[Congressional Record Volume 156, Number 17 (Thursday, February 4, 2010)]
[Senate]
[Pages S492-S493]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. COLLINS (for herself, Mr. Pryor, Mr. Voinovich, and Ms. 
        Landrieu):
  S. 2996. A bill to extend the chemical facility security program of 
the Department of Homeland Security, and for other purposes; to the 
Committee on Homeland Security and Governmental Affairs.
  Ms. COLLINS. Mr. President, the law granting the Federal Government, 
for the first time, the authority to regulate the security of the 
nation's highest risk chemical facilities is due to expire at the end 
of this fiscal year. Given the success of this law and its vital 
importance to all Americans, I am introducing legislation today with 
Senators Pryor, Voinovich, and Landrieu to reauthorize it.
  The U.S. is home to an astonishing number of facilities that 
manufacture, use, or store chemicals for legitimate purposes. From 
pharmaceuticals to cosmetics, soaps to plastics and all manner of 
industrial, construction, and agricultural products, chemicals enable 
the manufacture of more than 70,000 products that improve the well-
being of the American people.
  The chemical industry is enormous, diverse, and vital to the American 
economy. It approaches half a trillion dollars annually in sales. It is 
one of our largest exporters, with exports totaling $174 billion 
annually. It directly employs more than 850,000 people nationwide and 
supports millions more indirectly.
  These facilities are vital parts of our economy and society. But, to 
our enemies, they can be potential chemical weapons. Like the airliners 
of September 11th, it would only take an attack on a few, or even one, 
to cause a horrifying loss of life.
  In 2005, as Chairman of the Homeland Security and Governmental 
Affairs Committee, I held a series of hearings to examine the terrorist 
threat to the nation's chemical facilities and the devastating 
consequences that could arise from a successful attack. As a result of 
those hearings, I introduced comprehensive, bipartisan legislation to 
provide the Department of Homeland Security with the authority 
necessary to set and enforce security standards at high-risk chemical 
facilities in the U.S. That bill formed the basis for chemical security 
legislation signed into law in 2006 as part of the Department of 
Homeland Security Appropriations Act, 2007.
  Specifically, section 550 requires the Department to issue rules 
requiring all high-risk chemical facilities to conduct vulnerability 
assessments, develop site security plans to address identified 
vulnerabilities, and implement protective measures necessary to satisfy 
risk-based performance standards. Section 550 also directs the 
Secretary of Homeland Security to review and approve those 
vulnerability assessments and site security plans and to audit and 
inspect covered chemical facilities for compliance with the performance 
standards. It also permits the Secretary to shut down covered 
facilities that are non-compliant.
  In April 2007, the Department published interim final rules, known as 
the Chemical Facilities Anti-Terrorism Standards, CFATS, setting forth 
the requirements that high-risk chemical facilities must meet to comply 
with the law. Among other things, CFATS establishes 18 risk-based 
performance standards which facilities must meet to be in compliance 
with the law. These standards cover items such as securing the 
perimeter and critical targets, controlling access, deterring the theft 
of potentially dangerous chemicals, and preventing internal sabotage.
  CFATS, however, does not dictate specific security measures. Instead, 
the law allows chemical facilities the flexibility to choose the 
security measures or programs that the owner or operator of the 
facility decides would best address the particular facility and its 
security risks, so long as these security measures satisfy the 
Department's 18 performance standards.
  Since publishing CFATS in 2007, the Department has worked 
aggressively and diligently on implementation. The Department has hired 
and trained more than 100 chemical facility field inspectors and 
headquarters staff. Indeed, by the end of Fiscal Year 2010, the 
Department hopes to employ more than 260 CFATS staff. And, to date, the 
Department has received over $200 million in funding to support CFATS.
  Given the daunting challenges of establishing such a comprehensive 
regulatory program from scratch, the Department wisely decided to 
implement CFATS in phases, beginning with those facilities presenting 
the very highest security risks.
  To determine which facilities presented the highest risks, the 
Department first required chemical plants that possessed certain 
threshold quantities of specified chemicals to complete an online 
security assessment--called ``Top-Screen.'' Based on the Top-Screen and 
any other available information, the Department then ascertained 
whether a facility ``presented a high level of security risk'' and 
preliminarily divided such facilities into four tiers of escalating 
risk. While all covered facilities must satisfy the Department's 
performance standards, the security measures sufficient to meet them 
are more robust for those facilities in the higher tiers, such as Tiers 
1 and 2.
  For chemical facilities that qualified as ``preliminarily high 
risk,'' the Department required the preparation and submission of 
security vulnerability assessments. These assessments enabled the 
Department to identify more accurately each facility's risk and, thus, 
to assign final risk tier rankings. Based on these final tier rankings, 
these facilities must develop site security plans and submit to 
inspections or audits to ensure their compliance.
  The men and women of the Department have processed a tremendous 
amount of information in a relatively short period of time. According 
to the  Department, since establishing CFATS, it has reviewed almost 
38,000 Top-Screen submissions and notified more than 7,000 facilities 
of their high-risk designations and preliminary tiers.

  As of December 2009, CFATS covered only 6,000 facilities. Some 
facilities closed; others made material modifications that altered 
their risk profile. Of those remaining, the Department has assigned 
final tiers to almost 3,000--including all of the facilities in Tiers 1 
and 2--and is now reviewing their site security plans.
  Although the Department remains in the midst of implementing CFATS, 
it has generally received positive reviews for its work. The private 
sector has become a partner in the program's success. The collaborative 
nature of the program has been praised by many experts as a model for 
security-related regulation.
  Notwithstanding the Department's success in administering the CFATS 
program and the considerable costs that facilities have incurred in 
complying with it, some now want to ``swap horses in midstream'' by 
radically overhauling the law.
  Indeed, in November 2009, the House of Representatives passed 
legislation that would dramatically alter the nature of CFATS, 
requiring the Department to completely rework the program and stop its 
considerable progress--dead in its tracks. Among other things, the 
House bill would direct the Secretary of Homeland Security to establish 
new risk-based performance standards, require covered chemical 
facilities in Tiers 1 and 2 to implement so-called ``inherently safer 
technology'', IST, and allow third-party lawsuits against the 
Department over CFATS implementation.
  Unfortunately, Mr. President, the changes proposed by the House will 
in no way enhance the nation's security. They will, however, impose 
unnecessary and costly burdens on the economy and destroy the 
collaborative public-private partnership critical to CFATS' success.
  The House provision that would allow the Department to mandate that 
certain chemical facilities implement IST is an example. IST is an 
approach

[[Page S493]]

to process engineering involving the use of less dangerous chemicals, 
less energetic reaction conditions, or reduced chemical inventories. It 
is not, however, a security measure. And because there is no precise 
methodology by which to measure whether one technology or process is 
safer than another, an IST mandate may actually increase or 
unacceptably transfer the risk to other points in the chemical process 
or elsewhere on the supply chain.
  For example, it is my understanding that after careful evaluations of 
the available alternatives, many drinking water utilities have 
determined that gaseous chlorine remains their best and most effective 
drinking water treatment option. Their decisions were not based solely 
on financial cost considerations, but also on many other factors, such 
as the characteristics of the region's climate, geography, and source 
water supplies, the size and location of the utility's facilities, and 
the risks and benefits of gaseous chlorine use compared to those 
inherent with the use of alternative treatment processes.

  According to one water utility located in an isolated area of the 
Northwest, if Congress were to force it to replace its use of gaseous 
chlorine with sodium hypochlorite, then the utility would have to use 
as much as seven times the current quantity of treatment chemicals to 
achieve comparable water quality results. In turn, the utility would 
have to arrange for many more bulk chemical deliveries, by trucks, into 
the watershed. The greater quantities of chemicals and increased 
frequency of truck deliveries would heighten the risk of an accident 
resulting in a chemical spill into the watershed. In fact, the 
accidental release of sodium hypochlorite into the watershed would 
likely cause greater harm to soils, vegetation and streams than a 
gaseous chlorine release in this remote area. Because the facility is 
so isolated from population centers, the gas released in the event of 
an accident would almost certainly dissipate before reaching populated 
areas.
  Forcing chemical facilities to implement IST could wreak economic 
havoc on some facilities and affect the availability of products that 
all Americans take for granted. For instance, according to October 2009 
testimony by the Society of Chemical Manufacturers and Affiliates 
before the House Committee on Energy and Commerce, mandatory IST would 
negatively restrict the production of pharmaceuticals and 
microelectronics, unnecessarily crippling those industries.
  Moreover, the increased cost of a mandatory IST program could 
encourage chemical companies to transfer their operations overseas, 
costing thousands of American jobs.
  To be clear, some owners and operators of chemical facilities will 
want to use IST. But the decision to implement IST should be that of 
the owner or operator, not a Washington bureaucrat.
  In fact, the evidence is quite compelling that many chemical 
facilities, based on an assessment of many complex factors, have 
already taken steps to avoid the use, storage, and handling of 
extremely dangerous chemicals in favor of safer alternative processes. 
The Department's own data indicate that nearly 1,000 facilities 
voluntarily adopted safer alternative processes.

  Notwithstanding all of the other changes to CFATS passed by the 
House, the mandatory IST requirement itself will bring CFATS to a 
screeching halt. This is neither necessary nor wise. Congress should 
not dictate specific industrial processes under the guise of security 
when a facility may choose other alternatives that meet the Nation's 
security needs.
  That is precisely why Senators Pryor, Voinovich, Landrieu, and I are 
introducing the Continuing Chemical Facilities Antiterrorism Security 
Act of 2010. Instead of directing the Department to start again from 
scratch, our legislation would reauthorize section 550 for five more 
years. Such an extension would provide the Department with sufficient 
time to fully implement the CFATS program in its current form. It would 
also provide a stable regulatory environment to encourage chemical 
innovation and industry confidence.
  Our legislation also contains two improvements, both of which are 
based on similar provisions from the Security and Accountability For 
Every, SAFE, Port Act of 2006. The first would direct the Secretary to 
establish a voluntary Chemical Security Training Program to enhance the 
capabilities of Federal, State, and local governments, chemical 
industry personnel, and governmental and nongovernmental emergency 
response providers to prevent, prepare for, respond to, mitigate 
against, and recover from acts of terrorism, natural disasters, and 
other emergencies that could affect chemical facilities. The second 
would create a voluntary program to test and evaluate these 
capabilities.
  Not only is the chemical industry vital to our country's economy, but 
also it is the linchpin to the important advancements and innovations 
in critical fields such as science, technology, agriculture, medicine, 
and manufacturing.
  As one of the co-authors of the first chemical security law, no one 
is more conscious than I am of the risks that attacks on chemical 
facilities pose to the nation. The Department has done a remarkable job 
developing a comprehensive chemical security program.
  If our true intent is to secure high-risk facilities, then it is 
incumbent upon Congress to allow the Department to continue doing its 
job implementing CFATS.
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