<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:21829.wais]
S. Hrg. 109-175
IS THE FEDERAL GOVERNMENT DOING ENOUGH TO SECURE CHEMICAL FACILITIES
AND IS MORE AUTHORITY NEEDED?
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
JUNE 15, 2005
__________
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Committee on Homeland Security and Governmental Affairs
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
TOM COBURN, Oklahoma THOMAS R. CARPER, Delaware
LINCOLN D. CHAFEE, Rhode Island MARK DAYTON, Minnesota
ROBERT F. BENNETT, Utah FRANK LAUTENBERG, New Jersey
PETE V. DOMENICI, New Mexico MARK PRYOR, Arkansas
JOHN W. WARNER, Virginia
Michael D. Bopp, Staff Director and Chief Counsel
Allison J. Boyd, Counsel
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Holly A. Idelson, Minority Counsel
Trina D. Tyrer, Chief Clerk
C O N T E N T S
------
Opening statements:
Page
Senator Collins.............................................. 1
Senator Lieberman............................................ 3
Senator Chafee............................................... 15
Senator Carper............................................... 16
Senator Lautenberg........................................... 19
Senator Akaka................................................ 23
Prepared statements:
Senator Voinovich............................................ 33
Senator Coleman.............................................. 34
WITNESSES
Wednesday, June 15, 2005
Robert B. Stephan, Acting Under Secretary for Information
Analysis and Infrastructure Protection, U.S. Department of
Homeland Security.............................................. 5
Thomas P. Dunne, Deputy Assistant Administrator, Office of Solid
Waste and Emergency Response, U.S. Environmental Protection
Agency......................................................... 8
Alphabetical List of Witnesses
Dunne, Thomas P.:
Testimony.................................................... 8
Prepared statement........................................... 44
Stephan, Robert B.:
Testimony.................................................... 5
Prepared statement........................................... 35
APPENDIX
Questions and responses for the Record from:
Mr. Stephan.................................................. 49
Mr. Dunne.................................................... 58
IS THE FEDERAL GOVERNMENT DOING ENOUGH TO SECURE CHEMICAL FACILITIES
AND IS MORE AUTHORITY NEEDED?
----------
WEDNESDAY, JUNE 15, 2005
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:24 a.m., in
room 562, Dirksen Senate Office Building, Hon. Susan M.
Collins, Chairman of the Committee, presiding.
Present: Senators Collins, Chafee, Lieberman, Akaka,
Carper, Lautenberg, and Pryor.
OPENING STATEMENT OF CHAIRMAN COLLINS
Chairman Collins. The Committee will come to order.
Good morning. First, let me apologize for the late start of
the hearing this morning. We had a vote on the Senate floor,
and it seemed to make more sense to vote first; rather than
start the hearing and immediately have to recess it. So I
appreciate your indulgence.
Today the Committee is holding its second hearing on the
security of our Nation's chemical industry against terrorist
attack. Our first hearing, on April 27, examined the chemical
sector's vulnerability to terrorism. Today we will seek answers
to the central questions that hearing raised: What has been
done to secure these vital facilities? What remains to be done?
And is Federal legislation needed?
We will hear from our distinguished panel of witnesses that
Federal legislation is indeed needed to give the Department of
Homeland Security the authority it needs to improve the
security of chemical sites.
The clear statement from the Administration that it
supports new legislation and will work with this Committee to
draft a bill is a welcome and appreciated development. While I
had hoped for more detail on what specific authority the
Administration believes is needed, the acknowledgement that
current laws are inadequate is a positive first step.
In the case of chemical security legislation, the devil
truly will be in the details. In September 2003, and again in
March 2004, President Bush stated his support for legislation
that establishes ``uniform standards'' for the security of
chemical facilities. Yet, a bipartisan legislative approach
backed by the Administration has not emerged.
There have been previous efforts. Former EPA Administrator
Christine Todd Whitman worked with Tom Ridge, then-Director of
the White House Office of Homeland Security, to develop
legislation that would have given the EPA authority to regulate
chemical plant security. According to Governor Whitman,
however, the legislation was killed by a combination of
congressional opposition and tepid Administration support.
In the previous Congress, despite the efforts of Senators
Inhofe and Corzine, a consensus was not reached on a chemical
security bill. But this issue is simply too important to give
in to gridlock and to accept inaction. We need to work
together, and we need to eliminate the stumbling blocks that
have tripped up legislative efforts in the past.
The stakes are high. As we learned at our first hearing,
the EPA has catalogued some 15,000 facilities in the United
States that manufacture, store, or use hazardous chemicals for
productive, legitimate purposes in amounts that could cause
extensive harm if turned against us as weapons. The Department
of Homeland Security uses a different methodology, but still
has identified some 3,400 facilities that could affect more
than a thousand people if attacked.
Only a fraction of our Nation's chemical facilities are
regulated for security by the Federal Government, or subscribe
to voluntary industry security standards.
The potential for a catastrophe is not merely theoretical.
This Committee is cognizant of the 1984 tragedy in Bhopal,
India, where more than 3,000 people died after an accidental
release at a pesticide plant, and thousands of others suffered
injury.
And just a year ago, in Dalton, Georgia, a reactor
overheated and released a plume of toxic vapor. This accident
sent 150 people to the hospital. Carolyn Merritt, the Chairman
of the U.S. Chemical Safety and Hazard Investigation Board,
testified before this Committee and described this incident as
the poster child of our chemical vulnerability. In January of
this year, a derailed train car in South Carolina released
chlorine gas, a common chemical used throughout industry. Ten
people were killed by these toxic fumes, and 250 were injured.
Nor is the potential for terrorists to instigate a chemical
catastrophe merely theoretical. As Steven Flynn of the Council
of Foreign Relations told this Committee at our first hearing,
the chemical industry is at ``the top of the list'' of al Qaeda
and other terrorist groups. The chemical industry, testified
Commander Flynn, ``absolutely screams at you as essentially a
weapon of mass destruction.''
In describing the risks associated with attacks on chemical
facilities, we often hear the phrases ``time bombs'' and
``Achilles' heel.'' At first glance, these metaphors seem apt.
In truth, however, they miss the mark. Time bombs succeed in
their deadly work because they are hidden; the intended victims
do not know of their existence until it is too late. These
chemical facilities are not hidden. We know they exist. We know
precisely where they are, and what they contain. And so do the
terrorists.
Preparing for a potential attack on a chemical facility is
primarily about prevention; but it is also about response. I
look forward to the testimony we will hear today from the EPA
witness on the Agency's role as coordinator of response to
chemical releases, whether accidental or intentional, at most
chemical facilities. We will also hear from the Department of
Homeland Security about investigations of chemical sites and
other actions that it is taking to strengthen security.
I have quoted two witnesses from the Committee's first
hearing to remind us of the threat of a terrorist attack on our
chemical infrastructure, and also of the deaths that have
resulted from accidental releases. A statement by a third
witness reminds us of why this Committee must act.
Richard Falkenrath, the former Deputy Assistant to the
President for Homeland Security, called the failure to regulate
the security of facilities ``a major disappointment.'' He
testified further that, ``To date, the Federal Government has
made no material reduction in the inherent vulnerability of
hazardous chemical targets within the United States.''
It is time to reduce the vulnerability of our Nation's
chemical facilities to terrorist attack. And it is time for us
to work together with the Administration, with industry and
environmental groups and other interested parties, to draft a
bipartisan bill.
Senator Lieberman.
OPENING STATEMENT OF SENATOR LIEBERMAN
Senator Lieberman. Madam Chairman, thank you very much for
calling this second in a series of hearings on the security of
our Nation's chemical plants. With thousands of facilities
scattered throughout our 50 States, chemical security is a key
component of our overall homeland defense.
We have been told in no uncertain terms by independent
observers that not nearly enough has been done to address this
danger. The experts have told us that the consequences of an
attack on one of these chemical facilities could well dwarf the
horror we witnessed and experienced on September 11, 2001.
Madam Chairman, your willingness to take on this problem,
this deficiency in our homeland defense, is a real act of
public service. And I am confident that together we will bring
forth legislation this year that will diminish greatly our
vulnerabilities in this particular area.
We have been warned of the dangers of a chemical
catastrophe over and over again; and yet we are still at a
great distance from putting anything approaching a meaningful
chemical facility security apparatus in place.
The Department of Homeland Security has launched a number
of voluntary security initiatives with the chemical industry.
But the GAO, the Government Accountability Office, says that
these programs are still in their infancy. And others have
questioned the likelihood that voluntary programs are enough to
protect our security.
Allow me to quote Richard Falkenrath again. He said
earlier, ``It is a fallacy to think that profit-maximizing
corporations engaged in a trade as inherently dangerous as the
manufacture and shipment of chemicals will ever voluntarily
provide a level of security that is appropriate, given the
larger external risk to society as a whole.''
As representatives of that larger society which faces that
larger risk, we in the Federal Government, I believe, have a
responsibility to act. Thus far, from the Administration,
unfortunately, we have seen inaction and indecision.
In October 2002, as you referenced, then-EPA Administrator
Whitman and soon-to-be-Homeland Security Secretary Ridge
promised to work with Congress on legislation, saying that
voluntary measures alone were insufficient to provide the level
of security that the American people deserve. Almost 3 years
later, nothing really has happened. The existing approach
continues to be what it was then.
Now, this morning, we will hear an announcement from the
Department that is encouraging; which is to say that the
Department today, under Secretary Chertoff, has essentially
come to the same conclusion that Ms. Whitman and Secretary
Ridge did earlier, and that is that voluntary measures are not
enough.
But I want to appeal to the representatives of the
Department of Homeland Security and the Environmental
Protection Agency that are here today, to not let this
commitment go the way of the good intentions expressed more
than 2 years ago--2\1/2\, nearly 3 years ago--by Administrator
Whitman and Secretary Ridge.
I appeal to you, as soon as possible, with a real sense of
urgency, to come forward with specifics about the kind of
regulatory and protective system that you feel the country
needs. I think you will find in Senator Collins and me and
Members of this Committee a willingness to work with the
Administration in a genuinely bipartisan way, because this is a
critical national security, and homeland security threat.
I look forward to your testimony, and I look forward to
working with you to diminishing the present and clear danger
that faces the American people from an attack or an accident at
a chemical facility, as quickly as we possibly can. Thank you.
Chairman Collins. Thank you, Senator Lieberman.
I would now like to welcome our panel of witnesses. Our
first witness is Colonel Robert B. Stephan. He has perhaps the
longest title of any witness who has come before this
Committee. He is the Acting Under Secretary for Information
Analysis and Infrastructure Protection at the Department of
Homeland Security, and the Assistant Secretary for
Infrastructure Protection.
So assuming that I got that right, we do welcome you.
He also served in the Air Force for 24 years, and he has
been the Senior Director for Critical Infrastructure Protection
at the Executive Office of the President. And we very much
appreciate your being here.
Our next witness after the Colonel will be Thomas P. Dunne,
who is the Deputy Assistant Administrator for the Office of
Solid Waste and Emergency Response at the EPA. Previously, he
held several senior level positions at the EPA.
We are very pleased that both of you could join us here
today. Colonel Stephan, we are going to start with you.
TESTIMONY OF ROBERT B. STEPHAN,\1\ ACTING UNDER SECRETARY FOR
INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION, U.S.
DEPARTMENT OF HOMELAND SECURITY
Mr. Stephan. Madam Chairman, thank you for acknowledging my
many titles. I also have to admit that I must exercise multiple
personalities with those titles in order to get the job done
here at the Department.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Stephan appears in the Appendix
on page 35.
---------------------------------------------------------------------------
But good morning Madam Chairman, Senator Lieberman, and
distinguished Members of the Committee. It is absolutely my
privilege to come before you today to discuss the Department of
Homeland Security's efforts, in partnership with many other
stakeholders across the country, to reduce the risk posed to
the chemical sector--a vitally important sector in our
criteria--from potential terrorist attack; as well as to give
you some idea of the road ahead regarding the security of this
critical infrastructure sector.
I think I need to begin by saying that, first and foremost,
it is very high priority for the Department of Homeland
Security to reduce the risk from terrorism by implementing
collaborative security strategies with Federal, State, local,
and private-sector partners, to adequately protect the Nation's
chemical infrastructure from terrorist attack.
My discussion with you today will include a focus on the
risk landscape associated with this chemical sector and the
important collaborative steps that have been taken to close
security gaps under the existing voluntary public/private
sector partnership; but also to note, very importantly, that
considerable progress has been made through these voluntary
efforts. But just as importantly, further progress is required
to close remaining important security gaps.
As a part of Secretary Chertoff's Second Stage Review of
DHS policies, operations, and structures, he tasked my team to
review the current state of security and ensure that we have
the proper tools to address the threats that face the chemical
industry both now and in the future. To that end, we are
currently assessing the need for a carefully measured, risk-
based regulatory regime for this sector.
To close the existing gaps and reduce risk across the
chemical business, the Federal Government should adhere to
certain core principles regarding any proposed regulatory
structure. First, we must recognize that not all facilities
within this sector present the same level of risk, and that the
most scrutiny should absolutely be focused on those facilities
that, if attacked, could endanger the greatest number of
American lives, have the greatest impact on the American
economy, or present other significant risks.
Second, facility security should be based on reasonable,
clear, equitable, and measurable performance standards. A
regulatory framework should include enforceable performance
standards based on the types and severity of the potential risk
posed by the terrorists. Facilities should have the flexibility
to select among appropriate, site-specific security measures
that will effectively address those risks.
Third, we should recognize the progress that many
responsible companies in this industry have made to date. Many
companies have made significant capital investments in security
since the September 11 attacks, and we should build upon that
progress collaboratively in constructing delicately the road
ahead.
What is the threat to the chemical sector? The chemical
sector, just like all other critical infrastructure that we are
concerned about, is a potential target for terrorist attack.
While we, at this time, have no specific credible information
indicating an immediate threat to the chemical sector, the
Department remains concerned about the potential public health
and economic consequences should a successful attack take
place.
The chemical sector consists of widely varied and
distributed facilities. It presents a comprehensive, sweeping
challenge to us. The particular vulnerability of any specific
facility within this overall landscape obviously depends on the
type and quantity of chemicals onboard a site, the physical
layout and location of sensitive target sets within a site,
access points, geographic location, and many other variables.
Therefore, each facility must have a risk assessment and a
security plan that is tailored to its unique security
environment and considerations.
In December 2003, President Bush issue Homeland Security
Presidential Directive 7, which assigned DHS overall
responsibility for coordinating the national effort to ensure
the protection and security of America's critical
infrastructures and key resources in 17 different categories.
Additionally, this document requires DHS to develop a
sector-specific plan for the chemical sector, and to work with
public and private sector partners across the board to
implement the necessary protective measures aimed at reducing
the vulnerabilities inherent in this sector.
In line with the President's guidance, a large number of
security visits have been completed by DHS, the Coast Guard,
and the Infrastructure Protective Division, and protective
measures are being implemented for the highest-risk chemical
sites in the United States. The Department continues to visit
other chemical facilities on a priority basis in coordination
with various State homeland security advisors, emergency
management officials, State and local law enforcement
officials, and actual individual site owners and operators.
DHS and the chemical sector also continue to build a strong
partnership based on information sharing and active
collaboration. I am pleased to report to you that these efforts
have yielded a very solid information-sharing backbone and
network, as well as a comprehensive approach to assessing risk
for the sector.
It is also important to identify the work that the chemical
sector itself has done to date, in a close partnership with
DHS, to take care of its security responsibilities. The owners
and operators across the chemical sector to a large degree are
voluntarily undertaking a variety of important security
initiatives.
In 2002, the American Chemistry Council developed the
Responsible Care Security Code to help chemical companies
achieve improvement across the board in security performance
through a focused approach based on identifying, assessing, and
addressing vulnerabilities; preventing or mitigating incidents;
enhancing training and response activities and capabilities;
and maintaining and improving relationships with key Federal,
State, and local governmental partners.
A component of this Responsible Care Security Code is the
requirement for an independent third-party verification of the
security enhancements, as well as the competent completion of
the site vulnerability assessments that they are tasked to do
under this code. The ACC estimates that its members have spent
over $2 billion in securing various sites across the industry,
in terms of their membership, since the September 11 attacks.
Closing the gaps, and the path forward. At DHS, a major
focus of the past 2 years has been developing tools for
assessing risks and working cooperatively with local
jurisdictions and companies themselves to implement appropriate
protective measures. As we further assess the status of the
chemical sector's largely voluntary security regime, we have
also been evaluating whether or not the current scope and level
of effort will be sufficient to address important remaining
gaps and emerging threats.
In short, while most companies have been eager to cooperate
with the Department, it has become clear that the entirely
voluntary efforts of these companies alone will not
sufficiently address security for the entire chemical sector.
Based upon work done to date, however, we now have much
greater clarity regarding the tasks ahead, tested tools, and a
considerable knowledge base that will help us make informed
decisions as we go about closing these remaining serious
security gaps.
By exploring all available means to enhance the existing
voluntary system, we want to ensure that all facilities have in
place a core base of preparedness; that those facilities that
pose the greatest risk are receiving more focused attention;
and that the Nation's approach to the chemical sector's
security problem will be based on reasonable, clear, equitable,
and enforceable and measurable performance standards that
reflect the diversity of the chemical sector as well as the
responsible security investments that have been made across the
industry to date.
Since September 2001, the Administration has worked in
partnership with numerous stakeholders to enhance the overall
security of this vitally important sector. Through a
combination of governance structures, information-sharing
mechanisms, risk assessment and risk-based planning approaches,
programmatic initiatives, local law enforcement enhancements,
voluntary industry efforts, the chemical sector has
demonstrated considerable progress in bolstering its security
posture.
But further progress is required, is needed. By developing
a comprehensive risk-based approach for the chemical sector, we
expect to be able to obtain more closures in a significant way
to close remaining gaps in this vitally important area.
This concludes my prepared remarks. I would be happy to
answer any questions at your time, or defer to you, Madam
Chairman.
Chairman Collins. Thank you. Mr. Dunne.
TESTIMONY OF THOMAS P. DUNNE,\1\ DEPUTY ASSISTANT
ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE,
U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. Dunne. Thank you, Madam Chairman and Members of the
Committee. My name is Thomas Dunne, and I am the Deputy
Assistant Administrator for EPA's Office of Solid Waste and
Emergency Response.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Dunne appears in the Appendix on
page 44.
---------------------------------------------------------------------------
I am pleased to appear today to discuss aspects of EPA's
Emergency Response Program and, in particular, the chemical
site security issues. I will summarize my written statement,
but I ask that my entire written statement be submitted for the
record.
Chairman Collins. Without objection.
Mr. Dunne. EPA's Emergency Response Program conducts
emergency clean-up actions at oil and chemical spills and
hazardous waste sites, and is involved with preparing and
planning for chemical emergencies, working with a network of
State and local emergency planning organizations.
EPA's response can cover a wide range of emergencies,
including the World Trade Center in New York City, Capitol Hill
anthrax and Ricin clean-ups, and helping to manage a multi-
State effort to recover debris from the space shuttle Columbia
disaster.
In addition to our emergency support functions, EPA has
partnered with the Department of Homeland Security and other
Federal agencies to develop and implement the National Response
Plan, the National Incident Management System, and the National
Infrastructure Protection Plan.
EPA is also responsible for the development and
implementation of Federal regulations for reporting under the
Emergency Planning and Community Right To Know Act, the
emergency release reporting requirements under the
Comprehensive Environmental Response Compensation and Liability
Act, the oil spill prevention response planning requirements
under the Oil Pollution Act, and chemical accident prevention
and mitigation under the Clean Air Act.
In response to the terrible consequences of the Bhopal,
India chemical disaster in 1984, Congress established chemical
accident prevention programs by enacting the Emergency Planning
and Community Right To Know Act, and Section 112(r) of the
Clean Air Act. EPCRA requires States to create State emergency
response commissions, known as SERCs, and requires local
communities to form local emergency planning committees, called
LEPCs, that would prepare local emergency response plans for
chemical accidents.
EPCRA has also required chemical facilities to provide
LEPCs with the information needed for emergency planning, and
to submit annual chemical inventory reports to SERCs, LEPCs,
and local fire departments. EPCRA does not require facilities
to take actions to prevent chemical accidents.
Section 112(r) of the Clean Air Act required stationary
facilities that handle extremely hazardous materials to prevent
and mitigate accidental releases into the air. It also required
EPA to develop risk-management requirements for the subset of
chemical facilities that had large quantities of the most
dangerous chemicals.
EPA subsequently required certain chemical facilities to
conduct hazard assessments; develop and implement accident
prevention and response programs; analyze the consequences of
worst-case and alternative release scenarios; and provide a
report called the ``Risk Management Plan,'' or also, RMPs.
Approximately 15,000 facilities are subject to these RMP
requirements.
Following the September 11 terrorist attacks, one of the
actions taken by the President was to assign EPA with chemical
and drinking water security responsibilities. EPA considered
using its authorities under Section 112(r) to require
facilities that handle extremely hazardous substances to secure
them against terrorist attack. However, EPA concluded that
using the Clean Air Act Section 112(r) and its language
regarding accidental releases to require facilities to take
additional security measures for a terrorist attack would
subject the agency to a significant legal vulnerability and
result in protracted litigation.
As a practical matter, the issue was overtaken by the
creation of the Department of Homeland Security. After the
creation of the Department, Homeland Security Presidential
Directive 7 made the Department the lead for the chemical and
hazardous material sector concerning infrastructure protection
issues.
The Department is the lead Federal agency for chemical
security, and EPA serves in a supporting role by providing
information and analytical support as needed.
That completes my statement, Madam Chairman. I would be
pleased to answer any questions that you or the Committee may
have.
Chairman Collins. Thank you very much, Mr. Dunne.
Colonel, of the 17 critical infrastructure and key resource
sectors that the Department is focusing on, where does chemical
security, the security of chemical sites, rank in the
Department's priorities?
Mr. Stephan. Well, Senator, according to HSPD-7, the
President's guidelines are very clear. They push us towards a
focus on those sectors, first and foremost, that may be through
a terrorist attack used as weapons of mass destruction or
produce mass effects against American citizens and the economy.
In terms of those guidelines, we clearly feel that the chemical
sector is right up there as one of the top priority sectors of
the 17.
Chairman Collins. I know that the Department, along with
the EPA, has visited many of these chemical facilities, done
inspections, and made recommendations for security
improvements. But, at our first hearing on this issue, the GAO
testified that, despite the potentially catastrophic damage
that could be inflicted by an attack on a chemical site, a
comprehensive security assessment of these facilities has not
been completed yet.
GAO testified that, ``While DHS and EPA have visited a
number of facilities to discuss security, the results of these
visits are at this point unclear.'' Could you share with us
some of your general findings as a result of these site visits?
Mr. Stephan. Yes, ma'am. Just to clarify some of the
numbers that are important to consider here, as you correctly
pointed out, we consider among the top tier of chemical
facilities across the United States, using EPA metrics that my
colleague, Tom, could probably go into in a little greater
detail--there are about 3,400 things that we consider high-
risk, with the respect to the ability to impact a thousand
people or greater.
Within that, we also have several upper-echelon tiers
gradated so that we have a category between 10,000 and 50,000;
50,000 to 500,000; and then, above 500,000. Of the top two
tiers, the DHS will have visited, between the Infrastructure
Protection Division and the Coast Guard, every single one of
the top tier sites.
Chairman Collins. And how many facilities are in the top
tiers?
Mr. Stephan. Two hundred and seventy-two, ma'am. And each
of those sites is developing and required to turn in to the
Department of Homeland Security IP Division buffer zone
protection plans, which are very sophisticated, law-
enforcement-produced--State and local law-enforcement-produced,
under the supervision of the homeland security advisors for the
States--detailed plans in terms of how the law enforcement--
what response law enforcement would take; capabilities that
need to be addressed, both in terms of information
connectivity, information sharing, actual response, personal
protective gear for law enforcement folks. That kind of
information is due to us in a comprehensive set of plans by
September 30 of this year.
In addition to that category of planning, the Department
has made site visits to what we consider to be about three
dozen or so of the most high-risk top-tier facilities; actual
inside-the-fence vulnerability assessments, in partnership and
at the invitation of the facility owners and operators. And the
degree of cooperation that we have seen during those particular
visits has been very good.
We have seen various instances, evidence of the $2 billion-
plus that I mentioned in my formal testimony being spent in
terms of improved physical enhancements across the sector;
improved cyber enhancements in terms of security across the
sector; additional staffing; linkages in terms of information
networks, both with us and with State and local law
enforcement, that would provide the bulk of the reinforced
response in the event of a terrorist attack.
We have seen guidelines, the Responsible Care Code, as I
mentioned during my testimony. For the members of the chemical
sector that participate in that code, there I think have been
very legitimate, very real, and very qualitative improvements
in security across the board.
But again, there is a certain percentage of the sector--I
want to estimate, based on input from my folks and as a result
of these visits, in coordination with ACC and other major
associations, roughly 20 percent or so of the capacity--that we
would be concerned about in terms of risk, that is unaccounted
for under the Responsible Care Code. And therefore, I cannot
come to the President or to you with a straight face and say,
``Ma'am, I absolutely know what is going on there. I am
comfortable with it 100 percent.''
Some of them do let us in. Some of them let us take a
lengthier look than others. But again, once you get beyond the
Responsible Care Code, there are really no good metrics, solid
metrics. About 20 percent of things that we consider very
important that I just cannot report on favorably, one way or
the other, to you.
Chairman Collins. And that is one reason that the
Administration is supporting legislation, so you will have the
authority to require a vulnerability assessment of every high-
risk chemical site? Is that correct?
Mr. Stephan. What we would like to do, in any kind of
regulatory framework that we would envision that security
focus--there are certain general principles that would have to
be brought to the table and considered; a credible, competent,
credited risk assessment approach, with a risk assessment
methodology that has been accepted in some way, shape, or form.
We have to have security planning, using a risk-based
approach, based upon those vulnerability assessments or risk
assessments. We would have to have implementing measures put in
place that are risk-based, that reflect the risks and the
vulnerabilities that come about during the assessment process.
We would have to have some ability to audit those activities,
and some general mechanism to ensure compliance with everything
that I said.
A lot of these elements have been in various legislative
proposals that you and others have seen over the past couple of
years. And that basic framework remains the framework that
needs to be answered and brought to the table, I think, in any
kind of proposed regulatory structure.
Chairman Collins. Thank you.
Mr. Dunne, I am trying to understand how we go from the
EPA's listing of some 15,000 chemical sites that either store,
use, or manufacture high-risk hazardous chemicals, to DHS's
list of 3,400 chemical sites that are high-risk.
The EPA, for example, has estimated that there are 123
facilities that, if there was a release, could affect a million
or more people. I realize we are not talking about casualties
necessarily here, but an effect on a million or more people.
DHS seems to have a far more conservative estimate, and comes
up with some 300 facilities that could affect a population of
greater than 50,000 people.
I am trying to understand what the scope is here, and how
we go from 15,000 facilities on the EPA's list to 3,400
facilities on DHS's list. I would like you to start, and then I
will ask you, Colonel, to comment.
Mr. Dunne. Well, the 15,000 facilities come about because
the legislation calls for the amount, quantity of facilities,
and the types of chemicals that are used or stored there. There
are 140 different chemicals. And then we gauge in terms of what
quantity represents a potential problem. And it turns out it is
15,000.
When we went out with the original regulations in 1999, it
was 15,000. We have had a couple thousand go off the list, and
a couple thousand come on. So the number has not really
changed.
The point of the 123 facilities, I have read the statement
and I have read news reports about that. And it is generally
overstated, in terms of what the concern is. Of those 123
facilities, there are a million people in the surrounding
areas. So if you took the facilities as a point, a central
point, and you reached out and drew a radius around it, there
would be a million people that, depending upon circumstances,
could be affected. It certainly does not mean anything in terms
of fatalities or casualties.
The fact is that I believe DHS--and I will let Bob speak
more directly to it--took a look at analyzing, and that seems
to me a very reasonable approach, in terms that we do know that
wind blows in one way; you have atmospheric circumstances that
override that. A million people are not going to be affected in
any one place.
Now, the closer you are to a facility, depending upon the
release and the type of chemical, it could create problems. So
actually, the 123 is now 110 in the most recent count that our
staff did on it. And I do not think it is a drop-off, in terms
of their logic. Because it seems to me that what they did is
focus on what are the targets that would be of most serious
concern, and honing in on those at the beginning, and then
working your way down the list.
Chairman Collins. Thank you. Colonel, I will come back to
you, since my time has expired, in the second round.
Senator Lieberman.
Senator Lieberman. Thanks, Madam Chairman. It seems to me
that the big question that has been decided but not acted upon
is whether voluntary measures by the chemical industry are
enough in the face of the threat posed here that everyone
agrees on. And the answer, I believe we will all come to, is
that voluntary measures are not enough.
I appreciate and admire the voluntary measures that have
been taken by the industry, but I think when you set the
reality against the enormous threat from either a terrorist
attack or an accident, the Federal Government has to speak for
the national security, the homeland security, and the public
safety, and ask more.
And I gather from your statement today--I conclude from
your statement today that the Administration has reached that
conclusion. I quote from, Colonel Stephan, your printed
testimony before the Committee today, ``I can report on his
behalf that Secretary Chertoff has concluded that, from the
regulatory perspective, the existing patchwork of authorities
does not permit us to regulate the industry effectively.''
To some extent, that mirrors the conclusion that
Administrator Whitman and Secretary Ridge articulated about
2\1/2\ years ago. So let me begin with a general question;
which is that the cynics or the skeptics would say, well, how
is this any different, the announcement that you are making
this morning on Secretary Chertoff's behalf, than the statement
that Administrator Whitman and Secretary Ridge made 2\1/2\
years ago, which has produced nothing--I mean, nothing
regulatory--since then?
Mr. Stephan. Sir, thank you for that assessment. I think I
want to make one clear point; that this is not a change in Bush
Administration policy, in terms of going back as far as the
President's physical critical infrastructure protection
strategy that was released in February 2003.
Basically, he has stated clearly our willingness to work
with Members of Congress on this issue because it was, even
back in those days, beginning to be apparent that voluntary
efforts alone and voluntary codes were not necessarily going to
get us to the end state across the sector that we would be
comfortable with.
And the Administration has participated in numerous efforts
and aspects of a dialogue with both houses of Congress over the
past couple of years, to try to figure out what the appropriate
solution might be.
I think there are two key and very distinct differences
that I am bringing to the table for you today. Before I get to
that, though, the new team is onboard. Secretary Chertoff
assumed his responsibilities back in February. I assumed these
current responsibilities about 7 weeks ago. Secretary Chertoff
asked me to take a look, under his second stage review, at this
chemical security issue, as well as the infrastructure
protection mission area at large; but drilling down within that
the things that we think are absolutely the most important and
significant, need to be accelerated in terms of our approach.
Having said that, basically agreeing with the conclusion
that has been on the table for the past couple of years, two
new dynamics. We now have a very clear understanding, I think,
of where the voluntary security regime that has been in vogue
for the last 3 years has taken us. The extent that we are going
to be able to get the effects we are looking for out of that
voluntary regime is now fairly clear.
That regime was just coming on the table, in terms of the
private sector roll-out of that Responsible Care Code that I
discussed, 2 years ago. So now we clearly understand, working
in partnership with industry, the extent to where that is going
to take us on the security spectrum.
Added to that is 2 years ago, to come to you all with a
reasonable approach was not as possible as it is today, in
terms of risk management. We did not have the risk assessment
tools--the science. The technology was just not there 2 years
ago.
I am happy to report that, in partnership, in full
collaboration with the chemical sector across the board, we
have been working diligently for the past year or so to develop
an acceptable, measurable, risk-based formula that brings
together consequences, vulnerability, and threat into a tool
that is Web-based, and that we are now finished and ready to
deploy uniformly across the chemical sector.
So because of the technology, building upon the baseline of
the voluntary efforts that have been put into practice up to
this point, we can come back to you, I think, with a much more
measurable, sophisticated approach, other than some kind of
blanket authority to do lots of things across the sector that
may or may not be relevant based on a risk metric.
Senator Lieberman. I hear you, and I appreciate that. And
so you have got a better risk-based analysis now, which would
be the basis for legislation. And you have lived for some
period of time under the voluntary system. You know what it can
do and what it can not do.
Mr. Stephan. Correct.
Senator Lieberman. What are the major shortcomings of the
voluntary system, would you say? What is not being done that we
would want to do legislatively and by regulatory system?
Mr. Stephan. Yes, sir, I think basically two answers to
that question. For the operational capacity that we believe to
be high-risk, around 20 percent of the overall sector that is
not participating in any kind of measurable voluntary code,
that would allow us to get to that part of the problem and
tighten down the loop in terms of that.
Senator Lieberman. Let me make sure I understand that. You
are saying, based on the risk analysis you are able to do now,
that 20 percent of those facilities that you would consider to
be high-risk have not assumed on a voluntary basis their
responsibility?
Mr. Stephan. We believe that about 20 percent of the
operational capacity, in terms of output of the chemical
sector, is not governed by any kind of voluntary practice or
voluntary security code.
Senator Lieberman. Is that 20 percent of those you consider
high-risk, or 20 percent of the overall community that is
chemical?
Mr. Stephan. That is 20 percent of the overall capacity
that we would consider to be high-risk.
Senator Lieberman. Got it. I am sorry, go ahead.
Mr. Stephan. Yes, sir. So that would attempt to close the
gaps on that end of the spectrum.
The other piece that we really want to get to is the pieces
of industry that have very responsibly been making some very
significant investments and enhancements over the past couple
of years. We want a way to make sure that we can measure those,
using risk-based metrics and criteria, to ensure that those
kinds of measures that have been put in place, based upon the
unique requirements of every individual facility that we
consider to be at high risk, are appropriate or having a
measurable effect that we can then take to the President,
report progress, take to you and report progress; and to be
able to sustain all of that momentum, very importantly, over
time, as we move further and further beyond September 11.
Senator Lieberman. I hear you. Let me ask this--there was
general feeling on Capitol Hill that EPA under Administrator
Whitman had put together a legislative proposal to go beyond
voluntary initiatives and have some mandated security
requirements on part of the chemical industry, but it never
made it to the Hill.
My question to you, and to you Colonel Stephan, as we begin
anew, is whether what you are saying is you are prepared to
support legislation, or work with us, that a Committee like
ours would come up with? Or is the Administration intending to
make a specific legislative proposal in this area?
Mr. Dunne. Well, let me start, and then Bob can answer. In
terms of any legislation that was developed at EPA or other
places in the Administration, there were discussions, but there
was nothing actually developed as such. And it was somewhat
abandoned, as we had given consideration to see if we could use
Section 112(r) and whether or not that was a good idea. And
besides the lawyers bantering back and forth for a period of
time, both within EPA and also other agency departments, it was
decided not to go the legislative route.
And at the same time, when we looked at Section 112(r) we
thought, from both a legal and a policy consideration, we would
have been bogged down in the courts in regulations and, to this
day, we probably would not have anything out. So there was
never a serious legislative proposal that was forthcoming that
would have come to OMB and be transmitted to the Hill.
Senator Lieberman. So Colonel, let me ask you the question.
Is the Administration going to make a specific legislative
proposal to the Committee? Or are you wanting to just work with
Senator Collins and me and the other Members as we develop
legislation?
Mr. Stephan. What we would like to do, as the point I made
earlier, is that we basically own the metrics, the tool that is
going to allow us to take what, I think, is a reasonable,
rational, measured, and effective approach to this. So we own
that methodology. What we have to do is take that methodology
in accelerated fashion and build a proposed regulatory
framework around that methodology through the policy
coordination processes of the Homeland Security Council.
Having established and put some more granularity, some more
bones on the skeleton of my testimony I delivered today, we
would like to then work with you, based upon that knowledge
base we have, the technology that has been pushing us over the
last 2 years--work collaboratively with our partners in
Congress to put the right solution on the table.
Senator Lieberman. So if I hear you correctly, the
Administration is not intending to send us a proposal. But you
are saying today you want to work with us on developing a
proposal?
Mr. Stephan. Yes, sir, but a proposal based upon the
regulatory principles and framework that our technology
permits.
Senator Lieberman. Understood. My time is up. But I do want
to say finally that there has been some attempt to deal with
this problem of chemical plant security in the Environment
Committee. Unfortunately, it has been gridlocked. There, the
focus was naturally on the environmental consequences of
chemical security. Here, we are focused on homeland security.
But there is an overlap, naturally.
And I do think that--with all respect, because I am on that
Committee, too--I think Senator Collins and I begin with a
strong non-partisan interest, from a homeland security point of
view, in getting something done.
So I welcome what you have said today. And again, I look
forward to working with you, with a real sense of urgency, to
get something done to protect the American people as soon as
possible. Thank you.
Chairman Collins. Thank you. Senator Chafee.
OPENING STATEMENT OF SENATOR CHAFEE
Senator Chafee. Well, thank you, Madam Chairman. And as
Senator Lieberman said, we worked on the Environment and Public
Works Committee--Senator Lautenberg, Senator Carper, and
Senator Corzine--all working on trying to get some compromises
on the environmental issues. And it was difficult. I think we
got hung up on inherent safer technologies.
But now as we go forward I am questioning, as Senator
Lieberman did, on the voluntary aspects, as it exists now. And
if I understand correctly, 20 percent are not participating,
high-risk. And is there a cost to those companies that are
participating, the 80 percent that are participating, that give
an unfair advantage to those that are not, Colonel?
Mr. Stephan. Sir, I am not quite sure I understand the
question.
Senator Chafee. If I heard your answer correctly, 20
percent under the voluntary scenario are not participating in
undergoing--introducing safer measures. Do I hear that right?
Mr. Stephan. That is correct.
Senator Chafee. And so there must be a cost advantage to
them. And that is my question. Those companies, the 80 percent
that are participating, are incurring costs that the other
companies are not incurring; and thus there is an unfair
advantage. Does that mean we should enact legislation,
considering that there is unfair advantage, those companies
that are not incurring these costs?
Mr. Stephan. OK, sir, thank you. Again, I am not an
industry expert on this topic. And I would defer any real
granular answer back to you to one of the industry
associations, itself.
But to my understanding, most of the capacity that we are
worried about that would be high-risk that does not fall within
the voluntary regime constitute or are represented by mid-sized
to smaller companies that still have very considerable amounts
of chemicals or types of chemicals onboard their sites that
would cause us to place them in the high-risk category.
Therefore, the profit margins there are something that are a
very serious concern to that aspect of the industry.
Having said that, I think that we can, with the risk
assessment methodologies and tools that we have come up with
now, work out some solutions that are facilities-based, as
opposed to sector-based, that would bring down the same thing
across the board at every single facility.
I think we are better now. We are able to make better and
more informed judgments. And we could adjust the security
framework based upon risk and based upon a menu of options that
would meet a certain criteria that these companies would be
allowed to pick from; hopefully, some solutions are more cost
effective than others.
Senator Chafee. Well, once again, we worked hard on the EPW
Committee, and look forward to working with you here to get
some fair legislation. Thank you.
Chairman Collins. Thank you. Senator Carper.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Thanks, Madam Chairman. It is sort of
ironic--I will follow up on what Senator Chafee was saying--
that four of the five Members that are here today are folks who
also serve on Environment and Public Works. And we have worked
in these vineyards a little bit earlier. And I think one of the
reasons why most of the folks that are here today are from EPW
is because of our familiarity with these issues and our
interest in these issues.
I am from Delaware; Senator Lautenberg over here, is from
New Jersey. Chemical facilities and the products that they
produce are important to my State and, obviously, to his. I
understand our new Secretary, Secretary Chertoff, is actually
from New Jersey. And I just was kind of wondering out loud--and
you do not have to answer this question--but maybe one of the
reasons why there is some renewed interest or some stronger
interest in this issue, in trying to work with us to find a
path forward, might be because--what's the old saying--all
politics is local, and he comes from a State where these issues
are important. And they have even more chemical plants in New
Jersey than we do in Delaware.
And we know that in our State an incident at a chemical
plant can be devastating. We know that we are vulnerable to
some extent in our State and other States, as well--probably,
all States, if you have got 15,000 chemical plants out there;
probably covers just about everybody. And it is important for
us, I think, to not wait for the terrorists to show us that we
need to do more.
The first question I want to ask just to the two of you,
how long have you all been working together on these issues? Is
this a new partnership? Is this something that you all have
been working on for a couple of years? Is this the first time
you have met?
Mr. Dunne. Well, we have been working together on the
National Response Plan and National Incident Management System
for going on 3 years. And in terms of this subject matter, Bob
is relatively new to it, but our office has been involved in it
for 3 years, since it was discussed at EPA back at that time.
Mr. Stephan. That's right. We have been working together
with the EPA since the Department's existence. And with the
issuance of HSPD-7, they are the sector lead for the water
sector and all things security-wise associated with the water
sector. We have a good partnership; a partnership, a framework,
that was nurtured in fact during our joint work on the National
Incident Management System and the National Response Plan. So I
think it has been a great and effective partnership. And we
play off each other's authorities and strengths in order to
tackle problems jointly.
In terms of the comments that you made earlier, I just want
to emphasize that the President has focused us, through HSPD-7,
on the sectors that are of highest risk to the Nation in terms
of public health and safety, economic consequences, and the
like. And because of the chemical sector's potential to be used
as a weapon of mass destruction or weapon of mass effects under
certain scenarios, that is clearly specified or called out in
the President's guidance to us.
And in terms of Secretary Chertoff's State of residence, he
represents very well the great State of New Jersey, but the man
is risk-based in everything I have seen him do since he has
taken office. And I think that is the right approach for this
time. And I am just happy that the technology that we now have
at our fingertips is able to basically facilitate or enable the
furtherance of that approach.
Senator Carper. The title of today's hearing is ``Is the
Federal Government Doing Enough To Secure Chemical Facilities
and Is More Authority Needed?'' And let me just ask each of
you, just without a lot of jargon, just as plainspoken as you
can be, just answer that question for me. I will say it again:
Is the Federal Government Doing Enough To Secure Chemical
Facilities and Is More Authority Needed? Just very plainspoken.
Mr. Stephan. Yes, sir. I'll say absolutely, no one is ever
doing enough when it comes to critical infrastructures. That is
as plainspoken as I can get. But I will say we have made
important advancements. And the newspaper accounts that I read
and the pronouncements from academics and others that say we
have done nothing is absolutely the farthest possible thing
from the truth that I can envision, based upon going over this
in considerable depth with my team since I assumed this
position.
We are working with the industry. We are doing risk
assessments. We partner developed the methodology that is going
to guide us both to the future; set up information-sharing
mechanisms that work----
Senator Carper. This is important to us. It is important to
our States and to our country. So what I hope flows out of here
is the opportunity for us to work with Senator Collins and
Senator Lieberman. And we are pretty good in this Committee
working across the aisle, and have got great leadership.
Mr. Stephan. Yes, sir.
Senator Carper. And we just want to be able to work with
you. My view--and this is just the way I look at it--you all
have a lot to say grace over, since the Department was created.
And you must feel like a lot of days you have been drinking out
of a fire hydrant in the last several years; probably still
feel that way some days.
So there is a lot for you to focus on. You now have a
chance to focus on this. And we just want to work with you to
get the job done and to make our communities and our chemical
facilities safer.
Mr. Stephan. OK.
Senator Carper. I will go back and restate the title of the
hearing: Is the Federal Government Doing Enough To Secure
Chemical Facilities and Is More Authority Needed? Let's focus
on the second half of that, ``And Is More Authority Needed?''
Mr. Stephan. Yes, sir. Doing a lot; need to do more. And
more authority is clearly needed.
Senator Carper. And give us some idea what context, what
format authority might take.
Mr. Stephan. What we would like to do is work in
partnership, again, with you all, to figure out what the right
mix is for this sector, based on some key principles; that we
use a risk-based approach to setting up this regulatory
framework that takes individual facilities into consideration,
so that we do not attempt to put a cookie cutter in place and
expect that is going to do the job for us in any sense.
We are better than we were 2 years ago. We have the
technology to help us inform that structure. We want to make
sure what we put in place is equitable, fair, takes into
account responsible investments that have been made. But at the
end of the day, it has to be effective and it has to be
measurable.
But it also cannot be the same. Because one important
aspect that we all are concerned about, if we put a detailed
reg out that says, ``Every chemical facility will approach it
in this manner, using the following steps,'' I do not know a
better cookbook to give to al Qaeda than that outlines exactly
the level of security by facility across the country. We have
to be very careful we do not do that; and allow a menu of
options to be selected flexibly, as long as they are
measurable, effective, and get the job done.
Senator Carper. Mr. Dunne, do you want to jump in here?
Mr. Dunne. Well, I would agree with Bob that authority is
needed. But I do think the knowledge base in the last 2\1/2\
years has grown appreciably, much more than when we were
thinking about the program before DHS became a reality. And I
think they have developed tools that certainly were not at our
disposal back when we were looking at the project at EPA. So I
would support what he said in terms of authority.
And coming from a regulatory agency, one of our problems
with regulatory programs is trying to fit everything under one
big regulation. And it is a problem. And as you know, Senator,
our RMP plans are available to the public under community right
to know, but there is certain information----
Senator Carper. I'm sorry, say it again. What plans are
available?
Mr. Dunne. The management plans on this Clean Air Act,
under Section 112(r). But there are also consequences, which
only can be seen in reading rooms. And there are 50 reading
rooms. I think we have got to be careful about how much we
provide outside of the realm of the facility and the law
enforcement people and the Federal Government officials. I
think there is a real danger of having plans floating around,
where any terrorist, or almost any amateur--it doesn't have to
be a professional terrorist--can get their hands on
information. So I think it has to be a thoughtful approach.
And I would agree that coming up here at a public hearing,
if we did have the answer, what should go in the legislation,
ought to be really thought out in terms of what are we doing to
protect the American public and what are we doing to make sure
the security of the country is being held that we are not
aiding and abetting enemies.
Senator Carper. All right, good. My time has expired. Madam
Chairman, thanks very much.
Chairman Collins. Thank you. Senator Lautenberg.
OPENIN STATEMENT OF SENATOR LAUTENBERG
Senator Lautenberg. Thank you, Madam Chairman, for
convening this hearing as you have. It has been too long since
we have had the horrible experience that has shaken our resolve
and our comfort in that we are doing whatever we should to
protect our people from assault. And Madam Chairman, I ask
unanimous consent that my opening statement be included in the
record.
Chairman Collins. Without objection.
[The prepared statement of Senator Lautenberg follows:]
PREPARED STATEMENT OF SENATOR LAUTENBERG
Madam Chairman, thank you for convening this hearing on this
critical topic.
My concern about the security of chemical plants dates back to the
late 1990's. It's now 2005 and time to stop talking and start acting to
confront the terrible risks that have not diminished since September
11.
New Jersey has some 1,600 chemical facilities within its borders--
not one of which is now legally required to take any of the risk-
reduction steps identified by the experts in our last hearing.
Today, I want to hear what the Department of Homeland Security has
accomplished in the last 30 months to protect our children and our
families.
The GAO tells us that between 10 and 100 million Americans live in
a vulnerable zone of potential sickness and death.
The Congressional Research Service has calculated that more than
8,000 schools, or hospitals, or both, are near one of the nation's
chemical facilities.
In the wake of September 11, we can not any longer afford to keep
talking about these risks--it is time for action.
The 9/11 Commission cautioned that we must not focus so much on the
last attack that we miss the next attack to strike our country.
I'm afraid we have failed to absorb that lesson as well as we
should.
And chemical plant security is one of the most glaring examples of
that failure.
There are about 15,000 chemical facilities in the country. More
than half of them are located near our families, where our children and
grandchildren live and play. More than one thousand human beings could
be killed.
For example, according to EPA the largest ``zone of vulnerability''
to wide-spread death and injury is in South Kearney, New Jersey where
twelve million people live.
Mr. Chairman, the attacks of September 11 were devastating. My
State lost 700 of our friends, neighbors and loved ones that day. We
all hope that we never see the like of it again.
But the fact is, a terrorist attack on a chemical facility could be
even worse.
And by ignoring the threat, we might be inviting such an attack,
because terrorism experts say our enemies like to focus on poorly
secured ``soft'' targets.
I would urge my colleagues on the Committee, who I know are very
committed to this issue, to move forward from this hearing toward a
legislative remedy.
I thank all the witnesses who are with us today, and I look forward
to hearing their views on this crucial issue.
Senator Lautenberg. I thank you for that.
Mr. Stephan--and I thank you both for your testimony--in
light of the announcement this morning that we have seen in the
paper and the news that the Bush Administration is now
endorsing mandatory requirements for increased security at
chemical plants, have you looked at the Corzine bill, my
colleague's bill, in terms of what he would like to see done
with the Chemical Hazards Board, the management of these
facilities, to better conform to our security needs? Have you
looked at that?
Mr. Stephan. Sir, in developing this framework--and again,
I want to emphasize that this is not a new approach. The policy
has always been that we are willing to partner with Congress to
figure out the right legislative solution to fix some gaps
across this sector. I, personally, have not gotten in depth
into any of the previous amendments or potential pieces of
legislation that have come forward, being new to this. But I
can assure you that as we take a look at working together to
develop what is the right regulatory framework for this sector,
that we need to consider all things that have previously been
on the table, and measure them against the baseline criteria--
--
Senator Lautenberg. Yes, well, not meaning to cut you
short, but it is an important proposal, as are some others that
are there. And I would hope that DHS would take a prompt and
thorough look at these things, to give us their view on what we
ought to be doing.
Mr. Dunne, there is a significant difference between the
figures that the EPA lists as facilities that need attention
and DHS. EPA reports that there are 110 facilities where an
explosion could harm a million people. And I am not sure I
caught the nuance that you were trying to bring here.
The focus is only perhaps on those places where a million
people could be injured as a result of an accident or a
terrorist attack, obviously? DHS reports that there are 300
facilities--far larger number--where an explosion could harm
about 50,000 people.
Now, where do you draw the line on these data? Are we
concerned about quantity of those at risk? Because I mean, if
500 people were to die from a chemical attack or an accident,
we would be up in arms about it. We would be turning loose all
of our facilities to do something with that. What do you see is
the explanation for the difference?
Mr. Dunne. Well, I am not too sure we really differ. The
123, or now 110--may be somewhat out of context. It is a
hypothetical, analytical modeling tool that was used to develop
that. It isn't saying, in effect, that if you happen to be one
of a million people around a facility that you are going to be
affected. It is potentially that. And it shouldn't be taken out
of that context.
I think what DHS has done, as they have gotten
sophisticated and learned more and more about the tools is try
to isolate those facilities that are considered the most
vulnerable, based on what is there in terms of the quantity and
the type of chemical, and also in terms of the surrounding area
in terms of the population. I think there are some
similarities, and there obviously is some overlap.
Senator Lautenberg. But Mr. Dunne, we are dealing here with
huge numbers of people. And whether the effect is kind of
peripheral or whether it is lethal, I mean, we have an
obligation to do what we can.
I consider--and I have said this publicly many times--that
the front in this war that we are in in Iraq extends all the
way across America. I believe that is where the front is. And
we do not spend anywhere near the amount of money protecting
our citizens on American soil that we do trying to help Iraq
correct its problems and to protect our service people over
there.
So I am not sure where the defining line is that says,
``Well, this deserves attention.'' I think they all deserve
attention. I am author of the Right-To-Know law. The Right-To-
Know law carries virtually no penalties; but it has had
enormous conformity by private industry. And we have reduced
toxic emissions by 40 percent across this country as a result
of that.
But this goes way beyond that kind of thing. And I think it
is agreed, is it not--and I ask both you and Mr. Stephan--that
sanctions are in order, in order to get people to conform to
the need to alert the public to what it is that they are
carrying, what the possibility is if there is an accident or an
attack.
Aren't we at a different point in time, in terms of trying
to split hairs about whether or not 50,000 people is a
reasonable size market to protect? Or might it be 500 people?
The million-person number is so devastating it is almost
unimaginable, but New Jersey has a facility identified as a
place where 12 million people could lose their lives. But to
any one of those families, or to someone who lost someone in
Oklahoma, the devastation is beyond comprehension. So where do
we go with these numbers that you have put out here?
Mr. Dunne. I am not too sure what you mean, where we are
going. We have 15,000 facilities and----
Senator Lautenberg. Well, I will tell you where we are
going. I will tell you directly where we go. There is a huge
difference in the numbers between the two parties. I would like
you to explain, tell me why their's is wrong. Their's says we
have to talk about 300 facilities; and as I hear you, well, it
is not 123, it is 110. Just explain your numbers a little more.
Mr. Dunne. Well, I do not think that we have a different
approach. I am not too sure our numbers are different. A 123 to
110 is just a fact, in terms of what we receive in reports.
Senator Lautenberg. They are saying 300.
Mr. Dunne. Well, ours was not based on anything more than
the population around facilities or covered under the RMP. And
I think what they are talking about is completely different in
terms of how you size a program up in terms of where you go
first in terms of vulnerability that creates potentially the
biggest problem. I do not think there is any difference,
Senator.
Senator Lautenberg. Help me, Colonel Stephan. Do you see
any difference between your 300 identified facilities where an
explosion could harm about 50,000 people, and EPA's, where they
say there are 110 facilities where an explosion could harm a
million people? Are we saying that 50 is a good place to start,
or do we only look at places where a million people could be
harmed?
Mr. Stephan. No, sir. Well, every human life is important,
but numbers mean different things to different people. What the
EPA numbers mean to them is, based upon this point on the map
that represents the geographic center of this production site,
for example, based upon the most toxic chemical onboard that
site at a threshold quantity, there is a ring drawn around that
site ``X''-number of miles out from the center.
What that 12 million figure represents, not 12 million
deaths; 12 million people that could somehow be affected,
depending on wind direction, wind speed, atmospheric factors
that have to be taken into account from a safety or planning
perspective. The State-level councils, the local-level
councils, the emergency responder awareness, the safety issues,
the gearage, all of that factors into that. And that is what
they have to be concerned about.
What I have to be concerned about is taking those baseline
numbers that we get from the EPA--and we agree on the baseline
numbers--and I have got to drill down further, because 12
million people are not going to die if that one chemical plant
is affected. We have to use a more sophisticated approach,
based on plume modeling, wind direction, wind speed,
atmospheric conditions, so on and so forth, to drill down on
that aggregate number of 12 million.
And when you do that, you get to a significantly less
percentage of the population that would result in actual
fatalities or be affected in some way, demonstrating visible
signs of being affected by the chemical agent.
So we worry about that, in terms of our risk-based metrics,
on where to drill down, how to come up with the numbers that we
have. They have to be more over-arching in nature, because
everybody inside that circle--the law enforcement guys, the
firemen, the emergency management folks--have to go through
training awareness and be equipped so that they can respond in
case the wind just happens to unluckily blow in their direction
on that day.
Senator Lautenberg. Madam Chairman, I hope the record will
be kept open for questions, because we obviously have disparity
here that leaves me, at least, kind of scratching my head and
saying, ``I don't get it.'' Thank you.
Chairman Collins. Thank you, Senator. Actually, with
Senator Akaka's indulgence, I was going to ask Colonel Stephan
to conclude the answer to my question, which speaks to this
very issue. But if the Senator is on a tight time frame, then I
will go directly to you.
Senator Akaka. I would appreciate that.
Chairman Collins. Go right ahead, Senator. Then we will
come back to my question.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. Thank you very much, Madam Chairman. I thank
you so much for holding this hearing. You all know that this
follows the recent chemical security hearing we have had. At
that hearing, we learned that the United States has a great
deal of work ahead to strengthen and ensure the security of the
chemical sector in the post-September 11 environment.
And all the witnesses that testified, testified that the
voluntary efforts to secure the chemical industry are
insufficient, and so we are having this hearing. And they
advocated at that time for more Federal regulation of the
chemical industry.
I would like to welcome our witnesses. I had another
commitment, Madam Chairman, this morning, and I regret that I
was not able to hear the witnesses' testimony. And I ask that
my full statement be placed in the record.
Chairman Collins. Without objection.
[The prepared statement of Senator Akaka follows:]
PREPARED STATEMENT OF SENATOR AKAKA
Madam Chairman, thank you for holding this hearing. I would like to
add my welcome to our distinguished witnesses from the Department of
Homeland Security (DHS) and the Environmental Protection Agency (EPA).
At our recent chemical security hearing, we learned that the United
States has a great deal of work ahead to strengthen and ensure the
security of the chemical sector in the post-September 11 environment.
All the witnesses at the last hearing testified that the current,
voluntary efforts to secure the chemical industry are insufficient.
They advocated for more Federal regulation of the chemical industry.
Given the potential economic consequences and lives that could be lost
as a result of an attack on our chemical facilities, I believe that we
need to consider giving DHS greater authority to regulate the chemical
industry. However, we must move forward carefully and ensure that the
Department is given the necessary tools to undertake this new
challenge.
I am concerned that the proposals from the last hearing lacked
adequate analysis of the human, financial, and organizational resources
required to regulate an industry. Dr. Richard Falkenrath, The Brookings
Institution, proposed that DHS be responsible for promulgating
regulations, certifying companies, verifying the certification,
enforcing compliance, and offering an appeals process. If this were to
occur, how would the Department be reorganized and how many additional
personnel would be required?
It was suggested by Dr. Stephen Flynn, Council on Foreign
Relations, that the Department use contractors to execute many of these
new responsibilities. As a longstanding supporter of the Federal civil
service, this suggestion troubles me. His proposal would contribute to
a growing trend at DHS: More and more critical positions being
contracted out, while the government is losing the opportunity to
develop institutional knowledge and a cadre of skilled and dedicated
employees. For the same reason that passenger and baggage screening was
federalized after September 11, I question whether it is advisable to
have contractors enforcing Federal regulations in the chemical sector.
Furthermore, the EPA has a special expertise in the chemical sector
from which DHS should draw upon. Some fear greater EPA involvement in
chemical security regulation could lead to more environmental and
safety scrutiny of the chemical industry. But I think it is wrong to
preclude the involvement of EPA.
For these reasons, I urge my colleagues on this Committee, many of
whom have spent the past few years committed to building and improving
DHS, to examine thoroughly how regulation will be implemented and what
would be required of DHS.
Madam Chairman, I welcome this opportunity to explore these issues
in greater detail. I look forward to the testimony of our witnesses.
Senator Akaka. Under Secretary Stephan, I would like to
follow up on an issue raised by Senator Collins in her opening
statement. At the April 27 hearing, two of the witnesses
proposed granting DHS extensive chemical security regulatory
authority that would include promulgating regulations,
certifying facilities, verifying the certification, and
enforcing compliance.
Under Secretary Stephan, I understand that DHS has not
specifically asked for such authority. However, if Congress
mandates that DHS regulate chemical security in the manner I
just described, what financial and human resources will the
Department need? And in answering this, I ask you to be as
specific as possible.
Mr. Stephan. Yes, sir. Thank you for that question. I
believe that I do not have good numbers associated with a
sweeping, over-arching, very tightly restrictive, all-
encompassing regulatory framework. I do not have precise
numbers for you, because that has not been our approach up to
this point. I just know those numbers would be very
significant.
That is one of the reasons we are coming to Congress, to
work in partnership, to look at assembling a regulatory
framework that is risk-based, so that we do not have to apply
the exact same standards across the board pertinent to every
facility, with no other consideration.
What we have to do is implement a regime, I think, that is
risk-based, is measured, gets the effectiveness and the
efficiencies that we are looking for in a measurable,
reportable manner; that treats individual facilities based on
risk differently, based upon a common approach; but to allow a
menu of options based on standards that we would promulgate and
allow the facility owners and operators different ways to get
at that problem.
In this kind of regime, I think we could perform the
regulatory function without a great influx of new people, new
government employees, if we adopt this measured approach. We
are adopting the measured approach not because the numbers are
bigger or smaller in terms of government employees, but we
think it is the right approach. The right approach,
coincidentally, I think will drive us to a smaller number of
Federal employees as a requirement.
Senator Akaka. Mr. Secretary, to answer my question
specifically, I would ask you to provide us with those numbers
that you do not have now, for the record.
Mr. Stephan. Yes, sir. We will go back and provide you an
answer.
Senator Akaka. Secretary, if DHS is given regulatory
authority over chemical security, should the regulating office
be part of the Office of Infrastructure Protection, or
separate? And if separate, do you think its director should be
Senate confirmed?
Mr. Stephan. Well, that is an interesting set of questions,
there. So let me answer that in this way. I think that the
responsibility for the critical infrastructure protection rests
within the information analysis and infrastructure protection
component of the Department. I believe that that responsibility
should squarely rest within that component.
Due to the wisdom of the people that came together to
create the Homeland Security Act, my position is not Senate
confirmable. And I would not like to have anyone working for me
that has a more stringent requirement that do not have to meet.
So that would be my answer back on that point.
Senator Akaka. Secretary, I am concerned about a trend at
DHS of relying on private contractors to fill critical
functions within the Department. For example, I understand that
the new domestic Nuclear Detection Office will be run almost
entirely by contractors. My question to you is, would you
expect chemical security regulation to be executed by career
employees, or contractors? And what role would you see
contractors playing?
Mr. Stephan. Sir, in terms of the manpower and the subject
matter expertise necessary to execute that mission, absolutely
no exceptions, the program management responsibilities should
rest with a government employee, under all circumstances. That
is the way the Federal Government operates. That is the way we
assure accountability and measurable progress across what we
do.
Not to say that there need to be integrated into this mix
appropriately the subject matter expertise that we would need
to in order to be able to have on our staff the ability to have
vulnerability folks, consequence folks, threat-focused
individuals, that may or may not exist within the Federal
family or the government family at this point.
Any use of contractors that we would employ would involve
tight supervisory controls levied upon them by Federal
Government employees.
Senator Akaka. One reason I ask that is that it is critical
that we are able to keep developments and new ideas within the
Federal level. And if we had contractors do that, it doesn't
really--it is not administered by the Federal Government.
Deputy Administrator Dunne, the EPA has special expertise
in the chemical industry, if DHS assumes the responsibility for
chemical security regulation, what role do you think EPA should
play?
Mr. Dunne. Well, I think we would continue in a support
role. And I appreciate the fact that I think you recognize that
you can only have one department or agency in charge of this
effort. I think splitting authorities would be the wrong thing
to do.
And we would provide whatever assistance that is necessary,
similarly to the way we do in responding to emergencies when
there is a presidential declaration. We respond on a regular
basis with whom we have a long working relationship, with FEMA.
And we would continue to support Bob and his people in terms of
any efforts in terms of our expertise, which is really in the
inside-the-gate chemical side of the business; not outside-the-
gate. We are not security experts.
Senator Akaka. Does DHS plan to involve EPA, do you think,
in regulation of the chemical industry?
Mr. Stephan. The ownership, I believe, of the regulatory
authorities needs to be squarely within one department. That
would be the Department of Homeland Security. That is not to
say that we would not need a partnership with the EPA. Because
as much as people would like to, you can't completely drive a
wedge between safety and security concerns. They have to be
woven together.
And I think we have a great partnership with the EPA. We
would like to rely upon the solid baseline and safety that they
have set up through their regulatory structure over the years,
and be a partner with them to solve this problem. But clearly,
the authority for security for the chemical sector needs to
reside with the Department of Homeland Security.
Senator Akaka. Thank you very much for your responses.
Madam Chairman, I thank you for being so generous and
letting me go forward. And I will submit my other questions for
the record.
Chairman Collins. Thank you very much, Senator.
Colonel, I want to get back to the numbers issue. I am very
aware that the EPA uses a different methodology than DHS. But
as Senator Lautenberg's questions, and mine, have shown, there
is confusion over how we get from the 15,000 high-risk
facilities identified by the EPA to the 3,400 facilities
identified by DHS.
And I think because many of the legislative proposals that
we are going to consider are likely to have a tiered approach
to regulation, it is important to understand how we define the
highest-risk facilities. So, if you could, explain to the
Committee how DHS took the 15,000 RMP facilities list, with
which it is my understanding you started, and narrowed it down
to the 3,400 facilities. I am not critical of the narrowing
down. I just need to understand it.
Mr. Stephan. And let me provide to you as much clarity as a
political science major can provide in the math issue area,
here.
Working from that initial list of 15,000 that has been the
baseline that both the EPA and the Department of Homeland
Security have used, did an initial chop on that list. From that
initial chop, approximately 2,000 entries were struck because
they were redundant. For example, one particular facility on
the list actually appeared twice; once for its fluorine content
on-site, and once for its sulphur dioxide content. So we had
several facilities that were listed several times, and we
boiled that down simply by eliminating the redundant entries.
Then, another 3,000, generally, were struck from the list
because they were no longer RMP-applicable, under the EPA
meaning of that term. Specifically, they had gone out of
business; they were a tenant plant on a larger site whose host
organism or entity had been reported in as part of the
reporting requirements; they were part of a joint venture and
both partners reported them accidentally; or they had reduced
chemical holdings on-site below the threshold required by the
EPA.
So as we are now winnowing down, based upon redundancies
and based on facilities that no longer met the EPA requirement,
we come out through another winnowing window.
There were another 8,000 on the list of these sites that we
believe are under somebody else's existing regulatory framework
with the security component. For example, 4,000 water
facilities that are under, in the President's structural
organization of the CIP mission area, the EPA's responsibility,
using the Bioterrorism Act, the Safe Drinking Water Act; allows
them authorities to demand vulnerability assessments, takes
some protective measures, so on and so forth.
When we boiled all of those out, that got us down to about
the 3,400 list of things that we consider to be high risk, that
fell within no one else's regulatory purview, so that we could
drill down and focus on those as kind of a nexus of our initial
concern.
As we work with you to build this regulatory framework, the
very first thing we are going to have to do is come to an
adequate agreed-upon definition of what the chemical sector
actually is; because without that, we will be going all over
the place. Because I think--there are actually, if you put the
whole world of anything that has a bottle of chemicals on it
somewhere in the United States of America, I think there are
about 66,000 of those things out there.
So we have to be very careful that we drill down; figure
out what needs to be inside this regime, what is adequately
being taken care of under another regulatory framework, as long
as that framework is risk-based. So we are going to have to
work up-front to build in the definitional pieces of this.
Chairman Collins. Thank you. That explanation was very
clear and very helpful. There is another numbers issue on which
I want to make sure we have clarity. In your testimony, you
referred to the 20 percent gap. These are chemical facilities
that are not adhering to voluntary industry codes, and we do
not know much about them as far as their security. But it is my
understanding that you are talking about 20 percent of the
high-risk pool. Is that correct?
Mr. Stephan. That is correct.
Chairman Collins. And this is an important point, because
it is my understanding that out of the 15,000 high-risk
facilities that the EPA has identified, only about 1,000
facilities adhere to the voluntary codes. Is that accurate?
Mr. Stephan. I would have to defer to the EPA on that
question.
Chairman Collins. Mr. Dunne.
Mr. Dunne. I think it is a little bit more than 1,000; but
correct, about 7 or 8 percent, I think. But there are other
associations that have similar types of codes, so I would think
that maybe it is a couple of thousand out of the 15,000 that
are following some kind of security measure right now.
Chairman Collins. Thank you. That is helpful. Mr. Dunne, at
the Committee's last hearing, Carolyn Merritt, who chairs the
U.S. Chemical Safety and Hazard Investigation Board, testified
that, ``Many incidents that the Chemical Safety Board has
investigated reveal serious gaps in how well companies,
emergency responders, government authorities, and the public
are prepared for a major chemical release. These gaps in
preparedness leave Americans vulnerable.'' She went on to say
that, ``In her judgment, many communities are not even ready
for a small chemical release.'' Do you agree with that
assessment?
Mr. Dunne. Well, I do not know how many cases the lady has
really looked at. They only investigate a handful of cases
after there is an accident. I am not too sure how you draw that
conclusion.
Madam Chairman, there are established by law, under the
Emergency Planning and Community Right To Know Act, over 3,900
local emergency planning committees. And they are set up by
States. They are not mandated by the Federal Government. States
have got them. And they range from one LEPC a State in a couple
of cases, to hundreds in other States. So you have got a real
split in terms of how this approach is taken by the States.
We did a survey back in 1999 to see how many of them were
really active, out of the 3,900. And the conclusion, I believe,
was about 59 to 60 percent are active. And ``active'' means a
variety of things. We can take you down to areas in the country
where there are processing and refineries right there, and you
will see LEPCs that are getting money from the industry people
to staff and have appropriate administrative support; to people
in other areas of the country where an LEPC may be meeting once
a year and having discussions.
I think, in terms of the emergency response community, they
are getting better and better. There is an enormous effort and
a large amount of money that has gone into training and
exercises and acquiring protection.
Are we there? Nowhere near it, I suspect. And I think by
and large the larger companies are fairly well prepared, from
what we can understand, at least in the safety, and not talking
to the security. And I am sure there are small- or medium-sized
firms that are the major concern.
So I can't really respond directly to her statement, but I
can say that I am sure we are not well prepared across the
board all the time.
Chairman Collins. Let's talk about some specifics. I
understand that the Administration wants to work with this
Committee, and I very much appreciate that commitment. But let
me start by asking you about a set of principles that the
Administration developed in February 2003 to apply to chemical
security legislation.
One principle that the Administration endorsed at that time
was to require an assessment of each facility's vulnerability
to various modes of attack, and strategies to counter the
vulnerabilities identified. I asked you a question related to
this at the beginning of the hearing. Does that sound to you
like a reasonable requirement to include in legislation?
Mr. Stephan. Madam Chairman--and again, I will have to
apologize, because I do not have any details that have been
vetted through my policy framework and approved by Secretary
Chertoff to bring to you today; but we are working on those in
accelerated manner.
As I discussed, however, earlier, there is just a certain
set of things that would be an appropriate part, or an
appropriate portion of any framework dealing with security from
a regulatory perspective. People have got to be doing some kind
of sanctioned approach to risk assessments. Some people have
got to be taking action based upon those risk assessments,
implementing measures that are measurable. And there has to be
a system in place to develop an auditing or a tracking of all
this, and then a compliance piece to all of it.
So I think if I were speaking about the chemical sector or
any other sector, to get at a regulatory structure it has got
to have those key components embedded somewhere, somehow. The
devil is in the details, as you pointed out earlier.
Chairman Collins. But surely, you can't get to the audit
and compliance areas unless you have some sort of baseline
requirement for a vulnerability assessment and for the
development of strategies to counter the vulnerabilities. I
mean, that seems to me to be so basic to the legislation that I
think it is safe for you to say ``Yes.'' [Laughter.]
Mr. Stephan. Safety is always a concern. But again, I have
no specific pieces of the framework. I can't imagine a
framework that did not include assessing----
Chairman Collins. I can't, either.
Mr. Dunne [continuing]. Or not necessarily focused on
vulnerability, but risk; because we have to take into account
consequences, threat, and vulnerabilities, as part of an
overall risk-based approach.
Chairman Collins. Well, let me turn to another possible
framework, because we are searching for the right way to do
this. Mr. Dunne, for example, you brought up the interesting
point that we do not want to provide a road map to the
terrorists. I think that is an excellent point that we are
going to have to keep in mind.
Secretary Chertoff has indicated that the framework that
was established under the Maritime Transportation Security Act
has proven highly successful. The MTSA requires the Coast Guard
to promulgate performance-based regulations and to form area
maritime security committees, to designate a Federal maritime
security coordinator, to complete facility and area maritime
security plans, compile a list of critical infrastructure in
our ports.
Is that a possible framework for us to look to when it
comes to regulating chemical security, in your view?
Mr. Stephan. Yes. And that is absolutely one of the
frameworks that we are going to consider, because we do think
that particular way of doing business has achieved a certain
level of success. We just have to, again, map it against
whatever these criteria end up being that we can mutually agree
upon, and see if there are any deltas between the NTSA approach
and whatever the overall more encompassing approach would be.
The second bit of interesting news there, though, is the
Coast Guard appears to have achieved an incredible amount of
efficiency and acceptance as a regulator. And we would love to
model the Coast Guard's approach to dealing with the private
sector yet getting the job done efficiently and effectively. So
we want to actually sit down with them, and we have in a
preliminary sort of way, to figure out how they have been able
to crack that code.
Chairman Collins. I think the Coast Guard is an ideal model
for us to take a look at, and I certainly agree with you on the
acceptance and the respect that the public has in dealing with
the Coast Guard on a lot of port security and maritime
interdiction issues as well.
I want to turn to the buffer zone program. It is ironic to
me that you testified today, as the Secretary frequently has,
that we should have a completely risk-based approach to
funding, but that is not really what the buffer zone protection
program funding is based on. Isn't it a flat $50,000, with only
a 15 percent variance up or down, regardless of what the site
is?
Mr. Stephan. Yes, ma'am, that is correct. And right now,
the buffer zone protection plan scheme of maneuver does have a
risk component to it; in that it is targeted against what we
consider to be the top 272 highest-risk facilities in the
chemical sector. So that portion of it--in terms of drilling
down to who would be eligible, who we are going to work with,
who we think needs this level of focus--that is completely
risk-based.
This first year of its implementation, we basically did the
best we could, in terms of trying to come up with some
equitable way to push some quality improvements and capability
out the door. I think, based upon not having the risk
management tool that we now are ready to deploy across the
sector, that is the best foot forward we could have put a year
ago when we came up--or over a year ago when we came up with
the idea for this program.
I think, beginning with the next budget cycle, you will be
able to see from us a much more measured risk-based approach,
simply because the technology has now caught up with us. And we
want to fully employ that in terms of determining criticality
against which we will base our decisions about where to push
the buffer zone protection plan grant monies.
Chairman Collins. Mr. Dunne, you gave us one caution as we
draft this legislation, about spelling out too many
requirements that might result in plans that were available to
the public and could be used to cause us harm, to be turned
against us. Do you have any other cautions for this Committee,
as we draft this legislation?
Mr. Dunne. Well, when you referred to the principle, that
was interesting. I would agree that, where necessary,
assessments have to be done and a plan has got to be done, and
it has got to be able to be checked. We had discussions back 3
years ago that, if this either was done through our own
regulation or we were going to go by law, that we were of the
belief that the plans and the assessments and the vulnerability
analysis should not leave that facility; should stay with the
unit there.
Now, the Water Bioterrorism Act does have the water plans
coming to EPA. It is locked; it is secured. And that has got
very limited access. Law enforcement and some of the DHS people
have some access to it, and it is a very limited number of
people.
I think on the security side, in terms of what is being
done inside that facility, it can be very dangerous unless we
protect those sources. So I would think that doing the analysis
and doing the plans on the recovery is really necessary, but
limiting the access to that information is really necessary.
Chairman Collins. Is that in conflict with the community
right-to-know law?
Mr. Dunne. No, actually, the risk management plans under
Section 112(r) are available to the public. In fact, we had a
long, spirited debate within the Agency whether or not the
executive summaries ought to be released. After September 11,
we decided to withhold those.
We recently have just let those go. But in terms of
consequences, they are only available in reading rooms in 50
areas, either EPA's offices or the FBI offices. And they are
not visited that often. Mainly, I was told today, they are
visited more by the press. And they are paper copies only, and
you can only go in and look at one facility at a time, and
there is a limited number of times you can.
And so we have tried to restrict that information. And
actually, there was a law passed in 1999 that led us to it.
This is not something that EPA just dreamt up. There was a
security law, and the acronym is ``SFRA.'' And we do take a
look at whether or not--if this got into the wrong hands, could
they create harm. And that is why we make sure that we adhere
to that principle that was put in the act in 1999.
Chairman Collins. It seems to me that there is a potential
tension here because, on the one hand, you certainly do not
want to provide terrorists with information on how to attack a
facility and what its vulnerabilities are; on the other hand,
you do want local law enforcement and emergency response
officials to understand the vulnerabilities in order to improve
their preparedness. How do we strike the right balance on that?
Mr. Dunne. Well, no, I do not think there is a conflict in
that. Actually, under the safety plans, that information is
available. Law enforcement, fire departments, and other people
have to prepare outside the gate for emergency response. And
that is why the Congress had the States come up with local
emergency planning committees. So I do not think there is a
conflict.
There are certain conditions within a facility that, if it
became known to a person who wanted to create harm, could
create havoc for us. So I make the distinction in terms of
keeping those plans inside the gate. But I think the law
enforcement community, fire people, and the emergency response
people should have access, in terms of what the vulnerabilities
are and what type of activities they are going to have to
undertake to plan and prepare for a response.
Chairman Collins. Colonel, any advice to us, any cautions,
as we proceed to draft legislation?
Mr. Stephan. Ma'am, again, just to restate a few key
points, we are really looking to do this in a fair and
balanced, yet effective manner. Because this sector is vitally
important to the Nation in terms of what it represents to our
economy, what it represents to the daily lives of Americans
across the country.
By that same token, it is a very important security risk,
not only because of the economic consequences involved, but the
public health and safety dimension of all this. That drives us
to it.
We think now we are grown up enough, we are mature enough
in both our knowledge base, the stuff that the private sector
has done, and the technologies that we have to use to guide a
risk assessment process. Let's work together to make sure we
put the right structure in place, so that we are not
crippling--or helping al Qaeda and the like by crippling a
vital part of our economy while trying to secure it.
I think there is a way we can take a measured, balanced
approach so that we can close the remaining gaps for that 20
percent or so capacity we are worried about; make sure we can
sustain the good efforts that have been done by industry
voluntarily over time; and to make sure that those voluntary
efforts are achieving the effects we want to see.
And I think there is a way to do that, and we have some
really smart, gifted, talented people that will help us on our
end put those principles in motion. And we want to do it on an
accelerated track through our policy process, and sit down and
work with you to see what this means as quickly as we can.
Chairman Collins. Thank you. I want to thank you both for
your testimony today. We are on an accelerated time-frame for
completing this legislation. I intend to hold additional
hearings, to hear from industry groups, homeland security
experts, environmental groups, and others that have an interest
in this area. My hope then is to use the August recess to
complete the drafting of a bill, and then introduce it--I hope,
with bipartisan support--in September.
I tell you that time-frame because we will need the
Administration's assistance and guidance and input very
quickly. I am convinced that legislation is needed. I am very
pleased to hear the Administration endorse a legislative goal.
But we need your help on specifics. We have not talked much
about what the legislation should contain today.
So I look forward to continuing our dialogue and to working
with you on an expedited basis. I want to thank you for your
help today.
This hearing record will remain open for 15 days. I also
want to thank my staff for all of their work on this important
issue. The Committee hearing is now adjourned.
[Whereupon at 12:06 p.m., the Committee was adjourned.]
A P P E N D I X
----------
PREPARED STATEMENT OF SENATOR VOINOVICH
Chairman Collins, thank you for holding this hearing today. The
chemical industry is a critical component of our Nation's
infrastructure. I complement your attention to the security of this
industry and I look forward to working with the Members of the
Committee, the Department of Homeland Security, and the Stakeholder
community to ensure that our Nation's chemical sector is secure from
the threat of terrorist attacks.
As I have previously noted, the chemical industry contributes to
our high quality of life, whether it be enhanced crop production,
improved water chlorination, effective household cleaners or advanced
life-saving medications. However, these benefits do not come without
risk.
During the Committee's first chemical security hearing on April 27,
we heard alarming statistics that warned of a devastating loss of life
in the event of a terrorist attack against a major chemical facility.
Depending on the severity of the attack, the statistics ranged from
10,000 to an unfathomable 2.4 million casualties.
Today, we will hear from both the Environment Protection Agency
(EPA) and the Department of Homeland Security (DHS). I understand that,
since assuming jurisdiction of chemical industry security, DHS has made
significant modifications to both the method of risk assessment and the
strategy for prevention and protection from terrorist attacks. I look
forward to obtaining the Department's risk assessment and learning the
actions it is taking to mitigate our vulnerabilities.
However, I believe that the Federal Government can not protect
against every threat. Therefore, I want to reiterate my support for a
balanced approach between self-regulation by industry and more
proactive Federal action. Industry leaders, like the American Chemistry
Council, should be commended for building a strong foundation for
chemical safety. It is my hope that the significant safety measures
developed by industry will be further built upon and incorporated into
our overall chemical security efforts.
As we further explore this issue, we must be governed by four
guiding principles:
<bullet> First, efforts to enhance the security of our facilities
should be sharply focused on prevention, protection, and consequence
management of potential terrorist attacks;
<bullet> Second, Federal action to address chemical
vulnerabilities must not be burdened with extraneous issues that are
strictly environmental in nature;
<bullet> Third, critical information must be protected from
unnecessary public disclosure, providing it only to responsible
government authorities that need to have access to such information;
and
<bullet> Fourth, Federal action should adhere to a comprehensive
cost-benefit analysis, not placing industry at a competitive
disadvantage.
In Ohio, the chemical industry directly employs 48,900 people: The
impact of these jobs reverberates throughout Ohio, as one job in the
chemical industry creates another 6.2 jobs for the State's economy.
The chemical industry is experiencing economic hardship as a result
of rising natural gas costs. As we move forward in efforts to secure
your chemical industry infrastructure from a terrorist attack, we must
be certain that our efforts do not unwittingly create onerous Federal
regulations that jeopardize the industry's viability.
As I have said before, it is not economically feasible to protect
everything; doing so would bankrupt the Nation. Accordingly, all
security enhancements including the security of our Nation's chemical
infrastructure should be based, first and foremost, on risk and
vulnerability.
Chairman Collins, thank you for holding this hearing. I look
forward to working with you on this issue.
__________
PREPARED STATEMENT OF SENATOR COLEMAN
I want to thank Chairman Collins and Senator Lieberman for holding
this important hearing to examine what the Federal Government is doing
to secure chemical facilities to determine if more authority is needed.
Securing the chemical sector is a complex undertaking but vital to
protecting our homeland. There are literally thousands of chemical
facilities that work with large quantities of hazardous materials
throughout the country and they are located in or near major cities as
well as rural areas. Minnesota has 20 chemical facilities that are
considered to be ``high-risk'' on the National Asset Database and
chemical security is of concern to the residents of Minnesota.
As a result of the 1984 accident at the Union Carbide pesticide
plant in Bhophal, India, Congress passed the Emergency Planning and
Community Right-to-Know Act, or EPCRA, to reduce the risk to the
general public associated with the accidental release of hazardous
chemicals from chemical facilities by requiring State and local
governments as well as facility operators to prepare plans for any
accidental releases. In addition to the EPCRA, the Clean Air Act
required chemical owners and operators to prepare Risk Management
Plans, or RMPs to summarize the potential threat and worst-case
scenario.
The focus of these laws and requirements were enacted during a
different period when the Federal Government was rightly concerned with
the safety of these facilities. However, in the post-September 11
world, we have had to create new prevention and response plans that
focus on intentional threats to our critical assets. Although there is
not a uniform standard for securing chemical facilities, it is
important to note that the Department of Homeland Security has taken
steps to identify and prioritize the highest-risk chemical facilities
and provide guidance to the owners and operators on increasing security
in and around their facilities. The chemical industry has also made
investments in traditional physical security measures and many
facilities have voluntarily adopted the Responsible Care security
recommendations of the American Chemistry Council.
While these efforts have increased security, it is clear much work
still remains in terms of securing the chemical sector. Instead of
security being a cost of doing business--it needs to become a way of
doing business. And as we move forward, it is crucial that Congress,
the Administration and the industry work together to ensure that
sufficient prevention and response plans are in place at our Nation's
chemical facilities.
I look forward to hearing the testimony of our panelists about the
state of security in the chemical sector and what additional authority
may be necessary to maintain or increase that security.
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