Providing for consideration of the bill (H.R. 2868) to amend the Homeland Security Act of 2002 to extend, modify, and recodify the authority of the Secretary of Homeland Security to enhance security and protect against acts of terrorism against chemical facilities, and for other purposes.

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.

I yield myself such time as I may consume.

I want to thank my good friend, the gentleman from Florida (Mr. Hastings), for the time.

In 2006, Mr. Speaker, as part of the Homeland Security Appropriations Act of 2007, Congress gave the Department of Homeland Security the authority to promulgate risk-based security performance standards for chemical facilities that use or store chemicals.

I am glad that Mr. Lungren of California is here, because he was intimately involved with the legislation that ultimately became law.

The DHS subsequently issued the Chemical Facility Anti-Terrorism Standards (CFATS), requiring chemical facilities to report the types and amounts of chemicals housed on sites. The legislative authority for CFATS was scheduled to sunset this year in October. The underlying bill, the Chemical Facility Anti-Terrorism Act of 2009, makes permanent the authority of the Secretary of Homeland Security to regulate security at chemical plants.

I believe it's important to address the sunsetting of the existing CFATS program at the Department of Homeland Security. However, I have concerns that this bill fails to enhance our security and, at a time when we are facing 10 percent unemployment, perhaps even higher unemployment in the future, that it could endanger economic recovery.

Of particular concern is the IST, the inherently safer technology, provisions included in this legislation. IST allows the Federal Government to mandate the use of certain chemicals and technologies regardless of the efficiency and effectiveness of the IST. This was all the more worrisome when a witness from the Department of Homeland Security testified that the Department employs no specialists with IST expertise and that there is no future funding planned.

Now, I first learned how IST may hurt job creation and how, in fact, it may increase unemployment from a small business in my district, Allied Universal Corporation, that operates a chemical manufacturing facility.

I was informed that the IST is an attempt by the Federal Government to impose a one-size-fits-all approach to a complicated and disparate sector of our economy. It will cost Allied alone, this corporation that employs people in my community, hundreds of thousands of dollars in consulting fees and in staff time alone.

It is not a good use of resources. It has no tangible benefit as manufacturing struggles to survive in this economy. Furthermore, the underlying bill reduces existing protections on information regarding chemical facilities, and it reduces the penalties for the disclosure of security information.

These regulations that we are talking about today were thoughtfully included following the terrorist attacks on September 11, 2001. The primary responsibility, Mr. Speaker, of our government is to protect the citizenry. By making chemical facilities less secure, we endanger the security of our neighborhoods and of our communities. By easing penalties for unlawfully disclosing sensitive information, we increase our vulnerability. To make matters worse, the majority includes these provisions in a bill that is supposed to help prevent attacks.

As I said before, I am glad Mr. Lungren is here. He can explain the process by which the current regulations came into being, the amount of discussion, negotiation, and consensus that led to those regulations coming into effect, and really how unfortunate now this attempt at an imposition of further or different regulations is.

Mr. Speaker, later this week the Congress is expected to consider health care bills. I would like to take this moment to compare today's rule on the chemical facility bill with the rule expected on the health care bills.

Today's rule allows 10 amendments, five from the majority and five from the minority, on a bill that costs approximately $900 million. Although the rule is not open, it's important to admit that the rule allows some debate on the underlying issues. The rule expected later this week on the health care legislation will probably include an amendment written by the Speaker. Perhaps that's the only amendment that will be allowed. We'll see. And that bill spends about $1.3 trillion, I believe.

It seems that the more money Congress spends, the more likely we seem to have a closed debate process. And that, I believe, is contrary to the way the majority promised to run this House.

On the opening day of the 110th Congress, the distinguished chairwoman of the Rules Committee came to the floor and said that the new majority would ``begin to return this Chamber to its rightful place as the home of democracy and deliberation in our great Nation.'' That pledge was echoed in a document written by the distinguished Speaker called a New Direction for America, where she stated, and, by the way, the statement is still on her Web site: ``Bills should generally come to the floor under a procedure that allows open, full, and fair debate.''

After contrasting today's rule with the expected health care rule in a few days, today's rule might look fair, but really it's not. It blocks amendments from both sides of the aisle from receiving a full and fair debate on the House floor that was, as I pointed out, promised by the Speaker.

During the hearing in the Rules Committee, the ranking member, Mr. Dreier, made a motion to allow an open rule on this legislation that's being brought to the floor; in other words, a rule that would allow all Members the ability to offer any amendment for a vote by the full House. If the Rules Committee had approved the motion, it would have been their first open rule this Congress. Unfortunately, the motion was voted down by a majority on the Rules Committee. The majority used to criticize us when we were in the majority for not allowing more open rules. They have offered none.

This rule that is bringing the underlying legislation to the floor today also gives the majority the authority to allow consideration of bills under suspension of the rules until Saturday. Suspension bills, as you know, Mr. Speaker, are usually noncontroversial bills, but the suspension authority has in the past been used to pass bills with obviously minimal debate and sometimes as a way to block the minority from offering amendments or a motion to recommit.

Now, in the past, a senior member of the majority on the Rules Committee referred to that process as ``outside the normal parameters of the way the House should conduct its business. It effectively curtails our responsibilities and rights as serious legislators.''

It's interesting how it's wrong when they're in the minority, but once they're in the majority, it's right.

Allied Universal Corporation,

Miami, FL, October 23, 2009.

Re H.R. 2868.

Hon. Lincoln Diaz-Balart,

House of Representatives,

Washington, DC.

Dear Congressman Diaz-Balart: My company is a small

business as defined by the U.S. Small Business

Administration. It operates a chemical manufacturing and

distribution facility in your district (8350 NW 93 Street,

Miami, FL). employing individuals and providing materials to

a number of industries critical to our nation's and state's

economy and public health. I am writing to express my

opposition to H.R. 2868, the Chemical Facility Anti-Terrorism

Act, which will be scheduled for a House floor vote within

days. This legislation will make significant changes to the

Chemical Facility Anti-Terrorism Standards (CFATS), which

took effect just two and a half years ago.

Security is a major priority for Allied Universal Corp. We

are members of the Chlorine Institute and National

Association of Chemical Distributors (NACD). which requires

our participation in the Responsible Distribution Process, an

environmental, health. safety. and security management

program. My company has spent substantial resources on

security upgrades in recent years. and will continue to do so

going forward under the current CFATS regulations. I do not

embellish when I state that a significant amount of our

company's capital budget and personnel time has been spent on

security improvement projects. and will continue to be spent

as Allied works to address the Department of Homeland

Security's identified security risks for our facility.

I am concerned that H.R. 2868 is too prescriptive and

includes requirements that are not appropriate for all

facilities. Security is very important, but a command and

control type regulation would not benefit the nation let

alone the thousands of businesses that must comply with the

regulation. For example, the requirement to conduct an

assessment of inherently safer technologies (1ST). or Methods

to Reduce the Consequences of a Terrorist Attack, could

easily cost my company hundreds of thousands of dollars in

consulting fees and staff time. This is not a good use of

resources for a chemical manufacturing and distribution

facility like mine, which stocks products based on our

customers' needs and operates on extremely tight margins. I

am also concerned about other mandates in the bill and the

fact that state and local measures are not preempted, which

is critical for a national security program. No federal

preemption would cause much confusion, not to mention

additional staff time and resources that could otherwise be

allocated to other pressing needs (i.e. one state may have

stricter regulations, causing my company to allocate more

resources to the facility in that state rather than say a

facility in a state with less restrictions. but more

significant security concerns or risks such as a high

population area).

Therefore, I urge you to oppose H.R 2868 unless the

following changes are made:

(1) All 1ST assessment and implementation mandates must be

removed.

(2) Specific requirements regarding drills, employee and

union involvement in SVA and SSP development, and other areas

must be removed. A Risk Based Performance Standards approach

should be continued as in the current CFATS regulations.

(3) The federal standards must preempt state and local

requirements.

Thank you for your consideration. Please feel free to

contact me if you have questions or would like more details

on how H.R. 2868 would impact my company.

Sincerely,

Robert Namoff,

Chairman of the Board.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, as Dr. King said in my favorite of his speeches, longevity has its place. And in Congress we have some Members who have been here for many years. I would like to yield to one such distinguished Member who was here for many years, then left us but then returned, which is even more unusual. But he has the historical knowledge with regard to this legislation, which, by the way, was in this decade that he worked on and that led to the regulations that the majority seeks to amend drastically, change drastically today.

I yield 5 minutes to my distinguished friend from California, Mr. Daniel E. Lungren.

I yield the gentleman an additional 2 minutes.

Mr. Speaker, it is my pleasure to yield 5 minutes to my friend from Pennsylvania, Mr. Dent.

I recognize the gentleman for an additional 1 minute.

Mr. Speaker, I yield 3 minutes to my friend from Illinois, Mr. Shimkus.

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

Mr. Speaker, before closing, I will yield 20 seconds to the gentleman from Pennsylvania (Mr. Dent).

Mr. Speaker, the American people are demanding that we have at least 72 hours on any legislation and every piece of legislation, to read it and study it before it is brought to the floor; 182 Members have signed a discharge petition to consider a bill that would require that.

That is why today I will be asking for a ``no'' vote on the previous question, so we can amend this rule and allow the House to consider that legislation, H. Res. 554, offered by Representatives Baird and Culberson, requiring 72 hours on every piece of legislation before it is taken to a vote.

If anyone is concerned, Mr. Speaker, that that would jeopardize the chemical security bill, be not concerned, because the motion I am making provides for separate consideration of the Baird-Culberson bill within 3 days so we can vote on the chemical security bill and then, once we are done, consider H. Res. 554. The American people are demanding that on every piece of legislation there should be 72 hours to study it and read it thoroughly before it is voted on.

Mr. Speaker, I ask unanimous consent to insert the text of the amendment and extraneous materials immediately prior to the vote on the previous question.

I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Chair, I just wanted to clarify one point. I understand the sensitivities in the State of New Jersey. It is a great State. But I do want to say that New Jersey IST assessments are required. Implementation of IST is not required. The huge cost with this legislation is in the implementation of IST. The legislation we're considering here today goes far beyond New Jersey standards and would actually require an IST implementation as well as the assessment, which will add an enormous cost and put a number of jobs at risk. I just wanted to point that out for the record.

Mr. Chairman, I seek to claim time in opposition to the amendment, though I am not necessarily opposed to the amendment.

This amendment requires the Secretary of Homeland Security to establish a point of contact with the Administrator of the EPA. The amendment also requires the Secretary to notify State and local emergency planning committees of findings that may be necessary to update their emergency plans. This amendment certainly encourages the sharing of information with the appropriate people at the State and local level, those responsible for developing emergency planning and training procedures. And while the bill envisions this type of information sharing, the amendment certainly makes it explicit. Additionally, this bill requires a single point of contact for the EPA Administrator.

Knowing how bad bureaucracy can be, we certainly understand the need of legislating communication between two agencies and ensuring that State and local first responders are included in these information- sharing regimes.

And I should point out that my good friend Mr. Pascrell from New Jersey has a smile on his face still from the

New York Yankees' victory over my Philadelphia Phillies. I had to get that off my chest after the ribbing you gave me yesterday, along with our good friend Mr. King. And, again, congratulations. It still hurts. I'm a Phillies fan.

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

Mr. Chairman, I offer an amendment.

Mr. Chairman, I am offering this amendment on behalf of myself and Mr. Olson.

This amendment would simply strike title I and extend the Department's current regulatory authority until October 2012. Simply, it extends the current CFATS regulations until 2012.

This amendment addresses the largest problem of the underlying bill, that the bill is a so-called solution in search of a problem.

The majority will argue that chemical facilities need to be secure. We agree. That's why we acted swiftly 3 years ago to give the Department of Homeland Security the regulatory authority it needed to secure them. In the 3 years since, the Department has taken steps to implement that authority, but it is far from complete.

As of last week, the Department of Homeland Security had not reviewed two-thirds of the over 6,000 security vulnerability assessments it required regulated facilities to submit based on regulations it issued in June of 2007. The addition of drinking water and wastewater facilities by titles II and III of this bill will double the 6,000 security vulnerability assessments already required by the Department. We are asking too much of the Department too soon.

The bill proposes to nearly double the Department's workload. The Department should be allowed to fully implement its existing regulatory authority. By all accounts, including those of the Democratic majority, the Department is doing an excellent job implementing its current regulatory framework.

In the committee hearing on the subject this past June, Chairman Thompson stated, ``As a close observer, I give credit to the Department for the good job it has done so far in promulgating and enforcing the CFATS regulations.'' We agree with him.

Why are we here today looking to make significant and costly changes to the manner in which the Department is regulating chemical facilities if, as the chairman himself has said, the Department is doing a ``good job''?

Despite the fact that the Department has yet to conduct a single onsite inspection, not a single one, the majority seeks to halt the progress the Department has made and start over with new costly and burdensome requirements.

This amendment maintains the current authorizing language, requiring security vulnerability assessments, site security plans, and enforcement. But it does not include costly IST assessments or mandatory implementation that will cost Americans their jobs. It does not include civil suit provisions that would allow any person, whether in Peoria or Pakistan, the authority to sue the Secretary and the Department of Homeland Security. It does not include weakened information protection language that makes prosecution for unauthorized disclosures nearly impossible.

This amendment would maintain the drinking and wastewater security titles of the bill. When will the Democratic leadership recognize that moving precipitously in unchartered territory through legislation is ill-advised and a rush to judgment? A Democrat-imposed 100 percent maritime cargo-scanning mandate legislated before the results of a pilot program were published has led the Secretary of Homeland Security to state on the record that it was an unachievable goal. A Democrat- imposed 100 percent aviation cargo-scanning mandate legislated before any feasibility studies were completed has led the Acting Administrator of the TSA to state on the record that it cannot be done. Requiring costly IST assessments and mandatory implementation and then studying its effect on the agricultural sector and small business is equally ill-advised.

If it isn't broken, don't fix it. And as Chairman Thompson said, the Department of Homeland Security is doing a ``good job.'' Let them finish their work, learn from the process, and consider this legislation.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I would like to yield 1\1/2\ minutes to the distinguished cosponsor of this amendment, the gentleman from Texas (Mr. Olson).

Mr. Chairman, I yield the balance of my time to the gentleman from Michigan (Mr. Upton).

Mr. Chairman, in closing, I just want to say once again, I think extending these CFATS regulations until 2012 is a reasonable approach. The Department of Homeland Security is doing a good job with these regulations. We need to give them more time to implement the existing regulations that will require security assessments.

As we said, 2,000 of the 6,000 required have been completed. So let's give them some time. The Department of Homeland Security has not spoken in support of this legislation in its entirety. Again, this bill is a solution in search of a problem. Please accept the Dent-Olson amendment that is a reasonable approach, accepting the regulations that we just approved as part of the Homeland Security appropriations bill. So let's do that. It is the right way to go.

I yield back the balance of my time.

Mr. Chairman, I demand a recorded vote.

Mr. Chairman, I rise for the purpose of offering an amendment.

Mr. Chairman, I want to point out, too, for the record, the American Chemistry Council, just referenced a moment ago by the gentlewoman from Texas (Ms. Jackson-Lee), in a letter dated October 20, the ACC basically said that the IST provisions which authorize DHS to order the mandatory implementation of IST have proven the most difficult issue on which to find common ground and the primary reason ACC is unable to endorse this bill. They do not support the bill. To be very clear about that, they do not support this legislation.

Now, with respect to the Dent-Austria amendment that we are talking about now, this amendment would strike the IST provisions in the bill. IST is inherently subjective and without a widely accepted definition. When the Department of Homeland Security's subject matter expert on IST was specifically asked what IST was, she responded, ``There's enough debate in industry and academia that I can't take a position on that very topic.'' The Deputy Under Secretary responsible for overseeing the program stated unequivocally that the Department had no staff--no staff--capable of conducting an IST assessment.

Under direct questioning, Deputy Under Secretary Reitinger made it very clear that neither the fiscal year 2009 nor the fiscal year 2010 budget included any funding to hire the necessary expertise to review IST assessments and recommend alternative methods for complex engineering processes.

Again, under direct questioning, most of the witnesses considered IST unnecessary, with the Department's witness adding that the facilities can and are already doing IST.

Clearly, no one at DHS is in a position to dictate to a wide range of facilities what engineering process or chemicals should be used to make plastics, prescription drugs, or computer chips. Despite its fancy labeling, and its inclusion in a security bill, IST is not about security and may simply shift the security risk.

A decision to keep fewer chemicals on site will likely require more frequent shipments of chemicals. This increases the risk of an attack on the transportation of the chemicals or an accident releasing the substances of concern into neighborhoods outside the security perimeters.

It would be foolish to mandate IST in this bill when there is so much uncertainty and lack of expertise in the Department.

Finally, and most importantly, IST will cost American jobs. Let me say that again: IST will cost American jobs. With the national unemployment rate at 10.2 percent, and rising, can we really afford unnecessary congressional mandates that provide little security?

Conducting an IST assessment will be costly, too costly for many 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 a half million dollars.

Larger facilities with particularly hazardous chemicals already regulated by OSHA would require 8 to 10 people 6 months or more to complete, and cost over $1 million for the assessment. Fifty-nine percent of the facilities regulated under current CFATS regulations that would be required to conduct these costs assessments employ 50 or fewer employees.

Mandating IST will be devastating for small businesses. 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 to the consumer.

As we heard earlier, in the current state of our economy, small businesses relying on chemicals simply may not survive. Today, the Department of Labor announced that unemployment has reached 10.2 percent. Does anybody in this Chamber expect that unemployment figure to go down any time soon? We hope it does, but this is not going to help.

``If I were to build a 20-foot high, 20-foot thick concrete barricade that surrounded my facility on all sides, utilized the most state-of- the-art intrusion detection systems and was better protected than the White House, this legislation would still require me to conduct an IST assessment and potentially implement the findings of that assessment.''

Let me close by quoting subcommittee chairman and chief sponsor, Mr. Markey, who stated at the Energy and Commerce Committee on the markup on October 21 of the proposed legislation, ``The safer technology requirement is not about bolstering security.'' If it's not about security, why is IST in the bill? Why are we asking the smallest of small businesses to pay for it?

Mr. Chairman, I reserve the balance of my time.

Would the gentleman yield?

This is a very different bill than the one from last session. This bill has citizen suits in it and all kinds of--it's a very different bill.

At this time, I yield the balance of my time to the gentleman from Ohio (Mr. Austria).