<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:34855.wais]
H.R. 5695, CHEMICAL FACILITY ANTI-TERRORISM ACT OF 2006
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ECONOMIC
SECURITY, INFRASTRUCTURE PROTECTION AND CYBERSECURITY
of the
COMMITTEE ON HOMELAND SECURITY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JUNE 29, 2006
__________
Serial No. 109-90
__________
Printed for the use of the Committee on Homeland Security
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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COMMITTEE ON HOMELAND SECURITY
Peter T. King, New York, Chairman
Don Young, Alaska Bennie G. Thompson, Mississippi
Lamar S. Smith, Texas Loretta Sanchez, California
Curt Weldon, Pennsylvania Edward J. Markey, Massachusetts
Christopher Shays, Connecticut Norman D. Dicks, Washington
John Linder, Georgia 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
Jim Gibbons, Nevada Columbia
Rob Simmons, Connecticut Zoe Lofgren, California
Mike Rogers, Alabama Sheila Jackson-Lee, Texas
Stevan Pearce, New Mexico Bill Pascrell, Jr., New Jersey
Katherine Harris, Florida Donna M. Christensen, U.S. Virgin
Bobby Jindal, Louisiana Islands
Dave G. Reichert, Washington Bob Etheridge, North Carolina
Michael T. McCaul, Texas James R. Langevin, Rhode Island
Charlie Dent, Pennsylvania Kendrick B. Meek, Florida
Ginny Brown-Waite, Florida
______
Subcommittee on Economic Security, Infrastructure Protection, and
Cybersecurity
Daniel E. Lungren, California, Chairman
Don Young, Alaska Loretta Sanchez, California
Lamar S. Smith, Texas Edward J. Markey, Massachusetts
John Linder, Georgia Norman D. Dicks, Washington
Mark E. Souder, Indiana Peter A. DeFazio, Oregon
Mike Rogers, Alabama Zoe Lofgren, California
Stevan Pearce, New Mexico Sheila Jackson-Lee, Texas
Katherine Harris, Florida Bill Pascrell, Jr., New Jersey
Bobby Jindal, Louisiana James R. Langevin, Rhode Island
Peter T. King, New York (Ex Bennie G. Thompson, Mississippi
Officio) (Ex Officio)
(II)
C O N T E N T S
----------
Page
STATEMENTS
The Honorable Daniel E. Lungren, a Representative in Congress
From the State of California, and Chairman, Subcommittee on
Economic Security, Infrastructure Protection, and Cybersecurity 1
The Honorable Loretta Sanchez, a Representative in Congress From
the State of California........................................ 3
The Honorable Peter T. King, a Representativein Congress From the
State of New York, and Chairman, Committee on Homeland Security 16
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Ranking Member, Committee on
Homeland Security.............................................. 16
The Honorable Sheila Jackson-Lee, a Representative in Congress
From the State of Texas........................................ 42
The Honorable Stevan Pearce, a Representative in Congress From
the State of New Mexico........................................ 40
WITNESSES
National Petrochemical & Refiners Association:
Prepared Statement............................................. 5
David Moore, Acutech Consulting Group, Chemetica, Inc.:
Prepared Statement............................................. 8
Michael A.L. Balboni, New York State Senator and Chairman, NYS
Senate Standing Committee on Veterans, Homeland Security and
Military Affairs:
Oral Statement................................................. 16
Prepared Statement............................................. 18
Phillip J. Crowley, Senior Fellow and Director of National
Defense and Homeland Security, Center for American Progress:
Oral Statement................................................. 21
Prepared Statement............................................. 23
Scott Berger, Director, Center for Chemical Process Safety,
American Institute of Chemical Engineers:
Oral Statement................................................. 25
Prepared Statement............................................. 27
Martin J. Durbin, Managing Director, Federal Affairs, American
Chemistry Council:
Oral Statement................................................. 32
Prepared Statement............................................. 34
For the Record
A Letter from Representative Frank Pallone....................... 4
H.R. 5695, CHEMICAL FACILITY
ANTI-TERRORISM ACT OF 2006
----------
Thursday, June 29, 2006
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Economic Security,
Infrastructure Protection, and Cybersecurity,
Washington, D.C.
The subcommittee met, pursuant to call, at 10:09 a.m., in
Room 311, Cannon House Office Building, Hon. Dan Lungren
[chairman of the subcommittee] presiding.
Present: Representatives Lungren, Rogers, Pearce, King, ex
officio; Sanchez, Jackson Lee, Langevin, Thompson, ex officio.
Mr. Lungren. Welcome to this hearing of the Subcommittee on
Economic Security, Infrastructure Protection, and Cybersecurity
of the Committee on Homeland Security. Today, we are going to
be considering H.R. 5695, the Chemical Facility Anti-Terrorism
Act, which was introduced yesterday.
By some accounts, chemical facilities across the Nation
number close to 15,000. This industry employs some 5 million
Americans. It is the largest exporting sector in the economy
and the largest private investor in research and development.
By one account, 96 percent of all manufactured goods
directly involve the use of chemicals. Chemical facilities
produce our medicine, they give us clean water, fertilize our
farms, manufacture goods essential to our national defense and
our modern way of life. As a result the chemical industry is
critically important to our safety, our national defense and
our economic vitality.
It is our chemical dependence and the potential harm that a
certain number of these chemicals pose to human life that makes
these substances attractive as terrorist targets. In order to
protect our citizens and ensure national and economic security,
we need to secure America's chemical facilities against
potential terrorist attacks. Any regulation of this industry
must take into account the varying types of facilities such as
agriculture, timber, paper products, food, mining, paints,
pharmaceuticals and petrochemicals just to name a few.
We must take into account the need for these types of
chemicals and their importance to our daily lives. We must be
able to secure the facilities without sacrificing their
continued economic benefits. H.R. 5695, I believe, does that.
This bill stresses the importance of security regulations
based on risk, based on performance and based on flexibility.
What do I mean by that? It means that the Secretary will be
required to tier or rank each chemical facility based on the
risk of the facility to a terrorist attack. Each tier then will
be subject to performance-based security requirements. These
requirements would set the bar of security expected to be met
by the facility.
The facility will then have the flexibility to choose the
security measures necessary to meet their requirements. That
may mean physical security, such as fences or barriers, guards
or cameras. That may mean controlling access to the facility
and screening employees. It would include cybersecurity
measures such as securing computer networks, automated or
communication systems, or hardening equipment. In most cases,
it will likely mean a combination of these. This bill gives
that flexibility to the owner-operator of the chemical
facility, but in the end they must meet those performance
security requirements and their plan must be approved by the
Secretary.
This is obviously a big change from the voluntary
requirements now in place. All facilities will be evaluated for
risk and be required to take appropriate steps to address their
vulnerabilities. And while some chemical facilities have
already done this, for the first time, the Secretary will have
the authority to review and verify the vulnerability
assessments and the facilities' security plans, require their
implementation and enforce their compliance through
administrative, civil or even criminal penalties. Facilities
will be required to periodically review these plans, ensuring
that they are up to date and protecting against the latest
threats.
Just a few weeks ago Secretary Chertoff stated the time has
come to have a chemical security bill that gives the Department
the tools to have intelligent regulation of the chemical
industry, particularly with respect to these high hazard
chemicals. I agree with the Secretary. We need to have
intelligent regulation of the industry.
This bill is a huge step towards securing our chemical
facilities in an intelligent manner. With an industry as large
and diverse and as essential as the chemical industry, we
cannot afford inflexible or unreasonable requirements for all
of our 15,000-plus chemical facilities.
I also agree with the Secretary, the time has come for
Congress to take action. While we have seen that some in the
Appropriations Committees have thought that that was their job,
we have not been silent. We have not been standing by. We
recognize that much has been done to date to secure our
chemical facilities, but that the patchwork implementation and
the lack of authority to ensure compliance requires action by
Congress.
This will be the first time the Department has been given
new regulatory authority over an industry, and we understand
while that is essential, it is also essential that we do it
correctly. However, after a year of oversight by this
subcommittee, the urgency of securing our chemical facilities
with a Federal standard is clear. I hope that this hearing will
stimulate discussion on the importance of this issue and will
help to inform and improve the bill now being considered.
I would like to thank all of our witnesses for joining us
today. We have a wide range of expertise on the panel. I look
forward to hearing your testimony on the bill.
Lastly, I would like to thank the ranking member of the
subcommittee, Ms. Sanchez, and the ranking member of the full
committee, Mr. Thompson, for all of their work on the bill. I
would like to thank the staffs, both majority and minority, for
their work on the bill.
I am pleased to say, the bill is the product of months of
bipartisan negotiations between members and staffs, and while
we have had some disagreements during the course of those
negotiations, by and large, we have found agreement, and by and
large it has been done with a spirit of true bipartisanship.
I would now like to recognize the ranking member, Ms.
Sanchez, for any opening statements she may wish to make.
Ms. Sanchez. Thank you, Mr. Chairman, and thank you to the
witnesses for joining us today.
I think it is an important issue to discuss the security of
chemical facilities and specifically as it relates to this
Chemical Facility Anti-Terrorism Act of 2006 that we are
considering. Frankly, I think this legislation is long overdue.
I think we need a baseline for chemical facilities, and I am
pleased that Chairman Lungren, Ranking Member Thompson and I
were able to work on this, quite frankly, in a very bipartisan
way that I believe is the first critical step in ensuring the
security of our Nation's chemical plants.
The legislation creates a process for the Department of
Homeland Security to identify which chemicals, at what
quantities, are substances of concern. Facilities that possess
substances of concern over the threshold quantity will be
identified as significant chemical facilities, assigned to a
risk-based tier and required to submit vulnerability
assessments and security plans to the Department for review and
approval. While the vulnerability assessments and security
plans will be reviewed against security performance standards
for all facilities, we provide sufficient flexibility so that
each facility may use different methods for strengthening
security or reducing the consequences of an attack according to
its unique situation.
For example, facilities could elect to use inherently safer
technology to reduce the consequence of an attack, and the
facility would be in a lower-risk tier; or the facility may
choose to use existing technology and operate in a higher-risk
tier. Sort of the same way you decide what type of premium you
are going to pay on your insurance liability plans, for
example.
I am particularly pleased that the legislation contains
whistleblower protection to ensure that chemical facility
employees that report security violations to the Department do
not face retaliation from their employers; and I am also
pleased that the bill establishes a security baseline for
chemical plants in all States that must be met, but it doesn't
limit States' ability to meet and surpass the Federal
regulations. And as you know, both the chairman and I come from
California, and I think we have much deeper concern for
regulation in that State.
So I look forward to hearing the feedback from our
witnesses and to discussing this issue.
Mr. Chairman, with your indulgence, I would also like to
submit three documents into the record this morning: a letter
from Representative Frank Pallone, who, as you know, is on the
Energy and Commerce Committee, commending the committee for
holding this hearing; secondly, testimony from Greenpeace on
the security benefits of using inherently safer technologies;
and spreadsheets showing examples of committee members'
districts, where companies changed to inherently safer
technologies, and the benefit to the surrounding population
because of those changes at those chemical plants.
So if you will
Mr. Lungren. Sure. Without objection, they should be
entered into the record.
Ms. Sanchez. Thank you, Mr. Chairman. I yield back.
[The information follows:]
For the Record
House of Representatives,
Washington, DC, June 29, 2006
Chairman Dan Lungren
Rankng Member Loretta Sanchez
Subcommittee On Economic Security, Infrastructure Protection, and
Cybersecurity, Committee on Homeland Security,
House of Representatives, Washington, DC
Dear Chairman Lungren and Ranking Member Sanchez,
I would like to commend you on your decision to hold a hearing on
the important issue of chemical security. Nearly five years after the
terrorist attacks of September 1th, 200 1, Congress still has yet to
comprehensively address the vulnerabilities of chemical facilities, a
significant oversight in our efforts to protect the homeland. We have
waited far too long to take action.
This is a particularly important issue for my home state of New
Jersey. Our state's combination of being the most densely populated in
the country as well as being home to a large number of chemical
facilities and refineries means that our citizens face particular risks
from a terrorist attack or other incident.
That's why I believe it is critical to ensure that any federal
legislation concerning chemical security does not preempt or otherwise
interfere with the ability of New Jersey and other states to go beyond
federal law. I am concerned that the draft legislation in front of the
Subcommittee includes a provision stating that states shall not issue
laws or regulations that would "frustrate" the federal law. It is not
clear what "frustrate" even means, but I fear it could be used by
industry to delay or block state efforts.
I am also concerned that the legislation does not include any
provisions addressing the use of inherently safer technology (IST). IST
is a critical tool necessary to lower the overall risk posed by
specific facilities. Under my proposed legislation, the Chemical
Security Act (H.R. 2237) facilities would have to examine as part of
their vulnerability assessments whether using IST would reduce the
risk. My legislation does not include statutory requirements for
specific changes, and it does acknowledge that certain technologies are
economically unfeasible. It is instead a common-sense measure to make
sure that facilities and the federal government examine whether
reducing the amount or type of certain substances at a given facility
would reduce the inherent risk.
I hope that the Subcommittee closely examines both of these
critical issues as it moves forward with its proposed legislation.
Again, let me thank you for taking long-overdue action on a very
serious part of our homeland security. I look forward to working with
you in the future.
Sincerely,
Frank Pallone, Jr.
Member of Congress
Mr. Lungren. Two interested parties requested the
opportunity to submit testimony for the hearing record in
addition to those noted by the gentlelady from California. That
is the National Petrochemical & Refiners Association and Mr.
David Moore, of AcuTech Consulting Group, Chemetica, Inc. I
would ask unanimous consent that these two testimonies be
entered into the record.
Without objection, they shall be.
[The statement of National Petrochemical & Refiners
Association follows:]
Prepared Statement of the National Petrochemical & Refiners Association
Introduction
NPRA, the National Petrochemical and Refiners Association, submits
this statement for the record for the June 29, 2006, hearing on the
Chemical Facility Anti-Terrorism Act of 2006. NPRA has more than 450
member companies, including virtually all U.S. refiners and
petrochemical manufacturers, their suppliers and vendors. Petrochemical
companies use manufacturing processes similar to those in a refinery.
Both industries' facilities would be covered by the facility security
legislation being considered by the Committee. NPRA companies supply
consumers with a wide variety of products used daily in their homes and
businesses. These products include gasoline, diesel fuel, home heating
oil, jet fuel, lubricants, and the chemicals that serve as building
blocks for everything from plastics to clothing, medicine and
computers.
In this statement, NPRA outlines how the refining and petrochemical
industries are performing the critical task of maintaining and
strengthening the security of our national energy and petrochemical
infrastructure. Although we do not advocate legislation on this
subject, NPRA reviews our principles for new chemical security
authority in federal legislation. It is our hope that the Subcommittee
will look favorably upon these principles as it moves forward to
consider chemical security legislation.
Refining and Petrochemical Facilities Continue to Implement Strong and
Effective Security Measures
Maintaining the security of our facilities has always been a
priority at refineries and petrochemical plants. Refiners and
petrochemical manufacturers are heavily engaged in maintaining and
enhancing security - and were so before September 11. These industries
have long operated globally, often in unstable regions overseas where
security is an integral part of providing for the world's energy and
petrochemical needs. When the tragic events of September 11, 2001,
occurred, the nation realized immediately that additional steps had to
be taken in order to protect our homeland. The refining and
petrochemical industries did not wait for new government regulations
before implementing additional and far-reaching facility security
measures to address these new threats.
What are some of the steps our industry has taken to strengthen
security? Industry has developed and utilized a sophisticated, peer-
reviewed security vulnerability assessment (SVA) methodology to guide
facilities as they identify security hazard threats and vulnerabilities
and to identify appropriate security measures. The Department of
Homeland Security (DHS) has endorsed this methodology and has used it
to train its employees. With the information developed in the SVAs,
industry has adopted facility security plans and implemented strong and
effective security measures. (See the Attachment for a partial list of
the types of security measures that have been implemented.)
In addition to moving forward with enhanced security measures,
industry has developed close working relationships with key federal
agencies and state and local law enforcement offices to obtain and
exchange information critical to maintaining infrastructure security.
Industry works with about a dozen federal agencies including the FBI,
the Department of Transportation, the Department of Energy, the
Department of Defense, the CIA, the Government Accountability Office,
and, of course, the Department of Homeland Security and its various
components, including the U.S. Secret Service, the Transportation
Security Agency, and the U.S. Coast Guard.
Industry has held joint training exercises simulating terrorist
attacks and developed educational programs involving federal and state
government officials with security expertise. Industry has partnered
with the DHS on many important security initiatives and programs,
including development of the National Infrastructure Protection Plan
(NIPP), sector specific plans (SSP), the Risk Assessment Methodology
for Critical Asset Protection, or RAMCAP, the Homeland Security
Information Network (HSIN), and Buffer Zone Protection Plans. Industry
personnel from the largest companies to the smallest have shared best
industry practices at NPRA meetings and conferences.
In addition to these voluntary activities, a majority of the almost
150 refineries and 200 petrochemical manufacturing facilities in the
United States are subject to the jurisdiction of the U.S. Coast Guard,
and are therefore regulated pursuant to the security requirements of
the Maritime Transportation Security Act (MTSA). The Act requires that
these facilities conduct security vulnerability assessments and submit
facility security plans to the U.S. Coast Guard. These security plans
were submitted by facilities in December 2003 and approved by the Coast
Guard. NPRA members continue to work with the Coast Guard to meet the
goals of the Act.
With this strong evidence of our commitment to facility security as
background, NPRA urges the Subcommittee to consider our principles for
chemical security as it considers the Chemical Facility Anti-Terrorism
Act of 2006.
NPRA's Principles for Chemical Security
NPRA does not oppose reasonable chemical security regulation;
however, the existing system is working well and care must be taken to
"do no harm" to current efforts as new chemical security authority is
fashioned for DHS. We have adopted the following principles that should
be reflected in any chemical security bill.
1. Security legislation should give credit for voluntary industry
activities. Refiners and petrochemical manufacturers have conducted
security vulnerability assessments and adopted facility security plans.
Any new legislation should recognize and give credit to these companies
for the security programs they have already implemented.
2. Security legislation should require that DHS develop a risk-
based approach to regulating both chemicals and facilities. DHS should
develop a list of chemicals of interest based on security risk as the
qualifier for a chemical site to be regulated. The RAMCAP project will
be one tool for DHS to use to assess security risk. DHS should also be
given flexibility to set the appropriate chemical thresholds based on
risk.
3. Security legislation should provide for federal preemption of
state and local chemical security laws and regulations. Many of the
challenges that arose after the recent Gulf Coast hurricanes stemmed
from the conflicting and often confusing expectations of different
political jurisdictions. Refiners and petrochemical manufacturers
cannot reasonably be expected to change their plans and operations to
meet state or local requirements that are inconsistent with those of
the federal regulatory scheme.
4. Security legislation should reject any provisions that
indirectly or directly involve "Inherently Safer Technologies" (IST).
IST is not a security tool; it is a back-door approach to unnecessary
environmental controls. In some instances, IST requirements could
actually increase security risks. For example, reducing the volume of a
hazardous chemical stored at a facility could reduce on-site risk, but
it would increase truck, rail, or barge traffic to maintain supplies of
needed raw materials. Overall risk would therefore increase.
5. Security legislation should fully recognize existing U.S. Coast
Guard jurisdiction over facility security under the MTSA. Any chemical
facility legislation should explicitly state that facilities in
compliance with MTSA are also deemed to be in compliance with any new
DHS program. It should be incumbent upon DHS to coordinate with the
U.S. Coast Guard and identify any new facility security requirements
that may be deemed to apply to MTSA-regulated facilities. In addition,
some facilities are only partially covered by MTSA. In these cases, we
would suggest that those facilities be given the option of submitting
security plans to the Coast Guard where logistically appropriate.
Legislation or subsequent regulation should allow this type of "opt in"
activity to occur.
6. Security legislation should give sufficient protection to the
security-related sensitive information required to be submitted to DHS.
Government officials should not release sensitive security-related
information to other government agencies whose mission has little to do
with security. Even more problematic is the chance that this
information would be released to outside interest groups. Access to
sensitive information should be strictly limited to the owner or
operator of a facility and to DHS.
7. Security legislation should impose penalties fairly and
recognize good-faith efforts to comply. In general, NPRA does not favor
criminal penalties for parties required to comply with a sweeping new
regulatory mandate in a short period of time. If Congress decides to
include criminal penalties in chemical security legislation, those
penalties should be assessed only for violations that occur both
"willfully" and "knowingly." The word "knowingly" may mean simply
acting with an awareness of one's actions, while the word "willfully"
usually means acting with the knowledge that the action, or the
inaction, is illegal.
8. Security legislation should include reasonable restrictions on
the filing of third party lawsuits. Permission for third party
lawsuits, patterned after existing environmental statutes, could impede
implementation of security measures due to lengthy and contentious
litigation. These suits may well result in federal judges, rather than
DHS, setting security standards.
9. Security legislation should direct DHS to define criteria for
background checks. An important part of any facility security plan is
making sure that the workforce is trained, qualified, and dependable.
If background checks of employees and contract employees are required,
any new chemical security legislation should direct DHS to define
specific criteria for denying workers access to a facility. Companies
conducting background checks should also be authorized to access and
utilize government resources and databases, as is done now for the
financial sector.
Conclusion
To conclude, refiners and petrochemical manufacturers take very
seriously their responsibilities to maintain and strengthen security at
their facilities. Our industry has complied with modernized, post 9-11
federal security requirements. We have utilized expert engineers who
understand our facilities better than anyone else to conduct
vulnerability assessments and implement new measures to protect against
new threats. We have called upon experts throughout all of industry,
government agencies, and the security industry to share the best
practices to protect our facilities. And perhaps most importantly, the
industry has forged an outstanding working relationship with government
security agencies to receive rapidly the critical information needed to
fight terrorism. This working partnership has been very effective in
encouraging the exchange of information to allow the industry to focus
on the security threats that are both clear and relevant. This
important work needs to continue. Any new chemical security authority
should enhance and foster these critical activities, rather than
discourage them.
NPRA and its members look forward to working with the Subcommittee
and the full Committee as they consider the Chemical Facility Anti-
Terrorism Act of 2006. We are always available to discuss our
principles or answer any questions regarding the refining and
petrochemical industries.
ATTACHMENT 1
Facility Security Measures Taken By Petroleum Refiners & Petrochemical
Manufacturers
NPRA, the National Petrochemical & Refiners Association, has more
than 450 members, including virtually all U.S. refiners and
petrochemical manufacturers. Our members supply consumers with a wide
variety of products and services that are used daily in homes and
businesses and contribute to the nation's quality of life and security.
NPRA is proud of the accomplishments refiners and petrochemical
manufacturers have achieved in maintaining and strengthening facility
security.
NPRA members report they have conducted comprehensive facility
security vulnerability assessments and have identified and evaluated
critical assets and infrastructure, such as dock facilities, high value
production units, power stations, and other equipment which, if
attacked by terrorists, could result in significant off-site
consequences. Each individual facility is expected to determine what is
most important for that particular facility. With this information,
facilities have taken the following kinds of specific measures to
enhance security:
Formalized information sharing networks with area businesses and
local, state, and federal law enforcement and homeland security (such
as membership in the Energy Information Sharing and Analysis Center, or
ISAC, the Oil & Natural Gas Sector Coordinating Council (ONG SCC), and
the Homeland Security Information Network, or HSIN).
Shared security response plans with local law enforcement and
appropriate federal agencies.
Conducted drills & exercises to test response plans.
Hired security personnel, some of which are used around the clock,
seven days per week.
Conducted contractor background checks.
Installed perimeter fencing, ditches, berms, and jersey barriers.
Reconfigured roadways and installed speed devices to delay
vehicular movement. Installed a variety of fence-line intrusion
detection devices, to include security lighting and area cameras.
Reconfigured sites, allowing critical assets to be set back from
perimeters.
Acquired enhanced security communication systems.
Instituted perimeter patrols and surveillance, conducted by both
company personnel and local law enforcement.
Installed electronic intrusion detection on buildings (e.g.,
infrared, motion detectors, door and window sensors).
Implemented card-access controls, with new technology access
readers (e.g., biometrics, retina scan).
Required remote parking for employees or contractors, and
contractor/visitor vehicles marked with identification (signs/cones).
Required ID badges to be displayed at all times, and instituted
procedures for lost ID card and requiring parking decals.
Adopted shipments/deliveries verification process (e.g., close
examination of shipping papers, driver's identity).
Identified restricted areas within facilities.
Monitored railroad traffic to and through facility.
Restricted visitors from driving within the facility.
Prohibited any unannounced visitors.
Rotated access gates on random basis.
Conducted security officer training.
Installed secure mail handling procedures.
Reported suspicious activities (e.g., photo taking, vehicles parked
unusually, aircraft over facility).
Conducted vehicle searches (interior & exterior).
Instituted sophisticated processes for collecting and evaluating
intelligence/threat information.
Protected computer infrastructure.
[The statement of Mr. Moore follows:
Prepared Statement of Mr. David Moore, Acutech Consulting Group,
Chemetica, Inc.
Introduction
Good morning, Mr. Chairman. My name is David Moore and I am the
President and CEO of the AcuTech Consulting Group, a security and
safety consulting firm based in Alexandria, Virginia. I have an
extensive background in chemical safety and security with a specialty
in the application and regulation of inherent safety for chemical plant
security.
I was the lead author of the American Institute of Chemical
Engineers (AIChE) Center for Chemical Process Safety (CCPSr)
"Guidelines for Managing and Analyzing the Security Vulnerabilities of
Fixed Chemical Sites"1 and the American Petroleum Institute (API)/
National Petrochemical and Refiners Association (NPRA) Security
Vulnerability Assessment Methodology2. These are the most highly used
security vulnerability analysis guidelines in these industries.
I completed a project in January, 2006, as the Sector Coordinator
for the petroleum refining, chemical manufacturing, and liquefied
natural gas sub sectors for the Department of Homeland Security (DHS)
initiative to develop a common strategic vulnerability analysis process
called `Risk Analysis and Management for Critical Asset Protection
(RAMCAP). We currently have other efforts ongoing in support of
industry and government to reduce homeland security risks in the
chemical sector including ongoing consultation to DHS for the chemical
comprehensive review program.
My firm is actively involved in chemical process security
consulting and training and in conducting Inherently Safer Technology
(IST) studies for safety and security, some of which are done to
address current regulations in effect in Contra Costa County,
California, and the State of New Jersey. I have been consulting in
chemical process safety since 1981 and formally in inherent safety
regulation since 1999. Prior to that time there wasn't a regulation
that required IST, but I was practicing the principles of inherent
safety routinely. I was formerly a Senior Engineer with Mobil
Corporation, who condoned the principles of inherent safety in every
decision we made, and before that I was a Research Engineer with the
National Fire Protection Association.
In particular, I have assisted companies in understanding the
concepts of inherent safety through our consulting and training
assignments, and have conducted dedicated and integral inherent safety
analyses on chemical facilities and other industrial facilities
handling hazardous materials. I have published twelve papers on
inherent safety, the regulation of inherent safety3, and inherent
safety consideration in chemical security. I have made numerous
presentations on the topic at professional conferences, training
forums, and government venues.
Because of our experience we were selected by the AIChE CCPSr to
update their classic book on inherent safety4, which we are in process
of at this time. For that I am working with the leading inherent safety
specialists in the United States and internationally from industry and
academia who serve as advisors to our team. I am a strong proponent of
inherent safety, the ultimate goal being to see all companies applying
inherently safer principles throughout the design and operating
lifecycle of projects.
Inherent Safety Technology Background
Inherent Safety is a well recognized process safety concept; a
collection of basic strategies focused on process safety improvement
through the reduction of hazards. "Hazard" is defined as a physical or
chemical characteristic that has the potential for causing harm to
people, the environment, or property.5 The IS concept is based on the
belief that if one can eliminate or moderate the hazard, not only is
the risk reduced, it may be possible to remove the risk altogether from
consideration. Alternatively, an inherently safer system would make the
hazard less likely to be realized and less intense if there is an
accident.
It is a not necessarily a change in `technology' that the term IS
is referring to - it may involve less dramatic ideas than a change in
technology such as a simplification of operating controls. I therefore
refer to it as Inherent Safety (IS) to be inclusive of the full range
of inherently safer strategies that were originally in mind. Technology
may be mistaken to mean only process chemistry or the material used,
rather than other aspects of IS.IS includes four basic strategies for
safety engineers to apply for process safety and risk management of
chemical manufacturing plants, namely:
substitution,
minimization,
moderation, and,
simplification.
These four strategies could be independent ideas or they may relate
to one another, depending on the case by case situation. There is no
defined and agreed upon way to consider them in a formal analysis
methodology. Engineers are encouraged to consider them to the extent
possible, but given the innumerable situations where they may be
applied there cannot be a rule on what is an adequate consideration of
IS.In 1996 the AIChE CCPSr published the book "Inherently Safer
Chemical Processes - A Concept Book", to clarify the concept and to
help provide examples. Today it remains one of the leading
practitioner's guides to understanding and applying inherent safety
concepts. It is the leading reference mentioned in various regulatory
actions and proposed actions.
Issues with Inherent Safety
Inherent safety is a challenge for all parties--the owner, chemist,
operator, design engineer, regulator, and the public. There are
limitations of inherent safety and technical and business constraints
to its usage. There are examples of where inherent safety has been very
useful and where opportunities may exist, but since it is a concept the
blanket requirement of inherent safety poses issues.
Barriers Identified For Implementing IS
A workshop was held on the challenge of IS at the 17th Annual CCPS
International Conference & Workshop on Risk, Reliability and Security
in Jacksonville, Florida, on October 11, 2002, to address the concerns
of implementing IS. Speakers from the USEPA, AIChE, Contra Costa
County, and industry presented their experiences on the issue. In
summary of that discussion, the audience agreed that there were
barriers for effectively implementing IS, and issues and challenges for
any regulation of IS. Some of the constraints were reported to be as
follows:
Adoption and implementation of IS by industry:
1. Existing facilities vs. new facilities
One dilemma is that the majority of the applications for IS are
with the existing industrial installed base whereas the feasibility of
applying IS to the fullest diminishes as the facility is actually
built. This leaves many companies where new processes (and particularly
new technologies) are rarely implemented resulting in few occasions to
practice the methods.
"Although a process or plant can be modified to increase IS at any
time in its life cycle, the potential for major improvements is
greatest at the earliest stages of process development. At these early
stages, the process engineer has maximum degrees of freedom in the
plant and process specification. The engineer is free to consider basic
process alternatives such as fundamental technology and chemistry and
the location of the plant. Imperial Chemical Industries (ICI) describes
six stages of hazard studies, including three during the process design
phase and three during construction, startup and routine plant
operation. The identification of inherently safer process alternatives
is most effectively accomplished between the first and second process
design hazard studies (Preston and Turney 1991). At this stage the
conceptual plant design meets the general rule for an optimization
process - that a true optimum can be found only if all of the
parameters are allowed to vary simultaneously (Gygax 1988)." (CCPS,
"Guidelines for Engineering Design for Process Safety, 1993)."
2. Unproven Value
Companies many be unclear on the value of IS or may be unable to
easily prove that IS is cost-effective and worthwhile to employ,
particularly for security. Methods to prove the value of IS and to
quantitatively measure whether a given process is `as inherently safe
as is practicable' are generally unavailable or unproven. Agreed upon
and practical tools for systematically conducting IS reviews under
repeatable methodologies are not available with the exception of
checklists or adaptation of safety analysis methodologies. Case studies
showing the economic benefit are not available for a wide array of
industrial situations.
3. Unclear vision of scope of IS
One can take a broad or a narrow view of IS. The narrow viewpoint
only credits major changes in the degree of hazard whereas the broad
viewpoint of inherent safety finds any change by the application of IS
principles to be an advantage. All of the proposed regulations are very
vague in their definition of inherent safety and industry experts
themselves have mixed opinions on this point. Is reducing some
inventory IS or is it only IS if the material hazards was substituted,
which is the IS strategy that seems to be of most interest for the
regulatory proposals reviewed?
4. Requires judgment and is potentially subjective
It is precisely because IS is vague and involves considerable
judgment that it is very difficult to define and implement to any
degree of uniformity and objectivity. This is particularly true in the
chemical sector where the diversity of chemical uses and processes and
site specific situations prevents clear characterization of the
industry and a one-sized-fits-all solution.
IS can also be very subjective - how `safe or secure' is `safe or
secure enough' is a decision of the analyst conducting the study. There
are no clear and objective guidelines on how to make these decisions as
it is considered both a concept to apply as one sees fit and as
opportunities arise.
The CCPSr book itself is indeed a concept book and it does not
provide a clear delineation of what is inherently safer or how to judge
whether an inherent safety analysis is comprehensive and complete
enough. The reason for this is that the topic is so diverse that it is,
in some cases, even ambiguous. There is an entire section of the book
explaining the numerous conflicts and risk:risk tradeoff problems of
IS. Also the state of the practice is not perfectly clear on how it
should be defined, conducted, analyzed, assessed, or judged as
adequately performed. The book doesn't solve the classical problems
with IS of trying to objectively decide `what is inherently safer' and
how to measure whether a process is safe enough. This sums the state of
the practice with IS and is an underlying basis of the problems of
attempting to regulate it and to apply it to security issues.
In actual practice this has proven to be problematic because IS, at
this stage in its development, is more of a conceptual methodology
rather than a codified procedure with a well established and understood
framework for evaluation and implementation. This is somewhat a
function of the state of the art of our understanding of IS.
5. Value and Perspective
What is inherently safer to one person is not necessarily
inherently safer to another--it is a matter of perspective. If one
takes an insular view of what is inherently safer, it may not be the
most inherently safe decision for society as a whole. For example, if a
plant decides to lower its risk at a given fixed chemical plant site by
reducing inventory or making an alternative product, this could simply
either transfer the risk to more of the public through increased
shipments of hazardous materials in the community or move the same
operation to another location which may be more problematic.
Companies may be unclear on the value of IS or may be unable to
easily prove that IS is beneficial to employ. Methods to prove the
value of IS and to quantitatively measure whether a given process is
`as inherently safe as is practicable' are generally unavailable or
unproven. Case studies showing the economic and other benefits are not
available for a wide array of industrial situations.
Depending on the goals, the perspective may be that it is safe or
secure enough as it is. For example, the plant is designed to operate
at a given capacity and has been optimized through careful engineering
design to produce the product safely, efficiently, and cost-
effectively. Many IS-type considerations have already gone into the
design or operating philosophy of the plant. When confronted with the
need to conduct an IS study, they often find that there are few
opportunities to improve on that design, short of a complete change of
`technology', even if another technology exists that is inherently
safer. If it does exist they find it troubling to consider changing the
technology when the gains may be questionable for safety or security.
As such the net change may be limited.
6. Safety and Security Conflicts
The need to introduce inherent safety as a strategy at all
facilities subject to such a security regulation is questionable. In
fact, what is inherently safer is not necessarily what is inherently
more secure. This would result in a great deal of analysis to consider
a single strategy has been applied, thereby causing a very large
documentation problem and undoubtedly many technical and legal
dilemmas. This is contrasted with a preferred approach of allowing
industry to set security objectives to determine the relevant issues
and vulnerabilities and make appropriate risk management decisions. It
should be considered as a potential strategy rather than the first
priority and allow the most effective homeland security strategies to
be applied rather than force a particular one or a change in every
technology.
Regulation of IS
The constraints to the regulation of IS include many of the
concerns above plus:
Holistic security v. singular issues--The problem is not IS, but
the expectation of the value of regulation of IS. It forces industry to
focus on a few safety strategies to the possible detriment of the
complete approach to risk management. There seems to be an overemphasis
of inherent safety as a singular strategy for security assurances in
many of the proposed regulations.
Inherent safety has to be considered in light of other security
risk management approaches where one is not necessarily preferable over
another. That decision should be made on a case by case basis rather
than blanket regulatory requirements. Most security experts would agree
that it is about providing sufficient layers of security, combined with
an understanding of the threat and risk-based approaches to limiting
access to possible assets of interest to adversaries that is the
desired homeland security approach.
Both chemical process security and inherent safety are complex
topics that are not easily mandated. To isolate inherent safety as a
particularly necessary one is good practice but not necessarily good
government regulation. IST is not the panacea. It is not a "thing" that
can be measured. It is a process towards safe manufacturing. It is a
system of interdependent values and not something that can be distilled
into a legislative definition and then regulated. Security management
itself isn't a singular strategy. Furthermore, IS cannot be regarded as
the sole design or operating criteria as it must be integrated with
other considerations. The real issue is risk, whether safety or
security risks, that IS can be applied to.
Criteria for making compliance decisions--An obstacle to clear cut
regulation is the lack of consensus on appropriate IS metrics. Assuming
that the regulation is performance-based, there must be metrics for
consistent regulation. These criteria are very hard to define with a
broad conceptual topic such as IS for the wide variety of chemical
processes to be regulated. This dilemma was recently described by the
Mary Kay O'Connor Process Safety Center - "Regulation to improve
inherent safety faces several difficulties. There is not presently a
way to measure inherent safety. Process plant complexity essentially
prevents any prescriptive rules that would be widely applicable. 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 there are unavoidable technical and
economic issues." (Mannan, et.al, 20037)
Need to consider risk rather than only hazard--There is little
sense to the idea of imposing a requirement for `change for the sake of
change', i.e., requiring that every hazardous situation be made
inherently safer. Industry is interested in referencing a measure of
acceptable risk which limits the need for additional risk reduction
since beyond that level resources may be better spent on other matters.
Unclear how to measure performance or compliance--Will regulations
require only fundamental strategies to be employed, such as a site
reports it reduced some materials onsite, or will it be based on
vulnerability to the chemicals that remain? The factors and process to
measure the effectiveness of IS regulations is not defined so it
becomes very subjective. - Inherent safety regulations would have to
show measurable benefit. If there was a reduction or increase in the
number of incidents it could be incorrect to infer whether IS was the
leading factor or whether other measures were involved. It is,
therefore, difficult to measure the effectiveness of IS regulations.
The USEPA representatives at the workshop reported that the EPA
intends to include IS in their analysis of the effectiveness of the
Risk Management Plan (RMP) regulation (USEPA, 1996)8 when they review
the next submittals of registrations and hazard assessments. This is
likely to be challenging given the state of implementation of IS and
EPA's own admission on their expectation for inherent safety in the
Risk Management Planning regulation. When EPA promulgated the RMP rule,
some commenters asked EPA to require facilities to conduct "technology
options analyses" to identify inherently safer approaches. EPA declined
to do so, stating that "PHA teams regularly suggest viable, effective
(and inherently safer) alternatives for risk reduction, which may
include features such as inventory reduction, material substitution,
and process control changes. These changes are made as opportunities
arise, without regulation or adoption of completely new and unproven
process technologies. EPA does not believe that a requirement that
sources conduct searches or analyses of alternative processing
technologies for new or existing processes will produce additional
benefits beyond those accruing to the rule already. (FR, 19969)
IS means different things to different audiences--One person's
opinion of IS is not another person's necessarily, and as a result
risks could be simply transferred to others.
Macro v. Micro benefit--If IS regulations encourage individual
plants to take the most inherently safe position to them, that is not
necessarily the most inherently safe (or secure) position for the
community they operate in thereby potentially increasing the societal
risks. A common example is that of transportation risk, where the
increased number of transits caused by lowering the onsite volume of a
required feedstock increases the number of transits through the
communities in the distribution chain. In addition, though, is the
prospect that the total societal risk from a wide collection of
inherently safer individual decisions leads to a redistribution of risk
across the country - the analog of squeezing a balloon.
Economic Security--Another example of this concern is the possible
lack of appreciation of the economic security of the chemical
infrastructure in legislative discussions on inherent safety. At a
national, state or local level, the economic impacts of an attack or
disruption of the chemical infrastructure should be a key concern. If
the plant is disabled for any reason, such as a distribution chain
disruption, the lack of inventory may make the plant inoperative for a
longer period of time than if it had accumulated and secured supplies
necessary to function. It is more likely that plants will face supply
issues due to natural or manmade disasters than be attacked and so the
macro view of homeland security is compromised at the expense of a
local viewpoint. These goals need to be balanced from a risk
perspective with other hazard reduction goals.
IS Regulatory Proposals and Complications
Inherent Safety is a common phrase from the chemical industry and
is being considered and debated as a chemical process security concept
for inclusion in proposed chemical security regulations10. IS is being
considered by legislators as the first security strategy industry
should use for reducing terrorist risk in the chemical sector. The
newly appreciated concerns for terrorism have naturally highlighted the
issue of the potential for attack on facilities handling hazardous
materials.The proposed series of Chemical Security Act bills generally
state that there are significant opportunities to prevent theft from,
and criminal attack on, chemical sources and reduce the harm that such
acts would produce by reducing usage and storage of chemicals by
changing production methods and processes; and employing inherently
safer technologies in the manufacture, transport, and use of
chemicals;These proposed regulations would have sweeping applicability
and significant implications for design and operation of facilities
handling hazardous materials. Many of the facilities mentioned to be
included are from the USEPA Risk Management Planning regulated sources
(40 CFR Part 68), which may not be either highly consequential or
attractive to terrorists. Any new initiatives such as this have to be
rational, measured, cost-effective, and fully justified.
The anticipated regulatory benefit seems to be that IS can remove
the hazard entirely or reduce hazards to de minimis levels to where
there is no interest in causing the attack. It is often expressed to be
a possible strategy for security risk management, and sometimes is
mistaken as a relatively obvious and simple approach to execute or
regulate. Other proven security measures are often seemingly weighed as
less effective or reliable.
These existing and proposed regulations typically end in a goal of
IS consideration `to the extent practicable' and sometimes allow cost
or feasibility as a basis for justifying a change is `practicable'.
There is no standard measurement of what this means. While companies
may believe they are moving toward inherently safer processes, they
often find obstacles to the theoretically possible complete application
of the four IS strategies.
Experience with IS Regulations
In actual practice IS implementation has proven to be problematic.
The reason is that IS, at this time, is more of a theoretic concept
rather than a codified procedure with a well established and understood
framework for evaluation and implementation. Furthermore, it cannot be
regarded as the sole design criteria as it must be integrated with
other considerations. IndustryToday there is only one example of an
implemented IS regulatory requirement for process safety and that is
part of the Contra Costa County, California, local Industrial Safety
Ordinance (ISO) enacted in 1998 which effects only eight chemical
sites. As for security, the only one that exists is in New Jersey where
the Governor enacted a Prescriptive Order in November of 2005 which
includes the need to consider IS for chemical security for certain
sites in the state. Neither regulation goes so far as to require a
change in technology due to the enormous challenges and liabilities
associated with that move.
Contra Costa County, California, Industrial Safety Ordinance
The Contra Costa County, California, Industrial Safety Ordinance
(ISO) became effective January 15, 1999. The ordinance applies to eight
oil refineries and chemical plants that were required to submit a Risk
Management Plan to the U.S. EPA11 and are a program level 3 regulated
stationary sources as defined by the California Accidental Release
Prevention (CalARP) Program.
Part of the ISO requirements is the need for the regulated
stationary sources to consider inherently safer systems when evaluating
the recommendations from process hazard analyses for existing processes
and to consider inherently safer systems in the development and
analysis of mitigation items resulting from a review of new processes
and facilities. Contra Costa Health Services completed and issued a
Contra Costa County Safety Program Guidance Document on January 15,
20004. This document included a definition of inherent safety and some
rules for implementation of the ordinance.
Lessons Learned from the Contra Costa County, California,
implementation of inherent safety requirements for their Industrial
Safety Ordinance were presented in 2002 (Moore, 2002).
Companies found IS to be difficult if not infeasible to accomplish,
particularly for existing processes;
There are different perspectives on what is reasonable and what is
feasible when it comes to decisions on the need for implementing IS;
The guidance provided to ensure that IS was being considered
consistently and fully was not informative enough, so there was some
confusion and an education gap;
The public and regulators often mistrust industry if anything less
than a total technology change is implemented despite that IS includes
a wide variety of ideas to meet the four strategies of minimization,
substitution, simplification and moderation;
Application of IS at only the most purely inherent level (first
principles) is often at odds with practical and cost effective risk
reduction, especially for existing construction; Guidance/training is
needed for a team to know how to apply IS effectively.
New Jersey Prescriptive Order
On November 21st, 2005, the State of New Jersey became the first
State to require chemical plant security measures to protect against
terrorist attacks. Acting Governor Richard J. Codey set new
requirements for the 140 facilities that must comply with the
Prescriptive Order, 43 of which are subject to the state's Toxic
Catastrophe Prevention Act (TCPA) program. As part of the new
requirements, these 43 facilities must review the potential for
adopting inherently safer technology (IST) as part of their assessment.
This is very significant for three reasons - it sets precedent for
State mandate of security of the chemical industry, it incorporates the
need to evaluate IST more widely than any other regulation in the
United States, and it forces industry to prove compliance to security
`best practices' they developed.In 2003, the New Jersey Domestic
Security Preparedness Task Force approved best security practices that
were built upon the security code of the American Chemistry Council's
responsible care program and the American Petroleum Institute's
security guidelines, respectively. The best practices were developed by
the Task Force and its Infrastructure Advisory Committee, which
includes representatives of the state's chemical and petroleum
industry. Many New Jersey-based facilities have voluntarily begun to
implement these practices. The Prescriptive Order action clarifies that
the best practices for chemical facilities are now mandatory.
The 43 chemical facilities in the TCPA program must analyze and
report the feasibility of:
reducing the amount of material that potentially may be
released;
substituting less hazardous materials;
using materials in the least hazardous process conditions or
form; and,
designing equipment and processes to minimize the potential
for equipment failure and human error.
Best practices included provisions for the facilities to prepare an
emergency incident prevention, preparedness and response plan and
outline the status of implementing other security practices. The State
standards also now require worker participation in the development of
the security assessments and prevention and response plans at each
facility.
Under the new requirements, chemical facilities had 120 days to
develop an assessment of facility vulnerabilities and hazards that
might be exploited by potential terrorists. The assessments must
include a critical review of:
security systems and access to the facility grounds
(including the regular testing and maintenance of security
systems);
existing or needed security measures outside the perimeter of
the facility that would reduce vulnerabilities to an attack on
the facility;
storage and processing of potentially hazardous materials;
employee and contractor background checks and other personnel
security measures; and,
information and cyber security;
The Prescriptive Order timing is critical as the nation struggles
with how to more completely manage terrorism risks and to sort out the
need for regulations for industries that are otherwise unregulated
today. At this point the effectiveness of this rule is still in
question. What is clear is the degree of change that most complex,
existing plants will incur due to the identification of IS
opportunities will be very limited based on personal experience.
Research on the Evaluation of Inherent Safety
Some methods have been proposed to provide a benchmark for inherent
safety. Most of these involve indices or fuzzy logic. While these are
excellent developments in the right direction, they are not fully
validated or comprehensive enough to assure that the aforementioned
issues are satisfied.There is a need for metrics and rules for how to
evaluate inherent safety before regulations can be effective. Without a
fair and legitimate way to measure the total risk balance created by
changes in the name of inherent safety it will be subjective and
possibly unfair.
Complex process systems, particularly with a long history of safe
performance, cannot suddenly be dictated that a system is inherently
safer without a great deal of individualized risk-risk tradeoff
evaluation. Inherent safety is not fully understood, so regulating it
and forcing change against typical engineering practices (with a strong
empirical basis of success) is not recommended
There have been many experts recognize that this may be creating
many other problems by overly relying on one strategy vs. a holistic
approach. Facilities should be given that flexibility all the while
bounded by appropriate layers of safety to reduce risk to an acceptable
level.
Recommendations
Rather than attempt to regulate a vague and creative safety concept
for chemical security, it should be left to industry and government to
work together to consider the full spectrum of available security risk
management strategies and to meet performance standards for security
based on site specific needs. Inherent safety should not be seen as the
most important strategy to implement. Risk should be the measure of
security preparedness given consequence, vulnerability, and threat
considerations.
References
1. Center for Chemical Process Safety (CCPS) (1993). Guidelines for
Engineering Design for Process Safety. New York: American Institute of
Chemical Engineers.
2. Hendershot, Dennis C., "Chemistry - The Key To Inherently Safer
Manufacturing Processes", Presented Before the Division of
Environmental Chemistry, American Chemical Society, Washington, D. C.
August 21-25, 1994, Paper No. ENVR-135.
3. Mansfield, D., Y. Malmen, and E. Suokas (1996). "The Development
of an Integrated Toolkit for Inherent SHE." International Conference
and Workshop on Process Safety Management and Inherently Safer
Processes, October 8-11, 1996, Orlando, FL, 103-117. New York: American
Institute of Chemical Engineers.
4. Gentile, M. and M.S. Mannan, "Development of an Inherent Safety
Index Using Fuzzy Logic,"Proceedings of the 4th Annual Mary Kay
O'Connor Process Safety Center Symposium - Beyond Regulatory
Compliance: Making Safety Second Nature, College Station, Texas,
October 30-31, 2001, pp. 510-526.
5. Mannan, M.S., "Challenges in Implementing Inherent Safety
Principles in New and Existing Chemical Processes," White Paper, Mary
Kay O'Connor Process Safety Center, College Station, Texas, August
2002.
6. Kletz, Trevor, "Green Intention, Red Result", IChemE, Symposium
Series No. 147., 2000
7. Environmental Protection Agency (EPA) (1996). "Accidental
Release Prevention Requirements: Risk Management Programs Under Clean
Air Act Section 112 (r) (7)." Federal Register 61, 120 (June 20),
31668-730.
8. 61 Fed. Reg. 31699 (June 20, 1996).
9. Hendershot, Dennis C., "Putting Inherent SHE on the Map in the
USA" , For presentation at the Conference on Inherent SHE: The Cost
Effective Route to Improved Safety, Health and Environmental
Performance London, 16-17 June 1997.
10. Mannan, M.S., W.J. Rogers, M. Gentile, and T.M. OConnor,
"Inherently Safer Design: Implementation Challenges Faced by New and
Existing Facilities," Hydrocarbon Processing, vol. 82, no. 3, March
2003, pp. 59-61.
Mr. Lungren. Now I would like to recognize the chairman of
the full committee, the gentleman from New York, Mr. King.
Mr. King. Thank you, Chairman Lungren. At the outset let me
commend you and Ranking Member Sanchez, and of course, the
Ranking Member of the full committee, Mr. Thompson, for the
truly bipartisan effort that has gone forth on this issue.
The whole issue of chemical plant security is vital to our
Nation. It is essential to our homeland security. I think it
should be addressed.
But it is also essential that the legitimate concerns of
industry and the economic concerns that any legislation would
have be fully taken into account until your legislation is
done.
I believe it is really a very well-balanced piece of
legislation. I know, just from some consultations I have had
with you, about the extent of talks and negotiations that have
gone on; and I want to thank you for the tremendous intensity
you have shown on this issue and, again, to reach across the
aisle and to thank you Ms. Sanchez and Mr. Thompson for putting
aside partisan differences on an issue that is absolutely
essential to the security of our country.
I look forward to the testimony today. I want to thank all
of the witnesses for being here, and I understand from the
chairman that I will have the privilege of introducing Senator
Balboni from New York, who is here today, whom I have worked
with for many years on many levels of government in New York,
and who has really been a leader on the whole issue of chemical
plant security.
Thank you for the hearing; thank you and the ranking member
for the legislation. And I yield back the balance of my time.
Mr. Lungren. I thank the gentleman, the chairman; and I
would now recognize the ranking minority member of the full
committee, the gentleman from Mississippi, Mr. Thompson, for
any statement he may have.
Mr. Thompson. Thank you very much Mr. Chairman, Ranking
Member, Chairman King. This is an excellent opportunity for us
to start the process of standardizing chemical plant security
in this country. It is long overdue, but as most of you have
indicated, it has been an arduous task. But it has been a
bipartisan effort to bring all the interested parties to the
table to find a common solution. We have done that. It has been
a wonderful process. I look forward to it.
Mr. Lungren. Thank you very much, Mr. Thompson.
Mr. Lungren. We are pleased to have a panel of
distinguished witnesses before us today on this important
topic; and let me remind the witnesses that their entire
written statements will appear in the record.
And now, for purposes of introducing our first panelist to
testify, I would recognize the chairman of the full committee,
Mr. King, and I just want to make mention of the fact that I
hope you recognize that we are making sure that this is not a
California-centric subcommittee, Ms. Sanchez and I, and we
reach across the continent to have witnesses from all over.
So, with that, the chairman is recognized.
Mr. King. I thank the chairman. And for those of you who
are not fully familiar with the context of the chairman's
opening remarks, I believe he may have been referring to the
appearance last week of Mayor Bloomberg and Commissioner Kelly
and no witnesses at that hearing from the West Coast. But I
know that Mr. Lungren and Ms. Sanchez are well equipped to
represent California. And, of course, Ranking Member Thompson,
he sort of fits into all camps, so he will support all of us;
that is the uniqueness of our ranking member.
Mr. Thompson. Thank you very much.
Mr. King. I am really appreciative, Mr. Chairman, for
giving me the opportunity to introduce Senator Michael Balboni.
I have known Senator Balboni for more than 2 decades. He served
8 years in the New York State Assembly. He is now serving his
10th year in the New York State Senate and is chairman of the
New York State Senate's Committee on Homeland Security. He,
more than anyone in the State of New York, has been leading the
effort on many, many issues involved in homeland security,
including chemical plant security where he was able to pass
landmark legislation in the New York State legislature which
was signed by the governor and is really, in many ways, a model
for the rest of the country.
Senator Balboni is absolutely committed to this issue. Just
recently he was appointed to the Homeland Security Advisory
Council by Secretary Chertoff and acts as the Secretary's
primary counsel and provides service and recommendations. He is
down in Washington almost as much as he is in Albany or in
Nassau County.
This is an issue which compels him. He lost many
constituents on September 11. Mike and I lost several close
friends of ours, mutual close friends, so I know of his
dedication to this issue.
I look forward to his testimony. I thank him for taking the
time from his busy efforts in Nassau County, where he wears
many hats and serves in many capacities.
With that, I am pleased to introduce the gentleman from New
York, State Senator Michael Balboni.
Mr. Lungren. The senator is recognized for 5 minutes for
his statement.
STATEMENT OF MICHAEL A.L. BALBONI, NEW YORK STATE SENATOR AND
CHAIRMAN, NYS SENATE STANDING COMMITTEE ON VETERANS, HOMELAND
SECURITY AND MILITARY AFFAIRS
Mr. Balboni. Thank you very much Chairman King, Chairman
Lungren and Chairman Thompson. Thank you very much for having
me today.
This was an issue that, of course, the country grappled
with in the days following 9/11. And in New York, what we
watched as the towers burned were people scrambling to see what
other kind of vulnerabilities we had. And so whether it was
rural airports that could possibly be the launch site for an
attack against New York City or whether it was the chemical
industry and the specter of a Bhopal-like incident, we
scrambled to find what type of things we could do to protect
the infrastructure.
In 2003, I became chairman of the Committee, for the first
time in New York State, of Homeland Security. I dropped a bill
that really, quite frankly, resembles your bill. It had
penalties in it. It did a tiered approach. The bill went
nowhere.
I met with the chemical industry, and we sat down, we had a
number of discussions, and the chemical industry said to me,
You know what, we are working very hard because we don't want
to have this happen at our facilities either, but if you come
and regulate us on a State-by-State approach, it is going to be
problematic for us.
We had a great number of discussions and, eventually, we
came to an agreement; and the agreement was that we would have
a bill that would do a bunch of things: one, recognize that
there needed to be some type of standard applied to the
chemical industry, and the best way to do that would be to have
a government regulatory body, like the State Homeland Security
Office, come in and do onsite reviews after using a program
similar to the RAMCAP program that you now that the Department
now uses.
It is a web-based instrument survey, and based upon the
responses, then there would be a site review, and then the
material that was developed as a result of a vulnerability
study would then be responded to by the Department and the
actual facility whether it was permanent security enhancements,
whether it was background checks, whether it was a program for
better communication with the local law enforcement and then
these plans would be implemented.
But the plans would be kept onsite, and that was one of the
key sticking points of this whole discussion. The chemical
industry said to us in New York, if you take these plans, we
are very concerned that if you put them on the Web or if you
put them in into a government facility, they will be open to
freedom of information requests and, therefore, be put out into
the mainstream; and if that happens, we are nervous about loss
of market share, trade secrets and exploitation of our
vulnerabilities by anyone who would do something wrong.
And lastly they said, Don't put penalties in.
So essentially what we have is a voluntary compliance
measure. That is the bad news.
But the good news is, the chemical industry really
responded in New York State. We identified about 144 facilities
that we felt, based upon a consequence-driven analysis, would,
in fact, be the highest priority, similar to your approach in
this legislation. And we have done actual ground surveys of 60
of those, and we have had responses based upon our Web survey
in, of that, almost 99 percent.
What we have found is that many of the facilities have
already taken steps to increase their security in recognition
of the fact that if they have an event there, it not only will
be of great consequence to the community, but frankly it would
be a great consequence to them, themselves, and they know that
they have a very good safety record.
Your legislation has significant improvements, though, over
what we have done. First off, you know here I am New York
State; if it was my druthers, I would have you adopt my bill. I
would have you do my law, and this would be the model for the
Nation. But I also recognize that you can't have a patchwork of
laws, and you need to have the consistency and the continuity.
So that is the first benefit.
The second benefit is that by taking kind of a step-back
approach where you actually don't do the mandated safety
enhancements and you let the industry decide what is best for
themselves, you are going to promote the development of best
practices; because the one thing I know from having worked with
the Office of Homeland Security in our State, and looking at
vulnerability studies is that every single facility is a
different situation, and there is no one-size-fits-all. If you
don't allow the industry to adopt their own best practices,
then you will stifle innovation, and that will be a loss of
balance.
And you take a look at the fact that we did not, that is,
the threat stream analysis, that is one of the key failings of
our bill. In other words, you will take a look at what
intelligence is out there, and you will see whether or not it
specifically applies to a specter either to a State or to a
specific facility, and then you will relate it to them. That is
very, very crucial.
Another thing that you do is that you have whistleblower
protections, and though we have not found a lot of that
information coming from the actual facilities, this is a
recognition that sometimes your best eyes and ears are within
the facility itself.
And lastly, of course, is you put in the penalty
provisions; and quite frankly, we could not get that
accomplished. We would not have a bill a law in the State of
New York if we had put in penalties like you have done. I had
them in my original bill. We do not have them now.
But let me share with you just very quickly that there are
lessons learned, and one of the main failings right now of the
system in New York is that there needs to be better
coordination between the facility and local law enforcement.
Dialing 911 in and of itself is not enough.
With that, I thank you very much, Mr. Chairman, for the
opportunity to speak before the committee.
Mr. Lungren. Thank you very much, Senator Balboni. We
appreciate your testimony and we look forward to asking
questions of you.
[The statement of Mr. Balboni follows:]
Prepared Statement of Michael A.L. Balboni
Good morning Chairman Lungren and members of the House Committee on
Homeland Security's Subcommittee on Economic Security, Infrastructure
Protection and Cybersecurity. I am honored to testify before this body
and I am grateful and appreciative of the work that is being performed
by the committee to strengthen security of chemical plants.
Identifying the Need for the Legislation:
I came to this issue as a result of the events of September 11,
2001 and the days that followed. I began contemplating what other
events could possibly befall us in New York. I started to think of the
events in Bhopal, India.
In 1984, the accidental release of 40 tons of the pesticide methyl
isocyanate from a Union Carbide plant located in the center of Bhopal
had killed thousands of people outright, and injured hundreds of
thousands, many of whom later died.
A few years before the events of 9/11, I had sponsored New York's
Anti-Weapons of Mass Destruction Act and shortly after 9/11 my bill
outlawing chemical and biological weapons in New York State was signed
into law.
While researching, authoring and helping to enact these new laws, I
became more and more aware of the numerous chemical plants in the state
and began to worry about their vulnerabilities. I called a meeting with
the major representatives of the chemical industry. They told me
security regulations weren't necessary because their industry was
already the most highly regulated in the nation.
Battle for the Bill:
I realized, however, that although that industry was heavily
regulated from an environmental perspective it was not from a security
perspective. And the issue of security has many different aspects that
could only be addressed from a vulnerability perspective.
As I began to draft a bill to address this oversight, I realized
that the first thing I needed to find out was where all the chemical
plants were located. A part of the problem was that although lists of
chemical plants had already been developed from the environmental
perspective, these plants had not been analyzed from the security and
threat perspective. An inventory of the chemicals and the amounts that
were stored in the state was also needed. I recognized that our state
needed better information regarding the condition of its critical
infrastructure.
I also came to the realization that I had to respond to certain
constituencies, namely, chemical industry officials, who were worried
about having their vulnerabilities and trade secrets revealed and being
subjected to micromanagement and possible loss of market share should
vulnerabilities be exposed. So I came to the conclusion that in order
for chemical plant security to be enhanced, New York needed to develop
a partnership with the industry because so much of security is
vigilance and motivation. The chemical industry is an essential
component of our economy and we had to develop protections without
destroying the industry.
I also realized that in order to avoid micromanagement and
suspicion, the Legislature needed to be briefed on the state of the
industry's security. I drafted a confidential briefing mechanism based
on a similar system set up under my Electrical Plant Security Act of
2003. I then went back to the plant owners to address their concerns
and incorporated them into the new bill.
Under my legislation, the New York State Office of Homeland
Security (OHS) would establish a vulnerability survey and create
suggestions for remediation where necessary. Chemical plant owners
would report to OHS about their operations. None of the information
would be stored with the government, but would rather be kept on-site
at the plants, ensuring the information was not subject to the Freedom
of Information Law.
Needless to say, the bill met with great opposition, especially
from the New York State Assembly, but eventually gained approval. The
New York State Chemical Security Act of 2004, a first-of-its kind in
the nation, was signed into law by Governor George Pataki on July 23,
2004.
How the Law Was Implemented:
Once the law was on the books, New York State OHS set out to
achieve several goals in order to implement the law. Their objectives
were to compile a list of hazardous and toxic substances and to
assemble a list of chemical storage facilities that must comply with
provisions of the law. In addition, the state OHS was to present a
preliminary report to New York State Governor George E. Pataki and then
a final report detailing the office's findings and recommendations.
The list of hazardous and toxic substances was completed in January
2005 and comprised of four groups of chemicals:
Environmental Protection Agency's (EPA) Risk Management Plan
listed chemicals,
The Bureau of Alcohol, Tobacco, Firearms and Explosives'
(ATF) published list of explosives,
Acutely Toxic Chemicals listed in GNYCRR Part 597 (New York
State's hazardous substance list), and
Chemical Weapons and precursors.
Over 2,500 chemical storage facilities were identified in New York
State.
In completing their analysis, the New York State Office of Homeland
Security recognized that not all chemical storage facilities present
the same level of risk for the population and developed a "consequence
driven analysis" to identify a facility as "high risk" utilizing
several factors, including: population, economic value, strategic value
and iconic value, with population being weighed the heaviest.
New York initially identified 144 Risk Management Plan facilities
using factors established under the Clean Air Act. Four risk-based
tiers, separated by the size of the population that could be affected,
were identified using those factors. New York OHS determined that
placing chemical storage facilities into distinct tiers provides a
reliable basis for analyzing security across a diverse industry.
Similar standards set up in the proposed federal legislation should be
equally beneficial.
The 144 facilities were asked to participate in the web-based
security survey, Risk Analysis and Management for Critical Assets
Protection (RAMCAP), and a Site Security Review (SSR).
Lessons Learned:
Here's what we learned when this new law was implemented in New
York.
State OHS found that the facilities that are required to comply
with provisions of the Maritime Transportation Safety Act of 2002 had
already developed site security plans based upon threat and
vulnerability assessments.
OHS also determined that security awareness training for workers
helped to enhance the overall security posture of a facility.
Analysis also revealed that there is a critical need to develop
better communication between law enforcement and chemical plants.
Dialing 911 is not enough. An active, on-going dialogue with local law
enforcement was found to provide the mechanism for critical and timely
information flow in both directions.
Lastly, OHS found that security based exercises that involve on-
site and off-site parties improve deterrence and detection
capabilities.
On the downside, additional legislation is needed to put teeth into
the New York law. One major shortcoming is our current inability to
impose penalties for noncompliance.
To date, 60 of the 144 originally identified high-risk facilities
have completed the web-based security survey and OHS has completed on-
site visits to all 22 Tier 1 sites, the tier with the largest at-risk
populations (over 50,000 people). Visits have also been completed to
half of the Tier 2 sites and OHS is on track to realize a high level of
participation to this voluntary compliance.
All of this work was completed under the insightful leadership of
the New York State Office of Homeland Security Director James McMahon
and his staff. Without his diligence and professionalism, these goals
could not have been realized in such a timely fashion. It is important
to note that Director McMahon's ability to work in partnership with the
chemical plant industry on these issues was paramount to his success.
The Federal Legislation:
As I turn my attention now to the legislation proposed by Congress
today, I'd like to focus on the many strengths of the bill. Among them
is compliance.
The bill provides uniformity and full compliance across the
country. As with any form of security, chemical plant security among
the fifty states is only as strong as its weakest link. Although New
York has led the way in this regard, our state's progress is rendered
meaningless if our neighboring states do nothing to assess and
strengthen their own chemical facilities. The legislation proposed by
Congress will ensure a critical baseline of standards and compliance
nationwide.
Another asset of the bill is a penalty structure that delivers a
strong bite and should go a long way towards forcing compliance. As
noted earlier, this is an area where the federal legislation reaches
beyond the law in place in New York.
The fact that the proposed federal legislation strictly prohibits
public disclosure of protected information, including vulnerability
assessments, security performance and other data is crucial to public
safety and another asset of the bill. While the concept of information
protection has its detractors, the harsh reality is that some
information, if revealed, could be dangerous to the life and safety of
the public.
Additional strengths of the federal bill include sound
vulnerability assessment and facility security plan standards,
protocols, and procedures; third party auditor provisions; and
exemptions for facilities that are already federally regulated, e.g.
ports under the Maritime Transportation Safety Act of 2002, to avoid
the confusion of duplicative regulations.
Members of this committee should be commended for the work done so
far to get this bill introduced. I believe, based upon my New York
experience, that there are a few areas for where the bill can be
strengthened.
An area of great concern in the current bill is the exemption of
transportation and incidental storage from review and analysis. A truly
comprehensive strategy must include ways to best ensure safety of the
supply chain from chemical storage facilities to their destinations.
Even if the chemical plant facilities are secure, the railways that
run in and out of them may not be. Data indicates that in New York
State alone, more than 1.7 million shipments of hazardous materials
were transported last year.
Last Tuesday, I introduced legislation that would allow state OHS
to conduct a review and analysis of security measures being utilized by
the owners and operators of rail yards, similar to those put in place
by New York's Chemical Security Act. The legislation, which gives the
Director of OHS the authority to enforce compliance of security
recommendations, had already been approved by the State Senate.
To be honest with you, if I had my wish, you would adopt New York's
approach or allow New York to continue its good work with our state's
industry. But I recognize when it comes to security, the normal issues
as they apply to preemption and states' rights don't necessarily apply.
It is essential that we develop a national strategy for the securing of
these crucial assets. Once again, we are only as strong as our weakest
link and your bill strengthens the chain.
In conclusion, New York State was the first to recognize and act on
this vulnerability. We are happy to partner with the federal government
to make this a priority nationwide.
I look forward to continue working with the distinguished members
of this committee. Thank you. I would be pleased to respond to any of
your questions.
Mr. Lungren. The Chair would now recognize Mr. P.J.
Crowley, Senior Fellow and Director of National Defense and
Homeland Security from the Center for American Progress to
testify.
STATEMENT OF PHILLIP J. CROWLEY, SENIOR FELLOW AND DIRECTOR OF
NATIONAL DEFENSE AND HOMELAND SECURITY, CENTER FOR AMERICAN
PROGRESS
Mr. Crowley. Mr. Chairman, thank you very much. I am P.J.
Crowley. I direct the homeland security program for the Center
for American Progress.
I am grateful for the opportunity to discuss the Chemical
Security Anti-Terrorism Act. It establishes a needed regulatory
framework for DHS to set national security standards for
chemical facilities. However, it is unclear whether DHS must
evaluate the transportation of substances of concern. The bill
appears to exempt drinking water facilities even though a
recent study we conducted suggests that these facilities offer
the best opportunity to reduce terrorism risk to millions of
Americans.
Mr. Chairman, I have a copy of the survey report with me. I
would ask that it be submitted into the record.
Mr. Lungren. Without objection.
[The information follows:]
Copy retained in the committee file
Mr. Crowley. Thank you, sir, very much.
As attacks in London and Madrid and recent plots in Toronto
and Miami demonstrate, we face an ongoing threat. Unless we
take a comprehensive approach to chemical security, we will
continue to provide terrorists with too many targets of
opportunity.
We cannot protect everything; we must set priorities, and
chemical security is certainly one. This legislation can help,
but to have the intended effect, risk assessments and security
plans must take into account the entire system, not just its
individual components.
Many high-risk chemical facilities and freight rail lines
that support them are in major urban centers. One line is
adjacent to the Capitol, an intended target on 9/11. Why should
we give al Qaeda another opportunity using a 90-ton HAZMAT
railcar as a weapon?
This is not an arbitrary judgment. But specific to the
threat we face, the terrorists will attack where they can kill
as many innocent civilians as possible and generate significant
economic and political impact on our country. There is an
urgent need for action because we are going to be attacked
again.
A risk-based strategy should include physical security and
risk mitigation, but also risk elimination. Secretary Chertoff
is wrong to suggest, as he did in March, that secure
alternatives have little to do with security. In fact, the
Association of American Railroads endorses this as a necessary
option where secure alternative technologies processes or other
steps are readily available. We have an obligation to remove
these facilities and communities from the terrorism target
list.
The Center surveyed 1,800 facilities deregistered from the
risk management planning program, a congressionally mandated
initiative which began in 1990 to improve disaster assessments
and mitigation. Among our key findings, 284 facilities in 47
States switched to less hazardous practices, including the
Photocircuits Corporation of Glen Cove, New York, Mr. Chairman.
However, only 10 percent represented the highest-risk
facilities in our country.
Change can be accomplished economically; 87 percent spent
less than $1 million, and roughly half reported spending less
than $100,000 to convert. And alternatives readily exist in a
range of applications including drinking water and waste water
disinfection. However, approximately 3,000 of these plants
still use chlorine gas. This bill should not exempt them from
better security planning.
There is a fairness issue. While many communities have
eliminated threats to their people, they remain at risk because
hazardous materials are still transported through these cities
to other locations that have taken no action. We cannot afford
a strategic double standard.
The military, which I served in for 26 years, is constantly
exploring how to invest in new technologies that make us
stronger. Why would we not take the same approach and employ
secure alternatives to improve homeland security? We need a
comprehensive national strategy, not a series of disconnected
local or regional actions.
What should be done? DHS should be granted authority to
promulgate security standards regarding the manufacture, use,
physical security, storage, and transportation of acutely
hazardous materials. Chemical facilities should do annual
security risk assessments, including an evaluation of safer
alternatives. Publicly traded companies should tell their
shareholders how they are managing this security risk. DHS
should embrace the concept of risk elimination and establish a
center for excellence to promote solutions that reduce this
vulnerability.
The Federal Government should not preempt States from that
establish stronger standards. The Federal Government, for
example, established minimum education standards under No Child
Left Behind. However, our States can still offer advanced
placement courses. Federal action should strengthen security
floors, not create ceilings.
The Federal Government should offer incentives to promote
change that includes targeted grants, loans, tax credits, and
caps on liability for facilities that go beyond physical
security and adopt secure alternatives. We must place greater
emphasis on homeland security and narrow the potential for
terrorists to successfully attack us here. Only through a
comprehensive approach will we achieve the objectives of this
legislation.
Mr. Chairman, thank you very much.
Mr. Lungren. Thank you very much for your testimony. And we
do look forward to the question-answer period with you.
[The statement of Mr. Crowley follows:]
Prepared Statement of Phillip J. Crowley
The Chemical Security Anti-Terrorism Act of 2006 establishes a
needed, though limited regulatory framework for the Department of
Homeland Security (DHS) to set strong national security standards for
chemical facilities.
However, while it covers the manufacture and use of acutely
hazardous chemicals and processes, it is unclear whether DHS must
evaluate the transportation of these materials as well. It appears to
exempt drinking water facilities that, based on a recent survey the
Center for American Progress conducted of chemical facilities
nationwide, offer the clearest opportunity to reduce existing terrorism
risk to millions of Americans.
Unless we take a comprehensive approach to chemical security
planning, we will continue to provide terrorists with too many targets
of opportunity across the country.We are approaching the fifth
anniversary of September 11. As attacks in London and Madrid and recent
terror plots in Toronto and Miami dramatically demonstrate, we face an
on-going threat of terrorism to our society and economy, specifically
to critical infrastructure in major metropolitan areas where most of
our citizens live, work and congregate. This also happens to be where
many of our highest risk chemical facilities are located.
Likewise, much of the transportation of hazardous material to and
from chemical facilities occurs on freight rail lines that pass through
urban centers. One such line is adjacent to the U.S. Capitol, a target
that the 9/11 perpetrators intended to strike. Why should we give al
Qaeda another opportunity using a 90-ton HAZMAT rail car as a weapon?
Clearly, we cannot protect everything. We cannot reduce the
terrorism risk to zero. The United States is a target-rich environment.
But we have to set priorities, something the Department of Homeland
Security has yet to effectively do. This legislation can help. Chemical
security should be a critical infrastructure priority. But for the
legislation to have its intended impact, risk assessments and security
plans must take into account the manufacture, use, physical security,
storage and transportation of substances that, if released due to a
deliberate attack, can kill tens of thousands of Americans.
This is not an arbitrary judgment. It is specific to the threat we
face - that terrorists are most likely to attack where they can kill as
many innocent civilians as possible and have the most significant
economic and political impact on our country.
There is a belief that markets can effectively handle terrorism
risk, but the experience of the past five years challenges that
assumption. We are not adapting fast enough. This is an urgent need for
action because we are going to be attacked again. It is not a question
of if, but only when and where.
Too many facility operators do not believe that their plant is
going to be attacked. The instinct is not to invest in greater security
- markets frown on overhead - and perhaps gain a short-term competitive
advantage. They also do not control what occurs beyond their fences. We
need to take a system-wide approach and ensure that everyone is on a
level playing field.A risk-based chemical security strategy should be
integrated and multi-dimensional. It requires better physical security
and risk mitigation. But they are not sufficient. We must also pursue
risk elimination. Where more secure alternatives - whether
technologies, processes or other steps - already exist, we have an
obligation to remove as many chemical facilities and communities as
possible from the terrorism target list.
Some critics say that the promotion of secure alternatives is just
redressing the environmental concept of inherently safer technology
(IST) in homeland security clothing. The Secretary of Homeland
Security, in remarks to the American Chemistry Council in March, said
that IST has little to do with security. He is wrong. This is about
security. Who says so? The Association of American Railroads has
endorsed this as a necessary option. It cannot be done in every case,
but should be part of a viable strategy.
The Center for American Progress survey shows the potential of this
approach. The survey involved a review of 1,800 facilities deregistered
from the Risk Management Planning (RMP) program, a Congressionally-
mandated and EPA-managed initiative which began in 1990 to improve
disaster assessments, mitigation and response. Among the key findings
from our survey:
284 facilities in 47 states have dramatically reduced the
danger of a chemical release into nearby communities by
switching to less acutely hazardous processes or chemicals or
moving to safer locations. This action reduces or eliminates a
clear terrorism threat to at least 38 million people. For
example, the Mill Creek Wastewater Treatment Plant in
Cincinnati, Ohio eliminated the danger of an off-site chlorine
gas release to an area encompassing 860,000 residents by
switching to liquid bleach for disinfection. Likewise, the
Water Pollution Control Facility in Wilmington, Delaware made a
similar change, eliminating the danger to 560,000 nearby
residents. The Photocircuits Corporation of Glen Cove, N.Y.
switched from chlorine gas to sodium chlorate in its
manufacturing process, eliminating a danger zone that
encompassed 21,000 people.
Change can be accomplished economically. Of respondents that
provided cost estimates, 87 percent spent less than $1 million
and roughly half reported spending less than $100,000 to
convert.
Our survey revealed that alternatives already exist in a
range of applications, particularly drinking water and
wastewater facilities. Change involved the adoption of common
technologies, not new innovation, such as liquid bleach or
ultraviolet radiation. Other examples include the use of
aqueous rather than anhydrous ammonia or solid rather than
anhydrous sulfur dioxide.
The most common reasons cited for making changes included the
security and safety of employees and nearby communities, as
well as regulatory incentives and business opportunities. These
facilities also saw opportunities to cut a variety of costs,
requiring fewer physical security measures and hazardous
material safety devices, making these operations more efficient
and productive. This also took a significant burden off
surrounding communities in terms of disaster planning and
response.
While the survey demonstrated that effective change can take place,
it also revealed the limitations in a purely market-driven response.
For example, of the 284 facilities that adopted some form of inherently
safer practices, only 10 percent represented the highest risk
facilities - those that put 100,000 or more people at potential risk.
At this pace, it would take another 45 years to eliminate this
vulnerability. We do not have that much time to act.
There is also a fairness issue by relying on ad hoc local action
rather than a national approach. Many communities where change is
taking place are also vital transportation hubs - Wilmington, Delaware;
Jacksonville, Florida; Indianapolis, Indiana; Baltimore, Maryland;
Omaha, Nebraska; Cleveland and Cincinnati, Ohio; and Philadelphia,
Pennsylvania. They have taken the initiative to eliminate threats to
their people, but potentially remain at risk because hazardous
materials are still transported through these cities to neighboring
states and communities that have not taken similar action.
With this in mind, what then is the proper role of government to
help promote change within communities and the private sector? As a
security analyst, what is most important is to accelerate the pace of
change and measurably reduce the risk of catastrophic terrorism to our
society and economy. We cannot afford a strategic double-standard. When
it comes to our extraordinary military, we are constantly exploring how
to invest in and employ new technologies that make us stronger. Why is
it that we would not take the same approach to invest in and employ
secure alternatives to make us safer here at home? I think our citizens
and our first responders deserve the same consideration that we rightly
give our men and women in the military.
Voluntary actions should be encouraged, but we need a comprehensive
national approach, not a series of disconnected local or regional
actions. Government has the a responsibility to set strong safety and
security standards, identify better alternatives, require needed
security assessments and reporting, and create incentives for the
private sector and cities and states to take action.
To give one example of how this might work, consider the
approximately 3,000 drinking water and wastewater treatment plants
across the country that still use chlorine gas. DHS should identify the
manufacture, transportation and use of chlorine gas for disinfection at
high priority facilities in populated areas as posing an unacceptable
risk to our society. But local officials and facility operators should
determine how to best eliminate this risk, whether to convert to the
use of liquid bleach, ultraviolet radiation or other process. Water
treatment facilities represent an excellent starting point to implement
a genuine risk-based approach to chemical security.
This bill should not exempt these operations from better security
planning.
What needs to be done?
The Department of Homeland Security should be granted
authority to regulate chemical security and promulgate strong
national standards to improve chemical security, including the
manufacture, use, physical security, storage and transportation
of acutely hazardous materials. Particular emphasis should be
given to the proximity of these acutely hazardous materials to
major population centers across the United States that present
the highest risk if successfully attacked by terrorists.
Chemical facilities should be required to do comprehensive
annual security risk assessments and report those findings to
DHS and EPA. These risk assessments should include a thorough
evaluation of less acutely hazardous alternatives. In the case
of publicly traded companies, an assessment of risk and summary
of actions taken should also be reported to shareholders.
DHS should embrace risk elimination as an essential tool to
reduce the number of Americans who are at risk from a chemical
release due to a terrorist attack. DHS should establish a
Center of Excellence to promote technological solutions that
reduce our vulnerability to catastrophic terrorism.
The federal government should not preempt states that want to
establish stronger security standards. The federal government
established learning standards under No Child Left Behind. It
did not tell any state not to offer advanced placement courses.
Federal action should promote security floors, not ceilings.
The federal government should create a variety of incentives
to promote change. This might include a mix of targeted grants,
loans and tax credits. Rewards for facilities that meet or
exceed stronger national standards should also be explored,
including caps on liability for facilities that go beyond
physical security and adopt secure alternatives as well.
The course that we have followed in the first five years of the war
on terror cannot be sustained indefinitely. Over time, our national
security strategy must place greater emphasis on homeland security. As
good as our intelligence and police forces may be, they cannot be
expected to anticipate and intercept every attack.We must narrow the
potential for terrorists to successfully attack us here. The security
of the United States should not be subject to the lowest common
denominator. Business as usual is no longer an option. Only through a
comprehensive approach to chemical security will we achieve the
objectives of this legislation.
Mr. Lungren. The Chair would now recognize Mr. Scott
Berger, the Director of the Center for Chemical Process Safety
from the American Institute of Chemical Engineers, to testify.
STATEMENT OF SCOTT BERGER, DIRECTOR, CENTER FOR CHEMICAL
PROCESS SAFETY, AMERICAN INSTITUTE OF CHEMICAL ENGINEERS
Mr. Berger. Chairmen King and Lungren, Ranking Members
Sanchez and Thompson, and members of the subcommittee, thank
you for the opportunity to discuss this important legislation.
My name is Scott Berger. I am the Director of CCPS, the Center
for Chemical Process Safety.
CCPS was formed in 1985 by the American Institute of
Chemical Engineers in response to the toxic gas release tragedy
at Bhopal, India. CCPS advances process safety through
research, collaboration, education and industry executive
leadership.
I was a member of the committee of CCPS to develop the 2002
book, guidelines for analyzing and managing the security
vulnerabilities at fixed chemical sites. I have a copy here if
somebody would like to browse through it.
This important guideline has been used by thousands of
chemical manufacturing facilities. It serves as the basis for
the New Jersey State Prescriptive Security Order. It is the
foundation of the RAMCAP security method and also the
foundation of voluntary security efforts of numerous trade
associations.
So we believe that safety and security are good business.
Any kind of incident would interfere with efficient
manufacturing, while good performance reduces loss and injury,
increases productivity and improves a company's image. So while
there may be some minor points of contention that we could find
with this legislation, in general, we support the draft as
written.
Now, we have heard the testimony, and I think we will it
has also been entered into the record that the draft bill is
flawed because it does not require chemical sites to formally
consider inherently safer technology options; and we
respectfully disagree with this. In 1996, CCPS literally wrote
the book on inherently safer chemical processes; and again I
have a copy for those of you who would like to browse to do so.
It is highly relevant that this particular book was
published in our concept series of books, as opposed to the
security book, which is a guideline. This is highly relevant.
Inherently safer design is a philosophy for the design of
any technology, including chemicals, but it is not a technology
itself. Tools and techniques remain relatively primitive, and
unless there have been important advances since 1996, and we
are writing an updated edition to this book. This will also be
a concept book; some future edition may attain guideline
status, but we are not there yet.
Inherently safer design is only one of many tools for
safety and security. The objectives of chemical safety and
security vulnerability management are safety and security, but
not necessarily inherent safety and inherent security. It is
possible to have a safe and secure facility with inherent
hazards, and in fact, this is necessary in many cases.
Looking outside the chemical industry, it is clear that air
travel is neither inherently safe nor inherently secure and
cannot be made so. But the benefits justify extensive safety
and security activities to manage these known hazards. The
activities are effective, and flying is the safest way to
travel despite all of these inherent hazards. Similarly,
chemical hazards can be managed in a highly effective way.
Inherent safety only partially addresses security issues
and will not reduce the need for traditional security measures.
Proponents of including inherently safer technologies in
legislation apparently think that security only pertains to
toxic releases. However, a chemical facility must consider
other security vulnerabilities: off-site fires and explosions,
for example, theft and diversion, contamination, and damages to
the company and national infrastructure. The facility will need
all the traditional security measures at its disposal for its
concerns, and use of inherently safer options will not address
these additional issues nor will it offset the need for
traditional security measures.
The chemical industry is a very complex ecosystem. As any
ecosystem, changes have cascading effects. We often see a
change in technology that appears to be inherently safer
locally will increase hazards elsewhere. Often these effects
are not initially apparent.
For example, CFC refrigerants were thought to be,
initially, safer; and later we found that they had damaged the
ozone layer, and we are now phasing them out. Similarly,
inherently safer technologies may improve security locally and
lessen security elsewhere. A site-focused inherently safer
regulation cannot address this issue.
Significant natural resources will be needed to implement
inherently safer technologies. There are thousands of chemical
technologies which are operated safely and securely using a
blend of inherent engineered and management strategies. Is it
appropriate to use our natural resources to replace these
technologies with inherently safer ones if ones can be found,
if the risk of existing technology can be managed? Similarly,
why divert technical talent, creativity and financial resources
from the creation of new products and technology which, in many
cases, will render existing technologies obsolete?
In summary, inherently safer technologies are one tool for
safety and security, but they are not the only tool. The
chemical industry is very complex; it involves thousands of
unique technologies. Changes will take significant time and
resources, and negative impacts may exist.
Future invention and implementation of inherently safer
technologies is best promoted by enhancing understanding of
concepts. Inherently safer design should be a way of thinking
and not a one-time activity to comply with the regulation, done
once and then forgotten.
Thank you for the opportunity to share our views with the
committee.
Mr. Lungren. Thank you very much, Mr. Berger. Again, we
will look forward to the question-and-answer period with you as
well.
[The statement of Mr. Berger follows:]
Prepared Statement of Scott Berger
The Center for Chemical Process Safety (CCPS) is sponsored by the
American Institute of Chemical Engineers (AIChE), which represents
Chemical Engineering Professionals in technical matters in the United
States. CCPS is dedicated to eliminating major incidents in chemical,
petroleum, and related facilities by:
Advancing state of the art process safety technology and
management practices
Serving as the premier resource for information on process
safety
Fostering process safety in engineering and science education
Promoting process safety as a key industry value
CCPS was formed by AIChE in 1985 as the chemical engineering
profession's response to the Bhopal, India chemical release tragedy. In
the past 21 years, CCPS has defined the basic practices of process
safety and supplemented this with a wide range of technologies, tools,
guidelines, and informational texts and conferences. CCPS' output
includes more than 70 Guideline books, more than 90 university
lectures, and a monthly e-mail process safety lesson delivered to more
than 600,000 plant personnel around the world in 17 languages. The CCPS
book "Guidelines for Analyzing and Managing the Security
Vulnerabilities of Fixed Chemical Sites" (2002) has been used by
thousands of plants around the world to evaluate chemical facility
security, and is the basis for New Jersey State security regulation and
the voluntary security programs of numerous chemical and petroleum
trade associations. Today, CCPS has more than 85 member companies in
the US and around the world, and maintains an active program to
continue advancing the practice of process safety.
CCPS supports national legislation addressing the security of
facilities that manufacture and use chemicals. The House Bill as it
exists today addresses all the important points that CCPS believes are
critical to chemical security. It has been suggested that the Bill
should also address the use of Inherently Safer Technologies. As the
organization that developed the most widely-used reference addressing
Inherently Safer Design ("Inherently Safer Processes: A Lifecycle
Approach", AIChE Press, New York, 1996), we wanted to take this
opportunity to explain the fundamentals of Inherently Safer Design, the
challenges and trade-offs, and the limitations relative to security.
What is inherently safer design?
Inherently safer design is a concept related to the design and
operation of chemical plants, and the philosophy is generally
applicable to any technology. Inherently safer design is not a specific
technology or set of tools and activities at this point in its
development. It continues to evolve, and specific tools and techniques
for application of inherently safer design are in early stages of
development. The CCPS book, and other literature on inherently safer
design (for example, by CCPS, Trevor Kletz, and others) describe a
design philosophy and give examples of implementation, but do not
describe a methodology. CCPS has begun a project to update its 1996
book on inherently safer design, and one of the objectives for this
second edition is to propose one or more specific methods for
implementation. These methods will hopefully be confirmed and expanded
upon with use, so that at some time in the future more robust methods
will exist. Such methods do not exist now.
What do we mean by inherently safer design? One dictionary
definition of "inherent" which fits the concept very well is "existing
in something as a permanent and inseparable element." This means that
safety features are built into the process, not added on. Hazards are
eliminated or significantly reduced rather than controlled and managed.
The means by which the hazards are eliminated or reduced are so
fundamental to the design of the process that they cannot be changed or
defeated without changing the process. In many cases this will result
in simpler and cheaper plants, because the extensive safety systems
which may be required to control major hazards will introduce cost and
complexity to a plant. The cost includes both the initial investment
for safety equipment, as well as the ongoing operating cost for
maintenance and operation of safety systems throughout the life of the
plant.
hemical process safety strategies can be grouped in four
categories:
Inherent - as described in the previous paragraphs (for
example, replacement of an oil based paint in a combustible
solvent with a latex paint in a water carrier)
Passive - safety features which do not require action by any
device, they perform their intended function simply because
they exist (for example, a blast resistant concrete bunker for
an explosives plant)
Active - safety shutdown systems to prevent accidents (for
example, a high pressure switch which shuts down a reactor) or
to mitigate the effects of accidents (for example, a sprinkler
system to extinguish a fire in a building). Active systems
require detection of a hazardous condition and some kind of
action to prevent or mitigate the accident.
Procedural - Operating procedures, operator response to
alarms, emergency response procedures.
In general, inherent and passive strategies are the most robust and
reliable, but elements of all strategies will be required for a
comprehensive process safety management program when all hazards of a
process and plant are considered.
Approaches to inherently safer design fall into these categories:
Minimize--replace a hazardous material with a less hazardous
substance, or a hazardous chemistry with a less hazardous
chemistry
Moderate--reduce the hazards of a process by handling
materials in a less hazardous form, or under less hazardous
conditions, for example at lower temperatures and pressures
Simplify--eliminate unnecessary complexity to make plants
more "user friendly" and less prone to human error and
incorrect operation
One important issue in the development of inherently safer chemical
technologies is that the property of a material which makes it
hazardous may be the same as the property which makes it useful. For
example, gasoline is flammable, a well known hazard, but that
flammability is also why gasoline is useful as a transportation fuel.
Gasoline is a way to store a large amount of energy in a small quantity
of material, so it is an efficient way of storing energy to operate a
vehicle. As long as we use large amounts of gasoline for fuel, there
will have to be large inventories of gasoline somewhere.
Inherently safer design and the chemical industry
While some people have criticized the chemical industry for
resisting inherently safer design, we believe that history shows quite
the opposite. The concept of inherently safer design was first proposed
by an industrial chemist (Trevor Kletz, of ICI in the UK), and it has
been publicized and promoted by many technologists from petrochemical
and chemical companies - ICI, Dow, Rohm and Haas, ExxonMobil, and many
others. The companies that these people work for have strongly
supported efforts to promote the concept of inherently safer chemical
technologies.
The members of CCPS enthusiastically supported the publication of
the Inherently Safer Processes book in 1996. Several companies ordered
large numbers of copies of the book for distribution to their chemists
and chemical engineers. CCPS members have recognized a need to update
this book after 10 years, and there is a current project to write a
second edition of the book, with active participation by CCPS member
companies.
There has been some isolated academic activity on how to measure
the inherent safety of a technology (and no consensus on how to do
this), but we have seen little or no academic research on how to
actually go about inventing inherently safer technology. All of the
papers and publications that we have seen describing inherently safer
technologies have either been written by people working for industry,
or describe designs and technologies developed by industrial companies.
And, we suspect that there are many more examples which have not been
described. We believe that industry has strongly advocated inherently
safer design, supporting the writing of CCPS books on the subject,
teaching the concept to engineers (who most likely never heard of it
during their college education), and incorporating it into internal
process safety management programs. Nobody wants to spend time, money,
and scarce technical resources managing hazards if there are viable
alternatives that make this unnecessary.
Inherently safer design and security
Safety and security are good business. Safety and security
incidents threaten a community's willingness to allow a plant to
operate in their neighborhood, while good performance in these areas
results in an improved community image for the company and plant,
reduced risk and actual losses, and increased productivity, as
discussed in the CCPS publication, "Business Case for Process Safety,"
which has been recently revised and updated.
A terrorist attack on a chemical plant that causes a toxic release
can have the same kinds of potential consequences as accidental events
resulting in loss of containment of a hazardous material or large
amounts of energy from a plant. Clearly anything which reduces the
amount of material, the hazard of the material, or the energy contained
in the plant will also reduce the magnitude of this kind of potential
security related event. The chemical industry recognizes this, and
current security vulnerability analysis protocols require evaluation of
the magnitude of consequences from a possible security related loss of
containment, and encourage searching for feasible means of reducing
these consequences. But inherently safer design is not a solution which
will resolve all issues related to chemical plant security. It is one
of the tools available to address concerns, and needs to be used in
conjunction with other approaches, particularly when considering all
potential security hazards.
In fact, inherently safer design will rarely avoid the need for
implementing conventional security measures. To understand this, one
must consider the four main elements of concern for security
vulnerability in the chemical industry:
Off-site consequences from toxic release, a fire, or an
explosion
Theft of material or diversion to other purposes, for example
the ammonium nitrate used in the first attempt to destroy the
World Trade Center in New York, or for the Oklahoma City
bombing
Contamination of products, particularly those destined for
human consumption such as pharmaceuticals, food products, or
drinking water
Degradation of infrastructure such as the loss of
communication ability from the second World Trade Center
attacks
Inherently safer design of a process addresses the first bullet,
but does not have any impact whatsoever on conventional security needs
for the others. A company will still need to protect the site the same
way, whether it uses inherently safer processes or not. Therefore,
inherently safer design will not significantly reduce security
requirements for a plant.
The objectives of process safety management and security
vulnerability management in a chemical plant are safety and security,
not necessarily inherent safety and inherent security. It is possible
to have a safe and secure facility for a facility with inherent
hazards. In fact this is essential for a facility for which there is no
technologically feasible alternative - for example, we cannot envision
any way of eliminating large inventories of flammable transportation
fuels in the foreseeable future.
An example from another technology - one which many of us
frequently use - may illustrate how the true objective of safety and
security management is safety and security, not inherent safety and
security. Airplanes have many major hazards associated with their
operation, and we have seen airplanes used for terrorism. In fact,
essentially the entire population of the United States, or even the
world, is potentially vulnerable to this hazard.
Airlines are in the business of transporting people and things from
one place to another. They are not really in the business of flying
airplanes - that is just the technology they have selected to
accomplish their real business purpose. Inherently safer technologies
which completely eliminate this hazard are available - high speed rail
transport is well developed in Europe and Japan.
But we do not require airline companies to adopt this technology,
or even to consider it and justify why they do not adopt it. We
recognize that the true objective is "safety" and "security" not
"inherent safety" or "inherent security." The passive, active, and
procedural risk management features of the air transport system have
resulted in an enviable, if not perfect, safety record, and nearly all
of us are willing to travel in an airplane or allow them to fly over
our homes.
Some issues and challenges in implementation of inherently safer design
The chemical industry is a vast interconnected ecology of
great complexity. There are dependencies throughout the system,
and any change will have cascading effects throughout the
chemical ecosystem. It is possible that making a change in
technology that appears to be inherently safer locally at some
point within this complex enterprise will actually increase
hazards elsewhere once the entire system reaches a new
equilibrium state. Such changes need to be carefully and
thoughtfully evaluated to fully understand all of their
implications.
In many cases it will not be clear which of several potential
technologies is really inherently safer, and there may be
strong disagreements about this. Chemical processes and plants
have multiple hazards, and different technologies will have
different inherent safety characteristics with respect to each
of those multiple hazards. Some examples of chemical
substitutions which were thought to be safer when initially
made, but were later found to introduce new hazards include:
Chlorofluorcarbon (CFC) refrigerants - low acute toxicity,
non-flammable, but later found to have long term environmental
impacts
PCB transformer fluids - non-flammable, but later determine
to have serious toxicity and long term environmental impacts
Who is to determine which alternative is inherently safer,
and how to make this determination? This decision requires
consideration of the relative importance of different hazards,
and there may not be agreement on this relative importance.
This is particularly a problem with requiring the
implementation of inherently safer technology - who determines
what that technology is? There are tens of thousands of
chemical products manufactured, most of them by unique and
specialized processes.
The real experts on these technologies, and on the hazards
associated with the technology, are the people who invent the processes
and run the plants. In many cases they have spent entire careers
understanding the chemistry, hazards, and processes. They are in the
best position to understand the best choices, rather than a regulator
or bureaucrat with, at best, a passing knowledge of the technology.
But, these chemists and engineers must understand the concept of
inherently safer design, and its potential benefits--we need to educate
those who are in the best position to invent and promote inherently
safer alternatives.
Development of new chemical technology is not easy,
particularly if you want to fully understand all of the
potential implications of large scale implementation of that
technology. History is full of examples of changes that were
made with good intentions that gave rise to serious issues
which were not anticipated at the time of the change, such as
the use of CFCs and PCBs mentioned above. Co-author Hendershot
personally has published brief descriptions of an inherently
safer design for a reactor in which a large batch reactor was
replaced with a much smaller continuous reactor. This is easy
to describe in a few paragraphs, but actually this change
represents the results of several years of process research by
a team of several chemists and engineers, followed by another
year and millions of dollars to build the new plant, and get it
to operate reliably. And, the design only applies to that
particular product. Some of the knowledge might transfer to
similar products, but an extensive research effort would still
be required. Furthermore, Dennis Hendershot has also co-
authored a paper which shows that the small reactor can be
considered to be less inherently safe from the viewpoint of
process dynamics - how the plant responds to changes in
external conditions - for example, loss of power to a material
feed pump. The point - these are not easy decisions and they
require an intimate knowledge of the process.
Extrapolate the example in the preceding paragraph to
thousands of chemical technologies, which can be operated
safely and securely using an appropriate blend of inherent,
passive, active, and procedural strategies, and ask if this is
an appropriate use of our national resources. Perhaps money for
investment is a lesser concern - do we have enough engineers
and chemists to be able to do this in any reasonable time
frame? Do the inherently safer technologies for which they will
be searching even exist?
The answer to the question "which technology is inherently
safer?" may not always the same--there is most likely not a
single "best technology" for all situations. Consider this non-
chemical example. Falling down the steps is a serious hazard in
a house and causes many injuries. These injuries could be
avoided by mandating inherently safer houses - we could require
that all new houses be built with only one floor, and we could
even mandate replacement of all existing multi-story houses.
But would this be the best thing for everybody, even if we
determined that it was worth the cost? Many people in New
Orleans survived the flooding in the wake of Hurricane Katrina
by fleeing to the upper floors or attics of their houses. Some
were reportedly trapped there, but many were able to escape the
flood waters in this way.
So, single story houses are inherently safer with respect to
falling down the steps, but multi story houses may be inherently safer
for flood prone regions. We need to recognize that decision makers must
be able to account for local conditions and concerns in their decision
process.
Some technology choices which are inherently safer locally
may actually result in an increased hazard when considered more
globally. A plant can enhance the inherent safety of its
operation by replacing a large storage tank with a smaller one,
but the result might be that shipments of the material need to
be received by a large number of truck shipments instead of a
smaller number of rail car shipments. Has safety really been
enhanced, or has the risk been transferred from the plant site
to the transportation system, where it might even be larger?
We have a fear that regulations requiring implementation of
inherently safer technology will make this a "one time and
done" decision. You get through the technology selection and
pick the inherently safer option, meet the regulation, and then
you don't have to think about it any more. We want engineers to
be thinking about opportunities for implementation of
inherently safer designs at all times in everything they do--it
should be a way of life for those designing and operating
chemical, and other, technologies. For example:
Research chemists and engineers--inherently safer fundamental
chemistries
Process development engineers--inherently safer processes
based on those chemistries
Design engineers--inherently safer plant design using the
selected technology and process
Detailed design engineers--inherently safer equipment
details--minimize the length and size of pipes, vessels, and
other equipment, make the plant design "user friendly"
Plant operation engineers and operators--develop inherently
safer operating procedures, look for opportunities for
enhancing inherent safety in existing facilities
Operators--look for inherently safer ways to do all of the
tasks involved in the day to day operation of a plantInherently
safer design and operation needs to be the way everybody
involved in chemical technology thinks, not just a one time
exercise to comply with a regulation.
Inherently safer processes require innovation and creativity.
How do you legislate a requirement to be creative? Inherently
safer alternatives can not be invented by legislation.
What should we be doing to encourage inherently safer technology?
Inherently safer design is primarily an environmental and process
safety measure, and its potential benefits and concerns are better
discussed in context of future environmental legislation, with full
consideration of the concerns and issues discussed above. While
consideration of inherently safer processes does have value in some
areas of chemical plant security vulnerability - the concern about off
site impact of releases of toxic materials - there are other approaches
which can also effectively address these concerns, and industry needs
to be able to utilize all of the tools in determining the appropriate
security vulnerability strategy for a specific plant site. Some of the
current proposals regarding inherently safer design in security
regulations seem to drive plants to create significant paperwork to
justify not using inherently safer approaches, and this does not
improve security.
We believe that future invention and implementation of inherently
safer technologies, to address both safety and security concerns, is
best promoted by enhancing awareness and understanding of the concepts
by everybody associated with the chemical enterprise. They should be
applying this design philosophy in everything they do, from basic
research through process development, plant design, and plant
operation. Also, business management and corporate executives need to
be aware of the philosophy, and its potential benefits to their
operations, so they will encourage their organization to look for
opportunities where implementing inherently safer technology makes
sense.
We believe that the approach that the Environmental Protection
Agency has taken to promote Green Chemistry provides a good example of
how the Federal government can promote the adoption of inherently safer
technology in industry. EPA has been active in promoting the principals
of green chemistry, promoting incorporation of green chemistry into the
education of chemists, and in sponsoring conferences and technical
meetings on the subject. Each year a number of awards are given to
researchers and to companies for outstanding examples of implementation
of green chemistry. An effort like this for inherently safer design
will increase its visibility for all chemical industry technologists,
promote sharing of ideas and information, recognize important
contributions, and encourage others to u y the principles of inherently
safer design.
Mr. Lungren. The Chair would now recognize Mr. Marty
Durbin, the Director of Federal Affairs of the American
Chemical Council, to testify.
STATEMENT OF MARTIN J. DURBIN, MANAGING DIRECTOR, FEDERAL
AFFAIRS, AMERICAN CHEMISTRY COUNCIL
Mr. Durbin. Thank you, Mr. Chairman. I am pleased to appear
before this panel again on this important topic. I want to
thank you for your leadership, along with the ranking members
and other cosponsors of your bill, in introducing H.R. 5695.
As you noted in your opening statement, the business of
chemistry is an essential part of our economy and our daily
lives. The ACC has consistently led the call for meaningful
chemical security legislation, and we believe the Congress has
an obligation to help protect this critical part of the
Nation's crucial infrastructure. But time is running out for
this Congress to act.
Fortunately, your bill could represent a whole new ball
game. This bipartisan bill is like getting a runner into
scoring position in the bottom of the ninth in a tied game. The
outcome is still uncertain. Now we all have a chance to win.
Now, we have had only 24 hours to review the bill, and
frankly, we are still reviewing it with our members, and they
are clearly taking a look at it as well. But it clearly
represents and presents a great opportunity to realize our goal
of meaningful chemical security legislation this year.
As I testified last year, there has been a paradigm shift
since 9/11 in the way our members approach facility security.
Without waiting for government direction, ACC quickly adopted
the responsible security code which requires each member to
complete a four-step process where they prioritize each
facility by risk, assess the vulnerabilities, implement
security enhancements and then verify the implementation of
physical security measures by using third parties that are
credible in the local community.
Now, since implementing the code, I am proud to report that
our member companies have invested nearly $3 billion in
additional security enhancements, and the code has been widely
praised and recognized. As an example, the Coast Guard approved
the code as an alternative form of compliance with the Maritime
Transportation Security Act, or MTSA.
While ACC members account for nearly 85 percent of the
Nation's chemical manufacturing, we do not represent the entire
chemical sector. While I am confident others in the sector are
indeed taking steps to increase security, the critical role of
our products throughout the economy points out the need for us
to have Federal legislation in order to ensure that the entire
sector is protected.
ACC has long argued that chemical security legislation must
create risk-based, performance-oriented standards with DHS
oversight. Establish uniform national standards for the entire
sector, protect sensitive information, avoid redundancy and
inconsistency; that is, the legislation should recognize and be
consistent with successful efforts of MTSA that was passed 3
years ago.
And finally, to recognize responsible voluntary efforts, we
believe Federal legislation should enable DHS to give ACC
members credit for their substantial voluntary at-risk
expenditures implementing the responsible care security code.
As panel members know, there has been a great deal of
discussion surrounding inherently safer technology and you have
the panel members here to discuss that. Let me be clear: The
business of chemistry has long embraced inherently safer
approaches, but during the hearing last week on this same
topic, again, the experts on the panel here that literally
wrote the book on inherent safety at chemical facilities warned
against mandating ISC. They called instead for performance-
oriented legislation that allows facilities flexibility to
choose from an array of security measures. We would agree with
that assessment.
Now, again, we will need to fully review H.R. 5695 with our
members, but we are pleased to say this committee's action in
introducing the bill, in convening this hearing today, are very
positive steps that will take us a long way toward enacting
meaningful legislation still this year.
Based on our initial review, we see three primary strengths
in the bill: solidly focuses on promoting the security of the
chemical sector and allows facilities the flexibility to select
appropriate measures that will achieve clearly defined
standards; provides an appropriate mechanism for recognizing
significant investments that our members and others have made
under the responsible care security code; and we believe it
adopts a very workable and sensible approach for dealing with
MTSA facilities that are regulated by the Coast Guard, avoiding
duplicative regulation but allowing the Secretary to require
additional security measures if needed.
However, in our view, there are still some areas we would
like that would require further discussion, including the need
for a clearer statement on Federal preemption. In our view,
chemical security, like nuclear or aviation security, is a
national concern and our preference has been for legislation to
emulate the strong Federal preemption language Congress
introduced previously in the Hazardous Materials Transportation
Act.
Also, the new bill contains important information
protection provisions. It doesn't appear to penalize those that
would knowingly violate information security protocols. So we
believe this should be addressed and look forward to security
discussion.
Of course, our biggest concern is the congressional
calendar. We know time is tight, and it will take a concerted
team effort from all of us to bring this bill to pass this
year, and we look forward to working with you to make that a
reality.
Mr. Lungren. Thank you very much Mr. Durbin. I appreciate
that.
[The statement of Mr. Durbin follows:]
Prepared Statement of Martin J. Durbin
Mr. Chairman, I am Marty Durbin, Managing Director of Federal
Legislative Affairs with the American Chemistry Council ("ACC"). The
American Chemistry Council represents the leading companies engaged in
the business of chemistry. We thank you for calling today's hearing on
a subject of great importance both to the chemistry sector I represent
and the nation at large.
In addition I want to thank you for your leadership in introducing
the Chemical Facility Anti-Terrorism Act of 2006, along with the
efforts for Ranking Subcommittee Member Loretta Sanchez, Committee
Chairman Peter King and Ranking Member Bennie G. Thompson and other co-
sponsors.
When it comes to chemical facilities and their communities,
Congress - like law enforcement officers and emergency responders - has
an obligation to "serve and protect" this crucial part of the nation's
critical infrastructure. Today, nearly five full years after 9/11, this
bill has the potential to achieve this goal.
Today, I would like to address several points:
The chemistry sector and the products we produce are essential for
the physical, economic and competitive well-being of our nation.
ACC member companies--without waiting for federal legislation
have already made an unprecedented commitment to security and
implemented the nation's most widely-recognized industry
security program: the Responsible Carer Security Code.
Despite such efforts by our members, the chemistry sector
needs broader protection, which can only be provided by the
federal government.
The legislation that promotes our sector's security must meet
key criteria.
Finally, I would like to offer our initial views on your new
chemical security bill.
Chemistry--Essential2 America
Products supplied by the chemistry sector are essential to
manufacturing, agriculture, energy, transportation, technology,
communications, health, education, defense, and virtually every aspect
of our lives. Basic industrial chemicals are the raw materials for
thousands of other products including plastics, water treatment
chemicals, detergents, pharmaceuticals and agricultural chemicals.
Their applications include medicines and medical technologies that save
our lives, computers that expand our horizons, foods we eat, water we
drink, cars we drive, homes in which we live, and clothes we wear.
Our $550 billion dollar industry employs almost 900,000 people
across the country, and accounts for 10 percent of all US merchandise
exports. In fact, more than 96% of all manufactured goods are directly
touched by chemistry.
Chemicals are essential for the life of the nation. Last year, we
invested $14.3 billion in environmental health and safety programs. We
generate nearly 1 out of every eight U.S. patents and invest more then
$22 billion in R&D annually, more than any other industry.
The Chemistry Sector and ACC's Responsible Carer Security Code
Since 9/11, there has been a paradigm shift in the way we approach
chemical facility security. Security has always been a top priority for
America's leading chemical producers, and soon after the terrorist
attacks of September 11, 2001, members of the American Chemistry
Council took the lead in securing their facilities. Without waiting for
government direction, the ACC Board of Directors quickly adopted the
Responsible Care Security Code, an aggressive plan to further enhance
security of our facilities, our communities and our products.
In my testimony before this committee last year, I spoke in some
detail about ACC's Responsible Care Security Code. In summary, the
Responsible Care Security Code is a mandatory program for all of our
members. The Code requires each company to complete a four-step
process:
Prioritize every facility by risk;
Assess vulnerabilities
Implement security enhancements; and
Verify the implementation of physical security measures,
using third parties that are credible with the local community,
such as first responders or law enforcement officials.
Since implementing the Code, I'm glad to report that our member
companies have invested nearly $3 billion in security enhancements.
Additional statistics are available online at www.ResponsibleCare-
US.com.
The Code has been widely praised and accepted. Under the Maritime
Transportation Security Act, the US Coast Guard has approved the Code
as an alternative form of MTSA compliance. And the Code has earned
praise from government officials and security experts.
In addition, ACC stepped up our outreach to and cooperation with
the public sector in Washington and at the local and state levels,
developing new ways to share information and work together. We helped
created the Chemical Sector Coordinating Council, which facilitates
effective coordination between DHS and chemistry businesses to protect
this critical sector of the nation's infrastructure. This partnership
proved very valuable to the nation during last year's Gulf hurricanes.
It should also serve as a constructive basis on which to build a
regulatory program.
The benefits of this partnership continue. For example, over the
last three years, ACC has co-hosted an annual Chemical Security Summit
at which DHS and other government officials from Washington, the states
and localities have shared best practice information with industry
experts. This year's summit is underway right now in Baltimore, an
example of how we can - and must - work together.
Why America Needs A National Chemical Security Law
As I have stated in prior testimony, the chemical industry is part
of the nation's critical infrastructure, an essential asset that needs
to be protected. Because of our role in the nation's economy, defense
and health, for instance, the chemical sector must be adequately
protected.
ACC members account for nearly 85 percent of the nation's chemical
production, but we do not encompass the entire sector. In fact, most
facilities within the sector do not produce chemicals, but rather use
or store them. Though ACC's members have undertaken significant
security enhancements under the Responsible Care Security Code, there
are many nonmember facilities that neither ascribe to the Code nor are
covered by federal or other security regulations. To protect them and
the entire chemical sector, a uniform federal law is needed to set and
enforce standards.
National Chemical Security Legislation and the Crucial Public-Private
Partnership
Speaking in Washington in March, DHS Secretary Michael Chertoff
outlined how government and the private sector must work together to
promote chemical security. Rather than dictate how security is to be
achieved, the federal role should take advantage of the "strength of
the industry - its adaptability, its initiative and its ingenuity - by
laying out a series of performance standards," Secretary Chertoff said.
Government should set and enforce clear performance standards
across the entire chemical sector. Companies must meet those standards,
and their compliance should be independently verified. The result will
be enhanced security.
ACC has consistently argued that national chemical security
legislation must:
Create risk-based/performance orientated standards with DHS
oversight
Risk-based--The only sensible way to address the risks posed
by terrorist attacks on our homeland is to adopt a risk-based
system of prevention and preparedness. Different chemical
facilities pose different risks, based on their differing
vulnerabilities and consequences, and any regulatory system
must reflect those differences and require security measures
commensurate with those risks.
Performance-oriented--Facilities need flexibility to select
among appropriate security measures that will effectively
address risks. Under Secretary Stephan noted that an overly
prescriptive system could, by its predictability, actually
assist terrorists in targeting their attacks.
And, DHS must have the legal authority to police compliance
with its standards and to take enforcement action if necessary.
Establish uniform national standards for the entire industry.
Only through the establishment of a set of uniform standards
will we be able to protect the entire chemical sector. Chemical
security, like nuclear or aviation security, is a national
concern. Congress should support federal preemption and
prohibit a patchwork of inconsistent state requirements that
may actually hamper security by misdirecting resources.
Protect sensitive information. Information about the
vulnerabilities of facilities, and the measures they have taken
to reduce them, is literally a roadmap for terrorists. A law
that required such information to be created, but then
permitted it to be released publicly, would be a step in the
wrong direction to improve security.
Avoid redundancy and inconsistency. Legislation should
recognize and be consistent with the highly successful efforts
of the Maritime Transportation Security Act (MTSA) passed three
years ago. Facilities already secured under MTSA should not be
subject to a separate layer of security regulation and
inevitably conflicting direction from two different regulatory
overseers.
Recognize responsible voluntary efforts. Based upon their
substantial and verifiable efforts to date, ACC members
strongly believe that federal legislation should enable DHS to
give them credit for their substantial voluntary, at-risk
expenditures implementing the Responsible Carer Security Code.
We are not asking for anything less stringent than everybody
else, only that DHS be allowed to recognize our members'
significant actions, just as the Coast Guard has done.
There has been a great deal of discussion surrounding inherently
safer technology (IST) in regards to chemical security. The business of
chemistry has long embraced inherently safer approaches.
Last week the Senate Environment and Public Works Committee held a
hearing regarding IST. During that hearing, leading experts who
literally wrote the book on utilizing IST at chemical facilities warned
Congress against mandating IST.
Their testimony supports what I stated a few moments ago, we
believe chemical security legislation should be performance oriented
allowing facilities the flexibility to choose from an array of security
measures. Legislation should not mandate specific security measures.
ACC Views on The Chemical Facility Anti-Terrorism Act of 2006
Given the bill's introduction only yesterday, we have only been
able to read it quickly and will, naturally, need time to carefully
consider its provisions and discuss them with our membership. I am
pleased to say, though, that the Committee's action in introducing the
bill, and convening this hearing, are extremely positive steps that
take us a long way toward the goal of a comprehensive, risk-based,
performance-oriented, national chemical security program, and we
commend you
The bill seems solidly focused on promoting the security of the
chemical infrastructure. The bill appears to allow chemical facilities
the flexibility to select appropriate measures to achieve a clearly
defined standard. There is also a very helpful statement that prevents
vulnerability assessments or plans from being rejected for not
including a specific security measure .
The bill provides an appropriate mechanism for recognizing the
massive investments that our members have made under the Responsible
Care Security Code. It also adopts a very workable and sensible
approach for dealing with MTSA facilities, avoiding duplicative
regulation but allowing the Secretary to require additional security
measures if needed, we presume, to meet applicable performance
standards.
The bill generally provides very solid information protections,
clearly providing that sensitive security documents and information
cannot be released. We note, however, that the bill does appear to
contain any penalties even for government employees who knowingly
violate protocols for protecting information. Such penalties have been
a hallmark of other chemical security bills over the years and are
needed to give the protections teeth.
We also believe the bill could go further to address the important
question of federal preemption. We think a much clearer and more
appropriate standard would be the one established by Congress in the
Hazardous Materials Transportation Act - where state requirements are
preempted unless they are "substantively the same as" the federal
program.
Again, I expect that we will have further thoughts on this bill as
we are able to review it more carefully. But overall, we commend you
and your colleagues for crafting a good bill that can be the vehicle
that gets us all to a Rose Garden ceremony this year.
Looking Ahead
ACC is fully committed to winning passage of an effective chemical
security bill this year. Our member companies have worked hard to
obtain this goal, and we promise to continue working closely with this
subcommittee, the full committee, the Congress and the administration
to make this a reality.
As our CEO, Jack N. Gerard said recently, "The 900,000 people who
work in the chemical industry, the communities where they live and
work, and the millions of Americans who rely on our products, deserve
no less."
Thank you and I will be pleased to answer questions.
Mr. Lungren. I thank all the witnesses for your testimony,
and at this time I would like to ask some questions and limit
myself to 5 minutes before recognizing other members.
We have this bipartisan approach, which has sustained us
through the entire effort to come up with this bill; and I hope
that we continue with that. There has been an area of
controversy for those who look at this from all sides, and at
least three of you mentioned that, and that is the issue of
inherently safer technology, or inherently safer design or
inherently safer processes, and whether we should somehow
mandate that or give that regulatory mandate to DHS.
And I would specifically like to ask this question, Mr.
Crowley, Mr. Berger; I think we all want to get to the same
place, but the two of you appear to have slightly different
views on this. And let me try and put it in the manner of an
example, and hopefully, it is a good example. If not, maybe the
two of you could give me a better example.
But if a water plant, for instance, changes from chlorine
to bleach, this doesn't mean that the facility would no longer
need security measures. I think we would all agree on that.
What true benefit would be generated by the mandate, let's say,
of a water plant moving from chlorine to bleach when wouldn't
it still remain an attractive terrorist target, and wouldn't we
still have other things that we would have to deal with? And
could we make the judgment that by making that change, we
necessarily increase the security profile just as a result of
that?
And I would ask that to Mr. Crowley and Mr. Berger.
Mr. Crowley. I will start off and I will defer to Mr.
Berger. I am an English major, not a chemical engineer.
Mr. Lungren. That is okay. I am an English major, too, but
I am also handicapped by being an attorney. So go right ahead.
Mr. Crowley. I think what would be mandated here is that
there is a process, and the process would require the chemical
sector to acknowledge whatever alternative processes may exist.
It would not necessarily mandate that the facility operator you
know, choose between you know, the facility operator could
choose between liquid bleach as one alternative or ultraviolet
radiation as another, or if there is another disinfectant that
comes along, do that. But it puts on the table, you know, the
issue of safer alternatives where they clearly exist and are
obviously being adopted by a wide range of facilities across
the country.
I think the key here is moving away from, you know, the
gaseous compound, whether it is sulfur dioxide or ammonia or
chlorine, to another form of the substance, if not another
technology that eliminates the terrorism risk, you know because
my understanding is that liquid bleach still poses, you know,
challenges, but it is far more localized.
And I think that while you are right, Mr. Chairman, there
would still be security responsibilities, a facility may find
when you put together a number of things that it is very cost
effective because it probably would require fewer guards, it
probably would require fewer a less arduous evacuation plan,
the local community may require less in the way of protective
equipment and gear.
So when you put the whole ball of wax together, I think
there -- it is an attractive opportunity. I think the last
point again is again going back to the issue of the chlorine
car, you know, unless you put safer alternatives on the table,
you don't break up the lethal combination that exists right
here at the Capitol, which is a HAZMAT car sitting next to the
United States Capitol. That combination is inherently insecure;
and the only way that you break that up, you know, is by
requiring a process where people have to evaluate safer
alternatives where they are practical.
Mr. Lungren. Mr. Berger?
Mr. Berger. Mr. Crowley makes some very good points.
I think the thing that is certainly important to understand
is that when it comes to the attractiveness of a particular
target, there are a number of factors that make things
attractive, and any one of those will make an attractive
target. You can take away one of those attractiveness factors
and the target remains equally attractive.
So removing the let's say removing chlorine from a water
treatment plant probably is a good thing for safety, but it is
not going to impact the security, because a terrorist may still
be interested in contaminating the drinking supply, cutting the
power to eliminate water, for example, or just disabling the
plant altogether. So I think in terms of attractiveness, that
will not have the effect.
I think the other thing to consider is that this is a
system, and bleach has to be made someplace in a chemical
plant. It is made from chlorine. So what you are doing is you
are transferring the risk from one place to another place. And
I think Mr. Crowley did make a very good point that this is a
system evaluation that should be evaluated by the really by the
Secretary of Homeland Security, basically looking at the whole
system so that we are not transferring risk from one place to
another, as opposed to actually reducing risk overall for the
Nation.
Mr. Lungren. A lot of questions I could ask, follow-up, but
I am limited to 5 minutes, so I would like to recognize Ms.
Sanchez for 5 minutes.
Ms. Sanchez. Mr. Chairman, we have three votes on the
floor. They just started. Two amendments and then two
amendments and then the passage of the bill. So how do you want
to work that?
Mr. Lungren. Fifteen and
Ms. Sanchez. Fifteen and 5. I would assume 5 and 5.
Mr. Lungren. Why don't you go ahead with your questions? We
will let Ms. Sanchez to have her 5 minutes of questions, and
then we will break and come back.
Ms. Sanchez. As soon as the votes are over?
Mr. Lungren. Yes.
Ms. Sanchez. Okay.
Thank you again, gentlemen, for being before us to testify.
I have a couple of questions well, maybe two or three.
Hopefully, I will get through them.
Senator first of all, what does your community expect from
the Federal Government when it comes to securing chemical
sites?
Mr. Balboni. They expect that there will be regulations
that will have a uniform standard. They expect I know this
comes as a big surprise money. You know, that really is one of
the major things that we are focused on right now in New York
for a whole host of other issues. And they expect consistency
and uniformity.
You know, the unique thing about New York City is that as
we look across the river and we see New Jersey, we realize that
we can do everything we want to make everything safer, but yet
you have got you know, no disparagement to New Jersey; it is a
great place, but they have two miles of very, very vulnerable
facilities. And so if they are not consistent, also, if they
are not engaged, well then, our residents are not as safe as
they could be.
Ms. Sanchez. Do you also expect that the Federal Government
will put teeth in and have some penalties or some form by which
to enforce those standards that we put in?
Mr. Balboni. Yes. You know, the issue of penalties, my
original initial approach was for penalties. We could not get
that through the legislature.
I think, frankly, that is the job of the Federal Government
to come in and work with the industry to see what is the best
way to enforce the standards that are developed.
Ms. Sanchez. Thank you.
Mr Dubin, to what degree are you comfortable giving the
Department of Homeland Security regulatory authority over the
security of chemical facilities?
Mr. Durbin. Ms. Sanchez, we have actually stated all along
that we believe DHS should be given authority to you know,
oversight, inspection and enforcement authority over chemical
security. Again, we believe this is part of our national
critical infrastructure, and that it we need to ensure that it
is adequately protected. And while our member companies have
taken great steps and made great actions in investments, we
need to only by having uniform national standards that are, you
know, enforced by the Department of Homeland Security can we
ensure that the entire sector is adequately protected.
Ms. Sanchez. In other words, some of your companies have
stepped up to the plate, and others haven't; and they find that
it is a cost consideration; they would prefer that we put in
some sort of standard across the ways so they are not at a cost
disadvantage.
Would you say that is reasonable?
Mr. Durbin. First of all, I would say all of our companies
have stepped up to the plate and made the investments here. But
I think that the reason now we have to have national uniform
standards is, number one, we are part of critical part of the
infrastructure. We need to make sure that we don't have a
patchwork of standards out at the State level. And certainly we
want to make sure that you know, that we believe we have
actually we have got a roap map here for how to do security at
chemical facilities.
I think we have actually got a model, and that we should
have the entire sector taking the same kinds of aggressive
actions that our members have taken.
Ms. Sanchez. Aside from cost considerations, what reasons
do you think would discourage companies from using inherently
safer technologies?
Mr. Durbin. Again, I wouldn't say cost has anything from
our standpoint, again, as I said, the chemistry sector,
certainly ACC members, have embraced inherently safer
approaches.
As Mr. Berger mentioned in his testimony, it is good sense.
It makes sense for our facilities to be operating as safely and
securely as possible. No one has a greater interest in making
sure that our communities, our products and our facilities are
neither harmed nor misused.
And again, the concept of inherently safer approaches is
actually a requirement within for our member companies as part
of the responsible care program and the security code.
Ms. Sanchez. Mr. Berger, some businesses say that we are
putting too many mandates, that we shouldn't be putting more
regulations, that we are putting too much cost onto people.
What is the sense of the engineers that sit inside of these
companies? What would your membership say about having
standards and really having enforcement of those standards?
Mr. Berger. Generally, our organization does not take
position on issues like that. But what we would say is, if
there is going to be a regulation, it should be one that is
technically sound and implementable and is cost effective. So I
think that is that is the angle that we would take.
Ms. Sanchez. Thank you, Mr. Chairman.
Thank you, gentlemen.
Mr. Lungren. Thank you. With your indulgence, we will just
have to recess until we finish these votes. I think we have a
15 minute vote followed by two probably 5 minute votes, and
then we will return and resume questioning.
Thank you very much.
[Recess.]
Mr. Lungren. Mr. Pearce is recognized for 5 minutes.
Mr. Pearce. Thank you, Mr. Chairman. Mr. Crowley, now you
have my curiosity up. What materials are carried in that HAZMAT
car, in the rail car that sits a block over here?
Mr. Crowley. At the present time, there is a court
injunction based on a case between D.C. and CSX, so at the
present time, under a voluntary rerouting plan by CSX, there is
no HAZMAT car. But CSX, on the one hand, has gone to court to
assert its right at some point in the future.
Mr. Pearce. When they let's say they assert their right
favorably, what do they carry?
Mr. Crowley. I believe they carry, among other things,
ammonia, chlorine and sulfur dioxide.
Mr. Pearce. Mr. Balboni, Senator, what how did you take
care of overzealous regulators in your bill? In other words,
that is constantly a problem that you give people just a little
bit of access into an industry, and suddenly they are beginning
to control it from outside.
How did you manage that problem?
Mr. Balboni. Well, what we did was, we basically said to
the Office of Homeland Security in the State, you will work
with the different sectors and facilities, use the Web-based
instrument as the initial point of contact, review the returns;
and then do a site review and develop the plan based upon what
the unique facility requirements are and, frankly, develop a
practical application of the security analysis.
Let me share with you, Congressman, one situation in
Brooklyn, New York. We had a food manufacturer that had a 500-
gallon tank of anhydrous ammonia, and that has a toxic
chemistry if released. It was right near a school, an elevated
Mr. Pearce. With all due respect Mr., Balboni, I am talking
about the overzealous regulator that is worried about the box
car that runs through his district, who decides he is going to
reroute that. Is
Mr. Balboni. I put a rail transport bill in.
Mr. Pearce. I am talking about the overzealous regulator.
Let's use your example of a drum of clear water then. Okay,
something is not hazardous. We all remember OSHA from the
1970s. They had the horses sitting out here, the OSHA-approved
horse; and it has bumpers on both ends. It has kiddie legs, got
these little legs jacked down to keep it from leaning over and
other things to catch the emissions from the back and stuff
like that.
I mean, regulators go nuts sometimes, and I just asked,
what did you do to stop the overzealous regulators.
Mr. Balboni. We worked with the Department and we gave them
pretty clear regulations as to what they were trying to do in
terms of security enhancements.
Mr. Pearce. Fair enough.
Mr. Crowley, you have seen Mr. Berger's testimony that he
says a lot of times the problem is transference; and in fact, I
think if you look at the example used on page 2, you talk about
the conversion from chlorine gas into bleach, to liquid bleach;
and yet somewhere somebody has to use that chlorine gas, so you
transfer the risk somewhere else, which is part of Mr. Berger's
testimony. What about that?
Mr. Crowley. Well, you will have chlorine gas sitting on a
manufacturing site, but I believe that if you switch from
chlorine bleach to liquid bleach, you go from having a
potentially catastrophic terrorism event to a much more
localized event and a situation where you can manage.
So I don't think anyone at this point is saying that we are
going to get out of the chlorine gas business.
Mr. Pearce. You are saying there is no transference, the
fact that the bleach is made somewhere else, you transfer the
risk out to where the bleach is made?
Mr. Crowley. The key is going from a very significant
catastrophic terrorism risk to a lower level of risk that is
more manageable. You don't eliminate the risk entirely; that is
true.
Mr. Pearce. What would you say about Mr. Berger's testimony
where he describes that due to this, the IST process,
inherently safer technology, some nuclear power plant was
required to downgrade, put a smaller unit in; and it made it
safer with respect to the one process, but with respect to the
other process it became inherently less safe.
Who would make those decisions? Who would actually at the
end of the day make the decisions, what is inherently safe and
what is not? And where is the transference occurring? Who would
be on the point to make that decision?
Mr. Crowley. I think one of the values that is in the bill
in terms of the tiering scheme is that, on the one hand, DHS
would say would assign, you know, this particular facility at a
very high level of risk or a relatively lower level of risk.
And at that point, working with the facility operator and, in
my judgment, also taking into account the transportation aspect
of operating that facility then it would be ultimately the
facility operator that works to use whatever tools are
available, including inherently safer processes, to be able to
move from a high level of risk, which one would assume is very
expensive, to a relatively low level of risk or off the charts
entirely.
Mr. Pearce. You would mandate or not mandate inherently
safer technology?
Mr. Crowley. I think you mandate a process that puts
inherently safer technology on the table, as Mr. Berger said,
as one tool in the arsenal.
Mr. Pearce. And, Mr. Crowley, you won't then object to the
flexibility? I am not sure if Mr. Berger or Mr. Durbin talked
about the flexibility to choose between the processes. You
wouldn't object to that?
Mr. Crowley. Not at all. But a facility operator has to be,
and I think one of the values of the New Jersey bill, for
example, is that it does require the facility operator to
consider whatever safer alternatives do exist.
Mr. Pearce. Thank you very much, Mr. Chairman.
Mr. Lungren. Gentleman's time has expired.
Gentlelady from Texas, Ms. Jackson Lee, is recognized for 5
minutes.
Ms. Jackson Lee. I thank the distinguished Chair and the
distinguished ranking woman.
This is a hearing that hopefully will help us craft the
best initiative when you have the clashes of an industry
attempting to provide services such as an industry in my
region, Texas, where I think a commonsense approach is
necessary to ensure that transport and possession of these
particular chemicals do not create a catastrophic event.
I think after I noticed, Senator Balboni, you started out
your testimony, as I would expect, by your recognition of some
of these issues after 9/11, and your testimony is very
instructive.
But be reminded that in the Oklahoma incident, as well,
chemicals for the first time were introduced to America for use
other than fertilizing their yards. So I think this is a
extremely important concept and one that needs great attention.
I am going to ask and forgive me for being detained on the
floor, but I want to hear your comments on this concept that is
in between the Senate bill and the House bill; and if I could
hear for myself it might have been in your testimony. But that
is, of course, the issue of the Federal law preempting all
versus their setting a minimum standard, which is the Federal
standard, but if States wish to accelerate to a higher level of
standards, based upon their own needs, that would be a
responsible approach to take.
Senator And if I could get an answer from all of the
panelists, thank you very much.
Mr. Balboni. Thank you, Congresswoman.
The perspective from New York State was that the chemistry
had already recognized many of the vulnerabilities and threats
and had done a lot of work, in and of themselves on a voluntary
basis. And what we are doing is, we are not reinventing the
wheel, but rather building upon what they had done.
Having said that, the Federal preemption aspect of this
legislation, I believe is necessary as it relates to the
penalty component. What I found, politically in New York State,
we were not able to get the penalty provision in our law; and I
think that that is really what you need to do for compliance.
In addition to which, there are some strengths here in the bill
that we are lacking, and that is very crucial as it relates to
the whistle-blower protections, as it relates to letting the
industries develop their innovation and best practices, and so
you don't micromanage.
Now, having said that, there is a provision in the bill
that allows for waivers, if you have some different types of
standards, I would like to see that the Department of Homeland
Security take have a sensitivity that one size does not fit
all, and there may be a certain situation which you need to
have a different regulatory view of it. And we hope that the
Department will work with us on that.
Ms. Jackson Lee. You are saying then that you fall more
towards the flexibility of a standard that is set under the
House bill, and then try to
Mr. Balboni. Exactly.
Ms. Jackson Lee.--make it for more palatable for States and
other entities?
Mr. Balboni. Yes.
Ms. Jackson Lee. Thank you.
Mr. Crowley?
Mr. Crowley. Again, Congresswoman, if you look at the New
Jersey example and here in the Congress between the House and
the Senate, there is obviously the concept of inherently safe
technology and whether it should be a part of the process and
something that DHS has the authority to put on the table as one
solution, you know, among a range of options for securing our
chemistry sector.
If, in fact, Congress were to pass a bill that does not
include that explicit, you know, feature, it would be hard for
me to see why the State of New Jersey, for example, in its
current approach would not be able to use as it currently does
a voluntary effort, but it requires their industry within the
State of New Jersey to at least consider IST as among the
options in terms of securing their facilities.
So I certainly think, as I said in my testimony, we should
be talking about establishing strong security floors, but not
necessarily creating ceilings.
Ms. Jackson Lee. And so you also want requirement language,
because I just noted that you said the State of New Jersey has
voluntary collaboration, but you are saying--
Mr. Crowley. The State of New Jersey, as I understand it,
does not require a facility to act on the particular technology
available, but must consider safer alternatives in its security
planning.
Ms. Jackson Lee. And you want at least the minimal floor
with procedures in place?
Mr. Crowley. I believe that for a chemical security
strategy to be viable, IST, or whatever you call it, has to be
something put on the table for all stakeholders to try to
resolve.
Ms. Jackson Lee. Thank you.
Mr. Berger?
Mr. Berger. We haven't evaluated this issue, so I don't
have any comments. But I am sure Mr. Durbin does.
Mr. Durbin. Congresswoman, I would say, first, that the
conversation with the Senator before the hearing I am happy to
say that, you know, ACC and our Members have a good working
relationship with the State of New Jersey. We were able to
support both of the existing State laws that are out there in
New York and Maryland; I think they were responsible
approaches.
But having said that, ACC's clear preference is to have a
national program, uniform national standards, and we think it
is important and does provide a more comprehensive national
security, homeland security, to have a clear Federal preemption
in this area. I think that just as we regulate nuclear security
and airline security at the Federal level, I believe that same
type of approach should be taken with chemical security, given
our presence in the economy, throughout the economy.
Ms. Jackson Lee. But you want standards. You want
standards, national standards, where you know where the
parameters are
Mr. Durbin. Yes, ma'am. Yes, ma'am.
Ms. Jackson Lee.--in law?
Mr. Durbin. Absolutely.
Ms. Jackson Lee. Let me conclude, Mr. Chairman, by asking
Mr. Berger if he would ultimately analyze the question and make
sure that he comments.
Because obviously we would be interested in your best guess
on this, or if you have any other comments about any standards,
set standards.
Mr. Berger. From the perspective of a company that was
trying to implement activities on a national level, it would
seem to be easier to have one set of rules to live by.
Ms. Jackson Lee. Thank you very much. Thank you.
Mr. Lungren. Thank you. The gentlelady's time has expired.
We will do a second round here, and I will start off with
my 5 minutes.
I would address it to I guess, Mr. Crowley, Mr. Berger, Mr.
Durbin and that is this: We are talking about inherently safer
technologies or processes or designs. Does anybody have any
idea across the spectrum of the chemical industry how many of
the chemicals listed on EPA's risk management plan list have
scientifically proved alternatives that increase safety, reduce
risk, and operate at least as effectively in terms of both cost
and end product as the chemistry compound that is being
replaced?
Do we know?
Mr. Berger. I don't have those figures offhand. I am sorry.
Mr. Lungren. Is that available?
Mr. Berger. I don't think it is.
Mr. Lungren. I am trying to figure out what the universe is
we are talking about, to the extent known now, because there is
a presumption that at least I would think that when you talk
about an inherently safer product or design or process that it
would increase safety, reduce risk, and operate at least in a
commercial setting, presumably it operates as effectively both
in terms of cost and product as the chemical compound being
replaced. Or at least we could make an analysis to show where
they would differ.
And I am just trying to figure out, is it going to be
serendipitous? Is it going to be on a piece-by-piece basis, or
has there been any attempt to try and analyze it that way.
Mr. Berger. I think Mr. Crowley has done analysis on this
and probably would like to comment, but I think maybe the way
to look at this is not the list of chemicals, but the usage of
them, and probably the top three are chlorine, ammonia and
sulfur dioxide.
And so it is I would say from an engineering perspective,
it is possible that if we took a national strategic look at
those materials, we might be able to come up with a sort of a
comprehensive solution.
I don't know if we can do that on a site-by-site basis,
though.
Mr. Lungren. Mr. Crowley?
Mr. Crowley. I think if you reflect back to the example I
used in my testimony regarding the HAZMAT car outside the
Capitol here and the challenge that poses for the rail
industry, for example, half of the toxic-by-inhalation
substances that are on the rail are just as Mr. Berger said,
ammonia, chlorine and sulfur dioxide.
If you add to that hydrogen fluoride, you are up to 55
percent; so just by getting industry to adopt the liquid
version, or less hazardous version, but getting away from the
gaseous version would go a long way towards taking your
terrorism risk from catastrophic level down to something that
is more manageable.
Mr. Lungren. Mr. Durbin?
Mr. Durbin. My concern would be that we are discussing this
in a fairly simplistic way. As Mr. Berger, in his testimony,
said, the whole idea of looking at inherently safer approaches,
designs, technologies, it is a concept, it is a process.
It is an ongoing process, and so while you may be able to
find, as you are going through and, frankly, again from a
company's perspective, they are always trying to find safer
ways of making their products, moving their products, what have
you. There isn't a book to go to or a database to go to to say,
well, if I am using this, I can switch this out instead.
The application is just as important, obviously.
Mr. Lungren. That is what I am trying to get at in terms of
writing legislation.
It sounds like a wonderful concept. We would all like to
move in that direction. It makes sense. But I don't want us to
be writing legislation that seems to mandate the goal, but by
the very means of the language we use and the way we articulate
it and the restrictive nature in which we put it out there, we
actually diminish the opportunity for the kind of ingenuity or
creativity that might otherwise be there that would allow us to
get to the performance that we want.
And that is what I want to try and ferret out here. It is
not an excuse to get away from those things that would get us
to the goal in a reasonable fashion, but as quickly as possible
in a reasonable fashion.
It is not making the mistake of overregulating in such a
way that it seems to be driving us there, but it actually
inhibits it from doing that, if that makes some sense to you.
Let me ask this very, very quickly. Mr. Crowley, you
expressed and I know some other witnesses have expressed
concerns about the exemption in the bill of the transportation
of hazardous materials, so let me clarify at the very beginning
any access points into and out of a chemical facility, whether
they are by road or by rail, would be need to be secured under
this bill.
The issue you raise of vulnerabilities of chemicals
traveling on our rails and highways is a complex and larger one
outside the scope of the bill.
So if that is a given that this bill is dealing
specifically with the vulnerabilities of chemical facilities,
is there agreement that in addressing the chemical facilities'
security, this bill at least accomplishes that to some
significant extent?
Mr. Crowley.
Mr. Crowley. I think potentially, yes, but the dilemma is
if the vulnerability assessment ends at the fence line of the
particular facility; and the vulnerability to society exists
when a hazardous substance is being transported through an
urban area. How do you get to a process where the entire system
is considered?
So the dilemma is that if you just have you know, the
manufacturer and the user have separate security plans that
don't intersect, you leave the rail industry, for example, in
the middle, and they cannot fundamentally you know, as I said,
the HAZMAT car next to the United States Capitol is inherently
insecure. So it seems to me, as long as you have a process
where all of the stakeholders are brought to the table and have
to address the systemwide challenges of how they manufacture
and operate, at that point, you are able to have a process
where, you know, safer alternatives are a part of the mix.
Mr. Lungren. I take your point.
And I have got other things, but Ms. Sanchez has the time.
Ms. Sanchez. I think that was very interesting. And if you
have any follow-up, because I am very interested in the
transportation, your comment on the transportation issue.
Mr. Lungren. Just one thing, and this is what it brings to
mind: If we so focus on a static analysis that we say, we are
going to make this site so secure and this site so secure, but
we know we have inherently hazardous materials involved in the
process, we may just be transferring the concern from a static
environment to a moving environment.
And so I take your point that, therefore, we have to be
sharp about this and somehow integrate all of this. But you
have to understand that as we deal with bills in certain ways,
we have to take certain segments, and we have to try to do the
best job there; and then, hopefully, integration takes place on
top, number one.
Number two, I would just say, again it goes to the point
that and everybody agrees we can't get rid of all risk and we
can't promise our constituents we are going to get rid of all
risk; we are going to try to manage risk to the best of our
ability.
And when you have chemicals, in some cases there are going
to be some inherent hazards involved; and we have to recognize,
acknowledge that and deal with it in a way that makes
scientific sense, but also in a way that makes practical sense
since, as I said at the opening of this, we are a chemically
dependent society, meaning that chemicals are an essential part
of the way we live, do business, live in our homes and so
forth.
Mr. Crowley. I positively agree, Mr. Chairman, and I think,
from a DHS standpoint, if they are able to make a judgment that
a HAZMAT car in the middle of an major city is an unacceptable
terrorism risk, they have to be able to both ask a question of
the other stakeholders, ``Have you looked at another
alternative to doing this?'' So we get the HAZMAT car out of
the center of the city.
I also think that since DHS has successfully established
and is using centers of excellence at universities around the
country, getting them invested in that research and development
effort, so that they can perhaps bring to the equation along
with private sector, you know, solutions as we go along, so
they are able to say, ``Have you looked at this chemical
sector; have you looked at that?''
But it is just a matter of DHS has to be empowered to have
this kind of conversation as part of a chemical security
strategy.
Mr. Lungren. You have to realize we are also dealing with
DHS, which is set up to deal with terrorism and the threat. We
have EPA that deals with safety. And they intersect, but they
are separate and we have to understand that.
Ms. Sanchez. But I think, Mr. Chairman, that is one of the
ideal pieces of our bill is the fact that there is incentive
and flexibility, because each plant in each city, where that is
located and what kind of chemicals are coming and leaving,
makes the need for flexibility so important.
And while we need regulation and we need and I think we do
need to have some system of actual punishment for those who
aren't really looking at this in a serious manner you know best
practices I mean, I would hope that chemical people who are
running chemical plants would be thinking about themselves and
their own employees, first and foremost. Because, you know,
most of them will be at ground zero if something might happen
there, versus, you know, the surrounding population where you
have to take into account where the wind is blowing and all
these other factors.
What do you all think is the greatest terrorist threat
facing chemical plants today? And what should we, what should
we do about it? How do we address it? And where would such a
threat most likely take place?
I mean, if you had to say that you were a terrorist, what
would you be looking for? And then, wearing the other hat, what
would you put in place today to try to stop or at least stop
the significance of an attack?
Mr. Durbin. I will be happy to take a first stab at that.
Frankly, there is no real clean, easy way of saying what is
the threat. We learned we learned almost 5 years ago that there
are people out there that are willing to take things we use
every day, and take them and use them against us.
Ms. Sanchez. But the greatest
Mr. Durbin. For the chemical sector, I think you are
dealing with a sector that has a history and a culture of
looking at itself, knowing that we are not only are we critical
throughout the economy, but we know we deal with dangerous
things, which is why we have a culture of safety. And, in fact,
we are the safest manufacturing industry in the United States.
Getting the information on what the threats are, that is
something we have built in in our building a good relationship
with the Department of Homeland Security and the other
intelligence agencies, so that they are giving us the kinds of
threat information we need, so that going back to look at our
own vulnerability assessments has some meaning to it.
And we can put the best security around a facility that we
want, but if it isn't addressing what the threats are. It
doesn't help us much.
As far as what you could be doing, you are doing it. This
bill, this approach, is what is now going to ensure that we
have the entire chemistry chemical sector taking the same kinds
of aggressive steps that, again, our members and others have
taken to make sure that not only at our facilities, but the
products themselves, the interdependency with the other
critical infrastructures, are all taken into account; and we
make sure that this sector is adequately protected.
Ms. Sanchez. Anybody else?
Mr. Berger. Your question reminds me of a story in World
War II, how one of the ways that the U.S. and the allies
disabled the German war effort was to target the factories that
made ball bearings. And by doing that, they ground the
industrial machinery of the country and the war machines to a
halt.
And so the thing that would keep me awake at night would be
the facility, or group of facilities, that if taken out of
service, even without any loss of life, would cripple the
economy. And that could include, you know, a group of
refineries or some other more esoteric look at the supply
chain.
You know, that type of thing could affect the entire
country and the entire economy; and so I think that would be my
main worry. And I guess if I were a terrorist, that is where I
would be, that is where I would be looking.
Mr. Balboni. The RAMCAP program has postulated threats that
they consider and then they do their analysis, and out of
those, the two that are the most threatening are the attack on
a facility next to a large population area with a vehicle-borne
improvised explosive device.
But just as threatening is the theft of material from a
site to be used in another situation, say, in a subway system.
And those are two totally different threats, two totally
different responses; and that is the reason why the flexibility
contained in this bill is so important. It is not just about
creating a fortress around a chemical facility. It is making
sure that people don't get in there, and either from within or
from a cyber attack are able to take material out of a facility
and use it somewhere else.
Mr. Crowley. Let me echo what the Senator just said, and if
Mr. King were here, he probably would be pleased to hear this.
From one standpoint, if you are looking at a catastrophic
event involving a chemical release, in my judgment, terrorists
are going to New Jersey with the intention of harming
Manhattan.
Picking up Mr. Berger's point, if you are looking at a way
in which you can say, oh, use our dependence on oil to handicap
the economy of the United States, you probably would go where
Ms. Jackson Lee's district is, or you would go to California
and try to harm the Ports of Long Beach and Los Angeles.
Now, back to the question of inherently safer approaches,
does that mean that as a society we are going to stop driving
cars? No. So there you have to look at physical improvements,
and this does a fairly good job of doing that.
But back to the New Jersey point, if there is a way in
which you can take as many of the New Jersey facilities off the
terrorism target list by making them relatively more benign
regarding a release that would cross the Hudson to New York,
that should be either in a Federal statute or should be
available to the States of New Jersey and New York to pursue as
they choose.
I think one last point would be, either way, I think the
government has to make sure that it is providing incentives
where the market goes only so far, so society's interest goes
farther, so I wouldn't lose sight of the fact that this is
controversial, that we need to make sure that a range of areas,
including chemical security, that that is a grant program that
incentivizes of the private sector; and municipalities that
might operate waste water and water treatment facilities, to
protect them, to get them over the hump, to nurture the changes
necessary to make us safer.
Ms. Sanchez. Mr. Chairman, just a last question if you will
allow me; and I think I want to direct this to Mr. Durbin.
Has the industry, since 9/11, changed the way it institutes
security measures with respect to maybe an insider job, of
taking something from a facility that can be used? Or do you
think that you always had tight security with respect to
employees, that it hasn't changed much since 9/11?
Mr. Durbin. Well, I would say, obviously security concerns
didn't start on 9/11, and certainly that is certainly an area
where our member companies were very focused with regard to
theft of material by employees or others.
I think, again as I noted in my testimony, we just recently
saw a paradigm shift in the way we look at security after 9/11.
Was that heightened? Absolutely. Do we have guidance together?
We have put together with our members as far as even trying to
hire contractors and the steps that you need to go through to
make sure that the people are going to be on your facility,
whether they are your direct employers or your contractors, are
you looking at them much more closely?
So, yes, it was clearly a concern beforehand, but as with
everything, you know, since 9/11, there is a heightened
alertness; and we have been putting together tools and
resources to help our members do even more in that area.
Ms. Sanchez. Great. Thank you.
And I might just add something to the record, Mr. Chairman.
You know, this whole issue and we have been looking at it
trucking at the ports, and I mentioned that our truckers are
probably some of the worst paid people, you know, a lot of
independent contractors, et cetera. And I know that we have got
HAZMAT requirements if people want to transport that type of
thing, but it is also another very vulnerable area, the
trucking of these substances and the fact that at least the
truckers in California aren't making a lot of money, and there
is a maybe a very huge incentive for some of this to go badly
for us.
Mr. Lungren. I thank the gentlelady. We will continue our
discussion of that.
I want to thank the witnesses for their valuable testimony
and all the members for their questions. This panel has been
very, very helpful. I apologize for the delay we had, but we
had a series of votes on the House floor and I thank you for
your indulgence.
Members of the committee may have some additional questions
for you in writing. If they do, we would ask you to respond to
them in writing. And the hearing record will be held open for
10 days.
Mr. Lungren. Without objection, the committee stands
adjourned.
[Whereupon, at 12:25 p.m., the subcommittee was adjourned.]
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