[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
CHEMICAL SECURITY--A RISING CONCERN FOR
AMERICA: EXAMINATION OF THE DEPARTMENT'S CHEMICAL SECURITY REGULATIONS
AND ITS EFFECT ON THE PUBLIC AND PRIVATE SECTOR
=======================================================================
HEARING
before the
SUBCOMMITTEE ON TRANSPORTATION
SECURITY AND INFRASTRUCTURE
PROTECTION
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JULY 24, 2007
__________
Serial No. 110-60
__________
Printed for the use of the Committee on Homeland Security
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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__________
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COMMITTEE ON HOMELAND SECURITY
BENNIE G. THOMPSON, Mississippi, Chairman
LORETTA SANCHEZ, California, PETER T. KING, New York
EDWARD J. MARKEY, Massachusetts LAMAR SMITH, Texas
NORMAN D. DICKS, Washington CHRISTOPHER SHAYS, Connecticut
JANE HARMAN, California MARK E. SOUDER, Indiana
PETER A. DeFAZIO, Oregon TOM DAVIS, Virginia
NITA M. LOWEY, New York DANIEL E. LUNGREN, California
ELEANOR HOLMES NORTON, District of MIKE ROGERS, Alabama
Columbia BOBBY JINDAL, Louisiana
ZOE LOFGREN, California DAVID G. REICHERT, Washington
SHEILA JACKSON LEE, Texas MICHAEL T. McCAUL, Texas
DONNA M. CHRISTENSEN, U.S. Virgin CHARLES W. DENT, Pennsylvania
Islands GINNY BROWN-WAITE, Florida
BOB ETHERIDGE, North Carolina MARSHA BLACKBURN, Tennessee
JAMES R. LANGEVIN, Rhode Island GUS M. BILIRAKIS, Florida
HENRY CUELLAR, Texas DAVID DAVIS, Tennessee
CHRISTOPHER P. CARNEY, Pennsylvania
YVETTE D. CLARKE, New York
AL GREEN, Texas
ED PERLMUTTER, Colorado
VACANCY
Jessica Herrera-Flanigan, Staff Director & General Counsel
Rosaline Cohen, Chief Counsel
Michael Twinchek, Chief Clerk
Robert O'Connor, Minority Staff Director
______
SUBCOMMITTEE ON TRANSPORTATION SECURITY AND INFRASTRUCTURE PROTECTION
SHEILA JACKSON LEE, Texas, Chairwoman
EDWARD J. MARKEY, Massachusetts DANIEL E. LUNGREN, California
PETER A. DeFAZIO, Oregon GINNY BROWN-WAITE, Florida
ELEANOR HOLMES NORTON, District of MARSHA BLACKBURN, Tennessee
Columbia GUS M. BILIRAKIS, Florida
YVETTE D. CLARKE, New York PETER T. KING, New York (Ex
ED PERLMUTTER, Colorado Officio)
BENNIE G. THOMPSON, Mississippi (Ex
Officio)
Mathew Washington, Director
Erin Daste, Counsel
Natalie Nixon, Deputy Chief Clerk
Coley O'Brien, Minority Senior Counsel
(II)
C O N T E N T S
----------
Page
Statementso
The Honorable Sheila Jackson-Lee, a Representative in Congress
From the State of Texas, and Chairwoman, Subcommittee on
Transportation Security and Infrastructure Protection:
Oral Statement................................................. 1
Prepared Statement............................................. 4
The Honorable Daniel E. Lungren, a Representative in Congress
From the State of California, Ranking Member, Subcommittee on
Transportation Security and Infrastructure Protection.......... 5
The Honorable Edward J. Markey, a Representative in Congress From
the State of Massachusetts..................................... 22
Witnesses
Panel I
Colonel Bob Stephan, Assistant Secretary, Infrastructure
Protection, U.S. Department of Homeland Security:
Oral Statement................................................. 7
Prepared Statement............................................. 10
Panel II
Mr. John Alexander, Health and Safety Specialist, Health, Safety
and Environment Department, United Steelworkers:
Oral Statement................................................. 38
Prepared Statement............................................. 40
Mr. Philip J. Crowley, Senior Fellow and Director of Homeland
Security, Center for American Progress:
Oral Statement................................................. 25
Prepared Statement............................................. 27
Mr. Timothy J. Scott, chief Security Officer and Global Director,
Emergency Services and Security, The Dow Chemical Company:
Oral Statement................................................. 30
Prepared Statement............................................. 31
Dr. Ara Tahmassian, Associate Vice President, Research
Compliance, Boston University:
Oral Statement................................................. 46
Prepared Statement............................................. 48
CHEMICAL SECURITY--A RISING CONCERN FOR AMERICA: EXAMINATION OF THE
DEPARTMENT'S CHEMICAL SECURITY REGULATIONS AND ITS EFFECT ON THE PUBLIC
AND PRIVATE SECTOR
----------
Tuesday, July 24, 2007
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Transportation Security and Infrastructure
Protection,
Washington, DC.
The subcommittee met, pursuant to call, at 1:55 p.m., in
Room 311, Cannon House Office Building, Hon. Sheila Jackson Lee
[chairwoman of the subcommittee] presiding.
Present: Representatives Jackson Lee, Markey and Lungren.
Ms. Jackson Lee. The subcommittee will come to order.
The subcommittee will begin its meeting today and receive
testimony on the Department's chemical security regulations and
its effect on the public and private sectors.
Let me thank this well-attended audience for their enormous
courtesies. Part of the obligation of Members cannot be done by
proxy. Though I was in the Senate last week, and I think both
the ranking member and myself were overwhelmed with the
creativity of proxies that the Senate has the ability to
utilize. But we do not use them here; and, therefore, we had a
series of votes. We thank you for your indulgence and for your
courtesies.
Mr. Secretary, we thank you very much. You have been busy
here with us over a number of weeks, and we thank you for your
attentiveness.
Let me, before I start, make a non-hearing and a non-
committee statement, but it is one that is the jurisdiction of
this committee, and, frankly, I am going to put it on the
record.
I was appalled at the incident in Phoenix, Arizona. It is a
Homeland Security matter, and it is a matter for this
committee. There are several representations of cure that have
been represented to this committee, but it will be my intent--
and I know a number of members on the full committee are
enormously involved in this issue and, frankly, have been
proven right--to secure a report on the Nation's airports as
relates to a 24-hour/7-day-a-week response as relates to
employees across America. I think the incident bears on
intolerable, and if there are any other incidences like this,
it is this committee and the Department that need to be fully
aware and to intervene immediately. This is no time for
security gaps like that to be occurring in this country.
With that being said, this is an important meeting, Mr.
Secretary, an important hearing. In the course of just a couple
of weeks, I have heard from a number of constituents, many who
are interested in how we can work together and realize, in the
new climate to which we now are exposed now some 6 years after
9/11 with an increased interest by those who would do us harm,
that preparation and preparedness is key. They also recognize
that with the critical infrastructure aspect of this committee
that involves chemical security facilities, most of it lodged
in the private sector, there must be a partnership and there
must be responsibility.
So let me again say there has been, however, a great deal
of curiosity, even skepticism, about how effectively the
Department of Homeland Security could implement these
regulations as it has not had to do so in the past with regard
to other sectors. I believe that, because this is the
Department's first attempt in a regulatory role, oversight is
vital.
As I have said, a large part of this sector is in the
private sector, and I would hope that as they would question
you that they will be questioning themselves so that they
realize that none of these items are subject to games that we
might tend to play. Whose side are you on? It is all about
securing America.
I believe that because this is the Department's first
attempt in a regulatory role we must be a partner in this, and
that means this committee and the full committee. The committee
must explore the chemical security regulations implemented by
the Department. We have that responsibility under the Homeland
Security appropriations bill of fiscal year 2007.
Specifically, the committee is interested in the Top-Screen
process, which, as you all know, is the initial phase of the
regulatory requirements. We are concerned about the breadth of
entities that will be required to fill out a Top-Screen
application, and we would like some clarifying answers on the
Department's preparation for this process. There are many
elements of this issue, and we welcome the panels' insights.
First, we must know how the Department decided upon which
chemicals to include and their amounts. Second, was the
Department prepared for entities such as universities and small
businesses to be subject to the Top-Screen process? The
committee needs to confirm that the Department has the
necessary resources to perform these tasks and to thoughtfully
and thoroughly review the questionnaires and assessments.
We also need to know whether we have gone far enough, and
there is a great deal of interest in writing a comprehensive
chemical security bill. Why? I will repeat it over and over
again: Eighty-five percent of the critical infrastructure,
which includes chemical security or chemical plants, is in the
private sector.
If the Department is lacking resources or having problems,
the committee must know, because chemical security is vital to
our national security. In fact, in any discussions that have
now been publicized, we know it is enormously vital. They are
crucial in their security--the entity's security--and of the
people who work there. It is crucial to the security of this
Nation. Even large companies via the Chemical Sector
Coordinating Council have expressed concerns about the
regulatory regime's approach. That is why this committee is
holding hearings, and we are open to their concerns, but I,
personally, am not open to countering or to denying or to
undermining the security of this Nation.
The committee should discern how the Department is defining
risks, the methodologies it is using, why it is requiring
facilities in the top three tiers to only use the Department's
vulnerability act assessment and not the assessment that many
companies already use. This duplication of resources seems
especially perplexing. However, I am open-minded. I am willing
to listen to the reasoning behind it so that we can find common
ground.
There is no doubt that the private sector wants to be
secure. They are Americans, and so there must be a common
ground to be able to solve some of these questions that are
being raised.
Many advocacy groups, chemical companies and State and
local governments have expressed frustration about whether
these regulations preempt State and local chemical security
regulations, some of which happen to be better than the Federal
criteria standards right now. The appropriations bill was
silent on preemption, but, nevertheless, the regulations seem
to imply that the regulations will preempt State and local
laws. Dow Chemical expressed to the committee that it is
supportive of State and local laws that may be more forceful
than the Federal regulations. There are several circulating
proposals to ensure that these regulations do not preempt State
and local laws.
In the Homeland Security Appropriations Act for fiscal year
2008, the House made clear that the Department should not
preempt State chemical security laws unless they are in direct
conflict with the Federal regulations.
There are also concerns about the introduction of a new
category of pseudo-classified information called Chemical
Terrorism Vulnerability Information, or CVI. The Department has
created multiple forms of classified information that may or
may not be necessary and merely seem to confuse interested
parties.
Again, this is the time to make the case or to clarify so
that the ultimate goal is the security of all of us here in
America and particularly those physical plants dealing with
chemicals that can be the genesis of a horrific terrorist act.
In the Homeland Security Appropriations Act for fiscal year
2008, language was included to instruct the Department not to
create a new class of protected information but to use the
Sensitive Security Information category, or SSI, already used
for sites located at maritime ports, regulated under the
Maritime Transportation Security Act.
In the area of worker protection and participation, we
would like to see protections provided for whistle-blowers as
well as the inclusion of chemical security workers in creating
the vulnerability assessments and the site security plans. It
appears that workers are not included in this process, and
their knowledge and positions on the front lines would be very
useful to create more effective regulations. I am also
interested, additionally, in the training of these workers and
the criteria for training the workers and whether or not that
is part of an extended and coordinated practice.
We also want to know how useful the Chemical Sector
Coordinating Council and Chemical Sector Specific Plan under
the NIPP were in creating and in implementing regulations.
These regulations seem to provide a perfect opportunity to see
a real-world example of how effective these plans and the
councils are.
As you can see, we have a lot to discuss. I, along with
other members of the subcommittee, am seriously committed to
protecting critical infrastructure and to understanding how the
private sector is protecting our vital assets. However, I am
not willing to leave it totally to the private sector or to the
Federal Government alone. This committee--this full committee
and this subcommittee must be intimately involved. As I have
often said, the bottom line is that, if an horrific act were to
occur, the name that most would look to is the Homeland
Security Department and the Homeland Security Committee.
Again, today, we want to explore what steps the private
sector has taken to protect its infrastructure and the
Department's role in this process. We look forward to the
witnesses' testimony and learning how these different entities
protect themselves from threats and what role the Congress can
play and how we can fortify the relationship to protect the
United States from a chemical attack.
Prepared Statement of the Honorable Sheila Jackson Lee, Chairwoman,
Subcommittee on Transportation Security and Infrastructure Protection
JULY 24, 2007
There has been, however, a great deal of curiosity--even
skepticism--about how effectively DHS could implement these
regulations, as it has not had to do so in the past with regard to
other sectors. I believe that because this is the Department's first
attempt in a regulatory role, oversight is vital. The Committee must
explore the chemical security regulations implemented by the Department
under the Homeland Security Appropriations bill of FY07.
Specifically, the Committee is interested in the Top Screen
process, which, as you all know, is the initial phase of the regulatory
requirements. We are concerned about the breadth of entities that will
be required to fill out a Top Screen application and would like some
clarifying answers on the Department's preparation for this process.
There are many elements of this issue and we welcome the panel's
insight.
First, we must know how the department decided upon
which chemicals to include and their amounts.
Second, was the Department prepared for entities, such
as universities and small businesses, to be subject to the Top
Screen process?
The Committee needs to confirm that the Department has
the necessary resources to perform these tasks and to
thoughtfully and thoroughly review the questionnaires and
assessments.
If the Department is lacking resources or having problems, the
Committee must know because chemical security is vital to our national
security.
Even large companies, via the Chemical Sector Coordinating Council,
have expressed concerns about the regulatory regime's approach. The
Committee should discern how the Department is defining risk, the
methodologies it is using, and why it is requiring facilities in the
top three tiers to only use the Department's vulnerability assessment,
and not the assessments that many companies already use. This
duplication of resources seems especially perplexing.
Many advocacy groups, chemical companies, and State and local
governments have expressed frustration about whether these regulations
preempt State and local chemical security regulations. The
Appropriations bill was silent on preemption but, nevertheless, the
regulations seem to imply that the regulations will preempt State and
local laws. Dow Chemical expressed to the Committee that it is
supportive of State and local laws that may be more forceful than the
Federal regulations. There are several circulating proposals to ensure
that these regulations do not preempt State and local laws. In the
Homeland Security Appropriations Act for Fiscal Year 2008, the House
made clear that the Department should not preempt State chemical
security laws unless they are in direct conflict with the Federal
regulations.
There are also concerns about the introduction of a new category of
pseudo-classified information called ``Chemical-terrorism Vulnerability
Information,'' or CVI. The Department has created multiple forms of
classified information that do not seem necessary, and merely seem to
confuse interested parties. In the Homeland Security Appropriations Act
for FY 2008, language was included to instruct the Department not to
create a new class of protected information but to use the ``Sensitive
Security Information'' category, or SSI, already used for sites located
at maritime ports regulated under the Maritime Transportation Security
Act (MTSA).
In the area of worker protection and participation, we would like
to see protections provided for whistleblowers as well as the inclusion
of chemical security workers in creating the vulnerability assessments
and the Site Security Plans. It appears that workers are not included
in this process, and their knowledge and position on the front-lines
could be very useful to create more effective regulations.
We also want to know how useful the Chemical Sector Coordinating
Council and Chemical Sector Specific Plan (under the NIPP) were in
creating and implementing the regulations. These regulations seem to
provide a perfect opportunity to see a real-world example of how
effective these plans and councils are. As you can see we have a lot to
discuss.
I, along with other members of this subcommittee, am seriously
committed to protecting critical infrastructure and understanding how
the private sector is protecting our vital assets.
Again, today we want to explore what steps the private sector has
taken to protect its infrastructure and the Department's role in this
process. I look forward to the witnesses' testimony and learning about
how these different entities protect themselves from threats and what
role Congress can play to fortify and protect the United States' from a
chemical attack.
Ms. Jackson Lee. The Chair is pleased now to recognize the
ranking member, the gentleman from California, for his opening
statement.
Mr. Lungren. Thank you very much, Chairwoman Jackson Lee.
Because of the crazy schedule going on today around here, I
will have to, unfortunately, leave at 2:45, so I hope to hear
as much as I possibly can from both panels.
I must say it is fitting that our subcommittee be the first
to review the Department of Homeland Security's efforts in
implementing our committee's bipartisan chemical security
legislation which was enacted just last year. The authority to
regulate the chemical industry is, indeed, historic. For the
first time, all chemical facilities will be assessed, Top-
Screened for potential consequences and assigned to risk based
tiers because of specific security concerns.
The Department, as I understand, estimates that there are
40,000 facilities which will complete this assessment process.
Those facilities which qualify as tiers 1, 2 or 3 will be
required to conduct a facility vulnerability assessment and to
submit a site security plan to address those vulnerabilities.
This is in keeping with the legislation which we enacted last
year where we were trying to ensure that we targeted our
greatest resources at the greatest risks.
I am pleased that the regulations recently issued under our
legislation were both risk based and performance based. I
believe this will prevent us from overreaching and from
enacting inflexible and unreasonable requirements on our
Nation's chemical facilities. The last thing we want to do is
to somehow suppress the ingenuity and creativity of the private
sector in coming up with the necessary security measures, and I
think we have avoided this so long as we have both risk-based
and performance-based assessments guiding our conduct. Our goal
and that of these regulations should be to strike the right
balance between securing our high-risk chemical facilities
while ensuring that they continue their vital service to the
American economy.
Reference was made by the chairwoman to the legislation or
to the language contained in legislation this year which
changes the carefully constructed language that we had last
year to try and establish a balance between the Federal, State
and local governments. Last year, we came upon language which
has been utilized by the courts before. I cannot give you it
exactly, but I believe it is something to the effect that State
and local laws, so long as they did not frustrate the Federal
intent or purpose, would be allowed. That language is language
which has been utilized by the courts in the past to determine
the relationship among the different levels of government, and
I am concerned that the new language, if it is completed in
legislation with the Senate, would cause us to have disputes in
the courts as to what that language actually means.
Unfortunately, it seems, to me, it is too early in this
regulatory effort to make a full determination as to the
success or failure of the Department in implementing the
regulatory scheme. To be fair, we should allow these
regulations to be fully implemented before we second-guess
their effectiveness. Nonetheless, I am interested to hear from
you, Colonel Stephan, on exactly what you have done and how you
are going forward with it.
Also, as to the second panel, I have not had the
opportunity to meet the members of the panel, but I have
familiarity with the Dow Chemical Company at one of their major
plants in a previous district that I represented. At that time,
I recall that they were ahead of the curve on the question of
safety and security, and I would look forward to hearing what
they are doing in the present environment as well.
Thank you very much.
Ms. Jackson Lee. Thank you, Mr. Lungren, for your remarks.
The chairwoman acknowledges that other members of the
subcommittee are reminded that, under the committee rules,
opening statements may be submitted for the record, and I would
ask, at this time, unanimous consent that we would continue as
if we had a quorum in the absence of Mr. Lungren.
Any objection?
Mr. Lungren. No objection.
Ms. Jackson Lee. None being heard, we thank you very much
so that we can complete this particular hearing.
It is, again, a pleasure to welcome Colonel Robert Stephan.
Colonel Stephan is the Assistant Secretary for the Office of
Infrastructure Protection with the Department of Homeland
Security. Prior to joining the Department in 2005, Colonel
Stephan was the Senior Director for Critical Infrastructure
Protection in the Executive Office of the President. Colonel
Stephan had a distinguished 24-year career with the Air Force.
We welcome you. We have seen you quite frequently. We thank
you for the important work that you have done on critical
infrastructure, and we are very glad that you are here today,
and we thank you for your military service.
So, without objection, the witness's full statement will be
inserted into the record.
We welcome you again. Thank you for your testimony.
STATEMENT OF COL. BOB STEPHAN, ASSISTANT SECRETARY,
INFRASTRUCTURE PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY
Colonel Stephan. Madam Chairwoman and Ranking Member
Lungren, thank you very much for the opportunity to come and
talk with you today about an important topic, in fact, a topic
that is very much at the center of our radar screen at the
Department of Homeland Security and within my office in
particular.
I also wanted to thank you both personally for your
leadership in bringing this legislative authority to light--
this regulatory authority to light--and for your continued
support in ensuring the success of its implementation.
As you know, securing the chemical sector represents an
immense undertaking, involving a national effort including all
levels of government, industry, multiple other organization
entities and the American public at large. Integrated and
effective partnerships among all stakeholders are essential to
securing our national critical infrastructures, particularly
including high-risk chemical facilities across the Nation.
The chemical sector has nearly one million employees and
represents about $500 billion a year in revenue. It converts
raw materials into more than 70,000 diverse products, many of
which are critical to the health and well-being of our Nation's
citizens, to the security, to the economy, to the lives of
everyday Americans.
The contributions the chemical sector makes to the Nation
are great, but they are certainly not without risk, as both of
you have highlighted. Many chemicals, either in their base form
or combined with others, could cause significant harm to people
and to the environment if released or removed from a facility
and weaponized in some fashion. Additionally, a terrorist
attack or a natural disaster could significantly disrupt
production at key facilities, causing very important supply
chain issues that could be harmful to the economy on a regional
or on a national scale.
The Department's vision for the chemical sector is as an
economically competitive industry with a sustainable security
posture achieved using risk-based assessments, industry best
practices, and a comprehensive information-sharing environment
between industry and government. This vision also includes,
recently, the implementation of a tailored new regulatory
authority, the Chemical Facility Anti-Terrorism Standards, more
affectionately known as the CFATS, aimed at securing the most
high-risk sites around the country; and a combination of
voluntary industry efforts and risk-based public-private
collaboration inside of regulatory space is what we are going
to use to enable the implementation of this overarching vision.
As you all are well aware, our Appropriations Act language
from last year directed us to develop and to implement a
regulatory framework for high-risk facilities in the chemical
sector. The Act gives DHS authority to require high-risk
chemical plants to complete vulnerability assessments, to
develop site security plans and to implement protective
measures necessary to meet performance-based standards. The Act
gave DHS 6 months from the day the President signed the bill in
early April, 2007, to promulgate interim final regulations. DHS
released these final regulations, the CFATS, on April 9th of
this year.
The following core principles guided the development of
this regulatory framework:
Consultation with industry experts, academic specialists,
engineering associations, and nongovernmental organizations in
a close public/private sector partnership. We have also
leveraged State and local organizations, such as the New Jersey
State Government at various levels and the New Jersey State
Chemical Council, to make sure we have effectively leveraged
that vital partnership.
Tiering. Not all facilities represent the same level of
risk, and the most scrutiny should be focused on those that, if
attacked, of course, represent the most risk; and we should
focus on complicating the lives of our terrorists, adversaries
in every single thing we do in this program.
Performance standards should be reasonable, clear and
equitable and achieve the balance that Congressman Lungren
spoke to in terms of achieving security while preserving the
economic vitality and competitiveness of the industry.
Finally, in implementing this regulation, we should
recognize the very significant progress that multiple entities
across the sector have made since the September 11th attacks to
provide for their own security as well as the many voluntary
programs they have joined in partnership with DHS and other
Federal and State and local agencies to get the job done.
In September of 2006, we released an Advance Notice of
Rulemaking that contained a draft regulation for public
comment. Through this process, we received more than 1,300
pages of comments from over 106 separate submitters. We have
extensively reviewed these comments and have considered them in
the final regulation.
Inside the interim final rule, we included a second public
comment period. It was on a very important piece that I would
like to go into more detail on with you during the Q and A
session. It was specific to Appendix A, which details specific
chemicals of concern and screening threshold quantities that we
intend to regulate through this program.
The comment period closed out in early May, and it produced
more than 4,000 individual comments for our review. As the
Secretary has noted, we are reviewing these comments very
carefully and are closely considering them as we work to
finalize the Appendix. In fact, the internal DHS clearance
process closed at noon today, Madam Chairwoman, I am happy to
report, and the final Appendix A should then be skirting its
way through the OMB process in the coming weeks.
Issues that informed our initial look at the chemicals of
concern and in developing CFATS included toxic release
quantities, the potential for theft or diversion, the potential
for sabotage or contamination, and the economic mission/
government mission impact across the country.
To implement and execute these regulations, the DHS must,
in a very complicated manner, define the regulated community or
determine which facilities are high risk. To facilitate this
process, we developed a screening tool called the Chemical
Security Assessment Tool, or CSAT. CSAT employs an easy-to-use,
kind of like a Turbo Tax, online, consequence-based Top-Screen
tool. CSAT builds upon the functional assessment tool developed
by DHS with industry earlier referred to as RAMCAP, or Risk
Analysis and Management for Critical Asset Protection. Under
the regulatory program, chemical facilities initially
designated high risk must complete this online consequence
assessment tool, and this information we will use to factor
into the final tiering of the facilities.
Using the results of the CSAT tools, all high-risk
facilities will be placed into one of four tiers based upon
risk. The higher a facility's tier, the more robust measures
they will need to incorporate and the more frequent and
rigorous their inspection cycles will be. Inspections will both
validate the adequacy of a facility's site security plan as
well as verify the implementation of the specific protective
measures identified therein.
DHS is using a phased approach, which is very important in
implementing the regulations, with implementation at the
highest-risk facilities beginning in an expedited manner and
with implementation at lower-risk facilities occurring in a
sequential fashion.
On June 8th, the CSAT Top-Screen went live, and the
Chemical Vulnerability Information program went into effect. On
June 11th, we reached out to the State Homeland Security
Advisor community and to the Chemical and Oil and Natural Gas
Government Coordinating Councils and to their corresponding
private sector counterparts to brief them fully on program
implementation. We kicked off what we call ``Phase 1(a),''
during the week of June 11----
Ms. Jackson Lee. Colonel, are you wrapping up soon?
Colonel Stephan. Yes, ma'am, I was.
Ms. Jackson Lee. Okay. Thank you.
Colonel Stephan. --making calls to approximately 50 select
facilities to inform them of the inclusion in an accelerated,
fast-phased phase 1 implementation. This outreach was at the
corporate level and expected to result in a collaborative
effort to complete the CSAT Top-Screen in an expedited fashion.
Now I have, also, other details regarding specific
implementation steps and very important voluntary efforts such
as the Chemical Comprehensive Review Plan program, the Buffer
Zone Protection Plan program, various types of information-
sharing programs and mechanisms/coordinating structures we have
established--for instance, management--that are all catalogued
in very great detail inside my written testimony; and, of
course, that is submitted for your review and comment.
Ma''am, barring any further issues, I will then turn the
floor back to you for questions and answers on this very
important topic.
Again, I thank the leadership of this subcommittee for
helping drive this process forward. We will look forward to
partnering with you as we begin to implement now this very,
very complex regulation and make sure that we absolutely do the
right thing. My people and I, we are a ``no fail'' in terms of
this mission. You should have no concern about our ability to
do this, because we are the right people to do this task, and
you have our pledge that we are going to do it the right way.
We also understand we are not going to get a second chance to
do this the right way, and so we are fully committed to doing
this.
Thank you again for your continued support as we move
through this together.
Ms. Jackson Lee. Well, I am sure, Colonel, that the Nation
is grateful for your enthusiasm. We know that the entirety of
your statement, if there is more remaining, will be submitted
into the record, and we thank you for the passion in which you
have presented your testimony.
[The statement of Colonel Stephan follows:]
Prepared Statement of Colonel Robert B. Stephan
Thank you, Chairwoman Jackson-Lee, Congressman Lungren, and
distinguished members of the Subcommittee. It is a pleasure to appear
before you today to discuss chemical security. Open dialogue between
security partners is a key element in advancing the security of our
nation, and I appreciate this opportunity to address you on such a
timely and important topic. Securing the Chemical Sector represents an
immense undertaking that involves a national effort including all
levels of government, industry, and the public. Integrated and
effective partnerships among all stakeholders--federal, state, local,
and private sector--are essential to securing our national critical
infrastructures, including high-risk chemical facilities.
The Chemical Sector and the Sector Specific Plan
The Chemical Sector has nearly one million employees and represents
$500 billion a year in revenue. It converts raw materials into more
than 70,000 diverse products, many of which are critical to the health
and well-being of our nation's citizens, to security, and to the
economy. The contributions the Chemical Sector makes to the Nation are
great, but they are not without risk. The economic and strategic value
of the industry may make it an attractive target for terrorists. Many
chemicals, either in their base form or when combined with other
chemicals, could cause significant harm to people and the environment
if released or removed from a facility and weaponized in some fashion.
Additionally, a terrorist attack, natural disaster, or industrial
accident could significantly disrupt production at key facilities,
causing supply chain issues that could be harmful to the economy on a
regional, national, or global scale.
The Department of Homeland Security's (DHS') vision for the
Chemical Sector is that of an economically competitive industry with a
sustainable security posture. This can be achieved by using risk-based
assessments, industry best practices, and a comprehensive information
sharing environment between industry and government. This vision also
includes the implementation of a tailored new regulatory authority--the
Chemical Facility Anti-Terrorism Standards (CFATS)--aimed at securing
the most high-risk sites around the country. It is the combination of
voluntary industry efforts and risk-based public-private collaboration
inside and outside of regulatory space that will enable implementation
of this vision.
Industry Efforts
In the nearly six years since the terrorist attacks on September
11, 2001, the great majority of industry owners and operators have
taken actions to assess facility vulnerabilities and put in place a
wide variety of operational, physical, and cyber security measures. In
fact, the Chemical Sector has invested more than $3 billion in
voluntary security measures in the aggregate since 9/11. In our
experience, Chemical-Sector owners and operators generally understand
the importance of integrating security into their operations as a sound
and responsible business practice.
Examples of industry-led protective initiatives include:
Responsible Care Security Code: There is a history of collaboration
within the sector on chemical safety, most notably in the American
Chemistry Council's Responsible Care program supported by key industry
associations. After September 11, this program was modified to include
a mandatory Responsible Care Security Code for chemical facility
security which requires facilities to:
Assess vulnerabilities using methodologies developed
by Sandia National Laboratories or the Center for Chemical
Process Safety.
Implement security enhancements.
Verify physical enhancements through local officials
or third parties.
Specifically, facilities are required to control vehicular and
pedestrian access to sites; protect the perimeter through physical
barriers, access control systems, electronic surveillance, and patrols;
create, train, and rehearse security plans; ensure backup for critical
chemical process systems, including offsite control rooms; work with
regional stakeholders (government and emergency services) to ensure
timely response and communication; and vet and access clearance for
employees and contractors. The Security Code has requirements for cyber
security and transportation, as well.
Chemical Sector Cyber Security Program: The Chemical Sector Cyber
Security Program was established by the American Chemistry Council
(ACC). In April 2002, ACC recognized the need for a unified plan of
action to address cyber security across the sector, as well as with
technology providers, supply chain partners, and other critical
infrastructure industries. To accomplish this, a task force comprised
of 16 high-level subject-matter experts was chartered to create the
Chemical Sector Cyber Security Strategy. This strategy was published in
September 2006 and outlines the sector's plans to continue facilitating
improvements to IT and manufacturing system security.
Sector Protective Programs: Several industry trade associations
have developed risk assessments methodologies and technical tools to
support their member companies. In fact, many associations require
completion of risk assessments as an integral condition of membership
and safety and security stewardship. Some of the more widely used
methodologies include the following.
The National Association of Chemical Distributors (NACD)
revised its Responsible Distribution Process (RDP) in April 2002 to
mandate chemical security measures that address potential
vulnerabilities within chemical distribution, including site and
transportation security and end-use customers. Implementation and
third-party verification of RDP is a condition of membership for
companies belonging to NACD. RDP's security measures also require
Security Vulnerability Assessments (SVAs) to be conducted with onsite,
third-party verification.
The American Petroleum Institute (API)/National
Petrochemical and Refiners Association (NPRA), as part of its Facility
Security Program, developed the API/NPRA methodology. This
comprehensive facility SVA methodology focuses primarily on refineries
and petrochemical manufacturers.
The Chlorine Institute has developed guidance documents
regarding the development of security plans by those facilities that
handle chlorine rail tank cars when not under the control of a
railroad. The guidance calls for an SVA and contains 36 baseline
security actions with implementation recommendations and additional
security actions for higher alert levels.
The American Chemistry Council's Responsible Care Security
Code also requires facilities to conduct an SVA. A facility can use the
Vulnerability Assessment Methodology for Chemical Facilities developed
by Sandia National Labs, the Center for Chemical Process Safety (CCPS)
SVA methodology, or any other methodology determined certified by the
CCPS.
The Synthetic Organic Chemical Manufacturers Association
(SOCMA) developed a computer-based tool, recognized by CCPS as meeting
the SVA criteria, that is available, for free, to a wide range of
facilities in the Chemical Sector. The SOCMA SVA can be used to help
facilities analyze potential vulnerabilities and consider where to most
effectively implement enhanced security measures.
The Agribusiness Security Working Group--comprising the
Agricultural Retailers Association, CropLife America, and the
Fertilizer Institute--has produced a web-based tool to assist
agribusiness retailers in conducting an SVA on their retail facility
and their transportation practices.
The National Paint and Coatings Association recently
amended its Coatings Care Program to include a Coatings Care Security
Code to address critical areas of site security, transportation,
distribution, and cyber security with appropriate management practices
and guidelines.
Security Guidance Documents: Several of the individual members of
the Chemical Sector Coordinating Council, under the National
Infrastructure Protection Plan framework, have developed security
guidance documents specific to the sub-sector they represent. Examples
include the following:
The Institute of Makers of Explosives has published
explosive industry's best practices standards. Their Safety Library
Publication 27 (SLP27) covers security in the manufacture,
transportation, storage, and use of commercial explosives. SLP-27 also
addresses security plans with recommendations tiered to different
threat levels.
Crop Life America sponsors the American Agronomic
Stewardship Alliance (AASA), a program designed to inspect and credit
more than 6,200 agricultural chemical facilities. The AASA helps to
ensure third-party verification at retail sites and to certify that
site security plans are developed and implemented.
ACC, the Chlorine Institute, and SOCMA collaborated on the
``Site Security Guidelines for the U.S. Chemical Industry,'' available
for all chemical facilities as a condition of membership and safety and
security stewardship.
Public-Private Sector Security Partnerships
Under the National Infrastructure Protection Plan (NIPP), each
sector has developed a Sector-Specific Plan, or SSP, which details how
the NIPP risk analysis and risk management framework and information
sharing network will be tailored and implemented to meet the needs of
the sector. The Chemical SSP, released in May of this year, is an
excellent example of the public/private partnership DHS has fostered
across various levels of government and industry to improve security at
chemical facilities around the country. The SSP establishes goals,
objectives, and metrics that address a full spectrum of sector
collaboration, information sharing, risk analysis, protection, and
incident management activities. The chemical sector continues to set a
strong example in implementing cooperative strategies that cost-
effectively use government and industry resources to help ensure the
security of high-risk facilities, systems, and networks.
Through the NIPP process, DHS established solid working
relationships with a wide variety of public--and private-sector
partners that make up the chemical sector. This partnership provides an
effective channel for increased information sharing, risk assessment,
collaborative security planning, security-related research and
development, best-practices exchanges, and preparations for incident
management. The Chemical Sector Coordinating Council (SCC) was formed
in 2004 and currently consists of 18 trade associations, with the Chair
and Vice Chair positions held by industry operators/owners. The
corresponding Government Coordinating Council is comprised of several
Federal departments: DHS; as well as the Departments of Commerce,
Defense, and Transportation; the Environmental Protection Agency; and
the Office of the Director of National Intelligence.
Voluntary Security Collaboration with DHS
The Chemical SSP describes many of the programs through which the
Chemical Sector is voluntarily cooperating with DHS to protect and
ensure the resiliency of its facilities and manufacturing capacity, as
well as the safety of surrounding communities. These programs have also
focused on collaborative planning between facility security personnel
and federal, state, and local law-enforcement officials to help ensure
an integrated ``inside-and-outside-the-fence'' approach to security.
Specific examples of these voluntary efforts include the following:
Comprehensive Review (CR) Program. This program brings together a
federal interagency team, facility owner/operators, industry
representatives, and community law-enforcement and emergency-service
organizations in a collaborative planning environment. The CR is a
structured, collaborative effort among federal government agencies,
including DHS components such as the US Coast Guard and the Federal
Emergency Management Agency, as well as the Federal Bureau of
Investigation; state and local law-enforcement and emergency-management
organizations; private-sector owner/operators of critical
infrastructure/key resource facilities; and industry representatives.
The purpose is to explore vulnerability to a potential terrorist
attack, the consequences of such an attack, and the integrated
capabilities needed to prevent, mitigate, and respond should such an
event occur. The results of the CR are briefed to decision-makers of
the site, state and local law-enforcement, and emergency-management
organizations at the conclusion of the onsite review week. Gaps and
potential enhancements in security and response capabilities are
provided to applicable participating organizations for consideration.
The first Chemical Sector CR was conducted in Detroit in February
2006. By August 2007, CRs will have been completed in five additional
regions: Chicago, Houston, Los Angeles, Northern New Jersey, and the
Lower Delaware River. CRs have identified many improvements--many of
them low--or no-cost--that can be implemented by Critical
Infrastructure/Key Resources (CI/KR) owners/operators, as well as
longer-term strategies and potential improvements that can be
implemented with a mix of government and private sector resources.
Buffer Zone Protection Program (BZPP). This program is a targeted
grant program designed to assist local law enforcement in enhancing CI/
KR protection across the country. For FY 2004/2005, 248 BZPP reports
for chemical facilities were submitted to DHS, which are eligible for a
total of $12,600,000 in federal grant funding against identified state
or local capabilities gaps. For FY 2006, 46 chemical facilities were
part of the BZPP, eligible for a total of $10,316,000. For FY 2007, a
total of 100 chemical sites are eligible for BZPP funding totaling
$19,865,000. To date, 394 chemical facilities have been eligible for a
total of $42,781,000 under BZPP. Additionally, in FY 2006, DHS launched
a focused $25 million Chemical Sector BZPP to enhance state and local
jurisdictions' ability to protect and secure identified chemical
facilities in high-risk regions across the country. The Chemical BZPP
program is a sector-specific effort designed to be a companion to the
Chemical Sector CR initiative.
Chemical Security Awareness Training Program. This program features
an online chemical facility security tool for use by all chemical
facility employees, not just security officers. This tool is scheduled
to be released by the Chemical SSA to the chemical sector in the Fall
of 2007.
Vehicle-Borne Improvised Explosive Device Training Program. This
program is under development by the Chemical SSA and the DHS Office of
Bombing Prevention to provide a course for chemical facility security
officers responsible for searching vehicles at chemical plants.
Sector Exercises. Various state-level chemical coordinating
councils, in concert with the local first responders and DHS, are
conducting tabletop exercises to ensure a coordinated and well-
orchestrated response to an event at a chemical facility. Additionally,
the Chemical Sector participates as a whole in several national-level
exercise events each year. The Chemical Sector was a participant in the
TOPOFF 3 national exercise, from the corporate level to the individual
facility level. The sector also participated in the Department of
Defense-sponsored exercise ``Ardent Sentry'' in May 2007, as well as
the Continuity of Operations exercise called ``Pinnacle'' in May 2007.
In each exercise, private sector entities and their government
counterparts reviewed and tested communication paths and incident
management plans and protocols. The Sector is currently planning its
participation in the TOPOFF 4 exercise to be conducted in October of
this year and is a featured thread in the upcoming Cyber Storm II
exercise, which will take place in March 2008.
Chemical Security Summit. In June, DHS and the SCC co-sponsored the
2007 Chemical Sector Security Summit. The event was attended by 350
members of the Chemical Sector. Topics discussed included the
implementation of the new CFATS, secure distribution of chemicals, and
security-awareness training. Planning is under way for a similar event
in 2008.
Homeland Security Threat and Risk Analysis Center (HITRAC). HITRAC
has dramatically increased its outreach to the sector during the past
two years, providing timely sector assessments, indications and
warnings products, and security-related briefings. HITRAC has also
worked collaboratively with the private sector to address the
timeliness and content of the threat information at the classified and
unclassified levels. The last classified brief was in March 2007, and
the next one is scheduled for September 2007. In addition, HITRAC
provides scheduled bi-weekly unclassified briefings by teleconference
on threat information based on private-sector reporting, as well as law
enforcement and other sources.
Homeland Security Information Network (HSIN). HSIN is providing an
increasing amount of timely information to users in a secure, online
format. Recent information that we have posted on HSIN includes
information on the July 2007 United Kingdom bombings, reports on recent
incidents in Iraq involving chlorine, Quarterly Suspicious Activity
Reports, and 2007 pre-season hurricane impacts analysis.
Chemical Security Regulations
As you are all well aware, the FY 2007 Homeland Security
Appropriations Act directed DHS to develop and implement a regulatory
framework for high-risk chemical facilities. Section 550 of the Act
authorizes DHS to require high-risk chemical facilities to complete
vulnerability assessments, develop site security plans, and implement
protective measures necessary to meet DHS-defined performance
standards. The Act gave DHS six months from the date the President
signed the Bill, or until early April 2007, to promulgate interim final
regulations implementing this authority. DHS published the interim
final regulations, the CFATS, on April 9, 2007.
The following core principles guided the development of this
regulatory structure:
(1) Consultation with industry experts, academic specialists,
engineering associations, and non-government organizations to
ensure that our rule would be workable while accomplishing our
security goals. By working closely with public experts, such as
New Jersey State officials and the New Jersey Chemical Council,
we believe that we have effectively leveraged vital knowledge
and insight to make our regulation better.
(2) Tiering. Not all facilities present the same level of risk
and that the most scrutiny should be focused on those that, if
attacked, could endanger the greatest number of lives, have the
greatest economic impact, or present other very significant
risks. Low-risk facilities are not a part of this framework.
(3) Reasonable, clear, and equitable performance standards for
facility security. The rule includes enforceable performance
standards based on the types and severity of potential risks
posed by terrorists and natural disasters, and facilities
should have the flexibility to select among appropriate site-
specific security measures that will effectively address those
risks, complicating terrorist attack planning and operational
surveillance in the process.
(4) Recognition of the progress many responsible companies have
made to date in raising the security bar across the Chemical
Sector. Many companies have made significant capital
investments in security since 9/11, and we should build upon
that progress in implementing the CFATS program.
Stakeholder input--both public and private--was critical to our
success in developing the regulatory framework. In December 2006, DHS
released an Advanced Notice of Rulemaking containing a draft regulation
for public comment. We received more than 1,300 pages of comments from
more than 106 separate submitters. We extensively reviewed these
comments and considered them in finalizing the regulation.
Within the Interim Final Rule, we included a second public comment
period specific to ``Appendix A,'' which details the specific chemicals
and their corresponding ``Screening Threshold Quantities'' that we
intend to regulate through the CFATS program. This public comment
period closed out on May 9, 2007, and produced more than 4,000
individual comments for our review. We have studied these comments
carefully and are closely considering them as we work to finalize the
Appendix. We also conducted extensive outreach with some commenters to
better understand their specific concerns and issues.
Issues that informed our initial look at which chemicals could be
of concern in developing CFATS included quantities released, potential
for theft or diversion, potential for sabotage or contamination, and
the effect that they would have on national security, government
operations, or the economy.
To implement and execute the CFATS regulations, DHS must define the
regulated community or determine which facilities are ``high risk.'' To
facilitate this, DHS has developed a screening tool called the Chemical
Security Assessment Tool (CSAT). The CSAT employs an easy-to-use,
online consequence-based Top Screen tool. CSAT builds upon the
foundational assessment tool developed by DHS with industry input
referred to as the Risk Analysis and Management for Critical Asset
Protection, or RAMCAP. Under the regulatory program, those facilities
initially designated high-risk must complete the online CSAT SVA, which
will factor into a final determination of a facility's risk level for
the purposes of the regulatory regime.
Using the results of the CSAT tools, all high-risk facilities will
be placed into one of four tiers based on risk. While all high-risk
facilities will be required to develop site security plans addressing
their vulnerabilities, the security measures needed to meet the
performance standards, as well as its inspection cycle and other
regulatory requirements, will be based upon a facility's tier level.
The higher a facility's risk tier, the more robust the measures they
will need to incorporate and the more frequent and rigorous their
inspections will be. Inspections will both validate the adequacy of a
facility's site security plan, as well as verify the implementation of
the measures identified therein.
DHS is using a phased approach in implementing the CFATS
regulations, with implementation at the highest-risk facilities
beginning in an expedited manner and implementation at lower-risk
facilities occurring in a sequential fashion. The following is a
summary of our current activities:
On June 8, the CSAT Top Screen went live, and the Chemical-
Technical Vulnerability Information program (CVI) went into
effect. On June 11, we reached out to the State Homeland
Security Advisors and the Chemical and Oil and Natural Gas
Government Coordinating Councils and SCCs to brief them on
program implementation. We kicked off Phase 1(a) the week of
June 11, making calls to approximately 50 select facilities to
inform them of inclusion in the Phase 1(a) program. This
outreach was at the corporate level and is expected to result
in a collaborative effort to complete the CSAT Top Screen in an
expedited fashion for known high-risk facilities.
Follow-up letters are being sent to companies to serve as a
``trigger'' for the sixty-day Top Screen clock regarding the initial
pool of 50 facilities. The facilities will complete an expedited CSAT
process with technical assistance from DHS inspectors. The inspectors
are also initiating outreach to state and local jurisdictions to begin
security discussions and explain the CFATS program in detail. We
anticipate approved site security plans and formal site inspections of
these facilities in most cases by the end of the calendar year.
Phase 1(b) also began the week of June 11. This phase is being
conducted in coordination with Chemical SCC and Oil and Natural Gas SCC
to begin the Top Screen process for additional high-risk facilities at
industry discretion prior to publication of Appendix A. This phase
provides for Registration and completion of the Top Screen, with a Help
Desk available and CVI in place. It gives flexibility in schedule and
reflects a partnership model focused on major corporations. A quick
glance shows that our outreach efforts are working; as of July 13, the
following statistics were reported by our CSAT team:
--6,096 facilities have registered in the CSAT process and are
in some phase of Top Screen completion
--194 have submitted a completed Top Screen
Phase 2 will commence upon publication of Appendix A and will
officially start the program for all facilities that hold chemicals of
interest and meet stated screening threshold quantities. Facilities
will complete Top Screens, receive preliminary tiering decisions,
complete SVAs, develop site security plans, and be inspected to the
plan, as appropriate per tier.
In terms of tools to assist compliance with the regulations, the
Chemical Terrorism Vulnerability Information Procedures Manual and
attendant training are available online at www.dhs.gov/
chemicalsecurity.
We intend Phases 1(a) and (b) to be a learning time for us,
particularly for our inspectors as well as for industry. What we learn
will shape further implementation of the program and help us ensure
consistency in our approach across the country.
Additionally, and let me stress that this will be of benefit to all
partners in the long run, DHS intends to focus a great deal of effort
on fostering solid working relationships with state and local officials
and first responders in jurisdictions with high-risk facilities. In
fact, to effectively meet the risk-based performance elements under
CFATS, facilities must demonstrate that they have active, effective
working relationships with local officials in the areas of delaying and
responding to a potential attack and knowing who does what during an
elevated threat situation. The goal is the same as with our voluntary
Comprehensive Reviews: that all stakeholders participate in the
planning and implementation of protective security measures around
high-risk chemical facilities.
In authorizing the CFATS program, Congress provided the Department
with the ability to protect sensitive, chemical-facility information in
a way that balances the need to protect the information from
inappropriate and potentially harmful disclosures with the need to
share the information with key stakeholders, particularly state and
local officials. To implement this authority, we conducted a review of
existing information security vehicles, including the Sensitive
Security Information (SSI) designation. Because neither SSI nor any
other existing unclassified designation provides the level of
protection called for in Section 550, we developed a designation
entitled Chemical-terrorism Vulnerability Information (CVI). That said,
the Department does not take the creation of a new information
protection regime lightly, especially in light of the President's
Memorandum for Heads of Executive Departments and Agencies of December
16, 2005, entitled ``Guidelines and Requirements in Support of the
Information Sharing Environment,'' and the current efforts to
standardize Controlled Unclassified Information. In addition, DHS has
partnered with a working group comprising state and local Homeland
Security Officers to implement CVI in a way that supports state and
local information needs while ensuring the proper level of information
protection to keep sensitive information out of the hands of those who
may use it against us.
Conclusion
The Federal government is collaborating extensively with the
public, including members of environmental groups and the chemical
sector, to actively work toward achieving our collective goals under
the NIPP and the CFATS regulatory framework. In almost all cases,
industry has voluntarily done a tremendous amount to ensure the
security and resiliency of its facilities and systems; however,
addressing the concern that such efforts have not been universally
adequate in all cases for all high-risk chemical facilities, Congress
has directed that the new chemical security regulations be developed
and that DHS enforce them. I am hopeful that as we take on this new
task, we will continue to work as partners with industry and Congress
to get the job done. Given the nature of the terrorist adversary that
we face, we simply cannot afford an ``us-versus-them'' stance toward
the Chemical Sector. In this light, ``we'' will work smartly to
implement a risk and performance-based approach to regulation and, in
parallel fashion, continue to pursue the voluntary programs that have
borne considerable fruit thus far. We look forward to continued
cooperation with all of our industry and state and local government
partners as we move towards a more secure future.Thank you for holding
this important and timely hearing. I would be happy to take any
questions you might have.
Ms. Jackson Lee. Frankly, I believe that is, certainly, the
appropriate passion, if you will, because we are talking about
some enormously dangerous possibilities even if we have the
attention as we do of the industry.
For any members coming, let me remind those members, for
the record--who may be on their way because of this busy
schedule--that each will have 5 minutes to question the panel.
At this time, I will now recognize myself for 5 minutes.
Allow me quickly, Colonel, if I can, and if your questions
can be pointed, if you will, because I do want to get to the
second panel, respecting the ranking member's schedule that may
require him to leave. We will have a further opportunity to
explore this because we are not finished with this one hearing.
You noted, as I spoke earlier in my remarks, that the
fundamental approach and structure of the chemical regulations
is one that we have, in fact, worked with you on based upon
legislation in this session and legislation in the past
Congress, and so we think the approach, certainly, has the
right tone to it, the right direction, but we also raise the
question about the implementation, especially the Top-Screen
process.
So tell us quickly what process was used to determine
chemicals of concern. That is a key element. What process was
used to calculate the respective amounts that determine whether
an entity is required to conduct a Top-Screen?
Colonel Stephan. Yes, ma'am.
We are looking at classifying chemicals as substances of
concern for the purpose of this regulation based upon whether
they are toxic by inhalation, release hazard, whether there are
theft, diversion, sabotage-type issues. That is, can some
material that we define as a ``substance of concern'' be
removed from the site, weaponized into an IED configuration and
used to kill people or can it be used to sabotage or to
contaminate a public gathering place?
Also, we are taking a look at a very interesting piece of
new ground. That is the impact of individual facilities and
chemicals on national and regional economic production as well
as national security and national or mission governance. All of
the chemicals on the list were derived principally from
existing sources, things that have gone through the test of
time. They have been put in place by other safety regulators,
principally, such as the EPA, the Department of Transportation,
the Transportation Security Administration, the Department of
Commerce under the Chemical Weapons----
Ms. Jackson Lee. But you took existing information and
filtered it and came up with your list?
Colonel Stephan. Principally, ma'am. Although there are
some chemicals on the list that probably do not exist on any
existing list that might be----
Ms. Jackson Lee. Do you have scientists under your
jurisdiction to be able to assist you in further
determinations?
Colonel Stephan. Yes, ma'am. Through the Directorate of
Science and Technology, we have a Chemical Security Analysis
Center that is located slightly north of----
Ms. Jackson Lee. Have you utilized that research?
Colonel Stephan. They have been fully engaged in the
process with us, as has been the FBI's weapon of mass
destruction lab and other scientific communities.
Ms. Jackson Lee. Is the list a growing list, a list to be
modified, a list to be enhanced, a list to be detracted from?
Colonel Stephan. Ma'am, it has approximately 300-plus
chemicals in nature right now; and we are at, I think with this
phase of the program, submitting this to our Secretary for his
look this week; and I think, from my perspective, it is done.
Ms. Jackson Lee. Are the chemicals on there those that, by
themselves, may be nonthreatening but in combination they are
threatening?
Colonel Stephan. That is correct, ma'am, in a mixture-type
environment.
Ms. Jackson Lee. Okay. You know, as you have heard from
several entities, we have heard from several entities,
including associations that represent universities. When we
look at your materials in the Top-Screen survey, you query
responses by the type of facility, and you give them the option
to be called the ``chemical manufacture petroleum refinery'' or
the ``liquid natural gas facility.'' It seems as if that is
what you are connecting to, but we are told that out of the
procedures that we have that we have a far more expansive
scope, which would include universities.
Are you surprised by the number and scope of the facilities
that you are including? How are you addressing that question?
Do you think, at this present time, you have enough staff to
begin what will be an ongoing and extended process as these
particular entities, facilities, have to come under these
regulations?
Colonel Stephan. Yes, ma'am.
When you take the approach to regulate by chemical of
concern, obviously, we have found out initially there will be a
more expansive universe than the traditional big chemical
plant, storage manufacturing facilities that would be included
in this framework. Probably, to be honest with you, it is quite
a bit more than we thought we would catch in the initial
casting of the net.
For those organizations that do not clearly fit into any
one of the conventional chemical facility categories, such as
the universities and colleges, we have established incredible
outreach with these folks to figure out what their business
landscape is, their operating environment and the risk
environment; and we have reached conclusions, based upon our
initial threshold quantities as well as some of those that will
ultimately fall inside our program authority, of how we will
work with them to develop some very specialized and tailored
security plans.
Ma''am, as you know, with the passage of this Act, I was
not given initially any new resources to conduct this mission.
As recently as, I think, about a week ago, I was able to tap
into the $12 million supplemental appropriation to be able to
bring this program up to speed for where we think it needs to
go in 2007. In 2008, you will see an increase in the
Department's requirements over the 2007 threshold.
I have recently, with the finalization of the interim final
rule, conducted a very comprehensive, 2-month-long, manpower-
and-resources-required study that I am now using inside my
chain of command to take a look at budget formulation for the
outyears.
Ms. Jackson Lee. But you leave expanded groups, you feel,
prepared to deal with the expanded groups beyond chemical
manufacturing/liquid natural gas facilities?
Colonel Stephan. Yes.
Ms. Jackson Lee. With all of the large fishnet that you
have, you are prepared to deal with those various
organizations, universities and others?
Colonel Stephan. Yes, ma'am. But, again, we are going to be
skimming down the initial number of fish that we caught in the
first net that we cast based upon dialogue/listening sessions
that we had with various elements of these new folks that----
Ms. Jackson Lee. Well, I would like you to keep the
committee advised.
Colonel Stephan. Yes, ma'am.
Ms. Jackson Lee. I would like to be engaged in that process
just to get an understanding of the direction that you are
taking.
Colonel Stephan. Yes, ma'am.
Ms. Jackson Lee. Because my time is up, let me just ask you
quickly, do you plan to use contractors to review the Top-
Screen questionnaires dealing with the vulnerability
assessments, site security plans and to conduct site visits?
Colonel Stephan. Ma'am, I plan to use a combination of
Federal employees, Federal leadership and some elements of
contract staff to conduct the various aspects of the
implementation of this regulation. I would be happy to get back
with you in more specific detail based upon the knowledge base
I have now.
Ms. Jackson Lee. And you have a sufficient number, since
this number of staff that would partner with contract employees
who are under your jurisdiction, that means they are sited at
Homeland Security? They are on site?
Colonel Stephan. Ma'am, I have people on site, and I also
have 40 detailees from the Federal Protective Service on board
that are stationed in places----
Ms. Jackson Lee. Right, but those are Federal Government
workers.
Colonel Stephan. Yes, ma'am. They will be doing the on-site
inspections.
Ms. Jackson Lee. Not contractors whom you have hired
randomly?
Colonel Stephan. Well, ma'am, I do not hire contractors
randomly, but during some phase of----
Ms. Jackson Lee. Sometimes Homeland Security does hire
people randomly. We see that all the time.
Colonel Stephan. Okay, ma'am. I will not argue that point
before you today.
As we published in the IFR, the Department is also
contemplating for the lower tiers of the 1--through 4-tiered
structure, taking a look at a third-party auditor plan so that
we can distribute some of the costs and the expertise to
execute this mission across more population than my office
represents at this point in time. That will be a separate
rulemaking process open for public comment, of course.
Ms. Jackson Lee. We will explore the staffing with you
further.
With that, let me yield back my time and yield to the
distinguished gentleman from California for his questioning of
the witness.
Colonel Stephan. Thank you.
Mr. Lungren. Thank you very much.
Colonel, I remember when you first came into this position
you were required to put your stamp of approval on the sector-
specific plans. At that time, you related to the committee that
you were not satisfied with the quality of the product and you
asked for additional time. You have now reported to us on those
17 sector-specific plans, including that for the chemical
industry.
Can you give me an idea of the difference in approach that
was used in this particular assignment with respect to carrying
out the authorization that you received last year on the
chemical plants versus the sector-specific plans? You put in a
different approach to the sector-specific plans from what had
been there before. How did you make sure that you did not run
into the same problems here that the Department had run into
before?
Colonel Stephan. Sir, first and foremost, we established a
coordinating structure through the sector coordinating councils
and the government coordinating councils to make sure I had the
right guys at the table. The Secretary gave us the 871
authority to put in a protected legal umbrella or framework so
that I could have protected security discussions with elements
of the private sector.
Then every single thing that we have developed from the
voluntary side of the house has been in full collaboration with
as many aspects of the chemical sector as has wanted to come to
our table and to join us in helping us work our way through and
sort out some very tough policy decisions, planning decisions
and risk analysis-related decisions.
We are using that voluntary, collaborative framework that
has been in place now for 4-1/2 years as something that has
achieved some, I think, pretty significant progress across the
country in terms of the security of this sector, and we are now
parachuting on top of that some very surgically applied
regulatory authority to those places that need more attention,
and I need to be able to look you in the eye and guarantee you
more of a level of security than I can today.
Mr. Lungren. Let me ask you about that.
From your written testimony, it is your position that the
Top-Screen process will provide you with essential information
necessary to locate and to secure the high-risk chemical
facilities. This is information that the Department has never
had before nor has had the authority to request before,
correct?
Colonel Stephan. Yes, sir. We did not have the authority,
and this will be an amazing set of very sensitive proprietary
and security related information that gets not just
vulnerabilities but consequences and vulnerabilities in the
context of very specific threat vectors.
Mr. Lungren. Because it includes proprietary information
and information that one company may not want to share with
another or would not want to get out into the public domain
because of the security, how do you assure the participants of
the security of the information?
Colonel Stephan. Sir, because we have developed a new
program. I know it is not popular to develop a new information-
sharing program, but because of the requirements and the
mandates in section 550 of our Appropriations Act to basically
treat this information as if it were classified information in
the context of enforcement and the amount of collaboration that
we agree with 100 percent that is required between us and our
State and local government partners in the emergency responder
community and the law enforcement community across these
jurisdictions that house these chemical plants, there is going
to be a lot of people who, by mandate now, have potential
access to this information.
I have got to be able to look these private-sector folks in
the eye and guarantee from a proprietary perspective and from a
security perspective that we have a very special regime in
place that will not allow that information to be leaked in any
way and that we are working out a process through Colonel Mike
McDaniel--the State Homeland Security Advisor from Michigan--
and about 30 other folks who represent the first responder, law
enforcement and emergency management communities around the
country what is the exact protocol in writing an MOU that we
will work out with each State that will house the CFATS'
regulated facility to very clearly understand that that
information is protected.
Mr. Lungren. What is the level of confidence that you have
achieved with the private sector in that?
Colonel Stephan. Sir, I think that we are in the initial
stages of working the State and local piece with the private
sector. I think the private sector is very comfortable now with
the CVI--Chemical Vulnerability Information--guidelines that we
published about a month and a half ago. I can say that in a
similar framework and on the voluntary side of the house to
protect a critical infrastructure information program, in 4
years now we have not had a single leak of one bit of data into
the public at large from that program.
Mr. Lungren. To what extent, if any, do the chemical
regulations take into account the transportation of the
chemicals? That is, it is extremely important that we worry
about the security of the chemicals at a site, but what about
going from site to site?
Colonel Stephan. Sir, inside the CFATS' regulatory
authority, which is basically my baby, we have specific
performance standards that address the receipt of and the
dispatch of a chemical substance of concern in and out of the
facility and to make sure that that terminal process is secure.
A companion or a sister regulation, as you know, is in the
works. It was submitted very recently into the final clearance
of the department level that is under the leadership of the
Transportation Security Administration, and that will basically
govern the entire supply chain piece outside of fixed
facilities for transportation, sir.
Mr. Lungren. Have your two groups been talking to one
another within DHS?
Colonel Stephan. Yes, sir. We have exchanged hostages on
each other's working groups, and we have prisoners of war
protocols and everything established, and I think that process
is going very well.
Our job here is to eliminate any potential seams, and I
have seen those seams at the chemical plants that I have
visited, and that is the number one focus on my part, to make
sure that we have no seams that can be exploited between those
two regimes.
Mr. Lungren. Have the folks working on the transportation
side had an opportunity, or some of them, to look at what you
are doing and vice versa?
Colonel Stephan. Yes, sir. That same comment applies with
respect to the United States Coast Guard and to the NTSA
program.
Mr. Lungren. Thank you very much.
Thank you, Madam Chair.
Ms. Jackson Lee. Thank you.
Let me, Mr. Secretary, thank you; and I will be posing this
question very quickly so that we can move to the second panel.
As we recognize Mr. Markey's presence here, we will yield to
him in a moment. Let me ask this question that I will pose to
the other witnesses.
We know that we came together, Republicans and Democrats,
because chemical plants are vulnerable to terrorism. As you sit
here today, we are in a work in progress, but if you had to
make an assessment of the progress that these regulations have
made in thwarting, blocking potential terrorist acts against
the Nation's chemical plants housed mostly in the hands of the
private sector, where are we? What scale are we on with respect
to securing America? That can, obviously, be talked about
generically, as opposed to with any classified information.
How comfortable do you feel as it relates to whether or not
we are making progress in terms of thwarting potential
terrorist acts against these facilities?
Colonel Stephan. Ma'am, I think we are making considerable
progress. But, again, this regulatory framework has been alive
for basically a month and a half. So, in terms of progress that
I can specifically tie to this specific framework, we are going
to have to let a little bit more time run its course.
If you couple what we are doing now and the collaboration
we have achieved in implementing this thing at the beginning
with all of the voluntary measures we have put in place--for
example, right now, on some of the top 394 facilities on the
EPA's RMP database list, I have buffer zone plans to the tune
of the financing of $68 million, which is the largest single
contribution to any one of the infrastructure sectors under my
control. We have pushed out planning that has tied State and
local law enforcement emergency responder capacity to the
security capacity of the plants themselves, achieving inside--
and outside-the-fence synergy.
Based upon 4 1/2 years of voluntary security work with the
industry, I feel we know them, they know us, we have a solid,
voluntary structure in place, information-sharing mechanisms in
place, needs that have been targeted to the weakest links in
the process based on consequences, and now we are ready to move
again to the next level on the cake, which is the security
regulatory authority.
Ms. Jackson Lee. Let me thank you.
Let me yield to the distinguished gentleman from New York--
excuse me--from Massachusetts for 5 minutes, Mr. Markey.
Mr. Markey. Don't you ever----
Ms. Jackson Lee. No, he does not. He said, ``Don't ever.''
Mr. Markey. Don't ever call me a Yankee fan.
Ms. Jackson Lee. Folks, let me clarify that. He is not
talking about New York. He just said do not call him a Yankee
fan, and I appreciate his dilemma.
Mr. Markey for 5 minutes.
Mr. Markey. Welcome, sir.
As you know, al-Qa'ida and Iraq used chlorine to kill 27
people back in April. So I also noted that, in the Chlorine
Institute's basic report, several successful attempted thefts
of 150-pound chlorine cylinders from several water treatment
facilities in California have occurred; and, as you know,
cylinders of this size could pose a significant risk to the
lives of everyone exposed to their contents.
Chairmen Thompson and Langevin and Solis and I sent a
letter to Secretary Chertoff requesting more information on
this. Although your Department has yet to respond to our
letter, an article in today's Boston Globe indicates that the
thefts remain unsolved and that there has been at least one
additional theft of a chlorine cylinder in Texas since then.
As you know, the law that Congress passed last year
exempted water treatment facilities from regulation by the
Department of Homeland Security. Don't you think it is time,
Colonel, for us to withdraw that exemption so that the
Department of Homeland Security can move into an area where we
know al-Qa'ida is trying to obtain chlorine that could cause a
catastrophic event here in the United States?
Colonel Stephan. Sir, I will take back your request to the
Secretary. I have seen the signed letter from the Secretary to
you, sir; and I will go back and try to figure out where that
might be in the process to make sure you get that
expeditiously.
Mr. Markey. You have seen the signed letter that----
Colonel Stephan. Yes, sir. That is with Secretary
Chertoff's signature that answers your letter to him, sir. I
will go back and see where that is in the process between the
other side of Washington and here and make sure you get prompt
delivery.
Also, I think I would like to recognize----
Mr. Markey. Is there any reason for me to believe that the
Secretary has changed his mind that the Department of Homeland
Security should not have jurisdiction over this issue and that
chlorine should sit out there as a threat to the American
public but without Department of Homeland Security
responsibility for that issue?
Colonel Stephan. Sir, let me paraphrase the Secretary's
response back to you in that the Secretary recognizes that this
exemption has caused a gap in terms of regulatory authority for
similar types of chemicals and similar types of facilities
between the chemical sector, which we do regulate now under
CFATS, and the water and, importantly, the wastewater sectors.
There is an imbalance in regulatory authority and, hence, a
security gap.
There are a couple of different----
Mr. Markey. Well, it is a regulatory black hole through
which al-Qa'ida could drive a truck loaded with chlorine into a
populated area of our country. Yes, I do agree with you on
that, but I have yet to hear of a request from the Bush
administration as to how we are going to close down this
opening that al-Qa'ida could exploit using chlorine.
Colonel Stephan. Sir, that security gap is acknowledged.
There are many ways to kind of skin that gap in colloquialism
or skin that cat.
Mr. Markey. Does the Secretary support or oppose the
closing of this chlorine loophole that was created in the law
last year?
Colonel Stephan. He supports the closing of the security
related gap that that loophole has produced. There are several
ways to do that. Those different ways are in discussion inside
the administration at this point.
Mr. Markey. Well, I really am looking forward to reading
this letter, but I am willing to bet anything that your
response is not going to be accurate, that is, that the
Secretary is not going to call for a closing of this exemption.
I do not have any evidence thus far, and I think this hearing
might have prompted somebody to start writing a letter. You
would have thought I would have gotten it before the hearing. I
think your answer to me is one that allows for an ambiguity to
be kept until after this hearing so that you do not have to be
held accountable for it.
How do you close a security gap without changing the law?
How are you going to do that?
Colonel Stephan. Sir, you have got to give somebody
authority. There is a combination of voluntary measures that
can be put in place. There are lots of----
Mr. Markey. You are talking about giving the chlorine
industry--you are saying, let us give voluntary supervisory
powers to an industry that has seen massive theft of this very
product, item, that can be used by al-Qa'ida for a terrorist
attack; and I do not think that makes any sense to trust the
industry that has not been securing these materials.
Why can't we have the Department of Homeland Security step
up and say it is time for the Bush administration to provide
supervision and to stop trusting an industry that has
demonstrated an incapacity to, in fact, deserve that trust?
Colonel Stephan. Sir, in the letter from the Secretary to
you, he is quite emphatic about his desire to close this
security gap.
Mr. Markey. Is one of the things that is under
consideration in the administration requiring the industry to
use safer materials, that is, to use substitutes for chlorine?
Is that one of the things that is under consideration?
Colonel Stephan. Sir, that particular issue is not a piece
of the pie that is under consideration at that point.
Mr. Markey. Again, I think that is what, ultimately, the
solution is. It is to use safer chemicals that cannot be used
for terrorist purposes where possible; and it is just another
thing that the Bush administration, unfortunately, has
continued to defer to the industry rather than to the safety of
the American public.
Mr. Lungren. Would the gentleman yield on that point?
Mr. Markey. I would be glad to yield.
Mr. Lungren. As I recall, when we were coming up----
Ms. Jackson Lee. The gentleman from California is
recognized for an additional 2 minutes.
Mr. Markey. Oh, I am sorry. Through the indulgence of the
Chair, I would be glad to.
Mr. Lungren. When we were negotiating this last year, it
was not the administration that asked for the removal of that
portion of the sector, but it was the Senate that insisted upon
it, I would just tell the gentleman. So when we were working on
it on the House side we did not have that exception. For some
reason, the Senate thought it was important. Just so the record
would reflect, I do not recall the administration's pushing
that on us when we negotiated it last year.
I thank the gentleman for yielding.
Mr. Markey. I thank the gentleman.
I guess what I would wish here, now that we are in
Democratic control in the House and in the Senate, is, if the
Secretary does want this law changed and does want the power,
that we are ready, willing and able to now do it for the
Secretary. But we have to hear from the Secretary that he wants
to be able now to have the responsibility for making sure that
we do not have a chlorine cylinder explode in a way that causes
a catastrophic event in this country.
So if you could take that back to the Secretary.
Colonel Stephan. Mr. Markey, I would be happy to deliver
the message. Thank you.
Mr. Markey. I thank you.
Ms. Jackson Lee. If the gentleman would just yield on his
point, we are here today listening to industry as well on the
impact of these regulations. I have indicated that I remain
open but concerned about any lists that are going to be altered
with the removal of chemicals versus addition in as much as
each chemical's, if you will, quantity has some possibility of
creating a value for terrorists. I think what you are saying is
of the question regarding chlorine, but there are many others
that are seemingly being asked to be moved off the list. I hope
the Secretary takes my concern back about moving lists and
taking different chemicals off of lists, and I know I have
raised the question about universities.
We are going to move to the second panel, so we will have
to continue this with you as this committee proceeds in the
review of these chemical regulations. Let me thank you for your
testimony.
Mr. Markey. Madam Chair, I thank you for your indulgence.
Ms. Jackson Lee. Thank you for your indulgence on having
you yield on your time. Thank you very much.
I thank the witness for his cooperation, for his wisdom in
his statement, and we will look forward to working with you on
the questions that have been raised by the members of this
committee.
Colonel Stephan. Thank you very much for your continued
leadership and support of our programs.
Ms. Jackson Lee. Thank you, Colonel, very much.
We are now ready for the second panel.
Ms. Jackson Lee. Okay. I thank the second panel again for
your patience. And welcome this committee. We believe your
testimony will be very instructive for a committee that has
vast responsibilities on the Nation's critical infrastructure.
At this time, we would like to welcome the second panel of
witnesses. Our first witness will be Mr. Phillip J. Crowley,
Senior Fellow and Director of Homeland Security. During the
Clinton administration, Mr. Crowley was Special Assistant to
the President of the United States for National Security
Affairs, serving as Senior Director of Public Affairs for the
National Security Council. Prior to that, he was Principal
Deputy Assistant Secretary of Defense for Public Affairs. In
all, Crowley, was a spokesperson for the United States
Government, the United States military for 28 years, 11 of
those years at the Pentagon and 3 at the White House. Welcome,
Mr. Crowley.
Our second witness is Mr. Timothy Scott. Mr. Scott is Chief
Security Officer and Global Director, Emergency Services and
Security for Dow. In this capacity, Mr. Scott is responsible
for security crisis management and emergency planning,
preparation and response for on--and off-site emergencies
involving Dow or Dow products.
Mr. Scott, we welcome you, and we thank you very much for
your presence here today. Our third witness is Mr. John
Alexander, with the United Steelworkers Health, Safety and
Environment Department. He is here to give us frontline
perspective on chemical security.
And we welcome you, Mr. Alexander.
Our final witness of the panel is Dr. Ara Tahmassian. Dr.
Tahmassian is representing the higher education organizations
and is the Associate Vice President for Research Compliance at
the Boston University and Boston Medical Center, where he has
responsibility for all nonfinancial research compliance issues.
He has responsibility for preparation and implementation of
integration strategies for multiple regulatory compliance
programs at Charles River Campus, Boston University Medical
Campus, and Boston Medical Center, as well as development of
new programs, as well as being involved in developing new
programs required by the research enterprise.
Welcome again to you, Doctor, and thank you for your
presence here today.
Without objection, the witnesses' full statements will be
inserted in the record, and I will ask each witness to
summarize his statement for 5 minutes, beginning with Mr.
Crowley.
STATEMENT OF PHILIP J. CROWLEY, SENIOR FELLOW AND DIRECTOR OF
HOMELAND SECURITY, CENTER FOR AMERICAN PROGRESS
Mr. Crowley. Madam Chairwoman, thank you very much. I now
direct the Homeland Security Program at the Center for American
Progress, and I am grateful for the opportunity to reflect on
the emerging direction of chemical security regulation. And I
commend the committee for coming back to this issue early in
this process. More has been done in the last 10 months than the
previous 5 years, a sign that we now recognize, if belatedly,
that chemical security is our most significant infrastructure-
related homeland security vulnerability. A new framework is a
reasonable start, but more can be done, as the prior panel had
discussed.
The threat is real, not hypothetical. The conclusions of
the National Intelligence Estimate released last week are
sobering. Iraq has become a deadly laboratory, and we have seen
several attacks where al-Qa'ida has used chlorine gas tanker
trucks as makeshift weapons. If it is happening there, it can
happen here. Our vulnerability is clear. The previous emphasis
on voluntary steps did not work. While some may have made
security investments, there remain today too many open gates,
accessible storage containers and unguarded rail sidings.
A HAZMAT car moving through a major population center
provides everything an urban terrorist would want, a weapon,
delivery system and target all in one place. A successful
attack would produce loss of life and injury that would dwarf
what occurred on 9/11. First of all, I support what appears to
be a very ambitious Top-Screen process by DHS. Sound judgments
require as much information and as broad a perspective as
possible. The mere fact that DHS will evaluate a wide range of
chemical manufacturers and users should serve as an important
catalyst for change. The last thing we should do is narrow its
potential impact.
At a recent conference, a senior executive of a Fortune 500
company suggested that while security was important to his
corporate leadership today, he could not guarantee it would
remain so. Studies by our Center for American Progress echo
this reality. Actions that improve chemical security are
feasible and affordable, but the pace of change is inadequate.
The real issue is what DHS will do based upon the Top-Screen.
The purpose of government regulation is to broadly impact
both perception and behavior to further a common good. The
near-term objective should be to use the interim authority that
Congress is granted to achieve the maximum possible impact. One
way to do this is for DHS to take a system-wide approach to
chemical security, as we do for maritime security. DHS should
assess risk along with a facility's supply chain, not just what
occurs inside its fence line. The highest point of risk may be
a HAZMAT car on a freight line that runs through a major city
like Washington, D.C., not far from where we are seated. DHS
oversight can create a dynamic that brings the chemical and
rail industries together to figure out how not just to manage
risk but actually reduce it.
Third, we must ensure that DHS has the capacity to properly
implement this new authority. In a conference call in April,
DHS officials acknowledged that implementation would be handled
by a staff of 33 people at headquarters and the 40 field
representatives that Secretary Stephan mentioned in his
testimony, despite the fact that the DHS Top-Screen could
involve tens of thousands of chemical facilities.
Recall that the Coast Guard, one of the largest entities
within the Department, struggled with implementation of the
Maritime Transportation Security Act, even when employing its
Coast Guard Auxiliary to help review port facility security
plans. An industry of third-party auditors can help with
enactment compliance and enforcement, but DHS cannot watch from
the sidelines. It must be in the game and directly engaged.
Fourth, DHS should set an aggressive implementation
timeline. You must keep in mind that DHS will be undergoing its
first Presidential transition in late 2008. Congress should
request a report, including lessons learned and recommendations
for permanent legislation from the current DHS leadership by
the fall of next year to ensure continuity.
Finally, Congress should pass legislation not later than
early 2009 that establishes a permanent regulatory framework. A
good model is the comprehensive cross-jurisdictional approach
that the House followed with legislation implementing the 9/11
Commission's recommendations. This legislation should broaden
DHS's authority, in concert with the EPA, to regulate drinking
water and water treatment facilities, which are now exempted,
which would combine physical security and transportation
policies into a comprehensive strategy that should establish
material or process substitution as a key component of a
successful security program.
The legislation should make clear that Federal regulation
is a floor, not a ceiling. There is simply no reason that the
Federal Government should preempt States from taking additional
measures that can make specific sites even more secure. I thank
the Chairwoman, and I look forward to your questions.
[The statement of Mr. Crowley follows:]
Prepared Statement of Philip J. Crowley
I am P.J. Crowley. I direct the homeland security program at the
Center for American Progress. I am grateful for the opportunity to
reflect on the emerging direction of chemical security regulation and
its impact on both the public and private sector.
More has been done on this issue in the past 10 months than the
previous five years. This is clearly a sign that we now recognize, if
belatedly, that chemical security is our most significant
infrastructure-related homeland security vulnerability. The framework
that is emerging is a reasonable start, but more needs to be done,
particularly the need to move as rapidly as possible from an interim
chemical security regulatory framework to a permanent program with
broader authorities and incentives.
The Department of Homeland Security embraces, and I believe
properly so, a risk-based approach. The elements of risk, of course,
include threat, `vulnerability and consequence. Each element conveys
the urgency that we must proceed aggressively and we must do it right.
The threat is real, not hypothetical. The conclusions of the
National Intelligence Estimate released last week are sobering. Iraq
has become a dangerous laboratory and various technologies and tactics
have migrated via veterans of the jihad and the Internet to other
fronts. In recent months, we have seen several attacks in Iraq where
presumed al-Qa'ida operatives have used tanker trucks filled with
chlorine gas as makeshift weapons. If it is happening there, it can
happen here. We also see from the most recent plots in London and
Glasgow that individuals will use ingredients they have at hand against
familiar targets that can create both immediate destruction as well as
broader economic ripple effects.
Our vulnerability is clear. The previous emphasis on voluntary
steps did not work. Chemical manufacturers, transporters and users were
either unable or unwilling to take voluntary steps on a consistent
basis to improve security across the varied landscape of the chemical
industry. Some made investments in improved security, but as a number
of investigative reports have shown, almost six years after 9/11, there
are still too many open gates, unsecured rail sidings and accessible
storage containers. A HAZMAT rail car moving through a major population
center provides everything an urban terrorist could want--a weapon, a
delivery system and a target--all in one place.
The potential consequences of an attack employing acutely hazardous
materials are well-known and have been for a long time. If successfully
attacked, the expected injuries and loss of life would dwarf what
occurred on 9/11. The generic chlorine tank explosion that DHS
envisioned in its 2004 planning scenarios involved 17,500 fatalities,
10,000 severe injuries and 100,000 hospitalizations. The EPA's Risk
Management Program or RMP data identifies more than 500 facilities
that, if attacked, place at least 100,000 people at risk and almost
7,000 facilities that put at least 1,000 people at risk.
This is the security environment within which we can evaluate what
is being done now and where we must go from here.
I want to concentrate my testimony in five areas--the scope of the
``top-screen'' that DHS is employing in its facility evaluation; the
need for DHS in its risk analysis to link chemical facility physical
security and rail security as part of a comprehensive threat picture;
the overall capacity of DHS to successfully execute its new chemical
security authorities; setting an aggressive timeline for implementation
of interim chemical security regulations, including lessons learned and
gap analysis; and, finally, using this early experience as a
springboard to enact a permanent chemical security legislation over the
next 12--18 months.
First of all, I support what appears to be a very ambitious top
screen process by DHS. The initial effectiveness of the new regulatory
framework will depend upon decisions DHS makes based on the top screen.
The top screen does involve a lengthy and detailed questionnaire, but
informed judgments require as much information and as broad a
perspective as possible. The mere fact that DHS will evaluate a wide
range of chemical manufacturers and users should serve as an important
catalyst for action. The last thing we should do is narrow its impact.
We continue to confront a ``business as usual'' mindset--that the
threat is overstated, that doing what is easy is sufficient, that what
we do to improve safety will work for security, that security can be
cost-free. Our national security no longer depends just on what the
military achieves ``over there.'' It also depends on individual
business judgments made here as well. At a conference a couple of weeks
ago, a senior executive of a Fortune 500 company suggested that, while
security was important to his corporate leadership today, he could not
guarantee that security would remain so tomorrow. This corporate
attitude must change. Good security is good business.
At the Center for American Progress, we have produced two research
papers on chemical facilities and supply chains. We have documented how
some companies in different segments of the chemical industry are
gradually adapting their operations. Changes, including the adoption of
safer and more secure chemicals and processes, can be achieved at a
manageable cost. There is ample evidence from our analysis that such
changes can improve industrial efficiency and reduce regulatory and
associated costs. However, the results also show that change is not
occurring fast enough.\1\ The private sector must be prepared to do
more.
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\1\ See Paul Orum, Toxic Trains and the Terrorist Threat, How Water
Utilities Can Get Chlorine Gas Off the Rails and Out of American
Communities, Center for American Progress , April 2007, available at
http://www.americanprogress.org/issues/2007/04/chemical/
_security_report.html. And Paul Orum, Preventing Toxic Terrorism, How
Some Chemical Facilities are Removing Danger to American Communities,
Center for American Progress, April 2006, available at http://
www.americanprogress.org/issues/2006/04/b681085_ct2556757.html.
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Second, the real issue is not whether DHS should require a top
screen of thousands of entities, but what it will do with the
information it gathers during the top screen. The purpose of government
regulation is to broadly impact both perception and behavior in order
to further a common good. The near-term objective should be to use the
limited interim authority that Congress has granted to achieve the
maximum possible impact. Federal regulation can promote both improved
security and, of importance to the corporate world, can also create a
level playing field where everyone in the market must meet specific
performance standards.
One way for DHS to use its authority to maximum effect is to take a
system-wide approach to chemical security. The focus must be not only
physical plant security, but supply chain security as well. We follow
such a comprehensive approach with maritime security--a fully
integrated focus from the point of manufacture, through foreign ports,
onto container ships and then through our domestic ports here in the
United States.
However, for various reasons, including jurisdictional issues here
in Congress, chemical security and rail security are treated as
distinct rather than interrelated challenges. For example, a chemical
manufacturer and user in remote areas can improve physical security--
gates, guards, lighting, access and storage. A rail operator can
closely monitor interchanges and rail yards. But unless DHS establishes
a comprehensive threat picture, it may not adequately address a
facility's highest point of risk, which could be a HAZMAT car
transporting a toxic-by-inhalation or TIH gas such as anhydrous
ammonia, chlorine, sulfur dioxide or hydrogen fluoride on a freight
line that moves through a major population center like Washington, D.C.
In fact, while CSX has voluntarily discontinued TIH shipments on
one of its lines through the District, there are still such shipments
on a second line through Eckington Yards, within two miles of the
Capitol. The Capitol was a target on 9/11 and could be again. One way
to minimize such a terrorist opportunity is through rerouting. A better
way would be for DHS to use its assessment process to encourage a shift
to more secure alternatives. Thus, DHS should evaluate risk across a
facility's supply chain, not just on what occurs inside a facility's
fence line.
Third, we must ensure that DHS has the capacity to properly
implement its new authorities. This is an open question. In a
conference call in April, DHS officials acknowledged that
implementation would be handled by a staff of 33 people at headquarters
and 40 field representatives, despite the fact that DHS anticipated
that its top screen could impact several thousand chemical facilities.
A few dozen employees will likely not enable DHS to exercise
appropriate leadership and oversight. Recall that the Coast Guard, one
of the largest entities within the Department, struggled with
implementation of the Maritime Transportation Security Act even when it
used the Coast Guard Auxiliary to review port facility security plans.
An industry of third-party auditors is expected to help with
enactment, compliance and enforcement. Clear lines must be drawn
regarding functions that must be performed by government personnel and
those that can reasonably be delegated to the private sector. Congress
should pay close attention to the resources that are being provided to
this function. Even if the primary compliance function is assumed by
the private sector, DHS must have sufficient capabilities to do its own
independent assessment of facilities that pose significant risks.
In fairness to the private sector, government regulation is
supposed to create a process whereby all stakeholders identify risk in
light of the threat we face, evaluate a range of solutions and take
appropriate actions that can both deter attacks and minimize the impact
of any attack that does occur. It is not for the government to dictate
solutions, but to encourage action and innovation by those who know the
plant or the function best. What the private sector has a right to
expect is a full government partner that sets clear standards, is
responsive to complex situations that will inevitably arise and creates
and maintains a level playing field by enforcing them across the entire
sector. DHS cannot watch this unfold from the bleachers. It must be in
the game and directly engaged with the private sector, particularly
with respect to those facilities in the top security tiers.
Fourth, we have to maintain a sense of urgency about this issue. We
are behind. Former EPA Administrator Christine Todd Whitman and former
Homeland Security Advisor and later Secretary Ridge were poised to act
in 2002 under the new National Strategy for Homeland Security to
require roughly 15,000 chemical facilities near major population
centers to undertake vulnerability assessments, address those
vulnerabilities and report actions taken to the federal government. The
White House blocked action. Had appropriate steps been taken then, we
would already have a mature and permanent structure in place.
I mention this not as partisan criticism, but to urge that we act
aggressively now. DHS should establish an expeditious timeline as to
when it expects the facility tiering process to be completed;
vulnerability assessments reviewed; security plans validated; and
lessons learned evaluated. This is obviously of vital importance since
DHS will be undergoing its first presidential transition in late 2008
and there is a need for continuity since it will be the next
administration that will be responsible for implementing permanent
chemical security rules. I would recommend that DHS provide Congress
with a report on interim regulation implementation within the next 15
months, including recommendations for a permanent chemical security
framework.
Chemical security should remain a leading priority for Congress
over the next two years. Without question, Congress should pass
legislation by early 2009 that establishes permanent federal regulation
of chemical facilities. A good model is the comprehensive legislation
that fully implemented the recommendations of the 9/11 Commission,
passed by the House in the first hours of the 110th Congress.
In this legislation, besides making chemical security regulation
permanent, Congress should close a gaping hole that exists now and
broaden DHS' authority, in concert with the EPA, to regulate drinking
water and water treatment facilities, which are now exempted. The
legislation should expand the focus of existing efforts beyond simply
physical security to include transportation. It should also establish
material or process substitution as a key component of a successful
security program. Knowledgeable employees should be included in
planning. The legislation should make clear that federal chemical
security regulation is a floor, not a ceiling. Given the growing
threat, there is simply no reason that the federal government should
preempt states from taking additional measures that can make specific
sites even more secure.
For all stakeholders--the federal and state governments and the
chemical and rail industries--given the clear threat, vulnerability and
consequence of a chemical attack in this country, the focus should be
on how to work collaboratively to do more rather than offering reasons
to do less.
I look forward to your questions.
Ms. Jackson Lee. Okay. Thank you, Mr. Crowley.
Mr. Scott, you are welcomed.
STATEMENT OF TIMOTHY J. SCOTT, CHIEF SECURITY OFFICER AND
GLOBAL DIRECTOR, EMERGENCY SERVICES AND SECURITY, THE DOW
CHEMICAL COMPANY
Mr. Scott. Good afternoon, honorable Chairwoman. Thank you
for the invitation to address your committee on the critical
issue of chemical security. My name is Tim Scott, and I am the
Chief Security Officer for Dow Chemical, the world's largest
chemical company. I also have a dual role as the site leader
for Emergency Services and Security at Dow's site in Freeport,
Texas, our largest manufacturing site, and one of the largest
in the world.
Dow's products are essential to our Nation's economy and
the daily lives of every American. The chemical sector is not
only a part of our Nation's critical infrastructure but the
foundation for all other sectors.
I have three key points today. First, a comprehensive,
uniform and risk-based approach to chemical security is
critical. Second, effective partnerships are vital to our
Nation's success in meeting this challenge. And third, while
there are still some gaps to resolve, the Chemical Facility
Anti-terrorism Standards are a significant step forward in
securing the chemical sector.
Dow believes the most effective way to address chemical
security is through a comprehensive, risk-based approach, and
we developed our Integrated Global Security Processes that you
see on this poster behind me with just that in mind. Dow has
focused on security for years, but over the last 5 years, we
conducted two rounds of vulnerability assessments at our sites
around the world conducted by teams of security professionals
and process safety engineers and involving site employees at
all levels at every site. We applied layers of physical
security, along with technology and trained people around those
critical assets to detect, deter, delay and respond to
intruders. We also implement inherently safer approaches when
they prove to be an effective solution to change the way our
products are manufactured, stored or transported.
We have programs in place to verify the backgrounds of our
people working on our sites. We have hotlines for those who
work on our sites, as well as the communities around us, to
connect immediately with my global organization. And we have an
EthicsLine for anyone to report, anonymously if they choose,
any concerns, security issues or suspicious situations they may
see.
Our integrated approach to security includes securing our
supply chain, a responsibility we share with suppliers,
carriers, customers and government agencies. While less than 1
percent of what we ship is classified as highly hazardous, we
have aggressive programs to further reduce inventories and the
amounts we ship. In addition, we require security seals on
shipping containers. We use advanced track-and-trace
technologies. We work with carriers on routing solutions. We
are developing more robust next-generation railcars, and we are
strengthening local awareness and response along our
transportation routes.
Partnerships on all levels are vital, and we are actively
engaging Federal agencies, Congressional committees, and State
and local agencies and emergency responders.
In short, Dow Chemical is serious about security. We
believe any facility that manufactures, uses or possesses
materials in hazardous quantities should be required to
implement risk-based security measures. We are encouraged by
the new standards and believe they are a significant step
forward. We believe States have a critical role to play and may
also have unique security issues. And we support the States'
rights to address those gaps through a coordinated effort with
Federal authorities to ensure that conflict will not occur.
We support the stated purpose of Appendix A and a Top-
Screen approach. However, we are encouraged the numbers of
facilities potentially covered will be prioritized so that DHS
can maintain its intended focus on high-risk facilities. We
have concerns that the sunset clause, and the perceived
deadlines that it creates, will hamper the ability to implement
effective standards. We support DHS's efforts, and ask that
adequate time be allowed for effective implementation.
We have made a lot of progress, but more needs to be done.
We need a comprehensive, uniform and risk-based approach to
protect our Nation's people, communities and critical
infrastructure. We need a continued partnership to develop a
consistent and efficient approach to this challenge. We need to
build on the progress we have already made to be successful in
strengthening the security of the chemical sector, and we need
this coordinated effort now. We are encouraged by the
leadership of your committee and Congress in general, the
partnership developed by DHS and the commitment to effective
chemical security standards. Thank you.
[The statement of Mr. Scott follows:]
Prepared Statement of Timothy J. Scott
Introduction
Chairwoman Jackson Lee, ranking member Lungren and members of the
Subcommittee, my name is Timothy J. Scott, and I am the Chief Security
Officer and Global Director of Emergency Services and Security for The
Dow Chemical Company--the world's largest chemical and plastics
company. In addition to my corporate roles, I am the site leader for
Emergency Services and Security at Dow's Texas Operations in Freeport,
Texas--our company's largest manufacturing facility and one of the
largest petrochemical complexes in the world. I also serve as the vice
chairman of the Chemical Sector Coordinating Council (CSCC) working
with the Department of Homeland Security (DHS) and a member of the
National Maritime Security Advisory Committee for the U.S Coast Guard.
Today, I am speaking on behalf of The Dow Chemical Company.
I want to thank Congress for giving DHS the necessary authority to
regulate the security of our sector. The Subcommittee should be
commended for holding today's hearing on chemical security regulations
and their impact on the public and private sector. This is a subject
that is of extreme importance to our nation, and I'm pleased to be able
to share Dow's experience in security as well as continue to serve as a
resource and partner to the federal government on this important issue.
Dow has taken an aggressive leadership role driving voluntary
initiatives across the industry and has been a leading proponent for
risk-based security regulations for chemical facilities. We are
actively engaging in partnerships on security, emergency response and
information sharing with federal, state, local and international
governments as well as with other private entities and stakeholders.
For Dow, this is a world-wide responsibility every day. In the
United States, we have over 21,000 employees at 45 sites. Half of our
employees are in the U.S. In total, we are 42,000 employees, neighbors
and community leaders from 400 different geographic regions around the
world. We have about 200 manufacturing sites in 38 countries that
supply more than 3,200 products to customers in 175 nations. The
Journal of Commerce has ranked Dow as the nation's 7th largest
exporter. Dow's products are essential to every aspect of the daily
lives of each and every American, and the chemical sector as a whole is
not only a part of our country's critical infrastructure, but a basic
building block for each of the other sectors.
The three key points I would like Subcommittee members to take away
from my remarks are:
(1.) We must take a comprehensive, uniform and risk-based
approach to protect the people and communities of our nation as
well as our nation's critical infrastructure.
(2.) Effective protection of critical infrastructure can only
be achieved through government-public-private partnerships to
ensure our nation's security while maintaining the flow of
commerce for a vibrant and growing economy.
(3.) While long-term authority for DHS to regulate chemical
security is still required and some issues remain, the Chemical
Facility Anti-terrorism Standards (CFATS) are a significant
step forward in ensuring all chemical facilities meet the same
risk-based performance standards for security.
An Integrated Approach to Chemical Industry Security
Our commitment to leadership in safety and security did not start
on 9/11. In 1985 Dow formalized its long-standing effort to provide
ongoing training, awareness and support to local emergency responders
and communities with the implementation of the Community Awareness and
Emergency Response (CAER) program. In 1986, TransCAER was created by
Dow in partnership with Union Pacific Railroad to help ensure training
and awareness to communities and local responders along Dow/Union
Pacific transportation routes. Later this year--in a renewal of that
partnership--we are launching a TransCAER community training tour that
will make 28 stops over 74 days in California, and from Texas to
Louisiana to Chicago along Union Pacific rail lines.
In 1988 Dow developed a comprehensive, multi-level global security
plan--a plan the company implemented during the first Gulf War and
later on 9/11. Shortly after these tragic attacks, Dow helped the
American Chemistry Council (ACC) draft the ACC Responsible
Care Security Code of Management Practices--a voluntary
initiative by leading chemical manufacturers to set the industry
standard for handling security. Through Dow's voluntary global
implementation of the Security Code, we permanently heightened our
security preparedness by investing hundreds of millions of dollars in
risk-based security upgrades since 9/11--not just in the United States,
but worldwide--the only company to do so on a global level. Dow's
efforts have been approved by the U.S. Coast Guard as meeting the
requirements of the Maritime Transportation Security Act (``MTSA'') at
the 12 U.S. integrated sites; and Dow sites in a dozen countries
outside the United States have leveraged their Responsible Care
Security Programs to demonstrate compliance with the International
Maritime Organization's (IMO) International Ship and Port Facility
Security Code.
Last year, Dow formed an Independent Advisory Panel of
distinguished experts around the world from disciplines including
physical security, manufacturing process safety, transportation and
supply chain security, emergency response, and crisis management. This
panel, chaired by the Honorable Lee Hamilton, was organized by Dow for
an independent review of our efforts and visited Dow sites around the
world and received an unprecedented inside look at the way Dow conducts
its security business.
Our approach to Chemical Facility and Site Security
Dow's security program incorporates measures focused to detect,
deter, delay and to respond to intrusions at Dow's facilities. Dow's
security program includes: intelligence gathering through various
private and governmental resources to assess risk, Security
Vulnerability Assessments (SVA's) to assess vulnerability based on that
risk, security plans to address risk, and appropriate security
processes to secure our assets--people, property, proprietary
information and cyber systems. Emergency preparedness, response
services, and community outreach, are the final pieces to our
integrated site security processes--and this integrated approach is
embedded across our enterprise--in site and facility security,
personnel security, supply chain security, information/cyber security
and emergency response. This approach has also led to improved security
awareness for our employees and communities as well as integrated
response planning within the company and surrounding area.
Dow's vulnerability assessments are conducted by a team of
security, process safety, and operations professionals to take a total
approach--ensuring all aspects of security and safety are evaluated to
identify and reduce vulnerabilities at our facilities. As a result of
site vulnerability assessments, we've made physical improvements that
are visible (such as fencing, access control, vehicle barricades and
increased patrols), some that are more covert such as electronic
monitoring, alarms and video surveillance, and we've taken steps to
implement inherently safer approaches--to change the way our products
are manufactured, stored or transported to reduce risk.
Employees and others working on Dow sites, as well as the general
public in the community around Dow sites are an essential element of
our integrated security process--often acting as our first layer of
security by reporting suspicious or unusual activity in the community
our near the site perimeter. Dow has in place a site-by-site Emergency
Services and Security call-in line and dispatch service for employees
and contractors, local community call-in numbers and an 800 number for
use by these same people or the general public from anywhere in the
U.S., a global ethics helpline through which employees and concerned
parties can report any observed or suspected violation of law or Dow
Policies, as well as security issues or suspicious situations or
persons. Callers to the Dow EthicsLine have the option to remain
anonymous if they prefer. Both security awareness training and ethics
training are conducted for all employees on an annual basis, and drills
are required of all Dow plants and sites on a regular basis, with at
least 25% of those site drills being based on a security scenario and
quarterly drills involving various segments of the community and local
responders. To maintain regular open communications each Dow site has
active Community Advisory Panels (CAPs) and Employee Communications
Advisory Panels (ECAPs) to address community and employee questions and
communication needs.
As the partnership with various agencies matured and communication
improved, a second round of Dow SVAs and additional upgrades were
initiated around the world in 2005. Dow's program also includes an
ongoing audit process to ensure the services and systems are
maintained, updated and implemented appropriately.
Our Approach to Supply Chain Security
Securing complex supply chains requires collaboration between
manufacturers, transportation service providers, customers and
governments. As a manufacturer and shipper, Dow is responsible for
providing materials in a safe container that will meet the rigors of
transportation. It's the transportation service provider's
responsibility to safely and securely move materials from our location
to the destination. Finally, government provides the appropriate
regulatory environment to help ensure the safe and secure
transportation of vital materials. Because of this shared
responsibility, it's essential that we partner with everyone across
Dow's supply chain as well as government agencies at all levels to
evaluate vulnerabilities continuously and ensure that safeguards are in
place.
Dow also has developed a comprehensive risk management system to
ensure the safe and secure distribution of its raw materials,
intermediates and products worldwide. Dow has implemented a
comprehensive process for conducting reviews, audits and assessments of
Dow and supply chain partner operations. Our Distribution Risk Review
process also dates back to pre-9/11 times.
We have implemented a number of programs to reduce inventories and
the amount of high hazard material we have to ship, we require security
seals on shipping containers, and have programs in place to ensure
background checks for transportation workers.
Our Approach to Cybersecurity
Dow has developed a company-wide cybersecurity management plan that
includes incident management and business continuity, completed a
comprehensive cyber security risk analysis based on the ISO information
security standard (ISO/IEC17799), and integrated cyber and information
security into our site vulnerability assessments.
Dow fully recognizes that cyber security is an integral part of
overall security, and has helped integrate cybersecurity into chemical
sector security programs such as the Responsible Care Security Code. In
addition, Dow helped form the Chemical Sector Cyber Security Program to
establish management practices and guidance to support overall chemical
industry cybersecurity. Dow is committed to information security as an
integrated approach to security.
Effective Government-Public-Private Partnerships
Dow has always embraced the partnership approach with DHS and many
other governmental agencies. On the security front we work closely with
almost every federal agency that has some homeland security role,
including the Department of Transportation, Transportation Security
Administration, Food and Drug Administration, Federal Bureau of
Investigations, Federal Emergency Management Agency, Environmental
Protection Agency, as well as state and local agencies and emergency
responders. We strongly believe that coordination on all levels between
public and private sectors is vital to protect critical infrastructure
and effectively implement risk-based security programs.
Dow has worked closely with U.S. Sandia National Laboratories to
refine the security vulnerability assessment methodology we use today
for our internal security vulnerability assessments and have piloted
DHS's RAMCAP risk assessment methodology. Dow will continue to provide
information and expertise--directly, and through the various industry
associations or the Chemical Sector Coordinating Council.
Dow is working closely with our supply chain partners--the Federal
Railroad Administration, Transport Canada, Union Pacific Railroad and
Union Tank Car--in developing the Next Generation Rail Tank Car that
takes into account new security scenarios, improving safety
performance, and utilizing track-and-trace technology. The U.S. Senate
recently appropriated an additional $3 million in fiscal year 2008 for
the FRA to conduct additional baseline testing of existing rail tank
cars and the evaluation of an advanced tank car design and a prototype
of a safer rail tank car.
Dow was one of the first chemical companies to work with U.S
Customs and Border Protection (CBP) to implement their Customs-Trade
Partnership Against Terrorism (C-TPAT) security initiative. C-TPAT is a
joint government-business initiative to strengthen overall supply chain
and border security. Dow has been awarded the highest level of
recognition and approval in the program. Only a fraction of all
companies that have applied for membership in the C-TPAT program have
achieved this premier (Tier Three) status.
The Chemical Facility Anti-terrorism Standards (CFATS)
Dow has continually advocated for uniform, national, risk-based
performance standards for chemical facility security--allowing the
chemical facility to reduce the vulnerability by using the appropriate
combination of tools for that site including physical security upgrades
that could include one or more options such as additional deterrence
and delay mechanisms, safety devices, stronger containment,
impenetrable seals and well trained personnel; or to utilize inherently
safer approaches through process improvements such as by reducing
quantities in process or inventory, changing to safer materials and
improving process designs.
Compliance with the new Chemical Facility Anti-terrorism Standards
requires a great commitment of resources by the regulated community.
However, Dow, to a great extent, has already assumed the burden and
costs of security at its chemical facilities as part of its corporate
responsibility. As a leader in chemical facility safety and security,
Dow believes national standards enforced by DHS are necessary to
elevate the security preparedness of all high risk chemical facilities
in the U.S., regardless of the operator. We believe anyone or any
facility that manufacturers, uses or possesses materials in hazardous
quantities should be required to implement risk-based security
measures.
Clear, strong, and consistent performance standards (as Congress
has mandated for commercial aviation, nuclear power, or maritime
commerce) must be applied uniformly to all facilities nationwide to
ensure effective national security and oversight. Consistency is
critical to our county's success in addressing the security of the
chemical industry and our nation's critical infrastructure in general.
Consistent risk-based performance-based regulations, standards and
guidelines; consistent planning, integration and implementation of
those plans from top to bottom, from the National Infrastructure
Protection Plan (NIPP) to the state and local response organizations to
the chemical industry site response team--bringing all the resources
and plans together under an integrated incident management system.
DHS must work with all levels of federal, state, and local
government to ensure that the performance goals are met, but without
creating conflicting and competing programs on how a facility much
achieve those goals. States have a critical role to play in protection
of the homeland and we coordinate every day with state and local
governments on emergency preparations, response, and environment health
and safety.
Dow is also cognizant that states and localities may have unique
security issues that may need to be addressed through State Law. For
instance, because of geographical location or population density, a
state may wish to add an additional risk-based performance standard
that supplements, but does not conflict with, the DHS regulation. To
ensure the national standard provided by Section 550 and the proposed
rule will not be frustrated and that conflict will not occur, Dow
believes that a coordinated effort between federal and state
authorities is necessary, before such supplementary State Law is
enacted.
Dow continues to support the Rule's underlying premise of
establishing risk-based performance standards for the security of high-
risk chemical facilities. Dow also supports the stated purpose of
Appendix A and the Topscreen approach--to be sufficiently inclusive of
chemicals and quantities that might present a high level of risk
without being overly inclusive and therefore capturing facilities which
are unlikely to present a high level of risk. However, Dow is concerned
that given the broad and expansive nature of the draft Appendix A list,
thousands of relatively low risk facilities could be swept up by the
Rule, thereby diluting DHS' resources and enforcement capacity and
defeating the intended focus on ``high risk'' chemical facilities. DHS
has indicated that it is working to revise this list to incorporate
comments and feedback from the rulemaking process. It is our hope that
the Department will address these specific concerns.
Finally, Dow has concerns regarding the impact of the sunset clause
on DHS's authority to fully implement CFATS. For too long, Dow and
other industry leaders have made significant voluntary investments to
improve security and we've done a good job on our own. These new
regulations go a long way in standardizing security requirements and
ensuring that high risk chemical facilities have taken the necessary
steps to evaluate risk and address vulnerabilities.
Conclusion
In closing, only through a comprehensive, uniform and risk-based
approach can we protect the people and communities of our nation as
well as our nation's critical chemical infrastructure. We are
encouraged by the leadership of Congress and the continued partnership
environment and drive to implement CFATS by DHS. We believe it is long
overdue.
Thank you and I'd be happy to answer any questions.
ATTACHMENT A
For more information: www.dow.com/security
ATTACHMENT B
History of The Dow Chemical Company's Leadership in Chemical Security
1985
The Dow Chemical Company implements CAER (Community Awareness &
Emergency Response)--formalizing the company's long-standing efforts to
provide ongoing training, awareness and support to local emergency
responders and communities.
1986
Dow forms TransCAER with Union Pacific Railroad program to assist
communities on shipment routes.
1988
Dow establishes multi-level contingency plans and integrates into
corporate crisis management plans (plans implemented following 9/11).
2000
Dow recommits to its participation in the U.S. Coast Guard's
Chemical Transportation Advisory Committee (CTAC).
Following 9/11
Under Dow leadership, American Chemistry Council rolls out Responsible
Care Security Code.
Dow commences global assessment of its manufacturing
facilities and supply chain operations going beyond security
code and applying it to all facilities world-wide.
Dow partners with Association of American Railroads &
Class 1 railroads to evaluate vulnerabilities and define
security measures (Railroad Security Management Plan).
Under Dow leadership, an industry team develops best
practice guidelines for transporting hazardous chemicals.
Chlorine Institute adopts guidelines as mandatory for all
members.
2002
Dow senior leader Kathleen Bader is named by President
to U.S. Homeland Security Advisory Council.
Dow Distribution Risk Review Process is significantly
upgraded to include potential terrorism scenarios and enhanced
security countermeasures.
Under Dow's direction, The Chemical Sector
Cybersecurity Program is established to coordinate sector's
activity and align with U.S. Government's National Strategy to
Secure Cyberspace.
2002--2005
Dow joins U.S. Customs & Border Protection's C-TPAT
(Customs Trade Partnership Against Terrorism) program and is
first chemical company to achieve highest level of recognition.
Dow joins Canada Partners in Protection program.
2002--2003
Dow assists in development and pilot program for U.S.
Government's Sandia National Labs Risk Assessment Methodology.
Dow collaborates with Sandia Labs on transportation security
issues.
Dow leaders advise in development of Center for
Process Safety's Alternate Risk Assessment Methodology (CCPS
SVA) used by majority of Industry.
2003_2004
Dow sites participate in U.S. Department of
Transportation's National Hazmat Truck Safety & Security
Operational Test & Delphi Panel to evaluate security
technologies for highway shipment.
Dow participates in Strategic Council on Security
Technology's Smart & Secure Tradelanes (SST) Initiative to
evaluate use of new technologies to improve end-to-end supply
chain security for international cargo shipments.
Dow Chief Security Officer Tim Scott is named by DHS
Secretary to National Maritime Security Advisory Council.
Dow senior leader David Kepler joins U.S. Chamber of
Commerce Homeland Security Task Force.
Dow makes first public statement calling for U.S.
national legislation to regulate all chemical facilities;
Dow continues to press for uniform, national risk-based
standards to this date.
Dow leads group of industry CEOs to conduct sector
wide assessment of chemical industry cyber vulnerabilities.
Dow sites in 12 countries outside U.S. leverage Responsible Care
Security Programs to demonstrate compliance with International Maritime
Organization's (IMO) International Ship & Port Facility Security Code.
2004
Dow leadership drives incorporation of security
considerations into Chemical Distribution Institute (CDI),
ACC's Responsible Carrier Program & Global Safety & Quality
Assessment System (SQAS) of European Chemical Industry Council
(CEFIC) for evaluation and qualification of logistics service
providers.
2004_2005
Dow leader Tim Overton serves on Chemical Sector
RAMCAP Committee to help drive development of DHS's Chemical
sector version of its new risk assessment methodology.
Under Dow leadership, DHS is urged to include
Cybersecurity criteria as component in RAMCAP.
2005
Dow leader Tim Overton represents chemical sector on
American Society of Manufacturing Engineers RAMCAP Standards
Committee.
Dow unilaterally requires high-security seals on all
cargo containers worldwide.
Dow completes first round of Site Vulnerability
Assessments & Upgrades and commences a second round.
Dow leadership in Brazil drives adoption of
Responsible Care Security Code & Transportation Guidelines by
national chemical industry association (ABIQUIM).
Dow senior leader David Kepler appears before U.S.
House Committee on Science calling for government focus on
significant threats to our national telecommunications
infrastructure and high-risk cyber threats.
Dow conducts comprehensive, mutli-disciplinary effort
internally to evaluate security needs and challenges in China
and other emerging markets.
Dow participates in Legal Obstacles Subgroup of the
Information Sharing Task Force of the Homeland Security
Advisory Council.
Under Dow leadership, Industry works closely with U.S. Government's
Idaho National Labs to develop Cybersecurity Awareness Program for
Industrial Control Systems.
2005_2006
Dow AgroSciences implement life-cycle cylinder
tracking program using combination of technologies including
RFID and GPS to improve security of 60,000 cylinders.
Dow leadership drives complete update and revision of
Chemical Industry text book on transportation risk management.
Dow assists in the development of the Chemical Sector
Specific Plan under National Infrastructure Protection Plan.
2006
Dow leader Tim Overton serves on DHS/Oakridge National
Labs Committee to develop Screening Criteria to be used for DHS
in implementation of RAMCAP program for Chemical Facilities.
Dow Chief Security Officer Tim Scott participates with
DHS Secretary Chertoff in first National Security Forum on
Chemical Security calling for national regulation of chemical
facility security.
Dow forms unprecedented Independent Advisory Panel on
Chemical Security.
Dow announces Next Generation Rail Tank Car, a joint
project with Union Pacific and Union Tank Car to provide a step
change in safety and security performance.
Dow reaches out to fellow chlorine producers to
establish Chlorine Rail Tank Car Development Coordination
Panel; participating companies must commit to replacing
chlorine fleets with tank cars with improved safety and
security attributes by 2017.
Dow launches project to put GPS tracking and condition
monitoring sensors on all chlorine rail tank cars by 2007 and
other highly hazardous materials by 2008.
Dow announces commitment to reduce shipment of highly
hazardous materials by 50% by 2015 and a renewed commitment to
TRANSCAER over next 5 years to touch every community with
public awareness and emergency responder training where highly
hazardous materials move.
Dow senior leader Gary Veurink addresses Center for
Chemical Process Safety to reiterate Dow's call for national
Chemical Security legislation.
Dow makes global site security vulnerability/risk
reduction commitments for manufacturing sites to be reached by
2010.
Dow is honored with U.S. Maritime Security Conference
award for Maritime & Supply Chain Security.
Dow Chief Security Officer Tim Scott is selected as
Vice-Chairman of Chemical Sector Coordinating
Council to coordinate security efforts across the
industry with DHS.
Stanford University Study recognizes Dow as one of ten
``Innovators in Supply Chain Security.''
Dow Chief Security Officer Tim Scott is named one of
``25 Most Influential Security Executives'' by Security
Magazine.
Ms. Jackson Lee. Thank you, Mr. Scott.
Mr. Alexander.
STATEMENT OF JOHN ALEXANDER, HEALTH AND SAFETY SPECIALIST,
HEALTH SAFETY AND ENVIRONMENT DEPARTMENT, UNITED STEELWORKERS
Mr. Alexander. I would like to thank Chairwoman Jackson Lee
and the committee for allowing the United Steelworkers to share
their concerns about the chemical security regulations.
The first item that I wanted to bring up was worker
involvement. The current proposals do not provide for
involvement by workers or their labor representatives, in
contrast with other similar regulations also aimed at public
safety. We believe that such involvement is essential to
chemical plant security. Anyone who has worked in a chemical
plant knows that the workers know better than anyone where the
weaknesses are and what needs to be addressed in order to make
a facility safer. And not to, in this particular piece of
legislation or regulation, not to include the workers we
believe is a very big mistake. If you check just some of the
other regulations that already exist, for the most part they do
have clauses in there that require worker participation in
addressing those problems.
The Top-Screen process, we made some recommendations in the
first round that they have a list of chemicals in order to
figure out how they were going to use the Top-Screen process.
And we are glad to see that the Department of Homeland Security
adopted that type of a process in order to make the
determination who would have to complete it. But by the same
token, now that we look at the list, we have over a hundred
chemicals that, if you have any amount whatsoever, will require
Top-Screen process. And we have to question how much of a
strain that is going to put on the Department of Homeland
Security for facilities that have those chemicals, some of
those chemicals that will serve as no risk whatsoever. And at
the same time, we have chlorine listed at 7,500 pounds.
Anything under 7,500 pounds will not have to complete a Top-
Screen process. And we have to just question where and how they
came up with some of the lists of the chemicals.
The risk assessment and risk-based tiering, we are
wondering why we have to have four different tiers. In the
regulations, it reads what the highest-risk process, what would
have to be required that those companies complete. And if you
read that list, there is nothing in that list that the lowest-
tier facility should not be doing. So we don't understand why
you need so many different tiers. Either you got a high risk, a
low risk or no risk. And you need to make it pretty simple. Why
make it complicated? It is a pretty simple thing. You don't
need extra tiers to complicate the issue. And we don't
understand why we are going the way we are going. If you have a
low risk, you obviously ought to be doing the same thing you
are doing in high-risk facilities as far as security and so
forth and so on, on the list.
Safer technology, inherently safer technology. We can't
understand in any way, shape or form why inherently safer
technology is not at least a recommendation, let alone a
requirement in these regulations. The easiest and safest way to
take a facility that is a high-risk threat to turn it into not
a threat would be to use inherently safer technology. So that
is not just chemical substitution but also when you change your
processes for emergency shutdown. You hit one button, it closes
all your valves on the system, so that if there is an attack
and if there is a release, you can shut the whole system down
almost instantly so that it doesn't turn into a larger,
catastrophic event.
Our release systems, probably 20 to 30 percent of the
facilities in the Nation, we had a lot of laws passed in the
late 1970s and early 1980s that the chemical facilities would
have to have their release systems go to a controlled
atmosphere rather than the atmosphere, but a lot of the
companies chose not to do that because it wasn't feasible; it
would cost too much money. That is inherently safer
technologies. If you want to reduce the damage that would be
done if there was an attack, then you should have release
systems going to controlled systems, which you don't.
Background checks. The background checks, I have already
just a few months ago, when I was investigating a fatality at a
power plant, was refused entry because of the new, quote, what
I was told, the new regulations from the Department of Homeland
Security that would not allow me entry because I didn't have a
background check. I am guaranteed entry by the National Labor
Relations Act. And there is nothing in these regulations that
protect our guarantees or rights that we already have. And
already we are being denied entry into facilities where we are
required to conduct investigations when workers are seriously
injured or killed.
Access to information, another issue. There is nothing in
the regulation that protects our rights to access to
information. If you read everything that is written on critical
vulnerable information, critical vulnerable information,
depending upon whose interpretation of what it is, could
include information that we are allowed and permitted to have
to protect workers, the community and other folks that might--
even the management of the plants, to protect the people that
could be overexposed. And critical vulnerable information can
deny us those rights. There should be something written in here
that in no way any of our rights that are guaranteed by OSHA,
the EPA or any other agency be denied because of the Department
of Homeland Security regulations.
There is much more in-depth information in the written
testimony that I submitted, and I would hope that everyone on
the Committee would take a look at it. And just in summary,
what I would like to say, some of the most fundamental
protections that one would expect to be identified in the
Department of Homeland Security regulations are missing. The
involvement of workers and their representatives in all aspects
should be there. The use of inherently safer technologies, the
ambiguity of terms, the unwarranted background checks and the
possible classification of information used to protect workers
and the public, and the lack of the government accountability
on all those issues beg to be addressed.
One last thing on the background checks. I don't understand
what anyone would hope to find on an employee who has been
working in the facility for 20 years and conducting a
background check that is going to identify them as a terrorist.
[The statement of Mr. Alexander follows:]
Prepared Statement of John Alexander
Honorable Bennie Thompson and Members of the Committee, the United
Steelworkers (USW) appreciates the opportunity to appear before the
U.S. House Committee on Homeland Security and the Subcommittee on
Transportation Security and Infrastructure Protection. My name is John
Alexander; I am a health and safety specialist for the USW's Health,
Safety and Environment Department at our international headquarters in
Pittsburgh, PA.
The testimony I present today is to examine the Department of
Homeland Security's (DHS) chemical security regulations and its effect
on the public and private sector.
The full name of our union is the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers
International Union, AFL-CIO.CLC, but we have a short name more common
in use, which is the USW. As the largest industrial union in North
America, we represent a total of 850,000 active workers employed all
across North America. The USW represents approximately 50,000 workers
in chemical plants, oil refineries and other workplaces that produce,
use or store significant quantities of highly hazardous chemicals.
However, using the DHS definition that specifically applies to chemical
facilities, the USW represented workers exceeds the 50,000 figure by
tens of thousands.
We have a keen interest in effective standards protecting our
members, their families, and the general public. Along with other
organizations, we worked hard for effective legislation in the last
Congress and we continue that work. The provisions attached to the DHS
appropriations bill late last year did not meet all our objectives, but
it did provide a useful starting point. Unfortunately, the USW
continues to have grave concerns on how some of the issues are being
addressed. Some of the current proposals will do little to enhance the
security of chemical facilities or the safety of workers and the
public. We will summarize our comments below, and deal with each in
more detail in a subsequent section.
Comment 1: Worker Involvement
Summary--The current proposals do not provide for involvement by
workers or their labor representatives, in contrast with other similar
regulations also aimed at public safety. We believe that such
involvement is essential to chemical plant security.
The recent Chemical Facility Anti-Terrorism Standards-Proposed Rule
lacked requirements for employee and union representative's involvement
as does 6 CFR part 27.
For example:
``The site visits are conducted by DHS protective security
professionals, subject-matter experts, and local law enforcement, along
with the facility's owners and operators.'' (p. 78278)
In other rules, such as OSHA's General Industries Standards (29 CFR
1910), the government encourages employee and employee representatives
to be present during their site visits. To not involve some of the most
informed employees and representatives is not to utilize one of the
best assets to the adoption of a successful program. Workers are in a
unique position to identify and prevent potential facility
vulnerabilities. They understand just where an intruder might enter a
plant; whether or not security guards are doing their job; the location
of volatile materials; whether the facility is sufficiently staffed
with trained personnel; if backup control systems properly operate; as
well as other potential risks. Because of their concerns about
workplace safety and health, they routinely point out hazards to
management. Workers also are often required to respond during
emergencies, and in doing so, function as both the first and last line
of defense against a disaster. Workers and their unions can be vital
participants in plant safety and security. To be fully effective,
worker participation must be supported by strong whistleblower
protection.
Although the appropriations legislation authorizing the rule is
silent on this subject, it certainly does not bar worker and union
involvement. DHS could and should take guidance from the history of the
legislation. The bills that emerged from the committees of jurisdiction
in the House and Senate (H.R.5695 and S.2145) both contained worker
participation and whistleblower protections. Other jurisdictions have
also dealt with this issue. The State of New Jersey's Toxic Catastrophe
Prevention Act, (N.J.S.A. 13:1K-19 et seq.) and New Jersey Department
of Environmental Protection Administrative Order 2005-05 establishes
procedures for participation by employees and their representatives.
Any DHS legislation should include a requirement for worker and union
involvement in all facets of the operations including the security
plans, top screen process, safe operations and emergency shutdowns.
Comment 2: Top Screen Process
Summary--Top Screen Process required by facilities containing
certain amounts of chemicals is out of line. High level of Risk is not
properly defined. Leaving the definition to the discretion of anyone or
any agency with no specified parameters leaves open the possibility of
misinterpretation of the Department's intent, and could create
difficulties and inconsistencies in application of the rule.
The Top Screen process is a process that will provide information
to the DHS in order to make the determination at what level of security
risk the facility will be designated.
T2``A fundamental question posed by Section 550 is which facilities
it covers. Section 550 specifies that the provision ``shall apply to
the chemical facilities that, in the discretion of the Secretary,
present high levels of security risk.''. . .''
In 6 CFR part 27 Appendix A, a list determining the amounts of
chemicals located at a facility will determine whether the facility
will be required to perform a Top Screen.
More than a hundred of those chemicals are listed at any amount of
possession. We believe many of these chemicals are listed at
unreasonably low amounts. Having many of these chemicals on site at
such low amounts would in no way place a site at a high risk level. By
requiring all of such facilities to perform a Top Screen would present
two major problems. First, it is inappropriate to require a facility to
perform a Top Screen just because it has any amount of some of the
chemicals listed. This will place an unjust burden on facilities that
would never be considered a target. Secondly, the inordinate number of
facilities that would be sending their Top Screen to the DHS would
over-burden the department requiring them to address and reply to those
facilities informing them that they are at the no risk tier of the
tiering system. The DHS could well better spend their time ensuring
that High Risk Level facilities are addressing their security issues.
The problem presented with the determination of High Risk Level is
that it is up to the DHS to make that decision. Better parameters or a
specific definition would better serve the DHS.
The absence of a definition also leaves no room to discuss what the
parameters for inclusion should be. It is all up to the Secretary. In
addition, the proposal seems to invite the Secretary to determine
coverage on a case-by-case basis, creating long delays in
implementation.
Comment 3: Risk Assessment and Risk Based Tiering
Summary--Risk Based Tiering should be kept simple. The three
categories should be: High Risk, Low Risk, and No Risk. To do
otherwise is to create confusion where it is not needed.
The proposal states:
``As a practical matter, the Department must utilize an appropriate
process to determine which facilities present sufficient risk to be
regulated.'' (p. 78281)
But then:
``The Department may draw on many sources of available information. .
.''
``The Department may also seek and analyze. . .'' ``The Department
proposes to employ a risk assessment methodology system very similar to
this RAMCAP Top-screen process. . .''
``The proposed regulation would permit the Department to implement this
type of Top-screen risk analysis process to screen facilities.''
What type? DHS ``may'', ``may also'', ``very similar to,'' does not
define what their method will be. The only description the Department
offers is that ``the department has worked with the American Society of
Mechanical Engineers (ASME) and others to design a RAMCAP ``Top
Screen'' process. . .'' There is no comprehensive explanation of what
the method will be. This is especially troubling given the fact that:
``As noted, the statute gives the Secretary unreviewable discretion to
make this determination.''
No one, not even the Department, seems to know what method will be
used. But, the Department claims to have unreviewable discretion in
implementing the method. The Department should define what the method
entails so that constructive comments can be made on whether or not the
method should be refined. How can one comment on that which is not
described? Who are the others who helped design what the Department may
use? Were there workers, workers representatives, Union Health, Safety
and Environmental Specialists, other Governmental Specialist, (i.e.
OSHA, EPA etc.) consulted?
DHS should first define the method, and then ask for comments. We
cannot blindly comment on that which is not explained.
``The Department believes that the ``risk-based performance
standards'' and the Section 550 Program should indeed incorporate risk-
based tiering''. (p. 78283)
The Department shall place covered facilities in one of four risk-
based tiers, ranging from highest risk facilities in Tier 1 to lowest
risk facilities in Tier 4.
The Department then seeks comment on how to differentiate
requirements based on tiering. Later the document proposes that a high
risk facility will have different requirements than a lower risk-base
tiered facility.
6 CFR Sec. 27.230 now identifies the steps a High Risk facility
will be required to perform. None of those listed are items that a Low
Risk facility shouldn't perform.
In order not to complicate this issue further, DHS should simply
identify the criteria for those facilities that will be regulated or
not. If the DHS otherwise insists on having tiers, than the tiers
should be limited to high or low risk. It may be futile or even
counterproductive to try to determine which facility is more prone to
an attack. In fact, a terrorist might choose a lower-tiered facility
because it is classified as lower risk, with less stringent security
requirements.
An attempt to delineate what items should be performed for four
categories is an exercise in futility. That is not to mention a
quagmire for the DHS for enforcement and an undue burden on the
facilities.
Comment 4: Safer Technology
Summary--Safer Technology, there is no requirement or
suggestion to apply inherently safer technology and or changes
to the process to lower the risk of a facility. This lack is
perhaps the greatest defect in the regulation.
The proposal never addresses the use of inherently safer
technology. Such a provision was not required by the legislation, but
neither is it barred. Safer processes may not be feasible in some
circumstances, but they should at least be considered in any security
plan. Many safety measures may be possible without expensive redesign
or new equipment. Safer fuels or process solvents can be substituted
for more dangerous ones. The storage of highly hazardous chemicals can
be reduced. The lack of any requirement even to consider such measures
is the greatest failing of the proposal and regulation.
Safer Technologies include but are not limited to changes in the
process that would reduce the possibility or likelihood of an attack
turning into a major catastrophe. Yet, nowhere in the standard is this
even addressed. If in fact, we are attempting to reduce the likelihood
of an attack of a chemical facility or the effects thereof, then it is
unconscionable that inherently safer technology goes unaddressed in
this legislation.
Comment 5: Other Missing Provisions
Summary--Other missing provisions, the proposal would provide
far greater protection by including provisions requiring the
employment of sufficient and qualified personnel in order to
meet the DHS requirements; strengthening the recordkeeping and
reporting requirements for process malfunctions or any
attempted terrorist attack; defining the need for emergency
response, safe shut down, evacuation and decontamination
procedures in case of an attack or malfunction; and effective
training requirements for workers in covered facilities.
The proposal lacks many other requirements that would greatly
enhance security in chemical facilities, and mitigate releases of
highly hazardous chemicals, either through a terrorist attack, or from
industrial accidents. A partial list includes: requiring the employment
of sufficient and qualified personnel in order to meet the DHS
requirements; strengthening the recordkeeping and reporting
requirements for process malfunctions or any attempted terrorist
attack; defining the need for emergency response, safe shut down,
evacuation and decontamination procedures in case of an attack or
malfunction; and effective training requirements for workers in covered
facilities.
Comment 6: Background Checks
Summary--Background checks, although there is some
justification for background checks for new hires, background
checks for current workers are unlikely to identify potential
terrorists, and could create opportunities for discrimination.
The DHS proposes:
``A proposed standard on personnel surety would require covered
facilities to ``perform appropriate background checks on and ensure
appropriate credentials for facility personnel, and as appropriate, for
unescorted visitors with access to restricted areas of potentially
critical targets'' (p. 78286)
Conducting background checks on current, long-term employees of a
high risk facility is unlikely to identify a potential terrorist.
However, conducting background checks will open the Pandora's Box of
ways that the gathered information can be misused. Millions of workers'
right to privacy could be violated by such an order in an attempt to
identify that which is extremely unlikely. Countless dollars will be
spent for that which the DHS claims is necessary, but is not.
Significant amounts of time will be spent prosecuting those who will
misuse the information gathered in an illegal fashion. Time and money
will be spent defending those who will be unjustly treated by
information gathered by a background check. Some of this might be
justified for new hires, who could potentially seek employment in order
to commit a terrorist act. But it is very unlikely that long-term
employees will turn out to be terrorists, or that they will be caught
by any reasonable background check.
Some of the potential problems with background checks might be
avoided by placing strict limits on access to, and the use of personal
information required by the rule. That should certainly be done if
background checks are required for new hires. However, ensuring that
background checks are fair and accurate will require a significant
allocation of resources by DHS, with very little return in the case of
long-term employees.
In the proposal there is no provision protecting individuals who
need occasional access to these facilities from being unjustly delayed
by a background check. For example, labor unions have a duty to their
members to investigate accidents in the workplace. Prompt access is
absolutely essential in order to acquire vital information. Background
checks could easily be misused to disallow prompt access. Investigators
and or experts in their field do also require prompt access.
On 4-24-07, I was assigned to investigate a fatality of one of our
members that took place at a Power Plant. The company refused entry
based on the ``New DHS regulations''. After hours of discussion, I was
able to persuade the company to allow entry. We already are being
denied access that is protected by the National Labor Relations Act
simply because the DHS refused to address that the DHS regulation would
not interfere with rights guaranteed by previous legislation.
These entries are protected by other federal laws which 550 says
this rule is not to abridge. The PL109-295 Homeland Security
Appropriations Act of 2007 Section 550 (f) states: ``Nothing in this
section shall be construed to supersede, amend, alter, or affect any
Federal law that regulates the manufacture, distribution in commerce,
use, sale other treatment, or disposal of chemical substances or
mixtures.'' The DHS should provide language that will guarantee prompt
access to labor representatives and others. The language in the
proposal could be interpreted to be in conflict of rightsguaranteed by
the National Labor Relations Act. Provisions should also be provided
that describe how the DHS anticipates such inevitable conflicts will be
adjudicated.
One solution would be to include requirements for escorting
individuals that are called into a facility, such as contractors, to
perform a variety of work that has not had background checks.
Later the proposal states:
``. . .the Department will consider appropriate grounds for denying
access or employment to individuals when their background check reveals
an anomaly. In a different context, the Department has developed a list
of ``disqualifying crimes,'' as part of a threat assessment process,
that prevent individuals from gaining access to certain facilities or
privileges. See 46 U.S.C.70105 (c); 71 FR 29396. . .'' (p. 78284)
What type of anomaly is the DHS expecting to find from a background
check of a worker that would deny them employment? The DHS doesn't even
bother with a definition of ``an anomaly''. Accessing the document
referenced, one can identify the listed ``disqualifying crimes.''
Section (c) Determination of Terrorism Security Risk identifies several
of the crimes that would disallow employment or access to covered
facilities or critical processes. They are:
(A) If a person ``has been convicted within the preceding 7-
year period of a felony or found not guilty by reason of
insanity of a felony--
(i) that the Secretary believes could cause the
individual to be a terrorism security risk to the
United States; or
(ii) for causing a severe transportation security
incident;
(B) has been released from incarceration within the preceding
5-year period for committing a felony described in subparagraph
(A);
(C) may be denied admission to the United States or removed
from the United States under the Immigration and Nationality
Act (8 U.S.C. 1101 et seq.); or
(D) otherwise poses a terrorism security risk to the United
States''. . .
The possibility of using this information to terminate workers is
painfully obvious. For example, in Ohio it is a felony to not pay two
of the twelve months of the year required child support payments. One
would hope that the Secretary would not be inclined to think of this
individual as a terrorist. However, if he or she did, the employee
could lose their job with no recourse.
Nor has DHS explained what constitutes ``causing a severe
transportation security incident''? A legal strike or lockout, or a
work refusal over a safety issue might be considered by the employer to
constitute a ``severe transportation security incident.'' The DHS needs
to define these terms.
These very questions arose in the past with regard to other rules.
In some cases they were addressed. The Maritime Transportation Security
Act and the HAZMAT CDL allow provisions for workers, who have committed
what is considered a disqualifying crime, to be able to demonstrate
that they are nonetheless not a security risk. The DHS has offered no
such provision in this proposed rule or regulation.
Comment 7: Access to Information
Summary--Access to information, the provisions regarding
vulnerability information is overbroad. Workers and the public
should have the right to know what risks they face. Guarantees
should be included that provide the right to information to
workers including site plans that have already been guaranteed
by previous legislation.
The DHS states:
``Section 550 (c) of the Homeland Security Appropriations Act of
2007 provides the Department with the authority to protect from
inappropriate public disclosure any information developed pursuant to
Section 550, ``including vulnerability assessments, site security
plans, and other security related information, records and documents.''
In considering this issue, the Department recognized that there are
strong reasons to avoid the unnecessary proliferation of new categories
of sensitive but unclassified information, consistent with the
President's Memorandum for the Heads of Executive Departments and
Agencies of December 16, 2005, entitled ``Guidelines and Requirements
550 (c), however, Congress acknowledged the national security risks
posed by releasing information relating to the security and/or
vulnerability of high risk chemical facilities to the public generally.
For all information generated under the chemical security program
established under Section 550, Congress gave the Department broad
discretion to employ its expertise in protecting sensitive security and
vulnerability information. Accordingly, the Department proposes herein
a category of information for certain chemical security information
called Chemical-terrorism Security and Vulnerability Information
(CVI).'' (p. 78288)
If one analyzes this paragraph carefully, it states that DHS has
authority to refuse disclosure of certain information. The information
includes ``any information developed pursuant to Section 550,
``including vulnerability assessments, site security plans, and other
security related information, records and documents''. This also
includes unclassified information. In summary, any information the
Department places in its new category is Chemical-Terrorism Security
and Vulnerability Information (CVI). The Department identifies the
President's Memorandum and Congress as the source for the authority
given to them to refuse the disclosure of CVI.
The next paragraph reiterates this authority by stating:
``Congress also recognized that, to further the national security
interests addressed by Section 550, the Department must be able to
vigorously enforce the requirements of Section 550, and that these
efforts may include the initiation of proceedings in Federal district
court. At the same time, it is essential that any such proceedings not
be conducted in such a way as to compromise the Department's ability to
safeguard CVI from public disclosure. For this reason, Congress
provided that, in the context of litigation, the Department should
protect CVI more like Classified National Security Information than
like other sensitive Unclassified information. This aspect of Section
550 (c) has no analog in other sensitive unclassified information
regimes.''
In other words, DHS concludes they have the authority to treat CVI
more like Classified National Security Information.
In the next section, ``Protection from Public Disclosure,'' the
proposal states:
``In setting forth the minimum level of security the Department
must provide to CVI, Section 550 (c) refers to 46 U.S.C. 70103, which
was enacted by the Maritime Transportation Security Act of 2002:
``Notwithstanding any other provision of law and subsection (b),
information developed under this section *** shall be given protections
from public disclosure consistent with similar information developed by
chemical facilities. . .''
Later the proposal includes a very broad list of what could be
considered CVI:
``The following information should be reviewed by the VA team as
appropriate for determination of applicability as critical assets:
chemicals, such as the Clean Air Act 112(r) list of flammable and part
68 or the OSHA Process Safety Management (PSM) 29 CFR 1910.119 list of
highly hazardous chemicals; inhalation poisons or other chemicals that
may be of interest to adversaries. . .''
There is no question that some information should be protected from
public disclosure. Which tanks contain which chemicals is an example.
At the same time, a potential terrorist with knowledge of chemical
engineering will almost always be able to determine what chemicals may
be on the site taken as a whole. Hiding that information from the
public serves no legitimate purpose.
There are good reasons for the public to have access to critical
information about nearby chemical facilities. Community residents
should have the right to know the risks they face, so they can work to
reduce those risks. The information may also be necessary for effective
emergency planning, and to protect vulnerable populations.
CVI material should be limited to information generated by the
proposed legislation. Any information that has been or can be
independently gathered should not be considered CVI. Information such
as PSM, EPA's Risk Management, Emergency Planning and Community Right
to Know Act including Sections 311, 312, and 313, related records or
any other such material need to be clearly defined that they do not and
will not fall into the CVI category.
Community, labor and environmental organizations fought for decades
for the right to know about the hazardous chemicals that they were and
are being exposed to in an effort to protect their very lives. It is
estimated that more than 50,000 workers die each year from exposures to
hazardous chemicals. To take away the right to know the names and
hazards of the chemicals to which they are exposed would deny them the
ability to protect themselves and ultimately result in increased
illness and death.
Unfortunately, the proposal couples an unacceptably vague
definition of CVI with unbridled discretion granted the Secretary. DHS
should replace these provisions with language precisely defining the
information to be protected, based on a careful weighing of the
public's right and need to know against the need to deny sensitive
information to a potential terrorist. Those provisions should be
subjected to full public notice and comment. Finally, there must be a
mechanism to challenge determinations by the Secretary.
6 CFR Sec 27 has not adequately addressed the above concerns. A
provision should be added that ensures information designated CVI that
has otherwise guaranteed access, shall not over-rule those preceding
regulations. In addition, where 6 CFR Sec 27 identifies the inspection
process by the DHS Inspector, a requirement should be added to include
a designated union representative, designated by the local President,
be present with the company representative during such inspection where
a union is present in the company.
Conclusion
Some of the most fundamental protections that one would expect to
be identified in the DHS regulation are missing. The involvement of
workers and their representatives in all aspects, the use of inherently
safer technology, the ambiguity of terms, the unwarranted background
checks, and the possible classification of information used to protect
workers and the public, the lack of government accountability, are all
issues that beg to be addressed.
In addition, many of these issues and concerns were addressed
previously in the Maritime Transportation Security Act (MTSA) and the
HAZMAT CDL rule which were written for other groups of workers.
Substantial changes and provisions were adopted protecting workers. It
would do well for the committee to review all of the Acts or
regulations that have been adopted on security and on health and safety
more generally.
We all want to protect our country and our citizens. But these
regulations take away important rights while ignoring measures that are
simultaneously more protective and more compatible with American
democracy. If we proceed in the fashion outlined by DHS, the terrorists
will have accomplished part of their goal.
Ms. Jackson Lee. I will pose those questions to you, Mr.
Alexander. Your time has expired. Thank you. We will put your
statement into the record.
Mr. Tahmassian, thank you for your presence here. We hope
that we will be giving some corrected pronunciation to your
name. Welcome.
STATEMENT OF ARA TAHMASSIAN, ASSOCIATE VICE PRESIDENT, RESEARCH
COMPLIANCE, BOSTON UNIVERSITY
Mr. Tahmassian. Thank you. I would like to thank you, Madam
Chairwoman, and the committee for allowing me the opportunity
to appear today. I am here today representing the higher
education associations, and over 2,000 colleges and
universities as its membership. I am, in real life, an
Associate Vice President for Research Compliance at Boston
University and Boston Medical Center, where I have a
responsibility for research compliance, including safety and
security at over 600 labs spread over 25 buildings.
There are three main points that I would like to highlight
for you today. First is the commitment that the higher
education has to continue to comply with the new chemical
standards. Second, I would like to convey to you the concerns
of colleges and universities about the standards that were
published in April of 2007. And finally, I would like to
emphasize that we are encouraged with how the Department of
Homeland Security has responded to some of our concerns.
First, I wish to make it clear to the committee that
colleges and universities are committed to safe conduct of
research and teaching on their campuses. We recognize that all
of us, including colleges and universities, must become more
vigilant in the post-September 11th world. Universities have
for years complied with an evolving set of Federal regulations
governing health, safety and security, from OSHA to CDC, the
Environmental Protection Agency, Department of Agriculture, and
Nuclear Regulatory Commission to name a few. To meet these
requirements, our institutions have assessed the risks of
chemicals used on campus labs and have adopted appropriate
safety measures for the protection of researchers and the
environment. We are approaching the Department of Homeland
Security chemical standard with the same commitment to
compliance. Having said that, we hope that we can work with the
Department of Homeland Security to align these new requirements
with those already imposed on us by other Federal agencies so
long as such alignment can serve both homeland security and
other health and safety goals. And also we would like to ensure
that whatever approach is taken to these rules, it doesn't
inadvertently weaken the national security by hindering science
and engineering research and education on our campuses.
Let me briefly speak to the specific university concerns
regarding the Chemical Facility Antiterrorism Standards. The
higher education community was surprised to discover that the
list of chemicals of interest which was published in appendix A
in April included a number of compounds commonly found in our
labs. If the rule were adopted with no further changes, it
would apply virtually to every college and university, many
hospitals, and certainly to some secondary schools. The final
rule addresses risks posed by large chemical manufacturing and
industrial facilities. It is not, in our view, well tailored to
deal with the unique characteristics of colleges and
universities, which have relatively small quantities of many
different types of chemicals, which are dispersed over many
labs and a multitude of buildings.
These features of universities lead to two challenges. One
is the completing of the Top-Screen as it is now designed. As I
have already mentioned, the campus environment is
decentralized, complex and, most importantly, dynamic. On any
given day, some portion of the chemicals housed in the lab is
being consumed in experiments, and in another, there are new
ones being acquired. We have robust systems that were developed
to ensure the safe handling and disposal of chemicals. These
systems and these risk assessments do not require to track the
day-to-day inventories. The proposed 60-day window for
completing the Top-Screen inventory doesn't provide colleges
and universities sufficient lead time to collect the required
information for that purpose.
. Secondly, our campuses may be required to undertake a
vulnerability assessment and prepare security plans. And we do
expect that some universities will be asked to develop and will
fall into that category. We would like to see security plans
that make sense for universities, which are operated
differently, than industrial concerns.
Having expressed this concern, I also want to commend the
Department of Homeland Security for how it has already
responded to our concerns. Specifically, the Department has
recently begun working closely with the college and university
community to develop a strategy for securing chemicals on
campuses in a reasonable and effective way. I am pleased that
the DHS has agreed to establish a working group of experts from
the higher education community to consider rational and
efficient strategies for inventorying and securing chemicals on
our campuses consistent with the intent of the new standard.
This consultation should result in a better rule, which would
be easier to implement, much greater compliance, and less
unintended destruction of teaching and research.
In conclusion, I would like again to reemphasize that
colleges and universities are committed to ensuring safety and
security of education and research on campuses. We are grateful
to Congress and the administration. We appreciate the
importance of balancing security with the needs of the
education and research. Thank you again for the permission to
appear before you, and I would like to welcome any questions
you may have. Thank you.
[The statement of Mr. Tahmassian follows:]
Prepared Statement of Dr. Ara Tahmassian
On behalf of
American Council on Education
Association of American Universities
Campus Safety, Health and Environmental Management Association
Council on Governmental Relations
National Association of College and University Business Officers
National Association of State Universities and Land-Grant Colleges
I appreciate the opportunity to testify here today on behalf of the
American Council on Education and several other higher education
associations and the more than 2,100 colleges and universities that are
their members. These institutions are a diverse group, public and
private, small and large, offering associate's degrees through
doctorate degrees as well as professional and post-doctoral research
programs.
I am the Associate Vice President for Research Compliance at Boston
University and Boston Medical Center and am responsible for all non-
financial research-related compliance issues at both institutions. The
university and its medical center have approximately 600 labs spread
over 25 buildings on two campuses separated by approximately two miles.
Before I explain some of the challenges universities and colleges
face implementing the current Chemical Facilities Anti-Terrorism
Standards, I am pleased to inform the committee that the Department of
Homeland Security has been responsive to our concerns and has
established a working group with experts from the higher education
community to consider strategies for securing chemicals on our campuses
in a reasonable and effective way. This partnership is in the early
stages and discussions will continue throughout the summer to reach a
consensus on how best to get the job done. We are very encouraged by
these discussions and the Department's recognition that college and
university campuses confront unique challenges in meeting the
Department's goals.
Colleges and universities are committed to the safe conduct of
research and teaching on their campuses. Many colleges and universities
function as small cities, complete with security forces and emergency
response capabilities. They have long been subject to federal
regulation governing health, safety, and security in research under the
auspices of Occupational Safety and Health Administration, Centers for
Disease Control, Environmental Protection Agency, Department of
Agriculture, and the Nuclear Regulatory Commission. To meet the
requirements of these agencies, institutions have to perform a risk-
based analysis of the chemicals being used and the general type of
procedures being performed in order to determine the safety measures
required for the protection of employees and the environment. These
measures include requirements such as training, protective personal
clothing and disposal methods. Extensive new regulations for the
management of select agents, radioisotopes, and visa requirements for
international students have been introduced since 9-11, and have
expanded the requirements for physical security of certain campus labs.
Congress and the administration have recognized in recent years that a
thriving university-based research enterprise is critical to national
and economic security. We anticipate that the Department of Homeland
Security will take a similar approach to the chemical facilities rule
and find an approach that does not inadvertently weaken national
security by hindering science and engineering education and research on
college and university campuses.
Admittedly, the higher education community was taken aback when the
Department published its interim final rule on Chemical Facility Anti-
Terrorism Standards in April. Not that we hadn't read the December
notice of proposed rulemaking--we had, and concluded that universities
would not be considered ``chemical facilities'' under the rule. The
proposed rule seemed to be clearly designed to address security at
chemical manufacturers and large industrial facilities that possess
large amounts of hazardous chemicals. College and university
laboratories do use chemicals, but under the control of faculty and
investigators and in small quantities dispersed over many laboratories
in numerous buildings. We were surprised to discover that the list of
chemicals of interest published as Appendix A to the interim final rule
in April included a number of compounds that are quite common in
laboratories, often with a threshold of ``any amount.'' In our
estimation, as originally published, the rule would have applied to
virtually every college and university in the country, and probably to
many hospitals, doctors' offices, and secondary schools as well.
The Department consulted with some sectors of industry in
developing the regulations, but it did not consult with colleges and
universities about the level of risk and the best way to ensure
security while avoiding any disruption of teaching and research. It is
therefore not surprising that the rule and associated questionnaire
(the Chemical Security Assessment (CSAT) Top-Screen) are ambiguous in
several places if applied to the academic environment.
The rule presents several serious concerns, which we hope to
resolve with the Department over the next few months.
First, completing the Top-Screen as it is now designed would be
challenging for colleges and universities, especially within the short,
60-day deadline. The research environment is decentralized, complex,
and most importantly, dynamic. Some institutions have more than 1,000
individual laboratories. Our research endeavors are not static but
constantly changing as researchers adjust their approach and explore
new questions. On any given day, some portion of the chemicals housed
in these laboratories is consumed in experiments and others are
purchased or prepared as mixtures. Most of these chemicals are stored
in small containers, typically ranging in size from tiny vials holding
a few milliliters up to five-gallon bottles. Unlike other types of
industrial facilities, few institutions have centralized inventory or
purchasing controls in place. Colleges and universities need sufficient
time to set up systems to track specific items, if they are expected to
meet new regulatory requirements.
We have been assured that the Department is revising the list in
Appendix A in response to comments and consultations, but we have not
yet seen the results. Depending on the specifics, this may very well
resolve a number of issues and provide relief for many smaller
institutions of higher education. Because of the nature of our research
facilities, we still need lead time after the list of chemicals of
concern is finalized to put proper tracking systems in place.
Our preliminary discussions with Department officials have
indicated their willingness to consider the design of the Top Screen
and the best way to collect useful information from colleges and
universities.
Second, once an entity has completed the Top Screen process, it may
be required to undertake a vulnerability assessment and prepare a
security plan. Most of us expect that some universities will be asked
to develop a security plan. We appreciate the Department's performance-
based approach to the requirements for such plans but would like to see
revised criteria for higher education institutions. We are encouraged
that DHS has said the requirements for security plans will reflect the
level of risk of attack, sabotage, or theft at a particular
institution.
We hope that we can work with the Department to develop a framework
for university security plans that reflects an understanding of certain
factors that are common across colleges and universities. Universities
present a low risk for toxic release through theft, sabotage, or
attack. The distribution pattern of chemicals across many laboratories
on a campus reduces the risk of a toxic release on a significant scale.
We are aware of the need to ensure the safety and security of our
campuses and we have instituted appropriate measures.
However, we also encourage a policy of open access to campus
laboratories. We want all students, not just chemistry majors and
doctoral students, to have hands-on research experience. At a time when
there is a national concern about the availability of highly trained,
creative scientists and engineers to lead our high-tech industries, we
should do all we can to promote undergraduates especially to seek out
research opportunities. Locking laboratory doors or limiting access to
entire buildings may have the unintended effect of discouraging
students from getting those first-hand experiences that at a minimum
promote scientific literacy and, in some cases, may prompt a student to
specialize in science.
We hope that DHS will take a broad view of risk in its assessments
of risk (or undertake a cost-benefit analysis) and will consider the
potential effects on science and engineering education and the
productivity of university research groups.
As I said at the outset, we are pleased that the lines of
communication with DHS are open. We are grateful that the Department of
Homeland Security is willing to recognize the special circumstance of
the education sector. Additional time for consultation about the level
of risk on college and university campuses and the ways in which
chemicals are handled, used, and stored will result in a better rule
and greater compliance. We hope to reach agreement about the collection
of relevant information about chemical inventories at colleges and
universities and on common elements of security plans. Colleges and
universities are committed to ensuring the safety of education and
research on campus; we are grateful that Congress and the
administration appreciate the importance of balancing security with the
needs of education and research.
Ms. Jackson Lee. Let me thank all of the witnesses for
their instructive testimony. And as I begin my questioning, we
will proceed by asking questions of each of you. If there is
someone who desires to answer the question, or add to the
answer or offer a different perspective of the witness that I
questioned, please acknowledge, and I will be happy to expand
this record. This is very key to, one, the oversight that we
are responsible for, but at the same time it is a part of the
instruction manual for a more extensive review of these
questions of chemicals and the need for further legislative
response. Several good points have been made here. But I do
want to refresh the witnesses' memories. And as I do so, again
let me thank Mr. Scott in particular, because we know the long
history that Dow Chemical has had. It is a well-known American
fixture, if you will. And it has a history of being attentive
to these concerns. And so we appreciate the testimony that you
have given. And as you reflect on my statements, your
appreciation for your attentiveness, please also reflect on the
points that I am about to make. Chemicals are benign until they
are used in an untoward manner. So most of us would have
considered fertilizer and ammonia somewhat benign prior to
Timothy McVeigh. And now we look at ammonia and fertilizer and
other elements and various moving trucks--I don't want to call
on a particular name brand--somewhat suspiciously. That is why
we are in this committee room today. I take with extreme
seriousness and sensitivity a thriving chemical industry. I
also reflect upon what Americans are used to, freedom, freedom
to design, research, think, move goods. But unfortunately, and
this statement I don't mind our enemies hearing, we have to
turn more inward. We have to be more vigilant. And that is why
we, if you will, established this committee, to include
critical infrastructure, which is well known to be
predominantly in the private sector. But we are acknowledging
that creativity on chemical uses outside of the chemical plant,
materials that could be secured, particularly at the
universities, and we are certainly respectful of how attentive
universities and some are probably becoming, but we do know
that there is the very sure possibility that those who are
intending to do harm can find any number of ways to use
innocent products to do so. And I would like you to answer my
questions in that backdrop so that we can be constructive as we
proceed. I am acknowledging that DHS is in negotiations with a
great number of those who have different perspectives. I will
be asking them to provide us with a briefing as they move
toward any decision-making. It will be very important that
Congress is included in this loop, primarily because even from
last week we live in a different time.
Mr. Crowley, then my question to you, as I have asked
Secretary Stephan, and would you expand on two aspects? One,
the seam, I think that is a very important point, the seam of
the travel of chemicals, whether or not we have enough funding
as you perceive it, having been in government, to develop
legislation along the concept of seam. Let me be very frank
about jurisdictional issues. I think this should be a homeland
security issue singularly, because it relates to security. But
when you think of seam you might have jurisdictional questions,
because a seam requires transportation modes. But, again, if it
is transportation security, it falls in this subcommittee and
Homeland Security. So the question of seam. And I don't know if
you have had the opportunity to look at the regulatory scheme
we put in place in last year's and then the appropriations
language. I don't think we are finished. But whether or not
there are sufficient resources, and as you listened to the
Secretary, sufficient staffing that would give you the comfort
that if you had to sit here today and say that we were moving
toward securing ourselves against al-Qa'ida, that you would be
able to say, with the backdrop of your experience, that we are
almost there, that this is the right direction, that we don't
need do any more. Mr. Crowley?
Mr. Crowley. Yes, ma'am. I would say we are moving
gradually in the right direction. What concerns me is I think
as we have reflected upon what is happening in Iraq, for
example, the threat is advancing faster than we are taking
steps to meaningfully reduce risk. Your comment on the seam is
dead on. Right now, we are treating chemical security as one
phenomenon. We are treating rail security as a separate
phenomenon. And I would encourage the committee at some point
to try to put those together into a comprehensive approach.
Right now, on the rail rule making, for example, the process
comes down to keep the stuff moving, you know, through the
system. I don't think that is adequate from a security
standpoint. I absolutely--what Mr. Markey said about the gap,
the chlorine gap, I think that is fundamental. Chlorine, as we
see, is perhaps the chemical that already is in the sights of
al-Qa'ida. And as I said in my testimony, if they ever get a
chance to perfect what they are doing in Iraq, it will be on
the Internet. It will be available and be an incentive for
those who want to try to do something similar here. So finding
ways to reduce the length of our supply chains I think is
critical. And I think Mr. Scott and Dow have some ideas on how
to best do that. I am gravely concerned, as I sit here and
listen to Col. Stephan, and here we are, we are in the process
of initiating and implementing a regulatory framework, and he
is still looking ahead to funding and personnel that he doesn't
have right now. I think there is a serious question, when you
look at the Top-Screen is going to capture tens of thousands of
chemical facilities in their tiering, they are likely to
capture at least several thousand facilities in their tiering.
And if you do the math, they have right now perhaps, you know,
something like one person evaluating a thousand facilities.
That is not going to work. It appeared to me that he was
talking about having different kinds of oversight based on the
level of risk. But we have to make sure that those areas that
are clearly performing a critical security role, that function
has to be reserved for government employees. And that is not an
area that I think can be effectively done by the private
sector.
Ms. Jackson Lee. With nonclassified speculation, what
magnitude of an incident could occur with chemical plants?
Mr. Crowley. Madam Chairman, my metric in this whole thing
exists right down the street from where we sit. If we
eventually develop a chemical security regime that allows CSX
to transport hazardous material, including TIH gases on the
rail lines, two of them that go through Washington, D.C.,
because we recognize that the Capitol, for example, was a
target on 9/11. Thankfully, they weren't able to get here. But
if the regime allows that to happen, then I don't think we have
genuine chemical security. So that is, I think, as we go along,
we have to find ways to link chemical security, what is
happening in the fence line, but the regime that DHS develops
must take into account and assess the risk that is posed by the
transportation of chemicals between a manufacturer and a user.
The highest point of risk could well be in the middle of that
supply chain. And if DHS's system is driven by an assessment of
risk inside the fence line, without taking into account what is
happening in the supply chains, then I don't think we will end
up with real chemical security.
Ms. Jackson Lee. Let me thank you. And before I go on to
Mr. Scott, you mentioned Iraq. Let me mention it again, because
there is an element of the lack of expertise that a layman, in
quotes, maybe what is perceived to be a terrorist, a regular
terrorist fighter, those terrorists that are being trained by
the conditions in Iraq, which I think are well publicized and
documented, that we are multiplying the number of terrorists,
young terrorists, individuals that are keyed in to an incident
in this country. Is there the necessity of extreme
intelligence, technical training, years of experience to make
something happen with toxic or explosive chemicals that have
that base, Mr. Crowley? Is there a need--do you have to be
vastly experienced to be able to participate in something
dastardly happening?
Mr. Crowley. Not necessarily. The good news is that as we
move down the scale from----
Ms. Jackson Lee. That is the bad news. The question was, do
the terrorists have to be sophisticated, trained, knowledgeable
Ph.D.'s to make something happen with chemicals?
Mr. Crowley. Not at all. And the physicians in Glasgow and
London, that is the good news and the bad news, they weren't
successful, but all they needed was a better bomb maker. But
they are focused on things that are familiar to them, and they
are focused on familiar targets. And what is chilling to me
about Glasgow and London is they got to their intended targets.
They weren't discovered by intelligence agencies or law
enforcement in advance. Thankfully, their bombs didn't work,
but we can't rely on that every time. But the short answer is,
these are highly educated people, but they are not necessarily
scientists.
Ms. Jackson Lee. Thank you, Mr. Crowley.
Mr. Scott, it leads me to you and to, again, restate my
appreciation for what Dow has done as a representative of the
industry. And also to go right to what I understand has been
discussed by Dow as its recognition of the different levels at
which different States and their regulatory scheme is and Dow's
willingness to accept different State rules and laws. Is that
still what Dow is prepared to do, if there were States that had
more secure regulations that your facilities were in or any
chemical industry facility was in? Is it just the willingness
to accept preemption?
Mr. Scott. Before I answer that question, I would like to
build on a couple of points that Mr. Crowley hit on if I could
do that.
Ms. Jackson Lee. If you could just answer this one yes or
no, the preemption, are you willing to cede to some of the
States that have different laws from the Federal Government?
Mr. Scott. We think there should be a strong enough
national law, national regulation in place that the States
would say, that is strong enough; we don't need any more. But
we recognize that there are areas where States have some
special issues that they need to address. And if that is the
case, we support the States' rights to put regulations in place
to address those issues, as long as they are not in conflict
with the national regulations.
Ms. Jackson Lee. I thank you, and you may respond to some
of the points that Mr. Crowley was making.
Mr. Scott. Thank you. Just a couple of points. On the gaps
between supply chain and site security, one of the things that
we are really looking at with our integrated approach to
security is just that. How do we build layers of security
around critical assets on our sites and then extend those
layers of security through the entire supply chain to our
customers through any routes of modes of transportation to our
customers? Because what we want to try to do is build a
security line from beginning to end of the chemicals that we
work with that our Nation needs. And we think that is a doable.
That is a manageable project if we can get our arms around that
and get everybody involved in that from all aspects. So we
would support that. And the integration of our supply chain
with our site security also allows you not to shift the risk
from one area to another. You address the entire supply chain.
The other piece of that is any gaps between--or the options on
rail and security. There are toolkits out there of a wide range
of tools that we can use to improve security, whether it is
supply chain or whether it is at the site security, the
physical security level. And what we are supporting is the use
of any one of those tools, whichever tool makes sense to make
the most effective improvement in security. Thank you.
Ms. Jackson Lee. Let me pursue this line of questioning
with you, and note that you have been a strong part of the
Chemical Sector Coordinating Council, doing a lot on trying to
enhance chemical security. And with that in mind, you have been
a leader on the possible broadness of these regulations, sort
of having a massive sweep of facilities with small quantities
or other types of facilities, that may not be chemical, that
might have small quantities. I pose the question in a way that
we are all thinking now. A small amount of a chemical in one
place and a small amount in 10 other places brings together a
batch that may be deadly. And so in the spirit of trying not to
inconvenience, are we truly true to our commitment, which is to
secure the homeland? Is there not a better way than to take
these small quantities off the lists? Can you expand on that,
your view that it is too expansive and the regulations are
drawing in some that do not need to be drawn in, but one small
batch can be multiplied with other small batches? We are
talking about the potential of terrorists who will use all
means of creativity to do harm to this Nation. Mr. Scott?
Mr. Scott. We think that DHS is taking a risk-based
approach. The Top-Screen and the CFATS are taking risk-based
approaches. And as far as the levels, the amounts of product or
chemicals that are involved in appendix A, we haven't seen the
final list yet, so we don't really know what is there. But we
believe any facility, regardless of whether it is a chemical
manufacturing facility or a very small facility that has a high
risk of theft or diversion, off-site impact or anything that
can be weaponized should be included in the regulations.
Ms. Jackson Lee. What is your opinion about sunset?
Mr. Scott. The sunset I believe sets up very perceived
deadlines that rush the process or seem to rush the process.
And we have seen a couple of cases, not just with DHS, but in
other areas where, when you rush to a solution, you don't get
the most effective solution. So a sunset, we think, just puts
in some arbitrary or perceived deadlines. And we would like to
see DHS be given the amount of time that is needed to
effectively implement the implementation. We think they have
taken significant steps in the right direction. We want to let
them continue on down that path.
Ms. Jackson Lee. Thank you for that. That is one issue that
we are going to look at very closely, as to whether or not the
sunset works for us or against us. I know that you are here
with a very strong handle on the industry and a very strong
sensitivity to the industry. Do you think we have a lot more
work to do? Not every holder of chemicals is a Dow Chemical.
And so I think it is important for Congress to hear it
straight. Do we have a lot of work to do? Chemicals are held in
many, many different facilities. Again, I have asked this
question to each of the witnesses so far. Your opinion on that,
please.
Mr. Scott. We push very strongly for legislation just for
that reason. We think that there are a lot of companies out
there and a lot of associations that have taken a leadership
position and put in voluntary security upgrades at their sites
and the supply chain and done this on a voluntary basis. But we
thought the need for regulation was there, and we have
supported that because we need to get a lot of other players
involved that need to be involved in the process.
Ms. Jackson Lee. Thank you very much.
Mr. Alexander, your employees are on the front line beyond
the issue of security. Over the years we have seen coming from
my part of the world, chemical accidents, explosions, loss of
life. You mentioned your concern about the tiered risk system;
everybody is at risk. You want to explain that further?
Mr. Alexander. Well, in the regulations here, when it talks
about a high risk versus low risk or other tiers, it identifies
a list of issues that have to be addressed for a high-risk
facility. And it insinuates, it doesn't say what would have to
be done for the lower risk, but it insinuates that it would be
a different list depending upon the associated risk. And our
opinion is that the issues that are listed in there are issues
that should be addressed at every facility, whether it is a
high risk or a low risk. If you are going to say that, because
it is a high risk, you need to follow that list that is in
there, and if you did follow it, and if that did deter someone
from being a terrorist and using that as a facility for threat,
then why not go to a lower risk one and do the same thing if it
doesn't have the security? So what we are saying is there
shouldn't be a differentiation between any of them. They are
all a risk. They are a risk to the workers. They are a risk to
the communities. And what we all know, from the people dealing
with the chemicals, is even a low-risk facility can have
catastrophic events if the people, the terrorists were to act
in a way such that it would cause a catastrophic event. So we
feel that it should be the same.
The one thing that we disagree with on that list is the
background checks. Background checks for people that you are
hiring, we understand, and most any company that uses any good
sense would have background checks before they hire someone.
But background checks, what we have seen in a former Department
of Homeland Security regulation that was passed, have been
misused against workers who are actually already at the site
and have been working there for years. And in the Maritime and
Department of Transportation, they have had to add more
provisions; where if a person is accused or been found to have
a felony within a 7-year period, and now they are a terrorist
threat and the company has a right to fire them because of
that, they have added provisions so that they can appeal that
decision. And in this regulation, there is no way to appeal it
or anything else. So if a company wanted to target a particular
worker and dismiss them for obviously other reasons, and they
could do that. Then it can happen. And it has happened. It
happened in the maintenance of way. And that is one reason why
they had to add those provisions. So we don't understand why
those provisions aren't in this one.
Ms. Jackson Lee. Let me first of all say, Mr. Alexander, we
faced this issue before. We faced this issue with the
Department of Homeland Security. Your raising this, as we look
to a more comprehensive approach, even though we have had two
bites at the apple on chemical security is one that we will
take under advisement. And I think it should be clear that you
are not suggesting that we do away with background checks. You
are suggesting that, in the background checks, it should not be
used as a basis for terminating individuals who have been there
and working and very much a part of the particular company and
may have something in their background that has nothing to do
with their propensity toward terrorist acts. And that is
something we want to be aware of.
Mr. Alexander. Right.
Ms. Jackson Lee. Let me ask you just two more quick
questions. Would more employee training, as we have looked to
do in other critical infrastructure industries, be helpful as
well, that the actual--there be a requirement that the workers
be engaged in thwarting potential terrorist acts or what to do,
but basic worker training as it relates to security in these
plants?
Mr. Alexander. Absolutely. We feel that the workers should
be involved in every aspect, including training. If there is an
attack, you have to know how to shut the process down, how to
deal with it. If you have an attack that causes chemicals to be
released, what are you going to do with the rest of the
process? Is the whole thing going to go up? Training with the
workers on how to deal, and you only have minutes. We have some
provisions in the law under emergency response at this
particular time that gave a loophole, so to speak, to companies
that didn't have to train workers where they could count on
services from outside the plant. And what we have found was
what is most critical is the time. Whenever you have an
incident, you have to act as quickly as possible. And by
training the workers and having people on-site that know how to
deal with that would certainly reduce an event from being as
catastrophic as it could be.
Ms. Jackson Lee. You mentioned safer technology, and you
seem to suggest that, other than establishing the risk-based
strategy, we don't have anything that encourages these
companies to go out and buy, go out and seek, go out and
investigate safer technologies. Is that the point you are
making?
Mr. Alexander. The point that I was making on safer
technologies, there is nothing in this regulation that either
requires or recommends a company to seek safer technologies.
And even though it may result in a benefit to the company by
doing so that might take them off of a risk, there is nothing
here that says it. One of the easiest ways to eliminate the
chemicals, not that you could do it with all of them, but
chemicals from being transported, for instance chlorine--
chlorine is the easiest example, and probably the most likely
chemical that someone is going to try to use, and I think that
is why you are seeing it coming up missing now--is don't use
it. And there are plenty of substitutions for chlorine that can
be used.
But the first thing that Mr. Crowley talked about--not the
first thing, but one of the things he talked about--is water
treatment plants being exempted. And Mr. Markey talked about
them. That is where the chlorine is at, and they are exempt.
And they have the ability to use substitution chemicals that
would not be nearly as dangerous or even comparable to using
chlorine. So why they are not part of this regulation is a
really good question. And why isn't this regulation
encouraging, you know, or recommending at least, if not
requiring, companies to seek out inherently safer technology,
not just a substitution of chemicals, but the process itself,
the mechanical process that they are using? We have ways of
protecting the facilities better than what they are being
protected now.
Ms. Jackson Lee. Mr. Crowley, quickly, does that make sense
to you?
Mr. Crowley. It absolutely does. I don't think that it is
for the Federal Government to dictate a specific solution to
any chemical manufacturer or user. But if, in the process, you
now have inherently safer and secure alternatives as part of
that process, as one tool, then what it will do is it will
dramatically reduce our level of vulnerability. And then we can
deal with those residual chemicals and processes that don't
lend themselves to an alternative, you know, through an
effective means.
But certainly in the research that we have done, we have
clearly shown that there are viable and affordable alternatives
out there. We surveyed a number of facilities. Some of them are
changing, but many are not. And there is just this inertia that
I think the regulatory process can help with. And many
facilities can convert from an existing dangerous, inherently
dangerous process that can be exploited by a terrorist to a
safer alternative at modest cost.
Mr. Scott. Madam Chairwoman, if I could add to that,
please, I would like to point out, we would also support, as
one of the many tools that you have in your toolkit, an
inherently safer technology, both in process design and product
use. But just for the record, I would like to also point out
that chlorine does account for--is used in 93 percent of all
pharmaceuticals, 25 percent of all medical plastics and 86
percent of crop-protection chemicals. It is a basic building
block for many of the things that are in our culture today.
Ms. Jackson Lee. Is that chlorine?
Mr. Scott. Chlorine.
Ms. Jackson Lee. Which means the import of your statement
is, it would make it difficult to remove.
Mr. Scott. There are opportunities for use of inherently
safer technology, but chlorine is a basic building block for
everything we use in our world today.
Ms. Jackson Lee. Mr. Alexander, I asked everyone else, do
you think we made any progress on being safer as it relates to
chemical plants, as relates to your employees, who are, many
times, employed by these companies?
Mr. Alexander. I think we are making progress. There is no
doubt we are making progress. And I was happy to see some of
the suggestions that we made earlier on were adopted in this
regulation. But there certainly are some things that we need to
consider along the way of how they may adversely affect other
situations, like for instance the workers in the workplace. You
know, if you create a law that is going to take away rights of
workers and rights of the community for right to know and the
ability for their representatives to investigate and protect
the workers, then we are creating a problem where there was
none before. So we just ask that you carefully consider and put
some stipulations in here, the original stuff that was written,
where it basically said they would not just preempt State law.
The original stipulation said, they would preempt any law. That
is the exact words that were written in there. And we can't
allow a knee-jerk reaction to ignore what we have fought for
years and years for rights for workers in the community to try
to protect our facilities. Not that we shouldn't protect our
facilities, but we need to be careful that we don't take away
other rights that will endanger communities and workers. So by
taking away those rights, then you have an adverse effect. So
we need to just be careful. We are all about moving forward and
making the facilities safer and less of a threat. There is no
doubt about that. But we just need to be careful how we move
forward to make sure that we don't cause an adverse effect.
Ms. Jackson Lee. Well, let me acknowledge the work that we
have still to do and the components that each of you represent,
and particularly employees that are either on the front line of
safety or on the front line of security are a key to what we
are trying to accomplish here. And so your continued
involvement would be welcomed.
Mr. Tahmassian, let me thank you for representing the
university community. The last thing we want to do is to stifle
research and development, which is the cutting edge of the
Nation's economy. But I am reminded, frankly, of, again,
without being redundant, of the climate in which we live. It
has been recently publicized that terrorist cells are in the
United States. Cells by their very definition may be one person
or two persons. They may be 10 persons. But we do know that
they are, by the able of definition of cell, nuclear, able to
move around, small. That means university campuses can be
vulnerable. So I would welcome your explanation as to why, if
we found a way to manage the universities, know that you are on
a particular budget, that universities should not be included?
And my second question is that large universities are
probably more susceptible to resources to do what you have just
suggested, Boston, Boston University. But we have thousands
upon thousands of colleges and universities that have chem labs
and are handling various chemicals. What is our response to
them?
Mr. Tahmassian. Madam Chairwoman, we are really not asking
to be completely excluded. What we are asking is a process by
which the standard is sort of adapted to the different
environment of the universities. If you look at the
universities--and again, we are going by the first version of
the appendix A that we saw. To obtain the 2,000 pounds, to be
very specific--and I can give you an illustrative example.
Nitric acid, which is very commonly used in almost every
chemistry lab and almost every biology lab, has a threshold of
2,000 pounds. If you roughly assume that one gallon is
equivalent of 10 pounds, and the majority of the labs in a
university environment at most will have 1 gallon of it, that
means to obtain that 2,000 or to hit the 2,000-pound threshold,
you literally have to go to something between 200 and 220 labs,
which might be to different buildings, to reach that threshold.
So what we are really looking at is, how do we define those
kind of thresholds that make sense for the university
environment rather than saying that we want an umbrella
exclusion. I don't know if that answers----
Ms. Jackson Lee. If I am hearing you, you are saying, do
not exclude but be responsible to the prototype of a university
and what it means and how much quantity you would have.
Mr. Tahmassian. That is correct.
Ms. Jackson Lee. In the regulations, then, would you
welcome defined regulations that might single out the
university and college community so that there would be
requirements, but they would be requirements that would be
responsible to the business that you are in?
Mr. Tahmassian. Yes.
Ms. Jackson Lee. One of the things that is distinctive is,
we don't do background checks on students. And the campus is
the bastion of freedom of expression. And so there lies all
kinds of speculation. Who would have ever thought in the series
of London bombings and Scotland that caregivers, medical
professionals would be involved? No one has yet reported
whether or not the materials that they found, and I don't know
if the nexus has been made, was connected to their profession.
But, certainly, in a hospital, you are very much part of having
access to chemicals. And certainly hospitals are on our list
for critical infrastructure and concerns that we will be
raising as they care for those who are in need. But if that be
the case, then we would want to work as carefully as we can.
But why don't you respond to just the broad point that I
made about students and lack of background checks? Mr.
Alexander said he has a problem with background checks. He just
doesn't want it to be used against long-standing employees. And
we have had that issue before, and we are going to work with
them. But what is your level of protection, professors and
others? Very difficult with this whole idea of freedom of
expression and freedom of speech, which is where this is
supposed to occur.
Mr. Tahmassian. The issue of background checks in the
university overall for employees is not new. We do background
checks on a number of what we consider sensitive--for example,
many people who currently work with finances, and if they are
handling cash, including at the hospital, they are subject to
background checks. I think the question of the students is a
little bit more complicated, because, as you indicated, we have
not been in the business of background checks from a criminal
perspective of the students.
However, when the students are on the campuses, the
majority of the campuses do have programs where the faculty,
the professors, the teaching assistants are actually now
trained in looking for certain behavior patterns and seeing if
there are things which are unusual. And these are not
necessarily just from sort of looking for terrorism. That is
not what I am implying. It is if there are behavioral changes
that we think a student might be having difficulties, is
depressed. And these are brought up to the attention of the
university officials who have appointed actually social
workers, psychiatrists, psychologists that will talk to the
students and try to monitor them. I think that working within a
framework such as that, we might be able to come up with a
solution that meets the security requirements, as well as the
university.
Ms. Jackson Lee. I don't want the pronouncement out of this
hearing that the committee has decided to background check all
the Nation's students. But I do want to express a concern to
you about those who are the caretakers of labs, researchers,
faculty, again, not stifling educational freedom. But this is
the kind of microscope that we have to begin to look at in
America; not to stifle thought and stifle research but to be
currently aware that we live in a world where al-Qa'ida is not
isolated. It is franchised, and it moves around.
Ms. Jackson Lee. And it may be in places where we would
least expect it. So when we look at a comprehensive approach,
that is why you are here today, because we want it to be
sensible, responsible but serious, and the last word, of
course, is ``comprehensive.''
I would encourage you to look back on your whole university
council and the issues that I have just raised. Even though
small amounts may be at these various chemical labs and in
research components of universities, they might not have to go
to 200 universities to secure what they need. It might be one
university or a series of universities, and that is not a
difficult task.
Let me thank you for your testimony.
I am going to conclude, Mr. Crowley, and let me just ask
everybody the question of how secure you feel we are with our
efforts toward chemical security and particularly as it relates
to universities.
Mr. Tahmassian. I think we have made significant progress
over the last 6 or 7 years. Seven years ago, nobody thought
about security the way we are thinking about it now. Most of
our security was securing the environment for our faculty and
for our students so their personal belongings do not get stolen
and so they do not get attacked and so on. Today, actually, as
you walk into the facility, name badges are displayed by
everyone. People challenge you if they do not recognize you in
the lab. We have made a fair amount of progress. Obviously,
like anything else, there is a lot more that could be done; and
we continuously need to be vigilant and to look at how we can
better perform than we have done in the past.
Ms. Jackson Lee. Let me thank you very much for that
assessment. It gives us a broad view.
Mr. Crowley, the end is going to be beholden to you. Are we
at a crisis? We are reading the national intelligence
estimates, some of which have been publicized, so that we are
speaking from what we have--those who are here, I will speak to
what has been in the newspapers. The national intelligence
estimates, as I have characterized, indicate that al-Qa'ida is
moving around and has franchised. This committee has an
enormous responsibility to address the question.
We are, in the 9/11 conference, trying to meet some of the
requirements such as the screening of 100 percent of cargo,
which is part of your scene; and, of course, there is
opposition to that. Do we have any latitude of being lax on
ensuring a very pronounced regulatory, comprehensive process
for chemical security?
Mr. Crowley. Chairwoman Jackson Lee, I think the crisis, if
we have it, is one of focus. I mean, obviously, the longer we
get from 9/11, the good news is we have not been attacked, but
we are becoming complacent. I think that is probably the
greatest thing that we have to overcome.
Dr. Tahmassian earlier mentioned the fact that, through
this process that we have started with chemical security, they
now recognize that they are part of this. They did not expect
that so many universities would be captured by the preliminary
list that DHS puts out.
I think that is exactly the process that we should be
having here, that all entities across--you know, and I mean
there is a wide latitude in terms of what we consider to be a
chemical facility. There is a full range of activities here.
But certainly the process is beginning to help various
companies and entities recognize that they have to be part of
this security equation.
I think what the good news is about this Top-Screen is it
begins a process. It begins a dialogue with, perhaps, some
entities that did not see themselves as part of this security
equation.
So I think the bad news here is that we are becoming
complacent. We have bought into some rhetoric that has been
used in the political realm that we are fighting them over
there so we do not have to confront them here. The reality of
what we saw in Glasgow, Scotland, is we are likely to confront
them here; and we may not have the intelligence that tells us
where they are so that we can stop them in advance.
So we have to rely on processes like this one, and then
through that process you begin a dialogue so that you can get
at the heart of the security concern and address that,
establish positive responsibility by various entities that have
possession of dangerous chemicals and establish a process where
we can, over time, significantly reduce this risk.
Ms. Jackson Lee. Let me thank the witnesses very much for
their testimony. Mr. Crowley, Mr. Scott, Mr. Alexander, and Mr.
Tahmassian, let me thank you very much. You have given us a
roadmap.
The other part of the scene that Mr. Crowley speaks to is
the whole idea of intelligence, and that is certainly the
responsibility of this committee and other subcommittees,
having the intelligence to be preventative. But, at the same
time, as we glean intelligence, if for one moment our
intelligence slips, which all of it is based on human
opportunities and abilities, then we must have, on the other
hand, a high, high barrier, a very high mountain of prevention.
I am not in any way satisfied that, as we sit here today, we
have covered or are beginning to cover--though, I think we are
making great steps, and I am very appreciative of the sectors
that, on their own accounts, have sought DHS. They are to be
applauded. But there are human elements to that. There are
human interests. There are interests that are all involved.
So I am not convinced as chairperson of this committee that
we have, frankly, reached the vastness of where we need to go.
I have heard the words ``tens of thousands.'' So that means
that we have the able representation of Mr. Scott, very able,
and the presence of the council here, but, beyond that, there
are tens of thousands handling chemicals in America who are
unsupervised, who are unwatched and who are certainly not ready
to face what potentially may be a terrorist incident.
This overview is to engage each and every one of you. We
will not do it in a vacuum. We need to do it quickly. I do not
think what has been done is enough, and it does not in any way
give me comfort that we could not foresee in days or in weeks
ahead someone's taking license, unfortunately, in the climate
that we are in. That is our responsibility, to be able to stand
up and say that we have done all that we could to prevent a
horrific incident that could be reflected through the words of
Mr. Markey in his comments about chlorine--and respecting Mr.
Scott's retort on that--but also as to any number of chemicals.
I am not satisfied that our employees who are handling
chemicals outside of the industry are trained. I believe we
need more monies for surrounding neighborhoods--some of the
greatest victims or vulnerable persons as relates to the use of
chemicals in a terrorist act, and certainly, some of the
nuances that have been said--fairness with background checks,
responding to the universities, responding to the chemical
industry--are all in place, but, as we leave this room, the
question is have we done what we need to do to not read a
headline this week, the next week and the next week. Your
testimony will help us move to that point, I hope, but, for me,
we are not moving fast enough.
So I thank you all very much for your testimony and for
your presence here today. It has been constructive and
instructive, and I hope that we will be able as a committee and
as a Department to work together.
Let me finalize by saying the members are in different
places. There is legislation on the floor, any number of
committees because we are nearing a point of a recess, of a
work recess. So I do want to say, on behalf of the members,
that they will submit their statements into the record. They
appreciate the testimony. The ranking member was called off to
a meeting.
Likewise, I appreciate your testimony. We work together on
this committee in a bipartisan manner, and I hope that we will
have that opportunity to do that in the name of the American
people, to step in front of, if we possibly can, any potential
incident as a result of the oversight of our particular
committee.
Thank you all. This hearing has now come to a close. Any
further statements will be submitted into the record.
[Whereupon, at 3:55 p.m., the subcommittee was adjourned.]