National Science and Mathematics Access to Retain Talent Act

Mr. President, I rise today, along with my good friend and colleague, Senator Joe Lieberman, to introduce the Chemical Facility Antiterrorism Act of 2005.

This legislation addresses one of the Nation's greatest vulnerabilities, the threat of a terrorist attack against a chemical facility.

My legislation would provide broad new authority to the Department of Homeland Security to ensure that the Nation's chemical facilities are better protected from terrorism.

This legislation would direct the Department of Homeland Security to establish criteria for evaluating the vulnerability of our Nation's chemical facilities to terrorist attack and to establish risk-based tiers for those facilities deemed in need of protection.

These regulations will require designated facilities to conduct vulnerability assessments and to create appropriate site security and emergency response plans. In addition, the Department would establish an office within the Infrastructure Protection Directorate responsible for implementing and enforcing the statute.

The bill also contains robust measures to ensure both compliance by chemical plants and effective implementation by the Department.

This legislation is strong medicine, and I do not prescribe it lightly. But the potential devastation that an attack on a chemical facility could cause, the sheer number of these facilities and the current widespread lack of security, as well as the clearly stated intent of terrorists to cause maximum harm to the American people and to our economy make these measures necessary.

The Homeland Security Committee has invested substantial effort in examining this threat and in deciding how best to respond to it. Our investigation included four hearings on this topic earlier this year.

From the horrifying chemical attacks of the First World War, and the tragic accident at Bhopal, India, in 1984, to the numerous and more recent accidental releases of hazardous chemicals in this country, we were reminded by expert after expert of the potential for useful productive chemicals to kill, if released accidentally or intentionally.

We also know that al-Qaida has a keen interest in the American chemical industry. Indeed, at our first hearing, Steven Flynn of the Council on Foreign Relations testified that the chemical industry is ``at the top of the list'' of al-Qaida and other terrorist groups. The chemical industry, said Commander Flynn, absolutely screams at you as essentially a weapon of mass destruction.

We should not wait until there is an attack on a chemical facility and then act after the fact. So often our security measures and our emergency legislation is passed after something horrible has already occurred and after lives have already been lost. Let us get ahead of this curve. Let us act now to address what witness after witness identified as being one of the greatest threats to our homeland.

The stakes are high and the vulnerability is widespread. The Environmental Protection Agency has cataloged some 15,000 facilities in the United States that manufacture, use, or store large quantities of hazardous chemicals for productive, legitimate purposes, but in amounts that could cause extensive harm if turned against us as weapons. And we have seen al-Qaida do this before. We have seen al-Qaida use commercial aircraft as weapons of mass destruction.

The Department of Homeland Security has identified 3,400 facilities that could affect more than 1,000 people if attacked.

According to the Government Accountability Office, tens of millions of Americans live close enough to chemical facilities to be at risk in the event of a terrorist attack. Yet despite this profound threat, only a fraction of our Nation's chemical facilities are regulated for security by the Federal Government under the Maritime Transportation Security Act of 2002, or subscribe to volunteer security standards.

While I applaud those companies that have taken voluntary measures, an unacceptable number have not. Moreover, given the severity of the threat, I believe it is a mistake in this case to rely on voluntary measures alone. The overwhelming majority of experts at our hearing testified that additional statutory authority is needed to effectively address the threat of terrorism against a chemical facility.

Leading security experts, chemical safety professionals, industry representatives, labor representatives, environmental groups, and the administration, all have testified that Federal legislation in this area is necessary, although obviously they differ considerably on the details.

The legislation I am introducing today provides that critical authority. While establishing the need for Federal legislation, our hearings stressed the importance of getting this right, of striking the right balance.

Chemical shipments in the United States approach $.5 trillion annually. The chemical industry represents our largest export sector, totaling $91.4 billion in 2003.

More than 900,000 people work directly in the American chemical industry with millions more in supplier and indirect jobs.

Chemicals are critical to our food and our water supply, our pharmaceuticals, our electronics, our clothes; in fact, just about everything.

A consistent theme that sounded throughout our hearing was that we cannot afford to drive the chemical sector out of this country in the name of security. And that is why we spent so much time in carefully crafting a bill that strikes the right balance.

Our hearings established a considerable consensus around two important concepts: First, that the legislation should be risk based. Our chemical industry is extremely diverse and any legislation must take into account that diversity. A small plant using chemicals in rural Maine faces very different risks than a major chemical manufacturing plant in the New York City area, and its security response should be structured appropriately. Security measures should be tailored to each particular facility, taking into account its vulnerabilities, its location, impact on the population, and other risk factors. High-risk facilities should undertake the strongest security precautions while obviously fewer precautions are necessary at very low-risk facilities.

Second, the legislation should be performance based. What do I mean by that? By that I mean our focus should be on having the Department establish the standards, the results, rather than prescribing exactly how a corporation should act to meet those standards, those results. Facilities should defend against particular threats. For example, the Secretary might specify that facilities should be able to protect against a hazardous release resulting from a truck bomb. Or the Secretary may mandate that every plant have a secure perimeter. Now, facilities could choose to meet those standards by building fences, erecting barriers, moving the most hazardous chemicals to a more secure area, or even switching to a less hazardous chemical altogether. By specifying the regulations should be performance based, facilities will have the incentives to identify the most effective and cost-efficient means of increasing protection.

The legislation I am introducing today meets those fundamental criteria. It is risk based and it is performance based. This legislation is modeled, in part, on the Maritime Transportation Security Act, consequently referred to as MTSA.

During the course of our four hearings, we heard substantial testimony from security industry experts, the administration and others, that the results-based cooperative approach of MTSA is a major success story. In fact, we heard so many positive things about the law that we brought in the Coast Guard's director of port security, Admiral Bone, to testify about their experience with the current law.

The first step in improving the security of our Nation's chemical facilities is to determine which facilities should be covered by Federal regulations and to what degree. This legislation requires the Department of Homeland Security to issue within 1 year of enactment regulations establishing criteria for evaluating the types of facilities that should be covered, as well as regulations establishing risk-based tiers for the designated facilities.

Following the issuance of these regulations, the Department would designate covered facilities and place them into tiers. The designations would be based on risk factors including potential likelihood of death or illness, proximity to population centers, and the potential impact on national security, the economy, and critical infrastructure. The tier would have increasingly strict security requirements as the risk and consequences of a terrorist attack at a covered facility increase.

The Department would then set security performance standards for each tier. Every facility would be required to conduct a vulnerability assessment, establish and implement a site security plan, and create an emergency response plan or update an existing plan to include provisions for an intentional attack. Vulnerability assessments would address the threats and consequences of a terrorist attack, including

vulnerabilities from the use of hazardous chemicals.

The site security plan would address the identified vulnerabilities and meet the performance standards set by the Department. The site security plan would also identify how the facility is coordinating with Federal, State, and local officials for response to a terrorist attack. The facilities would be required to drill their security plans and emergency response plans. Covered facilities would have 6 months following promulgation of regulations to certify compliance and submit their assessments and plans to the Department for approval.

If a facility fails to comply, the legislation I am introducing provides the strongest remedy to the Department. The bill gives the Secretary of Homeland Security the authority to shut down chemical facilities that are at high risk and which the Secretary believes have not adequately addressed the risk of a terrorist attack. For the highest risk facilities, the Secretary could order an immediate closure. For the other lower risk facilities, the Department could order closure but only after a process of written notification, consultation, and further time for compliance.

Now, I recognize this shutdown authority concentrates considerable power into the Secretary's hands, but the dire consequences of a terrorist attack justify giving the Secretary the authority to shut down a chemical facility that has failed to comply with the law. With hundreds of thousands of lives at stake, the Secretary must have the authority to ensure our chemical facilities have adopted security measures sufficient to reduce the risk of a terrorist attack. If a facility cannot, will not, or has not done so, it simply cannot be allowed to keep operating.

It was only after very careful consideration that I decided to include this power in my bill. I note that the Maritime Transportation Security Act provides similar authority to the Coast Guard. Admiral Bone testified since 2004 the Coast Guard has used this authority to shut down 32 facilities--three of which were chemical facilities. He testified it was imperative the Department of Homeland Security be given that closure authority.

Before closing, I will comment on a couple of very important and controversial issues. One is the issue of inherently safer technology which is often referred to as IST. My bill allows chemical facilities to choose whatever security measures best meet the performance standards required by the Department. IST is one of the recognized means of meeting a performance standard. In addition, my legislation requires the vulnerability assessment include an analysis of security measures, including vulnerabilities arising from the use, storage, and handling of dangerous chemicals. However, I make clear our legislation does not mandate IST. Not only would doing so be at odds with the performance-based approach we have endorsed in this bill, I also do not believe it is appropriate for a bill on security to dictate specific industrial processes. Such uses are outside the scope of the legislation, beyond the jurisdiction of this committee, and are not the only way to address security issues.

I fully expect some facilities will adopt inherently safer technologies. I certainly encourage them to do so if that is the best means for them. However, that should be their decision.

This legislation does not tell facilities how high to build their fences or what chemicals to use or how they may use them. It is the result that matters. I believe this bill will result in significantly enhanced security for the chemical sector. This is a Homeland Security bill. It is not an environmental regulation.

In summary, this legislation requires chemical facilities to conduct vulnerability assessments, create and implement security plans, establish emergency response plans, and to submit these plans to the Department of Homeland Security for approval or disapproval. It gives the Department broad authority to ensure that chemical facilities are addressing the risks of terrorist attacks and giving the Department the authority it needs. The legislation is risk based and performance based, and I am confident it will provide long overdue standards that will ensure stronger and more consistent security at our chemical facilities.

Before closing, I once again thank my lead cosponsor and the ranking member of the Homeland Security Committee, Senator Lieberman. We have worked very hard with the members of our committee, including the Presiding Officer, all year long to explore this through a number of hearings, and we have engaged in many months of negotiations.

I also thank our cosponsors, Senator Coleman, Senator Carper, and Senator Levin, for their hard work on this bill.

I look forward to adding additional cosponsors and working with the committee to move this vital legislation forward.

Thank you, Mr. President.

Mr. President, I am pleased to join my colleague, Senator Collins, in introducing the ``Chemical Facility Anti-Terrorism Act of 2005. I am also delighted that Senators Coleman, Levin, and Carper will be joining us on this bill.

This bill is the product of extensive work in the Homeland Security and Governmental Affairs Committee to explore the risks of a possible terrorist attack on our chemical facilities, as well as the best means to guard against those risks.

Since 9/11 opened our eyes to the threats we face on U.S. soil from Islamist terrorist groups, we have moved to improve security for many of the critical elements of our society and economy. But somehow we have not yet protected one of our greatest vulnerabilities the chemical sector.

Chemicals are vital to many of the processes that feed us, heal us, and power our economy. Yet the very pervasiveness of the chemical sector makes it vulnerable to terrorism. Thousands of facilities throughout the country use or store lethal materials, often near large population centers.

We know that terrorists are interested in targeting these facilities. The Congressional Research Service reports that during the 1990s, both international and domestic terrorists attempted to use explosives to release chemicals from manufacturing and storage facilities close to population centers. The Justice Department in 2002 described the threat posed by terrorists to chemical facilities as ``both real and credible,'' for the foreseeable future.

Former White House Homeland Security Advisor Richard Falkenrath this spring told the Homeland Security and Governmental Affairs Committee that although chemical facilities are a most serious homeland security vulnerability, the Federal Government has done almost nothing to secure them. Homeland Security expert Steve Flynn likened the Nation's 15,000 chemical facilities to ``15,000 weapons of mass destruction littered around the United States.''

Fortunately, the responsible players in the chemical industry have not waited for Federal legislation, and some of the leading trade groups have begun their own security programs or participated in some voluntary efforts led by DHS. Some chemical facilities are also subject to security regulation under the Maritime Transportation Security Act or the Bioterrorism Act of 2002. Yet these programs do not reach the full range of security matters addressed at the committee's hearings and in this legislation. More significant, far too many facilities that use extremely hazardous chemicals remain entirely outside the patchwork of laws, regulations, and self-protection now in place.

For several years, legislation to require security enhancements at these chemical sites has foundered in Congress, bereft of true administration support or Congressional consensus. But I am hopeful that today marks a turning point that will culminate in successful passage of a robust chemical security bill.

First, the Homeland Security and Governmental Affairs Committee has worked on a bipartisan basis to build a foundation for this effort: through four hearings that explored the issues and possible solutions regarding chemical site security and through collaboration on this legislation that has already won strong bipartisan support on our Committee.

Second, DHS has now clearly stated--in testimony to our committee-- that the current voluntary efforts are

not sufficient and that the Department needs new legislative authority to regulate chemical site security.

Third, responsible segments of the chemical industry--such as the American Chemistry Council--have recognized the need for a comprehensive national program to ensure adequate security across the entire chemical sector and called for Federal legislation. I welcome this engagement by industry and believe we can work together with them, as well as the administration, and all who are concerned about security, to forge an effective national program.

This legislation is a forceful but pragmatic response to the challenge of chemical site security. It directs its greatest force and focus to those facilities that pose the highest risk in terms of potential loss of human life or other catastrophic results.

It authorizes the Department of Homeland Security to initiate a thoroughgoing security program for thousands of critical chemical sites around the country.

The Secretary would identify which facilities pose a meaningful risk due to terrorism concerns, and then require these facilities to conduct a vulnerability assessment and prepare a security plan and emergency response plan to address the results of this vulnerability analysis.

Facilities within the program would submit these assessments and plans to DHS for review and approval. DHS would then work with the facilities to ensure the plans, and implementation, are adequate. Under a tiered system of requirements, those facilities that pose the greatest risk would face the most stringent security requirements as well as a speedier and more rigorous DHS review. The bill includes civil and criminal penalties for noncompliance and, ultimately, facilities may be ordered to shut down if they do not comply with DHS orders.

This legislation recognizes that facilities will need flexibility to achieve security in the most efficient and effective manner. The bill also recognizes the work of the responsible chemical companies within the chemical sector and does not force those facilities to reinvent the wheel. Instead, the bill ensures that so long as an alternative security program's assessments and plans meet the bill's core requirements for vulnerability assessments and site security plans, facilities operating under those alternative security programs can submit these assessments and plans under the DHS program. However, where the assessments and plans do not meet the bill's core requirements, the Secretary will require appropriate modifications. Finally, the Secretary will judge all assessments and plans against the regulations promulgated under this bill.

This legislation also recognizes that sometimes the best security will come not from adding guards and gates but from reexamining the way chemical operations are carried out in order to reduce the amount of hazardous substances on site, improve the way they are stored or processed or find safer substitutes for the chemicals themselves. These changes serve to make a facility less inviting as a target for terrorists, as well as limiting the loss of life or other damage if an attack does take place. They also have the added benefit of limiting the harm from an accidental release. This bill clearly requires facilities to look at the risks and consequences related to the dangerous chemicals on site and address those specific vulnerabilities in their security plan. And it includes these process changes among the menu of security measures that chemical facilities should examine when designing their security plans.

We know that many facilities, and many security experts, already look to these less dangerous technologies as a potent and cost-effective way to improve security against a possible terror attack. But we also know that, for some facilities, there can be reluctance or structural impediments to looking at these technological solutions. That is why I feel this bill should go further and include more explicit requirements for chemical facilities to consider less dangerous technologies when they make the security enhancements required under this bill. In particular, the riskier facilities--some of which could endanger tens or hundreds of thousands of lives if attacked--should have to demonstrate that they have looked closely at options that would reduce the catastrophic consequences of a possible terrorist attack. We had a powerful example of such an adjustment close by: after 9/11 focused our attention on potential targets in our midst, Washington DC's water treatment facility ended the use of its potentially deadly liquid chlorine. This is not a question of forcing industry to conduct its operations off a Government-issued playbook. Companies would analyze for themselves whether there are less dangerous ways to conduct their business and would not be forced to implement any changes that were not feasible. But given the extraordinary risks involved, it makes little sense not to require companies to at least take a long hard look at some of the commonsense solutions that have been advocated or already adopted by others within the industry. Therefore, as this bill advances, I will seek to strengthen the requirements for facilities to carefully consider these safer technologies as a means to greater security.

The bill creates structure within DHS to oversee this regulatory program and a regional network to help implement its provisions, particularly to help ensure adequate emergency response capabilities in the event of an attack on a chemical facility. There are also provisions to safeguard sensitive information that DHS receives from the chemical facilities, while at the same time requiring DHS to share and disclose information necessary for public safety and public accountability. The bill does not affect chemical facilities' obligations to make information available to the public under right-to- know laws or other regulatory programs, and it establishes a secure channel by which members of the public can submit information about potential problems regarding the security of chemical facilities.

This bill also recognizes that Congress is not the only body that can and should help ensure the safety and security of the Nation's chemical facilities. States and localities have long regulated such facilities for various safety and environmental concerns. Since 9/11, some States have also moved to require security improvements at these facilities. These State and local protections are critical adjuncts to our effort at the Federal level, and I am pleased that this bill states clearly that it does not preempt State and local laws or regulations regarding the safety and security of chemical facilities. States and localities are free to enact more stringent chemical security legislation. Only if there is an absolute conflict, such that it is impossible for a facility to comply with both the Federal law and a State or local law or regulation on chemical security, would the Federal provision take precedence. The bill would not disrupt State and local safety and environmental law regarding chemical facilities, nor does it dislodge or alter the operation of State common law with respect to such facilities.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.