS going to be 
here next year, is there going to be somebody else, it gets 
very difficult to sustain the program internally.
    Mr. Vela. Now, you mentioned there was quite a difference 
in terms of the regulatory jurisdiction, or maybe regulatory 
action, if you compared, for example, the role that these 
agencies might play in a Dow Chemical plant versus the role 
that they play at West Fertilizer. What can you tell me about 
that? What is the difference?
    Mr. Scott. There really is no difference except in size. I 
mean, we have very big sites. But we have sites that are 
regulated by EPA and DHS for security and environmental 
incidents. We have sites that are regulated by the Coast Guard 
and EPA. So we have multi-jurisdictional issues at most of our 
sites. OSHA is involved at all of our sites in the United 
States and similar government agencies outside the United 
States.
    Mr. Vela. I guess what I am asking is: Do you see or prior 
to this accident would you have seen, a difference in the level 
of action to prevent this accident by those agencies if we 
compare how actively they were involved in doing what they are 
supposed to do at, for example, Dow Chemical plant versus the 
West Fertilizer plant?
    Mr. Scott. Well, I mean, we are surmising here. But a lot 
of the risk analysis that you do, whether it is EPA or whether 
it is DHS, are population-related. So when you go through and 
look at, if you put the chemicals of interest in the computer, 
and it comes out that you do have a chemical of interest, and 
this is the quantity that you have the risk is also based on 
the impact, off-site impact, to the population around you. So 
smaller population areas typically are a lower risk type of 
scenario in the DHS and EPA worlds for that off-site impact.
    So I think the risk analysis is very different from site to 
site, depending on where that site is located. Regardless of if 
you have the same chemicals or not.
    Mr. Vela. Now, in reference to insurance liability rules, 
what insurance liability, what Federal rules are there that 
would require a Dow Chemical plant, for example, to have 
certain liability limits?
    Mr. Scott. I don't know of any regulations. I know that in 
order to be approved for the SAFETY Act through DHS, and our 
DHS, our sites, our site security programs and our 
transportation security programs, are both designated under the 
SAFETY Act with DHS. The Responsible Care program is also 
authorized, or designated, under the SAFETY Act, with DHS 
Responsible Care program that ACC implements. There is a 
liability requirement associated with the SAFETY Act 
application.
    Mr. Vela. Do you know what that is, or what those limits 
are?
    Mr. Scott. No, not off the top of my head.
    Mr. Vela. So the place to look would be the SAFETY Act?
    Mr. Scott. Well, that is only for people that are applying 
for the SAFETY Act designation. That is not everybody. That is 
different from the regulations. We are covered by CFATS under 
regulations, but we also apply for SAFETY Act recognition from 
the DHS SAFETY Act Office. SAFETY Act is an acronym for 
something, I don't know what it is. But there is a requirement 
for insurance coverage there, and both ACC and Dow have met 
those requirements.
    Mr. Vela. You may not know the answer to this. I mean, are 
there any Federal regulations that would have required the West 
Fertilizer plant to have a certain level of insurance limits?
    Mr. Scott. I don't know the answer to that.
    Mr. Vela. I will yield back.
    Mr. Meehan. I thank the gentleman. I have just a quick 
follow-up question. Mr. Dippel, I was sort of intrigued, again, 
by your observation speaking for the common man out there; 
people who are dealing with this, and a local dealer being 
asked to have to create a second kind of secure communication 
capacity on computers. To your knowledge, was that limited just 
so that they would be able to report back and forth about the 
compliance issues with the chemicals?
    Mr. Dippel. I am not sure. But, you know, it is, you got to 
understand that in these small facilities there is very limited 
computer skills to start with. I got a call the other day on 
the way up here and talked to a lady, and asked her. I told her 
I was coming to help her in a couple of weeks. And told her 
make sure they had a secure e-mail address. She said we don't 
have e-mail. So this is what you are dealing with. To make it 
complicated on top of this, it is really hard for these dealers 
to work with.
    I got another call that said, you know, they called DHS for 
help and they stayed on the line for an hour-and-a-half waiting 
for somebody to answer the phone. You know, so things like that 
just gets these guys frustrated and they just, you know, it 
just needs to be made simple and make it workable. When they 
got to go through the list of chemicals it is pages and pages 
and pages, and probably they only have one or two chemicals 
that possibly could be on that list. So it is very complicated, 
and I think it just needs to be simplified a lot. To make 
people come into compliance it would sure help.
    Mr. Meehan. Mr. Moulton, you have been an advocate for 
simplification and, you know, openness in this kind of a 
process. I will ask you to comment on that kind of a 
requirement. But let me just flip it for one second because I 
need to know--DHS isn't here--put your hat on and make yourself 
a member of DHS. Why the necessity for certain kinds of 
security? I am assuming it relates to not wanting to tip our 
hand as to where the location is, recognizing that these drugs 
can be used by drug dealers looking to make methamphetamine, 
can be targets for any other kind of person that wants to use 
that fertilizer, you know, for a criminal act or a terroristic 
act.
    So is it not unreasonable for some level of secrecy, and 
where is the boundary?
    Mr. Moulton. No, I don't think it is unreasonable for some 
level of secrecy. I certainly wouldn't say we should throw the 
doors open and release all information that we are collecting. 
But I think we waste time, energy, and resources trying to 
protect secrets that aren't really secrets. The names and 
locations of these facilities, they are not secret. That is 
just the reality. They report to lots of other systems, EPA, 
OSHA, there are lots of ways to find them.
    So by trying to hide who is in CFATS, who is reported to 
CFATS, who is in what tier even, we are only hiding CFATS. We 
are only hiding the program itself and what it is accomplishing 
and if it is not accomplishing something. What I think we need 
to do is, we need to really focus in and be very specific about 
what are the critical, detailed pieces of information that do 
need security. These are the vulnerability assessments, the 
site security plans. This isn't the basic information that is 
going to help first responders and the public and State 
officials to better understand these facilities in the broad 
strokes and prepare for chemical emergencies.
    I think the need for this, again, another technical hurdle 
here, this need for a secure transmission of information 
because CFATS is treating almost everything as on par with 
classified information again makes the program more difficult 
and makes it more difficult for facilities out there that want 
to comply to do so.
    Mr. Meehan. Well, you couldn't have given a better closing 
argument for, often, why a program gets in its own way in the 
form of why, in terms of the objective that needs to be 
realized. I mentioned the tremendous frustration that I know 
many in the industry share. We are 5 years into a program, and 
by the very testimony of the inspector general or that was 
here, they are looking at another 7 years just to finish this 
part of the process. Yet, by your articulation, there is very 
simple information already contained in many places that should 
be able to be communicated and need not even be private.
    So I thank you for bringing, again, as I said, the common 
man's perspective, the understanding of those out in the 
industry. We do get the frustration that you feel. I mean, I 
don't want to constantly just beat up DHS. There are a lot of 
people there with a tough mission that are working very, very 
hard to accomplish it. But sometimes what you set out to do, 
designing that appropriately, so that you accomplish what you 
need to accomplish without creating a million other things that 
get in the way of the resolution of your objective I think can, 
would move us far down the path.
    I thank you for your testimony here today. I thank you 
particularly for your presence on what we know is a tough 
issue. Tough because it has a lot of complexity and deals with 
your companies. But toughest because we know that real people 
have paid a price where information may have been sufficient to 
have enabled them to continue doing what they do and not being 
the casualties that we know them to be. So I thank you for your 
presence here today. I thank you for your continuing effort.
    We look forward to working with you to try to get this 
right. I thank my panel for all of their good work on this. So 
you may get some follow-up questions from members of the panel. 
If, in fact, that happens we ask that you do your best to be as 
responsive as you can in a timely manner. So without objection, 
the subcommittee stands adjourned.
    [Whereupon, at 12:42 p.m., the subcommittee was adjourned.]

                                 
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