[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
H.R., THE CHEMICAL FACILTY ANTI-TERRORISM ACT OF 2008
=======================================================================
HEARING
before the
SUBCOMMITTEE ON TRANSPORTATION
SECURITY AND INFRASTRUCTURE
PROTECTION
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
DECEMBER 12, 2007
__________
Serial No. 110-89
__________
Printed for the use of the Committee on Homeland Security
[GRAPHIC] [TIFF OMITTED] CONGRESS.#13
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
__________
U.S. GOVERNMENT PRINTING OFFICE
48-984 WASHINGTON : 2009
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
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
Statements
The Honorable Sheila Jackson Lee, a Representative in Congress
from the State of Texas, and Chairwoman, Subcommittee on
Transportation Security and Infrastructure..................... 1
The Honorable Daniel E. Lungren, a Representative in Congress
from the State of Texas, and Ranking Member, Subcommittee on
Transportation Security and Infrastructure..................... 3
The Honorable Bennie G. Thompson, a Representative in Congress
from the State of Mississippi, and Chairman, Committee on
Homeland Security.............................................. 5
The Honorable Yvette D. Clarke, a Representative in Congress from
the State of New York.......................................... 48
The Honorable Bill Pascrell, Jr., a Representative in Congress
from the State of New Jersey................................... 45
Witnesses
Dr. M. Sam Mannan, PE, CSP, Professor and Director, Mary Kay
O'Connor Process Safety Center, Artie McFerrin Department of
Chemical Engineering, Texas A&M University System:
Oral Statement................................................. 30
Prepared Statement............................................. 32
Mr. Clyde Miller, Director, Corporate Security, BASF Corporation:
Oral Statement................................................. 12
Prepared Statement............................................. 14
Mr. Gerald C. Setley, Vice President, Region 3 Director,
International Chemical Workers Union Council, United Food and
Commercial Workers Union:
Oral Statement................................................. 20
Prepared Statement............................................. 21
Mr. Gary Sondermeyer, Director of Operations, New Jersey
Department of Environmental Protection:
Oral Statement................................................. 25
Prepared Statement............................................. 27
Colonel Bob Stephan, Assistant Secretary, Infrastructure
Protection, U.S. Department of Homeland security:
Oral Statement................................................. 6
Prepared Statement............................................. 9
For the Record
Mr. William E. Allmond, IV, Director, Government Relations,
Synthetic Organic Chemical Manufactures Association (SOCMA)
accompanied by,
Mr. Jeffrey Gunnulfsen, Senior Manager, government Relations,
Synthetic Organic Chemical Manufactures Association (SOCMA):
Joint Prepared Statement....................................... 59
H.R., THE CHEMICAL FACILITY
ANTI-TERRORISM ACT OF 2008
----------
Wednesday, December 12, 2007
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Transportation Security and Infrastructure
Protection,
Washington, DC.
The subcommittee met, pursuant to call, at 10:10 a.m., in
Room 311, Cannon House Office Building, Hon. Sheila Jackson Lee
[chairwoman of the subcommittee] presiding.
Present: Representatives Jackson Lee, Clarke, Thompson (ex
officio) and Lungren.
Also present: Representatives Pascrell and Langevin.
Ms. Jackson Lee. Good morning. The subcommittee will come
to order.
The subcommittee is meeting today to receive testimony on
the legislative draft of the Chemical Facility Antiterrorism
Act of 2008. Importantly, this testimony will include insight
into the current chemical security regulations and current
efforts in the State of New Jersey.
Before I begin, however, I ask for unanimous consent that
the Chairman of the Subcommittee on Emerging Threats,
Cybersecurity, and Science and Technology Mr. Langevin, and Mr.
Pascrell, a member of the full committee, sit and question the
panel during today's hearing. Without objection, so ordered.
The Ranking Member wanted to smile his approval, and we
thank him so very much. Let me also welcome Mr. Pascrell and
thank him. We know how crucial these issues are to his region.
And let me as well welcome the Chairman of the full committee,
Mr. Thompson of Mississippi.
I would like to take this opportunity to thank you all for
joining us this morning. As we all know, the Congress, and
specifically the full committee and this subcommittee are very
concerned with chemical security and ensuring there are
effective and robust chemical security regulations when the
current regulations expire in October 2009.
Chemical security is a topic that is very important to this
committee, my constituents, and me. The Houston area is home to
several chemical facilities and petroleum refineries. As a
result, the issue of chemical facility security is one that is
right in my backyard, as well as many, many backyards of many,
many Americans.
This subcommittee held a previous hearing on the topic of
chemical facilities in July of this year. At the time of that
hearing, the Department of Homeland Security was preparing to
implement the Chemical Facility Antiterrorism Standards, all
known as CFATS. Although the Department had moved aggressively
in drafting the interim final rules and a list of chemicals
covered under the regulation referred to here as Appendix A,
which will be made part of the hearing record, the Office of
Management and Budget took several months before finally
releasing the list on November 20, less than a month ago.
Fortunately, the Department proactively reached out to
roughly 100 companies that it was sure would be captured under
the regulations and asked them to begin the regulatory process
by completing a Top-Screen questionnaire that listed the
chemicals held on site by these companies. This action by the
Department helped to get these necessary regulations moving.
With the release of Appendix A, all companies, not just the
initial 100, are filling out the Top-Screen. The results of the
Top-Screen determine whether a facility will be regulated under
CFATS. These facilities that have relatively small amounts of
chemicals, or otherwise pose low risks, will not be regulated.
If the facility is determined to have a sufficient amount of a
chemical of concern, however, it will be regulated.
Under the regulation, the next step is for a facility to
complete a Security Vulnerability Assessment and a Site
Security Plan, which must be approved by the Department and
implemented by the facility. We are fortunate to have before us
today representatives from the Department and a regulated
company to provide us with insight into the implementation of
CFATS.
This committee is responsible for oversight of the
Department, and also for enacting legislation to give
permanence to CFATS regulation, which will sunset in October
2009. This hearing then gives us an opportunity to find out
about what is working in CFATS and what could use improvement.
Importantly, this committee does not want to reinvent the
wheel, and we believe that the fundamental approach taken under
CFATS is a correct one. We do, however, have some concerns
regarding the protection of information and the introduction of
a new class of protected information, chemical terrorism
vulnerability information.
I, for one, have an open mind on this issue, and I
understand the need to protect this sensitive information, but
I am concerned that we might overprotect information. As a
result, it may not be shared with the necessary stakeholders,
such as with the facilities as well as State and local
authorities who have the responsibility, along with the Federal
Government, to protect the homeland.
We also would like to see more emphasis placed on employee
training and the involvement of employees and their
representatives in creating SCAs and SSPs. For that reason, we
are happy to have a Chemical Workers Union representative here
with us here today.
Clearly, inherently safer technologies has, of course, been
a hot topic. This hearing will provide an opportunity to have a
conversation about IST, and I am looking forward to it. We are
fortunate to have a representative from New Jersey, a State
with a chemical facility security law that requires an IST
assessment. We are also joined by an academic expert who has
studied IST, and a company which has complied with New Jersey's
law so that we can examine this issue from all sides.
Let me say how appreciative I am of our Chairman of the
full committee Mr. Thompson for his recognition of the
importance of the second half of the responsibilities of this
subcommittee, infrastructure protection. As we go into 2008, we
look forward to looking at some unique challenges that we have
seen not necessarily dealing with terrorism, but certainly
vulnerable: shopping malls, dams, hospitals, and schools. And
this subcommittee expects to have enormous oversight in these
areas in order to again ensure and protect the homeland.
In addition, I would be open to the whole idea of oversight
and the question of whether there should be some outside
contracting as relates to the audit and oversight of dealing
with chemical companies and their compliance with a potential
chemical security bill.
There is a lot to be done, but the work is done
specifically to ensure that America is safe. We welcome these
witnesses to be partners in that journey that we must take. The
whole idea of homeland security is preventative and protective,
and I hope this hearing today will be an important step toward
protecting and securing America. The American people deserve
our best. I am looking forward again to today's hearings, and I
thank the witnesses for being here, and look forward, as I said
previously, to their testimony.
Ms. Jackson Lee. The Chair now recognizes the Ranking
Member of the subcommittee, the gentleman from California, for
an opening statement. Mr. Lungren, I yield.
Mr. Lungren. Thank you very much, Madam Chairwoman.
I felt it was most appropriate when our subcommittee met in
July to review the Department of Homeland Security's efforts to
implement our committee's bipartisan chemical security
legislation, which we enacted last year. I think it is very
appropriate for us to have this hearing today. I am
constrained, however, by an requirement to be in the Judiciary
Committee in a few minutes because I am the prime sponsor of
the bill dealing with judicial pay, and we have been working on
that for some time, and I have to be over there, and then I
will try and get back as quickly as possible.
The authority to regulate the security of our Nation's
chemical industry is not only historic, it is timely. Dangerous
chemicals stored or processed in high volume at chemical
facilities naturally would pose a serious threat to facility
workers and neighboring populations if they became a subject or
a target of terrorists. Chemical facilities seem to be at the
top of every terrorist target list. It was this concern over
the vulnerability of chemical facilities which prompted
Congress last year to adopt a compromise national risk-based
security plan for all chemical facilities.
As was stated by the Chairwoman, the Homeland Security
Department is currently making progress, I would call it
excellent progress, identifying our high-risk chemical
facilities. DHS estimates that 40,000 facilities will
eventually be assessed under their plan. They will be assessed
or Top-Screened for potential consequences and assigned to
risk-based tiers. And I mention risk-based tiers because that
is in keeping with our idea of a layered approach, and also
with an approach of giving greatest attention to the greatest
danger. These facilities which qualify as Tier 1, 2, and 3 will
be required to conduct a facility vulnerability assessment and
submit a Site Security Plan to address those vulnerabilities.
So I hope that we all understand the need to address the
sunset provision contained in last year's bipartisan chemical
security legislation. We should recognize, however, that the
chemical facilities are just beginning the assessment process
under current regulations, and that assessment is a critical
step and the first step in the Department's efforts to secure
our chemical facilities. So I would be very reticent to make
any substantial changes in the law before it has been fully
implemented as long as I am satisfied that the Department is
going forward full steam, and that the Department is receiving
cooperation from the industry involved. If we don't allow the
regulations to take effect, we won't be able to identify any
gaps or legislative deficiencies.
I am concerned about proposals to grant third-party rights
of action against chemical facilities. While I am a lawyer and
have been involved in litigation my entire life, I am not
always certain that that is the best way, the highest and best
use of our time and efforts to make ourselves more secure.
I am intrigued once again by an effort to have inherently
safer technology imposed. I think we learned much last year
when we had hearings on that subject as to what it is and what
it is not, what it can do and what it cannot do, what its
promise is and what its mere hope is. And I would hope that we
use some prudence as we approach that question.
My concern about legislative uncertainty arises also. I
would suggest that legislative uncertainty would undermine our
efforts to enlist the cooperation and support of the private
sector in securing their chemical facilities. The entire Top-
Screen assessment process relies on information supplied by the
owners of the chemical facilities. I would hope that they would
continue to work with us, and I would hope that we would engage
them in a cooperative effort, and one of confidence that we
have set certain rules, that they should abide by those rules,
and we will then assess the results of those after we have
completed the action.
So, once again, I hope that we will be able to achieve
bipartisanship as we have in the past, that we will learn from
what has been done thus far. And I would just say this, that I
have been impressed with the efforts organized under Colonel
Stephan since he came to the Department. He has gained my
confidence and, I believe, the confidence of the members of
this panel. And so I would very much like to see the results of
the activity that has been engaged in since we last passed the
law for this area. And while I have to leave for a period of
time, I have the written testimony here, and I hope to be back
for the question-and-answer period. And I thank the Chairwoman.
Ms. Jackson Lee. I thank the Ranking Member. I appreciate
his scheduling conflict. And both of us are facing that same
conflict, and particularly in case of a number of votes that
may take place. So thank you very much for your testimony.
The Chair now is very pleased to recognize the
distinguished gentleman from Mississippi, the Chairman of the
full committee, Mr. Thompson. And again, my appreciation for
his leadership on this issue and many issues dealing with the
security of our Nation.
Mr. Thompson. I thank the Chairwoman Jackson Lee for
holding this important hearing, and I look forward to the
testimony of our witnesses. As has already been said, this is
our second hearing this subcommittee has held on the subject of
chemical facility security in this Congress. Both Chairwoman
Jackson Lee and myself recognize the importance and
significance of chemical security. Fortunately, we also share
that sentiment with many committee members here also.
There has been a great deal of speculation from all sides
about the current regulations and any legislation to be enacted
in the future. I hope today's hearing will give us an
opportunity to move away from speculation and move toward
actual facts with those who have experience with chemical
security regulations.
One of my goals as Chairman of the full committee is to
ensure the American people that we are doing what we can to
secure America. While dangerous chemicals do pose a real
threat, we do not want to over exaggerate this issue. We also
want to avoid creating fear and confusion for the American
public. Instead, we want to ensure American freedom from fear
of a chemical attack.
In order for our committee to provide that freedom, we must
be effective in addressing any and all vulnerabilities. We can
do this by implementing smart, aggressive measures to protect
our chemical facilities and the populations surrounding them.
While the CFATS regulations have been in place for a few weeks,
it is important for us to receive feedback on the
implementation of the regulations from all sides of the issue.
In addition, the State of New Jersey has its own chemical
security regulations in place, and this committee can learn a
great deal from its experience. The CFATS regulations will
sunset in October 2009, and I feel strongly that Congress and
this committee should consider making these regulations
permanent.
I look forward to this discussion and the road ahead. I
thank the Chairwoman, and I yield back.
Ms. Jackson Lee. I thank the distinguished Chairman.
Let me remind our colleagues and members of this committee,
and other members of the subcommittee are reminded that under
the committee rules, opening statements may be submitted for
the record.
I welcome our panel of witnesses, and good morning to you
again. Our first witness, Colonel Bob Stephan, is the Assistant
Secretary For Infrastructure Protection at the Department of
Homeland Security. And we are certainly pleased of his service
and the approach to the commitment of protecting the Nation's
infrastructure that he has taken.
Colonel Bob Stephan was appointed to serve as the Assistant
Secretary of Homeland Security for Infrastructure Protection in
April 2005. In this capacity he is responsible for the
Department's efforts to catalogue our critical infrastructure
and key resources, and to coordinate risk-based strategies and
protective measures to secure them from terrorist attack. The
Chemical Security Compliance Division, which oversees the
implementation of CFATS, is within his office.
Our second witness, Mr. Clyde Miller, is the director of
corporate security at BASF Corporation, where, among other
activities, he helps ensure BASF compliance with the CFATS
regulations. Importantly, BASF has sites in the State of New
Jersey and complies with other regulatory frameworks.
Our third witness is Mr. Gerald C. Setley. He is the vice
president and Region 3 director for the International Chemical
Workers Union Council of the United Food and Commercial Workers
Union. Mr. Setley was hired in 1974 at what is now known as
Cabot Corporation as a research and development technician. He
spent the next 31 years working at various technical jobs at
Cabot. Through these years he has held numerous elected
positions in the local. Welcome.
Our fourth witness, Mr. Gary Sondermeyer, is the director
of operations at the New Jersey Department of Environmental
Protection. He will help to shed light on the regulation of
IST, as he has been intimately involved in that endeavor in New
Jersey. And our regards to Governor Corzine.
Our fifth witness is Dr. M. Sam Mannan, professor and
director of the Mary Kay O'Connor Process Safety Center at the
Artie McFerrin Department of Chemical Engineering at the Texas
A&M University System. He has done a great deal of research on
IST, and his thoughts are most welcome to the subcommittee. And
proudly, let me celebrate and commend Texas A&M for its
presence in the State of Texas and its leadership in educating
young people for the 21st century. Welcome.
Without objection, the witnesses' full statements will be
inserted in the record.
I now ask each witness to summarize his or her statement
for 5 minutes, beginning with Colonel Stephan.
STATEMENT OF BOB STEPHAN, ASSISTANT SECRETARY, INFRASTRUCTURE
PROTECTION, DEPARTMENT OF HOMELAND SECURITY
Colonel Stephan. Good morning, and thank you, Madam
Chairwoman, Chairman Thompson, Ranking Member Lungren, and
other distinguished members of this subcommittee. It is a
pleasure to appear before you today to discuss progress on the
Department's Chemical Facility Antiterrorism Standards
regulation, or CFATS. The recent release of the final Appendix
A, the chemicals of concern list, makes the discussion of this
important topic all the more timely.
As you know, the fiscal year 2007 DHS Appropriations Act
directed us to develop and implement a regulatory framework for
high-risk chemical plants. The Department published the CFATS
on April 9th, 2007. The following four principles guided the
development of this regulatory framework, and are very
important to take into account.
Number one is that integrated and effective partnerships
among all stakeholders, Federal, State, local government, and
private sector, are essential to securing our national critical
infrastructures, including high-risk chemical facilities.
Implementing this program means tackling a sophisticated and
complex set of issues related to identifying and mitigating
vulnerabilities, and putting security measures in place.
Consultation with industry, academic specialists, engineering
associations, and other organizations is fully necessary to
assist in the creation and implementation of this rule that
meets security goals while preserving the economic integrity
and vitality of the chemical sector, our largest export sector.
We also, by working closely with public experts such as New
York and New Jersey State government officials at various
levels, has helped us leverage vital knowledge and insight to
improve this regulation in its development and implementation.
Number two, the risk-based tiering approach ensures that
resources are appropriately focused. Not all facilities, of
course, present the same level of risk, and the greatest level
of scrutiny should be focused on those facilities that, if
attacked, could endanger the greatest number of lives.
Number three, reasonable, clear, and equitable performance
standards lead to enhanced security. The rule includes
enforceable risk-based performance standards based on the type
of severity or potential risk posed by terrorist organizations.
Facilities have the flexibility to select among appropriate
site-specific security measures that will effectively address
risk, subject to final Department approval, of course.
Recognition of the progress many companies have already
made in improving facility security leverages these
advancements, and is the fourth principle. Many responsible
companies have made significant capital investments in security
since 9/11, and building on that progress and implementing the
CFATS is essential to its success.
In December of 2006, the Department released an Advance
Notice of Rulemaking, seeking a comment on significant policy
issues and draft regulatory text. We received more than 1,300
pages of comments from more than 106 separate submitters. We
have carefully reviewed and considered these extensive comments
within the Interim Final Rule that was published, and we have
included a second public comment to the rule's Appendix A, the
Chemicals of Interest list. Getting more specifics on Appendix
A, the CFATS contains a list of chemicals of interest and their
security screening threshold quantities.
The public comment period for Appendix A closed on May 9th
of this year. We received more than 4,000 comments on a wide
range of subjects, such as which chemicals and thresholds the
Department should use, the treatment of chemical mixtures, and
the potential impact of Appendix A on certain types of
facilities not traditionally considered chemical facilities. We
studied these comments carefully, and conducted extensive
outreach with representatives of several stakeholder groups to
better understand their specific concerns.
After follow-on consultation, additional consultation with
a variety of technical experts, to include the FBI's Explosive
Unit, and the DHS Science and Technology Directorate's Chemical
Security Analysis Center, the Department published the final
Appendix A on November 20th of this year. The final appendix
lists approximately 300 chemicals of interest, and has included
chemicals based upon the consequences to public health and
safety associated with one or more of the following three
security issues: release, theft and diversion, and sabotage/
contamination.
Implementation and execution of this regulation requires us
to identify which facilities we consider high-risk as a
Department. To facilitate this, we developed a consequence-
based screening tool called the CSAT Top-Screen, which the
Chairwoman has very ably addressed. The Department requires
facilities that possess a chemical of interest at or above the
listed threshold screening quantity to complete the Top-Screen
within 60 calendar days of publication of the appendix, or upon
receipt of a chemical of concern beyond the publication of
Appendix A. Through this process we hope to identify facilities
that do and do not have a significant potential to be
considered high-risk.
If a facility is not screened out, DHS will make a
preliminary determination and place it in a risk-based tier.
Through this process we will continue a follow-on sequence of
site-specific vulnerability assessments, and finally Site
Security Plans that will undergo a DHS approval process.
In the security plans themselves, we promulgate 19 risk-
based performance standards through the rule. The standards
themselves are broad and designed to promote a great deal of
flexibility in this process. For example, a Tier 1 facility
with a release security issue, the restricted area perimeter
performance standards may involve establishing a clearly
defined perimeter that cannot be breached by a wheeled vehicle.
To meet this performance standard, the facility is able to
consider a vast number of security measures, and might
ultimately choose to install cable anchored in concrete block,
along with movable bollards at all active gates. Alternatively,
the facility might choose to landscape their perimeter with
large boulders, steep berms, water barriers, or other obstacles
that would thwart a wheeled vehicle. Again, as long as the
proposed measures are sufficient and according to our
standards, the Department would approve the plan.
Ma''am, as you mentioned, we have begun the implementation
phase of CFATS, beginning with a series of release of documents
to include the Interim Final Rule, now the Appendix A. We have
additionally ramped up implementation for approximately 100
specifically targeted high-risk facilities, where we are now
about to enter the Security Vulnerability Assessment phase with
respect to those facilities.
In terms of the Top-Screen process, since November 20th, we
have approximately 16,852 facilities that have registered in
the on-line Top-Screen analysis process as we speak, and 1,818
facilities have actually completed the Top-Screen submission.
To conclude, the Department is collaborating extensively
with the public to actively work toward achieving our
collective goals under the CFATS framework. We are also working
very collaboratively with a whole host and range of Federal,
State, and local government partners, as well as industry.
I would like to on a final note thank you, Chairman
Thompson, Ranking Member Lungren, and other members of this
subcommittee, for your solid leadership and support in every
step of this process, helping us push a success forward and
helping us implement this program in the way you intended as
quickly as possible. Thank you for your time.
Ms. Jackson Lee. Colonel, thank you very much for your
testimony.
[The statement of Colonel Stephan follows:]
Prepared Statement of Robert B. Stephan, Assistant Secretary,
Infrastructure Protection National Protection and Programs Directorate
Thank you, Chairwoman Jackson-Lee, Congressman Lungren, and
distinguished Members of the Subcommittee. It is a pleasure to appear
before you today to address progress on the implementation of the
Department's authority over security at high-risk chemical facilities
through CFATS, the Chemical Facility Anti-Terrorism Standards. The
recent release of the final Appendix A to CFATS makes the discussion of
this important topic all the more timely.
Chemical Security Regulations
The Fiscal Year 2007 Department of Homeland Security Appropriations
Act directed the Department to develop and implement a regulatory
framework for high-risk chemical facilities. The Department published
the Chemical Facility Anti-Terrorism Standards on April 9, 2007.
Specifically, Section 550(a) of the Act authorizes the Department to
require high-risk chemical facilities to complete Security
Vulnerability Assessments (SVAs), develop Site Security Plans (SSPs),
and implement protective measures necessary to meet risk-based
performance standards defined by the Department of Homeland Security.
The following core principles guided the development of this
regulatory structure:previously
(1) Securing high-risk chemical facilities represents an
immense undertaking that involves a national effort, including
all levels of government, industry, and the public. Integrated
and effective partnerships among all stakeholders--Federal,
State, local, and private sector--are essential to securing our
national critical infrastructures, including high-risk chemical
facilities. Implementing this program, which is focused on
securing high-risk facilities, means tackling a sophisticated
and complex set of issues related to identifying and mitigating
vulnerabilities and setting security goals. This requires a
broad spectrum of input. Consultation with industry experts,
academic specialists, engineering associations, and non-
government organizations was necessary to assist in creating
and effectively implementing a rule that accomplishes necessary
security goals while ensuring economic viability of the sector.
By working closely with public experts, such as New York and
New Jersey State officials, we leveraged vital knowledge and
insight to improve the regulation.
(2) Risk-based tiering ensures that resources are appropriately
deployed. Not all facilities present the same level of risk,
and the greatest level of scrutiny should be focused on those
facilities that, if attacked, could endanger the greatest
number of lives.
(3) Reasonable, clear, and equitable performance standards lead
to enhanced security. The rule includes enforceable risk-based
performance standards based on the type and severity of
potential risks posed by terrorists. Facilities have the
flexibility to select among appropriate site-specific security
measures that will effectively address risk. The Department
will approve a facility's Site Security Plan if it satisfies
the CFATS performance standards. If a Site Security Plan does
not meet the CFATS performance standards, DHS will disapprove
the plan and work with the facility to revise and resubmit an
acceptable plan.
(4) Recognition of the progress many companies have already
made in improving facility security leverages those
advancements. Many responsible companies have made significant
capital investments in security since 9/11, and building on
that progress in implementing the CFATS program raises the
overall security baseline of high-risk chemical facilities.
Public and private stakeholder input was critical to success in
developing the regulatory framework. In December 2006, the Department
released an Advance Notice of Rulemaking, seeking comment on
significant policy issues and draft regulatory text. We received more
than 1,300 pages of comments from more than 106 separate submitters. We
carefully reviewed and considered these extensive comments. Within the
Interim Final Rule, we included a second public comment period specific
to the rule's Appendix A, the Chemicals of Interest List.
Appendix A: Chemicals of Interest List
Appendix A to the CFATS contains a list of chemicals and their
Screening Threshold Quantities. Possession of one or more of these
chemicals of interest at or above the specified quantity triggers a
requirement for the facility to complete and submit an online
consequence assessment tool known as a Top-Screen. The data gathered
through the Top-Screen informs the Department's preliminary
determination of the facility's level of risk and the potential need
for the facility to comply with the substantive requirements of the
CFATS.
The public comment period for Appendix A closed on May 9, 2007. We
received more than 4,000 comments on a wide range of subjects, such as
which chemicals and thresholds the Department should use, the treatment
of chemical mixtures, and the potential impact of Appendix A on certain
types of facilities not traditionally considered chemical facilities,
such as farms and universities. We studied these comments carefully and
conducted extensive outreach with representatives of several
stakeholder groups to better understand their specific concerns.
After careful consideration of the comments and consultation with a
variety of technical subject matter experts, including the Federal
Bureau of Investigation's Explosives Unit and the DHS Science and
Technology Directorate's Chemical Security Analysis Center, the
Department published the final Appendix A in the Federal Register on
November 20, 2007. The final Appendix A listed approximately 300
chemicals of interest, including common industrial chemicals such as
chlorine, propane, and anhydrous ammonia, as well as specialty
chemicals, such as arsine and phosphorus trichloride. The Department
included chemicals based on the consequence associated with one or more
of the following three security issues:
(1) Release--toxic, flammable, or explosive chemicals that have
the potential to create significant adverse consequences for
human life or health if intentionally released or detonated;
(2) Theft/Diversion--chemicals that have the potential, if
stolen or diverted, to be used or converted into weapons; and
(3) Sabotage/Contamination--chemicals that, if mixed with other
readily available materials, have the potential to create
significant adverse consequences for human life or health.
The Department established a Screening Threshold Quantity for each
chemical based on its potential to create significant adverse
consequences for human life or health.
Chemical Security Assessment Tools
Implementation and execution of the CFATS regulation requires the
Department to identify which facilities it considers high-risk. To
facilitate this, the Department developed a consequence-based screening
tool called the Chemical Security Assessment Tool (CSAT) Top-Screen.
The Top-Screen builds on the assessment tool referred to as the Risk
Analysis and Management for Critical Asset Protection (RAMCAP), which
the Department developed with industry input.
The Department requires facilities that possess a chemical of
interest at or above the listed Screening Threshold Quantity to
complete the Top-Screen within 60 calendar days of the publication of
Appendix A (or within 60 calendar days of coming into possession of a
chemical of interest at or above the applicable Screening Threshold
Quantity after publication of Appendix A). Through the Top-Screen
process, the Department can identify which facilities do not have a
significant potential to be high risk and can then ``screen out'' those
facilities.
If a facility is not screened out during the Top-Screen process,
the Department will make a preliminary determination that a facility is
high-risk and assign the facility to a preliminary risk-based tier. All
high-risk facilities must then complete the CSAT Security Vulnerability
Assessment (SVA). Results from this online tool inform the Department's
final tier determination of a facility's risk level.
All high-risk facilities fall into one of four risk-based tiers.
High-risk facilities will be required to develop Site Security Plans
addressing their identified vulnerabilities. A high-risk facility's
security measures must meet the performance standards. The higher a
facility's risk tier, the more robust the measures it will need to
incorporate and the more frequent and rigorous its inspections will be.
Inspections will both validate the adequacy of a facility's Site
Security Plan and verify the implementation of the plan's measures.
Risk-Based Performance Standards
CFATS promulgates nineteen risk-based performance standards for
compliance. The standards themselves are broad and designed to promote
a great deal of flexibility in how a facility approaches meeting
standards applicable to it. Although all high-risk facilities must
comply with the risk-based performance standards, each tier requires
appropriate levels of security for each security issue. For example, a
Tier 1 facility with a release hazard security issue would carry
different expectations for perimeter control, personnel access,
intrusion detection, and all other standards applicable to that
security issue than lower tier facilities.
How the facility chooses to meet the required performance standard
in its Site Security Plan is at the facility's discretion. In the
example of the Tier 1 facility with a release hazard security issue,
the ``restrict area perimeter'' performance standard at the Tier 1
level may involve, for example, the facility establishing a clearly
defined perimeter that cannot be breached by a wheeled vehicle. To meet
the performance standard, the facility is able to consider a vast
number of security measures, and might ultimately choose to install
cable anchored in concrete block along with movable bollards at all
active gates. As long as the specific measures are sufficient to meet
the performance standard, the Department would approve the plan.
Alternatively, the facility might choose to ``landscape'' their
perimeter with large boulders, steep berms, streams, or other obstacles
that would thwart a wheeled vehicle. Again, as long as the proposed
measures are sufficient, the Department would approve this plan.
Phased Approach to CFATS Implementation
The Department is using a phased approach for implementation of the
CFATS regulation. In June of 2007, the Department began CFATS
implementation at certain facilities deemed likely to present highest-
risk. The release of Appendix A on November 20, 2007, triggered
implementation at the Nation's remaining high-risk facilities in a
fashion sequential to Phases 1(a) and (b) discussed below. The phased
approach will also permit a time of learning, particularly for our
inspectors, as well as for industry. What we learn in the earlier
phases can then shape further implementation of the program and ensure
consistency across the country. The following summarizes our current
activities:
On June 8, 2007 the Top-Screen became available
online, and the CVI program went into effect. On June 11, we
contacted the State Homeland Security Advisors and the Chemical
and Oil and Natural Gas Government Coordinating Councils and
Sector Coordinating Councils to brief them on program
implementation.
The week of June 11, 2007 marked the beginning of
Phase 1(a), in which the Department asked select facilities it
believed to be high-risk, given available information, to
complete the Top-Screen. Following initial outreach at the
corporate level, the Department sent letters to approximately
50 facilities, informing them of their selection for
participation in Phase 1, and advising those facilities of the
requirement to submit a Top-Screen. The facilities were to
complete the Top-Screen in advance of the final Appendix A with
technical assistance from Department inspectors. The
Department, after receiving the final Phase 1(a) Top-Screens in
prompt fashion, is currently reviewing these submissions for
preliminary high-risk determinations. If those facilities are
determined to be high-risk, the Department will provide written
notification, and then engage these facilities directly on the
CSAT Security Vulnerability Assessment (SVA).
In October 2007, Phase 1(b) began, in which
approximately 50 additional facilities believed to be high-risk
were contacted with the request they begin their CFATS
requirements in advance of the release of the final Appendix A.
A number of the Phase 1(b) facilities have already submitted
Top-Screens to the Department.
November 20, 2007, the date of the publication of the
final Appendix A, initiated Phase 2, the full implementation of
CFATS. Publication of the final Appendix A officially started
the program for all facilities that possess chemicals of
interest at or above the listed Screening Threshold Quantities.
During Phase 2, such facilities will complete the Top-Screen,
and those facilities subsequently determined to be high-risk
will receive preliminary tiering decisions and will then be
instructed to complete SVAs. Upon receipt, the Department will
review the submitted SVAs for purposes of final tiering
determinations, and subject facilities will be asked to develop
SSPs. DHS will subsequently review those SSPs, and conduct on-
site facility inspections to ensure a facility's compliance
with their submitted plan.
Outreach and Partnership Efforts
Since the release of the Interim Final Rule in April, the
Department has made a concerted effort to publicize the rule and make
sure that our security partners are aware of the CFATS and its
requirements. As part of a dedicated outreach program, the Department
has presented at numerous security and chemical industry conferences,
participated in a variety of other meetings of relevant security
partners, issued numerous press releases regarding the regulations,
published and distributed full copies of the regulations as well as
various facts sheets summarizing critical aspects of the regulations,
and developed and continually updated a DHS.gov Chemical Security
website. We believe these efforts are definitely having an impact. As
of November 25, 2007:
12,267 facilities have registered in the CSAT process;
2,079 facilities are in some phase of Top-Screen
completion; and
1,197 facilities have submitted a completed Top-
Screen.
Additionally, the Department intends to focus efforts on fostering
solid working relationships with State and local officials and first
responders in jurisdictions with high-risk facilities. To meet the
risk-based performance elements under CFATS, facilities are likely to
develop active, effective working relationships with local officials in
the areas of delaying and responding to a potential attacks and a clear
understanding of roles and responsibilities during an elevated threat
situation. As stated in our guiding principles, our vision is that all
stakeholders participate in the planning and implementation of
protective security measures around high-risk chemical facilities.
Conclusion
The Department is collaborating extensively with the public to
actively work toward achieving our collective goals under the CFATS
regulatory framework. In almost every case, industry has voluntarily
done a tremendous amount to ensure the security and resiliency of its
facilities and systems. As we begin to fully implement the chemical
facility security regulations, we will continue to work as partners
with industry, States and localities, and the Congress to get the job
done.
Given the nature of the terrorist adversary we face, we simply
cannot afford an ``us-versus-them'' stance toward the Chemical Sector
but, instead, must work together to implement a risk-and performance-
based approach to regulation and, in parallel fashion, continue to
pursue the voluntary programs that have already borne considerable
fruit. In doing so, we look forward to collaborating with the Congress
to ensure that the chemical security regulatory effort achieves success
by reducing risk throughout the chemical sector. In addition to our
Federal Government partners, success is dependent upon continued
cooperation with our industry and State and local government partners
as we move towards a more secure future.
Thank you for holding this important and timely hearing. I would be
happy to take any questions you might have.
Ms. Jackson Lee. I now recognize Mr. Miller to summarize
his statement for 5 minutes.
STATEMENT OF CLYDE D. MILLER, DIRECTOR, CORPORATE SECURITY,
BASF CORPORATION
Mr. Miller. Good morning, Chairwoman Jackson Lee, Chairman
Thompson, and members of the subcommittee. I am Clyde Miller,
director of corporate security for BASF Corporation, and I am
responsible for all security functions at our U.S. chemical
facilities. For BASF there is no greater priority than the
safety and security of our employees and the communities that
surround our sites.
I am pleased to provide feedback on the DHS Chemical
Facility Antiterrorism Standards, also known as CFATS, and to
comment on possible legislative action. To that end, I will
emphasize three points.
Number one, DHS has acted aggressively to create this
groundbreaking program. Number two, there are several ways that
Congress can help improve the implementation of the program.
Number three, the discussion draft legislation does not appear
to build on the significant progress being made, and may cause
unnecessary duplication.
After 6 years of extensive debate, Congress authorized a
comprehensive national chemical security program. The CFATS
program shares elements with programs established by several
States, most notably New Jersey, but is by far more
comprehensive and demanding. In just over a year, DHS
successfully issued demanding security regulations that would
require over 50,000 facilities to complete a screening
assessment, known as Top-Screen, by next month. Throughout
2008, DHS will inspect every regulated facility and evaluate
security enhancements against 19 stringent performance-based
standards. Fines and facility shutdowns await those who do not
comply.
While DHS has gotten off to an impressive start, the new
CFATS program is not without its problems, and Congress can
help in several ways. First, makes information protection more
workable. Clearly, security-related information needs to be
carefully protected from public release; however, under the
current program it is difficult to share certain information
even within our own company.
Second, Congress needs to provide adequate funding. DHS
staff has demonstrated outstanding commitment and effort, but
they need more resources. We urge Congress to provide DHS with
the necessary resources to handle the workload.
And third and most importantly, allow DHS enough time to do
the job Congress has given it. After 6 years, we finally have
strong regulations in place. While the current law has a 3-year
sunset, Congress should give DHS sufficient time to implement
the program before making significant changes. We are concerned
that if enacted, the draft would slow the ambitious timetable
DHS has established and the facilities are racing to meet.
Billions of dollars will likely be spent to comply with the new
rule, and companies need to know the requirements are not going
to change in midstream. Prematurely overhauling them will
create massive uncertainty, and could delay security
enhancements.
Congress should follow the Hippocratic oath in any new
legislation: First, do no harm. The draft legislation does not
recognize the progress made under CFATS, and would require
companies like BASF to do everything all over again, and we
just do not believe that is a wise use of public or private
resources.
Turning to inherently safer approaches, Congress recognized
last year that neither IST nor any other specific security
measures are a silver bullet. Under CFATS, companies can lower
their risk profile through process changes, and thus become
subject to lower-level performance standards. IST is complex
and full of risk trade-offs and unintended consequences. These
choices shouldn't be made from an office in Washington. Rather
BASF believes process safety experts at chemical facilities,
working in conjunction with security experts, are in the best
position to weigh all options and decide on the best approach
to maximize safety and security.
The discussion draft, by contrast, would require all high-
risk facilities to conduct an IST assessment and implement
inherently safer methods when certain conditions are met. While
these conditions might seem to protect companies from
unwarranted or harmful mandates, we foresee long and
complicated debates about what exactly is necessary and what is
feasible.
In the short time since CFATS was finalized, there has been
much criticism of the regulations from all sides. As one
responsible for complying with these regulations, I can assure
you these rules are placing considerable demand on regulated
facilities.
To conclude, the discussion draft can serve a useful
purpose by identifying issues with the current program. We look
forward to working with you and your staff as the discussion
moves forward. BASF shares Congress's desire for prompt action
after so many years of debate. Please support DHS with more
resources so it can get the job done, and support us by backing
implementation of CFATS and not changing course in midstream.
Thank you again for the opportunity to appear before you. I
look forward to answering any questions you may have.
Ms. Jackson Lee. Mr. Miller, thank you very much for your
testimony.
[The statement of Mr. Miller follows:]
Prepared Statement of Clyde D. Miller
Good morning, Chairwoman Jackson-Lee, Ranking Member Lungren, and
Members of the Subcommittee. My name is Clyde D. Miller, and I am the
director of corporate security for BASF Corporation. At BASF, I am
responsible for all security functions at our chemical facilities in
the United States, a number of which fall under the Chemical Facility
Anti-Terrorism Standards (CFATS) issued by the Department of Homeland
Security (DHS). I appreciate the opportunity to appear before the
Subcommittee this morning to provide feedback on DHS's performance thus
far, and to ask that the current program be given a chance to work.
BASF Corporation is the North American affiliate of BASF AG,
Ludwigshafen, Germany. BASF is the world's leading chemical company:
The Chemical Company. Our portfolio ranges from chemicals, plastics,
performance products, agricultural products and fine chemicals to crude
oil and natural gas. As a reliable partner to virtually all industries,
BASF's high-value products and intelligent system solutions help its
customers to be more successful. BASF develops new technologies and
uses them to meet the challenges of the future and open up additional
market opportunities. We combine economic success with environmental
protection and social responsibility, thus contributing to a better
future. BASF presently operates facilities, including manufacturing
sites, research facilities, and distribution centers, in more than half
of the fifty states.
For BASF and the chemical industry as a whole, there is no greater
priority than the safety and security of our employees and the
communities that surround our sites. It is in this vein that we have
striven to work within our trade associations \1\ and government at all
levels to safeguard our facilities from attack and to develop
procedures that allow us to respond quickly and efficiently to
emergencies should they occur. As my statement explains:
---------------------------------------------------------------------------
\1\ BASF is a member of a number of trade associations that
consider site security to be a top priority, including the American
Chemistry Council, the Consumer Specialty Products Association,
CropLife America, the National Petrochemical and Refiners Association,
and others. These groups have worked closely together and with
government agencies in support of chemical plant security legislation
and regulation.
---------------------------------------------------------------------------
Chemical facilities in the United States are moving
quickly to implement the regulatory program authorized last
year by Congress and subsequently created by DHS.
There are ways to improve implementation of the
program, and Congress can help by, for example, increasing
funding for DHS and allowing enough time for the program to be
implemented.
The discussion draft legislation now under
consideration would only hinder the progress made thus far and
cause unnecessary duplication. We recommend that, before
Congress proposes significant changes, it determine exactly
what, if anything, is lacking in the existing program.
We further recommend against mandating inherently
safer technology, because process safety experts at chemical
facilities--working in conjunction with security experts--are
in the best position to weigh all options and decide on the
best approach to maximize safety and security.
I. DHS Has Acted Aggressively to Establish a Comprehensive Regulatory
Program from Scratch. Facilities Are Now Moving Quickly to Comply.
After six years of debate, last October Congress finally enacted
Section 550 of the FY07 DHS Appropriations Act,\2\ the law that
authorized the new CFATS rules.\3\ Under an intense spotlight of public
scrutiny and Congressional oversight, DHS and chemical facilities are
acting swiftly to implement a groundbreaking program--the first
national chemical security regulatory program anywhere in the world.
While this program shares elements with the programs established by
several states--most notably New Jersey--the CFATS program is, by far,
more comprehensive and demanding than any of them. So, even though BASF
and the 2000 other American Chemistry Council (ACC) member company
facilities have already invested more than $5 billion to enhance
security through the ACC Responsible Care/ Security Code,
the DHS rules leave little doubt that more action will be required of
those facilities that are deemed to be high risk under those rules. In
fact, DHS anticipates over $8 billion of implementation costs during
the first eight years of its program--costs we will certainly bear in
addition to those we have already incurred. Keeping security measures
innovative and staying a step ahead of terrorists is the right thing to
do. Beyond ACC members, thousands of others facilities nationwide will
also have to step up efforts to meet these stringent requirements.
---------------------------------------------------------------------------
\2\ Pub. L. No. 109-295, Sec. 550 (2006).
\3\ 6 C.F.R. Part 27, 72 Fed. Reg. 17688 (April 9, 2007), 65396
(Nov. 20, 2007).
---------------------------------------------------------------------------
In just over a year, DHS has successfully completed the issuance of
comprehensive security regulations that will, by January 2008, require
over 50,000 facilities nationwide to complete a DHS screening
assessment known as ``Top-Screen.'' Using risk-based methods, DHS will
then be able to quickly determine which of these facilities would pose
a high risk if subjected to a terror attack, and thus warrant action.
Through informed decisions based upon Top-Screen, DHS will designate
thousands of facilities as being high-risk and thus subject to
regulation under CFATS.
Throughout 2008, these thousands of high risk facilities will be
required to assess their vulnerabilities, develop site security plans
and, with close DHS scrutiny, minimize the risks they pose by
implementing layered security measures. Layered security--based upon
the site's risk tier and the vulnerabilities its assessment has
identified--will require consideration and implementation of varied
measures that in combination will reduce the threat of an attack or
mitigate an attack that might occur. These measures include: perimeter
security enhancements; surveillance and monitoring; security officers;
secured gates; restricted access; employee, contractor and visitor
background checks; specific protection against both inside and outside
threats of theft and diversion; cyber-security; inspections of
incoming/outgoing shipments; customer screening; training; drills; and
emergency response. DHS will inspect every regulated facility and
evaluate these security enhancements against 19 stringent performance
based standards. Fines and facility shutdowns will await those who do
not comply.
II. What Could DHS Do Better, and How Could Congress Help?
While DHS has gotten off to an impressive start, the new CFATS
program is not without its problems. Congress could help in several
ways.
A. DHS Needs to Better Coordinate Its Own Programs
DHS's eagerness to show progress has already clashed with the new
CFATS program. Just this fall, as many of our companies were already
working closely with the regulatory staff to accelerate implementation
of CFATS, another component of DHS initiated the ``Enhanced Critical
Infrastructure Plan'' (ECIP), an outreach effort to encourage
facilities to voluntarily take additional security action. While well
intended, the ECIP staff often are going to the same sites that are
already implementing the regulatory program. Unfortunately, the ECIP
program is based upon a different tiering system and uses a different
vulnerability assessment methodology and different levels of
information protection. This conflict has created significant confusion
among, and placed competing demands on, facility security personnel.
This is the sort of duplication scenario that must be avoided.
B. Making Information Protection More Workable
Clearly, security-related information needs to be carefully
protected from public release. And yet, company staffs have to be able
to do their jobs, and security is part of the job description of an
increasing number of our staff. Thus, information protection requires a
careful balance.
Section 550(c) instructed DHS to give sensitive information
protections ``consistent with'' the ``Sensitive Security Information''
or ``SSI'' rules that DHS uses now to protect information about
transportation security.\4\ DHS responded in CFATS by creating a new
category of protected information that DHS has labeled ``Chemical-
terrorism Vulnerability Information'' or ``CVI.'' In most respects, we
think DHS got it right with CVI, at least in the rules. But this
summer, DHS released a CVI Procedural Manual that goes far beyond what
is necessary.\5\ The manual requires company staff with access to CVI
to go through web-based training and to sign a nondisclosure agreement
(NDA) that is more restrictive even than the NDA that is required to
have access to national security classified information. Chain of
custody recordkeeping is also required. And all this applies even when
people are only getting access to their own company's information. This
means that if my CEO asks specific questions about security measures we
have enacted at a particular facility, I cannot answer his questions
without him having to take this training and sign the NDA, a totally
unnecessary process. In its facility security program, the Coast Guard
simply ``assumed that the owner/operator's security interest in this
information will be sufficient to prevent unauthorized disclosure.''
\6\ DHS should adopt the same approach. It could do this by amending
the SSI rules to apply to land-based security information. Congress
could help here by revising Section 550(c) to speak of ``identical''
protections.
---------------------------------------------------------------------------
\4\ Pub. L. No. 109-295, Sec. 550(c).
\5\ DHS, Procedural Manual: Safeguarding Information Designated as
Chemical-Terrorism Vulnerability Information (CVI) (June 2007),
available at http://www.dhs.gov/xlibrary/assets/
chemsec_cvi_proceduresmanual.pdf.
\6\ U.S. Coast Guard, Navigation and Vessel Inspection Circular No.
10-04, Encl. (3), Sec. 4.b (Aug. 20, 2004), available at http://
www.uscg.mil/hq/gm/mp/pdf/NVIC_10-04.pdf.
---------------------------------------------------------------------------
C. Congress Needs to Provide Adequate Funding to Support Full
Implementation of the CFATS Requirements
While CFATS requires considerable action from chemical facilities
in a short period of time, it also will place enormous burdens on DHS
to implement the rules. DHS personnel will be required to conduct
reviews of site-specific vulnerability information and site security
plans, and to make site visits at each regulated facility. This will
include assessing how each facility has addressed the applicable risk-
based performance standards for facilities in its risk tier--a complex,
site-specific, judgmental task.
With DHS's own estimates of at least 5,000 regulated facilities,
its 30-person inspection staff will be sorely tested. We think
implementation of CFATS requirements necessitates a significant
increase of staffing resources--certainly well beyond what can be
reasonably expected from the current situation. While DHS staff has
demonstrated outstanding commitment and effort to date, they clearly
will need more resources. We urge Congress to provide DHS with the
necessary resources to handle the workload and to ensure that chemical
facility security is properly implemented in a timely manner.
D. Allow DHS Enough Time to Do the Job Congress Has Given It
In the short period of time since CFATS was finalized, a steady
stream of misguided criticism has been directed at the rule and our
industry. Arguments have been wide ranging--some have said the rule
does not go far enough, while other sectors have sought exemptions for
themselves, arguing that the rule went too far.\7\ Some say that few
states have taken action, while others say the rule undermines states'
rights. And the discussion draft seems to indicate that some believe
wholesale replacement of the rule is needed even as it is being
implemented. I can assure you that the program that is currently in
place establishes considerable demands on companies to comply.
---------------------------------------------------------------------------
\7\ While we cannot respond to every criticism of the rule, BASF
would like to point out that critics of CFATS Appendix A are frequently
wrong. For example, 1-ton chlorine canisters are not exempted; chlorine
contained in transportation packaging (e.g., 1-ton canisters) is
covered at 500 lbs--less than what DHS originally proposed and lower
than the EPA RMP threshold. Also, DHS was right to use the RMP
thresholds for release chemicals (not 75% of the thresholds, as
proposed) because the consequences of a release are the same regardless
of the cause. Coverage is still greater under CFATS than under the RMP
rule because, unlike RMP, CFATS does not focus only on the single
process with the greatest potential offsite consequences from a
release.
---------------------------------------------------------------------------
It is important to note that BASF and all ACC members did not
hesitate to act, and we continue to lead by example. The business of
chemistry has been implementing security measures for years. We have
assessed our vulnerabilities, prioritized the risks and significantly
tightened security at our facilities. We also asked Congress for
legislation that empowered DHS to issue and implement tough
regulations--and that has happened. Now, we respectfully ask that
Congress give DHS sufficient time to put the program in place.
Within the next six months, thousands of facilities will be
conducting detailed vulnerability assessments required by CFATS. These
sites will use these assessments to draft site security plans that
describe security enhancements, which very likely will require an
increase in capital improvements. Those plans should all be submitted
to DHS before the end of next year. The current requirements provide a
clear path of action, the timing for completing the steps of the
program, including inspections, and a review process that requires
sites to revisit their situation and assess whether any changes to
their security systems are needed.
I respect this Subcommittee's oversight responsibility and
understand that the legislation enacted last year has a three year
sunset provision. But I also hope Members will agree that our first
priority should be to enhance security at sites nationwide as soon as
practicable. CFATS is meeting this priority. Give DHS and the industry
enough time to implement the program and then determine what gaps
remain. Congress will have the assurance that nationwide, the security
at chemical facilities will have been significantly upgraded during the
process. Members will also have the benefit of seeing what works in the
program and whether anything will need to be adjusted.
III. The Discussion Draft Legislation Would Only Hinder Progress
A. Build on the Solid Accomplishments of the Past Year
BASF has had limited time to review the discussion draft, but we
are concerned that it seems to make no reference to Section 550, except
to repeal it on page 50. The draft appears not to acknowledge that the
CFATS rules have been issued, or that tens of thousands of facilities
are hard at work starting to comply. For example, while the bill refers
to how DHS should evaluate the efforts of facilities under ``other
provisions of law'' such as the Maritime Transportation Security Act
(MTSA) or the Safe Drinking Water Act (SDWA) (pp. 19--20), that
paragraph does not mention Section 550, even though that statute is
more demanding than either the MTSA or SDWA.
As noted above, we would prefer Congress give more time for the
existing program to be implemented before making changes. Certainly,
though, any proposal must adequately acknowledge all that has happened
over the past year. While it is unusually short by modern standards,
Section 550 clearly meets the nation's security needs, and DHS has for
the most part used its discretion appropriately to flesh it out. When
considering surgery on the existing program, Congress should follow the
Hippocratic Oath: First, do no harm. On that score, the discussion
draft could, indeed, be harmful.
First, if enacted, the draft would slow down the ambitious
timetable that DHS has established and that facilities are racing to
meet. DHS estimates that billions of dollars will be spent to comply
with the new rule as companies procure funding from management for
significant capital improvement projects to meet CFATS's performance
standards. This funding of projects will begin in 2008. Companies need
to know that the requirements are not going to be changing in mid-
stream. Completely rewriting those requirements will create massive
uncertainty and could delay security enhancements.
Second, passing a wholly new law would also divert DHS from the
focus it very much needs to meet its own deadlines. Passing a major new
bill could paralyze DHS as the agency shifts what is already an
overstretched staff to rewriting its rules to match the new law's
terminology and definitions.
Third, and most frustrating, the draft would require companies like
BASF to do everything all over again. Under the CFATS timetable
established under Section 550 (which this bill would leave in place
until October 2009), we expect to be submitting site security plans to
DHS for approval by the end of 2008. We would then hear from DHS around
February 2009, and would spend the rest of that year finishing
implementation of any long-term security measures and being inspected.
Under this bill, by October 2009, DHS would unveil its new regulations,
and we would then have six short months to submit new vulnerability
assessments and site security plans (for top-tier facilities). Once
those documents were finalized, we could well start spending more money
redoing all the work that had just been approved. This is not a fair or
productive use of private or governmental resources.
Again, before Congress proposes significant changes, it should
determine exactly what, if anything, is lacking in the CFATS program,
and then fix those targeted areas. In doing so, it should, wherever
possible, use the concepts and terminology already written into law by
DHS, to retain the benefits of existing work and minimize any
unnecessary transition problems.\8\
---------------------------------------------------------------------------
\8\ Most important, Congress should use the same definitions of
security measures and the same risk-based performance standards as
CFATS, unless Congress has identified problems with them. In these and
many other respects, CFATS is actually superior to the draft bill. For
example, in CFATS (and under MTSA), DHS has recognized that personnel
surety screens need to encompass contractors and visitors, not just
employees. But the bill just repeats the phrase ``employee background
checks'' used in previous legislation (p. 3). Also, CFATS recognizes
that chemicals might be stolen or diverted to make chemical weapons or
IEDs, not just be ``released,'' yet the latter is the only basis for
listing a chemical under the discussion draft (p. 4).
---------------------------------------------------------------------------
B. The Discussion Draft's IST Mandate Is Bad Policy
If considerations of inherent safety drove all Congressional
action, this hearing would be held in a bunker or some other safe and
undisclosed location outside Washington. Congress and the Capitol
building are icons of America that remain attractive targets for
terrorists. Yet six years after 9/11, Congress understandably continues
to maintain a high profile in the nation's capital. Clearly removing
that risk by relocating Congress out of Washington would be safer for
Congress, and for the surrounding DC community, but it would have
serious public policy ramifications for the nation.
Yet we all agree that protective steps have been taken to lower the
risk and improve the security of this body. Measures to prevent an
attack have been stepped up and mitigation measures in the event of an
attack have also been substantially improved. Ultimately, an attack
could still be attempted, but risk-based measures have been implemented
to reduce the probability of a successful attack, and these measures
are constantly being reviewed and improved.
This is the same approach used every day in the chemical industry.
Inherently safer approaches have long been a core element of process
safety, plant design, continuous improvement and sound business
practices. Like other leading chemical companies, BASF considers
inherently safer approaches continuously, and has for years. Inherently
safer approaches, somewhat misleadingly referred to as ``inherently
safer technology'' (IST), involve designing processes that avoid
hazards, rather than trying to control them. It has four elements:
Minimization/Intensification--Using smaller quantities
of hazardous substances;
Substitution--Replacing a particular material with a
less hazardous material;
Moderation/Attenuation--Lowering operating
temperatures or pressures that provide less hazardous
conditions; and
Simplification/Error Tolerance--System designs that
eliminate or tolerate operating errors, making the plant more
user-friendly and reliable.
While these statements are clear and straightforward, like most
things in life, the devil is in the details. IST just is not that
simple in actual application. For example, it is almost always easier
to select an inherently safer approach when designing a process than to
apply it to an existing process. In lay terms, you cannot simply begin
using diesel fuel in a car that runs on gasoline, but you can design a
car to run on diesel. As another example, reducing inventories of a
chemical on site might appear to be inherently safer. Yet security
protection is typically at its greatest within a facility, whereas
reducing inventories may mean that more of the chemical has to be in
transit, where securing it is more complex. Improving the layers of
security where the products are made and stored may provide the best
means of reducing potential risks.
The current regulations provide incentives to consider inherently
safer approaches where feasible. CFATS will help drive implementation
of inherent safety across the nation's chemical sector, because a
facility that lowers its risk profile through process changes can move
itself to a lower risk tier, and then become subject to less demanding
(and less expensive) security performance standards. I can assure you
that BASF has made process changes to minimize its vulnerabilities.
But in Section 550, Congress wisely chose not to allow DHS to
mandate IST--or any other specific security measure. No single security
measure is the only right one and Congress recognized that fact. IST is
complex and full of risk-risk tradeoffs and unintended consequences.
Rather than making those decisions from an office in Washington, BASF
believes process safety experts at chemical facilities--working in
conjunction with security experts--are in the best position to weigh
all options and decide on the best approach that will maximize safety
and security.
The discussion draft, by contrast, would require all high-risk
facilities to conduct an IST assessment and implement inherently safer
methods when four conditions are met.\9\ While those conditions might
seem to protect companies from unwarranted or fiscally ruinous
mandates, we foresee long and complicated debates about exactly what is
``necessary for the facility to meet [its] security performance
requirements,'' what ``can feasibly be incorporated into the operation
of the facility,'' and what ``would not significantly and demonstrably
impair [our] ability. . .to continue the business of the facility.''
\10\ And would any of these conditions apply if the proposed mandate
would prevent BASF from making the particular product produced at a
facility? (The change might be feasibly incorporated, and might not
shut down the plant, but yet might spell the end of a product.) \11\
---------------------------------------------------------------------------
\9\ Facilities must implement IST if it:
is ``necessary for the facility to meet the security
performance requirements for the facility's risk tier'';
``would significantly reduce the risk of death, injury, or
serious adverse effects to human health or the environment'' from a
terrorist release;
``can feasibly be incorporated into the operation of the
facility''; and
``would not significantly and demonstrably impair the
ability of the owner or operator of the facility to continue the
business of the facility.''
Discussion draft at 43--44 (new 6 U.S.C. Sec. 2110(c)).
\10\ Id.
\11\ Speaking of protecting important products, we are also
concerned that inherently safer approaches that also happen to be
valuable trade secrets would have to be disclosed by DHS under the
draft. Neither new Section 2110(d)(4) nor new Section 2108 identifies
trade secrecy or business confidentiality as a basis for not providing
information under new Section 2110(d).
---------------------------------------------------------------------------
Even a requirement to consider IST, as in New Jersey, could be
problematic. BASF recognizes that New Jersey's Prescriptive Order
requires covered facilities to consider IST as a means of reducing
their vulnerability.\12\ However, while BASF believes we have an
effective, constructive relationship with the State of New Jersey, our
experience with its process has shown that IST discussions regularly
take up a vast majority of the total review time of the inspectors, who
frequently barely look at security measures that have been implemented.
Isolating a single type of security measure for such intense focus at
the expense of all the others is not good security practice. Rather,
facilities and DHS should be considering the full range of security
measures. We are also concerned that a mandate to consider IST will
convert the DHS security program into a largely, but intensive, paper
exercise. Simply put, does Congress want DHS staff reviewing three-ring
binders, or out in the field inspecting actual security measures being
implemented at facilities?
---------------------------------------------------------------------------
\12\ State of New Jersey Domestic Security Preparedness Task Force,
Domestic Security Preparedness Best Practices at TCPA/DPCC Chemical
Sector Facilities, 5 (Nov. 21, 2005), available at http://
www.acutech-consulting.com/acutech-news/2005/
BestPracticesStandarsActonChemicalPlantSecurityNov212005.pdf.
---------------------------------------------------------------------------
C. The Discussion Draft Would Cause Unnecessary Duplication
BASF supports a risk-based program that applies even-handedly
across the board. We did not seek or support any special carve-outs
under CFATS for our facilities or our products, or anyone else's.
Rather, we have consistently called on Congress, and DHS, to issue
comprehensive security requirements that would apply nationwide and
would raise the security protections across all high risk sites. We
support the CFATS approach of screening over 50,000 individual
facilities, from small research facilities to large state of the art
chemical manufacturing facilities. This approach will minimize the
chance that DHS has overlooked any potential high risk sites. This also
meets our shared goal of focusing the resources where they are most
needed.
We know some have questioned whether Congress was correct in
Section 550 to exclude certain categories of facilities. A prime
example from BASF's perspective is facilities currently regulated by
the Coast Guard under the Maritime Transportation Security Act (MTSA)--
since we have four such sites. While we believe the MTSA is effective,
its application is dependent upon a facility's physical location and
whether it conducts commerce on a navigable waterway, rather than the
chemicals it has on site.
Congress will ultimately need to come to its own conclusion
regarding the adequacy of the MTSA program vs. CFATS. Our overriding
request is that, if Congress decides to apply CFATS to MTSA-regulated
facilities, then it should clearly exempt those facilities from the
MTSA. Congress should not impose, or allow DHS to impose, CFATS
obligations on top of the MTSA program--which is exactly what we fear
the discussion draft would do. Facilities cannot comply with two
different, inconsistent, overlapping programs. In addition, the
integration of the different programs under the draft would take place
on a facility-by-facility basis, rather than on a programmatic basis.
And, as noted earlier, no deference to prior work under CFATS is even
mentioned in the draft.
Site security must not be regulated by multiple agencies or
programs. Rather, a broad and comprehensive program for security,
managed at the Federal level by a single agency component, has the best
hope of providing the certainty facilities need about their obligations
and the best protection for the nation.
D. Miscellaneous Issues
Based on our limited review of the draft, we invite the
Subcommittee's attention to the following additional items:
Red-team exercises (p. 15). While we would appreciate
a clearer understanding of what the draft envisions, we are
concerned that even if these exercises were single-day events,
they necessarily would require weeks of advance planning, as
well as subsequent work to distill any lessons learned.
Requiring on-site exercises with DHS personnel at all high-risk
sites--assuming there were 6,000 such facilities, and phasing
that obligation in over 6 years--would require four exercises
per business day, every day for the next six years.
Linkage of SSPs to VA approval. In CFATS, DHS has made
clear that the deadline to submit a site security plan is not
triggered until the facility receives notice that DHS has
approved its vulnerability assessment. If both the VA and SSP
were due at the same time, the SSP would likely turn out to be
inadequate, cause unapproved and costly measures to be
implemented, and require further work. But the bill does not
indicate any intent to stagger these submission requirements as
CFATS has done.
IV. Conclusion
The discussion draft does contain a number of provisions that would
be improvements over Section 550 and CFATS. Most important, it would
confirm that the federal program would preempt state programs where the
latter ``conflicted with the purposes of this title'' (p. 31). Such
``conflict preemption' is very important to facilities, and yet gives
state and local government broad leeway to craft non-conflicting
programs. As an example of why this is needed, several states last year
tried to prevent facility owners from restricting employees from
bringing firearms onto company property. One state is currently
considering language which would prohibit companies from conducting
inspections of entering vehicles. Vehicle screening is a fundamental
security measure that could not be implemented under that proposed
statute. As you can see, therefore, preemption can be essential to
assuring security.
Another valuable feature of the discussion draft is its requirement
that DHS give a facility the reasons why it was assigned to a
particular risk tier (p. 7). It is not clear that DHS will do this
under CFATS.
If the discussion draft is merely a vehicle for identifying issues
like these, then it will have served a useful purpose. But BASF is
concerned that the Subcommittee intends to seek enactment of the bill
or something close to it. We had understood that Congress wanted prompt
action after so many years of delay. BASF certainly does. We ask you
not to stop the progress that DHS has achieved in the last year.
Instead, please support DHS with more resources so that it can get the
job done, and support us by backing implementation of CFATS and not
changing course in mid-stream.
Thank you again for the opportunity to appear before you. I look
forward to answering any questions you may have.
Ms. Jackson Lee. I now recognize Mr. Setley to summarize
his statement for 5 minutes.
STATEMENT OF GERALD C. SETLEY, VICE PRESIDENT, REGION 8
DIRECTOR, INTERNATIONAL CHEMICAL WORKERS UNION COUNCIL, UNITED
FOOD AND COMMERCIAL WORKERS UNION
Mr. Setley. Thank you, Chairwoman Jackson Lee and members
of the subcommittee. We are especially pleased that Chairman
Thompson is sitting in today.
I am here today representing the 20,000 members of the
International Chemical Workers Union Council of the United Food
and Commercial Workers Union. UFCW's chemical workers produce
everything from petroleum-refining chemicals to over-the-
counter pharmaceuticals. Every day our members work with
extremely hazardous substances. We have a vital interest in
their safe production, both for our own health and for that of
neighboring communities. We believe we bring to the table
meaningful involvement of the people who have the most
experience and are the most endangered in any plan, the
workers. It is therefore an honor for me to appear before you
to address this national security concern on behalf of our
members who work in chemical plants.
I think we can all agree chemical plants in the United
States have great potential as terrorist targets. This
possibility threatens the safety of workers in the plants, as
well as people living in the surrounding communities. This
subcommittee has taken some important steps to improve chemical
security, and I would like to thank you for your work on this
issue.
Comprehensive chemical security legislation is the next
step in bringing control to this complex problem. Today I will
discuss just a few of the issues we feel necessary for
comprehensive chemical facility security legislation.
First would be worker involvement. In the control of
occupational hazards, it has long been recognized that workers
have the knowledge and experience on all operations in a plant.
Chemical workers have unique institutional expertise and
training that must be utilized in developing any security
plans. The Chemical Council feels strongly that including
workers in the process will enhance security and protect
against terrorist attacks at chemical facilities. Legislation
must not be silent on this subject, and must include a
requirement for worker and union involvement in the development
of security plans, safe operations, and secure shutdowns.
Whistleblower protection. Fear is a fact of life in all too
many workplaces, and jeopardizing one's job by blowing the
whistle is a risky thing to do. Workers who bravely come
forward to protect themselves, their coworkers and the
communities around the plant should not fear for their jobs
when they speak out. Whistleblower protection must be included
to protect the free exchange of ideas, to improve and enhance
security, and to ensure that measures that are proposed on
paper are actually implemented.
Safer technologies are also a key to any comprehensive
plan, in our belief. The evaluation of safer technology in
high-risk facilities is especially important to chemical
workers. We understand that no system of plant perimeter
security or background checks will ever assure complete plant
security or end the possibility of a terrorist attack. So while
we must do everything we can to assure chemical plant security,
considering safer technology by substituting less dangerous
formulations, stronger or smaller containers, or engineered
improvements will minimize the consequences of an accident or
attack at a chemical plant.
The evaluation of safer technology is a vital step to
significantly reduce the risk of catastrophic release of
chemicals from intentional attacks or unintentional disasters.
Chemical workers also believe any chemical facility security
legislation should not supersede the National Labor Relations
Act protections.
The International Chemical Workers Union Council believes
this subcommittee must act now to ensure the safety of our
chemical workers and of all Americans. We urge the subcommittee
to act to avoid a terrorist attack by passing legislation that
includes meaningful worker involvement, whistleblower
protections, and the use of safer technology. We look forward
to working with every member of this committee, the full
committee, and the whole House of Representatives to address
this important issue. Again, thank you for your time, and I
would be pleased to answer any questions you have.
Ms. Jackson Lee. Thank you very much for your testimony.
[The statement of Mr. Setley follows:]
Prepared Statement of Gerry Setley
Thank you Chairman Thompson, Ranking Member King, and Members of
the Committee for holding this important hearing and for the
opportunity to testify. I am here today representing members of the
International Chemical Workers Union Council of the United Food and
Commercial Workers Union. The ICWUC, which was founded in 1944,
represents more than 20,000 chemical workers in 32 states. In 1996, we
merged with the UFCW and this mutually beneficial partnership continues
to serve our members well.
We strongly support improving chemical plant security policy that
makes solid and substantial improvements in the security of the
nation's chemical plants. UFCW chemical workers work in many different
manufacturing industries including petroleum and coal products,
fertilizers, pharmaceuticals, pesticides and other agricultural
chemicals in smelters and refineries as well as natural gas
distribution and power plants. Every day, in these facilities, our
members work with extremely hazardous substances and are crucially
interested in their safe production both for their own health as well
as for the neighboring communities. Despite our small size, we have
been active in a variety of health and safety issues for over 30 years.
We have supported effective standards and laws to protect both our
members and the public. We believe strongly that we bring to the table
the meaningful involvement of the people who have significant
experience and are the most endangered in a plant--the workers. Workers
have the institutional expertise and resources on occupational health
and safety and need to be formally involved in developing vulnerability
assessments and security plans.
It is therefore an honor for me to appear before you to address
this national security concern on behalf of our members who work in
chemical plants. In 1974, I was hired as a Research and Development
Technician at Kawecki-Berylco Industries in Pennsylvania, which is now
Cabot Corporation. I worked as an analytical technician for Cabot
Corporation for 31 years and served the local union in various elected
positions. In 2005, I was hired by the union as a General Organizer/
Representative and was elected Vice President in October 2007. At Cabot
Corporation, we handled large quantities of many of the substances that
this Committee has focused on in your discussions on chemical security.
I have also toured many facilities that face the same potential
dangers. I have seen situations where these hazards are well addressed
and many where they are not.
I think we can all agree that chemical plants in the United States
have a great potential to be terrorists' targets. This potentially
threatens the safety of workers in the plants as well as people living
in the surrounding communities. Security experts and numerous federal
agencies, including the Department of Homeland Security (DHS) and the
U.S. Army Surgeon General, have repeatedly warned of the terrorist
vulnerability of U.S. chemical facilities and a Federal Interagency
Task Force continues to meet on the dangers of Toxic Industrial
Chemicals.
An accident or terrorist attack on a facility using hazardous
chemicals would endanger thousands of lives. Workers and the public
would face short and long term health threats as a result of such a
disaster. A chemical disaster would also severely pollute our air and
water sources. A 2001 U.S. Army Surgeon General study estimated that
900,000 to 2.4 million people could be killed or injured in a terrorist
attack on a U.S. chemical plant in a densely populated area. The
Environmental Protection Agency (EPA) calculated that at least 100
chemical plants threaten a million or more people. Clearly, we are
talking about the potential of an enormous disaster.
This Committee has taken some important steps to improve chemical
security and I would like to thank you for your work on this issue.
Comprehensive chemical security legislation is the next step in
bringing better control to a complex problem. It is also a necessary
step to fix the significant and large problems associated with current
DHS rules. We have serious concerns with the current DHS regulations
and believe they will do little to enhance the security of chemical
facilities or the safety of workers and the public.
The interim chemical security program enacted over your objections
last year is woefully inadequate. April's final Department of Homeland
Security regulations failed to improve upon the underlying flaws of
last year's rider and were a large step backwards from legislation that
was being considered by Congress. Current regulations pre-empt
stronger, more protective state regulations; do not clearly define
chemical worker involvement or consultation in the facility process,
including inspections or their safety committees; and contain no
whistleblower protections. In addition, there is growing evidence that
some employers are using DHS' regulations to illegally limit union
staff's entry into plants and to harass or fire members. Finally, there
is no requirement to evaluate how safer and more secure technologies
might reduce the risk from an attack. My testimony today will
concentrate on these last five issues--denial of staff entry into
chemical facilities, workers' contractual rights to due process,
involvement of workers in security plans, strong whistleblower
protection, and use of safer technology.
Denial of Staff Entry to Facilities
The Chemical Workers Council believes that companies can easily
abuse the DHS regulations to deny our union staff legitimate and legal
entry into chemical facilities. Currently, under the National Labor
Relations Act (NLRA), union officials have access to union members at
plants. Yet, under the new rule, companies can deny access based on a
`perceived'' security threat. The Subcommittee on Emerging Threats,
Cybersecurity, Science and Technology has heard from labor
representatives who were denied entry to investigate a worker killed on
the job. While we have been fortunate that none of our employers have
ever denied the union access when investigating a fatality, we have not
had any occupational fatalities in the last year since the regulation
came out. We do believe, however, that it is imperative that we
consider what might happen if we are denied access, and we must ensure
that any new security regulations protect labor union's rights if some
employers take unlawful action in the name of security.
Given the NLRA and employers' requirement to provide union access
to members, we ask, ``What would be the harm in clearly stating that
right in the legislation?'' After all, ICWUC has witnessed management
denying federal health officials their rights at a facility where there
may be a potential health hazard. Current U.S. law clearly states that
these public health officials have these rights yet they are denied.
Although this is not due to the current rules, the reality is that some
companies view their facilities as theirs and theirs alone and will
find any excuse they can to deny health officials or labor
representatives their rights. We simply cannot give these unscrupulous
companies opportunity to deny access from union representatives. We
must keep the doors open for legally recognized union visits in order
to not hinder any investigation of plant hazards or other problems.
Workers' Contractual Rights to Due Process
We are also very concerned about the harassment and firing of
workers under the guise of ``homeland security.'' As a union
representative, I have spent many hours fighting for our members' jobs
and for due process. Recently one of our companies' claimed that due to
the Patriot Act, they had the right to fire ten workers who had not
fully explained past criminal convictions. The company argued that the
Patriot Act required a clean record and therefore they were required to
re-examine all workers' original application forms and ask for current
arrests and convictions. While we do not advocate criminal activity or
hiring workers with criminal records, this company went well beyond the
regulations on felony convictions to fire workers with misdemeanors
regardless of their job performances. The union grieved the firings and
was pleased to win three members their jobs back. Yet, they should
never have been fired or have to fight for their jobs. There is no
reason for companies to claim ``their hands are tied'' under the
Patriot Act or Homeland Security regulations as hardworking Americans
lose their jobs.
Clearly, there are other ways the government can handle true
threats to our country and our national security--rather than weed out
workers who made a mistake early in their lives and have since led
lawful lives. Again, we are not saying that a criminal record should
not be considered in hiring, but using the Patriot Act or DHS
regulation to fire workers who pose no national risk is outrageous.
Good chemical worker jobs are not easy to come by and we do not believe
companies, in the name of national security, should be allowed to
arbitrarily fire hard working wage earners. Workers rights and job
security should be an important part of any future chemical security
legislation.
In cooperation with other labor unions, including the International
Association of Machinists, the United Automobile Workers of America and
United Steel Workers, ICWUC sent a letter to the Department of Homeland
Security in August asking for clarification of the application of these
recent regulations with long established labor rights. We asked DHS to
issue a statement that their current rules do not conflict or take
precedence over the rights of workers or their bargaining
representatives under the National Labor Relations Act. Despite the
letter being sent months ago, we have yet to receive a response. We
believe it is imperative that future legislation includes a clear
statement to this affect.
Involvement of Workers in Security Plans
In the control of occupational hazards, it has been long recognized
that workers have the direct and current knowledge and experience of
plant operations. This knowledge is invaluable in solving problems in
the plant's operations. Certainly, chemical workers have unique
institutional expertise and resources on occupational health, safety,
and training that must be formally involved in developing any new
security plans. It is simply illogical that workers' expertise--the
same expertise that keeps the plants running everyday--would not be
utilized on this critical security responsibility at chemical plants.
ICWUC feels strongly that including chemical workers in this process
will enhance security and protect against terrorist attacks at chemical
facilities. That is why employee consultation is so crucial.
After all, who better to know facilities' weaknesses than the
workers who work in the plant? If you want to know if security guards
are doing their job, ask the workers who go through the gates every
day. If you want to know the exact location where hazardous materials
are stored and how to protect them, ask the worker who loaded the
chemicals. If you want to know if training is really effective, ask our
members who had the training. And, if you want to know if backup
systems will work in an emergency, just check with the chemical
workers.
Chemical workers are responsible for all the raw materials coming
into the plant as well as the final product that leave the plant. We
are responsible for hooking up the rail cars to off-load the chemicals,
transfer them in the plants and then work near the chemicals in the
plants. These responsibilities make chemical workers the first line of
defense. That is why any legislation must establish employee
involvement in the drafting of each site's chemical security plan.
Legislation must require companies to consult with employees on the
plan and ensure that employees can join facility inspections. It should
also allow appropriate chemical workers to be consulted in the course
of such inspections and audits.
Workers and their unions can be vital participants in plant safety
and security. Leaving workers and their representatives out of these
discussions will make security plans less effective and leave our
country more vulnerable. Legislation must not be silent on this subject
and must include a requirement for worker and union involvement in all
facets of the operations, including the security plans, top screen
process, safe operations and emergency shutdowns.
Strong Whistleblower Protection
Hand in hand with the involvement of site workers is the defense of
their jobs if they face disciplinary procedures for reporting any
significant security weaknesses at their facility. Fear is a fact of
life at all too many workplaces and jeopardizing one's job by blowing
the whistle is a risky thing to do. As mentioned earlier, the defense
of members' jobs is regrettably a common activity unions are forced by
necessity to do. Workers can find their jobs on the line as they try to
protect their facility from potential attacks by reporting security
problems.
Workers who bravely come forward to protect themselves, their co-
workers, and communities around the plant, should not fear losing their
jobs when they speak out. Whistleblower protection must be included to
protect the free exchange of ideas, to improve and enhance security and
to ensure that measures that are proposed on paper are actually
implemented. We urge this Committee to include strong whistleblower
protection in any legislation in order to protect our first line of
defense--the workers. It is the only way any new law will be truly
effective.
Use of Safer Technology
Requiring the use of safer technology in high risk facilities, as
in H.R. 5695, is especially important to chemical workers for a number
of critical reasons. We understand that no system of plant perimeter
security and background checks will ever assure complete plant security
or end the possibility of a terrorist attack. To assume that security
checks, cyclone fences and registering toxic chemicals will deter
attacks, 100% of the time is unrealistic.
While we must do everything we can to build chemical plant
security, considering safer technology--be it substituting less
dangerous formulations, stronger or smaller containers, or various
engineering steps--can minimize the consequences of an accident or
attack at a chemical plant. The use of safer technology is a vital step
to significantly reduce the risk of a catastrophic release of chemicals
from intentional attacks or unintentional disasters.
The temporary chemical security statue, the ``Department of
Homeland Security Appropriations Act of 2007'' actually prohibits the
DHS from requiring any ``particular security measure'' such as IST. As
a result, the DHS current rules do not require any technological
evaluation. We understand that safer processes may not be feasible in
all circumstances, either technologically or economically, but we
believe that safer technology should always be considered in any
security plan for all high risk facilities regardless. We know that
safer solvents or formulations can be substituted for more dangerous
ones. The quantities of these hazardous chemicals can be reduced,
stronger containers may be used, vulnerable sections can be reinforced
and maintenance schedules can be reviewed. It just does not make sense
for a chemical security rule not to include an inherently safer
technology component.
We believe that all high risk facilities should be required to
include an analysis in their vulnerability assessment including
substitution, engineering controls and administrative measures. The
Department should have the power to implement those measures that it
deems to be feasible and cost effective as required in H.R. 5695. These
measures are critical to minimize the release of toxic substances and
mitigate the catastrophic consequences.
We must not forget that we are not only addressing the prospect of
a terrorist attack when discussing the use of safer technology. Every
week chemicals are released in a wide range of accidental situations
and natural disasters. As you address chemical security, Congress must
take this opportunity to mandate steps that will simultaneously
minimize the national threat of not only attacks, but releases which
are not hypothetical but a reality that chemical workers and the public
living around plants experience frequently. President George W. Bush
stated in his 2003 Homeland Security Presidential Directive # 8 on
National Preparedness, that we must ``strengthen the preparedness of
the United States to prevent and respond to threatened or actual
domestic terrorist attacks, major disasters, and other emergencies by
requiring a national domestic all-hazards preparedness goal.'' Your
work can take a large step in fulfilling all of this Directive's
elements.
Although I understand that this Committee's mandate is solely the
protection of our facilities from terrorist attack, the measures that
will minimize a hazardous release from an intentional attack will also
minimize the release that is a direct result of a hurricane,
earthquake, tornado or accident. The dangers we face in a chemical
release come from a variety of directions, but the use of safer
technology will minimize all these risks.
The International Chemical Workers Union Council believes this
Committee must act now to ensure the safety of our chemical workers and
all Americans. DHS's Regulations are flawed and it is imperative that
Congress moves forward on true chemical security reform. We strongly
support passage of legislation (H.R. 5695) that is similar to
legislation that passed out of this Committee last year. We urge the
Committee to act now, preemptively, to protect America from a terrorist
attack by passing legislation that includes provisions to protect the
rights of workers, site investigations, whistleblower protections, and
the use of safer technology.
The ICWUC looks forward to working with every Member of this
Committee and the House of Representatives to address this crucial
problem. Again, I thank you for your time and would be pleased to
answer any questions that you may have.
Ms. Jackson Lee. I now recognize Mr. Sondermeyer to
summarize his statement for 5 minutes.
STATEMENT OF GARY SONDERMEYER, DIRECTOR OF OPERATIONS, NEW
JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION
Mr. Sondermeyer. Good morning, Chairwoman Jackson Lee,
Chairman Thompson. Congressman Pascrell, great to see you
again, sir. I really appreciate the opportunity to appear
before you today.
I would like to briefly summarize New Jersey's experience
over the past 6 years in implementing our homeland security
program, and then specifically focus on our experiences with
inherently safer technology evaluation. In very brief summary,
in New Jersey, our homeland security statute was passed in
October of 2001, 1 month after 9/11. We had chemical facility
standards adopted in September of 2003, and then more stringent
chemical standards put in place in November of 2005. At this
point we do, in New Jersey, have 4 years of on-the-ground
experience in implementing our homeland security program, which
covers, in the context of chemical facilities, about 450 sites.
All of these facilities at this point have addressed site-
specific vulnerability assessment, target-hardening needs
assessment, information and cybersecurity protocol development,
badging and credentialing, worker training, emergency planning
and response, and preparedness exercising. In addition, for a
smaller universe of sites, which are referred to in New Jersey
as Toxic Catastrophe Prevention Act sites, we had an additional
requirement to perform an inherently safer technology
evaluation.
More specifically, on the IST, each of the facilities was
required to review reducing the amount of extraordinarily
hazardous substances; substituting less hazardous materials;
using extraordinarily hazardous substances in the least
hazardous process, form or condition; and designing equipment
and processes to minimize the potential for equipment or human
error.
I am very happy to report that we are extremely pleased
with the results of our inspections and our assessment. With
respect to IST, all of the 45 facilities required to conduct
the analysis did so. Each has documented that they have made
changes to improve inherent safety based on the IST analysis or
other process hazard consequence analysis they did previously.
Thirty-two percent gave us a specific schedule for implementing
additional inherent safety programs at their plants, and an
additional 19 made commitments to make changes, but have yet to
give us a schedule.
So, taking a step back, 50 percent of the universe of
facilities required to do the IST analysis made commitments to
go beyond where they are today to improve inherent safety.
It is very clear to us from our experiences that IST
analysis is not overly burdensome on the chemical industry, and
we feel that it is good business practice from an economic,
worker safety, and a regulatory compliance standpoint.
If I may go a little bit beyond IST, the draft Chemical
Facility Antiterrorism Act of 2008, New Jersey does continue to
have serious concern with the issue of preemption, which
Governor Corzine has gone on record to comment on previously.
Section 2107 clearly allows States to retain the authority to
adopt and enforce any regulation, requirement or standard of
performance that relates to environmental protection, health,
and safety.
We would respectfully urge Congress to equally be clear
that States retain the unqualified authority to adopt enhanced
security requirements based upon risk and consequence factors
within their particular State. This could be accomplished by
simply deleting the phrase at the end of section 2107A, in
quotes, ``unless the State regulation, requirement, or standard
of performance would conflict with the purposes of this
title.''
If I may, just one final policy point I would like to
respectfully make. We do strongly recommend consideration of
permissive enabling language to allow delegating oversight
responsibility to State governments by DHS. From our
experiences in the environmental regulatory world, this has
been standard practice for 20 or 30 years where the United
States Environmental Protection Agency will be administering a
Federal statute, Clean Air Act, Clean Water Act, RCRA, whatever
that would be, but they have the authority to delegate to the
States the day-to-day operational authority to implement the
program.
We make this recommendation respectfully because at this
point we are 6 years into implementing a program, and we think
it would work very well if DHS, upon review and finding
equivalency in our program and finding that it is suitable, to
allow it to mesh together so that we can perform efficiently in
government and dovetail and complement the Federal initiative
without in any way jeopardizing what New Jersey has already put
in place.
Thank you very, very much for this great opportunity, and I
would be happy to answer any questions at the appropriate time.
Thank you.
Ms. Jackson Lee. Thank you very much for your testimony.
[The statement of Mr. Sondermeyer follows:]
Prepared Statement of Gary Sondermeyer
Good morning Chairman Thompson, ranking member King and Members of
the House Committee on Homeland Security. My name is Gary Sondermeyer
and I serve as the Director of Operations for the New Jersey Department
of Environmental Protection (DEP). With me is Paul Baldauf, Assistant
Director of our Radiation Protection and Release Prevention Element.
Paul and I have lead responsibility for implementation of New Jersey's
homeland security program for chemical facilities under the direction
of DEP Commissioner Lisa P. Jackson and Director Richard L. Canas of
our Office of Homeland Security and Preparedness (OHSP). I would first
like to sincerely thank the Committee for the opportunity to appear
before you to discuss the Chemical Facility Anti-Terrorism Act of 2008
and specifically the ongoing inherently safer technology and chemical
sector security initiatives within the State of New Jersey.
Chemical plant security is a subject that Governor Jon S. Corzine
and every New Jersey resident regard with urgent concern. We view our
Chemical Standards, including requirements for inherently safer
technology evaluation, as vital to providing New Jersey with an
accurate reflection of our current state of security preparedness, as I
will further outline in my testimony.
In response to the risks posed by a possible terrorist attack on
New Jersey's chemical facilities, New Jersey has taken significant
steps to strengthen the security precautions at these plants. At this
point we have four years of on the ground experience in implementing a
homeland security program for all chemical facilities operating in our
State. Best Security Practices were adopted for the Chemical Sector
working cooperatively with industry leaders on September 18, 2003.
Since November 2005, New Jersey went further and adopted enforceable
plant security practices for its chemical facilities as well as
facility security assessments to evaluate potential security threats
and vulnerabilities. The facilities that pose the most significant
risks are subject to the State's Toxic Catastrophe Prevention Act
(TCPA) program, which incorporates EPA's Risk Management Program but is
stricter and broader in scope than the 112 requirements. New Jersey's
enforceable plant security practices are vital to providing the state
with an accurate picture of the current state of preparedness within
the Chemical Sector and provide a foundation to move forward with the
appropriate actions to safeguard our citizens.
I shall begin with a brief overview of New Jersey's domestic
security preparedness activities, and then turn to the specific reasons
why the evaluation of inherently safer technologies in the chemical
industry is of vital importance.
Overview of New Jersey's Domestic Security Preparedness Effort
New Jersey's unique vulnerabilities have made us a leader among
states in initiating and implementing measures to counter potential
terrorist operatives, to reduce the risk of attack at critical
infrastructure facilities, and to reduce the potential impacts to
public health and safety if any such attacks should occur in the
future. New Jersey undertakes these efforts through our Domestic
Security Preparedness Task Force (Task Force), chaired by Director
Richard L. Canas of our OHSP.
As Director of Operations of the Department of Environmental
Protection (DEP), I serve as the DEP Commissioner's Task Force
representative and the liaison to the pharmaceutical and biotechnology,
chemical, nuclear, petroleum, wastewater, and dam safety sectors of our
critical infrastructure. DEP shares responsibility for the water sector
as well in cooperation with the New Jersey Board of Public Utilities.
Through the Task Force and the OHSP, I also participate in New Jersey's
preparedness and response effort for other sectors.
The Task Force has undertaken a comprehensive program to reduce
terror risk, to ensure preparedness at critical infrastructure
facilities, and to test the efficacy of both public agencies and the
private sector in responding to acts of terrorism. Every Task Force
agency and every sector of our critical infrastructure has developed,
through a public-private collaboration, a series of ``Best Practices''
for domestic security. Each set of Best Practices was reviewed and
approved by the Task Force and the Governor. Every Task Force agency
and every sector of our critical infrastructure has also participated
in appropriate exercises to test the strengths and limits of terror
detection and response capability.
New Jersey's current challenge is to ensure full implementation of
security ``Best Practices'' across all sectors, consistent with a
policy of ``Zero Tolerance'' for noncompliance, and to identify those
additional regulatory and other measures that are appropriate to
contend with emerging threats and challenges. Throughout this process,
DEP is working with OHSP, our State Police, the Attorney General's
Office and private companies within our sectors to reduce or eliminate
specific threats that we have identified on a case-by-case basis.
New Jersey's Toxic Catastrophe Prevention Act (TCPA) Program
New Jersey has managed an oversight program to increase safety at
chemical plants and other facilities that store or utilize
extraordinarily hazardous materials for over 20 years. The Toxic
Catastrophe Prevention Act (TCPA) program was created in 1986 as a
result of a chemical accident in Bhopal, India that killed thousands of
nearby residents. Several chemical facilities in New Jersey had
experienced minor accidents prior to this time, clearly indicating that
a similar risk existed in New Jersey. The TCPA requires facilities that
handle extraordinarily hazardous substances above certain inventory
thresholds to prepare and implement risk management plans. The plans
must include detailed procedures for safety reviews of design and
operation, operating procedures, maintenance procedures, training
activities, emergency response, process hazard analysis with risk
assessment and self-auditing procedures. An extraordinarily hazardous
substance is defined as a substance, which if released into the
environment would result in a significant likelihood of causing death
or permanent disability.
In 1998 the program adopted USEPA's 112(r) Accidental Release
Prevention Program (40 CFR 68) by reference. This program included
additional toxic substances and highly flammable substances. It also
required each facility to complete a worst case scenario analysis. The
worst case scenario models the resultant toxic cloud to a predetermined
concentration. The USEPA end point concentrations are approximately
one-tenth of the concentration that would cause death to persons
exposed.
On August 4, 2003, the readoption of the TCPA rules added reactive
hazards substances to the list of extraordinarily hazardous substances
covered under the program. Industrial accidents in New Jersey resulting
from reactive hazards demonstrated the need to include reactives under
the TCPA program. Owners and operators having listed reactive hazard
substances in quantities that meet or exceed thresholds are required to
develop risk management plans to reduce the risk associated with these
unstable substances. In addition, and the focus of this testimony, this
readoption included a requirement that owners and operators evaluate
inherently safer technology for newly designed and constructed covered
processes.
In April, 2007 the DEP proposed amendments to the TCPA rule to
require all companies subject to the program to evaluate the potential
of incorporating inherently safer technology at their facility. This
proposal also covers many sectors such as food, water/wastewater, and
energy which are outside the chemical industry but store threshold
amounts of extraordinarily hazardous substances. The DEP is currently
evaluating comments to the April proposal and expects to issue a final
rule requiring the evaluation of inherently safer technology at all
TCPA sites in early 2008.
Chemical Sector Best Practices Standards
New Jersey recognizes that facilities in the Chemical Sector are
diverse in size, complexity, and potential for off site impacts to the
community and therefore a blanket approach to addressing security
concerns may not be practical. The Best Practices represent a risk-
based approach to security consisting of a site-specific vulnerability
assessment that evaluates threats to a facility's operation, its
particular vulnerabilities and likely consequences of a chemical
release, and the physical and procedural security measures already in
place. The Chemical Sector Best Practices were predominantly derived
from the Security Code of the American Chemistry Council's Responsible
Care program.
Subsequently the Task Force determined that additional measures
were necessary to ensure that appropriate prevention and response
measures are implemented by the chemical sector to address emerging
domestic security threats. As a result, Chemical Sector Best Practices
Standards (Standards) were put in place on November 21, 2005.
The Standards require chemical sector facilities to, among
other things:
comply with the Chemical Sector Security Best
Practices;
conduct a terrorism-based security vulnerability
assessment; and
develop a prevention, preparedness, and response plan
to minimize the risk of a terrorist attack.
In addition, chemical sector facilities subject to TCPA are
required to conduct a review of the practicability and potential for
adopting inherently safer technology.
Inherently Safer Technology
Facilities required to conduct an inherently safer technology
review must evaluate:
reducing the amount of extraordinarily hazardous
substances materials that potentially may be released;
substituting less hazardous materials;
using extraordinarily hazardous substances in the
least hazardous process conditions or form;
and, designing equipment and processes to minimize the
potential for equipment failure and human error.
I must emphasize that the inherently safer technology requirement
under the Standards represents a practicability test; it is not
mandatory that a covered facility implement IST, only that they
evaluate. The results of the evaluations are held at the facility site,
and are made available to DEP inspectors during an on-site visit.
Compliance with the Standards was required within 120 days of the
effective date, March 21, 2006. We have been extremely pleased with the
compliance levels we have seen to our standards. Compliance of the New
Jersey requirements exceeded 98 percent. The Standards applied to
facilities that are subject to either the Toxic Catastrophe Prevention
Act (TCPA) or the Discharge Prevention, Containment and Countermeasure
(DPCC) program, and report under certain Standard Industrial
Classification (SIC) or North American Industrial Classification System
(NAICS) codes. Of the total 157 facilities covered under the Standards,
45 are regulated TCPA facilities required to perform IST analysis. In
all cases, facilities required under the Standards to conduct IST
review have done so. All of these facilities have documented that they
have previously implemented IST or similar risk reduction measures. 32
percent of the facilities have provided a schedule to implement
additional IST or other risk reduction measures, and 19 percent have
identified additional IST or risk reduction measures but have not yet
scheduled their completion. The remaining 49 percent of the facilities
had no additional recommendations. It should be noted that these are
facilities that have been regulated under the TCPA program for many
years resulting in the past implementation of IST and risk reduction
measures. 80 percent of the facilities concluded that at least some of
the IST or risk reduction measures identified during their evaluation
were infeasible for their operations. I believe that our compliance
results clearly indicate that the evaluation of inherently safer
technology is not overly burdensome on industry and is an effective
tool for critically evaluating the risk reduction opportunities
available at a specific facility. It is clear to us that IST analysis
is simply good business practice for any facility storing or utilizing
extraordinarily hazardous materials from an economic, worker safety and
regulatory compliance standpoint.
But these measures alone are merely a starting point. Our knowledge
of both the threat and the appropriate response is evolving daily. As
we implement the ``Best Practices'' and work with facilities on site-
by-site review of security vulnerabilities, we also have begun a public
process to review what additional regulatory measures may be
appropriate to harden potential targets, to reduce risk to surrounding
communities, and to involve workers and communities in the process.
Chemical Facility Anti-Terrorism Act of 2008
New Jersey has expressed serious concerns on a number of occasions
about any language in federal regulations that has the potential to
preempt existing state chemical security initiatives or limit future
state actions to address unique vulnerabilities. Section 2107. Federal
Preemption, clearly allows States to retain the authority to adopt and
enforce any regulation, requirement, or standard of performance
relating to environmental protection, health, or safety. We urge
Congress to be equally clear that States retain the unqualified
authority to adopt enhanced security requirements based upon risk and
consequence factors within that State. This could be accomplished by
deleting the phrase ``unless the State regulation, requirement, or
standard of performance would conflict with the purposes of this
title'' from Section 2107 (a).
The proposed Act would capture chemical facilities currently exempt
from the existing Chemical Facility Anti-Terrorism Standards, 6 CFR
Part 27, expand the universe of regulated sites, and require
assessments of methods to reduce the consequences of a terrorist attack
at high risk sites. Overall, the Act addresses many of the comments
previously submitted by New Jersey on 6 CFR Part 27.
We strongly recommend consideration of permissive enabling language
toward delegating oversight responsibility to State governments, along
with appropriate levels of Federal funding to support homeland security
efforts. This would include a petition process to DHS by interested
State governments and granting of delegated authority on a
discretionary basis. In the case of New Jersey, the actions taken in
chemical security preparedness since September 11 have left the State
well qualified to undertake such delegated responsibilities. State
security (Office of Homeland Security and Preparedness and New Jersey
State Police) and the chemical process safety experts (Department of
Environmental Protection) are intimately familiar with the chemical
facilities in question and have conducted multiple security and safety
inspection at each site over the last five years. Leveraging and
augmenting State resources is vital to ensuring that our chemical
facilities are adequately protected from acts of terrorism.
Conclusion
Although New Jersey took critical steps to address chemical
facility security well over four years ago, we recognize that most
states have not taken formal regulatory action and therefore, federal
regulations to create minimum national chemical facility security
standards are essential. At the same time, it is also important not to
penalize those pro-active states and allow the states to retain the
authority to adopt enhanced security requirements if states determine
they are necessary. No two states are alike, and the risks posed by
every facility present unique challenges based on location, population
size, and other factors. Security standards that are appropriate to
safeguard a facility in a rural area, for example, may not be
sufficient for a facility located in one of the most densely populated
and heavily traveled sections of the country. Simply put, one size does
not fit all.
New Jersey's critical infrastructure concentration and high
population density may have no comparison in the United States; our
state needs to retain the ability to go beyond any Federal security
baseline standard to ensure that our preparedness is measured in line
with our potential vulnerabilities. We need federal standards, but they
must be a floor ensuring a base level of protection, not a ceiling that
constrains our ability to protect our citizens, as well as our
neighbors. We must emphasize our vehement objection to any preemption
language that would limit New Jersey's ability to maintain our current
standards or if necessary impose additional requirements in the future
to protect our citizens. Governor Corzine has gone on record previously
to express his concern for the safety of New Jersey's residents. In
serving Governor Corzine, it is our duty to protect the citizens of our
State and it is imperative that federal legislation enhances, rather
than undermines New Jersey's ability to protect our chemical sector
critical infrastructure.
I once again would like to thank you Chairman Thompson, ranking
member King and Members of the House Committee on Homeland Security. On
behalf of DEP Commissioner Lisa P. Jackson and Director of Homeland
Security and Preparedness Richard L. Canas, I sincerely want to thank
you for the opportunity to share some of New Jersey's experience in
implementing our chemical security and inherent safety program since
the passage of the New Jersey Domestic Security Preparedness Act in
October, 2001. We would be happy to entertain any questions you may
have and are available at any time should additional information be
valuable to the critical work of your Committee.
Ms. Jackson Lee. And I now recognize Dr. Mannan to
summarize his statement for 5 minutes.
STATEMENT OF M. SAM MANNAN, PE, CSP, PROFESSOR AND DIRECTOR,
MARY KAY O'CONNOR PROCESS SAFETY CENTER, TEXAS A&M UNIVERSITY
SYSTEM
Mr. Mannan. Chairwoman Jackson Lee, Chairman Thompson, and
members of the subcommittee, my name is Sam Mannan, and I am
director of the Mary Kay O'Connor Process Safety Center and
professor of chemical engineering at Texas A&M University. The
center seeks to develop safer processes, equipment procedures,
and management strategies that would minimize losses in the
process industry.
I also want to take this opportunity to thank Chairwoman
Jackson Lee for her kind comments about Texas A&M University
and the role we play in educating Texans and the Nation.
First I want to thank this committee and the U.S. Congress
for addressing chemical facility antiterrorism, and giving the
Department of Homeland Security the necessary authority to
regulate security in the chemical industry. I applaud the
subcommittee for holding today's hearing on chemical security
regulations and their impact on the public and private sector.
This is a subject that is of extreme importance to our Nation,
and I am pleased to be able to share my experience and
opinions, as well as continue to serve as a resource for the
Federal Government on this important issue.
The U.S. Congress must give the Department of Homeland
Security permanent and continuing authority to regulate
chemical security in the United States. While many facilities
are voluntarily taking appropriate measures, I am concerned
that many are not. A regulation that creates a minimum and
level playing field is very important. The inclusion of water-
processing facilities in the act is very important and
necessary. As the 9/11 events have shown, terrorists are more
likely to use easily available materials to strike at us.
Although section 2110 of the act does not refer to the term
``inherent safety'' or the term ``inherently safer
technology,'' compliance with section 2110 deals exclusively
with the implementation of inherently safer technologies and
approaches. While there is no question that options with regard
to inherent safety should be considered, we must understand and
account for the challenges and difficulties in implementing
inherently safer technologies and options.
In this context, the Mary Kay O'Connor Process Safety
Center published a white paper outlining challenges faced in
evaluating and implementing inherently safer designs. I have
provided the white paper as an attachment to my testimony.
We believe that a coordinated, long-term effort involving
government, industry, and academia is essential to develop and
implement inherently safer technologies. A similar
collaborative approach has shown success in related areas, such
as green chemistry, energy conservation, and sustainable
development. I believe that science should precede regulations.
I do not believe that the science currently exists to quantify
inherent safety.
This act and any actions taken as a result of this act
should not create unintended and unwanted consequences. Instead
of prescriptive requirements for inherently safer technology
and approaches, facilities should be allowed the flexibility of
achieving a manageable level of risk using a combination of
safety and security options. The current language in the bill
is far too prescriptive, and focused much too heavily on only
one method of reducing the consequences of terrorist attack.
All methods of reducing vulnerability should be considered on a
case-by-case basis, and the implementation of any one
particular method should not take or appear to take precedence
over the others.
Whether national or man-made, disasters have continued to
happen. However, as we have seen with the 9/11 events,
Hurricanes Katrina and Rita, and the chemical incidents such as
the Bhopal disaster, planning and response is crucial in being
able to reduce the consequences and recover from the disaster
more rapidly. In this regard, it is essential to conduct
vulnerability analysis, response and recovery planning at the
plant-specific level, the area--and region-specific level, and
national level. The long-term goal is to develop technology and
know-how with regard to resilient engineered systems and
terrorism-resistant plants. In this respect, research and
technological advances are needed in many areas, such as
biochemical detection, sensors, and self-healing materials.
Protection of the chemical infrastructure, like many of the
challenges, requires the commitment and effort of all
stakeholders.
In closing, I again applaud the U.S. Congress for providing
leadership in this important area of chemical security. It is
clear that many companies are taking reasonable and responsible
steps in chemical security; however, all facilities that
handle, store, or transport hazardous materials should be
required to take such steps. That is why government must
develop and enforce good science-based regulation that sets the
minimum and necessary standards for chemical security. These
regulations should be based upon good science, aimed at making
the industry secure, avoid overregulation, and create a level
playing field. Only through a comprehensive, uniform, and risk-
based approach can we protect the people and communities of our
Nation, as well as protect our Nation's critical chemical
infrastructure. I am encouraged by the leadership of Congress
and the continued effort to seek expertise and opinion from all
stakeholders.
Thank you for inviting me to present my opinions, and I
would be happy to answer any questions.
Ms. Jackson Lee. Thank you.
[The statement of Mr. Mannan follows:]
Prepared Statement of M. Sam Mannan, PhD, PE, CSP
Introduction
Chairwoman Jackson Lee, ranking member Lungren and members of the
Subcommittee, my name is M. Sam Mannan and I hold a BS, MS, and PhD in
chemical engineering. I am a registered professional engineer in the
states of Louisiana and Texas and I am a certified safety professional.
I am a Fellow of the American Institute of Chemical Engineers and a
member of the American Society of Safety Engineers, the International
Institute of Ammonia Refrigeration, and the National Fire Protection
Association. I am Director of the Mary Kay O'Connor Process Safety
Center, holder of the T. Michael O'Connor Chair I in Chemical
Engineering, and Professor of Chemical Engineering at Texas A&M
University. The Center seeks to develop safer processes, equipment,
procedures, and management strategies that will minimize losses in the
process industry. My area of expertise within the chemical engineering
discipline is process safety. I teach process safety engineering both
at the undergraduate and graduate level. I also teach continuing
education courses on process safety and other specialty process safety
courses in the United States and overseas. My research and practice is
primarily in the area of process safety and related subjects. The
opinions I present today both in my written statement and oral
testimony represent my personal position on these issues. These
opinions are based on my education, experience, and training.
First, I want to thank this Committee and the US Congress for
addressing Chemical Facility Anti-Terrorism and giving the Department
of Homeland Security the necessary authority to regulate security in
the chemical industry. I applaud the Subcommittee for holding today's
hearing on chemical security regulations and their impact on the public
and private sector. This is a subject that is of extreme importance to
our nation, and I am pleased to be able to share my experience and
opinion as well as continue to serve as a resource to the federal
government on this important issue.
Background
Hazardous materials can be grouped into three tiers of
vulnerability categories. The first category includes the stationary
facilities that are members of major industry associations. Even though
these facilities have large inventories of hazardous materials and are
quite visible, they are the best prepared against attack because of
voluntary programs that have been developed and implemented. The second
tier of vulnerability category includes smaller and medium-sized
facilities that manufacture or use chemicals but may or may not be
members of any industry associations. These facilities are less
visible, but are also, in general, less prepared and more widely
distributed. Finally, the third category of vulnerability includes all
hazardous materials that are in transit (by whatever means) throughout
the United States. In addition to being present almost anywhere in the
United States at any given time, this category also represents high
visibility and the highest vulnerability. It could also be argued that
this category is the least prepared to deal with intentionally caused
catastrophic scenarios.
Some pertinent subjects of interest with regard to attacks on the
chemical infrastructure are: active protection measures; passive
protection measures; vulnerability analyses, response and recovery
plans; and long-term needs and priorities. Active protection measures
include increased security, limited access to facilities, and
background checks. Examples of passive protection measures include
development of exclusion areas and process and engineering measures.
Vulnerability analysis, response, and recovery plans are needed not
only to help devise the prevention and protection plans, but also to
develop the response and recovery plans. In this respect, it must be
mentioned that most of the large, multi-national facilities that are
members of major industry associations have voluntarily conducted some
form of vulnerability analysis. What is not clear is whether these
analyses have been used to integrate planning for response and recovery
efforts in coordination with local agencies and the public. One very
stark lesson from the 9/11 events is that the ``first'' first-
responders are usually members of the public. Additionally, area--and
region-specific vulnerability analysis and assessment of infrastructure
availability for response and recovery have not been conducted.
Finally, a national vulnerability analysis and assessment of
infrastructure availability for response and recovery is a critical
need.
Whether natural or man-made, disasters will continue to happen.
However, as we have seen with the 9/11 events, hurricanes Katrina and
Rita, and chemical incidents such as the Bhopal disaster, planning and
response is crucial in being able to reduce the consequences and to
recover from the disaster more rapidly. In this regard, it is essential
to conduct vulnerability analysis, response, and recovery planning at
the following three levels:
Plant-specific vulnerability analysis and assessment
of infrastructure availability and preparedness for response
and recovery is needed. As mentioned earlier, most of the large
multi-national facilities that belong to prominent industry
associations have voluntarily conducted some form of
vulnerability analysis. What is not clear is whether these
analyses have been used to integrate planning for response and
recovery efforts in coordination with local agencies and the
public.
Area--and region-specific vulnerability analysis and
assessment of infrastructure availability for response and
recovery should be conducted. Each area- and region-specific
analysis should include an assessment and planning for
evacuation and shelters.
National vulnerability analysis and assessment of
infrastructure availability for response and recovery is
critically needed. In doing this national analysis, impact on
international issues and criteria should also be considered.
Long-term Goals and Priorities
Long-term goals and priorities to prevent and/or reduce the
consequences of intentional catastrophic scenarios require clear
thinking and hard work. While no one would argue that making hazardous
materials less attractive as a target should be a goal that all
stakeholders should accept, differences arise in how we realize that
goal.
Inherent safety options can and should be considered; however, we
must be aware of the differences in implementing inherent safety
options for existing plants, as compared to new plants. Also, in some
cases, a seemingly clear choice with regard to inherent safety may
create some undesired and unintended consequences. Issues such as risk
migration, reduction of overall risk, and practical risk reduction
should be evaluated whenever an inherent safety option is considered.
Another long-term goal is to develop technology and know-how with
regard to resilient engineered systems and terrorism-resistant plants.
In this respect, research and technological advances are needed in many
areas, such as bio-chemical detection, sensors, and self-healing
materials. Protection of the chemical infrastructure, like many other
challenges, requires the commitment and effort of all stakeholders.
I feel very strongly that science should precede regulations and
standards. With regard to science and technology investments, many
initiatives have been proposed and are being implemented. However, some
important additional initiatives that should also be considered are
given below:
1. The fact is that the chemical infrastructure and all
components including the individual sites, supply, and delivery
systems were never built with terrorism in mind. Research must
be conducted to determine how we might have designed and built
the chemical plants and the infrastructure had we considered
these threats. The ultimate goal for such research would be
two-pronged. First, determine options for what can be feasibly
implemented for existing plants. Second, if necessary,
prescribe new standards and procedures for new plants.
2. Research investments should be made on advanced
transportation risk assessment methods. Before transportation
of any hazardous materials, a transportation risk assessment
should be conducted using available information and
methodology, as well as time-specific data that may be
available.
3. Additional science and technology investments that should be
considered are:
Development of incident databases and lessons
learned. This knowledge base could then be used to
improve planning, response capability, and
infrastructure changes. Recent experience in this
regard is the improvement in planning and response for
the hurricane Rita from lessons learned from the
hurricane Katrina.
Research should be conducted on decision-
making, particularly under stress, and how management
systems can be improved.
Research on inherent safety options and
technologies. This type of research should be combined
with systems life cycle analysis and review of
practical risk reduction. In other words,
implementation of inherent safety options should not be
allowed to create other unintended consequences, risk
migration, or risk accumulation. While transportation
is outside the scope of the Chemical Security Act of
2008, it must be included in vulnerability assessments
to avoid transfer of facility risks to transportation
risks.
Basic and fundamental research is also needed
on design of resilient engineered systems. For example,
if the collapse of the World Trade Center towers could
have been extended by any amount of time, additional
lives could likely have been saved.
Basic and fundamental research is also needed
on resilient and fail-safe control systems.
Long-term research is also needed in the area
of self-healing materials and biomimetics.
Specific Comments on the Chemical Security Act of 2008
With regard to the Chemical Security Act of 2008, I have the
following specific comments:
1. The US Congress must give the Department of Homeland
Security permanent and continuing authority to regulate
chemical security in the United States. While many facilities
are voluntarily taking appropriate measures, I am concerned
that many are not. A regulation that creates a minimum and
level playing field is very important.
2. The inclusion of water processing facilities in the Act is
important and necessary. As the 9/11 events have shown,
terrorists are more likely to use easily available materials to
strike at us.
3. The use of a risk-based approach and risk-tiering in
evaluating the vulnerability of any facility is a good
approach.
4. Although Section 2110 of the Chemical Security Act of 2008
does not refer to the term ``inherent safety'' or ``inherently
safer technology,'' compliance with Section 2110 deals
exclusively with the implementation of inherently safer
technologies and approaches. I have several comments with
regard to the proposed language in the Act.
a. It is not clear how the Secretary would determine
what is an inherently safer technology or approach.
More clarity is needed on this issue.
b. There are many methods available to the industry for
potentially reducing risk and vulnerability.
Vulnerability assessments should consider the
feasibility of all methods for improving security to
determine the method to achieve the optimum balance of
cost effectiveness and vulnerability reduction.
c. As I stated earlier, science should precede
regulations. I do not believe that the science
currently exists to quantify inherent safety. This Act
or any actions taken as a result of the Act should not
create unintended and unwanted consequences. An example
in this context is the substitution of hydrogen
fluoride (HF) with sulfuric acid
(H2SO4) for refinery alkylation
processes. While it is true that HF is more toxic than
H2SO4, the amount of H2SO4 needed
to do the same amount of processing is 25 times or more
than HF. Thus changing from HF to H2SO4
would require large storage facilities and more
transportation. In fact, changing from HF to H2SO4 may
provide more opportunities for a terrorist attack. On
the other hand, a well-managed plant with a smaller
amount of HF and appropriate safety protective systems
may represent a lower overall risk.
d. While there is no question that options with regard
to inherent safety should be considered, we must
understand and account for the challenges and
difficulties in implementing inherently safer
technology and options. In this context, the Mary Kay
O'Connor Process Safety Center published a White Paper
outlining challenges faced in evaluating and
implementing inherently safer designs (the White Paper
is provided as an attachment). The first challenge is
simply to measure the degree of inherent safety in a
way that allows comparisons of alternative designs,
which may or may not increase safety or may simply
redistribute the risk. The second is that because
inherent safety is an intrinsic feature of the design,
it is best implemented early in the design of a process
plant, while the US has a huge base of installed
process plants and little new construction. Finally, in
developing inherently safer technologies, there are
significant technical challenges that require research
and development efforts. These challenges make
regulation of inherent safety very difficult. We
believe that a coordinated long-term effort involving
government, industry, and academia is essential to
develop and implement inherently safer technologies. A
similar collaborative approach has shown success in
related areas such as green chemistry, energy
conservation, and sustainable development.
e. Instead of prescriptive requirements for inherently
safer technology and approaches, facilities should be
allowed the flexibility of achieving a manageable level
of risk using a combination of safety and security
options. For example, nuclear facilities have very high
hazard materials, but they protect their site and the
public with a combination of multiple layers of
security and safety protective features. The current
language in the bill is far too prescriptive and
focused much too heavily on only one method of reducing
the consequences of a terrorist attack. All methods of
reducing vulnerability should be considered on a case-
by-case basis, and the implementation of any one
particular method should not take or appear to take
precedence over the others.
f. Over the past 10-15 years, and more so after 9/11,
consideration of Inherently Safer Technology (IST)
options and approaches has effectively become part of
industry standards, with the experts and persons with
know-how assessing and implementing inherently safer
options, without prescriptive regulations that carry
risks (both as trumping other tools or potentially
shifting risk). A better approach for applying IST in
security is by allowing the companies to assess IST as
part of their overall safety, security and
environmental operations and therefore, cannot be
prescriptive. The current DHS regulations allow for
IST--but do not require it under the performance-based
standards and the no ``one-measure'' language proposed
in the Chemical Security Act of 2008. Any new law
should adopt the current comprehensive regulatory
scheme and build upon the great effort and momentum
already established.
5. The section of the Act dealing with the formation of the
Panel on Methods to Reduce the Consequences of a Terrorist
Attack is in principle a good idea. However, an issue that
needs to be given some thought is trade secrets. Even though
the Act contains requirements with regard to protection of
information and confidentiality of documents, it stands to
reason that companies may feel restricted in providing certain
trade secret information when they know that such information
may be viewed by panelists who are employees of other companies
and competitors. Another issue is that the panel could well be
faced with a huge volume of work. There are thousands of
different chemical processes in use in the US. What works at
one facility is not necessarily appropriate at another
facility, even if they have the same feedstock and product.
6. The numerous uses of the word ``any'' could create a huge
amount of workload associated with the evaluations and
documentation of site vulnerability assessments (SVA) with
little benefit. For example, page 12, ``The identification of
any hazard that could result from a chemical facility terrorist
incident at the facility.'' Another example on page 12 is
paragraph E, ``Any vulnerability of the facility with respect
to------.''
7. Paragraph B on page 12 requiring the quantification of
consequences (``The number of individuals at risk of death,
injury, or severe adverse effects to human health as a result
of a chemical facility terrorist incident at the facility.'')
should be removed or modified. As was the case with the RMP
``Population at Risk'' values, the data are often taken out of
context or used inappropriately. Furthermore, there will be
significant variability in how these estimates are calculated
if performed by each company. It would be much better to have
these estimates generated by DHS based upon the inventories
provided by the companies, as is the case with current DHS
regulations.
8. Regarding SEC. 2110, section (a) METHODS TO REDUCE THE
CONSEQUENCES OF A TERRORIST ATTACK, it is not clear how item
(5) `procedure simplification', or (10) `reduction of the
possibility and potential consequences of equipment failure and
human error', would have an impact upon the consequences of a
terrorist attack.
Concluding Thoughts
I applaud the US Congress for providing leadership in this
important area of chemical security. It is clear that many companies
are taking reasonable and responsible steps in chemical security.
However, all facilities that handle, store, or transport hazardous
materials should be required to take such steps. That is why government
must develop and enforce good-science based regulations that set the
minimum and necessary standards for chemical security. These
regulations should be based upon good science aimed at making the
industry secure, avoid over-regulation, and create a level playing
field.
Terrorism should not only be expected from Al-Qaeda and its support
organizations, but from other sources as well, both home-grown and
foreign. In this respect, planning and response measures should be
based upon considering not only the existing structure of Al-Qaeda and
its support organizations, but also the looming threat of mutations of
Al-Qaeda and other terrorist organizations. As the Oklahoma City
bombing and the more recent London events have shown, the terrorists
could very well be our own citizens. As the mutation keeps evolving, it
is not unlikely that alliances would develop among Al-Qaeda type
organizations and other organizations or individuals who are
disaffected or anti-establishment for totally different reasons. In
fact, these organizations may be at odds with each other ideologically,
but may unite because they see the establishment as a common enemy.
Regardless of what steps are taken by government, industry and
other stakeholders regarding chemical security, it stands to reason
that a terrorist attack should be expected and will occur sooner or
later. As we know now, the 9/11 attacks were in planning for several
years. As the adage goes, the terrorists only have to be successful
once. Thus, it is imperative that the approaches taken be based upon
the triple-pronged philosophy: evaluation and assessment, prevention
and planning, and response and recovery. Planning and preparedness is
required for all three areas.
In closing, only through a comprehensive, uniform and risk-based
approach can we protect the people and communities of our nation as
well as protect our nation's critical chemical infrastructure. I am
encouraged by the leadership of Congress and the continued effort to
seek expertise and opinion from all stakeholders.
Thank you for inviting me to present my opinions and I will be
happy to answer any questions.
Attachment: WHITE PAPER
Abstract
This paper defines inherent safety and contrasts it with more
traditional approaches to safety. It illustrates through analogies with
common household examples the challenges faced in evaluating and
implementing inherently safer designs. The first challenge is simply to
measure the degree of inherent safety in a way that allows comparisons
of alternative designs, which may or may not increase safety or may
simply redistribute the risk. The second is that because inherent
safety is an intrinsic feature of the design, it is best implemented
early in the design of a process plant, while the US has a huge base of
installed process plants and little new construction. Thirdly, in
developing inherently safer designs, there are significant technical
challenges that require research and development efforts with limited
economic incentives. These challenges make regulation of inherent
safety very difficult. We believe that a coordinated long-term effort
involving government, industry, and academia is essential to develop
and implement inherently safer designs. A similar approach has shown
success in related areas such as green chemistry, energy conservation,
and sustainable development.
White Paper
Challenges in Implementing Inherent Safety Principles in New and
Existing Chemical Processes
What is Inherent Safety?
Inherent safety is based on the use of technologies and chemicals
with intrinsic properties that reduce or eliminate hazards. Inherent
safety is based on concepts known for more than 100 years (Kletz, 1998)
and is an approach to chemical incident and pollution prevention that
is in some ways contrary to traditional accident prevention and
mitigation methods. Traditional safety practices typically reduce risk
by lowering the probability of an incident and/or mitigating the
consequences of an incident. This approach alone, although extremely
important and generally effective, does not reduce the hazards of
serious chemical incidents because it attempts to control hazards
rather than eliminate them. Inherent safety is especially important in
today's world where terrorists may cause a chemical release by methods
that bypass or defeat normal safety systems.
The concepts of inherent safety as applied to chemical process
plant design has been discussed elsewhere (Mannan et al., 2002) and are
summarized below:
Intensification or minimization consists of reduction of
quantities of hazardous chemicals in the plant. ``What you
don't have can't leak''.
Substitution is the use of a safer material in place of a more
hazardous one. It may be possible to replace flammable
substances with non-flammable ones or toxic substances with
non-toxic ones. However, it is necessary to evaluate not only
the substance but also the volumes required.
Attenuation or moderation is the use of a hazardous chemical
under less severe conditions such as lower pressure or
temperature. Thus chlorine and ammonia are stored as
refrigerated liquids at atmospheric pressure rather than at
high pressure at ambient temperature. The lower pressure
results in lower leak rates and the lower temperature lowers
the vaporization rate.
Limitation of effects, by changing designs or process
conditions rather than by adding on protective equipment that
may fail. For example, it is better to prevent overheating by
using by using a fluid at a lower temperature rather than use a
hotter fluid and relying on a control system.
Simplicity: Simpler plants are safer than complex plants as
they provide fewer opportunities for error and contain less
equipment that can fail. Other principles such as, making
assembly errors impossible, and avoiding knock-on effects are
also inherently safer design concepts.
One of the most common accidents at home is falling on the stairs.
A home without stairs, i.e. a onestory bungalow, is inherently safer
with regard to falling on stairs than a two-story house. Even if the
stairs are equipped with handrails, non-slip surfaces, good lighting,
and gates for children, the hazard is still present (Kletz, 1998).
Obviously the choice of an inherently safer house implies positive and
negative consequences, which may include aesthetics, cost, and other
types of hazards. An elevator could reduce the use of stairs but
requires a large capital expense. During construction there would be
significant hazards to the residents and construction workers and the
stairs would still be necessary for emergency egress. Few families
would conclude that installing an elevator is the best use of their
resources.
Measuring Inherent Safety
While inherent safety is based on well-known principles,
difficulties have been encountered in adopting the principles as a
routine practice by industry. One of the first problems encountered
during application of inherent safety principles is the subjectivity
involved. The principles are descriptive rather that prescriptive,
hence they are subject to interpretation based on previous experience,
knowledge, and personal perception. A consequence of the subjectivity
is that a systematic methodology to measure inherent safety does not
exist, and it is not currently possible to know how inherently safe a
plant or an equipment item is because it is not possible to evaluate
how well the principles have been applied. If we cannot measure how
inherently safer the one story condo is with respect the two-floor
house, how can we choose the inherently safer option?
Several measurement and analysis tools have been proposed during
the last few years, but in general they focus on specific aspects of
the problem during a specific time in the plant lifecycle and are
difficult to apply. Besides the lack of measurement methodology,
inherent safety cannot be applied in the same way for existing
productive plants as for new facilities during the design stage.
Existing equipment and processes impose restrictions on changes towards
inherently safer technologies that might be implemented in an operating
facility. For instance it is not possible to turn a two-story house
into a bungalow without an extremely expensive modification. However,
other smaller changes can be implemented to obtain an inherently safer
house even if not so safe as the bungalow. Some types of staircases are
safer than others, e.g., short high steps are inherently more hazardous
than long low steps. Very low single steps are easy to be undetected
and cause accidents. Thus the possible solutions could be to avoid
single small steps and to use staircases with low and long steps or (as
suggested by Kletz) with frequent landings to reduce the distance and
height of a possible fall.
Evaluating and Comparing Design Options
The cost of applying inherent safety to existing facilities may
require significant financial resources but may also unintentionally
cause an increase in risk if it is implemented without a holistic view
of the plant. A chemical plant is a complex collection of intricate and
interconnected equipment, pipes, vessels, and instruments containing a
variety of chemicals. When a modification is made in one part of the
plant, other areas will be affected, requiring other changes in other
parts of the plant. If the safety impact of this cascade of changes
into other areas is not understood during the evaluation of the
original change toward an inherently safer plant, the final result
could be a less safe plant! A common example is the possible
substitution of a hazardous chemical substance, used in small amounts,
by another one that is more benign but is required in much larger
amounts. In this case it is difficult to evaluate which chemical is
actually the inherently safer option, because aspects such as
transportation, storage, and modification of the plant to work with the
new chemical must be included in the evaluation. There must be a
systematic assessment and minimization of all hazards together rather
than one at a time to avoid the appearance of unidentified hazards.
Application of inherent safety principles to operating plants is
possible (Hendershot, 1997) but implementation is subject to
constraints dictated by technical and economic factors.
The implementation of inherent safety for new plants is simpler and
cheaper because the design exists only on paper since nothing has been
built yet. However, since many inherently safer options may be
available and because a systematic analytical methodology is not
available, application of the inherent safety principles is still
restricted. Also, inherent safety is not absolute, it is site and plant
specific. For instance a two-story house may be safer than a bungalow
when located in an area threatened by frequent flooding. Therefore, a
solution that can be inherently safer for one plant may not be the best
option for the same plant in another location with a different
environment.
The application of inherent safety requires subjective judgment and
tradeoffs among several factors. Furthermore, the selection and use of
inherently safer technology does not guarantee by itself that a plant
will result in safer operation among its complex and interrelated
systems. For instance, a sick person with lung, heart, and digestive
problems can take the best medicine for each sickness, however the
interaction of those drugs may have catastrophic results rather than a
positive therapeutic effect.
The objective of inherent safety is to remove or reduce hazards.
The inherently safest case is the one with zero hazards, but this is a
limiting and unachievable case. Everyday life is plagued with hazards
that are intrinsic to our society. Removing all the hazards is not
possible. The situation of a chemical plant is very similar, and
therefore we can only aspire to design inherently safer plants. It will
be necessary to apply other methods to control the remaining hazards.
Therefore, it is still possible for incidents to occur but their
consequences are reduced.
It may also be true that it is really not possible to judge which
of two options is inherently safer. For instance solvent A is toxic but
not flammable, solvent B is flammable but not toxic. There may be no
``right'' answer. Also, the answer may depend on one's point of view. A
plant can use chlorine from 1-ton cylinders or from a 90-ton rail car.
To the operator who has to connect and disconnect cylinders several
times a day the rail car is inherently safer. To a neighbor several
miles away the cylinders are safer, they do not contain enough material
to affect him.
When new knowledge about chemical hazards or new technology is
available, our understanding of the inherent safety of a specific plant
can change. An example of this change is the adoption of CFC
refrigerant gases (Hendershot, 1995) that are not flammable or toxic
compared with ammonia, which was previously used. It has been theorized
(and widely accepted) that they destroy the earth's ozone layer and our
judgment of the inherent safety of CFC refrigerants relative to other
materials are radically changed. Inherent safety is therefore a
dynamic, subjective, and holistic concept that requires specific
measurement and analytical tools to evaluate. However, these tools are
under development and at present are not available for general use.
Without these analytical tools it is very difficult if not impossible
to impose restrictions, limits, and regulations to improve inherent
safety.
Inherent Safety can also be misused when decisions are subjective
and based on limited aspects without possibility of a methodical
analysis. For instance, a plant requiring a specific raw material
transported by rail can decide to improve the degree of inherent safety
by reducing the inventory of that hazardous chemical. Changing the mode
of transportation to truck results in a smaller shipment (and a smaller
inventory) but it also triples the shipment frequency. Thus the total
plant inventory is kept low but the remainder of the inventory is on
wheels traveling from the supplier's plant to the user's plant. This
example also shows an inherent safety complication that extends outside
the plant boundaries and represents an incorrect application of
inherent safety that cannot be detected without a measuring tool and
without analyzing the plant as a global system. In this case it is
inherently safer to maintain the large inventory inside the plant and,
as suggested by Kletz (1998), keep it under control by using good
design and operating practices that follow other concepts of inherent
safety (e.g., keep the design simple to avoid errors).
Progress to Date
We believe that many chemical plants have adopted the easiest and
most obvious improvements, such as reviewing chemical inventories and
reducing them when it is practical. This improvement is a natural
outcome of the Process Hazard Analysis that has been required of most
major facilities for the last 10 years.
Less hazardous solvents have been developed and are in use in some
processes (Crowl, 1996). Plants using hydrofluoric acid can now use an
additive that reduces the dispersion of this chemical during a release.
These developments however, required substantial time and cost to
develop, test, and implement. Many significant advances are possible
but they too will require research, development, and implementation
over a long time period. As shown above, the development of methods to
measure the inherent safety of various process options is an essential
first step to the widespread implementation of inherently safer
designs. The Mary Kay O'Connor Process Safety Center is currently
developing a method to measure inherent safety using fuzzy logic
mathematics.
Moving Forward
Regulation to improve inherent safety faces several difficulties.
One, there is not presently a way to measure inherent safety. Two, the
complexity of process plants essentially prevents any prescriptive
rules that would be widely applicable. At most it would seem that
legislation could explicitly require facilities to evaluate inherently
safer design options as part of their process hazard analysis, but
inherent safety would be almost impossible to enforce beyond evaluation
because of unavoidable technical and economic issues.
Government programs now support the research and development of
concepts such as ``green chemistry'', ``solvent substitution'', ``waste
reduction'' and ``sustainable growth'', which are related to inherent
safety. A similar approach involving industry, government, and academia
can enhance the discovery, development, and implementation of
inherently safer chemical processes.
References:
Crowl, D, ed., Inherently Safer Chemical Processes,
pp. 39--40, CCPS, New York (1996)
Hendershot, D.C. ``Conflicts and decisions in the
search for inherently safer process options'', Process Safety
Progress, 1996, Vol. 14, 1, 52.
Hendershot, D.C. ``Inherently safer chemical process
design'', Journal of Loss Prevention, 1997,Vol. 14, 3, 151--
157.
Kletz, T.A., ``Inherently Safer Design: The growth of
an idea'', Process Safety Progress, 1996, Vol.15, 1, 5.
Kletz, T., Process Plants: A Handbook for Inherently
Safer Design, p. 193,Taylor & Francis, Philadelphia (1998)
Mannan, M.S., D. Hendershot and T.A. Kletz,
``Fundamentals of Process Safety and Risk Management,''
Encyclopedia of Chemical Processing and Design, ed. R.G.
Anthony, vol. 69, Supplement 1, pp. 49--94, Marcel Dekker,
Inc., New York, 2002.
Ms. Jackson Lee. I would like to thank all of the witnesses
for their testimony. And I remind each Member that he or she
will have 5 minutes to question the panel.
Let me also make note of the fact I think the point that
was expressed by one of the witnesses regarding the potential
overhaul of the CFATS process and requiring industry to start
all over again, but I think it is important to note we are
having this hearing for the very reason to hear the broad
perspective, but as well that the draft bill is envisioned to
go into effect when CFATS sunsets. And frankly, we envision it
to extend CFATS with minor changes, and not really a complete
overhaul.
I think there are reasons to improve CFATS, and this
legislative initiative will make that effort and will work
toward that goal. That is why we are having this hearing, to
ensure that we have the right approach.
I will now recognize myself for questions, and I would
appreciate, since my questions are long, your brief answers,
and brief and thorough if that is a good combination. I do want
to, Colonel Stephan, start really with the comment that was
made again by one of our witnesses, I believe Mr. Miller,
giving you more resources, and I assume more personnel, which
certainly is troubling and of great concern. And so my first
question to you, and then I am going to follow it up--I am
going to give the first question and the second question
together, and then you can answer.
Appendix A, the list of covered chemicals and their
amounts, was finally released on November 2nd and published in
the Federal Register on November 20th. The regulations require
facilities that contain chemicals on the list above a given
threshold amount to complete a Top-Screen. Tell us how the Top-
Screen works; how many Top-Screen submissions have you had to
date, and how many do you expect; and how long does it take
your office to process a Top-Screen submission and inform the
submitter whether or not they fall under CFATS?
Start with the first question. Do you have enough
resources, and do you have enough personnel? And convince us of
that as we move toward the expanded responsibility that CFATS
is giving your division.
Colonel Stephan. Yes, ma'am. Thank you. At least we will
get one of the easy ones off the table as we start.
The resource piece has to involve, of course, a multiyear
commitment on the part of this administration and the next
administration, as well as this Congress and the Congress that
will follow.
The problem that I have as the implementer of the CFATS
regulation is that with the authority that was provided last
year in the 2007 Appropriations Act, not a whole bunch of new
additional resources was provided in concert with that new
authority. Thankfully, through the appropriators, we received a
$12 million supplemental appropriation that I received access
to at the end of August of this year. So a total of around $22
million has been dedicated to this effort for fiscal year 2007.
Of course, the Department budget submission requests
additional moneys for 2008, and we have just gone through the
Department-level budget discussions for 2009. And the
Department at the Secretary's level is very convinced that this
program needs additional resources in terms of both personnel
and people. I think----
Ms. Jackson Lee. So, Colonel, what you are saying is you do
not have enough resources. You would need more people and more
money.
Colonel Stephan. I don't. I need resources to continue in
the flow, to mean fiscal year 2008 and 2009 and beyond.
Assuming we are going to continue this authority in some venue
or some means beyond the sunset in October 2009, I need
continued resources.
Ms. Jackson Lee. You need resources now?
Colonel Stephan. Yes, ma'am, and I would love to get the
continuing resolution situation resolved so that I can get
complete access to my 2008 budget submission or whatever
Congress is going to give me in terms of resources.
Ms. Jackson Lee. And we look forward to the administration
cooperating with the Congress so we could move the CR. But in
essence you are saying that you don't have enough resources.
Let me jump you now to the explanation on the Top-Screen
question. Thank you.
Colonel Stephan. Yes, ma'am. In terms of the issuing of the
Appendix A on November 20th, together with the completion of
the 100 or so Top-Screens that we received through the
accelerated piece of this first part of the program, phased
implementation, we have 16,852 facilities that have registered
to complete the on-line process. And in hand now as of this
morning, I have 1,818 complete Top-Screen analyses. This
process will close out on the 22nd of January of 2008, and it
will take us somewhere within 30 to 45 to 60 days to complete
the analysis of the Top-Screen data as it has rolled in through
that 60-day window.
Then we will begin a Site Vulnerability Assessment process,
with the majority of the herd that kicked into motion with the
November 20th Appendix A release. We are beginning with the 100
facilities that have begun implementation in an accelerated
manner the SVA, or the Security Vulnerability Assessment
process now, and that we expect to take about another 2 to 3
months before we have the first tranche of 100 ready for----
Ms. Jackson Lee. Let me thank you. It looks as if I have
some follow-up, but let me quickly go to Mr. Miller to tell me
his experience in dealing with DHS, but in particular has his
BASF facilities completed Top-Screen? Have you received a
response from DHS telling you your facilities--whether or not
they are covered? Was the Top-Screen process straightforward
and understandable, and did you need assistance from DHS? You
might want to expand. I think you raised a question about
resources and personnel. Mr. Miller.
Mr. Miller. Thank you, Chairwoman Jackson Lee.
The point of the comment about resources, clearly our
experience with DHS, and we have been working with them back
when it was a voluntary program and also leading up to the
regulatory program, has been that we see very clearly that
considering the size of the chemical industry in the United
States, they do not have enough manpower, they do not have
enough resources to do the job that needs to be done here.
Ms. Jackson Lee. This is your perception now or when you
were interacting with them?
Mr. Miller. It has been continual. It is a situation much
like private industry. We are always asked to do a lot with
little resources, and we have seen that within DHS. They have
done an admirable job of getting where they are now with the
resources they have, but clearly they need more.
In response to the question regarding the Top-Screen
process, we very deliberately waited until the final Appendix A
came out. We initially thought we might go ahead and submit
some Top-Screens with the first Appendix A, but we decided to
wait. So we have now submitted Top-Screens, and I don't have a
final count or a current count on the number of sites that I
have had submit so far, but we are doing that on a daily basis.
The Top-Screens are being submitted.
To my knowledge, we have not gotten any direct feedback yet
on what tier we might wind up in, or whether we are regulated
or not. I haven't seen that on a daily basis. But we are
submitting those.
As far as the responses and so forth with DHS, when we do
have questions, and we have had some questions come up, it has
been very helpful to be able to call the help desk. And they
have been very responsive in either saying, you know what, I
don't have an answer to that, we will escalate it and get back
to you on the question. And so that has happened a number of
times for my project manager that I have got dealing with the
Top-Screen submission. And we are getting the responses back
from them, but sometimes it is taking some time to get it, and
I think that is a resource issue with them.
Ms. Jackson Lee. Thank you very much, Mr. Miller.
Quickly, Mr. Setley, I think it is important to involve
workers, and my question is have your workers been involved in
meaningful vulnerability assessments, and have they been
involved and included in developing security plans since they
are directly involved? In essence, they are the front-liners in
this whole effort.
Mr. Setley. Thank you, Chairwoman.
It has been my experience, and we cover--the area I
currently direct covers the entire Northeast, Mr. Sondermeyer's
wonderful New Jersey, where I must say we have had marvelous
experience with a lot of cooperative employers and involvement
of the workers on all levels in the security plans as well as
on the floor worker health and safety issues. So certainly New
Jersey is a shining dime we point to, quite honestly.
But on the whole, we have not had the--I will call it the
employer buy-in for worker involvement, because the employers
are very reticent to acquiesce what they perceive as their
power, if you will. Certainly the authority and the onus for
providing the workplace is clearly regulatorily understood;
however, any time an employer is asked by their workers or
their workers' agent, the union, to share that responsibility,
they are reticent.
Ms. Jackson Lee. So any legislation should work hard to
improve that relationship and clearly involve well-trained
chemical security employees in the process.
Mr. Setley. Yes, ma'am. Yes.
Ms. Jackson Lee. You think that would make for a safer
approach?
Mr. Setley. Yes. It is my experience, and I can't say it as
well as you did, but having the employer and the employees work
as a team, that synergy is the most effective for security and
worker health and safety.
Ms. Jackson Lee. All right. My time has expired. And I am
delighted to yield 5 minutes to the distinguished Chairman of
the full committee Mr. Thompson.
Mr. Thompson. Thank you very much.
Following up on this line of questioning, Mr. Stephan,
correct me if I am wrong. You say you have about 16,000
applications for Top-Screens.
Colonel Stephan. Sir, we have about 16,000 folks that have
registered through the on-line process to begin the process,
and we have gotten approximately 1,800 completed assessment
products in hand now from those facilities.
Mr. Thompson. Okay. Given your deadline for--you have a
deadline, I think, of about a year out?
Colonel Stephan. Sir, we have a deadline for submission of
the Top-Screen data to us that is January 22nd, 2008. So in
less than 60 days from now.
Mr. Thompson. But you don't have a deadline on completing
the applications, approving the applications?
Colonel Stephan. We expect it is around the October/
November time frame next year, 2008. We will be able--outside
the hundred or so facilities that we have parsed out in a very
special focused accelerated effort to begin the process of
inspecting the Tier I facilities and Tier II facilities
associated with this program. About a year from now we will
have the consequence assessments done, the site vulnerability
assessments done, the security plans done and approved by DHS,
and we will begin the first round of significant inspection
activity.
Mr. Thompson. What can we assure companies like BASF
Corporation that the experience they received for this process
won't be the standard operating procedure going forward?
Colonel Stephan. So that it won't be?
Mr. Thompson. Mr. Miller talked about how cumbersome, how
inflexible and the communication and some other things
associated with the application.
Colonel Stephan. Sir, I heard him say exactly the opposite.
I heard him say it was a very flexible process where we have
been responsive to his concerns as well as the concerns of the
industry. We established a 1-800 number help line. We get
immediate feedback to industry. I think we have attempted to
make this as user friendly as possible. I will let my colleague
explain further.
Mr. Thompson. Mr. Miller, can you help me out? You
described the process based on the chairwoman's questions.
Mr. Miller. Yeah, let me try to clarify that. We went
through the registration process with all of the sites that we
felt would fall under the new Appendix A and we began our top-
screen process. And I think where I may have been less than
clear is that when we did run into issues, when we ran into
some questions, we used the help desk at the 800 line to call
in and the response generally was very quick. Either they had
an answer or they were going to escalate it. Sometimes it took
a little longer than we would like to get that response back.
But I think it merely is a situation where they might not have
the right person to answer the question at that given time
considering the size of the effort here. And it takes some time
to find out or to research the answer to the question and get
back to us.
So I didn't intend for it to sound like a total indictment
of the lack of response. Certainly they have been responsive
and we have worked with them over the last few years in working
through this. But I continue to see that they have the need for
more resources to make sure that things are flowing smoothly,
especially as things move along, because things will get a lot
more complicated. Right now we are just doing somewhat of an
inventory.
Mr. Thompson. And I guess I was kind of moving into that
direction for the benefit of the committee, is to see again,
Mr. Stephan, whether or not you feel you have the complement of
staff necessary to manage this.
Colonel Stephan. The first year of this effort, 2007, has
been a rate development year and planning year. We had
sufficient resources to do that. Now with the Department's 2008
submission and what you will see from us in 2009 is the
requirement to boost the resources up to various levels of
intensity to account for now between the next phase of the
process, which is in analyzing the top-screens, the
consequences piece, doing the very technically complex
vulnerability assessments by site and the very collaborative
planning not just with the security planning and plan
development, not just with the sites and the facilities, but
also with State and local government partners. We have put in
our budget request to the appropriators, a logical, reasoned
increase so that I can get field staff in place, headquarters
management staff in place, additional resources to provide
additional analysis, so forth and so on. If those requests are
honored, I feel that I will have the resources I need to push
the program forward. Again, a multiyear commitment is required
from Congress and the administration, both this one and the
next to move this thing forward.
Mr. Thompson. And I think the members of this committee
have already seen--it appears that the administration is going
to submit a budget just the opposite of that for Homeland
Security and so I think we will have a challenge, Madam
Chairman, going forward, needing what has been established from
the staff and then resource standpoint if, in fact, the
President's initiative to reduce the Homeland Security budget
is approved.
And if I might--if you would indulge me for another minute.
Mr. Setley, the workers who you have who work in these plants
and those regulations that impact them, does your contract call
for those workers to be involved in doing security
vulnerability assessment or development for facility security
plans at all?
Mr. Setley. Not specifically. I have no contract language
that would specifically speak to the issue of plant security.
However, we have as pretty much a pro forma issue of health and
safety language which would be a joint committee of management
and labor generally shared by management.
Mr. Thompson. And that is the point. We generally have a
health and safety committee, but I think we have to go an
additional step and start talking about security. And the
reason I say this is we had similar experiences with rail, if
committee members remember. Generally, it is about a 15, 20-
minute video and a pamphlet. And that is to your security
training. And so we had to step in as Members of Congress and
mandate additional training for workers from a security
standpoint, not safety. And so many people tried to tie
security and safety as one. And I think what we are looking at
is making sure that the workers are involved in it, but also
that--but it is from a security perspective and not a health
and safety--health and safety is important, but this is the
other layer that goes with that.
Mr. Setley. Certainly labor would be happy to see any kind
of regulatory control and enforcement of that type of language.
Mr. Thompson. Thank you. I yield back, Madam Chair.
Ms. Jackson Lee. Mr. Chairman, Mr. Mannan would like to
respond to one your questions.
Mr. Mannan. Thank you, Madam Chairwoman.
Ms. Jackson Lee. And perhaps as the chairman asked a number
of questions, refer us to the question you are responding to.
Mr. Mannan. Yes. First, I want to respond to the question
of the resources. While Colonel Stephan and Mr. Miller have
shed some light on the resources currently available to DHS to
deal with current regulations, my concern is that if the IST
options and the proposed act are implemented, given what I
know, it is my humble opinion that there are no--not adequate
technical resources as the numbers to deal with the IST issues
that might come up both from the point of view of analyzing
those IST issues as well as enforcing them.
The second issue I wanted to refer to was with regard to
one of the questions that has been raised, is the issue of
employees. While I think consultations of employees and
involving employees is very important and should be done, but
it should be done carefully. There is a two-edged sword there,
and one of the issues we deal with in anti-terrorism issues is
the insider threat. In my own testimony I provided some
statements as to the threat from not only al-Qa'ida but
mutations of the organization of al-Qa'ida and their
associations with organizations that may have ideological or
different view, but maybe anti-establishment and may develop a
collaboration with al-Qa'ida type organizations. So insider
threat is an issue that is something that we need to be aware
of.
Mr. Thompson. You are correct and one of the panelists
talked about information protection as a real issue. And I
agree with you to some degree. We absolutely have to keep many
of the things that we know that are involved in these
facilities as secret as we can and not allow them to get into
the public domain, if you please, because that then enhances
the vulnerability of that particular facility if that breach
occurs. I agree with you.
Thank you.
Ms. Jackson Lee. Thank you very much, Mr. Mannan. I think
that was an important insight. I am delighted to yield 5
minutes to the distinguished gentleman from New Jersey, Mr.
Pascrell.
Mr. Pascrell. Thank you, Madam Chair, Mr. Chairman. Colonel
Stephan, would you say that New Jersey is the model that you
would suggest the Federal Government move towards in responding
to the risk factors contained in the chemical industry at
large?
Colonel Stephan. Sir, I have a great relationship with the
Office of infrastructure Protection under the Homeland Security
Adviser's supervision in New Jersey, And I would say overall in
terms of infrastructure protection they have a model program
for the Nation bar none. However, there are differences, very
crucial differences between this Federal CFATS regime and the
State regime. I, in fact, think that the Federal regime--I
don't want to use the word ``tougher,'' but I think it is more
comprehensive and more demanding than the New Jersey State
regime. We have a very unprecedented level of risk analysis
here, vulnerability assessments, collaborative planning,
inspections for compliance and some fairly stiff, heavy
financial penalties and the possibility of a cease operations
order that do not exist in the New Jersey statute.
Mr. Pascrell. But none of those actions have been taken
against any company?
Colonel Stephan. We are in the beginning phases of
implementing this program.
Mr. Pascrell. This is 6 years later. This is 6 years later.
Mr. Sondermeyer, how many people do you have working in what--
if I read correctly in your testimony, you have direct access
to Richard Canas. Richard Canas is the Director of Homeland
Security; is that correct?
Mr. Sondermeyer. Yes, he is, sir.
Mr. Pascrell. You have direct access if I am looking at
this correctly. And you undertake your preparedness to the
Domestic Security Preparedness Task Force.
Mr. Sondermeyer. Yes.
Mr. Pascrell. And how many personnel do you have that work
specifically on the chemical industry in the State of the New
Jersey? Which surprisingly has been very cooperative with the
Department. Isn't that interesting? Even though you have
stricter standards than the rest of the country, most of the
country, you have tremendous, God bless you, cooperation; is
that correct?
Mr. Sondermeyer. Yes, it is correct. We have had tremendous
cooperation.
Mr. Pascrell. How many people do you have working for you?
Mr. Sondermeyer. Dedicated to chemical facilities security?
None.
Mr. Pascrell. You don't have anybody?
Mr. Sondermeyer. Not dedicated. This is function----
Mr. Pascrell. It is shared. Is this a shared--I mean, who
checks out all of the chemical factories, the two-mile stretch
of the turnpike, for instance, which has been called by the
FBI, et cetera, et cetera, who does that work?
Mr. Sondermeyer. It is a collaborative effort. The Homeland
Security program itself under Director Canas is about--I think
the staff is about 200, 250 people, but that deals with the
intelligence and critical infrastructure and planning. The
State agencies like the DEP were assigned responsibilities to
organize and implement a program for sectors that we normally
work with, chemical, petroleum, water, wastewater, dams,
pharmaceutical, biotechnology and nuclear. So that is sort of
our purview. I am sorry I am not being really clear. We don't
have any dedicated staff that are funded----
Mr. Pascrell. They are shared staff?
Mr. Sondermeyer. All shared staff. But we do the
inspections. So we have inspected all the chemical facilities
for compliance with the standards and the best practices
between three, six, seven times.
Mr. Pascrell. I don't quite understand how 30 personnel can
cover the entire country of thousands of chemical facilities.
And in the center part of your question, Mr. Chairman, to the
witnesses, we are not serious about this. We don't have a sense
of urgency here. I mean, it doesn't make sense. We have got
2,000 that are compliant and have basically submitted what they
were supposed to submit in terms of this tiered sense of risk
that we have developed here. And we are concerned that one
State in the Union, which has attempted to be the pioneer in
this area where there are a lot of chemical facilities, which
is spending time to develop this inherently safer technology,
we are concerned that that State has taken action that is
working and yet why if those standards are working, why should
they be applied to the other chemical facilities throughout the
rest of the country? I don't understand.
I have got a question to you, Mr. Sondermeyer. I want to
ask you if you have read the draft of the Chemical Facility
Anti-Terrorism Act.
Mr. Sondermeyer. Yes, sir.
Mr. Pascrell. Do you feel that the draft provides enough
certainty to preserve the States rights? You referred to this
before in the vague statement that--I am trying to get in your
testimony where you referred to that vague part of the legis--
what was that last sentence?
Mr. Sondermeyer. It is section, sir, 21.07.
Mr. Pascrell. 21.07. You referred to--you specifically
picked out that phrase. Would you repeat the phrase?
Mr. Sondermeyer. Certainly. It is unless the State
regulation requirement or standard of performance would
conflict with the purposes of this title.
Mr. Pascrell. Now, that could mean anything, couldn't it?
Mr. Sondermeyer. That is our concern, sir, that--the first
part of the paragraph is very good and it seems to be clear on
the preemption issue and it seems to undo it with that language
which really isn't very clear.
Mr. Pascrell. Madam Chairwoman, Mr. Chairman, I think that
that phrase is critical to what I know you all are trying to
do. And this is nothing new. You said this last year and the
year before. And I think that that phrase needs to be
clarified. In fact it should be removed. It should be removed
altogether maybe, because on that hook you are going to see
more conflict in what we are trying to do on this committee,
both sides of the aisle, than anything else that I can find in
the draft or in the bill. Forget this is simply a repetition of
what is already there. This is nothing new. And I think that is
a way out. Do you see it as a way out, Colonel Stephan?
Colonel Stephan. Sir, I see no inherent conflict at this
point in time between any regulation and authority that the
State of New Jersey has on the----
Mr. Pascrell. But the phrase that Mr. Sondermeyer referred
to seems to be--it is like the door is opened so wide that you
can drive, you know, a couple of Mack trucks through it. Do you
agree with that?
Colonel Stephan. Sir, I don't agree with that because we--
--
Mr. Pascrell. So you like that phrase?
Colonel Stephan. We have very carefully considered that
phrase inside this language, inside our rule. It is very
carefully explained in terms of our view regarding State
preemption. It is not field preemption. It is specific conflict
preemption. And we see that the State regulatory authorities
and programs can and should be and are in fact at this point
very complementary to the thing we are trying to do at the
Federal level.
Mr. Pascrell. Madam Chair, can I just continue with one
question?
Ms. Jackson Lee. One more question.
Mr. Pascrell. Thank you. Colonel, then, you would keep that
phrase exactly as it is, correct?
Mr. Stephan. Sir, I would have to see that phrase in front
of me. I don't want to make an open-ended statement with a
document that I do not have in front of me.
Mr. Pascrell. I think this whole hearing is much more than
one phrase. But to me getting these facilities throughout the
United States to comply, to work together, the workers, the
companies is very important. They have been cooperative from
what I have seen in the State of New Jersey. Gee, who would
have thought? But it is possible. But if you open this door, if
you open this door, you are simply going to get a lot of
confusion, a lot of conflict and not resolution.
Madam Chair, I ask that you pay particular attention to
this. Thank you.
Ms. Jackson Lee. I thank the gentleman for exploring that.
His time has expired. It is now my pleasure to yield to the
distinguished gentlelady from New York, Ms. Clarke, for 5
minutes.
Ms. Clarke. Thank you very much, Madam Chair. And this is a
hearing of paramount importance, particularly to our region.
And, Assistant Secretary Stephan, I just wanted to follow up on
a question that Chairman Thompson raised with you just to get
some more clarity. Have you been able to do any approximation
or contingency plans on how to compensate for any financial
shortfalls you may have notwithstanding, you know, what you are
required to do in building out your Department's
infrastructure, one, and two, given the limited resources, have
you done any projections on the cost for human resource
requirements going forward?
Colonel Stephan. Yes, Madam. Again, we have fiscal year
2008 budget up for consideration on the Hill, as you know. We
are hoping to get that full accessibility of that funding as
quickly as possible. We have just gone through the 2009
budgeting process at the Department level, and I think you
would be very happy in this particular area with the support
the Secretary and the executive branch has put into this
particular mission focus, chemical site security going into the
2009 process. We have completed a manpower requirement study
based upon an initial universe of potentially 5,000 facilities
shredding out within a Tier I through IV construct and have
that information available in briefing format to provide to you
at your request, ma'am.
Ms. Clarke. I think that is some of what we are trying to
get to the bottom of here today. We don't want this issue to
sort of linger out there and then God forbid, you know, we are
not prepared for something that could occur in any region of
our Nation because, you know, we are still in the planning
process. I think it is very important that you share that with
this committee as soon as possible so that we can be advocates,
you know, in the upcoming fiscal years to make sure that what
is required we hold the line on. And we hope that you will be
really open and honest about that. Our mandate is really a
nonpartisan mandate. It is one that the American people expect
of us, given our experiences, and I can tell you as a New
Yorker I am really, really interested in making sure that we
get this right.
Mr. Sondermeyer, based on your regulatory experience in New
Jersey, do you feel that DHS has an appropriate number of
personnel to handle oversight of chemical security nationwide?
Mr. Sondermeyer. Thank you for the question. Before I
wasn't as clear perhaps as I could have been in terms of
resources. We don't have dedicated resources in New Jersey. But
just by example, just for the piece that our department has
been involved with, the sectors that I mentioned, chemical and
petroleum being part of that, we probably had about 200 people
engaged in that effort. Again, not in a dedicated function, but
as part of their job. So if the number used before of 40 or
whatever that number is of people that are going to be out
inspecting, that does seem to be from our own experiences a low
number.
Ms. Clarke. And you pretty much had to be creative and sort
of build out a new purview for your current workforce to
embrace in order to make sure those pieces are covered; is that
correct?
Mr. Sondermeyer. That is exactly right. We took existing
individuals, in particular working in our Toxic Catastrophe
Prevention Act program and give them a new responsibility which
was an add-on function and a critical one to implement the best
security practice oversight that we have done. So we built
those responsibilities into their existing inspections. And it
has worked, I think, as well as it could. It has worked well.
Ms. Clarke. And do you feel this is the future of what
those positions would hold or are you looking to us at the
Federal level to really create a dedicated and committed
workforce to deal specifically with this? I think this
definitely has to be State collaboration. But at the same time,
you know, as your workforce ages, will that be something that
becomes a best practice for your employees, or do you feel like
there is something that is missing and you are just basically
holding the line with what you have?
Mr. Sondermeyer. Yeah, it is a great question. I do think
as we evolve in the program, even with our program, and as we
work hopefully seamlessly with the Federal Government and DHS,
we do need to expand our technical expertise on security. The
folks that we have were not trained in security. They are
trained to do environmental protection work. We can only do
assessments to verify things were done. We are not doing, as an
example, detailed lighting plans to make sure the street lights
have enough lumens, that it is secure in that particular area.
We need to have that kind of expertise over time, particularly
for the most critical infrastructure sites, to make sure that
we get it right. And we do not as a State government currently
have that expertise. We are trying to build it within our
central security organization, which is our Office of Homeland
Security and Preparedness.
But we are a distance from having that level of expertise.
It is a great question.
Ms. Clarke. Thank you very much. Madam Chair, I yield back.
Ms. Jackson Lee. I thank the distinguished gentlelady. In
Mr. Pascrell's absence, we will explore the language that he
has pointed out, and I think he raises an important question,
to be able to discern what the purpose of those words are so
that we don't dumb down the responsibilities or the
achievements that a State has made.
Mr. Sondermeyer, I have a few more questions. Let me just
pose this question for you. I think the point you are making is
that--as great a work you are doing, there are gaps just
because of the nature of the structure that the State of New
Jersey has. You are out front on tapping in for the need for
chemical security but in essence in terms of elements that you
are able to oversee because of expertise, the Federal
Government's role would be helpful, be complementary,
particularly if they focused on some of the hard core security
issues that you might not be able to directly address; is that
correct?
Mr. Sondermeyer. Very well put, Chairwoman, yes.
Ms. Jackson Lee. So the approach we should look at is this
very important, firm complementary relationship and certainly
the Federal Government should have sufficient staff to build up
on that security aspect of it. Is that your----
Mr. Sondermeyer. Yes. And again the last policy point I
made about the delegated authority concept of letting us be the
agent for the Federal Government. We are running the program
now and as we mesh these things together, it would be great if
we could have that kind of collaborative relationship. We do it
in environmental law every day. It works well under a very
structured work plan which is called a performance partnership
agreement we have with the United States Environmental
Protection Agency. I think that is a model for how that
collaboration you are bringing up could work well.
Ms. Jackson Lee. So we should look to language in this
legislation that might create State and Federal partnership in
States that may be sufficiently far ahead which may help
Colonel Stephan's resource and personnel issue that he has to
address?
Mr. Sondermeyer. Precisely.
Ms. Jackson Lee. What do you think about outside auditors
or those private entities that contractually would provide
oversight, again adding additional staff to this process?
Mr. Sondermeyer. That certainly can be a positive thing to
do, sort of the independent third party assessor that would
come in, and it is something that might have to augment in the
absence of sufficient staff at the Federal level to perform
those functions. That would be, I think, a way that you could
go, yes.
Ms. Jackson Lee. Most chemical plants are--find themselves
at least in a sometimes massive way and limited way in
populated areas.
Mr. Sondermeyer. Absolutely.
Ms. Jackson Lee. New Jersey certainly is in a dense urban
area, near I-95 as well. So there is quite a bit of ingress and
egress of traffic. And certainly in my State in Texas in a
number of our--well, our complete refinery area there are
surrounding neighborhoods. What is your thought about including
language that would insist or require through DHS that there be
neighborhood evacuation plans and training plans that
incorporates the surrounding facilities? It may be businesses,
they may be residential, they may be, if you will, traffic
centers. What is your thought about that as an addendum to our
efforts?
Mr. Sondermeyer. Certainly appropriate as it would be
framed out and there was a lot of discussions about worker
involvement which we think is critically important and we have
involved the program. I think, neighborhood knowledge and
involvement is also important and I would say, Chairwoman, as a
potential example to look at would be the structure that is in
place through the Nuclear Regulatory Commission, evacuation and
off site contact, and if the slightest thing happens at a
nuclear plant there is an immediate requirement for a public
disclosure and we do have four nuclear plants in New Jersey. So
we do have a little bit of experience with that.
That might be the model, Chairwoman, of what I think you
are driving at. That could be something that could be
replicated to give that kind of involvement and forewarning in
evacuation planning.
Ms. Jackson Lee. Very good. Colonel Stephan, you as part of
the CFATS regulation; your office created a new class of
protected information called chemical terrorism vulnerability
information. As you know, we as a committee and frankly in
light of recent incidents that have occurred with the whole
umbrella of overprotected information, though we certainly
don't want to expose sensitive information to the general
public, I want to raise the concern that this proliferation of
new classes of nonclassified for protected information may
raise problems with trying to secure America. Explain why you
feel it is necessary, feel this new class of information is
necessary. What are the main differences between CPI and SSI,
which is the designation of information used under MTSA? And
have you received comment from State and local authorities as
well as the private sector about whether CVI serves as an undue
obstacle to the necessary sharing of information?
Colonel Stephan. We created this new information protection
regime, this category called CVI, for the simple reason as
follows. We are requiring now for the very first time a very
comprehensive and detailed set of information be provided us
from the private sector. Consequence information, vulnerability
information and very, very unique security plans. Many aspects
of this information will have to appropriately be shared with
State and local government partners, law enforcement and
emergency managers. We strongly feel that there is not any
existing security information, security protection regime that
affords the appropriate level of protection given the
incredible detail of this very sensitive vulnerability and
security information coming into us. Our requirement to share a
lot of it with the appropriate State and local officials just
doesn't exist anywhere.
Secondly, in terms of judicial proceedings, in terms of
enforcing this regulation or cases that come to courts, SSI or
sensitive security information and that regime, there is a lot
of leeway that a judge has in terms of how to protect that
information and what to do with it. In the statute that
provides us the implementing authority for this regulation,
CFATS were specifically required in those kinds of proceedings
to have an information regime in place, information sharing
regime in place that treats the information as if it were
classified information. So because of the level of detail, the
incredible number of detailed data bytes that will be coming in
to us, our requirement to share them collaboratively with State
and local partners, we have got to have more protection than
any current regime offers.
Also in terms of your point about have we received
information, yes, we have received information, good things and
bad things about the CVI program, from both the private sector
and State and local governments. We have a working group with
the private sector through our Chemical Sector Coordinating
Council that is focused on helping us get the right balance
between information protection and information sharing. And he
is of use on the industry side. And on the State and local
government side, the State of Michigan Homeland Security
Adviser, Brigadier General Mike McDaniel, is spearheading a
State and local task force which is co-chaired by the State of
New Jersey, coincidently Sherry Black of the Infrastructure
Protection Office there, to help us figure out how we are going
to implement CVI protocols with respect to State and local
government partners, law enforcement, Homeland Security
advisers and emergency managers.
Ms. Jackson Lee. Colonel, I know that your intent is good
and your efforts are to be commended. But there is a long
history of denying State and local governments the right kind
of information or the information that they need to ensure the
security of the homeland. Frankly, this committee is probably
unified in its opposition to overclassifying. And we have just
had, you know, an experience with a discovery of what probably
should have been well-known information, obviously outside of
the realm of this committee, but a destruction of the CIA of
very important information and destruction of tapes that
commented on that information or indicated information that
this Congress might have needed for better decision making.
Let it be clear that we are going to take a very close look
at overclassification of information that will be important to
securing the homeland, particularly in this area of chemical
security. So I hope the intent of our efforts here in this
committee will impact on you and I know that you are mentioning
requirements that you have and we may look at those
requirements because we think we are blocking cooperation as
opposed to helping it.
Mr. Miller, did you want to have a question or comment on
that, the classifying of additional information?
Mr. Miller. Thank you, Chairman Jackson Lee. I agree in a
lot of--in respect to what Colonel Stephan has said regarding
protection of information. The issues that we have with the
guidance that has been provided and how to go about handling
CVI classified information has to do with, for example, if my
chairman comes in and says so what are we doing about security
at a particular facility that is a regulated facility. Under
the current regulation and under my reading of the guidance
that has been provided, I cannot provide him that direct
information without him having to go on-line and take an on-
line training course on how to handle and properly manage this
type of information and then sign a nondisclosure agreement
with the Department of Homeland Security that says he won't
disclose this information to unauthorized parties. Believe me,
that is a tremendous hurdle for someone that is as busy as our
chairman of our companies are when I can sit down with him and
discuss this with him and enlighten him on what we are doing at
a particular facility, which I feel I am currently handicapped
on doing right now.
Ms. Jackson Lee. Because of this CVI?
Mr. Miller. That is correct.
Ms. Jackson Lee. I think the record should reflect that we
do have a difference of opinion, Colonel. And I believe that
the difference of opinion that the committee has is not to
expose sensitive material but it is to question the process of
declaring CVI material and how that impacts actually industry,
States, local government in doing their job of securing the
facilities in their area. So that is something we are going to
have under advisement and express concern either through a
legislative fix or otherwise.
Dr. Mannan, let me just raise the question. I think the
academic involvement--and you have raised some interesting
concerns about how we approach the training of employees in
making sure that we train them but provide protection to the
flow of information that might be detrimental in the hands of
others and we don't represent that employees are terrorists. We
represent that we want to be as detailed in how we handle
material and balance it by not overclassifying information as
well. But I also believe the academic partners are important as
relates to new technology, as it relates to new practices, best
practices.
So I raise the question of a thought of adding to the
legislation what we call chemical security centers of
excellence that might be placed on academic--on campuses that
would focus on how we improve security, how do we analyze
information. And they would not be analyzing information
received by DHS as much as they would be giving a roadmap and
plan for how you do it more effectively, how you train
personnel, how do you work with local and State governments.
What would be your thought about that kind of addition to the
legislation?
Mr. Mannan. I am totally in complete support of something
like that. As I mentioned in my oral testimony, this problem
requires the collaborative work of all stakeholders, and
academia should be a complete part of it. I would daresay that
academia has not done enough up to this point. But I think a
little prodding by the government might help in that direction.
I mentioned some of the things that we could do, for
example, building resilient engineering systems, building self-
healing plants, learning from nature in terms of biopneumatics.
Also in my written testimony there are other examples of things
like--for example, before 9/11, we never designed chemical
plants or the chemical infrastructure with terrorism in mind.
That never entered the equation. I think research definitely
needs to be conducted as to how we would design the whole
infrastructure with terrorism in mind. And that should have two
objectives. One, how would it impact new plants and, two, how
would it impact existing plants? In fact, one of the other
things we need to consider is that when we do permit new plants
should we consider things like prevention of significant
vulnerability, similar to air type of acts where we look at
prevention of significant deterioration of air emissions. So I
think I am on the same wave-length as you are in that respect.
Ms. Jackson Lee. Thank you. And as I listen to you, I know
that we have provisions for fencing in the legislation. Make
note of it. And the thought of safer technology, virtual
fencing, as we build new chemical plants and new refineries, we
should move to the next level or in the revising of a chemical
plant's security infrastructure through this legislation should
virtual fencing be part of an option of how you secure these
plants. And that, then, includes a whole new component of
staffing, which is a staffing constituency on site that
monitors in a more scientific manner the ingress and egress and
things going on inside the plant and outside the plant.
I frankly believe--Mr. Sondermeyer, you are shaking your
head. Is that something that would be worthy of consideration?
Mr. Sondermeyer. Yes. And certainly in New Jersey we have
tried to integrate that type of forethinking analysis. As an
example, we are developing a new Giants stadium up in our
Meadowlands complex. And as part of that, we did require
compliance with our best standards for Homeland Security. And I
think it is an excellent point. We really should be--any new
facilities we are building, they should be built with security
in mind as the professor is recommending as well.
Ms. Jackson Lee. Funny you should say that. We look forward
to having an infrastructure protection hearing on large venues
such as the stadium. And you or one of your representatives
from the State of New Jersey may be back in front of us again.
Thank you very much.
I want to take this time to give an opportunity for the
distinguished gentlelady from New York to ask a few questions.
Ms. Clarke. Thank you, Madam Chair. Professor Mannan, I
wanted to just sort of follow up on what the chairwoman has
stated to you or has raised as a concern. You speak extensively
about the importance of research and the creation of new
technology in securing chemical infrastructure. Do you get a
sense that DHS is doing enough to support such research? Are
there additional Federal assets outside of DHS that you have
identified that can facilitate and accelerate a support system
and is there more that we should be doing?
Mr. Mannan. That is a loaded question. I will try to answer
it as best I can. The short answer is that we are not doing
enough, both from the government perspective as well as from
the universities. Universities are probably notoriously slow in
moving and changing the research direction. But I think
government can play a very dominant role in making that change.
I can guarantee you if programs become available where they
will support research like this, you wouldn't imagine how many
professors will change their research goals and missions. That
would happen overnight, whether or not DHS has done enough in
funding some of these research.
Again, the short answer is no. The reason I believe it is
that DHS--I consider research like this at two or three levels.
The first level is guards, guns and gates, background checks,
putting up blockages, looking at lightings and things like
that. Those are the short-term issues. The long-term issues are
looking at these types of process changes and long-term
research issues like terrorism risk and plants, robust control
systems like even if some terrorists were to take over a plant,
the control system would be hard to compromise, things like
that.
Those kinds of things have not been funded. The other
government agencies that I have been disappointed with in terms
of funding and driving this kind of research are the agencies
like National Science Foundation, National Institutes of
Health, as well as NIOSH. I think they could be doing a lot
more in driving this research. And I do like the idea of the
chairwoman, funding centers of excellence in terms of these
areas.
Ms. Clarke. Thank you very much. Mr. Setley, what type of
collaboration do you feel must be established with the workers
in the industry and how should it be integrated into CFATS
regulatory process?
Mr. Setley. Thank you, by the way, for the question. It
would be our position in labor that the workers be intimately
involved in the formulation of any and all security plans,
first and foremost because it is where they work. They are
going to be the ones first and most dramatically impacted by
anything that happens. Rarely do people attack plants when they
are empty. The workers are going to be there, the workers know
where to hide the bomb. Those are the folks who need to be
involved and anything in a regulatory matter that requires that
is something that is going to be very beneficial not only to
the worker, but ultimately to the companies and communities
surrounding any of the plants.
Ms. Clarke. Do you feel that the voices of the workers have
been taken into account thus far?
Mr. Setley. Not as much as I would like.
Ms. Clarke. And what do you think that we can do to sort of
amplify that?
Mr. Setley. I think what we can do, we should all be doing,
is making requirements, not suggestions, requirements for all
of the stakeholders. I keep hearing the word ``stakeholders''
and certainly the workers are a stakeholder in the chemical
plant. Requiring that the stakeholders are involved, not
suggesting. We have to move away from hope to a point where we
have actual concrete language that we can point to say it is a
requirement and not a suggestion.
Ms. Clarke. Thank you. Mr. Sondermeyer, as the DHS chemical
facility anti-terrorism standards are beginning to be
implemented, is there anything you feel DHS should be doing
differently? How well is DHS coordinating with your State?
Mr. Sondermeyer. I do believe as the Colonel represented
earlier, we do work very well together and particularly we have
worked well together on critical infrastructure protection. I
do think there are some elements of the bill that are
critically important. One of them was the discussion we had on
access to information and confidentiality, and I am very
heartened that we have a State and local work group working
together actively to make sure that the CVI issue does not take
a turn that does not result in sharing of information. If we
don't share information with the State partner, you know, we
are not effectively working together. As I did mention, the
whole collaboration through a delegated authority we think is
something that is important so that we can work better
together. Because that is a concern that I have, that we go
down a road where we are not properly connected and we are--and
I think the chairwoman had perhaps used the term in her opening
statement of not reinventing the wheel--to not reinvent the
wheel so that we are working closely together, collaboratively
for efficient government for such an important topic as
homeland security.
Ms. Clarke. Thank you, Madam Chair.
Ms. Jackson Lee. Thank you, Ms. Clarke. Mr. Pascrell, do
you want to ask one or two more questions?
Mr. Pascrell. Thank you.
Ms. Jackson Lee. Thank you.
Mr. Pascrell. Mr. Sondermeyer, the chemical sector best
practices standards I failed to mention when I was asking the
question the first time. These are not mandatory, are they?
Mr. Sondermeyer. They are mandatory.
Mr. Pascrell. They are mandatory in the State of New
Jersey?
Mr. Sondermeyer. They are mandatory in the State of New
Jersey for a universe of approximately 157 facilities that
report under certain SIC or NIA codes.
Mr. Pascrell. And the rest had simply asked for an
evaluation, those other chemical facilities? Or was it
mandatory for every chemical facility in New Jersey?
Mr. Sondermeyer. Sadly it is very confusing. The base
program for implementing best security practices is applicable
to all 450 recognized DCPA, or discharge prevention facilities
in our State. The standards which go further and are mandatory
are applicable for 157 facilities. And 45 of the 157 were
required to do the----
Mr. Pascrell. But the inherently safer technologies is not
mandatory?
Mr. Sondermeyer. Mandatory to do the review, not mandatory
to implement the findings.
Mr. Pascrell. Now, New Jersey passed the Toxic Catastrophe
Prevention Act in 1986. In April of this year, the Department
of Environmental Protection proposed amendments to that act to
require all companies subject to the program to evaluate the
potential of incorporating inherently safer technology at their
facility. I think it is worth noting, as you have said in your
testimony, that in New Jersey the inherently safer technologies
requirement under the chemical sector best practices standards
represents a practicability test as I see it. It is not
mandatory that a covered facility implement IST, only that they
evaluate it. From your experience implementing a program in New
Jersey, do you feel that there is a cost/benefit relationship
to performing IST analysis?
Mr. Sondermeyer. Thank you. I would say, as I said earlier
in my remarks, that from our experiences working very
cooperatively with the chemical industry, that IST analysis is
really a good business practice. So there is a cost/benefit
analysis element to it. It makes sense from the company's
perspective to evaluate inherent safety and to make appropriate
changes for economic reasons.
We talked a lot about worker safety, which is of critical
importance. They look out for their employees and of course
from our perspective as a DEP regulatory compliance. So we do
think that there is a cost/benefit analysis positive to
performing the analysis. And as you referenced, sir, the
rulemaking that we proposed in April really takes the
requirement for inherently safer technology, which it has
already done for the chemical plants. And we feel so strongly
from our experience, we seek to expand it, to involve food
processing facilities, water treatment facilities, wastewater
plants and some energy facilities.
Mr. Pascrell. How many times do you meet with Mr. Canas to
go over what you find at these chemical facilities? He is the
head of Homeland Security in the State of New Jersey. What kind
of regular meetings do you have with him?
Mr. Sondermeyer. My response would be that our relationship
is pretty much seamless. It is an unusual program. We don't
have dedicated resources. But to directly answer your question,
I in my title as the Chief of Staff, Director of Operations am
with folks from Director Canas' office every other week. Every
2 weeks we have a structured meeting to coordinate.
Mr. Pascrell. Will the new CFATS regulations require those
facilities to make significant security upgrades, and my second
question is without identifying the facility, the facility's
name or location, can you describe the security measures your
facilities are putting in place? Could you give us an idea of
what they are doing to make the place safer? Because we know if
one of these things goes off in terms of the volatility of the
chemicals we have got a natural disaster.
Mr. Sondermeyer. Right. Yeah.
Mr. Pascrell. Or a very unnatural disaster.
Mr. Sondermeyer. Right. I think it is fair to say that the
measures put in place are very comprehensive and sweeping. It
is hard to answer really specifically because each plant is
different. And that is why the site specific vulnerability
assessment is so critical. So you look at each individual
circumstance. Target hardening certainly has been done across
the board in terms of fencing and scanning and bollards and
whatever target elements are put in place, cyber security
protocols, which is of critical importance.
We had some experiences in New Jersey where a system went
down for a few days. It paralyzes you. Cyber security is very
critical. Badging and credentialing, background checks, you
know, who can access, who can't access, who is looking at the
Sparkletts water person or the Purolator courier delivery
person. All these elements have been part of the best practices
that we adopted that they had to evaluate and come up with
schedules for implementing.
Mr. Pascrell. Madam Chairwoman, can I ask one more question
of Mr. Miller?
Ms. Jackson Lee. Mr. Pascrell, if you can be very quick on
that last question. And then if Mr. Miller--please abbreviate
your answer.
Mr. Pascrell. Could you be as nonspecific as I asked Mr.
Sondermeyer to be in terms of the facilities under your
jurisdiction?
Mr. Miller. Well, first of all, Congressman Pascrell, we
have got a limited number of facilities in New Jersey and we do
have a presence there. So anything--I have got to be very
careful about not getting real specific about what we have done
at our facilities. I will concur with Mr. Sondermeyer, that the
measures that he mentioned we do in fact have. I will say that
we also helped write the best security practices that are in
place there.
Mr. Pascrell. I think that is important that you mention
that.
Mr. Miller. But I also will point out that in the
inspections that were done in reaction to the IST requirements,
the focus tended to be because he has already said that their
people were trained on the DEP side, that the focus tended to
be on what type of evaluation we did related to IST and the
focus was not as heavy on what kind of security measures we had
in place. From a security professional, that is a concern of
mine, that the focus moves from the overall security posture
that we have in place as opposed to focusing on one particular
security measure.
Mr. Pascrell. I think that is significant what you just
said in that we need to be doing more things in terms of the
security rather than talk about the safety aspect of this whole
situation. I think that is very important that you mentioned
that.
Thank you very much. Thank you for all your testimony.
Thank you.
Ms. Jackson Lee. The gentleman's time is expired. I thank
Mr. Pascrell. He made a very, very key, if you will,
distinction that defines the Homeland Security Committee and
Department. And that is the idea of security and, Mr. Pascrell,
it seems that when we discuss this issue there is an enmeshing
or a fudging of the safety security definition and many people
will wonder why our additional oversight because they say we
are safe. But safety is not security. And frankly I believe it
is important that the conclusion of this hearing, and there may
be a need for another hearing to indicate that we are going to
have legislation, the focus will be on security. And the idea
will not be to stifle the productivity and growth of the
industry. But it is to recognize that the chemical and refining
industry many times are located in the seat of population, they
remain vulnerable because they are old, their equipment is old,
and we hope that this oversight will be taken as a positive
step, one, to look to 21st century technology to provide a
vehicle for academic institutions, to begin to assess cutting
edge technology that will be helpful to the industry and, as
Mr. Setley has said, to make chemical security employees on the
frontline providing security in those areas. And as I am
continuously concerned with surrounding neighborhoods, to let
them not be acted upon, but to have them act with us in
securing their neighborhoods.
And finally, Colonel, as I started out this hearing, we
thank you for your service. There has been a decided
improvement and recognition of your commitment to the security
of America. It is our responsibility as members of this
committee to in essence turn the lights on, pull the covers
back and pronounce the need for more resources and more
personnel and not run from it and not hide from it and ask this
administration if they recognize that you have the needs that
you have. We will be the voice because we have to be the voice
for the people. And frankly I believe that there is a great
need to be able to bolster your department for the many
infrastructure needs that we are going to be addressing that
are now still in the eye of the storm. And certainly you don't
have the resources to cover that gamut. We don't want to give
the details to those who are our enemies, but we want to be
prepared to be in front of the enemies and not behind them.
So we thank you for your testimony, all of you. Certainly,
Mr. Sondermeyer, we thank you for representing in essence the
States and their work and we look forward to working and
collaborating with them. Mr. Miller, send the word out to the
industry that we are not foes, but we need to be allies in the
war against terror and the idea of securing the homeland. I
thank the witnesses for their valuable testimony and the
members for their questions. The members of the subcommittee
may have additional questions for the witnesses, and we will
ask you to respond expeditiously in writing to those questions.
In addition, I ask for unanimous consent that these
testimonies and reports be entered into the record, Synthetic
Organic Chemical Manufacturers Association report entitled
Chemical Security New Jersey, completed by the Maxwell School
at Syracuse University. Dr. Mannan, there goes the academic
report.
[The information follows:]
For the Record
Submitted to the
U.S. House of Representatives
Committee on Homeland Security
Subcommittee on Transportation Security and Infrastructure Protection
On
U.S. Department of Homeland Security's Chemical Facility Anti-Terrorism
Standards (CFATS) and Other Related Chemical Security Matters
Prepared by
William E. Allmond, IV, Director, Government Relations, SOCMA
with
Jeffrey Gunnelfsen, Senior Manager, Government Relations, SOCMA
DECEMBER 12, 2007
I. Introductory Comments
SOCMA appreciates the opportunity to submit this testimony
regarding the implementation of the U.S. Department of Homeland
Security's (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) and
other related chemical security matters. Our goal is to provide you
with a description of the effects of the Agency's new chemical security
standards are having on the specialty and batch chemical manufacturing
sector. We also want to share our position on the use of inherently
safer technology (IST), as well as our opinions on the Department's
staffing and resources.
About SOCMA. Approximately 90 percent of SOCMA's members are small
businesses, according to Small Business Administration definitions.
While commodity chemicals make up most of the production volume in the
global marketplace, specialty and batch chemicals make up most of the
diversity (the number of different chemicals) in commerce. As a
condition of membership in SOCMA, chemical companies must subscribe to
our environmental, health, safety, and security management system,
ChemStewards. This self-imposed program requires companies to develop
systematic approaches to environmental and chemical risk management
with independent, third-party verification.
II. The Unique Nature and Role of Specialty and Batch Chemical
Manufacturing Sector
Specialty and batch chemicals are essential ingredients and
building blocks for the manufacture of almost everything produced in
the United States. Specialty and batch chemicals perform very specific
functions, based largely on their molecular structures, giving them
unique physical and chemical properties. Without these substances,
nylon would not be strong enough to use for seatbelts, medicine would
revert back to what it was in the 1800s, and our armed forces would not
have the equipment and supplies necessary to defend our country.
Specialty batch chemicals have complex chemistries and narrowly
focused applications, and are typically produced batch-by-batch in
reaction vessels. Batch processes are very different from the 24 hours-
a-day, 7 days-a-week continuous operations that produce commodity
chemicals. Since continuous processes employ continuous feeds and
yields, the production volume is usually far greater than for batch
processes. The main difference, however, is that a batch process,
incorporates the chemical reaction (and yields the desired product),
has a distinct beginning and end for each batch. As a result, the
products that are stored onsite also change on a continual basis.
Batch producers are necessarily flexible, and they can make many
different products during any given production year. Their business is
driven by customer demand, and many chemicals are made on short notice.
As a result, the types and quantities of chemicals onsite at a batch
manufacturing facility often change from week to week or even day to
day, leading to similarly frequent changes in the risk profile of the
facility. Because of the differences in processing and variable
production schedules, another distinct feature among specialty and
batch chemical producers is the variability of risk at production and
storage sites. This ever-changing risk profile can be a challenge for
risk managers, but it also provides opportunities to continually review
the chemistries for novel and safer approaches. Conveniently, frequent
changes in the risk profile also makes it that much harder for a
potential terrorist to know what chemicals are on site and in what
quantities at any one time. The inherent variability of batch
manufacturing can actually make these sites less attractive as a target
of terrorists.
III. Implementation of CFATS and Path Forward
With the November 20, 2007, Federal Register publication of
Appendix A to the Chemical Facility Anti-Terrorism Act standards, the
chemical security regulations are finally being implemented. It is
premature to judge today how well the implementation of the standards
is or will unfold. Nevertheless, there has been progress made that is
worth noting, in addition to concerns with the direction of the
standards going forward.
The approach taken by the Department in promulgating the standards
is the right approach. The Department kept the potentially regulated
community engaged during the development process rather than seeking
input only after the fact. Instead, DHS carefully took into
consideration how important it is to know who is handling dangerous
chemicals, and limiting regulations to the highest risk chemicals at
the sites that pose the highest security risk to the nation. It would
have been far too easy to make one-size-fit-all regulations. The
practical, risk-based standards that emerged mandate robust,
accountable actions with stiff penalties for non-compliance.
An important point to understand is that the industry did not wait
for federal standards before taking actions to secure their facilities.
Millions of dollars have been invested following 9/11 to implement
additional security measures above and beyond those that are put in
place in accordance with normal operating procedures at a chemical
facility. In 2002, SOCMA and its members developed a comprehensive,
asset-based security vulnerability assessment methodology (SVA) and
voluntarily completed assessments years prior to CFATS. The methodology
was eventually recognized by the Center for Chemical Process Safety
(CCPS) as a recommended methodology. Additionally, SOCMA members have
been required to integrate security practices into their management
system, ChemStewards, which is mandated by SOCMA.
Some other security achievements prior to CFATS finalization that
are especially noteworthy include the Chemical Industry Site Security
Guidelines, that SOCMA cosponsored in 2001 to serve as a temporary, but
timely, compilation of security best practices. SOCMA has also
sponsored numerous well-attended conferences and web-based seminars
since 2001, which have established a higher degree of attention to
chemical plant and chemical transportation security following 9/11.
SOCMA helped lead the development of the Chemical Sector Coordinating
Council, which assembles the various sectors of the industry to discuss
priority security issues and provides a forum to exchange information
about threats and vulnerabilities with DHS and other key Federal and
State government agencies.
These examples only scratch the surface in listing the activities
and achievements made by the industry to better secure their facilities
and products. The bottom line is SOCMA and its members took and
continue to take the initiative in addressing chemical security
challenges. DHS's new security standards will complement many of these
achievements and provide for additional safeguards where necessary.
The biggest concern we have about the implementation of CFATS is
the possibility of having the requirements altered by Congress in mid-
stream before the standards expire. The single fact that the standards
expire within a short window of time after being promulgated is
difficult enough--though not impossible--for members, particularly from
a planning and implementation perspective. On the other hand, the
limited timeframe given to the implementation of CFATS further
underscores why Congress should resist calls from special interest
groups to revise the standards now. SOCMA urges Congress to not delay
further the implementation of this important set of regulations. While
we are confident that our members are prepared to comply with the
standards, the extent of security commitments by other facilities
subject to CFATS is unknown. These standards provide unified
regulations and will go a long way towards holding covered facilities
accountable. We look forward to working with Congress in the future to
re-authorize the CFATS.
IV. SOCMA's General Position on IST and the Commonwealth of New
Jersey's Inherently Safer Technology (IST) Review Under its Toxic
Catastrophe Prevention Act (TCPA)
SOCMA members covered by New Jersey's chemical security rules
report that the rules have not been overly burdensome. However, they
also report that inspections conducted by the State focus 80 percent on
a site implementation of IST and only 20 percent on actual security
regulatory compliance. Since many sites in New Jersey are also subject
to Federal rules, such as the Environmental Protection Agency (EPA)'s
Risk Management Program (RMP) and the Occupational Safety and Health
Administration (OSHA)'s Process Hazard Analysis (PHA) regulations, in
addition to state rules, one could question the priority of the New
Jersey security program.
The New Jersey ``prescriptive order'' did not go through due
process (notice and comment) and rulemaking, denying the regulated
community the opportunity to comment on the rule and resulting in a
number of issues and gaps that could have been easily avoided or
otherwise addressed.
IST is only one of many methods for potentially reducing risk and
vulnerability. Vulnerability assessments should consider the
feasibility of a multitude of methods that would improve security while
achieving the optimum balance of vulnerability reduction cost
effectiveness. From our members' experience in New Jersey, as stated
previously, the focus of the vulnerability assessments was entirely on
IST to the point of essentially neglecting all other methods of
improving security. Since IST has long been an integral part of
designing a facility and regular plant health assessments, the newly
required New Jersey vulnerability assessments audits were of very
little value because of its narrow focus. The New Jersey security
process could be greatly improved by broadening the scope to include
the entire available spectrum of physical security tools and processes.
SOCMA recognizes that employee awareness, knowledge and assistance
may be necessary in identifying and effectively managing security-
related scenarios. However, employee inclusion throughout the entire
vulnerability assessment process adds little security expertise and
raises concerns regarding the protection of Security Sensitive
Information (SSI) or Chemical-terrorism Vulnerability Information (CVI)
discussed during the process. Furthermore, the protection of security
information (non-disclosure) provisions in the prescriptive order and
under New Jersey law are insufficient and fall short of federal
information protection standards for security related information
On a federal level, SOCMA believes that the DHS has a useful role
to play in encouraging the private sector to incorporate IST as a means
to reduce security risks at chemical facilities wherever possible.
However, we do not support regulatory measures that mandate IST. Such
mandates are unnecessary and, in some cases, would fall short of their
intended purposes.
Supporters of regulatory IST measures within the context of
chemical security either ignore industry's commitment to this every day
process safety measure or they misunderstand its purpose. In the name
of security IST is being used to support environmental agendas and not
security. IST is an established chemical engineering philosophy that
was launched by the industry in the late 1970s. Its goal is to use
traditional engineering, chemistry, and other scientific concepts to
reduce the risks associated with chemical processing. Risk and safety
are often used in the same context, but the two actually have an
inverse relationship: as risk is reduced, safety is increased. Since
its inception, IST has been ingrained as a normal part of the
engineering discipline in the chemical industry.
The main goal of IST is to reduce risks to health and the
environment, similar to the goals of pollution prevention (P2) and risk
management in general. The idea is to tie risk reduction to lower
operating costs, which is fairly straightforward in the chemical
industry. The costs associated with handling materials classified as
hazardous have increased substantially over the past 20 years. The
economic incentives for reducing the use of hazardous chemicals include
reducing the likelihood of accidents among laboratory and processing
workers, cheaper transportation and disposal costs, discounted
insurance rates and fewer regulatory requirements. Obviously, it is in
a chemical companys best financial interest to handle less hazardous
substances; it reduces costs, which helps maximize profits. The concept
of risk reduction, practiced through IST, P2 and other environmental
management systems, is an important feature of the business model
employed by chemical producers. The same principle applies for those
who use, store or distribute chemicals. In many ways IST is already
built into the chemical supply chain.
The pilot phase in research and development (R&D) typically
attempts to replicate the bench-scale results at a slightly larger
scale. The process (i.e., chemical reaction and necessary equipment) is
reviewed in detail and tweaked accordingly. The R&D phase may continue
and include trial usage at the customer's site, to check product
performance, ensure that the product can be used safely and make sure
that there are no unaccounted risks. IST does not stop at the R&D
phase, however. This approach is also applied when full-scale
production begins, to double-check findings from earlier studies. If
changes in production are made at some point in the future, the review
process is conducted all over again to see what impacts the changes
will make.
IST approaches are based on fundamental, long-standing engineering
and chemistry principles. The concepts associated with IST work because
they identify opportunities to maximize yields, reduce wastes and
reduce risk, which, in turn, reduce cost and maximizes profit--the most
powerful driver in business. Even if the conditions in the market place
change, such as new regulations or restrictions, the fundamental driver
for business decision-making will continue to be the maximization of
profit. IST uses fundamental engineering and chemistry principles that
fit well into the chemicals business model.
Despite its fundamental importance, IST is one of the most
misunderstood concepts in commercial chemistry. While it seems self-
explanatory, the term as used in chemistry and engineering may be
misleading to non-scientists. Many non-scientists have been led to
believe that the only way to ensure safe chemical manufacturing or
achieve pollution prevention is by reducing the amount of hazardous
substances used in chemical manufacturing and processing. Application
of IST, however, follows basic, scientific principles, and is bound by
the laws of physics; a simple reduction in the use of hazardous
chemicals is rarely possible within the confines of a particular
chemical reaction or process. When such reductions are possible, they
often result in the transfer of risk to other points in a chemical
process or the supply chain, without actually reducing it. To place the
current IST debate in context, this discussion will begin with an
illustration of the limitations of substitution in the field of
chemistry, and then move to an explanation of why reducing a hazard in
a process does not necessarily reduce the overall risk.
Like IST, chemistry is also bound by the laws of physics. These
physical laws place restrictions on what can and cannot be done when
trying to make a chemical. For instance, a molecule (i.e., a chemical)
is made up of atoms (e.g., sodium, carbon, chlorine, etc.) that are in
specific locations or positions on the molecule. In organic chemistry,
the goal is to take the atoms from one molecule and move them to
locations on another, different molecule so that the target molecule
takes on a specific function or behavior.
The laws of physics dictate if, how and when those atoms can be
moved. To achieve certain critical structural changes, reactive
chemicals must be used, and many are by their very nature hazardous,
e.g., toxic, flammable, etc. In light of these constraints, scientists
seeking to achieve certain chemical changes are often left with few
alternatives. Where hazardous chemicals are used, they are highly
regulated by EPA, OSHA, the Department of Transportation (DOT) and
other agencies, and appropriately managed by chemists in universities,
government and industry. Scientists usually cannot produce the
materials that make our standard of living possible without using very
specific chemicals. Making medicine is a good example.
Often, it takes multiple steps to make medicine. Each step in the
process carefully moves atoms from one molecule to locations on another
molecule. Eventually, the scientist will obtain the desired chemical
that performs a precise medicinal function. The movement of these
atoms, from one molecule to another, is a chemical reaction and can
only take place using certain materials. The chlorine atom, for
instance, when it is located on a specific part of a molecule, allows
these steps to take place. One common misconception, though, is that
any chlorine atom will do. That is not the case. Chlorine atoms take on
different behaviors, or physical properties, depending on the atoms to
which they are attached.
Table salt consists of the sodium (Na) and chlorine (Cl) atoms,
which make up the chemical sodium chloride (NaCl). The chlorine atom
used to make medicine, on the other hand, often comes from phosgene
(COCl2) or phosphorous trichloride (PCl3). Phosgene, for example, has
one carbon atom bonded to one oxygen atom and two chlorine atoms,
giving the chlorine atoms very specific characteristics. The sodium
atom that is attached to the chlorine atom in table salt, however,
gives the chlorine a different nature. The very specific nature of the
chlorine atom in phosgene is critical to its fundamental role in
pharmaceutical manufacturing and minimizes the formation of potentially
toxic by-products that would otherwise contaminate the medicine. By
contrast, to use the chlorine in table salt in the drug manufacturing
process would require the application of electrical energy to the salt,
resulting in the formation of chlorine gas, which is corrosive and
poisonous by inhalation. At that point, it is no longer table salt; it
has been converted into a compound (chlorine) with similar hazards to
the phosgene and achieving that conversion required the introduction of
additional risks. The complex chemistry associated with making medicine
has well-defined physical boundaries and requires the use of reactive
chemicals. That is why, generally, medicine is not made from table
salt.
IST is a conceptual and often complex framework that covers
procedures, equipment, protection and, when feasible, the use of less
hazardous chemicals. Its premise is that if a particular hazard can be
reduced, the overall risk associated with a chemical process will also
be reduced. In its simplicity, it is an elegant concept; however,
reality is not always that simple. A reduction in hazard will reduce
overall risk if, and only if, that hazard is not displaced to another
time or location, or does not magnify another hazard. If the hazard is
displaced, then the risk will be transferred or increased, not reduced.
In science, risk is dependent on the circumstances and surroundings of
a hazard. A simple reduction in hazard will not necessarily result in a
reduction of overall risk. IST decisions, therefore, are and should be
based on overall risk, not simply on inherent hazards.
Here are several examples of how seemingly simple reductions in
hazard may affect overall risk:
Reducing the amount of a chemical stored on site
A manufacturing plant is considering a reduction in the volume of a
particular chemical stored on site. The chemical is used to manufacture
a hazardous precursor to a critical nylon additive, which is sold to
another company and used to make seat belts stronger. Because it is a
critical component for nylon strength, and seatbelt production cannot
be disrupted, the production schedule cannot change. If the amount
stored on site is reduced, the only way to maintain the production
schedule is to increase the number of shipments to the site. This leads
to more deliveries (an increase in transportation risk), more transfers
of chemical from one container to another (an increase in transfer
risk) and, since there is now a greater chance that production could be
disrupted by a late shipment, there is an increase in economic risk.
Substituting Sodium Hypochlorite for Chlorine
Some people point to the Blue Plains water treatment plant in
Washington, DC, as a prime example of how easy it is to substitute
sodium hypochlorite solution for chlorine gas as a wastewater
disinfectant. Unfortunately, several important facts are usually
missing from these explanations. First, the conversion was not an
overnight process; in fact, the substitution began prior to September
11, 2001, and included costly retrofitting to the plant to accommodate
the substitution. Secondly, the District of Columbia is in a different
situation financially than other municipalities, in that it often
receives federal funding to make such expensive changes possible. Also,
it takes a large amount of sodium hypochlorite to achieve the same
sanitizing effects as chlorine. But the most important fact missing
from this story is that it takes chlorine to make sodium hypochlorite.
The facilities producing the hypochlorite must now use and store vast
quantities of chlorine in very few locations to keep up with the
increased demand. There are only a handful of sodium hypochlorite
producers in the United States, which means that more and more chlorine
will have to be concentrated in a few locations to keep up with demand.
The ultimate result of this is a huge increase in risk at chemical
facilities that produce hypochlorite and, since water treatment plans
typically use 1-ton cylinders, a somewhat modest reduction in overall
risk.
As noted earlier, the philosophical movement of IST was born in the
chemical industry during the late 1970s and is routinely practiced by
chemical engineers. It can be argued that this approach, along with the
concept of P2, led to the establishment of environmental management
systems, which provide a systematic way to manage environmental, health
and safety risks. At no time during the evolution of IST were the
founders thinking about applications in chemical site security. In
fact, practitioners of IST, i.e., chemical engineers, to this day
consider IST strictly an environmental, health and safety approach.
Only recently have some people sought to connect the concept of IST
to security; and, they are typically not engineers, nor do they
practice IST. In fact, most do not have the technical background to
fully grasp the concepts and principles that comprise IST. Further,
they misunderstand that IST is a risk-based concept and not a hazard-
based concept.
To SOCMA's knowledge, only one study has been conducted to attempt
to connect the concept of IST to security. In April of 2006, the Center
for American Progress published a report, Preventing Toxic Terrorism,
How Some Chemical Facilities Are Removing Danger to American
Communities, which claims that 284 chemical facilities have substituted
hazardous materials for less hazardous products. It is easy to
misinterpret this report. Just the title alone is misleading, because
it uses the term ``chemical facilities,'' when, in fact, approximately
90 percent of the study facilities are related to utilities, not
chemical plants. Most of the facilities in the study are related to
water treatment (about 75 percent), agriculture (almost 10 percent) and
electricity (about 5 percent). Out of the 16 manufacturers that
responded, only 6 were in the chemical or allied products industries.
Most of those 6 make formulations, which are mixtures of chemicals, but
those companies do not actually produce the chemicals. The IST methods
applied were as follows:
3 moved operations or storage to another location
1 changed from rail shipments to pipeline distribution
1, a chemical wholesaler, provided no explanation of
what was done
Only 1 company actually implemented IST; but, in
reality, it was an engineering and process change more than a
chemical substitution
This study has little to do with chemistry or chemical
manufacturing. It primarily concerns the substitution of products used
by water and electricity providers, and farmers.
In most cases presented in the report, chlorine was substituted
with sodium hypochlorite solution. As was previously pointed out, it
takes chlorine to make hypochlorite bleach; therefore, the few bleach
manufacturers will have to have much more chlorine on hand,
concentrated in very few places, to keep up with the ever-increasing
demand for hypochlorite solution. This not only transfers the risk, but
concentrates it and magnifies it--due to more chlorine being needed at
the bleach manufacturing sites. Also, commercial grade hypochlorite
solutions present very well-known risks as well.
The prefix ``hypo'' indicates that the compound has as much
chlorine as is physically possible and needs a specific substance to
prevent the chlorine gas from being released out of the hypochlorite
solution. Hypochlorites by their very nature are unstable compounds,
which is why we do not see a dry form of sodium hypochlorite, and will
release copious amounts of chlorine gas under easy-to-achieve
conditions. I would argue that there are more incidents involving the
release of chlorine from hypochlorites than releases from actual
chlorine vessels, such as rail cars and cylinders.
The only example in the report of IST being used at an actual
chemical facility was the substitution of oleum with sulfur trioxide.
Oleum, also known as fuming sulfuric acid, is simply sulfuric acid with
an excess of sulfur trioxide added. The sulfur trioxide is the chemical
consumed in the process, and is much more dangerous than the sulfuric
acid. The company chose to manufacture and consume the sulfur trioxide
on-site, rather than having it delivered in concentrated sulfuric acid.
This is an excellent example of IST, because the transportation and
transfer risks were reduced, and waste was minimized. These changes
will probably pay for themselves and reduce overall costs for the
company in the long run. In the context of security, however, is there
a significant amount of risk reduction? It could be argued that the
answer is no. Although oleum releases sulfur trioxide fumes, it does so
at a rate that is much slower than a release of pure sulfur trioxide
from a pressurized cylinder or rail car. Because of the slow release of
sulfur trioxide gas from the oleum, a release would be fairly easy to
control compared to a release of liquefied or pressurized sulfur
trioxide.
IST uses chemistry and engineering principles to enhance safety and
reduce risk. Chemistry and engineering must follow the laws of physics,
significant risk reduction is very difficult to achieve, without
transferring the risk to something--or someone--else.
Congress already created a law to ensure that full consideration is
given to the same concepts and principles that make up IST: The
Pollution Prevention Act. There are also components of IST built into
the EPA's Risk Management Program, under the Clean Air Act, and the
Process Safety Management regulations at OSHA. IST is an environmental,
health and safety approach, and not a panacea for security.
Members of the industry support the concept of using inherently
safer technologies whenever possible for more than economic reasons.
They have a big motivating factor: their own safety. Scientists spend
hours each day in laboratories and manufacturing facilities that use
and produce chemicals. It is difficult to imagine that any scientist
would not want to work under the safest conditions possible.
With all of these economic and safety incentives in place, the
question becomes: Why do chemical companies still use hazardous
materials? The laws of physics are a much larger determining factor in
selecting process materials than anything else. No federal program
mandating IST or P2 will change how these processes are run in any
significant way. Instead, such a program would result in government
micromanagement of the design and engineering at individual facilities,
would impose burdensome paperwork requirements on the regulated
community, would duplicate certain key requirements of other federal
and state regulatory programs, could slow chemical production
activities, and could lead to manufacturers moving production overseas.
Forcing implementation of IST could be quite costly. As the cost of
doing business in the U.S. increases, manufacturers will seek
opportunities to relocate to lower-cost regions, taking much needed
manufacturing jobs with them.
V. CVI
SOCMA generally supports the level of information protection
provided for under CFATS CVI provisions. Most military, industrial
security, law enforcement and intelligence professionals agree that the
protection of information that could be exploited by adversaries is
paramount to a security program. SOCMA's biggest concern is the lack of
a notification procedure to alert facilities that CVI may have been
disclosed to an unauthorized party. A facility certainly has a need to
know if sensitive information pertaining to its site has been
disclosed.
Additionally, some uncertainty exists with managing facility
security information that is now classified as CVI. When the U.S.
Department of Transportation adopted its sensitive security information
(SSI) designation several years ago, there was widespread confusion
over how to adequately restrict access to documents that were once
openly available to employees and how to convincingly communicate this
to employees who were subsequently restricted because they were not
authorized users.
VI. DHS Staffing/Resources
SOCMA would like to recognize DHS for the good work that they have
done in a limited amount of time and with limited resources. They have
created a sensible security program that is risk based, recognizing
that not all chemical sites are the same nor will they all have the
same hazards or pose the same risks. SOCMA does request that Congress
provide additional resources to the DHS CSCD to ensure the program can
continue to fulfill its mission.
VII. Conclusion
Compliance with the U.S. Department of Homeland Security's Chemical
Facility Anti-Terrorism Act standards is now underway. It is too early
to judge how well the implementation of the standards will unfold.
Nevertheless, it is certain that statutory changes to the standards
before they expire will undermine the implementation. Attempts to
mandate product substitutions as a means to reduce security risks
should be avoided. Current standards are appropriately based on risk,
not hazards. There are numerous well-established State and Federal
regulations that industry must currently follow that adequately mandate
process safety, pollution prevention, and process hazard analysis. In
conclusion, the current standards need to be allowed to be implemented,
CVI needs to be further explained, and IST is not the solution to
chemical site security.
Ms. Jackson Lee. And with that, hearing no further
business, hearing no objection to the submission of these
particular documents and then hearing no further business, the
committee stands adjourned. Thank you again. Happy holiday to
all.
[Whereupon, at 12:05 p.m., the subcommittee was adjourned.]