S. Hrg. 111–1020 

CHEMICAL SECURITY: ASSESSING PROGRESS AND 

CHARTING A PATH FORWARD 

HEARING 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

MARCH 3, 2010 

Available via the World Wide Web: http://www.fdsys.gov/ 

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs 

( 

CHEMICAL SECURITY—2010 

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56–889 PDF 2011

S. Hrg. 111–1020 

CHEMICAL SECURITY: ASSESSING PROGRESS AND 

CHARTING A PATH FORWARD 

HEARING 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

MARCH 3, 2010 

Available via the World Wide Web: http://www.fdsys.gov/ 

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs 

( 

(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

ROLAND W. BURRIS, Illinois 

PAUL G. KIRK, JR., Massachusetts 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

JOHN MCCAIN, Arizona 

GEORGE V. VOINOVICH, Ohio 

JOHN ENSIGN, Nevada 

LINDSEY GRAHAM, South Carolina 

ROBERT E. BENNETT, Utah 

MICHAEL L. ALEXANDER, Staff Director 

HOLLY A. IDELSON, Senior Counsel 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

ROBERT L. STRAYER, Minority Director of Homeland Security Affairs 

DEVIN F. O’BRIEN, Minority Professional Staff Member 

TRINA DRIESSNACK TYRER, Chief Clerk 

PATRICIA R. HOGAN, Publications Clerk and GPO Detailee 

LAURA W. KILBRIDE, Hearing Clerk 

(III) 

C O N T E N T S 

Opening statements: Page 

Senator Lieberman ........................................................................................... 1 

Senator Collins ................................................................................................. 3 

Senator Voinovich ............................................................................................. 14 

Senator Pryor .................................................................................................... 15 

Senator Carper ................................................................................................. 16 

Senator Levin .................................................................................................... 19 

Prepared statements: 

Senator Lieberman ........................................................................................... 39 

Senator Collins ................................................................................................. 41 

WITNESSES 

WEDNESDAY, MARCH 3, 2010 

Hon. Rand Beers, Under Secretary, National Protection and Programs Directorate, U.S. Department of Homeland Security, accompanied by Sue Armstrong, Acting Deputy Assistant Secretary for Infrastructure Protection, 

U.S. Department of Homeland Security ............................................................. 5 

Hon. Peter S. Silva, Assistant Administrator for Water, U.S. Environmental 

Protection Agency ................................................................................................. 8 

Darius D. Sivin, Ph.D., Legislative Representative, International Union, 

United Automobile, Aerospace, and Agricultural Implement Workers of 

America ................................................................................................................. 22 

Timothy J. Scott, Chief Security Officer and Corporate Director, Emergency 

Services and Security, The Dow Chemical Company, on behalf of the American Chemistry Council ....................................................................................... 25 

Stephen E. Poorman, International Environment, Health, Safety, and Security Manager, Fujifilm Imaging Colorants, Inc., on behalf of the Society 

of Chemical Manufacturers and Affiliates ......................................................... 27 

ALPHABETICAL LIST OF WITNESSES

Beers, Hon. Rand: 

Testimony .......................................................................................................... 5 

Prepared statement .......................................................................................... 44 

Poorman, Stephen E.: 

Testimony .......................................................................................................... 27 

Prepared statement .......................................................................................... 75 

Scott, Timothy J.: 

Testimony .......................................................................................................... 25 

Prepared statement .......................................................................................... 71 

Silva, Hon. Peter S.: 

Testimony .......................................................................................................... 8 

Prepared statement .......................................................................................... 56 

Sivin, Darius D., Ph.D.: 

Testimony .......................................................................................................... 22 

Prepared statement .......................................................................................... 64 

APPENDIX 

Submitted for the Record by Senator Lieberman: 

Center for American Progress, survey and reports ....................................... 87 

United Steel Workers, letter in support of H.R. 2868 ................................... 189 

Greenpeace, prepared statement with attachments ...................................... 192 

Page

IV 

Submitted for the Record by Senator Collins: 

Letters in support of S. 2996 ........................................................................... 238 

American Water Works Association, prepared statement ............................ 270 

National Petrochemical and Refiners Association, prepared statement ...... 280 

M. Sam Mannan, Ph.D., Texas A&M University, prepared statement 

with attachments .......................................................................................... 286 

Responses to questions for the Record: 

Mr. Beers ........................................................................................................... 306 

Mr. Sivin ........................................................................................................... 322 

(1) 

CHEMICAL SECURITY: ASSESSING PROGRESS 

AND CHARTING A PATH FORWARD 

WEDNESDAY, MARCH 3, 2010 

U.S. SENATE, COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 9:34 a.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Joseph I. Lieberman, Chairman of the Committee, presiding. 

Present: Senators Lieberman, Levin, Carper, Pryor, Collins, and 

Voinovich. 

OPENING STATEMENT OF CHAIRMAN LIEBERMAN 

Chairman LIEBERMAN. The hearing will come to order. One of 

our witnesses on the first panel is not here yet. Senator Collins and 

I will proceed with our opening statements, and the two witnesses, 

and I am sure that in short order Mr. Beers will be here. 

We have called this hearing this morning to review the Federal 

Government’s efforts to strengthen the security of hundreds of 

chemical sites around our country and to chart, if we can, a path 

forward to reduce the possibility that terrorists could take advantage of existing security vulnerabilities at these sites. 

In the aftermath of September 11, 2001, all of us developed a 

new awareness of potential targets of terrorists in our homeland. 

Many quickly realized that some of our Nation’s most robust and 

varied industries—while obviously a source of great economic 

strength and job creation—also inherently posed substantial security risks, if attacked. And that included the many facilities that 

produce or use hazardous chemicals that could be turned against 

us and converted effectively into pre-positioned weapons of mass 

destruction. 

In a worst-case scenario, a successful attack on a facility using 

toxic chemicals in a densely populated area—and we know that 

those facilities do exist—could put hundreds of thousands of lives 

at risk. So there was a need for action. 

In 2005 and 2006, under the leadership of Senator Collins, this 

Committee spent a fair amount of time exploring these risks and 

drafting legislation to address the threat. I was pleased to cosponsor that legislation, and while it did not itself become law, it certainly helped prompt Congress, in late 2006, to grant the Department of Homeland Security (DHS) limited authority to begin a 

chemical site security program. DHS has taken up that charge and 

launched the Chemical Facilities Antiterrorism Standards program 

2 

(CFATS). The Department deserves credit for the hard work it has 

done to design and begin to implement these standards. It is a particularly challenging task because of the wide array of companies 

that use potentially dangerous chemicals and the limited guidance 

Congress gave in the initial authorization. 

Today we want to take stock of how the program is faring and 

determine how to strengthen it going forward, since the program’s 

initial 3-year authorization has lapsed and we are now operating 

on a 1-year extension. 

I am pleased to say that though there was intense controversy 

over whether to begin a chemical security program at all because 

of opposition to government regulation in this area, there now 

seems to be general agreement that CFATS is making a positive 

contribution to our national and homeland security and should be 

continued. So the question becomes: Should we improve it and, if 

so, how can we improve the CFATS program as we extend it? 

I want to briefly discuss in this statement two issues that are 

commonly cited by some as ways to add strength to the program. 

First, the current authorization exempts drinking and waste 

water facilities, even though we know that some of these facilities 

would pose a high risk to surrounding communities in the event of 

a terrorist attack because of the chemicals used there. Does that 

exemption make sense? Personally, I join with the Administration 

in thinking that exemption leaves a troublesome security gap. 

Second, the current authorization is silent on the issue of inherently safer technology (IST), the practice of using safer chemicals 

or processes to reduce the risks at a chemical facility. I think it is 

important to look at these alternatives as part of a comprehensive 

security system since they are the only foolproof way to defeat a 

terrorist determined to strike a chemical facility. And there are encouraging developments on this front. For instance, Clorox recently 

announced it will begin substituting high-strength bleach for chlorine in its manufacturing process, a move that should greatly reduce the transport and storage of toxic chlorine gas in relation to 

its operations. I know that some of my colleagues strongly oppose 

mandating inherently safer technology systems, or even mandating 

consideration of them, so we are going to have a good healthy debate on that as we move forward, and we should. 

The House has already passed a CFATS reauthorization bill, 

which is H.R. 2868, which has been referred to this Committee. 

The House bill would make significant changes in the program, 

such as including an IST component and creating parallel security 

programs for drinking and waste water facilities at the Environmental Protection Agency (EPA). 

Closer to home, here in the Senate and this Committee, Senators 

Collins, Pryor, Voinovich, and Landrieu have offered a 5-year reauthorization of the existing rules, and that is S. 2996. So we have 

before us two different approaches on how to move forward, and we 

may, I would guess, hear some additional ideas this morning from 

the witnesses or from other Members of the Committee. 

We are fortunate to have as witnesses some Administration and 

private sector leaders on these issues, and we will call on them 

soon and look forward to their testimony. 

Senator Collins. 

3 

OPENING STATEMENT OF SENATOR COLLINS 

Senator COLLINS. Thank you, Mr. Chairman. 

More than 70,000 products are created through the use of chemicals, helping to supply the consumer, industrial, construction, and 

agricultural sectors of our economy. The United States is home to 

thousands of facilities that manufacture, use, or store chemicals. 

This industry is vital to our economy, with annual sales of nearly half a trillion dollars, exports of $174 billion, and direct employees 

exceeding 850,000 people. 

But as the Chairman indicated, after September 11, 2001, we realized that chemical facilities were vulnerable to terrorist attack. 

Given the hazardous chemicals present at many locations, terrorists could view them as attractive targets, yielding a terrible loss 

of life, significant injuries, and major destruction if they were successfully attacked. 

In 2005, as Chairman of this Committee, I held a series of hearings on chemical security. Following these hearings, Senators 

Lieberman, Carper, Levin, and I introduced bipartisan legislation 

authorizing the Department of Homeland Security to set and enforce security standards at high-risk chemical facilities. My view of 

what happened to that bill is a little different from the Chairman’s. 

In my view, it was incorporated into the homeland security appropriations act and signed into law in 2006. In fact, I remember well 

how difficult the negotiations were with the Bush Administration 

and the House as we proceeded with that bill. 

To implement this new authority, DHS established the Chemical 

Facility Antiterrorism Standards program. This program sets 18 

risk-based performance standards that high-risk chemical facilities 

must meet. The security standards cover a wide range of threats, 

such as perimeter security, access control, theft, internal sabotage, 

and cybersecurity. 

High-risk chemical plants covered by the program are required 

to conduct vulnerability assessments, develop site security plans, 

and invest in protective measures. The Department must approve 

these assessments and site security plans, using audits and inspections to ensure compliance. The Secretary—and this was an authority that I insisted on—is empowered to actually shut down facilities that are non-compliant. 

This risk-based approach has made the owners and operators of 

chemical plants partners with the Federal Government in implementing a successful, collaborative security program. 

This landmark law has been in place slightly more than 3 years. Taxpayers have invested nearly $300 million in the program. 

Chemical plants also have invested hundreds of millions more to 

comply with the law. As a direct result, security at our Nation’s 

chemical facilities is much stronger than it was 5 years ago. 

Now we are at a juncture where we must reauthorize the program or, as some have proposed, scrap what has clearly been a 

clear success and set off in a different direction. My view is that 

we should reauthorize the law. 

Simply put, the program works and should be extended. 

Proposals to drastically change this successful law would discard 

what is working for an unproven and burdensome plan. We must 

not undermine the substantial investments of time and resources 

4 

1The letters submitted by Senator Collins appear in the Appendix on page 238. 

already made in CFATS implementation by both DHS and the private sector. Worse would be requiring additional expenditures with 

no demonstrable increase to the overall security of our Nation. 

Last November, as the Chairman has indicated, the House 

passed a bill that would alter the fundamental nature of the chemical security law. It would require the Department to completely rework the program. I am concerned about several aspects of the 

House bill, not the least of which is the authority to mandate the 

use of so-called inherently safer technology. 

What is IST? It is an approach to process engineering. It is not, 

however, a security measure. An IST mandate may actually increase or unacceptably transfer risk to other points in the chemical 

process or elsewhere in the supply chain. Currently DHS cannot 

dictate specific security measures like IST, nor should it. The Federal Government’s job should be to set the performance standards, 

but to leave it up to the private sector to decide precisely how to 

achieve those standards. Forcing chemical facilities to implement 

IST could actually cost jobs at some facilities and affect the availability of many vital products. 

Last year, one of the associations which will be testifying before 

us today testified that mandatory IST would restrict the production 

of pharmaceuticals and microelectronics, hobbling those industries. 

The increased cost of a mandatory IST program may force chemical 

companies to simply transfer their operations overseas, costing 

American workers thousands of jobs, at a time when we can least 

afford job loss. 

Now, I want to be clear that some owners and operators of chemical facilities may choose and do choose to implement IST. But that 

decision should be theirs, not a decision established in Washington. 

Our focus is to make sure that the standards are met, not to dictate how to meet those standards. 

Congress should not dictate specific industrial processes—we do 

not have that expertise—under the guise of security when a facility 

could choose other alternatives that meet the Nation’s security 

needs. 

A straightforward, common-sense reauthorization of this program 

is, however, critical. The legislation which I have introduced with 

Senators Pryor, Voinovich, and Landrieu would extend the CFATS 

program for 5 more years. And, Mr. Chairman, I would ask to submit for the record 27 letters of support for S. 2996. They range 

from the Chamber of Commerce to the American Forest and Paper 

Association, and many others, and I would ask that those be submitted for the record.1

Chairman LIEBERMAN. Without objection, so ordered. 

Senator COLLINS. Mr. Chairman, no one is more conscious than 

I of the risks that our Nation faces through an attack on a chemical facility. That is why I was the primary author of the chemical 

facility security bill, and it is why I battled considerable opposition 

to get this landmark law enacted. We should support the continuation of a program that is working, and we should do so without 

the addition of costly and unproven Federal mandates. 

Thank you, Mr. Chairman. 

5 

1The prepared statement of Mr. Beers appears in the Appendix on page 44. 

Chairman LIEBERMAN. Thanks, Senator Collins. 

Mr. Beers, welcome. We are not going to abuse you as we have 

earlier when Secretary Napolitano did not make it here at the 

starting time of a hearing, but we are just glad to see you here. 

Mr. Beers is the Under Secretary for the National Protection and 

Programs Directorate (NPPD) at the Department of Homeland Security. In this capacity, he leads the Department’s efforts to reduce 

risks to physical, communications, and cyber infrastructure. Accompanying Mr. Beers today is Sue Armstrong, Acting Deputy Assistant Secretary for Infrastructure Protection in the Department of 

Homeland Security. 

Mr. Beers, we would welcome your testimony now. 

TESTIMONY OF HON. RAND BEERS,1 UNDER SECRETARY, NATIONAL PROTECTION AND PROGRAMS DIRECTORATE, U.S. 

DEPARTMENT OF HOMELAND SECURITY, ACCOMPANIED BY 

SUE ARMSTRONG, ACTING DEPUTY ASSISTANT SECRETARY 

FOR INFRASTRUCTURE PROTECTION, U.S. DEPARTMENT OF 

HOMELAND SECURITY 

Mr. BEERS. Thank you very much, Mr. Chairman, Ranking Member Collins, Senator Voinovich, and other Members of the Committee who are not present. It is a pleasure for me to be here today 

to discuss with you the Department of Homeland Security’s regulatory authority for security at high-risk chemical facilities. I am 

pleased to be joined by Peter Silva from the Environmental Protection Agency and, of course, my colleague at DHS, Sue Armstrong. 

I think we have developed a constructive relationship with the Environmental Protection Agency and look forward to a continued dialogue with them as we move forward together on this important 

issue. 

As you are aware, and as Senator Collins just noted, the Department’s current authority expires in October of this year, and we are 

eager to work with this Committee as one of the central elements 

of the Congress and, as Senator Collins indicated, the author of the 

original CFATS legislation. We are eager to work with you, with 

all levels of government, and with the private sector to achieve passage of appropriate legislation that permanently authorizes and appropriately matures our chemical security program. 

The CFATS program has been, I think, a tremendous success to 

date, due in large part to the work of this Committee which, 

through its initial work on this issue, gave the Department of 

Homeland Security a solid foundation upon which to build a comprehensive chemical security program. CFATS currently covers 

over 6,000 high-risk facilities nationwide across all 50 States. The 

Department continues to issue final tier notifications to approximately 500 facilities across all four risk tiers each month and expects to notify all of the 6,000-plus facilities of their final tier assignments by the end of the summer of 2010. 

We began in February of this year the inspection program of the 

final tiered facilities starting with the Tier 1 facilities, or the highest-risk facilities. Since the release of CFATS in April 2007, the Department has taken significant steps to publicize the rule and to 

6 

ensure that our security partners are aware of its requirements. 

We have also made a point to solicit feedback from both the public 

and private sector partners in this endeavor and, where appropriate, to reflect that feedback in our implementation activities. 

The Department also continues to focus on fostering solid working relationships with State and local officials as well as first responders in jurisdictions with the high-risk facilities. To meet the 

risk-based performance standards under CFATS, facilities need to 

cultivate and maintain an effective working relationship—including 

a clear understanding of roles and responsibilities—with local officials who could aid in preventing or mitigating or responding to potential attacks. 

In addition, we are working with the private sector as well as all 

levels of government to identify facilities that may meet the threshold for CFATS regulation but have not yet registered. We have 

completed pilot efforts in both New York and New Jersey, and we 

have commenced a targeted outreach effort to certain segments of 

the industry for which we believe compliance may need improvement. 

We have also enjoyed a constructive dialogue with Congress, including this Committee, as it contemplates new authorizing legislation. The Department supports a permanent authorization for the 

CFATS program, and we intend to provide Congress with a draft 

of a comprehensive authorization bill this fiscal year. 

We recognize, however, the time constraints and challenges in 

passing such comprehensive legislation, which is why the President’s fiscal year 2011 budget indicates a request for a 1-year extension of CFATS to ensure the time, if needed, to complete enactment of a permanent program. 

It is important to highlight, therefore, the Administration’s guiding principles in this reauthorization of CFATS, which will be the 

foundation of the Department’s legislative position on the permanent CFATS reauthorization. 

The Department believes that we should be given reasonable 

deadlines to implement any new legislative requirements, and 

CFATS, as currently implemented, should remain in effect until 

supplemented by any new regulations which the Congress should 

deem to put forward. 

The Administration also supports, where possible, using inherently safe technology such as less toxic chemicals to enhance the 

security of the Nation’s high-risk chemical facilities. We recognize, 

however, that risk management requires balancing threat, 

vulnerabilities, and consequences with the costs and benefits that 

might mitigate risk. Similarly, we would take into account potential public health or environmental consequences of any alternative 

chemical that might be considered with respect to the use of safer 

technology. 

In this context, the Administration has established the following 

policy principles in regard to inherently safer technology at highrisk chemical facilities: 

The Administration supports consistency of IST approaches for 

facilities regardless of the sector. 

The Administration believes that all high-risk chemical facilities 

should assess IST methods and report that assessment in the faciliVerDate Nov 24 2008 10:23 Jul 27, 2011 Jkt 56889 PO 00000 Frm 000012 Fmt 06633 Sfmt 06633 P:\DOCS\56889.TXT SAFFAIRS PsN: PAT
7 

ty’s site security plan and that the appropriate regulatory entity 

using regime-wide guidelines should have the authority to require 

Tier 1 and Tier 2 facilities to implement IST methods if such methods demonstrate an enhancement of overall security, are determined to be feasible, and in the case of the water sector in particular, consider public health and environmental requirements. 

The Administration believes that flexibility and staggered implementation would be required in implementing any new IST policy, 

should Congress choose to pass that policy. 

The Administration also supports maintaining the Department’s 

current Chemical Terrorism Vulnerability Information (CVI), regime for protecting sensitive information relating to chemical facility security. 

As DHS and EPA have stated before, we believe that there is a 

critical gap in the U.S. chemical security regulatory framework, 

namely, the exemption of drinking water and wastewater treatment facilities from CFATS. The Department supports amending 

the current exemption to specify that EPA should have the lead on 

regulating for security with the Department of Homeland Security 

supporting EPA to ensure consistency across all sectors. 

The Department supports modifying the exemption for facilities 

regulated under the Maritime Transportation Security Act (MTSA), 

to require facilities currently subject to MTSA to submit information to the Secretary of Homeland Security to determine whether 

they should be designated as high-risk chemical facilities under 

CFATS. 

We are ready to engage in technical discussions with the Committee staff, affected stakeholders, and others to work out the remaining details. We must focus our efforts on implementing a riskand performance-based approach to regulation and in parallel fashion continue to pursue the voluntary programs that have already 

resulted in considerable success. 

Thank you for holding this important hearing, and I would be 

happy to respond to your questions at an appropriate time. Thank 

you, Mr. Chairman. 

Chairman LIEBERMAN. Thanks very much, Under Secretary 

Beers. 

I understand that Ms. Armstrong will be available to answer 

questions but has no opening statement. Is that correct? 

Ms. ARMSTRONG. Yes. 

Chairman LIEBERMAN. Thank you very much. 

Now we are going to hear from Peter Silva, who is the Assistant 

Administrator for Water at the Environmental Protection Agency. 

With more than 30 years in the water and wastewater management fields, Mr. Silva is a leader in efforts to ensure the safety of 

drinking water and the viability of aquatic ecosystems. 

We appreciate your presence and would ask for your testimony 

now. 

8 

1The prepared statement of Mr. Silva appears in the Appendix on page 56. 

TESTIMONY OF HON. PETER S. SILVA,1 ASSISTANT ADMINISTRATOR FOR WATER, U.S. ENVIRONMENTAL PROTECTION 

AGENCY 

Mr. SILVA. Thank you. Good morning, Mr. Chairman, Ranking 

Member Collins, and Members of the Committee. I am Peter Silva, 

Assistant Administrator for Water at the U.S. EPA. I welcome the 

opportunity to discuss EPA’s efforts to promote security and resiliency in the water sector with an emphasis in addressing chemical 

security at water facilities, and I am very pleased to be here with 

Under Secretary Beers as we discuss this important issue. 

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

sector in improving security and resiliency, and I am pleased to report that the sector has taken its charge seriously. EPA has been 

entrusted with important responsibilities for coordinating the protection of the water sector through congressional authorization 

under the Public Health Security and Bioterrorism Preparedness 

and Response Act of 2002—the Bioterrorism Act—and through 

presidential mandates under Homeland Security Presidential Directives 7, 9, and 10. 

Promoting the security and preparedness of the Nation’s water 

infrastructure remains a priority of the Agency in a post-September 

11, 2001, and post-Katrina world. A loss of water service can seriously jeopardize the public health, economic vitality, and general 

viability of a community. In working with the water sector, we 

have emphasized a multi-layered approach to security consisting of 

prevention, detection, response, and recovery so that we can assist 

water facilities in avoiding incidents and, should an incident occur, 

in quickly identifying and recovering from such events. 

At this point I would like to take a step back to consider the 

broader implications of chemical security for the water sector. It is 

of paramount importance to us to acknowledge in this discussion 

that the primary purpose of drinking water systems is the provision of safe drinking water, while that of wastewater systems is the 

protection of water bodies. In fact, the effective treatment of drinking water to control infectious diseases like typhoid and cholera has 

been hailed by the U.S. Centers for Disease Control and Prevention 

as one of the greatest public health achievements of the 20th Century. 

Therefore, chemical security regulations, when applied to the 

water sector, should enable a reasoned balance of multiple, important factors so that we can achieve the joint policy goals of protecting public health and the environment while at the same time 

enhancing security. 

EPA has worked closely with the water sector to assess and reduce the risks associated with hazardous chemicals. To this end, 

EPA and industry associations, often in partnership, have developed tools, training, and technical assistance to help drinking 

water utilities identify and mitigate those risks. 

For example, EPA has developed software tools that assist drinking water systems with assessing vulnerabilities, including chemical storage and handling. 

9 

I understand this Committee and others in Congress are in the 

process of considering chemical security legislation. To inform those 

deliberations, the Administration has developed a set of guiding 

principles. 

First, the Administration supports permanent chemical facility 

security authorities. 

Second, cover systems that use substances of concern above 

threshold levels should be required to conduct an assessment of inherently safer technologies. Further, the appropriate regulatory 

agency should be authorized to require the highest-risk facilities to 

implement IST under certain conditions. 

Third, the existing security gap for wastewater and drinking 

water facilities should be closed, with EPA having the authority to 

regulate chemical security at such water facilities. 

As a final thought on the legislation, EPA supports a robust 

State role in the regulation of chemical security in the water sector, 

including a prominent role in IST determinations and auditing and 

inspections. This approach would leverage decades-old EPA and 

State relationships under the drinking water and wastewater programs, as well as the States’ unique expertise and familiarity with 

individual water facilities. 

In conclusion, over the past several years, we have made 

progress in ensuring the security of our Nation’s drinking water 

and wastewater systems. We have produced a broad array of tools, 

training, and other assistance that the water sector uses to assess 

its vulnerabilities, reduce risk, and prepare for emergencies, including chemical theft and release. In developing these tools, we have 

worked effectively with our partners within the sector, and reached 

out to build new relationships beyond the sector, to ensure that 

water utilities can be prepared to prevent, detect, respond to, and 

recover from intentional incidents and natural disasters. 

With respect to security at water sector facilities, we look forward to continuing to work with Members of the Committee on legislation that ensures the security of drinking water and wastewater 

facilities while supporting the critical mission of these facilities for 

public health and environmental protection. 

Thank you again for the opportunity to—for my role here in 

terms of water security, and I would be happy to answer any questions that you may have. 

Chairman LIEBERMAN. Thanks, Mr. Silva. That is a good beginning. We will do 7-minute rounds of questioning for the Members. 

Under Secretary Beers, I appreciate that in your opening statement you have committed to providing suggested bill language 

from the Administration that we might consider. What is your 

sense of timing on that? In other words, when do you think you 

could have that for us? 

Mr. BEERS. Sir, the draft legislation exists within NPPD. It is 

awaiting the completion of this hearing before we start the clearance process in terms of moving forward to clear it both within the 

Department of Homeland Security and obviously with the rest of 

the Administration. It is not just DHS’s legislative proposal. It 

would have to be an Administration proposal. 

The time frame for that process is entirely dependent upon the 

degree of controversy that the draft legislation creates. I am a little 

10 

reluctant to tell you—certainly I would not want to suggest that it 

is going to be up in the next couple of weeks. 

Chairman LIEBERMAN. Right. 

Mr. BEERS. I am hoping that it can be up in the next couple of 

months. 

Chairman LIEBERMAN. That gives us a helpful guide as we go 

forward. 

Let me ask you, Under Secretary Beers, a historical question 

about this, which is what we have learned about who in our communities is using these chemicals and where they are located. I 

know that many of the chemicals that are covered by CFATS may 

be regulated for safety or environmental purposes on an industryspecific basis. But the CFATS program was an attempt to craft 

broad security standards across a wide array of industries. 

I know that at the beginning it was a challenge for the Department of Homeland Security to reach judgments about who should 

fall under the CFATS program, and I wanted to ask you whether 

based on that experience you think we, and the Department, have 

a clearer picture of where these potentially dangerous chemicals 

are located, and if so, how we might put that information to use 

both in our legislating but also to prepare communities against the 

risks of a possible attack. 

Mr. BEERS. You are absolutely correct, this was a process that 

I think all of us learned from in terms of the development of the 

list of chemicals of interest and then the outreach program to get 

those firms who were going to be covered or who thought they 

might be covered to begin the process of providing materials to the 

Office of Infrastructure Protection so we could begin to catalog 

those. 

As I indicated in my oral statement and in my written testimony, 

this is still an ongoing process, quite honestly. There is a category 

that we call outliers that were not covered in the original screening 

process, and which we are looking for in conjunction with state governments to try to make sure that the regime, in fact, covers all 

of those. 

Having said that, in the two pilot programs that we have conducted in New Jersey and in New York State, based on the initial 

calculation of who might be covered and the end determination of 

who might be covered, we are pleased to discover that it is a very 

small number of firms that would actually be covered. Ms. Armstrong, correct me. It was in the neighborhood of 20? 

Ms. ARMSTRONG. Yes. 

Mr. BEERS. In each of those, and we thought it was a larger 

number, quite honestly, when we began the process. 

So this has been a learning process which we would be happy to 

share with the Committee at any point in time to the extent that 

would be helpful in your considerations. 

Chairman LIEBERMAN. Good. It would be helpful. 

Let me ask you to speak a little bit more about the debate and 

discussion about inherently safer technologies. I appreciate your 

statement that the Administration would like to build a meaningful 

IST component into the CFATS program. I wonder at this point if 

you could talk about how you think that might best be done. 

11 

Mr. BEERS. If I can suggest that we all bear in mind that the 

legislation that you all produced was over the objection of a large 

segment of the chemical sector of the economy, and that the implementation of that regulation that you gave us ends up now being 

something that you tell us, not we tell you, that has been well received by the chemical industry, we would expect to take the same 

kinds of deliberative measures and the same kind of broad-based 

outreach before we even set the guidelines that we would have to 

set in order to ask facilities to modify their site security plans or 

their vulnerability assessments based on the consideration of an inherently safer technology. 

We are not going to say in some kind of a blast email everybody 

revise your plans. We are going to sit down; we are going to talk 

to the industry; we are going to talk about what the environment 

in this area looks like. We are going to understand their concerns, 

and then we are going to suggest what the guidelines might be in 

order that they can then report back to us. 

We would expect that this will be implemented, if it is passed, 

in a manner exactly consonant with the efforts to listen to all the 

stakeholders in this process before moving toward final implementation and the mandate or requirement to compel changes if we get 

to that point. 

Chairman LIEBERMAN. So you have not reached a conclusion, am 

I right, about whether the Administration will recommend legislation that would mandate inherently safer technologies, for instance 

at a top tier based on risk, of chemical facilities, or whether the 

legislation would simply mandate consideration of inherently safer 

technologies? 

Mr. BEERS. There are two levels in our proposal, sir. One would 

take the Tier 1 and Tier 2 facilities and give the Administration 

the ability to require that they adopt an inherently safer technology. That is a decision that would be made on a facility-by-facility basis. It would not take into account simply the issue that there 

was a clearly agreed upon inherently safer technology, that is, a 

change of the chemical or a change of the process. 

Chairman LIEBERMAN. Right. 

Mr. BEERS. There are other factors that would be taken into consideration, including the economic impact of such a change, the 

time frame over which such a change might, in fact, be implemented, whether or not they are in conflict with some public health 

or environmental requirement. This is not, ‘‘Gee, we have discovered this inherently safer technology; now you all go ahead and do 

it.’’ It is going to be a dialogue starting from the very beginning of 

the process. 

Chairman LIEBERMAN. I appreciate your answer. My time is up. 

Thank you. Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

Mr. Secretary, only 10 months ago during your nomination before 

this Committee, you stated that the chemical security law, ‘‘is an 

effective program for addressing the security risks associated with 

the Nation’s high-risk chemical facilities and is helping to make 

our country more secure.’’ 

12 

You went on to say, ‘‘I believe the Department has developed an 

effective approach for both identifying high-risk chemical facilities 

and assessing the security risks associated with them.’’ 

Finally, when you were asked whether you believed the CFATS 

program’s current requirements for physical protection of a facility 

were sufficient, you said yes. 

Just to clarify for the record, since it is obvious from that testimony—and indeed your testimony today—that this law has worked 

well and that it has made a difference, is it fair to say that your 

first priority is to prevent the law from expiring? 

Mr. BEERS. Were we unable to agree between the Congress and 

the Administration—and ultimately it is your decision to change 

the law, not ours—on the enhancements that we would be seeking, 

then it is absolutely critical that this legislation be reauthorized in 

its current form as a minimal statement of maintaining the 

progress that I think we have made, that you have given us the 

opportunity to make, yes. 

Senator COLLINS. I want to talk a little bit about the inherently 

safer technology issue, since that is a major difference between the 

bill that Senator Pryor is the chief Democratic cosponsor of, and 

Senators Voinovich and Landrieu are cosponsors of, to extend the 

law. 

Just this past weekend, in Houston, the Department of Homeland Security, working with the Center for Chemical Process Safety, held a conference with the world’s leading experts in chemical 

process safety, and the conference title is instructive. It is ‘‘Creating a Technical Definition of IST.’’ 

We have talked to many of the participants of that conference, 

and I want to read to you what one of the leading experts emailed 

to us. He said, ‘‘With regard to the IST meeting in Houston, one 

thing is very clear. That is that there is still a lot of disagreement 

on just the definition of IST, let alone quantification methods, assessment methods, and a host of other issues.’’ 

One expert, Dr. Sam Mannan, who is a leading expert in this 

field, has submitted testimony for the record, and I want to highlight a statement that he makes. He says, ‘‘There is no clearly established scientific basis on which inherently safer technology options could be mandated by any legislation or regulation at chemical facilities.’’ 

The reason I mention this conference, which DHS helped to sponsor, is that it shows all the uncertainties surrounding IST. When 

the leading experts in the world say that there is not even a commonly agreed upon definition of IST, how in the world can we consider making that a Federal mandate? 

Mr. BEERS. I would respectfully submit that the same kinds of 

issues were of concern when we drew up the list of chemicals of interest. This is an area that requires a great deal more work, and 

that is why I want to repeat that we are not, if you give us this 

authority, intending to proceed willy-nilly into an implementation 

regime. 

We have been asking our Science and Technology Office for some 

time now to help us with the definition of inherently safer technology, to help us with models of inherently safer technology, to 

13 

give us the kind of information that we would need were we to be 

required to do this. 

So I fully understand and am aware that this is an area that requires a great deal more work. But we are in the process at this 

point in time of looking at what we would regard as a permanent 

reauthorization of the chemical facilities anti-terrorism legislation, 

and we would like to have this authority as part of that permanent 

reauthorization. So, yes, there is still work to be done. No question. 

Senator COLLINS. Well, I guess the point that I would make is 

the Department has done a first-rate job of implementing this law. 

It has made a difference by your own assessment. And it is appropriate for us to set the security standards, but for us to mandate 

a particular approach, particularly an approach about which there 

are so many questions, to me is premature at best. 

Let me just quickly in my remaining time switch to a different 

issue. In June of last year, your Deputy Under Secretary testified 

before the House Homeland Security Committee and was asked 

about the civil enforcement provisions included in the House bill, 

and he said, ‘‘I have a concern that civil litigation involving the 

CFATS regime would lead to a higher likelihood of disclosure of 

sensitive information.’’ 

Does DHS continue to oppose the civil suits included in the 

House-passed bill reauthorizing and changing the law? 

Mr. BEERS. Before answering your question, I am obligated to 

tell you that the Administration has not taken a position yet on 

this particular issue. So in that context, the concern that we had 

previously, which is that the civil suit entry into a security regime 

and the need for a civil plaintiff to have the information necessary 

to bring this suit to bear or for the government to defend why it 

was opposed to this suit, will inevitably raise questions about an 

array of information that in the first instance would be information 

that was proprietary information on the part of the facility and vulnerability information on the part of the facility, both of which are 

currently protected by the regime that you have given us. 

Second, the decision process for getting to a decision about a security plan, whether or not it included an inherently safer technology decision, or a non-decision, would also have potential as part 

of that process the use of even higher classified information that 

might bear on a specific threat to either the facility itself or to the 

sector. And we would like to keep that information in the security 

regime that it is. And while people have indicated that there might 

be a carve-out that would say that we could say, well, that was protected information, if that judgment were then subject to consideration by sources outside the government, then we would still be in 

the process possibility in which that information might be disclosed. 

So we would very much be concerned about this, and the Administration will be taking this issue into consideration for an Administration position in the weeks ahead. But we do not have a position. That is our concern at this point. 

Senator COLLINS. Thank you. 

Chairman LIEBERMAN. Thanks, Senator Collins. Senator Voinovich. 

14 

OPENING STATEMENT OF SENATOR VOINOVICH 

Senator VOINOVICH. Thank you, Mr. Chairman. 

I just went over the bill’s history. This bill passed in October 

2006, and my recollection is that we spent an enormous amount of 

time on this piece of legislation listening to everybody, any group 

that was out there. The rules were issued in April 2007. The process, in November 2007, began with initial Top-Screen assessments, 

and inspections will commence in March 2010. 

We have not even got into implementing the legislation that we 

have already passed, and I think to myself, in terms of management, do you have the people that you need to get the job done. 

You have also indicated in your testimony that DHS is currently 

undertaking a multi-year examination of inherently safer technology. 

Do we realize where we are at today? Do we understand that we 

have a Federal Government that is in deep trouble and we keep 

expanding it and expanding it? For what? What are we going to get 

out of the inherently safer technologies? 

Then we are going to move into the area of involving the EPA. 

Do you know, Mr. Silva, that many State EPAs in this country 

have laid off people? Do you realize how bad things are out in the 

States? And you are going to get them involved in more of this 

stuff? Do you realize that in my State we have 100 jurisdictions 

that are under orders from the EPA and their rate increases are 

13 and 14 percent a year and they still cannot pay their bills? And 

you are talking about getting EPA more involved and increasing 

the cost of running those facilities? 

Let us get real. Do the people in this Administration, does the 

President understand how bad things are out there? Does he understand it? And we just keep growing and growing the government, and the departments are being given more and more responsibilities and do not have the human capital to get the job done. 

I think we need to get real, Mr. Chairman. If we are going to 

spend time on this issue, it is going to take a whole lot of time for 

us to go through this. It seems to me at this stage of the game the 

best thing we could do is reauthorize the program, give DHS the 

chance to get the program implemented, see how it works out, and 

then go on maybe 2 or 3 years from now and see how this program 

is working out. But to spend this Committee’s time on going 

through this issue, getting the testimony, all of the other stuff that 

we are going to have to do, amendments and the rest of it—let us 

put it in perspective. 

The real issue is: What is the need? Is there an overriding need 

that we have to do this now? Is there something that is going to 

happen that is catastrophic or something of that sort? We have not 

even implemented the program yet. 

So that is the only thing I have to say. I could ask a bunch of 

questions whether you have the management people to get the job 

done or do you have the people, Mr. Silva, or where are you in 

terms of this IST assessment work and how long is it going to take 

you to figure out that issue. And once you grant the Letter of Approval to somebody that says they have complied with the law, are 

you going to come back with them 2 years later or 6 months later 

15 

and say, by the way, we forgot about IST and let us go back over 

and do that? 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thanks, Senator Voinovich. I would just 

say for the record—obviously, I understand what you are saying— 

that because the CFATS program has essentially run out, the 

President has recommended a 1-year extension in the budget to 

keep it going. And the House bill, which extends the program but 

alters it, came to the Committee, and Senator Collins, yourself, 

Senator Pryor, and Senator Landrieu have introduced legislation to 

extend it to 5 years. That is why we are holding the hearing as 

part of our oversight to see what we should do. Obviously, the 

Committee ultimately will work its will, but that is why I thought 

it was worth the hearing this morning. 

Senator Pryor. 

OPENING STATEMENT OF SENATOR PRYOR 

Senator PRYOR. Thank you, Mr. Chairman, and I want to thank 

Senator Collins for taking the lead on this piece of legislation. As 

always, she is showing great leadership and I think really is trying 

to set the right public policy and the right course for the country. 

Let me start with you, if I may, Under Secretary Beers, and let 

me ask about inherently safer technologies. I know we have already had a little bit of discussion about it today, but the Administration’s guiding principles indicated that there should be a consistency of IST approaches for all facilities. Can you tell me what that 

means, a consistency of approaches for all facilities? 

Mr. BEERS. Because we are also considering and proposing that 

the Environmental Protection Agency would retain its primary relationship with water and wastewater and would be the regulating 

authority, with or without inherently safer technology. Were inherently safer technology added to that then with respect to both the 

existing legislation and that possible addition, DHS—together with 

EPA—would set up a consistent regime for implementation across 

all the sectors. 

We do not want to have one sector—let us just say water or 

wastewater—in a different regime. Obviously, the regimes will 

adapt, as we do already within DHS, with respect to the chemicals 

of interest that are not necessarily in the chemical sector. 

So the notion here is to convey to you that there will not be a 

differentiated regime just because EPA is going to have responsibility for some part of the implementation of whatever the CFATS 

regime looks like, should you remove the exemption. 

Senator PRYOR. But you are not talking about a one-size-fits-all. 

Mr. BEERS. Absolutely not. This is sector by sector, facility by facility, and that is why the outreach program at the sector level is 

so important and why the individualized approach to each of the 

facilities is important. 

Senator PRYOR. I think one thing that at least some of the Members of the Committee have, maybe all, is just this lack of clarity 

on what IST means and how it will be applied. So, I have some 

concerns about that, and I also have a concern about the cost factor 

if this concept or a similar concept goes forward. Because safety is 

one thing, and certainly that is very important. But there is also 

16 

a very real cost factor for industries, communities, etc. Have you 

all talked about the cost factor? 

Mr. BEERS. We have talked about that. That is a specific element 

in the consideration. In fact, for those who have also expressed a 

concern about the added cost of revising their security plan and/or 

assessments, we will take that into account in terms of the guidelines where we are asking for additional information with respect 

to inherently safer technology and, in particular, assist smaller 

firms if this legislation is implemented in the actual preparation. 

The larger firms may have that information already available in 

their own data banks. We are not expecting that all firms will have 

that, and we are really not interested in imposing some kind of initial research requirement on any of the companies. That is why the 

other part of the outreach program will be the scientific community. That is why our Science and Technology Office has already 

begun trying to think about that issue well before this Administration came to office. 

Senator PRYOR. And it sounds like you are working with the scientific community as well as with the private sector? 

Mr. BEERS. Yes, sir. 

Senator PRYOR. And are there new technologies that are coming 

online that may indeed be safer and maybe should be implemented? 

Mr. BEERS. Sir, that issue is the particular issue in question. My 

understanding—and I profess not to be an expert in this issue, but 

I am trying to ensure that I am sufficiently informed. My understanding is that is the case, but let me ask my colleague Ms. Armstrong here with respect to that. 

Ms. ARMSTRONG. Well, I think it is fair to say that part of the 

U.S. economy is being innovative and inventive, and I think from 

our dealings with the industry through the Sector Coordinating 

Councils that we have socialized a lot of CFATS and the tools and 

compliance mechanisms for CFATS with private industry, I think 

they are looking at newer advanced technologies. I think you may 

be hearing about some of those from the next panel, in fact. 

Senator PRYOR. Thank you, Mr. Chairman. That is all I have. 

Chairman LIEBERMAN. Thanks very much, Senator Pryor. Senator Carper. 

OPENING STATEMENT OF SENATOR CARPER 

Senator CARPER. Thanks very much. Ms. Armstrong, are there 

any questions you would like for me to ask of you? [Laughter.] 

They are taking it pretty easy on you here this morning. 

Mr. BEERS. Actually, I already prompted Senator Collins to ask 

me the two questions that I wanted asked on the reauthorization 

and DHS’s concern about civil suits. 

Senator CARPER. Good. I did not get the memo. 

Mr. BEERS. We are trying to be bipartisan here. 

Senator CARPER. A good thing. It is good to see all of you. Mr. 

Silva, very nice to see you. We thank you again for coming to 

Southern Delaware to help us move forward on a thoughtful approach to reducing runoff waste from chickens on the Delmarva Peninsula. 

Mr. SILVA. Thank you, sir. 

17 

Senator CARPER. I hope we are making some progress. I am encouraged that we might be. But thank you for coming and thank 

you for continuing to pay attention to that issue. 

As I think each of you might know, the Northeastern United 

States—and that includes Midatlantic States like Delaware—are 

the home of many of our Nation’s largest chemical plants, and 

these plants can pose significant harm to the surrounding areas 

and to the people who live and work in those surrounding areas if 

they are not properly secured. 

I believe that the Federal Government has an obligation to work 

with States to identify what works for a particular facility rather 

than imposing strict mandates that might hurt, we will say, a company as a whole. 

I also understand that there is still considerable debate over inherently safer technologies—we have heard that again here this 

morning—and whether or not Congress should impose inherently 

safer technologies as an approach onto the chemical industry. 

And I would just have maybe at least one of you take a minute 

to discuss the Administration’s perspective, again, on inherently 

safer technologies and what would be the cost/benefit to mandating 

such a policy. 

Mr. BEERS. Let me start on that, Senator Carper. We recognize 

that this is an area that is still in a process of being better defined. 

But having said that, we believe that just because an issue is difficult is not a reason to avoid trying to deal with that issue. We 

believe that in addition to the possibility in the chemical security 

regime to put in place a number of physical and procedural safeguards that will protect an individual facility and the surrounding 

citizenry, changing the way that facility actually conducts its operations is an additional way in which security can be increased. 

So let me start with what we already have as a process, and that 

is that a facility can change the level of its holdings of a chemical 

of interest in order to reduce the risk, the security risk to the surrounding community. As Senator Collins has already said, that 

same facility could choose to change the way that it processes the 

chemicals or that it substitutes a less risky chemical for that, the 

notion here being that there is a range of activity that might allow 

these vulnerable facilities to reduce the risk both to themselves and 

to the surrounding communities. And if that process could result 

in the total reduction of risk for that facility to that community, 

then it seems to us that represents a forward security movement 

to totally remove that risk, and inherently safer technologies represent an approach to that. 

This process I think will help all of us come to a better understanding and I think for facilities that we are working with to 

make their facilities safer. So that is the underlying idea behind 

wanting this authority. 

Senator CARPER. All right. Thank you. 

In the Administration’s point of view, how has the CFATS, the 

Chemical Facility Antiterrorism Standards program been in protecting chemical plants since its enactment in 2007? What have 

been the challenges facing the Department of Homeland Security 

in the program’s implementation, including maybe a lack of resources or a lack of funding? 

18 

Mr. BEERS. I am going to let my colleague here, who has lived 

through the entirety of this program, provide the real flavor to this. 

But let me just say from my own perspective, I think that the challenges have also been opportunities, and I think the opportunity 

here was to show that the Administration could be given responsibility for a program that it could implement in a way in which at 

the other end at this particular point in time Senator Collins tells 

me that the report from the chemical industry is that the Administration has done a good job, has been open to suggestions and comments and ideas from the regulated sector, while at the same time 

I think achieving a sense that all of us have that security at chemical facilities is a heck of a lot better than it was before you all provided us with this opportunity. 

But, Ms. Armstrong, you have been close to this on a daily, weekly, and monthly basis, so why don’t you add to that? 

Ms. ARMSTRONG. Thank you, sir. 

I would echo the Under Secretary in that implementing CFATS 

has been a challenge because it is doing something new to the Federal Government inside a new Department. But it has also been a 

successful opportunity to use the effective public-private partnership set forth in the National Infrastructure Protection Plan to engage the affected sectors, to have them tell us what they think all 

along the way, to have them pilot the tools that they will then use 

to comply with the program. And I think we have substantially 

grown the CFATS program both in terms of staffing, opening field 

offices, hiring the right people to do the job, and staying closely 

connected with industry. 

So we have progressed from our initial regulatory due date for 

Top-Screens on January 22. 

Senator CARPER. What are you saying, due date for Top-Screen? 

Ms. ARMSTRONG. Top-Screen is the initial step to determine if a 

facility is preliminarily determined to be high risk. It is a consequence assessment that a facility in possession of Appendix A 

chemical of interest at or above screening threshold quantities submits to us and we evaluate it. So at that point in 2008, we had 

29,453 Top-Screens in. We preliminarily tiered 7,010 facilities, and 

over 6,300 of those submitted security vulnerability assessments, 

which we are continuing to review. 

We have assigned over 3,500 facilities a final tier, and they are 

doing and submitting their site security plans. We have 1,600 completed plans, and we are reviewing them, and we have begun the 

inspections process. So I think we have made, again, substantial 

progress. 

Senator CARPER. All right. Thanks so much. My time has expired. Our thanks to each of you. Good to see you again. Thank 

you. 

Chairman LIEBERMAN. Thanks, Senator Carper. 

Senator Carper, Senator Collins, and I always look forward to 

your first question, because it is always unique and refreshing, and 

you did not disappoint. 

Senator CARPER. I almost asked Ms. Armstrong, why do we use 

so many acronyms in the Federal Government? One of my briefing 

memos, we had in one sentence four acronyms. 

Chairman LIEBERMAN. See? 

19 

Senator CARPER. I will save that one for the next panel. [Laughter.] 

Ms. ARMSTRONG. Thank you, sir. 

Mr. BEERS. I asked you that when I started the job, too. 

Ms. ARMSTRONG. Oh, wait. Let me get to the best one: The State, 

Local, Territorial, and Tribal Government Coordinating Council 

(SLTTGCC). 

Mr. BEERS. SLTTGCC. [Laughter.] 

Senator CARPER. I rest my case. 

Mr. BEERS. And I have worked in the State Department and with 

the Pentagon, so I know acronyms. That one just blew me away 

when I first heard it. 

Chairman LIEBERMAN. I am not even going to ask you how you 

pronounce it. [Laughter.] 

Mr. BEERS. We have been struggling with that, too, Senator 

Lieberman. 

Chairman LIEBERMAN. Thank you. Senator Levin. 

OPENING STATEMENT OF SENATOR LEVIN 

Senator LEVIN. I am going to have to check the record to see 

what the first question was that I missed. It was not about acronyms, though, I guess. Thank you, Mr. Chairman, and our Ranking 

Member, for holding the hearing. 

Has the Administration specifically taken a position on the 

House bill that they oppose or do not oppose? 

Mr. BEERS. No, sir, we have not taken a position on the House 

bill. 

Senator LEVIN. Do you oppose it or support it? 

Mr. BEERS. I cannot speak for the Administration at this point. 

Senator LEVIN. Can anybody here speak for the Administration? 

Mr. BEERS. On that bill, no. 

Senator LEVIN. On that question. 

Mr. BEERS. No. We have not taken a position. You can draw an 

interpretation in that we plan to submit our own legislation. 

Senator LEVIN. OK, and I understand the question was asked regarding when you are going to be submitting that language. 

Of the 6,000-plus high-risk facilities that are covered under the— 

does everyone call it ‘‘CFATS’’? I am afraid to use an acronym— 

CFATS standards, half apparently received final risk determinations, tier assignments, but only a quarter of the high-risk facilities 

have submitted security plans, and apparently only a few of the facilities have been inspected. 

How long do you expect it will take to approve the plans? And 

how long will it take to inspect the facilities? 

Mr. BEERS. Our plan is to inspect all the Tier 1 facilities by the 

end of this calendar year, sir. 

Senator LEVIN. And the plans? 

Mr. BEERS. That will be dependent upon the plans and the 

iteration back and forth. We had, in all candor, hoped to begin the 

inspection process in December. We did not, in part because of the 

iteration back and forth on the site security plans. But, Ms. Armstrong, do you have a better, more precise answer on that? 

Ms. ARMSTRONG. No. That is correct. We have done preliminary 

inspections at two Tier 1 facilities this month; we will do 10 more 

20 

next month, and our target is to get all of Tier 1, which is 235 facilities, done this year. 

Senator LEVIN. And do you think that the inspections of highrisk facilities might help inform the reauthorization process? Will 

your experience in going and looking at those high-risk facilities 

give us some useful information, practical information to help us in 

the reauthorization issues? 

Mr. BEERS. I cannot but believe that it would, but let me talk 

specifically about that question. 

Part of the reason that we are doing the preliminary assessments 

is to ensure that the regime of the full inspections is informed by 

an understanding of that. At any point in this process of your deliberations, we would be happy to come forward and brief you on 

what we have done with respect to that as you would consider legislation. 

Senator LEVIN. All right. Well, you might want to furnish that 

even if we do not ask if there is specific information that you get 

which—— 

Mr. BEERS. Point taken, sir. 

Senator LEVIN. Thanks. There are, as I understand it, a number 

of current standards which are inconsistent with the House bill. 

Some of those CFATS standards are inconsistent. For instance, 

what information would be provided to law enforcement? Is there 

any consistency between the House language on that issue and the 

current regulation which protects that information more carefully? 

Could you give this Committee the list of what current standards 

are inconsistent with the House bill? Could you do that for the 

record? 

Mr. BEERS. Yes, sir. 

Senator LEVIN. Now on the IST issue, your testimony, as I understand it, says that the Administration will support IST for the 

Tier 1 and 2 facilities if the IST method ‘‘demonstrably enhances 

overall security’’ or is ‘‘determined to be feasible,’’ and then something relative to the water sector. Who would have the burden to 

demonstrate under your proposed language? Is it the regulator that 

has the burden? Who has that burden? 

Mr. BEERS. The decision process would be done by the regulator, 

and the decision information would be developed between the facility to be regulated and the regulator. 

Senator LEVIN. Well, the decision, but who has the burden of 

demonstrating? 

Mr. BEERS. The burden of demonstration would presumably be 

on the part of the facility. 

Senator LEVIN. They have to demonstrate that it does not enhance overall security? 

Mr. BEERS. If we are in a discussion about the Administration 

having a view that it does, they would have the opportunity to represent a countervailing view, yes, sir. 

Senator LEVIN. Yes, but then where does the burden lie, the burden of proof? I mean, one says yes, one says, Hey, there is a—— 

Mr. BEERS. Then the regulator becomes the judge. 

Senator LEVIN. The regulator is the judge. Then that goes to 

court? 

Mr. BEERS. I am not a lawyer, sir, so—— 

21 

Senator LEVIN. Oh, that is OK. Now, where does the cost come 

in here? And where does the impact on the environment of something which may be more secure but which has a negative environmental impact, how is that incorporated in your language? 

Mr. BEERS. With respect to the cost, we would be seeking to understand what the cost of the facility would be to change from—— 

Senator LEVIN. Is that in your standard, your test? 

Mr. BEERS. That is absolutely a part of our standards. This is not 

an effort to drive firms out of business or to impose—— 

Senator LEVIN. I understand that. I understand that it is not an 

effort to do that. The question is whether you inadvertently might 

do it or have such large cost increases that it may not be worth 

it in terms of the additional security compared to the additional 

cost and the additional negative environmental impact which might 

be created. 

Mr. BEERS. Yes, sir. 

Senator LEVIN. There are many specific situations where it may 

not be worth the cost. The delta, the improvement in security, may 

not be worth the cost. It may be a minor increase compared to a 

major cost increase. And there could be a negative environmental 

impact in that additional security requirement. And I want to know 

how in your standard is that incorporated. In the language that 

you used today, I do not see it. Was it in your opening statement, 

both those factors? All I saw was ‘‘demonstrably enhance overall security’’ and ‘‘be feasible.’’ So something could be feasible but not 

worth it. 

Mr. BEERS. Cost is specifically a factor that will be part of the 

decision process, and your formulation about whether the marginal 

return on security versus the cost required to do it would be a consideration which might bear on not choosing to do it. 

With respect to public health and environmental requirements or 

risks that would somehow be created by an alternative chemical 

being used in the process, we are not going to make—that is, I 

think, a pretty clear balancing issue that says what security gain 

for what environmental or public health risk. 

Senator LEVIN. I agree. It is clear it should be. 

Mr. BEERS. Without being able to comment on a specific case, my 

view would be that would trump other considerations. But I am 

giving you a personal view now, sir. 

Senator LEVIN. Well, that is my personal view, too, but I did not 

see it in your formulation. So I agree with your common-sense response to that, and I hope it is incorporated. 

I am over my time. 

Mr. BEERS. Well, it will be if I am the administrator of this, yes, 

sir. 

Senator LEVIN. Thank you. 

Mr. BEERS. Thank you for the opportunity, sir. 

Chairman LIEBERMAN. Thanks, Under Secretary Beers. Thanks, 

Senator Levin. 

I thank the members of the panel. We have a second panel, so 

the remainder of our questions we will submit to you for answers 

for the record. I thank you very much for your time, and we would 

now call the second panel to the table. 

22 

1The letters submitted by Senator Lieberman appear in the Appendix on pages 189–237. 

2The prepared statement of Mr. Sivin appears in the Appendix on page 64. 

That would be Darius Sivin, Timothy Scott, and Stephen 

Poorman. While we are waiting, I, by unanimous consent, ask that 

we enter into the record letters in favor of the House bill on this 

subject and several reports on IST.1

I will begin some biographical information of our witnesses while 

they are shifting. 

Darius Sivin is the legislative representative of the International 

Union of the United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), and also worked in UAW’s 

Health and Safety Department. 

Timothy Scott will testify on behalf of the American Chemistry 

Council (ACC). He is the Chief Security Officer and Corporate Director of Emergency Services and Security at the Dow Chemical 

Company responsible for managing security crisis management and 

emergency planning for Dow facilities around the world. 

Stephen Poorman is the International Environmental Health 

Safety and Security Manager for Fujifilm Imaging Colorants. He 

has worked for more than 20 years in environmental safety and 

regulation in both the private and public sector, and he will testify 

today on behalf of the Society of Chemical Manufacturers and Affiliates, of which Fuji is one of almost 300 corporate members. 

We thank the three of you for being here, and, Mr. Sivin, we look 

forward to your testimony now. 

TESTIMONY OF DARIUS D. SIVIN, PH.D.,2 LEGISLATIVE REPRESENTATIVE, INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL IMPLEMENT 

WORKERS OF AMERICA 

Mr. SIVIN. Chairman Lieberman, Senator Collins, and Members 

of the Committee, I am Dr. Darius Sivin. I represent the International Union, and we appreciate the opportunity to testify at this 

hearing on ‘‘Chemical Security: Assessing Progress and Charting a 

Path Forward.’’ 

We and more than 50 partners in a coalition of labor, public interest, public health, and environmental organizations strongly believe that the existing Chemical Facility Antiterrorism Standard is 

inadequate. The path forward must be a comprehensive chemical 

security bill at least as strong as H.R. 2868. 

As indicated, DHS has identified about 6,000 high-risk U.S. 

chemical facilities and classified them into four tiers. That number 

does not include drinking water or MTSA facilities, as indicated 

earlier. According to the Congressional Research Service (CRS), almost 100 U.S. facilities each put a million or more people at risk. 

Union members are concerned that their workplaces and communities are not adequately protected from deadly terrorist attacks on 

chemical facilities and drinking water systems, and it is the employees who will get hurt first and worst in case of any attack. 

The UAW represents workers at more than 15 facilities that are 

required to file EPA risk management plans (RMPs), and therefore 

are potentially covered by chemical security legislation. These include a chemical manufacturer in Adrian, Michigan, and a wasteVerDate Nov 24 2008 10:23 Jul 27, 2011 Jkt 56889 PO 00000 Frm 000028 Fmt 06633 Sfmt 06633 P:\DOCS\56889.TXT SAFFAIRS PsN: PAT
23 

water facility in Detroit. Both of them use chlorine gas transported 

by the rail car. We are concerned that Detroit has recently been a 

terrorist target, and many of our members live and work in the 

vulnerability zone of the Detroit wastewater facility, which is more 

than 2 million people. Should there be a chlorine release from that 

facility due to a terrorist attack, the question will not be: Is government too big? Instead it will be: Why wasn’t the government’s authorities expanded to protect people from that? 

We are encouraged by the fact that 11 wastewater treatment facilities in Michigan have already converted from chlorine gas to ultraviolet light or liquid chlorine bleach and that the Detroit facility 

can likely do the same thing. 

Other UAW-represented facilities that are required to file RMPs 

include: A pigment facility in St. Louis, Missouri; a brewery in 

Trenton, Ohio; and a plumbing fixture manufacturer in Searcy, Arkansas. The Missouri facility could expose up to 88,000 people to 

anhydrous ammonia in case of an attack. 

The UAW and our coalition partners believe that water facilities 

should be covered by chemical security legislation. In 2006, the 

Government Accountability Office reported that two-thirds of large 

U.S. wastewater facilities use a disinfectant other than chlorine 

gas or plan to switch away from chlorine gas. Many switches, according to the Center for American Progress, about 15, between 

1999 and 2007, removed about 26 million people in nearby communities from vulnerability zones. The Center for American Progress 

reported that the cost of converting was typically no more than 

$1.50 per ratepayer per year, and many more could convert, removing another 25 million people from vulnerability zones. The cost is 

low. The alternatives, including chlorine bleach and ultraviolet radiation, are well established, safe for public health, and there is no 

reason that water facilities should not be covered. 

We think that the solution is comprehensive chemical security 

legislation, and we oppose a mere extension of the existing CFATS 

program. Its authorizing statute, as mentioned, called Section 550, 

exempts wastewater treatment and MTSA plants. It also prohibits 

DHS from disapproving a plan merely because of the presence or 

absence of a particular measure. 

In addition to the IST question, DHS, for example, could not disapprove a plan because a surveillance camera was put in a gaping 

hole in a fence instead of actually repairing the fence. 

Also, Section 550 provides no redress procedure for an employee 

who poses no security risk, but who suffers an adverse employment 

decision due to erroneous or irrelevant information arising from a 

background check. And it fails to recognize that security requires 

that the public have enough information to hold the government 

accountable for protecting its security. This kind of protection 

needs to balance protection of security information. 

It has been claimed that replacing CFATS with comprehensive 

chemical security legislation would force facilities to redo work they 

have already done. This claim is simply a red herring. It ignores 

the fact that H.R. 2868 was intentionally written to build 

seamlessly on the existing CFATS and that the ACC acknowledged 

that in its testimony of October 1, 2009. We and our coalition partVerDate Nov 24 2008 10:23 Jul 27, 2011 Jkt 56889 PO 00000 Frm 000029 Fmt 06633 Sfmt 06633 P:\DOCS\56889.TXT SAFFAIRS PsN: PAT
24 

ners believe that Senate passage of a bill similar to H.R. 2868 

would provide continuity and permanence to the CFATS program. 

Such legislation should cover water facilities, require assessments of methods to reduce the consequences of a terrorist attack, 

and here I would like to address some issues. 

One, it has been said in this room today that people favor a facility-by-facility method. H.R. 2868 is exactly that. 

Two, the biggest change in IST, which is both true for water facilities and industrial facilities, is simply converting from chlorine 

gas to liquid chlorine. In many industries, that is the solution. It 

is tried and true. It is not radical. It is not new. It is not undefined. 

There are other solutions such as converting from hydrofluoric acid 

to sulfuric acid in refining, and we can go over them. But the major 

point here is we are not talking about anything radically new or 

undefined. 

Also, the bill has a precise definition of methods to reduce the 

consequences of a terrorist attack, and the fact that academics may 

disagree on the definition of IST is simply irrelevant to H.R. 2868 

because the words ‘‘inherently safer technology’’ appear nowhere in 

the bill. 

I would like to say that we were very pleased with the process 

that led to the passage of H.R. 2868, which included input from all 

stakeholders, especially the ACC who praised the process both in 

testimony and in a letter to the Committee. 

I would also like to say that we are quite convinced that requiring a facility to implement its own plan to reduce the consequences 

of a terrorist attack will have no negative impact on jobs. There are 

studies that show so. There is also the fact that Clorox expects no 

negative impact from its conversion of a paper mill in New Jersey, 

similarly. In contrast, jobs can be lost when disasters strike. For 

example, there is a Sunoco facility that is not going to be reopened 

after an ethylene unit exploded in Philadelphia. 

In addition to that, should there be an exceptional case, H.R. 

2868 has specific language endorsed by six unions who believe that 

the existing language of H.R. 2868 is such that those exceptional 

cases will be covered and are adequate to protect jobs. The requirement in H.R. 2868 that allows DHS to require a facility to implement its own plan, according to a letter signed by Representative 

Charlie Melancon and four colleagues from the Blue Dog Coalition, 

indicates that the provisions will apply to less than 3 percent of all 

facilities under CFATS, and they indicate that they endorse: ‘‘The 

legislation also provides a robust technical appeals process for 

chemical facilities that disagree with this determination. The Energy and Commerce Committee developed this provision using considerable input from the largest chemical industry association, the 

American Chemistry Council.’’ 

Chairman LIEBERMAN. Dr. Sivin, excuse me. Let me ask you if 

you would put the rest of your statement in the record because you 

are over your time. 

Mr. SIVIN. Sure. 

Chairman LIEBERMAN. I appreciate it. We will get back to you in 

the questions and answers. 

Mr. Scott, welcome. 

25 

1The prepared statement of Mr. Scott appears in the Appendix on page 71. 

TESTIMONY OF TIMOTHY J. SCOTT,1 CHIEF SECURITY OFFICER AND CORPORATE DIRECTOR, EMERGENCY SERVICES 

AND SECURITY, THE DOW CHEMICAL COMPANY, ON BEHALF 

OF THE AMERICAN CHEMISTRY COUNCIL 

Mr. SCOTT. Chairman Lieberman, Ranking Member Collins, and 

Members of the Committee, my name is Timothy Scott, and I am 

the Chief Security Officer for the Dow Chemical Company. Dow is 

a member of the American Chemistry Council, and I am here today 

speaking on behalf of our industry association. 

The three points I would like Committee Members to take away 

from my remarks are: 

First, safety and security are top priorities of the chemical industry. Our industry, which is critical to our Nation’s infrastructure 

and the quality of life in the United States and around the world, 

has taken aggressive action to improve its security posture voluntarily before the Chemical Facility Antiterrorism Standards were 

launched and continuing now with the successful implementation 

of CFATS. 

Second, DHS has had many success stories in its short history, 

and the implementation of CFATS to date is already achieving its 

objectives to reduce the number of high-risk sites, lower the risk 

profile of remaining high-risk sites, and improve the security of all 

sites. CFATS is, in fact, working. 

And, third, DHS should be allowed to maintain the current momentum and complete the task at hand using a risk-based methodology to establish stringent performance standards, and industry 

should be allowed to use the security tools that best address the 

security, operational, and business issues at each unique site to 

meet those established standards. 

The American Chemistry Council represents the leading chemical companies in the United States who produce the essential 

products used in everyday life. Because of our critical role in the 

economy and our responsibility to our employees, communities, and 

shareholders, security continues to be a top priority for ACC members. In 2001, our members voluntarily adopted an aggressive security program that became the Responsible Care Security Code. Responsible Care implementation and regular independent review is 

mandatory for membership in the ACC. 

The security code is a comprehensive security program that addresses both physical and cybersecurity vulnerabilities and requires ACC members to perform a comprehensive assessment of its 

security risks and implement appropriate protective measures 

throughout a company’s value chain. 

On April 9, 2007, the U.S. Department of Homeland Security 

published CFATS. This comprehensive Federal regulatory program 

requires every chemical facility to register with DHS using their 

Top-Screen to identify chemicals of interest above a threshold value 

and, for those considered a high risk, to conduct a thorough site security assessment and implement protective measures that comply 

with 18 risk-based performance standards. 

Since CFATS became effective, the number of high-risk chemical 

facilities has been reduced by close to 1,000 facilities, a 14-percent 

26 

improvement. This clearly demonstrates that CFATS is working, 

even though we are in the early stages of implementation. 

CFATS is, in fact, working. Progress is being made, and we need 

to maintain the momentum without unnecessary diversions or obstacles. We were, therefore, pleased to see that Congress approved 

the DHS 2010 budget request and provided a 1-year extension for 

CFATS to November 2010. While this extension is helpful, we encourage Congress to provide permanence to the CFATS program, 

ensuring certainty and providing stability so the industry can continue to move forward making security investments. 

On February 4, 2010, Ranking Member Collins introduced a bipartisan bill to extend the current CFATS regulations for 5 years. 

Titled ‘‘Continuing Chemical Facilities Antiterrorism Security Act 

of 2010,’’ S. 2996 would give DHS sufficient time to fully implement 

the standards that are just now gaining traction. ACC supports 

that goal. 

CFATS is by far the most robust, comprehensive, and demanding 

chemical security regulatory program to date. CFATS takes a welldesigned approach, sets a high bar through performance-based 

standards, and then holds facilities accountable for meeting those 

standards by choosing from a full potential range of security enhancements. 

The result is a security plan that is uniquely designed to address 

the specific risk issues of each individual facility. It is a risk-based 

and performance-based approach. 

We, therefore, believe that it is unnecessary and inadvisable for 

Congress to provide DHS the authority to mandate prescriptive 

chemical process changes by including an IST provision within the 

CFATS regulatory program. Through the use of risk-based performance standards, CFATS has demonstrated that it drives facilities 

to consider all possible risk reduction options, including inherently 

safer approaches, when developing a site security plan. We are focused on results. 

The highest-risk facilities subject to CFATS face significant capital investments to implement enhancements, thus providing additional incentive for the facility to consider all such risk reduction 

options in order to move into a lower risk-based tier or potentially 

out of the program. While you cannot mandate innovation, CFATS 

already provides the incentives to unleash the ingenuity, expertise 

and resources of the chemical industry. Congress should not abandon a strategy that employs performance-based security standards 

that recognizes the need for site-specific solutions and that holds 

facilities accountable while avoiding the potential for risk shifting. 

CFATS is working today, and we need to continue the momentum to fully implement the standards developed in 2007. We need 

to let DHS finish the current task before revising the scope. The 

American Chemistry Council supports the bipartisan Senate legislation before this Committee as a step that provides certainty and 

ensures that this country continues to benefit from the security 

measures in place while recognizing the significant efforts already 

underway. 

The members of the ACC are committed to a continuing and aggressive approach in safeguarding America’s chemical facilities, 

27 

1The prepared statement of Mr. Poorman appears in the Appendix on page 75. 

and it is in this spirit that we look forward to working alongside 

DHS and this Committee. Thank you. 

Chairman LIEBERMAN. Thank you, Mr. Scott. Very helpful testimony. I appreciate it. I look forward to the questions. 

Mr. Poorman. 

TESTIMONY OF STEPHEN E. POORMAN,1 INTERNATIONAL ENVIRONMENT, HEALTH, SAFETY, AND SECURITY MANAGER, 

FUJIFILM IMAGING COLORANTS, INC., ON BEHALF OF THE 

SOCIETY OF CHEMICAL MANUFACTURERS AND AFFILIATES 

Mr. POORMAN. Good morning, Chairman Lieberman, Ranking 

Member Collins, and Members of the Committee. My name is Steve 

Poorman, and I am the International Environment, Health and 

Safety Manager for Fujifilm Imaging Colorants, Incorporated. I am 

pleased to provide this testimony regarding the Chemical Facility 

Antiterrorism Acts Standards. I speak before you today on behalf 

of the Society of Chemical Manufacturers and Affiliates (SOCMA), 

of which my company is a member. 

Less than 4 years ago, and working in a bipartisan manner, Congress enacted a strong chemical security regulatory program. It 

was this Committee’s sustained effort over 2 years that drove that 

legislation. Thanks to the bipartisan leadership shown by your 

Committee, DHS and regulated facilities are deep in the middle of 

implementing this vital program in a focused and cooperative manner. 

SOCMA strongly supports DHS’s current CFATS program. This 

demanding program is now requiring over 6,000 chemical facilities 

nationwide to develop and deploy meaningful security enhancements. It protects facilities against attack without impairing the industry’s ability to remain innovative and maintain some of the Nation’s highest-paid jobs in the manufacturing sector. 

Congress can best assure the CFATS program’s success and forward momentum by passing S. 2996, the Continuing Chemical Facilities Antiterrorism Security Act of 2010, as recently introduced 

by Ranking Member Collins, together with Senators Pryor, Voinovich, and Landrieu. This bill would reauthorize the CFATS program until 2015, thus allowing DHS and facilities to remain focused on successfully implementing that program as quickly as possible. 

SOCMA is also supportive of the bill’s provisions to create voluntary chemical security training and exercise programs. Properly 

executed, such programs would enhance the capabilities of highrisk chemicals facilities to prevent, prepare, and respond to acts of 

terrorism. Similar to provisions in the Security and Accountability 

for Every (SAFE) Port Act, these features of the bill would create 

valuable solutions to protect our Nation’s critical infrastructure 

from a terrorist attack. Training and exercise programs would support a collaborative environment, involving Federal, State, and 

local governments, facilities, and public and private universities, all 

dedicated to achieving the goals set forth in the National Infrastructure Protection Plan. 

28 

The House has taken a very different approach than the Senate 

so far to address the future of CFATS. First, it approved largely 

a partisan bill, H.R. 2868, with no support from the minority, not 

a single vote in favor. That bill includes provisions such as inherently safer technology that are fundamentally unwise and potentially counterproductive to our shared goal of preventing terrorist 

incidents at chemical facilities. The House bill was approved despite testimony from numerous witnesses who share strong concerns regarding these provisions. 

As the voice of many small, medium, and large chemical manufacturers that employ thousands of employees in key manufacturing States, we ask you to please seriously consider our concerns 

about mandatory IST, especially in a security regulatory context. 

One of SOCMA’s greatest concerns with the House bill is the real 

possibility that its IST provisions will negatively restrict the production of active pharmaceutical ingredients (APIs), key raw materials that are included in DHS’s Appendix A of covered chemicals. 

These APIs are used in prescription and generic drugs, life-saving 

vaccines, and over-the-counter medicines. They are thoroughly regulated by the Food and Drug Administretion (FDA) and must meet 

demanding quality and purity requirements. Substituting chemicals or processes used for API production would likely violate the 

conditions of their FDA approvals. Requiring IST could delay clinical trials while new replacement chemicals are identified or invented, and would force API manufacturers and their customer 

drug manufacturers to reapply for FDA approval of their products 

because of the significant change in the manufacturing. 

SOCMA and its members have supported Federal regulations 

that require manufacturers to adhere to workplace safety requirements such as the Occupational Safety and Health Administration’s Process Safety Management standard as well as mitigating 

off-site consequences in the event of an accident, such as EPA’s 

risk management program. These are comprehensive, effective regulations that are already in place. However, process or product 

changes driven by IST mandates will have a negative impact on 

the jobs at facilities forced to make these changes. Spending money 

to design new products or conduct process changes necessarily 

causes companies to assess how they will pay for it. There is not 

much available capital these days for manufacturers to take on 

new regulations that are aimed at their livelihood, especially our 

small manufacturers. 

There are other reasons not to require IST mandates other than 

cost, despite whether it is only an assessment requirement. Safety 

experts and academics have testified against mandating it. There 

is no consensus among experts about how to define it in a security 

regulatory context, and there is no method with which to measure 

it. While it may be feasible to develop a technical consensus methodology for measuring and comparing inherent safety, none exists 

at present. Before Congress and the Administration could even consider mandating IST assessment or implementation, they would 

need to know that methodologies exist to compare various alternatives from the standpoint of inherent safety. 

As a pragmatic alternative, Congress might ask DHS to study 

the over 1,000 facilities that have changed products or processes 

29 

and, thus, reduce their risk sufficiently that they have been removed from the CFATS program. But Congress should otherwise 

avoid legislating in this area while that process is still ongoing. 

In conclusion, SOCMA supports permanent chemical site security 

standards that are risk-based and realistic, and we urge Congress 

to reauthorize the existing CFATS program. Mandating inherently 

safer technology as a security measure will inevitably create negative unintended consequences, and Congress should not require 

DHS to do so. SOCMA asks that you please support S. 2996 and 

maintain the same bipartisanship this Committee demonstrated in 

2005 when it initiated the process that led to CFATS. 

On behalf of SOCMA, I appreciate this opportunity to present 

the association’s views on these important issues, and I look forward to your questions. 

Chairman LIEBERMAN. Thanks, Mr. Poorman. 

Let me begin with some questions about IST since it is at the 

center of this discussion about how to go forward. Both of you, I 

think, have stated in your opening statements and the ones you 

have given us for the record that existing CFATS rules have and 

will motivate facilities, chemical facilities, to consider and, at their 

own discretion, obviously, adopt inherently safer technology measures, in part because of the natural desire to move to a lower risk 

tier or potentially out of the program altogether. 

Can you be more specific? Have there been cases that you are 

aware of where the existing CFATS rules have, in fact, motivated 

chemical facilities to consider and, at their discretion, adopt IST? 

Mr. SCOTT. I can take a shot at answering that question. There 

are several examples. The easiest example of IST to see is reduction of inventories below the threshold level of any particular 

chemical that might be on the list. And in going back and looking 

at your process, that is a fairly easy thing to do in some cases, but 

not in all cases. So if you can reduce that inventory, you have come 

below the threshold value, and that would take you off the list. But 

there are other examples where we have looked at IST, and it is 

simply not economically feasible or operationally feasible to implement. 

The bottom line on this is that IST is a part of the toolkit that 

you have available to meet the risk-based performance standards. 

And we think that is the way it should be included, as one of many 

security enhancements that you can look at to address the riskbased performance standards and meet those standards. And then 

the results are the proof of the effort that you have gone through. 

Chairman LIEBERMAN. Mr. Poorman, do you want to add anything to that about the experience of your members? 

Mr. POORMAN. Yes, absolutely. I think we can say pretty much 

the same type of thing where I would say that the examples that 

I have heard of from other member companies are where they are 

able to reduce inventory. And whether that shifts that inventory’s 

risk to some other off-site location or not, I do not know. I do not 

know the complete details. But it does remove the risk from that 

particular facility, which would either lower its tier or, as you said, 

push it out of the program and remove it from the burden of the 

regulation. 

30 

Our members, we have a lot of small manufacturers, and we are 

batch manufacturers, and our processes are very unique. The value 

that comes from the chemicals that we produce are basically because it is the uniqueness of that molecule, and, therefore, the 

process is very specific. 

So looking at that process, which we have done internally, it is 

a no-go or it is a go, and we really have limitations as to how much 

we can really alter our processes. 

Chairman LIEBERMAN. Mr. Scott, obviously you are here on behalf of the American Chemistry Council. We appreciate that and 

have a lot of good working relations with the ACC. In the House, 

Marty Durbin, who represents the ACC, testified that ACC members are comfortable with a requirement to consider IST because 

they already do so under the group’s Responsible Care Code. So I 

wanted to ask you two questions about that. One, is that correct? 

And, two, can you describe the approach Dow particularly or other 

ACC members have used to consider IST options? 

Mr. SCOTT. Well, inherently safer technology is best considered 

in new process development when you are building a plan. That is 

the easiest time and the most economically feasible and operationally feasible time to implement IST. Going back to a facility that 

is already built and the process is already running and your products are already designed around that process is much more difficult. But Dow does include IST in the process design. 

Chairman LIEBERMAN. Right. 

Mr. SCOTT. We do include IST in the process design when we are 

developing plants. We include reviews of IST and process safety 

throughout on a regular review basis. And we included it in our 

site vulnerability assessments (SVAs) that we did both for the Responsible Care Security Code and as a result of CFATS. 

You go back and you look at the sites, and we took in every situation with the SVAs, we had a physical security person and a process safety person go along and conduct those SVAs and looked at 

it from both perspectives to see what alternatives were there. 

Chairman LIEBERMAN. Good to hear. So is it fair to say, as Mr. 

Durbin did in the House, that the ACC would be comfortable with 

a requirement to consider IST as opposed to mandating implementation of it? 

Mr. SCOTT. In mandating, we have always been willing to sit 

down and talk with any organization or any group or any legislative body about various options around inherently safer technology. 

We have never come to a formal agreement where we have sat 

down and formalized the agreement that is our position. So we are 

not in support of mandating implementation or mandating consideration of IST. 

Chairman LIEBERMAN. So perhaps we will take that second alternative up with you as this goes on. 

Dr. Sivin, we have talked a few times, both Mr. Silva and yourself, about drinking water facilities and whether they ought to be 

included. And I think we have approached it on a somewhat technical and statutory basis. Just take a moment, because it may not 

be obvious, with a typical chemical facility, people understand how 

that might be the target of an attack. But what are we worried 

about when it comes to drinking water facilities? 

31 

1The letter referenced by Senator Collins appears in the Appendix on page 201. 

Mr. SIVIN. We are worried about drinking water facilities that 

bring in chlorine gas by the rail car to treat the drinking water, 

and the releases of chlorine gas could affect both the workers who 

work there and the surrounding population. 

The most simple change with demonstrably zero public health 

impact is instead of bringing chlorine in in gaseous form, bring it 

in in aqueous form as liquid bleach. 

Chairman LIEBERMAN. Right. 

Mr. SIVIN. In other cases, it may be possible to go to other technologies such as ultraviolet radiation, but at least there you have 

to do some public health analysis to see whether there is an impact 

or a change. Bringing in chlorine in liquid bleach, there is no question it is the same chlorine. It is just in a different form which cannot be breathed. 

Chairman LIEBERMAN. Right. So are we concerned about an escape of chlorine in its non-bleach form or that it might be a subject 

of an attack, for instance, a terrorist attack? 

Mr. SIVIN. Both. 

Chairman LIEBERMAN. Both. 

Mr. SIVIN. If a facility brings in chlorine gas by the rail car, the 

rail cars could be attacked at the facility. They could be attacked 

in the process of transferring chlorine from the rail car to the facility to treat the water could be attacked. And they could be attacked 

anywhere on the open rail. I realize the last case is a problem for 

the Transportation Committee and not this Committee, but just in 

terms of describing the problem, that is the problem. 

Chairman LIEBERMAN. Very helpful. Thanks. My time is up. Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

Mr. Chairman, it is obviously legitimate for us to have a robust 

debate over what the chemical security reauthorization bill should 

include. But I want to start my questioning of this panel by noting 

an issue that is not legitimate, and that is, when the Blue-Green 

Coalition in its letter to this Committee completely misrepresents 

comments that I previously made in 2007, doing so does not advance the debate and is certainly disappointing. 

The coalition’s letter to the Committee, dated March 1, 2010,1

quotes me as saying, ‘‘In fact, Senator Collins’ own comments to 

DHS in 2007 were clear. She said, ‘The Department does not have 

broad discretion to regulate beyond the interim 3-year period without a comprehensive authorization from Congress. Any contrary interpretation of the sunset provision is plainly wrong.’ ’’ 

That is exactly what I did say, and as the Chairman and other 

Members may recall, the debate back in 2007 with the Bush Administration was that the Bush Administration wanted the authorization to expire and to have only a continuing appropriation, 

which the Department was saying that it could use to set standards however it wanted to. And I was making very clear that it 

was Congress’ prerogative to reauthorize the law. 

So I think it is extremely disappointing that the Blue-Green Coalition, represented by Dr. Sivin today, deliberately misrepresented 

my comments, and I know it was deliberate because my staff has 

32 

communicated with the coalition. So I just wanted to put that on 

the record. It was very disappointing, and it also does nothing to 

advance what is an important debate and legitimate disagreements 

over IST and other issues which reasonable people could certainly 

disagree on. 

There is another gross misinterpretation that I want to bring 

out, and we just heard it in Dr. Sivin’s testimony. He claimed that 

based on his interpretation of the chemical security law and regulations, it ‘‘would be very difficult for DHS to disapprove of a plan 

that indicates that a surveillance camera would be used instead of 

fixing a gaping hole in a fence.’’ 

Now, first of all, I cannot imagine any chemical facility not caring about a gaping hole in its fence. But let us accept the premise 

that maybe there is an irresponsible chemical facility that does indeed have a gaping hole in its fence. I find the interpretation of the 

law by Mr. Sivin to be a gross misinterpretation of the authorizing 

law, the final rule, and the Department’s own risk-based performance standards guidance document. 

If you look at Section 550 of this document, there is a whole area 

on the perimeter’s security, and Section 550 clearly states that the 

Secretary may disapprove a site security plan if it fails to satisfy 

the risk-based performance standards established by this rule. 

I could go on and on, but I would like instead to ask our two experts here today, Mr. Poorman and Mr. Scott, whether you agree 

with Mr. Sivin’s testimony that it would be very difficult for DHS 

to deal with that gap in perimeter security. Mr. Poorman. 

Mr. POORMAN. Well, I would say that I would agree with you, 

Senator Collins, that I have never worked for any entity that would 

allow for such a gap to stay in effect, and I think that DHS could 

easily, through their risk-based standards that they are holding us 

all accountable to, do enforcement if somebody left a gap like that 

in their security perimeter fence in this case, absolutely. 

We basically take a lot of time and effort and spend a lot of 

money in meeting these standards which are designed to harden 

our facilities against a terrorist attack. And that is the idea of the 

risk-based performance standards, and that is why we are fully in 

support of S. 2996, because it continues this program, which we 

think is very good for the chemical security of our country. 

Senator COLLINS. Mr. Scott. 

Mr. SCOTT. I agree with you, Senator Collins. First of all, the 

performance standards are very clear, and a security program that 

started off with a gaping hole in the fence, the plan would not be 

approved, and the site would be sent back to square one to come 

up with a better plan. 

In addition, there is another risk-based performance standard. If 

you have an approved plan and your fence is whole and in good 

shape and you have electronic surveillance but you have to do 

maintenance and open a hole in that fence, there is a maintenance 

performance standard that you have to follow in how you secure 

that hole while the maintenance is being done, and when it is 

closed, it needs to be reported back to DHS. 

So there is a very clear guidance on situations like that, and 

DHS certainly has the authority to disapprove a plan. 

Senator COLLINS. Thank you. 

33 

Mr. Chairman, if I could proceed? Thank you. I want to discuss 

with our witnesses the issue of whether an IST mandate could 

transfer the risk to a different part of the supply chain or actually 

increase other risks. This is a complicated issue, and we just had 

a discussion of wastewater treatment plans and about the benefits 

of converting from chlorine gas to other procedures for purifying 

the water. 

But the fact is it is not nearly that simple, and I would like to 

give an example that a water utility that is located in an isolated 

area of the Northwest gave to me. It told me that if Congress were 

to force the replacement of chlorine gas with sodium hypochlorite, 

then the utility would have to use as much as seven times the current quantity of treatment chemicals to get the same kind of water 

quality results. 

Now, what does that mean? That means that the utility would 

have to have far more trucks delivering the bulk chemical into the 

watershed, and the greater quantities of chemicals and the increased frequency of truck deliveries would heighten the risk of an 

accident that would result in a chemical spill into the watershed. 

And, in fact, according to this utility, the accidental release of sodium hypochlorite into the watershed would likely cause greater 

harm to the soils, and vegetation, and streams than a release of 

chlorine gas in this remote area. 

My point is that it is difficult to assess exactly what the replacement of one chemical for supposedly a less hazardous chemical will 

produce. And I would like to ask both of you to comment on the 

issue of transferring risk. 

Mr. Scott, we will start with you. 

Chairman LIEBERMAN. Senator Collins, if I may, and I apologize 

for interrupting. As Senator Collins knows, I have a previous commitment. I have to go on to another meeting. I have some other 

questions which I will submit for the record, and if you can, go as 

long as you like and then please wind up. 

Senator COLLINS. Thank you. 

Chairman LIEBERMAN. I thank the witnesses. It has been a good, 

thoughtful discussion, and the Committee will try to also act in a 

good and thoughtful way. 

Senator COLLINS [presiding]. Thank you, Mr. Chairman. I will 

only proceed for a few more moments, but I very much appreciate 

your holding this hearing. 

Chairman LIEBERMAN. Thank you. 

Senator COLLINS. Mr. Scott. 

Mr. SCOTT. There is the potential for shifting risk. As you mentioned, there are a lot of examples where the balance is very critical on how you apply the process or IST technologies to your process. 

The other piece of this is the product differentiation, which I 

think was also mentioned earlier, the differences in the processes 

that make a Dow product, for example, those sorts of things. 

So the shifting of risk is one of the major concerns that we have 

as far as the mandatory implementation of IST in the whole language, and that is why we think the best result is for the site to 

apply the whole realm of potential security enhancements to each 

site-specific instance so that we do not shift the risk but we meet 

34 

the risk-based performance standards, which is the end goal, to 

meet those standards using any one of these alternatives. 

The IST is not a panacea for all things security and all things 

process safety. It is a good tool, but it is one of many tools that we 

have available to us so we do make the right answer, we meet the 

risk-based performance standards, and we do not shift the risk to 

other areas at our sites. 

Senator COLLINS. Mr. Sivin, do you not see a concern with shifting the risk? 

Mr. SIVIN. H.R. 2868 prohibits DHS from approving any plan 

that shifts risk. 

Senator COLLINS. Mr. Poorman, is it that easy to determine 

whether risk will be switched to a different part of the supply 

chain or to a different area? 

Mr. POORMAN. Well, I think it would be very difficult. In our 

company members’ specific situations, many of us are small batch 

manufacturers, as I said earlier, and our processes are very unique, 

and we know them best, and there is just a great concern about 

DHS telling us what to do with our processes. They are very specific to deliver a certain type of end product that goes to a customer. It has to meet their specifications and in some cases has to 

meet specifications that are basically written in stone with FDA, 

the Toxic Substances Control Act, the Federal Insecticide, Fungicide, and Rodenticide Act, or other regulatory programs. 

So it brings up a whole host of, I will say, collateral damage that 

could occur if we are instructed by the Department of Homeland 

Security to do something that would alter our process and shift 

risk potentially but also shifts risk to our ability to conduct business. 

Senator COLLINS. From talking to many experts in this field, it 

seems that there is a great deal of dispute and that there is not 

an established scientific methodology for making that determination. Do you agree with that? 

Mr. POORMAN. We certainly do, and we have been privy to witness a great deal of this debate. But we also know from our experience that chemical processes are complex, and the expertise lies 

usually in-house in the companies that develop it. Again, I go back 

to our example. We specifically develop very specific processes 

using really world-class expertise, process chemistry, and process 

technology. And when we do that effort, we make sure that these 

processes are as safe as can be to deliver the end result. And so 

we just feel that tinkering with that process could wreak havoc not 

only with shifting risks or making things more unsafe as an unwanted consequence, but also impacting our ability to do business. 

Senator COLLINS. Mr. Scott, you made an interesting point that 

when Dow Chemical applies IST as a possibility or as a method of 

reducing risk, that is much easier to do if you are building a new 

plant or you are starting a new process. And, indeed, the water associations have told us about the overly simplistic assumption that 

mandatory chemical substitution is something that is easy, and 

they talk about the switch specifically from using chlorine gas to 

other chemicals and talk about that it would require a complete 

overhaul of a plant’s units and that it could cause upwards of $100 

million in some cases. 

35 

So could you comment further on the cost issue as far as the application of mandatory IST rather than focusing on what the goal 

is, what the standard is rather than telling a company how to 

achieve that standard. What are the cost implications? 

Mr. SCOTT. Well, I do not have a dollar figure, but the cost implications could be significant. You are talking about process changes. 

You are talking about significant changes in the way you do your 

business, maybe in the products that you are able to make as opposed to developing a layered security approach around identified 

special targets within your facility that really improve the physical 

security. 

One example that we have in Dow is that we produce chlorine, 

but we use our chlorine internally. We are an integrated facility, 

and have integrated sites within Dow across the United States. So 

that chlorine is used internally, but we do have to shift chlorine between facilities. 

We were looking at opportunities to reduce the risk by stopping 

the shipment of chlorine from one plant to another and looked at 

a provider that was closer. But a molecule as simple as chlorine, 

the locally available chlorine was not compatible with our process. 

It is not an easy task to say chlorine is chlorine or any chemical 

is the same as that chemical somewhere else. 

So, as a result, we are partnering with a company to build a facility closer to our facility. The difference, that is a considerable investment that is being made, but the end result is very good in 

that we have made some improvements in shipment at a facility 

that is not the same issue. 

So we focus on IST as one of the potential options that is available to us to improve security, but it is only one of the options, and 

we have to look at that and get the right balance. 

Senator COLLINS. Mr. Poorman, when people think of the chemical industry, they tend to think of Dow Chemical. They tend to 

think of large multinational enterprises, multi-billion-dollar corporations. And, of course, those large companies do make valuable 

contributions to our way of life and our economy. 

But the fact is that the chemical industry is also compromised 

of thousands of small and medium-sized chemical companies, and 

they may focus on the production of just a few specific chemicals. 

They may sell their products to larger companies that use them for 

manufacturing or other industrial purposes. So their financial resources for regulatory compliance are far less than those of large 

companies. 

Could you talk about what the implementation of inherently 

safer technology would mean for those smaller companies both in 

terms of their ability to operate efficiently, to provide jobs? Your 

comments in general. 

Mr. POORMAN. Sure. I appreciate that opportunity, Senator Collins. Just relating back, the small chemical manufacturers are, 

again, typically batch manufacturers, making what we will call 

unique or novel molecules that provide some type of benefit to a 

product that is being made by the customer in many cases, and 

those are used in all sorts of applications and impact us in very 

positive ways. 

36 

1The prepared statements submitted by Senator Collins appear in the Appendix on pages 

270–305. 

But the problem lies in the complexities around this. The processes are very specific. They have been developed through a great 

deal of effort and expenditure to get to that point, and approvals 

in some cases by not only customers who are being sold the products that we make but also by regulatory entities such as FDA, an 

example of the pharmaceutical intermediates. 

So if that changes, if someone comes in and indicates that, well, 

we could trade a raw material out, for instance, with something 

that somebody deems will be safer, of course, there will be debate 

as to whether that is true or not, but also we have to approach our 

customers and say we are going to have to ask you to change your 

proprietary formulation so that we can meet the requirements of 

the Department of Homeland Security, and you can probably imagine how our customers would react, especially when they can have 

the opportunity to have this material made outside of the United 

States of America. 

So we are very concerned about that type of impact, but also, by 

changing the formulation, we may have to go back to a regulatory 

body such as FDA and make a request to change our proprietary 

formulation on a particular material that we are manufacturing. 

And that can take 1 to 4 years to go through that process. What 

do we do in the interim? 

So these are the concerns we have about that, and these are the 

impacts that we would face as a small chemical manufacturer. 

Senator COLLINS. Thank you. I want to thank our witnesses 

today for helping us understand this complex issue. I am going to 

submit three additional statements from various organizations for 

the record. In particular, the testimony of Dr. Sam Mannan, the 

Director of the Process Safety Center at Texas A&M, is very illuminative. He is a leading expert in the fields of chemical engineering and process safety, and his testimony focuses on the need for 

far more research and data before any kind of Federal mandate to 

implement or even consider IST should be incorporated into the 

law. So I am going to submit those three statements for the 

record.1

The Committee is going to be continuing to look at this important issue. It is ironic, as I look back on this law’s birth, because 

it was extremely difficult to get this law enacted in the first place 

because the previous Administration was not enamored with having chemical security authorization. And today we can look back 

with pride on a lot that has been implemented effectively and in 

my view is working very well. And I think some of the skepticism 

in the chemical industry about having a Federal law has been replaced by a true partnership where industry has worked with the 

Department of Homeland Security and as a result, as Under Secretary Beers said today, our Nation is far safer. 

So I look forward to working with the Administration, with my 

colleagues on both sides of the aisle, and with the Chairman as we 

pursue this issue. 

37 

I also want to thank my staff for their hard work on this issue. 

This is enormously complex, and it is very important that we get 

it right. And in that regard, I thank our witnesses as well. 

The record for this hearing will be held open for 15 days to allow 

for the submission of any questions for the record from our colleagues as well as additional testimony and other documents. 

And, again, I want to thank all of the witnesses for being here 

today, and this hearing is now adjourned. 

[Whereupon, at 11:50 a.m., the Committee was adjourned.] 

(39) 

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