[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
THE CHEMICAL FACILITIES ANTI-TERRORISM STANDARDS PROGRAM (CFATS)_A
PROGRESS REPORT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
JUNE 14, 2018
__________
Serial No. 115-138
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
34-591 WASHINGTON : 2019
-----------------------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).E-mail,
[email protected].
COMMITTEE ON ENERGY AND COMMERCE
GREG WALDEN, Oregon
Chairman
JOE BARTON, Texas FRANK PALLONE, Jr., New Jersey
Vice Chairman Ranking Member
FRED UPTON, Michigan BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois ANNA G. ESHOO, California
MICHAEL C. BURGESS, Texas ELIOT L. ENGEL, New York
MARSHA BLACKBURN, Tennessee GENE GREEN, Texas
STEVE SCALISE, Louisiana DIANA DeGETTE, Colorado
ROBERT E. LATTA, Ohio MICHAEL F. DOYLE, Pennsylvania
CATHY McMORRIS RODGERS, Washington JANICE D. SCHAKOWSKY, Illinois
GREGG HARPER, Mississippi G.K. BUTTERFIELD, North Carolina
LEONARD LANCE, New Jersey DORIS O. MATSUI, California
BRETT GUTHRIE, Kentucky KATHY CASTOR, Florida
PETE OLSON, Texas JOHN P. SARBANES, Maryland
DAVID B. McKINLEY, West Virginia JERRY McNERNEY, California
ADAM KINZINGER, Illinois PETER WELCH, Vermont
H. MORGAN GRIFFITH, Virginia BEN RAY LUJAN, New Mexico
GUS M. BILIRAKIS, Florida PAUL TONKO, New York
BILL JOHNSON, Ohio YVETTE D. CLARKE, New York
BILLY LONG, Missouri DAVID LOEBSACK, Iowa
LARRY BUCSHON, Indiana KURT SCHRADER, Oregon
BILL FLORES, Texas JOSEPH P. KENNEDY, III,
SUSAN W. BROOKS, Indiana Massachusetts
MARKWAYNE MULLIN, Oklahoma TONY CARDENAS, CaliforniaL RUIZ,
RICHARD HUDSON, North Carolina California
CHRIS COLLINS, New York SCOTT H. PETERS, California
KEVIN CRAMER, North Dakota DEBBIE DINGELL, Michigan
TIM WALBERG, Michigan
MIMI WALTERS, California
RYAN A. COSTELLO, Pennsylvania
EARL L. ``BUDDY'' CARTER, Georgia
JEFF DUNCAN, South Carolina
Subcommittee on Environment
JOHN SHIMKUS, Illinois
Chairman
DAVID B. McKINLEY, West Virginia PAUL TONKO, New York
Vice Chairman Ranking Member
JOE BARTON, Texas RAUL RUIZ, California
TIM MURPHY, Pennsylvania SCOTT H. PETERS, California
MARSHA BLACKBURN, Tennessee GENE GREEN, Texas
GREGG HARPER, Mississippi DIANA DeGETTE, Colorado
PETE OLSON, Texas JERRY McNERNEY, California
BILL JOHNSON, Ohio TONY CARDENAS, California
BILL FLORES, Texas DEBBIE DINGELL, Michigan
RICHARD HUDSON, North Carolina DORIS O. MATSUI, California
KEVIN CRAMER, North Dakota FRANK PALLONE, Jr., New Jersey (ex
TIM WALBERG, Michigan officio)
EARL L. ``BUDDY'' CARTER, Georgia
JEFF DUNCAN, South Carolina
GREG WALDEN, Oregon (ex officio)
C O N T E N T S
----------
Page
Hon. John Shimkus, a Representative in Congress from the State of
Illinois, opening statement.................................... 1
Prepared statement........................................... 3
Hon. Paul Tonko, a Representative in Congress from the State of
New York, opening statement.................................... 4
Hon. Frank Pallone, Jr., a Representative in Congress from the
State of New Jersey, opening statement......................... 5
Hon. Greg Walden, a Representative in Congress from the State of
Oregon prepared statement...................................... 7
Witnesses
Dave Wulf, Acting Deputy Assistant Secretary, Infrastructure
Protection, U.S. Department of Homeland Security............... 8
Prepared statement........................................... 11
Answers to submitted questions............................... 121
Chris P. Currie, Director, Emergency Management, National
Preparedness, and Critical Infrastructure Protection, Homeland
Security and Justice Team, U.S. Government Accountability
Office......................................................... 50
Prepared statement........................................... 52
Answers to submitted questions............................... 137
Doug Brown, President and COO, Brown Chemical Company............ 68
Prepared statement........................................... 70
Answers to submitted questions............................... 146
Mike Wilson, National Director, Occupational And Environmental
Health, Bluegreen Alliance..................................... 75
Prepared statement........................................... 77
Answers to submitted questions............................... 152
Steve Roberts, Principal, Chemical Security Group, LLC........... 88
Prepared statement........................................... 90
Answers to submitted questions............................... 178
James Conrad, Principal, Conrad Law and Policy Counsel, on Behalf
of Society of Chemical Manufacturers and Affiliates............ 100
Prepared statement........................................... 102
Answers to submitted questions............................... 187
Vette Arellano, Policy Research and Grassroots Advocate, Texas
Environmental Justice Advocacy Services........................ 107
Prepared statement........................................... 110
Submitted Material
Statement of the Chemical Facility Anti-Terrorism Standards
Coalition...................................................... 119
THE CHEMICAL FACILITIES ANTI-TERRORISM STANDARDS PROGRAM (CFATS)--A
PROGRESS REPORT
----------
THURSDAY, JUNE 14, 2018
House of Representatives,
Subcommittee on Environment,
Committee on Energy and Commerce
Washington, DC.
The subcommittee met, pursuant to call, at 10:00 a.m., in
room 2123 Rayburn House Office Building, Hon. John Shimkus
(chairman of the subcommittee) presiding.
Members present: Representatives Shimkus, McKinley, Harper,
Olson, Johnson, Flores, Walberg, Carter, Duncan, Walden (ex
officio), Tonko, Ruiz, Peters, Green, DeGette, McNerney,
Cardenas, Dingell, Matsui, and Pallone (ex officio).
Staff present: Mike Bloomquist, Deputy Staff Director;
Samantha Bopp, Staff Assistant; Kelly Collins, Staff Assistant;
Jerry Couri, Chief Environmental Advisor; Margaret Tucker
Fogarty, Staff Assistant; Jordan Haverly, Policy Coordinator,
Environment; Mary Martin, Deputy Chief Counsel, Energy &
Environment; Sarah Matthews, Press Secretary; Drew McDowell,
Executive Assistant; Peter Spencer, Professional Staff Member,
Energy; Austin Stonebraker, Press Assistant; Hamlin Wade,
Special Advisor, External Affairs; Everett Winnick, Director of
Information Technology; Jean Fruci, Minority Energy and
Environment Policy Advisor; Caitlin Haberman, Minority
Professional Staff Member; Rick Kessler, Minority Senior
Advisor and Staff Director, Energy and Environment; Jourdan
Lewis, Minority Staff Assistant; Alexander Ratner, Minority
Policy Analyst; Tuley Wright, Minority Energy and Environment
Policy Advisor; C.J. Young, Minority Press Secretary; and
Catherine Zander, Minority Environment Fellow.
OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Shimkus. The subcommittee will now come to order. The
chair recognizes himself for 5 minutes for the purpose of an
opening statement.
Today, the subcommittee will check on the progress of the
Chemical Facilities Anti-Terrorism Standards Program, or CFATS,
allowing our subcommittee to review the progress of the CFATS
program, including overall implementation by the Department of
Homeland Security as well as overall achievement of benchmark
objectives identified in the past by the Government
Accountability Office.
This program, which Congress authorized in the fall of 2006
was a continuation of congressional efforts since the terror
attacks of September 11, 2001, to surgically and directly
address gaps in Federal law regarding terrorism or other
intentional acts against high-risk facilities due to their use
or possession of chemicals of concern at levels of concern. The
core of this new security-focused law was a process where DHS
issued risk-based performance standards that required
vulnerability assessments and the site security plans by
covered facilities. Most importantly, to avoid overlapping with
other Federal programs, CFATS was designed to foster
collaboration between government and regulated parties. Having
finally set up this program, many had great optimism about its
possibilities. Unfortunately, the early years of CFATS program
implementation were marked with several growing pains, some
more hurtful than others. No one knows that more that our
witness from the Department of Homeland Security, David Wulf.
Very few people have demonstrated the courage, commitment, and
longevity with the program that he has. He's kind of the Cal
Ripken of CFATS.
Based on this subcommittee's hearing in March 2014, we know
Mr. Wulf not only set many remedial goals to address issues he
found in the CFATS program, but GAO also found areas that
needed serious attention. GAO provided recommendations to DHS
on how to correct these areas. I look forward to hearing about
the progress DHS is making here from Mr. Wulf on the first
panel, and from Christopher Currie at GAO, who is on the second
panel.
I also look forward to a meaningful dialogue with our other
witnesses representing CFATS regulated stakeholders as well as
those of organized labor, environmental, and community advocacy
interests.
Particularly, I am interested in knowing what steps DHS has
taken to improve its risk assessment methodology and what that
has meant for facility tiering, what DHS has done to become
more effective and efficient carrying out the CFATS program,
and, finally, what steps has DHS taken to improve CFATS program
transparency and communication with regulated facilities,
whether it relates to the facility tiering or employee
screening. In my opinion, CFATS has had four uninterrupted
years to course correct and these are threshold questions that
must be addressed in evaluating whether CFATS is a worthwhile
investment for the United States taxpayer.
I know there are some who would like to see the CFATS
universe expand to also do EPA's job, or OSHA's job, or FEMA's
job, or addressed some other way and we have had lively
discussions on the advisability of these changes in the past.
My own thinking has been guided by two thoughts. Are these new
requirements advisable as a legally enforceable part of this
program, filling a security gap that does not exist or are they
merely an additive burden without security benefits, and
recognizing the challenges CFATS has faced in the past, CFATS
must excel at its present obligations before being given new
responsibilities.
I want to thank our witnesses for being with us today. We
look forward to having your experience, wisdom, and ideas.
[The prepared statement of Mr. Shimkus follows:]
Prepared statement of Hon. John Shimkus
The Subcommittee will now come to order; and the Chair
recognizes himself for 5 minutes for the purposes of an opening
statement.
Today, the Subcommittee will check in on the progress of
the Chemical Facilities Anti-Terrorism Standards Program or
CFATS, allowing our Subcommittee to review the progress of the
CFATS program, including program implementation by the
Department of Homeland Security (DHS) as well as overall
achievement of benchmark objectives identified in the past by
the Government Accountability Office (GAO).
This program, which Congress authorized in the fall 2006,
was a continuation of congressional efforts since the terror
attacks of September 11, 2001, to surgically and directly
address gaps in Federal law regarding terrorism or other
intentional acts against high-risk facilities due to their use
or possession of chemicals of concern at levels of concern. The
core of this new security-focused law was a process where DHS
issued risk-based performance standards that required
vulnerability assessments and site security plans by covered
facilities. Most importantly, to avoid overlapping with other
Federal programs, CFATS was designed to foster collaboration
between the government and regulated parties. Having finally
set up this program, many had great optimism about its
possibilities. Unfortunately, the early years of CFATS program
implementation were marked with several growing pains, some
more hurtful than others. No one knows that more that our
witness from the Department of Homeland Security, David Wulf.
Very few people have demonstrated the courage, commitment, and
longevity with the program that he has--he's kind of the Cal
Ripken of CFATS.
Based on this Subcommittee's hearing in March of 2014, we
know Mr. Wulf not only set many remedial goals to address
issues he found in the CFATS program, but GAO also found areas
that needed serious attention. GAO provided recommendations to
DHS on how to correct these areas. I look forward to hearing
about the progress DHS is making here from Mr. Wulf on our
first panel, and from Christopher Currie at GAO, who is on the
second panel.
I also look forward to a meaningful dialogue with our other
witnesses representing CFATS regulated stakeholders as well as
those of organized labor, environmental, and community advocacy
interests.
Particularly, I am interested in knowing what steps DHS has
taken to improve its risk assessment methodology and what that
has meant for facility tiering, what DHS has done to become
more effective and efficient carrying out the CFATS program,
and, finally, what steps has DHS taken to improve CFATS program
transparency and communication with regulated facilities--
whether it relates to facility tiering or employee screening.
In my opinion, CFATS has had four uninterrupted years to course
correct and these are threshold questions that must be
addressed in evaluating whether CFATS is a worthwhile
investment for the United States taxpayer.
I know there are some who would like to see the CFATS
universe expanded to also do EPA's job, or OSHA's job, or
FEMA's job, or addressed some other way--and we have had lively
discussions on the advisability of these changes in the past.
My own thinking has been guided by two thoughts: (1) are these
new requirements advisable as a legally enforceable part of
this program, filling a security gap that does not exist, or
are they merely an additive burden without security benefits,
and (2) recognizing the challenges CFATS has faced in the past,
CFATS must excel at its present obligations before being given
new responsibilities.
I want to thank our witnesses for being with us today. We
look forward to having your experience, wisdom, and ideas.
With that, I yield back the balance of my time.
Mr. Shimkus. With that, I have a minute left. Anyone
seeking time? No one is seeking time so I will yield back and
recognize the ranking member of the subcommittee, Mr. Tonko
from New York, for 5 minutes.
OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Tonko. Thank you, Mr. Chair, and thank you to our
witnesses for your testimony, the Department of Homeland
Security's Chemical Facility Anti-Terrorism Standards, or CFATS
program.
CFATS is an important part of our nation's counterterrorism
efforts to secure high-risk chemical facilities. The program
was first created in late 2006 through a DHS appropriations
bill. In the early years, Congress extended the program through
annual appropriations under the passage of a long-term
authorization in 2014. Without further congressional action the
program will terminate in January of 2019.
Under CFATS certain chemical manufacturing, handling, and
storage facilities must implement risk-based performance
standards for vulnerability assessments and site security
plans. Facilities that possess certain chemicals of interest
must be screened by DHS. If a facility is deemed a high risk,
it will be placed in one of four tiers that will establish
standards appropriate to secure the site. As of May 30th of
2018 the CFATS program identifies 3,395 facilities as high risk
with 159 in tier one and 78 in tier two.
While there is complete agreement around the need for a
program to keep these chemicals out of the hands of terrorists,
even the program's most ardent supporters would admit there
have been implementation problems.
Over the years, DHS has addressed a number of concerns with
the program including some of GAO's recommendations which we
will hear about today, I am certain.
As Congress considers reauthorization, this is an
opportunity to review the program and consider what is working,
working well, and how the program could be improved. This
includes how we might continue to reduce risks at these sites
and ensure that workers, first responders, and local
communities have the information they need to stay safe.
In my view, we should be working to reauthorize CFATS and,
hopefully, improving it. But I would caution against a
permanent reauthorization. It is rare for us to discuss this
program and a permanent reauthorization may result in even less
congressional oversight.
We should also keep in mind that CFATS is not the only
Federal program to regulate chemical facilities. While others
are beyond the scope of DHS, I strongly believe Congress should
be looking at all aspects of risks at chemical facilities, not
just terrorism.
Recent incidents should remind us that our concerns must
not be limited to security issues alone. We should take a
holistic approach to chemical risks which, obviously, includes
facility security as well as safety, accounting for the risks
to the people working there and living in nearby communities
and facilities' resilience.
Chemical fires, explosions, and releases can have serious
consequences regardless of whether an incident was an accident,
a natural disaster or an act of terrorism. For example, EPA's
risk management plan program is focused on reducing chemical
risk in the event of an accidental release. RMP establishes
emergency measures which help local first responders prepare
for and respond to a chemical accident.
In January of 2017, the Obama administration finalized an
RMP amendments rule but in June of last year EPA delayed that
rule's implementation, and a few weeks ago EPA proposed a
reconsideration of the RMP program, which would essentially
roll back nearly all of the safety measures that were adopted
in 2017.
In addition to safety issues, chemical facilities are also
vulnerable to climate change and natural disasters as we have
seen during Hurricane Harvey when a power outage and equipment
failure led to a significant chemical fire at the Arkema
facility in Crosby, Texas. The Chemical Safety Board's post-
Arkema report recommended the development of comprehensive
industry guidance to help companies assess their risk for
potential extreme weather events.
While we all support keeping these facilities secure, I
hope we can also address these critical safety and resilience
issues, and if there is an opportunity to improve CFATS in a
way that close security gaps, reduce risks, better address
emerging threats such as cybersecurity and keep first
responders and workers safer, now is an excellent opportunity
to consider those changes to the program.
Again, I thank the chair for calling this hearing and thank
our witnesses for being here today, and I yield back, Mr.
Chair.
Mr. Johnson [presiding]. I thank the gentleman for yielding
back.
The chair now recognizes the ranking member of the full
committee, Mr. Pallone, for 5 minutes.
OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW JERSEY
Mr. Pallone. Thank you, Mr. Chairman.
It's been over 5 years since this committee held a hearing
on the Department of Homeland Security's Chemical Facility
Anti-Terrorism Standards, or CFATS. Given CFATS' inauspicious
history, I believe we should have conducted more regular
oversight. Existing CFATS authorization expires on January 2019
so it's important that Congress act to continue this program.
At the same time, there are well-documented gaps in the
current statute that Congress should address instead of simply
rubber stamping an extension of the existing program.
I've been an advocate for increased safety and security at
our nation's chemical facilities for many years, well before
the CFATS program was established in 2006.
My home State of New Jersey, which has a high population
density, also has a large number of chemical facilities. So the
consequences of insufficient security are dire.
The program shouldn't have any gaps, and while it took the
program five years to approve its first chemical facility
security plan, I understand we will hear today that
improvements have been made.
Nevertheless, there are still shortfalls in the program
that DHS cannot address without changes to the law. For
example, several significant categories of facilities are
exempt from the standards, such as public water systems and
wastewater treatment plants, and they should be added.
We should also reject a suggestion from Senate Republicans
that we exempt explosive manufacturers from this anti-terrorism
program.
We also cannot have a conversation about chemical
facilities without discussing the Trump administration's
reckless proposal to dismantle EPA's risk management program,
or RMP, improvement rule.
This is a common sense update to a nearly 20-year-old risk
planning and reduction policy for our nation's chemical
facilities. The rule would have improved chemical process
safety, assisted local emergency authorities and planning for
and responding to accidents and improved public awareness of
chemical hazards at regulated facilities.
Unfortunately, the administration's decision to walk away
from the RMP improvement rule has widespread and harmful
ramifications. Dangerous incidents at chemical facilities
across the country are happening too often. Forty-six incidents
have occurred at RMP facilities since Administrator Pruitt
blocked the RMP improvement rule. Had the rule been in place,
those facilities would have been required to prepare for and
implement safety improvements to reduce the frequency and
severity of those events. The highest profile case occurred in
the aftermath of Hurricane Harvey at the Arkema chemical plant
in Crosby, Texas. Heavy rains flooded the facility, causing
equipment to fail, triggering a chemical fire, and releasing
hazardous fumes and smoke into the air.
Last month, the Chemical Safety Court released an
investigative report on the incident and found that chemical
facilities are wholly unprepared for extreme weather events
like floods and hurricanes. Improving the resiliency of these
facilities will only become more critical as the climate
continues to change. More frequent flooding and powerful storms
associated with unchecked climate change increase the risk to
workers and vulnerable populations in and around these
facilities which too often are low-income communities and
communities of color.
Earlier this year, the New York Times reported that more
than 2,500 sites handling toxic chemicals are located in flood-
prone areas across the country. It is clear that far more
remains to be done to ensure chemical facilities are truly
resilient to this growing threat.
Mr. Chairman, I also believe we must examine Federal
chemical safety and security policy holistically. We can't turn
a blind eye to the administration's actions to undermine the
efficacy of EPA's RMP program. Preventing terrorism at these
facilities is important, but accidents and industrial incidents
due to extreme weather are far more common and they should also
be given due consideration by this committee.
We have to ensure the safety and security of workers, first
responders, and communities living near our nation's chemical
facilities are being prepared on both fronts.
And with that, Mr. Chairman--I don't think anybody wants my
time--I'll yield back.
Mr. McKinley [presiding]. Thank you, and absent the
chairman of the full committee, we will now conclude the
members' opening remarks.
The chair would like to remind our members that pursuant to
the committee rules, all members' opening statements be made
part of the record.
[The prepared statement of Mr. Walden follows:]
Prepared statement of Hon. Greg Walden
Good morning, Mr. Chairman, and thank you for yielding me
this time.
I am glad you have decided to have an oversight hearing on
the Chemical Facility Anti-Terrorism Standards program--or
CFATS, which is a program the Committee has been overseeing
since its inception. This hearing continues Energy and
Commerce's work this month on Federal preparedness laws for
deliberate events--like last week's hearing on pandemic and
health hazard preparedness and response and tomorrow's hearing
examining the federal reaction to biological attacks.
In the wake of the terrorist attacks of September 11th,
Congress assessed Federal authority to address theft,
diversion, and terrorism at chemical facilities and decided
accident prevention and process safety laws were insufficient
to tackle these malicious, and intentional acts. Instead,
Congress decided a separate and distinct body of law and
requirements were needed for security purposes. Leaving the
Clean Air Act to address general safety and accident concerns,
Congress used CFATS to fill legal gaps in addressing
intentional acts against this critical infrastructure sector.
In addition, to avoid overlapping with other Federal programs,
CFATS was designed to foster collaboration between the
government and regulated parties.
Since each chemical facility faces different security
challenges, CFATS established 18 layered, risk-based
performance standards for security at chemical facilities. It
is important to point out that CFATS is a program that not only
covers huge chemical and petrochemical complexes, but also race
tracks, wineries and breweries, universities and colleges, and
hospitals and health care providers--3,400 hundred facilities
in all.
However, the CFATS program had to overcome some tough
years. While there have not been any documented attacks on
these facilities to date, the program has suffered in the past
from poor accomplishment numbers, inadequate support from
senior DHS officials, management and workforce issues, and a
lack of transparency about the program, especially with the
stakeholder community. Since we last heard from DHS on the
status of CFATS, the Department has had four years to correct
the program and I understand DHS has been steadily making
progress on these areas. I am eager to find out first-hand what
that means, not just from DHS, but from some of its past
critics--the Government Accountability Office and the regulated
community.
CFATS must provide value to taxpayers, the Federal
government, and the facilities that could fall victim to
intentional attacks. To do that, it needs to not just focus on
its outputs and become highly proficient at those but stay in
its lane and not try to emulate or replicate other laws whose
primary purpose is safety, not security.
I want to welcome our witnesses for being with us today and
thank them for sharing their views with us.
With that, Mr. Chairman, I yield back the balance of my
time.
Mr. McKinley. We wish to thank all of our witnesses for
being here today, taking the time to testify before this
subcommittee.
Today's witnesses, beginning with the first panel, will
have the opportunity to give opening statements followed by a
round of questions. You know how this works.
Our first witness panel for today's hearing includes Mr.
David Wulf, the Acting Assistant Secretary for Infrastructure
Protection with the Department of Homeland Security.
Mr. Wulf, we appreciate you being here today and we will
begin the program with you and you're recognized for your 5
minutes to make an opening statement.
STATEMENT OF DAVE WULF, ACTING DEPUTY ASSISTANT SECRETARY,
INFRASTRUCTURE PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY
STATEMENT OF DAVE WULF
Mr. Wulf. Thank you so much, Mr. Chairman. I really do
appreciate the opportunity to be here and thanks as well to
Ranking Member Tonko and other members of this committee.
I am excited to be here to provide an update on the
progress that the Chemical Facility Anti-Terrorism Standards,
or CFATS program, continues to make in fostering security at
high-risk chemical facilities across this nation.
When I last testified before this committee in 2013, no
question but that the CFATS program was in a very different
place, having experienced some significant difficulties in its
early years. But we had at that point implemented a
comprehensive corrective action plan and had begun making
measurable forward progress.
At the time, I emphasized the importance of long-term
authorization for this critical anti-terrorism program and I am
very grateful for the leadership that you all provided--that
this committee demonstrated in securing the 4-year CFATS
authorization that was signed into law in December of 2014.
So as we now find ourselves nearly 3 \1/2\ years into the
authorization period, I am grateful that this committee is,
again, taking a lead role in ensuring continuing long-term
authorization of CFATS.
Now, as I am sure you'll hear me say once or twice today,
the stability that has come along with long-term authorization
has driven unprecedented progress as we have worked with CFATS-
covered facilities to make America's high-risk chemical
infrastructure a truly hard target with literally tens of
thousands of security measures having been put in place at
high-risk chemical facilities across the nation.
So the stability afforded by long-term authorization has
facilitated our planning and execution of important
programmatic improvements while it has also afforded regulated
industry stakeholders with the certainty they deserved as they
planned for and made significant investments in CFATS-related
security measures.
I am very pleased that you'll be hearing today directly
from CFATS industry stakeholders about their direct experience
with CFATS. Doug Brown, Jamie Conrad, Steve Roberts, along with
a host of industry associations, have been true leaders in
promoting a strong culture of chemical security across the
Nation and I really appreciate their presence and that of the
other witnesses here today.
As we are all too aware, the threat of chemical terrorism
remains a real and very relevant one. Around the globe, we
continue to see bad actors seeking to acquire and using in
attacks chemicals of the sort that trigger coverage under CFATS
and the threat stream continues to reflect that chemical
facilities themselves remain an attractive target for
terrorist.
I can tell you with certainty that the work we are doing in
concert with our committed stakeholders across the wide variety
of industries and facilities that compose the CFATS-covered
universe is making a real difference in protecting the nation,
and having had the opportunity to work closely with my
counterparts in other nations and to co-chair the G-7 Global
Partnerships' Chemical Security Working Group, I can absolutely
tell you that what we are doing here in the United States
through CFATS what you have helped build with your support for
long-term authorization is absolutely the envy of the world.
With its 18 comprehensive risk-based performance standards
and its nonprescriptive flexible approach, CFATS is well suited
to enhancing security across the very diverse universe of high-
risk chemical facilities.
So what have we been doing to make CFATS even stronger as
we have enjoyed the stability of long-term authorization over
the past 3 \1/2\ years?
Well, we have improved processes and we have seen
unprecedented progress in the pace of inspections and in the
review and approval of facility site security plans,
eliminating a backlog of security plan reviews 6 years ahead of
earlier GAO projections.
We have developed and launched an improved risk assessment
methodology that effectively accounts for all relevant elements
of risk and have reassessed the level of risk associated with
nearly 30,000 facilities across the Nation.
We have implemented the CFATS personnel surety program,
affording the highest tiered CFATS-covered facilities the
ability to ensure that individuals with access to those
facilities have been vetted for terrorist ties and we have
significantly reduced burden across our stakeholder community,
having built and launched a streamlined more user-friendly
suite of online tools through which facilities submit risk
assessment or top-screen surveys and develop their site
security plans.
So in addition to facilitating all this progress, long-term
authorization as compared to our former reality of
authorization through the annual appropriations process enabled
us to continue to recruit and retain top talent and it reduced
the possibility of another lapse in authority such as occurred
during the October 2013 government shut down.
In addition to the confusion this situation created among
our industry stakeholders, the need had arisen for us to take
enforcement action to address the national security threat at a
CFATS facility during this period of lapse in appropriations.
The underlying statutory authority for such enforcement action
would have been in doubt.
I know this is not a situation that anyone wants to see
repeated. So to finish on a bit more of a positive note, I
would, again, like to thank this committee and your top-notch
staff for your leadership in the CFATS reauthorization process.
We are fond of saying that chemical security is a shared
commitment and, not unlike the role of our industry
stakeholders who have embraced and helped us to build this
program in so many ways and the role of our committed and very
talented team at DHS, the role of Congress and of this
committee in shaping and authorizing CFATS for the long term
has been hugely important and I am looking forward to working
further with you as we drive toward reauthorization this year.
So thank you so much, Mr. Chairman. I look forward to your
questions and to the dialogue here today.
[The prepared statement of Mr. Wulf follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. McKinley. Thank you for your testimony, Mr. Wulf, and
if I could recognize myself for 5 minutes to begin the round of
questioning.
Mr. Wulf, last time you testified before the committee one
of the key issues identified by GAO regarding CFATS was
Homeland Security's approach to calculating risks and in fact
they concluded DHS did not take into consideration all the
elements and consequences of threat risk and vulnerability.
Your written testimony mentions an enhanced risk assessment
and tiered methodology that Homeland Security believes more
accurately reflects a facility risk.
Has DHS changed its policy to risk analysis?
Mr. Wulf. Yes. In fact, Mr. Chairman, we have.
So we took very seriously the dialogue we had with this
committee--took very seriously the recommendations we received
from GAO, recognizing that our previous risk-tiering
methodology was not as comprehensive as they could have been.
It was very focused on the consequences of terrorist attacks
and less so on vulnerability and threat.
We commissioned a peer review with a committee drawn from a
panel of experts from across academia, government partners, and
industry. We received some excellent recommendations as to ways
in which we could enhance our risk-tiering methodology and we
set about doing just that.
So in the fall of 2016, we did in fact launch a new and
improved risk-tiering methodology that accounts for all
relevant elements of risk. So consequence, vulnerability, and
threat, and we set about retiering the universe of chemical
facilities against that new tiering methodology.
Mr. McKinley. With this tiering methodology, I am just
curious--has it been peer reviewed what you've done on that
methodology?
Mr. Wulf. Yes. It sure has. So after we developed the
methodology we drew together another group of experts, again,
from across government academia and our industry community to
go over the methodology--to make recommendations for potential
tweaks before we finalized the methodology.
And following that, we embarked upon a verification and
validation process that was conducted by Sandia National Labs,
which advised us that our methodology was in fact sound, was
working as intended, and at that point, we launched upon the
retiering process.
Mr. McKinley. Again, back on the tiers, Mr. Wulf, almost
half the group changed tiers onto this new methodology. Fifteen
percent apparently left the program and four became newly
regulated.
And so my question is, is what quality reviews and are
there updates occurring to make sure that you are appropriately
tiering everybody that should be in the system and, as the
engineering room counts up the numbers, your numbers total over
100 percent. So I am curious if there is a discrepancy in your
math.
Mr. Wulf. That is a good question. So I would say the way
to look at the math is, looking at the number of facilities
that had been previously tiered, that group should add up to
100 percent.
So of that group, about 36 percent of previously tiered
high-risk facilities stayed put at the same tier level.
About 48 percent, as I think you mentioned, moved across
tiers from one tier to another and about 15 percent of that
previously tiered population was determined to be no longer
high risk, using the new methodology, and fell out of the high-
risk category.
So those three numbers add up to 100 percent when you take
into account the decimals. The additional 4 percent is from the
population that had previously been not determined to be high
risk--those previously untiered facilities. Four percent of
those were subsequently determined under the new methodology to
be high risk and moved into the risk tiers.
Mr. McKinley. Just in the time that remains--the 30 some
seconds--how do we have confidence that you're appropriately
tiering people, risk-tiering companies.
Mr. Wulf. So, the risk-tiering methodology is a sound one
and is very robust and now takes into account all relevant
elements of risk.
We have built a system in which human eyes look at tiering
for each facility as we move through the process and before a
final tiering decision is issued and if anything looks off--if
it appears as though a facility might have submitted
information in a way that doesn't quite make sense, we are able
to reach out directly through our field inspectors, through our
compliance case managers directly, to the facility to resolve
any discrepancies and to ensure that we are in fact issuing the
correct tier.
Mr. McKinley. Thank you. Thank you for my question.
Now, recognize the ranking member, Mr. Tonko from New York,
for 5 minutes.
Mr. Tonko. Thank you, Mr. Chair.
And Mr. Wulf, again, welcome and thank you for your
testimony. I commend you on the progress that has been made
over the recent years.
I believe, however there are ways we can continue to reduce
risks and improve the program. I want to reference a few issues
that came up when DHS last testified before this committee on
the CFATS program. This includes the importance of closing
security gaps. Is it true that drinking water and wastewater
facilities are statutorily exempt from the CFATS program?
Mr. Wulf. Water and wastewater facilities are among the
statutory exemptions along with facilities regulated by our
friends in the Coast Guard through the NHTSA program and a
handful of other exemptions.
Mr. Tonko. Thank you. And do you think they were exempted
because there are no risks of terrorist attacks at these sites?
Mr. Wulf. I was not here when when that exemption went into
effect. Certainly, I think it might be worth studying what gaps
may exist in that arena. I think that might be a sound next
step.
Mr. Tonko. OK. And is it true that nuclear facilities are
also statutorily exempt from the CFATS program?
Mr. Wulf. Facilities regulated by the NRC are exempt.
Mr. Tonko. And what about Federal facilities that have
large amounts of chemicals of interest? Are they exempt?
Mr. Wulf. Facilities owned and operated by the Department
of Energy and the Department of Defense, both of which have
robust standards and audit controls of their own, are exempt as
well.
Mr. Tonko. Just because a facility is not covered by CFATS
does that mean it is not a potential target by terrorists?
Should these sites be monitored at all?
Mr. Wulf. So, CFATS is very focused. It is a risk-based
program. It is targeted at the highest--those facilities that
are assessed to be at the highest risk of terrorist attack or
exploitation so I think it is an appropriate targeting of our
best resources to the facilities that are at the highest risk.
That is certainly not to say that other facilities do not
present a risk. We have within the Department of Homeland
Security a suite of voluntary tools and resources that are
available to other chemical facilities through our chemical
sector-specific agency.
We have protective security advisors who work with
facilities on a voluntary basis across the Nation every day. So
yes, certainly----
Mr. Tonko. But that's statutorily imposed. So----
Mr. Wulf. Yes. Those are not a statutory requirement.
Mr. Tonko. OK. Obviously, there are very different security
and regulatory regimes at nuclear facilities--Federal
facilities--and other sites that have received exemptions.
But in the past, DHS has expressed concerns over the gaps
created by these exemptions. A number of years ago, DHS
testified that the administration's position to support closing
security gaps at drinking water and waste water facilities--is
that still the administration's position?
Mr. Wulf. I think I would have to take that back.
Mr. Tonko. OK. And does the administration still support
maintaining EPA as the lead agency for drinking water and waste
water facility security with the DHS supporting EPA's efforts?
Mr. Wulf. I think that is another one we would need to take
back.
Mr. Tonko. All right. If you can get back to the committee,
please.
And can you explain how DHS has worked with EPA in recent
years to encourage improvements in chemical security at water
facilities?
Mr. Wulf. So I can speak more broadly to the work we have
done with EPA across the chemical sector. So as you probably
know, in the wake of the tragic explosion at west Texas, an
Executive order on improving chemical security safety and
security was issued.
In implementing that order, we developed a national working
group composed of us at DHS along with EPA, OSHA, Bureau of
Alcohol, Tobacco, Firearms, and Explosives and others with a
role in assuring chemical facility safety and security.
We took steps to ensure that we were sharing information as
fully as possibly, comparing notes on inspections, comparing
notes on facilities that existed in our relative respective
jurisdictions and ensuring that word was getting out as widely
as possible about all of the different regulatory and other
requirements.
Mr. Tonko. OK. I would simply encourage the committee to
consider how we might close some of these security gaps before
we debate creating new ones through additional exemptions and I
think it's important that we have this holistic approach to
cover everyone that might be impacted.
With that, I yield back, Mr. Chair.
Mr. McKinley. Thank you.
And now I recognize my colleague from Mississippi, Mr.
Harper, for 5 minutes.
Mr. Harper. Thank you, Mr. Chairman.
Mr. Wulf, thank you for your time being here, and we
appreciate it. It's such an important issue and topic for us to
continue to look at and we know that we all want to be on the
same page here on where we go, what we look at, and how we try
to strengthen this in the future.
One of the issues that was identified by the GAO, and also
a second witness that will be on the next panel, as a place
that needed improvement was compliance, inspections, and
enforcement, and I'd like to know what steps DHS has taken to
improve in this area.
Mr. Wulf. I appreciate the question. We have made really
unprecedented progress in our conduct of inspections in our
review and adjudication of site security plans and have moved
as well in--as a result have enclosed the backlog of site
security plan reviews and adjudications.
We have moved now into steady state phase of the program.
So, more than 90 percent of the inspections we are now
conducting for post site security plan approval, compliance
inspection, variety of inspections. So we have developed
standard operating procedures for these inspections and I will
say that the inspections that are happening across the country
are going well almost across the board.
Facilities are taking seriously their obligation to
implement their site security plans. They are putting in place
planned or new security measures in accordance with agreed upon
timelines where issues are being identified or found by
inspectors.
Nearly always they are being resolved quickly and in good
faith by the facility. We are not hesitant though where needed
to use the enforcement authorities with which we have been
entrusted.
But our overwhelming bias continues to be to work with
facilities that are working with us in good faith to come into
compliance.
Mr. Harper. Mr. Wulf, let's talk about your--the inspectors
for just a moment. Is there a--does DHS have minimum
qualification requirements for inspectors so they could
demonstrate the knowledge and understanding of the facilities
that they encounter and relevant guidance on enforcement
requirements.
Do you have the minimum qualifications there and, if yes,
will you provide the committee any written items the department
has governing inspector qualifications and training?
Mr. Wulf. Glad to do that, sir, and absolutely, we have
minimum standards--a pretty high bar for those standards as
well for our inspectors who go through a comprehensive training
program when they first come on board at DHS and to whom we
provide advanced training throughout their careers on specific
topics such as cybersecurity or personnel surety background
check focused program among many others.
There is an exam at the end of the basic training and it is
rigorous. We also focus heavily on on-the-job training and on
fostering consistency across our inspector cadre and the
inspections they conduct.
We have put in place relatively recently a group of senior
inspectors in each of our 10 regions and their job is to foster
training, the development of our inspector cadre and to ensure
that we are working in a consistent way. But absolutely glad to
provide you information.
Mr. Harper. And that would be great. Obviously, the goal
here is that if you had any inspector come in to any facility
that there would be a consistent review and finding, do you
sense that the ongoing training for those inspectors is going
to meet that?
Mr. Wulf. Yes, I do. I think, it's never completely
perfect. We strive for absolute consistency. We appreciate the
feedback we receive from our industry stakeholders, many of
whom own and operate companies that have facilities in
different parts of the country and, if we hear things are
perhaps a little different in one part of the country than the
other, we work quickly to address that.
In some cases there are reasons for that. It may be that,
one of the kind of game changing things we have done as an
organization is to begin to take more of a corporate approach
to inspections.
So we are looking at a number of issues at the corporate
headquarters level so if there are policies that apply across
facilities it may be that a company's facility that is hit from
an inspection standpoint early on in the process it might
appear to that facility that it's getting a little more
thorough treatment than one that's hit later in the process.
But that is likely only because we have ----
Mr. Harper. My time has expired, Mr. Wulf. My time has
expired. Thank you so much, and I yield back.
Mr. Wulf. Thank you so much.
Mr. McKinley. Thank you, and now 5 yield 5 minutes to one
of my latest friends, Mr. Peters from California, for 5
minutes.
Mr. Peters. Thank you, Mr. Chairman.
Thank you, Mr. Wulf, for being here today. I want to
commend you for the improvements in the CFATS program over the
last few years.
A longer-term authorization or focus on fixing the known
deficiencies in program management have helped to eliminate the
site security plan backlog and start the process of compliance
inspections.
However, a program can only be as good as the statute that
authorized it. So I wanted to talk a little bit about how we
might improve the statute, if you thought that was useful,
starting with effective enforcement.
In your testimony, you note that where issues have been
identified during inspections they have nearly always been
quickly remedied where needed. However, we have utilized our
enforcement authorities to incentivize compliance.
So can you explain to me, Mr. Wulf, what kind of types of
enforcement mechanisms you've been able to use under the
program?
Mr. Wulf. So yes, I appreciate the question. So the
enforcement process within the program I think is in line with
the flexible nonprescriptive approach to the program and our
general orientation to work with facilities to foster
compliance.
So where issues are identified on inspections, we work with
a facility, assuming the facility is working with us in good
faith to resolve them.
So, occasionally, if, for instance, a planned measure that
has been agreed in the site security plan to be put into place
on a certain timeline has slipped on that timeline, it may be
that there has been a change in personnel, sort of a lack of
understanding of what was in the site security plan.
We will work on an agreeable quick time frame to get that
planned measure in place and frequently those sorts of things
are resolved at that point.
If we get into the enforcement structure it is a two-step
process. The first step involves the issuance of essentially, a
notice of noncompliance, which gives a facility formally a
certain period of time, generally, not too much time to come
into compliance and I am pleased to say before a penalty order
is issued--I am pleased to say that 95 percent of the cases
that is enough to bring the facility into compliance.
Where if we get to a point where a facility has run through
that period we will go ahead and issue a penalty order. We do
take into account facility status as potentially, a small
business, a facility's ability to pay in determining the
ultimate penalty.
It's only happened in a small number of cases.
Mr. Peters. I was going to ask you, so how many times have
you had to use penalties or cease operation orders for
facilities that aren't executing their----
Mr. Wulf. So we have issued penalty orders in three
instances at this point.
Mr. Peters. Three instances. OK.
So that's the number of times you had to enforce against a
noncompliant facility?
Mr. Wulf. That's the number of times we have gotten to the
point of----
Mr. Peters. To that point, right.
Mr. Wulf. A penalty, probably in about 70 occasions begun
the process.
Mr. Peters. Great. And do you see that the bill that acts
as it's written--does it give you enough authority to do what
you have to do? It sounds like that's going fairly well.
Mr. Wulf. I believe that we have the authority that we need
to do to foster security at America's highest-risk chemical
facilities.
I think it is a regulatory framework that is really well
suited to the mission at hand and to the diversity of America's
chemical infrastructure.
Mr. Peters. Great. Just one other topic then--the effective
and adequate enforcement mechanisms are crucial to preventing
noncompliance. We saw the dangers of noncompliance when the
West Fertilizer Company in West, Texas exploded.
Facilities that don't report their holdings to DHS and are
otherwise not identified to the department still pose a risk to
workers, first responders, and surrounding communities.
What kind of steps have you taken to address the problem of
these so-called outlier facilities?
Mr. Wulf. Yes. So, certainly, a high priority for us,
ensuring that we are getting the word out as widely as possible
to facilities about their obligations to report information to
us through the top-screen.
So we work through industry associations. We participate in
conferences. We drill down to the state and local level through
state industry associations, though recognizing that not all
chemical facilities, companies are members of these
associations.
Wee get creative. We work through----
Mr. Peters. I am going to run out of----
Mr. Wulf [continuing]. The state and local law enforcement,
preparing lists of facilities and comparing information about--
--
Mr. Peters. We are out of time. But I have 5 seconds for
you to tell us if there is anything Congress can improve in
this area. Is there anything you would ask us to improve within
the law?
Mr. Wulf. No. I think we have what we need from an outreach
standpoint.
Mr. Peters. Thank you.
Mr. Chairman, I yield back.
Mr. McKinley. Thank you, and the chair now recognizes Mr.
Johnson from Ohio for 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman, and Mr. Wulf, thanks
for joining us today.
I've heard concerns that any changes to Appendix A
including through guidance might not be subject to notice and
comment.
So would changes to Appendix A by guidance be subject to
public notice and comment based on requirements of OMB?
Mr. Wulf. So yes, I appreciate the question, and Appendix A
is a list of chemicals of interest--320 or some chemicals--is
part of our regulation and so, under the Administrative
Procedures Act it cannot be adjusted or changed without going
through the notice and comment rulemaking process. So as things
currently stand, that would be the----
Mr. Johnson. Even through guidance?
Mr. Wulf. Pardon me?
Mr. Johnson. Even through guidance.
Mr. Wulf. That's right.
Mr. Johnson. OK.
Mr. Wulf. I think it would be considered significant
guidance that would need to go through notice of rulemaking.
Mr. Johnson. OK. Great.
Previously, GAO indicated that DHS does not systematically
solicit feedback to assess the effectiveness of outreach
efforts and does not have a mechanism to measure effectiveness
of your outreach activities.
Mr. Currie, in his written testimony, indicated that DHS
developed a questionnaire to solicit feedback on outreach with
industry stakeholders.
Would you please walk us through the questionnaire and
explain whether it's been effective?
Mr. Wulf. Yes. Absolutely. I am glad to do that.
So, we have taken GAO's recommendations seriously. As you
mentioned, we have developed that outreach questionnaire. I do
believe it is effective. We are in the relative early stages of
its deployment.
We are using it as we go out to conferences as opposed to
going facility by facility during inspections or compliance
assistance visits.
We ask in this questionnaire those who participate in our
engagements to give us some feedback on the content, on the
speaker, on the relevance of the information, on the extent to
which they expect to be using the information to inform their
chemical security risk-based decisions.
You know, the challenge sometimes is to get the
questionnaire into the hands of the people who have actually
participated in the event as we are guests at these
conferences. We don't necessarily control the attendee email
distribution lists.
So we work with organizers of the conference to push it
out. To this point, we have received upwards of 60 responses
back. Ninety-seven percent of those who responded reported that
information was relevant and highly useful.
So we are going to continue to look at how we can expand
the use of the questionnaire. I think it is very much a
worthwhile tool.
Mr. Johnson. Good. OK.
Well, since the last time the department testified before
our committee the Government Accountability Office has made 10
recommendations for improvements to the CFATS program.
What progress have you made on those recommendations?
Mr. Wulf. I appreciate that, and I appreciate GAO's
engagement and very helpful oversight and recommendations over
the course of the year.
I am confident that we are among the most thoroughly
scrutinized programs in the government and pleased that GAO has
recognized our significant forward progress over the year and,
happy to report that we have made a lot of progress in
implementing GAO's recommendations.
I think those recommendations, broadly speaking, fall into
a couple of different bins. One of those focused on our risk
assessment process, our tiering methodology.
We, as I've mentioned in this hearing, made a lot of
progress in developing our new risk-tiering methodology, one
that comprehensively accounts for all relevant elements of
risk. Along with that, we have launched a new and very much
streamlined and user-friendly suite of online tools to
facilitate tiering.
I am confident that when GAO issues its next report it will
recommend or it will close out the remaining recommendations
related to our development of our tiering methodology--the
conduct of the tiering peer review among other tiering-related
issues.
The second bin I think concerns, broadly, our internal
processes and controls and, we have made a lot of progress on
that front, too, executing a 95-point action plan to improve
the program, developing standard operating procedures on things
like enforcement and on the conduct of inspections, developing
metrics to measure the effectiveness of the program and,
pleased to report, based upon those metrics, facilities that
are within the program have enhanced their security very, very
measurably under CFATS. It's a program that is working.
Mr. Johnson. Well, great. Well, thank you for your
responses. I yield back, Mr. Chair.
Mr. McKinley. Thank you.
And I now recognize our colleague, Mr. Green from Texas,
for 5 minutes.
Mr. Green. Thank you, Mr. Chairman.
Secretary Wulf, thank you for being here. I have a very
urban district in Houston in East Harris County that's home to
one of the largest petrochemical complexes in the world so I
know how important CFATS is and I'd like to thank you for your
work in implementing these safety standards, and I'd heard a
lot of good things about the work.
I was glad in your earlier testimony or question you
acknowledged that CFATS, because it was called anti-terrorism
standards, we are more likely to have a natural disaster than
we are a terrorist.
In fact, in my area, I think we could take care of the
terrorists pretty quickly. As I say in Texas, we don't have any
shortage of small arms. So but Hurricane Harvey that hit our
community--and I know the other issue was the--that facility
out in Crosby, Texas, and that's not my area but East Harris
County is.
But a lot of our refineries literally were under water in
the Houston Ship Channel and that's what my concern is and
maybe we need to focus on that, although, admittedly, when we
passed the Chemical Facilities Anti-Terrorism Standards program
we didn't think about natural disasters.
But now we need to recognize that because about every 7
years in Houston, Texas or southeast Texas we get a tropical
storm or a hurricane, and although the last one with Harvey I
don't know how we could ever plan for 55 inches of rain in 4
days.
So but can you talk about how subjecting CFATS to a yearly
authorization through the appropriations process before 2014
put a burden on the program?
Mr. Wulf. Yes, absolutely. Glad to. Until we attained long-
term authorization, we were subject to the vicissitudes of the
appropriations process.
So going from year to year or, worse, from continuing
resolution to continuing resolution. When the government shut
down----
Mr. Green. I think every federal agency has that problem.
Mr. Wulf. Yes. When the government shut down in October or
November--October 2013, our stakeholders didn't know whether
CFATS continued in force.
We didn't know if we needed to take enforcement action to
address a national security threat at a CFATS facility, whether
the underlying statutory authority was in existence.
So long-term authorization in December of 2014 was huge for
us. It enabled us to plan for and execute important
improvements to the program, some of which I have detailed here
today.
It provided our industry stakeholders with the certainty
that they deserved as they thought through making significant
investments in CFATS-focused security measures.
So I cannot underscore enough how important continuing
long-term authorization for the program is.
Mr. Green. Do you think we need to put specific language in
there? Because when we have these shut downs that our committee
doesn't have a whole lot to do with since we are not
appropriations.
Mr. Wulf. Yes.
Mr. Green. But our military still functions. Our law
enforcement functions. Why would we not want our terrorism
safety or even if there is a natural disaster during a shut
down? So do you think we need specific language to say that?
Mr. Wulf. So I think the language we have in the current
authorization does the trick there.
But I think you have summed up exactly the importance of
longer-term authorization to continue--the program continues in
force regardless of what is happening on the appropriations
front.
Mr. Green. Do you currently feel that the facilities
labeled high risk have enough incentive through the program to
reduce that risk and do you see facilities switching tiers
commonly after a high risk designation?
Mr. Wulf. So, as we have gone through the retiering process
using our new risk tiering methodology, we have seen some
shifting across tiers. We have seen some new facilities come
into the program, some previously designated high-risk
facilities move out of the program. But I do think that
organically the CFATS program promotes the consideration by
facilities of safer processes, consideration of different
chemicals.
So, there is an incentive for facilities to lower their
level of risk by doing things differently based on the CFATS
program and over the course of the program we have seen about
4,000 facilities that have changed their processes, changed
their chemical holdings, and dropped out of high-risk status,
which we view as a good thing.
Mr. Green. Well, in a way that's good--they are responding
to the threat. Has the industry response been in revamping of
the chemical safety assessment tool, or CSAT?
Do you feel the program is now easy enough to comply with
if you're a small-scale manufacturer?
Mr. Wulf. Yes, I do. I think we made some significant
strides forward with CSAT 2.0, that new online suite of tools.
The amount of time it now takes facilities to work through the
process of submitting a top-screen or a site security plan has
been cut by about 75 percent across the board.
The tool is much simpler. It's more of a Turbo Tax sort of
model. Duplicative irrelevant questions are no longer seen by
facilities. So greatly simplified and we have had really
tremendous feedback from our industry stakeholders on it.
And, in many respects they helped us to develop it. They
were closest to the pain of working through the old system.
They were able to help us understand ways in which we could
simplify it and make it more user friendly.
Mr. Green. Well, Mr. Chairman, thank you for your patience.
In my area, we don't have those smaller facilities that you
have.
Mr. Wulf. Yes, I know.
Mr. Green. Chemical plants and refineries who run 250,000
barrels a day. So but I know that we like to go where the
problems are, not just be a paper pusher.
So thank you, Mr. Chairman.
Mr. Wulf. Yes. You're in the center of the petrochemical
universe.
Mr. McKinley. Thank you.
And the chair now recognizes Mr. Duncan from South Carolina
for his 5 minutes.
Mr. Duncan. Thank you, Mr. Chairman.
Back in 2014, I was on the Homeland Security Committee and
I worked with them to help reauthorize CFATS for 4 consecutive
years.
H.R. 4007, Protecting and Securing Chemical Facilities from
Terrorist Attacks Act of 2014 was under jurisdiction of both
Homeland and Energy and Commerce. Now we are back to yearly
funding extensions and this creates instability for both DHS
and companies operating under the program.
If Congress were able, Mr. Wulf, to provide multi-year
authorization like we did back in 2014 how can we ensure DHS
will update the program as intended?
Mr. Wulf. So we are very incentivized to try to continually
improve the program. I think a long-term authorization gives us
the stability that we need to focus on those improvements.
We have made a number of them over the course of the last 4
years. We are eager to push forward through the rule making
process to engage with our stakeholders through notice and
comment in a number of different areas----
Mr. Duncan. How can we be certain that you will take the
stakeholders' comments into consideration?
Mr. Wulf. I think we have demonstrated over the course of
the last 4 years that we take very seriously our stakeholders'
comments and that we seek to involve them in the program.
This whole effort is a shared commitment. It wouldn't work
without the buy-in of our stakeholders. We have put into place
tens of thousands of security measures at facilities across the
country.
So, they know in many ways best ways in which we can
improve the program. That's why we have involved them in the
development of the new risk-tiering methodology. That's why we
have involved them in the development of the new suite of
online tools and their input on those fronts has been
invaluable.
Mr. Duncan. I think as long as they know how to comply and
what you're going to expect of them it makes it easy for them.
Let me shift gears for just a minute. There is a company in
my home county, Austin Powder, and it's a company facility
there in Clinton and previously noted how duplicate regulations
cost them substantial amounts of money.
The facility has explosive regulated both by the ATF and by
DHS under CFATS. The compliance mandated under CFATS does not
measurably improve their facility security. It seems ATF
adequately protects against theft and diversion.
So given the cost of compliance, which stakeholders in the
explosives industry face in return for no measurable security
gain, what is your opinion on exempting those in the explosive
industry already regulated by ATF from the CFATS program?
Mr. Wulf. So we are certainly sympathetic--sensitive to
concerns about duplicative regulation. I think in the case of
explosive materials, there is regulation in place with ATF.
I think we are talking about a universe of about 30
facilities that are regulated both by CFATS for explosives only
and also by ATF. ATF and DHS have different programs but I
think they are both solid programs. So, we are open to working
with the committee on a path forward there.
I am not sure I completely agree with the premise that
CFATS doesn't provide any additional security benefit but there
are certainly measures in place at ATF-regulated facility. I've
spent a dozen years myself at ATF. A very solid program there.
And so, among the things that I would not lose too much sleep
over exiting the program, explosives are one of those.
I will note, though, that ATF's program does not address
explosives' precursor chemicals. So, I think many of those
facilities receive benefits still under CFATS with respect to
the regulation of security of explosives' precursor chemicals--
for instance, ammonia nitrate.
Mr. Duncan. So do you think the redundancy and overlap of
regulations are OK? I don't hear a whole lot of jurisdictional
prejudice in your answer there.
We are going to look at that. We are going to look and see,
because what we are trying to do is make sure that businesses
aren't faced with multiple compliance burdens when one agency
can handle it, and we run into that too much in government, I
think, where you've got this jurisdictional overlap and one
agency is coveting that and they don't want to give it up when
there maybe be a better agency that can handle it. And in this
case, DHS might be the best agency and take it away from ATF--I
don't know that--or vice versa.
Mr. Wulf. Yes. We are happy to work with you on that.
Mr. Duncan. Thank you.
Mr. Chairman, I yield back.
Mr. McKinley. Thank you. Now I recognize my colleague, Mr.
McNerney from California, for 5 minutes.
Mr. McNerney. I don't know if I sense a little reluctance
in that acknowledgment, Mr. Chairman.
I thank the panelist. Mr. Wulf, I missed your testimony and
I apologize about that. Now, there are several categories of
threats. I am going to list a few of them.
There is natural disasters. There is physical attacks.
There is industrial accidents and cyber attacks. Do you feel
that cyber attacks are on par with the others in terms of risk
to public safety and health?
Mr. Wulf. I think cyber is a very important threat vector
and I think that, no question but that America has critical
infrastructure and that includes America's chemical
infrastructure is in the cross-hairs of cyber criminals.
Mr. McNerney. Well, I've learned from the utility industry
that there is some difficulty getting information sharing
across because of lack of security clearance within the utility
industry mainly because of the length of time it takes to get a
security clearance.
So you think that that is also an issue with the chemical
industry is a lack of security clearance within the industry
prohibiting information sharing that could be helpful in safety
areas?
Mr. Wulf. I think, certainly, getting appropriate folks
across the industry cleared to receive classified threat
information is helpful.
We maintain a program called the private sector clearance
program through which we grant clearances to folks in the
private sector to include those who serve on our sector
coordinating counsels.
So I think, certainly, to the extent we can streamline that
process, that's a good thing.
Mr. McNerney. Would it be helpful for the legislative
branch to get involved in streamlining that process or would
that be cumbersome?
Mr. Wulf. I think we are working the issue. It is a high
priority for us. I think it's sort of a process thing, in my
view, that, we need to continue to focus like a laser beam upon
and we are certainly committed to doing that.
Mr. McNerney. Well, suppose someone goes into the industry,
say, from the Department of Energy with a pretty high clearance
level--a Q clearance or some clearance--top secret clearance.
How long would it take them to get the clearance to get
information sharing once they go into industry?
Mr. Wulf. Yes. I would hope not very long. I might have to
get back to you on exact time lines.
Mr. McNerney. Yes. I have a specific case where it took
someone with a top secret clearance 18 months to get a secret
clearance in industry.
Mr. Wulf. Yes, not good.
Mr. McNerney. OK. Well, I'd like to follow up on that and
hear specifically how that that's going to be----
Mr. Wulf. Happy to talk with you more about that program.
Mr. McNerney. OK. Do you think that there is--on a
different subject, is there resistance to safety regulations by
industry of regulations that actually provide safety to the
public?
Mr. Wulf. Although our security-focused regulation has
positive benefits from a safety standpoint, I don't know if I
am in a position to talk about the extent to which there may or
may not be resistance to EPA's or OSHA's safety-focused
regulations.
I would hope not. I think there is a strong culture across
the chemical industry of safety and security. So my expectation
is that they are meeting requirements across the board.
Mr. McNerney. Right. It just takes one bad player to cause
an accident to hurt the whole industry.
Mr. Wulf. Yes. Absolutely.
Mr. McNerney. So I think we both and industry understand
that and are anxious to work with regulatory bodies such as
yours.
Mr. Wulf. Yes.
Mr. McNerney. OK. Mr. Chairman, I am going to yield back.
I'll give you a minute.
Mr. McKinley. Thank you.
Now the chair recognizes Mr. Flores from Texas for 5
minutes.
Mr. Flores. I thank the chairman and I thank this
subcommittee for holding this important hearing.
On April 18th, 2013 one of the communities in my district,
that being West, Texas experienced a disastrous explosion that
took 15 lives. Twelve of them were first responders. So CFATS
is important to me and to my district.
Furthermore, it was really disturbing to learn from the
findings that were released 3 years later that this wasn't an
industrial accident. It was actually arson.
That said, the citizens of West deserve great credit for
how they've been resilient in rebuilding their community and
the rebound of West today is really remarkable.
As the current authorization for CFATS is set to expire in
January of next year, we must carefully consider how the
program is measured and what improvements should be made or
could be made in the reauthorizing legislation.
I want to thank all of today's witnesses for their insight
in this hearing. And so now I'll move to my question for Mr.
Wulf.
Some people argued that the greater public sharing of
chemical vulnerability information--or the CVI, as we call it--
is necessary for communities to be better prepared.
So, Mr. Wulf, I have three subquestions under that. First
of all, to whom does Section 2103 currently allow access to
CVI?
Mr. Wulf. So that section of the statute currently allows
access to state and local government officials who essentially
have a need to know that information in performing their
official duties in the first response arena--emergency planning
arena.
Mr. Flores. So the next question would be do you think it's
wise to have CVI publicly disclosed?
Mr. Wulf. I do not. The reason we developed the chemical
terrorism vulnerability information protection regime was to
keep close hold among those who have a need to know information
about high-risk chemical facilities and the chemical holdings
at those sites.
Mr. Flores. OK. And so that brings us to the next one. Some
people have suggested that local emergency planning commissions
should have access to CVI. Is there a reason to not provide it
to them?
Mr. Wulf. So local emergency planning commissions perform
an important function. But they vary in their--in their
composition. So there are certainly folks who are members of
local emergency planning missions who do have a need to know
information about high-risk chemical facilities and chemical
holdings.
So those first responders, those emergency planners, we
absolutely want to ensure that they have the information they
need to perform their official duties.
But we need to balance that with the need to ensure that we
are not sharing so broadly that we make it easy for terrorists
and other adversaries to obtain information to effectively have
a roadmap to America's highest risk facilities.
Mr. Flores. If you have first responders that are CVI
trained, would it be appropriate to share the information with
those first responders?
Mr. Wulf. Absolutely.
Mr. Flores. OK. Mr. Chairman, this has been helpful and I
thank you.
I yield back the balance of my time.
Mr. McKinley. Thank you very much, and now the chair
recognizes Mr. Cardenas from California for 5 minutes.
Mr. Cardenas. Thank you very much, Mr. Chairman. I
appreciate the opportunity to discuss this very, very important
issue that affects all Americans.
Thank you for being here, Mr. Wulf. Earlier this year at a
subcommittee hearing before the House Committee on Homeland
Security, chemical safety advocate Paul Oram testified that
facility owners should be required to develop and maintain
employee input plans.
Mr. Oram commented that, ``Employees are often the most
vulnerable in the chemical release but also the most
knowledgeable about problems and remedies.''
So with that, has DHS encouraged or required facility
owners to consult with employees when developing security
vulnerability assessments?
Mr. Wulf. So I appreciate the question. We certainly urge
companies--we urge high-risk facilities to involve their
employees in development of site security plans and I would say
that almost across the board employees are involved in the
development of those plans.
The 2014 long-term authorization act makes clear that to
the extent practicable, facilities should be involving employee
and my expectation and my general understanding is that
facilities are doing just that.
I mean, facility employees are the ones developing plans.
Mr. Cardenas. So the facilities' owners--these plants
voluntarily give that feedback to you? If it's not one of the
checklist things that the department asks, by the way, do you
have an employee input plan on your site?
Mr. Wulf. It is not a checklist thing. We are not really a
checklist program. But we are a program that engages very
constructively with facilities. So that is voluntary feedback.
That's the experience----
Mr. Cardenas. OK.
Mr. Wulf. --of our inspectors working with these
facilities.
Mr. Cardenas. So that feedback right now is ad hoc? It's
just as----
Mr. Wulf. I don't know if I'd characterize it as ad hoc,
and there is not a check box.
Mr. Cardenas. OK. Well, I'll describe it as ad hoc if there
is not a formal process. Five years ago when the last oversight
hearings on the CFATS program then under Secretary Rand Beers
noted on the record that the department's strategic
communications plan may eventually include ``systematic
outreach to facilities including employees at the facilities.''
Has systematic outreach become the norm in the CFATS
program?
Mr. Wulf. Yes. I am pleased to say that it has and we have
an outreach engagement plan. We identify areas of priority from
year to year and we focus on ensuring that we are getting the
word out to those relevant communities and that certainly
includes to the organized labor--relevant organized labor
communities.
Mr. Cardenas. Mr. Oram also stated that public confidence
is critical to the success of the CFATS program and the secrecy
is not in the best interest of the communities.
I couldn't agree more. As a parent, I would not want to
know if I lived down the street from a facility that puts my
family at risk. I would want to know as much as we believe
possible.
Do you agree that this is important to proactively engage
communities living near or next to these facilities?
Mr. Wulf. So I think, again, it's a balance. I think we
need to ensure that those who are charged with protecting our
communities, our first responders, our emergency planners have
the information that they need. The balance, though, is in
ensuring that we are not making sensitive information so widely
available that it can be accessed by those who would seek to do
harm to the community. So it's a balance.
Mr. Cardenas. So what, if any, specific steps has DHS taken
to improve community outreach and engagement through the CFATS
program?
Mr. Wulf. So, as part of our outreach engagement plan we
are out talking to local emergency planning committees. Those
can include members of--and frequently do include members of
the community and public officials, first responders, emergency
planners. That is one of the main means by which we are out
across the relevant communities.
Mr. Cardenas. Thank you. I can't stress enough how
important it is for employees and local members of the
community to be involved in disaster assessment and
preparedness process.
These individuals are the ones bearing the greatest risk.
They work, live, shop, walk to school, pray, and drive to jobs
near these facilities and they might be at high risk and they
need to know about that. And yet, they are often left in the
dark when it comes to disaster preparedness. Their voices are
critical to the facility and community safety and I hope that
we can work together to improve engagement efforts under the
CFATS.
So I appreciate your time. Thank you very much. I yield
back.
Mr. Wulf. Thank you.
Mr. McKinley. Thank you very much.
The chair recognizes Mr. Walberg from Michigan for 5
minutes.
Mr. Walberg. Thank you, Mr. Chairman, and thank you, Mr.
Wulf, for being here.
In your written testimony you indicate that DHS has
conducted over 3,500 compliance inspections and that, and I
quote your statement, ``Nearly across the board results of
these inspections have been positive.''
That's good. Could you elaborate a little bit more for us?
Mr. Wulf. Yes. No, I am glad to.
So we are in sort of steady state compliance inspection
phase. Most of the inspections we are doing across the country
are post-site security plan approval inspections.
So we are assessing the extent to which facilities are
doing what they signed up to do in developing their site
security plans, whether they are implementing those plans,
whether they are putting in place new security measures along
the time lines agreed to in the plans and I'd say almost across
the board that is absolutely happening. That has been our
experience in conducting these inspections.
Where we have identified issues nearly always we are able
to resolve those with the facility in pretty short order.
So, the chemical industry stakeholder community is taking
its obligations seriously under CFATS. Those facilities that
have been identified as being at the highest risk of terrorist
attack or exploitation that are covered by CFATS are taking
their obligations seriously and are implementing their plans.
They have put into place literally tens of thousands of
security measures at facilities across the country. So, really
appreciate their commitment to the program and their buy-in.
Mr. Walberg. Do you sense and your inspectors sense that
they see you as a partner with them--that it's a benefit and
not a burden?
Mr. Wulf. I do. Yes, I do. And I think, the program is one
that lends itself to a little bit of that partnership approach.
Certainly, we are regulators.
But this is a nonprescriptive regulatory framework. So we
are in a position to work with facilities to identify security
measures within a site security plan that make sense, given
that specific facility's unique circumstance.
So, really pleased to be able to work with facilities that
way, and we will say also that we prioritize not just being out
there to conduct inspections but to provide compliance
assistance.
So to talk with facilities, to talk with those who own and
operate those facilities about options for meeting the spirit
of the 18 CFATS risk-based performance standards.
So, I think it is a really unique and--I want to say
uniquely effective program that is well suited to the diversity
of the Nation's chemical industry infrastructure.
Mr. Walberg. I encourage that. We certainly know of other
entities that are involved in regulating and inspecting at the
work site, at the business, that there is no relationship. This
seems to be a partner relationship.
Mr. Wulf. Yes.
Mr. Walberg. This is an important----
Mr. Wulf. Absolutely, and we rely on our industry
stakeholders very much to help us think through potential
improvements to the program, to develop new tools like our new
and improved suite of online tools through which top-screens
and site security plans are developed to help us develop things
like our new risk-tiering methodology.
So, in a lot of ways it is a thriving partnership
relationship with our entire stakeholder community. I am very
grateful for that.
Mr. Walberg. Thank you.
Your written testimony notes that where necessary DHS has
utilized our enforcement authorities to incentivize compliance.
Can you elaborate on that? Explain that a little more?
Mr. Wulf. Yes. I am glad to.
So we have a two-step enforcement process. As I mentioned,
the vast majority of the time we are able to resolve issues
without getting into the enforcement process.
But in about 70 instances over the history of the program
we have begun the process. We have issued a notice of not
compliance that, under the law, gives a facility a specific
amount of time to come into compliance.
I am happy to say that most of time that is sufficient
where cooperative work with the facility has worked to nudge
the facility into compliance.
But if that doesn't work we will go ahead and issue a
penalty order, and in all cases--and it's only three cases in
which we have had to get to the penalty order--that has been
the thing that has compelled compliance.
So our overwhelming bias is to work with facilities and,
certainly, the vast majority of facilities out there are
acting, in my experience, in good faith and are committed to
the program and understand--committed to meeting their
obligations under CFATS.
But in the small number of instances where that is not
happening, we will go ahead and use those enforcement
authorities.
Mr. Walberg. Thank you.
I yield back.
Mr. McKinley. Thank you very much.
Now the chair recognizes Ms. Matsui from one of the three
possible states of California for the next 5 minutes.
Ms. Matsui. I think we are still going to be united--still
one state.
Thank you, Mr. Chairman. Today we have talked a lot about
the industries and facilities that we calmly associate with
chemicals. But the CFATS program also covers many types of
facilities that we don't always think of as using high-risk
chemicals like hospitals and universities.
In Sacramento, we have four major hospital systems
including an academic medical center, which represents the
second largest employer in the district.
So I am pleased that DHS has emphasized the importance of
stakeholder involvement, and I've also heard that the agency
and hospitals in California collaborate well.
You've emphasized the CFATS as a nonprescriptive regulatory
framework, which gives flexibility to regulated facilities.
What are some of the unique challenges that hospitals face
under CFATS and how has DHS worked with hospitals to tailor
security measures to those challenges?
Mr. Wulf. And I appreciate that question. You're absolutely
right. The universe of facilities covered under CFATS is a very
broad one.
So, we prioritize getting out across the relevant
communities and working to address the unique circumstances of
facilities such as hospitals.
So hospitals, college university campuses can't necessarily
be secured in the same way as a more traditional chemical
manufacturing or chemical distribution site.
We need to maintain reasonably open access to the site. You
have members of the public coming in and out so, what we have
recommended in cases like that and in the conduct of our
compliance assistance with those sites is taking kind of an
asset-based approach to security.
So you're not necessarily constructing a perimeter around
the entirety of the hospital but ensuring that where those
sensitive chemicals are being held you have the requisite
security in place. So that tends to be the approach for
facilities such as hospitals.
Ms. Matsui. OK. Thank you.
I understand the CFATS has improved its risk-based
performance standards and risk calculations based upon actual
threat level and facility vulnerability.
It makes me wonder--as climate change is increasing the
frequency and severity of extreme weather if the CFATS couldn't
be used to address weather-related vulnerabilities.
Recently, the Chemical Safety Board released their
investigative report on the Arkema chemical plant fire and
explosion in Crosby, Texas. The CSB found that the plant was
not adequately prepared for the extreme flooding that occurred
during Hurricane Harvey and that a number of equipment failures
occurred as a result.
The CSB also indicated that other facilities in flood prone
areas face similar problems and made recommendations on how to
address some of these risks.
I think that many of these recommendations are relevant to
CFATS facilities. Do you believe that the damage extreme
weather causes facilities covered by CFATS is a serious threat
to the safety of surrounding communities?
Mr. Wulf. I think, certainly, natural hazards are just that
and we have certainly seen them impact chemical facilities.
Ms. Matsui. OK. Do you think a CFATS security plan should
consider the threat of severe weather and help protect facility
worker and communities? Why or why not?
Mr. Wulf. So I think it's important that CFATS be able to
stay focused on security. It is a security-focused anti-
terrorism program.
But I will note that there is a lot about the CFATS program
and about security measures that are put into place or that are
required to be put in place at CFATS-covered facilities that
has a positive impact in addressing the facilities' resilience
in the face of natural disasters.
So, we require facilities to develop response plans, to
conduct training, to conduct exercise, to conduct exercises to
make contact with their local first responders and all of those
things are equally important in both the terrorism context, in
the deliberate manmade attack context, as well as in the
natural disaster context and we have seen it play out in
instances in which, for instance, a tornado hit a CFATS-covered
facility in Illinois and it was very well prepared.
Ms. Matsui. So you're really preparing--in essence, to
really coordinate these activities more in the sense of part of
the program to review how to do this so, in a sense, it's part
of the program?
Mr. Wulf. I don't believe it makes sense to make it a
formal part of the program. I think it's important that we
retain our focus on security. But, again, I think their
security and safety are very much complementary.
There are agencies that focus squarely on the safety issues
on those hazards. We work very closely with the likes of EPA,
OSHA, with our friends at FEMA, within the Department of
Homeland Security.
So I think as a Federal Government community we are very
much committed to that.
Ms. Matsui. OK. Thank you very much.
I yield back.
Mr. McKinley. Thank you. And now the chair recognizes the
chairman of the full committee, the gentleman from Oregon, Mr.
Walden, 5 minutes.
Mr. Walden. Thank you very much, Mr. Chairman, and thanks
to you for holding this hearing and, Mr. Wulf, thank you for
being here. We appreciate your guidance.
I just have a couple of questions. You've been with the
program a long time--I won't say a very long time--a long time,
and, frankly, many people credit your leadership and your
committed staff with the gains the program has made in recent
years. So, we go through this with different agencies and,
frankly, depending on who's in charge doesn't seem to matter
sometimes who's in the White House.
So this isn't a partisan issue because we have seen it in
other agencies. But having seen how a less committed senior
political leadership can wreak havoc on a program, how do we
know these reforms are permanent?
Mr. Wulf. Thank you. Thank you, Mr. Chairman. I appreciate
very much the kind words. We have a great team in place within
our program and great buy-in and commitment across our industry
stakeholder community. So it's very much a team effort.
I can tell you that our new senior political leadership
with the change of administration is very, very committed to
the future of CFATS. It remains a priority with this
administration, very focused on ensuring that we are able to
maintain positive momentum that we have the resources we need
to do just that.
So, we remain focused like a laser beam. I've seen nothing
but support from the upper reaches of the department and the
administration.
Mr. Walden. Right. And some of the witnesses on the second
panel in their testimony today on CFATS that they say that
CFATS has made serious improvements in problems it was facing 4
years ago.
What do you attribute the progress of CFATS program over
the course of the last 4 years?
Mr. Wulf. I appreciate that question.
I think, first and foremost, I attribute the progress we
have been able to make to the environment of stability that has
been fostered by long-term authorization on which this
committee showed so much leadership in 2014.
So that gave us the stability that we needed to plan for
and execute many of the improvements I've detailed here today.
It afforded our industry stakeholders the certainty they
deserved as they were thinking through making significant
investments in CFATS-focused security measures.
I would say also I would credit a lot of the progress to
the spirit of openness and transparency which we have strived
to operate over the past 4 years.
So, we have a very strong relationship with our industry
stakeholders. We take their feedback very seriously. We involve
them in efforts to improve the program. We very much value
their input.
And, thirdly, I would point maybe to a willingness to
change processes--to not stick with the status quo to do game
changing things like take a corporate approach to inspection
activity, to take a fresh look at our suite of online tools and
see what we can do about making them more user friendly, more
streamlined, and more useful in the development of top-screen
risk assessment surveys and site security plans.
So all of the above but at its core, the stability of that
long-term authorization has been absolutely key.
Mr. Walden. Well, and as chairman of the full committee,
you have my assurance that we are going to move expeditiously
to reauthorize this work.
Mr. Wulf. We appreciate that.
Mr. Walden. We know of its critical importance. You keep
this up, you may get cloned and your staff too because not
every program and agency achieves these kinds of results.
So we do appreciate your leadership and that of your team
and you look forward to working with you so we meet our
deadlines here and get this reauthorized.
So with that, Mr. Chairman, I'd yield back.
Mr. McKinley. Thank you very much.
The chair recognizes Ms. DeGette from Colorado for 5
minutes.
Ms. DeGette. Thank you, Mr. Chairman.
Thank you for coming today, Mr. Wulf. Right on the border
of my district is the Suncour oil refinery.
There are 53,000 people that live within a 3-mile radius of
that refinery and that includes over 5,000 children under 5
years old who are particularly susceptible to air toxins.
The neighborhood that's the closest to the refinery,
Elyria-Swansea, has a population that's over 80 percent Latino
with over 25 percent of the residents living with incomes below
the poverty line, and as you know, these characteristics are
pretty common for neighborhoods that are nearby industrial
facilities.
So I wanted to ask you would you agree that while security
is important for all chemical facilities, additional
considerations like mitigation are necessary when you're
dealing with urban facilities with large populations right
nearby. Security is not the only issue that these institutions
or that these refineries and others are facing.
Mr. Wulf. Well, sure. Yes. Absolutely.
Ms. DeGette. And one thing that happened over at Suncour we
have had problems with interruptions from the external power
supply and, as you know, even brief disruptions to the power
supply can cause harmful chemical emissions.
In October 2016, the Suncour refinery suffered an
accidental power failure that led to release of a yellow cloud
of smoke, which closed the highway and caused 14 local schools
to go into lockdown.
And then they had a second power outage in March 2017 which
released more than 500 pounds of sulfur dioxide gas and a
hundred pounds of hydrogen sulfide gas.
So my question is--I know, you look a little puzzled
because--but I am wanting to know is power supply security a
consideration when the Department of Homeland Security
considers site security plans submitted by high-risk
facilities?
Mr. Wulf. So, yes, the power supply is certainly something
that----
Ms. DeGette. Is one of the things?
Mr. Wulf [continuing]. Something to be considered and also
considering what contingencies are in place it is certainly
important from a security perspective when the power goes out.
Ms. DeGette. OK. Does DHS have specific recommendations for
providing a secure power supply under CFATS?
Mr. Wulf. I will get back to you on that, certainly.
Ms. DeGette. Thank you. OK. Now, DHS is not allowed to
disapprove of the site security plan because it lacks specific
security measures. Is that right?
Mr. Wulf. That is correct. It's a nonprescriptive program
so we work with facilities to assess what makes sense and meets
the intent of the relevant risk-based performance standards.
Ms. DeGette. So would you consider a facility secure if it
suffered a significant chemical release due to a brief power
outage or would that show that the facility might be
susceptible to deliberate disruption? Would you look at that?
Mr. Wulf. It would be something we would look at,
certainly.
Ms. DeGette. Now, the CFATS program is intended to protect
chemical facilities from terrorist attacks. Is that right?
Mr. Wulf. That is correct, to protect against terrorist
attack or exploitation. The majority of the facilities we have
in the program that have been designated at high risk are
designated as such owing to the threat of theft or diversion of
chemicals----
Ms. DeGette. OK.
Mr. Wulf [continuing]. Being taken offsite and deployed.
Ms. DeGette. Off site. So the Suncour refinery incidents I
talked about before caused by accidental power outages they
would be included in the scope of the program though, right?
Power outages that are causing chemical releases.
Mr. Wulf. Yes. The power situation and resilience in the
face of power, ensuring that the security systems are resilient
is important.
Ms. DeGette. Now, what about emissions caused by
negligence, natural disasters, or other types of actions? That
would not be included?
Mr. Wulf. That is not within our purview. But, as I've
mentioned here, many of the measures that we require to be put
in place through CFATS such as the conduct of training,
exercise the development of response plans that are
applicable----
Ms. DeGette. They would----
Mr. Wulf [continuing]. In both the natural disaster context
or manmade attacks.
Ms. DeGette. They would have that potential spillover
effect, right?
Mr. Wulf. Right. Right. A complementary----
Ms. DeGette. Yes. But, Mr. Chairman, the reason why I bring
this up is because security is really important to me but there
is so many other issues.
I would hope that we can also come to bipartisan agreement
on how we address these toxic releases, because in my district
and many other districts in the country, people are living
right next to these plants and even if it's not a terrorist
attack or a natural disaster, they are at risk of contamination
every day.
So I would hope that would be another issue that we could
work on in this committee.
Thank you, and I yield back.
Mr. McKinley. Thank you very much, and I hope we can
continue that dialogue on that.
Now the chair recognizes from Texas Mr. Olson for 5
minutes.
Mr. Olson. I thank the chair, and welcome, Mr. Wulf.
As you know, I am a congressman from Texas 22. I like to
call that the suburbs of the energy capital of the entire
world, the massive petrochemical complex along the Port of
Houston and Houston ship channel.
Mr. Wulf. Absolutely.
Mr. Olson. As you know, there are lots of nasty chemicals
on our highways and our railroads. In fact, this last month,
Houston had the anniversary but remembered that--see, was it in
1976 had a tanker turn over a truck with ammonia.
Six people died. Over 60 were hospitalized. That was right
by Interstate 610 U.S. 59, right by the Galleria. I know that's
not CFATS, but my point is those chemicals are all over our
roads, and that's just ammonia going by traffic.
It's been talked about, some of the issues with the Crosby
fire during Hurricane Harvey. I want to talk about cyber
attacks, because the bad guys now are adjusting to attack us
through cyberspace.
What happened at Crosby was a failure of the backup system.
They had backup power but they didn't test enough. They fired
up for maybe a minute or two--hey, it's working. It had to
work. It didn't. And as you know, the chemical--once you lost
control of the process it was going to come through and have an
emission.
And so terrorists could easily hack into there and open up
those things, do exactly what nature did. So how is CFATS
adapting to terror attacks through cyberspace?
Mr. Wulf. Yes, you're absolutely right. Cyber attacks--very
significant threat vector. Chemical facilities vary in the
level to which cyber systems are integrated with their
industrial control systems, with their process systems, and,
for that matter, with their security systems.
But there certainly exists a decent population of
facilities where those systems are very much integrated and so
one of our risk-based performance standards--and I think this
was in place before any folks were thinking about
cybersecurity--one of the 18 risk-based performance standards
under CFATS focuses specifically on cybersecurity.
Mr. Olson. All right. Good.
Mr. Wulf. So we have trained a large number of our
inspectors to work with facilities that have the fuller
integration of cyber systems with their industrial control
systems.
We have cyber experts on our staff at headquarters who
review those facility site security plans and provide guidance
to the inspectors in the--in the field.
We ask facilities to put in place sound cybersecurity
practices or other site security things--a very important part
of our program.
Mr. Olson. Thank you. That is music to my ears.
More of a softball question for you. As you noted, CFATS
was authorized a little over one decade ago. Looking back,
could you talk about the single biggest lesson learned that
you've had the first years of the program? What's one thing
you've learned over those first couple years?
Mr. Wulf. So I think the most important thing is that it
takes a community to secure America's chemical infrastructure--
that it's not something we can do alone and it's not something
we can do without the feedback of our industry stakeholders.
So, the importance of transparency, the importance of
openness, the importance of a community wide approach. A shared
commitment to chemical security is absolutely key and I think
as a result we have seen a great deal of buy-in and a great
deal of commitment across our community of owners and operators
of high-risk chemical facilities.
Mr. Olson. Thank you. That brings up the next question and
that is domestic community. How about international community?
As you note in your opening statement, the threats we have
seen in our homeland have spiked up following terrorist attacks
overseas.
NATO and our allies in Europe are dealing with these
attacks every single day as are allies all across the world.
Can you discuss how our CFATS program compares with their
programs and are we exchanging data with NATO, with other
countries? Are they exchanging with us? Are we working together
to address this problem?
Mr. Wulf. That's a great question, and we are prioritizing
international outreach. So I actually have the privilege of
chairing a G-7 global partnership working group on chemical
security.
We are engaging with our European Union partners and a
number of other nations to sort of share best practices, to
compare notes on chemical security.
I will tell you that what we are doing here is in many,
many ways the envy of the world--significantly more
comprehensive.
There is a large threat out there. We have been relatively
privileged not to have as many chemical-focused attacks. But no
question adversaries around the world continue to seek out and
to use in attacks chemicals of exactly the sort that trigger
coverage under CFATS.
So, we need to remain vigilant. There are other approaches
to securing certain chemicals, in particular, IED precursor
chemicals. In Europe, that seemed to be making some headway. I
think we want to learn from our colleagues over there what is
working as we think through potentially new approaches at the
point of sale to high threat IED precursor chemicals, whether
of a voluntary or a regulatory nature and that's probably
another hearing for another day. But we learn a lot from our
international colleagues and I think they learn a lot from us.
Mr. Olson. I thank you. So my time is expired.
A final closing comment--you always have a standing
invitation to come to Houston, Texas, see all that stuff with
your own eyes. Also, enjoy the best barbecue at the Swinging
Door in Fort Bend County and also the best Mexican breakfast at
Bob's Taco Station in Rosenberg, Texas.
Mr. Wulf. OK. What was the first one? I want to make----
Mr. McKinley. OK.
Mr. Olson. The Swinging Door. That's in Richmond. Bob's
Taco Station is in Rosenberg.
Mr. Wulf. All right. We are down there quite a bit so I
will----
Mr. Olson. Yield back.
[Laughter.]
Mr. McKinley. Thank you.
Mr. Olson. Thank you, Chairman.
Mr. McKinley. The chair now recognizes the very patient
member from Georgia, Mr. Carter, for his 5 minutes.
Mr. Carter. Well, it's certainly going to be hard to follow
that but I'll do my best.
Thank you, Mr. Wulf, for being here. I appreciate it.
I want to echo the comments of the chair of the full
committee. Just from listening to you, it appears that you have
a firm grasp of this and have a handle on it and I appreciate
that. That's good to know.
I wanted to ask you, it appears that improvements have been
made in the program as it's gone along, and from what I
understand in some of my reading that since the implementation
of CFATS the GAO makes a number of recommendations that appear
to have improved the program, and I just wanted to ask you
specifically about two things--: vulnerability and economic
consequences. Those two things are of concern to me and I just
wanted to ask, have you changed your overview of these two
things, particularly of economic consequences? Or the
management of the program--have you tried to address this at
all?
Because I believe that GAO had noted that that was one
thing that was not taken into consideration enough and that was
the economic consequences.
Mr. Wulf. That's exactly right. So GAO made a number of
recommendations related to tiering and we have taken them all
very much to heart in developing our new and improved risk
tiering methodology which does take a significantly more
comprehensive approach to addressing all relevant elements of
risk to include consequence, vulnerability as well, looking at
the sort of inherent vulnerabilities associated with facilities
on a facility by facility basis--things like, how chemicals are
stored, the types of containers, among many other things, and
threat.
With respect to economic consequences, we have studied this
very hard in response in response to the recommendation and I
think just makes sense to have done that anyway.
Our ultimate conclusion was that the threshold, which is
actually a classified threshold for significant economic
consequences to the Nation from an attack on a specific
chemical facility, is a pretty high one.
And so, it was based on a review of the facilities in our
program. They were not facilities on which an attack would move
the needle from a risk tiering perspective with respect to
economic consequences.
So it is not included in our tiering methodology right now
but we have the resources. We have the knowledge from the study
to include it as needed if we get to a point where economic
consequences are, potentially, significant enough from one
attack on a single facility.
Mr. Carter. Let me ask you just a couple of simple
questions, if you will. How do you determine who is to comply?
Is that incumbent upon the business itself or do you determine
that or what?
Mr. Wulf. Yes. So the way the process works is that
facilities that have holdings of one or more of our 320
chemicals of interest that are in the regulation self-identify
if they have those chemical holdings at or above the specified
threshold or at or above the specified concentration.
They submit to us what we call a top-screen, so basic
information about the facility, about the chemical holdings,
and we run that through our risk tiering methodology and make a
determination as to whether the facility, based on the totality
of the circumstances of its facility, of its chemical holdings,
of its location as relevant--whether it's in an urban or rural
area, whether that facility is at high risk of terrorist attack
or exploitation, and if it is--and about 10 percent of the
facilities that submit this paperwork to us ultimately are
determined to be high risk--if a facility is issued that
determination we then issue it a risk tier.
So it's placed in one of our four risk tiers and then
embarks upon the process of collaborating with us as it
develops a site security plan that's ultimately approved and
then entering into the regular cycle of compliance----
Mr. Carter. So it is incumbent upon the business to
initiate it?
Mr. Wulf. It is.
Mr. Carter. OK.
Mr. Wulf. But we prioritize getting the word out about
those reporting obligations because the community of those who
hold chemicals is very diverse.
Mr. Carter. I see. Right.
Mr. Wulf. So it's not only the traditional chemical
manufacturers.
Mr. Carter. Well, very quickly, because I want to get this
in. I have two major seaports in my district.
That seems like that would be a bugaboo to try to really
have an overview of that----
Mr. Wulf. Yes. No, that's----
Mr. Carter [continuing]. Of everything that's going through
those ports.
Mr. Wulf. Yes. There is a lot of chemical infrastructure on
the water at the ports. Our friends at the Coast Guard have the
responsibility actually----
Mr. Carter. OK.
Mr. Wulf [continuing]. For managing that. So facilities
that are regulated by the Coast Guard are specifically exempted
from CFATS.
Mr. Carter. Right.
Mr. Wulf. So we work very closely with the Coast Guard.
Mr. Carter. Good. Thank you very much.
Mr. Wulf. Absolutely.
Mr. Carter. And I yield back.
Mr. McKinley. Thank you very much.
Now, if I could, you've been going here almost 2-plus hours
on this thing. But let me just conclude with one question, if I
could--the privilege of the chair.
I want to clarify your answer to Congressman Johnson about
the listing of items on Appendix 1, because I've spoken to
several chemical manufacturers in our district and they claim
that on Appendix 1 is this designation of high priority
chemicals--you understand that. They claim the existing statute
is silent over whether it's subject to notice in rulemaking
versus the sole discretion of DHS.
I thought you said that it had to go through notice in
rulemaking. I just want for the record you saying it does go
under----
Mr. Wulf. Yes. It is part of our regulation and so I have a
crack team of lawyers who tell me that as a result of its
status in the regulation it is subject to notice and comment
rulemaking pursuant to the administrative procedures.
Mr. McKinley. So these manufacturers maybe are just
mistaken where they think it's silent?
Mr. Wulf. Yes. It may not be explicitly addressed in the
statute but there are other legal frameworks that apply to it.
Mr. McKinley. OK. Thank you very much. Thank you.
Mr. Wulf. Absolutely.
Mr. McKinley. Seeing that there are no further members
wishing to participate and ask questions, I'd like to thank our
witness again for being here today.
And with that, we will end the first panel.
Mr. Wulf. Thank you so much.
[Pause.]
Mr. McKinley. So if we could, we call up the second panel
now--and your placards.
[Pause.]
OK. We want to thank our witnesses for being here today,
many of you just went through the first panel and so we begin
the second panel so--and your taking the time to testify before
this subcommittee.
Today's witnesses will have the opportunity to give opening
statements followed by a round of questions from the members
that are present.
Our second panel for today's hearing includes Chris Currie,
Director of the Emergency Management National Preparedness and
Critical Infrastructure Protection, Homeland Security, and the
Justice Team in the U.S. Government Accountability Office; Mr.
Brown, President and CEO of Brown Chemical Company; we also
have Mike Wilson, National Director for Occupational and
Environmental Health in BlueGreen Alliance; Mr. Roberts,
Principal of Chemical Security Group, LLC; and James Conrad,
the Principal of Conrad Law and Policy Council on behalf of the
Society of Chemical Manufacturers and Affiliates; and lastly,
Yvette Arellano, the Policy Research and Grassroots Advocate of
the Texas Environmental Justice and Advocacy Services.
So we appreciate you. The subcommittee appreciates all of
you for being here today and the patience of working with us on
this, and we will begin the panel discussion with Mr. Currie
for his opening statement of 5 minutes.
STATEMENTS OF CHRIS P. CURRIE, DIRECTOR, EMERGENCY MANAGEMENT,
NATIONAL PREPAREDNESS, AND CRITICAL INFRASTRUCTURE PROTECTION,
HOMELAND SECURITY AND JUSTICE TEAM, U.S. GOVERNMENT
ACCOUNTABILITY OFFICE; DOUG BROWN, PRESIDENT AND COO, BROWN
CHEMICAL COMPANY; DR. MIKE WILSON, NATIONAL DIRECTOR,
OCCUPATIONAL AND ENVIRONMENTAL HEALTH, BLUEGREEN ALLIANCE;
STEVE ROBERTS, PRINCIPAL, CHEMICAL SECURITY GROUP, LLC; JAMES
CONRAD, PRINCIPAL, CONRAD LAW AND POLICY COUNSEL, ON BEHALF OF
SOCIETY OF CHEMICAL MANUFACTURERS AND AFFILIATES; YVETTE
ARELLANO, POLICY RESEARCH AND GRASSROOTS ADVOCATE, TEXAS
ENVIRONMENTAL JUSTICE ADVOCACY SERVICES
STATEMENT OF CHRIS P. CURRIE
Mr. Currie. Thank you, Mr. Chairman, Ranking Member Tonko,
other members of the committee that are here.
I think this hearing is really well-timed. CFATS is over 10
years old. We have spent almost a billion dollars of taxpayer
money implementing it, getting it up and running, and industry
has spent its own dollars doing the same thing.
GAO has been assessing this program for almost a decade,
and I want to be clear that we have no position on
reauthorization. That's a decision for Congress.
Our jobs, as always, is to help you make those decisions
with information on how well programs like this are working. In
that regard, it's no secret that this program has had
challenges.
Today, after numerous GAO recommendations and heavy
oversight by Congress, CFATS has addressed many of the
management challenges it faced early on. I think DHS deserves a
lot of credit for that. I think Congress deserves a lot of
credit for the oversight.
I'd like to summarize just some of our past work and where
DHS is in addressing the recommendations. First, just
identifying facilities originally that could have been subject
to this regulation was daunting and a huge challenge.
In 2014, we identified, through our own work, chemical
facilities that were not reporting ammonium nitrate holdings,
for example, to DHS as they were required to do.
We recommended the DHS work with EPA, other agencies, and
states to better share their separate data sources to close
this gap. Since then, DHS implemented this recommendation and
identified 1,000 additional facilities that should have
complied with CFATS.
Assessing facility risk levels, as was discussed a lot on
the first panel, and improving site security plans has also
been a complicated process.
Specifically, we recommended that DHS improve its process
for assessing facility risk, or tiering, as was mentioned, and
have this process peer reviewed, and DHS has taken steps to
address these issues as well.
DHS also eliminated the backlog for reviewing and approving
facility site plans, which at one point we estimated to be 7 to
9 years long.
More recently, DHS overhauled and streamlined its tools for
gathering information from facilities and assessing the risk
and, according to most industry officials and facilities we
have talked to so far, the new tool is much easier to use and
understand.
As of June 2008, DHS told us they've processed hearing
results for all but 226 facilities nationwide. Compliance
inspections are also a critical piece of the program. These
inspections ensure that facilities are implementing and
maintaining the security measures in their plans.
In our 2015 report, at that time DHS had only done 83 of
these inspections. They recently told us the number is now up
to over 3,500, and this is promising, but DHS still hasn't
fully implemented our recommendation to establish a final
procedure for conducting these inspections.
They have one in draft that they are using and they tell us
they expect to finalize that later this year. However, just
fixing past problems is not enough to declare victory. Now it's
an important time, I think, to shift our mind set from
establishing the functional components of a regulatory program
to questions about what do we expect from CFATS in the future.
Many of these will be addressed in the report we plan to
issue next month. First, it's critical that the CFATS program
be able to measure over time how risk and vulnerability are
actually being reduced and not just focus on outputs like
inspection numbers.
In the past, we have found weakness in how the program
measures performance and we continue to assess their progress
in this area.
Second, the program must evolve and can't be static. New
security threats such as cyber have to be constantly
considered. Also, the program is in a unique position to help
the industry by communicating these threats and best practices.
Further, a balance must be struck between sharing
information and protecting security. For example, recently
deadly incidents show how important it is that first responders
know what they are responding to at these facilities and how to
address it.
We are assessing these and other issues in our ongoing work
and, as I mentioned, we expect a report out on those specific
things next month.
This concludes my statement and I look forward to the
discussion.
[The prepared statement of Mr. Currie follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. McKinley. Thank you, Mr. Currie.
And now the chair recognizes Mr. Brown for his 5 minutes.
STATEMENT OF DOUG BROWN
Mr. Brown. Good morning, Vice Chairman McKinley, and
Ranking Member Tonko, and members of the subcommittee.
My name is Doug Brown and I am President and CEO of Brown
Chemical, a chemical distributor based in Oakland, New Jersey.
I am also the current chairman of the National Association of
Chemical Distributors--NACD.
I thank you for holding this important hearing today on the
Chemical Facility Anti-Terrorism Standards program and I am
pleased to provide testimony.
Brown Chemical was founded in 1936. It is a fourth
generation family-owned and operated business with 14
employees. We operate facilities in Oakland and Patterson, New
Jersey.
Brown Chemical direct sells, distributes, or packages over
350 products to approximately 400 customers in 41 states. We've
been practising NACD's responsible distribution since its
inception in 1991 when it became mandatory for all association
members.
This comprehensive program addresses environmental, health,
safety, and security risks. Members companies are third-party
verified to ensure the highest quality of performance in these
areas.
While security has always been an inherent element of
responsible distribution, after the September 11 terrorist
attacks NACD specifically added security elements to the
program and the association continues to enhance these
requirements.
In 2013, NACD added a specific security code to responsible
distribution and consolidated many prior requirements and
improved others.
Brown Chemical supports a long-term reauthorization of
CFATS. I believe the CFATS program has made the chemical
industry in our nation more secure.
Since the program's establishment in 2007, the industry has
invested significant capital and training resources for its
enhanced security measures at our facilities.
While these investments did not help grow my business, they
nonetheless ensured the security of my company, our employees,
and the community.
It is undeniable there were growing pains in the first few
years of CFATS. The Department of Homeland Security has worked
hard to address these issues and has made substantial
improvements to run the program more efficiently.
One reason for the success of the CFATS program is the fact
that DHS has taken the time to truly learn about the diversity
of the chemical industry and work with companies on security
measures that meet the CFATS risk-based performance standards.
DHS has taken a collaborative common sense approach in
implementing the program while providing flexibility to each
unique chemical facility in doing so.
The clear objective of the CFATS program is to help
facilities be more secure while not taking a punitive approach.
DHS has excelled in outreach to the industry in three key ways:
by publishing numerous fact sheets and lessons learned
documents, by interacting with facility owners and operators
during the chemical sector security summits and other industry
meetings, and always making inspectors and headquarters
personnel available to talk through issues and answer
questions.
The 2014 reauthorization of the CFATS program, which, for
the first time provided CFATS a multi-year authorization,
further enhanced security efforts by providing regulatory
certainty to both industry and DHS.
This stability allowed DHS to increase efficiencies in the
program while streamlining the information submission process
for regulated facilities.
I believe the CFATS program is strong and needs minimal
change. One priority I can recommend is to require that any
changes to the Appendix A chemicals of interest list remain
subject to notice and comment rulemaking.
Changes to the COI list could have major impacts on my
business operations and security investments. Changes may be
needed upon discovery of new threat information. But it is
important for regulated companies like mine to be able to
provide information to DHS and explain the impacts of any
proposed changes.
I also support the creation of a program under which DHS
would recognize companies that meet certain criteria such as
participation and an environmental health, safety, and security
program like responsible distribution.
By acknowledging responsible distributors through measures
like less frequent inspections, DHS would then be able to
prioritize resources on the noncompliant outliers that may pose
a greater security risk.
Brown Chemical supports the CFATS program and looks forward
to working with the subcommittee on legislation to reauthorize
this important regulation. A multi-year reauthorization of
CFATS will provide the certainty needed to enhance the security
of my chemical facilities and our nation.
On behalf of Brown Chemical, I appreciate this opportunity
to present our views on this important issue and I look forward
to your questions.
[The prepared statement of Mr. Brown follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. McKinley. Thank you, Mr. Brown.
And then next on the panel, Mr. Wilson with BlueGreen
Alliance--your opening statement, please.
STATEMENT OF MIKE WILSON
Mr. Wilson. Thank you, Mr. Chairman, Ranking Member Tonko,
and distinguished members.
My name is Michael Wilson. I am the National Director for
Occupational and Environmental Health at the BlueGreen
Alliance.
On behalf of our organization, our national labor and
environmental partners, and the millions of members and
supporters they represent, I want to thank you for convening
the hearing today and for your interest in chemical safety and
security.
I am familiar with the risks of industrial hazards because
I had the privilege of working for 13 years as a professional
firefighter, paramedic, and EMT, during which time I responded
to about 10,000 emergency calls.
I worked in a city with heavy industry centered around
agriculture, so there were many facilities that used chlorine
and ammonia and other agricultural chemicals. Responding to an
incident at one of these facilities meant grappling with a lot
of uncertainty because the facilities weren't required to
invite us in and involve us in planning or training for an
emergency.
In general, I would say they relied on us if they had an
emergency but they were reluctant to help us improve the safety
and effectiveness of our response. Without a doubt, emergency
response is a necessary aspect of chemical safety and security.
But it's an indicator of a failure. It's a measure of last
resort where thoughtful planning and prevention have broken
down.
EPA reported this year that most serious chemical accidents
are preventable if the necessary precautions and actions are
taken and yet serious industrial chemical accidents continue to
occur every 2 \1/2\ days across our nation.
Last year, EPA estimated that about 177 million Americans
live close enough to an industrial facility to be affected by a
chemical accident and that these risks fall disproportionately
on low-income and minority communities.
CFATS responds to this problem by requiring companies to
surround dangerous chemicals with security measures and yet, as
many experts have noted, these measures require continual
updating to thwart the efforts of a motivated actor. Perhaps it
is in response to this challenge with security measures that
thousands of facilities seem to be shifting to prevention
strategies.
DHS noted last year that companies reported taking action
to prevent risks on about 250 dangerous chemicals by replacing
those chemicals with safer ones, reducing the quantities held
on site, or switching to less concentrated formulations.
If DHS is confident in the veracity of these claims, these
actions do more than manage risks. They actually reduce the
risk footprint, and in this way they provide protection not
only from an intentional attack but also from an extreme
weather event, earthquake, power outage, or mechanical failure
risks that we've heard from several members today.
On the other hand, there are about 3,400 facilities that
have remained in the CFATS high-risk tier and which pose a
substantial risk to workers and communities.
Changes to the CFATS program are needed to reward the
leaders and move the laggards up. CFATS could be strengthened
with updated requirements in four areas: one, risk management;
two, risk prevention; three, meaningful participation by rank
and file worker representatives; and four, emergency response.
The State of California, the third largest refining state
in the country, adopted these approaches last year in a
sweeping new refinery safety regulation, which was motivated by
a large flammable vapor explosion at the Richmond Chevron
refinery. That incident created a 100 square meter vapor cloud
that ignited and endangered the lives of 19 workers and caused
some 15,000 people downwind of the plant to seek medical
attention.
California's comprehensive new regulation is informed by
the industry's own best engineering and management practices
developed over the last 20 years and largely shifts from a risk
management to risk prevention framework. While California is
improving the safety of refineries in communities, however,
U.S. EPA is proposing to substantially weaken the Federal
chemical disaster rule by rolling back most of its key
provisions, including all 10 of its prevention requirements.
These changes will endanger the lives of my former co-
workers in the U.S. Fire Service. They will endanger workers
and millions of community members and their families who live
around our nation's chemical facilities. The chemical disaster
rule should be retained in its original form, not weakened or
delayed, as the administration has proposed.
We can and must prevent chemical accidents. I urge you to
use the reauthorization of CFATS as an opportunity to
strengthen the program. The results would be fewer explosions,
fewer injuries and deaths, and a far more resilient industrial
infrastructure.
In closing, I would like to thank you again for this
hearing and for granting me the opportunity to appear, and I
will be happy to answer any questions.
Thank you.
[The prepared statement of Mr. Wilson follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Harper [presiding]. Thank you, Dr. Wilson.
The chair will now recognize Mr. Roberts for the purposes
of an opening statement. You're recognized for 5 minutes.
STATEMENT OF STEVE ROBERTS
Mr. Roberts. Thank you. Good afternoon, Mr. Chairman,
Ranking Member Tonko, and other distinguished members of the
subcommittee.
As a security consultant and lawyer, I've been fortunate to
participate and work in the CFATS program from the very
beginning since 2007, more than 11 years ago now, and have seen
during that time and have participated in dozens of refineries,
chemical plants, paint and coating manufacturers, agricultural
facilities, aerospace and defense--a range of CFATS facilities
that Mr. Wulf spoke about earlier in this testimony.
Against this backdrop, I am pleased to offer the following
comments for the committee's consideration: first, reauthorize
CFATS for multiple years; second, further enhance the
transparency of the risk tiering process; third, update the
CFATS rulemaking process; and fourth, ensure that there is
greater consistency among inspectors and the inspection
process.
First, reauthorize CFATS. When the first standalone CFATS
legislation was introduced 4 years ago, we find ourselves back
now at the same time, as that legislation nears the end of its
life. I can certainly say that industry needs the certainty of
CFATS and reauthorization of CFATS to continue to make its
investments in the program and continue to implement the
program. I think DHS also needs the certainty of CFATS to
ensure its long-term viability of programmatic changes.
Second, with respect to transparency and risk determination
process, which we've heard about quite a bit today, ISCD has
certainly improved the transparency of its risk process. They
have done many things to help the regulated community
understand why they may be tiered or not tiered, and includes
things like webinars, fact sheets, and the like.
Most significantly--and the agency should get a lot of
credit--you are willing to call up the agency and have a so-
called technical consultation, essentially asking why am I
tiered, is there something that I could do, is there something
I need to know, is there something that's correct or perhaps
incorrect in this process. And while often that doesn't change
the needle, unless there was some kind of error omission, the
mere process of being able to have that conversation with the
agency is very helpful and welcome.
That sort of dialogue was not welcome many years ago at the
beginning of the CFATS program and I think the current
leadership has a lot to do with that and should be recognized.
That's not to suggest that I or the facilities for which I
work always agree with the process. In fact, many times,
especially with respect to the most recent CSAT 2.0 resteering
process, companies have said to me, why am I tiered--can I
appeal that tiering decision--and the answer is no. The
regulation does not provide for any kind of appeal mechanism.
In fact, allowing a straight appeal would probably swallow
the regulation. DHS would spend all of its time on appeals and
not being able to articulate and move forward with the program.
So I don't think a straight appeal would be appropriate.
But something more formal than a technical consultation but
something less than a formal appeal would certainly help
facilities to understand is there something they can do,
especially on the consequence side of the house, for sites that
have release flammable or toxic inhalation hazard materials--to
bring that risk down, re-file a top-screen, and perhaps get a
different result. Right now, we are not able to effectively do
that beyond the technical consultation.
Third, the rulemaking process--as we've noted today, CFATS
has been around for now 11 years. The regulations have not
changed one word in that 11-year period, and whether it be
Appendix A or other key aspects of the rule, in order to change
that rule, to update it, to align it to certain things, that
process would need to go through the rulemaking process.
DHS started that process in the summer of 2014 through an
advanced notice of proposed rulemaking. But that process has
now stalled. If we take a look at the current rulemaking agenda
for the Department of Homeland Security just published
recently, we now see CFATS has been moved to the list of long-
term actions.
I would urge the committee to require that rulemaking occur
so we can update the program necessarily in very material ways
that need to occur for both, in my view, industry and for DHS.
Fourth, as we've heard a little bit and including from Mr.
Currie, ISCD should opt to make authorization inspections--
compliance inspections more consistent, more uniform--ensure
that the same level of knowledge, of rigor, of completeness of
those processes.
ISCD has done a lot toward that and I certainly think--and
have worked with many of these inspectors--they are
professional, they are courteous, they are very easy going many
times and friendly.
However, that does not always translate into the same
process from site to site, from region to region, even within
the same region. That inconsistency sometimes and lack of--
differences in knowledge, understanding the actual tools that
DHS uses, the CSAT process, the different approaches to how an
inspection actually occurs--the level of detail or lack
thereof--is an ongoing source of frustration for many
businesses, many companies, especially those that operate
facilities from region to region and very clearly see and
question why we see so many differences boots on the ground
among the inspection team.
DHS has recognized that. We hear from them that they are
going to take steps and are taking steps, as the GAO has also
recognized, to improve and enhance that process, going forward.
But I think more is needed. I think further training is
needed--minimum standards and better consistency horizontally
between the regions and vertically between headquarters and the
regions themselves.
So with that, I appreciate the opportunity to testify,
holding this important hearing, and be pleased to answer any
questions you may have.
[The prepared statement of Mr. Roberts follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Harper. Thank you, Mr. Roberts. We appreciate that.
And Mr. Conrad, we'll now recognize you for 5 minutes for
the purposes of an opening statement.
Thank you.
Mr. Conrad, could you pull that microphone around in front
of you a little bit? Thank you.
STATEMENT OF JAMES CONRAD
Mr. Conrad. The button. There we go.
For over a decade, I have been counsel to the Society for
Chemical Manufacturers and Affiliates, the only U.S.-based
trade association dedicated solely to the specialty and fine
chemical industry.
For the previous 14 years, I was an in-house lawyer at the
American Chemistry Council and so I've been working on chemical
facility security since before 9/11 and I've been continuously
involved in the CFATS process since it was first enacted in
2006.
I've also chaired the ABA's administrative law and
regulatory practice section. I am pleased to be able to provide
today with SOCMA's perspective on CFATS. CFATS protects high-
risk chemical facilities and their surrounding communities by
ensuring that security measures are in place to reduce the risk
of successful terrorist acts.
More than half of SOCMA's 115 manufacturing members are
regulated under the program. We strongly supported and we urge
Congress to reauthorize the program now before its
authorization expires this coming January.
A 1-year reauthorization, however, is not desirable because
regulatory certainty is crucial to business planning. Complying
with CFATS is expensive and time consuming, especially for
small businesses. SOCMA's members want the program to be
consistent and predictable, and a multi-year reauthorization
would give them that assurance.
Through the years, the CFATS program has undergone dramatic
changes. The early years were a significant challenge for
everyone, but the program has vastly improved under the
direction of Deputy Assistant Secretary Wulf, whose earlier
accomplishments gave Congress the confidence to reauthorize
CFATS for 4 years in 2014.
SOCMA believes that the program's continued progress is
directly attributable to Mr. Wulf's leadership and justifies
another reauthorization for a comparable period of years.
The most significant recent improvement in CFATS is Version
2.0 of the Chemical Security Assessment Tool, or CSAT. The
original CSAT process was clunky and difficult to use, took
significant amounts of time and resources to complete.
The number-one recommendation of SOCMA's CFATS comments in
2014 was that DHS fix it, and DHS has now done that
dramatically, and our members uniformly report that it's much
easier to use and far less resource intensive while still
giving DHS the information it needs.
This improvement is extremely important for SOCMA members,
70 percent of which are small businesses. Most of these
businesses cannot afford to have dedicated regulatory
compliance staff nor can they afford to hire consultants to do
the job for them.
While I've thus far applauded DHS's efforts, SOCMA does
have some concerns. It first relates to how DHS tiers or
assigns risk levels to facilities based on their CSAT
submissions.
When Congress reauthorized CFATS, it instructed DHS to
``share with the owner or operator of a covered chemical
facility any information that the owner or operator needs to
comply with this section.''
Congress could revise this language to create a clearer
obligation for DHS to share with the facility the exact reason
for its tier assignment. That would help them understand how
they could lower their risk tiers.
The second concern is the personnel surety program.
Currently, PSP only applies to tier one and two facilities, but
DHS is considering applying it to tiers three and four.
SOCMA believes this is premature. These facilities, by
definition, pose lower risks and the PSP program continues to
impose burdens in terms of time and delay.
SOCMA believes DHS should work with the Department of
Justice and the FBI to rigorously assess both what risks are
avoided and what costs are imposed by the process, and we think
such a multi-agency review is necessary before we expand it
further.
We also believe CFATS should recognize voluntary industry
programs that enhance the safety and security of hazardous
chemicals and thus complement what the CFATS program does.
The leading chemical industry trade associations have
organized and implementing demanding stewardship initiatives
such as SOCMA's ChemStewards to manage and improve
environmental health, safety, and security performance--a
public-private partnership that leveraged these industry
stewardship programs like ChemStewards to benefit both chemical
facilities and the public.
And then last, I will emphasize a point that's been made
before about the continuing importance to use rulemaking in
amending Appendix A, and I will agree with Director Wulf.
Currently, the Administrative Procedure Act requires
Appendix A to be changed through rulemaking because it's
already part of the rule, and so that will continue to be the
case, unless that were to be changed by new legislation, which
we would not support because it's important for facilities to
be able to get the information to the DHS that it needs to
understand them. The bottom line is that CFATS is working and
working far more successfully and efficiently than a lot of
other regulatory programs.
CFATS inspectors generally interact well with facilities
and the agency has an effective compliance assistance program.
Facilities are more secure and the public is safer today
because of this program.
Congress should reauthorize it to maintain that progress.
Thank you.
[The prepared statement of Mr. Conrad follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Harper. Thank you, Mr. Conrad.
The chair will now recognize Ms. Arellano for 5 minutes for
the purposes of an opening statement.
Welcome.
STATEMENT OF YVETTE ARELLANO
Ms. Arellano. Thank you, Chairs and Ranking Members, of the
Energy and Commerce Committee and Subcommittee on the
Environment.
Thank you for this opportunity to speak on the proposed
rule to roll back and eliminate critical protections for my
community in Houston Texas that are part of EPA's 2017 chemical
disaster rule.
I am disappointed that the EPA and its rulemaking has
chosen to only hold one hearing in Washington, D.C., making it
difficult for voices like those in my community to be heard.
But I am relieved that I can bring my experience to this
hearing. My name is Yvette Arellano. I am here on behalf of
Texas Environmental Justice Advocacy Services.
We are a nonprofit working to educate and mobilize our
community in southeast Houston, including Manchester and the
surrounding neighborhoods, which have high concentrations of
chemical facilities.
The EPA is required to regulate effectively under the risk
management plan and CFATS. This exposes our communities which
include significant communities of color and low-income
families to more toxic air, pollution, and disproportionate
harm from chemical disasters.
As illustrated too well from Hurricane Harvey, too often we
experience a toxic flood on top of the threats we already face
from hurricanes and heavy rains. That comes on top of disparate
health and safety impacts we already face around the year
because EPA refuses to do its job to protect us from the
frequent toxic releases and pollution these facilities send
across the fence line into our communities.
At Hartman Park, which is right across the street from the
Valero refinery, communities painted a mural reflecting that
nearly every child that plays in the park is in the shadow of a
nearby chemical facility--a far cry from what people at this
hearing see out of their window in Capitol Hill and D.C.
Communities in Manchester never know which incident
requires evacuation or sheltering in place. We hear the sirens
go off. I heard the sirens go off, or alarms go off, for a vote
and that sent my stress levels high.
People live in constant fear of releases or incidences
while their children are playing outside. In hurricane seasons,
it's bad enough that families have to prepare for their lights
to go out and ensuring that they have enough food and water.
No one should have to shelter in place due to a hurricane
as toxic chemicals flood their homes, wondering what to do if
facilities down the street will have a catastrophic explosion,
chemical fire, chemical release, as what happened in our
community and neighborhoods during Harvey. People deserve the
right to know the information necessary to make informed
decisions for them and their families.
The chemical disaster rule contains important safeguards
that would help communities like mine and across the country
with common sense provisions, most importantly, for our already
over exposed communities.
We need this fully effective right now and we need to
require facilities to take action to prevent fires, explosions,
and disasters including by ensuring they actually look for
safer ways to operate before a disaster starts. It also would
have increased the availability of basic information we need to
know, like chemical safety data sheets and emergency response
contacts so communities can try to find ways to protect
ourselves if a serious incident happens.
Community members should get the information from each
incident they're exposed to without delay and it's essential
for facilities to do real incident investigation reports that
they cannot ignore in planning to prevent future problems.
I want to highlight that the rule finalized in early 2019
and came afterward by the EPA and after over a hundred groups
working with TEJAS called for action, starting in 2011, as
disasters were happening across the country and people in
Washington, D.C. didn't seem to pay attention.
It also provided for a better coordination through sharing
information first responders need and assuring practice
notification and exercises happen to prepare without delay.
EPA cannot justify repealing all of the prevention and
weakening other important requirements and it has refused to
face the fact that it's taking away protections meant to save
lives and prevent harm, especially to communities like ours,
right across the fence line from chemical facilities.
These rollbacks don't come without community costs as
fires, toxic releases across the country on this
administration's watch, especially the Arkema explosion in
Crosby after Hurricane Harvey, demonstrated.
A lack of information puts the surrounding community and
first responders in jeopardy. First responders on the scene had
to be evacuated and received medical treatment for inhaling
dangerous chemicals from the blast.
Community members are still dealing with the aftermath of
chemical debris which is visible on their lawns and cars. The
Valero refinery and other nearby facilities released a spike of
benzene and other toxic chemicals. But most of these were
missed because EPA and states turned off or moved most of the
air monitors.
I urge this committee to consider the impacts on your
neighbors, on our neighbors, our families, without critical
protections like those in the chemical disaster rule and ask
you to call on President Trump and the administration and
Administrator Pruitt to drop the hazardous plan that the EPA is
considering which would revoke lifesaving protections for
communities across the country, preventing children and
vulnerable communities from chemical disasters.
The way EPA originally found was necessary should not be a
partisan issue and we call on Congress and EPA to protect
communities, not chemical companies.
Communities across the country remain in harm's way and
this is especially scary as we drive around Houston with
billboards saying hurricane season has begun--be prepared.
[The prepared statement of Ms. Arellano follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Harper. Your time has expired. I apologize.
We'll give you opportunity during the questioning. Thank
you very much.
It's now time for the members to ask questions. I want to
thank each of you for your appearance here and for your insight
and the experience that you bring.
And Mr. Roberts, I would like to ask you a question first.
We've from GAO that one of the challenges faced by DHS with the
implementation of CFATS is compliance enforcement.
Your written testimony points out that there's
inconsistency with inspections and enforcement from region to
region. Can you elaborate some on that and perhaps give us some
suggestions on how to correct that?
Mr. Roberts. Certainly. Let me emphasize again the
inspectors are, almost without fail, are extremely helpful.
They're friendly, professional, but there continues to be a
lack of, it seems, consistent knowledge in various areas of the
program, including the specific way the regulation itself may
work--the confusion oftentimes between what regulation is and
implementing guidance.
As we know, CFATS is a risk-based performance standard.
That means that DHS can't prescribe the particularly security
measure a facility must implement or may not--or does not need
to implement for plan approval, and we've had many instances
over the years, especially as DHS has upticked, obviously, it's
compliance inspections in the last few years where the specific
manner and nature of those inspections simply is not the same
region to region and even within the same region.
Some of that may go back to training. Some of it may go
back to the prior biases or lack thereof of the inspector who
may come from a prior Federal background.
Some of that goes to, on a positive side, with familiarity
of an inspector with the site so they may not feel the need to
continue to go very deeply sometimes.
But the way a particular inspector assesses things seems to
lack any real consistency from site to site, region to region.
Mr. Harper. And I appreciate the way you have elaborated on
that. So is this a training issue that we are talking about or
is it just something that, because of the different
experiences, we can't correct?
Mr. Roberts. No, I think it absolutely is a couple of
things. One is training around the actual rule--training around
the CSAT portal--how it works.
We've had instances where inspectors would ask a facility
to do something in their top-screen that is not possible
because the top-screen doesn't allow that type of data to be
inputted. So that just shows me that that particular inspector
may not understand how the top-screen itself works.
Certainly, training of the regulation--the top-screen tool,
the CSAT suite of tools that Mr. Wulf mentioned--certainly, the
guidance--difference between guidance and regulation, and I
think, as DHS has indicated, as GAO has indicated, as DHS has
said in other occasions, they are putting together some more
specific directives, some more specific guidance material for
their inspectors.
I think this is one area where actually a checklist would
be helpful in terms of understanding what an inspection should
do, what we should look for, the level and detail an inspection
should occur, site to site, region to region, regardless of the
particular nuances of the facility. There are some basic things
that should occur every time.
Mr. Harper. Thanks, Mr. Roberts.
Mr. Conrad, if I may ask you--I know we've had some that
would argue that information from CFATS-regulated facilities is
not available to people who should know it. What would be your
response to that?
Mr. Conrad. I would say that if that's true it's because
the systems we have in place to make that happen aren't
working. There is a statute, the EPCRA--the Environmental--the
Emergency Planning and Community Right to Know Act--that
originated in this committee whose sole focus is to make sure
that state and local emergency planning bodies and fire
departments are provided with all the information that they
need to plan for emergencies of whatever sort--natural as well
as security related--and to be able to respond to them, and the
statute couldn't be clearer that, for example, those facilities
shall promptly provide information necessary for developing and
implementing the emergency plan.
So it's not qualified, and it requires submission of lists
of safety data sheets or the safety data sheets themselves,
inventories of chemicals, or, upon request, the maximum and
average amounts of a chemical on the site, where it's stored,
how it's stored, and that information, in turn, can be made
available to the public.
And specifically with respect to fire departments, it says
that the owner or operator with the facility shall allow the
fire department to conduct an on-site inspection of the
facility and shall provide to the fire department specific
location information on hazardous chemicals at the facility.
So we think the statute is sound. It may well be
appropriate for this committee to conduct oversight on why it
is the LEPAS perform more or less well in certain areas. But
the CFATS program doesn't restrict any of that.
To the contrary, the statute that you all passed 4 years
ago expressly preserves all those sorts of information
disclosure statutes from any effect by a result of the CFATS
program.
In fact, this is the CVI guidance from DHS from the Bush
administration, no less, state--note, state, local, and tribal
officials including first responders must have access to any
information that is necessary to plan for and respond to an
emergency event at a chemical facility.
It's equally important that this information is available
in a form that is readily accessible and easily disseminated.
In most cases, a facility can provide this information that
contains all necessary operational and facility-specific
information and excludes CVI.
But then, as Mr. Wulf said, there's a way for sharing CVI,
too. So the systems that--the legal system, I think, is sound.
It's just a question of whether it's really working well.
Mr. Harper. Thank you very much, Mr. Conrad.
The chair will now recognize the gentleman from New York,
Mr. Tonko, the ranking member of the subcommittee.
Mr. Tonko.
Mr. Tonko. Thank you, Mr. Chair.
I believe we must acknowledge that the CFATS program is not
comprehensive and that security gaps do indeed exist.
Director Currie, can you give us a sense of the quality of
information given to first responders near CFATS facilities?
Mr. Currie. Yes, sir.
So actually in our ongoing review that we'll issue a report
on next month we are looking at that very issue and it relates
to what Mr. Conrad is saying.
He's right that there's never been an assessment of the
process itself under CFATS for how well they're coordinating
with the local emergency planning committees and what they're
providing.
That's exactly what we are looking at. We are digging into
that process to figure out how they're coordinating with those
committees and what information specifically those committees
and first responders are actually getting.
And so, we'll report on that next month.
Mr. Tonko. You will share that with this committee?
Mr. Currie. Yes, sir.
Mr. Tonko. The subcommittee, please.
Have they always had all the information in preparation
necessary to respond to incidents at these facilities?
Mr. Currie. Well, I think one of the things we are looking
at, as we've talked about today, the CFATS program has only
been around 10 years and some of these other programs have been
around much longer.
So, in the early stages of the program that was not the
focus. The focus was getting facilities enrolled and things
like that.
So, this is something that's evolved over time. Nobody's
really looked at it, and so that's why we are taking a look at
it.
It's an extremely important issue. These are life and death
situations and it's important they have the information they
need to respond.
Mr. Tonko. Thank you. If first responders do not have all
the necessary information, it makes those security gaps even
worse.
Dr. Wilson, what is your sense on some of the security gaps
in the CFATS program? Do you have any thoughts on the
exemptions that exist in the program?
Mr. Wilson. Sure. I think with regard to exemptions, we
heard earlier around waste treatment nuclear and maritime, and
I think it's worth assessing whether and to what extent
security is an element of the safety programs in those sectors.
And the reason I say that is that in practice, I think
there's a cultural and operational divide between safety
engineering and security provisions and yet security and
engineering are interrelated. So good engineering design drives
down both safety and security risks but security is often
missing from engineering practice.
So last month, the American Institute of Chemical Engineers
had its conference with a keynote address by the FBI, and the
reason for that appearance by FBI was to encourage engineers to
include security in their scope of practice rather than
relegating it, in a way, to traditional barriers, monitoring,
and response approaches.
And so I think it would be worth evaluating if these
exempted sectors are meeting the CFATS 18 performance standards
and if they're effectively integrating security into
engineering practice.
Mr. Tonko. So, from that, I can assume that first
responders often--that they may not know exactly what is at a
facility before having to respond to the incident?
Mr. Wilson. I would say it's a perennial problem. Despite
the requirements of the Emergency Planning Community Right to
Know Act, there are gaps in information, in particular in
transmitting information to first responders.
One of the problems with the local emergency planning
committee structure is that the members of those committees are
serving voluntarily and yet there is a lot asked of those
members.
I served as the state's representative--the state
Department of Industrial Relations representative--to our state
emergency response committee in California and saw firsthand
the difficulty that those members of the local committees--the
challenges that they carried in trying to implement the
requirements of a EPCRA and transmitting information
effectively and so forth.
Mr. Tonko. I have concerns with EPA's recent decisions
around the RMP rule. Can you discuss some of the provisions
that were delayed and what would be rolled back from the latest
RMP proposal?
Mr. Wilson. There are 10 provisions having to do with
incident prevention that are being proposed for removal from
the program, and we could go through and catalog each of those.
They are, I think, the most fundamental and most sort of
protective aspects of the RMP that have been proposed.
And as I said earlier, one of the reasons I am very
concerned about that is because of the fact that prevention
elements provide protection against multiple threats, and we've
heard from many members today about not only the threat of an
intentional attack against a facility but the very real threat
of a natural disaster, of an earthquake--as we are in
California--of a mechanical failure, and we heard of power
outage and so forth.
And so prevention elements or prevention requirements drive
down that risk footprint in the face of all of those threats.
Those are proposed to be thoroughly removed under the RMP
proposal that we are hearing from the administration.
Mr. Tonko. Thank you, Dr. Wilson.
With that, I yield back.
Mr. Harper. The gentleman yields back.
The chair will now recognize the gentleman from Texas, Mr.
Green, for 5 minutes.
Mr. Green. Thank you, Mr. Chairman. I want to thank our
panel for being here today.
As I said earlier in our first witness, CFATS was created
because of what happened in West Texas. But as we found out
that--and I think the last thing I heard that that was arson
and still being investigated--but our real challenge is from
natural disasters, like you just said--earthquakes in
California, hurricanes and tropical storms in the Gulf of
Mexico. That's what I would like to focus more on and see how
we can correct it.
I have a district in East Harris County, and Ms. Arellano
is very correct--Manchester has a chemical plant on the west
side, a thank farm on the north side before the Houston ship
channel, and a refinery to the east side, and on the south
they're covered by railroad tracks.
And that's where Houston literally started back in the
1830s and 1840s. The Manchester area was actually called
Harrisburg before there was a city of Houston.
And so we see a lot of these challenges in urban areas
where industry is literally right next door to people who have
lived there and it's in Manchester for 50 years. I know two
generations at least in that community.
One of the concerns I had was that during our Hurricane
Harvey--and I guess I should understand that when it was coming
in, our air monitors were shut down.
I've been told that I have probably the most air monitored
district in the country because we have EPA. We have the city
of Houston there they have jurisdiction. We have the county of
Harris with a pollution control agency and, of course, the
State of Texas, and it's not just the air monitors but the
other issue is that most of the rising water was literally on
the bottom of those plants and refineries and chemical plants
because of the 55 inches of rain in four days--how can you do
it?
The other problem, though--and I hope the industry is
listening because we've talked about it--is that we have huge
tanks that hold product, either crude oil or refined product,
and the way they're filled up is that they have floating roofs.
The problem is when you get that much water on that roof,
those rooves actually turn and you end up--whatever the
emissions come from that, but it also can overflow because of
the heavy rain.
So we've got a lot of challenges in our area and to keep
working with it, but we used to have community groups, and I
hardly hear about them anymore--Manchester, Pasadena, Bay
Town--the community groups, and I would go to those meetings
sometimes and the industry would come in and sit down with
their neighbors along the fence line, and I am not so sure
those are still going. Is that still active in other parts of
the country and maybe not in our area?
Mr. Wilson. Is that question to me?
Mr. Green. Yes.
Mr. Wilson. I am not aware of those kinds of meetings
taking place but I absolutely agree with your characterization
of the problem.
One of the things that California has done in its refinery
safety regulations has required companies to look at inherently
safer technologies wherever feasible and it has also required,
and I think in the example that you have just given, risk
management strategies that require redundancy and independence
of safeguards to prevent a cascade of failures so, for example,
in the event of a power failure, losing safeguards, one after
the other.
And of course, California is the third largest refining
state and is, you know, producing jet fuel and gasoline. It's
inherently hazardous, and so we felt it was important to be
very clear about the importance of introducing and requiring,
actually, independence and----
Mr. Green. I only have 26 seconds.
Mr. Wilson. Sorry.
Mr. Green. And I agree, because even with the Arkema
problem--wasn't in our district but the redundancies weren't
there. In fact, our Harris County district attorney has
launched an investigation into that plant and see why it
didn't.
Ms. Arellano, in your testimony, you talked a lot about how
communities like ours in Houston face additional challenges
during natural disasters due to their proximity to these
plants.
What recommendations would you do for industry to improve
their relationship with community groups and civic clubs,
because I visit Manchester civic club as often as I can and,
typically, one of our refinery staff is there to answer
questions.
What are some of the suggestions TEJAS would tell us that
we could do and inform people in the neighborhood but also,
just how we can do this better? Because those refineries and
chemical plants are probably not going to move because they've
been there for 50 years.
Ms. Arellano. These industry partners, they do come out to
the civic associations. But they talk about scholarships. They
talk about fire, indoor air pollutants. They'll hand out fire
detectors.
But they won't talk about the latest expansion. They won't
talk about a permit notice they had out--like the one they have
out that would increase hydrogen cyanide from 52 tons to 512
tons.
They'll go ahead and they'll speak about a backpack
giveaway event but not give any real information. So I would
say having true and real information going between industry
partners and neighboring communities is vital to this process.
The other thing that I would like people to consider is a
cumulative analysis of the TCQ is supposed to have some sort of
cumulative analysis program.
It's important for us to know exactly the impacts of all
the neighbors. Just like you said, there is Contanda Chemical,
it's 87 CO carbon storage tanks with a capacity of a thousand
to 74,000 barrels of chemical product. At Valero Refining, it
has 164,000 barrels per calendar day of refining, and then the
sulfuric acid plant that's Eco Services, original Rhodia.
So it's important for us to know the impacts of all of
these aggregated together. RMP facilities have these radiuses.
But we are not accounting for the toxic impacts on the
communities, and adding all that information, to not say that
four facilities are exposing the community to 10 cancer-causing
substances but instead saying this community is exposed to 40,
and taking into account that all of them have safety hazards
and all of them have chemical releases, they all are exposed to
fires and incidences whether it is--people keep talking about
these terrorist attacks but the communities are exposed to
daily toxics.
They're more frequently exposed to fires from chemical
releases and fugitive emissions than they are a terror attack.
So I would hope that this committee considers these
everyday problems with community members in the decision to
keep going forward and give people the opportunity to make
their own decisions--safe ones for them and their families.
Mr. Harper. The gentleman's time has expired.
Seeing that there are no further members wishing to ask
questions, I want to thank each of you for being here today and
for the knowledge and information that you have shared with us.
It's very, very helpful.
Before we conclude, I would like to ask for unanimous
consent to submit the following document for the record--a
letter from the Chemical Facility Anti-Terrorism Standards
Coalition.
Without objection, so ordered.
[The information appears at the conclusion of the hearing]
Mr. Harper. And pursuant to committee rules, I remind
members that they have 10 business days to submit additional
questions for the record, and should you get any of those
questions I would ask that you submit your responses within 10
business days from the receipt of such questions.
Without objection, the subcommittee is adjourned.
[Whereupon, at 12:44 p.m., the committee was adjourned.]
[Material submitted for inclusion in the record follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[all]