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46–861 PDF 2008

HEARING ON H.R. 5533, 

THE CHEMICAL FACILITIES ACT OF 2008 AND 

H.R. 5577, THE CHEMICAL 

FACILITY ANTI-TERRORISM ACT OF 2008 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND 

HAZARDOUS MATERIALS 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JUNE 12, 2008 

Serial No. 110–127 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

JOHN D. DINGELL, Michigan, Chairman 

HENRY A. WAXMAN, California 

EDWARD J. MARKEY, Massachusetts 

RICK BOUCHER, Virginia 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BART GORDON, Tennessee 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

BART STUPAK, Michigan 

ELIOT L. ENGEL, New York 

ALBERT R. WYNN, Maryland 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

Vice Chairman 

LOIS CAPPS, California 

MIKE DOYLE, Pennsylvania 

JANE HARMAN, California 

TOM ALLEN, Maine 

JAN SCHAKOWSKY, Illinois 

HILDA L. SOLIS, California 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

DARLENE HOOLEY, Oregon 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

CHARLIE MELANCON, Louisiana 

JOHN BARROW, Georgia 

BARON P. HILL, Indiana 

JOE BARTON, Texas 

Ranking Member 

RALPH M. HALL, Texas 

FRED UPTON, Michigan 

CLIFF STEARNS, Florida 

NATHAN DEAL, Georgia 

ED WHITFIELD, Kentucky 

BARBARA CUBIN, Wyoming 

JOHN SHIMKUS, Illinois 

HEATHER WILSON, New Mexico 

JOHN B. SHADEGG, Arizona 

CHARLES W. ‘‘CHIP’’ PICKERING, 

Mississippi 

VITO FOSSELLA, New York 

ROY BLUNT, Missouri 

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE FERGUSON, New Jersey 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

PROFESSIONAL STAFF

DENNIS B. FITZGIBBONS, Chief of Staff 

GREGG A. ROTHSCHILD, Chief Counsel 

SHARON E. DAVIS, Chief Clerk 

DAVID CAVICKE, Minority Staff Director 

(II) 

(III) 

SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS

ALBERT R. WYNN, Maryland, Chairman 

FRANK PALLONE, JR., New Jersey 

BART STUPAK, Michigan 

LOIS CAPPS, California 

TOM ALLEN, Maine 

HILDA L. SOLIS, California 

Vice Chairman 

TAMMY BALDWIN, Wisconsin 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

BARON P. HILL, Indiana 

DIANA DEGETTE, Colorado 

ANTHONY D. WEINER, New York 

HENRY A. WAXMAN, California 

GENE GREEN, Texas 

JAN SCHAKOWSKY, Illinois 

JOHN D. DINGELL, Michigan (ex officio) 

JOHN B. SHADEGG, Arizona 

Ranking Member 

CLIFF STEARNS, Florida 

NATHAN DEAL, Georgia 

JOHN SHIMKUS, Illinois 

HEATHER WILSON, New Mexico 

VITO FOSELLA, New York 

GEORGE RADANOVICH, California 

JOSEPH R. PITTS, Pennsylvania 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

JOE BARTON, Texas (ex officio) 

PROFESSIONAL STAFF

RICHARD FRANDSEN, Chief Counsel 

CAROLINE AHEARN, Counsel 

RACHEL BLESHMAN, Legislative Clerk 

GERALD COURI, Minority Counsel 

(V) 

C O N T E N T S 

Page 

Hon. Hilda L. Solis, a Representative in Congress from the State of California, opening statement .................................................................................... 1 

Hon. John B. Shadegg, a Representative in Congress from the State of Arizona, opening statement ...................................................................................... 3 

Hon. Lois Capps, a Representative in Congress from the State of California, 

opening statement ................................................................................................ 8 

Hon. Joe Barton, a Representative in Congress from the State of Texas, 

prepared statement .............................................................................................. 37 

Hon. G.K. Butterfield, a Representative in Congress from the State of North 

Carolina, prepared statement ............................................................................. 45 

Hon. John D. Dingell, a Representative in Congress from the State of Michigan, prepared statement ...................................................................................... 96 

Hon. Cliff Stearns, a Representative in Congress from the State of Florida, 

prepared statement .............................................................................................. 108 

Hon. John Sullivan, a Representative in Congress from the State of Oklahoma, prepared statement ................................................................................... 111 

WITNESSES

Benjamin Grumbles, Assistant Administrator, Office of Water, U.S. Environmental Protection Agency .................................................................................... 9 

Prepared statement .......................................................................................... 12 

Submitted questions 1 ......................................................................................

Robert B. Stephan, Assistant Secretary for Infrastructure Protection, Department of Homeland Security ................................................................................. 23 

Prepared statement .......................................................................................... 25 

Answers to submitted questions ...................................................................... 144 

Brad Coffey, water treatment section manager, Metropolitan Water District 

of Southern California ......................................................................................... 56 

Prepared statement .......................................................................................... 58 

Answers to submitted questions ...................................................................... 150 

P.J. Crowley, senior fellow and director of homeland security, The Center 

for American Progress ......................................................................................... 73 

Prepared statement .......................................................................................... 74 

Answers to submitted questions ...................................................................... 153 

Marty Durbin, managing director of Federal affairs, The American Chemistry 

Council .................................................................................................................. 78 

Prepared statement .......................................................................................... 80 

Answers to submitted questions ...................................................................... 155 

Andrea Kidd Taylor, DRPH, MSPH, assistant professor, Morgan State University, School of Community Health and Policy .............................................. 84 

Prepared statement .......................................................................................... 85 

Answers to submitted questions ...................................................................... 159 

SUBMITTED MATERIAL

Agricultural groups, letter of May 8, 2008, submitted by Mr. Shadegg ............. 94 

American Water Works Association, letter of January 18, 2008, submitted 

by Mrs. Solis ......................................................................................................... 97 

Association of Metropolitan Water Agencies, letter of January 23, 2008, submitted by Mrs. Solis ............................................................................................. 99 

Environmental and labor groups, letter of May, 2008, submitted by Mrs. 

Solis ....................................................................................................................... 101 

Industrial Safety Training Council, letter of June 12, 2008, submitted by 

Mr. Green .............................................................................................................. 105 

Page

VI 

Food and agricultural industries, letter of June 10, 2008, submitted by Mr. 

Shadegg ................................................................................................................. 107 

Center for American Progress, report of April, 2007, entitled, ‘‘Toxic Trains 

and the Terrorist Threat’’, submitted by Mr. Waxman .................................... 112 

1 Assistant Administrator Grumbles of the Environmental Protection Agency 

did not answer submitted questions for the record. 

(1) 

HEARING ON H.R. 5533, THE CHEMICAL FACILITIES ACT OF 2008 AND H.R. 5577, THE 

CHEMICAL FACILITY ANTI-TERRORISM ACT 

OF 2008 

THURSDAY, JUNE 12, 2008 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS

MATERIALS, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 10:04 a.m., in room 

2322 of the Rayburn House Office Building, Hon. Hilda Solis (vice 

chairwoman) presiding. 

Members present: Representatives Solis, Pallone, Capps, 

Butterfield, Barrow, Waxman, Green, Matsui, Shadegg, Stearns, 

Wilson, Pitts, Terry, Sullivan, Murphy, Barton [ex officio], and 

Hall. 

Staff present: Dick Frandsen, Caroline Ahearn, Chris Treanor, 

Rachel Bleshman, Alex Haurek, David McCarthy, Jerry Couri, 

Peter Kielty, Garrett Golding, and Sara Decker. 

OPENING STATEMENT OF HON. HILDA L. SOLIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Ms. SOLIS. I would like to call today’s hearing to order. The subcommittee will come to order. Today we have a hearing on H.R. 

5533, The Chemical Facilities Act of 2008 and H.R. 5577, The 

Chemical Facility Anti-Terrorism Act of 2008. For purposes of making opening statements, the chairs and ranking members of the 

subcommittee and the full committee will each be recognized for 5 

minutes. All other members of the subcommittee will be recognized 

for 3 minutes. Members may waive the right to make an opening 

statement and instead add those 3 minutes to their time for questions. Without objection, all members have 5 legislative days to 

submit opening statements for the record. 

The chair would like to take a privilege moment to recognize 

Representative Doris Matsui from California, who is joining us 

today as a new member of the full committee. Welcome, Congresswoman Matsui. We are very pleased you are here with us. 

I am pleased to chair this hearing today to discuss chemical facility security legislation, including H.R. 5533, The Chemical Facilities Act of 2008, and recognize myself for 5 minutes. 

2 

The terrorist attacks of September 11 brought to the forefront 

the risks posed to our infrastructure by intentional acts of vandalism and terrorism, both foreign and domestic. These events and 

others also raise serious questions about our Nation’s preparedness 

to respond to future attacks. This preparedness includes our drinking water system. I am pleased to have a representative with us 

today from southern California, a region which is particularly vulnerable to any threat to our water system, given our lack of water 

resources. The risk to our communities from chemical facilities and 

drinking water facilities, which use dangerous chemicals, as you 

know, are many. 

In addition to the damage to infrastructure, the economy and 

public health, such an incident would also seriously damage public 

confidence in our ability to secure our Nation. The risks we are discussing are widespread. Across our Nation, more than 7,000 chemical facilities may each pose risk to the health of 1,000 or more people. One hundred of these plants each risk one million people. 

Unfortunately, existing regulations, which were enacted through 

the appropriations process rather than through regular order raise 

questions about our ability to protect communities from these 

threats. For example, the chemical facilities’ antiterrorism standards rely solely on conventional parameter security. This guns-andguards-only system actually prohibits the Federal Government 

from requiring consideration of safer, cost-effective technologies. 

In many instances, these safer, cost-effective technologies could 

significantly reduce the risk not only to workers and the surrounding community, but also communities like those which I represent, which is home to the Alameda Corridor, one of the largest 

freight corridors in the country. 

The American Association of Railroads also agrees with me. In 

a statement on February 27, 2008, they wrote ‘‘we can no longer 

continue to risk the lives of millions of Americans by using, transporting, and storing highly toxic chemicals when there are safer alternatives commercially available.’’ They went on to state that if 

dangerous chemicals were replaced, millions of Americans who live 

in cities or towns near chemical plants or railroad tracks would be 

safer. And many manufacturing facilities and water treatment 

plants would no longer store large quantities of the very chemicals 

that make attractive targets for terrorists. 

I am concerned that the existing system appears to be more of 

a paperwork exercise rather than a serious effort to ensure our facilities are secure as possible. 

In addition to protecting our communities, we must also make 

sure that our workers are protected. Legislation should ensure that 

employees and their representatives are included in exercises to access vulnerabilities, the development of plant security programs, 

and the training for all relevant employees is required. Inspections 

should also be required. 

In addition, we must protect our workers from the potential misuse of background checks and protect whistleblowers from retaliation. I believe there are two additional key components that we 

must consider. 

First, I strongly believe that drinking water facilities should be 

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vironmental Protection Agency. For our drinking water systems, security is not only a matter of protecting against terrorist acts but 

also about protecting us from contaminants. The unique needs of 

these facilities are something that the EPA is well versed in and, 

I believe, they should not be in the jurisdiction of the Department 

of Homeland Security. 

Secondly, I believe that Federal legislation should not preempt 

state laws. In some instances, state laws and regulations may address unique situations by being more protective. And I believe we 

should preserve the rights of states to take such action. 

Again I want to thank our witnesses for being here and joining 

us. I look forward to discussing further the components of chemical 

facility security legislation. 

At this time, I would like to recognize the ranking member, Mr. 

Shadegg from Arizona, for opening statement of 5 minutes. 

OPENING STATEMENT OF HON. JOHN B. SHADEGG, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA 

Mr. SHADEGG. Thank you, Madam Chairwoman, and let me congratulate you on your first hearing as chairwoman of this committee. I look forward to working with you as we go forward, and 

I will not try to read my entire statement and would ask unanimous consent to insert it into the record. 

Ms. SOLIS. Without objection. 

Mr. SHADEGG. United States is fortunate to have a robust chemical industry. That industry employs over a million Americans and 

produces 21 percent of the world’s chemicals. It invests almost $3 

billion annually in research and development leading to further 

economic growth. Given that the products handled by this robust 

industry, the security of chemical plants is of utmost importance to 

our national security. I am happy to see that the security of chemical plants is being addressed both through industry standards and 

in various government programs. 

As we will hear from the American Chemistry Council, chemical 

company are subject themselves to mandatory security regulations 

under the ACC’s Responsible Care Program. Other companies outside of the ACC also have very robust and effective security programs. Legislatively, the Maritime Transportation Security Act requires vulnerability assessments and security plans for U.S. ports, 

often the location of a number of these chemical facilities. 

The Public Health Security and Bioterrorism Preparedness and 

Response Act requires a similar program comprised of site vulnerability assessments and emergency response plans for community 

water systems serving more than 3,300 people. 

Finally, Section 550 of the Department of Homeland Security Act 

of fiscal year 2007 has created a program within the department 

to regulate chemical facilities for security purposes. These regulations are just now being finalized. Notably, Section 550 exempted 

water facilities already covered by various EPA programs. 

I believe this distinction is very appropriate, given the long tradition of EPA in regulating such facilities. It is also important to 

have one set of focused rules as opposed to overlapping guidelines 

instituted by various agencies. Given the vast amount of activity 

being conducted in regard to chemical plant security, both at the 

4 

industry level and at the government level, I have questions about 

whether there is a need to further legislate on this issue through 

H.R. 5577, The Chemical Facility Anti-Terrorism Act. 

I am concerned that we are not allowing enough time for the current law to be implemented, given that the regulations were just 

in place and that we are now immediately contemplating new legislation on the basis of no lessons learned. I think it is important 

that we look at what we have learned through our current regulatory scheme before we move at least precipitously forward. 

Clearly this is the committee with primary jurisdiction, and I 

hope that through this hearing which you are holding, and I commend you for doing so, and through the work of the committee, we 

can bring rationality and sensitivity to this process. It seems to be 

important for our Nation’s economy that we not impose further 

burdens before we have even contemplated or calculated what burdens we have already imposed. 

I think there are important issues to be raised about the current 

scheme and about the burdens that might be created by a new regulatory scheme. And I look forward to working with you on this 

legislation. 

I am anxious to know if in fact the full committee plans to mark 

this legislation up and/or to proceed in regular order in processing 

it. And with that, I yield back. Thank you, Madam Chairman. 

[The prepared statement of Mr. Shadegg follows:] 

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Ms. SOLIS. Thank you, Mr. Shadegg. Next I would like to recognize the gentlewoman from California, Mrs. Capps, for 3 minutes. 

OPENING STATEMENT OF HON. LOIS CAPPS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mrs. CAPPS. Thank you, Madam Chairwoman. Today we will 

hear about the threat posed by toxic chemicals and the need to assure the security of those chemicals. Specifically, we will hear testimony on two bills that seek to provide essential protections to millions of workers and communities now living in the shadow of preventable chemical disasters. 

Since 2001, we have had to reorder our priorities as a number 

of issues have taken on a new urgency. The security of toxic chemicals throughout the United States is a very high part of that list. 

The fact of whether there is a serious threat posed by toxic chemicals in communities throughout the country is no longer a question. 

Security experts list chemical plants as vulnerable and a deadly 

part of our Nation’s infrastructure. 

Across the country, there are more than 7,000 chemical facilities 

that each put 1,000 or more people at risk of serious injury or 

death in the event of a chemical release from that facility. One 

hundred of these plants put more than one million people at such 

risk. Our State of California is near the top of the list of States 

with facilities with extremely hazardous chemicals onsite. In fact, 

California has more than 150 facilities with over 100,000 pounds 

of extremely hazardous materials. Clearly the threat is real, and it 

requires immediate attention. 

While we are in better shape than we were 2 years ago, Congress 

must act quickly to pass protective and comprehensive chemical security legislation. The temporary chemical security law enacted in 

2006 and set to expire next year does little to eliminate existing 

safety and security gaps. For example, it exempts thousands of 

chemical facilities such as water treatment plants. It also prohibits 

the Homeland Security Department from requiring safer and more 

secure chemicals or technologies that can reduce or eliminate the 

effect of an attack. 

Madam Chairwoman, we need to get ahead of these threats. I am 

hopeful that this committee can produce legislation that does four 

things at least: advances the use of safer and more secure chemicals in technologies where feasible, involves plant employees in developing security programs, allows state to set more protective security standards, and finally includes all categories of facilities 

such as water treatment plants. 

Let me just say that I understand the value of chemicals in our 

society. We are not here today to question whether we need chemicals, but as a public health nurse, I am well aware of the fact that 

what we need to do is protect those chemicals, especially the very 

hazardous ones, and also the employees that handle them every 

day, from terrorist threats. We need to keep our eye on this ball. 

Action is long overdue to address these preventable chemical disasters. All of us have a responsibility to make sure we do all we 

can to keep our country safe. So let us rise to the challenge and 

enact legislation to eliminate this threat. I yield back. 

9 

Ms. SOLIS. We thank the gentlewoman. Next I would like to recognize the gentlewoman from New Mexico, Congresswoman Wilson. 

Ms. WILSON. I’ll pass, Madam Chair. 

Ms. SOLIS. She holds her time. Next member to be recognized, 

Mr. Barrow, the Congressman from Georgia is recognized for 3 

minutes. 

Mr. BARROW. I thank the Chair. I will not take the 3 minutes. 

I want to add my concerns to those that have been expressed here 

and share about those. And I also want to add to the mix that we 

take into account the special needs of the agriculture community, 

representing a largely rural district. We need to recognize that 

many of the chemicals that we are going to be dealing with and addressing in this legislation are going to be site-specific and fieldspecific, and we need to make sure that the interests of agriculture 

are taken into account. 

Then I will yield back the balance of my time. Thank you. 

Ms. SOLIS. I thank the gentleman. Next we would like to recognize the gentleman from Pennsylvania, Mr. Murphy. 

Mr. MURPHY. I will defer. 

Ms. SOLIS. OK, the Chair would like to make a unanimous consent request to include in the record at the appropriate location the 

following letters: a letter dated May 2008 from a coalition of environmental, public interest, and labor groups to members of Congress, a letter dated January 23, 2008 from the Association of Metropolitan Water Agencies to the chairman and ranking member of 

the Committee on Homeland Security, and third, a letter dated 

January 18, 2008 from the American Waterworks Association to 

the chairman of the Committee on Homeland Security. Is there any 

objection? Unanimous consent. OK, that is approved. 

[The submitted material appears at the conclusion of the hearing.] 

Ms. SOLIS. We will recognize our witnesses. This concludes our 

opening statements for members. I would like to welcome Mr. Ben 

Grumbles to our hearing today, the Assistant Administrator for the 

Office of Water at the Environmental Protection Agency. Mr. 

Grumbles, you have 5 minutes for your opening statement, and 

thank you for coming. We appreciate your presence. 

STATEMENT OF BENJAMIN GRUMBLES, ASSISTANT ADMINISTRATOR, OFFICE OF WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. GRUMBLES. Thank you, Madam Chairwoman and all the 

members of the subcommittee. I am Ben Grumbles, assistant administrator for Water at EPA, and I would also like to acknowledge 

that while he is not here, Tom Dunn, the associate administrator 

for the Office of Homeland Security within EPA is also a very 

strong partner and part of this effort and this testimony. We have 

been working together very closely. 

EPA has been working together very closely with Colonel 

Stephan and the Department of Homeland Security. So we welcome the opportunity to appear before you to discuss our efforts on 

water security, in particular chemical security for the water sector, 

and also to share with you the conclusion that we have shared and 

agree with the Department of Homeland Security that there is an 

10 

important gap in the framework for regulating the security of 

chemicals at water and wastewater facilities in the United States. 

Water is life, and it is also America’s greatest liquid asset. And 

so it is important for all of us to work together to ensure that it 

is clean, safe, and secure, and the infrastructure that supports it 

is sustainable. And a fundamental part of sustainability is security, 

not only at the water treatment plant but as part of the whole distribution system to get this precious asset to the homes and businesses in communities. 

EPA has worked over the last several years to support the water 

sector in improving water security and preparedness, and the sector has taken their responsibility seriously. This country is safer 

than it was before or at the time of 9/11, but it is not safe enough. 

And so you have EPA and DHS appearing before you to say we 

want to work with you and with other committees to help to close 

this important gap when it comes to chemical security at water and 

wastewater treatment plants. 

The emphasis of the agency, when it comes to water security, is 

prevention, detection, response, and recovery. And consistent with 

the Bioterrorism Act, using the authorities under the Bioterrorism 

Act but also the President’s Homeland Security directives, EPA has 

moved out ahead and taken many steps to strengthen the security 

and sustainability of drinking water systems throughout the country. 

I do want to mention that some of our priorities are on the prevention effort in addition to helping to close this gap on chemical 

security. On the prevention front, we want to work with Congress 

to continue to implement the Administration’s water security initiative, which is a very important pilot program for developing a 

national model for contaminant warning systems, to use the five 

senses, a multidimensional approach so that water systems in cities throughout America can detect as early as possible the presence 

of chemical or biological or radiological warfare agents. 

We also believe that initiative is important because it offers dual 

benefits. It also not only improves the security of water systems, 

it helps them to comply with EPA regulations and the statutory 

mandates that your committee is responsible for. 

Madam Chair, with respect to chemical security, as you know, it 

is currently implemented through voluntary measures by drinking 

water and wastewater utilities. We recognize the complexities associated with balancing public health and security and recognize that 

the use of gaseous chlorine as a disinfectant is a decision for utilities and States after carefully considering Safe Drinking Water Act 

regulatory requirements, public health, the characteristics of their 

source water, weather patterns, and community and worker safety, 

in addition to other factors. 

We recognize that important point of the need to balance public 

safety with public health and safe water. We have developed tools 

and training and technical assistance to help the utilities with 

DHS and with various coordinating sectors. We have been working 

with utilities in States and communities across the country to take 

important steps to better secure their systems, particularly as it relates to chemicals. 

11 

But we, Madam Chair, recognize that there is a need to do more. 

In February 2008, the Water Sector Coordinating Council and the 

Government Coordinating Council approved a suite of 22 voluntary 

performance measures related to security for the water sector. 

Three utility measures deal specifically with hazardous chemicals. 

The measure’s reporting tool will be administered by a non-governmental third party, and an aggregate version of the security 

progress data will be provided to EPA once collected and analyzed. 

But we think more needs to be done, and that is why we joined 

with DHS, delighted to appear before you to help answer questions 

you may have and work with you together to strengthen the security of the water sector related to chemicals. 

[The prepared statement of Mr. Grumbles follows:] 

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Ms. SOLIS. Thank you. Very good. I would like to next recognize 

our witness, Colonel Robert Stephan, Assistant Security for Infrastructure Protection at the Department of Homeland Security. You 

are recognized for 5 minutes for your opening statement. 

STATEMENT OF COLONEL ROBERT B. STEPHAN, ASSISTANT 

SECRETARY FOR INFRASTRUCTURE PROTECTION, DEPARTMENT OF HOMELAND SECURITY 

Colonel STEPHAN. Thank you, Madam Chairwoman, Ranking 

Member Shadegg, and other distinguished members of this subcommittee. It is a pleasure to appear before you today with my colleague, Assistant Administrator Grumbles from the EPA to address 

progress on implementing our chemical facility antiterrorism 

standards, more affectionately known to all of us as CFATS, as 

well as to provide you insight regarding a transition of existing regulatory authorities to a permanent authorization. This is key: moving from a temporary authorization to a permanent authorization 

before the sunset clause kicks in October 1, 2009 on the current 

CFATS authorization. 

In terms of CFATS, we have made significant progress in the 

past few months including the receipt and review of approximately 

32,000 facility base consequence analysis automated surveys, the 

initial identification of high-risk facilities within the chemical sector, and analysis to preliminarily tier these high-risk facilities. We 

will soon be notifying these facilities of their requirement to submit 

a security vulnerability assessment to the department. Once we 

have made these notifications, I would like to offer to come back 

to you and brief you and your staff on the specific of the chairing 

analysis. 

As you know, Section 550 of the ’07 DHS Appropriations Act directed the department to develop and implement a regulatory 

framework to address high-risk chemical facilities. The following 

core principles guided the development and implementation of this 

regulatory structure. Number one, securing high-risk chemical facilities is an immense undertaking that involves a national effort 

including all levels of government in the private sector. Number 

two, risk-based tiering will ensure that resources are appropriately 

deployed and implemented. Number three, reasonable, clear, equitable, and comprehensive performance standards will lead to enhanced security at our most high-risk facilities. And finally, recognition of the progress many companies have made in improving 

facility securities leverages those additional CFATS enhancements. 

The final Appendix A to the CFATS rule published on November 

20, 2007 after a public notice and comment period contains a list 

of chemicals of interest and their screening threshold quantities. 

The department includes chemicals based on the consequences associated with one or more of the following three security issues: release, toxic flammable or explosive chemicals that have the potential to create adverse consequences for human life, threat and diversion security issues, chemicals that have the potential at stolen 

or diverted offsite to be used and converted into weapons, and finally number three, sabotage contamination chemicals that have 

mixed with other readily available materials have the potential to 

create significant consequences to human health and life. 

24 

Implementing and executing this regulation requires the department to identify facilities that it considers high risk. We have developed a suite of tools to identify potentially high-risk facilities 

and provide methodologies facilities can use that are user friendly 

to conduct security vulnerability assessments and develop site security plans. 

We have a suite of tools that involves user registration, consequence analysis, site security vulnerability assessments, and a 

site security of planning template. Through a top screen process of 

consequence analysis process, we initially identify facilities that 

have a significant potential of negative consequences and then can 

screen out those that need not proceed further in the regulatory 

framework. 

If a facility is not screened out, DHS assigns the facility to a preliminary risk-based tier. Those facilities must then complete comprehensive vulnerability assessments and submit them for approval to the department. Results from this vulnerability assessment inform the department’s termination of a final risk-based tier. 

After approval of these assessments, high-risk facilities are required to develop site security plans that address identified 

vulnerabilities according to 18 comprehensive performance-based 

standards and security issues represented by the facility. The higher the risk-based of the tier, the more robust the security measures 

and the more frequent and rigorous the inspection regime will be. 

CFATS promulgates 18 again performance-based standards for 

compliance. These standards themselves are broad and designed to 

promote a great deal of flexibility in how a facility approaches 

meeting standards applicable to it. Although all high-risk facilities 

must comply with these performance standards, the measures necessary to meet these performance standards will vary across the 

tiers but will ultimately have to be approved in the security plan 

by the Secretary of Homeland Security. 

Since the release of our rule in April of 2007 and its Appendix 

A, the department has taken significant steps to publicize the rule 

and make sure our security partners are aware of CFATS and its 

requirement through dedicated outreach program. 

Additionally, the department intends to continue focusing efforts 

on fostering solid working relationships with State and local government officials and first responders in jurisdictions where these 

high-risk facilities can be found. 

To meet the risk-based performance elements under CFATS, facilities will have to develop active, effective working relationships 

with local law enforcement and emergency responder officials in 

the areas of delaying and responding to potential attacks as well 

as a clear understanding of roles and responsibilities during an elevated threat situation. 

We have gone through the regulatory program now for about a 

year and a half. We have a program that is reflected in our ’08 

budget and some additional requirements that we will bring online 

through our ’09 budget. We will be glad to provide the committee 

examples or copies of those documents so that you would get a full 

measure of the specific programmatic activities we’re putting in 

place over the course of the next year or two. 

25 

In terms of new legislation, DHS and EPA believe that there is 

an important gap in the framework for regulating the security of 

chemicals at water and wastewater facilities. The authority for regulating the chemical industry purposely excludes from its coverage 

water and wastewater treatment facilities. And I would like to get 

to this issue during the course of this hearing, and I thank you for 

your leadership in calling this important session together. 

[The prepared statement of Colonel Stephan follows:] 

TESTIMONY OF ROBERT B. STEPHAN

SUMMARY

Today’s testimony will address progress on the implementation of the Department’s authority over security at high-risk chemical facilities through the Chemical 

Facility Anti-Terrorism Standards (CFATS) program. 

We have made significant progress in the past few months, including the receipt 

and review of approximately 30,000 facilities’ Top-Screen questionnaires and analysis to preliminarily tier these high-risk facilities. We will soon be notifying those 

preliminarily tiered facilities of the Department’s initial high-risk determination, 

and of their requirement to submit a Security Vulnerability Assessment to the Department. 

The Department is collaborating extensively with the public, including members 

of the chemical sector and other interested groups, to actively work toward achieving our collective goals under the CFATS regulatory framework. In almost every 

case, 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 as partners with industry, States, and localities to get the job done. 

The Department of Homeland Security and the Environmental Protection Agency 

believe that there is an important gap in the framework for regulating the security 

of chemicals at water and wastewater treatment facilities in the United States. 

Water and wastewater treatment facilities that are determined to be high-risk due 

to the presence of chemicals of interest should be regulated for security in a manner 

that is consistent with the CFATS risk- and performance-based framework while 

also recognizing the unique public health and environmental requirements and responsibilities of such facilities. The Department of Homeland Security and the Environmental Protection Agency look forward to working with the committees to address this issue. 

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 borne considerable fruit. In doing so, we look forward to 

collaborating with the Committee to ensure that the chemical security regulatory effort is sufficiently defined in order to achieve success in reducing risk throughout 

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. 

STATEMENT

Thank you, distinguished Members of the Subcommittee. It is a pleasure to appear before you today to address progress on the implementation of the Department’s authority over security at high-risk chemical facilities through the Chemical 

Facility Anti-Terrorism Standards (CFATS) program, as well as provide insight regarding a transition of the existing regulatory program to a permanent authorization. In terms of CFATS, we have made significant progress in the past few months, 

including the receipt and review of approximately 30,000 facilities’ Top-Screen questionnaires, initial identification of high-risk facilities, and analysis to preliminarily 

tier these high-risk facilities. We will soon be notifying those preliminarily tiered 

facilities of the Department’s initial high-risk determination, and of their requirement to submit a Security Vulnerability Assessment to the Department. 

26 

CHEMICAL SECURITY REGULATIONS

Section 550 of the Fiscal Year 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. 

Consequently, the Department published an Interim Final Rule, known as the 

Chemical Facility Anti-Terrorism Standards (CFATS), on April 9, 2007. Specifically, 

Section 550(a) of the Act authorizes the Department to require high-risk chemical 

facilities to complete Security Vulnerability Assessments (SVAs), develop Site Security Plans (SSPs), and implement protective measures necessary to meet risk-based 

performance standards established by the Department of Homeland Security. Section 550 also exempts a number of facilities from coverage, including drinking water 

and waste water treatment facilities, as defined by Section 1401 of the Safe Water 

Drinking Act, Pub. L. No. 93-523, as amended, and by Section 212 of the Federal 

Water Pollution Control Act, Pub. L. No. 92-500, respectively. 

The following core principles guided the development of this regulatory structure: 

1)Securing high-risk chemical facilities is an immense undertaking that involves 

a national effort, including all levels of government and the private sector. Integrated and effective partnerships among all stakeholders - Federal, State, local, and 

private sector - are essential to securing our national critical infrastructures, 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. 

By working closely with experts, such as New York and New Jersey State officials, 

members of industry, members of 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, and the greatest level of scrutiny should 

be focused on those facilities that, if attacked, could endanger the greatest number 

of lives, have the greatest economic impact, or present other significant risks. 

3)Reasonable, clear, and equitable performance standards will lead to enhanced 

security. The CFATS rule includes enforceable risk-based performance standards. 

Facilities have the flexibility to select among appropriate site-specific security measures that will effectively address risk, which leads to a Site Security Plan (SSP). 

The Department will analyze each facility’s SSP, and, if it satisfies the CFATS performance standards, approve the SSP. If an SSP does not meet the CFATS performance standards, DHS will disapprove the plan and work with the facility, so that 

the facility can 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, and building on that 

progress in implementing the CFATS program will raise the overall security baseline of high-risk chemical facilities. 

Appendix A: Chemicals of Interest List 

The final Appendix A to the CFATS rule, published in the Federal Register on 

November 20, 2007, after a notice and comment period, contains a list of Chemicals 

of Interest and their Screening Threshold Quantities. Possession of one or more of 

these chemicals of interest at or above the applicable threshold quantity triggers a 

requirement for the facility to complete and submit an online consequence assessment, the Top-Screen. The data gathered through the Top-Screen inform the Department’s initial determination of the facility’s level of risk and the potential need 

for the facility to comply with the substantive requirements of the CFATS. 

Appendix A 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 consequence 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; 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, given the above three listed security issues. 

27 

CHEMICAL SECURITY ASSESSMENT TOOL

Implementation and execution of the CFATS regulation requires 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 facilities can use to conduct SVAs and to develop 

SSPs. CSAT is a suite of online applications, including: user registration, the initial 

consequence-based screening tool (or Top-Screen), an SVA tool, and an SSP template. The Top-Screen builds on the voluntary assessment tool referred to as the 

Risk Analysis and Management for Critical Asset Protection (RAMCAP), which was 

developed with technical input from industry. Through the Top-Screen process, the 

Department can initially identify which facilities do or do not have a significant potential to be the source of negative consequences (that is, those that are or are not 

high-risk) and can then ′′screen out′′ those facilities across the country that are not 

high-risk. 

The Department required facilities that possess a chemical of interest at or above 

the listed Screening Threshold Quantity to complete the Top-Screen within 60 calendar days of the publication of Appendix A (or within 60 calendar days of coming 

into possession of a chemical of interest at or above the applicable Screening 

Threshold Quantity after publication of Appendix A). As Appendix A was published 

on November 20, 2007, the due date for initial Top-Screen submissions was January 

22, 2008. By that date, the Department had received 23,264 Top-Screen submissions 

from chemical facilities. 

If a facility is not screened out during the Top-Screen process, the Department 

will assign the facility to a preliminary risk-based tier. Those facilities must then 

complete SVAs and submit them to the Department. Results from this SVA will inform the Department’s determination of a facility’s final tier assignment. This represents the next phase of the CFATS process. 

After approval of their SVAs, these high-risk facilities will be required to develop 

Site Security Plans that address their identified vulnerabilities as well as the performance standards and the security issues presented by the facility. The higher the 

risk-based tier, the more robust the security measures and the more frequent and 

rigorous the inspections will be. Inspections will both validate the adequacy of a facility’s Site Security Plan and verify the implementation of the plan’s measures. 

RISK-BASED PERFORMANCE STANDARDS

CFATS promulgated 18 risk-based performance standards for compliance. The 

standards themselves are broad and designed to promote a great deal of flexibility 

in how a facility approaches meeting standards applicable to it. Although all highrisk facilities must comply with the risk-based performance standards, the measures 

necessary to meet these standards will vary for the different tiers. For example, a 

Tier 1 facility with a release hazard security issue would be required to satisfy the 

performance standards for perimeter control, personnel access, cyber security, intrusion detection, and all other standards applicable to that security issue at a level 

appropriate for Tier 1 facilities. 

How the facility chooses to meet the required performance standard in its Site Security Plan is at the facility’s discretion. In the example of the Tier 1 facility with 

a release hazard security issue, the ′′restrict area perimeter′′ performance standard 

at the Tier 1 level may involve, for example, the facility establishing a clearly defined perimeter that cannot be breached by a wheeled vehicle. To meet the performance standard, the facility is able to consider a vast number of security measures 

and might ultimately choose to install cable anchored in concrete block along with 

movable bollards at all active gates. As long as the specific measures are sufficient 

to address the performance standard, the Department would approve the plan. Or, 

the facility might choose to ′′landscape′′ its perimeter with large boulders, steep 

berms, streams, or other obstacles that would thwart a wheeled vehicle. Again, as 

long as the proposed measures are sufficient, the Department would approve this 

plan. 

OUTREACH EFFORTS AND PROGRAM IMPLEMENTATION

Since the release of CFATS in April of 2007, the Department has taken significant 

steps to publicize the rule and make sure that our security partners are aware of 

CFATS and its requirements. As part of a dedicated outreach program, the Department has presented at numerous security and chemical industry conferences, participated in a variety of other meetings of relevant security partners, issued several 

press releases regarding the regulations, published and distributed full copies of the 

regulations as well as various facts sheets summarizing critical aspects of the reguVerDate Nov 24 2008 10:41 Mar 10, 2009 Jkt 037690 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 C:\DOCUMENTS AND SETTINGS\CWELLS1\110-127 SCOM1 PsN: JIMC
28 

lations, and developed and regularly updated a DHS.gov Chemical Security website. 

We believe these efforts are having a definite impact, given the fact that as of today, 

approximately 30,000 facilities have submitted a completed Top-Screen to the Department via CSAT. 

Partially stemming from the implementation issues surrounding the ammonium 

nitrate security-related provisions within the Fiscal Year 2008 Omnibus Appropriations Act, the Department granted an extension of the Top-Screen requirement to 

a category of agricultural operations possessing a chemical of interest for agricultural use. The Department has used this extension to engage agri-business distributors and end users in dialogue to narrow the CFATS program’s focus on the truly 

high-risk operations. In mid-May, we held an event at Pennsylvania State University, bringing together agri-business stakeholders from the private and public sector 

for the purpose of clarifying the Department’s understanding of the agri-business 

supply chain and the interactions between components of the chain. The Department will leverage this improved understanding to determine whether any modification of the Top-Screen requirements might be warranted. As a result of this research and dialogue, the Department will likely review its approach toward chemicals of interest used in agricultural operations. 

Additionally, the Department intends to continue focusing efforts on fostering 

solid working relationships with State and local officials and first responders in jurisdictions with high-risk facilities. To meet the risk-based performance elements 

under CFATS, facilities are likely to develop active, effective working relationships 

with local officials in the areas of delaying and responding to potential attacks and 

a clear understanding of roles and responsibilities during an elevated threat situation. 

PHASED APPROACH TO CFATS IMPLEMENTATION

For implementation of the CFATS program, the Department is using a phased approach to roll out the regulation at the facility level. In advance of the release of 

Appendix A, the Department began Phase 1 of CFATS implementation at certain 

facilities that the Department believed, based on available information, would likely 

be high-risk. Following initial outreach at the corporate level, the Department sent 

letters to approximately 90 facilities, informing them of their selection for participation in Phase 1, and advising those facilities of the requirement to submit a TopScreen. The facilities were to complete the Top-Screen in advance of the release of 

Appendix A and were offered technical assistance from Department inspectors. The 

Department, after receiving the majority of Phase 1 Top-Screens, reviewed these 

submissions for initial high-risk determinations. A number of Phase 1 facilities initially determined to be high-risk received written notification from the Department 

in March 2008, informing them of the Department’s determination and instructing 

these facilities of the requirement to complete a SVA for departmental review. The 

Department will offer technical assistance to those Phase 1 high-risk facilities as 

they conduct the SVA process, which will be due for those select Phase 1 facilities 

just a few weeks from today’s hearing. 

In addition to the above, publication of the final Appendix A initiated Phase 2, 

the full implementation of the CFATS program. Phase 2 covers all facilities that 

possess chemicals of interest at or above the listed Screening Threshold Quantities 

listed in Appendix A - the bulk of the facilities that submitted Top-Screens previously mentioned. Those facilities subsequently determined by the Department to 

be high-risk will soon receive preliminary tiering decisions and instructions on how, 

and by when, to complete SVAs. Upon receipt of a facility’s SVA, the Department 

will review it for purposes of final high-risk and tiering determinations, and covered 

facilities will be required to develop SSPs. The Department will review those SSPs 

and conduct on-site facility inspections to ensure compliance with the submitted 

plan. 

The chemical security regulatory program has embarked on a course to fulfill in 

fiscal year 2008 the following deliverables: •Review submitted SVAs for Phase 1 facilities for final tiering determinations, yielding the population of Phase 1 facilities 

subject to the substantive security requirements of the CFATS regulatory program;•Develop the CSAT SSP template for use by regulated facilities; •Begin enhancing the CSAT suite of applications, by identifying and developing requirements 

for CSAT version 2.0, which when completed will 1) provide chemical facilities with 

the ability to conduct ′′what if′′ analyses within the SVA based on risk assessments, 

2) host a portal for a personnel surety capability, 3) maintain Top-Screen and SVA 

analytical capabilities, and 4) host a case management system for tracking CSAT 

usage; and•Begin engaging State and local officials and chemical facilities to plan, 

train, and exercise activities related to delay and response performance standards. 

29 

In addition, as the Subcommittee is aware, in February the Department submitted a fiscal year 2009 budget request that further details the chemical security 

regulatory program’s requirements and objectives for future years, including additional inspector personnel to upgrade outreach, plan approval, inspection, and audit 

capabilities; further outfit the program’s adjudications and appeals component; and 

further enhance CSAT by developing an economic modeling tool for the chemical 

sector, as well as accomplishing other important program objectives. 

NEW LEGISLATION

The Department of Homeland Security and the Environmental Protection Agency 

believe thatthere is an important gap in the framework for regulating the security 

of chemicals at water and wastewater treatment facilities in the United States. The 

authority for regulating the chemical industry purposefully excludes from its coverage water and wastewater treatment facilities. We need to work with the Congress to close this gap in the chemical security authorities in order to secure chemicals of interest at these facilities and protect the communities they serve. Water and 

wastewater treatment facilities that are determined to be high-risk due to the presence of chemicals of interest should be regulated for security in a manner that is 

consistent with the CFATS risk- and performance-based framework while also recognizing the unique public health and environmental requirements and responsibilities of such facilities. The Department of Homeland Security and the Environmental Protection Agency look forward to working with the committees to address 

this issue. 

CONCLUSION

The Department is collaborating extensively with the public, including members 

of the chemical sector and other interested groups, to actively work toward achieving our collective goals under the CFATS regulatory framework. In almost every 

case, 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 as partners with industry, States, and localities to get the job done. 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 borne considerable fruit. In doing so, 

we look forward to collaborating with the Committee to ensure that the chemical 

security regulatory effort is sufficiently defined in order to achieve success in reducing risk throughout 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 might have. 

Ms. SOLIS. Thank you for being here. That concludes the opening 

statements of our witnesses for the first panel. The chair would 

now like to recognize herself for 5 minutes for questioning. 

And I would like to begin with Mr. Grumbles from the EPA. You 

state in your testimony that you believe there are important gaps 

in the framework for regulating security of chemicals at drinking 

water treatment facilities, and I have some questions that I would 

like to ask you. 

Does the government need authority to inspect the drinking 

water facilities or require the drinking water facilities to provide 

evidence that the vulnerabilities identified in the vulnerability assessments have been properly addressed? 

Mr. GRUMBLES. Madam Chair, we are in intensive discussions, 

detailed discussions with DHS specifically on the mechanics of how 

we would want to work with you and other committees to close 

that important gap. And one of the questions is enforcement. 

Ms. SOLIS. Can you answer yes or no? 

30 

Mr. GRUMBLES. We believe that it is important to have some 

oversight, some way to measure whether utilities that are high-risk 

utilities are meeting—— 

Ms. SOLIS. So that is a yes? 

Mr. GRUMBLES [continuing]. CFATS framework. 

Ms. SOLIS. So that is a yes? 

Mr. GRUMBLES. It is a yes, but it is also recognition that we need 

to work together on roles of the various agencies and when an inspection would occur. 

Ms. SOLIS. OK, secondly, does the government need specific authority to require the drinking water utilities take corrective security actions to address specific vulnerabilities, yes or no? 

Mr. GRUMBLES. Well, the yes or no is we believe that it is important to follow for chemical security purposes a CFATS framework, 

and we are working with DHS on how to go about doing that. 

Ms. SOLIS. Is that a yes then? 

Mr. GRUMBLES. We think it is important to have authorities. 

Ms. SOLIS. It is important, so I take that as a yes. Third question, your office at EPA has been in possession of water utility vulnerability assessments for the last 5 years. In what year and what 

month was the gap in the regulatory framework identified? 

Mr. GRUMBLES. I want to get back to you when you talk about 

specific months or years, but this is important to describe to you 

the process as we have learned. When the Congress acted and specifically excluded the water and wastewater sector from chemical 

security regulation. We wanted to observe, along with DHS, what 

steps the utilities would be taking on their own initiative since it 

is not part of a regulatory effort. So as we have done that over the 

last several months, over the last year in fact—— 

Ms. SOLIS. But what specific month and year did this come to 

light? 

Mr. GRUMBLES. Well, I would say that when—one very key part 

of it was when the utilities on their own effort conducted a survey 

recently, and that was just several months ago, early 2008. It was 

clear to us and others that—— 

Ms. SOLIS. Do you have a month? 

Mr. GRUMBLES. I want to say February, but I am not sure if that 

is—no, we are not—— 

Ms. SOLIS. February of—— 

Mr. GRUMBLES. Madam Chair, we will get back to you on it, but 

the important point is that we have been learning over the last 

year trying to find what the utilities, this industry sector of water 

and wastewater have been doing. They have been working to survey their members, and we did get briefed on the results of that 

information. And that was earlier this year, and from that, we concluded some are doing a great job. Others we really don’t know. 

There is an information gap—— 

Ms. SOLIS. Right. 

Mr. GRUMBLES [continuing]. In what utilities are doing. 

Ms. SOLIS. OK, I would like to ask Colonel Stephan a couple of 

questions if I might. On April 18, 2008, EPA officials advised staff 

that prior to that date no one from the Department of Homeland 

Security had reviewed the drinking water vulnerability assessments, which are held at EPA in the past 21⁄2 years. Isn’t it correct 

31 

that you only visited the EPA vault and reviewed assessments 

after you met with Energy and Commerce Committee staff in April 

of 2008? 

Colonel STEPHAN. If that is a fact that if that is a performance 

measure that you would hold me accountable to in terms of how 

I am doing my job, I would say that I am very extensively and actively engaged across the water sector with the EPA and the utilities. And they will certainly attest to that fact. The way that HSPD 

7 carves out the responsibilities between Mr. Grumbles and I is he 

basically focuses on things inside the facility fence line. Hence 

those vulnerability assessments come in to play in a big way. I 

focus on pieces of the puzzle outside the fence line. 

Ms. SOLIS. My concern, however, is that for 21⁄2 years there 

wasn’t any review of the vulnerability. So how can this policy be 

responsible if you are just barely recognizing now that there has 

to be more attention paid here? 

Colonel STEPHAN. Ma’am, there is a difference between reviewing 

vulnerability assessments that are now 3 to 5 years old and actively engaging with the water sector to determine from their own 

mouths what, in fact, the security posture of this water sector at 

large is. And I believe we have been actively engaged over the 

course of the last 3 years of my tenure with the water sector to do 

deep dives on vulnerability at the facility level. 

Ms. SOLIS. OK, my time is up. I will now recognize the ranking 

member, Mr. Shadegg. 

Mr. SHADEGG. Thank you, Madam Chairman, and I am struggling to get my hands around whether or not this is a gap in the 

legislative authority, which has been granted, or whether it is a 

failure of the agencies to use the powers they currently have. 

And I haven’t yet heard a clear explanation, at least not one that 

I understand of what the gap is. So, Mr. Grumbles, can you state 

for me what you consider or, Mr. Stephan, what you each consider 

the gap to be? 

Mr. GRUMBLES. I will start. Just to get it out of the way at the 

beginning, I would say there is no bioterrorism act that applies to 

the wastewater sector. So the vulnerability assessments that drinking water utilities were required to do and had it done—— 

Mr. SHADEGG. Well, Section 550 of the Department of Homeland 

Security Appropriations Act of FY 2007 created a program within 

the department—I think that is the Department of Homeland Security—to regulate chemical facilities for security purposes. Is that 

not correct, Mr. Stephan? 

Colonel STEPHAN. Yes, sir, but water and wastewater facilities 

were specifically exempted from that legislation. 

Mr. SHADEGG. OK, and those are within the jurisdiction of EPA? 

Mr. GRUMBLES. EPA, and the gap is that—one gap that we are 

very interested in working with Congress on is with respect to 

wastewater facilities because there are no requirements to do vulnerability assessments. Many have been doing that. I will set that 

aside. With respect to drinking water, we feel that with respect to 

chemical facilities, DHS and EPA believe that the gap, the exemption that was established, should be closed and that we all need to 

work together, not let jurisdictional, whether it is congressional or 

32 

agency, boundaries prevent us from working to ensure that chemical security is carried out at water and wastewater facilities. 

There is also a recognition on EPA’s part, that the vision of this 

committee and the Congress in 2002 in requiring vulnerability assessments has proven to be a very wise decision. Those vulnerability assessments that the drinking water utilities carried out 

have almost 100 percent compliance in terms of submitting them 

to EPA, and have been very useful to us. But those vulnerability 

assessments are 4 to 5 years old. There is not arequirement to update them; although, I think a lot of utilities do step forward and 

update and revise them to reflect new risk and concerns. But we 

think that is a potential gap as well. 

Mr. SHADEGG. OK, so the gap, as I understand it, what you are 

talking to us about today is a gap with regard to the inspection of 

drinking water facilities, not chemical plants. And you would say 

that there is a program in place under the Public Health Security 

and Bioterrorism Preparedness Response Act addressing other locations, thus in the chemical plants themselves? And I guess to follow 

up on Ms. Solis’s question, when did you—and maybe you answered this for her or not. I guess she asked you a specific day and 

month. I guess my question is when did you recognize that there 

was nothing covering drinking water facilities in your view? 

Mr. GRUMBLES. Well, over the last year or so, we have been aggressively working with the water utility community to see what 

they are doing. It is very clear—DHS and EPA have been working 

very closely on this for a long time. And, Madam Chair, we have 

shared with them the basic conclusions, the risks and concerns that 

we have learned from as we have read vulnerability assessments. 

But it is clear to us that one of the greatest risks is certain 

chemicals of concern such as chlorine or anhydrous ammonia. And 

so we have realized when we worked with the water sector early 

this year to hear about their survey results as to what members 

were doing, what the utilities were doing across the country. 

We were not confident that all of them were doing what they 

could and should be doing. We were also not confident that the information was as robust a data set that we could rely on and that 

they could benefit and we could benefit by helping to close that gap 

that was created when Congress exempted the water sector from 

chemical security regulation under the CFATS framework. 

Mr. SHADEGG. My concern is that CFATS having just gone into 

place and the regulations just having been implemented, as a matter of fact, I understand that they are not yet fully implemented 

for the two highest tiers of high risk by DHS. It seems to me H.R. 

5577 goes way beyond the gap that you have identified. And I 

guess my concern is if this is a legislative hearing on H.R. 5577 

and if we are looking at adopting that entire new regulatory 

scheme, is that necessary to deal with the issue of drinking water, 

which you have identified today in your testimony as a gap about 

which you are concerned. And I haven’t heard any testimony on 

that point. 

Mr. GRUMBLES. Well, what we are joined at the hip on and are 

saying to you is that we are focusing just on the water sector, 

water and wastewater sector. And we are saying for that sector as 

it relates to chemical security, there is a gap and that we believe 

33 

that there needs to be a framework consistent with the CFATS 

framework where both agencies are involved in it because water 

utilities are unique and they need to involve both perspectives, not 

just security but be able to take into account safety and public 

health and meeting safe drinking water act requirements. And so 

the message we are saying is that we need to work together with 

you to close that gap as it relates to water utilities and chemical 

security. 

Mr. SHADEGG. I appreciate that. What I think I heard you say, 

which I agree with, is consistent with CFATS. So we are not going 

backward to the chemical industry and imposing a whole new set 

of rules before the existing rules are put in place. And I see, Mr. 

Stephan, you are agreeing with that. 

Colonel STEPHAN. Yes, sir. We need to give time for CFATS to 

work to get it implemented. We are 11⁄2 years into a 3-year 

sunseted program. Our main objective in all this is to remove that 

sunset clause and allow us to continue to push through a program 

that has yielded very successful results to this point and promises 

to continue to do so. 

What I would not like to do, and I greatly respect Chairman 

Thompson, his staff. They have been very professional in all of this, 

but I think there are some significant unintended consequences as 

we have gone from our initial authorization of about a page and a 

half in our ’07 Appropriations Act now to an 83-page document that 

introduces many, many complex factors into the mix to include potentially several different—— 

Ms. SOLIS. The time has expired. 

Colonel STEPHAN. Thank you very much. 

Ms. SOLIS. OK, we can come back if we need to for a second 

round if people have an interest there. I would like to now recognize the gentlewoman from California, Mrs. Capps. 

Mrs. CAPPS. Thank you to the witnesses, and I have questions 

for each of you. And I know your answers will be succinct so I can 

get through them. Mr. Grumbles, under the Safe Drinking Water 

Act, states such as California can apply more stringent standards 

to protect the health or welfare of their citizens. Do you agree the 

same principle should apply here and states like California should 

be allowed to require more stringent security measures at drinking 

water facilities and chemical facilities if the State deems it necessary to protect the health and welfare of its citizens? 

Mr. GRUMBLES. I think it is important to provide some necessary 

degree of flexibility to States to carry out their particular objectives, but I would say that there is also—there does need to be, 

Congresswoman, a recognition that if we are implementing a Federal program for chemical security, there needs to be a Federal 

framework that is put into place. And so there might be questions 

if there is an actual conflict. 

Mrs. CAPPS. The question is is this a floor or a ceiling? Don’t you 

think it is the State’s responsibility if they have local knowledge 

and facts and circumstances to ensure that chemical and water facilities within its borders do not create security or public health 

risk for citizens living nearby? 

Mr. GRUMBLES. I think it is a fair question, and a fair response 

is that there needs to be a balance that is recognized. I do want 

34 

to state though that there is a concern I would have, and I think 

I would turn to Colonel Stephan if there is a conflict or if there is 

something that would be inconsistent with the Federal framework 

that could be a problem. 

Mrs. CAPPS. I guess my question to you, and I will turn to the 

Colonel, why would you challenge some state agency that wants to 

play a role or go beyond the minimum Federal standards the way 

other environmental and civil rights laws allow. This is exactly 

what H.R. 5533 tracks. But I do want to turn to the Colonel. Colonel Stephan, I wonder if you have read the two bills that are the 

subject of our subcommittee hearing today. 

Colonel STEPHAN. Yes, ma’am, I have read them. 

Mrs. CAPPS. And you understood this is a legislative hearing? 

Colonel STEPHAN. Yes, ma’am. 

Mrs. CAPPS. And I wondered why there aren’t any specific comments in your testimony about the legislative provisions in either 

of these bills. 

Colonel STEPHAN. Yes, ma’am, it is just we have just recently put 

together under the department’s official signature a views letter 

that has gone to Chairman Thompson’s committee that—— 

Mrs. CAPPS. So you do have views on the actual—— 

Colonel STEPHAN. We do have an official views letter that has 

been submitted to Chairman Thompson. We did not want to get 

ahead of that game in terms of providing our primary oversight 

committee our views first. 

Mrs. CAPPS. Madam Chair, I would hope that we would at some 

point be privy to that kind of a letter too, and perhaps that is 

something that can come up later. I do want to give whatever remaining time I have to you to talk about the issue of Federal preemption. 

Colonel STEPHAN. Yes, ma’am. 

Mrs. CAPPS. I want to ask you what specific criteria would the 

department use to determine whether there is a direct conflict between the Federal law and regulations and those issued by a state 

with respect to security at chemical facilities. 

Colonel STEPHAN. Yes, ma’am, and for the record, at this point 

in time, all the state—to the state and the county level, those jurisdictions across America that do have chemical regulations on the 

book, there is absolutely no conflict in terms of raw analysis between anything existing on the books right now. I think it is important that as we are going to implement a national program—— 

Mrs. CAPPS. Right. 

Colonel STEPHAN [continuing]. That we have national consistency 

across states to the degree possible. But then there are some areas 

where we need to balance perhaps some additional tailoring. That 

is why we are building the security plans with not only the facilities but with state and local law enforcement and emergency responders—— 

Mrs. CAPPS. Right. 

Colonel STEPHAN [continuing]. To make sure during the security 

plan building and development process we have rolled in their equities. 

35 

Mrs. CAPPS. So you do agree with that provision in H.R. 5533 

that would indicate that the Federal laws and regulations would be 

a floor and not a ceiling? 

Colonel STEPHAN. No, ma’am, I do not share that opinion, and 

here is the reason why. If the states would build something that 

you would term most likely more stringent, and for example, this 

particular state would require every facility to do things the same 

way and—— 

Mrs. CAPPS. Within that state? 

Colonel STEPHAN. Within a state. And that information we publicize, I am afraid that we would develop a plan cookie cutter that 

you would deem more perhaps stringent than the Federal standards publicly accessible to lots of people to include terrorist planners and operational surveillance personnel. And in that particular 

context, I don’t have a feeling of comfort. So I don’t think we should 

take a look at the stringency. I think we should take a look at the 

balancing of the Federal prerogatives and the state prerogatives, 

and we should work it out between the states and the Federal Government without a piece of legislation coming in on top of that that 

says there is no balance; it is this way or the highway. I think that 

is very important. There has to be a balance, but we cannot let a 

security plan be developed according to a cookie cutter approach 

that is not properly protected—— 

Mrs. CAPPS. I guess—— 

Colonel STEPHAN [continuing]. And has the potential for release. 

Mrs. CAPPS. Who is doing the cookie cutter, the Federal Government or the state? 

Colonel STEPHAN. As a hypothetical example, for example, say 

the states want to have the security facilities or the chemical facilities build a security plan that says you must do the following 32 

things to this standard, and that is publicly released. Now, an alQaeda operational planner has access to that information, and I 

think that is a very dangerous state of affairs. 

Ms. SOLIS. Time has expired. I thank the gentlewoman for her 

questions. Next I would like to recognize the gentleman from 

Texas, Mr. Barton, for 5 minutes. 

Mr. BARTON. Thank you, Madam Chairwoman. I want to give the 

subcommittee a little history lesson before I ask a question. Back 

in 2004, 2005, in that time period, there was a debate about whether we needed to establish a specific committee for Homeland Security. At that time, myself and now Chairman Dingell and numerous 

other chairmen and ranking members on both sides of the aisle did 

not feel that we needed to establish a specific committee. 

But notwithstanding that, the former speaker, Speaker Hastert, 

decided that we needed a committee. So we established a Homeland Security committee. In the establishment of that committee as 

chairman of this committee, I was very adamant that we not lose 

jurisdiction, and we didn’t. 

The bills that were referred on this subject that is before us 

today in the prior Congress came to the Energy and Commerce 

Committee. They didn’t go to the Homeland Security Committee. 

The law that we are talking about today, this Section 550 of the 

Appropriation Act was negotiated between this committee and the 

Homeland Security Committee on a bipartisan basis and on biVerDate Nov 24 2008 10:41 Mar 10, 2009 Jkt 037690 PO 00000 Frm 00041 Fmt 6633 Sfmt 6633 C:\DOCUMENTS AND SETTINGS\CWELLS1\110-127 SCOM1 PsN: JIMC
36 

cameral basis. Senator Byrd in the Senate had quite a bit of input, 

but the result was language, this Section 550 language in the 2007 

fiscal appropriations law that is being implemented by the Homeland Security Department today. Everything in this Section 550 is 

within the jurisdiction of the Energy and Commerce Committee. 

Now, in this Congress, the Homeland Security Committee, under 

the able leadership of Chairman Thompson, has introduced another 

bill and may have, being the crafty fellows that they are, put additional information and additional requirements in it, that does give 

it jurisdiction of the Homeland Security Committee. 

At a minimum, members of this committee on both sides of the 

aisle ought to insist if we are going to supercede Section 550 that 

we at least take the Wynn bill as a starting point because it is jurisdictionally within the Committee of Energy and Commerce, and 

the Thompson bill is not. Now, I hope we can agree the aisle on 

that. 

With regards to Section 550, it is not that long. If you actually 

read it, you can understand it. It was written at my direction, and 

being an engineer, I asked them to write it in language that engineers can understand. And you can understand it. It requires interim regulations on a risk-based basis to be put in place within 

6 months of the date enactment of the law and that those interim 

regulations shall stay enforced until 3 years after the date of enactment unless superceded by specific legislation. Now, the key word 

in Section 550 is let us get on the stick and get it done. And then 

let us base it on risk so we don’t micromanage. Now, the Thompson 

Bill, if you look at it, is an 80 some odd page micromanagement 

bill which, if you want to shut down the chemical industry in the 

United States of America, support the Thompson Bill because if we 

try to implement that approach, you are going to see chemical 

plants all over this country shut down and go to Asia and to a lesser extent probably the Caribbean and South America but certainly 

Asia and the Middle East. 

I don’t think that, given the state of our economy right now, that 

we need to be eliminating even more jobs. So that is really more 

of an opening statement, and I am almost out of time in questions, 

but I would ask members on both sides of the aisle if we need to 

do something different than Section 550 and we understood when 

we did 550 that later on there probably would be a permanent statutory bill. Let us at least do it in a way that we keep the chemical 

industry in the United States, and just from a parochial point of 

view, Madam Chairwoman, I hope we will agree to do it so that 

it is jurisdictionally within our committee. 

My time has expired, so I want to thank the two witnesses for 

listening. But primarily my audience is members of the subcommittee. And with that, I yield back. 

[The prepared statement of Mr. Barton follows:] 

37 


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46861.007
41 

Ms. SOLIS. Thank you, Mr. Barton. Next I would like to recognize 

the gentleman from Texas, Congressman Green. 

Mr. GREEN. Thank you, Madam Chairman. I thank you for holding this legislative hearing, and I would like unanimous consent for 

my statement to be placed in the record. Sorry I was detained earlier. But part of that, I have a letter on chemical facility background checks from the Industrial Safety Training Council, which 

is a facility in our district in Baytown, Texas. I would like unanimous consent to have that placed into the record with my statement. 

Ms. SOLIS. Without objection. 

[The submitted material appears at the conclusion of the hearing.] 

Mr. GREEN. Madam Chair, I have a number of questions that 

will probably run out of time, but because the ranking member of 

the full committee raised the question. Colonel Stephan, you told 

Ms. Capps that you did not want to comment on the two bills that 

were the subject of this hearing because you wanted to respond to 

Chairman Thompson first. In effect, that is a refusal to address the 

topic at this hearing, and you have already responded to Chairman 

Thompson. 

I have a letter that was sent on June the 3rd that requested your 

testimony to address provisions of these two legislative proposals. 

Did you receive this letter from June 3? 

Colonel STEPHAN. Yes, sir, I did. 

Mr. GREEN. You know, as you can tell, there is sensitivity 

bipartisanly on making sure that both the Energy and Commerce 

Committee and the Homeland Security Committee share jurisdiction. But we have the interest in some of the facilities. In fact, I 

would probably put the number in my district compared to anyone 

else in the country, probably many more than most people have because I have the Houston area and I have the Chemical Complex. 

Is there a reason why you weren’t prepared to share what you sent 

to Chairman Thompson with us today outside of just wanting him 

to get the first bite at it? 

Colonel STEPHAN. Sir, first of all, no disrespect intended of any 

of my actions to any of the distinguished members of this subcommittee. I did not have an official position approved by the leadership of my department until yesterday, so that is why you did not 

see any specific commentary on any provisions of either proposed 

sets of legislation in my written testimony. I certainly am available 

today and would be eager to answer any questions that you might 

have about either of the two pieces of proposed legislation before 

this committee today. 

Mr. GREEN. Well, I would think in the future you might want to 

send—if two committees have jurisdiction and you respond to one 

chair, you probably ought to respond to the other chair and the 

ranking member just for courtesy because we are considering the 

bill today in our legislative hearing, and we would like to have the 

information that Homeland Security Committee obviously had. 

Colonel STEPHAN. Sir, please accept my sincere apologies on behalf of the department. 

42 

Mr. GREEN. Like I said, Madam Chairman, I have a lot of questions, and I know you said we will have a second round. So I appreciate that. 

Mr. Grumbles, the EPA testimony notes that EPA, DHS, and the 

National Association of Clean Water Agencies have developed a 

software program called the Chlorine Gas Decision Tool for Water 

and Wastewater Utilities, which estimates the monetary and nonmonetary costs and benefits of various water treatment technologies. A report from the Center for American Progress indicates 

that several hundred water utilities have switched from large-scale 

onsite storage of chlorine gas to safer alternatives. Has this chlorine gas decision tool encouraged utilities to pursue these safer alternatives? 

Mr. GRUMBLES. Congressman, I think what it has encouraged 

utilities to do is to take a hard look at whatever technology they 

are choosing and to look for the most effective and efficient. And 

I can tell you that having visited many water and wastewater facilities across the country, there are instances where chlorine is the 

most effective and efficient method to meet Safe Drinking Water 

Act or Clean Water Act requirements. But I think that tool has 

been a good example of a voluntary technical assistance guide so 

that communities can be taking a hard look at whether or not to 

use chlorine or other certain chemicals. 

Mr. GREEN. OK, this is for both Colonel Stephan and Mr. Grumbles. Has DHS and EPA developed any other decision tools for 

other chemical facilities besides water utilities to encourage them 

to adopt inherently safer technologies? And do you think it would 

be possible to come up with other tools for chemical sectors to promote the risk reduction? Is there any other tools other than that 

for other chemical facilities, or do you think there is anything on 

the horizon? 

Colonel STEPHAN. Sir, in terms of the inherently safer technology 

piece, I am not sure I am able to answer that question, but we are 

developing with the EPA and updating actually a risk assessment 

methodology tool for use in the water and wastewater sectors in 

addition to automating and updating the vulnerability assessment 

methodology specific tool that the EPA developed several years ago. 

So that has been a collaborative effort. It does address consequences. It addresses threats and vulnerabilities as part of the 

overall risk assessment methodology. 

Mr. GREEN. And as far as you know, DHS or EPA doesn’t have 

any other of these similar plans for other parts of the chemical sector? 

Mr. GRUMBLES. Well, other parts of the chemical sector, no, I 

can’t speak to that. I can just reassure you that when it comes to 

chlorine and the water sector, where we are is to provide tools and 

information so that communities can choose the most effective 

means. And that doesn’t necessarily mean moving away from chlorine, but it also helps them understand the risks if they are going 

to choose to use chlorine as to securing it, storing it safely, and taking into account other authorities we may have under other statutes. 

Mr. GREEN. OK, thank you. Madam Chairman—— 

Ms. SOLIS. Time has expired. 

43 

Mr. GREEN [continuing]. I have exhausted my time. I appreciate 

the second round. 

Ms. SOLIS. Thank you. Next we would like to recognize the gentlewoman from New Mexico for 8 minutes, Congressman Wilson. 

Ms. WILSON. Thank you, Madam Chair. I wanted to ask both of 

you about research and development for what your agencies are 

doing with respect to investments and research and development 

for continuous monitoring of high hazard materials. Can you explain what you have in work on that? 

Mr. GRUMBLES. Well, I will start, Congresswoman. We have, in 

Cincinnati, a lab that is devoted to Homeland Security research 

and development. And one of the highest priorities, one of the several priorities of that national laboratory program, is water security monitoring for purposes of actively and thoroughly monitoring 

chemicals, both the potential for biological or chemical warfare 

agents being introduced into a system. 

We also have—our office of research and development has been 

involved with us in the review of vulnerability assessments of 

water facilities so that we can identify potential research gaps in 

all aspects of water security, whether it is prevention or detection 

or safer storage of chemicals at facilities. 

And I can tell you that as we stand together with DHS and tell 

you today that there is an important gap in how the water sector 

and chemical security interact, we think it is very important to be 

touring facilities and gathering information from the utilities about 

how they are storing chemicals of interest, such as chlorine or anhydrous ammonia or others. But—— 

Ms. WILSON. I am not interested in your touring of facilities, Mr. 

Grumbles. I am interested in how much you are investing in R&D. 

What is your budget? 

Mr. GRUMBLES. I am going to have to get back to you on the spe- cific dollar amounts. I know that we had a $7 million budget investment from the office of research and development for the last 

couple years on—— 

Ms. WILSON. $7 million invested in? 

Mr. GRUMBLES. Water infrastructure, R&D work related to water 

infrastructure, and I believe some of that included water security. 

But I am going to need—— 

Ms. WILSON. So it is $7 million? 

Mr. GRUMBLES. Well, that is just one example. The administration and EPA have been putting a priority on water and Homeland 

Security over the last number of years, and an important part of 

that is the research and development budget. But if I could get 

back to you on the specific dollar amount. 

Ms. WILSON. Yeah, I would hope that you find that that number 

is wrong because it is woefully inadequate. 

Mr. GRUMBLES. Well, that was just one example of one activity. 

I can tell you right here that that is not the sum total amount. 

That was just one—— 

Ms. WILSON. Have you developed an R&D roadmap for the research and development of technologies for continuous monitoring 

of high hazards for water system? 

Mr. GRUMBLES. I know we have a research roadmap. I don’t 

know the extent to which it is—how much of it that is focused on 

44 

the continuous monitoring component that you are asking. I know 

that there is very much a research roadmap for security purposes 

when it comes to water, whether it is chemicals or biological or 

physical hardening or preventing physical intrusions. 

Ms. WILSON. Colonel Stephan, what is DHS doing in this regard? 

Colonel STEPHAN. What we have done is worked with EPA and 

actually all of our partners across the 18 critical infrastructure sectors. We have a requirements generation process in place now 

whereby the sectors, to include Federal agencies, state and local 

government reps and the private sector, introduce on an annual reporting basis now specific chemical, biological, radiological threat 

vector requirements to me that require some kind of S&T or R&D 

component. I take those every year. 

They will be turned in to me this year on 1 July by each of the 

18 critical infrastructure sectors. I will mine those for the chem/bio/ 

rad pieces. We put them against our national risk profile, and then 

we turn the requirements after they have been validated and 

prioritized over to Admiral Jay Cohen, secretary for science and 

technology. 

Ms. WILSON. Colonel Stephan, what is your budget for R&D? 

Colonel STEPHAN. Ma’am, I don’t have a budget in my office for 

research and development. I would have to get back to you with 

the science and technology folks to provide you a comprehensive 

breakdown. 

Ms. WILSON. Thank you. I think this is a classic example of 

where our government tries to do the same things the same way 

and by more guards and guns and levy huge requirements, often 

bureaucratic requirements, for assessments, plans, and procedures. 

And we are now almost 7 years after 9/11, and the fact that we 

still can’t offer some low-cost meaningful technology for continuous 

monitoring of water systems, whether they be major municipal 

ones or small rural ones. And we continue to underinvest in R&D 

in this area. This is a perfect role for the Federal Government, and 

I don’t see that EPA is doing anything different than you have ever 

done. 

Mr. GRUMBLES. Well, I—— 

Ms. WILSON. I think we need—— 

Mr. GRUMBLES. Congresswoman, I would just say that one of the 

reasons that we see so much promise in the water security initiative is precisely because that five-city pilot program is going to provide very important information on cost-effective technologies for 

online monitoring and for monitoring potential contaminants in the 

distribution system and for finding more effective ways through 

science to get the word out to the communities as quickly as possible if there is a risk of some type to the water system. 

So we need to do more, but we do recognize that science and 

technology is a key tool to getting where all of us want to get. 

Ms. WILSON. Well, we are probably spending hundreds of millions of dollars on bureaucratic regulation and a pittance when it 

comes to real systems that water system operators can use to continuously monitor the quality of water so that you can detect that 

you have a problem before it makes somebody sick. And I would 

encourage you to start thinking in different ways. 

Thank you, Madam Chair. 

45 

Ms. SOLIS. Thank you. Next we will recognize the gentleman 

from North Carolina, Mr. Butterfield, for 5 minutes. 

Mr. BUTTERFIELD. Thank you very much, Madam Chairwoman. 

Just to open, let me ask unanimous consent that my written statement be included in the record. 

Ms. SOLIS. Without objection. 

[The prepared statement of Mr. Butterfield follows:] 

PREPARED STATEMENT OF HON. G. K. BUTTERFIELD

The events of September 11th introduced us to a New America where our recognition of potential threats has expanded prodigiously. It is clear that in the wake of 

that tragedy, we must be vigilant in carrying out security measures to ensure the 

integrity of our chemical institutions. I look forward to today’s hearing as an opportunity to discuss the legislative options available to secure the suddenly ubiquitous 

chemical threats throughout our country. Extending and amending authority to secure our chemical facilities beyond the sunset date through one of these two bills 

is absolutely necessary to ensure our chemical safety for the coming future. 

Though both HR 5522 and HR 5577 accomplish the critical task of extending the 

sunsetting statute, I do not take lightly the substantive differences in the bills. Most 

notably, I am concerned with the new authority granted to the Department of 

Homeland Security in HR 5577 over public water systems, treatment works, and facilities currently regulated under the Maritime Transportation Security Act 

(MITSA). There is no doubt that the Chemical Facility Anti-Terrorism Standards 

(CFATS) is in need of reauthorization, but I am cautious to enact sweeping changes 

to the legislation when full implementation has not been allowed. Further, transferring authority of the currently exempted facilities has the potential to create duplicative regulatory measures on water utilities and ports already effectively regulated 

under the Environmental Protection Agency and Coast Guard. 

I do applaud the strong and consistent framework of security that these two 

pieces of legislation provide. I look forward to weighing the merits of both, and I 

anticipate an excellent discussion that will shed light on where we go from here. 

I thank our distinguished witnesses for their testimony and I thank the subcommittee for holding this hearing. 

Mr. BUTTERFIELD. Let me join all of my colleagues in thanking 

both of these gentlemen for their testimony today. It has been 

somewhat enlightening. There are still some things that have been 

unanswered, but let me start with the Assistant Administrator, Mr. 

Grumbles. Thank you very much for your testimony. 

Mr. Grumbles, you have talked extensively about the obvious 

regulatory gaps, and I think we can all agree that they certainly 

do exist. Did the EPA consider submitting legislation through the 

administration to call attention to this problem? 

Mr. GRUMBLES. We think the first step is to call attention to the 

problem and signal that we, DHS and EPA, are working together. 

And that is what the purpose is of our joint statement and testimony. 

Mr. BUTTERFIELD. But was any recommendation regarding—— 

Mr. GRUMBLES. We are working—— 

Mr. BUTTERFIELD [continuing]. Legislation? 

Mr. GRUMBLES. Congressman, we are in the midst of discussions 

about details of positions and whether legislation or principles or 

recommendations to Congress would be appropriate. I can tell you 

that as we are looking at the pending legislation that is before the 

Congress, one bill continues to exclude the water and wastewater 

sector. Another bill does not, and we believe it is important to find 

a way to close that gap, not continue to exclude the water and 

46 

wastewater sector from chemical security regulation and that we 

should be using a CFATS chemical facility antiterrorism standards 

framework, but that is going to need to have both a DHS perspective and an EPA perspective particularly recognizing, as this committee does, that it is more than just about security. But Congressman, we really do—we are rolling up our sleeves to work with you 

to have—— 

Mr. BUTTERFIELD. We are going to be shutting down in a few 

weeks. The 110th Congress is coming to a close in just a few weeks. 

Maybe the 111th Congress under a new administration might look 

at it differently. 

Let me ask the other witness, Colonel Stephan. Thank you very 

much. I am told, Colonel, that DHS was expected to receive 50,000 

chemical security assessment tool top screens by January of this 

year, but as of this date has only received 30,000. First of all, is 

that true or not true? 

Colonel STEPHAN. Sir, the actual number received and processed, 

analyzed to date has been approximately 32,000. 

Mr. BUTTERFIELD. All right, but to what do you attribute the 

shortfall? And do you expect to receive the remaining 20,000 in the 

coming months? 

Colonel STEPHAN. Sir, there are a few factors to consider. One is 

the 50,000 was an estimate based upon a universe of uncertain 

data. So that was our best guesstimate at the time as we were developing the regulatory framework in terms of how many facilities 

initially would have to do the top screen assessment. 

The other piece is that we have put the food and agricultural 

world, those users of chemicals that represent end-users, fertilizers, 

and pesticides, on hold over the first phase of this program so that 

we can do more detailed analysis based upon the initial consequence assessment data we received from importers, manufacturers, packagers, distributors, and retailers. Those folks have been 

incorporated broadly across our framework, but we want to make 

sure that this framework doesn’t encompass every single farm in 

America. That is not the intent and purpose of this regulation. 

Mr. BUTTERFIELD. Well, was this data incomplete? Was it incorrect or not just sufficient? 

Colonel STEPHAN. Sir, for the food and ag piece, we wanted to 

make sure that we are not requiring every single farmer in America to go through a consequence analysis. So we are working the 

first data call with the supply chain above the agricultural endusers. We will put another data call out towards the end of the 

summer that is more surgically targeted on specific aspects of the 

agriculture end-user committee so we are not overly burdensome in 

terms of small family farms across America. That is not what this 

is all about. 

Mr. BUTTERFIELD. Well, we missed it by a country mile. That is 

for sure. I yield back. Thank you. 

Ms. SOLIS. Thank the gentleman. Next I would like to recognize 

the gentleman from Pennsylvania, Mr. Murphy, for 8 minutes. 

Mr. MURPHY. Thank you very much, Madam Chair. Colonel, a 

couple years ago, there was a reporter in Pittsburgh. Carl Prine, 

I believe was his name. Wrote for a paper called ‘‘The Tribune Review’’ and he did an investigative study which subsequently was 

47 

part of, I believe, a CBS ‘‘60 Minutes’’ show. And in this, he just 

walked right into chemical plants. He actually went in and he 

asked people within the plant directions of how to get around. People didn’t question him. In fact, they gave him directions. He asked 

about particular valves and pipes and what was in them. Never 

identified himself as a reporter. Never identified himself, I believe, 

as someone who just shouldn’t have been there. 

Now, since then, there are a couple things I wanted to ask because it was the concern that was aired at that time was that how 

easy it was for people to get into these plants along those lines. 

Have we solved that problem? 

Colonel STEPHAN. Sir, I think we are in the process of solving 

that problem through the CFATS framework as it applies to chemical facilities that are identified as high risk. Absolutely at the end 

of this framework if someone can still do that to a high-risk chemical facility, we will have not have done our job. 

Mr. MURPHY. I understand there have been significant positive 

gains though by chemical plants have taken a number of positive 

steps to secure their areas. 

Colonel STEPHAN. Yes, sir, and actually many of them had secured their boundaries, their perimeters, their access control procedures prior to the CFATS regulation. This CFATS regulation helps 

us level the playing field and ensure more consistency across facilities representing this same level of risk across America. 

Mr. MURPHY. Good. A second thing. You had mentioned before 

the cookie cutter approach which you were concerned about. 

Colonel STEPHAN. Yes, sir. 

Mr. MURPHY. That there could be a series of regulations that essentially al-Qaeda or someone else could look at that, and they 

would basically know from one plant to another exactly the same 

security procedures, although somewhat different in terms of location. What should we do instead? How much flexibility, and how 

should we set those standards to make sure that there is significant standards there and they can adapt to the site? 

Colonel STEPHAN. Sir, under CFATS, we work with the facility 

to develop, through the consequence analysis, threat analysis, vulnerability analysis, and the 18 performance-based standards of risk 

profile at the individual facility level, and we are going to offer 

within the 18 performance-based standards a menu of individual 

options that the facility would choose from to put in place, which 

means in essence across the landscape of chemical facilities across 

America, every facility will have at least a slightly and perhaps 

greatly different security plan than the one next to it. And that 

complicates operational planning and surveillance tremendously 

vis-a-vis our terrorist adversaries. And I think that is one of the 

key strengths or core strengths of the CFATS program. 

Mr. MURPHY. Would that include sufficient flexibility and yet sufficient standards for small plants to—as you mentioned before, you 

were concerned about farms, and aside from farms, but there are 

some rather smaller chemical sites. But there are also the massive 

ones as well. 

Colonel STEPHAN. Yes, sir. For example, if you are a facility that 

represents a giant offsite chemical release, you have multiple 

chemicals of interest onsite, you are going to be required to have 

48 

a multi-layered perimeter defense and access control system, cyber 

controls and all of that. That would be radically different than the 

case of, for example, a college or a university that has a chemical 

of interest that is confined to one room on a giant campus. We are 

going to require specific access controls procedures, inventory controls procedures, and some kind of locking and warning system 

that wouldn’t encompass the entire university but more so from a 

nodal security perspective. 

So I think there is tremendous flexibility in the CFATS frameworks based upon your operational landscape and your risk landscape at the facility level. 

Mr. MURPHY. Thank you. Another question that had come up in 

past hearings was a question about who has jurisdiction over the 

chemical facilities? Is it EPA, Homeland Security, state officials, 

local officials? Have we made progress in terms of defining how 

that jurisdiction works? 

Colonel STEPHAN. Sir, I think one of the most complex parts of 

my job is figuring out who in fact does have jurisdiction based on 

security, safety, other frameworks and achieving that unity of effort between lots of people that do have legitimate rights to be on 

the premises to do different jobs all has to come together. 

We have worked that out with EPA in terms of the chemical facility pieces of CFATS. We worked that out with agriculture with 

respect to the food and ag distribution and other facilities in that 

part of the framework, with the Department of Education with respect to colleges and universities, with HHS in terms of medical 

and public health facilities. 

I think it is less a question of who has specific individual authority, but how do you blend capabilities, resources, and competing authorities together to get the job done. That is what we should be 

looking at. 

Mr. MURPHY. Thank you. Also I know when we were working on 

these issues before, the chemical societies that said that they themselves had a number of high standards and that they are members 

who adhere to those standards or achieving those goals. Are those 

standards adequate? 

Colonel STEPHAN. Sir, I believe in some cases they are. In some 

cases, they are not. In some cases, facilities, because of their individual level of risk, will have to up the ante, and that decision will 

be made through the CFATS process at the individual facility level. 

Mr. MURPHY. OK, thank you. In another area too, part of the 

concern is chemicals that are being transported in and out of facilities—— 

Colonel STEPHAN. Right. 

Mr. MURPHY [continuing]. By truck, by tanker car, by other vehicle. Where do we stand—well, first of all, is that within your jurisdiction to also be concerned about transporting those chemicals and 

as they enter and leave plants where they are just outside that perimeter? 

Colonel STEPHAN. Yes, sir. It is not under my jurisdiction in my 

capacity as the implementer and enforcer of CFATS because my 

authority really ends at the fence line of the plant. But the TSA, 

the joint TSA DOT rule, will in fact govern the transportation of 

hazardous materials to include the chemicals of interest that are 

49 

on the CFATS hit parade. And it is the harmonization between the 

TSA DOT framework and my responsibilities as a CFATS implementer that is key so that we don’t have a scene between the fixed 

storage and pieces and the transportation systems. 

Mr. MURPHY. And you are working together in harmony on that 

so that—because what I heard you say as they enter the plant, 

they become under your jurisdiction. 

Colonel STEPHAN. Yes, sir. 

Mr. MURPHY. As they leave, they are going to someone else’s jurisdiction? 

Colonel STEPHAN. That is correct, sir. 

Mr. MURPHY. But you are working together? 

Colonel STEPHAN. And it is also important so that we don’t make 

decisions on the plant where we displace the risk, for example, into 

a railroad car that is parked offsite for an undetermined amount 

of time with absolutely no security. The TSA DOT regulatory rule 

piece has to take that into account, and we have to sync the two 

different but complementary rules together. And that is a challenge, but we are working together with TSA and DOT to do that. 

Mr. MURPHY. OK, and finally let me ask in terms of where we 

stand overall with risk assessment, because a couple years ago, it 

was frequently a concern that was raised that we were worried 

that terrorist groups, small and large, that hidden cells around this 

country that would likely attack a chemical plant because of the 

large scale death it would cause around the region. Where do we 

stand now in terms of our assessment? Do we think that they are 

high level targets remaining, or where do we—how do we look at 

that? 

Colonel STEPHAN. Sir, in terms of that piece, within the CFATS 

framework, we have just done the consequence analysis across the 

United States, preliminarily tiered facilities into four categories. 

The next piece we will carefully examine the vulnerabilities of 

those facilities, and the final piece will end up in security plans. 

In terms of the threat piece of risk analysis, I think we have clear 

evidence, based upon reporting from the intelligence community, 

that attacking a chemical facility and causing mass casualties 

would achieve political objectives of terrorist organizations. We see 

active recruiting efforts on the part of terrorist organizations to 

bring chemical subject matter experts into their leadership structure, into their subject matter expert structure. 

We see terrorist and insurgent organizations actually 

weaponizing things like chlorine in overseas battlefields, learning 

lessons that potentially could be applied here. So I think in terms, 

unfortunately, of the threat piece of the risk equation, the threat 

remains alive and well. 

Mr. MURPHY. You describe things that overseas, but do we see 

that—when you talk about the recruiting, we suspect that or we 

know that recruiting is also taking place here in the United States? 

Colonel STEPHAN. We expect that recruiting takes place inside 

and outside the United States at different levels, but I want to 

make also clear a point that we do not have at this point in time 

an operational threat screen that is credible or imminent against 

any individual chemical facility anywhere in the United States. 

Mr. MURPHY. Thank you very much. 

50 

Ms. SOLIS. Thank you all. Time has expired. Next I would like 

to recognize the gentleman from New Jersey, Mr. Frank Pallone for 

5 minutes. 

Mr. PALLONE. Thank you, Madam Chairwoman, and I am going 

to try to get in three points if I could, one on jurisdiction, one on 

preemption, and one on safer technologies. I know they all have 

been discussed. 

I was a little concerned, Colonel, and I know you sort of changed 

a little bit about your statement that, that you had responded primarily to the Homeland Security Committee because you saw them 

as the committee that you primarily were working with. 

I don’t want to put words in your mouth or even necessitate a 

response, but I definitely see this committee as having the primary 

jurisdiction over this issue. And I think that is the way the current 

law reads. And I wouldn’t want to see that changed, not just because I am on this committee but also because I think that it 

makes sense since we look at chemical plants in a broader way 

than the Homeland Security Committee. And I wouldn’t want the 

security issue to be such a prominent issue to predominate, if you 

will. 

So that is one of the reasons why it is important for this committee to retain primary jurisdiction because we are looking at the 

chemical plant issue in a larger, broader view, and not just looking 

at it from a security point of view. So I just wanted you to understand where I am coming from in that respect. You don’t necessarily have to respond. 

I did want to ask questions about the preemption issue though 

because I may have misunderstood what both of you said. Both of 

these bills before us, it seems to me, are like the current law. And 

I know that my Senator Lautenberg from New Jersey put in a provision that essentially says that states are not preempted and that 

they can be more vigorous and more stringent when it comes to the 

chemical security issue. 

I would want that retained. I would maybe perhaps even want 

it in even stronger language than the current law. But you seem 

to suggest that you were not happy with that. I mean do you have 

a problem with us continuing language like the Lautenberg language that says that the states are not preempted? 

Colonel STEPHAN. Sir, I believe we have achieved three tiers of 

language here. In the current CFATS authorizing legislation, there 

is no mention of preemption. That preemption piece is mentioned 

in the implementing rule. In the center, Lautenberg introduced 

language, basically says that the states can do what they need to 

do except where there is an actual conflict with the Federal law. 

I can abide by that and make things work within that general 

framework, but I think that the legislation proposed by this committee makes it fairly clear that in all cases state law trumps Federal law. Now lots of people that have gone to many more law 

classes than me would see that as a fundamental overturning of 

our system that was 200 years in terms of the relationship between 

Federal and state law. 

But more importantly for me, I think it needs to be a balance. 

It needs to be a discussion between the Federal Government and 

51 

the state government so that we do the right thing and it isn’t necessarily a case of either/or. 

Mr. PALLONE. All right, well I want to get to my second question, 

but, Mr. Grumbles, would you agree with him or the way he said 

it which is that you have no problem with the Lautenberg language. You just are not happy going further with, I guess, the way 

he has seen the Wynn language? Is that your position? 

Mr. GRUMBLES. Well, I think we don’t have a formal position on 

this, Congressman, at EPA. But I feel comfortable with what Colonel Stephan is saying. I—— 

Mr. PALLONE. That’s fine. 

Mr. GRUMBLES. Yeah. 

Mr. PALLONE. I want to move on to the safer technologies. Well, 

let me ask a similar question on the safer technologies provision. 

I mean would you have a problem with—again do you have a problem with us putting some language in this bill that becomes law 

that addresses safer technologies, either as a mandate that there 

have to be mandating that there be safer technologies or having 

some kind of incentivization I guess maybe is another way to put 

it. How do you feel about those two, either having the safer technology language in mandatory versus incentivized or something 

else? 

Mr. GRUMBLES. Well, Congressman, I will start and just simply 

say that it is far more complicated than just security and what is 

the safest technology. From an EPA standpoint, compliance with 

Safe Drinking Water Act or other public safety or other important 

interests, I would have concerns, I think the EPA would have concerns—— 

Mr. PALLONE. Well, let me just ask you have a problem with 

safer technology language in the bill, either incentivize or mandatory? Yes or no or which? 

Mr. GRUMBLES. I don’t have a problem with ensuring that utilities take a hard look at what are the technologies. I don’t think we 

need to get into micromanagement. The focus needs to be on results, both in terms of environmental results and public health and 

public safety. And when we start prescribing for utilities the precise way in which they get to meet Safe Drinking Water Act standards and requirements, I think it is going to lead to problems, complications. But I think it is important through research, through 

ensuring that every utility takes a hard look at what options they 

have, and public safety is a critically important part of that. 

Ms. SOLIS. Time has expired. Thank you. Next I would like to 

recognize the gentleman from Florida, Mr. Stearns, for 5 minutes. 

Mr. STEARNS. Thank you, Madam Chairwoman. I noticed the 

lights are on for videotaping, and there is no videotaping here. And 

we might want to just—— 

Ms. SOLIS. Could I explain why they are on? 

Mr. STEARNS. Yeah, sure. 

Ms. SOLIS. Because it is cold in here—— 

Mr. STEARNS. Cold. 

Ms. SOLIS [continuing]. For some of us so—— 

Mr. STEARNS. OK, I would just think we could save energy. 

Ms. SOLIS. Well, we wanted to shine the light on the right people. 

52 

Mr. STEARNS. OK, Colonel Stephan, H.R. 5577 really doesn’t define the word chemical in the bill. And I guess the question I have 

for you is would you help us define what the word chemical means 

in this legislation to you or—— 

Colonel STEPHAN. I don’t know what it means in the context of 

Mr. Thompson’s committee. In the context of the CFATS framework, we have defined—it is up to the discretion of the secretary, 

of course, to define the chemicals and the secretary—— 

Mr. STEARNS. Shouldn’t that be in the legislation, the definition 

of what it means? 

Colonel STEPHAN. Sir, we are working—through the current 

CFATS framework, that also was not mentioned in terms of a definition of chemicals. We felt that it was—the secretary had the capability to define what a chemical of interest is. We have defined 

322 of them in terms of the CFATS framework, along with corresponding threshold quantities of concern at the individual facility 

level. And I think that has been a good approach. 

Mr. STEARNS. Do you think it is appropriate to have every person 

in a chemical facility made available to participate in a compliance 

inspection? 

Colonel STEPHAN. Sir, every person in the chemical facility? 

Mr. STEARNS. That is what the bill says. Every person in a chemical facility made available to participate in a compliance inspection. Do you think that is necessary? 

Colonel STEPHAN. Sir, I think that chemical compliance inspections should involve some type of mixture of security personnel, operations personnel, management, supervisory personnel. 

Mr. STEARNS. No, the question is should every person. 

Colonel STEPHAN. Sir, I don’t think we could possibly ever attain 

that goal. 

Mr. STEARNS. You don’t think every person is needed then? 

Colonel STEPHAN. I don’t think every person is needed—— 

Mr. STEARNS. OK. 

Colonel STEPHAN [continuing]. To do a compliance inspection, no. 

Mr. STEARNS. All right, Mr. Grumbles, the bill H.R. 5577 mandates red team exercises. When you look at these teams, they are 

going to be armed with guns, attacking chemical facilities that 

have hazardous and flammable materials. Perhaps is this necessary? I mean is it wise to have this type of thing when the possibility a shot may occur or there might be some kind of accident by 

a red team member? I mean what is your impression upon this? 

Mr. GRUMBLES. Congressman, I just have to tell you I don’t feel 

very qualified to offer a judgment on that in terms of red teams 

and chemical facilities. I can speak to water facilities but—— 

Mr. STEARNS. What do you think about for water facilities? 

Mr. GRUMBLES. Well, I know that it is a full-time job to comply 

with Safe Drinking Water Act requirements and the many other 

requirements, worker safety requirements, an array of requirements that are for good reason imposed on water and wastewater 

utilities and that it is important to be able to balance security interests with public health and safety interests and be able to operate and maintain the day-to-day at the facilities. So I don’t think 

intrusive practices sound like a good idea. 

53 

Mr. STEARNS. Colonel Stephan, the operative regulatory authority in the Toxic Substances Control Act allows regulations governing the ‘‘manufacture, processing, distribution, and commerce 

use or disposal of a chemical substance or mixture.’’ Does the Department of Homeland Security have any responsibility for carrying out this Federal law? 

Colonel STEPHAN. Sir, I am not at all in any way, shape, or form 

going to pretend that I have specific knowledge on that particular 

topic. We would have to get back with you on that. My authorities 

stem, in terms of the execution of my duties, from the chemical facility antiterrorism standards legislation. 

Mr. STEARNS. You don’t have any overlapping authority here? 

Colonel STEPHAN. Sir, I would have to get back with you on that. 

I am not an expert on that other piece of—— 

Mr. STEARNS. Too tough a question to answer? 

Colonel STEPHAN. Sir, I just don’t know. I am being very honest 

with you. I do not know. I like tough questions, sir. I just would 

like to provide you the answers based upon my knowledge rather 

than guessing. 

Mr. STEARNS. Now, this bill H.R. 5577 requires the Department 

of Homeland Security to assess the adverse effects to human health 

and the environment from a chemical incident. On what information would you use to do this? Have you used EPA data for risk 

management plans under the Clean Air Act to accomplish this kind 

of activity in the past? 

Colonel STEPHAN. Yes, sir, in terms of implementing CFATS, we 

just went through a very complex consequence analysis piece. We 

used EPA data. We used data from the Department of Transportation and the Department of Commerce principally—— 

Ms. SOLIS. All time has expired. 

Colonel STEPHAN [continuing]. And ATF. 

Ms. SOLIS. I would like to next recognize the gentleman from 

California, Mr. Waxman, for 5 minutes. 

Mr. WAXMAN. Thank you very much, Madam Chair. Colonel 

Stephan, I would like to ask you about the proper roles for the Environmental Protection Agency and the Department of Homeland 

Security in keeping our community safe. In January of 2006, the 

Government Accountability Office issued a report entitled ‘‘DHS is 

taking steps to enhance security at chemical facilities, but additional authority is needed.’’ This report examined the roles of EPA 

and DHS in protecting chemical facilities from terrorist attacks. 

Are you aware the GAO issued this report? 

Colonel STEPHAN. Yes, sir, generally I am aware. I can’t recall all 

aspects of it at this time. 

Mr. WAXMAN. Well, the GAO report noted that EPA had greater 

expertise than the Department of Homeland Security in the area 

of toxic chemical data sources, U.S. hazardous materials facilities, 

and process safety issues, among other things. Do you agree that 

EPA has greater expertise in these areas than DHS? 

Colonel STEPHAN. Sir, I would agree that the Environmental Protection Agency has a wealth of data that the Department of Homeland Security does not own, and we have been collaborating and 

sharing data back and forth to support the CFATS implementation. 

54 

Mr. WAXMAN. OK, EPA has regulated chemical, drinking water, 

and water waste facilities for decades. In 1990, this committee 

vested EPA with significant authority in response to the catastrophes that took place at chemical facilities in Bhopal, India and 

in West Virginia. 

EPA has led in the development of chemical inventories and risk 

management and response plans. The Department of Homeland Security did not even exist when EPA began to develop its expertise 

in chemical management and regulation. GAO recommended that 

DHS utilize EPA’s superior expertise in managing chemical risks. 

GAO found that implementing inherently safer technologies, or 

IST, could lessen the consequences of a terrorist attack by reducing 

the chemical risk present at facilities. 

Mr. Stephan, DHS disagreed with this recommendation. DHS 

stated that promoting inherently safer technology could shift risks 

rather than remove them. That is your position, isn’t it, at DHS? 

Colonel STEPHAN. Sir, that is part of DHS’s position. Yes, sir. 

Mr. WAXMAN. H.R. 5577 specifically addresses this concern 

raised by DHS. Section 2110 specifically provides that technologies 

to reduce the effects of a terrorist attack should only be implemented if they don’t result in shifting risks to other areas. This is 

a common sense approach. Would DHS support the use of inherently safer technology as long as risks aren’t shifted to other areas? 

Colonel STEPHAN. Sir, I think the DHS position is that security 

and safety are apples and oranges in the context of an individual 

site security plan and that decisions regarding the implementation 

or adoption of IST related measures really need to be looked at 

from a systemic perspective. 

And if you would put one of my inspectors responsible for recommending to the secretary of Homeland Security whether to approve 

or disapprove a plan based upon an IST measure, we are now in 

a very uncomfortable position of our inspector and our secretary 

making a decision to approve a measure and a plan that may have 

unintended consequences across states, across regions, across the 

economy. And those things need to be dealt with outside the individual site security planning framework of the CFATS. 

Mr. WAXMAN. Well, many facilities have implemented this inherently safer approach. Here in the capital’s backyard, the Blue 

Plains Wastewater Treatment plant switched from chlorine gas to 

bleach, lessening the risk to 1.7 million people that were in the 

plant’s hazard zone. And I would like to ask unanimous consent 

that, for the record, a 2007 report from the Center for American 

Progress entitled ‘‘Toxic Trains and the Terrorist Threat’’ be made 

part of the record. And hope that the chair will put that to the committee. 

This report documents the success of inherently safer technology 

and water facilities throughout the Nation. It shows that inherently safer technology can reduce risks, not just shift them to other 

areas. 

It is an essential role of government to improve the security at 

our Nation’s chemical plants and water facilities. Security is more 

than just guns, gates, and guards. And all facilities should at least 

assess their options and choose feasible, cost-effective alternatives 

that make our citizens more secure. At the highest-risk facilities, 

55 

agencies should be willing to prescribe, not just consider, safer 

technologies when they protect human health and make our Nation 

less vulnerable to terrorist attacks. 

Madam Chair, that completes my questions. 

Ms. SOLIS. Yes, and without objection, we will accept that report. 

Thank you. 

Mr. WAXMAN. Thank you very much. 

Ms. SOLIS. Thank you very much. We do have time for one more 

question from our member from Nebraska, Mr. Terry, for 5 minutes. 

Mr. TERRY. I appreciate letting me ask the one last question. 

Just in the last week, I have had our co-ops, and this is for the 

Colonel because we are not going to—my question isn’t about the 

water. Co-ops who handle fertilizer or propane distribution or propane distributors and our farm bureau who are all very concerned 

about these bills and how it will affect their day-to-day operations. 

A typical farm in the spring is going to possess fertilizer, propane, anhydrous ammonia. How do you see these bills affecting our 

farmers? 

Colonel STEPHAN. Sir, we want to minimize the impact on ordinary Americans to include farmers that don’t really represent a 

high level of security risk. That is the bottom line in terms of the 

CFATS legislation and the implementing regulation. As a result of 

our sharing your concerns in terms of the potential hundreds of 

thousands, perhaps millions of people impact the way the legislation and the rule were originally written. We have kind of put the 

brakes on going down to the end-user level with respect to requirements of this particular regulation until, over the course of this 

summer, we can work through the U.S. Department of Agriculture 

down to their county-based arms of that agency. We recently had 

about a month ago at Penn State University a big conference of 

state level food and ag associations and government agencies to 

help us crystallize our thoughts a little better in this area. And before we take the next move with respect to the agricultural world, 

have it a lot more targeted in terms of really getting at the big 

things, the big holders and end-users that represent potentially a 

serious or significant risk to public health and safety in the area 

around the facility, whatever it might be, but to not impose a burden on your average family farmer in America, sir. That is not the 

intent of this regulation. 

Mr. TERRY. There is concern that the bills may require otherwise, 

but I do appreciate your knowledge and perspective. 

Colonel STEPHAN. Yes, sir. 

Mr. TERRY. With that, I will yield back. 

Ms. SOLIS. Very good. Mr. Shadegg is recognized. 

Mr. SHADEGG. Madam Chairwoman, I have two letters which 

have been shown to the majority staff, which I would like unanimous consent to include in the record. 

Ms. SOLIS. Without objection, those two letters will be included 

in the record. 

[The submitted material appears at the conclusion of the hearing.] 

Mr. SHADEGG. Thank you very much. 

56 

Ms. SOLIS. Thank you. At this point, we have no more questions 

from our committee members. We have a series of votes going on. 

So we will return 10 minutes after we conclude all of our six, I believe six votes that we have. So we will come back 10 minutes after 

the last vote. 

And thank you for being here, our first panel, and we appreciate 

your responses. And hopefully you will be able to get back to members that had additional questions—— 

Colonel STEPHAN. Thank you, ma’am. 

Ms. SOLIS. Thank you very much. OK, so we are in recess. 

[Recess.] 

Ms. SOLIS. OK, we are going to reconvene our hearing. I would 

like to welcome our panelists here. This is our second panel. Thank 

you for all being here, and I first would like to welcome Brad 

Coffey, the water treatment section manager at the Metropolitan 

Water District of Southern California, and invite you to provide us 

with your testimony for 5 minutes. Thank you. 

STATEMENT OF BRAD COFFEY, WATER TREATMENT SECTION 

MANAGER, METROPOLITAN WATER DISTRICT OF SOUTHERN 

CALIFORNIA 

Mr. COFFEY. Good afternoon, Madam Chairwoman and members 

of the committee. Madam Chair, also congratulations on your new 

leadership role on this committee. My name is Brad Coffey, and I 

manage drinking water treatment for Metropolitan Water District 

of Southern California. 

Metropolitan’s five treatment plants, some of the largest in the 

Nation, purify up to 2.6 billion gallons per day for 18 million people 

in Southern California. These water treatment plants rely on liquefied chlorine gas to disinfect the water and to maintain essential 

protection to the consumer’s tap. 

Today I am here on behalf of the Association of Metropolitan 

Water Agencies, or AMWA, which represents large publicly-owned 

drinking water utilities. In my testimony today, I will explain why 

local water professionals must continue to choose the best disinfection methods. 

After 9/11, Metropolitan systematically improved security procedures at its water treatment plants where chlorine is stored. In 

2003, Metropolitan submitted to EPA a vulnerability assessment 

identifying further areas for improvement. Since then, we increased 

chemical safeguards in several ways, such as developing strict delivery protocols and protecting chlorine facilities within a multi-layered security system. In 2006, Metropolitan completed its most recent study evaluating alternatives to chlorine gas disinfection, and 

we ultimately concluded that chlorine gas remains our most reliable and effective choice. Other alternatives may inadvertently reduce supply chain reliability, discharge excessive salt to receiving 

waters, increase the presence of other regulated compounds such as 

bromate, chlorate or perchlorate, increase local truck traffic carrying hazardous substances, or reshuffle rail deliveries of liquefied 

chlorine gas to less secure facilities. 

Metropolitan and other large drinking water systems are committed to securing chlorine to the highest standards, but the two 

proposals before the committee today approach this goal very difVerDate Nov 24 2008 10:41 Mar 10, 2009 Jkt 037690 PO 00000 Frm 00062 Fmt 6633 Sfmt 6633 C:\DOCUMENTS AND SETTINGS\CWELLS1\110-127 SCOM1 PsN: JIMC
57 

ferently. H.R. 5533 continues the 2002 Bioterrorism Act’s current 

regulation of drinking water systems. In contrast, H.R. 5577 subjects water utilities to potentially contradictory requirements. 

Most problematic with H.R. 5577 is the authorization to force the 

replacement of critical water disinfecting chemicals. The broad promotion of alternative processes referred to as inherently safer technologies, or IST, fails to recognize the delicate balance used to 

evaluate potential treatment alternatives while ensuring the delivery of clean and safe drinking water to millions of consumers. 

The chart shown here and also attached to my written testimony 

shows examples of the potential consequences of a mandated IST 

transition, in this case, replacing gaseous chlorine with bleach for 

primary drinking water treatment. If MWD were forced to switch, 

it would result in the delivery of 70 tanker trucks of bleach per 

week to our largest treatment plant to replace the delivery of a single rail car of liquefied chlorine gas. 

Additionally, MWD would need to store the equivalent volume of 

280 5,000-gallon tanker trucks of bleach to maintain the same 30- 

day backup supply currently achieved by four secured rail cars. Is 

transporting 70 trailers of hazardous chemical through neighborhoods every week and keeping more than one million gallons of 

bleach on hand at the plant inherently safer than securing four 

chlorine rail cars? 

Likewise, if Metropolitan were to produce dilute bleach on site, 

again shown in this chart, the processes would require vast 

amounts of salt, softened water, electricity, backup electrical generators, and diesel fuel to provide equivalent supply chain reliability. These decisions are best made by local water utility experts 

and demonstrate why any Federal agency must not be given the 

broad power to mandate local treatment methods. 

Despite these reservations, large utilities are committed to protecting vital chemical inventories and routinely replace gaseous 

chlorine when feasible. Metropolitan Water District, for example, 

has voluntarily reduced the number of chlorine gas facilities from 

17 to 6. One logical approach to this issue is advocated by the Long 

Beach California Water Department. 

In testimony before the Homeland Security Committee in February, Long Beach cautioned against imposing a broad IST mandate but instead proposed that the Federal Government help utilities adopt alternatives when feasible. Long Beach further suggested the Federal grants could encourage the consideration and 

implementation of alternative treatment methods on a strictly voluntary basis. AMWA endorses this approach. 

Effective legislation could also fund enhanced vulnerability assessments which would then meet a defined risk-based standard. 

Such a plan would help water professionals change treatment 

methods in circumstances where doing so is found to be the best 

option, thereby promoting true comprehensive security. 

I thank the committee for holding this important hearing today. 

I would be happy to answer any questions that you may have. 

[The prepared statement of Mr. Coffey follows:] 

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Ms. SOLIS. Thank you very much for your testimony. I would 

next like to welcome Mr. Crowley for being here. He is a senior fellow and director of Homeland Security at the Center for American 

Progress. Thank you, and you can begin your statement. 

STATEMENT OF P.J. CROWLEY, SENIOR FELLOW AND DIRECTOR OF HOMELAND SECURITY, THE CENTER FOR AMERICAN PROGRESS 

Mr. CROWLEY. Madam Chairwoman, thank you very much and 

members of the subcommittee. I am P.J. Crowley, senior fellow at 

the Center for American Progress. And at CAP, we appreciate the 

endorsement of our ongoing reports on chemical security. I also 

represent a broad coalition of organizations that have come together to support permanent, comprehensive, and effective chemical security legislation. 

Let me cut right to the bottom line. I perhaps represent a security perspective in this panel. If there are five things that the executive and legislative branches can do over the next 16 months to 

make our country as safe from terrorism as it can be, strengthening chemical security is on the list. 

Chemical facilities and their supply chains fit the existing targeting strategy of al-Qaeda. Insurgents in Iraq have made multiple 

attempts to convert chlorine gas tanker trucks into improvised 

weapons. This is no longer a theoretical risk. Industrial chemicals 

are now part of the terrorist playbook. Business as usual is no 

longer acceptable. Our Homeland Security policy goal should be to 

reduce the terrorists’ ability to exploit chemicals as a weapon to the 

maximum extent possible. 

As was discussed in detail in the first panel, the CFATS standards improved the physical security of the status quo, but they expire in 2009, and they are not comprehensive. Drinking water facilities are specifically exempted from stronger security standards. 

And the CFATS regulations can be improved. As a country, we 

must do better faster. 

H.R. 5577 establishes a more effective security standard. While 

it is not perfect, it is a good benchmark for drinking water facilities. Importantly, it requires chemical facilities to evaluate alternative methods that can be employed to reduce the consequences 

of a terrorist attack. For drinking water facilities, this commonly 

involves a shift to liquid bleach, although not necessarily in all 

cases. 

The legislation focuses not just on chemical facilities, but the entire chemical supply chain. Why is this important? For example, 

the Metropolitan Water District of southern California can improve 

fencing, access controls, and conduct background checks of its employees as mandated by CFATS. But this does not fully protect the 

residents of the 32nd congressional district, Madam Chairwoman, 

if chlorine gas is transported through your district to the filtration 

plant in Grenada Hills. 

The bill, as we will hear in a moment, also gives an important 

role to employees and provides employee protections and proper 

training. Now, some believe that the Federal Government will seek 

to impose one-size-fits-all solutions on water facilities in the process even making our drinking water unsafe. 

74 

In my judgment, not so. The facility operator is free to evaluate 

a range of options and any action considered must reduce risk to 

the facility, must be performance based, technology feasible, and 

cost effective. His should be the loudest voice in this discussion, but 

he has to recognize the impact that his decisions at his facilities 

have on the security of the state and the region and the country. 

Another concern involves which agency will regulate water treatment facilities. There is no single right answer, but we would encourage a regulatory framework that requires extensive collaboration between EPA and DHS such that it avoids regulatory redundancy, ensures equal enforcement for chemical facilities, government accountability, and allows States to set more protective security standards. 

Stronger security standards for drinking water facilities will involve additional costs. Our research at the Center for American 

Progress suggests that these costs are manageable, particularly 

taking into account potential savings such as reduced requirements 

for security guards, protective equipment, emergency planning, insurance costs, and so forth. In fact, 87 percent of those responding 

to our survey 2 years ago said that they switched to safer chemicals and processes for $1 million or less. 

But given the uncertain budget picture that many cities and 

States are facing, the Federal Government must be prepared to 

provide substantial funds to support any legislation. The EPA as 

well as DHS must also have sufficient personnel to do effective 

oversight. 

In conclusion, this is too important an issue to fall victim to 

interagency or intercommittee rivalries. What we need is a security 

system, not security silos. What we need is action this year. 

Thank you again for the opportunity to testify. I look forward to 

your questions. 

[The prepared statement of Mr. Crowley follows:] 

TESTIMONY OF PHILIP J. CROWLEY

MAJOR POINTS

-Chemical security is a significant homeland security vulnerability. Chemical facilities and supply chains fit al Qaeda’s existing targeting strategy. Iraqi insurgents 

have made multiple attempts to convert chlorine gas tanker trucks into improvised 

weapons. Our policy goal should be to reduce the terrorists’ ability to exploit industrial chemicals to the maximum extent possible. 

-The Chemical Facility Anti-Terrorism Standards or CFATS improves the physical 

security of the status quo, but is not the right long-term solution. CFATS is an interim measure that expires in 2009 and is not comprehensive. It explicitly exempted 

drinking water facilities from stronger chemical security standards. The existing 

CFATS program can certainly be improved. 

-H.R. 5577 establishes a more effective security standard and is a good benchmark 

for drinking water facilities. It establishes risk tiers, mandates the development of 

formal security plans and improves the physical security of these operations. Importantly, it requires chemical facilities to evaluate alternative methods to reduce the 

consequences of a terrorist attack; gives employees at chemical plants an important 

role; and allows states to set higher security standards. The facility operator is free 

to evaluate a range of possible actions and chose the one that is safest and most 

secure. Any action considered must reduce risk to the facility, its employees and 

surrounding community; must be performance-based and technically feasible; and 

must be cost effective. 

-Any regulatory framework should require extensive collaboration between EPA 

and DHS such that it avoids regulatory redundancy or gaps in supply chain secuVerDate Nov 24 2008 10:41 Mar 10, 2009 Jkt 037690 PO 00000 Frm 00080 Fmt 6633 Sfmt 6633 C:\DOCUMENTS AND SETTINGS\CWELLS1\110-127 SCOM1 PsN: JIMC
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rity; and ensures equal enforcement for chemical facilities, accountability for government and protection for existing chemical safety programs. 

-This is too important an issue to fall victim to inter-agency or inter-committee 

rivalries. We need action this year. Given the uncertain budget picture that many 

cities and states are facing, the federal government must be prepared to provide 

substantial funds to support this legislation. Any federal funding for conversion to 

safer and more secure chemicals and processes should be dedicated to publicly 

owned water treatment facilities. 

Madam Chairwoman, members of the Energy and Commerce Subcommittee on 

Environment and Hazardous Materials. 

I am P.J. Crowley, a Senior Fellow and Director of the Homeland Security Program at the Center for American Progress. I am grateful for the opportunity to discuss one of the most significant homeland security vulnerabilities we face, but 

thankfully one for which there is a clear course of action that can make a real difference. I am here today also representing a diverse coalition of public interest, 

labor and environmental organizations that have come together in support of permanent, comprehensive and effective chemical security legislation. 

Let me cut right to the bottom line. If there are five things that the executive 

and legislative branches can do over the next 16 months to make our country as 

safe from terrorism as it can be, chemical security is on the list. (For the record, 

in my view, we also need to pay more attention to air cargo security, invest in intelligence capabilities of local police, strengthen the international non-proliferation regime and improve oversight of biological research programs). 

Across the country, more than 7,000 chemical facilities each put 1,000 or more 

people at risk of serious injury or death in the event of a poison gas release, due 

to a terrorist attack on the facility or its chemical supply chain. Approximately 100 

of these plants each put more than one million people at risk. These facilities and 

their supply chains fit the existing targeting strategy of a network like al Qaeda, 

which seeks to carry out a spectacular attack intended to impact as many people 

as possible, inflict broad economic loss on our society and attract national and global 

attention. Industrial chemicals are a means to achieve those ends. 

I commend the committee for this hearing, which I take as an indication that 

Congress is rightfully concerned about chemical security. The issue is not whether 

to take action, but exactly what should be done. Congress does need to act because, 

despite interim steps undertaken over the past two years, the risk is going up. This 

may seem counter-intuitive. We have, thankfully, gone seven years without a major 

attack here in the United States. Our borders are more secure. Law enforcement 

is more alert. But the threat is evolving. It is imperative that we stay ahead of it, 

using every opportunity to improve security. 

Iraq has been a laboratory for the recruitment and training of a new generation 

of terrorists well-schooled in urban warfare. While their weapon of choice remains 

a conventional bomb, they have experimented in a variety of ways with chemical 

weapons. One tactic involves multiple attempts to convert chlorine gas tanker 

trucks into improvised weapons. While they have not yet been effective, these incidents demonstrate how insurgents will attempt to employ whatever hazardous material is available to them. 

In light of this, our homeland security policy goal should be to reduce the terrorists’ ability to exploit industrial chemicals as a weapon to the maximum extent possible. To be sure, the risk will never be reduced to zero. In almost every element 

of daily life, we rely upon chemicals and chemical processes to help us maintain our 

standard of living. But this should never be used as justification to do nothing to 

eliminate unnecessary risks or do as little as possible. 

Chemical security today is a mixed picture. We are in better shape than we were 

two years ago. Constructive action is being taken both at the federal and state levels. New Jersey, for example, has taken meaningful steps above and beyond what 

has been mandated nationally. The private sector, which was reluctant to acknowledge the risk four years ago, now recognizes that voluntary and fragmentary efforts 

have fallen short. Responsible players understand that some kind of regulation is 

not only necessary, but a desirable means of creating a secure, competitive and level 

playing field. 

There is still resistance, however, from interests that ultimately believe either 

that they are not at serious risk or are already doing enough; that this is not really 

about security, despite the experience of 9/11; or that government regulation is an 

unacceptable intrusion into the marketplace, whether it is functioning well or not. 

You have undoubtedly heard some of these views in the run-up to this hearing. 

Let’s recall the significant admonition that the 9/11 Commission emphasized in 

its outstanding bipartisan report almost four years ago. Whether or not the attacks 

of September 11 could have been prevented, which is unknowable, we were handiVerDate Nov 24 2008 10:41 Mar 10, 2009 Jkt 037690 PO 00000 Frm 00081 Fmt 6633 Sfmt 6633 C:\DOCUMENTS AND SETTINGS\CWELLS1\110-127 SCOM1 PsN: JIMC
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capped by a ′′failure of imagination.′′ We knew about Osama bin Laden and al 

Qaeda. We understood that terrorists were focused on passenger aviation. Our security system worked as it was designed that day. However, it was not adequate to 

deter adversaries who were more capable than we thought and who used tactics 

that we had not anticipated. 

What does this mean to chemical security? We have strategic-level intelligence 

that industrial chemicals are now part of the terrorist playbook. The fact that they 

have yet to perfect this weapon of significant effect only means that we have some 

time to act, but we must do so with a sense of urgency. Business as usual is no 

longer acceptable. 

Congress passed a 740-word interim chemical security law in 2006 that has been 

translated into the Chemical Facility Anti-Terrorism Standards or CFATS, which 

the federal government is now applying to specific high-risk facilities around the 

country. CFATS improves the physical security of the status quo, but is not the 

right long-term solution. It has a number of shortcomings. Let me mention a couple. 

First, CFATS is an interim measure that expires in 2009. The House of Representatives has the opportunity to demonstrate strong bipartisan leadership on this 

issue by passing permanent legislation this year. This can go a long way towards 

ensuring enactment before October of next year. 

Second, CFATS is not comprehensive. Relevant to this hearing, the 2006 interim 

law explicitly exempted drinking water facilities, many of which use chlorine gas in 

their existing operations, from stronger chemical security standards. According to 

the EPA, the catastrophic release of chlorine gas from ubiquitous 90-ton rail cars 

used as storage vessels will put communities at risk up to 20 miles away. I recognize that there are security provisions contained in the Safe Water Drinking Act, 

such as requirements for vulnerability assessments and an emergency response 

plan, but not a comprehensive security plan. We believe that there should be a consistent set of national standards that apply to all chemical facilities, manufacturers, 

packagers and users. This includes drinking water facilities, as well as wastewater 

facilities which fall under the jurisdiction of another committee. 

The existing CFATS program can certainly be improved. For example, the interim 

statute relies on conventional perimeter security and actually prohibits the federal 

government from requiring consideration of safer cost-effective technologies even if 

they will eliminate catastrophic risks. This leaves us less safe than we should be 

- and less safe than we think we are. 

For example, the Metropolitan Water District of Southern California can improve 

fencing, access controls and conduct background checks of its employees as mandated by CFATS. That does not fully protect the residents of California’s 32nd Congressional District, which has freight rail lines over which chlorine gas may be 

transported from a chlorine producer to the filtration plant in nearby Granada Hills. 

Every day, chemical producers and users transfer considerable risk from their operations to the freight railroads. A 90-ton rail car in the middle of a major city is 

an inviting terrorist target without adequate defenses. The current guidance from 

the Department of Homeland Security is to keep track of hazardous materials and 

keep them moving. That may be a reasonable short-term answer, but it is not a 

long-term security solution. We need to attack this challenge both nationally and 

systemically. This is not happening today. 

We need to do better - faster. 

Chemical security legislation before this Committee, H.R. 5577, establishes a 

more effective and achievable security standard for chemical facilities. While it is 

not perfect, it is also a good benchmark to apply to drinking water facilities. It establishes risk tiers, mandates the development of formal security plans and improves the physical security of these operations. Importantly, it requires chemical 

facilities to evaluate alternative methods that can be employed to reduce the consequences of a terrorist attack. Such methods can involve substitution of less hazardous materials that cannot be exploited by terrorists. In the context of drinking 

water facilities, this commonly involves a shift from the use of chlorine gas to liquid 

bleach, which can be generated on site. More than 160 large U.S. drinking water 

systems serving 100,000 or more people already use liquid bleach. More broadly, 

other substitutes for chlorine gas include ozone gas or ultraviolet radiation. Such 

conversions can be done rapidly, the best example being Washington, D.C.’s Blue 

Plains wastewater treatment plant just 90 days after the 9/11 attacks. 

The legislation takes a holistic approach to chemical security by charging the federal government to oversee security not just of chemical facilities, but the entire 

chemical supply chain, from point of manufacture through transportation to final 

use. Even as we strengthen physical plant security, the highest point of risk can 

be an acutely hazardous substance in an unguarded 90-ton rail car on a freight rail 

line that flows through a major city. Two such lines run through this city, our naVerDate Nov 24 2008 10:41 Mar 10, 2009 Jkt 037690 PO 00000 Frm 00082 Fmt 6633 Sfmt 6633 C:\DOCUMENTS AND SETTINGS\CWELLS1\110-127 SCOM1 PsN: JIMC
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tion’s capital. CSXT is currently observing a voluntary moratorium regarding the 

transportation of hazardous materials on the Capitol Hill line through the District 

of Columbia, even as it battles the city in court for the right to do so. 

At the same time, it is important to point out that the Association of American 

Railroads (AAR) is a significant proponent of permanent chemical security regulation that would reduce the amount of hazardous material transported around the 

country. In a February 27th statement, the AAR said, ′′It’s time for the big chemical 

companies to do their part to help protect America. They should stop manufacturing 

dangerous chemicals when safer substitutes are available. And if they won’t do it, 

Congress should do it for them in the Chemical Facility Anti-Terrorism Act of 2008.′′ 

We have focused on supply chains in other areas, maritime security being an excellent example. We should take the same approach with chemical security. 

H.R. 5577 gives employees at chemical plants an important role in developing vulnerability assessments and security plans, since they may be in the best position 

to know how risk can best be reduced. It also provides important worker protections 

and promotes proper training. For example, it ensures that background checks are 

applied properly and that they cannot be used to retaliate against employees for 

doing their jobs. It also allows states to set higher security standards as New Jersey 

has done. Section 2104 of H.R. 5533 also contains very strong and appropriate language that preserves states authority to do more if appropriate. 

Earlier, I mentioned that there is resistance to chemical security regulation, particularly as it applies to drinking water facilities. Let me address a couple areas of 

concern. First, some believe that the federal government will seek to impose one-size-fitsall solutions on water facilities, in the process even making our drinking water unsafe. H.R. 5577 does the opposite. Specific security concerns are identified. The facility operator is free to evaluate a range of possible actions and chose the one that 

is safest and most secure. Criteria are clearly spelled out in the proposed legislation. 

Any action considered must reduce risk to the facility, its employees and surrounding community; must be performance-based and technically feasible; and must 

be cost effective. At one location, the answer may be better physical security for an 

existing operation. At another, it may be a more transformative ′′best practice.′′ 

I have traveled extensively around the country and talked with a wide range of 

federal, state, local and private sector security experts. The current system is not 

promoting transformative ′′best practices′′ in a systematic way. At the Center for 

American Progress, we have documented in multiple research reports hundreds of 

examples of plant conversions to proven and cost-effective alternatives. The issue 

really is not about imposing solutions. Viable solutions already exist. The real issue 

is how to create a security system and set of incentives that accelerates the pace 

of change. 

Assuming that Congress strengthens security requirements for drinking water facilities, a second concern involves which agency will regulate them. The Environmental Protection Agency has the most mature relationship with drinking water facilities. The Department of Homeland Security is responsible for the existing CFATS 

regulatory process. This question is a matter of discussion between DHS and EPA 

as well as relevant committees here in Congress. 

The coalition that I represent does not have a set position. In fact, there is no 

single right answer, but we would encourage a resolution that results in a regulatory framework that requires extensive collaboration between EPA and DHS such 

that it avoids regulatory redundancy or gaps in supply chain security; ensures equal 

enforcement for chemical facilities, accountability for government and protection for 

existing chemical safety programs under other laws; and allows states to set more 

protective security standards. Regardless of the agency of jurisdiction, what is needed is a security system that requires facilities in all risk tiers to identify opportunities to reduce the consequences of an attack through the use of safer and more secure chemicals or operations, and requires the highest risk tier to use safer and 

more secure chemicals where feasible and cost effective without shifting catastrophic 

risk to other facilities. A security system will be most effective if it includes employees in vulnerability assessment, security plan development and required inspections, 

trains them properly and protects them against the misuse of background checks 

and retaliation. 

This is too important an issue to fall victim to inter-agency or inter-committee rivalries. You know better than I do how challenging the legislative calendar is in this 

election year. A delay this year will place greater pressure on a new administration 

and new Congress in 2009. What we need is action this year. 

One final comment on resources. We used to joke at the Pentagon that if we keep 

doing more with less, eventually we will be able to do everything with nothing. It 

is a good one-liner, but improved chemical security is not free. 

78 

If you apply the stronger national standards outlined in H.R. 5577 to drinking 

water facilities as we recommend, whether regulated by EPA or DHS, there will be 

additional costs involved. Our research at the Center for American Progress suggests that these costs are manageable, particularly taking into account potential 

savings (reduced requirements for security guards, protective equipment, emergency 

planning, insurance costs and so forth). In fact, 87 percent of those responding to 

our survey said they switched to safer chemicals or processes for $1 million or less. 

But there clearly will be some capital expenditures associated with physical security 

improvements, chemical substitution and other process changes. Given the uncertain budget picture that many cities and states are facing, the federal government 

must be prepared to provide substantial funds to support this legislation. We therefore recommend that any federal funding for conversion to safer and more secure 

chemicals and processes be dedicated to publicly owned water treatment facilities. 

And for cities, states and the private sector, as we ask them to adopt stronger 

standards, they have every right to expect the federal government to be a competent 

and full partner. The EPA, as well as DHS, must have the personnel and support 

to do what needs to be done. Right now, in both agencies, we have thousands of 

facilities across the country overseen literally by a few dozen people. We are in the 

process of adding 92,000 troops to the Army and Marine Corps to enable us to fight 

the so-called war on terror more effectively. Well, other agencies of government also 

have important security responsibilities as well. They need more ′′troops′′ to protect 

the American people. 

Within the private sector, I would like to see the emergence of certified thirdparty security auditors to routinely evaluate private sector compliance with national 

chemical security standards. This too is envisioned under H.R. 5577. These thirdparty auditors would not be contractors performing a governmental function, but 

much like financial auditors, they would work with and for chemical operators, including drinking water facilities, to ensure facilities were meeting requirements in 

accordance with security plans required under this legislation. They should have 

demonstrated competence in physical security and also methods to reduce the consequences of a terrorist attack. 

Thank you again for the opportunity to testify. I look forward to your questions. 

Ms. SOLIS. Thank you very much, Mr. Crowley. Next I would like 

to recognize our speaker Mr. Marty Durbin, who is the managing 

director of the Federal affairs at the American Chemistry Council. 

Welcome, and you may present your testimony. 

STATEMENT OF MARTY DURBIN, MANAGING DIRECTOR OF 

FEDERAL AFFAIRS, THE AMERICAN CHEMISTRY COUNCIL 

Mr. DURBIN. Thank you, Madam Chairwoman, Congressman 

Green. I am Marty Durbin with American Chemistry Council, and 

I appreciate the opportunity to be here today and speak on this important topic. 

ACC represents about 140 leading U.S. chemical manufacturers 

responsible for approximately 90 percent of basic industrial chemical production here in the U.S. The industry overall employs nearly one million people in America, produces 21 percent of the world’s 

chemicals, and is the largest private industry investor in research 

and development. Our members make products that are critical to 

many aspects of American life including keeping our drinking 

water safe, supporting agriculture, and spurring medical innovations that prevent and treat disease. 

I am pleased to note this September will mark the 100th anniversary of the use of chlorine to treat drinking water, a step hailed 

by ‘‘Life’’ magazine as the greatest public health achievement of the 

20th century. While Mr. Pallone is still here, I would point out that 

was in Jersey City, New Jersey. 

Security has long been a priority for ACC members and the 

broader chemical sector. In fact, in 2001, our members adopted a 

79 

mandatory security program that I hope many of you have heard 

of called Responsible Care Security Code. That code has won praise 

from Congress, from DHS, and the media and served as a model 

for State and local programs in Maryland, New York, and New Jersey. 

It is also important to note that many non-ACC members have 

also taken aggressive action to enhance security at their facilities 

through their own industry programs. Now, DHS and chemical facilities are acting to implement the Chemical Facility Antiterrorism 

Standards, or CFATS. And although ACC members have already 

invested more than $6 billion, the DHS rules leave little doubt that 

more action will be required. In fact, DHS anticipates that more 

than $8 billion will be required to implement CFATS over the first 

8 years of the program. 

So while DHS has gotten off to a solid start, there is a crucial 

role for Congress. We think implementation of CFATS requires a 

significant increase in staffing resources. While DHS staff has demonstrated outstanding commitment and effort to date, we would 

urge Congress to provide the agency with the necessary resources 

to handle the workload and to assure that chemical facility security 

is properly implemented in a timely manner. We all benefit from 

this program’s success. 

We understand the program will need to be reauthorized, and we 

support making the program permanent. But we do believe Congress should allow the program to be fully implemented before 

making significant substantive changes. 

Some have questioned whether Congress should have included 

other categories of facilities in the regulatory program. To be clear, 

ACC did not seek or support any carveouts for our facilities or our 

products or anyone else’s. Rather we believe that any facilities Congress decides to include should be subject to the same comprehensive risk-based security requirements developed through CFATS. 

Now with H.R. 5577, I believe the Homeland Security Committee 

took an important first step to provide a permanent framework for 

security regulations. We were pleased to see that the final bill did 

reflect many security measures already being implemented under 

CFATS and appreciate the efforts that were made to minimize duplication by facilities that have already acted or will be acting further under the program itself. 

However, we do remain concerned that the bill would grant DHS 

authority to override chemical engineers, process safety experts, 

and industry security officials when it comes to chemical process 

changes. In our view, CFATS takes the right approach by helping 

facilities identify potential security enhancements through the vulnerability assessment, including methods to reduce consequences or 

inherently safer approaches. 

The rules then encourage implementation of whatever appropriate security enhancements are required by providing an opportunity to move your facility to a lower-risk tier, thereby potentially 

reducing your regulatory requirements. 

Any notion that companies will automatically avoid making such 

changes to their processes should be dismissed. It simply is not the 

case. Frankly we have the greatest interest in the safety of our employees, our facilities, and the communities in which we operate. In 

80 

fact, I am proud to say that ACC member companies have achieved 

an employee safety record more than four times safer than the average of the U.S. manufacturing sector. That is not just coincidence. That is commitment. 

Now, turning to H.R. 5533, we believe that it provides permanence, predictability, and consistency to the current CFATS program. However, we do have concerns with the bill’s approach to 

Federal preemption, an issue that was discussed quite a bit on the 

first panel. Again we believe that DHS struck a necessary and reasonable balance on possible preemption of State and local laws by 

following precedent set by existing national security laws for aviation, rail, and port security. And we simply see no compelling reason to treat the security of critical chemical facilities differently. 

Our first priority should be to enhance security at sites nationwide as soon as practical. CFATS is helping meet this goal. Give 

DHS and the industry enough time to implement the current program, and then determine what gaps remain. Congress will have 

the assurance that nationwide security of chemical facilities will 

have been significantly upgraded during the process. The crucial 

partnership between our industry and the Federal Government requires each of us to do our part. 

ACC and its member companies are committed to safeguarding 

their facilities, and we will continue to work with Congress and 

DHS in that spirit. Thank you. 

[The prepared statement of Mr. Durbin follows:] 

STATEMENT OF MARTY DURBIN

Madame Chairwoman, Ranking Member Shadegg, and Members of the Committee, my name is Marty Durbin, and I am the Managing Director of Federal Affairs for the American Chemistry Council (ACC). Thank you for this opportunity to 

speak today on behalf of the Council’s members on the important subject of security 

in the business of chemistry, a critical sector of America’s infrastructure. 

My testimony today will highlight several key points: 

1.The chemical industry, a crucial part of the nation’s infrastructure, is essential 

to America’s economy and security. Through our extended value chain of customers 

and intermediary chemical users, we are deeply integrated into American life. 

2.Security has long been a top priority for our industry. Following 9/11, our members initiated ACC’s mandatory Responsible Care Security Coder to enhance security at their facilities. 

3.Since passage of chemical security legislation in 2006 - legislation ACC strongly 

supported - the Department of Homeland Security (DHS) has moved swiftly to set 

meaningful, risk-based standards, and along with our industry partners, ACC members are working hard to implement the new regulatory requirements. 

4.Both Congress and DHS have a crucial role in ensuring security - in particular, 

we ask Congress to ensure that DHS has the resources required to do its job in all 

aspects of national security. 

5.Provide ACC’s view on pending chemical security legislation. 

1. AMERICAN CHEMISTRY IS ESSENTIAL

ACC represents 140 leading companies in the U.S. chemical manufacturing responsible for approximately 90 percent of basic industrial chemical production. This 

sector of our economy employs nearly one million people in America, produces 21 

percent of the world’s chemicals, and is the largest private industry investor in research and development at $27 billion annually. Not surprisingly, we generate nearly 10 percent of all U.S. patents. 

ACC member companies manufacture essential products critical to homeland security and everyday items that keep the economy moving. Over 96% of all manufactured goods are directly touched by the business of chemistry. Our members provide 

the chemistry that is used to produce life saving medications and medical devices, 

81 

body armor used by our military and law enforcement officers, de-icing fluids for airplanes, energy saving solar panels, and so much more. 

In addition, our members make products that are critical to many aspects of 

American life, including keeping our drinking water safe, supporting agriculture, 

and spurring medical innovations that prevent and treat disease. I am pleased to 

note that September will mark the 100th anniversary of the use of chlorine to treat 

drinking water - a step hailed by Life magazine as ′′the greatest public health 

achievement of the 20th Century.′′ Harvard University research suggests that, in 

the early 20th century, drinking water filtration and chlorination reduced typhoid 

fever death rates by more than 90 percent and childhood mortality by more than 

50 percent in major U.S. cities. 

Because of the long list of benefits chemicals provide to society, DHS identified 

the chemical sector as a part of the nation’s critical infrastructure, a national asset 

that needs to be protected from terrorism. 

It is important to remember that the members of ACC do not represent the entire 

universe of facilities that use or store chemicals. Rather, our members provide 

chemicals that are used as raw materials or in processes that are vital for auto companies, farms, pharmaceutical and medical device manufacturers, electric utility 

companies, laboratories, and many others. 

2.SECURITY AND SAFETY ARE THE TOP PRIORITIES FOR ACC MEMBERS

Security has long been a priority for ACC members and the chemical sector. In 

2001, our members agreed to adopt an aggressive security program that became the 

Responsible Carer Security Code. It is part of the overall Responsible Care initiative 

which is ACC’s signature program of ethical principles and management systems 

designed to continuously improve our members’ safety, health and environmental 

performance - as well as their security performance. 

Implementation of Responsible Care is mandatory for all members of the American Chemistry Council, as well as for Responsible Care Partner companies, who 

represent chemical transporters, distributors, warehouses, logistics planners and 

others along the supply/value chain. In developing the Security Code, we consulted 

closely with first responders and government agencies at all levels. 

The Security Code requires member companies to: •Prioritize their sites by degree 

of risk, sorting them into four tiers. •Thoroughly assess vulnerabilities, using rigorous methodologies developed by Sandia National Labs and the Center for Chemical Process Safety (CCPS), a program of the American Institute of Chemical Engineers (AIChE). •Implement security enhancements commensurate with risks, taking 

into account inherently safer approaches, engineering and administrative controls, 

and other security, prevention and mitigation measures. •Verify the implementation 

of these physical security measures, using third parties that are credible with the 

local community, such as first responders or law enforcement officials. 

ACC members are required to conduct an annual review of their security implementation activities and report their status to ACC. In addition, all ACC members 

are required to obtain certification to the ACC approved management system framework, RCMS® or RC 14001® (RC14001 includes the entirety of ISO 14001). Both 

systems require an assessment of security risks; implementation of protective measures at facilities; and evaluation and protection of products throughout a company’s 

value chain. Certification to the management system is conducted by independent 

third party auditors who are credentialed by the Board of Environmental Health 

and Safety Auditor Certification (BEAC) or RABQSA International. 

The Security Code also covers the crucial area of cyber security, to protect our 

highly automated operations from being attacked electronically. Here again, the efforts of ACC members provide a model to other industries employing similar automated systems. 

The Code has won praise from Congress, senior DHS officials, and the media. Its 

risk-based provisions served as model for state and local programs in Maryland, 

New Jersey and New York. And, it is important to note that many non-ACC members have taken aggressive action to enhance security at their facilities through 

similar industry programs. 

3.DHS IS MOVING AGGRESSIVELY AND CHEMICAL FACILITIES ARE MOVING QUICKLY

TO COMPLY. 

After six years of debate, Congress enacted Section 550 of the FY07 DHS Appropriations Act,1 the law that authorized the new Chemical Facility Anti-terrorism 

Standards (CFATS).2 Under a spotlight of public scrutiny and Congressional oversight, DHS and chemical facilities are acting swiftly to implement this 

groundbreaking program. 

82 

While this program shares elements with the programs established by several 

states, the CFATS program is, by far, more comprehensive and demanding. So, although ACC member company facilities have already invested more than $6 billion 

to enhance security through the ACC Responsible Care® Security Code, the DHS 

rules leave little doubt that more action will be required at facilities that are 

deemed high risk. In fact, DHS anticipates more than $8 billion will be needed to 

implement CFATS over the first eight years of the program. 

DHS has successfully issued comprehensive security regulations that have required more than 50,000 facilities nationwide to complete a risk-based screening assessment, known as ′′Top-Screen′′. Through informed decisions based upon TopScreen, DHS will now prioritize thousands of facilities that will have to comply with 

chemical security standards under CFATS. 

Throughout 2008, these priority facilities will be required to assess their 

vulnerabilities, develop site security plans and minimize and implement layered security measures. DHS will inspect regulated facilities and evaluate security enhancements against stringent performance based standards. Fines and facility shutdowns will await those who do not comply. 

1 Pub. L. No. 109-295, §550 (2006). 2 6 C.F.R. Part 27, 72 Fed. Reg. 17688 (April 9, 2007), 65396 (Nov. 20, 2007). 

4.WHAT THE CHEMICAL SECTOR NEEDS FROM CONGRESS AND DHS 

While DHS has gotten off to a solid start, there is a crucial role for Congress. For 

example: 

Provide Adequate Funding to Support Full Implementation of the CFATS Requirements 

While CFATS requires considerable action from chemical facilities in a short period of time, it also will place enormous burdens on DHS to implement the rules. 

DHS personnel will be required to conduct reviews of site-specific vulnerability information and site security plans, and to make site visits at each regulated facility. 

This will include assessing how each facility has addressed the applicable risk-based 

performance standards for facilities in its risk tier - a complex, site-specific, 

judgmental task. 

We think implementation of CFATS requirements necessitates a significant increase of staffing resources. While DHS staff has demonstrated outstanding commitment and effort to date, we urge Congress to provide the agency with the necessary 

resources to handle the workload and to ensure that chemical facility security is 

properly implemented in a timely manner. 

Allow DHS Enough Time to Do the Job Congress Has Given It 

Within weeks, thousands of facilities will receive letters outlining their specific requirements for completing vulnerability assessments and setting a schedule for completion of these assessments. Facilities will draft site-specific security plans. The 

plans will outline security enhancements to be implemented based on 19 stringent 

performance metrics. Plans for the highest risk sites are due later this year and remaining plans should be submitted to DHS before the end of next year. Thus, the 

rules provide a clear path for completion of requirements on an aggressive timetable, including inspections and a review process that requires sites to revisit their 

situation and assess whether any changes to their security plans are required. 

In our view, therefore, while we understand the program will need to be reauthorized, and support making the program permanent, we believe Congress should allow 

the program to be fully implemented before making any significant, substantive 

changes. 

5.ACC COMMENTS ON PENDING LEGISLATION

ACC supports a risk-based program applied even-handedly across the board. We 

know some have questioned whether Congress should have included other categories 

of facilities in the regulatory program. Let me be clear, ACC did not seek or support 

any carve-outs under CFATS for our facilities or our products, or anyone else’s. 

Rather, we believe that any facilities Congress decides to include should be subject 

to the same comprehensive, risk-based security requirements developed through 

CFATS. 

With HR 5577, Chairman Thompson and his Homeland Security Committee took 

an important first step to provide a permanent framework for chemical facility security regulations. ACC clearly supports that goal. We’re pleased to see the bill reflect 

many of the security measures that will be implemented under CFATS, and we appreciate the efforts made to minimize duplication of effort by facilities that have already acted or will take further action under the program. 

83 

However, we remain concerned regarding a provision in the bill that would grant 

DHS authority to override chemical engineers, process safety experts and industry 

security officials when it comes to decisions regarding changes to chemical processes. In our view, CFATS takes the right approach by helping facilities identify potential security enhancements - including ′′methods to reduce consequences′′ or 

′′inherently safer′′ approaches - through the vulnerability assessment. The rules 

then encourage implementation of appropriate security enhancements by providing 

an opportunity to move your facility to a lower-risk tier, thereby potentially reducing your regulatory requirements. Importantly, this allows decisions regarding 

chemical processes in the hands of safety, security, and engineering experts at the 

facility. 

Any notion that companies will automatically avoid making such changes should 

be dismissed. We have the greatest interest in the safety of our employees, our facilities, and the communities in which we operate. In fact, I’m proud to say ACC 

member companies achieved an employee safety record more than four times safer 

than the average of the U.S. manufacturing sector. So, being innovative in our operations is not only good for safety and security, it’s good for business. 

Congress, therefore, should not abandon a strategy to enhance security that employs performance-based security standards by pursuing provisions that try to mandate innovation. The current approach allows DHS to unleash the ingenuity, expertise and resources of the chemical sector while allowing DHS to focus on enforcing 

security standards based on a multitude of specific terrorist threat scenarios. 

Turning to HR 5533, we believe it provides permanence, predictability and consistency to the current CFATS program. However, we do have concerns regarding 

the approach the bill takes in regard to federal preemption. 

DHS, in furtherance of its mission to ensure security to the homeland, has struck 

a necessary and reasonable balance on possible preemption of state and local laws 

by following precedent set by existing national security laws for aviation, rail and 

port security. In fact, Congress continued to support this level of federal protection 

on national security issues through legislation enacted last year addressing rail security. There is no compelling reason to treat the security of critical chemical facilities differently, and lessen the predictability and consistency of the CFATS program. 

IN CONCLUSION

At the direction of Congress, DHS acted quickly and has developed a comprehensive, stringent regulatory program to protect our nation’s chemical facilities. Congress can ensure the program continues and thrives. 

I hope Members will agree that our first priority should be to enhance security 

at sites nationwide as soon as practicable. CFATS is meeting this priority. Give 

DHS and the industry enough time to implement the current program and then determine what gaps remain. Congress will have the assurance that nationwide, the 

security at chemical facilities will have been significantly upgraded during the process. Members will also have the benefit of seeing what works in the program and 

what needs to be enhanced. 

The crucial partnership between our industry and the federal government requires each of us to do our part. ACC and its member companies are our committed 

to safeguarding America’s chemical facilities, and will continue to work with Congress and DHS in that spirit. 

ACC TESTIMONY

SUMMARY

•The chemical industry is a critical part of our nation’s infrastructure, essential 

to the national economy and security. 

•Security has long been a priority for the chemical industry, and ACC members 

initiated a mandatory security program for its members immediately following September 11, 2001. The Responsible Care Security Code has been used as a model for 

security programs at all levels of government, and ACC members have invested 

more than $6 billion further enhancing security at more than 2000 facilities since 

9/11. 

•Since passage of legislation in 2006 establishing the Chemical Facility Anti-Terrorism Standards (CFATS) - legislation strongly supported by ACC - DHS has 

moved swiftly to set stringent, risk-based security standards. Industry is working 

hard and DHS is making significant progress toward implementing the new regulatory requirements. 

84 

•Congress should make CFATS permanent. Prior to Congress making significant, 

substantive changes to CFATS, however, ACC believes Congress should give DHS 

both the time and resources necessary to complete the job it was given. •HR 5577 took an important first step to provide a permanent framework for 

chemical facility security, but we remain concerned over a provision that allows 

DHS to override chemical engineers, process safety experts and security professionals regarding changes to chemical processes. •HR 5533 provides permanence, predictability and consistency to the CFATS program, but we are concerned about its approach to preemption. We believe legislation 

should follow the precedent set by existing national security laws for aviation, rail 

and port security. 

Ms. SOLIS. Thank you very much for your testimony. Our last 

speaker is Dr. Andrea Kidd Taylor. Welcome. She is the assistant 

professor at Morgan State University’s School of Community 

Health and Policy. You may begin your testimony. 

STATEMENT OF ANDREA KIDD TAYLOR, DRPH, MSPH, ASSISTANT PROFESSOR, MORGAN STATE UNIVERSITY, SCHOOL OF 

COMMUNITY HEALTH AND POLICY 

Ms. TAYLOR. Thank you. Madam Chairwoman Solis and Congressman Green, thank you for hearing my testimony today regarding the proposed legislative bills H.R. 5533 and H.R. 5577. As was 

mentioned, I am a professor at Morgan State University in Baltimore, Maryland. Prior to my current position, I was a political appointee and the labor representative on the U.S. Chemical Safety 

and Hazard Investigation Board, a board patterned after the National Transportation and Safety Board to conduct chemical accident investigations at fixed facilities. 

Before my board appointment, I worked for almost 10 years with 

the United Auto Workers health and safety department in Detroit, 

Michigan conducting in-plant health and safety investigations and 

evaluating industrial hygiene data at facilities represented by the 

UAW and locations throughout the United States. I am here today 

on behalf of labor to urge you to support this chemical plant security legislation and also to highlight areas in the bill that need additional language to further protect workers and the broader community. 

As a member of the CSB, I had an opportunity to tour several 

chemical facilities and communities where chemical accidents occurred around the country. In the course of conducting our investigations and reviewing and submitting our investigation reports, 

I was made keenly aware of just how vulnerable many of our facilities were to a terrorist attack and how workers and communities 

surrounding these facilities were also not aware of how vulnerable 

they were if a major chemical disaster occurred. 

Enacting legislation that comprehensively covers chemical facility security and provides for collaboration between EPA and DHS 

will assist in providing the necessary protections for millions of 

workers and communities now living in the shadow of preventable 

disasters. 

Chemical plant vulnerability and plant security are very important issues for labor. If there is a terrorist attack on a chemical facility, workers at the facility will be the most vulnerable and the 

first ones to suffer the most adverse consequences. In any chemical 

facility security bill that is passed by Congress, the following areas 

should be addressed and emphasized. 

85 

Reduce the consequences of an attack through the use of more 

secure technologies and less hazardous chemicals. Secondly, involve 

workers and/or their representatives in all aspects of the plant’s 

chemical security program, including conducting plant vulnerability 

assessments and developing plant security and emergency response 

plans. Allow States to set more protective security standards. Protect workers against the misuse of background checks and the information collected and allow adequate redress. Ensure whistleblower protections against retaliation. And lastly provide employees with adequate and comprehensive training. 

Congress should consider any legislation that will replace dangerous chemicals with more secure alternatives. Substituting more 

secure alternatives for hazardous substances where technically and 

economically feasible and comparable risk is not shifted is the best 

way to protect workers, their families and their communities. By 

switching to more secure technologies, the facilities are no longer 

potential terrorist threats or targets. 

Workers and their representatives should be involved in all aspects of their facility’s chemical security program. All the workers 

and their representatives know the workplace and its 

vulnerabilities best. The inclusion of workers in assessing their facility’s vulnerabilities and developing a response plan should be required. 

Federal legislation should not preempt successful State laws. 

Any chemical plant security legislation adopted by the States 

should be just as effective as the Federal law. But it should not be 

preempted if the State regulations are stronger and more protective. 

If background checks of employees are necessary, an adequate redress process should be available to employees in case of faulty information, limited access to background check information and disqualifying criteria related to terrorist activity. For example, a prior 

conviction for a nonviolent drug offense committed outside of the 

workplace should not be considered relevant to a terrorism background check. 

Once a chemical plant security plan is adopted and implemented, 

employers should be required to provide mandatory employee training, and the training should be conducted annually. 

And with that, I leave it for questions afterwards. Thank you 

very much. 

[The prepared statement of Ms. Kidd Taylor follows:] 

TESTIMONY OF DR. ANDREA KIDD TAYLOR

SUMMARY 

Congress should consider any legislation that will replace dangerous chemicals 

with more secure alternatives. Substituting more secure alternatives for hazardous 

substances, where technically and economically feasible and comparable risks are 

not shifted, is the best way to protect workers, their families, and their communities. By switching to more secure technologies, the facilities are no longer potential terrorist targets. 

Workers and their representatives should be involved in all aspects of their facility’s chemical security program. Hourly workers and their representatives know the 

workplace and its vulnerabilities best. The inclusion of workers in assessing their 

facility’s vulnerabilities and developing a response plan should be required. 

86 

Federal legislation should not pre-empt successful state laws. Any chemical plant 

security legislation adopted by the states should be just as effective as the federal 

law; but it should not be pre-empted if the state regulations are stronger and more 

protective. 

If background checks of employees are necessary, an adequate redress process 

must be available to employees, in case of faulty information, limited access to background check information and disqualifying criteria related to terrorist activity (For 

example, a prior conviction for a non-violent drug offense committed outside of the 

workplace should not be considered relevant to a terrorism background check). 

Once a chemical plant security plan is adopted and implemented, employers 

should be required to provide mandatory employee training; and the training should 

be conducted annually. 

TESTIMONY 

Madam Chairwoman Solis, Ranking Member Shadegg and members of the Subcommittee on Environment and Hazardous Materials, thank-you for hearing my testimony today regarding the proposed legislative bills - H.R. 5533, the ′′Chemical Facilities Act of 2008′′, and H.R. 5577, the ′′Chemical Facility Anti-Terrorism Act of 

2008′′. I am an assistant professor at Morgan State University’s School of Community Health and Policy in Baltimore, Maryland. Prior to my current position, I was 

a political appointee and the labor representative on the U.S. Chemical Safety and 

Hazard Investigation Board (CSB), a board patterned after the National Transportation and Safety Board (NTSB) to conduct chemical accidents at fixed facilities. Before my board appointment, I worked for almost 10 years with the United Auto 

Workers (UAW) Health and Safety Department in Detroit, Michigan, conducting inplant health and safety investigations and evaluating industrial hygiene data at facilities represented by the UAW in locations throughout the United States. 

I am here today on behalf of labor to urge you to support this chemical plant security legislation and also to highlight areas in the bill that need additional language 

to further protect workers and the broader community. As a member of the CSB, 

I had an opportunity to tour several chemical facilities and communities where 

chemical accidents occurred around the country. In the course of conducting our investigations, and reviewing and submitting our investigation reports, I was made 

keenly aware of just how vulnerable many of our facilities were to a terrorist attack, 

and how workers and communities surrounding these facilities were also not aware 

of how vulnerable they were if a major chemical disaster occurred. Enacting legislation that comprehensively covers chemical facility security and provides for collaboration between EPA and DHS will assist in providing the necessary protections for 

millions of workers and communities now living in the shadow of preventable disasters. 

Chemical plant vulnerability and plant security are very important issues for 

labor. If there is a terrorist attack on a chemical facility, workers at the facility will 

be the most vulnerable and the first ones to suffer the most adverse consequences. 

In any chemical facility security bill that is passed by Congress, the following areas 

should be addressed and emphasized: 

1.Reduce the consequences of an attack through the use of more secure technologies and less hazardous chemicals. 

2.Involve workers and/or their representatives in all aspects of the plant’s chemical security program, including conducting plant vulnerability assessments and developing plant security and emergency response plans. 

3.Allow states to set more protective security standards. 

4.Protect workers against the misuse of background checks and the information 

collected, and allow adequate redress. 

5.Ensure whistleblower protections against retaliation. 

6.Provide employees with adequate and comprehensive training. 

Congress should consider any legislation that will replace dangerous chemicals 

with more secure alternatives. Substituting more secure alternatives for hazardous 

substances, where technically and economically feasible and comparable risks are 

not shifted, is the best way to protect workers, their families, and their communities. By switching to more secure technologies, the facilities are no longer potential terrorist targets. 

Workers and their representatives should be involved in all aspects of their facility’s chemical security program. Hourly workers and their representatives know the 

workplace and its vulnerabilities best. The inclusion of workers in assessing their 

facility’s vulnerabilities and developing a response plan should be required. 

Federal legislation should not pre-empt successful state laws. Any chemical plant 

security legislation adopted by the states should be just as effective as the federal 

87 

law; but it should not be pre-empted if the state regulations are stronger and more 

protective. 

If background checks of employees are necessary, an adequate redress process 

must be available to employees, in case of faulty information, limited access to background check information and disqualifying criteria related to terrorist activity (For 

example, a prior conviction for a non-violent drug offense committed outside of the 

workplace should not be considered relevant to a terrorism background check). 

Once a chemical plant security plan is adopted and implemented, employers 

should be required to provide mandatory employee training; and the training should 

be conducted annually. 

Ms. SOLIS. Thank you very much. With that then, that concludes 

our panel presentations, and we will just go right into questioning 

here. I wanted to ask Mr. P.J. Crowley if you support the State’s 

ability to have stricter laws to safeguard the security of chemical 

facilities to protect communities. 

Mr. CROWLEY. I do, and I think Congresswoman Capps, I believe, 

said it right this morning. The real question is whether the issue 

of preemption establishes a floor or a ceiling. I think it should be 

a floor, and particularly in a State like New Jersey which has as 

significant a chemical challenge as any State in the union, they 

will know best how—that there may be some things that apply in 

a situation like New Jersey which may not apply in a situation like 

Iowa. 

Yeah, and as some of your members have said, there are some 

agricultural interests that exist in some of the rural States and 

probably would not necessarily rise to the security level as a State 

like New Jersey. So yes, I think that you should have a combination. The Federal Government should establish minimum standards, but then, State to State there may be other things that can 

be done. 

Ms. SOLIS. Could I ask the same question of each of the panelists 

and a yes or no? So, Mr. Coffey, what is your opinion on this? 

Mr. COFFEY. Similar to many of the Safe Drinking Water Act 

provisions, the States do have the ability to regulate more stringently. We believe that there are some benefits for that. There are 

also complications. 

Ms. SOLIS. OK, but you are in general supportive. And, Mr. Durbin? 

Mr. DURBIN. In general, Madam Chairwoman. We believe that 

States should not be going further than the Federal standards. And 

as we have seen the precedent for aviation security and nuclear security, rail security, that you really do need to have a clear Federal 

preemption. 

I would say, however, and add that in some ways there is a bit 

of a false argument here. I don’t think it is an either/or, a floor or 

a ceiling. There is no question that States and localities have an 

important role to play, and we have to find that balance. This has 

to be a partnership across—— 

Ms. SOLIS. And, Dr. Taylor, you concur? 

Ms. TAYLOR. Yes, ma’am. 

Ms. SOLIS. OK, Mr. Coffey, I wanted to ask you when were the 

drinking water utilities first informed of the regulatory gap that 

was described to us earlier by the EPA, Mr. Grumbles, this morning? 

88 

Mr. COFFEY. Thank you. The WaterISAC, which is the Water Information and Sharing Analysis Center, is the water sector’s main 

operational arm of learning about security threats. If EPA believed 

that there was a regulatory gap regards to drinking water security, 

their specific concerns could have been forwarded to the 

WaterISAC membership. 

EPA informed the water sector about a regulatory gap yesterday 

afternoon, as part of a conference call of the Water Sector Coordinating Council. We believe that the WaterISAC has an effective 

partnership with EPA, and we would hope to work together on security as much as possible. 

Ms. SOLIS. Do you think that is adequate? You were just—I 

mean that is surprising to me that you were notified so late. 

Mr. COFFEY. We have a very close working relationship with 

EPA, and we would expect moving forward that information would 

be shared with WaterISAC in as timely manner as possible. 

Ms. SOLIS. Right, and do you also receive any other notifications 

for meetings on other regulatory gap instances or circumstances 

that may have come up in the past? Was there any other notification given to you? 

Mr. COFFEY. I am not aware of any, but I will research that and 

be able to answer more fully. 

Ms. SOLIS. OK, also I wanted to ask Mr. Marty Durbin, according 

to your testimony, all the site security plans we talked about will 

not be submitted to the Department of Homeland Security until the 

end of 2009, but you want Congress to wait until the program is 

fully implemented before making any substantive changes. Are you 

really advocating that Congress wait 3 months after the program 

expires in October 2009? 

Mr. DURBIN. No, ma’am, and I should clarify that. Again the regulatory program is in place now. It is in progress. We expect to 

have the highest risk-tier facilities with their vulnerability assessments and plans in by the end of this year if I understand their 

timetable correctly. 

My only point again it is not that the Congress shouldn’t be looking at changes that are necessary or again as we discussed what 

other facilities might be in here. Our simple point is that we think 

there is—the program is fundamentally strong. The risk-based program, the performance-based standards, and it obviously has taken 

a lot of effort to get it to where it is today. Frankly, it has been 

a very accelerated regulatory process if you judge it against others 

that have been out there. 

So more, even waiting until the end of this year to see what 

comes through the first set of plans—— 

Ms. SOLIS. OK, I understand what you are saying, but I am a 

little concerned because it seems a bit contradictory that we are 

not getting the appropriate information to the facilities, and those 

individuals that are providing safety and protection for even our 

water. I mean so I have some concerns, and I know members of the 

panel do too. 

Dr. Taylor, if I could just ask you very quickly. Can you please 

just be specific about why workers should be involved in vulnerability assessments? We have heard earlier from some of our members here that that seemed to be somewhat—it could be a burden 

89 

if workers were somehow having to know about all security plans, 

vulnerability assessments. Can you please just give me an idea? 

Ms. TAYLOR. Well, I am talking largely about similar to when I 

worked with the United Auto Workers in the health and safety department and joint health and safety committees. Both management and workers are involved in conducting health and safety investigations at facilities, and this would be very similar in the case 

of conducting plant vulnerability assessments. 

Many of the workers do know more about the facilities than some 

of the persons who would come around as the employer looking at 

the sites. So working together to determine the vulnerability, getting a complete assessment is very important. 

Ms. SOLIS. But it wouldn’t be—how can I say—a burden, an overburden to be able to—— 

Ms. TAYLOR. No, it would not be—— 

Ms. SOLIS [continuing]. Provide that information to employees? 

Ms. TAYLOR. No, it would not. 

Ms. SOLIS. OK, very good. My time is up. I will turn to the ranking member, Mr. Shadegg, from Arizona. 

Mr. SHADEGG. Thank you, Madam Chairman, and let me begin 

by apologizing for my absence earlier. We thought there was another member that was going to cover and had agreed to cover and 

didn’t show. So I apologize for not having—and I apologize to the 

witnesses for not having been able to be here for your testimony. 

Mr. Coffey, I would like to begin with you and take a look at this 

issue of liquefied chlorine. There has been an argument made that 

by changing to just-in-time delivery of liquefied chlorine over the 

railway system that that would in fact make plants such as yours 

safer. And yet I think, as I understand it, you disagree or your 

company disagrees with that and uses a different policy. Am I correct on that? 

Mr. COFFEY. Yes, sir, that is correct, and let me explain. In 

Southern California, there is approximately 100,000 tons of chlorine brought into the region each year. Of that, Metropolitan Water 

District uses approximately 9,000 tons. In southern California, virtually all chlorine enters as liquefied chlorine gas on the rails. If 

we switch to delivered bleach, the chlorine gas inventory would 

simply shift from our facility to another facility, which would then 

remanufacture the liquefied chlorine gas as bleach. 

And importantly, bleach strength decays over time, and as such, 

the rail shipments of chlorine and the manufacturing of the bleach 

need to be in close proximity to the end-user. 

I also testified that approximately 70 bleach trailers would be required to replace one chlorine gas trailer. So there are potentially 

balancing risks which we would have to consider. Furthermore, 

there are problems with just-in-time delivery and manufacture of 

chlorine. During Hurricane Katrina, we saw significant nationwide 

disruptions of the polymer supply to drinking water plants. We 

kept 2 weeks of supply of polymer at our plant, and though we 

were able to compensate for its supply outage, we had to significantly ration its use. 

We frankly think it would be infeasible if not irresponsible for us 

to keep only minimum supplies of these critical chemicals on hand 

90 

at our facilities. And that is why liquefied chlorine gas at this current time remains the best option for Metropolitan Water District. 

Mr. SHADEGG. I appreciate that information. Mr. Durbin, there 

has been a lot of discussion here today about local standards, State 

and local standards and whether or not States should be able to 

set a standard stricter or more stringent than Federal standards. 

There was some testimony by DHS this morning indicating that 

they were concerned about standards being set at the State and 

local level more stringent than the Federal level. 

Do you believe that there is any risk that a State would set a 

standard that might impinge upon the ability of the Federal Government to ensure at least the security of facilities? And can you 

give me an example of that? And if so, is the way to resolve that 

by saying more stringent that but not in a matter which would 

hinder security requirements established by the Federal Government or other similar language? 

Mr. DURBIN. Well, again I do think that is kind of the essence 

of the argument here is making sure that we don’t have regulations 

being set at the State or local level that are going to either impinge 

or conflict with the framework set by the Federal Government. 

Again we are talking about Homeland Security. We are talking 

about national, coordinated programs for security just as we have 

with aviation and nuclear and what have you that I have mentioned. 

So again I think what is important is that we strike the balance. 

We make sure that we understand the important role that the 

State and local government has to play in the overall Homeland 

Security, but we do believe that you clearly have to have a clear 

sense of the Federal Government is going to set the standard, and 

anything the State can do, it can supplement, it can complement, 

it can go further in some ways but if it’s going to be in direct conflict with the Federal regulation or somehow keep us from being 

able to meet the regulation at the Federal level, that is where we 

have got to be careful not going that direction. 

Mr. SHADEGG. I guess the issue in my mind derives from national security because I voted for the creation of the Department 

of Homeland Security. I view it as a matter of national security, 

and I am a States rights guy. But I do think that the Federal Government has the first obligation for national security. And so while 

I am happy to defer to States, I would be interested in preserving 

national security concerns. 

Now, Dr. Taylor, I think your point is well taken that all employees should have the ability to participate in safety teams and making recommendations. They often know best what could be done in 

a safer manner. I don’t know if this is what Chairwoman Solis was 

referring to, but there was a statement this morning about H.R. 

5577 having contained language which said that they must have 

security inspections with every single employee present. And I am 

not certain if the bill says that, but I think the practical question 

was that is not a reality. They should be consulted. You probably 

can’t get them all there at any single point in time. 

Ms. TAYLOR. And I agree to that. And I actually looked back at 

the language, and I didn’t understand the question from this morning. 

91 

Mr. SHADEGG. I am not sure that the language—— 

Ms. TAYLOR. I didn’t see that that was there. 

Mr. SHADEGG [continuing]. Correct myself. So thank you very 

much. 

Ms. SOLIS. OK, very good. OK, next we will recognize the gentleman from Texas, Mr. Gene Green. 

Mr. GREEN. Thank you, Madam Chair. Ms. Taylor, I will follow 

up with you. On the previous chemical safety hazard board, did you 

have the opportunity to visit any of the plants in the Houston area? 

Ms. TAYLOR. I did not, but I was there for one of our reports that 

we released afterwards, yes. 

Mr. GREEN. OK, in your opinion, does the Homeland Security bill 

adequately involve the employees of chemical facilities and the development of risk assessment and site security plans? 

Ms. TAYLOR. Well, it says that you can have an employee or employee representative as appropriate. And I think the problem with 

the language is as appropriate—— 

Mr. GREEN. As appropriate. 

Ms. TAYLOR [continuing]. And making that decision the employer’s decision versus having in the language that an employee or 

employee representative be involved in the—— 

Mr. GREEN. I know when I organized plants, in fact all of my refineries are actually now steel workers, they have—there is a cooperative effort in a joint management labor agreement. And I would 

probably think most of the chemical facilities—and I will ask Mr. 

Durbin in a minute—but I have no problem with that—— 

Ms. TAYLOR. Yes. 

Mr. GREEN. You know, because I think that is something that 

should be in the final drafting of the legislation that will come out 

of this committee. Mr. Durbin, is that something that is pretty 

standard in the chemical industry where they have a collective bargaining agreement or not? 

Mr. DURBIN. Well, to my understanding it is. I mean I think the 

position our members have taken is that our employees are the 

first line of defense. And absolutely, we want to make sure the 

right people are involved at the beginning in the vulnerability assessment. And as was discussed also, you certainly have to make 

sure that the employees on site are appropriately trained and are 

well informed on the security plan that is in place. 

Mr. GREEN. OK, in your testimony you indicate that the American Chemistry Council members take inherent safer approaches 

into account when analyzing chemical security risks. Is that the 

formal policy or direction within the chemistry council, or is it a 

reflection of individuals plants or—— 

Mr. DURBIN. No, it is a requirement. It is part of the Responsible 

Care security code, which is a mandatory program for all of our 

members. It covers environmental health safety and now security. 

It was already in the underlying process safety code of Responsible 

Care. We included it and made clear that it was part of the security code as well. So as you implement security enhancements commensurate with risks, you are supposed to take into account inherently safer approaches, engineering, and administrative controls, 

and other security and preventive measures as well. 

92 

Mr. GREEN. Well, I have been involved in the port of Houston, 

and we have—most of our chemical plants actually have port access. So they come under the maritime safety and security act, and 

we have worked through that on a partnership over the last year. 

In fact, tomorrow, I am going to get my twick card so I don’t have 

to be escorted whenever I want to go to a dock at the port of Houston since 60 percent of our dock space is actually privately owned 

and mostly petro chemical. 

And I have been pleased with what has happened. Your testimony that your association did not seek an exemption of any of 

your facilities from the more recent chemical security program. My 

concern is we may have answering to two bosses. And they are 

both Federal, and if we added State, we will get to that in a second. But I want to make sure there is no conflict between what has 

already been done in the Maritime Security, Safety and Security 

Act, and both what has been done with EPA and Homeland Security. 

Mr. DURBIN. I will tell you. The biggest concern for our member 

companies—again, some of our facilities are covered by the Maritime Transportation Security Act. Others are now covered by 

CFATS and obviously whatever comes on beyond that. Our plea, if 

you will, is that if we are going to take MTSA facilities and have 

them now covered under CFATS, let us just make sure we remove 

them from the MTSA so we don’t have two bosses. 

Again, we are more than happy—our member companies are 

more than happy to say if there is more we need to be doing, we 

will do it. But let us make sure we don’t have two bosses. 

Mr. GREEN. OK, and I guess that is my concern is that because 

frankly the water side is the issue. And some many of our plants, 

both refineries and chemical plants, have access to the water and 

the Coast Guard responsibility, and that is how we come under. 

And we have been 3 years into that now, and I wouldn’t want to 

lose the success we have had with it. 

Should there be an exemption if you are under a choice of one 

or the other? Should a company that, for example, some of my 

chemicals plants are on the channel. Should they be able to pick 

which one they want, or should we give priority to the maritime 

safety? 

Mr. DURBIN. Well, again just speaking for our member companies, they believe that if—again we all would assume that we were 

going to all be in the chemical facility antiterrorism standards. And 

some are under MTSA. The feedback I have gotten from the members is that they are happy with MTSA, but if it turns out they are 

going to have to now comply with or do more, comply more with 

CFATS, let us just make it very clear that they are no longer under 

MTSA. 

So I don’t have a clear answer for you as far as, should they be 

allowed to choose one or the other. But I just want to make sure 

it is consistent. 

Mr. GREEN. And this is for all our panelists. Having watched 

what has happened in the port of Houston between the government, our local government, we have a government-managed port. 

We don’t lease out our port except we lease out dock space, but it 

is actually managed by a subdivision of our county government and 

93 

watch the success between the Federal agencies and the local agencies, I would be a little concerned to add something over it because 

I see what is happening in the hardening of the landside as well 

as the waterside. So that is my concern. 

Mr. Crowley—and, Madam Chairman, I think I am over time. So 

but I appreciate it, and if you want to do a second round, I just 

have a couple more questions. 

Ms. SOLIS. We do have votes coming up, and I really want to 

thank the panelists for being here and being so patient with us 

with our schedule being what it is today. But all members will 

have an opportunity to submit further questions to the panelists so 

that we can get those responses back, and I just want to thank everyone for coming. And I just remind members again they can submit any questions to the committee clerk by electronic form within 

the next 10 days, and the clerk will notify your offices of those procedures. 

So just lastly before we do close, I just want to draw your attention to an incident that occurred in California. There was a theft 

of chlorine tanks, and this was something that actually created a 

lot of concern amongst members of Congress, so much so that a letter was generated by Mr. Markey, Benny Thompson, Jim Langovin, 

myself, to Mr. Michael Chertoff to ask him how did this happen 

and if we could get any more information regarding it. 

Obviously these are safety issues of great concern to our community, and oftentimes people will call their member of Congress 

when they hear about something so important and critical to the 

safety of our community. These are things that obviously we know 

we need to do a better job at regulating. So I just want to thank 

the panelists for your input, your concerns, and we will continue 

this discussion. 

So with that, I move—yes, gentleman from Texas. 

Mr. GREEN. Because of the some of the processes we have are inherently dangerous, just a comment. A mother of eight lost her life 

yesterday on a plant in our district, and I talked with the family 

this morning. And even the job safety issues are very serious, and 

so it is something that we take very serious, those of us who, I 

know, represent it because we do hear from those folks in our community. And those of us who live and work around it still are impacted. So thank you. 

Ms. SOLIS. OK, very good. So with that, this panel is concluded, 

and without objection, we are officially adjourned. Thank you very 

much. 

[Whereupon, at 2:00 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

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STATEMENT OF HON. JOHN D. DINGELL

Today’s hearing before the Subcommittee on Environment and Hazardous Materials on legislation to enhance the security of our Nation’s chemical facilities seeks 

to address a serious and significant matter relating to the health and safety of our 

communities. The Committee on Energy and Commerce has broad experience, expertise, and jurisdiction in matters dealing with security of chemicals and chemical 

plants and the dangerous consequences that could result from a release of chemicals 

such as chlorine or ammonia. Other chemicals like ammonium nitrate and nitric 

acid, which can be used in making explosives, also present serious security risks 

and warrant special attention. 

Almost 10 years ago, this Committee required the Attorney General to review and 

evaluate the state of chemical facility security, including the security of transportation of regulated substances. Unfortunately, the Attorney General failed to complete the final evaluation and report that was due in June 2002. 

Following the September 11, 2001, attack on the World Trade Center and the 

Pentagon, the Committee on Energy and Commerce authored a set of amendments 

to the Safe Drinking Water Act to address security issues at community drinking 

water systems. These amendments required approximately 8,400 community water 

systems to prepare vulnerability assessments and emergency response plans. The 

Environmental Protection Agency (EPA) has unique expertise with water security 

as the President has recognized in making the agency the lead Federal agency for 

protecting critical infrastructure relating to water security. I see no reason to 

change this assignment of responsibilities. 

With respect to security at chemical facilities, however, the Administration, in the 

five years after the attacks of 9/11, failed to submit legislative proposals to the Congress. Efforts by EPA to use authorities of the Clean Air Act to address security 

at chemical facilities were derailed within the Administration. 

The Department of Homeland Security’s current legislative authority comes from 

a provision inserted in the 2006 Department of Homeland Security Appropriations 

Act (PL 109-295). Because the House leadership at the time followed an irregular 

and unwise process of circumventing the jurisdictional Committees of the Congress, 

the expertise and experience of many Members of this Subcommittee and the full 

Committee on Energy and Commerce were lost. 

The current authority of the Department of Homeland Security, however, sunsets 

in October 2009, so further action by Congress will be necessary. I ask that all 

Members of the Subcommittee closely scrutinize the program being implemented by 

the Department of Homeland Security and diligently work to fashion effective and 

protective chemical security legislation. 

I thank the gentle lady from California for chairing this important hearing. 

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STATEMENT OF HON. JOHN SULLIVAN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF OKLAHOMA

Mr. Chairman, 

Thank you for holding this legislative hearing to consider two bills, H.R. 5577, the 

Chemical Facility Anti-Terrorism Act of 2008 and H.R. 5533, the Chemical Facilities 

Security Act of 2008. 

I am pleased that you called this hearing because the House Energy and Commerce Committee has clear and exclusive jurisdiction over the Safe Drinking Water 

Act, the Clean Air Act and chemical regulation in general. It is important that this 

committee assert its primary jurisdiction on these issues. 

As a strong advocate for federal chemical security regulations in the wake of 9/ 

11, I know the Department of Homeland Security is applying a risk-based approach 

toward prioritizing chemical facilities in order to help thwart an attack, and lower 

the attractiveness of these sites and essential products as potential terror targets. 

However, I have concerns that H.R. 5577 and H.R. 5533 will allow state or local 

chemical security laws to obstruct or supersede federal chemical security laws. It 

is critical to have uniform, national chemical security standards to avoid a patchwork of potentially conflicting requirements. This may lead to a competitive disadvantage to companies on a state-by-state basis and lead to uneven security efforts. It is important to know that robustly regulated sectors like aviation, nuclear, 

and hazardous material transportation have strict federal pre-emption regimes in 

place. 

I look forward to the testimony by our witnesses today and I yield back the balance of my time. 

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144 

ROBERT B. STEPHAN, RESPONSES TO SUBMITTED QUESTIONS FROM

MR. DINGELL

Question: Please explain why the commonly used fertilizer ammonium nitrate, which was used in the 1995 Oklahoma City terrorist bombing, is regulated under the Chemical Facility Anti-Terrorism Standards (CFATS) at a 

chemical plant, but the same standards do not apply when stored in bulk 

quantities on a farm. What standards, if any, are in place to prevent the 

theft of bulk quantities ammonium nitrate from farms? 

Answer: Barring certain Congressional exemptions for water and wastewater 

treatment facilities, facilities regulated under the Maritime Transportation Security 

Act, facilities regulated by the Nuclear Regulatory Commission, or facilities owned 

or operated by the Department of Defense or Department of Energy, a facility is regulated under the Chemical Facility Anti-Terrorism Standards (CFATS) if it is determined to be high-risk. That determination is generally based on the possession of 

any chemical of interest, including ammonium nitrate (AN), at or above the applicable screening threshold quantity (STQ) specified in Appendix A to CFATS, regardless of what type of facility it is. Accordingly, a farm that is initially determined 

to be high-risk based on its possession of significant quantities of fertilizer-grade AN 

in excess of the applicable threshold quantity (2,000 lbs) would be regulated under 

CFATS. 

In December 2007, however, the Department of Homeland Security (DHS) provided an indefinite extension of the CFATS requirements for agricultural production 

facilities such as farms, to submit the specific information (i.e., Top-Screens) that 

DHS typically uses to initially determine whether a facility is high-risk. That extension is intended to give DHS enough time to gather additional information and conduct research to determine whether or not farms should continue to be covered 

under CFATS in the same manner as other facilities. There are a variety of reasons 

why careful consideration is being given to the inclusion of agricultural production 

facilities in the CFATS program. 

As stated in the preamble to Appendix A, ′′DHS believes that terrorists are interested in maximizing death and injuries from an attack and are, therefore, less interested in attacking facilities in rural areas or other areas with low population densities.′′ 72 Fed. Reg. 65407 (Nov. 20, 2007). Accordingly, farms, which are predominantly located in rural areas or other areas with low population densities, are generally less likely to be targeted by terrorists and, thus, may pose lower risks than 

chemical manufacturers, storage facilities, or distributors of AN. Thus, the STQs 

and STQ counting rules for AN and certain other agricultural chemicals of interest 

were intended to limit the applicability of the Top-Screen requirement to farms. 

Subsequently, however, DHS learned that the Top-Screen requirement could apply 

to many more farms and other agricultural facilities than originally intended. 

Additionally, in December 2007, Congress passed Section 563 of the Consolidated 

Appropriations Act of 2008, the Secure Handling of Ammonium Nitrate Act, Pub. 

L. 110-161 (Section 563), which authorizes and requires the Department to regulate 

the sale and transfer of AN. Among other things, Section 563 requires DHS to promulgate regulations for the registration of AN facilities and purchasers, many of 

which also are or would be covered by the CFATS Top-Screen reporting requirement 

for possession of AN as a chemical of interest. See 72 Fed. Reg. 65407, 65410 (Nov. 

20, 2007). Because Section 563 and the activities required under that mandate will 

likely cover many farmers and other agricultural production facilities that use or 

possess AN, DHS is reviewing its approach to regulating facilities possessing AN 

under the CFATS regulatory regime to avoid unnecessary duplication or inconsistency. On October 29, the Department issued an Advance Notice of Proposed Rulemaking (ANPRM) to inform the process of writing the AN regulation. The public 

comment period for the ANPRM closed on December 29, 2008. 

Question: Please explain why chemicals like potassium nitrate and sodium nitrate, are on the CFATS Appendix A list of chemicals of concern 

while calcium ammonium nitrate, which is an explosive chemical that has 

reportedly been used by the Irish Republican Army to make bombs, is not 

on the list. 

Answer: Potassium nitrate (KN), sodium nitrate (SN), and ammonium nitrate 

(AN) all are on the Department of Homeland Security’s (DHS’s) list of Chemicals 

of Interest in Appendix A to the Chemical Facility Anti-Terrorism Standards regulations because of their potential and historical use as improvised explosive device 

(IED) precursor chemicals. Although AN has a longer and more extensive history 

of such use than KN and SN, both KN and SN are of such a chemical composition 

as to constitute a reasonably effective filler for an explosive device (see 72 Fed. Reg. 

145 

65408 [Nov. 20, 2007], as demonstrated by the fact that they are the primary components of various grades of gunpowder and pyrotechnics. 

Calcium ammonium nitrate (CAN) contains material (calcium) that would not contribute to an explosive reaction. While CAN can be employed in the construction of 

an IED, it is generally believed that the explosive impact of an IED made with CAN 

is relatively less than that of comparable IEDs made with KN, SN or AN and, thus, 

that CAN typically is less attractive to terrorists than those other nitrates, especially given the widespread availability of AN, KN, and SN. Although CAN is not 

currently listed in Appendix A, DHS has the authority to amend Appendix A in the 

future to include CAN, or any other chemical, in Appendix A if circumstances and 

available information warrant. 

Question: How many facilities owned by Federal agencies have been designated for each of the four tiers? 

Answer: The Department has not yet made final tiering designations, so it is not 

possible to provide a definitive number per tier at this time. Preliminary tiering designations, as well as the number of facilities preliminarily tiered, are subject to 

change. The final numbers will be available in the future, and we will be happy to 

provide them at that time. In addition, pursuant to the authorizing legislation (section 550 of the 2007 DHS Appropriations Act) and the implementation regulation 

(6 CFR 27.110(b)), the rule does not apply to facilities ′′owned or operated by the 

Department of Defense or the Department of Energy.′′ 

Question: Does the Department of Homeland Security (DHS) support the 

application of CFATS for covered chemicals at all Federal facilities? If not, 

please explain why not. 

Answer: The Department supports the application of the Chemical Facility AntiTerrorism Standards at all federally owned facilities that are determined to be highrisk and are not expressly exempted by the legislation, such as DoD and DOE facilities. Simply because a facility is owned by the Federal Government does not necessarily mean that the security risks associated with the facility’s possession of certain chemicals attractive to terrorists have been adequately addressed. The Department is considering working through the Interagency Security Committee to conduct 

a preliminary assessment of holdings of chemicals of interest at Federal facilities 

to better inform next steps in this area. 

Question: What specific criteria would the DHS use to determine whether 

there is a direct conflict between the Federal law and regulations and 

those issued by a state with respect to security at chemical facilities? 

Answer: As explained in the preamble to the Chemical Facility Anti-Terrorism 

Standards (CFATS) interim final rule of April 9, 2007, CFATS is not intended to 

preempt existing State health, safety, and environmental regulations (see 72 Fed. 

Reg. 17727, Nov. 20, 2007). Future State or local security laws or regulations may 

be preempted, however, if they conflict with CFATS, as described in §27.405(a) of 

the CFATS regulations. That section lays out well-established, general standards for 

′′conflict preemption,′′ consistent with Federal case law (i.e., a State law would be 

preempted if it ′′conflicts with, hinders, poses an obstacle to or frustrates the purposes of [CFATS] or any approval, disapproval or order issued there under.′′ This 

provision is consistent with Section 534 of the Omnibus Appropriations Act for FY 

2008, which amended the statutory authority for CFATS (Section 550 of the Department of Homeland Security [DHS] Appropriations Act of 2007) to allow any State 

to adopt more stringent security requirements for chemical facilities ′′unless there 

is an actual conflict between Section 550 and the law of that state.′′ 

Determining whether or not a direct conflict exists which warrants preemption of 

a specific State law or regulation under those standards, however, requires analysis 

of the future, factual context in which those State laws or regulations would be applied (see 72 Fed. Reg. 17727, Nov. 20, 2007). Thus, without any factual context it 

is premature for DHS to speculate on what specific criteria DHS would use to determine whether a direct conflict would exist between CFATS and some future, specific 

State law or regulation. If such a potential conflict actually arises in the future, 

CFATS §27.405 provides a process for States and chemical facilities to solicit the 

Department’s opinion on preemption in a concrete, particularized setting. Of course, 

whether a conflict actually exists and preemption occurs is a legal matter that the 

appropriate courts may decide, and any opinion offered by DHS under §27.405 

would be based on relevant case law. 

Question: The DHS expected to receive 50,000 Top Screens, but received 

approximately 32,000. Are there thousands of facilities that should have 

submitted Top Screens but failed to do so? If so, how many compliance actions has DHS taken against these facilities that failed to submit Top 

Screens? 

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Answer: The Department believes that, for a variety of reasons, there are facilities 

that should have completed a Top-Screen and have not yet done so. Although at this 

time the Department does not have a firm estimate of how many facilities fall within this category, it believes that many are smaller facilities, such as batch operators, 

distributors and retailers, and single-chemical operations. The Department further 

believes there are several potential reasons why facilities may not have completed 

a Top-Screen, including: •Lack of awareness of the Chemical Facility Anti-Terrorism Standards (CFATS) 

regulatory program; •Misunderstanding of the CFATS rules and exemptions; 

•Internal corporate lack of communication; and 

•Willful disregard of CFATS. 

The Department is mounting a multi-track effort by working with other Federal 

agencies, States and territories to identify facilities that it believes should have submitted a Top-Screen but have yet to do so, and will begin contacting such facilities 

in the near future. Although no compliance actions have been taken to date, the Department intends to pursue such actions for those facilities that continue to willfully 

disregard their CFATS obligations after being contacted by the Department regarding their failure to submit a Top-Screen. 

Question: As of November 1, 2008, how many site security plans for (a) 

Tier I facilities and (b) Tier II facilities have been approved by DHS? 

Answer: The Chemical Facility Anti-Terrorism Standards do not require any facility to submit a Site Security Plan (SSP) for approval until after the facility has been 

finally determined to be high-risk based on the Department’s review of the facility’s 

Security Vulnerability Assessment (SVA). As of November 1, 2008, the Department 

had received SVAs from 169 facilities preliminarily determined to be Tier 1 facilities 

and 541 SVAs from facilities preliminarily determined to be Tier 2 facilities. To 

date, DHS has received SVAs from all facilities preliminarily determined to be Tier 

1 and has issued a new due date to preliminary Tier 2 facilities that missed the 

original submission deadline. Those SVAs already submitted are currently being reviewed, and the Department intends to issue final tiering letters for Tier 1 facilities 

in January 2009 and Tier 2 facilities in March 2009. Facilities will have 120 days 

from the date of those letters to complete and submit to the Department their SSPs. 

Question: As of November 1, 2008, how many facilities have been inspected to ensure compliance with their site security plans? 

Answer: As explained above, the Department will begin notifying facilities of their 

final placement within risk tiers and due dates for Site Security Plans beginning 

in January 2009. Thus, inspections to determine compliance with such plans have 

not yet occurred. The Department expects to begin inspections of covered facilities 

beginning on or about September 2009. 

Question: In a January 2006 report, the General Accountability Office 

(GAO), recognizing the expertise of the Environmental Protection Agency 

(EPA) in studying chemical risks, issued a report recommending that the 

Secretary of DHS jointly study with EPA whether chemical facilities’ efforts to reduce vulnerabilities would benefit from the use of technologies 

that substitute safer chemicals and processes, referred to as ′′inherently 

safer technologies′′. Has DHS completed the study recommended by GAO? 

If not, please explain why not. 

Answer: The Department’s Science & Technology Directorate’s Chemical Security 

Analysis Center is currently working closely with the Environmental Protection 

Agency, other Federal departments and agencies, and the chemical industry on this 

study as a result of recommendations from both the Government Accountability Office and the National Academy of Sciences. The next step in the study is an expert 

panel roundtable discussion scheduled for January 15, 2009, in Houston, Texas, 

which your staff is welcome to attend. The study is expected to be completed in the 

summer of 2009. 

Question: If a tanker truck of chlorine or anhydrous ammonia visits a 

natural gas well site or an electric generating site for the purpose of cleaning the facility or servicing the well site, does the site become a chemical 

facility that is subject to CFATS? Does the duration of the time period with 

respect to how long the tank trucker is on site make a difference in whether the site is considered a chemical facility for purpose of CFATS? Does it 

make a difference whether the mobile tanker truck is parked inside the 

fence line of the facility or outside the fence line of the facility in a determination that a facility is subject to the CFATS’ regulations? 

Answer: Whether or not a facility is subject to the CFATS depends on a variety 

of factors. Generally, there is no minimum time requirement that a chemical of interest must be on-site before a facility possessing the chemical must count that 

147 

chemical in determining whether or not to complete a Top-Screen. As stated in the 

preamble to Appendix A, the Department of Homeland Security has not established 

a ′′holding-time′′ threshold for chemicals. If terrorists have a reason to know that 

an attractive chemical is present at a facility, the duration of its presence is largely 

irrelevant. As a result, a facility must submit and complete a Top-Screen if it possesses chemicals of interest in a quantity that at any time meets the Screening 

Threshold Quantity (see 72 Fed. Reg. 65418, Nov. 20, 2007). 

As to making a determination regarding the chemical of interest contained in the 

subject parked tanker truck based on its location, whether it is parked just inside 

or outside of the fence line of the facility is not determinative in this case. As stated 

in the preamble to the CFATS Interim Final Rule, facility assets include any items 

or structures (such as buildings, vehicles, laboratories, or test facilities) located on 

an area owned, operated, or used by the facility. Such assets may exist inside or 

outside of perimeter structures (see 72 Fed. Reg. 17699, April 9, 2007). 

Question: Please describe the security regulations, if any, which apply to 

tanker trucks of regulated chemicals such as chlorine and anhydrous ammonia? 

Answer: Tanker trucks containing chemicals of interest (COI) under CFATS may 

be subject to various security requirements depending on whether they are located 

at a chemical facility regulated under CFATS, as well as other circumstances. For 

example, if the tanker truck is used to store COI at a CFATS-covered facility or 

used to move COI within a CFATS-covered facility, the Department expects that the 

truck’s security will be addressed as part of the facility’s overall Site Security Plan. 

Although there are no prescriptive requirements regarding tanker truck security 

at a covered facility, many of the risk-based performance standards (RBPSs) that 

covered facilities’ Site Security Plans must satisfy may involve measures addressing 

tanker trucks entering and leaving the facility with chemicals of interest and other 

hazardous materials. For example, measures to comply with RBPS 5 (Shipping, Receipt, and Storage) may include vehicle identification and entry authorization; measures related to RBPS 3 (Screen and Control Access) may include screening and inspections of tanker trucks upon ingress and egress; measures to comply with RBPS 

6 (Theft and Diversion) and RBPS 7 (Sabotage) may include the employment of tamper-evident devices on vehicle valves and other appurtenances; and measures related to RBPS 12 (Personnel Surety) may include the conduct of background checks 

on truck drivers who have unescorted access to restricted areas of a facility. 

Question: In response to a question about how you would define the word ′′chemical′′, your response indicated that DHS has the ability to define what a ′′chemical of interest′′ is. Since H.R. 5577 has not defined the word ′′chemical′′ or the phrase ′′chemical of interest,′′ what guidance does the 

Secretary use in determination of that definition? 

Answer: ′′Chemical of interest′′ (COI) is defined in 6 CFR §27.105 as ′′a chemical 

listed in Appendix A to part 27 [CFATS].′′ The COI list in Appendix A is used to 

help the Department initially identify facilities that potentially present high levels 

of security risk, since chemical facilities possessing threshold quantities of these 

chemicals are typically more likely than facilities possessing none of these chemicals 

to present ′′a high risk of significant adverse consequences for human life or health, 

national security and/or critical economic assets if subjected to terrorist attack, compromise, infiltration, or exploration′′ (6 CFR §27.105). As explained in detail in the 

preamble to the final Appendix A rulemaking, the COI list was developed using a 

variety of sources, such as lists of hazardous substances regulated by the Environmental Protection Agency, chemical weapons and their precursors regulated under 

the Chemical Weapons Convention, and explosives precursors identified by the Federal Bureau of Investigation. See, e.g., 72 Fed. Reg. 65396-65408 (Nov. 20, 2007). 

Question: On September 30, 2004, this Subcommittee had a hearing on assessing our nation’s drinking water security. As I understand it, DHS never 

even returned phone calls concerning its interest in participating in this 

hearing. Why do you now have this sudden conversion to suggest that 

things are so bad? 

Answer: Although we cannot speculate on the subject of phone calls made in 2004, 

we can confidently state that our position regarding the exemptions from CFATS 

provided by Congress for water and wastewater treatment facilities is not a sudden 

conversion. It has been the position of the Department since the inception of CFATS 

that these exemptions represent a security gap. 

Question: Can you guarantee that CFATS will be fully implemented for 

all tiers before its required sunset under Section 550? When does DHS expect that CFATS will be fully implemented for all tiers? 

Answer: The Department of Homeland Security cannot guarantee that the Chemical Facility Anti-Terrorism Standards will be fully implemented for all tiers before 

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the sunset date delineated under Section 550. Security vulnerability assessments for 

facilities in all four tiers are due prior to the end of calendar year 2008, and Tier 

1 facilities will begin developing site security plans in early 2009. Facilities will 

have 120 days from notification of their final tiering determination to complete and 

submit their site security plans. 

Question: If you are able to fully implement CFATS for all of its tiers before the sunset date, will you have time to learn anything meaningful about 

the program’s strengths and weaknesses by that sunset date? 

Answer: Over the past two years, the Department of Homeland Security has 

learned much about the strengths and weaknesses of various aspects of Section 550 

and CFATS, and is doing its best to incorporate these lessons while continuing to 

implement CFATS. An example is the extension of the Top-Screen filing requirement granted to agricultural production facilities. We have also worked extensively 

with representatives of various affected industries to assist their facilities in complying with CFATS. For example, DHS recently afforded gasoline storage facilities 

the opportunity to correct technical errors we observed in their Top-Screen submissions. 

Question: I have heard that DHS has been trying to accumulate information on drinking water facilities. Since your Department is struggling to 

get the CFATS regulations implemented before the program expires, why 

are you siphoning resources away from these mandatory efforts to play in 

an area where you are not the lead? Can this kind of distracted discipline 

be expected if you handled drinking water facilities? 

Answer: Pursuant to its role in leading the coordinated effort to enhance the protection of the critical infrastructure and key resources of the United States as articulated in Homeland Security Presidential Directive 7 (HSPD-7), the Department 

of Homeland Security in coordination with the Environmental Protection Agency 

has been assisting the Water Sector with developing three risk and/or vulnerability 

assessment tools for the sector that are to be used by various facilities based upon 

the population size served. The resources to develop these tools do not come from 

appropriations for CFATS implementation, as they support part of the voluntary 

sector partnership framework established under the National Infrastructure Protection Plan and the Water Sector’s Sector Specific Plan. 

DHS and the Environmental Protection Agency have taken the position that 

water and wastewater treatment facilities, as exempted from CFATS, do represent 

a security gap, stating in testimony on June 12, 2008, before the House Committee 

on Energy and Commerce, Subcommittee on Environment and Hazardous Materials: 

The Department of Homeland Security and the Environmental Protection Agency 

believe that there is an important gap in the framework for regulating the security 

of chemicals in the United States. The authority for regulating the chemical industry purposefully excludes from its coverage water and wastewater treatment facilities. We need to work with the Congress to close this gap in the chemical security 

authorities in order to secure chemicals of interest at these facilities and protect the 

communities they serve. Water and wastewater treatment facilities that are determined to be high-risk due to the presence of chemicals of interest should be regulated for security in a manner that is consistent with the CFATS risk and performance-based framework while also recognizing the unique public health and environmental requirements and responsibilities of such facilities. The Department of 

Homeland Security and the Environmental Protection Agency look forward to working with the committees to address this issue. 

Should the statutory exemption be repealed or otherwise eliminated, DHS believes that it would likely find that many drinking water facilities hold chemicals 

of interest at or above screening threshold quantities under CFATS. Each of these 

facilities would be required under CFATS to submit a Top-Screen to begin the process of determining whether it is considered to be high-risk. Water and wastewater 

treatment facilities ultimately regulated under CFATS as high-risk facilities would 

then likely represent a subset of all such facilities (as is the case with other industry sectors’ facilities under CFATS). 

Question: How often has DHS had to rely on EPA for or used the information it has gathered under Title I11 of the Superfund Amendments and Reauthorization Act for emergency planning and response activities? Do you 

find this information useful? 

Answer: A range of antecedent work done by the Environmental Protection Agency (EPA) has been used by the Department of Homeland Security (DHS) for several 

aspects of the CFATS regulation, including, but not limited to: 

•Employing the Risk Management Plan calculation (RMP Calc) tool as part of the 

Top-Screen process; 

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•Adopting many of the Superfund Amendments and Reauthorization Act (SARA) 

III chemicals, mixture rules, concentrations, and threshold quantities as ′′Chemicals 

of Interest,′′ especially in the release hazard area; and 

•Adopting many other EPA definitions and phraseology throughout the CFATS 

rule so as to avoid the need to re-define certain terms already commonly understood 

by the regulated community. 

It should be pointed out that DHS also adopted a good deal of language from regulations, rules, and guidance issued by other agencies, including, but not limited to, 

the Department of Transportation, Department of Energy, Department of Commerce, and Drug Enforcement Administration. 

Question: H.R. 5577 requires DHS to inspect site security plans for 

′′release mitigation′′ efforts. Isn’t this activity something that EPA does -as 

in the instances with Hurricane Katrina-as opposed to DHS? 

Answer: As part of the existing CFATS regulation, the Department of Homeland 

Security will evaluate elements of a covered (high-risk) facility’s security plan that 

involve preventing, containing, mitigating, and recovering from an intentional release of a toxic, flammable, or explosive material. DHS’ requirements in this area 

would be premised on intentional releases of chemicals of interest. The Environmental Protection Agency’s efforts focus on different mandates: accidental release 

mitigation and mitigation at environmentally significant facilities. EPA’s efforts are 

undertaken pursuant to its environment and safety-focused authorities, resources, 

and expertise. It is important to note that there is a critically important difference 

between security and safety. Security and safety are related and overlap in certain 

areas, but they are not the same concept. Should a release occur, DHS and EPA 

coordinate and apply their respective expertise to release mitigation. 

Question: EPA already has emergency authority provided to it to help respond to a public health crises posed by a compromised drinking water facility, including the provision of alternate sources of drinking water. Since 

you do not have this authority and H.R. 5577 does not give it to you, why 

should Congress dilute EPA’s response in favor of a less holistic response 

by DHS? 

Answer: Prior to and since the enactment of CFATS, the Environmental Protection Agency (EPA) has and continues to have regulatory authority under various 

statutes over safety and security (SDWA, Sections 1433-1435) at drinking water facilities, as well as a lead role in emergency responses to releases and other incidents 

at chemical and other types of regulated facilities. Nevertheless, Congress gave the 

Department authority to regulate security at high-risk chemical facilities, which includes facilities within a number of sectors and sub-sectors designated under HSPD7 and the National Infrastructure Protection Plan, for example, Water, Chemical, 

and Educational Facilities.. The enactment of CFATS did not dilute EPA’s responsibilities regarding chemical facilities, but rather gave the Federal Government a 

more comprehensive role in ensuring adequate response and security levels at those 

facilities. In fact, the CFATS regulations expressly provide that the rules are not 

intended to displace or hinder any requirements administered by EPA and other 

Federal agencies. See 6 CFR a 27.405(a)(1); 72 Fed. Reg. 17718-17719. 

Question: While some advocate special language for IST, it seems those 

types of issues are examined by a facility when appropriate under the current vulnerability assessment/site safety plan format. Doesn’t that seem to 

be the best approach? 

Answer: The Department of Homeland Security’s authority to regulate security at 

high-risk chemical facilities is specifically non-prescriptive - that is, DHS cannot approve or reject a covered facility’s Site Security Plan (SSP) based on the presence 

or absence of any specific security measure. See 6 CFR a 27.245(a)(2). Rather, facilities have the opportunity and flexibility to use a wide variety of measures in their 

SSPs to satisfy CFATS’ risk-based performance standards. Of course, as your question suggests, facilities may choose to consider appropriate Inherently Safer Technology (IST) solutions when developing measures to reduce security risks and comply with CFATS. Two important considerations in this area are whether the measure is economically viable for a particular facility (and the assumption is that a facility will make that decision for itself), and whether the measure really does reduce 

risk or would merely transfer the risk elsewhere. DHS is aware that some facilities 

are considering or have already adopted IST measures that appear to be appropriate 

for the facility in reducing risk (note that such measures are not required by 

CFATS), as well as measures which would not significantly reduce security risk or 

would transfer risk elsewhere. 

Question: Do you think non-convicted drug addicts or alcoholics should 

be allowed to continue working in high-risk facilities? 

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Answer: The Department does not believe it is within its purview to comment on 

the employment matters of private corporations; however, all high-risk chemical facilities will be required to implement a comprehensive personnel surety program 

pursuant to the Risk-Based Performance Standard 12 of the Chemical Facility AntiTerrorism Standards. Such a program will include, at a minimum, measures to conduct background checks on all employees, contractors, and unescorted visitors with 

access to critical or restricted areas at a facility. 

Question: Does DHS have enough personnel to process the entirety of the 

paperwork that H.R. 5577 will require? 

Answer: Whether or not the Department will have sufficient personnel to handle 

the paperwork required if H.R. 5577 is enacted depends on both the structure of 

the regulations and the level of funding provided by Congress to the Department 

to implement the regulations. As both of these details are currently unknown, it is 

not possible to definitively answer this question at this time. 

Question: The legal authorities that created the entire CFATS program in 

2006 - section 550, were introduced as H.R. 6348 in the 109th Congress. A 

very similar bill, H.R. 5533, was introduced in the 110th Congress. In each 

case, the House Parliamentarian gave exclusive jurisdiction over this legislation to one House committee. Could you please tell me which one House 

committee was awarded jurisdiction by the Parliamentarian over these 

bills which created the entire statutory authority for the CFATS program? 

Answer: The statutory authority that authorized and directed the Department to 

promulgate regulations to establish the Chemical Facility Anti-Terrorism Standards 

program is Section 550 of the Homeland Security Appropriations Act of 2007 (Pub. 

Law 109-295). This legislation was originally introduced in the House of Representatives as H.R. 5441 and was referred to the House Committee on Appropriations. 

Section 550 was included during discussions between House and Senate conferees. 

H.R. 6348 and H.R. 5533 were both introduced by Members of the House Energy 

and Commerce Committee. The former was introduced by Rep. Joe Barton, Ranking 

Member of the House Energy and Commerce Committee, while the latter was introduced by former Rep. Albert Wynn, the previous Chairman of the Energy and Commerce Committee’s Environment and Hazardous Materials Subcommittee. Rep. 

Wynn has since left the House of Representatives. Both H.R. 6348 and H.R. 5533 

were referred to the House Energy and Commerce Committee. 

The authority to determine bill referral rests solely with the legislative branch. 

BRAD COFFEY, RESPONSES TO QUESTIONS SUBMITTED BY MR. 

DINGELL

1.Many supporters of inherently safer technologies - renamed under H.R. 

5577 as ′′Methods to Reduce the Consequence of a Terrorist Attack′′ - claim 

that their opponents are only concerned about not having to spend money 

to make upgrades. If the federal government pledged to cover every cent 

of the cost for water systems to adopt an IST conversion mandated by the 

federal government, would you support including an IST mandate in the 

bill? 

There are many reasons beyond cost that influence an individual water system’s 

ability to adopt alternate water treatment and disinfection methods. For some water 

systems, it is simply impossible to adopt a different treatment method without incurring new and unacceptable public health risks or security vulnerability shifts. No 

amount of federal funding can change this fact. 

Because of the complexity of factors, water treatment methods are best chosen by 

experts familiar with their source water characteristics and facility security issues. 

This local choice must be maintained to protect public health and facility security. 

For some water systems, the decision of whether or not to switch has less to do with 

cost than feasibility and the shifting of risk, as Metropolitan’s (MWD’s) experience 

demonstrates (e.g., 70 tanker truck deliveries of bleach per week would replace one 

liquefied chlorine gas railcar at our largest treatment plant; virtually all bulk chlorine would continue to be shipped to Southern California by rail, etc.). 

Additionally, the U.S. Conference of Mayors, in a June 2008 resolution stated that 

broadly forcing water utilities to adopt inherently safer technologies would ′′place 

an extreme regulatory burden on city-run water utilities, including the potential for 

contradictory regulatory directives from EPA regarding drinking water safety and 

public health and the Department of Homeland Security regarding chemical safety.′′ 

We would support a voluntary grant program with federal funds available to utilities that conduct IST feasibility assessments and decide that an alternate substance 

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best meets their security and water disinfection needs. We cannot support legislation that eliminates local choice and imposes mandated treatment changes on utilities, even if the government promises to cover all financial costs. 

2.In its present form, H.R. 5577 would not allow DHS to force a water system (or any chemical facility) to adopt IST unless DHS determines that the 

IST methods ′′can feasibly be incorporated into the operation of the 

facility′′ and ′′would not significantly impair the ability of the facility to 

continue operating.′′ Do these provisions allay any of your concerns about 

infeasible mandates? 

H.R. 5577 does not address how DHS, EPA, or any other federal entity would gain 

the depth of knowledge and expertise necessary determine whether certain IST approaches are feasible at each and every drinking water utility in the United States. 

A careful consideration of the source water, local climate, earthquake or hurricane 

risk, available land, and other factors unique to each drinking water plant must be 

considered as part of a risk/reward evaluation to determine the feasibility of changing drinking water treatment chemicals. It is unclear how the federal government 

would be able to accurately make these determinations for each drinking water 

plant in the United States, and trusting the government to make these choices without complete knowledge of these factors may lead to new public health threats. 

As an example, the EPA does not mandate specific water treatment technologies 

to control drinking water contaminants of primary health concern. Instead, the EPA 

specifies a ′′best available technology′′(BAT) which the agency believes to represent 

a technology, treatment technique, or other means feasible for purposes of meeting 

the maximum contaminant level. In deference to specific source water qualities, utility expertise, or other factors, the EPA does not require the utility to install the 

BAT, but allows the local utility to choose the most robust, cost-effective method to 

control the risk. 

A more sensible and analogous approach to IST is to establish site security standards and then trust the judgment of local water utility professionals to choose between established security upgrades or water treatment process changes. Experience has shown that some will determine that alternative processes such as on-site 

bleach production are feasible and work to implement it, like Long Beach (California) Water Department. Others, like MWD, will determine that it is not feasible 

but still implement necessary security upgrades. Making this determination on a 

case-by-case basis, at the local level, will best ensure the security of all treatment 

chemicals and public health at water facilities across the country, and be most effective at reducing overall risk. 

3.The Center for American Progress claims that all water systems should 

be able to end their use of chlorine gas for a cost of ′′no more than $1.50 

per person served each year.′′ Is Metropolitan’s choice to continue its use 

of chlorine gas at some plants simply a matter of cost, or are there other 

factors that must be taken into account? 

There are several considerations beyond cost that contributed to MWD’s ultimate 

decision against completely eliminating the use of chlorine gas at all of our treatment plants. In all honesty, the decision would be much easier to make if cost was 

the only factor to be considered. 

In MWD’s case, important feasibility concerns beyond cost, such as increased risk 

associated with truck transport of chemicals, absence of space at treatment facilities 

on which to store necessary quantities of bleach, saline discharges in excess of existing limits into regional basins, supply chain concerns, and the creation of new byproducts such as hydrogen gas, chlorate, bromate, and perchlorate all exceeded cost 

as critical factors influencing our decision. And while we were able to estimate that 

the capital cost to switch from our current process of securing and containing liquefied chlorine would exceed $150 million, this number does not reflect these other 

concerns that, in our opinion, do not make conversion a worthwhile tradeoff and 

raises other concerns that would have to be addressed. 

Nevertheless, MWD understands the fact that other drinking water utilities, such 

as Long Beach and the utilities listed in the Center for American Progress report 

may have their own unique circumstances that make the conversion away from 

chlorine gas feasible. We, too, have increased our security by reducing the number 

of facilities storing chlorine gas from 17 to 6. We would just ask Congress to recognize that some utilities, such as MWD, must consider other factors that may result 

in gaseous chlorine remaining the best treatment method. In fact, the careful evaluations that have been completed by so many water systems actually demonstrate 

that local utility managers can be trusted to choose the best water treatment method, and will not hesitate to adopt alternatives to gaseous chlorine when it delivers 

a real security and public health enhancement. 

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4.The Congressional Budget Office, in its cost estimate of H.R. 5577, as approved by the Homeland Security Committee, could not determine the 

exact costs on locally owned chemical facilities because of the uncertainty 

of future IST requirements, stated ′′based on information from DHS and 

representatives of public entities,′′ that ′′additional costs for public entities 

would not be significant.′′ 

Is it your opinion that it is accurate for CBO to broadly determine that the financial impact of IST mandates on water systems across the country would be insignificant in each and every case? Or, is it possible that the actual conversion costs may 

be insignificant for some utilities, significant for others, and irrelevant for other utilities because of unique, local factors that may make IST conversions infeasible? 

Again, it is important to stress that cost is not the top consideration for MWD 

and many other water systems when evaluating potential treatment alternatives. 

However, MWD agrees that it is impossible to accurately estimate the true financial 

impact of an IST mandate on the country’s water systems, because H.R. 5577 as 

written places virtually no limits on the extent of federal power to interfere with 

local drinking water treatment decisions. 

For example, under H.R. 5577 as it currently stands, DHS could declare every 

drinking water treatment in the United States to be a ′′high-risk chemical facility,′′ 

and force a review of methods to reduce one aspect of risk. DHS could then unilaterally find all of these conversions to be ′′feasible,′′ and require all drinking water systems to begin adopting new treatment methods, regardless of other factors. Under 

this scenario, the total costs would exceed $150 million for MWD alone, while at the 

same time bringing about new public health risks for which utilities would have to 

try to compensate. 

In reality, the feasibility and cost of adopting alternate treatment technologies 

will vary greatly from utility to utility and facility to facility. For this reason, MWD 

and AMWA believe it is best to trust local water utility experts with these important technical decisions. 

5.I am very concerned about protection of sensitive information. Title IV 

of the Public Health Security and Bioterrorism Preparedness and Response 

Act has quite stringent requirements on the sharing of vulnerability information. Is your utility or AMWA satisfied with this regime and have you 

had any problems as a result of this regime? 

At MWD, our vulnerability assessment is currently locked up and any approved 

employee, officer, or Director must sign it in and out-and not make any copies-when 

reviewing the document. The current law and MWD’s procedures have been very 

successful at preventing the public release of this critical information over the past 

six years. We can live with this kind of protection and find it prudent to keep it 

in place. We have not experienced any significant difficulties or problems as a result 

of the information protection requirements of the 2002 law. 

6.Clearly, you think the Safe Drinking Water Act provisions get it right 

on these information protection issues. Why do you think it is not advisable 

to weaken this kind of protection regime? 

The United States has vast experience in protecting national security information 

based on how much damage would result if it fell into the wrong hands, so there 

are protocols for protecting confidential, secret, and top secret material. If any material is exposed, there are often ways to retrieve it, or change something about it, 

or otherwise return it to a protected environment. 

Unfortunately, as stewards of critical infrastructure, MWD does not have this luxury. Our infrastructure cannot be relocated or concealed if sensitive information 

about it is compromised. Moreover, if any sensitive information about our infrastructure made its way to the Internet, we have the problem of having this information 

exposed indefinitely. 

Our emergency response plans also contain enough information to educate an adversary about where we have the least redundancy, and are therefore weakest. Additionally, these plans contain personal and confidential contact information for our 

managers, crews, and sources of mutual aid. Employees give us this information 

with the expectation that we will honor their privacy, and we must honor this commitment. 

Another challenge MWD faces is that any given detail of our process is probably 

difficult to characterize as sensitive by itself. But once combined with other information, the details give a knowledgeable adversary what it takes to infer 

vulnerabilities. This kind of exposure, in effect, gives away a blueprint or roadmap 

about how to sabotage the infrastructure that supports an important region and a 

regional economy. Under the circumstances, without reasonable information protection we would always be trying to squeeze toothpaste back into the tube. It never 

really works completely. 

153 

7.In the interest of ensuring a fresh understanding of a drinking water 

utility’s vulnerabilities, would you support a renewal of just the Title IV requirements concerning vulnerability assessments and emergency response 

plans for drinking water protection? 

In 2003 MWD and other large drinking water utilities complied with the Bioterrorism Act’s requirement to complete a vulnerability assessment. We then used this 

assessment to guide $20 million of security upgrade -out of our own pocket-and to 

prioritize where to start implementing access controls and surveillance cameras. As 

a result, we now have made security planning an integral part of our capital improvement process, and every facility expansion or modification. We no longer need 

a vulnerability assessment to inspire or trigger this process. 

While we believe that the 2002 law has delivered value, there is a point of diminishing returns in requiring completely new vulnerability assessments for their own 

sake. A more reasonable approach would be to: 

•Ask utilities to periodically review their most recent vulnerability assessment; 

and, 

•Update it as needed, or perhaps at least once every five years. 

In addition, the federal government should offer funding assistance to public utilities that have independently determined that they can adopt an alternate water 

treatment technology, but are prevented from doing so only because of fiscal constraints. This policy would maintain the important concept of local choice of water 

treatment method, but also promote the use of alternate substances where doing so 

is feasible. 

P.J. CROWLEY, RESPONSES TO SUBMITTED QUESTIONS

QUESTIONS SUBMITTED BY HON. JOHN D. DINGELL

In your prepared testimony, you state that ′′given the uncertain budget 

picture that many cities and states are facing, the federal government must 

be prepared to provide substantial funds to support this legislation. We 

therefore recommend that any federal funding for conversion to safer and 

more secure chemicals and processes be dedicated to publicly owned treatment facilities. Please specify the amount of funding that must be provided 

annually for each of the next five fiscal years to support your position with 

respect to H.R. 5577. 

•As I am sure you are hearing from governors, mayors and city managers across 

the country, the fiscal crisis will make it very difficult for communities faced with 

difficult choices involving education, healthcare and other basic services to locate 

discretionary funds to convert, for example, water facilities to more secure alternatives. At the same time, our analysis at the Center for American Progress is that 

many of these conversions can be done for $1 million per facility or less. Frequently, 

conversions from chlorine gas to other forms of disinfection are combined with other 

capital expenditures or process changes. 

•H.R. 5577 authorizes $225 million over three years. S. 2855 in 2006 envisioned 

$125 million over five years. I think this is a good starting point. The final amount 

depends to some extent on the terms, particularly whether there is a matching 

grant requirement. Certainly this type of infrastructure investment would offer a 

meaningful return, safer and more secure communities across the country. 

Do you believe that the Department of Homeland Security (DHS) has sufficient personnel in terms of numbers and expertise to effectively implement and oversee the current Chemical Facility Anti-Terrorism Standards 

(CFATS) program? 

•DHS is doing an effective job of implementing CFATS. It developed draft standards, listened to public and private concerns during the rule-making process, adapted reasonably well to address those concerns and worked through the Top Screen 

evaluation process. It is now determining prospective tiers for those facilities that 

pose higher levels of risk and will be reviewing security plans in the coming months. 

•It has been authorized roughly 223 chemical security inspectors and is in the 

process of hiring and training additional staff to be able to conduct initial compliance inspections. Since CFATS as it currently exists involves primarily physical security measures - gates, guards, lighting, standoff distances and so forth - I believe 

that DHS personnel have the requisite expertise. The size of the staff depends on 

the number of facilities regulated and the frequency of site visits. Those determinations are still being made. I do have concerns that, if several thousand chemical facilities are subject to CFATS, the anticipated size of the chemical security staff will 

154 

only allow annual site visits to a percentage of facilities being regulated. I would 

like to see sufficient staff to enable one or more annual site visits to all facilities 

being regulated. •If new legislation is passed by Congress along the lines of H.R. 5577, it will increase both the number of facilities involved and the scope of federal regulation. If 

water facilities are subject to CFATS - which I support - DHS inspectors on balance 

do not have sufficient expertise, which is why in my testimony I suggested an approach through which DHS and EPA collaborate closely, taking advantage of the expertise of each to ensure that CFATS standards are uniformly implemented across 

the different elements of the chemical/water sectors. 

What additional full-time equivalents and what additional expertise will 

DHS need to implement the provisions of H.R. 5577? •I do not envision that DHS would be solely responsible for implementation of 

H.R. 5577. This must be an interagency effort that combines the resources of the 

Department of Homeland Security, Environmental Protection Agency, other federal 

agencies as appropriate and state and local authorities, particularly if certain provisions of H.R. 5577 become law. For example, I believe strongly in the framework 

advanced in H.R. 5577 that would require chemical facilities to evaluate more secure alternative operations and processes that would reduce risk to our society. If 

this applies to water facilities - and I believe it should - there will need to be technical personnel involved in that discussion. What can and should be done that is 

both safe and secure. So, the first potential benefit of H.R. 5577 is expanding who 

is involved in the process so that facility by facility and community by community 

and state by state we can reduce our vulnerability to terrorism and other dangers. •Assuming that several thousand facilities are subject to CFATS regulation, I 

would suggest that a cadre of at least 500 chemical security inspectors would be 

warranted. This will require an FTE increase for both the Department of Homeland 

Security and Environmental Protection Agency. 

QUESTIONS SUBMITTED BY HON. JOE BARTON

Mr. Crowley, you mentioned constructive work underway at the Federal 

level on chemical security. Does that include both CFATS and the Environmental Protection Agency’s work under the Safe Drinking Water Act? •Yes, but what we need to do now is to take what has been done in a stove-piped 

fashion and build an integrated security system for the long-term. The Safe Water 

Drinking Act forced community water systems to look at security in a different way 

in light of 9/11. It required some assessments and planning, but little in the way 

of concrete action. Some took decisive steps, others did not. CFATS provides binding 

security standards for facilities that are judged to be high risk, but that does not 

include drinking water facilities. We should look at chemical security in terms of 

a supply chain. Everyone linked to a supply chain should be subject to consistent 

standards. That is not the case today. If there are consistent standards from one 

end of the supply chain to another, it will facilitate effective collaboration and better 

solutions across governments and different industrial sectors. 

If CFATS is ′′constructive work′′, do you see value in giving it a chance 

to get up and fully running - i.e. ′′field testing′′ before we jump to another 

regime? •I do not see H.R. 5577 as ′′another regime′′ as much as renewing and building 

upon the work that has been done over the past two year and that continues today. 

You are quite right that the first phase of CFATS will not be done - in terms of 

rulemaking, assessment, tiering, security planning and certification for another year 

or more. But revised rulemaking on a follow-on CFATS would coincide with the end 

of this process, which provides plenty of opportunity to incorporate lessons learned 

into CFATS II. To me, the greater danger is losing momentum if CFATS expires. 

Do you agree that EPA is better suited to understanding safe drinking 

water practices and safety standards than DHS? •The issue really is not EPA vs. DHS, but how to leverage the expertise that DHS 

has regarding critical infrastructure protection, the experience it has gained through 

implementation of the CFATS process and integrate that with the technical knowledge and established relationship that EPA has with drinking water facilities across 

the country. That is why, in my testimony, I called for a collaborative relationship 

between DHS and EPA. I believe that this can be achieved through planning, coordination and relationship-building that has already been accomplished at the federal level. If Congress passes H.R. 5577, DHS and EPA will be able to determine 

how to make it work effectively. 

What mistakes has EPA made in carrying out its security duties for safe 

drinking water since 2002? Please be specific. 

155 

•The Safe Water Drinking Act required community water systems above a certain 

size to conduct a vulnerability assessment, submit a copy to EPA, develop an emergency response plan and certify to EPA that such a plan had been completed. It is 

unclear to me that EPA has done much more than collect the assessments and certifications. 

Could you please shed some light on your organization? You mentioned 

that it is comprised of labor, environmental, and public interest organizations. Which ones? Please name them and explain how much each contributes to your organization’s budget. If you don’t know the exact figures, provide an estimate and supply accurate details for the record. 

•The views I expressed in June represented a consensus within a coalition of organizations that are interested in the issue of chemical security. The Center for American Progress is not a member of this coalition. I was asked by committee staff to 

present my best security judgment on behalf of this group. It is an ad hoc alliance 

of independent groups. Regarding the coalition, there is no formal structure, budget 

or fundraising. 

You recognize the ′′mature′′ relationship EPA has with drinking water facilities. Why, in the interest of national security, would you not want the 

agency with the most experts and established framework overseeing these 

strategic assets? 

•EPA should play an integral role in chemical security. With respect to drinking 

water facilities, EPA does have the established relationship and the most experts. 

My desire is to leverage that. The Department of Homeland Security has overall responsibility for the National Infrastructure Protection Plan. Homeland Security 

Presidential Directive-7 identifies 18 critical infrastructure sectors and outlines 

shared responsibility between DHS and other federal agencies, including EPA. It establishes sector security councils that enable just the kind of collaborative relationship across the interagency that is needed. H.R. 5577 provides a much improved security standard that should be applied to chemical and drinking water facilities. 

H.R. 5577 exempts transportation of hazardous materials - otherwise regulated by the Department of Transportation - from CFATS. Do you see this 

exemption as creating a ′′gap′′ in the supply chain security? 

•H.R. 5577 suggests a ′′holistic approach′′ that involves securing ′′the supply chain 

of such chemicals.′′ I completely agree with this approach, which means focusing on 

chemical manufacturers, repackagers, users and transporters in a systemic way. A 

weakness of the existing CFATS framework is that chemical security stops at the 

fence line. There is a rail rule involving TIH chemicals, but it really involves protecting the status quo. 

•I think the Department of Homeland Security through its Infrastructure Protection Directorate must have sufficient authority to highlight a particular combination 

of circumstances as representing an unacceptable security risk - let’s say the transportation of HAZMAT through the District of Columbia in close proximity to the 

United States Capitol. This places a lethal weapon next to a 9/11 target. DHS 

should not dictate a solution, but by highlighting the danger, DHS and/or EPA (depending on the compound and its usage) should be able to help the chemical user 

or manufacturer evaluate chemical alternatives that would remove the HAZMAT 

from the rail system entirely. If that is not possible, then TSA working with DOT 

can look at rerouting alternatives that at least lessens the overall risk to the country. The key is not just focusing on physical plant security in isolation, as is now 

the case, but looking across the entire supply chain and including the transportation 

of HAZMAT as an important risk factor. 

•If H.R. 5577 does not enable this kind of dynamic to take place, then I agree 

there is a potential security gap. 

MARTY DURBIN, RESPONSES TO QUESTIONS FROM THE HOUSE

COMMITTEE ON ENERGY AND COMMERCE

Question 1 

New CFATS (Chemical Facility Anti-Terrorism Standards) security requirements were only finished by DHS in January of 2008, and both the 

government and communities have already spent time and training and 

physical investments in complying. Shouldn’t Congress wait until the legislation has gone into full affect and then revisit the issue to properly determine the success of the program and possible areas of improvement? 

ACC believes DHS has developed and is currently implementing a robust and 

comprehensive program that will drive security enhancements at high-risk chemical 

156 

facilities nationwide. Significant resources have already been committed by both the 

government and the industry to fulfill their obligations under this new program. 

Comprehensive changes to the program at this point would undermine the progress 

already being made and effectively halt implementation, as DHS would need to retool the regulatory requirements to meet new statutory obligations. Congress should 

provide DHS with the necessary resources to complete implementation while evaluating potential gaps and determining whether additional measures are needed. 

Question 2 

On page 5 of your testimony you mention that in addition to ACC, many 

non-ACC members have taken aggressive action to enhance security at 

their facilities through similar industry programs. While I understand you 

do not speak for anyone other than ACC, to the best of your knowledge, 

could confirm that other industry groups have programs that have resulted 

in significant efforts post 9-11? ACC members have already invested over $6 billion enhancing security at more 

than 2,000 facilities since 2001. Our Responsible Care Security Coder served as the 

platform to drive this performance and in fact, served as a model for the regulatory 

programs in the three states that currently have implemented mandatory security 

measures - New Jersey, New York and Maryland. A report on chemical security, 

issued by the GAO in March 2003 outlines steps taken by other trade associations 

to develop security programs as well to assist their members in upgrading security. 

While we can’t comment on the specifics of their programs, we are aware that in 

addition to ACC’s program, efforts to enhance security are being implemented in 

other parts of the chemical industry. 

Question 3 

Do you believe that states and local governments should be able to 

hinder, pose obstacles to, or frustrate the purpose of a national chemical 

security regime? If not, do you support language that explicitly says that 

in law? 

ACC believes that CFATS is a comprehensive Federal security program and it 

best provides consistency, predictability and uniformity throughout the regulated 

community. Congress set such a precedent in existing national security laws for 

aviation, nuclear, rail and port security, and we believe the security of critical chemical facilities should not be treated differently. 

We understand and acknowledge the critical role state and local governments play 

in providing comprehensive homeland security. It is counterproductive, however, to 

allow requirements at the state and local level to duplicate or conflict with the Federal requirements. 

Questions 4, 5, 6, 7, 9 

We have heard testimony urging the replacement of dangerous chemicals 

with less dangerous chemicals to reduce the appeal of certain facilities to 

terrorists. Are all chemicals, in all their applications and uses, easily replaced with something less dangerous? In other words, if a chemical facility replaces a chemical with a less dangerous chemical, does the market for 

the first just go away, or are we just shifting the point of supply to another 

neighborhood? 

Do safety and security sometimes conflict? For example, more fire escape exits 

would help a building’s safety, but doing so would allow more access points for 

criminals or terrorists to break into the facility. 

Isn’t it standard business operation for industry experts to thoroughly evaluate 

the hazards of all chemicals, and if possible and feasible, switch to more secure and 

safer alternatives? Why should we have government create bureaucracy for something the private sector already does? 

The most essential chemicals are needed for our public health, food and water 

supply, energy, and national defense. Wouldn’t the mandate for different processes 

put crucial chemicals at a risk of elimination and possibly affecting the nation’s 

health, energy, and national security? 

What would be the practical effects of permitting DHS to overrule chemical and 

manufacturing specialists’ manufacturing decisions? 

ACC member companies manufacture essential products critical to homeland security and everyday items that keep the economy moving. More than 96% of all 

manufactured goods are directly touched by the business of chemistry. Our members 

provide the chemistry that is used to produce life saving medications and medical 

devices, body armor used by our military and law enforcement officers, deicing fluids 

for airplanes, energy saving solar panels, and so much more. 

In addition, our members are critical to many aspects of American life, including 

keeping our drinking water safe, supporting agriculture, and spurring medical innovations to prevent and treat disease. This year marks the 100th anniversary of the 

157 

use of chlorine to treat drinking water - a step hailed as ′′the greatest public health 

achievement of 20th Century.′′ 

It is an oversimplification to suggest that facilities can regularly and easily replace essential chemicals with substitutes. A key component of risk management is 

to avoid shifting risk, or reducing one risk and increasing another. Safety and security experts at facilities must consider these factors when developing security plans. 

Implementation of ′′Inherently Safer Technology,′′ the term often applied to the action of replacing one chemical for another ′′safer′′ chemical, is actually much more 

complex than simply substituting one chemical for another. The actions chemical facilities take to enhance the inherent safety of their chemical processes involves 

minimization of hazardous chemicals; moderation of certain process conditions; simplification of certain conditions to reduce errors and where feasible, substitution. 

The chemical industry created this engineering science and has applied it to protect 

plant workers and their surrounding facilities for decades. 

Any notion that companies will automatically avoid making such changes should 

be dismissed. Our member companies have the greatest interest in the safety of 

their employees, their facilities, and the communities in which they operate. In fact, 

I’m proud to say ACC member companies achieved an employee safety record more 

than four times safer than the average of the U.S. manufacturing sector. Being innovative in our operations is not only good for safety and security, it’s good for business. While the government must ensure that facilities meet their regulatory obligations, no single security measure is the only right one and determining the right 

approach involves full consideration of potential risk tradeoffs and unintended consequences. ACC believes process safety experts at chemical facilities - working in 

conjunction with security experts - are in the best position to weigh all options and 

decide on the best approach that will maximize safety and security. 

As currently crafted, CFATS accomplishes this objective by establishing stringent 

performance metrics across 18 categories of activities (perimeter protection, cyber 

security, theft/diversion, personnel surety etc.), but leaving the specific measures on 

how best to achieve the standard to the individual facility. For example, protecting 

against theft and diversion of a chemical, a facility will have a range of options to 

secure the product that could include physical security (locked storage, inventory 

controls, restricted access, know your customer programs) or process changes (relocating the chemical to a more secure location, reducing usage and onsite storage, 

consolidating inventory to avoid multiple locations or smaller quantities etc.). The 

facility evaluates their vulnerabilities based upon the DHS methodology and then 

selects the approach that works best - and then the DHS inspectors confirm that 

the site has adequately secured the chemical of concern. 

Question 8 

Should all employees be aware of all aspects of a chemical security plan? 

Is it more beneficial to have a ′′tell all′′ to employees policy or to limit this 

sensitive information on a need-to-know basis? What role do you think collective bargaining, as opposed to federal mandate, should have in setting 

these policies? 

CFATS requires sophisticated employee training and drills programs designed to 

make every employee part of the security solution for a facility. Security awareness 

training, joint exercises with local law enforcement and emergency responders and 

a defined schedule for developing and implementing these programs on a regular 

basis is all required under CFATS. 

That said, employees that are well trained to spot and report suspicious behavior 

and know what to do in an emergency situation don’t need access to the details of 

the facility site security plan. Under CFATS, employees would be given detailed information that helps them complete their job and raise security awareness (i.e. 

workers will have standard operating procedures for executing their responsibilities), but the management and implementation of the totality of the plan, including 

more robust and sensitive security measures, would be limited to those security professionals with a need to know. ′′Need to know′′ is the appropriate standard to use 

when determining which employees have access to specific aspects of a security 

plan. 

Question 10 

What changes have your members made to improve security under 

CFATS? How much have they spent to upgrade and improve security? What 

will the effect be on security if new legislation requires changes before 

CFATS is fully implemented? 

ACC members are proud that their commitment to risk-based security enhancements under the Responsible Care Security Code (RCSC) are reflected in both state 

and federal chemical security efforts. Through RCSC, we prioritized the risk at over 

158 

2000 sites; assessed vulnerabilities using nationally recognized methodologies (Center for Chemical Process Safety, Sandia National Laboratory) and implemented security enhancements to reduce any identified vulnerabilities. We’ve invested over 

$6.2 billion dollars since 9/11 implementing these measures - which include physical 

security (gates, guards, monitoring systems, access cards/restrictions etc) cyber security management (at the facility and corporate wide level), supply chain security (inventory control, know your customer programs) and process changes that have combined to significantly enhance our security. As mentioned, the three state programs 

in place were modeled after the ACC Responsible Care Security Code, and the US 

Coast Guard’s Maritime Transportation Security Act officially recognizes the Security Code as meeting their regulatory requirements. 

Question 11 

How much do you anticipate it will cost to comply with H.R. 5577 before 

CFATS has been fully implemented? We recognize that while the more than $6 billion dollars invested on the Responsible Care Security Code provides ACC members with a significant head start towards meeting the Federal CFATS requirements, we’ll be investing more, as DHS 

estimates more than $8 billion will be spent to implement CFATS. Many of our 

members have already committed significant resources in the first year of implementation of this rule. 

Question 12 

What benefits do you see in the CFATS program implementing the 2006 

federal legislation that your industry could not accomplish with ACC’s Responsible Care Security Code? 

While we believe our program is the gold standard for security, the DHS program 

provides a comprehensive approach that makes all high risk facilities nationwide 

implement measures like those that our members have been implementing. An assortment of facilities, from major chemical manufacturers to chemical storage facilities/warehouses to university labs have been deemed high risk and required to implement security measures in accordance with CFATS. Ensuring that everyone posing high risk takes the appropriate security measures will reduce the risk of a successful terror attack against this critical infrastructure sector. Lastly, the DHS enforcement provisions of fines and facility shut-downs for non-compliance provide the 

public with a strong assurance that implementation of these security requirements 

is being taken seriously. 

Question 13 

Has the chemical industry’s support for, and compliance with, both the 

Responsible Care standards and CFATS been consistent? 

To date, we believe that meeting the two requirements has worked well. While 

CFATS is focused on facility security, and not all ACC member facilities are covered 

by CFATS, the Responsible Care Security Code requires action from all of our member sites and addresses supply chain/transportation security as well as facility security. Companies will continue to implement the Responsible Care program at all 

sites, regardless of the presence or absence of CFATS requirements. 

Question 14 

Has DHS shown sensitivity to economic pressures facing your industry 

from foreign competition and rising energy costs, on top of homeland security expenses? 

The structure of the CFATS program provides companies with the site specific capability to tailor security enhancements to meet local conditions. While controlling 

costs is necessary to succeed in a globally competitive industry, companies have already invested significant resources to meet CFATS. Business decisions to meet the 

CFATS requirements are being made right now to achieve regulatory compliance, 

so significant changes in CFATS that would require duplication of effort or revisiting decisions already made would certainly add costs. 

Question 15 

We worry about jobs in America, particularly in your sector. What do you 

see as the future prospect for U.S. jobs in your industry, taking into account energy costs, government regulatory compliance costs, and opportunities to locate offshore? To what extent do chemical security budgets play 

into decisions on growing, shrinking, or closing US chemical operations? 

The industry is facing an extremely tough near-term outlook as the recession continues. Along with many other uses, our products are essential to the housing and 

automotive markets, two areas of the economy receiving intense focus right now 

with severe declines in home values, housing starts, auto sales etc. This has a direct 

impact on chemical operations. ACC members are reporting significant slowdowns 

in sales and plants are being idled and workers being placed on furloughs or worse. 

Keeping costs controlled is more critical than ever. More now than ever, facility opVerDate Nov 24 2008 10:41 Mar 10, 2009 Jkt 037690 PO 00000 Frm 00164 Fmt 6633 Sfmt 6633 C:\DOCUMENTS AND SETTINGS\CWELLS1\110-127 SCOM1 PsN: JIMC
159 

erators need regulations that are sympathetic to the challenges they face when it 

comes to their operations. Our members have demonstrated that providing for the 

security of their facilities, products, and communities is a responsibility and a cost 

of doing business, but we believe CFATS is providing facility owners with appropriate flexibility to meet necessary security obligations. 

Question 16 

As lessons are learned in the chemical industry, do you see opportunities 

for cost control as a product of more efficient technologies and security designs, and better practices? 

Sharing best practices about chemical facility security does help manage costs. 

ACC developed the Responsible Care Security Code and thousands of pages of accompanying guidance almost 6 years ago. We shared this information with anyone 

that would use it in both industry and government with the express goal of raising 

the security bar at all chemical facilities. We stand by the program and the tools 

we developed to implement the program. As companies continue to evaluate their 

security posture and work to stay a step ahead of those that would harm us, these 

innovative tools are shared through best practices. 

Question 17 

How do chemical security programs in other countries, particularly out 

top chemical industry competitors, compare with the U.S CFATS program? 

To our knowledge, the United States is the only country to have implemented specific security regulations for chemical facilities. Chemicals management programs, 

environmental, health and safety programs are in place, or under development in 

many parts of the world and elements of these programs can contribute to security, 

though that isn’t always the primary regulatory driver. 

The ACC Responsible Care Security Code is unique to our country as well. Responsible Care’s award winning health, safety, environmental and product stewardship practices are now being implemented in over 50 nations, but none have adopted 

the Security Code. ACC members are proud of their efforts to secure their facilities 

here in the US. Recognizing the potential competitiveness challenges with companies that don’t take action, many ACC members are implementing security worldwide at their sites following the Responsible Care Security Code, even absent mandatory security programs. 

Question 18 

Does DHS share intelligence with appropriate security officials regarding 

overseas terrorist incidents to help them analyze their own vulnerability 

to such actions? 

DHS provides classified briefings, and other information sharing opportunities 

with facility security personnel with the emphasis on ensuring relevant intelligence 

is being shared with those who need to know to protect critical assets across all critical infrastructures. 

ANDREA KIDD TAYLOR, DRPH, MSPH, RESPONSES TO QUESTIONS

FROM HON. JOE BARTON

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1. In my previous position as a member of the US Chemical Safety and Hazard 

Investigation Board (CSB), many of the chemical accidents occurred at chemical facilities that are now identified by the Department of Homeland Security and the 

GAO as potential targets for terrorist attacks. In several investigative reports produced during and after my tenure on the CSB, inadequate training of employees in 

emergency response or lack of training have been cited as contributing causes of the 

chemical explosions and worker asphyxiations that occurred, many resulting in 

death or serious injuries of the workers involved. These chemical facilities include 

oil refineries and paper mills and all of the reports are available as public information on the CSB website, www.csb.gov. Georgia Pacific, Naheola Mill in Penington, 

Alabama (2 deaths, 8 injuries), Valero Energy Corporation Refinery in Delaware 

City, DE (2 deaths), and the Tosco Avon Refinery in Martinez, California (4 deaths, 

1 critical injury), are names of some of the chemical facilities where problems with 

worker training are identified. 

In a 2004 survey study of workers from the Paper, Allied-Industrial, Chemical 

and Energy Workers International Union (PACE), representing 125 chemical facilities (includes oil refineries, paper mills, chemical plants) around the country, 1/3 of 

the respondents reported that no employees at their sites received training about 

preventing or responding to a catastrophic events caused by a terrorist attack. Seventy-four percent (74%) of the respondents reported that additional worker training 

is needed at the majority of the sites.1

Additionally, a number of unions have asked their members about the site plans 

of the facilities where they work and they have often found significant deficiencies. 

In many cases, basic understanding of hazardous chemicals and limitations of protective equipment are lacking. Although some companies do an excellent job in providing employee training, to ensure uniform training for all facilities, particularly 

at high risk facilities, the training provisions need to be strengthened. 

2. Just as state OSHA regulations can be more protective than federal OSHA 

laws, stronger state laws should be permitted. We agree that state law should not 

hinder or be in ′′conflict′′ with federal standards. However, we do not believe that 

language should be put in the bill that would be an open invitation for reckless lawyers to block stronger state programs that meet the needs of the states that enact 

them to protect their citizens from terrorism. 

3. As a public health professional and in my work experience in occupational and 

environmental health, I always prefer the simplest and most direct method of protection. If highly hazardous technologies are replaced by safer ones, there will be 

nothing inside to be compromised and a costly investigation of numerous employees 

will be entirely unnecessary. Where such substitution is not feasible, limited background checks may be useful in some cases. The mandate of federal background 

checks should be limited in scope and narrowly tailored to meet very specific needs. 

Many chemical facilities currently perform adequate background checks with little 

need for additional federal mandates. 

4. This bill is about terrorist attacks on chemical facilities. It is not about employment law, which is the jurisdiction of another committee. There is no reason to believe that alcohol or drug users are more likely to be terrorists than non-users. They 

are less likely to be effective terrorists than non-users. To the extent that this bill 

addresses background checks, it should limit itself to those aspects of background 

checks that are relevant to terrorism. Additionally, drug convictions are currently 

taken seriously in evaluating current job applicants. Employers can well evaluate 

each situation; and there is no need for a federal mandate that would exclude individuals from employment. Current federal regulations in other industries that exclude people from employment for drug convictions is not the appropriate model. 

5. The suggestion that union representatives are a security risk is highly offensive, especially considering the number of union members who have served their 

country honorably, even to the point of making the ultimate sacrifice. As a former 

employee of the International Union’s UAW Health and Safety Department with expertise in industrial hygiene and occupational health and safety policy, local unions 

sometimes requested that I serve as the union representative on OSHA investigations and walk-arounds at their plants. If company managers, such as the corporate 

director of security or the corporate safety engineer who may have relevant expertise but who work offsite are given the authority to be involved in all aspects of the 

chemical security program at their corporation’s facility, then their union counterparts should not be excluded and should be given the same authority. This is considered a worker’s right to representation in the workplace. 

6.Based on my experiences, it is always and everywhere appropriate for at least 

one employee and one employee representative to be present during every part of 

the inspection and verification. In addition, it is clearly not the intent of the bill 

to create a right to pull so many employees off their assigned tasks simultaneously 

163 

as to hinder facility operations. Moreover, the inspector can’t do the job properly if 

the facility is not operating in a typical fashion. If the knowledge of a large number 

of different employees would make a valuable contribution to the inspection, employees could be pulled off their assigned tasks one or two at a time, until everyone 

who had valuable knowledge had the opportunity to contribute. No additional language is necessary to prevent abuse. 

7. Labor strongly believes that whistleblower protection is important to ensure the 

free exchange of information. Given the recent enactment of existing rules, I am not 

aware of an instance of abuse of CFATS whistleblowers; but it is too early to expect 

CFATS violations to be reported and discriminatory actions to be taken. Since this 

is not expected to be a common occurrence and since there is a need for similar protections in other areas, it is not expected that this will be a burdensome provision 

for CFATS facilities. 

8. To my knowledge, most CBAs are silent on chemical security; so this bill should 

have very little impact on existing CBAs. H.R. 5577 should have little conflict with 

CBA. Conflicts between current CFATS regulations and CBAs have been expressed 

as concerns; but 5577 largely resolves these potential problems. As a result of these 

provisions, it is possible that some future CBAs may specify how these rights are 

to be exercised, for example they may state, by job title, which employees and/or 

employee representatives have a right to accompany an inspection or participate in 

developing a vulnerability assessment or a security plan. They might even include 

the limits on the number of employees, something more appropriately done at the 

individual facility level, rather than by government taking a one size fits all approach. 

9. Given my experience and expertise in occupational and environmental health 

and safety and formerly working with the United Auto Workers Health and Safety 

Department for ten years, and also formerly representing labor’s perspective as a 

presidential appointee on the US Chemical Hazard and Safety and Investigation 

Board, I was asked to review and provide testimony on H.R. 5577. Occasionally, I 

work as an adjunct professor and teach an industrial hygiene course to students 

pursuing a bachelors’ degree at the George Meany Center’s National Labor College 

in Silver Spring, Maryland; and I am compensated for my time and services. I do 

not receive any additional compensation or grants from any organized labor organizations, nor, to my knowledge, does Morgan State University. 

1 Lippin T, McQuiston T, Bradley-Bull K, Burns-Johnson T, Cook L, Gill M, Howard D, Seymour T, Stephens D, and Williams B. Chemical Plants Remain Vulnerable to Terrorists: A Call to Action. Environmental Health Perspectives doi:10.1289/ 

ehp.8762 Online 27 April 2006. 

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