WASHINGTON – Energy and Commerce Committee Ranking Member Joe Barton, R-Texas, today made the following statement on the House floor against H.R. 2868, the Chemical Facility Anti-Terrorism Act of 2009:
“Mr. Speaker, I rise in opposition to this bill. Before I go into my prepared remarks, I think it’s educational to explain to the body what we’re actually marking up.
“We had two bills that came out of the Energy and Commerce Committee and I would assume out of the Homeland Security Committee that were marked up and subject to debate. We had a bill in the Transportation Committee that from what I can tell was never marked up and we now have merged the two work products from Homeland Security, from the Energy and Commerce Committee and from the Transportation Committee – which was never publicly marked up – and changed them in this bill. It will be changed again in the amendment in the nature of a substitute tomorrow so that the bill that will actually be voted on has never seen the light of day as a single bill.
“Now, on the surface, this merged bill could pass 435-0. The Chemical and Water Security Act sounds like something that’s a suspension calendar bill. The problem is, Mr. Speaker, is the bill before us with security in the sense of protection against terrorism, it has everything to do with what I consider to be radical environmentalism under the guise of homeland security. Let me elaborate on that in my written remarks.
“The approach taken in this legislation is deeply flawed. The overarching problem is simply this: Protecting chemical facilities and drinking water systems from terrorist attacks should not be done under the umbrella of environmental law. If it’s about stopping terrorism, we should be talking about computer security and fiscal security and prevention and terrorism tracking and all of the things that really make these facilities safer against terrorism. Instead we’re debating something called IST – inherently safer technology – which is a chemical process, a manufacturing process. With IST, you process the water and process the chemicals in a fashion that is safer from an environmental standpoint or perhaps from a safety standpoint for the workers in the surrounding community. That has nothing to do, Mr. Speaker, with protecting against terrorism.
“H.R. 2868 goes beyond the reasonable requirements that have been the core of many homeland security programs for several sectors – vulnerability assessments, site security plans, and emergency response plans. These are real things that should be done and are being done, to protect our chemical and water facilities against terrorism. But we’re substituting that in this bill for IST and these environmental requirements that really have nothing to do with security.
“We have an existing security regime already in place for both chemical facilities and drinking water systems, including a chemical security program that Congress passed three years ago and which is in the process of being implemented by the Department of Homeland Security. My good friend from Massachusetts talked about how that was put into law in 2006 and seemed to intimate that it wasn’t thoughtfully done. I would assure my friend that it was very thoughtfully done. The Energy and Commerce Committee at that time had primary jurisdiction and my concern as chairman of the committee was that we really shouldn’t do something on an appropriations bill, we should do it through the regular process. Because it came so late in the year, we did yield to the appropriators and put it in the omnibus appropriations bill. Even doing that, we spent weeks debating and working with the Homeland Security Committee and the stakeholders to come up with a better process than what is in this bill. It is considered that the existing chemical plant security program that we already have is going to cost $18.5 billion in public and private investment right now. The reasonable thing should be, in my opinion, to let the existing program actually get implemented before we scrap it and replace it with a totally new concept from this Congress. We need to know what the deficiencies, if any, are in the existing program before we move to a brand-new program. This legislation refuses to honor common sense when simplistic ideology seems to offer a quick return on a political investment.
“More to my point about this being more of an environmental bill is the fact that I am struck by one of the keywords used in the entire legislation to address terror prevention. For example, page 10, line 20 of the amendment in the nature of a substitute – I want to be very clear about this – defines a ‘chemical facility terrorist incident’ as a release of a substance of concern at a chemical facility. If you look at the definition of ‘release’, starting on page 12, line 19, that mirrors the language of the toxic waste cleanup law which we call Superfund – right down to making its covered universe: ‘hazardous substances, pollutants, or contaminants’. This means that the Department of Homeland Security is now going to treat an environmental accident or environmental cleanup as a terrorist incidents. I don’t want to imply that an environment accident is not an issue that doesn’t need to be dealt with seriously, but it’s not a terrorist attack if you have a spill of a toxic chemical at a chemical facility. It’s an accident, it’s a problem, it needs to be dealt with in environmental issues but it is not a terrorist incident. But if this bill becomes law, and you have that type of an accident, it is going to be a terrorist incident and it has to be considered by the Department of Homeland Security as such. I think that is ludicrous. I think it’s wrong, I think it short-sighted and I think it is unnecessary.
“I’m an industrial engineer and understand to some extent plant processes and chemical processes and things like that. I think we’re very blessed in this country to have a robust chemical industry, much of which is located in the states of Texas and Louisiana. If this bill becomes law, my projection is, within 10 years or so, many of those facilities are going to be closed down and inoperable and tens of thousands of jobs are going to be lost and our chemical industry is simply going to move offshore. They’re not going to stay under a legislative proposal that is, on the surface of it, almost impossible to be implemented.
“I am not convinced that there is a single, security-enhancing thing about these specific requirements in this bill and I know for certain that we’re already making these facilities do these types of assessments under the EPA’s Risk Management Program and OSHA’s Process Safety Management Program that this bill then doubles down on. We have existing laws and existing processes to handle the issues these bills really do handle.
“The concept is an engineering process philosophy. Congress has repeatedly heard expert testimony that the provisions in Section 2111 of this bill are expensive, hard to define because of significant technical challenges, and very tough, if not impossible, to enforce. If these problems did not exist, the Department of Homeland Security does not even have the professionals it needs to make informed decisions on how to operate this program or give guidance to those who have to implement the program.
“Let me repeat, this legislation is not directed at preventing terrorist attacks. It is instead directed at setting up a regime under which the Department of Homeland Security and EPA employees who don’t really know much about production processes at the nation’s chemical and drinking water facilities will have to make key technical decisions, not security decisions about those technical processes.
“As if this was not enough, this legislation weakens the protections traditionally given to high-risk security information by treating need-to-know information like environmental right-to-know data. I’m for transparency in government, but why should we give the terrorists who we’re trying to prevent attacking these facilities almost an open book to go in and under these open meeting requirements and open records requirements, to get information that could allow them to concoct schemes to destroy those very facilities? These provisions are not just troubling to me because this legislation will allow more information to be made public through litigation, but more so because it will be very hard to penalize people who reveal this information to the public. As one of my Democratic friends said at our markup in the Energy and Commerce Committee, “loose lips sink ships,” and there no repercussions for somebody with loose lips.
“I could go on and on, Mr. Speaker, but let me simply say this is a bad bill at the wrong time, it’s unnecessary. I hope we can have a bipartisan vote against it and I hope we can defeat it.
“I want to say one good thing about the process. Mr. Waxman and Mr. Markey did have a subcommittee markup, they did have a full committee markup and a number of amendments have been made in order by the Rules Committee for the minority to try to improve the bill and for that I am thankful.
“With that, I want to reserve the balance of my time.”
