[Congressional Record Volume 155, Number 164 (Thursday, November 5, 2009)]
[House]
[Pages H12407-H12426]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


              CHEMICAL FACILITY ANTI-TERRORISM ACT OF 2009

  The SPEAKER pro tempore. Pursuant to House Resolution 885 and rule 
XVIII, the Chair declares the House in the Committee of the Whole House 
on the state of the Union for the consideration of the bill, H.R. 2868.

                              {time}  1525


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the State of the Union for the consideration of the bill 
(H.R. 2868) to amend the Homeland Security Act of 2002 to extend, 
modify, and recodify the authority of the Secretary of Homeland 
Security to enhance security and protect against acts of terrorism 
against chemical facilities, and for other purposes, with Mr. Inslee in 
the chair.
  The Clerk read the title of the bill.
  The CHAIR. Pursuant to the rule, the bill is considered the first 
time.
  General debate shall not exceed 90 minutes equally divided and 
controlled by the Chair and ranking minority member of the Committee on 
Homeland Security, the Chair and ranking minority member of the 
Committee on Energy and Commerce, and the Chair and ranking minority 
member of the Committee on Transportation and Infrastructure.
  The gentleman from Mississippi (Mr. Thompson), the gentleman from New 
York (Mr. King), the gentleman from California (Mr. Waxman), the 
gentleman from Texas (Mr. Barton), the gentleman from Minnesota (Mr. 
Oberstar), and the gentleman from Florida (Mr. Mica) each will control 
15 minutes.
  The Chair recognizes the gentleman from Mississippi.
  Mr. THOMPSON of Mississippi. Mr. Chairman, I yield myself such time 
as I may consume.
  I am pleased to present H.R. 2868, a bill to authorize reasonable, 
risk-based security standards for chemical facilities.
  Faced with the fact that DHS' chemical security program, CFATS, would 
expire, the President requested and received a 1-year extension to 
allow this bill to go through the legislative process. Under the CFATS 
program, DHS placed about 6,000 facilities in four risk tiers. These 
sites account for just 16 percent of the 36,000 facilities that 
initially submitted information to DHS.
  My committee began working on comprehensive chemical security 
legislation 4 years ago in response to widespread concern that chemical 
plants may be ideal terrorist targets. Previous attempts at getting 
comprehensive chemical security legislation to the floor in the last 
two Congresses were unsuccessful.
  However, this Congress, thanks to the collaborative approach taken by 
Chairman Waxman, as well as by Chairmen Oberstar and Conyers, the House 
now has an opportunity to consider this homeland security bill. I am 
proud of the robust stakeholder engagement that went into this bill, 
and to the extent with which Department and Republican input was sought 
and included.
  H.R. 2868 closes a major security gap identified by both the Bush and 
Obama administrations. Specifically, titles II and III authorize EPA to 
establish a security program for drinking water and wastewater 
facilities. EPA's new program will complement CFATS.
  This approach, which is fully supported by the Obama administration, 
taps into the existing regulatory relationship between EPA and public 
water facilities.
  Additionally, H.R. 2868 requires all tiered facilities to assess 
``methods to reduce the consequences of a terrorist attack.'' Plants 
that voluntarily perform these assessments, which are sometimes called 
IST assessments, often find that good security equals good business. In 
fact, this week, Clorox announced, to strengthen its operation and add 
another layer of security, it would voluntarily replace chlorine gas 
with a safer alternative at six of its bleach manufacturing facilities.

                              {time}  1530

  H.R. 2868 simply incorporates this best practice into how all tiered 
facilities integrate security into their operations. Additionally, H.R. 
2868 strengthens CFATS by adding enforcement tools, protecting the 
rights of whistleblowers, and enhancing security training.
  Some on the other side are arguing for a 3-year blanket extension of 
DHS's current authority. Such an approach flies in the face of 
testimony that we received about gaps in CFATS and would be a rejection 
of all the carefully tailored security enhancements in the bill.
  This legislation demonstrates the progress we can make with a 
transparent process that is open to diverse viewpoints and addresses 
the concerns of everyone who wants to be in the process. This is 
exactly how government should work.
  With that, Mr. Chairman, I urge passage of this important legislation 
and I reserve the balance of my time.
  Mr. KING of New York. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, the issue of chemical plant security is obviously a 
very vital one. It's one that has to be addressed. It's an issue which 
certainly since September 11 is more vital than ever. That is why, in 
2006, the Homeland Security Committee, when I was chairman working 
across the aisle, worked long and hard to enact landmark legislation. 
There was much negotiation. There was much debate. We covered issues 
such as preemption and inherently safer technology.
  Legislation was put in place, and that is the basis upon which the 
Department has been acting for the past 3 years. And this legislation 
that we enacted then is in the process of being implemented by the 
Department of Homeland Security. In fact, the Department, itself, asked 
for a 1-year extension. That was voted on in the appropriations bill 
last month, which I strongly supported. As far as I know, the 
administration has not asked for this legislation, and I'm not aware of 
any statement of support that they've sent up in support of it.
  But before I get to that, let me just commend the chairman, Mr. 
Thompson, the Chair of the subcommittee, Ms. Jackson-Lee, and the 
ranking member of the subcommittee, Mr. Dent, because even though we 
are going to have differences during this debate today, I want to 
emphasize the fact that this was done very fairly, very openly, and 
with a tremendous spirit of cooperation from your side of the aisle and 
I hope from ours as well. The differences today are very honest ones, 
but I want to emphasize the level of cooperation that existed 
throughout this process.
  I am, however, opposed to the legislation because I believe it is 
going to create confusion and undue cost. It is going to cost jobs, and 
it's going to raise taxes. It gives far too much credibility to IST, or 
inherently safer technology, which is a concept, yet this concept will 
have, I believe, a very stifling effect on the private sector. We 
should keep in mind that we're not just talking about large chemical 
plant facilities, but we're also talking about institutions such as 
colleges and hospitals which will have to incur these costs.
  The current law is working. And I asked the chairman this during the 
time of the debate when it was in the committee, what is the rush to 
move it through? And when I say ``rush,'' obviously, if it had to be 
done, we should do it immediately, we should do it yesterday. But the 
fact is that the Department did not ask for this extension, did not ask 
for these changes. I believe that we took a good concept, an admirable 
concept of enhancing chemical plant security, and have allowed concepts 
and ideas regarding the environment, regarding certain pet projects, 
and allowed that to, I believe, have too large an influence on this 
bill.
  There is another aspect of this bill which has been added, and that's 
the concept of civil lawsuits against the Department. I know Mr. 
McCaul, in the debate later, is going to offer an amendment on this 
issue. But any fair reading of the testimony of the Department at the 
hearing we held on this legislation made it clear that they did not 
support this language regarding the civil lawsuits.
  Quite frankly, with all the work the Department of Homeland Security 
has to do, with the difficulty there is in bringing all of these 
thousands of entities into compliance with the law, I believe the last 
thing they need right now is to be subjected to civil lawsuits

[[Page H12408]]

where there would virtually be no limitations on who could bring those 
lawsuits. My understanding is that the person doesn't even have to be a 
citizen to bring a lawsuit under this or live in the State where the 
facility is located.
  So, Mr. Chairman, this is a bridge too far. This is a rush to 
judgment. Rather than work with the carefully crafted and thought-out 
legislation that we adopted in a bipartisan way 3 years ago, we are now 
changing it--and changing again--without a request from the Obama 
administration. We have language in this legislation which was clear 
the administration opposed at the time of the debate on the bill when 
it was before the committee. So I strongly urge, reluctantly, that the 
legislation be voted down.
  But in doing that, let me also say, Mr. Chairman, that there are a 
large number of organizations opposed to this legislation, such as the 
American Farm Bureau, the Chamber of Commerce, the American Trucking 
Association. I will place into the Record the letter which was sent by 
a group of these organizations in opposition to the legislation, H.R. 
2868.
  Mr. Chairman, let me just conclude--and by the way, I will be asking 
Mr. Dent to manage the balance of the time on our side. I would ask 
those on the other side to go easy on Mr. Dent; he is suffering from 
trauma. His team, the Phillies, after being lucky last year, have gone 
back to their usual ways and they were defeated last night. I give him 
credit for coming out of his bed, from coming out from underneath the 
covers to be here today to take part in this debate. So especially I 
would ask the gentleman from New Jersey (Mr. Pascrell) who has a talent 
for going for the jugular, you can do it to me, but please go easy on 
Mr. Dent today if you would. And I'm sure the chairman concurs in the 
sympathy we feel for the gentleman from Pennsylvania.
  Mr. Chairman, on a serious note, we started work on this legislation 
in good faith. That good faith continues. But I strongly believe, and 
others on our side do, that the extreme environmental language in the 
bill is going to tie the hands of the Homeland Security Secretary with 
unrelated costly and burdensome provisions.
  Congress has granted the President's request for a 1-year extension. 
We should let the Department of Homeland Security continue its work. I 
believe that moving this legislation forward will hurt the Department, 
will hurt small businesses, and will not improve the security of these 
facilities.
                                                 November 4, 2009.
     Hon. Nancy Pelosi,
     Speaker, House of Representatives, Capitol Building, 
         Washington, DC.
     Hon. John Boehner,
     Republican Leader, House of Representatives, Capitol 
         Building, Washington, DC.
       Dear Speaker Pelosi and Republican Leader Boehner: We write 
     to you today to express our opposition to H.R. 2868, the 
     ``Chemical and Water Security Act of 2009.'' Despite the 
     changes made to this legislation in the Energy and Commerce 
     and Homeland Security Committees, we continue to oppose the 
     bill due to the detrimental impact it will have on national 
     security and economic stability.
       Specifically, we strongly object to the Inherently Safer 
     Technology (IST) provisions of this legislation that would 
     allow the Department of Homeland Security (DHS) to mandate 
     that businesses employ specific product substitutions and 
     processes. These provisions would be significantly 
     detrimental to the progress of existing chemical facility 
     security regulations (the ``CFATS'' program) and should not 
     be included in this legislation. DHS should not be making 
     engineering or business decisions for chemical facilities 
     around the country. It should be focused instead on making 
     our country more secure and protecting American citizens from 
     terrorist threats. Decisions on chemical substitutions or 
     changes in processes should be made by qualified 
     professionals whose job it is to ensure safety at our 
     facilities.
       Furthermore, forced chemical substitutions could simply 
     transfer risk to other points along the supply chain, failing 
     to reduce risk at all. Because chemical facilities are 
     custom-designed and constructed, such mandates would also 
     impose significant financial hardship on facilities 
     struggling during the current economic recession. Some of 
     these forced changes are estimated to cost hundreds of 
     millions of dollars per facility. Ultimately, many facilities 
     would not be able to bear this expense.
       Thank you for taking our concerns into account as the House 
     of Representatives continues to consider the ``Chemical Water 
     and Security Act of 2009.'' We stand ready to work with 
     Congress towards the implementation of a responsible chemical 
     facility security program.
       Sincerely,
         Agricultural Retailers Association American Farm Bureau 
           Federation American Forest & Paper Association; 
           American Petroleum Institute; American Trucking 
           Associations; Chemical Producers and Distributors 
           Association; Consumer Specialty Products Association; 
           The Fertilizer Institute; Institute of Makers of 
           Explosives; International Association of Refrigerated 
           Warehouses; International Liquid Terminals Association; 
           International Warehouse Logistics Association; National 
           Agricultural Aviation Association; National Association 
           of Chemical Distributors; National Association of 
           Manufacturers; National Grange of the Order of Patrons 
           of Husbandry; National Mining Association; National 
           Oilseed Processors Association; National Paint and 
           Coatings Association; National Pest Management 
           Association; National Petrochemical and Refiners 
           Association; National Propane Gas Association; North 
           American Millers' Association; Petroleum Equipment 
           Suppliers Association; Petroleum Marketers Association 
           of America; U.S. Chamber of Commerce; USA Rice 
           Federation.

  I reserve the balance of my time.
  Mr. THOMPSON of Mississippi. Mr. Chairman, I would like to enter into 
the Record testimony from Under Secretary Rand Beers from an October 
hearing that reflects that this administration supports this bill and 
desires for action this year.

   Statement for the Record by Rand Beers, Under Secretary, National 
 Protection and Programs Directorate, Department of Homeland Security, 
                            October 1, 2009.

       Thank you, Chairman Markey, Ranking Member Upton, and 
     distinguished Members of the Committee. It is a pleasure to 
     appear before you today as the Committee considers H.R. 3258, 
     the Drinking Water System Security Act of 2009. This Act is 
     intended to close the security gap at drinking water 
     facilities that possess substances of concern.
       We have made significant progress since the implementation 
     of the Chemical Facilities Anti-Terrorism Standards (CFATS). 
     We have reviewed over 36,900 facilities' Top-Screen 
     consequence assessment questionnaires, and in June 2008, we 
     notified 7,010 preliminarily-tiered facilities of the 
     Department's initial high-risk determinations and of the 
     facilities' requirement to submit Security Vulnerability 
     Assessments (SVAs). We received and are reviewing almost 
     6,300 SVAs. We have recently begun to notify facilities of 
     their final high-risk determinations, tiering assignments, 
     and the requirement to complete and submit Site Security 
     Plans (SSPs) or Alternative Security Programs (ASPs). CFATS 
     currently covers approximately 6,200 high-risk facilities 
     nationwide. The current state of coverage reflects changes 
     related to chemicals of interest that facilities have made 
     since receiving preliminary tiering notifications in June 
     2008, including security measures implemented and the 
     consolidation or closure of some facilities.


                     Chemical Security Regulations

       Section 550 of the FY 2007 Department of Homeland Security 
     Appropriations Act directed the Department to develop and 
     implement a regulatory framework to address the high level of 
     security risk posed by certain chemical facilities. 
     Specifically, Section 550(a) of the Act authorized the 
     Department to adopt rules requiring high-risk chemical 
     facilities to complete SVAs, develop SSPs, and implement 
     protective measures necessary to meet risk-based performance 
     standards established by the Department. Consequently, the 
     Department published an Interim Final Rule, known as CFATS, 
     on April 9, 2007. Section 550, however, expressly exempts 
     from those rules certain facilities that are regulated under 
     other Federal statutes. For example, Section 550 exempts 
     facilities regulated by the United States Coast Guard 
     pursuant to the Maritime Transportation Security Act (MTSA). 
     Drinking water and wastewater treatment facilities as defined 
     by Section 1401 of the Safe Water Drinking Act and Section 
     212 of the Federal Water Pollution Control Act, respectively, 
     are similarly exempted. In addition, Section 550 exempts 
     facilities owned or operated by the Departments of Defense 
     and Energy, as well as certain facilities subject to 
     regulation by the Nuclear Regulatory Commission (NRC).
       The following core principles guided the development of the 
     CFATS regulatory structure:
       (1) Securing high-risk chemical facilities is a 
     comprehensive undertaking that involves a national effort, 
     including all levels of government and the private sector. 
     Integrated and effective participation by all stakeholders--
     Federal, State, local, and the private sector--is essential 
     to securing our national critical infrastructure, including 
     high-risk chemical facilities. Implementing this program 
     means tackling a sophisticated and complex set of issues 
     related to identifying and mitigating vulnerabilities and 
     setting security goals. This requires a broad spectrum of 
     input, as the regulated facilities bridge multiple industries 
     and critical infrastructure sectors. By working closely with

[[Page H12409]]

     experts, members of industry, academia, and Federal 
     Government partners, we leveraged vital knowledge and insight 
     to develop the regulation.
       (2) Risk-based tiering will ensure that resources are 
     appropriately deployed. Not all facilities present the same 
     level of risk. The greatest level of scrutiny should be 
     focused on those facilities that, if attacked, present the 
     most risk and could endanger the greatest number of lives.
       (3) Reasonable, clear, and equitable performance standards 
     will lead to enhanced security. The current CFATS rule 
     includes enforceable risk-based performance standards. High-
     risk facilities have the flexibility to select among 
     appropriate site-specific security measures that will 
     effectively address risk. The Department will analyze each 
     tiered facility's SSP to see if it meets CFATS performance 
     standards. If necessary, DHS will work with the facility to 
     revise and resubmit an acceptable plan.
       (4) Recognition of the progress many companies have already 
     made in improving facility security leverages those 
     advancements. Many responsible companies have made 
     significant capital investments in security since 9/11. 
     Building on that progress in implementing the CFATS program 
     will raise the overall security baseline at high-risk 
     chemical facilities.
       Appendix A of CFATS lists 322 chemicals of interest, 
     including common industrial chemicals such as chlorine, 
     propane, and anhydrous ammonia, as well as specialty 
     chemicals, such as arsine and phosphorus trichloride. The 
     Department included chemicals based on the consequences 
     associated with one or more of the following three security 
     issues:
       (1) Release--toxic, flammable, or explosive chemicals that 
     have the potential to create significant adverse consequences 
     for human life or health if intentionally released or 
     detonated;
       (2) Theft/Diversion--chemicals that have the potential, if 
     stolen or diverted, to be used or converted into weapons that 
     could cause significant adverse consequences for human life 
     or health; and
       (3) Sabotage/Contamination--chemicals that, if mixed with 
     other readily available materials, have the potential to 
     create significant adverse consequences for human life or 
     health.
       The Department established a Screening Threshold Quantity 
     for each chemical based on its potential to create 
     significant adverse consequences for human life or health in 
     one or more of these ways.


                         Implementation Status

       Implementation and execution of the CFATS regulation 
     require the Department to identify which facilities it 
     considers high-risk. The Department developed the Chemical 
     Security Assessment Tool (CSAT) to identify potentially high-
     risk facilities and to provide methodologies that facilities 
     can use to conduct SVAs and to develop SSPs. CSAT is a suite 
     of online applications designed to facilitate compliance with 
     the program; it includes user registration, the initial 
     consequence-based screening tool (Top-Screen), an SVA tool, 
     and an SSP template. Through the Top-Screen process, the 
     Department initially identifies and sorts facilities based on 
     their associated risks.
       If a facility is initially identified during the Top-Screen 
     process as having a level of risk subject to regulation under 
     CFATS, the Department assigns the facility to one of four 
     preliminary risk-based tiers, with Tier 1 indicating the 
     highest level of risk. Those facilities must then complete 
     SVAs and submit them to the Department. Results from the SVA 
     inform the Department's final determinations as to whether a 
     facility is high-risk and, if so, of the facility's final 
     tier assignment. To date, the Department has received over 
     6,300 SVAs. Each one is carefully reviewed for its physical, 
     cyber, and chemical security content.
       Only facilities that receive a final high-risk 
     determination letter under CFATS will be required to complete 
     and submit an SSP or an Alternative Security Program (ASP). 
     DHS's final determinations as to which facilities are high-
     risk are based on each facility's individual consequentiality 
     and vulnerability as determined by its Top-Screen and SVA.
       After approval of their SVAs, the final high-risk 
     facilities are required to develop SSPs or ASPs that address 
     their identified vulnerabilities and security issues. The 
     higher the risk-based tier, the more robust the security 
     measures and the more frequent and rigorous the inspections 
     will be. The purpose of inspections is to validate the 
     adequacy of a facility's SSP and to verify that measures 
     identified in the SSP are being implemented.
       In May, the Department issued approximately 140 final 
     tiering determination letters to the highest risk (Tier 1) 
     facilities, confirming their high-risk status and initiating 
     their 120-day timeframe for submitting an SSP. In June and 
     July, we notified approximately 826 facilities of their 
     status as final Tier 2 facilities and the associated due 
     dates for their SSPs. Most recently, on August 31, 2009, we 
     notified approximately 137 facilities of their status as 
     either a final Tier 1, 2, or 3 facility and the associated 
     due dates for their respective SSPs. Following preliminary 
     authorization of the SSPs, the Department expects to begin 
     performing inspections in the first quarter of FY 2010, 
     starting with the Tier 1-designated facilities.
       Along with issuing the final tiering determination 
     notifications for Tier 1 facilities in May, the Department 
     launched two additional measures to support CFATS. The first 
     is the SSP tool, which was developed by DHS with input from 
     an industry working group. A critical element of the 
     Department's efforts to identify and secure the Nation's 
     high-risk chemical facilities, the SSP enables final high-
     risk facilities to document their individual security 
     strategies for meeting the Risk-Based Performance Standards 
     (RBPS) established under CFATS.
       Each final high-risk facility's security strategy will be 
     unique, as it depends on its risk level, security issues, 
     characteristics, and other factors. Therefore, the SSP tool 
     collects information on each of the 18 RBPS for each 
     facility. The RBPS cover the fundamentals of security, such 
     as restricting the area perimeter, securing site assets, 
     screening and controlling access, cybersecurity, training, 
     and response. The SSP tool is designed to take into account 
     the complicated nature of chemical facility security and 
     allows facilities to describe both facility-wide and asset-
     specific security measures, as the Department understands 
     that the private sector in general, and CFATS-affected 
     industries in particular, are dynamic. The SSP tool also 
     allows facilities to involve their subject-matter experts 
     from across the facility, company and corporation, as 
     appropriate, in completing the SSP and submitting a 
     combination of existing and planned security measures to 
     satisfy the RBPS. The Department expects that most approved 
     SSPs will consist of a combination of existing and planned 
     security measures. Through a review of the SSP, in 
     conjunction with an on-site inspection, DHS will determine 
     whether a facility has met the requisite level of performance 
     given its risk profile and thus whether its SSP should be 
     approved.
       Also issued with the final Tier 1 notifications and the SSP 
     tool was the Risk-Based Performance Standards Guidance 
     document. The Department developed this guidance to assist 
     high-risk chemical facilities subject to CFATS in determining 
     appropriate protective measures and practices to satisfy the 
     RBPS. It is designed to help facilities comply with CFATS by 
     providing detailed descriptions of the 18 RBPS as well as 
     examples of various security measures and practices that 
     would enable facilities to achieve the appropriate level of 
     performance for the RBPS at each tier level. The Guidance 
     also reflects public and private sector dialogue on the RBPS 
     and industrial security, including public comments on the 
     draft guidance document. High-risk facilities are free to 
     make use of whichever security programs or processes they 
     choose, provided that they achieve the requisite level of 
     performance under the CFATS RBPS. The Guidance will help 
     high-risk facilities gain a sense of what types and 
     combination of security measures may satisfy the RBPS.
       To provide a concrete example: in the case of a Tier 1 
     facility with a release hazard security issue, the facility 
     is required to appropriately restrict the area perimeter, 
     which may include preventing breach by a wheeled vehicle. To 
     meet this standard, the facility is able to consider numerous 
     security measures, such as cable anchored in concrete block 
     along with movable bollards at all active gates or perimeter 
     landscaping (e.g., large boulders, steep berms, streams, or 
     other obstacles) that would thwart vehicle entry. As long as 
     the measures in the SSP are sufficient to address the 
     performance standards, the Department does not mandate 
     specific measures to approve the plan.


              Outreach Efforts and Program Implementation

       Since the release of CFATS in April 2007, the Department 
     has taken significant steps to publicize the rule and ensure 
     that our security partners are aware of its requirements. As 
     part of this dedicated outreach program, the Department has 
     regularly updated the Sector and Government Coordinating 
     Councils of industries most impacted by CFATS, including the 
     Chemical, Oil and Natural Gas and Food and Agriculture 
     Sectors. We have also made it a point to solicit feedback 
     from our public and private sector partners and, where 
     appropriate, to reflect that feedback in our implementation 
     activities, such as adjustments made to the SSP template.
       We have presented at numerous security and chemical 
     industry conferences; participated in a variety of other 
     meetings of relevant security partners; established a Help 
     Desk for CFATS questions; and developed and regularly updated 
     a highly-regarded Chemical Security Web site. These efforts 
     are having a positive impact: approximately 36,900 facilities 
     have submitted Top-Screens to the Department via CSAT.
       Additionally, the Department continues to focus on 
     fostering solid working relationships with State and local 
     officials as well as first responders in jurisdictions with 
     high-risk facilities. To meet the risk-based performance 
     standards under CFATS, facilities need to cultivate and 
     maintain effective working relationships--including a clear 
     understanding of roles and responsibilities--with local 
     officials who would aid in preventing, mitigating and 
     responding to potential attacks. To facilitate these 
     relationships, our inspectors have been actively working with 
     facilities and officials in their areas of operation, and 
     they have participated in almost 100 Local Emergency Planning 
     Committee meetings to provide a better understanding of 
     CFATS' requirements.
       We are also working with the private sector as well as all 
     levels of government in

[[Page H12410]]

     order to identify facilities that may meet the threshold for 
     CFATS regulation but that have not yet registered with CSAT 
     or filed a Top-Screen. We have recently completed pilot 
     efforts at the State level with New York and New Jersey to 
     identify such facilities in those jurisdictions. We will use 
     these pilots to design an approach that all States can use to 
     identify facilities for our follow up. Further, we are in the 
     process of commencing targeted outreach efforts to certain 
     segments of industry where we believe compliance may need 
     improvement.
       Internally, we are continuing to build the Infrastructure 
     Security Compliance Division that is responsible for 
     implementing CFATS. We have hired, or are in the process of 
     on-boarding, over 125 people, and we will continue to hire 
     throughout this fiscal year to meet our goals. The FY 2010 
     budget request contains an increase to allow the hiring, 
     training, equipping, and housing of additional inspectors to 
     support the CFATS program as well as to continue deployment 
     and maintenance of compliance tools for covered facilities.


                            New Legislation

       We have enjoyed a constructive dialogue with Congress, 
     including this Committee, as it works on new authorizing 
     legislation. The Department recognizes the significant work 
     that this Committee and others, particularly the House 
     Committee on Homeland Security, have devoted to drafting 
     legislation to reauthorize the CFATS program and to address 
     chemical security at the Nation's water systems. We 
     appreciate this effort and look forward to continuing the 
     constructive engagement with Congress on these important 
     matters. CFATS is enhancing security today by helping to 
     ensure high-risk chemical facilities throughout the country 
     have security postures commensurate with their levels of 
     risk.
       The Department supports a permanent authorization of the 
     program. Given the complexity of chemical facility 
     regulation, the Department is committed to fully exploring 
     all issues before the program is made permanent. To that end, 
     the President's FY 2010 budget includes a request for a one-
     year extension of the statutory authority for CFATS, which 
     will allow the time needed to craft a robust permanent 
     program while avoiding the sunset of the Department's 
     regulatory authority on October 4, 2009. Further, as this one 
     year extension is considered, we urge Congress to provide 
     adequate time and resources to implement any new requirements 
     under the prospective legislation and to ensure that new 
     requirements would not necessitate the Department to 
     extensively revisit aspects of the program that are either 
     currently in place or will be implemented in the near future. 
     Throughout our discussions with congressional committees, the 
     Department has communicated a series of issues for 
     consideration as part of any CFATS legislative proposal.
       It is important to note that the Administration has 
     developed a set of guiding principles for the reauthorization 
     of CFATS and for addressing the security of our Nation's 
     waste water and drinking water treatment facilities. These 
     principles are:
       (1) The Administration supports permanent chemical facility 
     security authorities and a detailed and deliberate process in 
     so doing, hence our preference for that process to be 
     completed in FY10.
       (2) Nonetheless, CFATS single year reauthorization in this 
     session presents an opportunity to promote the consideration 
     and adoption of inherently safer technologies (IST) among 
     high-risk chemical facilities. We look forward to working 
     with this Committee and others on this important matter.
       (3) CFATS reauthorization also presents an opportunity to 
     close the existing security gap for waste water and drinking 
     water treatment facilities by addressing the statutory 
     exemption of these facilities from CFATS. The Administration 
     supports closing this gap.
       As DHS and EPA have stated before, we believe that there is 
     a critical gap in the U.S. chemical security regulatory 
     framework--namely, the exemption of drinking water and 
     wastewater treatment facilities. We need to work with 
     Congress to close this gap in order to secure substances of 
     concern at these facilities and to protect the communities 
     they serve; drinking water and wastewater treatment 
     facilities that meet CFATS thresholds for chemicals of 
     interest should be regulated. We do, however, recognize the 
     unique public health and environmental requirements and 
     responsibilities of such facilities. For example, we 
     understand that a ``cease operations'' order that might be 
     appropriate for another facility under CFATS would have 
     significant public health and environmental consequences when 
     applied to a water facility. The Administration has 
     established the following policy principles in regards to 
     regulating security at water sector facilities:
       The Administration believes that EPA should be the lead 
     agency for chemical security for both drinking water and 
     wastewater systems, with DHS supporting EPA's efforts. Many 
     of these systems are owned or operated by a single entity and 
     face related issues regarding chemicals of concern. 
     Establishing a single lead agency for both will promote 
     consistent and efficient implementation of chemical facility 
     security requirements across the water sector.
       To address chemical security in the water sector, EPA would 
     utilize, with modifications as necessary to address the 
     uniqueness of the sector, DHS' existing risk assessment tools 
     and performance standards for chemical facilities. To ensure 
     consistency of tiering determinations across high-risk 
     chemical facilities, EPA would apply DHS' tiering 
     methodology, with modifications as necessary to reflect 
     any differences in statutory requirements. DHS would in 
     turn run its Chemical Security Assessment Tool and provide 
     both preliminary and proposed final tiering determinations 
     for water sector facilities to EPA. EPA and DHS would 
     strive for consensus in this tiering process with EPA in 
     its final determination, attaching significant weight to 
     DHS' expertise.
       EPA would be responsible for reviewing and approving 
     vulnerability assessments and site security plans as well as 
     enforcing high-risk chemical facility security requirements. 
     Further, EPA would be responsible for inspecting water sector 
     facilities and would be able to authorize states to conduct 
     inspections and work with water systems to implement site 
     security plans. It is important to note that any decisions on 
     IST methods for the water sector would need to engage the 
     states given their primary enforcement responsibility for 
     drinking water and wastewater regulations.
       DHS would be responsible for ensuring consistency of high-
     risk chemical facility security across all 18 critical 
     infrastructure sectors.
       CFATS currently allows, but does not require, high-risk 
     facilities to evaluate transferring to safer and more secure 
     chemicals and processes. Many facilities have already made 
     voluntary changes to, among other things, their chemical 
     holdings and distribution practices (for example, completely 
     eliminating use of certain chemicals of interest). The 
     Administration supports, where possible, using safer 
     technology, such as less toxic chemicals, to enhance the 
     security of the nation's high-risk chemical facilities. 
     However, we must recognize that risk management requires 
     balancing threat, vulnerabilities, and consequences with the 
     cost to mitigate risk. Similarly, the potential public health 
     and environmental consequences of alternative chemicals must 
     be considered with respect to the use of safer technology. In 
     this context, the Administration has established the 
     following policy principles in regards to IST at high-risk 
     chemical facilities:
       The Administration supports consistency of IST approaches 
     for facilities regardless of sector.
       The Administration believes that all high-risk chemical 
     facilities, Tiers 1-4, should assess IST methods and report 
     the assessment in the facilities' site security plans. 
     Further, the appropriate regulatory entity should have the 
     authority to require facilities posing the highest degree of 
     risk (Tiers 1 and 2) to implement IST method(s) if such 
     methods enhance overall security, are feasible, and, in the 
     case of water sector facilities, consider public health and 
     environmental requirements.
       For Tier 3 and 4 facilities, the appropriate regulatory 
     entity should review the IST assessment contained in the site 
     security plan. The entity should be authorized to provide 
     recommendations on implementing IST, but it would not require 
     facilities to implement the IST methods.
       The Administration believes that flexibility and staggered 
     implementation would be required in implementing this new IST 
     policy. DHS, in coordination with EPA, would develop an IST 
     implementation plan for timing and phase-in at water 
     facilities designated as high-risk chemical facilities. DHS 
     would develop an IST implementation plan for high-risk 
     chemical facilities in all other applicable sectors.
       Because CFATS and MTSA both address chemical facility 
     security, there certainly should be harmonization, where 
     applicable, between these programs. We of course continue to 
     work closely within the Department with the Coast Guard to 
     review the processes and procedures of both programs. We also 
     support further clarification in the statute concerning the 
     type of NRC-regulated facilities exempt from CFATS.
       In the area of enforcement, we have expressed in our 
     testimony on H.R. 2868 the Department's support for 
     eliminating the requirement that an Order Assessing Civil 
     Penalty may only be issued following an Administrative Order 
     for compliance. This change would greatly streamline the 
     civil enforcement process, enhancing the Department's ability 
     to promote compliance from facilities. We also support 
     language that would authorize the Department to enforce 
     compliance by initiating a civil penalty action in district 
     court or commencing a civil action to obtain appropriate 
     relief, including temporary or permanent injunction. We note, 
     however, that the enforcement provisions this Committee has 
     proposed in H.R. 3258 would subject drinking water facilities 
     to a lower maximum penalty as compared to chemical facilities 
     regulated under H.R. 2868 if enforcement is pursued through a 
     civil penalty action in district court. This could result 
     in inconsistent enforcement between facilities.
       The Department notes that the Drinking Water System 
     Security Act of 2009 would give the Administrator discretion 
     in divulging information about the reasons for placing a 
     facility in a given tier. This provision is preferable to the 
     provision in Title I of HR 2868 which mandates that the 
     Department disclose specific information to tiered facilities 
     that could include classified information.
       The Department also notes that HR 3258 and HR 2868 contain 
     provisions that require

[[Page H12411]]

     covered facilities and government agencies to comply with all 
     applicable state and Federal laws and exclude from protection 
     ``information that is required to be made publicly available 
     under any law.'' While the Department supports current 
     requirements for facilities to report certain information to 
     Federal and state agencies under other statutes, DHS is 
     concerned that this language as written could increase the 
     likelihood that sensitive information could be 
     inappropriately disclosed to the general public. The 
     Department would like to work with the Committee to explore 
     what other Federal statutes and information might be affected 
     by this language in order to ensure that there are no 
     inconsistencies that could undermine the important goal of 
     protecting sensitive information from unwarranted disclosure, 
     while still protecting the public right-to-know about 
     information that may affect public health and the 
     environment, as embodied in these other statutes. We will 
     also consult with our partner agencies that administer the 
     affected Federal statutes.


                               Conclusion

       The Department is collaborating extensively with the 
     public, including members of the chemical sector and other 
     interested groups, to work toward achieving our collective 
     goals under the CFATS regulatory framework. In many cases, 
     industry has voluntarily done a tremendous amount to ensure 
     the security and resiliency of its facilities and systems. As 
     we implement the chemical facility security regulations, we 
     will continue to work with industry, our other Federal 
     partners, States, and localities to get the job done.
       The Administration recognizes that further technical work 
     to clarify policy positions regarding IST and water treatment 
     facility security is required. The policy positions discussed 
     above represent starting points in renewed dialogue in these 
     important areas. DHS and EPA staff are ready to engage in 
     technical discussions with Committee staff, affected 
     stakeholders, and others to work out the remaining technical 
     details. We must focus our efforts on implementing a risk-and 
     performance-based approach to regulation and, in parallel 
     fashion, continue to pursue the voluntary programs that have 
     already resulted in considerable success. We look forward to 
     collaborating with the Committee to ensure that the chemical 
     security regulatory effort achieves success in reducing risk 
     in the chemical sector. In addition to our Federal Government 
     partners, success is dependent upon continued cooperation 
     with our industry and State and local government partners as 
     we move toward a more secure future.
       Thank you for holding this important hearing. I would be 
     happy to respond to any questions you may have.

  Mr. THOMPSON of Mississippi. Mr. Chairman, I now recognize a member 
of the committee, the gentleman from New Jersey (Mr. Pascrell), for 2 
minutes.
  Mr. PASCRELL. Mr. Chairman, I rise in strong support as an original 
cosponsor of the Chemical Facility Anti-Terrorism Act of 2009. We must 
take extraordinary measures to defend America. This is common sense.
  I want to thank the chairman of Homeland Security for all of his work 
on the bill, as well as commending Chairman Oberstar and Chairman 
Waxman for coming together with one voice on this critical piece of 
legislation.
  It has to be clear to all of us that this bill is long overdue and 
that chemical security is one of the greatest vulnerabilities to our 
homeland security infrastructure. Both sides admit to that point.
  This bill reauthorizes the Department of Homeland Security's 
authority to implement and enforce the Chemical Facility Anti-Terrorism 
Standards which are currently set to expire in October of 2010. In 
fact, the bill strengthens these standards in a number of significant 
ways.
  Now, let's get to the meat and potatoes of what we will be debating 
this afternoon--and getting the amendments whenever the heck that 
happens.
  The State of New Jersey is home to the most dangerous 2 miles in 
America--the FBI has pointed this out many times--along the Jersey 
Turnpike. Because it is the most densely populated State, with a very 
large chemical industry presence, I am proud to say that the State has 
adopted some of the strongest chemical security standards in the 
Nation, and it's time the Federal Government caught up. That is why I 
am surprised and deeply disappointed that there are Members of this 
body who actually hope to strip the State preexemption language out of 
this bill. We need to raise Federal standards, as we do in this bill, 
and not force States to lower their standards.
  The Acting CHAIR (Mr. Serrano). The time of the gentleman has 
expired.
  Mr. THOMPSON of Mississippi. Mr. Chairman, I yield the gentleman 1 
additional minute.
  Mr. PASCRELL. I am also very disappointed that the chemical industry 
and Members of this body continue to raise unnecessary fears about the 
inherently safer technology assessments. We have gone over this in 
testimony since 2006.
  The State of New Jersey has rightfully required chemical facilities 
to assess for safer technology assessments, and believe it or not, our 
State is not only safer for it, but the sky hasn't fallen on the 
chemical companies in New Jersey. The truth is that this bill is not 
only the best thing for our homeland security, but also the best thing 
for the chemical industry, because assuring safety and greater 
efficiencies is a tremendous cost saver in the long run.
  Mr. Chairman, this should be a bipartisan issue. We say that 
protecting the American people is our number one priority. Now is the 
moment to prove it.
  I urge bipartisan passage of this bill.
  Mr. DENT. Mr. Chairman, I appreciate this opportunity to address this 
legislation, and I want to thank Ranking Member King for rubbing it in 
on the Phillies. I know you're very pleased about the Yankees, but at 
least the Phillies beat the Mets. That's all I have to say today about 
that. So with that, congratulations to the Yankees.
  Again, this is a very important piece of legislation, as we all know. 
I have very serious concerns about it for a number of reasons, but it 
should be remembered that in 2006, we, Congress, enacted a law that 
gave the Department of Homeland Security the authority to regulate 
chemical facilities.
  You're hearing a lot of talk today about inherently safer 
technologies, and I would like to get into that in just a moment and 
what it means. I should also point out as well that the State of New 
Jersey does require IST assessments, but not implementation of IST, 
which is quite different. We are going much further than the State of 
New Jersey in this legislation.
  It's important to point out, too, that I certainly support the 
Department's efforts to secure chemical facilities, but unfortunately, 
I think this legislation is riddled with costly provisions that go 
beyond the underlying security purpose of the bill.
  Currently, there are vulnerability assessments that the Department 
must do under the current regulations. There are about 6,000 
vulnerability assessments that must be done. So far, 2,000 have been 
completed, leaving about 4,000 vulnerability assessments that remain. 
Adding these IST assessments will be enormously costly.
  I should also point out that the Department of Homeland Security has 
no one on staff who is an expert in these inherently safer 
technologies, so I wanted to point that out for the record.
  We've had a lot of testimony, too, and I want to say something about 
inherently safer technologies. Testimony was referenced. There was a 
statement from a Scott Berger, who is a director for the Center for 
Chemical Process Safety. Mr. Berger is an expert in inherently safer 
technology and inherently safer design. And as the organization that 
developed the most widely used reference addressing inherently safer 
design, inherently safer processes, and lifecycle approach, they are 
the leaders. That was in his testimony. And he said, What is inherently 
safer design, from his testimony back in June of 2006. He said, 
Inherently safer design is a concept related to the design and 
operation of chemical plants, and the philosophy is generally 
applicable to any technology. Inherently safer design is not a specific 
technology or set of tools and activities at this point in its 
development. It continues to evolve, and specific tools and techniques 
for application of inherently safer design are in the early stages of 
development. And he goes on.
  But essentially what he's saying is inherently safer technology is a 
conceptual framework. It's not a technology; it's an engineering 
process. Unfortunately, it seems that too many in Congress are trying 
to act as chief engineers. We are essentially trying to tell people how 
to produce certain types of chemicals and what chemicals to use.
  These are very technical issues. It will be very costly to implement. 
It will affect jobs in this country, and with unemployment rates 
approaching 10 percent nationally, I am very concerned about the impact 
on this.

[[Page H12412]]

  I happen to represent a district, the 15th District of Pennsylvania. 
I have a company called Air Products and Chemicals. About 4,000 people 
work there. They spend their time designing and building chemical 
plants in this country and throughout the world. They know a bit about 
this. And I am extremely concerned that those types of jobs will be put 
at risk because these chemical plants will be built, but they will not 
be built here. They will be built elsewhere to produce the chemicals 
that we need every day in our lives. So that is something that I just 
feel we have to talk about.
  Mr. PASCRELL. Will the gentleman yield?
  Mr. DENT. I will yield briefly.

                              {time}  1545

  Mr. PASCRELL. My good friend from the 15th District of Pennsylvania, 
you're not suggesting that each State should decide for itself as to 
what the standard for chemical security should be, are you?
  Mr. DENT. No
  Mr. PASCRELL. You're not. Then what are you suggesting?
  Mr. DENT. I am suggesting that we, as a country, maintain the 
regulations.
  Mr. PASCRELL. Which regulations?
  Mr. DENT. Reclaiming my time, the ones that are currently in place. 
The regulations that we just extended for 1 year.
  About a month ago, when we passed the Homeland Security 
Appropriations Act, we extended the current regulations for 1 year. I 
think we should extend them for another 2 years. Let those regulations 
take effect. Let's implement them. We have agreement. There was a great 
deal of opposition to this legislation by farmers, manufacturers and 
others who are going to be saddled with these costs. I have to point 
this out:
  Inherently safer technology deals with workplace safety issues and 
how you develop the product or the process. It doesn't deal with 
securing the plant--you know, hiring more guards or building 
fortifications to secure a plant. That deals with safety as opposed to 
security. I want to make that distinction because we all agree--you and 
I agree--that we need to make sure that these plants are secure, but 
inherently safer technology is really not about plant security, and I 
think we have to be clear about that.
  I reserve the balance of my time.
  Mr. THOMPSON of Mississippi. Mr. Chairman, before I yield to the 
gentleman from Texas, I would like to say that this is a security bill. 
A good security bill makes all of us safe. What we're looking at now is 
an opportunity to go into facilities that don't, in many instances, 
have security assessments. If we make security assessments, then we 
will identify those vulnerabilities those facilities have and help them 
correct them. Bad people would love to get into facilities with 
vulnerabilities and do harm. What we're trying to do is help those 
facilities create the capacity to be secure. That's all we're doing.
  Mr. Chairman, I yield 2 minutes to the gentleman from Texas (Mr. Al 
Green), who is a member of the committee.
  Mr. AL GREEN of Texas. I thank Chairman Thompson for yielding me the 
time.
  Mr. Chairman, I rarely use the personal pronoun ``I.'' I don't like 
using it because rarely do we accomplish things by ourselves; but to 
thank Chairman Thompson, it is appropriate that I use this personal 
pronoun for he was the person who helped us to put a provision into 
CFATS which deals with the administration of facilities along ports. In 
Houston, Texas, we have 25 miles of ports that we have to contend with.
  Thank you, Mr. Thompson. Thank you, Mr. Chairman.
  Let me say this: proactive measures can prevent reactive remediation. 
This is a proactive measure that we are taking to prevent having to do 
something that will help us after an event has occurred, and it's 
important to note that this is not just about chemical facilities.
  There are many people who would say, Well, I don't have a chemical 
facility in my neighborhood. It really doesn't concern me. It doesn't 
impact me.
  You do have drinking water in your neighborhood, however. This 
legislation deals with drinking water and with wastewater treatment 
facilities. It is important that wastewater treatment facilities that 
are in every neighborhood be properly secured, and it is of utmost 
importance that drinking water be secured. That's what this piece of 
legislation addresses as well. I don't want it said on my watch that we 
had an opportunity to take some preventative measures and that we 
failed to do so such that somebody's child, somebody's husband or wife, 
that somebody was harmed when we had it within our power to prevent it.
  This is good, sound legislation. It is a proactive approach to 
prevent us from having to take some sort of remediation after the fact.
  The Acting CHAIR. The time of the gentleman has expired.
  Mr. THOMPSON of Mississippi. Mr. Chairman, I yield 1 additional 
minute to the gentleman.
  Mr. AL GREEN of Texas. Finally, citizen lawsuits are appropriate 
because citizens are near the problem. They know what's not going on.
  Why can't we put citizens in the loop of protecting their 
communities?
  Yes, people can sue, but there are also means by which persons who 
sue can be removed from the dockets of courts. Anybody can sue. You can 
walk into any court and sue right now for anything that you want. You 
don't prevail just because you file a lawsuit. Citizens can help us to 
help protect our communities by having this opportunity to sue.
  It is a good piece of legislation, and I thank the chairman for his 
hard work with the other committees of jurisdiction to promulgate this 
legislation.
  Mr. DENT. Mr. Chairman, may I inquire as to how much time I have 
remaining.
  The Acting CHAIR. The gentleman from Pennsylvania has 4 minutes 
remaining. The gentleman from Mississippi has 5 minutes remaining.
  Mr. DENT. Mr. Chairman, I yield 2\1/2\ minutes to the ranking member 
of the Committee on Agriculture, the distinguished gentleman from 
Oklahoma (Mr. Lucas).
  (Mr. LUCAS asked and was given permission to revise and extend his 
remarks.)
  Mr. LUCAS. Mr. Chairman, I rise in opposition to H.R. 2868, the so-
called Chemical and Water Security Act of 2009.
  It no longer surprises me that the Democratic leadership is, once 
again, racing to impose more government mandates on our farmers, 
ranchers and small businesses without considering the economic impact 
of their actions. From cap-and-trade to food safety and soon to health 
care, rushing ill-conceived, ill-timed legislation through Congress has 
shamefully become the norm around here.
  In renaming the bill the Chemical Facility Anti-Terrorism Act to the 
Chemical and Water Security Act, I appreciate that the authors of the 
bill at least acknowledge that it has nothing to do with protecting our 
country from acts of terrorism but, rather, that it has everything to 
do with pacifying the extreme environmental lobby.
  Some have said that agriculture should not be concerned about this 
legislation. Well, if that were true, then a coalition of agriculture 
groups, which includes the American Farm Bureau Federation, would not 
be circulating a letter to all Members of Congress urging them to vote 
against it.
  Let me be clear: this bill will have a deep and negative impact on 
the agriculture industry.
  Under the current regulatory framework, which I would support to 
reauthorize, farmers would have an extension appropriate to the small 
risks they impose. Under those regulations, chemical facilities are 
treated fairly and work with the Department of Homeland Security in a 
cooperative manner to enhance site security.
  This legislation destroys that relationship. This legislation 
contains absolutely no authority for the Secretary of Homeland Security 
to grant extensions to farmers for the future. In fact, under this 
bill, there is no authority for the Secretary to provide for the 
appropriate risk-based treatment of farmers or any other 
disproportionately affected groups when it reissues its regulations. 
That's not all.
  Manufacturers and suppliers of agricultural inputs, like fertilizers 
and pesticides, will also not be exempt from the nonsecurity-related 
provisions of the bill. Such provisions will jeopardize the 
availability of those widely used

[[Page H12413]]

and lower-cost agricultural inputs that are essential for agriculture 
production.
  In essence, this sets up a scenario where input supplies will be 
limited, where costs will skyrocket and where U.S. food security and 
the livelihoods of our farmers will be threatened.
  Beyond devastating the agriculture industry, this bill does not 
provide any additional security against acts of terrorism, which is 
supposed to be its purpose. National security will actually be 
compromised since provisions of the bill will allow citizen lawsuits in 
the national and homeland security arena.
  The Acting CHAIR. The time of the gentleman has expired.
  Mr. DENT. I yield the gentleman an additional 30 seconds.
  Mr. LUCAS. Mr. Chairman, this is an irresponsible and carelessly 
crafted piece of legislation that will impose mandates on family farms, 
small businesses, hospitals, and universities. It expands the 
environmental legal framework under the guise of security; and it fails 
to preserve, let alone expand and protect, current security protections 
for our country.
  I urge my colleagues to oppose the bill.
  Mr. THOMPSON of Mississippi. Before I recognize the gentlewoman from 
California, let me say that nothing in this bill prevents the Secretary 
from using her discretion in continuing the exemption for farmers. I 
will put my credentials from agriculture up against anyone's in this 
body. I represent a rural district. Nothing I would do in this body 
would harm agriculture, and I think if you check my voting record, you 
will absolutely see that.
  Also for the record, to the gentleman from Oklahoma, let me say that, 
before any of these things are done, the Department has to see if it's 
technically feasible; they have to see if it's cost effective, and if 
it lowers the risk at the facility.
  So all of those concerns you raise are justified, but they are 
addressed in the bill. So I would say that, between the time for 
general debate and when we start voting, if you would go back and look 
at that, I think some of your concerns will be resolved.
  I yield 2 minutes to a member of the committee, the gentlewoman from 
California (Ms. Richardson).
  Ms. RICHARDSON. Mr. Chairman, I rise today to express my strong 
support for the Chemical and Water Security Act of 2009.
  I would like to thank Chairman Thompson for his hard work in crafting 
this vital piece of legislation.
  I support this legislation because it will enhance the security of 
our Nation in terms of chemicals, drinking water, and wastewater 
facilities. This legislation lessens the vulnerability of our most 
critical sectors, one of which I live in.
  More specifically, I rise today to speak to a provision that I 
offered which protects workers who identify and report violations 
affecting the safety and security of chemical facilities. When it comes 
to the security of our facilities, we should not leave our first 
preventers at the door. We depend upon them to be competent, to be 
vigilant, and to be proactive. We owe them the assurance that they will 
not be penalized for doing their jobs properly. That is why I am 
pleased that the bill also incorporates a provision that requires the 
facility owners to certify in writing their knowledge of protections 
for whistleblowers.
  So, Mr. Chairman, when we look at H.R. 2868, the answers are really 
clear. All you have to look back at is the poison gas leak of a Union 
Carbide plant in 1984 which killed 10,000 people in 72 hours, and that 
was an accident. Imagine the economic and strategic damage that could 
be done to our country.
  Let's talk about my district, the 37th. I am a proud Representative 
of the Joint Water Pollution Control Plant in Carson, California. That 
wastewater treatment plant switched from using chlorine gas to liquid 
bleach disinfection. We need to do this throughout the country, and 
this legislation will enable us to do that.
  I applaud Chairman Thompson for his work and for working with our 
other colleagues on the other committees.
  I urge my colleagues on the other side: we can't wait. We can't wait 
anymore because our constituents are in danger.
  The Acting CHAIR. The Chair will note that the gentleman from 
Pennsylvania has 1 minute remaining, and the gentleman from Mississippi 
has 2 minutes remaining.
  Mr. DENT. Mr. Chairman, in conclusion to this discussion, I must 
restate my reasons for opposition to this bill.
  There is not one person in the Department of Homeland Security who 
has any expertise in inherently safer technology. They are not prepared 
to deal with this mandate. I am concerned that much of this bill is, in 
fact, not focusing on security at all but is, rather, focusing on 
Federal mandates that may force our small businesses and farms to shed 
American jobs, further harming our vulnerable economy.
  I have a letter here from 27 different organizations, including the 
Chamber of Commerce, the Farm Bureau and the Fertilizer Institute, 
which oppose the underlying legislation. They said: ``We continue to 
oppose the bill due to the detrimental impact it will have on national 
security and economic stability.''
  A lot has been said about chemical facilities, but this bill is not 
so much about chemical facilities as it is about facilities with 
chemicals, and those facilities include hospitals, colleges and 
universities, and 3,630 employers with fewer than 50 employees. These 
are the people who are going to be impacted, and jobs will be lost. 
With unemployment approaching 10 percent, I don't think now is the time 
to impose this kind of a mandate, which will not have any real security 
benefit to the American people.
  So, with that, I would like to submit this letter for the Record from 
the various organizations in opposition to this legislation. Let's let 
the current regulations be implemented. Let's extend them for that 1 
year and beyond.

                                                 November 3, 2009.
     Hon. Nancy Pelosi,
     Speaker, House of Representatives,
     Washington, DC.
     Hon. John Boehner,
     Republican Leader, House of Representatives,
     Washington, DC.
       Dear Speaker Pelosi and Republican Leader Boehner: We write 
     to you today to express our opposition to H.R. 2868, the 
     ``Chemical Facility Anti-Terrorism Act of 2009'' (CFATS). 
     Despite the changes made to this legislation in the Energy 
     and Commerce and Homeland Security Committees, we continue to 
     oppose the bill due to the detrimental impact it will have on 
     national security and economic stability.
       Specifically, we strongly object to the Inherently Safer 
     Technology (IST) provisions of this legislation that would 
     allow the Department of Homeland Security (DHS) to mandate 
     that businesses employ specific product substitutions and 
     processes. These provisions would be significantly 
     detrimental to the progress of existing chemical facility 
     security regulations (the ``CFATS'' program) and should not 
     be included in this legislation. DHS should not be making 
     engineering or business decisions for chemical facilities 
     around the country when it should be focused instead on 
     making our country more secure and protecting it from 
     terrorist threats. Decisions on chemical substitutions or 
     changes in processes should be made by qualified 
     professionals whose job it is to ensure safety at our 
     facilities.
       Furthermore, forced chemical substitutions could simply 
     transfer risk to other points along the supply chain, failing 
     to reduce risk at all. Because chemical facilities are 
     custom-designed and constructed, such mandates would also 
     impose significant financial hardship on facilities 
     struggling during the current economic recession. Some of 
     these forced changes are estimated to cost hundreds of 
     millions of dollars per facility. Ultimately, many facilities 
     would not be able to bear this expense.
       Thank you for taking our concerns into account as the 
     Committee continues to consider the ``Chemical Facility Anti-
     Terrorism Act of 2009.'' We stand ready to work with the 
     Committee and Congress towards the implementation of a 
     responsible chemical facility security program.
           Sincerely,
         Agricultural Retailers Association;
         American Farm Bureau Federation;
         American Forest & Paper Association;
         American Petroleum Institute;
         American Trucking Associations;
         Chemical Producers and Distributors Association;
         Consumer Specialty Products Association;
         The Fertilizer Institute;
         Institute of Makers of Explosives;
         International Association of Refrigerated Warehouses;
         International Liquid Terminals Association;
         International Warehouse Logistics Association;
         National Agricultural Aviation Association;
         National Association of Chemical Distributors;

[[Page H12414]]

         National Association of Manufacturers;
         National Grange of the Order of Patrons of Husbandry;
         National Mining Association;
         National Oilseed Processors Association;
         National Pest Management Association;
         National Petrochemical and Refiners Association;
         National Propane Gas Association;
         North American Millers' Association;
         Petroleum Equipment Suppliers Association;
         U.S. Chamber of Commerce.

  Mr. Chairman, I yield back the balance of my time.
  Mr. THOMPSON of Mississippi. Mr. Chairman, I yield 1 minute to a 
member of the committee, the gentlewoman from Houston, Texas (Ms. 
Jackson-Lee).

                              {time}  1600

  Ms. JACKSON-LEE of Texas. I thank the chairman of the committee for 
his leadership.
  I'm pleased, as the Chair of the Transportation Security and Critical 
Infrastructure Protection Subcommittee, to rise to support this 
legislation and particularly highlight for my colleagues the importance 
of legislation and language that I put in the bill in our subcommittee. 
One dealing with whistleblower protections that requires the DHS 
Secretary to establish and process and to accept information from 
whistleblowers. We cannot be a secure Nation if people don't feel that 
they have the ability to tell the truth.
  I'm very pleased that language is in the bill that reduces the 
consequence of a terrorist attack by requiring the use of inherently 
safer technologies, which is crucial as we begin to look at chemical 
facilities and wastewater facilities. In addition, the aspect of the 
citizen enforcement that allows a citizen to file suit against the DHS, 
not against a private company, that speaks to the issue of making sure 
that the Department of Homeland Security is in compliance.
  Then, of course, I think it is important to note, as we look at 
background checks, that we also are reminded of people's right to work. 
Title I requires the Department of Homeland Security Secretary to issue 
regulations to require tiered facilities to undertake background checks 
for the safety of the American people.
  This is a legislative initiative that is overdue. I ask my colleagues 
to support this legislation.
  Mr. THOMPSON of Mississippi. Mr. Chair, I yield myself the balance of 
my time.
  As you've heard, Mr. Chair, this legislation before us today is 
critical to the security of our Nation and is deserving of the full 
support of this House.
  With that, Mr. Chair, I yield back the balance of my time.
  The Acting CHAIR. The gentleman from Massachusetts (Mr. Markey) and 
the gentleman from Texas (Mr. Barton) each are recognized for 15 
minutes.
  The Chair recognizes the gentleman from Massachusetts.
  Mr. MARKEY of Massachusetts. Mr. Chairman, I yield myself such time 
as I may consume.
  I rise in support of the Chemical and Water Security Act, legislation 
that is a product of about 9 months of effort by the House Energy and 
Commerce, Homeland Security, and Transportation and Infrastructure 
Committees. We've worked as partners towards the final construction of 
this legislation.
  Now, I come from a district that was home to some of the 9/11 
terrorists before they launched their attacks, before they walked in 
our streets, scoped out our airports, rehearsed their mission. The 
September 11th attacks demonstrated that America's very strengths, its 
technology, could be turned into weapons of mass destruction to be used 
against us.
  Mohammed Atta and the other nine terrorists that hijacked those two 
planes at Logan Airport on September 11th were roaming around my 
district for about a year trying to determine how they could exploit 
deficiencies in technology. And when they found it, they struck. And 
more than 150 people were on those planes flying from Logan towards New 
York City. It is something that is etched forever in my mind, and I am 
committed to ensuring that it is not repeated.
  Since 9/11, as a result of what happened on that day, we have enacted 
legislation to secure aviation, to secure maritime, rail, mass transit, 
nuclear energy, and other sectors. But what we have yet to do is act on 
comprehensive legislation to secure the facilities that make or store 
dangerous chemicals. Instead, we have relied on an incomplete and an 
adequate legislative rider that was inserted into an appropriations 
bill in 2006 that amounted to little more than a long run-on sentence.
  The chemical sector represents the best of American technological 
might. Its products help to purify our water; make the microchips used 
in our computers, cell phones, and military technologies; refine our 
oil; grow our food. But these same chemicals could also be turned into 
a weapon of mass destruction, something we are reminded of just 
recently when we learned of a disrupted terrorist plot to use hydrogen 
peroxide purchased in Colorado for a bomb planned to be detonated in 
New York.
  While the Department of Homeland Security has done an admirable job 
of implementing the rather hastily crafted legislative rider from 2006, 
the bill before us today closes the loopholes left open by that 
provision that could be exploited by terrorists.
  The bill contains provisions that represent more than 5 years of work 
on my part to ensure that facilities containing toxic chemicals switch 
to safer processes or substances only when it is technologically and 
economically feasible to do so. Terrorists cannot blow up what is no 
longer there. The language in this bill represents a true compromise 
that the Energy and Commerce Committee developed in close consultation 
with and using considerable input from the American Chemistry Council. 
Only the riskiest facilities would be subject to this provision. The 
Department of Homeland Security puts the number at between 100 and 200 
out of a total of more than 6,000 regulated facilities.
  Under 3 percent of the chemical facilities in our country would be 
covered under this legislation, the most dangerous, the most 
vulnerable, the most likely targets by al Qaeda in our country. And we 
know that al Qaeda has metastasized around the world. They are still 
trying to find the most vulnerable way that our country can be 
exploited, and it is our job to make sure that we pass the legislation 
that closes those vulnerabilities.
  The American Chemistry Council and the Society of Chemical 
Manufacturers and Affiliates have endorsed the citizen enforcement 
provisions which were added in the Energy and Environment Subcommittee 
markup. These provisions remove all lawsuits against private companies, 
a change that the Chamber of Commerce has also deemed positive. The 
bill retains the ability for citizens to bring suit only against the 
Department of Homeland Security for failure to perform nondiscretionary 
duties and against Federal facilities for failure to comply with 
orders. It also establishes a citizen petition process to give citizens 
an official forum to report alleged security problems at private 
facilities to the Department of Homeland Security.
  The legislation closes what both the Bush and Obama administrations 
have called a ``critical security gap'' for drinking water and 
wastewater facilities that were exempted from the 2006 law and the 
powers given to the Department of Homeland Security to close homeland 
security gaps that can be exploited by al Qaeda. In this bill, we grant 
the Environmental Protection Agency authority to establish a parallel 
security program for the water sector, consistent with the Bush and 
Obama administrations' views that EPA should be the lead regulator for 
these facilities.
  Like the chemical facility language, drinking and wastewater 
facilities that use and store chemicals in amounts that could cause 
injury in the event of a release must assess whether they can switch to 
safer chemicals or processes and that these processes may be required 
by State regulators only if, and I repeat, only if they are 
economically and technologically feasible and if their adoption will 
not impair water quality. The Blue-Green coalition of environmental and 
labor organizations, the Association of Metropolitan Water Agencies, 
whose member utilities provide safe drinking to more than 125 million 
Americans, and the Association of California Water Agencies have all 
endorsed the drinking water title of this bill.

[[Page H12415]]

  This legislation is a compromise. We engaged with all of the 
stakeholders and crafted language that addresses all of the concerns. 
And it is notable that even the Chamber of Commerce has said that it 
``recognizes that several provisions have been reworked and modified to 
address concerns raised by the business community.''
  This, ladies and gentlemen of the House, is still a glaring 
regulatory black hole that we must ensure is closed. We cannot allow al 
Qaeda to exploit this weakness that exists in the security that we 
place around the chemical facilities in our country. We know that it is 
at or near the very top of the al Qaeda target terrorist list. This 
legislation closes that loophole. It ensures that we are going to 
provide the protection for the American public from that attack, which 
we know somewhere in the world al Qaeda is planning if they can only 
find the way to exploit a weakness in our defense.
  Mr. Speaker, I reserve the balance of my time.
  Mr. BARTON of Texas. Mr. Speaker, first, let me express my heartfelt 
condolences to my friend from Massachusetts on the Yankees' ascendancy 
last night. I am one of many, many, many people in this country who, 
while I'm not a Red Sox fan, do not put me down in the Yankee Blue 
column. So maybe my Rangers one of these days will come up and at least 
tussle with the Red Sox and the Yankees for the American League 
pennant.
  Mr. Speaker, I rise in opposition to this bill. Before I go into my 
prepared remarks, I think it's educational to explain to the body what 
we're actually marking up.
  We had two bills that came out of the Energy and Commerce Committee, 
and I would assume out of the Homeland Security Committee that were 
marked up and subject to debate. We had a bill in the Transportation 
Committee that, from what I can tell, was never marked up, and we now 
have merged the two work products from Homeland Security, the two work 
products from Energy and Commerce, and a work product from the 
Transportation Committee that was never publicly marked up and changed 
them in this bill and then it's going to be yet changed again in the 
manager's amendment in the nature of a substitute tomorrow so that the 
bill that we will actually be voting on is a bill that has never seen 
the light of day as a single bill.
  Now, on the surface all these bills, or this bill, this merged bill, 
should pass 435-0. The Chemical and Water Security Act sounds like 
something that's a suspension calendar bill. The problem is, Mr. 
Speaker, that the bill before us has almost nothing to do with security 
in the sense of protection against terrorism. It has everything to do 
with what I consider to be radical environmentalism under the guise of 
homeland security. Let me elaborate on that in the written remarks.
  The approach in this legislation is deeply flawed. The overreaching 
problem is simply this: Protecting chemical facilities and drinking 
water systems from terrorist attacks should not be done under the 
umbrella of environmental law. If it's about stopping terrorism, we 
ought to be talking about computer security and fiscal security and 
prevention and terrorism tracking and all of the things that really 
make these facilities safer against terrorism. Instead, we're debating 
something called IST, inherently safer technology, which is a chemical 
process, a manufacturing process, so that you process the water, you 
process the chemicals in a fashion that is safer from an environmental 
standpoint or perhaps from a safety standpoint for the workers in the 
surrounding community.

                              {time}  1615

  Mr. Chair, that has nothing to do with protecting against terrorism. 
H.R. 2868 goes beyond the reasonable requirements that have been the 
core of many Homeland Security programs for several sectors. 
Vulnerability assessments, site security plans, emergency response 
plans, these are real things that should be done and are being done to 
protect our chemical and water facilities against terrorism, but we're 
substituting in this bill for this IST and these environmental 
requirements that really have nothing to do with security.
  We have an existing security regime in place for chemical facilities 
and water systems, including a chemical security program that the 
Congress passed 3 years ago, which is still in the process of being 
implemented by the Department of Homeland Security. My good friend from 
Massachusetts talked about how that was put into law back in 2006 and 
seemed to intimate that it was not thoughtfully done. I would assure my 
friend that it was very thoughtfully done.
  The Energy and Commerce Committee at that time had primary 
jurisdiction, and my concern, as chairman of the committee at that 
time, was that we really shouldn't do something on an appropriations 
bill. We should do it through the regular process. But because it came 
late in the year, we did yield to the appropriators and put it in the 
omnibus bill. But even doing that, we spent weeks debating and working 
with the Homeland Security Committee and the stakeholders to come up 
with what, today, I think is a better process than what is in this 
bill.
  It is considered that the existing chemical plant security program 
that we already have is going to cost $18.5 billion in public and 
private investment right now. The reasonable thing to do, in my 
opinion, is to let that program be implemented before we scrap it with 
a totally new concept from this Congress. We need to know what the 
deficiencies, if any, are in the existing program before we move to a 
brand new program and a brand new concept.
  This legislation refuses to honor common sense when simplistic 
ideology seems to offer a quick return on a political investment. More 
to the point about this being an environmental bill is the fact that I 
am struck by some of the key words used in the entire legislation to 
address terror prevention. For example, page 10, line 20 of the 
amendment in the nature of a substitute--and I want to be very clear 
about this--defines a ``chemical facility terrorist incident'' as a 
``release of a substance of concern.'' If you look up the definition of 
``release,'' starting on page 12, line 19, that mirrors the exact 
language of the toxic waste cleanup law, which we call Superfund, right 
down to making its covered universe of ``hazardous substances, 
pollutants, or contaminants.''
  Mr. Chair, this means that the Department of Homeland Security is now 
going to treat an environmental accident or an environmental cleanup as 
a terrorist incident. Now, I don't want to imply that an environmental 
accident is not a serious issue that needs to be dealt with seriously, 
but it's not a terrorist attack if you have a spill of a toxic chemical 
at a chemical facility. It's an accident. It's a problem. It needs to 
be dealt with. There are environmental issues. But it is not a 
terrorist incident. It is not a terrorist attack. But if this bill 
becomes law and you have that type of an accident, it is going to be a 
terrorist incident, and it has to be considered by the Department of 
Homeland Security. I think that is ludicrous. I think it's wrong. I 
think it is shortsighted, and I think it is unnecessary.
  I'm an industrial engineer. I understand, to some extent, plant 
processes and chemical processes and things like that. I think we're 
very blessed in this country to have a robust chemical industry, much 
of which is located in the States of Texas and Louisiana on the Texas 
and Louisiana gulf coast. If this bill becomes law, my projection is 
that within 10 years or so, many of those facilities are going to be 
closed down and inoperable, and tens of thousands of jobs are going to 
be lost because our chemical industry is simply going to move offshore. 
They're not going to stay under a legislative proposal that, on the 
surface of it, is almost impossible to be implemented.
  I am not convinced that there is a single, true, security-enhancing 
thing about the specific requirements in this bill, and I know for 
certain that we're already making these facilities do types of things 
under the EPA's risk assessment program and OSHA's process safety 
management program that this bill then doubles down on.
  We have existing laws and existing processes to handle the issues 
these bills really do handle. The concept is an engineering process 
philosophy. Congress has repeatedly heard expert testimony that the 
provisions in section 2111 of this bill are expensive, hard to define 
because of significant technical challenges, and very tough, if not 
impossible, to enforce.

[[Page H12416]]

  Further, even if these problems did not exist, the Department of 
Homeland Security does not even have the professionals it needs to make 
informed decisions on how to operate the program or give guidance to 
those who have to implement the program. Let me repeat. This 
legislation is not directed at preventing terrorist attacks. It is, 
instead, directed at setting up a regulatory regime under which the 
Department of Homeland Security and EPA employees, who really don't 
know much about production processes at the Nation's chemical and 
drinking water facilities, are going to force and have to make key 
technical decisions--not security decisions--technical, manufacturing, 
process decisions about those processes.
  As if this were not enough, the legislation weakens the protections 
traditionally given to high-risk security information by treating need-
to-know information like environmental right-to-know data. I am for 
transparency in government, but why should we give the terrorists that 
we're trying to prevent from attacking these facilities almost an open 
book to go in and, under those open meeting requirements and open 
record requirements, get information that could allow them to concoct 
schemes to destroy those various facilities?
  These provisions are not just troubling to me because this 
legislation will allow for more information, ironically, to be made 
publicly through litigation but, more so, because it's going to be very 
hard to penalize people that reveal this information to the public. As 
one of my Democrat friends said in the committee markup in the Energy 
and Commerce Committee, ``Loose lips sink ships,'' and there are few 
repercussions under this bill for somebody with loose lips.
  I could go on and on, Mr. Chairman, but let me simply say, this is a 
bad bill at the wrong time. It's unnecessary. I hope that we can have a 
bipartisan vote against it, and I hope that we can defeat it.
  I do want to say one good thing about the process. Mr. Waxman and Mr. 
Markey did have a subcommittee markup. They did have a full committee 
markup, and a number of amendments have been made in order by the Rules 
Committee for the minority to try to improve the bill, and for that, I 
am thankful.
  Mr. Chair, I ask unanimous consent to yield the balance of my time to 
my good friend from Florida (Mr. Stearns) to control.
  The Acting CHAIR (Mr. Tierney). The gentleman from Florida will be 
recognized in that event.
  Mr. MARKEY of Massachusetts. Mr. Chair, will you inform us as to how 
much time is remaining on either side.
  The Acting CHAIR. The gentleman from Massachusetts (Mr. Markey) has 7 
minutes remaining, and the gentleman from Texas (Mr. Barton) has 3 
minutes remaining.
  Mr. MARKEY of Massachusetts. Mr. Chair, I yield 5 minutes to the 
chairman of the full committee, the gentleman from California (Mr. 
Waxman).
  Mr. WAXMAN. Mr. Chairman, I rise in strong support of H.R. 2868, the 
Chemical and Water Security Act of 2009. This legislation resolves some 
important unfinished business from 9/11. We learned on that terrible 
day how determined terrorists can turn our critical assets into weapons 
of mass destruction. Despite that wake-up call, we've been slow and 
inconsistent in securing our Nation's chemical facilities and water 
systems from terrorist attack. Passing this legislation will enhance 
our Homeland Security, improve the safety of our workforce, and help 
protect our public health.
  First, the bill strengthens security at America's chemical plants by 
providing permanent authority for the Department of Homeland Security's 
chemical facility antiterrorism standard program. This legislation 
would establish a number of security enhancements, including requiring, 
for the very first time, that covered chemical facilities assess 
whether there are any safer chemical processes or technologies that 
they can adopt that would reduce the consequences of a terrorist attack 
against that facility. This bill would also authorize the Secretary of 
Homeland Security, under certain circumstances, to require that the 
riskiest chemical facilities adopt the safer chemical processes or 
technologies when necessary to reduce the likelihood that the facility 
will be attacked.
  The bill also provides chemical facilities with an appeals process if 
they disagree with the DHS Secretary's determination. We crafted this 
provision in close consultation with considerable input from the 
largest chemical industry association, the American Chemistry Council.
  Second, the bill establishes minimum security standards at drinking 
water and wastewater facilities, closing what the Bush and Obama 
administrations agree is a critical security gap. Under this bill, for 
the first time, covered water systems that use a certain amount of 
dangerous chemicals will have to assess whether they can switch to 
safer chemicals or processes to protect their employees, their 
neighbors, and the communities they serve.
  We worked closely with the water sector to craft a bill that meets 
several important policy goals--clean and safe water and homeland 
security. I am pleased that the associations representing drinking 
water and wastewater utilities have endorsed the bill. These endorsing 
associations include the Association of Metropolitan Water Agencies, 
the American Public Works Association, the National Association of 
Clean Water Agencies, and the Association of California Water Agencies.
  Third, this bill gives chemical facility workers much-needed 
protection by ensuring that chemical facilities and water systems 
involve their workers in developing plans to address any vulnerability 
to terrorist attack. Not only are workers the first line of defense 
against any attack, they would also be the first injured in the event 
of a chemical release. That's why this legislation is strongly 
supported by labor organizations, including the United Steelworkers, 
United Auto Workers, Communications Workers of America, and the 
International Chemical Workers Union Council.
  And finally, this bill improves current law by creating a citizen 
enforcement tool that citizens can use to protect their communities 
when DHS fails to perform its nondiscretionary duties. It also allows 
States to take additional action to protect their communities from 
terrorists if they find it to be necessary.
  This bill is the product of careful compromise, and it was drafted in 
close consultation with key stakeholders from government, the chemical 
industry, the water utilities, labor and other groups. That's why it 
has been endorsed by a broad coalition of labor and environmental 
organizations in addition to many water industry associations. I am 
proud of the balance we have struck.
  I urge all Members to support H.R. 2868 to close these critical 
security gaps once and for all.
  I rise in strong support of H.R. 2868, ``The Chemical and Water 
Security Act of 2009.''
  This legislation resolves some important unfinished business from 9/
11. We learned on that terrible day how determined terrorists can turn 
our critical assets into weapons of mass destruction. Despite that 
wake-up call, we've been slow and inconsistent in securing our nation's 
chemical facilities and water systems from terrorist attack. Passing 
this legislation will enhance our homeland security, improve the safety 
of our workforce, and help protect our public health.
  First, the bill strengthens security at America's chemical plants by 
providing permanent authority for the Department of Homeland Security's 
Chemical Facility Anti-Terrorism Standards program. This legislation 
would establish a number of security enhancements including requiring 
for the first time that covered chemical facilities assess whether 
there are any safer chemicals, processes, or technologies that they can 
adopt which would reduce the consequences of a terrorist attack against 
the facility. This bill will also authorize the Secretary of Homeland 
Security, under certain circumstances, to require the riskiest chemical 
facilities to adopt the safer chemicals, processes, or technologies 
when necessary to reduce the likelihood that the facility will be 
attacked.
  The bill also provides chemical facilities with an appeals process if 
they disagree with the DHS Secretary's determination. We crafted this 
provision in close consultation, and with considerable input from, the 
largest chemical industry association, the American Chemistry Council.
  Second, the bill establishes minimum security standards at drinking 
water and wastewater facilities, closing what both the Bush and Obama 
Administrations agree is a ``critical

[[Page H12417]]

security gap.'' Under this bill, for the first time, covered water 
systems that use a certain amount of dangerous chemicals will have to 
assess whether they can switch to safer chemicals or processes, to 
protect their employees, their neighbors, and the community they serve.
  We worked closely with the water sector to craft a bill that meets 
several important policy goals--clean and safe water and homeland 
security. I'm pleased that associations representing drinking water and 
wastewater utilities have endorsed the bill. These endorsing 
associations include: The Association of Metropolitan Water Agencies; 
The American Public Works Association; The National Association of 
Clean Water Agencies; and The Association of California Water Agencies.
  Third, this bill gives chemical facility workers much-needed 
protection, by ensuring that chemical facilities and water systems 
involve their workers in developing plans to address any vulnerability 
to terrorist attack. Not only are workers the first line of defense 
against any attack, they also would be the first injured in the event 
of a chemical release. That's why this legislation is strongly 
supported by labor organizations, including: The United Steelworkers; 
The United Auto Workers; The Communications Workers of America; and The 
International Chemical Workers Union Council.
  And finally, this bill improves current law by creating a citizen 
enforcement tool that citizens can use to protect their community when 
DHS fails to perform its nondiscretionary duties. It also allows states 
to take additional action to protect their communities from terrorists 
if they find it to be necessary.
  This bill is the product of careful compromise, and was drafted in 
close consultation with key stakeholders from government, the chemical 
industry, the water utilities, labor and other groups. That's why it 
has been endorsed by a broad coalition of labor and environmental 
organizations in addition to many water industry associations. I am 
proud of the balance we have struck. I urge all Members to support H.R. 
2868 to close these critical security gaps once and for all.
  Finally, I'd like to highlight two aspects of the bill.


                         Information Protection

  Each title of H.R. 2868 contains a section related to the protection 
of sensitive security information that could be detrimental to facility 
security if disclosed. The bill requires the Secretary of Homeland 
Security and the EPA Administrator to develop rules for the appropriate 
sharing of protected information with those who have a need to know it. 
The bill also establishes criminal penalties for any person who 
discloses this protected information in knowing violation of the rules.
  The bill defines the types of information that is considered 
``protected'' as well as the types of information that the bill's 
sponsors intended to exclude from that definition. The bill states that 
protected information does not include ``information that is required 
to be made publicly available under any other provision of law.'' Laws 
such as the Clean Air Act, the Emergency Planning and Community Right 
to Know Act or the Occupational Safety and Health Act require 
disclosure of important safety information to regulators, workers and 
often the public at large. An individual who discloses information in 
compliance with one of these other statutes should not face criminal 
penalties even if that information is also contained in a document such 
as a security vulnerability assessment that is protected under the 
rules established by Secretary of Homeland Security and the EPA 
Administrator.


           Drinking Water Facilities and Site Security Plans

  The Committee on Energy and Commerce reported H.R. 3258 favorably on 
October 21, 2009. H.R. 3258, now Title II of H.R. 2868, requires each 
covered water system to assess the system's vulnerability to a range of 
intentional acts. The vulnerability assessment must include a review of 
vulnerable assets within the fenceline of the system, such as water 
treatment and pre-treatment facilities and chemical storage units, as 
well as the off-site water distribution system. Each covered water 
system also must complete a site security plan that addresses the 
vulnerabilities identified in the assessment. With regard to the on-
site vulnerabilities, the Committee intends for each covered water 
system to develop a site security plan that addresses those 
vulnerabilities using layered security measures to meet risk-based 
performance standards developed by EPA.
  With regard to any off-site vulnerabilities identified by the covered 
water system, the Committee expects EPA to recognize that it would be 
impractical for the covered water system to guarantee the physical 
protection of the system's entire network of pipes, conveyances, and 
other usage points that comprise its distribution system. For example, 
it would be impracticable for the covered water system to control 
access to all fire hydrants or residential connections within its 
distribution system or all pipes that deliver its water. Similarly, the 
Committee does not expect for the covered water system to describe 
employees' roles and responsibilities for securing the distribution 
system beyond the fenceline of the system as part of its site security 
plan, unless the system has assigned one or more employees such 
responsibilities. The covered water system, however, may use funds 
granted by EPA to address off-site vulnerabilities, such as tamper-
proofing of manhole covers, fire hydrants, and valve boxes.
  Mr. STEARNS. Mr. Chair, may I inquire how much time is left on our 
side of the aisle?
  The Acting CHAIR. The gentleman from Florida has 3 minutes.


                        Parliamentary Inquiries

  Mr. STEARNS. Parliamentary inquiry, Mr. Chairman.
  We understand that the Transportation Committee under Mr. Dent has 
extra time and that could be allotted, if he's not using it, to our 
side to use it. Is that possible by unanimous consent that we could 
take his 15 minutes? We have some Members who actually are going to be 
affected by this bill, and they're going to lose jobs in their 
districts. They're quite passionate about this bill, and I would like 
to give them more than the 3 minutes that is available. So I am asking 
unanimous consent if it's appropriate to do that.
  The Acting CHAIR. The Committee of the Whole may not change the 
scheme of debate established by an order of the House. A member of the 
Committee on Transportation and Infrastructure would have to manage 
that debate.

                              {time}  1630

  Mr. STEARNS. All right, then, so we are stuck with just 3 minutes.
  Is it possible, Mr. Chairman, by unanimous consent that we can extend 
our time beyond the 3 minutes?
  The Acting CHAIR. It is not possible in the Committee of the Whole.
  Mr. STEARNS. Parliamentary inquiry, Mr. Chairman. If Mr. Dent shows 
up on the House floor and he makes a request to give us his 15 minutes, 
do we need a unanimous consent? Or I will stand in and manage the time 
for him and then we will have 15 more minutes that we can use for these 
individuals who are going to be affected by this bill?
  The Acting CHAIR. The Committee of the Whole cannot change the scheme 
of control of debate. The gentleman from Pennsylvania (Mr. Dent) could 
manage the time.
  Mr. STEARNS. If Mr. Dent comes down, he can manage the time.
  The Acting CHAIR. A member of the appropriate committee could manage 
the time.
  Mr. STEARNS. Well, just to be careful here, I think what I am going 
to do is I am going to take a minute, and hopefully Mr. Dent will show 
up and then we can have that extra time for us.
  The Acting CHAIR. As a clarification to the gentleman from Florida, 
the gentleman from Pennsylvania would have to be on the Transportation 
and Infrastructure Committee to be recognize to control the time.
  Mr. STEARNS. He is coming. In fact, he might be on the floor as I 
speak.
  The Acting CHAIR. The gentleman from Florida is recognized for such 
time as he may use.
  Mr. STEARNS. Mr. Chairman, at a time when the U.S. Bureau of Labor 
Statistics cites a 16 percent decline in chemical manufacturing jobs, 
this Chemical Facility Anti-Terrorism Act would force people out of 
work by imposing needless and harmful regulations on American 
industries by making the production, use and storage of chemicals more 
expensive and burdensome with little benefit to public safety or 
national security.
  Absent Federal preemption and a uniform national standard, this 
legislation will create overlapping and conflicting security 
requirements that could cause disruption of Federal security standards, 
increase government red tape, and create more economic instability. 
This legislation will also impose new mandates on American 
manufacturers as to which products and processes they use without any 
regard for practicality, availability or cost.
  I, along with undoubtedly every Member of this body, believe that 
securing chemical facilities against deliberate attacks is crucial to 
protecting Americans, which is why, since 2006, clear and comprehensive 
chemical security regulations have been put in place. Removing the 
sunset date and making the current chemical security

[[Page H12418]]

regulations permanent would provide the certainty needed to both 
protect citizens and support our Nation's economic recovery.
  I encourage all my colleagues to join me in strong opposition to this 
detrimental bill.
  With that, Mr. Chairman, I reserve the balance of my time.
  Mr. MARKEY of Massachusetts. Mr. Chairman, I yield for the purpose of 
a unanimous consent request to the gentleman from California (Mr. 
Miller).
  (Mr. GEORGE MILLER of California asked and was given permission to 
revise and extend his remarks.)
  Mr. GEORGE MILLER of California. Mr. Chairman, I rise in strong 
support of the Chemical Facility Anti-Terrorism Act.
  Mr. Chairman, I would like to thank my friend from California, 
Chairman Waxman, my friend from Minnesota, Chairman Oberstar, and my 
friend from Mississippi, Chairman Thompson, for their work in bringing 
the Chemical Facility Anti-Terrorism Act to the House floor. They 
deserve great credit for crafting legislation to improve security at 
facilities around the country.
  One particular concern that this legislation can help address is the 
risk posed by bulk quantities of chlorine--one of the most powerful 
disinfectants available, but a potentially dangerous chemical when 
transported by rail through our neighborhoods en route to wastewater 
and drinking water utilities and the conventional bleach producers that 
often supply them.
  Federal estimates are that a release of chlorine from just one of the 
36,000 annual rail car shipments could result in up to 100,000 
casualties. Many water utilities are shifting to bleach, which is as 
effective as a disinfectant but less dangerous to ship, store, and use. 
However, bleach made using conventional manufacturing process also 
relies on chlorine shipped by rail.
  I am pleased to have learned that there is a safer alternative, the 
use of which I believe should be greatly expanded. That alternative is 
bleach made using only salt, water, and electricity, eliminating the 
need to ship chlorine across the country. This safer bleach is just as 
effective as conventional bleach and can be produced at costs 
competitive with the cost of conventional bleach.
  This technology is being implemented at locations around the country, 
including in Florida, Ohio, Virginia, and in my congressional district 
in Pittsburg, California. Also, Clorox Corporation just this week 
announced plans to shift all of their bleach plants to use a method 
that would eliminate the transport of chlorine by railcar to its 
facilities across the country. The elimination of chlorine transport by 
rail is welcomed by security advocates and the railroads that bear the 
liability risk from transporting chlorine.
  H.R. 2868 calls for identification of chemicals of concern and the 
use of inherently safer technology by the highest risk water utilities. 
Clearly, chlorine is one of these chemicals of concern--perhaps more 
than any other chemical used by water utilities.
  However, simply changing from chlorine to bleach as a disinfectant 
may not solve the problem.
  Chlorine railcars could continue to pass through neighborhoods to the 
nearby conventional bleach manufacturers, who may argue that the cost 
for them is too high to shift to a safer process.
  For this reason, I believe that we must look at the entire supply 
chain and the procurement process as we work to eliminate or mitigate 
the consequences of a terrorist attack. In order to fully achieve 
Congress' intent in passing this bill, the Environmental Protection 
Agency and Department of Homeland Security should work together to 
evaluate this problem and develop a policy that will lead to safer 
utilities and communities by reducing the hazardous transport of 
chlorine.
  Once again, I appreciate the work of Chairman Waxman, Chairman 
Oberstar and Chairman Thompson on this bill and I look forward to 
working with them and the industry as we go forward to help reduce the 
risks associated with the transportation of chlorine across our 
country.
  Mr. MARKEY of Massachusetts. Mr. Chairman, I yield 1\1/2\ minutes to 
the gentleman from Texas (Mr. Gene Green).
  Mr. GENE GREEN of Texas. I thank my colleague.
  First of all, I rise in strong support of H.R. 2868. I represent the 
largest petrochemical complex in the country. These chemical facilities 
contribute much to our economy and way of life and the employ thousands 
of workers in high-paying, quality jobs.
  These chemical facilities have invested $8 billion in security 
improvements since 2001 and are fully complying with DHS' Chemical 
Facilities Antiterrorism Standards, or CFATS, that has not been fully 
implemented. These dedicated chemical employees, as well as the 
communities around them, deserve the best security standards possible 
to prevent another unthinkable act of terrorism on U.S. soil.
  When this bill was originally introduced, I had some concerns about 
it. Working with both Chairman Waxman and Subcommittee Chairman Eddie 
Markey along with industry and labor officials, we made a number of 
changes in here and I would like to summarize some of them.
  We worked with the Chair to include new language to clarify that the 
Coast Guard would be the main entity enforcing the requirements similar 
to the maritime security facilities; provide an explicit consultative 
role for the Coast Guard if the DHS Secretary considers IST for a 
maritime security facility; ensure maritime security facilities would 
not perform additional background security requirements other than 
under CFATS; and identify the TWIC credential that is being used to 
satisfy CFATS would also satisfy this bill. That's what's so important.
  Mr. Chair, I rise today in support of H.R. 2868, the Chemical and 
Water Security Act, a bill to protect chemical facilities and drinking 
water and wastewater systems across the country.
  The Houston Ship Channel I represent is home to the largest 
petrochemical complex in the country. These chemical facilities 
contribute much to our economy and way of life and employ thousands of 
workers in high-paying, quality jobs.
  Chemical facilities have already invested nearly $8 billion in 
security improvements since 2001 and are fully complying with DHS' 
Chemical Facilities Antiterrorism Standards, or CFATS, which are not 
yet fully implemented.
  These dedicated chemical employees, as well as the communities that 
surround these facilities, deserve the best security standards possible 
to prevent another unthinkable act of terrorism on U.S. soil.
  As introduced, I had several concerns with H.R. 2868 that were mostly 
addressed in the final bill by working with Chairman Henry Waxman, 
Subcommittee Chairman Ed Markey, and industry and labor 
representatives.
  First, granting the DHS Secretary authority to mandate a facility to 
perform a ``method to reduce a consequence of a terrorist attack''--or 
IST--raises questions as to whether, or how, to involve government 
agencies like DHS that have few, if any, process safety experts, 
chemical engineers and other qualified staff.
  We worked to include a fair and transparent technical appeals process 
in H.R. 2868 that requires DHS to examine such decisions with facility 
representatives as well as with experts knowledgeable in the fields of 
process safety, engineering, and chemistry.
  In addition, the scope of affected facilities nationwide potentially 
subject to IST requirements was substantially reduced by focusing 
exclusively on chemical facilities in populated areas subject to a 
release threat, and DHS may not mandate IST if it were not feasible or 
if the facility would no longer be able to continue operations at its 
location.
  Second, H.R. 2868 as introduced created unnecessary duplication with 
existing regulations for chemical facilities already regulated under 
the Maritime Transportation Security Act, or MTSA.
  We worked with the Chairmen to include new language to clarify that 
the Coast Guard will be the main entity enforcing the requirements of 
this act for MTSA facilities; provide an explicit consultative role for 
the Coast Guard if the DHS Secretary considers mandating IST on a MTSA 
facility; ensure MTSA facilities would not have to perform additional 
background security requirements under CFATS; and identify the TWIC 
credential as being able to satisfy the CFATS requirements in the bill.
  Third, workers were not afforded a robust redress process in the case 
of any adverse decisions made due to the personnel surety requirements 
in the legislation.
  We worked to include a ``Reconsideration Process'' by which workers 
could petition DHS to make a determination as to whether the worker 
poses an actual terrorist security risk, as well as included annual 
reports to Congress assessing much needed background check and redress 
process data.
  Fourth, the civil suit provisions could have unnecessarily disclosed 
sensitive security information for facilities.
  Revised language was included to permit affected citizens the ability 
to compel agency action on CFATS and provide an avenue for citizens to 
report facilities in potential violation of the bill's requirements 
while safeguarding sensitive information. No private right of action is 
permitted against private companies.
  Finally, the original bill failed to streamline the regulation of 
both drinking water and wastewater facilities and lacked an appeals 
process for water systems subjected to IST decisions.

[[Page H12419]]

  H.R. 2868 now places EPA in charge of regulating both drinking water 
and wastewater facilities and includes an appeals process for water 
systems to ensure a fair and open hearing on any IST decisions made by 
the State or EPA.
  H.R. 2868 is far from perfect, but it includes substantial 
compromises to permanently extend chemical and water security 
regulations while reducing duplicative regulatory standards, increasing 
worker protections, and providing important safeguards to chemical 
facilities and water systems.
  I want to again thank Chairman Waxman and Subcommittee Chairman 
Markey for working with me and other Members to improve this 
legislation.
  The Acting CHAIR. The gentleman from Florida has 1\1/2\ minutes 
remaining.
  Mr. STEARNS. With that, I yield that time to the gentleman from 
California (Mr. Radanovich).
  The Acting CHAIR. The gentleman from California is recognized for 
1\1/2\ minutes.
  Mr. RADANOVICH. I realize that my friends in the majority like to 
trumpet the support of the drinking water title of the bill by the 
American Municipal Water Association, yet I want to provide my 
colleagues with the rest of the story.
  The AMWA is just a sliver of the regulated universe covered by this 
bill. There are three other groups that are much larger in terms of the 
number of facilities and people served.
  While the AMWA members claim to serve 125 million Americans, the 
American Water Works Association serves 180 million customers and 4,700 
utilities. The National Association of Water Companies, or the NAWC, 
represents 22 million customers, and the National Rural Water 
Association represents 25,000 utilities. None of these associations has 
proclaimed their support for this entire bill.
  In my own State, the town of Modesto, and the Modesto Irrigation 
District, an AWWA member contacted me to express its concerns about the 
citizen suit provisions and the weak information protection and penalty 
provisions in this bill. They were also very concerned about the 
expense of the mandates that would be placed on them by this 
legislation.
  I want to remind my colleagues that drinking water treatment can be 
complex and is closely constrained by Safe Water Drinking Act 
regulations, production demands and customer affordability. Evaluating 
changes to water treatment must be thoughtful, must be technically 
transparent and fully consider all the alternatives available to the 
water system, as set out by the system operators and local officials, 
not some bureaucrat who is unsure what they are doing.
  I would have hoped that a problem-solving rather than politically 
motivated bill would be before us to address this matter. Because there 
isn't, I urge defeat of this bill.
  The Acting CHAIR. The gentleman from Massachusetts has 30 seconds 
remaining.
  Mr. MARKEY of Massachusetts. I yield myself the balance of my time.
  Mr. Chairman, I want to thank Michal Freedhoff from my staff; and 
Alison Cassady, David Leviss, Jacqueline Cohen, Phil Barnett, Greg 
Dotson, Kristin Amerling, Peter Ketcham-Caldwill and Melissa Cheatham 
from Chairman Waxman's staff. I would also like to thank Chris Debosier 
of Mr. Melancon's staff and Derrick Ramos from Mr. Green's staff.
  This is not an environmental bill. This is not a bill banning 
chemicals. This is a bill about national security, to make sure that al 
Qaeda cannot turn a chemical facility in our country into a weapon of 
mass destruction in some hometown in our country. That is what this 
bill is all about.
  I urge an ``aye'' vote.
  The Acting CHAIR. The gentlewoman from Texas (Ms. Eddie Bernice 
Johnson) will be recognized for 15 minutes and the gentleman from 
Pennsylvania (Mr. Dent) will be recognized for 15 minutes.
  The Chair recognizes the gentlewoman from Texas.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Chairman, I yield myself as 
much time as I may consume.
  I rise in support of H.R. 2868, the Chemical and Water Security Act 
of 2009.
  I join my chairman, Mr. Oberstar, in thanking the chairman of the 
Committee on Homeland Security and the chairman of the Committee on 
Energy and Commerce for including an amended text of my bill, H.R. 
2883, the Wastewater Treatment Works Security Act of 2009, as title III 
in H.R. 2868.
  Enactment of the Wastewater Treatment Works Security Act, in concert 
with the underlying language produced by the Committees on Homeland 
Security and Energy and Commerce, will preserve the historical 
relationship between wastewater utility operators and the Environmental 
Protection Agency in meeting both the security enhancements called for 
in this measure as well as the goals and purposes of the Clean Water 
Act.
  In the wake of September 11, 2001, our Nation has learned the 
importance of protection of our critical infrastructure. In the weeks 
following 9/11, the Committee on Transportation and Infrastructure held 
several hearings on the overall vulnerability of infrastructure to 
terrorist attack, including the vulnerability of the Nation's 
wastewater utilities.
  Since these hearings, the position of our committee, both under 
Democratic and Republican majorities, has been consistent. We must 
strive to reduce the vulnerability of wastewater infrastructure and to 
minimize the potential adverse impact to human health, critical 
infrastructure and the environment that could occur from an intentional 
act.
  According to EPA, there are over 16,000 publicly owned treatment 
works in the United States as well as 100,000 major pumping stations, 
600,000 miles of sanitary sewers, and another 200,000 miles of storm 
sewers. Taken together, these systems represent the backbone of the 
Nation's primary sewage treatment capacity, as well as an extensive 
network that runs near or beneath key buildings and roads and alongside 
many critical communication and transportation networks.
  Significant damage to the Nation's wastewater treatment facilities or 
collection systems could result in the loss of life, catastrophic 
environmental damage to rivers, lakes and wetlands, contamination of 
drinking water supplies, long-term public health impacts, destruction 
of fish and shellfish production areas, and disruption to commerce, the 
economy and the Nation's way of life.
  In the same light, certain wastewater treatment works throughout the 
United States use chemicals in their disinfectant process, such as 
chlorine gas, that pose a threat to public health if improperly 
released into the environment.
  Title III of this bill, the Wastewater Treatment Works Security Act, 
ensures that all large- and medium-sized wastewater treatment 
facilities--those that treat at least 2.5 million gallons of sewage per 
day--perform a nationally consistent threshold security assessment and 
take proactive steps to reduce their overall vulnerability.
  According to EPA, the provisions of title III of this act should 
cover approximately 17 percent of the 16,000 publicly owned treatment 
works in this country, yet addresses an estimated 70 percent of the 
population served by municipal wastewater treatment.
  For those facilities that possess sufficient quantities of 
potentially dangerous chemicals, such as chlorine gas, this legislation 
requires an assessment of whether inherently safer technologies can be 
implemented to reduce the overall risk posed by the facility.
  Yet while it is appropriate that we take action to improve the 
overall safety and security of our Nation's wastewater treatment 
facilities, we must also be aware of the unique role and public service 
played by our water and wastewater utilities.
  Unlike typical chemical manufacturing facilities, water and 
wastewater facilities must remain in constant operation and cannot 
simply be turned off.
  Mr. Chairman, a majority of the Nation's wastewater is treated by 
publicly owned treatment works. Discharges from these facilities, more 
commonly known as sewage treatment plants, are typically subject to 
regulation under the National Pollutant Discharge Elimination System 
program, established under the Clean Water Act.
  Today, all but five States have received EPA approval to manage their 
point-source discharge programs. However, whether it is an approved 
State or EPA, the appropriate permitting authority is responsible for 
establishing

[[Page H12420]]

designated uses for waters and for establishing water quality criteria 
sufficient to protect those uses.
  The permitting authority then issues Clean Water Act permits for 
facilities, such as sewage treatment plants, that limit the amount of 
pollution they may legally discharge in order to meet the established 
water quality criteria and the uses.
  During formulation of the Chemical and Water Security Act of 2009, 
the Committee on Transportation and Infrastructure worked with the 
Committees on Homeland Security and Energy and Commerce to ensure that 
the security-related requirements of this bill not negatively impact 
the ability of wastewater treatment facilities to meet their clean 
water obligations.
  Equally as important, this bill preserves the historic oversight of 
EPA and approved States in implementation of the security-related 
requirements of this legislation.
  Mr. Chairman, I have heard that this legislation will place an 
unnecessary financial burden on local governments or ratepayers, or 
that the inherently safer technologies called for in this legislation 
cannot be implemented.
  To answer this first concern, title III authorizes $1 billion over 5 
years in grants to publicly owned treatment works to carry out the 
requirements of the title. State and local governments would be 
eligible for up to 75 percent of the costs to carry out vulnerability 
assessments, site security and emergency response plans, and to 
implement measures to improve the overall security of publicly owned 
wastewater treatment facilities.

                              {time}  1645

  This legislation also provides grant funding for emergency response 
training to first responders and firefighters who may be called upon in 
the event of a terrorist attack.
  In response to the second concern about inherently safer 
technologies, I would highlight the findings of the 2006 report of the 
Government Accountability Office which noted that over half, 56 
percent, of the largest wastewater facilities use an alternative 
chlorine gas in their disinfectant process. Of the remaining facilities 
surveyed by GAO in 2006, an additional 20 percent of the facilities 
that used chlorine gas have reported plans to switch to another form of 
disinfectant.
  One key example is here in the Nation's Capital, just across the 
Anacostia River. In 2001, the Blue Plains Wastewater Treatment Plant, 
which serves the Capitol complex, switched from chlorine gas to a 
concentrated bleach formula for disinfection of wastewater. While the 
changes had been planned for some time, heightened security concerns 
following 9/11, including the potential impact of a terrorist attack on 
the U.S. Capitol complex, led facility personnel to accelerate the 
implementation of the inherently safer technology. If the switch from 
chlorine gas to the other inherently safer product was important enough 
to protect Members of Congress, it should be equally as important to 
protect our families throughout the United States.
  This legislation has been endorsed by the leading wastewater utility 
organizations, including the National Association of Clean Water 
Agencies, the California Department of Sanitation Agencies, and the 
American Public Works Association.
  I support the passage of this legislation.
  I reserve the balance of my time.
  Mr. DENT. Mr. Chairman, I rise in opposition to this legislation. Our 
side of the aisle is going to focus on the impact on jobs. This 
legislation is devastating to jobs in this country, and we will get 
into that in just a moment.
  Mr. Chairman, I yield 4 minutes to the gentleman from Houston, Texas 
(Mr. Culberson).
  Mr. CULBERSON. I appreciate the time.
  We in the fiscally conservative minority, Mr. Chairman, are focused 
on jobs. Every day that we are here, we are working to make sure we 
protect job growth in this Nation, and we have correctly identified 
this bill as a job-killing bill. And the reason is very 
straightforward. Just let me walk you through it.
  In Texas alone, we have 470,000 jobs either directly or indirectly 
related to the petrochemical refining industry. In Louisiana next door, 
they have got about another half million jobs.
  Now, the EPA has for many years, they are looking to try to change, 
for example, a bleaching process in the paper industry that would cost 
up to $200 million. The EPA has also tried to switch a refining process 
in the petrochemical industry from hydrochloric acid to sulfuric acid. 
That can be just as dangerous in a terrorist attack, but requires 250 
times more acid to achieve the same result and will cost between $45 
million and $150 million per refinery to convert to the sulfuric acid 
process, with an increase in operating costs between 200 and 400 
percent.
  I apologize for my voice, but I was participating in the rally 
outside the Capitol of people who came here today concerned about the 
job-killing effect of that health care bill that I share their concern 
and their opposition over, and wore my voice out.
  But we in Texas understand the importance of protecting these 
facilities from terrorist attacks, and that is not our concern. We are 
concerned about the bureaucracy this bill creates.
  But let me very quickly just read from the bill, Mr. Chairman. Let's 
look at the definitions. If you look at the definition of chemical 
facility, that is any facility that contains a substance of concern.
  When you look at the definition of the environment, you will see 
right away that means the waters, navigable water or saltwater, 
contiguous to the United States. And one of our biggest concerns in 
this legislation, you will find it buried on page 95.
  ``The Environmental Protection Agency Administrator,'' I am quoting 
directly from the bill, ``may designate any chemical substance as a 
substance of concern and shall establish a threshold quantity for the 
release of the substance, and if that substance has any serious adverse 
effect on the environment, the EPA administrator can shut it down.''
  This is not a safety provision for protecting us against terrorist 
attacks. This is a straightforward environmentalist piece of 
legislation designed to give the EPA authority that they do not 
currently have.
  This chart shows the Houston ship channel, which my friend Gene Green 
represents. There are tens of thousands of jobs that are reliant on the 
petrochemical refining industry along the Houston ship channel.
  This map shows southwest Louisiana and southeast Texas between Baton 
Rouge and Corpus Christi, Texas. Almost half of the Nation's 
petrochemical refining capacity is concentrated in southwest Louisiana 
and southeast Texas. They are doing a far better job today in 
protecting the environment and in protecting against terrorist attacks. 
We have already got legislation on the books that Mr. Barton mentioned 
that is costing about $18 billion to implement to protect against 
terrorist attacks.
  I would ask the majority, it makes no sense for this Congress to pass 
legislation today that would so clearly kill jobs. According to the 
National Association of Manufacturing, this bill will kill tens of 
thousands of jobs in the petrochemical refining industry across this 
Nation. When we have already got legislation on the books to protect 
against terrorist attacks, why would this Congress pass legislation 
which so obviously will kill jobs, which so clearly, here it is on page 
95 in clear English, is directed at giving the administrator of the EPA 
the ability to designate any chemical they want as a threat to the 
environment.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. DENT. I yield the gentleman an additional 20 seconds.
  Mr. CULBERSON. This is an extremely dangerous piece of legislation 
which will kill jobs in the petrochemical refining industry across the 
United States, and I urge my colleagues to defeat it. In a time of 
recession, we have got to protect jobs and build jobs, not pass more 
regulations that will kill jobs.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Chairman, I would like to 
yield 3 minutes to the gentleman from New Jersey (Mr. Sires).
  Mr. SIRES. Mr. Chairman, I rise today as a proud supporter of H.R. 
2868, the Chemical and Water Security Act of 2009. I would like to 
thank Chairman Thompson, Chairman Oberstar, and

[[Page H12421]]

Chairman Waxman for their leadership in this crucial piece of 
legislation.
  I know firsthand the challenges and risks that large urban areas 
face. The district I represent is densely populated and home to 
critical transportation infrastructure, as well as chemical plants. In 
fact, the district is considered to have the most dangerous 2-mile 
stretch in the Nation.
  On the morning of September 11, I witnessed the destructive 
capabilities of terrorism. I believe we must do everything in our power 
to address the known threats so we can reduce our risk and prevent 
future catastrophes. I know H.R. 2868 will bring us several steps 
closer to securing the facilities across the country that we rely on 
each day. The safety of our communities depends on the security 
measures taken at these facilities.
  Mr. Chairman, increased security measures should not be viewed as a 
burden, but as an opportunity to reduce threats by promoting best 
practices. This legislation is skillfully designed to increase our 
security without jeopardizing facility services, and I urge my 
colleagues to vote in favor of H.R. 2868.
  I also would like to add, we heard concerns today about the potential 
impact of this bill on the economy and jobs. I want to take this 
opportunity to share with you the views of those who have the most at 
stake in this argument, the workers themselves.
  The United Steelworkers, the International Chemical Workers Union 
Council, the International Brotherhood of Teamsters, the Service 
Employees International Union, the Communication Workers of America, 
and the United Auto Workers Union Legislative Alliance sent a letter to 
Congress on October 30 expressing their strong support for this bill. 
The workers are on the front lines in defending chemical facilities in 
this country.
  Mr. DENT. Mr. Chairman, I would like to yield 4 minutes to the 
distinguished gentleman from New Orleans, Mr. Scalise.
  Mr. SCALISE. I want to thank the gentleman for yielding.
  I rise in opposition to this bill because it has nothing to do with 
security of our chemical facilities. The chemicals facilities spend 
millions and millions of dollars to secure their facilities, and I 
would suggest that those facilities are more secure than most Federal 
buildings because there is so much at stake, and nobody has challenged 
or suggested anything other than that they do protect their facilities.
  What this is about is radical environmentalists coming in and trying 
to impose new policies. They call it ``inherently safer technologies.'' 
And what is that? Well, clearly it is not anything that is going to 
make the plant more efficient because those companies spend millions of 
dollars continuing to upgrade and make the most modern facilities that 
they have so they can continue manufacturing in this country. What it 
means is there is some people in the Federal Government who want to go 
in and tell manufacturing companies which products to use in their 
manufacturing facilities.
  Now, one of the problems we have got right now in our economy is that 
the government is trying to run every business that there is out there. 
The government is trying to run car companies, and look at how well 
that has turned out. The government is running banks, and look at how 
well that has turned out. The government has czars trying to run all of 
these different aspects of our economy, and it is not working.
  In fact, unemployment is now at 9.8 percent, approaching 10 percent, 
when they said their stimulus bill would cap unemployment at 8 percent. 
So clearly their approach to fixing this economy is not working and it 
has led to more job losses.
  In fact, if you look at the results of the elections on Tuesday night 
in Virginia and New Jersey, people turned out in droves and said it is 
jobs. It is the economy. We want government to stop running jobs out of 
this country.
  So what do they do? They bring us another bill today that runs more 
jobs out of this country. Because if you look at what is going to 
happen to these facilities, petrochemical facilities that refine oil, 
there is talk about, oh, we want to reduce our dependence on foreign 
oil.
  Sure we want to reduce our dependence on foreign oil. You don't do it 
by running every refinery out of this country to China or India or the 
Middle East. That is what this bill will do. It will increase our 
dependence on foreign oil and on companies in the Middle East that 
refine oil.
  It will run millions of jobs out of this country, and these are high-
paying jobs. The average cost at some of these chemical facilities is 
over $70,000 per year per employee. And their bill that they are 
bringing forward will run thousands, in south Louisiana thousands, of 
those jobs out of this country.
  You wonder why businesses are running around right now feeling like 
they have a bull's eye on their back by the Federal Government. It is 
because of policies just like this. Cap-and-trade is still out there. 
You have the card check bill that has businesses scared to death to 
hire anybody in America because of what Congress is going to do to 
them.
  That is not the role of government. That is not the role of Congress. 
We should be trying to spend time here helping create jobs. Instead, we 
have got a bill on the floor, yet another of a long laundry list of 
legislation, that will run more jobs out of the economy, out of this 
country.
  Nobody has disputed that. All of the business groups that have looked 
at this have said this will run jobs out of this country, and it won't 
do anything to increase security at our facilities, because they are 
already doing the things they need to do to keep us safe, and nobody 
has suggested otherwise. We need to defeat this legislation.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Chairman, I yield 2 minutes 
to the gentleman from Iowa (Mr. Boswell).
  (Mr. BOSWELL asked and was given permission to revise and extend his 
remarks.)
  Mr. BOSWELL. I am taking a little bit different tack here. I don't 
object to what we are trying to do, but as I have thought about this 
over the last few hours, I have a concern, and this concern has to do 
with I think there has been very little discussion with those that 
produce our food and fiber in this country, which I have been involved 
in most of my life, as well as many others here. I am told that there 
has not been too much coordination.
  So I am not saying don't do this. I am wondering if we could just 
pause for a minute and take some time to discuss the impact on another 
area of security, if you will, homeland security and the production of 
food and fiber.
  Our farmers in this country, dairy farmers by the multitudes, are 
going under. Pork producers are down about $22 per head over the last 
24 months. Beef producers can't meet the cost of input. Corn producers 
in my State are not meeting the cost of input. And I think maybe it 
would be time well spent if we could just pause and think about the 
impact of these things on what we are trying to do.
  Yes, we need to protect our environment. Yes, we need to protect our 
water. Nobody is arguing about that. We in agriculture think that very 
strongly.

                              {time}  1700

  But probably who I need to be talking to is not here listening on the 
floor today to be able to cause this pause to take place. Mr. Chairman, 
I think this is deserving of some careful consideration because one 
thing that we haven't done in this country compared to some places 
around the world, we haven't been hungry. If that should happen, we 
would certainly, surely have a very, very serious security situation.
  I think the intent is good, but I think we need a little pause to 
talk for a day or two about the possibility, about the impact that this 
has on food and fiber production in this great country of ours.
  Mr. DENT. Mr. Chairman, I yield 3 minutes to the distinguished 
gentleman from Kansas (Mr. Moran).
  Mr. MORAN of Kansas. Mr. Chairman, thank you very much. I appreciate 
the chance to be on the House floor today to speak in opposition to 
this bill, and I am particularly delighted to speak after the gentleman 
from Iowa (Mr. Boswell) has just spoken because my message to my 
colleagues on the Agriculture Committee and others from rural America, 
whether Republicans or Democrats, is this is

[[Page H12422]]

a bad bill for rural America and for our agriculture producers and the 
small businesses that support agriculture in rural America.
  While it is a noble effort and something that I think everyone on the 
House floor would agree on, we need to move in the direction of greater 
security in regard to chemicals. Aspects of this bill, as indicated by 
the gentleman from Texas (Mr. Barton), really do not relate to 
security. They are about employee safety, workforce safety, the 
environment in which we work. It is about environmental rules and 
regulations. And in some fashion in our legislative process here, the 
Department of Homeland Security issues have been overcome, the 
positives that may be there from increasing our security, are overcome 
by the detrimental costs associated with environmental and labor 
issues.
  So this bill, particularly because of the IST provisions, is a bill 
that is detrimental. As Mr. Boswell indicated, increasing input costs--
fertilizers, chemicals, pesticides--those things matter to production 
agriculture today, especially today when the economic circumstances in 
which our farmers find themselves is so narrow, so difficult, anything 
that increases the cost is very damaging.
  Finally, the businesses that support them, they make up a huge 
component of rural communities across my State, across rural America 
and across our country, and putting those folks out of business has a 
significant consequence to the future of the people that I represent.
  So I urge my colleagues from all across rural America to oppose this 
legislation for the dramatic and damaging effect it will have upon the 
people who produce food and fiber in this country and the businesses 
that support that effort.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Chairman, I would like to 
include for the Record correspondence from the National Association of 
Clean Water Agencies and the California Association of Sanitation 
Agencies.

                                                 October 29, 2009.
     Hon. Nancy Pelosi,
     Speaker of the House, House of Representatives, Washington, 
         DC.
       Dear Madam Speaker: The National Association of Clean Water 
     Agencies and the California Association of Sanitation 
     Agencies support incorporating wastewater facility security 
     legislation into the Chemical Facility Anti-Terrorism Act 
     (H.R. 2868) once chemical facility legislation is sent to the 
     House floor. In furtherance of this objective, we support 
     including the Wastewater Treatment Works Security Act (H.R. 
     2883) as a separate title in comprehensive chemical facility 
     legislation. We have reviewed the manager's amendment to H.R. 
     2883, and believe this language addresses our primary 
     concern: the prospect of separate regulatory regimes for 
     drinking water and wastewater treatment systems. Numerous 
     local agencies provide both water and wastewater treatment 
     services. The dual regulatory system is counterproductive and 
     entirely without any security benefits.
       Our organizations have appreciated the opportunity to work 
     with the Homeland Security, Transportation and 
     Infrastructure, and Energy and Commerce Committees on 
     reaching a resolution to this issue. We look forward to 
     supporting your efforts to bring this legislation to the 
     House floor for floor debate and passage. If you have any 
     questions or wish to discuss this matter further, please 
     contact Patricia Sinicropi, NACWA Legislative Director.
           Sincerely,
     Ken Kirk,
       Executive Director, National Association of Clean Water 
     Agencies (NACWA).
     Catherine Smith,
       Executive Director, California Association of Sanitation 
     Agencies (CASA).
                                  ____

                                                          American


                                     Public Works Association,

                                Kansas City, MO, October 29, 2009.
     Hon. Nancy Pelosi,
     Speaker of the House, Cannon House Office Building, 
         Washington, DC.
       Dear Madam Speaker: I am writing to urge you to move the 
     Chemical Facility Anti-Terrorism Act (HR 2868), which now 
     includes language addressing security at drinking water and 
     wastewater facilities, to the floor for a vote as soon as 
     possible. The committees with an interest in chemical 
     security at facilities across the nation have worked 
     diligently to craft a comprehensive package that provides an 
     appropriate and sensible approach to closing the existing 
     regulatory gap in the current regulatory framework by leaving 
     EPA as the lead regulatory authority over the water sector.
       Establishing a single lead agency for security over 
     substances of concern from intentional incidents or natural 
     disasters at drinking water and wastewater facilities will 
     promote consistent and efficient implementation of chemical 
     security across the water sector while simultaneously 
     ensuring continued protection of public health and the 
     environment. Moreover, the Environmental Protection Agency 
     (EPA) has a long established and active water security 
     program that promotes security and resiliency within the 
     water sector. EPA, in close cooperation with the sector, is 
     using a multi-layered approach to ensure the water sector 
     assesses its vulnerabilities, reduces risks, prepares for 
     emergencies and responds to intentional incidents and/or 
     natural disasters. Over the past several years, great 
     progress has been made and the comprehensive approach taken 
     in HR 2868 will ensure that this progress continues.
       Working in the public interest, the more than 29,000 
     members of the American Public Works Association plan, 
     design, build, operate, manage and maintain the water supply, 
     sewage and refuse disposal systems, public buildings, 
     transportation infrastructure and other structures and 
     facilities essential to our nation's economy and way of life.
       Again, I urge you to bring the Chemical Facility Anti-
     Terrorism Act to the floor of the House for a vote. Thank you 
     for your leadership and attention to this matter.
           Sincerely,
                                                    Peter B. King,
                                                Executive Director

  Mr. Chairman, I yield the balance of my time to the gentleman from 
Minnesota (Mr. Oberstar), the chairman of the full committee.
  Mr. OBERSTAR. I thank the gentlewoman for her splendid management of 
the bill, for her work in the subcommittee and holding the hearings and 
crafting the legislation.
  I want to just point out that our committee's role was to ensure that 
while the Department of Homeland Security will set the standards, it 
will be the EPA and publicly owned treatment works, locally owned, 
operated, and managed will carry them out. It will not be done by 
Homeland Security.
  I heard just a fragment of my good friend and colleague from Iowa 
raising his concerns about the effect on agriculture. I want to 
emphasize, and while this is not directly our committee's jurisdiction, 
we made it very clear that the Department of Homeland Security has 
definitely, completely, exempted all end users of chemicals in 
agriculture. That means, farms, ranches, crops, feed and livestock 
facilities from the chemical security program. It does not add 
agricultural facilities. We were very clear about that. We wanted to be 
sure in our discussions with the Committee on Homeland Security that we 
did not have any spillover of unintended consequences.
  Only the largest terminals, manufacturers, wholesale distributors of 
agricultural chemicals remain in the chemical security program, not 
farmers, not ranchers, not crop, feed, or livestock facilities. The EPA 
administrator has authority only to regulate security at wastewater and 
drinking water facilities, not on farms, not on ranches, not to any of 
the chemicals that they use. The legislation ensures that EPA will 
appropriately balance clean water, wastewater treatment with security 
needs of the Nation as set in standards set by the Department of 
Homeland Security. It does not give EPA any authority over chemical 
facilities now regulated under other provisions or by DHS.
  Mr. Chair, I rise in strong support of H.R. 2868, the ``Chemical and 
Water Security Act of 2009''.
  At the outset, let me also thank the gentleman from Mississippi (Mr. 
Thompson), Chairman of the Committee on Homeland Security, and the 
gentleman from California (Mr. Waxman), Chairman of the Committee on 
Energy and Commerce, for their efforts on this legislation and their 
willingness to include the text of the ``Wastewater Treatment Works 
Security Act of 2009'' as title III of the bill under consideration 
today.
  In June of 2009, I joined with the Chairwoman of the Subcommittee on 
Water Resources and Environment, Eddie Bernice Johnson, in introducing 
H.R. 2883, the ``Wastewater Treatment Works Security Act of 2009,'' to 
address the security needs of wastewater treatment facilities under the 
auspices of the Clean Water Act. That legislation, as amended, is 
incorporated as title III of H.R. 2868.
  Enactment of the ``Wastewater Treatment Works Security Act,'' in 
concert with the underlying language produced by the Committees on 
Homeland Security and Energy and Commerce, will preserve the historical 
relationship between wastewater utility operators and the Environmental 
Protection Agency (EPA) in meeting both the security measures called 
for in this legislation, as well as the goals and purposes of the Clean 
Water Act.

[[Page H12423]]

  Mr. Chair, following the terrorist attacks of September 11, 2001, the 
identification and protection of critical infrastructure, including the 
Nation's system of wastewater infrastructure, has become a national 
priority. EPA has worked with state and local governments to enhance 
wastewater security since 2001, and the majority of wastewater 
treatment works have conducted vulnerability assessments and 
implemented emergency response planning procedures.
  However, wastewater treatment works have undertaken these activities, 
with guidance from EPA, on a voluntary basis, as nothing in current law 
requires wastewater treatment works to carry out specific security 
measures. H.R. 2868 closes this significant security gap and enacts 
mandatory security standards applicable to treatment works. EPA will 
establish security regulations and oversee their implementation to 
appropriately balance water quality and security goals.
  Our Nation's wastewater treatment capacity consists of approximately 
16,000 publicly owned wastewater treatment plants, 100,000 major 
pumping stations, 600,000 miles of sanitary sewers and another 200,000 
miles of storm sewers, with a total value of more than $2 trillion. 
Taken together, the sanitary and storm sewers form an extensive network 
that runs near or beneath key buildings and roads, the heart of 
business and financial districts, and the downtown areas of major 
cities, and is contiguous to many communication and transportation 
networks.
  Publicly owned treatment works also serve more than 200 million 
people, or about 70 percent of the Nation's total population, as well 
as approximately 27,000 commercial or industrial facilities, that rely 
on the treatment works to treat their wastewater. Significant damage to 
the Nation's wastewater facilities or collection systems could result 
in loss of life, catastrophic environmental damage to rivers, lakes, 
and wetlands, contamination of drinking water supplies, long-term 
public health impacts, destruction of fish and shellfish production, 
and disruption to commerce, the economy, and our Nation's normal way of 
life.
  In the same light, certain wastewater treatment works throughout the 
United States utilize chemicals in their disinfectant processes, such 
as gaseous chlorine, that may pose a threat to public health or the 
environment if improperly released into the surrounding environment. 
While proper storage of and security for such chemicals on-site may 
reduce the potential risk of improper release, similar security-related 
issues in the shipment and use of potentially harmful chemicals must 
also be considered in relation to the overall security of the 
wastewater treatment works.
  The ``Wastewater Treatment Security Works Act'' ensures that all 
large- and medium-sized wastewater treatment facilities--those that 
treat at least 2.5 million gallons of sewage per day--perform a 
nationally-consistent, threshold security assessment, and take 
proactive steps to reduce their overall vulnerability. For those 
facilities that possess sufficient quantities of potentially-dangerous 
chemicals, this legislation requires an assessment of whether 
``inherently safer technologies'' can be implemented to reduce the 
overall risk posed by the facility; while enabling the facility to 
continue meeting its water quality obligations under the Clean Water 
Act.
  Finally, this legislation authorizes $1 billion over 5 years in 
grants to publicly owned treatment works to carry out vulnerability 
assessments, site security and emergency response plans, and to 
implement measures to improve the overall security of the wastewater 
treatment facilities, as well as provide emergency response training to 
first responders and firefighters who may be called upon in the event 
of a terrorist act.
  This legislation has been endorsed by the Nation's leading wastewater 
utility organizations, including the National Association of Clean 
Water Agencies, the California Association of Sanitation Agencies, and 
the American Public Works Association.
  Mr. Chair, I would like to discuss certain sections of title III of 
the bill.


                        Section 301. Short title

  This section designates this title as the ``Wastewater Treatment 
Works Security Act of 2009''.


             Sec. 302. Wastewater Treatment Works Security

  This section amends the Federal Water Pollution Control Act of 1972 
to add a new section 222 to address the security of wastewater 
treatment works (hereinafter ``treatment works'') under the authority 
of the Administrator of EPA.


    Section 222(a). Assessment of Treatment Works Vulnerability and 
      Implementation of Site Security and Emergency Response Plans

  Section 222(a) defines the new security-related obligations for 
treatment works required under this subsection, as well as the terms 
``vulnerability assessment'', and ``site security plan''. Under section 
222(a)(1), any treatment works with a treatment capacity of at least 
2.5 million gallons per day (estimated by EPA to be a treatment works 
that serves a population of 25,000 or greater), or in the discretion of 
the Administrator, presents a security risk, is required to: (1) 
conduct a vulnerability assessment; (2) develop and implement a site 
security plan; and (3) develop an emergency response plan for the 
treatment works.


           Section 222(b). Rulemaking and Guidance Documents

  Section 222(b) directs the Administrator to conduct a rulemaking, to 
be completed no later than December 31, 2010, to: (1) establish risk-
based performance standards for the security of a treatment works 
covered by this section; and (2) establish requirements and deadlines 
for each owner and operator of a treatment works to conduct (and 
periodically update) a vulnerability assessment, to develop (and 
periodically update) and implement a site security plan, to develop 
(and periodically revise) an emergency response plan, and to provide 
annual training for employees of the treatment works.
  Section 222(b)(2) directs the Administrator, in carrying out the 
rulemaking under section 222(b), to provide for four risk-based tiers 
for treatment works (with tier one representing the highest degree of 
security risk), and to establish ``risk-based performance standards for 
site security plans and emergency response plans'' required under 
section 222(a). Under subsection (b)(2)(B), the Administrator is 
directed to assign (and reassign, when appropriate) treatment works 
into one of the four designated risk-based tiers, based on 
consideration of the size of the treatment works, the proximity of the 
treatment works to large population centers, the adverse impacts of an 
intentional act on the operations of the treatment works, critical 
infrastructure, public health, safety or the environment, and any other 
factor determined appropriate by the Administrator. Section 
222(b)(2)(B)(iii) provides the Administrator authority to request 
information from the owner or operator of a treatment works necessary 
to determine the appropriate risk-based tier, and section 
222(b)(2)(B)(iv) directs the Administrator to provide the treatment 
works with the reasons for the tier assignment.
  Section 222(b)(2)(C) requires the Administrator to ensure that risk-
based performance standards are consistent with the level of risk 
associated with the risk-based assignment for the treatment works, and 
take into account the risk-based performance standards outlined in the 
Chemical Facility Anti-Terrorism Standards (CFATS) of the DHS, 
contained in section 27.230 of title 6, Code of Federal Regulations.
  Section 222(b)(3) directs the Administrator, in carrying out the 
rulemaking under section 222(b), to require any treatment works that 
``possesses or plans to possess'' a designated amount of a substance of 
concern (as determined by the Administrator under section 222(c)) to 
include within its site security plan an assessment of ``methods to 
reduce the consequences of a chemical release from an intentional act'' 
at the treatment works. Section 222(b)(3)(A) defines such an assessment 
as one that reduces or eliminates the potential consequences of a 
release of a substance of concern from an intentional act, including: 
(1) the elimination or reduction of such substances through the use of 
alternate substance, formulations, or processes; (2) the modification 
of operations at the treatment works; and (3) the reduction or 
elimination of onsite handling of such substances through improvement 
of inventory control or chemical use efficiency.
  Section 222(b)(3)(B) requires each treatment works that possesses or 
plans to possess a designated amount of a substance of concern to 
consider, in carrying out such an assessment, the potential impact of 
any method to reduce the consequences of a chemical release from an 
intentional act on the responsibilities of the treatment works to meet 
its effluent discharge requirements under the Clean Water Act, and to 
include relevant information on any proposed method, such as how 
implementation of the method could reduce the risks to human health or 
the environment, whether the method is feasible (as such term is 
defined by the Administrator), and the potential costs (both 
expenditures and savings) from implementation of the method.
  Section 222(b)(3)(C) provides for mandatory implementation of a 
method to reduce the consequences of a chemical release from an 
intentional act for a treatment works that is assigned to one of the 
two highest risk-based tiers, and possesses or plans to possess a 
designated amount of a substance of concern. Section 222(b)(3)(C)(ii) 
authorizes the Administrator, or a State, in the case of a State with 
an approved program under section 402 of the Clean Water Act, to 
require the owner or operator of the treatment works to implement such 
a method, and includes a series of factors for the Administrator or 
State to consider in making such a determination. Section 222(b)(3)(D) 
provides a formal opportunity for the owner or operator of a treatment 
works to appeal the decision of the Administrator or a State that 
requires the implementation of such a method.

[[Page H12424]]

  Section 222(b)(3)(E) authorizes the Administrator to address 
incomplete or late assessments of methods to reduce the consequences of 
a chemical release from an intentional act at the treatment works by an 
owner or operator of a treatment works.
  Section 222(b)(3)(F) authorizes the Administrator to take action, in 
a State with an approved program under section 402 of the Clean Water 
Act, to determine whether a treatment works should be required to 
implement a method to reduce the consequences of a chemical release 
from an intentional act, and to compel the treatment works to implement 
such methods through an enforcement action, in the absence of State 
action.
  Section 222(b)(4) and (5) directs the Administrator to consult with 
the States (with approved programs), the Secretary of Homeland Security 
and, as appropriate, other persons, in developing regulations under 
this subsection. Section 222(b)(6) requires the Administrator to ensure 
that regulations developed under this subsection are consistent with 
the goals and requirements of the Clean Water Act.


                 Section 222(c). Substances of Concern

  Section 222(c) authorizes the Administrator, in consultation with the 
Secretary of Homeland Security, to designate any chemical substance as 
a substance of concern, and to establish, by rulemaking, a threshold 
quantity of such substance that, as a result of a release, is known to 
cause death, injury, or serious adverse impacts to human health or the 
environment. In carrying out this authority, the Administrator is 
required to take into account the list of ``Chemicals of Interest'', 
developed by the DHS, and published in appendix A to part 27 of title 
6, Code of Federal Regulations.


 Section 222(d). Review of Vulnerability Assessment and Site Security 
                                  Plan

  Section 222(d) requires an owner or operator of a treatment works 
covered by this section to submit a vulnerability assessment and site 
security plan to the Administrator for review in accordance with 
deadlines established by the Administrator. Section 222(d)(2) and (3) 
direct the Administrator to review such assessments and plans, and to 
either approve or disapprove such assessments and plans. Section 
222(d)(3) and (4) establish criteria for the disapproval of a 
vulnerability assessment or site security plan, and requires the 
Administrator to provide the owner or operator of a treatment works 
with a written notification of any deficiency in the vulnerability 
assessment or site security plan, including guidance for correcting 
such deficiency and a timeline for resubmission of the assessment or 
plan.


                Section 222(e). Emergency Response Plan

  Section 222(e) establishes the requirements for an owner or operator 
of a treatment works to develop and, as appropriate, revise an 
emergency response plan that incorporates the results of the current 
vulnerability assessment and site security plan for the treatment 
works. Section 222(e)(2) requires the owner or operator to certify to 
the Administrator that an emergency response plan meeting the 
requirements of this section has been completed, and is appropriately 
updated. Section 222(e)(4) requires the owner or operator of a 
treatment works to provide appropriate information to any local 
emergency planning committee, local law enforcement, and local 
emergency response providers.


                   Section 222(f). Role of Employees

  Section 222(f)(1) requires that a site security plan and emergency 
response plan identify the appropriate roles or responsibilities for 
employees and contractor employees of treatments works in carrying out 
the plans. Section 222(f)(2) requires the owner or operator of a 
treatment works to provide sufficient training, as determined by the 
Administrator, to employees and contractor employees in carrying out 
site security plans and emergency response plans.


                 Section 222(g). Maintenance of Records

  Section 222(g) requires that an owner or operator of a treatment 
works maintain an updated copy of its vulnerability assessment, site 
security plan, and emergency response plan on the premises of the 
treatment works.


                   Section 222(h). Audit; Inspection

  Section 222(h) directs the Administrator to audit and inspect 
treatment works, as necessary, to determine compliance with this 
section, and authorizes access by the Administrator to the owners, 
operators, employees, contract employees, and, as applicable, employee 
representatives, to carry out this subsection.


               Section 222(i). Protection of Information

  Section 222(i) establishes requirements for the prohibition of public 
disclosure of protected information, as defined by this subsection, and 
authorizes the Administrator to prescribe by regulation or issue 
orders, as necessary, to prohibit the unauthorized disclosure of such 
information. Section 222(i)(2)(B) provides authority to facilitate the 
appropriate sharing of protected information with and among Federal, 
State, local, and tribal authorities, first responders, law enforcement 
officials, and appropriate treatment works personnel or employee 
representatives. Section 222(i)(4), (5) and (6) ensure that the 
requirements of this subsection not affect the implementation of other 
laws or the oversight authorities of Congressional committees. Section 
222(i)(7) defines the term ``protected information''.


                       Section 222(j). Violations

  Section 222(j) provides criminal, civil, and administrative penalties 
for the violation of any requirement of this section, including any 
regulations promulgated pursuant to this section, consistent with the 
criminal, civil, and administrative penalties contained in section 309 
of the Clean Water Act.


                   Section 222(k). Report to Congress

  Section 222(k) directs the Administrator to report to Congress within 
three years of the date of enactment of the Wastewater Treatment Works 
Security Act of 2009, and every three years thereafter, on progress in 
achieving compliance with this section. Section 222(k)(3) provides that 
such reports be made publicly available.


    Section 222(l). Grants for Vulnerability Assessments, Security 
                   Enhancements, and Worker Training

  Section 222(l) authorizes Federal grants for the conduct of 
vulnerability assessments and the implementation of security 
enhancements and publicly-owned treatment works, and for security 
related training of employees or contractor employees of a treatment 
works and training of first responders and emergency response 
providers. Section 222(l)(2)(C) provides that grants made available 
under this Act not be used for personnel cost or operation or 
maintenance of facilities, equipment, or systems. Section 222(l)(2)(D) 
provides for a maximum 75 percent Federal share for grants made 
available under this Act.


                       Section 222(m). Preemption

  Section 222(m) provides that nothing in this section precludes or 
denies the right of any State or political subdivision thereof to adopt 
or enforce any regulation, requirement, or standard of performance with 
respect to a treatment works that is more stringent than a regulation, 
requirement, or standard of performance under this section.


            Section 222(n). Authorization of Appropriations

  Section 222(n) authorizes to be appropriated to the Administrator 
$200 million for each of fiscal years 2010 through 2014 for making 
grants under section 222(l).


  Section 222(o). Relation to Chemical Facility Security Requirements

  Section 222(o) provides that the requirements of Title XXI of the 
Homeland Security Act of 2002, section 550 of the Department of 
Homeland Security Appropriations Act, 2007, and the Chemical and Water 
Security Act of 2009, (and any regulations promulgated thereunder), do 
not apply to a treatment works, as such term is defined in section 212 
of the Clean Water Act.

                          Legislative History

  In the 107th Congress, on October 10, 2001, the Subcommittee on Water 
Resources and Environment held a hearing on the security of 
infrastructure within the Subcommittee's jurisdiction, including issues 
related to the nation's network of wastewater infrastructure.
  On July 22, 2002, then-Chairman Don Young introduced H.R. 5169, the 
``Wastewater Treatment Works Security Act of 2002''. On July 24, 2002, 
the Committee on Transportation and Infrastructure met in open session 
and ordered the bill reported favorably to the House by voice vote. H. 
Rept. 107-645. On October 7, 2002, the House passed H.R. 5169 by voice 
vote. No further action was taken on this legislation.
  In the 108th Congress, on February 13, 2003, then-Chairman Don Young 
introduced H.R. 866, the ``Wastewater Treatment Works Security Act of 
2003''. On February 26, 2003, the Committee on Transportation and 
Infrastructure met in open session and ordered the bill reported 
favorably to the House by voice vote. H. Rept. 108-33. On May 7, 2003, 
the House passed H.R. 5169 by a rollcall vote of 413-2. No further 
action was taken on this legislation.
  In the 111th Congress, on June 16, 2009, Water Resources and 
Environment Subcommittee Chairwoman Eddie Bernice Johnson introduced 
H.R. 2883, the ``Wastewater Treatment Works Security Act of 2009''.
  Mr. DENT. Mr. Chairman, first, there has been considerable debate 
here today whether farmers and small agricultural retailers currently 
exempt from existing regulations will be exempt from the new 
regulations required by this legislation.
  The short answer is: They will not. Section 2120 of this bill 
requires the Secretary to issue new regulations to replace the existing 
CFATS regulations. Nowhere in this bill does the Secretary have any 
authority to exempt certain individuals or classes from those 
regulations. Nowhere.
  If the majority disagrees and would care to point to a particular 
provision that authorizes the Secretary to grant exemptions from the 
provisions, including the costly IST assessment and

[[Page H12425]]

implementation provisions, I would ask that they point to that 
provision.
  At this time, I would like to yield 2 minutes to the gentleman from 
Illinois (Mr. Shimkus).
  (Mr. SHIMKUS asked and was given permission to revise and extend his 
remarks.)
  Mr. SHIMKUS. Mr. Chairman, it is all about jobs today. This bill 
affects jobs and the economy. We are close to 9.8 percent unemployment 
in the manufacturing sector, and here we are going to put more, 
additional burdens on those who create jobs. If you don't have 
employers, you don't have employees.
  I appreciate my agriculture members coming down here because it is 
not about the end users, it is about the producers of the chemicals. It 
is about the producers of the anhydrous. Those are the folks whose 
costs are going to go up.
  Now I like to come down here and talk about the hypocrisy of this 
whole debate, especially on the Safe Drinking Water Act, because if it 
really was about security, and I talked about this in the Rules 
Committee, and no one has answered this question, on the health care 
bill, Mr. Chairman, your bill, page 1785, we say this: ``The financial 
and technical capability of an Indian Tribe, or Tribal Organization, or 
Indian community to safely operate, manage, and maintain a sanitation 
facility shall not be a prerequisite to the provision or construction 
of sanitation facilities by the Secretary.''
  Your health care bill says if the Indian Tribe cannot safely run a 
plant, we are going to build you one anyway. We are not worried about 
safety and security.
  Page 1785, a financial and technical capability of an Indian Tribe, 
shall be exempt even if they can't operate safely a water treatment 
plant. So what you are doing in the health care bill, exempting Indian 
tribes who don't know how to manage a refinery, you are giving them 
protections in this health care bill. But in this bill, municipal water 
plants pay more; private water plants pay more; refineries pay more. 
Indian tribes under your health care bill----
  The Acting CHAIR. The time of the gentleman has expired.
  Mr. DENT. I yield the gentleman an additional 30 seconds.
  Mr. SHIMKUS. I would just say why would we exempt Indian tribes from 
the ability to prove that they can actually operate a water 
purification plant? Why would we do that? If safety and security is 
important, the whole premise of this bill, why would we exempt Indian 
tribes? Page 1785 of your bill in the health care reform. Three hundred 
pages on Indian health, not one page through the committee process. It 
is an abomination of the process.
  Mr. DENT. Mr. Chairman, I think you just heard some very powerful 
arguments in opposition to this legislation. This issue is all about 
jobs. I want to say one thing. It is a darn good thing that the House 
of Representatives just a couple of hours ago passed an extension of 
unemployment benefits. Because of this legislation, people are going to 
need them. That said, people around this country are very scared of 
Washington right now. They are scared of the agenda, and they are 
scared of the national energy tax called cap-and-trade. They are afraid 
of the card check bill and the health care bill that will cost more 
than a trillion dollars. So is it any wonder that unemployment rates 
are going the way they are going.
  But one thing about these IST assessments, and I feel we have to talk 
about this from a jobs standpoint, but contesting these IST assessments 
will be costly, too costly for most small businesses to afford.
  Experts estimate that a simple, one ingredient substitution would 
take two persons 2 weeks to complete and cost between $10,000 and 
$40,000, and that is on the low end. A pharmaceutical pilot plant with 
about 12 products would take three to six persons up to 10 weeks to 
complete an assessment at a cost of $100,000 to $500,000.
  Larger facilities with particularly hazardous chemicals, already 
regulated by OSHA, would require 8 to 10 people 6 months or more to 
complete at a cost of over a million dollars for the assessment. Fifty-
nine percent of the facilities regulated under the current CFATS 
regulations that would be required to conduct these costly assessments 
employ 50 or fewer people. Mandating IST will be devastating to small 
businesses across America.
  According to a California fertilizer manufacturer, eliminating the 
use of anhydrous ammonia and substituting it with urea can cost a 1,000 
acre farm up to $15,000 per application. This would be a recurring cost 
passed on to the consumer.
  On Friday, the Department of Labor is expected to revise the 
unemployment figures. Does anyone in this Chamber expect those numbers 
to go down? We hope they do, but I am afraid we know what the answer 
may be.
  Ms. RICHARDSON. Mr. Chair, I rise today to express my strong support 
for the Chemical and Water Security Act of 2009. I would also like to 
thank Chairman Oberstar, Chairman Waxman, and my distinguished 
colleague on the Homeland Security Committee, Chairman Thompson, for 
their hard work in crafting this vital legislation.
  I support this legislation because it will enhance the security of 
our nation's chemical, drinking water, and wastewater facilities and it 
lessens the vulnerability of our most critical sectors to a terrorist 
attack. Specifically, this legislation:
  Protects our nation by making critical infrastructure more secure;
  Helps my district by enhancing the security of its chemical, drinking 
water, and wastewater facilities; and
  Helps our economy by providing greater protection to the nation's 
major job creating sectors and by providing incentives to spur 
production and technological innovation.
  I also support H.R. 2868 because it contains a provision I offered 
that protects workers who identify and report violations affecting the 
safety and security of chemical facilities to management or regulatory 
authorities from retaliation and reprisal. When it comes to the 
security of our chemical, drinking water, and wastewater facilities, 
the employees who work in them are the ``First Preventers.'' We depend 
on them to be competent, vigilante, and pro-active. We owe them the 
assurance that they will not be penalized for doing their jobs 
properly. That is why I am pleased the bill also incorporates a 
provision I offered requiring facility owners to certify in writing 
their knowledge of the protections provided whistleblowers and the 
Secretary's power to protect them.
  Mr. Chair, eight years ago this September 11 terrorists attacked our 
country and inflicted incalculable damage to our people, economy, and 
national psyche. We responded to the horror and trauma of that day by 
resolving to honor the victims and heroes of 9-11 by doing all we can 
to protect our homeland and our people from any future attack.
  There is a simple answer for those who question the timing or need 
for a comprehensive legislation to safeguard these facilities.
  The poison gas leak at Union Carbide's Bhopal plant in 1984 that 
killed 10,000 people within 72 hours, and more than 25,000 people 
since, was an accident! Imagine the carnage that could result from an 
intentional act of terrorism or sabotage.
  Mr. Chair, the chemical industry alone employs nearly a million 
Americans and it accounts for nearly $600 billion of the GDP. More than 
70,000 industrial, consumer, and defense-related products--from 
plastics to fiber optics--are produced by the nation's chemical 
facilities.
  The economic and strategic value of the chemical industry makes it an 
attractive target to terrorists because many chemicals, either in their 
base form or when combined with others, can cause significant harm to 
both humans and the environment if misused.
  My congressional district alone abuts one of the nation's largest 
ports and is home to several major oil refineries, as well as gas 
treatment and petrochemical facilities. It is, as they say in the 
military, a ``target rich environment.''
  So I am not willing to wait. The time has come for us to approve 
legislation that puts in place the necessary protections and authorizes 
the necessary resources to keep our chemical, wastewater, and drinking 
water facilities secure. This bill does that.
  Chemical facilities determined by the Secretary to be at risk are 
required to conduct a Security Vulnerability Assessment (``SSV''). 
Based upon that assessment, the facility must then develop and 
implement a Site Security Plan (``SSP''), which is subject to review, 
approval, and inspection by the DHS Office of Chemical Facility 
Security.
  The legislation also authorizes the DHS Secretary to require, where 
appropriate, that chemical facilities in the highest risk tiers 
implement ``methods to reduce the consequences of a terrorist attack'' 
by utilizing ``inherently safer technologies'' (IST). And it authorizes 
the Secretary to award $225 million in grants to provide technical 
assistance and funding to finance the capital costs incurred in 
transitioning to inherently safer technologies.
  I am also pleased to note that facilities around the country have 
already begun taking

[[Page H12426]]

action to make their chemical processes safer. For example, in the 37th 
district, of which I am a proud representative, the Joint Water 
Pollution Control Plant in Carson, California, a wastewater treatment 
plant, switched from using chlorine gas to liquid bleach disinfection. 
This legislation is already spurring companies to make important 
changes that will keep our country and our communities safer.
  Mr. Chair, I could go on but it suffices to state that this 
legislation is a balanced and pragmatic response to a critical security 
need. And again, I want to thank Chairman Oberstar, Chairman Thompson, 
and Chairman Waxman for their leadership in crafting this extraordinary 
bill.
  I support the Chemical and Water Security Act and urge all members to 
do likewise.
  The Acting CHAIR (Mr. Kratovil). All time for general debate has 
expired.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Chairman, as the designee of 
the chairman of the Committee on Homeland Security, I move that the 
Committee do now rise.
  The motion was agreed to.
  Accordingly, the Committee rose; and the Speaker pro tempore (Mr. 
Tierney) having assumed the chair, Mr. Kratovil, Acting Chair of the 
Committee of the Whole House on the State of the Union, reported that 
that Committee, having had under consideration the bill (H.R. 2868) to 
amend the Homeland Security Act of 2002 to extend, modify, and recodify 
the authority of the Secretary of Homeland Security to enhance security 
and protect against acts of terrorism against chemical facilities, and 
for other purposes, had come to no resolution thereon.

                          ____________________