Statements on Introduced Bills and Joint Resolutions
Floor Speech
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COLLINS: Mr. President, the law granting the Federal Government, for the first time, the authority to regulate the security of the nation's highest risk chemical facilities is due to expire at the end of this fiscal year. Given the success of this law and its vital importance to all Americans, I am introducing legislation today with Senators Pryor, Voinovich, and Landrieu to reauthorize it.
The U.S. is home to an astonishing number of facilities that manufacture, use, or store chemicals for legitimate purposes. From pharmaceuticals to cosmetics, soaps to plastics and all manner of industrial, construction, and agricultural products, chemicals enable the manufacture of more than 70,000 products that improve the well-being of the American people.
The chemical industry is enormous, diverse, and vital to the American economy. It approaches half a trillion dollars annually in sales. It is one of our largest exporters, with exports totaling $174 billion annually. It directly employs more than 850,000 people nationwide and supports millions more indirectly.
These facilities are vital parts of our economy and society. But, to our enemies, they can be potential chemical weapons. Like the airliners of September 11th, it would only take an attack on a few, or even one, to cause a horrifying loss of life.
In 2005, as Chairman of the Homeland Security and Governmental Affairs Committee, I held a series of hearings to examine the terrorist threat to the nation's chemical facilities and the devastating consequences that could arise from a successful attack. As a result of those hearings, I introduced comprehensive, bipartisan legislation to provide the Department of Homeland Security with the authority necessary to set and enforce security standards at high-risk chemical facilities in the U.S. That bill formed the basis for chemical security legislation signed into law in 2006 as part of the Department of Homeland Security Appropriations Act, 2007.
Specifically, section 550 requires the Department to issue rules requiring all high-risk chemical facilities to conduct vulnerability assessments, develop site security plans to address identified vulnerabilities, and implement protective measures necessary to satisfy risk-based performance standards. Section 550 also directs the Secretary of Homeland Security to review and approve those vulnerability assessments and site security plans and to audit and inspect covered chemical facilities for compliance with the performance standards. It also permits the Secretary to shut down covered facilities that are non-compliant.
In April 2007, the Department published interim final rules, known as the Chemical Facilities Anti-Terrorism Standards, CFATS, setting forth the requirements that high-risk chemical facilities must meet to comply with the law. Among other things, CFATS establishes 18 risk-based performance standards which facilities must meet to be in compliance with the law. These standards cover items such as securing the perimeter and critical targets, controlling access, deterring the theft of potentially dangerous chemicals, and preventing internal sabotage.
CFATS, however, does not dictate specific security measures. Instead, the law allows chemical facilities the flexibility to choose the security measures or programs that the owner or operator of the facility decides would best address the particular facility and its security risks, so long as these security measures satisfy the Department's 18 performance standards.
Since publishing CFATS in 2007, the Department has worked aggressively and diligently on implementation. The Department has hired and trained more than 100 chemical facility field inspectors and headquarters staff. Indeed, by the end of Fiscal Year 2010, the Department hopes to employ more than 260 CFATS staff. And, to date, the Department has received over $200 million in funding to support CFATS.
Given the daunting challenges of establishing such a comprehensive regulatory program from scratch, the Department wisely decided to implement CFATS in phases, beginning with those facilities presenting the very highest security risks.
To determine which facilities presented the highest risks, the Department first required chemical plants that possessed certain threshold quantities of specified chemicals to complete an online security assessment--called ``Top-Screen.'' Based on the Top-Screen and any other available information, the Department then ascertained whether a facility ``presented a high level of security risk'' and preliminarily divided such facilities into four tiers of escalating risk. While all covered facilities must satisfy the Department's performance standards, the security measures sufficient to meet them are more robust for those facilities in the higher tiers, such as Tiers 1 and 2.
For chemical facilities that qualified as ``preliminarily high risk,'' the Department required the preparation and submission of security vulnerability assessments. These assessments enabled the Department to identify more accurately each facility's risk and, thus, to assign final risk tier rankings. Based on these final tier rankings, these facilities must develop site security plans and submit to inspections or audits to ensure their compliance.
The men and women of the Department have processed a tremendous amount of information in a relatively short period of time. According to the
Department, since establishing CFATS, it has reviewed almost 38,000 Top-Screen submissions and notified more than 7,000 facilities of their high-risk designations and preliminary tiers.
As of December 2009, CFATS covered only 6,000 facilities. Some facilities closed; others made material modifications that altered their risk profile. Of those remaining, the Department has assigned final tiers to almost 3,000--including all of the facilities in Tiers 1 and 2--and is now reviewing their site security plans.
Although the Department remains in the midst of implementing CFATS, it has generally received positive reviews for its work. The private sector has become a partner in the program's success. The collaborative nature of the program has been praised by many experts as a model for security-related regulation.
Notwithstanding the Department's success in administering the CFATS program and the considerable costs that facilities have incurred in complying with it, some now want to ``swap horses in midstream'' by radically overhauling the law.
Indeed, in November 2009, the House of Representatives passed legislation that would dramatically alter the nature of CFATS, requiring the Department to completely rework the program and stop its considerable progress--dead in its tracks. Among other things, the House bill would direct the Secretary of Homeland Security to establish new risk-based performance standards, require covered chemical facilities in Tiers 1 and 2 to implement so-called ``inherently safer technology'', IST, and allow third-party lawsuits against the Department over CFATS implementation.
Unfortunately, Mr. President, the changes proposed by the House will in no way enhance the nation's security. They will, however, impose unnecessary and costly burdens on the economy and destroy the collaborative public-private partnership critical to CFATS' success.
The House provision that would allow the Department to mandate that certain chemical facilities implement IST is an example. IST is an approach to process engineering involving the use of less dangerous chemicals, less energetic reaction conditions, or reduced chemical inventories. It is not, however, a security measure. And because there is no precise methodology by which to measure whether one technology or process is safer than another, an IST mandate may actually increase or unacceptably transfer the risk to other points in the chemical process or elsewhere on the supply chain.
For example, it is my understanding that after careful evaluations of the available alternatives, many drinking water utilities have determined that gaseous chlorine remains their best and most effective drinking water treatment option. Their decisions were not based solely on financial cost considerations, but also on many other factors, such as the characteristics of the region's climate, geography, and source water supplies, the size and location of the utility's facilities, and the risks and benefits of gaseous chlorine use compared to those inherent with the use of alternative treatment processes.
According to one water utility located in an isolated area of the Northwest, if Congress were to force it to replace its use of gaseous chlorine with sodium hypochlorite, then the utility would have to use as much as seven times the current quantity of treatment chemicals to achieve comparable water quality results. In turn, the utility would have to arrange for many more bulk chemical deliveries, by trucks, into the watershed. The greater quantities of chemicals and increased frequency of truck deliveries would heighten the risk of an accident resulting in a chemical spill into the watershed. In fact, the accidental release of sodium hypochlorite into the watershed would likely cause greater harm to soils, vegetation and streams than a gaseous chlorine release in this remote area. Because the facility is so isolated from population centers, the gas released in the event of an accident would almost certainly dissipate before reaching populated areas.
Forcing chemical facilities to implement IST could wreak economic havoc on some facilities and affect the availability of products that all Americans take for granted. For instance, according to October 2009 testimony by the Society of Chemical Manufacturers and Affiliates before the House Committee on Energy and Commerce, mandatory IST would negatively restrict the production of pharmaceuticals and microelectronics, unnecessarily crippling those industries.
Moreover, the increased cost of a mandatory IST program could encourage chemical companies to transfer their operations overseas, costing thousands of American jobs.
To be clear, some owners and operators of chemical facilities will want to use IST. But the decision to implement IST should be that of the owner or operator, not a Washington bureaucrat.
In fact, the evidence is quite compelling that many chemical facilities, based on an assessment of many complex factors, have already taken steps to avoid the use, storage, and handling of extremely dangerous chemicals in favor of safer alternative processes. The Department's own data indicate that nearly 1,000 facilities voluntarily adopted safer alternative processes.
Notwithstanding all of the other changes to CFATS passed by the House, the mandatory IST requirement itself will bring CFATS to a screeching halt. This is neither necessary nor wise. Congress should not dictate specific industrial processes under the guise of security when a facility may choose other alternatives that meet the Nation's security needs.
That is precisely why Senators Pryor, Voinovich, Landrieu, and I are introducing the Continuing Chemical Facilities Antiterrorism Security Act of 2010. Instead of directing the Department to start again from scratch, our legislation would reauthorize section 550 for five more years. Such an extension would provide the Department with sufficient time to fully implement the CFATS program in its current form. It would also provide a stable regulatory environment to encourage chemical innovation and industry confidence.
Our legislation also contains two improvements, both of which are based on similar provisions from the Security and Accountability For Every, SAFE, Port Act of 2006. The first would direct the Secretary to establish a voluntary Chemical Security Training Program to enhance the capabilities of Federal, State, and local governments, chemical industry personnel, and governmental and nongovernmental emergency response providers to prevent, prepare for, respond to, mitigate against, and recover from acts of terrorism, natural disasters, and other emergencies that could affect chemical facilities. The second would create a voluntary program to test and evaluate these capabilities.
Not only is the chemical industry vital to our country's economy, but also it is the linchpin to the important advancements and innovations in critical fields such as science, technology, agriculture, medicine, and manufacturing.
As one of the co-authors of the first chemical security law, no one is more conscious than I am of the risks that attacks on chemical facilities pose to the nation. The Department has done a remarkable job developing a comprehensive chemical security program.
If our true intent is to secure high-risk facilities, then it is incumbent upon Congress to allow the Department to continue doing its job implementing CFATS.
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