Law Enforcement Protection Act

Mr. Chairman, I yield myself such time as I may consume.

I am pleased to present H.R. 2868, a bill to authorize reasonable, risk-based security standards for chemical facilities.

Faced with the fact that DHS' chemical security program, CFATS, would expire, the President requested and received a 1-year extension to allow this bill to go through the legislative process. Under the CFATS program, DHS placed about 6,000 facilities in four risk tiers. These sites account for just 16 percent of the 36,000 facilities that initially submitted information to DHS.

My committee began working on comprehensive chemical security legislation 4 years ago in response to widespread concern that chemical plants may be ideal terrorist targets. Previous attempts at getting comprehensive chemical security legislation to the floor in the last two Congresses were unsuccessful.

However, this Congress, thanks to the collaborative approach taken by Chairman Waxman, as well as by Chairmen Oberstar and Conyers, the House now has an opportunity to consider this homeland security bill. I am proud of the robust stakeholder engagement that went into this bill, and to the extent with which Department and Republican input was sought and included.

H.R. 2868 closes a major security gap identified by both the Bush and Obama administrations. Specifically, titles II and III authorize EPA to establish a security program for drinking water and wastewater facilities. EPA's new program will complement CFATS.

This approach, which is fully supported by the Obama administration, taps into the existing regulatory relationship between EPA and public water facilities.

Additionally, H.R. 2868 requires all tiered facilities to assess ``methods to reduce the consequences of a terrorist attack.'' Plants that voluntarily perform these assessments, which are sometimes called IST assessments, often find that good security equals good business. In fact, this week, Clorox announced, to strengthen its operation and add another layer of security, it would voluntarily replace chlorine gas with a safer alternative at six of its bleach manufacturing facilities.

H.R. 2868 simply incorporates this best practice into how all tiered facilities integrate security into their operations. Additionally, H.R. 2868 strengthens CFATS by adding enforcement tools, protecting the rights of whistleblowers, and enhancing security training.

Some on the other side are arguing for a 3-year blanket extension of DHS's current authority. Such an approach flies in the face of testimony that we received about gaps in CFATS and would be a rejection of all the carefully tailored security enhancements in the bill.

This legislation demonstrates the progress we can make with a transparent process that is open to diverse viewpoints and addresses the concerns of everyone who wants to be in the process. This is exactly how government should work.

With that, Mr. Chairman, I urge passage of this important legislation and I reserve the balance of my time.

Mr. Chairman, I would like to enter into the Record testimony from Under Secretary Rand Beers from an October hearing that reflects that this administration supports this bill and desires for action this year.

Statement for the Record by Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of Homeland Security,

October 1, 2009.

Thank you, Chairman Markey, Ranking Member Upton, and

distinguished Members of the Committee. It is a pleasure to

appear before you today as the Committee considers H.R. 3258,

the Drinking Water System Security Act of 2009. This Act is

intended to close the security gap at drinking water

facilities that possess substances of concern.

We have made significant progress since the implementation

of the Chemical Facilities Anti-Terrorism Standards (CFATS).

We have reviewed over 36,900 facilities' Top-Screen

consequence assessment questionnaires, and in June 2008, we

notified 7,010 preliminarily-tiered facilities of the

Department's initial high-risk determinations and of the

facilities' requirement to submit Security Vulnerability

Assessments (SVAs). We received and are reviewing almost

6,300 SVAs. We have recently begun to notify facilities of

their final high-risk determinations, tiering assignments,

and the requirement to complete and submit Site Security

Plans (SSPs) or Alternative Security Programs (ASPs). CFATS

currently covers approximately 6,200 high-risk facilities

nationwide. The current state of coverage reflects changes

related to chemicals of interest that facilities have made

since receiving preliminary tiering notifications in June

2008, including security measures implemented and the

consolidation or closure of some facilities.

Chemical Security Regulations

Section 550 of the FY 2007 Department of Homeland Security

Appropriations Act directed the Department to develop and

implement a regulatory framework to address the high level of

security risk posed by certain chemical facilities.

Specifically, Section 550(a) of the Act authorized the

Department to adopt rules requiring high-risk chemical

facilities to complete SVAs, develop SSPs, and implement

protective measures necessary to meet risk-based performance

standards established by the Department. Consequently, the

Department published an Interim Final Rule, known as CFATS,

on April 9, 2007. Section 550, however, expressly exempts

from those rules certain facilities that are regulated under

other Federal statutes. For example, Section 550 exempts

facilities regulated by the United States Coast Guard

pursuant to the Maritime Transportation Security Act (MTSA).

Drinking water and wastewater treatment facilities as defined

by Section 1401 of the Safe Water Drinking Act and Section

212 of the Federal Water Pollution Control Act, respectively,

are similarly exempted. In addition, Section 550 exempts

facilities owned or operated by the Departments of Defense

and Energy, as well as certain facilities subject to

regulation by the Nuclear Regulatory Commission (NRC).

The following core principles guided the development of the

CFATS regulatory structure:

(1) Securing high-risk chemical facilities is a

comprehensive undertaking that involves a national effort,

including all levels of government and the private sector.

Integrated and effective participation by all stakeholders--

Federal, State, local, and the private sector--is essential

to securing our national critical infrastructure, including

high-risk chemical facilities. Implementing this program

means tackling a sophisticated and complex set of issues

related to identifying and mitigating vulnerabilities and

setting security goals. This requires a broad spectrum of

input, as the regulated facilities bridge multiple industries

and critical infrastructure sectors. By working closely with

experts, members of industry, academia, and Federal

Government partners, we leveraged vital knowledge and insight

to develop the regulation.

(2) Risk-based tiering will ensure that resources are

appropriately deployed. Not all facilities present the same

level of risk. The greatest level of scrutiny should be

focused on those facilities that, if attacked, present the

most risk and could endanger the greatest number of lives.

(3) Reasonable, clear, and equitable performance standards

will lead to enhanced security. The current CFATS rule

includes enforceable risk-based performance standards. High-

risk facilities have the flexibility to select among

appropriate site-specific security measures that will

effectively address risk. The Department will analyze each

tiered facility's SSP to see if it meets CFATS performance

standards. If necessary, DHS will work with the facility to

revise and resubmit an acceptable plan.

(4) Recognition of the progress many companies have already

made in improving facility security leverages those

advancements. Many responsible companies have made

significant capital investments in security since 9/11.

Building on that progress in implementing the CFATS program

will raise the overall security baseline at high-risk

chemical facilities.

Appendix A of CFATS lists 322 chemicals of interest,

including common industrial chemicals such as chlorine,

propane, and anhydrous ammonia, as well as specialty

chemicals, such as arsine and phosphorus trichloride. The

Department included chemicals based on the consequences

associated with one or more of the following three security

issues:

(1) Release--toxic, flammable, or explosive chemicals that

have the potential to create significant adverse consequences

for human life or health if intentionally released or

detonated;

(2) Theft/Diversion--chemicals that have the potential, if

stolen or diverted, to be used or converted into weapons that

could cause significant adverse consequences for human life

or health; and

(3) Sabotage/Contamination--chemicals that, if mixed with

other readily available materials, have the potential to

create significant adverse consequences for human life or

health.

The Department established a Screening Threshold Quantity

for each chemical based on its potential to create

significant adverse consequences for human life or health in

one or more of these ways.

Implementation Status

Implementation and execution of the CFATS regulation

require the Department to identify which facilities it

considers high-risk. The Department developed the Chemical

Security Assessment Tool (CSAT) to identify potentially high-

risk facilities and to provide methodologies that facilities

can use to conduct SVAs and to develop SSPs. CSAT is a suite

of online applications designed to facilitate compliance with

the program; it includes user registration, the initial

consequence-based screening tool (Top-Screen), an SVA tool,

and an SSP template. Through the Top-Screen process, the

Department initially identifies and sorts facilities based on

their associated risks.

If a facility is initially identified during the Top-Screen

process as having a level of risk subject to regulation under

CFATS, the Department assigns the facility to one of four

preliminary risk-based tiers, with Tier 1 indicating the

highest level of risk. Those facilities must then complete

SVAs and submit them to the Department. Results from the SVA

inform the Department's final determinations as to whether a

facility is high-risk and, if so, of the facility's final

tier assignment. To date, the Department has received over

6,300 SVAs. Each one is carefully reviewed for its physical,

cyber, and chemical security content.

Only facilities that receive a final high-risk

determination letter under CFATS will be required to complete

and submit an SSP or an Alternative Security Program (ASP).

DHS's final determinations as to which facilities are high-

risk are based on each facility's individual consequentiality

and vulnerability as determined by its Top-Screen and SVA.

After approval of their SVAs, the final high-risk

facilities are required to develop SSPs or ASPs that address

their identified vulnerabilities and security issues. The

higher the risk-based tier, the more robust the security

measures and the more frequent and rigorous the inspections

will be. The purpose of inspections is to validate the

adequacy of a facility's SSP and to verify that measures

identified in the SSP are being implemented.

In May, the Department issued approximately 140 final

tiering determination letters to the highest risk (Tier 1)

facilities, confirming their high-risk status and initiating

their 120-day timeframe for submitting an SSP. In June and

July, we notified approximately 826 facilities of their

status as final Tier 2 facilities and the associated due

dates for their SSPs. Most recently, on August 31, 2009, we

notified approximately 137 facilities of their status as

either a final Tier 1, 2, or 3 facility and the associated

due dates for their respective SSPs. Following preliminary

authorization of the SSPs, the Department expects to begin

performing inspections in the first quarter of FY 2010,

starting with the Tier 1-designated facilities.

Along with issuing the final tiering determination

notifications for Tier 1 facilities in May, the Department

launched two additional measures to support CFATS. The first

is the SSP tool, which was developed by DHS with input from

an industry working group. A critical element of the

Department's efforts to identify and secure the Nation's

high-risk chemical facilities, the SSP enables final high-

risk facilities to document their individual security

strategies for meeting the Risk-Based Performance Standards

(RBPS) established under CFATS.

Each final high-risk facility's security strategy will be

unique, as it depends on its risk level, security issues,

characteristics, and other factors. Therefore, the SSP tool

collects information on each of the 18 RBPS for each

facility. The RBPS cover the fundamentals of security, such

as restricting the area perimeter, securing site assets,

screening and controlling access, cybersecurity, training,

and response. The SSP tool is designed to take into account

the complicated nature of chemical facility security and

allows facilities to describe both facility-wide and asset-

specific security measures, as the Department understands

that the private sector in general, and CFATS-affected

industries in particular, are dynamic. The SSP tool also

allows facilities to involve their subject-matter experts

from across the facility, company and corporation, as

appropriate, in completing the SSP and submitting a

combination of existing and planned security measures to

satisfy the RBPS. The Department expects that most approved

SSPs will consist of a combination of existing and planned

security measures. Through a review of the SSP, in

conjunction with an on-site inspection, DHS will determine

whether a facility has met the requisite level of performance

given its risk profile and thus whether its SSP should be

approved.

Also issued with the final Tier 1 notifications and the SSP

tool was the Risk-Based Performance Standards Guidance

document. The Department developed this guidance to assist

high-risk chemical facilities subject to CFATS in determining

appropriate protective measures and practices to satisfy the

RBPS. It is designed to help facilities comply with CFATS by

providing detailed descriptions of the 18 RBPS as well as

examples of various security measures and practices that

would enable facilities to achieve the appropriate level of

performance for the RBPS at each tier level. The Guidance

also reflects public and private sector dialogue on the RBPS

and industrial security, including public comments on the

draft guidance document. High-risk facilities are free to

make use of whichever security programs or processes they

choose, provided that they achieve the requisite level of

performance under the CFATS RBPS. The Guidance will help

high-risk facilities gain a sense of what types and

combination of security measures may satisfy the RBPS.

To provide a concrete example: in the case of a Tier 1

facility with a release hazard security issue, the facility

is required to appropriately restrict the area perimeter,

which may include preventing breach by a wheeled vehicle. To

meet this standard, the facility is able to consider numerous

security measures, such as cable anchored in concrete block

along with movable bollards at all active gates or perimeter

landscaping (e.g., large boulders, steep berms, streams, or

other obstacles) that would thwart vehicle entry. As long as

the measures in the SSP are sufficient to address the

performance standards, the Department does not mandate

specific measures to approve the plan.

Outreach Efforts and Program Implementation

Since the release of CFATS in April 2007, the Department

has taken significant steps to publicize the rule and ensure

that our security partners are aware of its requirements. As

part of this dedicated outreach program, the Department has

regularly updated the Sector and Government Coordinating

Councils of industries most impacted by CFATS, including the

Chemical, Oil and Natural Gas and Food and Agriculture

Sectors. We have also made it a point to solicit feedback

from our public and private sector partners and, where

appropriate, to reflect that feedback in our implementation

activities, such as adjustments made to the SSP template.

We have presented at numerous security and chemical

industry conferences; participated in a variety of other

meetings of relevant security partners; established a Help

Desk for CFATS questions; and developed and regularly updated

a highly-regarded Chemical Security Web site. These efforts

are having a positive impact: approximately 36,900 facilities

have submitted Top-Screens to the Department via CSAT.

Additionally, the Department continues to focus on

fostering solid working relationships with State and local

officials as well as first responders in jurisdictions with

high-risk facilities. To meet the risk-based performance

standards under CFATS, facilities need to cultivate and

maintain effective working relationships--including a clear

understanding of roles and responsibilities--with local

officials who would aid in preventing, mitigating and

responding to potential attacks. To facilitate these

relationships, our inspectors have been actively working with

facilities and officials in their areas of operation, and

they have participated in almost 100 Local Emergency Planning

Committee meetings to provide a better understanding of

CFATS' requirements.

We are also working with the private sector as well as all

levels of government in

order to identify facilities that may meet the threshold for

CFATS regulation but that have not yet registered with CSAT

or filed a Top-Screen. We have recently completed pilot

efforts at the State level with New York and New Jersey to

identify such facilities in those jurisdictions. We will use

these pilots to design an approach that all States can use to

identify facilities for our follow up. Further, we are in the

process of commencing targeted outreach efforts to certain

segments of industry where we believe compliance may need

improvement.

Internally, we are continuing to build the Infrastructure

Security Compliance Division that is responsible for

implementing CFATS. We have hired, or are in the process of

on-boarding, over 125 people, and we will continue to hire

throughout this fiscal year to meet our goals. The FY 2010

budget request contains an increase to allow the hiring,

training, equipping, and housing of additional inspectors to

support the CFATS program as well as to continue deployment

and maintenance of compliance tools for covered facilities.

New Legislation

We have enjoyed a constructive dialogue with Congress,

including this Committee, as it works on new authorizing

legislation. The Department recognizes the significant work

that this Committee and others, particularly the House

Committee on Homeland Security, have devoted to drafting

legislation to reauthorize the CFATS program and to address

chemical security at the Nation's water systems. We

appreciate this effort and look forward to continuing the

constructive engagement with Congress on these important

matters. CFATS is enhancing security today by helping to

ensure high-risk chemical facilities throughout the country

have security postures commensurate with their levels of

risk.

The Department supports a permanent authorization of the

program. Given the complexity of chemical facility

regulation, the Department is committed to fully exploring

all issues before the program is made permanent. To that end,

the President's FY 2010 budget includes a request for a one-

year extension of the statutory authority for CFATS, which

will allow the time needed to craft a robust permanent

program while avoiding the sunset of the Department's

regulatory authority on October 4, 2009. Further, as this one

year extension is considered, we urge Congress to provide

adequate time and resources to implement any new requirements

under the prospective legislation and to ensure that new

requirements would not necessitate the Department to

extensively revisit aspects of the program that are either

currently in place or will be implemented in the near future.

Throughout our discussions with congressional committees, the

Department has communicated a series of issues for

consideration as part of any CFATS legislative proposal.

It is important to note that the Administration has

developed a set of guiding principles for the reauthorization

of CFATS and for addressing the security of our Nation's

waste water and drinking water treatment facilities. These

principles are:

(1) The Administration supports permanent chemical facility

security authorities and a detailed and deliberate process in

so doing, hence our preference for that process to be

completed in FY10.

(2) Nonetheless, CFATS single year reauthorization in this

session presents an opportunity to promote the consideration

and adoption of inherently safer technologies (IST) among

high-risk chemical facilities. We look forward to working

with this Committee and others on this important matter.

(3) CFATS reauthorization also presents an opportunity to

close the existing security gap for waste water and drinking

water treatment facilities by addressing the statutory

exemption of these facilities from CFATS. The Administration

supports closing this gap.

As DHS and EPA have stated before, we believe that there is

a critical gap in the U.S. chemical security regulatory

framework--namely, the exemption of drinking water and

wastewater treatment facilities. We need to work with

Congress to close this gap in order to secure substances of

concern at these facilities and to protect the communities

they serve; drinking water and wastewater treatment

facilities that meet CFATS thresholds for chemicals of

interest should be regulated. We do, however, recognize the

unique public health and environmental requirements and

responsibilities of such facilities. For example, we

understand that a ``cease operations'' order that might be

appropriate for another facility under CFATS would have

significant public health and environmental consequences when

applied to a water facility. The Administration has

established the following policy principles in regards to

regulating security at water sector facilities:

The Administration believes that EPA should be the lead

agency for chemical security for both drinking water and

wastewater systems, with DHS supporting EPA's efforts. Many

of these systems are owned or operated by a single entity and

face related issues regarding chemicals of concern.

Establishing a single lead agency for both will promote

consistent and efficient implementation of chemical facility

security requirements across the water sector.

To address chemical security in the water sector, EPA would

utilize, with modifications as necessary to address the

uniqueness of the sector, DHS' existing risk assessment tools

and performance standards for chemical facilities. To ensure

consistency of tiering determinations across high-risk

chemical facilities, EPA would apply DHS' tiering

methodology, with modifications as necessary to reflect

any differences in statutory requirements. DHS would in

turn run its Chemical Security Assessment Tool and provide

both preliminary and proposed final tiering determinations

for water sector facilities to EPA. EPA and DHS would

strive for consensus in this tiering process with EPA in

its final determination, attaching significant weight to

DHS' expertise.

EPA would be responsible for reviewing and approving

vulnerability assessments and site security plans as well as

enforcing high-risk chemical facility security requirements.

Further, EPA would be responsible for inspecting water sector

facilities and would be able to authorize states to conduct

inspections and work with water systems to implement site

security plans. It is important to note that any decisions on

IST methods for the water sector would need to engage the

states given their primary enforcement responsibility for

drinking water and wastewater regulations.

DHS would be responsible for ensuring consistency of high-

risk chemical facility security across all 18 critical

infrastructure sectors.

CFATS currently allows, but does not require, high-risk

facilities to evaluate transferring to safer and more secure

chemicals and processes. Many facilities have already made

voluntary changes to, among other things, their chemical

holdings and distribution practices (for example, completely

eliminating use of certain chemicals of interest). The

Administration supports, where possible, using safer

technology, such as less toxic chemicals, to enhance the

security of the nation's high-risk chemical facilities.

However, we must recognize that risk management requires

balancing threat, vulnerabilities, and consequences with the

cost to mitigate risk. Similarly, the potential public health

and environmental consequences of alternative chemicals must

be considered with respect to the use of safer technology. In

this context, the Administration has established the

following policy principles in regards to IST at high-risk

chemical facilities:

The Administration supports consistency of IST approaches

for facilities regardless of sector.

The Administration believes that all high-risk chemical

facilities, Tiers 1-4, should assess IST methods and report

the assessment in the facilities' site security plans.

Further, the appropriate regulatory entity should have the

authority to require facilities posing the highest degree of

risk (Tiers 1 and 2) to implement IST method(s) if such

methods enhance overall security, are feasible, and, in the

case of water sector facilities, consider public health and

environmental requirements.

For Tier 3 and 4 facilities, the appropriate regulatory

entity should review the IST assessment contained in the site

security plan. The entity should be authorized to provide

recommendations on implementing IST, but it would not require

facilities to implement the IST methods.

The Administration believes that flexibility and staggered

implementation would be required in implementing this new IST

policy. DHS, in coordination with EPA, would develop an IST

implementation plan for timing and phase-in at water

facilities designated as high-risk chemical facilities. DHS

would develop an IST implementation plan for high-risk

chemical facilities in all other applicable sectors.

Because CFATS and MTSA both address chemical facility

security, there certainly should be harmonization, where

applicable, between these programs. We of course continue to

work closely within the Department with the Coast Guard to

review the processes and procedures of both programs. We also

support further clarification in the statute concerning the

type of NRC-regulated facilities exempt from CFATS.

In the area of enforcement, we have expressed in our

testimony on H.R. 2868 the Department's support for

eliminating the requirement that an Order Assessing Civil

Penalty may only be issued following an Administrative Order

for compliance. This change would greatly streamline the

civil enforcement process, enhancing the Department's ability

to promote compliance from facilities. We also support

language that would authorize the Department to enforce

compliance by initiating a civil penalty action in district

court or commencing a civil action to obtain appropriate

relief, including temporary or permanent injunction. We note,

however, that the enforcement provisions this Committee has

proposed in H.R. 3258 would subject drinking water facilities

to a lower maximum penalty as compared to chemical facilities

regulated under H.R. 2868 if enforcement is pursued through a

civil penalty action in district court. This could result

in inconsistent enforcement between facilities.

The Department notes that the Drinking Water System

Security Act of 2009 would give the Administrator discretion

in divulging information about the reasons for placing a

facility in a given tier. This provision is preferable to the

provision in Title I of HR 2868 which mandates that the

Department disclose specific information to tiered facilities

that could include classified information.

The Department also notes that HR 3258 and HR 2868 contain

provisions that require

covered facilities and government agencies to comply with all

applicable state and Federal laws and exclude from protection

``information that is required to be made publicly available

under any law.'' While the Department supports current

requirements for facilities to report certain information to

Federal and state agencies under other statutes, DHS is

concerned that this language as written could increase the

likelihood that sensitive information could be

inappropriately disclosed to the general public. The

Department would like to work with the Committee to explore

what other Federal statutes and information might be affected

by this language in order to ensure that there are no

inconsistencies that could undermine the important goal of

protecting sensitive information from unwarranted disclosure,

while still protecting the public right-to-know about

information that may affect public health and the

environment, as embodied in these other statutes. We will

also consult with our partner agencies that administer the

affected Federal statutes.

Conclusion

The Department is collaborating extensively with the

public, including members of the chemical sector and other

interested groups, to work toward achieving our collective

goals under the CFATS regulatory framework. In many cases,

industry has voluntarily done a tremendous amount to ensure

the security and resiliency of its facilities and systems. As

we implement the chemical facility security regulations, we

will continue to work with industry, our other Federal

partners, States, and localities to get the job done.

The Administration recognizes that further technical work

to clarify policy positions regarding IST and water treatment

facility security is required. The policy positions discussed

above represent starting points in renewed dialogue in these

important areas. DHS and EPA staff are ready to engage in

technical discussions with Committee staff, affected

stakeholders, and others to work out the remaining technical

details. We must focus our efforts on implementing a risk-and

performance-based approach to regulation and, in parallel

fashion, continue to pursue the voluntary programs that have

already resulted in considerable success. We look forward to

collaborating with the Committee to ensure that the chemical

security regulatory effort achieves success in reducing risk

in the chemical sector. In addition to our Federal Government

partners, success is dependent upon continued cooperation

with our industry and State and local government partners as

we move toward a more secure future.

Thank you for holding this important hearing. I would be

happy to respond to any questions you may have.

Mr. Chairman, I now recognize a member of the committee, the gentleman from New Jersey (Mr. Pascrell), for 2 minutes.

Mr. Chairman, I yield the gentleman 1 additional minute.

Mr. Chairman, before I yield to the gentleman from Texas, I would like to say that this is a security bill. A good security bill makes all of us safe. What we're looking at now is an opportunity to go into facilities that don't, in many instances, have security assessments. If we make security assessments, then we will identify those vulnerabilities those facilities have and help them correct them. Bad people would love to get into facilities with vulnerabilities and do harm. What we're trying to do is help those facilities create the capacity to be secure. That's all we're doing.

Mr. Chairman, I yield 2 minutes to the gentleman from Texas (Mr. Al Green), who is a member of the committee.

Mr. Chairman, I yield 1 additional minute to the gentleman.

Before I recognize the gentlewoman from California, let me say that nothing in this bill prevents the Secretary from using her discretion in continuing the exemption for farmers. I will put my credentials from agriculture up against anyone's in this body. I represent a rural district. Nothing I would do in this body would harm agriculture, and I think if you check my voting record, you will absolutely see that.

Also for the record, to the gentleman from Oklahoma, let me say that, before any of these things are done, the Department has to see if it's technically feasible; they have to see if it's cost effective, and if it lowers the risk at the facility.

So all of those concerns you raise are justified, but they are addressed in the bill. So I would say that, between the time for general debate and when we start voting, if you would go back and look at that, I think some of your concerns will be resolved.

I yield 2 minutes to a member of the committee, the gentlewoman from California (Ms. Richardson).

Mr. Chairman, I yield 1 minute to a member of the committee, the gentlewoman from Houston, Texas (Ms. Jackson-Lee).

Mr. Chair, I yield myself the balance of my time.

As you've heard, Mr. Chair, this legislation before us today is critical to the security of our Nation and is deserving of the full support of this House.

With that, Mr. Chair, I yield back the balance of my time.

I thank the gentlewoman for her splendid management of the bill, for her work in the subcommittee and holding the hearings and crafting the legislation.

I want to just point out that our committee's role was to ensure that while the Department of Homeland Security will set the standards, it will be the EPA and publicly owned treatment works, locally owned, operated, and managed will carry them out. It will not be done by Homeland Security.

I heard just a fragment of my good friend and colleague from Iowa raising his concerns about the effect on agriculture. I want to emphasize, and while this is not directly our committee's jurisdiction, we made it very clear that the Department of Homeland Security has definitely, completely, exempted all end users of chemicals in agriculture. That means, farms, ranches, crops, feed and livestock facilities from the chemical security program. It does not add agricultural facilities. We were very clear about that. We wanted to be sure in our discussions with the Committee on Homeland Security that we did not have any spillover of unintended consequences.

Only the largest terminals, manufacturers, wholesale distributors of agricultural chemicals remain in the chemical security program, not farmers, not ranchers, not crop, feed, or livestock facilities. The EPA administrator has authority only to regulate security at wastewater and drinking water facilities, not on farms, not on ranches, not to any of the chemicals that they use. The legislation ensures that EPA will appropriately balance clean water, wastewater treatment with security needs of the Nation as set in standards set by the Department of Homeland Security. It does not give EPA any authority over chemical facilities now regulated under other provisions or by DHS.

Mr. Chair, I rise in strong support of H.R. 2868, the ``Chemical and Water Security Act of 2009''.

At the outset, let me also thank the gentleman from Mississippi (Mr. Thompson), Chairman of the Committee on Homeland Security, and the gentleman from California (Mr. Waxman), Chairman of the Committee on Energy and Commerce, for their efforts on this legislation and their willingness to include the text of the ``Wastewater Treatment Works Security Act of 2009'' as title III of the bill under consideration today.

In June of 2009, I joined with the Chairwoman of the Subcommittee on Water Resources and Environment, Eddie Bernice Johnson, in introducing H.R. 2883, the ``Wastewater Treatment Works Security Act of 2009,'' to address the security needs of wastewater treatment facilities under the auspices of the Clean Water Act. That legislation, as amended, is incorporated as title III of H.R. 2868.

Enactment of the ``Wastewater Treatment Works Security Act,'' in concert with the underlying language produced by the Committees on Homeland Security and Energy and Commerce, will preserve the historical relationship between wastewater utility operators and the Environmental Protection Agency (EPA) in meeting both the security measures called for in this legislation, as well as the goals and purposes of the Clean Water Act.

Mr. Chair, following the terrorist attacks of September 11, 2001, the identification and protection of critical infrastructure, including the Nation's system of wastewater infrastructure, has become a national priority. EPA has worked with state and local governments to enhance wastewater security since 2001, and the majority of wastewater treatment works have conducted vulnerability assessments and implemented emergency response planning procedures.

However, wastewater treatment works have undertaken these activities, with guidance from EPA, on a voluntary basis, as nothing in current law requires wastewater treatment works to carry out specific security measures. H.R. 2868 closes this significant security gap and enacts mandatory security standards applicable to treatment works. EPA will establish security regulations and oversee their implementation to appropriately balance water quality and security goals.

Our Nation's wastewater treatment capacity consists of approximately 16,000 publicly owned wastewater treatment plants, 100,000 major pumping stations, 600,000 miles of sanitary sewers and another 200,000 miles of storm sewers, with a total value of more than $2 trillion. Taken together, the sanitary and storm sewers form an extensive network that runs near or beneath key buildings and roads, the heart of business and financial districts, and the downtown areas of major cities, and is contiguous to many communication and transportation networks.

Publicly owned treatment works also serve more than 200 million people, or about 70 percent of the Nation's total population, as well as approximately 27,000 commercial or industrial facilities, that rely on the treatment works to treat their wastewater. Significant damage to the Nation's wastewater facilities or collection systems could result in loss of life, catastrophic environmental damage to rivers, lakes, and wetlands, contamination of drinking water supplies, long-term public health impacts, destruction of fish and shellfish production, and disruption to commerce, the economy, and our Nation's normal way of life.

In the same light, certain wastewater treatment works throughout the United States utilize chemicals in their disinfectant processes, such as gaseous chlorine, that may pose a threat to public health or the environment if improperly released into the surrounding environment. While proper storage of and security for such chemicals on-site may reduce the potential risk of improper release, similar security-related issues in the shipment and use of potentially harmful chemicals must also be considered in relation to the overall security of the wastewater treatment works.

The ``Wastewater Treatment Security Works Act'' ensures that all large- and medium-sized wastewater treatment facilities--those that treat at least 2.5 million gallons of sewage per day--perform a nationally-consistent, threshold security assessment, and take proactive steps to reduce their overall vulnerability. For those facilities that possess sufficient quantities of potentially-dangerous chemicals, this legislation requires an assessment of whether ``inherently safer technologies'' can be implemented to reduce the overall risk posed by the facility; while enabling the facility to continue meeting its water quality obligations under the Clean Water Act.

Finally, this legislation authorizes $1 billion over 5 years in grants to publicly owned treatment works to carry out vulnerability assessments, site security and emergency response plans, and to implement measures to improve the overall security of the wastewater treatment facilities, as well as provide emergency response training to first responders and firefighters who may be called upon in the event of a terrorist act.

This legislation has been endorsed by the Nation's leading wastewater utility organizations, including the National Association of Clean Water Agencies, the California Association of Sanitation Agencies, and the American Public Works Association.

Mr. Chair, I would like to discuss certain sections of title III of the bill.

Section 301. Short title

This section designates this title as the ``Wastewater Treatment Works Security Act of 2009''.

Sec. 302. Wastewater Treatment Works Security

This section amends the Federal Water Pollution Control Act of 1972 to add a new section 222 to address the security of wastewater treatment works (hereinafter ``treatment works'') under the authority of the Administrator of EPA.

Section 222(a). Assessment of Treatment Works Vulnerability and

Implementation of Site Security and Emergency Response Plans

Section 222(a) defines the new security-related obligations for treatment works required under this subsection, as well as the terms ``vulnerability assessment'', and ``site security plan''. Under section 222(a)(1), any treatment works with a treatment capacity of at least 2.5 million gallons per day (estimated by EPA to be a treatment works that serves a population of 25,000 or greater), or in the discretion of the Administrator, presents a security risk, is required to: (1) conduct a vulnerability assessment; (2) develop and implement a site security plan; and (3) develop an emergency response plan for the treatment works.

Section 222(b). Rulemaking and Guidance Documents

Section 222(b) directs the Administrator to conduct a rulemaking, to be completed no later than December 31, 2010, to: (1) establish risk- based performance standards for the security of a treatment works covered by this section; and (2) establish requirements and deadlines for each owner and operator of a treatment works to conduct (and periodically update) a vulnerability assessment, to develop (and periodically update) and implement a site security plan, to develop (and periodically revise) an emergency response plan, and to provide annual training for employees of the treatment works.

Section 222(b)(2) directs the Administrator, in carrying out the rulemaking under section 222(b), to provide for four risk-based tiers for treatment works (with tier one representing the highest degree of security risk), and to establish ``risk-based performance standards for site security plans and emergency response plans'' required under section 222(a). Under subsection (b)(2)(B), the Administrator is directed to assign (and reassign, when appropriate) treatment works into one of the four designated risk-based tiers, based on consideration of the size of the treatment works, the proximity of the treatment works to large population centers, the adverse impacts of an intentional act on the operations of the treatment works, critical infrastructure, public health, safety or the environment, and any other factor determined appropriate by the Administrator. Section 222(b)(2)(B)(iii) provides the Administrator authority to request information from the owner or operator of a treatment works necessary to determine the appropriate risk-based tier, and section 222(b)(2)(B)(iv) directs the Administrator to provide the treatment works with the reasons for the tier assignment.

Section 222(b)(2)(C) requires the Administrator to ensure that risk- based performance standards are consistent with the level of risk associated with the risk-based assignment for the treatment works, and take into account the risk-based performance standards outlined in the Chemical Facility Anti-Terrorism Standards (CFATS) of the DHS, contained in section 27.230 of title 6, Code of Federal Regulations.

Section 222(b)(3) directs the Administrator, in carrying out the rulemaking under section 222(b), to require any treatment works that ``possesses or plans to possess'' a designated amount of a substance of concern (as determined by the Administrator under section 222(c)) to include within its site security plan an assessment of ``methods to reduce the consequences of a chemical release from an intentional act'' at the treatment works. Section 222(b)(3)(A) defines such an assessment as one that reduces or eliminates the potential consequences of a release of a substance of concern from an intentional act, including: (1) the elimination or reduction of such substances through the use of alternate substance, formulations, or processes; (2) the modification of operations at the treatment works; and (3) the reduction or elimination of onsite handling of such substances through improvement of inventory control or chemical use efficiency.

Section 222(b)(3)(B) requires each treatment works that possesses or plans to possess a designated amount of a substance of concern to consider, in carrying out such an assessment, the potential impact of any method to reduce the consequences of a chemical release from an intentional act on the responsibilities of the treatment works to meet its effluent discharge requirements under the Clean Water Act, and to include relevant information on any proposed method, such as how implementation of the method could reduce the risks to human health or the environment, whether the method is feasible (as such term is defined by the Administrator), and the potential costs (both expenditures and savings) from implementation of the method.

Section 222(b)(3)(C) provides for mandatory implementation of a method to reduce the consequences of a chemical release from an intentional act for a treatment works that is assigned to one of the two highest risk-based tiers, and possesses or plans to possess a designated amount of a substance of concern. Section 222(b)(3)(C)(ii) authorizes the Administrator, or a State, in the case of a State with an approved program under section 402 of the Clean Water Act, to require the owner or operator of the treatment works to implement such a method, and includes a series of factors for the Administrator or State to consider in making such a determination. Section 222(b)(3)(D) provides a formal opportunity for the owner or operator of a treatment works to appeal the decision of the Administrator or a State that requires the implementation of such a method.

Section 222(b)(3)(E) authorizes the Administrator to address incomplete or late assessments of methods to reduce the consequences of a chemical release from an intentional act at the treatment works by an owner or operator of a treatment works.

Section 222(b)(3)(F) authorizes the Administrator to take action, in a State with an approved program under section 402 of the Clean Water Act, to determine whether a treatment works should be required to implement a method to reduce the consequences of a chemical release from an intentional act, and to compel the treatment works to implement such methods through an enforcement action, in the absence of State action.

Section 222(b)(4) and (5) directs the Administrator to consult with the States (with approved programs), the Secretary of Homeland Security and, as appropriate, other persons, in developing regulations under this subsection. Section 222(b)(6) requires the Administrator to ensure that regulations developed under this subsection are consistent with the goals and requirements of the Clean Water Act.

Section 222(c). Substances of Concern

Section 222(c) authorizes the Administrator, in consultation with the Secretary of Homeland Security, to designate any chemical substance as a substance of concern, and to establish, by rulemaking, a threshold quantity of such substance that, as a result of a release, is known to cause death, injury, or serious adverse impacts to human health or the environment. In carrying out this authority, the Administrator is required to take into account the list of ``Chemicals of Interest'', developed by the DHS, and published in appendix A to part 27 of title 6, Code of Federal Regulations.

Section 222(d). Review of Vulnerability Assessment and Site Security

Plan

Section 222(d) requires an owner or operator of a treatment works covered by this section to submit a vulnerability assessment and site security plan to the Administrator for review in accordance with deadlines established by the Administrator. Section 222(d)(2) and (3) direct the Administrator to review such assessments and plans, and to either approve or disapprove such assessments and plans. Section 222(d)(3) and (4) establish criteria for the disapproval of a vulnerability assessment or site security plan, and requires the Administrator to provide the owner or operator of a treatment works with a written notification of any deficiency in the vulnerability assessment or site security plan, including guidance for correcting such deficiency and a timeline for resubmission of the assessment or plan.

Section 222(e). Emergency Response Plan

Section 222(e) establishes the requirements for an owner or operator of a treatment works to develop and, as appropriate, revise an emergency response plan that incorporates the results of the current vulnerability assessment and site security plan for the treatment works. Section 222(e)(2) requires the owner or operator to certify to the Administrator that an emergency response plan meeting the requirements of this section has been completed, and is appropriately updated. Section 222(e)(4) requires the owner or operator of a treatment works to provide appropriate information to any local emergency planning committee, local law enforcement, and local emergency response providers.

Section 222(f). Role of Employees

Section 222(f)(1) requires that a site security plan and emergency response plan identify the appropriate roles or responsibilities for employees and contractor employees of treatments works in carrying out the plans. Section 222(f)(2) requires the owner or operator of a treatment works to provide sufficient training, as determined by the Administrator, to employees and contractor employees in carrying out site security plans and emergency response plans.

Section 222(g). Maintenance of Records

Section 222(g) requires that an owner or operator of a treatment works maintain an updated copy of its vulnerability assessment, site security plan, and emergency response plan on the premises of the treatment works.

Section 222(h). Audit; Inspection

Section 222(h) directs the Administrator to audit and inspect treatment works, as necessary, to determine compliance with this section, and authorizes access by the Administrator to the owners, operators, employees, contract employees, and, as applicable, employee representatives, to carry out this subsection.

Section 222(i). Protection of Information

Section 222(i) establishes requirements for the prohibition of public disclosure of protected information, as defined by this subsection, and authorizes the Administrator to prescribe by regulation or issue orders, as necessary, to prohibit the unauthorized disclosure of such information. Section 222(i)(2)(B) provides authority to facilitate the appropriate sharing of protected information with and among Federal, State, local, and tribal authorities, first responders, law enforcement officials, and appropriate treatment works personnel or employee representatives. Section 222(i)(4), (5) and (6) ensure that the requirements of this subsection not affect the implementation of other laws or the oversight authorities of Congressional committees. Section 222(i)(7) defines the term ``protected information''.

Section 222(j). Violations

Section 222(j) provides criminal, civil, and administrative penalties for the violation of any requirement of this section, including any regulations promulgated pursuant to this section, consistent with the criminal, civil, and administrative penalties contained in section 309 of the Clean Water Act.

Section 222(k). Report to Congress

Section 222(k) directs the Administrator to report to Congress within three years of the date of enactment of the Wastewater Treatment Works Security Act of 2009, and every three years thereafter, on progress in achieving compliance with this section. Section 222(k)(3) provides that such reports be made publicly available.

Section 222(l). Grants for Vulnerability Assessments, Security

Enhancements, and Worker Training

Section 222(l) authorizes Federal grants for the conduct of vulnerability assessments and the implementation of security enhancements and publicly-owned treatment works, and for security related training of employees or contractor employees of a treatment works and training of first responders and emergency response providers. Section 222(l)(2)(C) provides that grants made available under this Act not be used for personnel cost or operation or maintenance of facilities, equipment, or systems. Section 222(l)(2)(D) provides for a maximum 75 percent Federal share for grants made available under this Act.

Section 222(m). Preemption

Section 222(m) provides that nothing in this section precludes or denies the right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance with respect to a treatment works that is more stringent than a regulation, requirement, or standard of performance under this section.

Section 222(n). Authorization of Appropriations

Section 222(n) authorizes to be appropriated to the Administrator $200 million for each of fiscal years 2010 through 2014 for making grants under section 222(l).

Section 222(o). Relation to Chemical Facility Security Requirements

Section 222(o) provides that the requirements of Title XXI of the Homeland Security Act of 2002, section 550 of the Department of Homeland Security Appropriations Act, 2007, and the Chemical and Water Security Act of 2009, (and any regulations promulgated thereunder), do not apply to a treatment works, as such term is defined in section 212 of the Clean Water Act.

Legislative History

In the 107th Congress, on October 10, 2001, the Subcommittee on Water Resources and Environment held a hearing on the security of infrastructure within the Subcommittee's jurisdiction, including issues related to the nation's network of wastewater infrastructure.

On July 22, 2002, then-Chairman Don Young introduced H.R. 5169, the ``Wastewater Treatment Works Security Act of 2002''. On July 24, 2002, the Committee on Transportation and Infrastructure met in open session and ordered the bill reported favorably to the House by voice vote. H. Rept. 107-645. On October 7, 2002, the House passed H.R. 5169 by voice vote. No further action was taken on this legislation.

In the 108th Congress, on February 13, 2003, then-Chairman Don Young introduced H.R. 866, the ``Wastewater Treatment Works Security Act of 2003''. On February 26, 2003, the Committee on Transportation and Infrastructure met in open session and ordered the bill reported favorably to the House by voice vote. H. Rept. 108-33. On May 7, 2003, the House passed H.R. 5169 by a rollcall vote of 413-2. No further action was taken on this legislation.

In the 111th Congress, on June 16, 2009, Water Resources and Environment Subcommittee Chairwoman Eddie Bernice Johnson introduced H.R. 2883, the ``Wastewater Treatment Works Security Act of 2009''.

Mr. Chairman, I appreciate this opportunity to address this legislation, and I want to thank Ranking Member King for rubbing it in on the Phillies. I know you're very pleased about the Yankees, but at least the Phillies beat the Mets. That's all I have to say today about that. So with that, congratulations to the Yankees.

Again, this is a very important piece of legislation, as we all know. I have very serious concerns about it for a number of reasons, but it should be remembered that in 2006, we, Congress, enacted a law that gave the Department of Homeland Security the authority to regulate chemical facilities.

You're hearing a lot of talk today about inherently safer technologies, and I would like to get into that in just a moment and what it means. I should also point out as well that the State of New Jersey does require IST assessments, but not implementation of IST, which is quite different. We are going much further than the State of New Jersey in this legislation.

It's important to point out, too, that I certainly support the Department's efforts to secure chemical facilities, but unfortunately, I think this legislation is riddled with costly provisions that go beyond the underlying security purpose of the bill.

Currently, there are vulnerability assessments that the Department must do under the current regulations. There are about 6,000 vulnerability assessments that must be done. So far, 2,000 have been completed, leaving about 4,000 vulnerability assessments that remain. Adding these IST assessments will be enormously costly.

I should also point out that the Department of Homeland Security has no one on staff who is an expert in these inherently safer technologies, so I wanted to point that out for the record.

We've had a lot of testimony, too, and I want to say something about inherently safer technologies. Testimony was referenced. There was a statement from a Scott Berger, who is a director for the Center for Chemical Process Safety. Mr. Berger is an expert in inherently safer technology and inherently safer design. And as the organization that developed the most widely used reference addressing inherently safer design, inherently safer processes, and lifecycle approach, they are the leaders. That was in his testimony. And he said, What is inherently safer design, from his testimony back in June of 2006. He said, Inherently safer design is a concept related to the design and operation of chemical plants, and the philosophy is generally applicable to any technology. Inherently safer design is not a specific technology or set of tools and activities at this point in its development. It continues to evolve, and specific tools and techniques for application of inherently safer design are in the early stages of development. And he goes on.

But essentially what he's saying is inherently safer technology is a conceptual framework. It's not a technology; it's an engineering process. Unfortunately, it seems that too many in Congress are trying to act as chief engineers. We are essentially trying to tell people how to produce certain types of chemicals and what chemicals to use.

These are very technical issues. It will be very costly to implement. It will affect jobs in this country, and with unemployment rates approaching 10 percent nationally, I am very concerned about the impact on this.

I happen to represent a district, the 15th District of Pennsylvania. I have a company called Air Products and Chemicals. About 4,000 people work there. They spend their time designing and building chemical plants in this country and throughout the world. They know a bit about this. And I am extremely concerned that those types of jobs will be put at risk because these chemical plants will be built, but they will not be built here. They will be built elsewhere to produce the chemicals that we need every day in our lives. So that is something that I just feel we have to talk about.

I will yield briefly.

No

I am suggesting that we, as a country, maintain the regulations.

Reclaiming my time, the ones that are currently in place. The regulations that we just extended for 1 year.

About a month ago, when we passed the Homeland Security Appropriations Act, we extended the current regulations for 1 year. I think we should extend them for another 2 years. Let those regulations take effect. Let's implement them. We have agreement. There was a great deal of opposition to this legislation by farmers, manufacturers and others who are going to be saddled with these costs. I have to point this out:

Inherently safer technology deals with workplace safety issues and how you develop the product or the process. It doesn't deal with securing the plant--you know, hiring more guards or building fortifications to secure a plant. That deals with safety as opposed to security. I want to make that distinction because we all agree--you and I agree--that we need to make sure that these plants are secure, but inherently safer technology is really not about plant security, and I think we have to be clear about that.

I reserve the balance of my time.

Mr. Chairman, may I inquire as to how much time I have remaining.

Mr. Chairman, I yield 2\1/2\ minutes to the ranking member of the Committee on Agriculture, the distinguished gentleman from Oklahoma (Mr. Lucas).

(Mr. LUCAS asked and was given permission to revise and extend his remarks.)

I yield the gentleman an additional 30 seconds.

Mr. Chairman, in conclusion to this discussion, I must restate my reasons for opposition to this bill.

There is not one person in the Department of Homeland Security who has any expertise in inherently safer technology. They are not prepared to deal with this mandate. I am concerned that much of this bill is, in fact, not focusing on security at all but is, rather, focusing on Federal mandates that may force our small businesses and farms to shed American jobs, further harming our vulnerable economy.

I have a letter here from 27 different organizations, including the Chamber of Commerce, the Farm Bureau and the Fertilizer Institute, which oppose the underlying legislation. They said: ``We continue to oppose the bill due to the detrimental impact it will have on national security and economic stability.''

A lot has been said about chemical facilities, but this bill is not so much about chemical facilities as it is about facilities with chemicals, and those facilities include hospitals, colleges and universities, and 3,630 employers with fewer than 50 employees. These are the people who are going to be impacted, and jobs will be lost. With unemployment approaching 10 percent, I don't think now is the time to impose this kind of a mandate, which will not have any real security benefit to the American people.

So, with that, I would like to submit this letter for the Record from the various organizations in opposition to this legislation. Let's let the current regulations be implemented. Let's extend them for that 1 year and beyond.

November 3, 2009.

Hon. Nancy Pelosi,

Speaker, House of Representatives,

Washington, DC.

Hon. John Boehner,

Republican Leader, House of Representatives,

Washington, DC.

Dear Speaker Pelosi and Republican Leader Boehner: We write

to you today to express our opposition to H.R. 2868, the

``Chemical Facility Anti-Terrorism Act of 2009'' (CFATS).

Despite the changes made to this legislation in the Energy

and Commerce and Homeland Security Committees, we continue to

oppose the bill due to the detrimental impact it will have on

national security and economic stability.

Specifically, we strongly object to the Inherently Safer

Technology (IST) provisions of this legislation that would

allow the Department of Homeland Security (DHS) to mandate

that businesses employ specific product substitutions and

processes. These provisions would be significantly

detrimental to the progress of existing chemical facility

security regulations (the ``CFATS'' program) and should not

be included in this legislation. DHS should not be making

engineering or business decisions for chemical facilities

around the country when it should be focused instead on

making our country more secure and protecting it from

terrorist threats. Decisions on chemical substitutions or

changes in processes should be made by qualified

professionals whose job it is to ensure safety at our

facilities.

Furthermore, forced chemical substitutions could simply

transfer risk to other points along the supply chain, failing

to reduce risk at all. Because chemical facilities are

custom-designed and constructed, such mandates would also

impose significant financial hardship on facilities

struggling during the current economic recession. Some of

these forced changes are estimated to cost hundreds of

millions of dollars per facility. Ultimately, many facilities

would not be able to bear this expense.

Thank you for taking our concerns into account as the

Committee continues to consider the ``Chemical Facility Anti-

Terrorism Act of 2009.'' We stand ready to work with the

Committee and Congress towards the implementation of a

responsible chemical facility security program.

Sincerely,

Agricultural Retailers Association;

American Farm Bureau Federation;

American Forest & Paper Association;

American Petroleum Institute;

American Trucking Associations;

Chemical Producers and Distributors Association;

Consumer Specialty Products Association;

The Fertilizer Institute;

Institute of Makers of Explosives;

International Association of Refrigerated Warehouses;

International Liquid Terminals Association;

International Warehouse Logistics Association;

National Agricultural Aviation Association;

National Association of Chemical Distributors;

National Association of Manufacturers;

National Grange of the Order of Patrons of Husbandry;

National Mining Association;

National Oilseed Processors Association;

National Pest Management Association;

National Petrochemical and Refiners Association;

National Propane Gas Association;

North American Millers' Association;

Petroleum Equipment Suppliers Association;

U.S. Chamber of Commerce.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I rise in opposition to this legislation. Our side of the aisle is going to focus on the impact on jobs. This legislation is devastating to jobs in this country, and we will get into that in just a moment.

Mr. Chairman, I yield 4 minutes to the gentleman from Houston, Texas (Mr. Culberson).

I yield the gentleman an additional 20 seconds.

Mr. Chairman, I would like to yield 4 minutes to the distinguished gentleman from New Orleans, Mr. Scalise.

Mr. Chairman, I yield 3 minutes to the distinguished gentleman from Kansas (Mr. Moran).

Mr. Chairman, first, there has been considerable debate here today whether farmers and small agricultural retailers currently exempt from existing regulations will be exempt from the new regulations required by this legislation.

The short answer is: They will not. Section 2120 of this bill requires the Secretary to issue new regulations to replace the existing CFATS regulations. Nowhere in this bill does the Secretary have any authority to exempt certain individuals or classes from those regulations. Nowhere.

If the majority disagrees and would care to point to a particular provision that authorizes the Secretary to grant exemptions from the provisions, including the costly IST assessment and

implementation provisions, I would ask that they point to that provision.

At this time, I would like to yield 2 minutes to the gentleman from Illinois (Mr. Shimkus).

(Mr. SHIMKUS asked and was given permission to revise and extend his remarks.)

Mr. Chairman, I think you just heard some very powerful arguments in opposition to this legislation. This issue is all about jobs. I want to say one thing. It is a darn good thing that the House of Representatives just a couple of hours ago passed an extension of unemployment benefits. Because of this legislation, people are going to need them. That said, people around this country are very scared of Washington right now. They are scared of the agenda, and they are scared of the national energy tax called cap-and-trade. They are afraid of the card check bill and the health care bill that will cost more than a trillion dollars. So is it any wonder that unemployment rates are going the way they are going.

But one thing about these IST assessments, and I feel we have to talk about this from a jobs standpoint, but contesting these IST assessments will be costly, too costly for most small businesses to afford.

Experts estimate that a simple, one ingredient substitution would take two persons 2 weeks to complete and cost between $10,000 and $40,000, and that is on the low end. A pharmaceutical pilot plant with about 12 products would take three to six persons up to 10 weeks to complete an assessment at a cost of $100,000 to $500,000.

Larger facilities with particularly hazardous chemicals, already regulated by OSHA, would require 8 to 10 people 6 months or more to complete at a cost of over a million dollars for the assessment. Fifty- nine percent of the facilities regulated under the current CFATS regulations that would be required to conduct these costly assessments employ 50 or fewer people. Mandating IST will be devastating to small businesses across America.

According to a California fertilizer manufacturer, eliminating the use of anhydrous ammonia and substituting it with urea can cost a 1,000 acre farm up to $15,000 per application. This would be a recurring cost passed on to the consumer.

On Friday, the Department of Labor is expected to revise the unemployment figures. Does anyone in this Chamber expect those numbers to go down? We hope they do, but I am afraid we know what the answer may be.

Mr. Chairman, I rise in strong support of H.R. 2868, the Chemical and Water Security Act of 2009. This legislation resolves some important unfinished business from 9/11. We learned on that terrible day how determined terrorists can turn our critical assets into weapons of mass destruction. Despite that wake-up call, we've been slow and inconsistent in securing our Nation's chemical facilities and water systems from terrorist attack. Passing this legislation will enhance our Homeland Security, improve the safety of our workforce, and help protect our public health.

First, the bill strengthens security at America's chemical plants by providing permanent authority for the Department of Homeland Security's chemical facility antiterrorism standard program. This legislation would establish a number of security enhancements, including requiring, for the very first time, that covered chemical facilities assess whether there are any safer chemical processes or technologies that they can adopt that would reduce the consequences of a terrorist attack against that facility. This bill would also authorize the Secretary of Homeland Security, under certain circumstances, to require that the riskiest chemical facilities adopt the safer chemical processes or technologies when necessary to reduce the likelihood that the facility will be attacked.

The bill also provides chemical facilities with an appeals process if they disagree with the DHS Secretary's determination. We crafted this provision in close consultation with considerable input from the largest chemical industry association, the American Chemistry Council.

Second, the bill establishes minimum security standards at drinking water and wastewater facilities, closing what the Bush and Obama administrations agree is a critical security gap. Under this bill, for the first time, covered water systems that use a certain amount of dangerous chemicals will have to assess whether they can switch to safer chemicals or processes to protect their employees, their neighbors, and the communities they serve.

We worked closely with the water sector to craft a bill that meets several important policy goals--clean and safe water and homeland security. I am pleased that the associations representing drinking water and wastewater utilities have endorsed the bill. These endorsing associations include the Association of Metropolitan Water Agencies, the American Public Works Association, the National Association of Clean Water Agencies, and the Association of California Water Agencies.

Third, this bill gives chemical facility workers much-needed protection by ensuring that chemical facilities and water systems involve their workers in developing plans to address any vulnerability to terrorist attack. Not only are workers the first line of defense against any attack, they would also be the first injured in the event of a chemical release. That's why this legislation is strongly supported by labor organizations, including the United Steelworkers, United Auto Workers, Communications Workers of America, and the International Chemical Workers Union Council.

And finally, this bill improves current law by creating a citizen enforcement tool that citizens can use to protect their communities when DHS fails to perform its nondiscretionary duties. It also allows States to take additional action to protect their communities from terrorists if they find it to be necessary.

This bill is the product of careful compromise, and it was drafted in close consultation with key stakeholders from government, the chemical industry, the water utilities, labor and other groups. That's why it has been endorsed by a broad coalition of labor and environmental organizations in addition to many water industry associations. I am proud of the balance we have struck.

I urge all Members to support H.R. 2868 to close these critical security gaps once and for all.

I rise in strong support of H.R. 2868, ``The Chemical and Water Security Act of 2009.''

This legislation resolves some important unfinished business from 9/ 11. We learned on that terrible day how determined terrorists can turn our critical assets into weapons of mass destruction. Despite that wake-up call, we've been slow and inconsistent in securing our nation's chemical facilities and water systems from terrorist attack. Passing this legislation will enhance our homeland security, improve the safety of our workforce, and help protect our public health.

First, the bill strengthens security at America's chemical plants by providing permanent authority for the Department of Homeland Security's Chemical Facility Anti-Terrorism Standards program. This legislation would establish a number of security enhancements including requiring for the first time that covered chemical facilities assess whether there are any safer chemicals, processes, or technologies that they can adopt which would reduce the consequences of a terrorist attack against the facility. This bill will also authorize the Secretary of Homeland Security, under certain circumstances, to require the riskiest chemical facilities to adopt the safer chemicals, processes, or technologies when necessary to reduce the likelihood that the facility will be attacked.

The bill also provides chemical facilities with an appeals process if they disagree with the DHS Secretary's determination. We crafted this provision in close consultation, and with considerable input from, the largest chemical industry association, the American Chemistry Council.

Second, the bill establishes minimum security standards at drinking water and wastewater facilities, closing what both the Bush and Obama Administrations agree is a ``critical

security gap.'' Under this bill, for the first time, covered water systems that use a certain amount of dangerous chemicals will have to assess whether they can switch to safer chemicals or processes, to protect their employees, their neighbors, and the community they serve.

We worked closely with the water sector to craft a bill that meets several important policy goals--clean and safe water and homeland security. I'm pleased that associations representing drinking water and wastewater utilities have endorsed the bill. These endorsing associations include: The Association of Metropolitan Water Agencies; The American Public Works Association; The National Association of Clean Water Agencies; and The Association of California Water Agencies.

Third, this bill gives chemical facility workers much-needed protection, by ensuring that chemical facilities and water systems involve their workers in developing plans to address any vulnerability to terrorist attack. Not only are workers the first line of defense against any attack, they also would be the first injured in the event of a chemical release. That's why this legislation is strongly supported by labor organizations, including: The United Steelworkers; The United Auto Workers; The Communications Workers of America; and The International Chemical Workers Union Council.

And finally, this bill improves current law by creating a citizen enforcement tool that citizens can use to protect their community when DHS fails to perform its nondiscretionary duties. It also allows states to take additional action to protect their communities from terrorists if they find it to be necessary.

This bill is the product of careful compromise, and was drafted in close consultation with key stakeholders from government, the chemical industry, the water utilities, labor and other groups. That's why it has been endorsed by a broad coalition of labor and environmental organizations in addition to many water industry associations. I am proud of the balance we have struck. I urge all Members to support H.R. 2868 to close these critical security gaps once and for all.

Finally, I'd like to highlight two aspects of the bill.

Information Protection

Each title of H.R. 2868 contains a section related to the protection of sensitive security information that could be detrimental to facility security if disclosed. The bill requires the Secretary of Homeland Security and the EPA Administrator to develop rules for the appropriate sharing of protected information with those who have a need to know it. The bill also establishes criminal penalties for any person who discloses this protected information in knowing violation of the rules.

The bill defines the types of information that is considered ``protected'' as well as the types of information that the bill's sponsors intended to exclude from that definition. The bill states that protected information does not include ``information that is required to be made publicly available under any other provision of law.'' Laws such as the Clean Air Act, the Emergency Planning and Community Right to Know Act or the Occupational Safety and Health Act require disclosure of important safety information to regulators, workers and often the public at large. An individual who discloses information in compliance with one of these other statutes should not face criminal penalties even if that information is also contained in a document such as a security vulnerability assessment that is protected under the rules established by Secretary of Homeland Security and the EPA Administrator.

Drinking Water Facilities and Site Security Plans

The Committee on Energy and Commerce reported H.R. 3258 favorably on October 21, 2009. H.R. 3258, now Title II of H.R. 2868, requires each covered water system to assess the system's vulnerability to a range of intentional acts. The vulnerability assessment must include a review of vulnerable assets within the fenceline of the system, such as water treatment and pre-treatment facilities and chemical storage units, as well as the off-site water distribution system. Each covered water system also must complete a site security plan that addresses the vulnerabilities identified in the assessment. With regard to the on- site vulnerabilities, the Committee intends for each covered water system to develop a site security plan that addresses those vulnerabilities using layered security measures to meet risk-based performance standards developed by EPA.

With regard to any off-site vulnerabilities identified by the covered water system, the Committee expects EPA to recognize that it would be impractical for the covered water system to guarantee the physical protection of the system's entire network of pipes, conveyances, and other usage points that comprise its distribution system. For example, it would be impracticable for the covered water system to control access to all fire hydrants or residential connections within its distribution system or all pipes that deliver its water. Similarly, the Committee does not expect for the covered water system to describe employees' roles and responsibilities for securing the distribution system beyond the fenceline of the system as part of its site security plan, unless the system has assigned one or more employees such responsibilities. The covered water system, however, may use funds granted by EPA to address off-site vulnerabilities, such as tamper- proofing of manhole covers, fire hydrants, and valve boxes.

Mr. Speaker, first, let me express my heartfelt condolences to my friend from Massachusetts on the Yankees' ascendancy last night. I am one of many, many, many people in this country who, while I'm not a Red Sox fan, do not put me down in the Yankee Blue column. So maybe my Rangers one of these days will come up and at least tussle with the Red Sox and the Yankees for the American League pennant.

Mr. Speaker, I rise in opposition to this bill. Before I go into my prepared remarks, I think it's educational to explain to the body what we're actually marking up.

We had two bills that came out of the Energy and Commerce Committee, and I would assume out of the Homeland Security Committee that were marked up and subject to debate. We had a bill in the Transportation Committee that, from what I can tell, was never marked up, and we now have merged the two work products from Homeland Security, the two work products from Energy and Commerce, and a work product from the Transportation Committee that was never publicly marked up and changed them in this bill and then it's going to be yet changed again in the manager's amendment in the nature of a substitute tomorrow so that the bill that we will actually be voting on is a bill that has never seen the light of day as a single bill.

Now, on the surface all these bills, or this bill, this merged bill, should pass 435-0. The Chemical and Water Security Act sounds like something that's a suspension calendar bill. The problem is, Mr. Speaker, that the bill before us has almost nothing to do with security in the sense of protection against terrorism. It has everything to do with what I consider to be radical environmentalism under the guise of homeland security. Let me elaborate on that in the written remarks.

The approach in this legislation is deeply flawed. The overreaching problem is simply this: Protecting chemical facilities and drinking water systems from terrorist attacks should not be done under the umbrella of environmental law. If it's about stopping terrorism, we ought to be talking about computer security and fiscal security and prevention and terrorism tracking and all of the things that really make these facilities safer against terrorism. Instead, we're debating something called IST, inherently safer technology, which is a chemical process, a manufacturing process, so that you process the water, you process the chemicals in a fashion that is safer from an environmental standpoint or perhaps from a safety standpoint for the workers in the surrounding community.

Mr. Chair, that has nothing to do with protecting against terrorism. H.R. 2868 goes beyond the reasonable requirements that have been the core of many Homeland Security programs for several sectors. Vulnerability assessments, site security plans, emergency response plans, these are real things that should be done and are being done to protect our chemical and water facilities against terrorism, but we're substituting in this bill for this IST and these environmental requirements that really have nothing to do with security.

We have an existing security regime in place for chemical facilities and water systems, including a chemical security program that the Congress passed 3 years ago, which is still in the process of being implemented by the Department of Homeland Security. My good friend from Massachusetts talked about how that was put into law back in 2006 and seemed to intimate that it was not thoughtfully done. I would assure my friend that it was very thoughtfully done.

The Energy and Commerce Committee at that time had primary jurisdiction, and my concern, as chairman of the committee at that time, was that we really shouldn't do something on an appropriations bill. We should do it through the regular process. But because it came late in the year, we did yield to the appropriators and put it in the omnibus bill. But even doing that, we spent weeks debating and working with the Homeland Security Committee and the stakeholders to come up with what, today, I think is a better process than what is in this bill.

It is considered that the existing chemical plant security program that we already have is going to cost $18.5 billion in public and private investment right now. The reasonable thing to do, in my opinion, is to let that program be implemented before we scrap it with a totally new concept from this Congress. We need to know what the deficiencies, if any, are in the existing program before we move to a brand new program and a brand new concept.

This legislation refuses to honor common sense when simplistic ideology seems to offer a quick return on a political investment. More to the point about this being an environmental bill is the fact that I am struck by some of the key words used in the entire legislation to address terror prevention. For example, page 10, line 20 of the amendment in the nature of a substitute--and I want to be very clear about this--defines a ``chemical facility terrorist incident'' as a ``release of a substance of concern.'' If you look up the definition of ``release,'' starting on page 12, line 19, that mirrors the exact language of the toxic waste cleanup law, which we call Superfund, right down to making its covered universe of ``hazardous substances, pollutants, or contaminants.''

Mr. Chair, this means that the Department of Homeland Security is now going to treat an environmental accident or an environmental cleanup as a terrorist incident. Now, I don't want to imply that an environmental accident is not a serious issue that needs to be dealt with seriously, but it's not a terrorist attack if you have a spill of a toxic chemical at a chemical facility. It's an accident. It's a problem. It needs to be dealt with. There are environmental issues. But it is not a terrorist incident. It is not a terrorist attack. But if this bill becomes law and you have that type of an accident, it is going to be a terrorist incident, and it has to be considered by the Department of Homeland Security. I think that is ludicrous. I think it's wrong. I think it is shortsighted, and I think it is unnecessary.

I'm an industrial engineer. I understand, to some extent, plant processes and chemical processes and things like that. I think we're very blessed in this country to have a robust chemical industry, much of which is located in the States of Texas and Louisiana on the Texas and Louisiana gulf coast. If this bill becomes law, my projection is that within 10 years or so, many of those facilities are going to be closed down and inoperable, and tens of thousands of jobs are going to be lost because our chemical industry is simply going to move offshore. They're not going to stay under a legislative proposal that, on the surface of it, is almost impossible to be implemented.

I am not convinced that there is a single, true, security-enhancing thing about the specific requirements in this bill, and I know for certain that we're already making these facilities do types of things under the EPA's risk assessment program and OSHA's process safety management program that this bill then doubles down on.

We have existing laws and existing processes to handle the issues these bills really do handle. The concept is an engineering process philosophy. Congress has repeatedly heard expert testimony that the provisions in section 2111 of this bill are expensive, hard to define because of significant technical challenges, and very tough, if not impossible, to enforce.

Further, even if these problems did not exist, the Department of Homeland Security does not even have the professionals it needs to make informed decisions on how to operate the program or give guidance to those who have to implement the program. Let me repeat. This legislation is not directed at preventing terrorist attacks. It is, instead, directed at setting up a regulatory regime under which the Department of Homeland Security and EPA employees, who really don't know much about production processes at the Nation's chemical and drinking water facilities, are going to force and have to make key technical decisions--not security decisions--technical, manufacturing, process decisions about those processes.

As if this were not enough, the legislation weakens the protections traditionally given to high-risk security information by treating need- to-know information like environmental right-to-know data. I am for transparency in government, but why should we give the terrorists that we're trying to prevent from attacking these facilities almost an open book to go in and, under those open meeting requirements and open record requirements, get information that could allow them to concoct schemes to destroy those various facilities?

These provisions are not just troubling to me because this legislation will allow for more information, ironically, to be made publicly through litigation but, more so, because it's going to be very hard to penalize people that reveal this information to the public. As one of my Democrat friends said in the committee markup in the Energy and Commerce Committee, ``Loose lips sink ships,'' and there are few repercussions under this bill for somebody with loose lips.

I could go on and on, Mr. Chairman, but let me simply say, this is a bad bill at the wrong time. It's unnecessary. I hope that we can have a bipartisan vote against it, and I hope that we can defeat it.

I do want to say one good thing about the process. Mr. Waxman and Mr. Markey did have a subcommittee markup. They did have a full committee markup, and a number of amendments have been made in order by the Rules Committee for the minority to try to improve the bill, and for that, I am thankful.

Mr. Chair, I ask unanimous consent to yield the balance of my time to my good friend from Florida (Mr. Stearns) to control.