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H.R., THE CHEMICAL FACILTY ANTI-TERRORISM 

ACT OF 2008 

HEARING 

BEFORE THE

SUBCOMMITTEE ON TRANSPORTATION 

SECURITY AND INFRASTRUCTURE 

PROTECTION 

OF THE

COMMITTEE ON HOMELAND SECURITY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

DECEMBER 12, 2007 

Serial No. 110–89 

Printed for the use of the Committee on Homeland Security 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html 


Congress.#13
COMMITTEE ON HOMELAND SECURITY 

BENNIE G. THOMPSON, Mississippi, Chairman 

LORETTA SANCHEZ, California, 

EDWARD J. MARKEY, Massachusetts 

NORMAN D. DICKS, Washington 

JANE HARMAN, California 

PETER A. DEFAZIO, Oregon 

NITA M. LOWEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

DONNA M. CHRISTENSEN, U.S. Virgin 

Islands 

BOB ETHERIDGE, North Carolina 

JAMES R. LANGEVIN, Rhode Island 

HENRY CUELLAR, Texas 

CHRISTOPHER P. CARNEY, Pennsylvania 

YVETTE D. CLARKE, New York 

AL GREEN, Texas 

ED PERLMUTTER, Colorado 

VACANCY 

PETER T. KING, New York 

LAMAR SMITH, Texas 

CHRISTOPHER SHAYS, Connecticut 

MARK E. SOUDER, Indiana 

TOM DAVIS, Virginia 

DANIEL E. LUNGREN, California 

MIKE ROGERS, Alabama 

BOBBY JINDAL, Louisiana 

DAVID G. REICHERT, Washington 

MICHAEL T. MCCAUL, Texas 

CHARLES W. DENT, Pennsylvania 

GINNY BROWN-WAITE, Florida 

MARSHA BLACKBURN, Tennessee 

GUS M. BILIRAKIS, Florida 

DAVID DAVIS, Tennessee 

JESSICA HERRERA-FLANIGAN, Staff Director & General Counsel 

ROSALINE COHEN, Chief Counsel 

MICHAEL TWINCHEK, Chief Clerk 

ROBERT O’CONNOR, Minority Staff Director 

SUBCOMMITTEE ON TRANSPORTATION SECURITY AND 

INFRASTRUCTURE PROTECTION 

SHEILA JACKSON LEE, Texas, Chairwoman 

EDWARD J. MARKEY, Massachusetts 

PETER A. DEFAZIO, Oregon 

ELEANOR HOLMES NORTON, District of 

Columbia 

YVETTE D. CLARKE, New York 

ED PERLMUTTER, Colorado 

BENNIE G. THOMPSON, Mississippi (Ex 

Officio) 

DANIEL E. LUNGREN, California 

GINNY BROWN-WAITE, Florida 

MARSHA BLACKBURN, Tennessee 

GUS M. BILIRAKIS, Florida 

PETER T. KING, New York (Ex Officio) 

MATHEW WASHINGTON, Director 

ERIN DASTE, Counsel 

NATALIE NIXON, Deputy Chief Clerk 

COLEY O’BRIEN, Minority Senior Counsel 

(II) 

(III) 

C O N T E N T S 

Page 

STATEMENTS

The Honorable Sheila Jackson Lee, a Representative in Congress from the 

State of Texas, and Chairwoman, Subcommittee on Transportation Security 

and Infrastructure ................................................................................................ 1 

The Honorable Daniel E. Lungren, a Representative in Congress from the 

State of Texas, and Ranking Member, Subcommittee on Transportation 

Security and Infrastructure ................................................................................ 3 

The Honorable Bennie G. Thompson, a Representative in Congress from 

the State of Mississippi, and Chairman, Committee on Homeland Security .. 5 

The Honorable Yvette D. Clarke, a Representative in Congress from the 

State of New York ................................................................................................ 48 

The Honorable Bill Pascrell, Jr., a Representative in Congress from the 

State of New Jersey ............................................................................................. 45 

WITNESSES

Dr. M. Sam Mannan, PE, CSP, Professor and Director, Mary Kay O’Connor 

Process Safety Center, Artie McFerrin Department of Chemical 

Engineering, Texas A&M University System: 

Oral Statement ..................................................................................................... 30 

Prepared Statement ............................................................................................. 32 

Mr. Clyde Miller, Director, Corporate Security, BASF Corporation: 

Oral Statement ..................................................................................................... 12 

Prepared Statement ............................................................................................. 14 

Mr. Gerald C. Setley, Vice President, Region 3 Director, International 

Chemical Workers Union Council, United Food and Commercial Workers 

Union: 

Oral Statement ..................................................................................................... 20 

Prepared Statement ............................................................................................. 21 

Mr. Gary Sondermeyer, Director of Operations, New Jersey Department of 

Environmental Protection: 

Oral Statement ..................................................................................................... 25 

Prepared Statement ............................................................................................. 27 

Colonel Bob Stephan, Assistant Secretary, Infrastructure Protection, U.S. 

Department of Homeland security: 

Oral Statement ..................................................................................................... 6 

Prepared Statement ............................................................................................. 9 

FOR THE RECORD

Mr. William E. Allmond, IV, Director, Government Relations, Synthetic 

Organic Chemical Manufactures Association (SOCMA) accompanied by, 

Mr. Jeffrey Gunnulfsen, Senior Manager, government Relations, Synthetic 

Organic Chemical Manufactures Association (SOCMA): 

Joint Prepared Statement ................................................................................... 59 

(1) 

H.R., THE CHEMICAL FACILITY 

ANTI-TERRORISM ACT OF 2008 

Wednesday, December 12, 2007 

U.S. HOUSE OF REPRESENTATIVES, COMMITTEE ON HOMELAND SECURITY, SUBCOMMITTEE ON TRANSPORTATION SECURITY AND

INFRASTRUCTURE PROTECTION, Washington, DC. 

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

311, Cannon House Office Building, Hon. Sheila Jackson Lee 

[chairwoman of the subcommittee] presiding. 

Present: Representatives Jackson Lee, Clarke, Thompson (ex officio) and Lungren. 

Also present: Representatives Pascrell and Langevin. 

Ms. JACKSON LEE. Good morning. The subcommittee will come to 

order. 

The subcommittee is meeting today to receive testimony on the 

legislative draft of the Chemical Facility Antiterrorism Act of 2008. 

Importantly, this testimony will include insight into the current 

chemical security regulations and current efforts in the State of 

New Jersey. 

Before I begin, however, I ask for unanimous consent that the 

Chairman of the Subcommittee on Emerging Threats, Cybersecurity, and Science and Technology Mr. Langevin, and Mr. Pascrell, 

a member of the full committee, sit and question the panel during 

today’s hearing. Without objection, so ordered. 

The Ranking Member wanted to smile his approval, and we 

thank him so very much. Let me also welcome Mr. Pascrell and 

thank him. We know how crucial these issues are to his region. 

And let me as well welcome the Chairman of the full committee, 

Mr. Thompson of Mississippi. 

I would like to take this opportunity to thank you all for joining 

us this morning. As we all know, the Congress, and specifically the 

full committee and this subcommittee are very concerned with 

chemical security and ensuring there are effective and robust 

chemical security regulations when the current regulations expire 

in October 2009. 

Chemical security is a topic that is very important to this committee, my constituents, and me. The Houston area is home to several chemical facilities and petroleum refineries. As a result, the 

issue of chemical facility security is one that is right in my backyard, as well as many, many backyards of many, many Americans. 

This subcommittee held a previous hearing on the topic of chemical facilities in July of this year. At the time of that hearing, the 

2 

Department of Homeland Security was preparing to implement the 

Chemical Facility Antiterrorism Standards, all known as CFATS. 

Although the Department had moved aggressively in drafting the 

interim final rules and a list of chemicals covered under the regulation referred to here as Appendix A, which will be made part of the 

hearing record, the Office of Management and Budget took several 

months before finally releasing the list on November 20, less than 

a month ago. 

Fortunately, the Department proactively reached out to roughly 

100 companies that it was sure would be captured under the regulations and asked them to begin the regulatory process by completing a Top-Screen questionnaire that listed the chemicals held 

on site by these companies. This action by the Department helped 

to get these necessary regulations moving. 

With the release of Appendix A, all companies, not just the initial 100, are filling out the Top-Screen. The results of the TopScreen determine whether a facility will be regulated under 

CFATS. These facilities that have relatively small amounts of 

chemicals, or otherwise pose low risks, will not be regulated. If the 

facility is determined to have a sufficient amount of a chemical of 

concern, however, it will be regulated. 

Under the regulation, the next step is for a facility to complete 

a Security Vulnerability Assessment and a Site Security Plan, 

which must be approved by the Department and implemented by 

the facility. We are fortunate to have before us today representatives from the Department and a regulated company to provide us 

with insight into the implementation of CFATS. 

This committee is responsible for oversight of the Department, 

and also for enacting legislation to give permanence to CFATS regulation, which will sunset in October 2009. This hearing then gives 

us an opportunity to find out about what is working in CFATS and 

what could use improvement. Importantly, this committee does not 

want to reinvent the wheel, and we believe that the fundamental 

approach taken under CFATS is a correct one. We do, however, 

have some concerns regarding the protection of information and the 

introduction of a new class of protected information, chemical terrorism vulnerability information. 

I, for one, have an open mind on this issue, and I understand the 

need to protect this sensitive information, but I am concerned that 

we might overprotect information. As a result, it may not be shared 

with the necessary stakeholders, such as with the facilities as well 

as State and local authorities who have the responsibility, along 

with the Federal Government, to protect the homeland. 

We also would like to see more emphasis placed on employee 

training and the involvement of employees and their representatives in creating SCAs and SSPs. For that reason, we are happy 

to have a Chemical Workers Union representative here with us 

here today. 

Clearly, inherently safer technologies has, of course, been a hot 

topic. This hearing will provide an opportunity to have a conversation about IST, and I am looking forward to it. We are fortunate 

to have a representative from New Jersey, a State with a chemical 

facility security law that requires an IST assessment. We are also 

joined by an academic expert who has studied IST, and a company 

3 

which has complied with New Jersey’s law so that we can examine 

this issue from all sides. 

Let me say how appreciative I am of our Chairman of the full 

committee Mr. Thompson for his recognition of the importance of 

the second half of the responsibilities of this subcommittee, infrastructure protection. As we go into 2008, we look forward to looking 

at some unique challenges that we have seen not necessarily dealing with terrorism, but certainly vulnerable: shopping malls, dams, 

hospitals, and schools. And this subcommittee expects to have enormous oversight in these areas in order to again ensure and protect 

the homeland. 

In addition, I would be open to the whole idea of oversight and 

the question of whether there should be some outside contracting 

as relates to the audit and oversight of dealing with chemical companies and their compliance with a potential chemical security bill. 

There is a lot to be done, but the work is done specifically to ensure that America is safe. We welcome these witnesses to be partners in that journey that we must take. The whole idea of homeland security is preventative and protective, and I hope this hearing today will be an important step toward protecting and securing 

America. The American people deserve our best. I am looking forward again to today’s hearings, and I thank the witnesses for being 

here, and look forward, as I said previously, to their testimony. 

Ms. JACKSON LEE. The Chair now recognizes the Ranking Member of the subcommittee, the gentleman from California, for an 

opening statement. Mr. Lungren, I yield. 

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

I felt it was most appropriate when our subcommittee met in 

July to review the Department of Homeland Security’s efforts to 

implement our committee’s bipartisan chemical security legislation, 

which we enacted last year. I think it is very appropriate for us to 

have this hearing today. I am constrained, however, by an requirement to be in the Judiciary Committee in a few minutes because 

I am the prime sponsor of the bill dealing with judicial pay, and 

we have been working on that for some time, and I have to be over 

there, and then I will try and get back as quickly as possible. 

The authority to regulate the security of our Nation’s chemical 

industry is not only historic, it is timely. Dangerous chemicals 

stored or processed in high volume at chemical facilities naturally 

would pose a serious threat to facility workers and neighboring 

populations if they became a subject or a target of terrorists. 

Chemical facilities seem to be at the top of every terrorist target 

list. It was this concern over the vulnerability of chemical facilities 

which prompted Congress last year to adopt a compromise national 

risk-based security plan for all chemical facilities. 

As was stated by the Chairwoman, the Homeland Security Department is currently making progress, I would call it excellent 

progress, identifying our high-risk chemical facilities. DHS estimates that 40,000 facilities will eventually be assessed under their 

plan. They will be assessed or Top-Screened for potential consequences and assigned to risk-based tiers. And I mention riskbased tiers because that is in keeping with our idea of a layered 

approach, and also with an approach of giving greatest attention to 

the greatest danger. These facilities which qualify as Tier 1, 2, and 

4 

3 will be required to conduct a facility vulnerability assessment 

and submit a Site Security Plan to address those vulnerabilities. 

So I hope that we all understand the need to address the sunset 

provision contained in last year’s bipartisan chemical security legislation. We should recognize, however, that the chemical facilities 

are just beginning the assessment process under current regulations, and that assessment is a critical step and the first step in 

the Department’s efforts to secure our chemical facilities. So I 

would be very reticent to make any substantial changes in the law 

before it has been fully implemented as long as I am satisfied that 

the Department is going forward full steam, and that the Department is receiving cooperation from the industry involved. If we 

don’t allow the regulations to take effect, we won’t be able to identify any gaps or legislative deficiencies. 

I am concerned about proposals to grant third-party rights of action against chemical facilities. While I am a lawyer and have been 

involved in litigation my entire life, I am not always certain that 

that is the best way, the highest and best use of our time and efforts to make ourselves more secure. 

I am intrigued once again by an effort to have inherently safer 

technology imposed. I think we learned much last year when we 

had hearings on that subject as to what it is and what it is not, 

what it can do and what it cannot do, what its promise is and what 

its mere hope is. And I would hope that we use some prudence as 

we approach that question. 

My concern about legislative uncertainty arises also. I would suggest that legislative uncertainty would undermine our efforts to enlist the cooperation and support of the private sector in securing 

their chemical facilities. The entire Top-Screen assessment process 

relies on information supplied by the owners of the chemical facilities. I would hope that they would continue to work with us, and 

I would hope that we would engage them in a cooperative effort, 

and one of confidence that we have set certain rules, that they 

should abide by those rules, and we will then assess the results of 

those after we have completed the action. 

So, once again, I hope that we will be able to achieve bipartisanship as we have in the past, that we will learn from what has been 

done thus far. And I would just say this, that I have been impressed with the efforts organized under Colonel Stephan since he 

came to the Department. He has gained my confidence and, I believe, the confidence of the members of this panel. And so I would 

very much like to see the results of the activity that has been engaged in since we last passed the law for this area. And while I 

have to leave for a period of time, I have the written testimony 

here, and I hope to be back for the question-and-answer period. 

And I thank the Chairwoman. 

Ms. JACKSON LEE. I thank the Ranking Member. I appreciate his 

scheduling conflict. And both of us are facing that same conflict, 

and particularly in case of a number of votes that may take place. 

So thank you very much for your testimony. 

The Chair now is very pleased to recognize the distinguished 

gentleman from Mississippi, the Chairman of the full committee, 

Mr. Thompson. And again, my appreciation for his leadership on 

this issue and many issues dealing with the security of our Nation. 

5 

Mr. THOMPSON. I thank the Chairwoman Jackson Lee for holding 

this important hearing, and I look forward to the testimony of our 

witnesses. As has already been said, this is our second hearing this 

subcommittee has held on the subject of chemical facility security 

in this Congress. Both Chairwoman Jackson Lee and myself recognize the importance and significance of chemical security. Fortunately, we also share that sentiment with many committee members here also. 

There has been a great deal of speculation from all sides about 

the current regulations and any legislation to be enacted in the future. I hope today’s hearing will give us an opportunity to move 

away from speculation and move toward actual facts with those 

who have experience with chemical security regulations. 

One of my goals as Chairman of the full committee is to ensure 

the American people that we are doing what we can to secure 

America. While dangerous chemicals do pose a real threat, we do 

not want to over exaggerate this issue. We also want to avoid creating fear and confusion for the American public. Instead, we want 

to ensure American freedom from fear of a chemical attack. 

In order for our committee to provide that freedom, we must be 

effective in addressing any and all vulnerabilities. We can do this 

by implementing smart, aggressive measures to protect our chemical facilities and the populations surrounding them. While the 

CFATS regulations have been in place for a few weeks, it is important for us to receive feedback on the implementation of the regulations from all sides of the issue. In addition, the State of New Jersey has its own chemical security regulations in place, and this 

committee can learn a great deal from its experience. The CFATS 

regulations will sunset in October 2009, and I feel strongly that 

Congress and this committee should consider making these regulations permanent. 

I look forward to this discussion and the road ahead. I thank the 

Chairwoman, and I yield back. 

Ms. JACKSON LEE. I thank the distinguished Chairman. 

Let me remind our colleagues and members of this committee, 

and other members of the subcommittee are reminded that under 

the committee rules, opening statements may be submitted for the 

record. 

I welcome our panel of witnesses, and good morning to you 

again. Our first witness, Colonel Bob Stephan, is the Assistant Secretary For Infrastructure Protection at the Department of Homeland Security. And we are certainly pleased of his service and the 

approach to the commitment of protecting the Nation’s infrastructure that he has taken. 

Colonel Bob Stephan was appointed to serve as the Assistant 

Secretary of Homeland Security for Infrastructure Protection in 

April 2005. In this capacity he is responsible for the Department’s 

efforts to catalogue our critical infrastructure and key resources, 

and to coordinate risk-based strategies and protective measures to 

secure them from terrorist attack. The Chemical Security Compliance Division, which oversees the implementation of CFATS, is 

within his office. 

Our second witness, Mr. Clyde Miller, is the director of corporate 

security at BASF Corporation, where, among other activities, he 

6 

helps ensure BASF compliance with the CFATS regulations. Importantly, BASF has sites in the State of New Jersey and complies 

with other regulatory frameworks. 

Our third witness is Mr. Gerald C. Setley. He is the vice president and Region 3 director for the International Chemical Workers 

Union Council of the United Food and Commercial Workers Union. 

Mr. Setley was hired in 1974 at what is now known as Cabot Corporation as a research and development technician. He spent the 

next 31μyears working at various technical jobs at Cabot. Through 

these years he has held numerous elected positions in the local. 

Welcome. 

Our fourth witness, Mr. Gary Sondermeyer, is the director of operations at the New Jersey Department of Environmental Protection. He will help to shed light on the regulation of IST, as he has 

been intimately involved in that endeavor in New Jersey. And our 

regards to Governor Corzine. 

Our fifth witness is Dr. M. Sam Mannan, professor and director 

of the Mary Kay O’Connor Process Safety Center at the Artie 

McFerrin Department of Chemical Engineering at the Texas A&M 

University System. He has done a great deal of research on IST, 

and his thoughts are most welcome to the subcommittee. And 

proudly, let me celebrate and commend Texas A&M for its presence 

in the State of Texas and its leadership in educating young people 

for the 21st century. Welcome. 

Without objection, the witnesses’ full statements will be inserted 

in the record. 

I now ask each witness to summarize his or her statement for 

5 minutes, beginning with Colonel Stephan. 

STATEMENT OF BOB STEPHAN, ASSISTANT SECRETARY, 

INFRASTRUCTURE PROTECTION, DEPARTMENT OF 

HOMELAND SECURITY 

Colonel STEPHAN. Good morning, and thank you, Madam Chairwoman, Chairman Thompson, Ranking Member Lungren, and 

other distinguished members of this subcommittee. It is a pleasure 

to appear before you today to discuss progress on the Department’s 

Chemical Facility Antiterrorism Standards regulation, or CFATS. 

The recent release of the final Appendix A, the chemicals of concern list, makes the discussion of this important topic all the more 

timely. 

As you know, the fiscal year 2007 DHS Appropriations Act directed us to develop and implement a regulatory framework for 

high-risk chemical plants. The Department published the CFATS 

on April 9th, 2007. The following four principles guided the development of this regulatory framework, and are very important to 

take into account. 

Number one is that integrated and effective partnerships among 

all stakeholders, Federal, State, local government, 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 putting security 

measures in place. Consultation with industry, academic specialists, engineering associations, and other organizations is fully necVerDate Nov 24 2008 08:46 Nov 10, 2009 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 H:\DOCS\110-HRGS\110-89\48984.TXT HSEC PsN: DIANE
7 

essary to assist in the creation and implementation of this rule 

that meets security goals while preserving the economic integrity 

and vitality of the chemical sector, our largest export sector. We 

also, by working closely with public experts such as New York and 

New Jersey State government officials at various levels, has helped 

us leverage vital knowledge and insight to improve this regulation 

in its development and implementation. 

Number two, the risk-based tiering approach ensures that resources are appropriately focused. Not all facilities, of course, 

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. 

Number three, reasonable, clear, and equitable performance 

standards lead to enhanced security. The rule includes enforceable 

risk-based performance standards based on the type of severity or 

potential risk posed by terrorist organizations. Facilities have the 

flexibility to select among appropriate site-specific security measures that will effectively address risk, subject to final Department 

approval, of course. 

Recognition of the progress many companies have already made 

in improving facility security leverages these advancements, and is 

the fourth principle. Many responsible companies have made significant capital investments in security since 9/11, and building on 

that progress and implementing the CFATS is essential to its success. 

In December of 2006, the Department released an Advance Notice of Rulemaking, seeking a comment on significant policy issues 

and draft regulatory text. We received more than 1,300 pages of 

comments from more than 106 separate submitters. We have carefully reviewed and considered these extensive comments within the 

Interim Final Rule that was published, and we have included a second public comment to the rule’s Appendix A, the Chemicals of Interest list. Getting more specifics on Appendix A, the CFATS contains a list of chemicals of interest and their security screening 

threshold quantities. 

The public comment period for Appendix A closed on May 9th of 

this year. We received more than 4,000 comments on a wide range 

of subjects, such as which chemicals and thresholds the Department should use, the treatment of chemical mixtures, and the potential impact of Appendix A on certain types of facilities not traditionally considered chemical facilities. We studied these comments 

carefully, and conducted extensive outreach with representatives of 

several stakeholder groups to better understand their specific concerns. 

After follow-on consultation, additional consultation with a variety of technical experts, to include the FBI’s Explosive Unit, and 

the DHS Science and Technology Directorate’s Chemical Security 

Analysis Center, the Department published the final Appendix A 

on November 20th of this year. The final appendix lists approximately 300 chemicals of interest, and has included chemicals based 

upon the consequences to public health and safety associated with 

one or more of the following three security issues: release, theft 

and diversion, and sabotage/contamination. 

8 

Implementation and execution of this regulation requires us to 

identify which facilities we consider high-risk as a Department. To 

facilitate this, we developed a consequence-based screening tool 

called the CSAT Top-Screen, which the Chairwoman has very ably 

addressed. The Department requires facilities that possess a chemical of interest at or above the listed threshold screening quantity 

to complete the Top-Screen within 60 calendar days of publication 

of the appendix, or upon receipt of a chemical of concern beyond 

the publication of Appendix A. Through this process we hope to 

identify facilities that do and do not have a significant potential to 

be considered high-risk. 

If a facility is not screened out, DHS will make a preliminary determination and place it in a risk-based tier. Through this process 

we will continue a follow-on sequence of site-specific vulnerability 

assessments, and finally Site Security Plans that will undergo a 

DHS approval process. 

In the security plans themselves, we promulgate 19 risk-based 

performance standards through the rule. The standards themselves 

are broad and designed to promote a great deal of flexibility in this 

process. For example, a Tier 1 facility with a release security issue, 

the restricted area perimeter performance standards may involve 

establishing a clearly defined perimeter that cannot be breached by 

a wheeled vehicle. To meet this 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. Alternatively, the facility 

might choose to landscape their perimeter with large boulders, 

steep berms, water barriers, or other obstacles that would thwart 

a wheeled vehicle. Again, as long as the proposed measures are sufficient and according to our standards, the Department would approve the plan. 

Ma’’am, as you mentioned, we have begun the implementation 

phase of CFATS, beginning with a series of release of documents 

to include the Interim Final Rule, now the Appendix A. We have 

additionally ramped up implementation for approximately 100 specifically targeted high-risk facilities, where we are now about to 

enter the Security Vulnerability Assessment phase with respect to 

those facilities. 

In terms of the Top-Screen process, since November 20th, we 

have approximately 16,852 facilities that have registered in the online Top-Screen analysis process as we speak, and 1,818 facilities 

have actually completed the Top-Screen submission. 

To conclude, the Department is collaborating extensively with 

the public to actively work toward achieving our collective goals 

under the CFATS framework. We are also working very collaboratively with a whole host and range of Federal, State, and local 

government partners, as well as industry. 

I would like to on a final note thank you, Chairman Thompson, 

Ranking Member Lungren, and other members of this subcommittee, for your solid leadership and support in every step of 

this process, helping us push a success forward and helping us implement this program in the way you intended as quickly as possible. Thank you for your time. 

9 

Ms. JACKSON LEE. Colonel, thank you very much for your testimony. 

[The statement of Colonel Stephan follows:] 

PREPARED STATEMENT OF ROBERT B. STEPHAN, ASSISTANT SECRETARY, 

INFRASTRUCTURE PROTECTION NATIONAL PROTECTION AND PROGRAMS DIRECTORATE

Thank you, Chairwoman Jackson-Lee, Congressman Lungren, and 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 CFATS, the Chemical Facility Anti-Terrorism Standards. The recent release of the final Appendix A to CFATS makes the 

discussion of this important topic all the more timely. 

Chemical Security Regulations 

The Fiscal Year 2007 Department of Homeland Security Appropriations Act directed the Department to develop and implement a regulatory framework for highrisk chemical facilities. The Department published the Chemical Facility Anti-Terrorism Standards 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 defined by the 

Department of Homeland Security. 

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

(1) Securing high-risk chemical facilities represents an immense undertaking 

that involves a national effort, including all levels of government, industry, and 

the public. 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, which is focused on securing high-risk facilities, 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. Consultation with industry experts, academic specialists, engineering associations, and non-government organizations was necessary to assist in creating and effectively implementing a rule that accomplishes necessary security 

goals while ensuring economic viability of the sector. By working closely with 

public experts, such as New York and New Jersey State officials, we leveraged 

vital knowledge and insight to improve the regulation. 

(2) Risk-based tiering ensures 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. 

(3) Reasonable, clear, and equitable performance standards lead to enhanced security. The rule includes enforceable risk-based performance standards based on 

the type and severity of potential risks posed by terrorists. Facilities have the 

flexibility to select among appropriate site-specific security measures that will 

effectively address risk. The Department will approve a facility’s Site Security 

Plan if it satisfies the CFATS performance standards. If a Site Security Plan 

does not meet the CFATS performance standards, DHS will disapprove the plan 

and work with the facility to revise and resubmit an acceptable plan. 

(4) Recognition of the progress many companies have already made in improving facility security leverages those advancements. Many responsible companies 

have made significant capital investments in security since 9/11, and building 

on that progress in implementing the CFATS program raises the overall security baseline of high-risk chemical facilities. 

Public and private stakeholder input was critical to success in developing the regulatory framework. In December 2006, the Department released an Advance Notice 

of Rulemaking, seeking comment on significant policy issues and draft regulatory 

text. We received more than 1,300 pages of comments from more than 106 separate 

submitters. We carefully reviewed and considered these extensive comments. Within 

the Interim Final Rule, we included a second public comment period specific to the 

rule’s Appendix A, the Chemicals of Interest List. 

Appendix A: Chemicals of Interest List 

Appendix A to the CFATS contains a list of chemicals and their Screening Threshold Quantities. Possession of one or more of these chemicals of interest at or above 

the specified quantity triggers a requirement for the facility to complete and submit 

10 

an online consequence assessment tool known as a Top-Screen. The data gathered 

through the Top-Screen informs the Department’s preliminary determination of the 

facility’s level of risk and the potential need for the facility to comply with the substantive requirements of the CFATS. 

The public comment period for Appendix A closed on May 9, 2007. We received 

more than 4,000 comments on a wide range of subjects, such as which chemicals 

and thresholds the Department should use, the treatment of chemical mixtures, and 

the potential impact of Appendix A on certain types of facilities not traditionally 

considered chemical facilities, such as farms and universities. We studied these comments carefully and conducted extensive outreach with representatives of several 

stakeholder groups to better understand their specific concerns. 

After careful consideration of the comments and consultation with a variety of 

technical subject matter experts, including the Federal Bureau of Investigation’s Explosives Unit and the DHS Science and Technology Directorate’s Chemical Security 

Analysis Center, the Department published the final Appendix A in the Federal 

Register on November 20, 2007. The final Appendix A listed approximately 300 

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. 

Chemical Security Assessment Tools 

Implementation and execution of the CFATS regulation requires the Department 

to identify which facilities it considers high-risk. To facilitate this, the Department 

developed a consequence-based screening tool called the Chemical Security Assessment Tool (CSAT) Top-Screen. The Top-Screen builds on the assessment tool referred to as the Risk Analysis and Management for Critical Asset Protection 

(RAMCAP), which the Department developed with industry input. 

The Department requires 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). Through the Top-Screen process, the Department can identify which facilities do not have a significant potential 

to be high risk and can then ‘‘screen out’’ those facilities. 

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

will make a preliminary determination that a facility is high-risk and assign the facility to a preliminary risk-based tier. All high-risk facilities must then complete the 

CSAT Security Vulnerability Assessment (SVA). Results from this online tool inform 

the Department’s final tier determination of a facility’s risk level. 

All high-risk facilities fall into one of four risk-based tiers. High-risk facilities will 

be required to develop Site Security Plans addressing their identified vulnerabilities. 

A high-risk facility’s security measures must meet the performance standards. The 

higher a facility’s risk tier, the more robust the measures it will need to incorporate 

and the more frequent and rigorous its 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 promulgates nineteen 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 

high-risk facilities must comply with the risk-based performance standards, each 

tier requires appropriate levels of security for each security issue. For example, a 

Tier 1 facility with a release hazard security issue would carry different expectations for perimeter control, personnel access, intrusion detection, and all other 

standards applicable to that security issue than lower tier facilities. 

11 

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 meet the performance standard, the Department would approve the plan. Alternatively, the facility might choose to ‘‘landscape’’ their 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. 

Phased Approach to CFATS Implementation 

The Department is using a phased approach for implementation of the CFATS 

regulation. In June of 2007, the Department began CFATS implementation at certain facilities deemed likely to present highest-risk. The release of Appendix A on 

November 20, 2007, triggered implementation at the Nation’s remaining high-risk 

facilities in a fashion sequential to Phases 1(a) and (b) discussed below. The phased 

approach will also permit a time of learning, particularly for our inspectors, as well 

as for industry. What we learn in the earlier phases can then shape further implementation of the program and ensure consistency across the country. The following 

summarizes our current activities: 

• On June 8, 2007 the Top-Screen became available online, and the CVI program went into effect. On June 11, we contacted the State Homeland Security 

Advisors and the Chemical and Oil and Natural Gas Government Coordinating 

Councils and Sector Coordinating Councils to brief them on program implementation. 

• The week of June 11, 2007 marked the beginning of Phase 1(a), in which the 

Department asked select facilities it believed to be high-risk, given available information, to complete the Top-Screen. Following initial outreach at the corporate level, the Department sent letters to approximately 50 facilities, informing them of their selection for participation in Phase 1, and advising those facilities of the requirement to submit a Top-Screen. The facilities were to complete the Top-Screen in advance of the final Appendix A with technical assistance from Department inspectors. The Department, after receiving the final 

Phase 1(a) Top-Screens in prompt fashion, is currently reviewing these submissions for preliminary high-risk determinations. If those facilities are determined 

to be high-risk, the Department will provide written notification, and then engage these facilities directly on the CSAT Security Vulnerability Assessment 

(SVA). 

• In October 2007, Phase 1(b) began, in which approximately 50 additional facilities believed to be high-risk were contacted with the request they begin their 

CFATS requirements in advance of the release of the final Appendix A. A number of the Phase 1(b) facilities have already submitted Top-Screens to the Department. 

• November 20, 2007, the date of the publication of the final Appendix A, initiated Phase 2, the full implementation of CFATS. Publication of the final Appendix A officially started the program for all facilities that possess chemicals of 

interest at or above the listed Screening Threshold Quantities. During Phase 2, 

such facilities will complete the Top-Screen, and those facilities subsequently 

determined to be high-risk will receive preliminary tiering decisions and will 

then be instructed to complete SVAs. Upon receipt, the Department will review 

the submitted SVAs for purposes of final tiering determinations, and subject facilities will be asked to develop SSPs. DHS will subsequently review those 

SSPs, and conduct on-site facility inspections to ensure a facility’s compliance 

with their submitted plan. 

Outreach and Partnership Efforts 

Since the release of the Interim Final Rule in April, the Department has made 

a concerted effort to publicize the rule and make sure that our security partners are 

aware of the 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 numerous press releases regarding the regulations, published and distributed 

full copies of the regulations as well as various facts sheets summarizing critical aspects of the regulations, and developed and continually updated a DHS.gov ChemVerDate Nov 24 2008 08:46 Nov 10, 2009 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-89\48984.TXT HSEC PsN: DIANE
12 

ical Security website. We believe these efforts are definitely having an impact. As 

of November 25, 2007: • 12,267 facilities have registered in the CSAT process; • 2,079 facilities are in some phase of Top-Screen completion; and • 1,197 facilities have submitted a completed Top-Screen. 

Additionally, the Department intends to focus 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 a potential attacks and a clear understanding of roles and responsibilities during an elevated threat situation. As stated 

in our guiding principles, our vision is that all stakeholders participate in the planning and implementation of protective security measures around high-risk chemical 

facilities. 

Conclusion 

The Department is collaborating extensively with the public 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 begin to fully implement 

the chemical facility security regulations, we will continue to work as partners with 

industry, States and localities, and the Congress to get the job done. 

Given the nature of the terrorist adversary we face, we simply cannot afford an 

‘‘us-versus-them’’ stance toward the Chemical Sector but, instead, must work together to implement 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 Congress 

to ensure that the chemical security regulatory effort achieves success by 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 towards a more secure future. 

Thank you for holding this important and timely hearing. I would be happy to 

take any questions you might have. 

Ms. JACKSON LEE. I now recognize Mr. Miller to summarize his 

statement for 5 minutes. 

STATEMENT OF CLYDE D. MILLER, DIRECTOR, CORPORATE 

SECURITY, BASF CORPORATION 

Mr. MILLER. Good morning, Chairwoman Jackson Lee, Chairman 

Thompson, and members of the subcommittee. I am Clyde Miller, 

director of corporate security for BASF Corporation, and I am responsible for all security functions at our U.S. chemical facilities. 

For BASF there is no greater priority than the safety and security 

of our employees and the communities that surround our sites. 

I am pleased to provide feedback on the DHS Chemical Facility 

Antiterrorism Standards, also known as CFATS, and to comment 

on possible legislative action. To that end, I will emphasize three 

points. 

Number one, DHS has acted aggressively to create this 

groundbreaking program. Number two, there are several ways that 

Congress can help improve the implementation of the program. 

Number three, the discussion draft legislation does not appear to 

build on the significant progress being made, and may cause unnecessary duplication. 

After 6μyears of extensive debate, Congress authorized a comprehensive national chemical security program. The CFATS program shares elements with programs established by several States, 

most notably New Jersey, but is by far more comprehensive and 

demanding. In just over a year, DHS successfully issued demanding security regulations that would require over 50,000 facilities to 

complete a screening assessment, known as Top-Screen, by next 

13 

month. Throughout 2008, DHS will inspect every regulated facility 

and evaluate security enhancements against 19 stringent performance-based standards. Fines and facility shutdowns await those 

who do not comply. 

While DHS has gotten off to an impressive start, the new CFATS 

program is not without its problems, and Congress can help in several ways. First, makes information protection more workable. 

Clearly, security-related information needs to be carefully protected 

from public release; however, under the current program it is difficult to share certain information even within our own company. 

Second, Congress needs to provide adequate funding. DHS staff 

has demonstrated outstanding commitment and effort, but they 

need more resources. We urge Congress to provide DHS with the 

necessary resources to handle the workload. 

And third and most importantly, allow DHS enough time to do 

the job Congress has given it. After 6 years, we finally have strong 

regulations in place. While the current law has a 3-year sunset, 

Congress should give DHS sufficient time to implement the program before making significant changes. We are concerned that if 

enacted, the draft would slow the ambitious timetable DHS has established and the facilities are racing to meet. Billions of dollars 

will likely be spent to comply with the new rule, and companies 

need to know the requirements are not going to change in midstream. Prematurely overhauling them will create massive uncertainty, and could delay security enhancements. 

Congress should follow the Hippocratic oath in any new legislation: First, do no harm. The draft legislation does not recognize the 

progress made under CFATS, and would require companies like 

BASF to do everything all over again, and we just do not believe 

that is a wise use of public or private resources. 

Turning to inherently safer approaches, Congress recognized last 

year that neither IST nor any other specific security measures are 

a silver bullet. Under CFATS, companies can lower their risk profile through process changes, and thus become subject to lowerlevel performance standards. IST is complex and full of risk tradeoffs and unintended consequences. These choices shouldn’t be made 

from an office in Washington. Rather BASF 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 to maximize safety and security. 

The discussion draft, by contrast, would require all high-risk facilities to conduct an IST assessment and implement inherently 

safer methods when certain conditions are met. While these conditions might seem to protect companies from unwarranted or harmful mandates, we foresee long and complicated debates about what 

exactly is necessary and what is feasible. 

In the short time since CFATS was finalized, there has been 

much criticism of the regulations from all sides. As one responsible 

for complying with these regulations, I can assure you these rules 

are placing considerable demand on regulated facilities. 

To conclude, the discussion draft can serve a useful purpose by 

identifying issues with the current program. We look forward to 

working with you and your staff as the discussion moves forward. 

BASF shares Congress’s desire for prompt action after so many 

14 

1 BASF is a member of a number of trade associations that consider site security to be a top 

priority, including the American Chemistry Council, the Consumer Specialty Products Association, CropLife America, the National Petrochemical and Refiners Association, and others. These 

groups have worked closely together and with government agencies in support of chemical plant 

security legislation and regulation. 2Pub. L. No. 109–295, § 550 (2006). 

3 6 C.F.R. Part 27, 72 Fed. Reg. 17688 (April 9, 2007), 65396 (Nov. 20, 2007). 

years of debate. Please support DHS with more resources so it can 

get the job done, and support us by backing implementation of 

CFATS and not changing course in midstream. Thank you again 

for the opportunity to appear before you. I look forward to answering any questions you may have. 

Ms. JACKSON LEE. Mr. Miller, thank you very much for your testimony. 

[The statement of Mr. Miller follows:] 

PREPARED STATEMENT OF CLYDE D. MILLER

Good morning, Chairwoman Jackson-Lee, Ranking Member Lungren, and Members of the Subcommittee. My name is Clyde D. Miller, and I am the director of 

corporate security for BASF Corporation. At BASF, I am responsible for all security 

functions at our chemical facilities in the United States, a number of which fall 

under the Chemical Facility Anti-Terrorism Standards (CFATS) issued by the Department of Homeland Security (DHS). I appreciate the opportunity to appear before the Subcommittee this morning to provide feedback on DHS’s performance thus 

far, and to ask that the current program be given a chance to work. 

BASF Corporation is the North American affiliate of BASF AG, Ludwigshafen, 

Germany. BASF is the world’s leading chemical company: The Chemical Company. 

Our portfolio ranges from chemicals, plastics, performance products, agricultural 

products and fine chemicals to crude oil and natural gas. As a reliable partner to 

virtually all industries, BASF’s high-value products and intelligent system solutions 

help its customers to be more successful. BASF develops new technologies and uses 

them to meet the challenges of the future and open up additional market opportunities. We combine economic success with environmental protection and social responsibility, thus contributing to a better future. BASF presently operates facilities, including manufacturing sites, research facilities, and distribution centers, in more 

than half of the fifty states. 

For BASF and the chemical industry as a whole, there is no greater priority than 

the safety and security of our employees and the communities that surround our 

sites. It is in this vein that we have striven to work within our trade associations 1

and government at all levels to safeguard our facilities from attack and to develop 

procedures that allow us to respond quickly and efficiently to emergencies should 

they occur. As my statement explains: 

• Chemical facilities in the United States are moving quickly to implement the 

regulatory program authorized last year by Congress and subsequently created 

by DHS. 

• There are ways to improve implementation of the program, and Congress can 

help by, for example, increasing funding for DHS and allowing enough time for 

the program to be implemented. 

• The discussion draft legislation now under consideration would only hinder 

the progress made thus far and cause unnecessary duplication. We recommend 

that, before Congress proposes significant changes, it determine exactly what, 

if anything, is lacking in the existing program. 

• We further recommend against mandating inherently safer technology, because 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 to maximize safety and security. 

I. DHS Has Acted Aggressively to Establish a Comprehensive Regulatory 

Program from Scratch. Facilities Are Now Moving Quickly to Comply. 

After six years of debate, last October Congress finally enacted Section 550 of the 

FY07 DHS Appropriations Act,2 the law that authorized the new CFATS rules.3

Under an intense spotlight of public scrutiny and Congressional oversight, DHS and 

chemical facilities are acting swiftly to implement a groundbreaking program—the 

first national chemical security regulatory program anywhere in the world. While 

this program shares elements with the programs established by several states— 

15 

4Pub. L. No. 109–295, § 550(c). 

5DHS, Procedural Manual: Safeguarding Information Designated as Chemical-Terrorism Vulnerability Information (CVI) (June 2007), available at http://www.dhs.gov/xlibrary/assets/ 

chemseclcvilproceduresmanual.pdf. 

most notably New Jersey—the CFATS program is, by far, more comprehensive and 

demanding than any of them. So, even though BASF and the 2000 other American 

Chemistry Council (ACC) member company facilities have already invested more 

than $5 billion to enhance security through the ACC Responsible Care© Security 

Code, the DHS rules leave little doubt that more action will be required of those 

facilities that are deemed to be high risk under those rules. In fact, DHS anticipates 

over $8 billion of implementation costs during the first eight years of its program— 

costs we will certainly bear in addition to those we have already incurred. Keeping 

security measures innovative and staying a step ahead of terrorists is the right 

thing to do. Beyond ACC members, thousands of others facilities nationwide will 

also have to step up efforts to meet these stringent requirements. 

In just over a year, DHS has successfully completed the issuance of comprehensive security regulations that will, by January 2008, require over 50,000 facilities 

nationwide to complete a DHS screening assessment known as ‘‘Top-Screen.’’ Using 

risk-based methods, DHS will then be able to quickly determine which of these facilities would pose a high risk if subjected to a terror attack, and thus warrant action. Through informed decisions based upon Top-Screen, DHS will designate thousands of facilities as being high-risk and thus subject to regulation under CFATS. 

Throughout 2008, these thousands of high risk facilities will be required to assess 

their vulnerabilities, develop site security plans and, with close DHS scrutiny, minimize the risks they pose by implementing layered security measures. Layered security—based upon the site’s risk tier and the vulnerabilities its assessment has identified—will require consideration and implementation of varied measures that in 

combination will reduce the threat of an attack or mitigate an attack that might 

occur. These measures include: perimeter security enhancements; surveillance and 

monitoring; security officers; secured gates; restricted access; employee, contractor 

and visitor background checks; specific protection against both inside and outside 

threats of theft and diversion; cyber-security; inspections of incoming/outgoing shipments; customer screening; training; drills; and emergency response. DHS will inspect every regulated facility and evaluate these security enhancements against 19 

stringent performance based standards. Fines and facility shutdowns will await 

those who do not comply. 

II. What Could DHS Do Better, and How Could Congress Help? 

While DHS has gotten off to an impressive start, the new CFATS program is not 

without its problems. Congress could help in several ways. 

A. DHS Needs to Better Coordinate Its Own Programs 

DHS’s eagerness to show progress has already clashed with the new CFATS program. Just this fall, as many of our companies were already working closely with 

the regulatory staff to accelerate implementation of CFATS, another component of 

DHS initiated the ‘‘Enhanced Critical Infrastructure Plan’’ (ECIP), an outreach effort to encourage facilities to voluntarily take additional security action. While well 

intended, the ECIP staff often are going to the same sites that are already implementing the regulatory program. Unfortunately, the ECIP program is based upon 

a different tiering system and uses a different vulnerability assessment methodology 

and different levels of information protection. This conflict has created significant 

confusion among, and placed competing demands on, facility security personnel. 

This is the sort of duplication scenario that must be avoided. 

B. Making Information Protection More Workable 

Clearly, security-related information needs to be carefully protected from public 

release. And yet, company staffs have to be able to do their jobs, and security is 

part of the job description of an increasing number of our staff. Thus, information 

protection requires a careful balance. 

Section 550(c) instructed DHS to give sensitive information protections ‘‘consistent 

with’’ the ‘‘Sensitive Security Information’’ or ‘‘SSI’’ rules that DHS uses now to protect information about transportation security.4 DHS responded in CFATS by creating a new category of protected information that DHS has labeled ‘‘Chemical-terrorism Vulnerability Information’’ or ‘‘CVI.’’ In most respects, we think DHS got it 

right with CVI, at least in the rules. But this summer, DHS released a CVI Procedural Manual that goes far beyond what is necessary.5 The manual requires company staff with access to CVI to go through web-based training and to sign a nondisclosure agreement (NDA) that is more restrictive even than the NDA that is required to have access to national security classified information. Chain of custody 

16 

6 U.S. Coast Guard, Navigation and Vessel Inspection Circular No. 10–04, Encl. (3), § 4.b (Aug. 

20, 2004), available at http://www.uscg.mil/hq/gm/mp/pdf/NVICl10–04.pdf. 7While we cannot respond to every criticism of the rule, BASF would like to point out that 

critics of CFATS Appendix A are frequently wrong. For example, 1-ton chlorine canisters are 

not exempted; chlorine contained in transportation packaging (e.g., 1-ton canisters) is covered 

at 500 lbs—less than what DHS originally proposed and lower than the EPA RMP threshold. 

Also, DHS was right to use the RMP thresholds for release chemicals (not 75% of the thresholds, 

as proposed) because the consequences of a release are the same regardless of the cause. Coverage is still greater under CFATS than under the RMP rule because, unlike RMP, CFATS does 

not focus only on the single process with the greatest potential offsite consequences from a release. 

recordkeeping is also required. And all this applies even when people are only getting access to their own company’s information. This means that if my CEO asks 

specific questions about security measures we have enacted at a particular facility, 

I cannot answer his questions without him having to take this training and sign 

the NDA, a totally unnecessary process. In its facility security program, the Coast 

Guard simply ‘‘assumed that the owner/operator’s security interest in this information will be sufficient to prevent unauthorized disclosure.’’ 6 DHS should adopt the 

same approach. It could do this by amending the SSI rules to apply to land-based 

security information. Congress could help here by revising Section 550(c) to speak 

of ‘‘identical’’ protections. 

C. Congress Needs to 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. 

With DHS’s own estimates of at least 5,000 regulated facilities, its 30-person inspection staff will be sorely tested. We think implementation of CFATS requirements necessitates a significant increase of staffing resources—certainly well beyond 

what can be reasonably expected from the current situation. While DHS staff has 

demonstrated outstanding commitment and effort to date, they clearly will need 

more resources. We urge Congress to provide DHS with the necessary resources to 

handle the workload and to ensure that chemical facility security is properly implemented in a timely manner. 

D. Allow DHS Enough Time to Do the Job Congress Has Given It 

In the short period of time since CFATS was finalized, a steady stream of misguided criticism has been directed at the rule and our industry. Arguments have 

been wide ranging—some have said the rule does not go far enough, while other sectors have sought exemptions for themselves, arguing that the rule went too far.7

Some say that few states have taken action, while others say the rule undermines 

states’ rights. And the discussion draft seems to indicate that some believe wholesale replacement of the rule is needed even as it is being implemented. I can assure 

you that the program that is currently in place establishes considerable demands 

on companies to comply. 

It is important to note that BASF and all ACC members did not hesitate to act, 

and we continue to lead by example. The business of chemistry has been implementing security measures for years. We have assessed our vulnerabilities, 

prioritized the risks and significantly tightened security at our facilities. We also 

asked Congress for legislation that empowered DHS to issue and implement tough 

regulations—and that has happened. Now, we respectfully ask that Congress give 

DHS sufficient time to put the program in place. 

Within the next six months, thousands of facilities will be conducting detailed vulnerability assessments required by CFATS. These sites will use these assessments 

to draft site security plans that describe security enhancements, which very likely 

will require an increase in capital improvements. Those plans should all be submitted to DHS before the end of next year. The current requirements provide a clear 

path of action, the timing for completing the steps of the program, including inspections, and a review process that requires sites to revisit their situation and assess 

whether any changes to their security systems are needed. 

I respect this Subcommittee’s oversight responsibility and understand that the 

legislation enacted last year has a three year sunset provision. But I also 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 program and then determine what gaps reVerDate Nov 24 2008 08:46 Nov 10, 2009 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-89\48984.TXT HSEC PsN: DIANE
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8Most important, Congress should use the same definitions of security measures and the same 

risk-based performance standards as CFATS, unless Congress has identified problems with 

them. In these and many other respects, CFATS is actually superior to the draft bill. For example, in CFATS (and under MTSA), DHS has recognized that personnel surety screens need to 

encompass contractors and visitors, not just employees. But the bill just repeats the phrase ‘‘employee background checks’’ used in previous legislation (p. 3). Also, CFATS recognizes that 

chemicals might be stolen or diverted to make chemical weapons or IEDs, not just be ‘‘released,’’ 

yet the latter is the only basis for listing a chemical under the discussion draft (p. 4). 

main. 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 whether anything 

will need to be adjusted. 

III. The Discussion Draft Legislation Would Only Hinder Progress 

A. Build on the Solid Accomplishments of the Past Year 

BASF has had limited time to review the discussion draft, but we are concerned 

that it seems to make no reference to Section 550, except to repeal it on page 50. 

The draft appears not to acknowledge that the CFATS rules have been issued, or 

that tens of thousands of facilities are hard at work starting to comply. For example, 

while the bill refers to how DHS should evaluate the efforts of facilities under ‘‘other 

provisions of law’’ such as the Maritime Transportation Security Act (MTSA) or the 

Safe Drinking Water Act (SDWA) (pp. 19—20), that paragraph does not mention 

Section 550, even though that statute is more demanding than either the MTSA or 

SDWA. 

As noted above, we would prefer Congress give more time for the existing program to be implemented before making changes. Certainly, though, any proposal 

must adequately acknowledge all that has happened over the past year. While it is 

unusually short by modern standards, Section 550 clearly meets the nation’s security needs, and DHS has for the most part used its discretion appropriately to flesh 

it out. When considering surgery on the existing program, Congress should follow 

the Hippocratic Oath: First, do no harm. On that score, the discussion draft could, 

indeed, be harmful. 

First, if enacted, the draft would slow down the ambitious timetable that DHS 

has established and that facilities are racing to meet. DHS estimates that billions 

of dollars will be spent to comply with the new rule as companies procure funding 

from management for significant capital improvement projects to meet CFATS’s performance standards. This funding of projects will begin in 2008. Companies need to 

know that the requirements are not going to be changing in mid-stream. Completely 

rewriting those requirements will create massive uncertainty and could delay security enhancements. 

Second, passing a wholly new law would also divert DHS from the focus it very 

much needs to meet its own deadlines. Passing a major new bill could paralyze DHS 

as the agency shifts what is already an overstretched staff to rewriting its rules to 

match the new law’s terminology and definitions. 

Third, and most frustrating, the draft would require companies like BASF to do 

everything all over again. Under the CFATS timetable established under Section 

550 (which this bill would leave in place until October 2009), we expect to be submitting site security plans to DHS for approval by the end of 2008. We would then 

hear from DHS around February 2009, and would spend the rest of that year finishing implementation of any long-term security measures and being inspected. 

Under this bill, by October 2009, DHS would unveil its new regulations, and we 

would then have six short months to submit new vulnerability assessments and site 

security plans (for top-tier facilities). Once those documents were finalized, we could 

well start spending more money redoing all the work that had just been approved. 

This is not a fair or productive use of private or governmental resources. 

Again, before Congress proposes significant changes, it should determine exactly 

what, if anything, is lacking in the CFATS program, and then fix those targeted 

areas. In doing so, it should, wherever possible, use the concepts and terminology 

already written into law by DHS, to retain the benefits of existing work and minimize any unnecessary transition problems.8

B. The Discussion Draft’s IST Mandate Is Bad Policy 

If considerations of inherent safety drove all Congressional action, this hearing 

would be held in a bunker or some other safe and undisclosed location outside 

Washington. Congress and the Capitol building are icons of America that remain 

attractive targets for terrorists. Yet six years after 9/11, Congress understandably 

continues to maintain a high profile in the nation’s capital. Clearly removing that 

risk by relocating Congress out of Washington would be safer for Congress, and for 

18 

9Facilities must implement IST if it: 

• is ‘‘necessary for the facility to meet the security performance requirements for the facility’s 

risk tier’’; • ‘‘would significantly reduce the risk of death, injury, or serious adverse effects to human 

health or the environment’’ from a terrorist release; 

• ‘‘can feasibly be incorporated into the operation of the facility’’; and 

• ‘‘would not significantly and demonstrably impair the ability of the owner or operator of the 

facility to continue the business of the facility.’’ 

Discussion draft at 43—44 (new 6 U.S.C. § 2110(c)). 

10 Id. 

the surrounding DC community, but it would have serious public policy ramifications for the nation. 

Yet we all agree that protective steps have been taken to lower the risk and improve the security of this body. Measures to prevent an attack have been stepped 

up and mitigation measures in the event of an attack have also been substantially 

improved. Ultimately, an attack could still be attempted, but risk-based measures 

have been implemented to reduce the probability of a successful attack, and these 

measures are constantly being reviewed and improved. 

This is the same approach used every day in the chemical industry. Inherently 

safer approaches have long been a core element of process safety, plant design, continuous improvement and sound business practices. Like other leading chemical 

companies, BASF considers inherently safer approaches continuously, and has for 

years. Inherently safer approaches, somewhat misleadingly referred to as ‘‘inherently safer technology’’ (IST), involve designing processes that avoid hazards, rather 

than trying to control them. It has four elements: 

• Minimization/Intensification—Using smaller quantities of hazardous substances; 

• Substitution—Replacing a particular material with a less hazardous material; 

• Moderation/Attenuation—Lowering operating temperatures or pressures that 

provide less hazardous conditions; and 

• Simplification/Error Tolerance—System designs that eliminate or tolerate operating errors, making the plant more user-friendly and reliable. 

While these statements are clear and straightforward, like most things in life, the 

devil is in the details. IST just is not that simple in actual application. For example, 

it is almost always easier to select an inherently safer approach when designing a 

process than to apply it to an existing process. In lay terms, you cannot simply 

begin using diesel fuel in a car that runs on gasoline, but you can design a car to 

run on diesel. As another example, reducing inventories of a chemical on site might 

appear to be inherently safer. Yet security protection is typically at its greatest 

within a facility, whereas reducing inventories may mean that more of the chemical 

has to be in transit, where securing it is more complex. Improving the layers of security where the products are made and stored may provide the best means of reducing potential risks. 

The current regulations provide incentives to consider inherently safer approaches 

where feasible. CFATS will help drive implementation of inherent safety across the 

nation’s chemical sector, because a facility that lowers its risk profile through process changes can move itself to a lower risk tier, and then become subject to less 

demanding (and less expensive) security performance standards. I can assure you 

that BASF has made process changes to minimize its vulnerabilities. 

But in Section 550, Congress wisely chose not to allow DHS to mandate IST— 

or any other specific security measure. No single security measure is the only right 

one and Congress recognized that fact. IST is complex and full of risk-risk tradeoffs 

and unintended consequences. Rather than making those decisions from an office 

in Washington, BASF 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. 

The discussion draft, by contrast, would require all high-risk facilities to conduct 

an IST assessment and implement inherently safer methods when four conditions 

are met.9 While those conditions might seem to protect companies from unwarranted or fiscally ruinous mandates, we foresee long and complicated debates about 

exactly what is ‘‘necessary for the facility to meet [its] security performance requirements,’’ what ‘‘can feasibly be incorporated into the operation of the facility,’’ and 

what ‘‘would not significantly and demonstrably impair [our] ability. . .to continue 

the business of the facility.’’ 10 And would any of these conditions apply if the proposed mandate would prevent BASF from making the particular product produced 

19 

11Speaking of protecting important products, we are also concerned that inherently safer approaches that also happen to be valuable trade secrets would have to be disclosed by DHS under 

the draft. Neither new Section 2110(d)(4) nor new Section 2108 identifies trade secrecy or business confidentiality as a basis for not providing information under new Section 2110(d). 12State of New Jersey Domestic Security Preparedness Task Force, Domestic Security Preparedness Best Practices at TCPA/DPCC Chemical Sector Facilities, ¶ 5 (Nov. 21, 2005), available at http://www.acutech-consulting.com/acutech-news/2005/ 

BestPracticesStandarsActonChemicalPlantSecurityNov212005.pdf. 

at a facility? (The change might be feasibly incorporated, and might not shut down 

the plant, but yet might spell the end of a product.) 11

Even a requirement to consider IST, as in New Jersey, could be problematic. 

BASF recognizes that New Jersey’s Prescriptive Order requires covered facilities to 

consider IST as a means of reducing their vulnerability.12 However, while BASF believes we have an effective, constructive relationship with the State of New Jersey, 

our experience with its process has shown that IST discussions regularly take up 

a vast majority of the total review time of the inspectors, who frequently barely look 

at security measures that have been implemented. Isolating a single type of security 

measure for such intense focus at the expense of all the others is not good security 

practice. Rather, facilities and DHS should be considering the full range of security 

measures. We are also concerned that a mandate to consider IST will convert the 

DHS security program into a largely, but intensive, paper exercise. Simply put, does 

Congress want DHS staff reviewing three-ring binders, or out in the field inspecting 

actual security measures being implemented at facilities? 

C. The Discussion Draft Would Cause Unnecessary Duplication 

BASF supports a risk-based program that applies even-handedly across the board. 

We did not seek or support any special carve-outs under CFATS for our facilities 

or our products, or anyone else’s. Rather, we have consistently called on Congress, 

and DHS, to issue comprehensive security requirements that would apply nationwide and would raise the security protections across all high risk sites. We support 

the CFATS approach of screening over 50,000 individual facilities, from small research facilities to large state of the art chemical manufacturing facilities. This approach will minimize the chance that DHS has overlooked any potential high risk 

sites. This also meets our shared goal of focusing the resources where they are most 

needed. 

We know some have questioned whether Congress was correct in Section 550 to 

exclude certain categories of facilities. A prime example from BASF’s perspective is 

facilities currently regulated by the Coast Guard under the Maritime Transportation Security Act (MTSA)—since we have four such sites. While we believe the 

MTSA is effective, its application is dependent upon a facility’s physical location and 

whether it conducts commerce on a navigable waterway, rather than the chemicals 

it has on site. 

Congress will ultimately need to come to its own conclusion regarding the adequacy of the MTSA program vs. CFATS. Our overriding request is that, if Congress 

decides to apply CFATS to MTSA-regulated facilities, then it should clearly exempt 

those facilities from the MTSA. Congress should not impose, or allow DHS to impose, CFATS obligations on top of the MTSA program—which is exactly what we 

fear the discussion draft would do. Facilities cannot comply with two different, inconsistent, overlapping programs. In addition, the integration of the different programs under the draft would take place on a facility-by-facility basis, rather than 

on a programmatic basis. And, as noted earlier, no deference to prior work under 

CFATS is even mentioned in the draft. 

Site security must not be regulated by multiple agencies or programs. Rather, a 

broad and comprehensive program for security, managed at the Federal level by a 

single agency component, has the best hope of providing the certainty facilities need 

about their obligations and the best protection for the nation. 

D. Miscellaneous Issues 

Based on our limited review of the draft, we invite the Subcommittee’s attention 

to the following additional items: 

• Red-team exercises (p. 15). While we would appreciate a clearer understanding of what the draft envisions, we are concerned that even if these exercises were single-day events, they necessarily would require weeks of advance 

planning, as well as subsequent work to distill any lessons learned. Requiring 

on-site exercises with DHS personnel at all high-risk sites—assuming there 

were 6,000 such facilities, and phasing that obligation in over 6 years—would 

require four exercises per business day, every day for the next six years. 

• Linkage of SSPs to VA approval. In CFATS, DHS has made clear that the 

deadline to submit a site security plan is not triggered until the facility receives 

20 

notice that DHS has approved its vulnerability assessment. If both the VA and 

SSP were due at the same time, the SSP would likely turn out to be inadequate, 

cause unapproved and costly measures to be implemented, and require further 

work. But the bill does not indicate any intent to stagger these submission requirements as CFATS has done. 

IV. Conclusion 

The discussion draft does contain a number of provisions that would be improvements over Section 550 and CFATS. Most important, it would confirm that the federal program would preempt state programs where the latter ‘‘conflicted with the 

purposes of this title’’ (p. 31). Such ‘‘conflict preemption’ is very important to facilities, and yet gives state and local government broad leeway to craft non-conflicting 

programs. As an example of why this is needed, several states last year tried to prevent facility owners from restricting employees from bringing firearms onto company property. One state is currently considering language which would prohibit 

companies from conducting inspections of entering vehicles. Vehicle screening is a 

fundamental security measure that could not be implemented under that proposed 

statute. As you can see, therefore, preemption can be essential to assuring security. 

Another valuable feature of the discussion draft is its requirement that DHS give 

a facility the reasons why it was assigned to a particular risk tier (p. 7). It is not 

clear that DHS will do this under CFATS. 

If the discussion draft is merely a vehicle for identifying issues like these, then 

it will have served a useful purpose. But BASF is concerned that the Subcommittee 

intends to seek enactment of the bill or something close to it. We had understood 

that Congress wanted prompt action after so many years of delay. BASF certainly 

does. We ask you not to stop the progress that DHS has achieved in the last year. 

Instead, please support DHS with more resources so that it can get the job done, 

and support us by backing implementation of CFATS and not changing course in 

mid-stream. 

Thank you again for the opportunity to appear before you. I look forward to answering any questions you may have. 

Ms. JACKSON LEE. I now recognize Mr. Setley to summarize his 

statement for 5 minutes. 

STATEMENT OF GERALD C. SETLEY, VICE PRESIDENT, REGION 

8 DIRECTOR, INTERNATIONAL CHEMICAL WORKERS UNION 

COUNCIL, UNITED FOOD AND COMMERCIAL WORKERS 

UNION 

Mr. SETLEY. Thank you, Chairwoman Jackson Lee and members 

of the subcommittee. We are especially pleased that Chairman 

Thompson is sitting in today. 

I am here today representing the 20,000 members of the International Chemical Workers Union Council of the United Food and 

Commercial Workers Union. UFCW’s chemical workers produce everything from petroleum-refining chemicals to over-the-counter 

pharmaceuticals. Every day our members work with extremely hazardous substances. We have a vital interest in their safe production, both for our own health and for that of neighboring communities. We believe we bring to the table meaningful involvement of 

the people who have the most experience and are the most endangered in any plan, the workers. It is therefore an honor for me to 

appear before you to address this national security concern on behalf of our members who work in chemical plants. 

I think we can all agree chemical plants in the United States 

have great potential as terrorist targets. This possibility threatens 

the safety of workers in the plants, as well as people living in the 

surrounding communities. This subcommittee has taken some important steps to improve chemical security, and I would like to 

thank you for your work on this issue. 

21 

Comprehensive chemical security legislation is the next step in 

bringing control to this complex problem. Today I will discuss just 

a few of the issues we feel necessary for comprehensive chemical 

facility security legislation. 

First would be worker involvement. In the control of occupational 

hazards, it has long been recognized that workers have the knowledge and experience on all operations in a plant. Chemical workers 

have unique institutional expertise and training that must be utilized in developing any security plans. The Chemical Council feels 

strongly that including workers in the process will enhance security and protect against terrorist attacks at chemical facilities. Legislation must not be silent on this subject, and must include a requirement for worker and union involvement in the development of 

security plans, safe operations, and secure shutdowns. 

Whistleblower protection. Fear is a fact of life in all too many 

workplaces, and jeopardizing one’s job by blowing the whistle is a 

risky thing to do. Workers who bravely come forward to protect 

themselves, their coworkers and the communities around the plant 

should not fear for their jobs when they speak out. Whistleblower 

protection must be included to protect the free exchange of ideas, 

to improve and enhance security, and to ensure that measures that 

are proposed on paper are actually implemented. 

Safer technologies are also a key to any comprehensive plan, in 

our belief. The evaluation of safer technology in high-risk facilities 

is especially important to chemical workers. We understand that no 

system of plant perimeter security or background checks will ever 

assure complete plant security or end the possibility of a terrorist 

attack. So while we must do everything we can to assure chemical 

plant security, considering safer technology by substituting less 

dangerous formulations, stronger or smaller containers, or engineered improvements will minimize the consequences of an accident or attack at a chemical plant. 

The evaluation of safer technology is a vital step to significantly 

reduce the risk of catastrophic release of chemicals from intentional 

attacks or unintentional disasters. Chemical workers also believe 

any chemical facility security legislation should not supersede the 

National Labor Relations Act protections. 

The International Chemical Workers Union Council believes this 

subcommittee must act now to ensure the safety of our chemical 

workers and of all Americans. We urge the subcommittee to act to 

avoid a terrorist attack by passing legislation that includes meaningful worker involvement, whistleblower protections, and the use 

of safer technology. We look forward to working with every member 

of this committee, the full committee, and the whole House of Representatives to address this important issue. Again, thank you for 

your time, and I would be pleased to answer any questions you 

have. 

Ms. JACKSON LEE. Thank you very much for your testimony. 

[The statement of Mr. Setley follows:] 

PREPARED STATEMENT OF GERRY SETLEY

Thank you Chairman Thompson, Ranking Member King, and Members of the 

Committee for holding this important hearing and for the opportunity to testify. I 

am here today representing members of the International Chemical Workers Union 

Council of the United Food and Commercial Workers Union. The ICWUC, which 

22 

was founded in 1944, represents more than 20,000 chemical workers in 32 states. 

In 1996, we merged with the UFCW and this mutually beneficial partnership continues to serve our members well. 

We strongly support improving chemical plant security policy that makes solid 

and substantial improvements in the security of the nation’s chemical plants. 

UFCW chemical workers work in many different manufacturing industries including 

petroleum and coal products, fertilizers, pharmaceuticals, pesticides and other agricultural chemicals in smelters and refineries as well as natural gas distribution and 

power plants. Every day, in these facilities, our members work with extremely hazardous substances and are crucially interested in their safe production both for their 

own health as well as for the neighboring communities. Despite our small size, we 

have been active in a variety of health and safety issues for over 30 years. 

We have supported effective standards and laws to protect both our members and 

the public. We believe strongly that we bring to the table the meaningful involvement of the people who have significant experience and are the most endangered 

in a plant—the workers. Workers have the institutional expertise and resources on 

occupational health and safety and need to be formally involved in developing vulnerability assessments and security plans. 

It is therefore an honor for me to appear before you to address this national security concern on behalf of our members who work in chemical plants. In 1974, I was 

hired as a Research and Development Technician at Kawecki-Berylco Industries in 

Pennsylvania, which is now Cabot Corporation. I worked as an analytical technician 

for Cabot Corporation for 31 years and served the local union in various elected positions. In 2005, I was hired by the union as a General Organizer/ Representative 

and was elected Vice President in October 2007. At Cabot Corporation, we handled 

large quantities of many of the substances that this Committee has focused on in 

your discussions on chemical security. I have also toured many facilities that face 

the same potential dangers. I have seen situations where these hazards are well addressed and many where they are not. 

I think we can all agree that chemical plants in the United States have a great 

potential to be terrorists’ targets. This potentially threatens the safety of workers 

in the plants as well as people living in the surrounding communities. Security experts and numerous federal agencies, including the Department of Homeland Security (DHS) and the U.S. Army Surgeon General, have repeatedly warned of the terrorist vulnerability of U.S. chemical facilities and a Federal Interagency Task Force 

continues to meet on the dangers of Toxic Industrial Chemicals. 

An accident or terrorist attack on a facility using hazardous chemicals would endanger thousands of lives. Workers and the public would face short and long term 

health threats as a result of such a disaster. A chemical disaster would also severely 

pollute our air and water sources. A 2001 U.S. Army Surgeon General study estimated that 900,000 to 2.4 million people could be killed or injured in a terrorist attack on a U.S. chemical plant in a densely populated area. The Environmental Protection Agency (EPA) calculated that at least 100 chemical plants threaten a million 

or more people. Clearly, we are talking about the potential of an enormous disaster. 

This Committee has taken some important steps to improve chemical security and 

I would like to thank you for your work on this issue. Comprehensive chemical security legislation is the next step in bringing better control to a complex problem. It 

is also a necessary step to fix the significant and large problems associated with current DHS rules. We have serious concerns with the current DHS regulations and 

believe they will do little to enhance the security of chemical facilities or the safety 

of workers and the public. 

The interim chemical security program enacted over your objections last year is 

woefully inadequate. April’s final Department of Homeland Security regulations 

failed to improve upon the underlying flaws of last year’s rider and were a large 

step backwards from legislation that was being considered by Congress. Current 

regulations pre-empt stronger, more protective state regulations; do not clearly define chemical worker involvement or consultation in the facility process, including 

inspections or their safety committees; and contain no whistleblower protections. In 

addition, there is growing evidence that some employers are using DHS’ regulations 

to illegally limit union staff’s entry into plants and to harass or fire members. Finally, there is no requirement to evaluate how safer and more secure technologies 

might reduce the risk from an attack. My testimony today will concentrate on these 

last five issues—denial of staff entry into chemical facilities, workers’ contractual 

rights to due process, involvement of workers in security plans, strong whistleblower 

protection, and use of safer technology. 

Denial of Staff Entry to Facilities 

23 

The Chemical Workers Council believes that companies can easily abuse the DHS 

regulations to deny our union staff legitimate and legal entry into chemical facilities. Currently, under the National Labor Relations Act (NLRA), union officials have 

access to union members at plants. Yet, under the new rule, companies can deny 

access based on a ‘perceived’’ security threat. The Subcommittee on Emerging 

Threats, Cybersecurity, Science and Technology has heard from labor representatives who were denied entry to investigate a worker killed on the job. While we have 

been fortunate that none of our employers have ever denied the union access when 

investigating a fatality, we have not had any occupational fatalities in the last year 

since the regulation came out. We do believe, however, that it is imperative that 

we consider what might happen if we are denied access, and we must ensure that 

any new security regulations protect labor union’s rights if some employers take unlawful action in the name of security. 

Given the NLRA and employers’ requirement to provide union access to members, 

we ask, ‘‘What would be the harm in clearly stating that right in the legislation?’’ 

After all, ICWUC has witnessed management denying federal health officials their 

rights at a facility where there may be a potential health hazard. Current U.S. law 

clearly states that these public health officials have these rights yet they are denied. 

Although this is not due to the current rules, the reality is that some companies 

view their facilities as theirs and theirs alone and will find any excuse they can to 

deny health officials or labor representatives their rights. We simply cannot give 

these unscrupulous companies opportunity to deny access from union representatives. We must keep the doors open for legally recognized union visits in order to 

not hinder any investigation of plant hazards or other problems. 

Workers’ Contractual Rights to Due Process 

We are also very concerned about the harassment and firing of workers under the 

guise of ‘‘homeland security.’’ As a union representative, I have spent many hours 

fighting for our members’ jobs and for due process. Recently one of our companies’ 

claimed that due to the Patriot Act, they had the right to fire ten workers who had 

not fully explained past criminal convictions. The company argued that the Patriot 

Act required a clean record and therefore they were required to re-examine all workers’ original application forms and ask for current arrests and convictions. While we 

do not advocate criminal activity or hiring workers with criminal records, this company went well beyond the regulations on felony convictions to fire workers with 

misdemeanors regardless of their job performances. The union grieved the firings 

and was pleased to win three members their jobs back. Yet, they should never have 

been fired or have to fight for their jobs. There is no reason for companies to claim 

‘‘their hands are tied’’ under the Patriot Act or Homeland Security regulations as 

hardworking Americans lose their jobs. 

Clearly, there are other ways the government can handle true threats to our country and our national security—rather than weed out workers who made a mistake 

early in their lives and have since led lawful lives. Again, we are not saying that 

a criminal record should not be considered in hiring, but using the Patriot Act or 

DHS regulation to fire workers who pose no national risk is outrageous. Good chemical worker jobs are not easy to come by and we do not believe companies, in the 

name of national security, should be allowed to arbitrarily fire hard working wage 

earners. Workers rights and job security should be an important part of any future 

chemical security legislation. 

In cooperation with other labor unions, including the International Association of 

Machinists, the United Automobile Workers of America and United Steel Workers, 

ICWUC sent a letter to the Department of Homeland Security in August asking for 

clarification of the application of these recent regulations with long established labor 

rights. We asked DHS to issue a statement that their current rules do not conflict 

or take precedence over the rights of workers or their bargaining representatives 

under the National Labor Relations Act. Despite the letter being sent months ago, 

we have yet to receive a response. We believe it is imperative that future legislation 

includes a clear statement to this affect. 

Involvement of Workers in Security Plans 

In the control of occupational hazards, it has been long recognized that workers 

have the direct and current knowledge and experience of plant operations. This 

knowledge is invaluable in solving problems in the plant’s operations. Certainly, 

chemical workers have unique institutional expertise and resources on occupational 

health, safety, and training that must be formally involved in developing any new 

security plans. It is simply illogical that workers’ expertise—the same expertise that 

keeps the plants running everyday—would not be utilized on this critical security 

responsibility at chemical plants. ICWUC feels strongly that including chemical 

24 

workers in this process will enhance security and protect against terrorist attacks 

at chemical facilities. That is why employee consultation is so crucial. 

After all, who better to know facilities’ weaknesses than the workers who work 

in the plant? If you want to know if security guards are doing their job, ask the 

workers who go through the gates every day. If you want to know the exact location 

where hazardous materials are stored and how to protect them, ask the worker who 

loaded the chemicals. If you want to know if training is really effective, ask our 

members who had the training. And, if you want to know if backup systems will 

work in an emergency, just check with the chemical workers. 

Chemical workers are responsible for all the raw materials coming into the plant 

as well as the final product that leave the plant. We are responsible for hooking 

up the rail cars to off-load the chemicals, transfer them in the plants and then work 

near the chemicals in the plants. These responsibilities make chemical workers the 

first line of defense. That is why any legislation must establish employee involvement in the drafting of each site’s chemical security plan. Legislation must require 

companies to consult with employees on the plan and ensure that employees can 

join facility inspections. It should also allow appropriate chemical workers to be consulted in the course of such inspections and audits. 

Workers and their unions can be vital participants in plant safety and security. 

Leaving workers and their representatives out of these discussions will make security plans less effective and leave our country more vulnerable. Legislation must not 

be silent on this subject and must include a requirement for worker and union involvement in all facets of the operations, including the security plans, top screen 

process, safe operations and emergency shutdowns. 

Strong Whistleblower Protection 

Hand in hand with the involvement of site workers is the defense of their jobs 

if they face disciplinary procedures for reporting any significant security weaknesses 

at their facility. Fear is a fact of life at all too many workplaces and jeopardizing 

one’s job by blowing the whistle is a risky thing to do. As mentioned earlier, the 

defense of members’ jobs is regrettably a common activity unions are forced by necessity to do. Workers can find their jobs on the line as they try to protect their 

facility from potential attacks by reporting security problems. 

Workers who bravely come forward to protect themselves, their co-workers, and 

communities around the plant, should not fear losing their jobs when they speak 

out. Whistleblower protection must be included to protect the free exchange of ideas, 

to improve and enhance security and to ensure that measures that are proposed on 

paper are actually implemented. We urge this Committee to include strong whistleblower protection in any legislation in order to protect our first line of defense—the 

workers. It is the only way any new law will be truly effective. 

Use of Safer Technology 

Requiring the use of safer technology in high risk facilities, as in H.R. 5695, is 

especially important to chemical workers for a number of critical reasons. We understand that no system of plant perimeter security and background checks will ever 

assure complete plant security or end the possibility of a terrorist attack. To assume 

that security checks, cyclone fences and registering toxic chemicals will deter attacks, 100% of the time is unrealistic. 

While we must do everything we can to build chemical plant security, considering 

safer technology—be it substituting less dangerous formulations, stronger or smaller 

containers, or various engineering steps—can minimize the consequences of an accident or attack at a chemical plant. The use of safer technology is a vital step to 

significantly reduce the risk of a catastrophic release of chemicals from intentional 

attacks or unintentional disasters. 

The temporary chemical security statue, the ‘‘Department of Homeland Security 

Appropriations Act of 2007’’ actually prohibits the DHS from requiring any ‘‘particular security measure’’ such as IST. As a result, the DHS current rules do not 

require any technological evaluation. We understand that safer processes may not 

be feasible in all circumstances, either technologically or economically, but we believe that safer technology should always be considered in any security plan for all 

high risk facilities regardless. We know that safer solvents or formulations can be 

substituted for more dangerous ones. The quantities of these hazardous chemicals 

can be reduced, stronger containers may be used, vulnerable sections can be reinforced and maintenance schedules can be reviewed. It just does not make sense for 

a chemical security rule not to include an inherently safer technology component. 

We believe that all high risk facilities should be required to include an analysis 

in their vulnerability assessment including substitution, engineering controls and 

administrative measures. The Department should have the power to implement 

those measures that it deems to be feasible and cost effective as required in H.R. 

25 

5695. These measures are critical to minimize the release of toxic substances and 

mitigate the catastrophic consequences. 

We must not forget that we are not only addressing the prospect of a terrorist 

attack when discussing the use of safer technology. Every week chemicals are released in a wide range of accidental situations and natural disasters. As you address 

chemical security, Congress must take this opportunity to mandate steps that will 

simultaneously minimize the national threat of not only attacks, but releases which 

are not hypothetical but a reality that chemical workers and the public living 

around plants experience frequently. President George W. Bush stated in his 2003 

Homeland Security Presidential Directive # 8 on National Preparedness, that we 

must ‘‘strengthen the preparedness of the United States to prevent and respond to 

threatened or actual domestic terrorist attacks, major disasters, and other emergencies by requiring a national domestic all-hazards preparedness goal.’’ Your work 

can take a large step in fulfilling all of this Directive’s elements. 

Although I understand that this Committee’s mandate is solely the protection of 

our facilities from terrorist attack, the measures that will minimize a hazardous release from an intentional attack will also minimize the release that is a direct result 

of a hurricane, earthquake, tornado or accident. The dangers we face in a chemical 

release come from a variety of directions, but the use of safer technology will minimize all these risks. 

The International Chemical Workers Union Council believes this Committee must 

act now to ensure the safety of our chemical workers and all Americans. DHS’s Regulations are flawed and it is imperative that Congress moves forward on true chemical security reform. We strongly support passage of legislation (H.R. 5695) that is 

similar to legislation that passed out of this Committee last year. We urge the Committee to act now, preemptively, to protect America from a terrorist attack by passing legislation that includes provisions to protect the rights of workers, site investigations, whistleblower protections, and the use of safer technology. 

The ICWUC looks forward to working with every Member of this Committee and 

the House of Representatives to address this crucial problem. Again, I thank you 

for your time and would be pleased to answer any questions that you may have. 

Ms. JACKSON LEE. I now recognize Mr. Sondermeyer to summarize his statement for 5 minutes. 

STATEMENT OF GARY SONDERMEYER, DIRECTOR OF 

OPERATIONS, NEW JERSEY DEPARTMENT OF 

ENVIRONMENTAL PROTECTION 

Mr. SONDERMEYER. Good morning, Chairwoman Jackson Lee, 

Chairman Thompson. Congressman Pascrell, great to see you 

again, sir. I really appreciate the opportunity to appear before you 

today. 

I would like to briefly summarize New Jersey’s experience over 

the past 6μyears in implementing our homeland security program, 

and then specifically focus on our experiences with inherently safer 

technology evaluation. In very brief summary, in New Jersey, our 

homeland security statute was passed in October of 2001, 1μmonth 

after 9/11. We had chemical facility standards adopted in September ofμ2003, and then more stringent chemical standards put 

in place in November ofμ2005. At this point we do, in New Jersey, 

have 4 years of on-the-ground experience in implementing our 

homeland security program, which covers, in the context of chemical facilities, about 450 sites. All of these facilities at this point 

have addressed site-specific vulnerability assessment, target-hardening needs assessment, information and cybersecurity protocol development, badging and credentialing, worker training, emergency 

planning and response, and preparedness exercising. In addition, 

for a smaller universe of sites, which are referred to in New Jersey 

as Toxic Catastrophe Prevention Act sites, we had an additional requirement to perform an inherently safer technology evaluation. 

26 

More specifically, on the IST, each of the facilities was required 

to review reducing the amount of extraordinarily hazardous substances; substituting less hazardous materials; using extraordinarily hazardous substances in the least hazardous process, form 

or condition; and designing equipment and processes to minimize 

the potential for equipment or human error. 

I am very happy to report that we are extremely pleased with 

the results of our inspections and our assessment. With respect to 

IST, all of the 45 facilities required to conduct the analysis did so. 

Each has documented that they have made changes to improve inherent safety based on the IST analysis or other process hazard 

consequence analysis they did previously. Thirty-two percent gave 

us a specific schedule for implementing additional inherent safety 

programs at their plants, and an additional 19 made commitments 

to make changes, but have yet to give us a schedule. 

So, taking a step back, 50μpercent of the universe of facilities required to do the IST analysis made commitments to go beyond 

where they are today to improve inherent safety. 

It is very clear to us from our experiences that IST analysis is 

not overly burdensome on the chemical industry, and we feel that 

it is good business practice from an economic, worker safety, and 

a regulatory compliance standpoint. 

If I may go a little bit beyond IST, the draft Chemical Facility 

Antiterrorism Act of 2008, New Jersey does continue to have serious concern with the issue of preemption, which Governor Corzine 

has gone on record to comment on previously. Section 2107 clearly 

allows States to retain the authority to adopt and enforce any regulation, requirement or standard of performance that relates to environmental protection, health, and safety. 

We would respectfully urge Congress to equally be clear that 

States retain the unqualified authority to adopt enhanced security 

requirements based upon risk and consequence factors within their 

particular State. This could be accomplished by simply deleting the 

phrase at the end of section 2107A, in quotes, ‘‘unless the State 

regulation, requirement, or standard of performance would conflict 

with the purposes of this title.’’ 

If I may, just one final policy point I would like to respectfully 

make. We do strongly recommend consideration of permissive enabling language to allow delegating oversight responsibility to State 

governments by DHS. From our experiences in the environmental 

regulatory world, this has been standard practice for 20 or 

30μyears where the United States Environmental Protection Agency will be administering a Federal statute, Clean Air Act, Clean 

Water Act, RCRA, whatever that would be, but they have the authority to delegate to the States the day-to-day operational authority to implement the program. 

We make this recommendation respectfully because at this point 

we are 6 years into implementing a program, and we think it 

would work very well if DHS, upon review and finding equivalency 

in our program and finding that it is suitable, to allow it to mesh 

together so that we can perform efficiently in government and 

dovetail and complement the Federal initiative without in any way 

jeopardizing what New Jersey has already put in place. 

27 

Thank you very, very much for this great opportunity, and I 

would be happy to answer any questions at the appropriate time. 

Thank you. 

Ms. JACKSON LEE. Thank you very much for your testimony. 

[The statement of Mr. Sondermeyer follows:] 

PREPARED STATEMENT OF GARY SONDERMEYER

Good morning Chairman Thompson, ranking member King and Members of the 

House Committee on Homeland Security. My name is Gary Sondermeyer and I 

serve as the Director of Operations for the New Jersey Department of Environmental Protection (DEP). With me is Paul Baldauf, Assistant Director of our Radiation Protection and Release Prevention Element. Paul and I have lead responsibility for implementation of New Jersey’s homeland security program for chemical 

facilities under the direction of DEP Commissioner Lisa P. Jackson and Director 

Richard L. Canas of our Office of Homeland Security and Preparedness (OHSP). I 

would first like to sincerely thank the Committee for the opportunity to appear before you to discuss the Chemical Facility Anti-Terrorism Act of 2008 and specifically 

the ongoing inherently safer technology and chemical sector security initiatives 

within the State of New Jersey. 

Chemical plant security is a subject that Governor Jon S. Corzine and every New 

Jersey resident regard with urgent concern. We view our Chemical Standards, including requirements for inherently safer technology evaluation, as vital to providing New Jersey with an accurate reflection of our current state of security preparedness, as I will further outline in my testimony. 

In response to the risks posed by a possible terrorist attack on New Jersey’s 

chemical facilities, New Jersey has taken significant steps to strengthen the security 

precautions at these plants. At this point we have four years of on the ground experience in implementing a homeland security program for all chemical facilities operating in our State. Best Security Practices were adopted for the Chemical Sector 

working cooperatively with industry leaders on September 18, 2003. Since November 2005, New Jersey went further and adopted enforceable plant security practices 

for its chemical facilities as well as facility security assessments to evaluate potential security threats and vulnerabilities. The facilities that pose the most significant 

risks are subject to the State’s Toxic Catastrophe Prevention Act (TCPA) program, 

which incorporates EPA’s Risk Management Program but is stricter and broader in 

scope than the 112 requirements. New Jersey’s enforceable plant security practices 

are vital to providing the state with an accurate picture of the current state of preparedness within the Chemical Sector and provide a foundation to move forward 

with the appropriate actions to safeguard our citizens. 

I shall begin with a brief overview of New Jersey’s domestic security preparedness 

activities, and then turn to the specific reasons why the evaluation of inherently 

safer technologies in the chemical industry is of vital importance. 

Overview of New Jersey’s Domestic Security Preparedness Effort 

New Jersey’s unique vulnerabilities have made us a leader among states in initiating and implementing measures to counter potential terrorist operatives, to reduce the risk of attack at critical infrastructure facilities, and to reduce the potential impacts to public health and safety if any such attacks should occur in the future. New Jersey undertakes these efforts through our Domestic Security Preparedness Task Force (Task Force), chaired by Director Richard L. Canas of our OHSP. 

As Director of Operations of the Department of Environmental Protection (DEP), 

I serve as the DEP Commissioner’s Task Force representative and the liaison to the 

pharmaceutical and biotechnology, chemical, nuclear, petroleum, wastewater, and 

dam safety sectors of our critical infrastructure. DEP shares responsibility for the 

water sector as well in cooperation with the New Jersey Board of Public Utilities. 

Through the Task Force and the OHSP, I also participate in New Jersey’s preparedness and response effort for other sectors. 

The Task Force has undertaken a comprehensive program to reduce terror risk, 

to ensure preparedness at critical infrastructure facilities, and to test the efficacy 

of both public agencies and the private sector in responding to acts of terrorism. 

Every Task Force agency and every sector of our critical infrastructure has developed, through a public-private collaboration, a series of ‘‘Best Practices’’ for domestic 

security. Each set of Best Practices was reviewed and approved by the Task Force 

and the Governor. Every Task Force agency and every sector of our critical infrastructure has also participated in appropriate exercises to test the strengths and 

limits of terror detection and response capability. 

28 

New Jersey’s current challenge is to ensure full implementation of security ‘‘Best 

Practices’’ across all sectors, consistent with a policy of ‘‘Zero Tolerance’’ for noncompliance, and to identify those additional regulatory and other measures that are 

appropriate to contend with emerging threats and challenges. Throughout this process, DEP is working with OHSP, our State Police, the Attorney General’s Office and 

private companies within our sectors to reduce or eliminate specific threats that we 

have identified on a case-by-case basis. 

New Jersey’s Toxic Catastrophe Prevention Act (TCPA) Program 

New Jersey has managed an oversight program to increase safety at chemical 

plants and other facilities that store or utilize extraordinarily hazardous materials 

for over 20 years. The Toxic Catastrophe Prevention Act (TCPA) program was created in 1986 as a result of a chemical accident in Bhopal, India that killed thousands of nearby residents. Several chemical facilities in New Jersey had experienced 

minor accidents prior to this time, clearly indicating that a similar risk existed in 

New Jersey. The TCPA requires facilities that handle extraordinarily hazardous 

substances above certain inventory thresholds to prepare and implement risk management plans. The plans must include detailed procedures for safety reviews of design and operation, operating procedures, maintenance procedures, training activities, emergency response, process hazard analysis with risk assessment and self-auditing procedures. An extraordinarily hazardous substance is defined as a substance, 

which if released into the environment would result in a significant likelihood of 

causing death or permanent disability. 

In 1998 the program adopted USEPA’s 112(r) Accidental Release Prevention Program (40 CFR 68) by reference. This program included additional toxic substances 

and highly flammable substances. It also required each facility to complete a worst 

case scenario analysis. The worst case scenario models the resultant toxic cloud to 

a predetermined concentration. The USEPA end point concentrations are approximately one-tenth of the concentration that would cause death to persons exposed. 

On August 4, 2003, the readoption of the TCPA rules added reactive hazards substances to the list of extraordinarily hazardous substances covered under the program. Industrial accidents in New Jersey resulting from reactive hazards demonstrated the need to include reactives under the TCPA program. Owners and operators having listed reactive hazard substances in quantities that meet or exceed 

thresholds are required to develop risk management plans to reduce the risk associated with these unstable substances. In addition, and the focus of this testimony, 

this readoption included a requirement that owners and operators evaluate inherently safer technology for newly designed and constructed covered processes. 

In April, 2007 the DEP proposed amendments to the TCPA rule to require all 

companies subject to the program to evaluate the potential of incorporating inherently safer technology at their facility. This proposal also covers many sectors such 

as food, water/wastewater, and energy which are outside the chemical industry but 

store threshold amounts of extraordinarily hazardous substances. The DEP is currently evaluating comments to the April proposal and expects to issue a final rule 

requiring the evaluation of inherently safer technology at all TCPA sites in early 

2008. 

Chemical Sector Best Practices Standards 

New Jersey recognizes that facilities in the Chemical Sector are diverse in size, 

complexity, and potential for off site impacts to the community and therefore a blanket approach to addressing security concerns may not be practical. The Best Practices represent a risk-based approach to security consisting of a site-specific vulnerability assessment that evaluates threats to a facility’s operation, its particular 

vulnerabilities and likely consequences of a chemical release, and the physical and 

procedural security measures already in place. The Chemical Sector Best Practices 

were predominantly derived from the Security Code of the American Chemistry 

Council’s Responsible Care program. 

Subsequently the Task Force determined that additional measures were necessary 

to ensure that appropriate prevention and response measures are implemented by 

the chemical sector to address emerging domestic security threats. As a result, 

Chemical Sector Best Practices Standards (Standards) were put in place on November 21, 2005. 

The Standards require chemical sector facilities to, among other things: 

• comply with the Chemical Sector Security Best Practices; 

• conduct a terrorism-based security vulnerability assessment; and 

• develop a prevention, preparedness, and response plan to minimize the risk 

of a terrorist attack. 

In addition, chemical sector facilities subject to TCPA are required to conduct a 

review of the practicability and potential for adopting inherently safer technology. 

29 

Inherently Safer Technology 

Facilities required to conduct an inherently safer technology review must evaluate: 

• reducing the amount of extraordinarily hazardous substances materials that 

potentially may be released; 

• substituting less hazardous materials; 

• using extraordinarily hazardous substances in the least hazardous process 

conditions or form; 

• and, designing equipment and processes to minimize the potential for equipment failure and human error. 

I must emphasize that the inherently safer technology requirement under the 

Standards represents a practicability test; it is not mandatory that a covered facility 

implement IST, only that they evaluate. The results of the evaluations are held at 

the facility site, and are made available to DEP inspectors during an on-site visit. 

Compliance with the Standards was required within 120 days of the effective 

date, March 21, 2006. We have been extremely pleased with the compliance levels 

we have seen to our standards. Compliance of the New Jersey requirements exceeded 98 percent. The Standards applied to facilities that are subject to either the Toxic 

Catastrophe Prevention Act (TCPA) or the Discharge Prevention, Containment and 

Countermeasure (DPCC) program, and report under certain Standard Industrial 

Classification (SIC) or North American Industrial Classification System (NAICS) 

codes. Of the total 157 facilities covered under the Standards, 45 are regulated 

TCPA facilities required to perform IST analysis. In all cases, facilities required 

under the Standards to conduct IST review have done so. All of these facilities have 

documented that they have previously implemented IST or similar risk reduction 

measures. 32 percent of the facilities have provided a schedule to implement additional IST or other risk reduction measures, and 19 percent have identified additional IST or risk reduction measures but have not yet scheduled their completion. 

The remaining 49 percent of the facilities had no additional recommendations. It 

should be noted that these are facilities that have been regulated under the TCPA 

program for many years resulting in the past implementation of IST and risk reduction measures. 80 percent of the facilities concluded that at least some of the IST 

or risk reduction measures identified during their evaluation were infeasible for 

their operations. I believe that our compliance results clearly indicate that the evaluation of inherently safer technology is not overly burdensome on industry and is 

an effective tool for critically evaluating the risk reduction opportunities available 

at a specific facility. It is clear to us that IST analysis is simply good business practice for any facility storing or utilizing extraordinarily hazardous materials from an 

economic, worker safety and regulatory compliance standpoint. 

But these measures alone are merely a starting point. Our knowledge of both the 

threat and the appropriate response is evolving daily. As we implement the ‘‘Best 

Practices’’ and work with facilities on site-by-site review of security vulnerabilities, 

we also have begun a public process to review what additional regulatory measures 

may be appropriate to harden potential targets, to reduce risk to surrounding communities, and to involve workers and communities in the process. 

Chemical Facility Anti-Terrorism Act of 2008 

New Jersey has expressed serious concerns on a number of occasions about any 

language in federal regulations that has the potential to preempt existing state 

chemical security initiatives or limit future state actions to address unique 

vulnerabilities. Section 2107. Federal Preemption, clearly allows States to retain the 

authority to adopt and enforce any regulation, requirement, or standard of performance relating to environmental protection, health, or safety. We urge Congress to 

be equally clear that States retain the unqualified authority to adopt enhanced security requirements based upon risk and consequence factors within that State. This 

could be accomplished by deleting the phrase ‘‘unless the State regulation, requirement, or standard of performance would conflict with the purposes of this title’’ from 

Section 2107 (a). 

The proposed Act would capture chemical facilities currently exempt from the existing Chemical Facility Anti-Terrorism Standards, 6 CFR Part 27, expand the universe of regulated sites, and require assessments of methods to reduce the consequences of a terrorist attack at high risk sites. Overall, the Act addresses many 

of the comments previously submitted by New Jersey on 6 CFR Part 27. 

We strongly recommend consideration of permissive enabling language toward 

delegating oversight responsibility to State governments, along with appropriate levels of Federal funding to support homeland security efforts. This would include a 

petition process to DHS by interested State governments and granting of delegated 

authority on a discretionary basis. In the case of New Jersey, the actions taken in 

30 

chemical security preparedness since September 11 have left the State well qualified 

to undertake such delegated responsibilities. State security (Office of Homeland Security and Preparedness and New Jersey State Police) and the chemical process 

safety experts (Department of Environmental Protection) are intimately familiar 

with the chemical facilities in question and have conducted multiple security and 

safety inspection at each site over the last five years. Leveraging and augmenting 

State resources is vital to ensuring that our chemical facilities are adequately protected from acts of terrorism. 

Conclusion 

Although New Jersey took critical steps to address chemical facility security well 

over four years ago, we recognize that most states have not taken formal regulatory 

action and therefore, federal regulations to create minimum national chemical facility security standards are essential. At the same time, it is also important not to 

penalize those pro-active states and allow the states to retain the authority to adopt 

enhanced security requirements if states determine they are necessary. No two 

states are alike, and the risks posed by every facility present unique challenges 

based on location, population size, and other factors. Security standards that are appropriate to safeguard a facility in a rural area, for example, may not be sufficient 

for a facility located in one of the most densely populated and heavily traveled sections of the country. Simply put, one size does not fit all. 

New Jersey’s critical infrastructure concentration and high population density 

may have no comparison in the United States; our state needs to retain the ability 

to go beyond any Federal security baseline standard to ensure that our preparedness is measured in line with our potential vulnerabilities. We need federal standards, but they must be a floor ensuring a base level of protection, not a ceiling that 

constrains our ability to protect our citizens, as well as our neighbors. We must emphasize our vehement objection to any preemption language that would limit New 

Jersey’s ability to maintain our current standards or if necessary impose additional 

requirements in the future to protect our citizens. Governor Corzine has gone on 

record previously to express his concern for the safety of New Jersey’s residents. In 

serving Governor Corzine, it is our duty to protect the citizens of our State and it 

is imperative that federal legislation enhances, rather than undermines New Jersey’s ability to protect our chemical sector critical infrastructure. 

I once again would like to thank you Chairman Thompson, ranking member King 

and Members of the House Committee on Homeland Security. On behalf of DEP 

Commissioner Lisa P. Jackson and Director of Homeland Security and Preparedness 

Richard L. Canas, I sincerely want to thank you for the opportunity to share some 

of New Jersey’s experience in implementing our chemical security and inherent safety program since the passage of the New Jersey Domestic Security Preparedness Act 

in October, 2001. We would be happy to entertain any questions you may have and 

are available at any time should additional information be valuable to the critical 

work of your Committee. 

Ms. JACKSON LEE. And I now recognize Dr. Mannan to summarize his statement for 5 minutes. 

STATEMENT OF M. SAM MANNAN, PE, CSP, PROFESSOR AND 

DIRECTOR, MARY KAY O’CONNOR PROCESS SAFETY 

CENTER, TEXAS A&M UNIVERSITY SYSTEM 

Mr. MANNAN. Chairwoman Jackson Lee, Chairman Thompson, 

and members of the subcommittee, my name is Sam Mannan, and 

I am director of the Mary Kay O’Connor Process Safety Center and 

professor of chemical engineering at Texas A&M University. The 

center seeks to develop safer processes, equipment procedures, and 

management strategies that would minimize losses in the process 

industry. 

I also want to take this opportunity to thank Chairwoman Jackson Lee for her kind comments about Texas A&M University and 

the role we play in educating Texans and the Nation. 

First I want to thank this committee and the U.S. Congress for 

addressing chemical facility antiterrorism, and giving the Department of Homeland Security the necessary authority to regulate security in the chemical industry. I applaud the subcommittee for 

31 

holding today’s hearing on chemical security regulations and their 

impact on the public and private sector. This is a subject that is 

of extreme importance to our Nation, and I am pleased to be able 

to share my experience and opinions, as well as continue to serve 

as a resource for the Federal Government on this important issue. 

The U.S. Congress must give the Department of Homeland Security permanent and continuing authority to regulate chemical security in the United States. While many facilities are voluntarily taking appropriate measures, I am concerned that many are not. A 

regulation that creates a minimum and level playing field is very 

important. The inclusion of water-processing facilities in the act is 

very important and necessary. As the 9/11 events have shown, terrorists are more likely to use easily available materials to strike at 

us. 

Although section 2110 of the act does not refer to the term ‘‘inherent safety’’ or the term ‘‘inherently safer technology,’’ compliance with section 2110 deals exclusively with the implementation 

of inherently safer technologies and approaches. While there is no 

question that options with regard to inherent safety should be considered, we must understand and account for the challenges and 

difficulties in implementing inherently safer technologies and options. 

In this context, the Mary Kay O’Connor Process Safety Center 

published a white paper outlining challenges faced in evaluating 

and implementing inherently safer designs. I have provided the 

white paper as an attachment to my testimony. 

We believe that a coordinated, long-term effort involving government, industry, and academia is essential to develop and implement inherently safer technologies. A similar collaborative approach has shown success in related areas, such as green chemistry, energy conservation, and sustainable development. I believe 

that science should precede regulations. I do not believe that the 

science currently exists to quantify inherent safety. 

This act and any actions taken as a result of this act should not 

create unintended and unwanted consequences. Instead of prescriptive requirements for inherently safer technology and approaches, 

facilities should be allowed the flexibility of achieving a manageable level of risk using a combination of safety and security options. The current language in the bill is far too prescriptive, and 

focused much too heavily on only one method of reducing the consequences of terrorist attack. All methods of reducing vulnerability 

should be considered on a case-by-case basis, and the implementation of any one particular method should not take or appear to take 

precedence over the others. 

Whether national or man-made, disasters have continued to happen. However, as we have seen with the 9/11 events, Hurricanes 

Katrina and Rita, and the chemical incidents such as the Bhopal 

disaster, planning and response is crucial in being able to reduce 

the consequences and recover from the disaster more rapidly. In 

this regard, it is essential to conduct vulnerability analysis, response and recovery planning at the plant-specific level, the area— 

and region-specific level, and national level. The long-term goal is 

to develop technology and know-how with regard to resilient engineered systems and terrorism-resistant plants. In this respect, reVerDate Nov 24 2008 08:46 Nov 10, 2009 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-89\48984.TXT HSEC PsN: DIANE
32 

search and technological advances are needed in many areas, such 

as biochemical detection, sensors, and self-healing materials. Protection of the chemical infrastructure, like many of the challenges, 

requires the commitment and effort of all stakeholders. 

In closing, I again applaud the U.S. Congress for providing leadership in this important area of chemical security. It is clear that 

many companies are taking reasonable and responsible steps in 

chemical security; however, all facilities that handle, store, or 

transport hazardous materials should be required to take such 

steps. That is why government must develop and enforce good 

science-based regulation that sets the minimum and necessary 

standards for chemical security. These regulations should be based 

upon good science, aimed at making the industry secure, avoid 

overregulation, and create a level playing field. Only through a 

comprehensive, uniform, and risk-based approach can we protect 

the people and communities of our Nation, as well as protect our 

Nation’s critical chemical infrastructure. I am encouraged by the 

leadership of Congress and the continued effort to seek expertise 

and opinion from all stakeholders. 

Thank you for inviting me to present my opinions, and I would 

be happy to answer any questions. 

Ms. JACKSON LEE. Thank you. 

[The statement of Mr. Mannan follows:] 

PREPARED STATEMENT OF M. SAM MANNAN, PHD, PE, CSP 

Introduction 

Chairwoman Jackson Lee, ranking member Lungren and members of the Subcommittee, my name is M. Sam Mannan and I hold a BS, MS, and PhD in chemical 

engineering. I am a registered professional engineer in the states of Louisiana and 

Texas and I am a certified safety professional. I am a Fellow of the American Institute of Chemical Engineers and a member of the American Society of Safety Engineers, the International Institute of Ammonia Refrigeration, and the National Fire 

Protection Association. I am Director of the Mary Kay O’Connor Process Safety Center, holder of the T. Michael O’Connor Chair I in Chemical Engineering, and Professor of Chemical Engineering at Texas A&M University. The Center seeks to develop safer processes, equipment, procedures, and management strategies that will 

minimize losses in the process industry. My area of expertise within the chemical 

engineering discipline is process safety. I teach process safety engineering both at 

the undergraduate and graduate level. I also teach continuing education courses on 

process safety and other specialty process safety courses in the United States and 

overseas. My research and practice is primarily in the area of process safety and 

related subjects. The opinions I present today both in my written statement and oral 

testimony represent my personal position on these issues. These opinions are based 

on my education, experience, and training. 

First, I want to thank this Committee and the US Congress for addressing Chemical Facility Anti-Terrorism and giving the Department of Homeland Security the 

necessary authority to regulate security in the chemical industry. I applaud the 

Subcommittee for holding today’s hearing on chemical security regulations and their 

impact on the public and private sector. This is a subject that is of extreme importance to our nation, and I am pleased to be able to share my experience and opinion 

as well as continue to serve as a resource to the federal government on this important issue. 

Background 

Hazardous materials can be grouped into three tiers of vulnerability categories. 

The first category includes the stationary facilities that are members of major industry associations. Even though these facilities have large inventories of hazardous 

materials and are quite visible, they are the best prepared against attack because 

of voluntary programs that have been developed and implemented. The second tier 

of vulnerability category includes smaller and medium-sized facilities that manufacVerDate Nov 24 2008 08:46 Nov 10, 2009 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-89\48984.TXT HSEC PsN: DIANE
33 

ture or use chemicals but may or may not be members of any industry associations. 

These facilities are less visible, but are also, in general, less prepared and more 

widely distributed. Finally, the third category of vulnerability includes all hazardous 

materials that are in transit (by whatever means) throughout the United States. In 

addition to being present almost anywhere in the United States at any given time, 

this category also represents high visibility and the highest vulnerability. It could 

also be argued that this category is the least prepared to deal with intentionally 

caused catastrophic scenarios. 

Some pertinent subjects of interest with regard to attacks on the chemical infrastructure are: active protection measures; passive protection measures; vulnerability 

analyses, response and recovery plans; and long-term needs and priorities. Active 

protection measures include increased security, limited access to facilities, and background checks. Examples of passive protection measures include development of exclusion areas and process and engineering measures. 

Vulnerability analysis, response, and recovery plans are needed not only to help 

devise the prevention and protection plans, but also to develop the response and recovery plans. In this respect, it must be mentioned that most of the large, multinational facilities that are members of major industry associations have voluntarily 

conducted some form of vulnerability analysis. What is not clear is whether these 

analyses have been used to integrate planning for response and recovery efforts in 

coordination with local agencies and the public. One very stark lesson from the 9/ 

11 events is that the ‘‘first’’ first-responders are usually members of the public. Additionally, area—and region-specific vulnerability analysis and assessment of infrastructure availability for response and recovery have not been conducted. Finally, 

a national vulnerability analysis and assessment of infrastructure availability for 

response and recovery is a critical need. 

Whether natural or man-made, disasters will continue to happen. However, as we 

have seen with the 9/11 events, hurricanes Katrina and Rita, and chemical incidents 

such as the Bhopal disaster, planning and response is crucial in being able to reduce 

the consequences and to recover from the disaster more rapidly. In this regard, it 

is essential to conduct vulnerability analysis, response, and recovery planning at the 

following three levels: 

• Plant-specific vulnerability analysis and assessment of infrastructure 

availability and preparedness for response and recovery is needed. As mentioned earlier, most of the large multi-national facilities that belong to prominent industry associations have voluntarily conducted some form of vulnerability analysis. What is not clear is whether these analyses have been used to 

integrate planning for response and recovery efforts in coordination with local 

agencies and the public. 

• Area—and region-specific vulnerability analysis and assessment of infrastructure availability for response and recovery should be conducted. Each 

area- and region-specific analysis should include an assessment and planning 

for evacuation and shelters. 

• National vulnerability analysis and assessment of infrastructure availability for response and recovery is critically needed. In doing this national 

analysis, impact on international issues and criteria should also be considered. 

Long-term Goals and Priorities 

Long-term goals and priorities to prevent and/or reduce the consequences of intentional catastrophic scenarios require clear thinking and hard work. While no one 

would argue that making hazardous materials less attractive as a target should be 

a goal that all stakeholders should accept, differences arise in how we realize that 

goal. 

Inherent safety options can and should be considered; however, we must be aware 

of the differences in implementing inherent safety options for existing plants, as 

compared to new plants. Also, in some cases, a seemingly clear choice with regard 

to inherent safety may create some undesired and unintended consequences. Issues 

such as risk migration, reduction of overall risk, and practical risk reduction should 

be evaluated whenever an inherent safety option is considered. 

Another long-term goal is to develop technology and know-how with regard to resilient engineered systems and terrorism-resistant plants. In this respect, research 

and technological advances are needed in many areas, such as bio-chemical detection, sensors, and self-healing materials. Protection of the chemical infrastructure, 

like many other challenges, requires the commitment and effort of all stakeholders. 

I feel very strongly that science should precede regulations and standards. With 

regard to science and technology investments, many initiatives have been proposed 

34 

and are being implemented. However, some important additional initiatives that 

should also be considered are given below: 

1. The fact is that the chemical infrastructure and all components including the 

individual sites, supply, and delivery systems were never built with terrorism 

in mind. Research must be conducted to determine how we might have designed 

and built the chemical plants and the infrastructure had we considered these 

threats. The ultimate goal for such research would be two-pronged. First, determine options for what can be feasibly implemented for existing plants. Second, 

if necessary, prescribe new standards and procedures for new plants. 

2. Research investments should be made on advanced transportation risk assessment methods. Before transportation of any hazardous materials, a transportation risk assessment should be conducted using available information and 

methodology, as well as time-specific data that may be available. 

3. Additional science and technology investments that should be considered are: 

• Development of incident databases and lessons learned. This knowledge 

base could then be used to improve planning, response capability, and infrastructure changes. Recent experience in this regard is the improvement in 

planning and response for the hurricane Rita from lessons learned from the 

hurricane Katrina. 

• Research should be conducted on decision-making, particularly under 

stress, and how management systems can be improved. 

• Research on inherent safety options and technologies. This type of research should be combined with systems life cycle analysis and review of 

practical risk reduction. In other words, implementation of inherent safety 

options should not be allowed to create other unintended consequences, risk 

migration, or risk accumulation. While transportation is outside the scope 

of the Chemical Security Act of 2008, it must be included in vulnerability 

assessments to avoid transfer of facility risks to transportation risks. 

• Basic and fundamental research is also needed on design of resilient engineered systems. For example, if the collapse of the World Trade Center towers could have been extended by any amount of time, additional lives could 

likely have been saved. 

• Basic and fundamental research is also needed on resilient and fail-safe 

control systems. 

• Long-term research is also needed in the area of self-healing materials 

and biomimetics. 

Specific Comments on the Chemical Security Act of 2008 

With regard to the Chemical Security Act of 2008, I have the following specific 

comments: 

1. The US Congress must give the Department of Homeland Security permanent and continuing authority to regulate chemical security in the United 

States. While many facilities are voluntarily taking appropriate measures, I am 

concerned that many are not. A regulation that creates a minimum and level 

playing field is very important. 

2. The inclusion of water processing facilities in the Act is important and necessary. As the 9/11 events have shown, terrorists are more likely to use easily 

available materials to strike at us. 

3. The use of a risk-based approach and risk-tiering in evaluating the vulnerability of any facility is a good approach. 

4. Although Section 2110 of the Chemical Security Act of 2008 does not refer 

to the term ‘‘inherent safety’’ or ‘‘inherently safer technology,’’ compliance with 

Section 2110 deals exclusively with the implementation of inherently safer technologies and approaches. I have several comments with regard to the proposed 

language in the Act. 

a. It is not clear how the Secretary would determine what is an inherently 

safer technology or approach. More clarity is needed on this issue. 

b. There are many methods available to the industry for potentially reducing risk and vulnerability. Vulnerability assessments should consider the 

feasibility of all methods for improving security to determine the method 

to achieve the optimum balance of cost effectiveness and vulnerability reduction. 

c. As I stated earlier, science should precede regulations. I do not believe 

that the science currently exists to quantify inherent safety. This Act or 

any actions taken as a result of the Act should not create unintended and 

unwanted consequences. An example in this context is the substitution of 

hydrogen fluoride (HF) with sulfuric acid (H2SO4) for refinery alkylation 

35 

processes. While it is true that HF is more toxic than H2SO4, the amount 

of H2SO4 needed to do the same amount of processing is 25 times or more 

than HF. Thus changing from HF to H2SO4 would require large storage facilities and more transportation. In fact, changing from HF to H2SO4 may 

provide more opportunities for a terrorist attack. On the other hand, a wellmanaged plant with a smaller amount of HF and appropriate safety protective systems may represent a lower overall risk. 

d. While there is no question that options with regard to inherent safety 

should be considered, we must understand and account for the challenges 

and difficulties in implementing inherently safer technology and options. In 

this context, the Mary Kay O’Connor Process Safety Center published a 

White Paper outlining challenges faced in evaluating and implementing inherently safer designs (the White Paper is provided as an attachment). The 

first challenge is simply to measure the degree of inherent safety in a way 

that allows comparisons of alternative designs, which may or may not increase safety or may simply redistribute the risk. The second is that because inherent safety is an intrinsic feature of the design, it is best implemented early in the design of a process plant, while the US has a huge base 

of installed process plants and little new construction. Finally, in developing inherently safer technologies, there are significant technical challenges that require research and development efforts. These challenges 

make regulation of inherent safety very difficult. We believe that a coordinated long-term effort involving government, industry, and academia is essential to develop and implement inherently safer technologies. A similar 

collaborative approach has shown success in related areas such as green 

chemistry, energy conservation, and sustainable development. 

e. Instead of prescriptive requirements for inherently safer technology and 

approaches, facilities should be allowed the flexibility of achieving a manageable level of risk using a combination of safety and security options. For 

example, nuclear facilities have very high hazard materials, but they protect their site and the public with a combination of multiple layers of security and safety protective features. The current language in the bill is far 

too prescriptive and focused much too heavily on only one method of reducing the consequences of a terrorist attack. All methods of reducing vulnerability should be considered on a case-by-case basis, and the implementation of any one particular method should not take or appear to take precedence over the others. 

f. Over the past 10–15 years, and more so after 9/11, consideration of Inherently Safer Technology (IST) options and approaches has effectively become 

part of industry standards, with the experts and persons with know-how assessing and implementing inherently safer options, without prescriptive 

regulations that carry risks (both as trumping other tools or potentially 

shifting risk). A better approach for applying IST in security is by allowing 

the companies to assess IST as part of their overall safety, security and environmental operations and therefore, cannot be prescriptive. The current 

DHS regulations allow for IST—but do not require it under the performance-based standards and the no ‘‘one-measure’’ language proposed in the 

Chemical Security Act of 2008. Any new law should adopt the current 

comprehensive regulatory scheme and build upon the great effort and momentum already established. 

5. The section of the Act dealing with the formation of the Panel on Methods to Reduce the Consequences of a Terrorist Attack is in principle a good idea. However, 

an issue that needs to be given some thought is trade secrets. Even though the Act contains 

requirements with regard to protection of information and confidentiality of documents, it stands to reason that companies may feel restricted in providing certain trade secret information when they know that such information may be 

viewed by panelists who are employees of other companies and competitors. Another issue is that the panel could well be faced with a huge volume of work. 

There are thousands of different chemical processes in use in the US. What 

works at one facility is not necessarily appropriate at another facility, even if 

they have the same feedstock and product. 

6. The numerous uses of the word ‘‘any’’ could create a huge amount of workload associated with the evaluations and documentation of site vulnerability assessments (SVA) with little benefit. For example, page 12, ‘‘The identification 

of any hazard that could result from a chemical facility terrorist incident at the 

facility.’’ Another example on page 12 is paragraph E, ‘‘Any vulnerability of the 

facility with respect to———.’’ 

36 

7. Paragraph B on page 12 requiring the quantification of consequences (‘‘The 

number of individuals at risk of death, injury, or severe adverse effects to 

human health as a result of a chemical facility terrorist incident at the facility.’’) should be removed or modified. As was the case with the RMP ‘‘Population 

at Risk’’ values, the data are often taken out of context or used inappropriately. 

Furthermore, there will be significant variability in how these estimates are calculated if performed by each company. It would be much better to have these 

estimates generated by DHS based upon the inventories provided by the companies, as is the case with current DHS regulations. 

8. Regarding SEC. 2110, section (a) METHODS TO REDUCE THE CONSEQUENCES OF A TERRORIST ATTACK, it is not clear how item (5) ‘procedure simplification’, or (10) ‘reduction of the possibility and potential consequences of equipment failure and human error’, would have an impact upon 

the consequences of a terrorist attack. 

Concluding Thoughts 

I applaud the US Congress for providing leadership in this important area of 

chemical security. It is clear that many companies are taking reasonable and responsible steps in chemical security. However, all facilities that handle, store, or 

transport hazardous materials should be required to take such steps. That is why 

government must develop and enforce good-science based regulations that set the 

minimum and necessary standards for chemical security. These regulations should 

be based upon good science aimed at making the industry secure, avoid over-regulation, and create a level playing field. 

Terrorism should not only be expected from Al-Qaeda and its support organizations, but from other sources as well, both home-grown and foreign. In this respect, 

planning and response measures should be based upon considering not only the existing structure of Al-Qaeda and its support organizations, but also the looming 

threat of mutations of Al-Qaeda and other terrorist organizations. As the Oklahoma 

City bombing and the more recent London events have shown, the terrorists could 

very well be our own citizens. As the mutation keeps evolving, it is not unlikely that 

alliances would develop among Al-Qaeda type organizations and other organizations 

or individuals who are disaffected or anti-establishment for totally different reasons. 

In fact, these organizations may be at odds with each other ideologically, but may 

unite because they see the establishment as a common enemy. 

Regardless of what steps are taken by government, industry and other stakeholders regarding chemical security, it stands to reason that a terrorist attack 

should be expected and will occur sooner or later. As we know now, the 9/11 attacks 

were in planning for several years. As the adage goes, the terrorists only have to 

be successful once. Thus, it is imperative that the approaches taken be based upon 

the triple-pronged philosophy: evaluation and assessment, prevention and planning, 

and response and recovery. Planning and preparedness is required for all three 

areas. 

In closing, only through a comprehensive, uniform and risk-based approach can 

we protect the people and communities of our nation as well as protect our nation’s 

critical chemical infrastructure. I am encouraged by the leadership of Congress and 

the continued effort to seek expertise and opinion from all stakeholders. 

Thank you for inviting me to present my opinions and I will be happy to answer 

any questions. 

Attachment: WHITE PAPER 

Abstract 

This paper defines inherent safety and contrasts it with more traditional approaches 

to safety. It illustrates through analogies with common household examples the 

challenges faced in evaluating and implementing inherently safer designs. The first 

challenge is simply to measure the degree of inherent safety in a way that allows 

comparisons of alternative designs, which may or may not increase safety or may 

simply redistribute the risk. The second is that because inherent safety is an intrinsic feature of the design, it is best implemented early in the design of a process 

plant, while the US has a huge base of installed process plants and little new construction. Thirdly, in developing inherently safer designs, there are significant technical challenges that require research and development efforts with limited economic incentives. These challenges make regulation of inherent safety very difficult. 

We believe that a coordinated long-term effort involving government, industry, and 

academia is essential to develop and implement inherently safer designs. A similar 

37 

approach has shown success in related areas such as green chemistry, energy conservation, and sustainable development. 

White Paper 

Challenges in Implementing Inherent Safety Principles in New and Existing Chemical Processes 

What is Inherent Safety? 

Inherent safety is based on the use of technologies and chemicals with intrinsic 

properties that reduce or eliminate hazards. Inherent safety is based on concepts 

known for more than 100 years (Kletz, 1998) and is an approach to chemical incident and pollution prevention that is in some ways contrary to traditional accident 

prevention and mitigation methods. Traditional safety practices typically reduce risk 

by lowering the probability of an incident and/or mitigating the consequences of an 

incident. This approach alone, although extremely important and generally effective, 

does not reduce the hazards of serious chemical incidents because it attempts to 

control hazards rather than eliminate them. Inherent safety is especially important 

in today’s world where terrorists may cause a chemical release by methods that bypass or defeat normal safety systems. 

The concepts of inherent safety as applied to chemical process plant design has 

been discussed elsewhere (Mannan et al., 2002) and are summarized below: 

Intensification or minimization consists of reduction of quantities of hazardous chemicals in the plant. ‘‘What you don’t have can’t leak’’. 

Substitution is the use of a safer material in place of a more hazardous one. 

It may be possible to replace flammable substances with non-flammable ones 

or toxic substances with non-toxic ones. However, it is necessary to evaluate not 

only the substance but also the volumes required. 

Attenuation or moderation is the use of a hazardous chemical under less severe conditions such as lower pressure or temperature. Thus chlorine and ammonia are stored as refrigerated liquids at atmospheric pressure rather than at 

high pressure at ambient temperature. The lower pressure results in lower leak 

rates and the lower temperature lowers the vaporization rate. 

Limitation of effects, by changing designs or process conditions rather than 

by adding on protective equipment that may fail. For example, it is better to 

prevent overheating by using by using a fluid at a lower temperature rather 

than use a hotter fluid and relying on a control system. 

Simplicity: Simpler plants are safer than complex plants as they provide fewer 

opportunities for error and contain less equipment that can fail. Other principles such as, making assembly errors impossible, and avoiding knock-on effects are also inherently safer design concepts. 

One of the most common accidents at home is falling on the stairs. A home without stairs, i.e. a onestory bungalow, is inherently safer with regard to falling on 

stairs than a two-story house. Even if the stairs are equipped with handrails, nonslip surfaces, good lighting, and gates for children, the hazard is still present (Kletz, 

1998). Obviously the choice of an inherently safer house implies positive and negative consequences, which may include aesthetics, cost, and other types of hazards. 

An elevator could reduce the use of stairs but requires a large capital expense. During construction there would be significant hazards to the residents and construction workers and the stairs would still be necessary for emergency egress. Few families would conclude that installing an elevator is the best use of their resources. 

Measuring Inherent Safety 

While inherent safety is based on well-known principles, difficulties have been encountered in adopting the principles as a routine practice by industry. One of the 

first problems encountered during application of inherent safety principles is the 

subjectivity involved. The principles are descriptive rather that prescriptive, hence 

they are subject to interpretation based on previous experience, knowledge, and personal perception. A consequence of the subjectivity is that a systematic methodology 

to measure inherent safety does not exist, and it is not currently possible to know 

how inherently safe a plant or an equipment item is because it is not possible to 

evaluate how well the principles have been applied. If we cannot measure how inherently safer the one story condo is with respect the two-floor house, how can we 

choose the inherently safer option? 

Several measurement and analysis tools have been proposed during the last few 

years, but in general they focus on specific aspects of the problem during a specific 

time in the plant lifecycle and are difficult to apply. Besides the lack of measurement methodology, inherent safety cannot be applied in the same way for existing 

productive plants as for new facilities during the design stage. Existing equipment 

and processes impose restrictions on changes towards inherently safer technologies 

that might be implemented in an operating facility. For instance it is not possible 

38 

to turn a two-story house into a bungalow without an extremely expensive modification. However, other smaller changes can be implemented to obtain an inherently 

safer house even if not so safe as the bungalow. Some types of staircases are safer 

than others, e.g., short high steps are inherently more hazardous than long low 

steps. Very low single steps are easy to be undetected and cause accidents. Thus 

the possible solutions could be to avoid single small steps and to use staircases with 

low and long steps or (as suggested by Kletz) with frequent landings to reduce the 

distance and height of a possible fall. 

Evaluating and Comparing Design Options 

The cost of applying inherent safety to existing facilities may require significant 

financial resources but may also unintentionally cause an increase in risk if it is 

implemented without a holistic view of the plant. A chemical plant is a complex collection of intricate and interconnected equipment, pipes, vessels, and instruments 

containing a variety of chemicals. When a modification is made in one part of the 

plant, other areas will be affected, requiring other changes in other parts of the 

plant. If the safety impact of this cascade of changes into other areas is not understood during the evaluation of the original change toward an inherently safer plant, 

the final result could be a less safe plant! A common example is the possible substitution of a hazardous chemical substance, used in small amounts, by another one 

that is more benign but is required in much larger amounts. In this case it is difficult to evaluate which chemical is actually the inherently safer option, because aspects such as transportation, storage, and modification of the plant to work with the 

new chemical must be included in the evaluation. There must be a systematic assessment and minimization of all hazards together rather than one at a time to 

avoid the appearance of unidentified hazards. Application of inherent safety principles to operating plants is possible (Hendershot, 1997) but implementation is subject to constraints dictated by technical and economic factors. 

The implementation of inherent safety for new plants is simpler and cheaper because the design exists only on paper since nothing has been built yet. However, 

since many inherently safer options may be available and because a systematic analytical methodology is not available, application of the inherent safety principles is 

still restricted. Also, inherent safety is not absolute, it is site and plant specific. For 

instance a two-story house may be safer than a bungalow when located in an area 

threatened by frequent flooding. Therefore, a solution that can be inherently safer 

for one plant may not be the best option for the same plant in another location with 

a different environment. 

The application of inherent safety requires subjective judgment and tradeoffs 

among several factors. Furthermore, the selection and use of inherently safer technology does not guarantee by itself that a plant will result in safer operation among 

its complex and interrelated systems. For instance, a sick person with lung, heart, 

and digestive problems can take the best medicine for each sickness, however the 

interaction of those drugs may have catastrophic results rather than a positive 

therapeutic effect. 

The objective of inherent safety is to remove or reduce hazards. The inherently 

safest case is the one with zero hazards, but this is a limiting and unachievable 

case. Everyday life is plagued with hazards that are intrinsic to our society. Removing all the hazards is not possible. The situation of a chemical plant is very similar, 

and therefore we can only aspire to design inherently safer plants. It will be necessary to apply other methods to control the remaining hazards. Therefore, it is still 

possible for incidents to occur but their consequences are reduced. 

It may also be true that it is really not possible to judge which of two options 

is inherently safer. For instance solvent A is toxic but not flammable, solvent B is 

flammable but not toxic. There may be no ‘‘right’’ answer. Also, the answer may depend on one’s point of view. A plant can use chlorine from 1-ton cylinders or from 

a 90-ton rail car. To the operator who has to connect and disconnect cylinders several times a day the rail car is inherently safer. To a neighbor several miles away 

the cylinders are safer, they do not contain enough material to affect him. 

When new knowledge about chemical hazards or new technology is available, our 

understanding of the inherent safety of a specific plant can change. An example of 

this change is the adoption of CFC refrigerant gases (Hendershot, 1995) that are 

not flammable or toxic compared with ammonia, which was previously used. It has 

been theorized (and widely accepted) that they destroy the earth’s ozone layer and 

our judgment of the inherent safety of CFC refrigerants relative to other materials 

are radically changed. Inherent safety is therefore a dynamic, subjective, and holistic concept that requires specific measurement and analytical tools to evaluate. 

However, these tools are under development and at present are not available for 

39 

general use. Without these analytical tools it is very difficult if not impossible to 

impose restrictions, limits, and regulations to improve inherent safety. 

Inherent Safety can also be misused when decisions are subjective and based on 

limited aspects without possibility of a methodical analysis. For instance, a plant 

requiring a specific raw material transported by rail can decide to improve the degree of inherent safety by reducing the inventory of that hazardous chemical. 

Changing the mode of transportation to truck results in a smaller shipment (and 

a smaller inventory) but it also triples the shipment frequency. Thus the total plant 

inventory is kept low but the remainder of the inventory is on wheels traveling from 

the supplier’s plant to the user’s plant. This example also shows an inherent safety 

complication that extends outside the plant boundaries and represents an incorrect 

application of inherent safety that cannot be detected without a measuring tool and 

without analyzing the plant as a global system. In this case it is inherently safer 

to maintain the large inventory inside the plant and, as suggested by Kletz (1998), 

keep it under control by using good design and operating practices that follow other 

concepts of inherent safety (e.g., keep the design simple to avoid errors). 

Progress to Date 

We believe that many chemical plants have adopted the easiest and most obvious 

improvements, such as reviewing chemical inventories and reducing them when it 

is practical. This improvement is a natural outcome of the Process Hazard Analysis 

that has been required of most major facilities for the last 10 years. 

Less hazardous solvents have been developed and are in use in some processes 

(Crowl, 1996). Plants using hydrofluoric acid can now use an additive that reduces 

the dispersion of this chemical during a release. These developments however, required substantial time and cost to develop, test, and implement. Many significant 

advances are possible but they too will require research, development, and implementation over a long time period. As shown above, the development of methods to 

measure the inherent safety of various process options is an essential first step to 

the widespread implementation of inherently safer designs. The Mary Kay O’Connor 

Process Safety Center is currently developing a method to measure inherent safety 

using fuzzy logic mathematics. 

Moving Forward 

Regulation to improve inherent safety faces several difficulties. One, there is not 

presently a way to measure inherent safety. Two, the complexity of process plants 

essentially prevents any prescriptive rules that would be widely applicable. At most 

it would seem that legislation could explicitly require facilities to evaluate inherently safer design options as part of their process hazard analysis, but inherent 

safety would be almost impossible to enforce beyond evaluation because of unavoidable technical and economic issues. 

Government programs now support the research and development of concepts 

such as ‘‘green chemistry’’, ‘‘solvent substitution’’, ‘‘waste reduction’’ and ‘‘sustainable growth’’, which are related to inherent safety. A similar approach involving industry, government, and academia can enhance the discovery, development, and implementation of inherently safer chemical processes. 

References: 

• Crowl, D, ed., Inherently Safer Chemical Processes, pp. 39—40, CCPS, New 

York (1996) 

• Hendershot, D.C. ‘‘Conflicts and decisions in the search for inherently safer 

process options’’, Process Safety Progress, 1996, Vol. 14, 1, 52. 

• Hendershot, D.C. ‘‘Inherently safer chemical process design’’, Journal of Loss 

Prevention, 1997,Vol. 14, 3, 151—157. 

• Kletz, T.A., ‘‘Inherently Safer Design: The growth of an idea’’, Process Safety 

Progress, 1996, Vol.15, 1, 5. 

• Kletz, T., Process Plants: A Handbook for Inherently Safer Design, p. 

193,Taylor & Francis, Philadelphia (1998) 

• Mannan, M.S., D. Hendershot and T.A. Kletz, ‘‘Fundamentals of Process Safety and Risk Management,’’ Encyclopedia of Chemical Processing and Design, ed. 

R.G. Anthony, vol. 69, Supplement 1, pp. 49—94, Marcel Dekker, Inc., New 

York, 2002. 

Ms. JACKSON LEE. I would like to thank all of the witnesses for 

their testimony. And I remind each Member that he or she will 

have 5 minutes to question the panel. 

Let me also make note of the fact I think the point that was expressed by one of the witnesses regarding the potential overhaul of 

40 

the CFATS process and requiring industry to start all over again, 

but I think it is important to note we are having this hearing for 

the very reason to hear the broad perspective, but as well that the 

draft bill is envisioned to go into effect when CFATS sunsets. And 

frankly, we envision it to extend CFATS with minor changes, and 

not really a complete overhaul. 

I think there are reasons to improve CFATS, and this legislative 

initiative will make that effort and will work toward that goal. 

That is why we are having this hearing, to ensure that we have 

the right approach. 

I will now recognize myself for questions, and I would appreciate, 

since my questions are long, your brief answers, and brief and thorough if that is a good combination. I do want to, Colonel Stephan, 

start really with the comment that was made again by one of our 

witnesses, I believe Mr. Miller, giving you more resources, and I assume more personnel, which certainly is troubling and of great concern. And so my first question to you, and then I am going to follow 

it up—I am going to give the first question and the second question 

together, and then you can answer. 

Appendix A, the list of covered chemicals and their amounts, was 

finally released on November 2nd and published in the Federal 

Register on November 20th. The regulations require facilities that 

contain chemicals on the list above a given threshold amount to 

complete a Top-Screen. Tell us how the Top-Screen works; how 

many Top-Screen submissions have you had to date, and how many 

do you expect; and how long does it take your office to process a 

Top-Screen submission and inform the submitter whether or not 

they fall under CFATS? 

Start with the first question. Do you have enough resources, and 

do you have enough personnel? And convince us of that as we move 

toward the expanded responsibility that CFATS is giving your division. 

Colonel STEPHAN. Yes, ma’am. Thank you. At least we will get 

one of the easy ones off the table as we start. 

The resource piece has to involve, of course, a multiyear commitment on the part of this administration and the next administration, as well as this Congress and the Congress that will follow. 

The problem that I have as the implementer of the CFATS regulation is that with the authority that was provided last year in the 

2007 Appropriations Act, not a whole bunch of new additional resources was provided in concert with that new authority. Thankfully, through the appropriators, we received a $12 million supplemental appropriation that I received access to at the end of August 

of this year. So a total of around $22 million has been dedicated 

to this effort for fiscal year 2007. 

Of course, the Department budget submission requests additional 

moneys for 2008, and we have just gone through the Departmentlevel budget discussions for 2009. And the Department at the Secretary’s level is very convinced that this program needs additional 

resources in terms of both personnel and people. I think—— 

Ms. JACKSON LEE. So, Colonel, what you are saying is you do not 

have enough resources. You would need more people and more 

money. 

41 

Colonel STEPHAN. I don’t. I need resources to continue in the 

flow, to mean fiscal year 2008 and 2009 and beyond. Assuming we 

are going to continue this authority in some venue or some means 

beyond the sunset in October 2009, I need continued resources. 

Ms. JACKSON LEE. You need resources now? 

Colonel STEPHAN. Yes, ma’am, and I would love to get the continuing resolution situation resolved so that I can get complete access to my 2008 budget submission or whatever Congress is going 

to give me in terms of resources. 

Ms. JACKSON LEE. And we look forward to the administration cooperating with the Congress so we could move the CR. But in essence you are saying that you don’t have enough resources. 

Let me jump you now to the explanation on the Top-Screen question. Thank you. 

Colonel Stephan. Yes, ma’am. In terms of the issuing of the Appendix A on November 20th, together with the completion of the 

100 or so Top-Screens that we received through the accelerated 

piece of this first part of the program, phased implementation, we 

have 16,852 facilities that have registered to complete the on-line 

process. And in hand now as of this morning, I have 1,818 complete 

Top-Screen analyses. This process will close out on the 22nd of January of 2008, and it will take us somewhere within 30 to 45 to 60 

days to complete the analysis of the Top-Screen data as it has 

rolled in through that 60-day window. 

Then we will begin a Site Vulnerability Assessment process, with 

the majority of the herd that kicked into motion with the November 20th Appendix A release. We are beginning with the 100 facilities that have begun implementation in an accelerated manner the 

SVA, or the Security Vulnerability Assessment process now, and 

that we expect to take about another 2 to 3 months before we have 

the first tranche of 100 ready for—— 

Ms. JACKSON LEE. Let me thank you. It looks as if I have some 

follow-up, but let me quickly go to Mr. Miller to tell me his experience in dealing with DHS, but in particular has his BASF facilities 

completed Top-Screen? Have you received a response from DHS 

telling you your facilities—whether or not they are covered? Was 

the Top-Screen process straightforward and understandable, and 

did you need assistance from DHS? You might want to expand. I 

think you raised a question about resources and personnel. Mr. 

Miller. 

Mr. MILLER. Thank you, Chairwoman Jackson Lee. 

The point of the comment about resources, clearly our experience 

with DHS, and we have been working with them back when it was 

a voluntary program and also leading up to the regulatory program, has been that we see very clearly that considering the size 

of the chemical industry in the United States, they do not have 

enough manpower, they do not have enough resources to do the job 

that needs to be done here. 

Ms. JACKSON LEE. This is your perception now or when you were 

interacting with them? 

Mr. MILLER. It has been continual. It is a situation much like 

private industry. We are always asked to do a lot with little resources, and we have seen that within DHS. They have done an adVerDate Nov 24 2008 08:46 Nov 10, 2009 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-89\48984.TXT HSEC PsN: DIANE
42 

mirable job of getting where they are now with the resources they 

have, but clearly they need more. 

In response to the question regarding the Top-Screen process, we 

very deliberately waited until the final Appendix A came out. We 

initially thought we might go ahead and submit some Top-Screens 

with the first Appendix A, but we decided to wait. So we have now 

submitted Top-Screens, and I don’t have a final count or a current 

count on the number of sites that I have had submit so far, but 

we are doing that on a daily basis. The Top-Screens are being submitted. 

To my knowledge, we have not gotten any direct feedback yet on 

what tier we might wind up in, or whether we are regulated or not. 

I haven’t seen that on a daily basis. But we are submitting those. 

As far as the responses and so forth with DHS, when we do have 

questions, and we have had some questions come up, it has been 

very helpful to be able to call the help desk. And they have been 

very responsive in either saying, you know what, I don’t have an 

answer to that, we will escalate it and get back to you on the question. And so that has happened a number of times for my project 

manager that I have got dealing with the Top-Screen submission. 

And we are getting the responses back from them, but sometimes 

it is taking some time to get it, and I think that is a resource issue 

with them. 

Ms. JACKSON LEE. Thank you very much, Mr. Miller. 

Quickly, Mr. Setley, I think it is important to involve workers, 

and my question is have your workers been involved in meaningful 

vulnerability assessments, and have they been involved and included in developing security plans since they are directly involved? In essence, they are the front-liners in this whole effort. 

Mr. SETLEY. Thank you, Chairwoman. 

It has been my experience, and we cover—the area I currently 

direct covers the entire Northeast, Mr. Sondermeyer’s wonderful 

New Jersey, where I must say we have had marvelous experience 

with a lot of cooperative employers and involvement of the workers 

on all levels in the security plans as well as on the floor worker 

health and safety issues. So certainly New Jersey is a shining dime 

we point to, quite honestly. 

But on the whole, we have not had the—I will call it the employer buy-in for worker involvement, because the employers are 

very reticent to acquiesce what they perceive as their power, if you 

will. Certainly the authority and the onus for providing the workplace is clearly regulatorily understood; however, any time an employer is asked by their workers or their workers’ agent, the union, 

to share that responsibility, they are reticent. 

Ms. JACKSON LEE. So any legislation should work hard to improve that relationship and clearly involve well-trained chemical 

security employees in the process. 

Mr. SETLEY. Yes, ma’am. Yes. 

Ms. JACKSON LEE. You think that would make for a safer approach? 

Mr. SETLEY. Yes. It is my experience, and I can’t say it as well 

as you did, but having the employer and the employees work as a 

team, that synergy is the most effective for security and worker 

health and safety. 

43 

Ms. JACKSON LEE. All right. My time has expired. And I am delighted to yield 5 minutes to the distinguished Chairman of the full 

committee Mr. Thompson. 

Mr. THOMPSON. Thank you very much. 

Following up on this line of questioning, Mr. Stephan, correct me 

if I am wrong. You say you have about 16,000 applications for TopScreens. 

Colonel Stephan. Sir, we have about 16,000 folks that have registered through the on-line process to begin the process, and we 

have gotten approximately 1,800 completed assessment products in 

hand now from those facilities. 

Mr. THOMPSON. Okay. Given your deadline for—you have a deadline, I think, of about a year out? 

Colonel Stephan. Sir, we have a deadline for submission of the 

Top-Screen data to us that is January 22nd, 2008. So in less than 

60 days from now. 

Mr. THOMPSON. But you don’t have a deadline on completing the 

applications, approving the applications? 

Colonel Stephan. We expect it is around the October/November 

time frame next year, 2008. We will be able—outside the hundred 

or so facilities that we have parsed out in a very special focused 

accelerated effort to begin the process of inspecting the Tier I facilities and Tier II facilities associated with this program. About a 

year from now we will have the consequence assessments done, the 

site vulnerability assessments done, the security plans done and 

approved by DHS, and we will begin the first round of significant 

inspection activity. 

Mr. THOMPSON. What can we assure companies like BASF Corporation that the experience they received for this process won’t be 

the standard operating procedure going forward? 

Colonel Stephan. So that it won’t be? 

Mr. THOMPSON. Mr. Miller talked about how cumbersome, how 

inflexible and the communication and some other things associated 

with the application. 

Colonel Stephan. Sir, I heard him say exactly the opposite. I 

heard him say it was a very flexible process where we have been 

responsive to his concerns as well as the concerns of the industry. 

We established a 1–800 number help line. We get immediate feedback to industry. I think we have attempted to make this as user 

friendly as possible. I will let my colleague explain further. 

Mr. THOMPSON. Mr. Miller, can you help me out? You described 

the process based on the chairwoman’s questions. 

Mr. MILLER. Yeah, let me try to clarify that. We went through 

the registration process with all of the sites that we felt would fall 

under the new Appendix A and we began our top-screen process. 

And I think where I may have been less than clear is that when 

we did run into issues, when we ran into some questions, we used 

the help desk at the 800 line to call in and the response generally 

was very quick. Either they had an answer or they were going to 

escalate it. Sometimes it took a little longer than we would like to 

get that response back. But I think it merely is a situation where 

they might not have the right person to answer the question at 

that given time considering the size of the effort here. And it takes 

44 

some time to find out or to research the answer to the question and 

get back to us. 

So I didn’t intend for it to sound like a total indictment of the 

lack of response. Certainly they have been responsive and we have 

worked with them over the last few years in working through this. 

But I continue to see that they have the need for more resources 

to make sure that things are flowing smoothly, especially as things 

move along, because things will get a lot more complicated. Right 

now we are just doing somewhat of an inventory. 

Mr. THOMPSON. And I guess I was kind of moving into that direction for the benefit of the committee, is to see again, Mr. Stephan, 

whether or not you feel you have the complement of staff necessary 

to manage this. 

Colonel Stephan. The first year of this effort, 2007, has been a 

rate development year and planning year. We had sufficient resources to do that. Now with the Department’s 2008 submission 

and what you will see from us in 2009 is the requirement to boost 

the resources up to various levels of intensity to account for now 

between the next phase of the process, which is in analyzing the 

top-screens, the consequences piece, doing the very technically complex vulnerability assessments by site and the very collaborative 

planning not just with the security planning and plan development, 

not just with the sites and the facilities, but also with State and 

local government partners. We have put in our budget request to 

the appropriators, a logical, reasoned increase so that I can get 

field staff in place, headquarters management staff in place, additional resources to provide additional analysis, so forth and so on. 

If those requests are honored, I feel that I will have the resources 

I need to push the program forward. Again, a multiyear commitment is required from Congress and the administration, both this 

one and the next to move this thing forward. 

Mr. THOMPSON. And I think the members of this committee have 

already seen—it appears that the administration is going to submit 

a budget just the opposite of that for Homeland Security and so I 

think we will have a challenge, Madam Chairman, going forward, 

needing what has been established from the staff and then resource standpoint if, in fact, the President’s initiative to reduce the 

Homeland Security budget is approved. 

And if I might—if you would indulge me for another minute. Mr. 

Setley, the workers who you have who work in these plants and 

those regulations that impact them, does your contract call for 

those workers to be involved in doing security vulnerability assessment or development for facility security plans at all? 

Mr. SETLEY. Not specifically. I have no contract language that 

would specifically speak to the issue of plant security. However, we 

have as pretty much a pro forma issue of health and safety language which would be a joint committee of management and labor 

generally shared by management. 

Mr. THOMPSON. And that is the point. We generally have a 

health and safety committee, but I think we have to go an additional step and start talking about security. And the reason I say 

this is we had similar experiences with rail, if committee members 

remember. Generally, it is about a 15, 20-minute video and a pamphlet. And that is to your security training. And so we had to step 

45 

in as Members of Congress and mandate additional training for 

workers from a security standpoint, not safety. And so many people 

tried to tie security and safety as one. And I think what we are 

looking at is making sure that the workers are involved in it, but 

also that—but it is from a security perspective and not a health 

and safety—health and safety is important, but this is the other 

layer that goes with that. 

Mr. SETLEY. Certainly labor would be happy to see any kind of 

regulatory control and enforcement of that type of language. 

Mr. THOMPSON. Thank you. I yield back, Madam Chair. 

Ms. JACKSON LEE. Mr. Chairman, Mr. Mannan would like to respond to one your questions. 

Mr. MANNAN. Thank you, Madam Chairwoman. 

Ms. JACKSON LEE. And perhaps as the chairman asked a number 

of questions, refer us to the question you are responding to. 

Mr. MANNAN. Yes. First, I want to respond to the question of the 

resources. While Colonel Stephan and Mr. Miller have shed some 

light on the resources currently available to DHS to deal with current regulations, my concern is that if the IST options and the proposed act are implemented, given what I know, it is my humble 

opinion that there are no—not adequate technical resources as the 

numbers to deal with the IST issues that might come up both from 

the point of view of analyzing those IST issues as well as enforcing 

them. 

The second issue I wanted to refer to was with regard to one of 

the questions that has been raised, is the issue of employees. While 

I think consultations of employees and involving employees is very 

important and should be done, but it should be done carefully. 

There is a two-edged sword there, and one of the issues we deal 

with in anti-terrorism issues is the insider threat. In my own testimony I provided some statements as to the threat from not only 

al-Qa’ida but mutations of the organization of al-Qa’ida and their 

associations with organizations that may have ideological or different view, but maybe anti-establishment and may develop a collaboration with al-Qa’ida type organizations. So insider threat is an 

issue that is something that we need to be aware of. 

Mr. THOMPSON. You are correct and one of the panelists talked 

about information protection as a real issue. And I agree with you 

to some degree. We absolutely have to keep many of the things 

that we know that are involved in these facilities as secret as we 

can and not allow them to get into the public domain, if you please, 

because that then enhances the vulnerability of that particular facility if that breach occurs. I agree with you. 

Thank you. 

Ms. JACKSON LEE. Thank you very much, Mr. Mannan. I think 

that was an important insight. I am delighted to yield 5 minutes 

to the distinguished gentleman from New Jersey, Mr. Pascrell. 

Mr. PASCRELL. Thank you, Madam Chair, Mr. Chairman. Colonel 

Stephan, would you say that New Jersey is the model that you 

would suggest the Federal Government move towards in responding to the risk factors contained in the chemical industry at large? 

Colonel Stephan. Sir, I have a great relationship with the Office 

of infrastructure Protection under the Homeland Security Adviser’s 

supervision in New Jersey, And I would say overall in terms of inVerDate Nov 24 2008 08:46 Nov 10, 2009 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-89\48984.TXT HSEC PsN: DIANE
46 

frastructure protection they have a model program for the Nation 

bar none. However, there are differences, very crucial differences 

between this Federal CFATS regime and the State regime. I, in 

fact, think that the Federal regime—I don’t want to use the word 

‘‘tougher,’’ but I think it is more comprehensive and more demanding than the New Jersey State regime. We have a very unprecedented level of risk analysis here, vulnerability assessments, collaborative planning, inspections for compliance and some fairly 

stiff, heavy financial penalties and the possibility of a cease operations order that do not exist in the New Jersey statute. 

Mr. PASCRELL. But none of those actions have been taken against 

any company? 

Colonel Stephan. We are in the beginning phases of implementing this program. 

Mr. PASCRELL. This is 6 years later. This is 6 years later. Mr. 

Sondermeyer, how many people do you have working in what—if 

I read correctly in your testimony, you have direct access to Richard Canas. Richard Canas is the Director of Homeland Security; is 

that correct? 

Mr. SONDERMEYER. Yes, he is, sir. 

Mr. PASCRELL. You have direct access if I am looking at this correctly. And you undertake your preparedness to the Domestic Security Preparedness Task Force. 

Mr. SONDERMEYER. Yes. 

Mr. PASCRELL. And how many personnel do you have that work 

specifically on the chemical industry in the State of the New Jersey? Which surprisingly has been very cooperative with the Department. Isn’t that interesting? Even though you have stricter standards than the rest of the country, most of the country, you have 

tremendous, God bless you, cooperation; is that correct? 

Mr. SONDERMEYER. Yes, it is correct. We have had tremendous 

cooperation. 

Mr. PASCRELL. How many people do you have working for you? 

Mr. SONDERMEYER. Dedicated to chemical facilities security? 

None. 

Mr. PASCRELL. You don’t have anybody? 

Mr. SONDERMEYER. Not dedicated. This is function—— 

Mr. PASCRELL. It is shared. Is this a shared—I mean, who checks 

out all of the chemical factories, the two-mile stretch of the turnpike, for instance, which has been called by the FBI, et cetera, et 

cetera, who does that work? 

Mr. SONDERMEYER. It is a collaborative effort. The Homeland Security program itself under Director Canas is about—I think the 

staff is about 200, 250 people, but that deals with the intelligence 

and critical infrastructure and planning. The State agencies like 

the DEP were assigned responsibilities to organize and implement 

a program for sectors that we normally work with, chemical, petroleum, water, wastewater, dams, pharmaceutical, biotechnology and 

nuclear. So that is sort of our purview. I am sorry I am not being 

really clear. We don’t have any dedicated staff that are funded—— 

Mr. PASCRELL. They are shared staff? 

Mr. SONDERMEYER. All shared staff. But we do the inspections. 

So we have inspected all the chemical facilities for compliance with 

47 

the standards and the best practices between three, six, seven 

times. 

Mr. PASCRELL. I don’t quite understand how 30 personnel can 

cover the entire country of thousands of chemical facilities. And in 

the center part of your question, Mr. Chairman, to the witnesses, 

we are not serious about this. We don’t have a sense of urgency 

here. I mean, it doesn’t make sense. We have got 2,000 that are 

compliant and have basically submitted what they were supposed 

to submit in terms of this tiered sense of risk that we have developed here. And we are concerned that one State in the Union, 

which has attempted to be the pioneer in this area where there are 

a lot of chemical facilities, which is spending time to develop this 

inherently safer technology, we are concerned that that State has 

taken action that is working and yet why if those standards are 

working, why should they be applied to the other chemical facilities 

throughout the rest of the country? I don’t understand. 

I have got a question to you, Mr. Sondermeyer. I want to ask you 

if you have read the draft of the Chemical Facility Anti-Terrorism 

Act. 

Mr. SONDERMEYER. Yes, sir. 

Mr. PASCRELL. Do you feel that the draft provides enough certainty to preserve the States rights? You referred to this before in 

the vague statement that—I am trying to get in your testimony 

where you referred to that vague part of the legis—what was that 

last sentence? 

Mr. SONDERMEYER. It is section, sir, 21.07. 

Mr. PASCRELL. 21.07. You referred to—you specifically picked out 

that phrase. Would you repeat the phrase? 

Mr. SONDERMEYER. Certainly. It is unless the State regulation 

requirement or standard of performance would conflict with the 

purposes of this title. 

Mr. PASCRELL. Now, that could mean anything, couldn’t it? 

Mr. SONDERMEYER. That is our concern, sir, that—the first part 

of the paragraph is very good and it seems to be clear on the preemption issue and it seems to undo it with that language which 

really isn’t very clear. 

Mr. PASCRELL. Madam Chairwoman, Mr. Chairman, I think that 

that phrase is critical to what I know you all are trying to do. And 

this is nothing new. You said this last year and the year before. 

And I think that that phrase needs to be clarified. In fact it should 

be removed. It should be removed altogether maybe, because on 

that hook you are going to see more conflict in what we are trying 

to do on this committee, both sides of the aisle, than anything else 

that I can find in the draft or in the bill. Forget this is simply a 

repetition of what is already there. This is nothing new. And I 

think that is a way out. Do you see it as a way out, Colonel 

Stephan? 

Colonel Stephan. Sir, I see no inherent conflict at this point in 

time between any regulation and authority that the State of New 

Jersey has on the—— 

Mr. PASCRELL. But the phrase that Mr. Sondermeyer referred to 

seems to be—it is like the door is opened so wide that you can 

drive, you know, a couple of Mack trucks through it. Do you agree 

with that? 

48 

Colonel Stephan. Sir, I don’t agree with that because we—— 

Mr. PASCRELL. So you like that phrase? 

Colonel Stephan. We have very carefully considered that phrase 

inside this language, inside our rule. It is very carefully explained 

in terms of our view regarding State preemption. It is not field preemption. It is specific conflict preemption. And we see that the 

State regulatory authorities and programs can and should be and 

are in fact at this point very complementary to the thing we are 

trying to do at the Federal level. 

Mr. PASCRELL. Madam Chair, can I just continue with one question? 

Ms. JACKSON LEE. One more question. 

Mr. PASCRELL. Thank you. Colonel, then, you would keep that 

phrase exactly as it is, correct? 

Mr. STEPHAN. Sir, I would have to see that phrase in front of me. 

I don’t want to make an open-ended statement with a document 

that I do not have in front of me. 

Mr. PASCRELL. I think this whole hearing is much more than one 

phrase. But to me getting these facilities throughout the United 

States to comply, to work together, the workers, the companies is 

very important. They have been cooperative from what I have seen 

in the State of New Jersey. Gee, who would have thought? But it 

is possible. But if you open this door, if you open this door, you are 

simply going to get a lot of confusion, a lot of conflict and not resolution. 

Madam Chair, I ask that you pay particular attention to this. 

Thank you. 

Ms. JACKSON LEE. I thank the gentleman for exploring that. His 

time has expired. It is now my pleasure to yield to the distinguished gentlelady from New York, Ms. Clarke, for 5 minutes. 

Ms. CLARKE. Thank you very much, Madam Chair. And this is 

a hearing of paramount importance, particularly to our region. 

And, Assistant Secretary Stephan, I just wanted to follow up on a 

question that Chairman Thompson raised with you just to get some 

more clarity. Have you been able to do any approximation or contingency plans on how to compensate for any financial shortfalls 

you may have notwithstanding, you know, what you are required 

to do in building out your Department’s infrastructure, one, and 

two, given the limited resources, have you done any projections on 

the cost for human resource requirements going forward? 

Colonel Stephan. Yes, Madam. Again, we have fiscal year 2008 

budget up for consideration on the Hill, as you know. We are hoping to get that full accessibility of that funding as quickly as possible. We have just gone through the 2009 budgeting process at the 

Department level, and I think you would be very happy in this particular area with the support the Secretary and the executive 

branch has put into this particular mission focus, chemical site security going into the 2009 process. We have completed a manpower 

requirement study based upon an initial universe of potentially 

5,000 facilities shredding out within a Tier I through IV construct 

and have that information available in briefing format to provide 

to you at your request, ma’am. 

Ms. CLARKE. I think that is some of what we are trying to get 

to the bottom of here today. We don’t want this issue to sort of linVerDate Nov 24 2008 08:46 Nov 10, 2009 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-89\48984.TXT HSEC PsN: DIANE
49 

ger out there and then God forbid, you know, we are not prepared 

for something that could occur in any region of our Nation because, 

you know, we are still in the planning process. I think it is very 

important that you share that with this committee as soon as possible so that we can be advocates, you know, in the upcoming fiscal 

years to make sure that what is required we hold the line on. And 

we hope that you will be really open and honest about that. Our 

mandate is really a nonpartisan mandate. It is one that the American people expect of us, given our experiences, and I can tell you 

as a New Yorker I am really, really interested in making sure that 

we get this right. 

Mr. Sondermeyer, based on your regulatory experience in New 

Jersey, do you feel that DHS has an appropriate number of personnel to handle oversight of chemical security nationwide? 

Mr. SONDERMEYER. Thank you for the question. Before I wasn’t 

as clear perhaps as I could have been in terms of resources. We 

don’t have dedicated resources in New Jersey. But just by example, 

just for the piece that our department has been involved with, the 

sectors that I mentioned, chemical and petroleum being part of 

that, we probably had about 200 people engaged in that effort. 

Again, not in a dedicated function, but as part of their job. So if 

the number used before of 40 or whatever that number is of people 

that are going to be out inspecting, that does seem to be from our 

own experiences a low number. 

Ms. CLARKE. And you pretty much had to be creative and sort 

of build out a new purview for your current workforce to embrace 

in order to make sure those pieces are covered; is that correct? 

Mr. SONDERMEYER. That is exactly right. We took existing individuals, in particular working in our Toxic Catastrophe Prevention 

Act program and give them a new responsibility which was an addon function and a critical one to implement the best security practice oversight that we have done. So we built those responsibilities 

into their existing inspections. And it has worked, I think, as well 

as it could. It has worked well. 

Ms. CLARKE. And do you feel this is the future of what those positions would hold or are you looking to us at the Federal level to 

really create a dedicated and committed workforce to deal specifically with this? I think this definitely has to be State collaboration. 

But at the same time, you know, as your workforce ages, will that 

be something that becomes a best practice for your employees, or 

do you feel like there is something that is missing and you are just 

basically holding the line with what you have? 

Mr. SONDERMEYER. Yeah, it is a great question. I do think as we 

evolve in the program, even with our program, and as we work 

hopefully seamlessly with the Federal Government and DHS, we do 

need to expand our technical expertise on security. The folks that 

we have were not trained in security. They are trained to do environmental protection work. We can only do assessments to verify 

things were done. We are not doing, as an example, detailed lighting plans to make sure the street lights have enough lumens, that 

it is secure in that particular area. We need to have that kind of 

expertise over time, particularly for the most critical infrastructure 

sites, to make sure that we get it right. And we do not as a State 

government currently have that expertise. We are trying to build 

50 

it within our central security organization, which is our Office of 

Homeland Security and Preparedness. 

But we are a distance from having that level of expertise. It is 

a great question. 

Ms. CLARKE. Thank you very much. Madam Chair, I yield back. 

Ms. JACKSON LEE. I thank the distinguished gentlelady. In Mr. 

Pascrell’s absence, we will explore the language that he has pointed out, and I think he raises an important question, to be able to 

discern what the purpose of those words are so that we don’t dumb 

down the responsibilities or the achievements that a State has 

made. 

Mr. Sondermeyer, I have a few more questions. Let me just pose 

this question for you. I think the point you are making is that— 

as great a work you are doing, there are gaps just because of the 

nature of the structure that the State of New Jersey has. You are 

out front on tapping in for the need for chemical security but in essence in terms of elements that you are able to oversee because of 

expertise, the Federal Government’s role would be helpful, be complementary, particularly if they focused on some of the hard core 

security issues that you might not be able to directly address; is 

that correct? 

Mr. SONDERMEYER. Very well put, Chairwoman, yes. 

Ms. JACKSON LEE. So the approach we should look at is this very 

important, firm complementary relationship and certainly the Federal Government should have sufficient staff to build up on that security aspect of it. Is that your—— 

Mr. SONDERMEYER. Yes. And again the last policy point I made 

about the delegated authority concept of letting us be the agent for 

the Federal Government. We are running the program now and as 

we mesh these things together, it would be great if we could have 

that kind of collaborative relationship. We do it in environmental 

law every day. It works well under a very structured work plan 

which is called a performance partnership agreement we have with 

the United States Environmental Protection Agency. I think that 

is a model for how that collaboration you are bringing up could 

work well. 

Ms. JACKSON LEE. So we should look to language in this legislation that might create State and Federal partnership in States that 

may be sufficiently far ahead which may help Colonel Stephan’s resource and personnel issue that he has to address? 

Mr. SONDERMEYER. Precisely. 

Ms. JACKSON LEE. What do you think about outside auditors or 

those private entities that contractually would provide oversight, 

again adding additional staff to this process? 

Mr. SONDERMEYER. That certainly can be a positive thing to do, 

sort of the independent third party assessor that would come in, 

and it is something that might have to augment in the absence of 

sufficient staff at the Federal level to perform those functions. That 

would be, I think, a way that you could go, yes. 

Ms. JACKSON LEE. Most chemical plants are—find themselves at 

least in a sometimes massive way and limited way in populated 

areas. 

Mr. SONDERMEYER. Absolutely. 

51 

Ms. JACKSON LEE. New Jersey certainly is in a dense urban area, 

near I–95 as well. So there is quite a bit of ingress and egress of 

traffic. And certainly in my State in Texas in a number of our— 

well, our complete refinery area there are surrounding neighborhoods. What is your thought about including language that would 

insist or require through DHS that there be neighborhood evacuation plans and training plans that incorporates the surrounding 

facilities? It may be businesses, they may be residential, they may 

be, if you will, traffic centers. What is your thought about that as 

an addendum to our efforts? 

Mr. SONDERMEYER. Certainly appropriate as it would be framed 

out and there was a lot of discussions about worker involvement 

which we think is critically important and we have involved the 

program. I think, neighborhood knowledge and involvement is also 

important and I would say, Chairwoman, as a potential example to 

look at would be the structure that is in place through the Nuclear 

Regulatory Commission, evacuation and off site contact, and if the 

slightest thing happens at a nuclear plant there is an immediate 

requirement for a public disclosure and we do have four nuclear 

plants in New Jersey. So we do have a little bit of experience with 

that. 

That might be the model, Chairwoman, of what I think you are 

driving at. That could be something that could be replicated to give 

that kind of involvement and forewarning in evacuation planning. 

Ms. JACKSON LEE. Very good. Colonel Stephan, you as part of the 

CFATS regulation; your office created a new class of protected information called chemical terrorism vulnerability information. As 

you know, we as a committee and frankly in light of recent incidents that have occurred with the whole umbrella of overprotected 

information, though we certainly don’t want to expose sensitive information to the general public, I want to raise the concern that 

this proliferation of new classes of nonclassified for protected information may raise problems with trying to secure America. Explain 

why you feel it is necessary, feel this new class of information is 

necessary. What are the main differences between CPI and SSI, 

which is the designation of information used under MTSA? And 

have you received comment from State and local authorities as well 

as the private sector about whether CVI serves as an undue obstacle to the necessary sharing of information? 

Colonel Stephan. We created this new information protection regime, this category called CVI, for the simple reason as follows. We 

are requiring now for the very first time a very comprehensive and 

detailed set of information be provided us from the private sector. 

Consequence information, vulnerability information and very, very 

unique security plans. Many aspects of this information will have 

to appropriately be shared with State and local government partners, law enforcement and emergency managers. We strongly feel 

that there is not any existing security information, security protection regime that affords the appropriate level of protection given 

the incredible detail of this very sensitive vulnerability and security information coming into us. Our requirement to share a lot of 

it with the appropriate State and local officials just doesn’t exist 

anywhere. 

52 

Secondly, in terms of judicial proceedings, in terms of enforcing 

this regulation or cases that come to courts, SSI or sensitive security information and that regime, there is a lot of leeway that a 

judge has in terms of how to protect that information and what to 

do with it. In the statute that provides us the implementing authority for this regulation, CFATS were specifically required in 

those kinds of proceedings to have an information regime in place, 

information sharing regime in place that treats the information as 

if it were classified information. So because of the level of detail, 

the incredible number of detailed data bytes that will be coming in 

to us, our requirement to share them collaboratively with State and 

local partners, we have got to have more protection than any current regime offers. 

Also in terms of your point about have we received information, 

yes, we have received information, good things and bad things 

about the CVI program, from both the private sector and State and 

local governments. We have a working group with the private sector through our Chemical Sector Coordinating Council that is focused on helping us get the right balance between information protection and information sharing. And he is of use on the industry 

side. And on the State and local government side, the State of 

Michigan Homeland Security Adviser, Brigadier General Mike 

McDaniel, is spearheading a State and local task force which is cochaired by the State of New Jersey, coincidently Sherry Black of 

the Infrastructure Protection Office there, to help us figure out how 

we are going to implement CVI protocols with respect to State and 

local government partners, law enforcement, Homeland Security 

advisers and emergency managers. 

Ms. JACKSON LEE. Colonel, I know that your intent is good and 

your efforts are to be commended. But there is a long history of denying State and local governments the right kind of information or 

the information that they need to ensure the security of the homeland. Frankly, this committee is probably unified in its opposition 

to overclassifying. And we have just had, you know, an experience 

with a discovery of what probably should have been well-known information, obviously outside of the realm of this committee, but a 

destruction of the CIA of very important information and destruction of tapes that commented on that information or indicated information that this Congress might have needed for better decision 

making. 

Let it be clear that we are going to take a very close look at overclassification of information that will be important to securing the 

homeland, particularly in this area of chemical security. So I hope 

the intent of our efforts here in this committee will impact on you 

and I know that you are mentioning requirements that you have 

and we may look at those requirements because we think we are 

blocking cooperation as opposed to helping it. 

Mr. Miller, did you want to have a question or comment on that, 

the classifying of additional information? 

Mr. MILLER. Thank you, Chairman Jackson Lee. I agree in a lot 

of—in respect to what Colonel Stephan has said regarding protection of information. The issues that we have with the guidance that 

has been provided and how to go about handling CVI classified information has to do with, for example, if my chairman comes in 

53 

and says so what are we doing about security at a particular facility that is a regulated facility. Under the current regulation and 

under my reading of the guidance that has been provided, I cannot 

provide him that direct information without him having to go online and take an on-line training course on how to handle and properly manage this type of information and then sign a nondisclosure 

agreement with the Department of Homeland Security that says he 

won’t disclose this information to unauthorized parties. Believe me, 

that is a tremendous hurdle for someone that is as busy as our 

chairman of our companies are when I can sit down with him and 

discuss this with him and enlighten him on what we are doing at 

a particular facility, which I feel I am currently handicapped on 

doing right now. 

Ms. JACKSON LEE. Because of this CVI? 

Mr. MILLER. That is correct. 

Ms. JACKSON LEE. I think the record should reflect that we do 

have a difference of opinion, Colonel. And I believe that the difference of opinion that the committee has is not to expose sensitive 

material but it is to question the process of declaring CVI material 

and how that impacts actually industry, States, local government 

in doing their job of securing the facilities in their area. So that is 

something we are going to have under advisement and express concern either through a legislative fix or otherwise. 

Dr. Mannan, let me just raise the question. I think the academic 

involvement—and you have raised some interesting concerns about 

how we approach the training of employees in making sure that we 

train them but provide protection to the flow of information that 

might be detrimental in the hands of others and we don’t represent 

that employees are terrorists. We represent that we want to be as 

detailed in how we handle material and balance it by not 

overclassifying information as well. But I also believe the academic 

partners are important as relates to new technology, as it relates 

to new practices, best practices. 

So I raise the question of a thought of adding to the legislation 

what we call chemical security centers of excellence that might be 

placed on academic—on campuses that would focus on how we improve security, how do we analyze information. And they would not 

be analyzing information received by DHS as much as they would 

be giving a roadmap and plan for how you do it more effectively, 

how you train personnel, how do you work with local and State 

governments. What would be your thought about that kind of addition to the legislation? 

Mr. MANNAN. I am totally in complete support of something like 

that. As I mentioned in my oral testimony, this problem requires 

the collaborative work of all stakeholders, and academia should be 

a complete part of it. I would daresay that academia has not done 

enough up to this point. But I think a little prodding by the government might help in that direction. 

I mentioned some of the things that we could do, for example, 

building resilient engineering systems, building self-healing plants, 

learning from nature in terms of biopneumatics. Also in my written 

testimony there are other examples of things like—for example, before 9/11, we never designed chemical plants or the chemical infrastructure with terrorism in mind. That never entered the equation. 

54 

I think research definitely needs to be conducted as to how we 

would design the whole infrastructure with terrorism in mind. And 

that should have two objectives. One, how would it impact new 

plants and, two, how would it impact existing plants? In fact, one 

of the other things we need to consider is that when we do permit 

new plants should we consider things like prevention of significant 

vulnerability, similar to air type of acts where we look at prevention of significant deterioration of air emissions. So I think I am 

on the same wave-length as you are in that respect. 

Ms. JACKSON LEE. Thank you. And as I listen to you, I know that 

we have provisions for fencing in the legislation. Make note of it. 

And the thought of safer technology, virtual fencing, as we build 

new chemical plants and new refineries, we should move to the 

next level or in the revising of a chemical plant’s security infrastructure through this legislation should virtual fencing be part of 

an option of how you secure these plants. And that, then, includes 

a whole new component of staffing, which is a staffing constituency 

on site that monitors in a more scientific manner the ingress and 

egress and things going on inside the plant and outside the plant. 

I frankly believe—Mr. Sondermeyer, you are shaking your head. 

Is that something that would be worthy of consideration? 

Mr. SONDERMEYER. Yes. And certainly in New Jersey we have 

tried to integrate that type of forethinking analysis. As an example, 

we are developing a new Giants stadium up in our Meadowlands 

complex. And as part of that, we did require compliance with our 

best standards for Homeland Security. And I think it is an excellent point. We really should be—any new facilities we are building, 

they should be built with security in mind as the professor is recommending as well. 

Ms. JACKSON LEE. Funny you should say that. We look forward 

to having an infrastructure protection hearing on large venues such 

as the stadium. And you or one of your representatives from the 

State of New Jersey may be back in front of us again. Thank you 

very much. 

I want to take this time to give an opportunity for the distinguished gentlelady from New York to ask a few questions. 

Ms. CLARKE. Thank you, Madam Chair. Professor Mannan, I 

wanted to just sort of follow up on what the chairwoman has stated 

to you or has raised as a concern. You speak extensively about the 

importance of research and the creation of new technology in securing chemical infrastructure. Do you get a sense that DHS is doing 

enough to support such research? Are there additional Federal assets outside of DHS that you have identified that can facilitate and 

accelerate a support system and is there more that we should be 

doing? 

Mr. MANNAN. That is a loaded question. I will try to answer it 

as best I can. The short answer is that we are not doing enough, 

both from the government perspective as well as from the universities. Universities are probably notoriously slow in moving and 

changing the research direction. But I think government can play 

a very dominant role in making that change. I can guarantee you 

if programs become available where they will support research like 

this, you wouldn’t imagine how many professors will change their 

55 

research goals and missions. That would happen overnight, whether or not DHS has done enough in funding some of these research. 

Again, the short answer is no. The reason I believe it is that 

DHS—I consider research like this at two or three levels. The first 

level is guards, guns and gates, background checks, putting up 

blockages, looking at lightings and things like that. Those are the 

short-term issues. The long-term issues are looking at these types 

of process changes and long-term research issues like terrorism 

risk and plants, robust control systems like even if some terrorists 

were to take over a plant, the control system would be hard to compromise, things like that. 

Those kinds of things have not been funded. The other government agencies that I have been disappointed with in terms of funding and driving this kind of research are the agencies like National 

Science Foundation, National Institutes of Health, as well as 

NIOSH. I think they could be doing a lot more in driving this research. And I do like the idea of the chairwoman, funding centers 

of excellence in terms of these areas. 

Ms. CLARKE. Thank you very much. Mr. Setley, what type of collaboration do you feel must be established with the workers in the 

industry and how should it be integrated into CFATS regulatory 

process? 

Mr. SETLEY. Thank you, by the way, for the question. It would 

be our position in labor that the workers be intimately involved in 

the formulation of any and all security plans, first and foremost because it is where they work. They are going to be the ones first and 

most dramatically impacted by anything that happens. Rarely do 

people attack plants when they are empty. The workers are going 

to be there, the workers know where to hide the bomb. Those are 

the folks who need to be involved and anything in a regulatory 

matter that requires that is something that is going to be very beneficial not only to the worker, but ultimately to the companies and 

communities surrounding any of the plants. 

Ms. CLARKE. Do you feel that the voices of the workers have been 

taken into account thus far? 

Mr. SETLEY. Not as much as I would like. 

Ms. CLARKE. And what do you think that we can do to sort of 

amplify that? 

Mr. SETLEY. I think what we can do, we should all be doing, is 

making requirements, not suggestions, requirements for all of the 

stakeholders. I keep hearing the word ‘‘stakeholders’’ and certainly 

the workers are a stakeholder in the chemical plant. Requiring that 

the stakeholders are involved, not suggesting. We have to move 

away from hope to a point where we have actual concrete language 

that we can point to say it is a requirement and not a suggestion. 

Ms. CLARKE. Thank you. Mr. Sondermeyer, as the DHS chemical 

facility anti-terrorism standards are beginning to be implemented, 

is there anything you feel DHS should be doing differently? How 

well is DHS coordinating with your State? 

Mr. SONDERMEYER. I do believe as the Colonel represented earlier, we do work very well together and particularly we have 

worked well together on critical infrastructure protection. I do 

think there are some elements of the bill that are critically important. One of them was the discussion we had on access to informaVerDate Nov 24 2008 08:46 Nov 10, 2009 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-89\48984.TXT HSEC PsN: DIANE
56 

tion and confidentiality, and I am very heartened that we have a 

State and local work group working together actively to make sure 

that the CVI issue does not take a turn that does not result in 

sharing of information. If we don’t share information with the State 

partner, you know, we are not effectively working together. As I did 

mention, the whole collaboration through a delegated authority we 

think is something that is important so that we can work better 

together. Because that is a concern that I have, that we go down 

a road where we are not properly connected and we are—and I 

think the chairwoman had perhaps used the term in her opening 

statement of not reinventing the wheel—to not reinvent the wheel 

so that we are working closely together, collaboratively for efficient 

government for such an important topic as homeland security. 

Ms. CLARKE. Thank you, Madam Chair. 

Ms. JACKSON LEE. Thank you, Ms. Clarke. Mr. Pascrell, do you 

want to ask one or two more questions? 

Mr. PASCRELL. Thank you. 

Ms. JACKSON LEE. Thank you. 

Mr. PASCRELL. Mr. Sondermeyer, the chemical sector best practices standards I failed to mention when I was asking the question 

the first time. These are not mandatory, are they? 

Mr. SONDERMEYER. They are mandatory. 

Mr. PASCRELL. They are mandatory in the State of New Jersey? 

Mr. SONDERMEYER. They are mandatory in the State of New Jersey for a universe of approximately 157 facilities that report under 

certain SIC or NIA codes. 

Mr. PASCRELL. And the rest had simply asked for an evaluation, 

those other chemical facilities? Or was it mandatory for every 

chemical facility in New Jersey? 

Mr. SONDERMEYER. Sadly it is very confusing. The base program 

for implementing best security practices is applicable to all 450 recognized DCPA, or discharge prevention facilities in our State. The 

standards which go further and are mandatory are applicable for 

157 facilities. And 45 of the 157 were required to do the—— 

Mr. PASCRELL. But the inherently safer technologies is not mandatory? 

Mr. SONDERMEYER. Mandatory to do the review, not mandatory 

to implement the findings. 

Mr. PASCRELL. Now, New Jersey passed the Toxic Catastrophe 

Prevention Act in 1986. In April of this year, the Department of 

Environmental Protection proposed amendments to that act to require all companies subject to the program to evaluate the potential of incorporating inherently safer technology at their facility. I 

think it is worth noting, as you have said in your testimony, that 

in New Jersey the inherently safer technologies requirement under 

the chemical sector best practices standards represents a practicability test as I see it. It is not mandatory that a covered facility implement IST, only that they evaluate it. From your experience implementing a program in New Jersey, do you feel that there is a 

cost/benefit relationship to performing IST analysis? 

Mr. SONDERMEYER. Thank you. I would say, as I said earlier in 

my remarks, that from our experiences working very cooperatively 

with the chemical industry, that IST analysis is really a good business practice. So there is a cost/benefit analysis element to it. It 

57 

makes sense from the company’s perspective to evaluate inherent 

safety and to make appropriate changes for economic reasons. 

We talked a lot about worker safety, which is of critical importance. They look out for their employees and of course from our 

perspective as a DEP regulatory compliance. So we do think that 

there is a cost/benefit analysis positive to performing the analysis. 

And as you referenced, sir, the rulemaking that we proposed in 

April really takes the requirement for inherently safer technology, 

which it has already done for the chemical plants. And we feel so 

strongly from our experience, we seek to expand it, to involve food 

processing facilities, water treatment facilities, wastewater plants 

and some energy facilities. 

Mr. PASCRELL. How many times do you meet with Mr. Canas to 

go over what you find at these chemical facilities? He is the head 

of Homeland Security in the State of New Jersey. What kind of 

regular meetings do you have with him? 

Mr. SONDERMEYER. My response would be that our relationship 

is pretty much seamless. It is an unusual program. We don’t have 

dedicated resources. But to directly answer your question, I in my 

title as the Chief of Staff, Director of Operations am with folks 

from Director Canas’ office every other week. Every 2 weeks we 

have a structured meeting to coordinate. 

Mr. PASCRELL. Will the new CFATS regulations require those facilities to make significant security upgrades, and my second question is without identifying the facility, the facility’s name or location, can you describe the security measures your facilities are putting in place? Could you give us an idea of what they are doing to 

make the place safer? Because we know if one of these things goes 

off in terms of the volatility of the chemicals we have got a natural 

disaster. 

Mr. SONDERMEYER. Right. Yeah. 

Mr. PASCRELL. Or a very unnatural disaster. 

Mr. SONDERMEYER. Right. I think it is fair to say that the measures put in place are very comprehensive and sweeping. It is hard 

to answer really specifically because each plant is different. And 

that is why the site specific vulnerability assessment is so critical. 

So you look at each individual circumstance. Target hardening certainly has been done across the board in terms of fencing and scanning and bollards and whatever target elements are put in place, 

cyber security protocols, which is of critical importance. 

We had some experiences in New Jersey where a system went 

down for a few days. It paralyzes you. Cyber security is very critical. Badging and credentialing, background checks, you know, who 

can access, who can’t access, who is looking at the Sparkletts water 

person or the Purolator courier delivery person. All these elements 

have been part of the best practices that we adopted that they had 

to evaluate and come up with schedules for implementing. 

Mr. PASCRELL. Madam Chairwoman, can I ask one more question 

of Mr. Miller? 

Ms. JACKSON LEE. Mr. Pascrell, if you can be very quick on that 

last question. And then if Mr. Miller—please abbreviate your answer. 

58 

Mr. PASCRELL. Could you be as nonspecific as I asked Mr. 

Sondermeyer to be in terms of the facilities under your jurisdiction? 

Mr. MILLER. Well, first of all, Congressman Pascrell, we have got 

a limited number of facilities in New Jersey and we do have a presence there. So anything—I have got to be very careful about not 

getting real specific about what we have done at our facilities. I 

will concur with Mr. Sondermeyer, that the measures that he mentioned we do in fact have. I will say that we also helped write the 

best security practices that are in place there. 

Mr. PASCRELL. I think that is important that you mention that. 

Mr. MILLER. But I also will point out that in the inspections that 

were done in reaction to the IST requirements, the focus tended to 

be because he has already said that their people were trained on 

the DEP side, that the focus tended to be on what type of evaluation we did related to IST and the focus was not as heavy on what 

kind of security measures we had in place. From a security professional, that is a concern of mine, that the focus moves from the 

overall security posture that we have in place as opposed to focusing on one particular security measure. 

Mr. PASCRELL. I think that is significant what you just said in 

that we need to be doing more things in terms of the security rather than talk about the safety aspect of this whole situation. I think 

that is very important that you mentioned that. 

Thank you very much. Thank you for all your testimony. Thank 

you. 

Ms. JACKSON LEE. The gentleman’s time is expired. I thank Mr. 

Pascrell. He made a very, very key, if you will, distinction that defines the Homeland Security Committee and Department. And that 

is the idea of security and, Mr. Pascrell, it seems that when we discuss this issue there is an enmeshing or a fudging of the safety security definition and many people will wonder why our additional 

oversight because they say we are safe. But safety is not security. 

And frankly I believe it is important that the conclusion of this 

hearing, and there may be a need for another hearing to indicate 

that we are going to have legislation, the focus will be on security. 

And the idea will not be to stifle the productivity and growth of the 

industry. But it is to recognize that the chemical and refining industry many times are located in the seat of population, they remain vulnerable because they are old, their equipment is old, and 

we hope that this oversight will be taken as a positive step, one, 

to look to 21st century technology to provide a vehicle for academic 

institutions, to begin to assess cutting edge technology that will be 

helpful to the industry and, as Mr. Setley has said, to make chemical security employees on the frontline providing security in those 

areas. And as I am continuously concerned with surrounding neighborhoods, to let them not be acted upon, but to have them act with 

us in securing their neighborhoods. 

And finally, Colonel, as I started out this hearing, we thank you 

for your service. There has been a decided improvement and recognition of your commitment to the security of America. It is our 

responsibility as members of this committee to in essence turn the 

lights on, pull the covers back and pronounce the need for more resources and more personnel and not run from it and not hide from 

59 

it and ask this administration if they recognize that you have the 

needs that you have. We will be the voice because we have to be 

the voice for the people. And frankly I believe that there is a great 

need to be able to bolster your department for the many infrastructure needs that we are going to be addressing that are now still 

in the eye of the storm. And certainly you don’t have the resources 

to cover that gamut. We don’t want to give the details to those who 

are our enemies, but we want to be prepared to be in front of the 

enemies and not behind them. 

So we thank you for your testimony, all of you. Certainly, Mr. 

Sondermeyer, we thank you for representing in essence the States 

and their work and we look forward to working and collaborating 

with them. Mr. Miller, send the word out to the industry that we 

are not foes, but we need to be allies in the war against terror and 

the idea of securing the homeland. I thank the witnesses for their 

valuable testimony and the members for their questions. The members of the subcommittee may have additional questions for the 

witnesses, and we will ask you to respond expeditiously in writing 

to those questions. 

In addition, I ask for unanimous consent that these testimonies 

and reports be entered into the record, Synthetic Organic Chemical 

Manufacturers Association report entitled Chemical Security New 

Jersey, completed by the Maxwell School at Syracuse University. 

Dr. Mannan, there goes the academic report. 

[The information follows:] 

FOR THE RECORD

SUBMITTED TO THE

U.S. HOUSE OF REPRESENTATIVES

COMMITTEE ON HOMELAND SECURITY

SUBCOMMITTEE ON TRANSPORTATION SECURITY AND INFRASTRUCTURE PROTECTION

ON

U.S. DEPARTMENT OF HOMELAND SECURITY’S CHEMICAL FACILITY ANTI-TERRORISM

STANDARDS (CFATS) AND OTHER RELATED CHEMICAL SECURITY MATTERS

PREPARED BY

WILLIAM E. ALLMOND, IV, DIRECTOR, GOVERNMENT RELATIONS, SOCMA 

WITH

JEFFREY GUNNELFSEN, SENIOR MANAGER, GOVERNMENT RELATIONS, SOCMA 

DECEMBER 12, 2007 

I. Introductory Comments 

SOCMA appreciates the opportunity to submit this testimony regarding the implementation of the U.S. Department of Homeland Security’s (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) and other related chemical security matters. 

Our goal is to provide you with a description of the effects of the Agency’s new 

chemical security standards are having on the specialty and batch chemical manufacturing sector. We also want to share our position on the use of inherently safer 

technology (IST), as well as our opinions on the Department’s staffing and resources. 

60 

About SOCMA. Approximately 90 percent of SOCMA’s members are small businesses, according to Small Business Administration definitions. While commodity 

chemicals make up most of the production volume in the global marketplace, specialty and batch chemicals make up most of the diversity (the number of different 

chemicals) in commerce. As a condition of membership in SOCMA, chemical companies must subscribe to our environmental, health, safety, and security management 

system, ChemStewards. This self-imposed program requires companies to develop 

systematic approaches to environmental and chemical risk management with independent, third-party verification. 

II. The Unique Nature and Role of Specialty and Batch Chemical Manufacturing Sector 

Specialty and batch chemicals are essential ingredients and building blocks for 

the manufacture of almost everything produced in the United States. Specialty and 

batch chemicals perform very specific functions, based largely on their molecular 

structures, giving them unique physical and chemical properties. Without these substances, nylon would not be strong enough to use for seatbelts, medicine would revert back to what it was in the 1800s, and our armed forces would not have the 

equipment and supplies necessary to defend our country. 

Specialty batch chemicals have complex chemistries and narrowly focused applications, and are typically produced batch-by-batch in reaction vessels. Batch processes 

are very different from the 24 hours-a-day, 7 days-a-week continuous operations 

that produce commodity chemicals. Since continuous processes employ continuous 

feeds and yields, the production volume is usually far greater than for batch processes. The main difference, however, is that a batch process, incorporates the chemical reaction (and yields the desired product), has a distinct beginning and end for 

each batch. As a result, the products that are stored onsite also change on a continual basis. 

Batch producers are necessarily flexible, and they can make many different products during any given production year. Their business is driven by customer demand, and many chemicals are made on short notice. As a result, the types and 

quantities of chemicals onsite at a batch manufacturing facility often change from 

week to week or even day to day, leading to similarly frequent changes in the risk 

profile of the facility. Because of the differences in processing and variable production schedules, another distinct feature among specialty and batch chemical producers is the variability of risk at production and storage sites. This ever-changing 

risk profile can be a challenge for risk managers, but it also provides opportunities 

to continually review the chemistries for novel and safer approaches. Conveniently, 

frequent changes in the risk profile also makes it that much harder for a potential 

terrorist to know what chemicals are on site and in what quantities at any one time. 

The inherent variability of batch manufacturing can actually make these sites less 

attractive as a target of terrorists. 

III. Implementation of CFATS and Path Forward 

With the November 20, 2007, Federal Register publication of Appendix A to the 

Chemical Facility Anti-Terrorism Act standards, the chemical security regulations 

are finally being implemented. It is premature to judge today how well the implementation of the standards is or will unfold. Nevertheless, there has been progress 

made that is worth noting, in addition to concerns with the direction of the standards going forward. 

The approach taken by the Department in promulgating the standards is the 

right approach. The Department kept the potentially regulated community engaged 

during the development process rather than seeking input only after the fact. Instead, DHS carefully took into consideration how important it is to know who is 

handling dangerous chemicals, and limiting regulations to the highest risk chemicals at the sites that pose the highest security risk to the nation. It would have been 

far too easy to make one-size-fit-all regulations. The practical, risk-based standards 

that emerged mandate robust, accountable actions with stiff penalties for non-compliance. 

An important point to understand is that the industry did not wait for federal 

standards before taking actions to secure their facilities. Millions of dollars have 

been invested following 9/11 to implement additional security measures above and 

beyond those that are put in place in accordance with normal operating procedures 

at a chemical facility. In 2002, SOCMA and its members developed a comprehensive, asset-based security vulnerability assessment methodology (SVA) and voluntarily completed assessments years prior to CFATS. The methodology was eventually recognized by the Center for Chemical Process Safety (CCPS) as a recommended methodology. Additionally, SOCMA members have been required to inteVerDate Nov 24 2008 08:46 Nov 10, 2009 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-89\48984.TXT HSEC PsN: DIANE
61 

grate security practices into their management system, ChemStewards, which is 

mandated by SOCMA. 

Some other security achievements prior to CFATS finalization that are especially 

noteworthy include the Chemical Industry Site Security Guidelines, that SOCMA 

cosponsored in 2001 to serve as a temporary, but timely, compilation of security best 

practices. SOCMA has also sponsored numerous well-attended conferences and webbased seminars since 2001, which have established a higher degree of attention to 

chemical plant and chemical transportation security following 9/11. SOCMA helped 

lead the development of the Chemical Sector Coordinating Council, which assembles 

the various sectors of the industry to discuss priority security issues and provides 

a forum to exchange information about threats and vulnerabilities with DHS and 

other key Federal and State government agencies. 

These examples only scratch the surface in listing the activities and achievements 

made by the industry to better secure their facilities and products. The bottom line 

is SOCMA and its members took and continue to take the initiative in addressing 

chemical security challenges. DHS’s new security standards will complement many 

of these achievements and provide for additional safeguards where necessary. 

The biggest concern we have about the implementation of CFATS is the possibility of having the requirements altered by Congress in mid-stream before the 

standards expire. The single fact that the standards expire within a short window 

of time after being promulgated is difficult enough—though not impossible—for 

members, particularly from a planning and implementation perspective. On the 

other hand, the limited timeframe given to the implementation of CFATS further 

underscores why Congress should resist calls from special interest groups to revise 

the standards now. SOCMA urges Congress to not delay further the implementation 

of this important set of regulations. While we are confident that our members are 

prepared to comply with the standards, the extent of security commitments by other 

facilities subject to CFATS is unknown. These standards provide unified regulations 

and will go a long way towards holding covered facilities accountable. We look forward to working with Congress in the future to re-authorize the CFATS. 

IV. SOCMA’s General Position on IST and the Commonwealth of New Jersey’s Inherently Safer Technology (IST) Review Under its Toxic Catastrophe 

Prevention Act (TCPA) 

SOCMA members covered by New Jersey’s chemical security rules report that the 

rules have not been overly burdensome. However, they also report that inspections 

conducted by the State focus 80 percent on a site implementation of IST and only 

20 percent on actual security regulatory compliance. Since many sites in New Jersey 

are also subject to Federal rules, such as the Environmental Protection Agency 

(EPA)’s Risk Management Program (RMP) and the Occupational Safety and Health 

Administration (OSHA)’s Process Hazard Analysis (PHA) regulations, in addition to 

state rules, one could question the priority of the New Jersey security program. 

The New Jersey ‘‘prescriptive order’’ did not go through due process (notice and 

comment) and rulemaking, denying the regulated community the opportunity to 

comment on the rule and resulting in a number of issues and gaps that could have 

been easily avoided or otherwise addressed. 

IST is only one of many methods for potentially reducing risk and vulnerability. 

Vulnerability assessments should consider the feasibility of a multitude of methods 

that would improve security while achieving the optimum balance of vulnerability 

reduction cost effectiveness. From our members’ experience in New Jersey, as stated 

previously, the focus of the vulnerability assessments was entirely on IST to the 

point of essentially neglecting all other methods of improving security. Since IST 

has long been an integral part of designing a facility and regular plant health assessments, the newly required New Jersey vulnerability assessments audits were of 

very little value because of its narrow focus. The New Jersey security process could 

be greatly improved by broadening the scope to include the entire available spectrum of physical security tools and processes. 

SOCMA recognizes that employee awareness, knowledge and assistance may be 

necessary in identifying and effectively managing security-related scenarios. However, employee inclusion throughout the entire vulnerability assessment process 

adds little security expertise and raises concerns regarding the protection of Security Sensitive Information (SSI) or Chemical-terrorism Vulnerability Information 

(CVI) discussed during the process. Furthermore, the protection of security information (non-disclosure) provisions in the prescriptive order and under New Jersey law 

are insufficient and fall short of federal information protection standards for security related information 

On a federal level, SOCMA believes that the DHS has a useful role to play in 

encouraging the private sector to incorporate IST as a means to reduce security 

62 

risks at chemical facilities wherever possible. However, we do not support regulatory measures that mandate IST. Such mandates are unnecessary and, in some 

cases, would fall short of their intended purposes. 

Supporters of regulatory IST measures within the context of chemical security either ignore industry’s commitment to this every day process safety measure or they 

misunderstand its purpose. In the name of security IST is being used to support environmental agendas and not security. IST is an established chemical engineering 

philosophy that was launched by the industry in the late 1970s. Its goal is to use 

traditional engineering, chemistry, and other scientific concepts to reduce the risks 

associated with chemical processing. Risk and safety are often used in the same context, but the two actually have an inverse relationship: as risk is reduced, safety 

is increased. Since its inception, IST has been ingrained as a normal part of the engineering discipline in the chemical industry. 

The main goal of IST is to reduce risks to health and the environment, similar 

to the goals of pollution prevention (P2) and risk management in general. The idea 

is to tie risk reduction to lower operating costs, which is fairly straightforward in 

the chemical industry. The costs associated with handling materials classified as 

hazardous have increased substantially over the past 20 years. The economic incentives for reducing the use of hazardous chemicals include reducing the likelihood of 

accidents among laboratory and processing workers, cheaper transportation and disposal costs, discounted insurance rates and fewer regulatory requirements. Obviously, it is in a chemical companys best financial interest to handle less hazardous 

substances; it reduces costs, which helps maximize profits. The concept of risk reduction, practiced through IST, P2 and other environmental management systems, 

is an important feature of the business model employed by chemical producers. The 

same principle applies for those who use, store or distribute chemicals. In many 

ways IST is already built into the chemical supply chain. 

The pilot phase in research and development (R&D) typically attempts to replicate 

the bench-scale results at a slightly larger scale. The process (i.e., chemical reaction 

and necessary equipment) is reviewed in detail and tweaked accordingly. The R&D 

phase may continue and include trial usage at the customer’s site, to check product 

performance, ensure that the product can be used safely and make sure that there 

are no unaccounted risks. IST does not stop at the R&D phase, however. This approach is also applied when full-scale production begins, to double-check findings 

from earlier studies. If changes in production are made at some point in the future, 

the review process is conducted all over again to see what impacts the changes will 

make. 

IST approaches are based on fundamental, long-standing engineering and chemistry principles. The concepts associated with IST work because they identify opportunities to maximize yields, reduce wastes and reduce risk, which, in turn, reduce 

cost and maximizes profit—the most powerful driver in business. Even if the conditions in the market place change, such as new regulations or restrictions, the fundamental driver for business decision-making will continue to be the maximization of 

profit. IST uses fundamental engineering and chemistry principles that fit well into 

the chemicals business model. 

Despite its fundamental importance, IST is one of the most misunderstood concepts in commercial chemistry. While it seems self-explanatory, the term as used 

in chemistry and engineering may be misleading to non-scientists. Many non-scientists have been led to believe that the only way to ensure safe chemical manufacturing or achieve pollution prevention is by reducing the amount of hazardous substances used in chemical manufacturing and processing. Application of IST, however, follows basic, scientific principles, and is bound by the laws of physics; a simple reduction in the use of hazardous chemicals is rarely possible within the confines of a particular chemical reaction or process. When such reductions are possible, they often result in the transfer of risk to other points in a chemical process 

or the supply chain, without actually reducing it. To place the current IST debate 

in context, this discussion will begin with an illustration of the limitations of substitution in the field of chemistry, and then move to an explanation of why reducing 

a hazard in a process does not necessarily reduce the overall risk. 

Like IST, chemistry is also bound by the laws of physics. These physical laws 

place restrictions on what can and cannot be done when trying to make a chemical. 

For instance, a molecule (i.e., a chemical) is made up of atoms (e.g., sodium, carbon, 

chlorine, etc.) that are in specific locations or positions on the molecule. In organic 

chemistry, the goal is to take the atoms from one molecule and move them to locations on another, different molecule so that the target molecule takes on a specific 

function or behavior. 

The laws of physics dictate if, how and when those atoms can be moved. To 

achieve certain critical structural changes, reactive chemicals must be used, and 

63 

many are by their very nature hazardous, e.g., toxic, flammable, etc. In light of 

these constraints, scientists seeking to achieve certain chemical changes are often 

left with few alternatives. Where hazardous chemicals are used, they are highly regulated by EPA, OSHA, the Department of Transportation (DOT) and other agencies, 

and appropriately managed by chemists in universities, government and industry. 

Scientists usually cannot produce the materials that make our standard of living 

possible without using very specific chemicals. Making medicine is a good example. 

Often, it takes multiple steps to make medicine. Each step in the process carefully 

moves atoms from one molecule to locations on another molecule. Eventually, the 

scientist will obtain the desired chemical that performs a precise medicinal function. 

The movement of these atoms, from one molecule to another, is a chemical reaction 

and can only take place using certain materials. The chlorine atom, for instance, 

when it is located on a specific part of a molecule, allows these steps to take place. 

One common misconception, though, is that any chlorine atom will do. That is not 

the case. Chlorine atoms take on different behaviors, or physical properties, depending on the atoms to which they are attached. 

Table salt consists of the sodium (Na) and chlorine (Cl) atoms, which make up 

the chemical sodium chloride (NaCl). The chlorine atom used to make medicine, on 

the other hand, often comes from phosgene (COCl2) or phosphorous trichloride 

(PCl3). Phosgene, for example, has one carbon atom bonded to one oxygen atom and 

two chlorine atoms, giving the chlorine atoms very specific characteristics. The sodium atom that is attached to the chlorine atom in table salt, however, gives the 

chlorine a different nature. The very specific nature of the chlorine atom in phosgene is critical to its fundamental role in pharmaceutical manufacturing and minimizes the formation of potentially toxic by-products that would otherwise contaminate the medicine. By contrast, to use the chlorine in table salt in the drug manufacturing process would require the application of electrical energy to the salt, resulting in the formation of chlorine gas, which is corrosive and poisonous by inhalation. At that point, it is no longer table salt; it has been converted into a compound 

(chlorine) with similar hazards to the phosgene and achieving that conversion required the introduction of additional risks. The complex chemistry associated with 

making medicine has well-defined physical boundaries and requires the use of reactive chemicals. That is why, generally, medicine is not made from table salt. 

IST is a conceptual and often complex framework that covers procedures, equipment, protection and, when feasible, the use of less hazardous chemicals. Its 

premise is that if a particular hazard can be reduced, the overall risk associated 

with a chemical process will also be reduced. In its simplicity, it is an elegant concept; however, reality is not always that simple. A reduction in hazard will reduce 

overall risk if, and only if, that hazard is not displaced to another time or location, 

or does not magnify another hazard. If the hazard is displaced, then the risk will 

be transferred or increased, not reduced. In science, risk is dependent on the circumstances and surroundings of a hazard. A simple reduction in hazard will not 

necessarily result in a reduction of overall risk. IST decisions, therefore, are and 

should be based on overall risk, not simply on inherent hazards. 

Here are several examples of how seemingly simple reductions in hazard may affect overall risk: 

Reducing the amount of a chemical stored on site 

A manufacturing plant is considering a reduction in the volume of a particular 

chemical stored on site. The chemical is used to manufacture a hazardous precursor 

to a critical nylon additive, which is sold to another company and used to make seat 

belts stronger. Because it is a critical component for nylon strength, and seatbelt 

production cannot be disrupted, the production schedule cannot change. If the 

amount stored on site is reduced, the only way to maintain the production schedule 

is to increase the number of shipments to the site. This leads to more deliveries (an 

increase in transportation risk), more transfers of chemical from one container to 

another (an increase in transfer risk) and, since there is now a greater chance that 

production could be disrupted by a late shipment, there is an increase in economic 

risk. 

Substituting Sodium Hypochlorite for Chlorine 

Some people point to the Blue Plains water treatment plant in Washington, DC, 

as a prime example of how easy it is to substitute sodium hypochlorite solution for 

chlorine gas as a wastewater disinfectant. Unfortunately, several important facts 

are usually missing from these explanations. First, the conversion was not an overnight process; in fact, the substitution began prior to September 11, 2001, and included costly retrofitting to the plant to accommodate the substitution. Secondly, the 

District of Columbia is in a different situation financially than other municipalities, 

in that it often receives federal funding to make such expensive changes possible. 

64 

Also, it takes a large amount of sodium hypochlorite to achieve the same sanitizing 

effects as chlorine. But the most important fact missing from this story is that it 

takes chlorine to make sodium hypochlorite. The facilities producing the hypochlorite must now use and store vast quantities of chlorine in very few locations to 

keep up with the increased demand. There are only a handful of sodium hypochlorite producers in the United States, which means that more and more chlorine 

will have to be concentrated in a few locations to keep up with demand. The ultimate result of this is a huge increase in risk at chemical facilities that produce hypochlorite and, since water treatment plans typically use 1-ton cylinders, a somewhat modest reduction in overall risk. 

As noted earlier, the philosophical movement of IST was born in the chemical industry during the late 1970s and is routinely practiced by chemical engineers. It can 

be argued that this approach, along with the concept of P2, led to the establishment 

of environmental management systems, which provide a systematic way to manage 

environmental, health and safety risks. At no time during the evolution of IST were 

the founders thinking about applications in chemical site security. In fact, practitioners of IST, i.e., chemical engineers, to this day consider IST strictly an environmental, health and safety approach. 

Only recently have some people sought to connect the concept of IST to security; 

and, they are typically not engineers, nor do they practice IST. In fact, most do not 

have the technical background to fully grasp the concepts and principles that comprise IST. Further, they misunderstand that IST is a risk-based concept and not a 

hazard-based concept. 

To SOCMA’s knowledge, only one study has been conducted to attempt to connect 

the concept of IST to security. In April of 2006, the Center for American Progress 

published a report, Preventing Toxic Terrorism, How Some Chemical Facilities Are 

Removing Danger to American Communities, which claims that 284 chemical facilities have substituted hazardous materials for less hazardous products. It is easy to 

misinterpret this report. Just the title alone is misleading, because it uses the term 

‘‘chemical facilities,’’ when, in fact, approximately 90 percent of the study facilities 

are related to utilities, not chemical plants. Most of the facilities in the study are 

related to water treatment (about 75 percent), agriculture (almost 10 percent) and 

electricity (about 5 percent). Out of the 16 manufacturers that responded, only 6 

were in the chemical or allied products industries. Most of those 6 make formulations, which are mixtures of chemicals, but those companies do not actually produce 

the chemicals. The IST methods applied were as follows: • 3 moved operations or storage to another location • 1 changed from rail shipments to pipeline distribution • 1, a chemical wholesaler, provided no explanation of what was done • Only 1 company actually implemented IST; but, in reality, it was an engineering and process change more than a chemical substitution 

This study has little to do with chemistry or chemical manufacturing. It primarily 

concerns the substitution of products used by water and electricity providers, and 

farmers. 

In most cases presented in the report, chlorine was substituted with sodium hypochlorite solution. As was previously pointed out, it takes chlorine to make hypochlorite bleach; therefore, the few bleach manufacturers will have to have much 

more chlorine on hand, concentrated in very few places, to keep up with the everincreasing demand for hypochlorite solution. This not only transfers the risk, but 

concentrates it and magnifies it—due to more chlorine being needed at the bleach 

manufacturing sites. Also, commercial grade hypochlorite solutions present very 

well-known risks as well. 

The prefix ‘‘hypo’’ indicates that the compound has as much chlorine as is physically possible and needs a specific substance to prevent the chlorine gas from being 

released out of the hypochlorite solution. Hypochlorites by their very nature are unstable compounds, which is why we do not see a dry form of sodium hypochlorite, 

and will release copious amounts of chlorine gas under easy-to-achieve conditions. 

I would argue that there are more incidents involving the release of chlorine from 

hypochlorites than releases from actual chlorine vessels, such as rail cars and cylinders. 

The only example in the report of IST being used at an actual chemical facility 

was the substitution of oleum with sulfur trioxide. Oleum, also known as fuming 

sulfuric acid, is simply sulfuric acid with an excess of sulfur trioxide added. The sulfur trioxide is the chemical consumed in the process, and is much more dangerous 

than the sulfuric acid. The company chose to manufacture and consume the sulfur 

trioxide on-site, rather than having it delivered in concentrated sulfuric acid. This 

is an excellent example of IST, because the transportation and transfer risks were 

reduced, and waste was minimized. These changes will probably pay for themselves 

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and reduce overall costs for the company in the long run. In the context of security, 

however, is there a significant amount of risk reduction? It could be argued that the 

answer is no. Although oleum releases sulfur trioxide fumes, it does so at a rate 

that is much slower than a release of pure sulfur trioxide from a pressurized cylinder or rail car. Because of the slow release of sulfur trioxide gas from the oleum, 

a release would be fairly easy to control compared to a release of liquefied or pressurized sulfur trioxide. 

IST uses chemistry and engineering principles to enhance safety and reduce risk. 

Chemistry and engineering must follow the laws of physics, significant risk reduction is very difficult to achieve, without transferring the risk to something—or someone—else. 

Congress already created a law to ensure that full consideration is given to the 

same concepts and principles that make up IST: The Pollution Prevention Act. 

There are also components of IST built into the EPA’s Risk Management Program, 

under the Clean Air Act, and the Process Safety Management regulations at OSHA. 

IST is an environmental, health and safety approach, and not a panacea for security. 

Members of the industry support the concept of using inherently safer technologies whenever possible for more than economic reasons. They have a big motivating factor: their own safety. Scientists spend hours each day in laboratories and 

manufacturing facilities that use and produce chemicals. It is difficult to imagine 

that any scientist would not want to work under the safest conditions possible. 

With all of these economic and safety incentives in place, the question becomes: 

Why do chemical companies still use hazardous materials? The laws of physics are 

a much larger determining factor in selecting process materials than anything else. 

No federal program mandating IST or P2 will change how these processes are run 

in any significant way. Instead, such a program would result in government micromanagement of the design and engineering at individual facilities, would impose 

burdensome paperwork requirements on the regulated community, would duplicate 

certain key requirements of other federal and state regulatory programs, could slow 

chemical production activities, and could lead to manufacturers moving production 

overseas. Forcing implementation of IST could be quite costly. As the cost of doing 

business in the U.S. increases, manufacturers will seek opportunities to relocate to 

lower-cost regions, taking much needed manufacturing jobs with them. 

V. CVI 

SOCMA generally supports the level of information protection provided for under 

CFATS CVI provisions. Most military, industrial security, law enforcement and intelligence professionals agree that the protection of information that could be exploited by adversaries is paramount to a security program. SOCMA’s biggest concern is the lack of a notification procedure to alert facilities that CVI may have been 

disclosed to an unauthorized party. A facility certainly has a need to know if sensitive information pertaining to its site has been disclosed. 

Additionally, some uncertainty exists with managing facility security information 

that is now classified as CVI. When the U.S. Department of Transportation adopted 

its sensitive security information (SSI) designation several years ago, there was 

widespread confusion over how to adequately restrict access to documents that were 

once openly available to employees and how to convincingly communicate this to employees who were subsequently restricted because they were not authorized users. 

VI. DHS Staffing/Resources 

SOCMA would like to recognize DHS for the good work that they have done in 

a limited amount of time and with limited resources. They have created a sensible 

security program that is risk based, recognizing that not all chemical sites are the 

same nor will they all have the same hazards or pose the same risks. SOCMA does 

request that Congress provide additional resources to the DHS CSCD to ensure the 

program can continue to fulfill its mission. 

VII. Conclusion 

Compliance with the U.S. Department of Homeland Security’s Chemical Facility 

Anti-Terrorism Act standards is now underway. It is too early to judge how well the 

implementation of the standards will unfold. Nevertheless, it is certain that statutory changes to the standards before they expire will undermine the implementation. Attempts to mandate product substitutions as a means to reduce security risks 

should be avoided. Current standards are appropriately based on risk, not hazards. 

There are numerous well-established State and Federal regulations that industry 

must currently follow that adequately mandate process safety, pollution prevention, 

and process hazard analysis. In conclusion, the current standards need to be allowed 

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to be implemented, CVI needs to be further explained, and IST is not the solution 

to chemical site security. 

Ms. JACKSON LEE. And with that, hearing no further business, 

hearing no objection to the submission of these particular documents and then hearing no further business, the committee stands 

adjourned. Thank you again. Happy holiday to all. 

[Whereupon, at 12:05 p.m., the subcommittee was adjourned.] 

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