[Senate Hearing 109-62]
[From the U.S. Government Publishing Office]
S. Hrg. 109-62
CHEMICAL ATTACK ON AMERICA: HOW VULNERABLE ARE WE?
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
APRIL 27, 2005
__________
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
TOM COBURN, Oklahoma THOMAS R. CARPER, Delaware
LINCOLN D. CHAFEE, Rhode Island MARK DAYTON, Minnesota
ROBERT F. BENNETT, Utah FRANK LAUTENBERG, New Jersey
PETE V. DOMENICI, New Mexico MARK PRYOR, Arkansas
JOHN W. WARNER, Virginia
Michael D. Bopp, Staff Director and Chief Counsel
Allison J. Boyd, Counsel
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Holly A. Idelson, Minority Counsel
Amy B. Newhouse, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Collins.............................................. 1
Senator Lieberman............................................ 3
Senator Stevens.............................................. 6
Senator Akaka................................................ 6
Senator Voinovich............................................ 8
Senator Lautenberg........................................... 9
Senator Levin................................................ 33
Prepared statement:
Senator Pryor................................................ 37
WITNESSES
Wednesday, April 27, 2005
Hon. Jon S. Corzine, a U.S. Senator from the State of New Jersey. 11
Hon. Carolyn W. Merritt, Chairman and Chief Executive Officer,
U.S. Chemical Safety and Hazard Investigation Board............ 13
John B. Stephenson, Director, Natural Resources and Environment,
U.S. Government Accountability Office.......................... 16
Richard A. Falkenrath, Ph.D., Visiting Fellow, Foreign Policy
Studies, The Brookings Institution............................. 18
Stephen E. Flynn, Ph.D., Jeane J. Kirkpatrick Senior Fellow for
National Security Studies, Council on Foreign Relations........ 21
Alphabetical List of Witnesses
Corzine, Hon. Jon S.:
Testimony.................................................... 11
Prepared statement........................................... 47
Falkenrath, Richard A., Ph.D.:
Testimony.................................................... 18
Prepared statement........................................... 75
Flynn, Stephen E., Ph.D.:
Testimony.................................................... 21
Prepared statement........................................... 98
Merritt, Hon. Carolyn W.:
Testimony.................................................... 13
Prepared statement........................................... 53
Stephenson, John S.:
Testimony.................................................... 16
Prepared statement........................................... 59
Appendix
Hon. James M. Inhofe, a U.S. Senator from the State of Oklahoma,
prepared statement............................................. 38
Hon. Vito Fossella, a U.S. Representative from the State of New
York, prepared statement....................................... 45
Questions for the Record from Senator Akaka and responses from:
Mr. Flynn.................................................... 106
Mr. Merritt.................................................. 107
Mr. Stephenson............................................... 109
CHEMICAL ATTACK ON AMERICA: HOW VULNERABLE ARE WE?
----------
WEDNESDAY APRIL 27, 2005
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in
room SD-562, Dirksen Senate Office Building, Hon. Susan M.
Collins, Chairman of the Committee, presiding.
Present: Senators Collins, Stevens, Voinovich, Warner,
Lieberman, Levin, Akaka, Lautenberg, and Pryor.
OPENING STATEMENT OF CHAIRMAN COLLINS
Chairman Collins. The Committee will come to order. Good
morning.
Today this Committee begins a series of hearings on the
security of our chemical industry and its vulnerability to
terrorist attack. Our ultimate goal is to determine whether the
risk of a terrorist attack on the chemical industry warrants a
legislative solution, and if so, what that solution should
entail.
One of the most sobering lessons of September 11 was that
terrorists will use the productive tools of our society against
us as weapons. There were more than 5,000 commercial airliners
ready to fly American skies that day. The terrorists only had
to commandeer four to use as missiles to murder some 3,000
people.
The threat of a chemical attack takes two basic forms:
first, causing a harmful release of chemicals from a facility,
and second, the theft of chemicals from a facility for use at
another time and place. According to a recent report by the
Congressional Research Service, during the 1990's both domestic
and international terrorists attempted many times to cause the
release of chemicals from manufacturing or storage facilities.
There is evidence that the second approach has been
attempted as well. One of the 1993 World Trade Center bombers
was employed as a chemical engineer. He used company stationery
to order the chemical ingredients to make the bomb. In
addition, testimony at the bombers' trial indicated that they
had successfully stolen cyanide from a chemical plant and were
planning to introduce it into the ventilation systems of office
buildings.
According to the EPA there are at least 15,000 facilities
across the country that use, manufacture, or store large
quantities of extremely hazardous chemicals. To us, those
facilities are vital parts of our economy that create jobs and
improve our lives. To our enemies, they are weapons waiting to
be used against an unsuspecting population. And, like the
airliners of September 11, it would take only a few, or even
one, to cause a horrifying loss of life and enormous economic
harm.
The potential of productive chemicals to cause terrible
harm was made clear in the early morning hours of December 3,
1984, in Bhopal, India. The improper filling of a water tank at
a plant that made pesticides led to the release of a cloud of
poisonous gas that drifted across that city of some 850,000
people. Within a few hours, thousands were dead, and hundreds
of thousands were sickened.
On another historical note, it was 90 years ago this month,
in April 1915, that the first major chemical attacks were
launched in World War I. The chemicals that caused so much
death and horror on the battlefields of the Western Front were
not the bizarre concoctions of diabolical scientists, but
rather the useful tools of industry, such as chlorine and
phosgene. The compound that formed mustard gas, the most
dreaded chemical weapon of all, was being investigated
elsewhere as a treatment for cancer.
But we do not have to travel back nearly a century in time
to see that terrorists have used chemicals as weapons. We know
that Saddam Hussein used chemical weapons against both the
Iranian people and his own citizens. It has also been reported
that chemical trade publications have been found in al Qaeda
hideouts.
The Department of Homeland Security is assessing the
potential for worst-case scenarios involving the release of
hazardous chemicals in the United States. The findings thus far
are alarming. The Department has identified 297 chemical
facilities where a toxic release could potentially affect
50,000 or more people. The EPA, which uses a different
methodology, has numbers that are even more alarming. Nothing
will ever diminish the loss that we experienced on September
11, but the consequences of a chemical attack could be even
greater, both in terms of the loss of life and the economic
impact.
A study released last month by the Government
Accountability Office details the many challenges that remain
in protecting our chemical infrastructure. The GAO found that
there is no comprehensive Federal approach to chemical facility
security. Federal regulations that have been enacted were done
to help prevent and mitigate the accidental release of
hazardous chemicals, but these were not designed to secure
facilities against terrorist attacks. Hazardous chemicals raise
important environmental safety issues, but it is time that we
recognize our obligation to address the security implications
as well.
Today, we begin to lay the foundation for a national
strategy addressing chemical security. In addition to
describing what should be done to better protect our chemical
industry from terrorism, our expert witnesses will provide
valuable insight into how it should be done.
Earlier this month, I accompanied Senator Joseph Lieberman
as an observer of the TOPOFF 3 terrorism exercise in
Connecticut. This test of our counterterrorism and emergency-
response capabilities simulated a chemical attack at a
waterfront festival in New London, Connecticut, while a
simultaneous biological attack was mounted in New Jersey.
It was an enlightening and an alarming experience. The
attack itself was decidedly low-tech and low cost. A car bomb
detonated at a fairgrounds parking garage, spewed deadly
chemicals, likely stolen or fraudulently obtained, over
fairgoers. Had it been a real attack, there would have been
hundreds dead and thousands sickened. The New London waterfront
would have been contaminated, and the economy of the entire
region would have been devastated.
The first responders who participated in this exercise
rushed to the scene and were tenacious in their efforts to aid
the victims. Our efforts in Congress, working with the private
sector and with the Administration to prevent such a chemical
attack must be the same.
Senator Lieberman.
OPENING STATEMENT OF SENATOR LIEBERMAN
Senator Lieberman. Thank you, Madam Chairman, for that
excellent statement, and thank you for your leadership on this
issue. You have identified this, I think, quite correctly, as a
gap in our homeland security defenses, and I am confident that
though this is a complex matter, that under your leadership we
are going to get something done to protect the American people
from the risk of chemical accidents in this session of
Congress.
Your opening statement, not surprisingly because we spend
so much time together, so clearly mirrors what I wanted to say
that I am just going to draw briefly from my statement and
include the rest of it in the record.
The first point is that we live in a society, in a world
where we depend on a diverse and remarkable assortment of
chemicals in our daily lives, from cleaning compounds to life-
saving medicines. Chemical plants, oil refineries, wastewater
treatment plants and pharmaceutical companies all manufacture
and store chemicals and pesticides in large quantities in
thousands of places around our country, often near large
population centers.
The fact is, the consequences of an accident or an attack,
which is what we are focused on here, are disastrous. I just
quote briefly from EPA, Environmental Protection Agency, which
says that there are at least 123 chemical facilities in the
United States where an attack or an accident could endanger a
million people. That is, at each of the 123 locations an attack
could endanger a million people because they are so near
concentrations of population. There are actually 3,000 chemical
facilities in the country where an attack could endanger 10,000
people. These are mega disasters that could occur.
The Army Surgeon General issued a report saying as many as
2.4 million people could be killed or injured in a terrorist
attack against a toxic chemical plant in a densely populated
area.
I always hesitate to read these numbers because one does
not want to create panic. On the other hand, they demonstrate--
from very independent dispassionate authorities--the risk here.
I am not going to recite, but Senator Collins has told us we
are on notice. There is ample evidence that terrorists have
attempted to strike at chemical facilities and that they intend
in the future to do that as well.
The good news here, slightly encouraging, given the
knowledge of the consequences of an attack and the intentions
of terrorists to attempt to attack chemical facilities, is that
some chemical companies are not waiting for Congress to tell
them how to improve their security. That is the good news. I
know that the Department of Homeland Security is working with
the chemical industry on several security initiatives. In fact,
the Maritime Transportation Security Act of 2002 and the
Bioterrorism Act of 2002 legislated important measures to
improve security at a number of chemical and water treatment
facilities, and several States are moving toward better
security in this area.
But the fact remains this morning that millions and
millions of Americans continue to be at risk from an attack on
a chemical plant, and many facilities that use extremely
hazardous chemicals are not covered by the patchwork of laws
and regulations now in place.
One of the witnesses that we are going to hear from today,
Richard Falkenrath, former White House Deputy Homeland Security
Adviser, told this Committee earlier this year that since
September 11, ``We have essentially done nothing'' in this
particular area, and that is an unacceptable reality.
Our first witness is Senator Jon Corzine of New Jersey. He
has been the Senate leader in this matter in attempting to
protect the American people from risk of an attack by
terrorists on a chemical facility or an accident there. He has
worked diligently to move legislation through the Congress and
a lot of us have supported him. But thus far to no avail.
The Administration has voiced general support for
legislation in the past, but actions speak louder than words,
and thus far, it has not provided the leadership necessary to
pass the legislation necessary to protect the American people.
I know, Madam Chairman, that at a future hearing on this
subject you intend to call representatives from the
Administration, particularly the Department of Homeland
Security, and I urge the Administration to commit to working
with this Committee on a bipartisan basis to help us pass
effective legislation during this session of Congress.
I thank you. I thank Senator Corzine. I thank the witnesses
who I am confident this morning will help us understand better
both the gravity of the current situation with regard to
chemical plants and facilities in this country, and how we can
urgently work to craft solutions that will protect the American
people.
Thank you.
[The prepared statement of Senator Lieberman follows:]
PREPARED STATEMENT OF SENATOR LIEBERMAN
Madam Chairman, thank you for holding this first of what we hope
will be a series of hearings on a critical gap in our homeland
security. Once again, you have demonstrated your willingness to roll up
your sleeves and tackle the hard issues and chemical security is
certainly one of the hard ones. But it is an area of such serious
vulnerability that we can't be deterred by its complexities. I
appreciate your leadership and, as always, I'm pleased to work with you
and the other Members of this Committee to try to address this gaping
hole in our homeland defense as expeditiously as possible.
No one can doubt that the vast and diverse chemical industry is
central to our way of life and to our economy. We rely on a multitude
of chemical substances in our daily lives, from cleaning compounds, to
life-saving medicines, to home heating oil. Chemical plants, oil
refineries, waste water treatment plants, and pharmaceutical companies
all manufacture and store industrial chemicals and pesticides in large
quantities in thousands of locations throughout the country, often near
larger population centers. If released into the atmosphere, many of
these chemicals could kill or maim hundreds of thousands of people--
which makes them an all too inviting target for terrorists.
The fact is, a chemical release from at least 123 plants scattered
throughout the land could endanger more than a million people,
according to the Environmental Protection Agency, and 3,000 facilities
around the country could threaten 10,000 people. Furthermore, the Army
Surgeon General has determined that as many as 2.4 million people could
be killed or injured in a terrorist attack against a toxic chemical
plant in a densely populated area. Even where chemical facilities are
more remote, there is a danger terrorists could buy or steal lethal
materials for use in strategically important or densely populated
areas.
Now, we have ample evidence that terrorists are working along these
lines. The Congressional Research Service reports that during the
1990's both international and domestic terrorists attempted to use
explosives to release chemicals from manufacturing and storage
facilities close to population centers. At least two of these incidents
occurred in the United States. One of the 1993 World Trade Center
bombers was employed as a chemical engineer and used company stationary
to order chemicals for a bomb used in that attack. Those same
terrorists stole cyanide from a chemical facility and were training to
introduce it into the ventilation systems of office buildings. In a
2002 report, the Justice Department described the threat posed by
terrorists to chemical facilities as ``both real and credible'' for the
foreseeable future. And, it has been reported that U.S. troops found
chemical trade publications in Al Qaeda camps in Afghanistan.
It doesn't take much imagination to picture the pain terrorists
could inflict by attacking a chemical facility. Two decades later, the
Bhopal horror is still fresh in our minds. At least 4,000 people were
killed and an estimated 400,000 injured from the release of a toxic gas
cloud from a chemical plant in central India in 1984. More recently,
when a train recently derailed in South Carolina and ruptured a
chlorine gas tanker car, 10 people were killed by the lethal fumes
which, according to EPA, affected an area two miles downwind from the
derailment. This was not a worst-case event since the gas release was
not instantaneous, but occurred over several days. If that had been an
intentional strike on a chlorine gas facility in a dense area, the
death toll could have been staggering. Indeed, the experts continually
tell us that the casualties of the September 11 attacks could pale by
comparison to an attack on a chemical facility in a densely populated
area.
Given our knowledge of the terrorists' desire to stage deadly
chemical attacks, some of the more responsible companies aren't waiting
for Congress to tell them how to improve their security. I know the
Department of Homeland Security is working with industry on several
security initiatives. The Maritime Transportation Security Act of 2002
and the Bioterrorism Act of 2002 legislated important measures to
improve security at a number of chemical and water treatment
facilities. And several states are on the road to better chemical
security.
But millions more Americans continue to be at risk, and many
facilities that use extremely hazardous chemicals are not covered by
the patchwork of laws and regulations now in place. When the lives and
livelihoods of so many Americans are at stake, relying on voluntary
initiatives by the chemical industry to adequately protect us simply is
not enough.
So, how much progress has the government made to address this
threat? Richard Falkenrath, former White House deputy homeland security
adviser, whom we will hear from today, has told this Committee that
since September 11 ``we have essentially done nothing''. That, clearly,
is a standard we cannot accept.
Senator Corzine--whose testimony I eagerly await this morning--has
worked diligently to move legislation through the Congress, and I
supported his efforts last session. Unfortunately, the status quo has
proven unmovable so far. The Administration has voiced support for
legislation in the past, but actions speak louder than words--and thus
far, it has not provided the leadership necessary to achieve it.
I look forward to hearing DHS's views at a future hearing and I
hope the Administration will commit to working with us to pass
effective legislation.
I'd like to thank the witnesses here today for sharing their
expertise with us. You can help us better understand the gravity of the
situation that confronts us, and provide guidance as we work to craft
solutions.
Thank you again, Madam Chairman, for providing your unique brand of
leadership on yet another issue central to the security of millions of
Americans.
Chairman Collins. Thank you. Senator Stevens.
OPENING STATEMENT OF SENATOR STEVENS
Senator Stevens. Madam Chairman, I am only going to be here
a few minutes. I have another hearing I am going to chair. I
stopped by to commend you for undertaking a very difficult and
complicated task.
Several years ago I monitored an international meeting in
Geneva that took place for several weeks of trying to determine
how to control the international movement of chemical and
biological substances that could be used for weaponry, and
those of us who work primarily here in the Senate on defense
matters are quite concerned, as you know, about the possibility
that we might face chemical and biological weapons used by
terrorists. So I do know from past inquiries into the subject,
it would be a very difficult task to get a bill passed that
will do what you seek to do, but I intend to work with you, and
I again encourage Senator Corzine and all of those concerned
with us, to work together on a bipartisan basis and try to do
our best to see if we can take the steps that is necessary to
get more information about these substances that could be used
as weaponry. Thank you.
Chairman Collins. Thank you. Senator Akaka.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. Thank you very much, Madam Chairman. I would
like to commend you for holding a hearing with distinguished
witnesses on a critical topic.
I want to welcome particularly our colleague from New
Jersey, Jon Corzine, to this Committee, and also our
distinguished witnesses. I appreciate you sharing your
expertise with our Committee today.
Securing the Nation's critical infrastructure while
fostering the free flow of commerce upon which the United
States relies is a considerable challenge. In no sector is the
need to attain this balance more pressing than in the chemical
industry.
According to the EPA there are 123 chemical plants located
throughout the Nation that could each potentially expose more
than a million people if a chemical release occurred.
In 2003, the Administration produced the National Strategy
for the Physical Protection of Critical Infrastructures and Key
Assets, which noted that, ``There is currently no clear
unambiguous legal or regulatory authority at the Federal level
to help ensure comprehensive uniform security standards for
chemical facilities.''
The strategy directed DHS and the EPA to work with Congress
to enact legislation to require certain chemical facilities,
particularly those that maintain large quantities of hazardous
chemicals in close proximity to population centers, to
undertake vulnerability assessments and take reasonable steps
to reduce the vulnerabilities identified.
To date no legislation has been enacted because Congress
cannot reach a consensus on how strict the regulation should
be. Securing chemicals is done mostly by industry on a
voluntary basis, and the only statutes regulating the chemical
sector are the Maritime Transportation Security Act, which
covers facilities near ports, and the Bioterrorism Act, which
covers the water sector. A large portion of the Nation's
chemical industry is not subject to security regulations.
As with any industry, there is debate on how to balance
commerce and security. Our intent is not to cripple industry,
which could hurt the economy or reduce jobs, but to ensure
Americans are adequately protected from an accidental or
intentional chemical release. We must also ask how increased
government regulation will affect industrial competitiveness.
Some chemical facilities that adhere to the industry
voluntary security code have argued that they are at a
disadvantage compared to those facilities that do not
voluntarily increase security because they are spending
millions on this added expense.
Madam Chairman, I welcome this opportunity to further
explore how we can better secure the chemical industry and
minimize risk to the American people. I look forward to the
testimony of witnesses and to working on this problem in the
future. I ask that my full statement be included in the record.
Chairman Collins. Without objection.
[The prepared statement of Senator Akaka follows:]
PREPARED STATEMENT OF SENATOR AKAKA
Thank you Madam Chairman, I would like to commend you on holding a
hearing on this critical topic. I welcome our distinguished witnesses
and appreciate them sharing their expertise with our Committee today.
Securing the Nation's critical infrastructure while fostering the
free flow of commerce upon which the United States relies is a
considerable challenge. In no sector is the need to attain this balance
more pressing than in the chemical industry.
The accidental release of methyl isocyanate from a chemical plant
in India in 1984, and the thousands of lives lost in the process
demonstrates the lethality of industrial chemicals. Intelligence
reports tell us that this is a lesson terrorist groups have taken to
heart. In May 1995, a Japanese cult released Sarin on five subway
trains in downtown Tokyo. And according to a February 2004 Government
Accountability Office (GAO) report, ``experts agree that chemical
facilities present an attractive target for terrorists intent on
causing massive damage.'' In fact, 20 of the terrorist attacks
attempted over the past decade involved a chemical agent.
Accoridng to the Environmental Protection Agency (EPA), there are
123 chemical plants located throughout the Nation that could each
potentially expose more than a million people if a chemical release
occurred.
In 2003, the Administration issued ``The National Strategy for the
Physical Protection of Critical Infrastructures and Key Assets'' which
noted that ``there is currently no clear, unambiguous legal or
regulatory authority at the Federal level to help ensure comprehensive,
uniform security standards for chemical facilities.'' The Strategy
directed the Department of Homeland Security (DHS) and the EPA to work
with Congress to enact legislation to require certain chemical
facilities, particularly those that maintain large quantities of
hazardous chemicals in close proximity to population centers, to
undertake vulnerability assessments and take reasonable steps to reduce
the vulnerabilities identified. To date, no legislation has been
enacted.
Securing chemicals is done mostly by industry on a voluntary basis.
The only statutes regulating the chemical sector are the Maritime
Transportation Security Act (P.L. 107-295), which covers facilities
near seaports, and the Bioterrorism Act (P.L. 107-188), which covers
the water sector. A large portion of the Nation's chemical industry is
not subject to security regulations.
One of the issues we will discuss today is whether self-regulation
of the chemical sector is sufficient. While the chemical industry has
come together to self-regulate since September 11, only a little over
half of the 4,000 chemical manufacturing facilities reportedly adhere
to the voluntary security standards. According to a March 2005 GAO
report, the regulated chemical facilities GAO visited achieved a higher
level of security than the unregulated facilities.
As with any industry, there is debate on how to balance commerce
and security. Our intent is not to cripple any single industry which
could hurt the economy or reduce jobs, but to ensure Americans are
adequately protected from an accidental or intentional chemical
release.
A good example of this debate is the legal battle the District of
Columbia is currently engaged in with CSX Transportation, a rail
transit company, regarding the District's recent decision to ban trains
carrying hazardous materials from traveling within 2.2 miles of the
Capitol.
We must also ask how increased government regulation will affect
industrial competitiveness. Some chemical facilities that adhere to the
industry voluntary security code have argued that they are at a
disadvantage compared to those facilities that do not voluntarily
increase security because they are spending millions on this added
expense.
Madam Chairman, I welcome this opportunity to further explore how
we can better secure the chemical industry and minimize risk to the
American people. I look forward to the testimony of our witnesses.
Chairman Collins. Thank you, Senator Akaka. Senator
Voinovich.
OPENING STATEMENT OF SENATOR VOINOVICH
Senator Voinovich. Thank you, Madam Chairman, for holding
this hearing today.
I also want to thank each of the witnesses for joining us
and sharing your expertise.
Chemical security is of critical importance to our homeland
security. The chemical industry is a major part of our Nation's
economic infrastructure and vitality. The chemical industry
plays a key role in our high quality of life, whether it be
crop production, temperature control, water chlorinization,
household cleaners or life-saving medications.
I would like to begin by acknowledging the work that the
chemical industry has done to self-regulate in the absence of
Federal legislation. I share the same thanks as other Members
of this Committee. The American Chemistry Council has been a
leader in their voluntary efforts to enhance security at
chemical facilities. I applaud the industry's efforts to work
toward uniformity and consistency in national standards for
security.
But we must be mindful that regulation does not place the
industry at a competitive disadvantage. In Ohio the chemical
industry directly employs almost 50,000 people. Each one of
these jobs creates an additional 6.2 jobs. The chemical
industry is already experiencing economic hardships as a result
of high natural gas costs. As a nation, we have gone from a net
exporter of chemicals to a net importer.
Though it is clear that a Federal role is necessary to meet
today's security concerns, any Federal action should adhere to
a comprehensive cost benefit analysis.
The issue of chemical manufacturing security has been
before us for some time. I have been involved in this debate
since early 2002 when it was before the Environment and Public
Works Committee.
In December 2003, chemical security regulation was moved
from the EPA and given to DHS, and it is now a matter for our
Committee. Any legislation to enhance chemical facility
security should be sharply focused on prevention and
consequence management of a potential terrorist attack. Federal
action to address chemical vulnerabilities must not be burdened
with extraneous issues.
Additionally, we must be attentive to requirements that
would compromise the security of the various facilities that we
are working to protect. For instance, specific chemical
facility vulnerabilities must be guarded from unnecessary
public disclosure. Only responsible government authorities need
to have access to such information. Most people are not aware
that the Federal Government already mandates disclosure by
chemical facilities of the kinds of chemicals they have on
their premises requires that they have developed inspections to
ensure that safety measures and a strategy to respond are in
place in the event of an accident.
I would suggest, Madam Chairman, that the Committee have a
closed session with the chemical industry where they can share
candidly what they are now doing in terms of security and how
legislation can be enhanced to set standards to which the
industry must adhere.
I mention this because we addressed the security of nuclear
facilities before the EPW Committee. There were all kinds of
accusations being made about the level of security at our
nuclear facilities. It was suggested we have a closed session.
It was interesting. All but one of the members who had raised
concerns had their concerns responded to. So it might be a good
idea to consider closed-door hearings at a later date. Thank
you.
Chairman Collins. Thank you. Senator Lautenberg.
OPENING STATEMENT OF SENATOR LAUTENBERG
Senator Lautenberg. Thank you, Madam Chairman, for calling
this hearing and having the witnesses who are going to testify
talk about the issue with their experiences.
I am particularly pleased to see my colleague, Senator Jon
Corzine, here. He needs no introduction, but he does need the
thanks of the people in New Jersey for his persistence in
trying to keep this subject alive, to try and keep those lives
going in New Jersey where we have the most densely populated
State in the country, and lots and lots of chemical facilities.
People make their living working in these places and it helps
our economy substantially.
But when we look at South Kearny, New Jersey, where it is
said that more than a million people could be killed if there
was either an accident or an attack in that facility, and so it
is throughout the State.
To confirm something that took place, Madam Chairman, in an
earlier meeting of this Committee when we discussed the risk
criteria for homeland security grants--and I note there was an
Associated Press report that Governor Kean and Lee Hamilton
intend to hold hearings. They no longer have the commission,
but they intend to hold hearings in June and July to give a
report card to the structure of the intelligence program that
we have that would tell us whether or not we are doing the
right thing.
And I had a chance meeting with Governor Kean last night
when he insisted that the risk factor has to be the determinant
about how grants are made.
So, Madam Chairman, I ask that my full statement be
included in the record, and I would hope, since I heard Senator
Lieberman suggest that we hold hearings in the future, that we
would have people from EPA as well as Homeland Security with us
to give us their insight into what the problems are and how we
might solve them. Thank you very much, Madam Chairman.
[The prepared statement of Senator Lautenberg follows:]
PREPARED STATEMENT OF SENATOR LAUTENBERG
Mr. Chairman, thank you for convening this hearing on this critical
topic.
As you know, I took a brief sabbatical from the Senate several
years ago.
One of the last bills I introduced before I left was a measure to
increase security at chemical plants in our country.
I was concerned that our chemical plants were vulnerable to an
attack by terrorists that could kill thousands of Americans. But few
shared my concern at that time, and I wasn't able to pass the bill.
After I left the Senate at the beginning of 2001, my colleague
Senator Corzine took up the cause of trying to make chemical plants
less vulnerable to terrorists.
Today, in the wake of September 11, we are all aware that chemical
facilities present an inviting target for terrorists.
Unfortunately, we still haven't translated that awareness into
action.
The 9/11 Commission cautioned that we must not focus so much on the
last attack that we miss the next attempt to strike our country.
I'm afraid we have failed to absorb that lesson as well as we
should.
And chemical plant security is one of the most glaring examples of
that failure.
There are about 15,000 chemical facilities in the country. More
than half of them are in locations where an attack could kill more than
one thousand people.
The most vulnerable area is around South Kearney, New Jersey. An
attack on a chlorine facility there would have the potential to kill or
injure as many as 12 million people.
Mr. Chairman, the attacks of September 11 were devastating. My
state lost 700 of our friends, neighbors and loved ones that day. We
all hope that we never see the like of it again.
But the fact is, a terrorist attack on a chemical facility could be
even worse.
And by ignoring the threat, we might be inviting such an attack,
because terrorism experts say our enemies like to focus on poorly
security ``soft'' targets.
In other words, we won't win the war on terror by fighting the
previous battle.
I thank all the witnesses who are with us today, and I look forward
to hearing their views on this crucial issue.
Chairman Collins. Thank you, Senator.
I am now pleased to welcome our first witness. Before doing
so, I want to note that Senator Inhofe, who has also worked
very hard on this issue in the previous Congress, could not be
with us today because he is managing the highway bill on the
Senate floor. He has, however, submitted a written statement
which will be included in the record.\1\
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\1\ The prepared statement of Senator Inhofe appears in the
Appendix on page 38.
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I am now very pleased to welcome our distinguished
colleagues, Senator Corzine of New Jersey. As my colleagues
have mentioned, he has been a leader on this issue. He came to
see me at the very beginning of this Congress to suggest that
the Committee delve into this now that we have our new
jurisdiction.
I also want to note that his other colleague from New
Jersey has long been active in this area as well.
I noticed in doing some, or my staff noticed in doing some
research that Senator Lautenberg had introduced legislation
back in the 1990's on this issue, so I want to acknowledge his
leadership as well.
Senator Corzine, we are very pleased to have you here, and
I would ask that you proceed with your statement.
TESTIMONY OF HON. JON S. CORZINE,\1\ A U.S. SENATOR FROM THE
STATE OF NEW JERSEY
Senator Corzine. Thank you, Madam Chairman. I want to thank
the Ranking Member and all the Members of the Committee for
their interest and concern about an issue that I feel
passionately about, and it is a real issue driven by concern to
represent the people that live in my State. We are the most
densely populated State in the Nation, and chemical plants are
located among those large areas of population.
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\1\ The prepared statement of Senator Corzine appears in the
Appendix on page 47.
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I failed to get a good board presentation, but yesterday's
USA Today had a picture of the plant that Senator Lautenberg
talked about, who has worked on this issue so ably for a number
of years. And you see a chlorine plant that is in the midst of
what the EPA would say, 12 million people, would be exposed by
an explosion, but it also is a plant that sits below a
superhighway, where cars traverse over the top of it every
single day. It is about a mile and a half from the Holland
Tunnel.
This is an example of vulnerability and a threat with large
consequences, which I think require that those of us in public
life speak out and try to protect the population that surrounds
that area. We have 11 of these sites in New Jersey where a
million people, according to the EPA statistics, and these are
123 chemical facilities, as others have noted.
The need is real, and as many of the Members of the
Committee have pointed out, I think it is something that is
self-evident. Experts have talked to you about it. I am
extremely pleased at your witness list that will be testifying,
which have spoken out on this issue, Mr. Falkenrath and Steve
Flynn--and this goes back to Warren Rudman and Tom Ridge who
have actually identified these issues as ones that need to be
addressed in our homeland security strategy.
I do not think we, as Senators, or as public officials,
will be able to justify the reality of any attack on these
facilities because we have been warned. This is not something
that has not caught the eye of experts and people who have
followed the issue through time. So I hope that the cause is
recognized by reality.
By the way, I do believe in this balance between industry
and protecting our people, whether it is in New Jersey or
across the country. We have 60,000 people who work in our
pharmaceutical industry in New Jersey, and they do a terrific
job of protecting their plants. I think the point that Senator
Akaka makes about some people do and some people do not, and we
do not know, I think is a dangerous concept to be understood.
The facts are real. Oil refinery plant in Texas in March
blew up, killed 14 people. Train derailment in Graniteville,
South Carolina, where in a rural area nine people were killed
from a chlorine explosion. Multiple deaths in a number of
incidents in New Jersey through time, three killed this year in
Perth Amboy, and the Chairman spoke about Bhopal.
This is a real and present danger and I think we would be
remiss if we did not develop a strategy. And we need to find a
bipartisan consensus, and I certainly hope to work with the
Chairman and Ranking Member and others to try to bring this to
conclusion.
I will just mention a few of the variables that I think
this legislation should include, which are included in my more
lengthy statement, which reflects a lot of the work that we
have done over the years, in the 107th, 108th, and now in the
109th Congress. Fortunately, the jurisdiction, well, not
fortunately, but the reality of the jurisdiction is the
Department of Homeland Security, appropriately in this
Committee today. I think that is a major change from history.
I do think we need both site regulation and consideration
of alternative production approaches, not mandated, but
alternative approaches to be examined, and where possible one
could find ways to reduce risk of an attack occurred are
sensible. We certainly had this case here in Washington where a
sewage treatment plant, Blue Plains, moved from using chlorine
and sulfur dioxide to sodium hypochlorite, and it was a very
simple shift of how they operated in the facilities that made a
big difference in the protection of all of our capital. The
Committee can examine the specifics of that, and there are
other cases around the country. This just happens to be one
where chlorine could have infected the whole of our capital,
including the White House and the Capitol. I think we need to
look at alternative approaches. They need not be mandated but
they need to be observed and made certain that they have been
examined.
We need to make sure that we assess whether industry
guidelines, substantially equivalent guidelines are adequate
and whether they are subject to the kind of review and
monitoring that makes them successful, and would give the
public certainty that real changes have been made, and they
should, in my view, include these alternative approaches to
production.
Finally, I think it would be worthwhile, certainly
worthwhile, that some provisions with regard to coordination to
first responders in a local area be included in plans that are
developed with regard to individual plants. Are there
procedures put in place to respond to the kind of attack or
accident that might occur, and are people prepared? Which does
bring into consideration the kinds of things that Senator
Voinovich talked about, dealing with information dissemination
and making sure that we are not providing a blueprint for folks
to attack. I think these are all important issues.
There is another element of prioritization. My efforts on
this effort have not been focused on ammonia plants in North
Dakota. They have been focused on trying to prioritize those
places where you have the greatest consequences if there is an
explosion. So I think the tension that comes with that, I hope,
will not set up a dynamic that will not allow for moving
forward.
This is an issue where I think lives are at stake. We would
not tolerate this kind of site security oversight at our
nuclear power plants. The public knows that. We have great
concern to make sure there is a strong regulatory oversight
function with regard to our maritime facilities that
potentially pose risks. We should not allow it in these areas
where literally hundreds of thousands of people could be
exposed.
I once again want to compliment the Chairman and the
Committee for taking on this issue. I intend to be as fully
bipartisan and cooperative. I think this is a need that the
public deserves to have our Congress and the Administration act
on, and anything that can make that happen will please me, and
I will be happy to work with the Committee going forward.
Thank you very much.
Chairman Collins. Thank you very much, Senator. I know that
you have a hectic schedule, and so I would suggest, unless any
of my colleagues have a burning question to ask Senator
Corzine, that we just submit any questions for the record so
that he can resume his schedule.
Senator Corzine. Thank you.
Chairman Collins. Thank you. I would now like to call for
our next panel of witnesses. The first witness that we will
hear from today, after Senator Corzine, obviously, is Carolyn
Merritt, the Chairman and CEO of the U.S. Chemical Safety and
Hazard Investigation Board. Ms. Merritt brings an analytical
chemistry background to her some 30 years of experience in
process engineering and environmental and safety management.
She has worked with a wide range of chemical processing and
manufacturing industries, and we are very pleased to have her
here today.
Next we will hear from John Stephenson, the Director of
Natural Resources and Environment Issues with the U.S.
Government Accountability Office. We are very pleased to have
him share his expertise with us today.
The third panelist is Dr. Richard Falkenrath, who is a
Visiting Fellow in Foreign Policy Studies at The Brookings
Institution here in Washington, DC. Dr. Falkenrath was another
individual who brought this issue to the Committee's attention
with his testimony earlier this year. He has served as Deputy
Assistant to the President for Homeland Security, and as the
Senior Director for Policy and Special Assistant to the
President in the Office of Homeland Security.
And finally we will hear from Dr. Stephen Flynn, who is the
Jeane J. Kirkpatrick Senior Fellow for National Security
Studies at the Council on Foreign Relations. Dr. Flynn has
testified before this Committee on a wide variety of homeland
security issues and it is always a pleasure to welcome him
back. I would also note that when he was in the Coast Guard he
was stationed in Maine for 2 years, and that alone gives him
great credibility with the Chairman at least. [Laughter.]
Chairman Merritt, we are going to start with you, and we
thank you for being here today.
TESTIMONY OF HON. CAROLYN W. MERRITT,\1\ CHAIRMAN AND CHIEF
EXECUTIVE OFFICER, U.S. CHEMICAL SAFETY AND HAZARD
INVESTIGATION BOARD
Ms. Merritt. Thank you, Madam Chairman, Senator Lieberman
and Members of the Committee. Thank you for the opportunity to
testify this morning. I commend you for convening this hearing.
Protecting the public from chemical emergencies is an important
responsibility of the Federal Government.
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\1\ The prepared statement of Ms. Merritt appears in the Appendix
on page 53.
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The U.S. Chemical Safety and Hazard Investigation Board, or
the CSB, is an independent, nonregulatory, Federal agency
established in 1998. We investigate major chemical accidents at
fixed industrial facilities, determine root causes and make
safety recommendations. The Board does not investigate
transportation related chemical accidents, site security, or
criminal acts.
Madam Chairman, since the Chemical Safety Board was
founded, we have learned something very troubling. Many
incidents that the Chemical Safety Board has investigated
reveal serious gaps in how well companies, emergency
responders, government authorities and the public are prepared
for a major chemical release. These gaps in preparedness leaves
Americans vulnerable.
In December of last year I traveled to India for the 20th
anniversary of the chemical plant tragedy in Bhopal. In that
accident on December 3, 1984, about 43 tons of toxic methyl
isocyanate were released into the air from a U.S.-owned
pesticide plant. About 3,000 people died within a few hours,
and more than 200,000 people sustained permanent injuries.
The death toll of the Bhopal accident was extraordinary,
but the accident itself was not. The amount of toxic material
released, 43 tons, would fit comfortably into just one rail
car. Safety experts have concluded that the Bhopal gas release
was caused by a combination of poor operating practice, poor
maintenance and the deterioration of installed safety
equipment. Overall the residents in the city of Bhopal were
caught totally unprepared for this accident, making this
incident particularly devastating.
For example, many people who were told to evacuate ran
directly into the toxic cloud and died in the streets, while
many who stayed in their shanty homes survived. Better
preparedness could have saved lives, was what the Bhopal police
chief told me himself.
We have had some major chemical releases in the United
States, including most recently a release of about 60 tons of
chlorine from a rail car in Graniteville, South Carolina, which
took 10 lives in a small town.
A similar chlorine release occurred in rural Texas last
year where two freight trains collided, four people were killed
by chlorine gas, and people 10 miles away reported symptoms of
exposure.
Fortunately, these accidents occurred in sparsely populated
areas. A large-scale toxic gas release is quite capable of
causing thousands of casualties if the conditions are right,
the release is rapid and it occurs in a major city. We have
seen it overseas. We have seen it projected in computer models,
and we could see it in the future here in the United States as
a result of a terrorist act or perhaps an accident.
At many fixed industrial sites there are chemical storage
tanks that are far larger than any rail car. When I was an
industrial safety executive we knew of an ammonia storage tank
in a major U.S. port that could have jeopardized nearly a
million people in the case of total failure.
In addition to a large storage tank, there is also a large
number of stationary rail cars parked in chemical plants, in
freight yards and other sites around the country.
Overall we have an excellent record in this country of
minimizing off-site fatalities from ordinary chemical releases
at fixed industrial sites.
But some of our success is also due to luck. Among the
accident cases that we have investigated, a deficiency in
emergency response is more often the rule than the exception.
For example, in August 2002, a chemical repackaging
facility near St. Louis had a release of chlorine gas from a
faulty transfer hose connected to a rail car. The automatic
shut-down system failed to work because it had not been
properly maintained or tested. Emergency protective equipment
was stored too close to the rail car and became immediately
inaccessible. The local volunteer hazmat team was not prepared
and it took them 3 hours to eventually shut off the leak. By
then some 48,000 pounds of chlorine had been released. There
were no warning sirens and firefighters had to go door to door
in an effort to evacuate residents. Only some fortuitous
circumstances, including the time of day and the direction of
the wind spared local residents from what could have been a
catastrophe.
Probably the most telling incident occurred in Dalton,
Georgia just a year ago. During the very first production batch
at a local chemical company, a reactor overheated and began
spewing toxic and flammable allyl alcohol into the air. There
was no safety equipment in place to contain the release. The
toxic vapor cloud formed and drifted toward a residential
community. The 31,000 pounds of allyl alcohol at the plant was
more than double the threshold allowed under EPA's Risk
Management Program rules. But company managers did not even
know that the rule existed. They did not take required steps to
prevent or contain a release, and they did not develop a
required emergency response plan.
In addition, the fire department lacked equipment or
protective clothing for a large toxic chemical release. The
community has no hazmat unit and no warning sirens. Unprotected
police personnel went door to door notifying residents to
leave. The evacuation exposed responders and residents to the
toxic gas. An overwhelmed local hospital had to decontaminate
154 people, including 13 police officers and 3 ambulance
personnel.
Fortunately, all the residents and responders survived. A
heavy rainstorm helped to scrub the toxic gas from the air that
night, probably preventing a more serious consequence.
We also learned that Georgia designated a single local
emergency planning committee for the entire State, and
jurisdictions like Whitfield county, where Dalton is located,
are without functioning LEPCs.
There are numerous other examples cited in my written
testimony. But I am disturbed by what the CSB investigations
have shown. At a minimum they point to the need for a
comprehensive national review of emergency preparedness. Until
we have effective safety systems and equipment at all chemical
facilities, protected control rooms, mitigation and containment
systems, and effective emergency preparedness in every
community from coast to coast, our people will continue to be
vulnerable and exposed to preventable risks.
We all hope and pray that such a release or act of
terrorism never occurs, but if such a disaster should happen we
must be prepared to respond quickly and effectively to save
every life that we can. The time for planning is now, not after
a tragedy. And I commend you, your leadership, and this
Committee for convening this hearing today, before a tragedy
occurs.
Thank you.
Chairman Collins. Thank you for your testimony. Mr.
Stephenson.
TESTIMONY OF JOHN B. STEPHENSON,\1\ DIRECTOR, NATURAL RESOURCES
AND ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE
Mr. Stephenson. Thank you, Madam Chairman and Members of
the Committee. Thank you for this opportunity to discuss our
work on chemical security preparedness. As the events of
September 11 so vividly showed, a terrorist attack on the
Nation's critical infrastructure can cause enormous damage to
our country and to our citizens. The President identified the
Nation's chemical facilities among the infrastructures and key
resources that could be exploited to cause catastrophic health
effects or mass casualties. Indeed, some have called chemical
facilities one of the most attractive targets for terrorists
intent on causing massive damage. We all know that the chemical
industry is essential to our economy and to our way of life.
Chemicals are needed to manufacture thousands of products such
as those used in agriculture, pharmaceuticals, food processing,
and drinking water and wastewater treatment.
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\1\ The prepared statement of Mr. Stephenson appears in the
Appendix on page 59.
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But because many chemicals are inherently hazardous, the
release of chemicals at these facilities poses serious threat.
In the absence of Federal legislation, the private sector
currently bears the primary responsibility for protecting
chemical facilities from deliberate acts of terrorism. However,
Federal, State, and local governments have for many years
worked in partnership with the private sector to protect
facilities from accidental chemical releases.
Since 1990, the Environment Protection Agency has regulated
about 15,000 facilities that produce, use, or store more than
threshold amounts of 140 dangerous chemicals. For this reason,
EPA initially had the lead responsibility for protecting the
chemical sector, whereas the Department of Homeland Security is
now the lead Federal agency.
So why do chemical facilities pose such a serious threat?
You have heard a lot of information today already. Many
facilities house chemicals that, if released, could become
airborne and drift, in some cases for several miles, to
surrounding communities or could be stolen and used to create a
weapon. The Department of Justice has concluded that the risk
of an attempt to cause an industrial chemical release in the
foreseeable future is both real and credible. And in the
February 2002 testimony, the Director of the CIA warned of the
potential of an attack by al Qaeda on chemical facilities.
All of us have referred to Bhopal, and, indeed, that
incident 20 years ago has caused legislation to be passed on
community-right-to-know laws, etc. So it is true that Federal
regulation and industry safety precautions taken since that
time probably would avoid a repeat of such a huge disaster. It,
nevertheless, vividly illustrates the potential consequences of
a chemical release.
A 2002 Brookings Institution report ranked an attack on
toxic chemical plants behind only biological and atomic attacks
in terms of possible fatalities. Despite these risks, no one
has comprehensively assessed security across the Nation's
chemical facilities. Media exposes showing easy access to
chemical tanks and computer centers at U.S. chemical plants
have raised doubts about security. While DHS and EPA have
visited a number of facilities to discuss security, the results
of these visits are at this point unclear.
While DHS is still trying to define the specific number and
type of facilities that comprise the chemical infrastructure
sector, the 15,000 or so facilities currently under EPA's risk
management program are a useful starting point, as each of
these facilities house large quantities of dangerous chemicals.
According to EPA data on worst-case accidental release
scenarios--and you have already heard these numbers--123
chemical facilities could each potentially put at risk more
than 1 million people to a cloud of toxic gas; about 600 could
each potentially threaten from 100,000 to 1 million; and about
2,300 such facilities could each potentially threaten from
10,000 to 100,000.
DHS and EPA believe these estimates are overstated because,
depending upon wind direction, safety precautions, rapidness of
response, and other factors, the entire population in the
vulnerability zone surrounding a plant would likely not be
affected. However, because the scenarios estimate the effects
of the chemical release involving the greatest amount of toxic
chemical in a single vessel, not the entire quantity on site,
an attack that breached multiple vessels could increase the
consequences. Although the exact number of people at risk may
be arguable, it is undoubtedly in the tens of millions.
Of concern to us is that while other high-risk sectors such
as drinking water and nuclear facilities are subject to Federal
security requirements, no such requirements currently exist for
chemical facilities. About 23 of the 15,000 RMP facilities are
currently covered by Federal legislation in other sectors, such
as the Bioterrorism Act for drinking water facilities or the
Maritime Transportation Security Act for port facilities. But
unlike these sectors, there are no Federal vulnerability
assessment or safety and emergency response requirements for
chemical facilities.
Without specific authority to require chemical facilities
to improve security, DHS has worked voluntarily with the
chemical industry to provide financial assistance, share
information about infrastructure protection, provide training
and exercises and assess facility vulnerabilities and
recommended security improvements at a few facilities. Chemical
industry associations also have initiatives underway. Most
notably, the American Chemistry Council requires its member
facilities, which include about 1,000 of the 15,000 facilities,
to assess vulnerabilities develop security plans, implement
security measures, and undergo a third-party verification that
security measures were implemented. Other industry associations
also are imposing a number of security requirements on their
members, but the extent of participation in these initiatives
or their results is at this point unclear.
DHS has a number of efforts underway, including the
development of a chemical security sector plan, but these
programs are still in their infancy, and the plan is not yet
final. All of these efforts are commendable, but at the end of
the day, we still don't know the overall extent of security
preparedness in this critical sector.
To ensure that security vulnerabilities at chemical
facilities are addressed, we recommended 2 years ago in our
2003 report that EPA and DHS develop a comprehensive national
chemical security strategy that included a legislative proposal
to require facilities to assess their vulnerabilities and take
any needed corrective actions. DHS and EPA, while they
generally agreed with our recommendations at that time, have
yet to implement them. We plan to continue to evaluate DHS' and
other efforts as part of our ongoing work for this Committee,
including an analysis of existing and needed legislation.
Madam Chairman, that concludes my statement, and I will be
happy to answer questions as well.
Chairman Collins. Thank you. Dr. Falkenrath.
TESTIMONY OF RICHARD A. FALKENRATH, PH.D.,\1\ VISITING FELLOW,
FOREIGN POLICY STUDIES, THE BROOKINGS INSTITUTION
Mr. Falkenrath. Thank you, Madam Chairman, for the
invitation to be here. Your opening statement and the
statements by the other members of the Committee were so good
and on point that I am able to shorten my introductory remarks
substantially. I want to just make five points and then turn to
the proposed legislative solution that I made at length in my
written statement.
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\1\ The prepared statement of Mr. Falkenrath appears in the
Appendix on page 75.
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First, I agree entirely with what Senator Voinovich had to
say about the need to protect this information concerning our
vulnerabilities. I am very worried about the media exposes that
have occurred into these plants and facilities, which are
highly dangerous, and I regret that public meetings of this
sort are necessary. I think they are at this time, but I am
worried about the easy accessibility of what is essentially
terrorist targeting information concerning our most serious
civilian vulnerability. So that is a caveat.
Second point: On September 11, the basic strategy of al
Qaeda was to identify a commonplace system in our midst that we
relied upon every day and attack in such a way that they could
achieve catastrophic secondary effects. The security in that
system--in this case, fully fueled civilian airliners--was
quite poor. We were complacent about it. We no longer are
complacent about that security, but it stands to reason that al
Qaeda is looking for other targets in our midst which, if
attacked, could produce catastrophic civilian casualties. If
you were to ask me what is the most likely follow-on attack to
September 11, it would be an attack in that model, but not
against aircraft, against something else that was like aircraft
on September 11.
Our most important responsibility is to prevent attacks
before they occur, primarily by identifying the perpetrators
and the plotters and making it impossible for them to carry
their attack out. That is the subject of a very energetic
effort in the Executive Branch--counterterrorism and prevention
and intelligence. A huge amount of energy and personnel are
dedicated to that responsibility. But there is another part of
our strategy that is less well developed, and that is to play
in a sense strategic defense against al Qaeda's most likely
next tactics, to identify the sorts of targets which, if
attacked, could cause us greatest harm and would have greatest
likelihood of coming off successfully from the terrorist point
of view. That is what we call critical infrastructure
protection. It is a unique mission of the Department of
Homeland Security. Prior to the creation of the Department of
Homeland Security, no Federal department or agency had this
responsibility comprehensively. It is one of the few genuinely
new missions of DHS.
Now, the essence of playing strategic defense is to start
thinking like al Qaeda in reverse and think which targets, if
attacked, would cause us the greatest harm and present the most
likely probability of success for the terrorists, and that is
massive casualties in the first instance.
When you do that analysis, when you look at all of the
different targets that could be attacked in the United States--
and there are many--and ask yourself which ones present the
greatest possibility of mass casualties and are the least well
secured at the present time, one target set flies off the page,
and that is chemicals--in particular, toxic inhalation hazard
chemicals, not necessarily explosive ones; chemicals which, if
inhaled, are highly damaging to human health.
This is an absolutely inescapable conclusion from the
analysis that you have to do if you are trying to play defense
against al Qaeda's next attack, and it is one that was very
apparent to me in my official capacity and remains apparent to
me now as a private citizen. So this is the appropriate focus
for this Committee, and I am glad you are turning your
attention to it. The chemicals that we are talking about today
are in many cases identical to those used on the battlefields
of World War I. They are enormously dangerous. They are
produced in truly massive quantities, shipped and stored in
many cases next to very dense urban populations, and present in
my opinion the single greatest danger of a potential terrorist
attack in our country today.
So, fifth point, what have we done about this threat today?
I think it is safe to say that the Federal Government has made
itself no material reduction in the inherent vulnerability of
this target set since September 11. It is important to separate
between the vulnerability of chemical facilities and the
vulnerability of chemical conveyances in the transportation
area.
In the conveyance area, the Executive Branch currently has
very strong regulatory authorities and could, if it chose, take
action to improve--to require the shippers of hazardous
chemicals to improve the security of their conveyances. To
date, the Executive Branch has not done so.
On the facilities side, in my opinion the Federal
Government does not currently have the authority to take action
and require the owners of chemical facilities to improve the
security of their complexes. Some have argued that the general
duty clause of the Clean Air Act is sufficient legal authority.
I disagree with that. And in any case, an economic intervention
of this magnitude is the sort of thing which really deserves
unambiguous congressional authorization. So even if legally you
could make the claim that the general duty clause was
sufficient, politically I think it is imprudent to do so.
So I think the gist of what we have heard today is correct.
There is a pressing need for a legislative solution to this
problem and, in particular, a new regulatory regime for
chemical security. And in my remaining time, I am going to
outline what I think that regime should look like.
First, a couple general principles. I believe the regime
should be very strict, should impose very strong regulatory
powers to the Department of Homeland Security, but that the
regime should be risk-based and market-based, and that there is
a way to do that.
Second, again, I agree with Senator Voinovich. The regime
should be focused tightly on the security of this target set
against deliberate terrorist attack and should exclude
extraneous issues. It should not be a back door for
environmental regulation or safety regulation. Those issues
should be addressed in the appropriate legislative process, but
I would say keep them separate from the security regime. Keep
the regime focused on improving the security and reducing the
vulnerability of these plants.
And the third general principle, I will just repeat what I
said before. It should provide for the protection of the
information related to this vulnerability. We should not, as a
result of this legislation, if it is enacted, make terrorist
targeting information more available as a result of it. That
would be a bad outcome, in my judgment.
I think the regulatory approach should have six basic
parts. The first should be a compulsory comprehensive inventory
maintained by the Department of Homeland Security of every
chemical storage facility and conveyance in the country, and
this should be updated regularly, and they should just have it.
It should be highly detailed and should contain information
about the physical security at every site and every
transportation node and system in the country. It is a big
task, but I think it is required. Such an inventory does not
currently exist. There is no comprehensive picture of the size
and nature and security of this complex.
I will give a small anecdote which relates to Chairman
Merritt's anecdote. At one point the Federal Government raised
the alert level from yellow to orange, and at that time we
actually sent out a list of facilities that we were worried
about to State and local authorities and encouraged them
voluntarily to take protective action at those facilities. It
turns out there was a chemical plant on that list in at least
one city in the Northeast that the local chief of police did
not even know existed. He did not know it was there. And when
his squad cars pulled up after they received this, it was the
first time he knew that there was a chlorine storage tank right
next to an urban population in a major city.
Second major point of the legislation: I think once the
inventory is established, the Secretary of Homeland Security
should devise standards for the inventory, and these should be
tiered. Not all chemical plants present the exact same risk.
Some are far more dangerous than others. And I think he needs
to take the inventory he has and break it up into select tiers
and for each define very precisely the standards.
Third, the owners of the chemical facilities need to
certify that the standards have been met at some appropriate
timetable.
Fourth, the Secretary of Homeland Security needs to run a
verification process to ensure that the certifications are
correct.
Fifth, if they are not correct, or if the company is in
violation of the standards, he needs a compliance procedure
which I think should include tough civil and criminal penalties
for noncompliance, certainly along the lines of Sarbanes-Oxley
criminal liability for accounting malfeasance.
And, finally, there should be an appeal procedure so that
companies have some recourse to the courts if they believe that
they are being treated unfairly or in a capricious way by the
Executive Branch. They deserve that. But the appeal procedure
should provide for the continued protection of this information
even as it enters the judicial process.
This legislative package, I think, should proceed in
concert with enhanced regulation of chemical transportation
systems, which the Executive Branch could do right now, but
ideally the two would be done together in an integrated
fashion.
Thank you very much, Madam Chairman.
Chairman Collins. Thank you. Dr. Flynn.
TESTIMONY OF STEPHEN E. FLYNN, PH.D.,\1\ JEANE J. KIRKPATRICK
SENIOR FELLOW FOR NATIONAL SECURITY STUDIES, COUNCIL ON FOREIGN
RELATIONS
Mr. Flynn. Thank you so much, Madam Chairman, for the
opportunity to come back before this Committee and your
leadership on this critical issue. I have been most associated
with the issues of port and container security and supply chain
because of the economic disruption consequences associated with
that as well as potential loss of life, given the proximity of
populations near ports, but this is an issue that I put up
there with the bio threat, in the top three. With the chemical
issue there is overlap with the port security issue. Most
chemical refineries and so forth are in seaports, and this is
one of the critical themes as well that I think we need to be
mindful of: It is not just the hazardous material but its
linkage and proximity to other critical infrastructure.
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\1\ The prepared statement of Mr. Flynn appears in the Appendix on
page 98.
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As Senator Corzine laid out at the outset, facilities right
under major highways, spills that happen in ports that shut
them down, have consequences that transcend the local loss of
life. It can have devastating economic consequences, which
speaks to the issue of the threat.
I would like to talk just a minute about the threat. I
would like also to say a few words about what I think is the
limit of the marketplace as an approach to dealing with that
threat, thereby, outlining the rationale for why I think it is
so important for this Committee to move forward with a
legislative package on this issue, and then speak to some of
the suggestions that I have, some which parallel my colleague,
Dr. Falkenrath.
In terms of the threat, we are a Nation at war, and if you
think through this as a commander-in-chief getting a briefing
of where weapons of mass destruction might be, and the briefing
said, well, we have 15,000 weapons of mass destruction littered
around the United States, we have no idea how well they are
guarded or if they are guarded at all, you would think under
those circumstances you would say, well, we better get a handle
on those weapons of mass destruction. But, of course, we view
this industry as a domestic industry, and the threat, we see a
weapon of mass destruction as often viewed as an ``over there''
problem. We have this issue right here within our borders. As
Dr. Falkenrath was talking about, the example of September 11
was not the importation of a weapon of mass destruction. It was
converting a domestic airline into one.
Why produce a chemical weapon, go through the very
difficult task of smuggling it into the United States, when
essentially there is a vast menu of prepositioned weapons in
our population areas next to critical infrastructure? How this
could be still off the list of priorities 3\1/2\ years since
September 11 is quite simply extraordinary.
I think one of the issues that we are struggling with,
though, is, well, if it is so easy and they are so available--
and we are facing this increasingly, I think, with the homeland
security issue across the board--well, why hasn't it happened?
Why haven't we had another attack? And I would like to spend
just a moment on that critical issue.
I think one of the things that we have to do is get a real
sense of the timeline and the challenges of the adversary of
carrying out an attack potentially on the chemical sector. The
reality is these more sophisticated attacks require essentially
a terrorist organization to put down a footprint of typically a
logistics cell, a reconnaissance cell, and ultimately an attack
cell. It takes some time to do that. They do not start from a
large footprint here in the United States. And though we could
all look around and say willy-nilly there are a lot of targets
they could attack, when you carry out an attack, you create a
real forensics problem for yourself because you are going to
leave a trail.
And so if it took you 18 months or 2 years or more to put a
cell operation together and you hit basically an easy target,
your whole operation is likely to be exposed, as we found with
the March 11 attack in Madrid. Within about 96 hours, the whole
network was pretty well cleaned up. They were on trial just
this last week.
The second critical issue here about the time and why this
issue should be very much--thinking this large-scale attack is
very much with us still today is that they want to outdo the
last attack. Now, that has been very clear that they want to do
that, and they are willing to take the time to get it right.
And doing it right requires expertise, it requires some
rehearsals and good planning, dry runs and so forth. And as the
days move by, I am more worried increasingly of that it is the
sophisticated big attack that is staring us in the face, not
``wipe the brow,'' maybe we somehow get them at arm's length.
And then, again, as we look at the list of possible
inventories, the chemical industry absolutely screams at you as
essentially a weapon of mass destruction that is in your
adversary's midst and you can have cascading effects.
The problem we face here is that to date we have treated
this, like other elements of critical infrastructure, as
something that ultimately the private sector should take care
of itself, that since it owns and operates this sector,
basically it should bear the responsibility of looking at the
most intelligent ways to proceed. I think speaking to the
limits of the market in this area, particularly the security
area, we have to be mindful of two critical things that I hear
time and again from company executives.
The first is that any security measure, just like any
safety measure, is always about how much is enough. An
executive has to make a decision about how much is enough vis-
a-vis what I know to be the threat as well as what the
consequences would be if the threat is carried out and what
investment I should make accordingly.
Now, when we talk about issues like safety, we usually have
empirical data openly available upon which we can make those
decisions. But when we talk about security, the information
about threat is a public good closely held. So to ask an
executive in industry to establish a baseline set of security
standards when the entry-level information about the threat
they are out of the loop on, they have to just guess at it. And
that is a problem.
The second critical challenge that the industry has with
laying out its own regime is, of course, the concern about the
free rider. Good companies work hard to comply but they must
worry, will everybody else play by the rules?
The third issue is the liability issue. Given that these
decisions are always about how much is enough, if the industry
collectively comes together and says, well, we think this is
about right even though we don't know much about the threat,
but the little bit we have been clued in on, and we think the
benchmark is here, and then go about and implement it, and then
the attack happens, the immediate response by the public sector
would be: You got it wrong. You were more worried about your
profits than you were about our safety. Exhibit A, the attack
succeeded. And, therefore, if you are a company executive, you
have a real liability issue. You acknowledged the threat, but
you will be accused of not having taken sufficient action to
address it.
Ultimately, on the issue of security, the ultimate public
good, we need the close private-public cooperation. The public
sector needs to be saying, yes, you have got it about right,
industry, based on our knowledge of the threat. We will make
sure there are not free riders, that everybody is playing by
the rules so that you are not at a competitive disadvantage for
doing the right thing. And, finally, we will give you Good
Samaritan protection, if you do all that we identify as
adequate and it does not work, since we made the public
judgment about this, we will take the heat as a public sector
about this public good. Then the industry can get on with it.
But the unwillingness of the public sector to address
critical infrastructure generally and the chemical industry
specifically, the absence of a back and forth conversation
between the private andpublic sectors, and the lack of a
regulatory framework, is something that has essentially left us
with the exposure that we are experiencing today.
Turning now to the recommendations that I lay out in my
written testimony, and I will try to keep this fairly brief so
we can get through them. But the very first is we need to
provide the necessary resources for the Department of Homeland
Security to work with local planning emergency committees
created under the Emergency Response and Community Right to
Know Act, and also I recommend using the FBI district-based
INFRAGARD program to begin to identify minimal standards for
this industry to do several things.
First, establish physical security, communications
capabilities, and access control at chemical facilities based
on this tiered system of the quantity and lethality of the
chemicals they produce and store within a facility, as well as
its proximity to major population centers, and its proximity to
other critical infrastructure. We should not have to do the
same thing for everywhere. It has got to be based around the
risk.
Second, conduct regular exercises to test the adequacy of
security measures to prevent intrusions. There is no substitute
for these exercises in getting people to really continue to
refine and stay vested in what they are doing.
Third, to conduct community outreach on incidence
management with neighbors to the facilities who would be
directly affected in the aftermath of a successful attack.
There is a real tension here between this issue of openness on
the one hand and worries by some officials to not give
terrorists blueprints on the other. That really needs to be
bored down. I err on the side of openness, and I err on the
side of openness because I know our intelligence is so weak
right now that we cannot predict these events. I also believe
that the threat is so open and the awareness is so high that we
really have to make sure that we are protecting our population
when these things happen. And I believe that honesty and
openness is something we need to push versus ``keep it all
under the cone of silence'' approach.
Next, we need to conduct outreach for incidence management,
and then finally test the minimal intervals for emergency
response training. We must do red team training to test
prevention measures, but you also must have response training.
Another area that I would recommend is that there be a
verification regime built upon the creation of bonded, third-
party inspectors to audit compliance with these minimal
standards at intervals appropriate to the risk posed by a
successful attack on the chemical facility. There will never be
enough government eyes and ears. It is not desirable to have
exclusively government eyes and ears doing this. But we need a
bonded process of private folks who go out and make sure
everybody is living by the rules. Again, legitimate companies
that make this investment do not want a regime that allows free
riders who do not make that investment.
Next, we need to create within the Department of Homeland
Security a compliance office to essentially audit the auditors.
Then we need to sponsor research and development and
provide tax incentives which reward the adoption of less
dangerous processes for making, handling, and storing the most
lethal chemicals. The tendency is to think about this as gates,
guards, and guns, and physical security alone. A lot of what
can be done to manage an incident to make sure it does not
result in a massive loss of life are good practices. Some of
those require some government incentives, since it is security
at stake, we have to find ways in which we do that.
Next, we need to sponsor research and development on new
technologies to mitigate the risk of chemical releases beyond
the chemical facility. There are ways in which we can expect
the worse and have ways to deal with that.
We need to sponsor research and development of lower-cost,
more user-friendly protective equipment for emergency
responders. You, Madam Chairman, were at the TOPOFF drill. You
saw how we put people in these moon suits that were designed
for the most benign circumstances of working and industrial
environment. They do not work for first responders. We must fix
that problem.
Two more. Next, to create a task force that recommends a
new protocol for resolving the conflict over public outreach on
the one hand and the sensitivity to public disclosure of
vulnerabilities on the other, which I mentioned earlier. And,
finally, to require risk assessments that are reviewed by the
senior homeland security official at the State level before new
non-industrial development is allowed in the vicinity of an
existing chemical facility.
A story that I point to to support this final
recommendation is a case in southeastern Los Angeles, where the
Los Angeles Community College District has proposed building a
new campus that will accommodate up to 12,000 students directly
next to one of the largest chemical facilities in the Nation.
If the reverse case happened where a chemical facility asked to
be located next to a large university, it would be a non-
starter. But in this instance we are crowding up against a
facility that manufacturers and stores highly hazardous
chemicals without thinking of the security implications, is
crazy. We need to find a way in which we get people sensitized
before they do things which elevate security risks.
Thank you so much for the opportunity to make this prepared
statement, and I look forward to answering your questions.
Chairman Collins. Thank you. Thank you all for your
excellent statements.
Chairman Merritt, I was struck in your testimony about how
India and the communities in America that you cited were
unprepared to deal with an accidental release of hazardous
chemicals. In your experience, do you believe that we are
prepared as a country to deal with a deliberate attack on a
chemical facility?
Ms. Merritt. If you look at the events that we have
investigated, these are really small in comparison to some of
the events that could occur if it were a deliberate planned
attack, as has been reported by the other witnesses this
morning. An instantaneous release, though, still provides us
with an opportunity, if we were prepared, to do some mitigation
and some protection of our communities. But without any
planning, we really do not have that capability.
We have seen that communities, by the large proportion of
those that we have investigated, are not ready even for a small
release, and that they have not planned, they have not
determined whether they would shelter in place or whether they
would evacuate. They haven't got notification systems that
consistently work. And even when they do, many times
communities have changed, demographics have changed, and people
don't know what to do. When they are told to evacuate, often
they are not told where to go. And so large numbers of people
are actually moving in the direction of the cloud of toxic gas.
This is the kind of thing that needs to be determined, and
we need to take action to try to protect our communities.
Chairman Collins. I am struck by the fact that people who
live in areas of the country that are susceptible to tornadoes
know what to do when a tornado is approaching. But I don't
think those same people, if they lived near a chemical
facility, would have any idea what to do if there were a
chemical release, whether it was accidental or deliberate.
Mr. Stephenson, I am trying to get a better sense of the
numbers involved in this issue. The EPA, as you have testified,
has identified 123 chemical facilities located across the
United States where more than 1 million people live in the
vulnerable zone in the event of a worst-case chemical release.
As you know, DHS uses a different methodology, tries to
estimate casualties, and comes up with smaller numbers.
Nevertheless, the EPA data provide an estimate of the
number of Americans who are living in areas that are
potentially vulnerable to the release of a toxic chemical.
Can you give the Committee a rough estimate of the total
number of Americans who live within a worst-case scenario
radius of the 15,000 facilities that the EPA has identified?
Mr. Stephenson. As I said in my statement, it is very
difficult to determine because, depending upon the chemical and
the amount of chemical at the facility and the characteristics
of that chemical once it goes airborne, the vulnerable zone can
be as small as a mile or as large as 20-plus miles.
Too, many chemical facilities, as you know, are collocated
near each other, so the zones actually overlap. So you cannot
discount those factors. And if an actual incident occurred,
wind direction, and other factors would determine exactly what
part of that vulnerable zone would be affected.
The best we can do at this point is to say it is in the
tens of millions. There are literally millions, but you can't
simply add up all of those 15,000-plus facilities and all those
concentric circles and say that would be over 100 million
people. I do not think that is a fair estimate. It is somewhere
more than 10 million but less than 100 million, probably, but
it is hard to say exactly.
Chairman Collins. Thank you.
As we have heard, the industry should be commended for
taking steps to come up with voluntary codes to try to improve
security. For example, the American Chemistry Council has
developed the Responsible Care Program; the National
Association of Chemical Distributors has the Responsible
Distribution Process; and these programs are very good, but
they are also voluntary.
It seems to me that we could take three different
approaches to the problem of chemical security. First, we could
work with industry to encourage broader acceptance and
compliance with voluntary codes. Second, we could rely on
state-to-state regulation. Some States are acting in this
regard. And, third, we could provide very clear statutory
authority and a framework for DHS to implement a security
program and to also include a preparedness component, which
many of you have mentioned as essential. So we could rely on
voluntary action; we could wait and see if the States do
something; or we could pass Federal legislation.
Dr. Falkenrath, starting with you--but I would like to get
everyone's views on this--which of the three approaches do you
recommend?
Mr. Falkenrath. Federal legislation, no question. I think
the voluntary measures that some chemical corporations have
taken are good. I am glad that they are doing it. The state-to-
state approach, I think, is unlikely to work, primarily because
the States that have the largest risk exposure also have the
largest economic dependence on this industry, by and large. And
I think you would get a sort of patchwork of protective regimes
around the country that would not necessarily correspond to the
real risk. Also, the States are not really who the American
people think are responsible for protecting them against a
catastrophic terrorist attack. People think the Federal
Government is responsible. And I think that is right.
So I am left with the need for a sort of nationwide Federal
approach. I am also impressed with the arguments that have been
made that the chemical industry deserves a level playing field
and they need to know they have a common framework for the sort
of expectations that our country places upon them and how to
handle their inherently dangerous technology.
Chairman Collins. Dr. Flynn.
Mr. Flynn. As my testimony makes clear, I guess I am for
option three, for a couple reasons, whichI will flesh out
quickly.
One is this industry is probably one of the most fragmented
industries as it relates to any of our critical infrastructure.
Wide gaps between very big responsible players and lots of very
small players in the system. And so the voluntary approach has
huge challenges with both industry talking to itself, because
it really is not a unified industry of a handful of players, it
is really a very much tiered system with small players working
on the margins, so it makes a voluntary approach very
problematic.
On the State issue, the biggest competitive pressure on the
chemical industry which has made it very difficult for them to
embrace new security is international competition. And so a
state-by-state approach that creates a patchwork quilt of
requirements where some States have a lower bar and, therefore,
are competing better than other places that are setting the bar
too high, clearly is problematic, which speaks to a broad theme
with homeland security overall here: Whatever we pursue here,
we should be also pursuing overseas as well. We are all vested
in this industry, in this case because of the loss of life and
so forth, but we want to try to make sure the level playing
field extends beyond just our own jurisdiction dealing with
that pressure.
Chairman Collins. Ms. Merritt.
Ms. Merritt. Yes, in our investigations, we found a wide
spectrum of behaviors, and there are companies, good companies
that are out there going above and beyond what they are
required to do in managing their chemical responsibilities.
Often they are funding local emergency planning committees
where there is no funding that is available through the
regulations that now exist.
But there are also companies that do just what is required
and others who really are not doing what they are supposed to
be doing or anything at all. And so I think it is the companies
that will not be either safe or secure without stronger Federal
oversight and enforcement that we are concerned about as well.
I think Federal unity here and oversight is what is going to be
required.
Chairman Collins. Mr. Stephenson.
Mr. Stephenson. As we said 2 years ago, I think the risk of
this sector warrants heavy Federal involvement, although we do
not think those options are necessarily mutually exclusive. For
example, ACC, who has 1,000 of the 15,000 facilities, the
Responsible Care Initiative is very good. So I would expect any
Federal legislation would give them credit for that and,
indeed, recognize that. I still think that while they do third-
party verification, some Federal oversight of that verification
is probably warranted as well, again, because of the high risk
of this particular sector.
Chairman Collins. Thank you. Senator Lieberman.
Senator Lieberman. Thanks, Madam Chairman. I apologize to
you and the witnesses. I had to go to another event. But I was
able to read your testimony as submitted prior to the hearing.
Chairman Merritt, I thought your testimony was very
powerful and your description of the alarming instances of poor
operation and maintenance of safety equipment or procedures at
chemical facilities, leading to dangerous accidents. And I
heard you say that some of the problems that caused and
exacerbated the Bhopal tragedy are, in fact, replicated in our
country today.
I wanted to ask you how you would personally explain the
failure of these facilities, chemical facilities, to implement
better safety precautions.
Ms. Merritt. Well, I think what we find in many instances
is a lack of third-party oversight. This is one of the reasons,
I think Federal oversight for some of these facilities is
really necessary. Some of them do not even know what the
regulations are. There is poor design, poor maintenance of
equipment that they do have, and as a result, these are the
ones we are investigating.
There are good companies out there that are doing good
things. But, OSHA has lists of companies and lists of
industries that they investigate. And then there are others who
we have found are never visited by an OSHA inspector. And I
know that OSHA has resource restrictions, EPA has resource
restrictions, but I think that in this particular matter, this
is certainly something that the Committee should look at to see
where the authority and resources are for oversight for the
implementation of these regulations that are already on the
books.
Senator Lieberman. That is a very good point. The next
question I was going to ask you I believe you answered in
response to Senator Collins, but just to make it clear. I
presume from what you have seen that you would say that though
there is clearly a role for voluntary measures by the chemical
industry to enhance security, that is not enough, that we also
need some clear government involvement here as well.
Ms. Merritt. Yes. What we have seen is even where there are
regulations on the books that are managed by OSHA and other
people, we constantly investigate sites where there has been
little implementation of regulations on the books and little
oversight from third parties, either at the State or the
Federal level, that would assure that these facilities are
safe.
Unfortunately, those are the ones that we are
investigating, so I do think there is a reason for a more
unified oversight requirement for the implementation and
management of these regulations to protect the public.
Senator Lieberman. You are making a very important point, I
think, which is not just to the point that some of us feel
strongly--Senator Corzine obviously--that we need additional--
we need new legislation to protect people from the risk of
terrorist attack and accidents at these chemical facilities,
but there is not adequate implementation of existing law and
regulation to protect. And I take that seriously.
In your testimony, you say that in some cases you found
first responders who lack adequate equipment and training to
respond to chemical accidents. What have you found generally
with respect to the training and equipment that first
responders have to deal with chemical accidents? In other
words, you site some problems of real inability, but generally
speaking, if you are asked what is the status of preparation of
first responders in this country to deal with chemical
accidents or terrorist attacks, what would you say?
Ms. Merritt. Well, I think it is a multifaceted approach
like the group that responded in St. Louis, they had
appropriate equipment and they had trained to respond to a
chlorine release, but they had never trained at this facility.
So when the event occurred, the all-volunteer hazmat team
arrived at the site, but the equipment was at the other end of
the site, and it took them several hours to be able to get
together with their equipment because they had never practiced
there.
So there are many different things that are part of this--
fire departments who have never been to facilities to know what
actually exists there. Those are the types of reasons that I
think a coordinated approach needs to be enacted.
Senator Lieberman. You may know that Senator Collins and I
were successful in amending the budget resolution in the Senate
to restore a considerable amount of funding, I guess about $550
million, for the coming year for first responders, and
obviously we have to make sure the money is well spent. But you
point to a very urgent need which will not be met unless we
give the first responders money. Then once we do that, we have
to help them use it for that purpose. I thank you.
Mr. Falkenrath, I know that you have said that security
legislation should not be a back door for safety regulation,
and in this, as in so many areas, it is, I suppose, what is in
the eye of the beholder, but also where you draw the line. I
agree that we should not use this concern that we have about
security, homeland security, to be a back door for a lot of
environmental, uniquely environmental legislation or
regulation; but, on the other hand, it just seems to me it--
isn't it common sense to encourage the chemical industry to do
the kinds of things that will enable them to essentially reduce
the attractiveness of their facilities as a target for
terrorism? In other words, if they can do something that they
need to do in their business in a way that is less potentially
catastrophic if an attack occurs, isn't that worth trying to
do?
Mr. Falkenrath. Yes, Senator, I think it is. But it is a
question of regulatory design. And as I lay out in my written
statement, I think that there should be a system of tiers of
chemical facilities based on the risk they present of a
deliberate terrorist attack. And if the facility owners decide
on their own that they want to modify their business practices
to get into a lower tier which would have a less onerous
security requirement, they should have the opportunity to do
that and apply for reclassification.
So that is what I mean by a market-based approach to
changing business practices and adopting less dangerous, less
unsafe business practices.
Senator Lieberman. And the tier you are in would be
determined by how serious the consequences of an attack would
be.
Mr. Falkenrath. It would be several different things: How
serious the consequences would be, what chemicals are present,
what is the toxicity of the chemicals, what is their proximity
to population density. Those are the things that you would
expect the Department to design and to do so sensibly based on
analytically sound criteria.
Senator Lieberman. So I guess my question is--and this is
all at a general level, so we have to see the details--whether
this is an area where the market is sufficient to encourage
people in the industry to take the steps necessary to reduce
the risk, without us either creating greater incentives or
mandating something of that kind to occur.
Mr. Falkenrath. At the moment it appears to me, Senator, it
is not sufficient, by and large.
Senator Lieberman. Yes.
Mr. Falkenrath. But I think an appropriately designed
regulatory regime could create those incentives so that they
would then voluntarily, if it made sense for them, decide to
adopt safer business practices. If it is switching from gaseous
chlorine to a salt form for water----
Senator Lieberman. That is the perfect example.
Mr. Falkenrath. But not to give the government the power to
order them to do that, but to set up an incentive structure
that allowed them, on the basis of their own business model, to
make the decisions if it made sense.
Senator Lieberman. Mr. Flynn, do you have an opinion on
that one? I should say ``Dr. Flynn.''
Mr. Flynn. Thank you, Senator. It is an honor to be with
you here.
Senator Lieberman. Nice to be with you.
Mr. Flynn. On one part, safety versus security, a big
message that I try to push on security is the way you keep
people vested in it is if it serves another purpose. So if many
of the things that you do for safety will help for security--
and so you don't want to get into a splitting hairs problem
here.
Senator Lieberman. Right.
Mr. Flynn. What we are really, I think, dancing around is a
notion of a 1960's-style OSHA Federal oversight with its well
deserved reputation of nitpicking regulation versus some of the
things that Dr. Falkenrath is laying out as a regulatory
framework but where we find incentive systems to get people to
want to get to the desired behavior. I am an advocate of this
latter approach, but it has to be a framework that is required.
There has to be a compliance--an audit system, a compliance
system with sanctions to level the playing field so folks will
start to adopt the requirements.
It is clear, 3\1/2\ years out, virtually nothing is
happening besides trying to put together best practices and
model codes, and so this is something we need to deal with with
a lot greater urgency.
Senator Lieberman. I agree with what you have said and also
the sense of urgency. The record shows, as all of you have
said, that not enough is being done and that there is a clear
and present danger, and we have to do whatever we can in this
session of Congress to drive much more comprehensive steps to
protect people from the consequences of attack or accident.
Thanks, Madam Chairman. My time is up.
Chairman Collins. Thank you. Senator Lautenberg.
Senator Lautenberg. Thank you, Madam Chairman. I think this
was an exceptionally productive hearing, and I commend you for
doing that. It was rather a chilling experience to listen to
these people with the experience that you bring to the table
and just sound the alarm in the way that you have.
I was the principal driver on the right-to-know law in
1986, and I got that inspiration from the State of New Jersey's
own right-to-know law. And we found one thing: That despite the
fact that there were no penalties really, because what was
asked was reporting, and the companies, in their desire to be
good citizens, had substantial reductions in toxic emissions,
some as much as 90 percent. And that was a real lesson for me
to see that given an impetus--and I am not one who believes
only in the carrot. Sometimes a stick is necessary. But we are
now in a situation without any harmful design by anybody,
unintentionally maybe, zoning requirements, but we are where we
are. And as has been said, the materials that are used are an
integral part of the way we structure our living, not just
economically but culturally, etc.
So when we look at something like the threat posed by this
South Kearny location, as we say, as many as 12 million people
could be harmed, what do we do about that? Has anybody got any
suggestions? Should the government come in and put up high
walls? You cannot do it. What could be proposed as a way to
deal with problems, potential problems of this magnitude? Any
volunteers?
[No response.]
OK. Well, going on to the next question. [Laughter.]
Shortly after the September 11 attack the Blue Plains
Sewage Treatment Plant in D.C. switched from the use of
explosive chlorine gas to harmless bleach. Now, the use of
safer substitutes is also one of the provisions of Senator
Corzine's bill. Did the GAO assess this option?
Mr. Stephenson. No. There is a lot of popular support for
inherently safer chemicals, but we did not specifically assess
it. I was actually at Blue Plains and saw the results of a
chlorine gas leak. It destroyed a 100-year-old oak tree, so the
devastation that it could cause is very real. But there are
obviously types of chemical processes and chemicals that do not
lend themselves to inherently safer alternatives without
extreme investments in production costs, etc.
I think the vulnerability assessment and risk mitigation
and rapid response planning approach offer the most promise--I
should point out since nobody answered your former question,
that the Community Right-to-Know Act actually went a long way
toward helping citizens prepare by knowing what chemical
facilities and what hazardous facilities were in their area,
and what they should do in the event of a chemical release.
Senator Lautenberg. That was induced by a fire that took
place in the city of Elizabeth, and when the firemen responded
the coats that they were wearing, the protective gear they
thought, virtually melted under the chemical reaction that was
caused by this fire, and said, wow, there is something terrible
out there. So we worked with the firemen and fire departments,
and we fashioned the bill, and again, it was very productive in
reducing the toxic emissions.
Where can we go to remind chemical facilities to switch to
safer chemicals when they are available? Again, trying to keep
government from intruding too much in the business sense, but
what is our obligation to say to companies that you ought to be
looking at safer materials, can you accomplish the same
objective, same pricing, etc.?
Mr. Flynn. Senator, I think with the fact that we are
dealing with a core element of our security, then there is
certainly legitimately a call on some Federal resources to help
with this problem. I think there is an element of RMP that the
government can sponsor and support so that we can vet what
really are productive practices and get that out and about, and
then clearly you can look at tax revenue kinds of enhancements,
adopting tax credits, migrating towards one sort of
technologies versus another, that you are confident will in
fact assure greater safety and security for the people.
There is almost a classic case study with a company, like
with DuPont making a decision almost 50 years ago that the way
they will maintain their competitive advantage will be that
they will be the safest chemical company on the planet. What
they discovered were enormous savings from reducing the cost of
the amount of goods that they stored, the decline in accidents,
and employee workmen's compensation, so they ended up adopting
incredibly efficient practices by basically making safety their
focus.
There is enough overlap here in many instances where
security practices work where it is not necessarily that it
will put you at a competitive disadvantage. What we have in
this industry is a lot of marginal players who are operating on
the fringe of modern industrial practices, and you are probably
going to have to make some hard political decisions about
whether or not they can continue to operate if they are dealing
with very dangerous substances. That is where it will probably
get politically very tricky is when you get down to these very
small companies who really cannot survive but by breaking the
rules, and then you are talking about employment and other
kinds of issues here. But they are, again, they are a sitting
weapon of mass destruction.
That is really what we have to see in a post-September 11
world. That is the reality and we have to figure out how we
muster resources and devise incentives to get that number under
control, just as we are trying to run around over in Russia and
elsewhere to try to get this under control. We have our own
house to get in order.
Senator Lautenberg. Yes. You gave us a striking example of
how to view these things when you described 15,000--let us call
them weapons of major consequence--sitting around the country.
It is a shocking revelation. Nevertheless it is true. And we
have not seen it--as bad as the battleground results have been,
when one attack on September 11 had a far higher casualty rate
than anything we have seen, with thousands and the hundreds of
thousands of people employed in the war theater. So we have to
pay attention to these things.
I hope, Dr. Falkenrath, that we can stimulate some activity
with EPA. They had the authority to regulate a lot of these
chemicals and it did not happen. The White House did not push
it, as you said, and we have to find a way to get these things
to a more urgent platform so that things do happen.
Thank you very much, Madam Chairman. Thank you all.
Chairman Collins. Thank you. Senator Levin.
OPENING STATEMENT OF SENATOR LEVIN
Senator Levin. Thank you, Madam Chairman.
I want to just go into the incentives question a little
more. If I missed this, forgive me. One incentive is a positive
tax incentive of some kind, which I assume already exists, to
put in safety equipment or safety measures. These deductions
already exist. Are you suggesting there be tax credits instead
of deductions? Is that a tax incentive which would be greater
to install the safety equipment?
Mr. Falkenrath. I guess I am probably not in really a
position to drill down too far on that, Senator, but obviously
we are trying to create a marketing incentive--recognize
security is a public good--to adopt practices that mitigate the
consequence if something happens at the plant. So I would say
ideally if you want to stimulate it quicker, it is a tax credit
for doing A, B, or C. Whether you talk about tax deductions or
not, I guess will depend on the facility whether that is an
incentive enough for them to move forward.
Senator Levin. Dr. Falkenrath, the question of the mandates
which need to be there in order for the market to work, that is
an unusual balance just to state it that way. You need the
mandate, you either have to install security equipment or if
you do not install security equipment, then what?
Mr. Falkenrath. Then you will be subject to civil or
criminal penalties, and effectively be put out of business or
thrown in jail.
Senator Levin. So is that what you call market based?
[Laughter.]
Mr. Falkenrath. Yes. [Laughter.]
Chairman Collins. A powerful market incentive, jail.
Mr. Falkenrath. This is an area where I disagree with
Steve. I do not think there should be incentives to do this.
What we have here is an industry with a security externality,
that they are not internalizing, and the role of the government
should be to force them to internalize the external cost of
securing their inherently dangerous systems, and that is what
we should be doing.
I would prefer to do that in a standard setting way that
recognized differentials in risk and also had graduated
security requirements as you moved up the ladder of risk, that
forced companies to make their own cost benefit calculations of
either complying with the standard or modifying their business
practices in such a way that got them into a lower tier with
less onerous standards. Failure to comply at any level in the
schedule, you would have a schedule of civil and criminal
penalties.
Senator Levin. I think it is different from what we usually
call market-based incentives around here.
Mr. Falkenrath. The reason I call it market-based is the
companies have the opportunity to decide. If they wish to
comply with the Secretary of Homeland Security's standard for
their level or risk, or modify their business practices in such
a way that lowered the level of how onerous the security
requirements were. That is why I think of it as market-based.
Senator Levin. Well, comply or modify is one and the same
thing because compliance means modification.
Mr. Falkenrath. To put it in concrete terms, and make it
simple, if it was a choice between spending $10 million
installing a new access control system and background checks
and fences and the rest, or $8 million changing your business
model to a less dangerous form of chlorine, then the board
would have the choice to make the decision.
Senator Levin. But the government would mandate that you
have got two choices.
Mr. Falkenrath. Right. It would follow from the schedule,
the sort of tiers of risk.
Senator Levin. Thank you.
The only other question I have has to do with the
difference between the situation where you are prioritizing
risks based on probability and severity of an incident where
you are dealing not with accident, where I think you can more
traditionally look at likelihood, probabilities, and where you
are dealing with an intentional terrorist act and the
difference between assessing probabilities and risk under those
circumstances and the kind of models that are appropriate when
you are dealing with a coordinated intentional terrorist
attack, seems to me very different from the usual models which
we look at. I do not know if anyone wants to comment--maybe you
already have commented on it, in which case that would be fine.
We will just rely on my staff and on the record. But if you
have not commented on that difference and would like to, I
could just start with anyone here.
Mr. Falkenrath. Senator, I completely agree that you cannot
apply normal cost benefit calculations or risk management
calculations to deliberate actions by a strategic thinking
adversary. Their actions and their tactics are not
statistically patterned like accidents are or hurricanes are or
the rest.
So the assumption you have to make is they are trying to
find the ways to hurt us the most, and our job, it seems to me,
is to figure that out before they do and take action in those
areas.
Mr. Flynn. If I might add, Senator, I mean this is the
biggest concern I have overall with the approach we have right
now, which is to say we have a threat-based risk management
approach. Fundamentally, threat-based requires the underlying
intelligence to tell you where, when and how they are going to
act, and then you raise your protective measures. We do not
have that intelligence. We are not going to have it for
probably 10 to 15 years. We know how badly things are broken on
the intelligence side.
So that forces us to have to consider what would be, if we
were the terrorists, the most likely targets? And so I add to
it not just generating mass casualties but also proximity to
critical infrastructure. And typically in ports you get all of
the above. But basically we are talking about would we bring
down not just loss of life or bring down fundamental systems
that run our way of life?
Final point I would make here, I am very concerned that in
fact one of the outcomes of what is happening in Iraq is it is
becoming a proving ground for learning how to do critical
infrastructure sabotage. In Afghanistan these folks learned how
to be warriors. Afghanistan was virtually in the stone age so
there was not much infrastructure to attack, but now we know
the evolution of that tactic is to go after power grids, go
after pipelines, go after transportation assets and so forth.
That skill set is being honed. Even if things turn out well,
these folks return back to their original countries, we will
have problems here.
So infrastructure best be looked at. We need requirements
that really treat this with much more urgency than we have been
dealing with it to date.
Ms. Merritt. I would just like to add that when all of that
fails because you have a thinking, planning opponent, the last
resort of protection for your public is preparedness, to be
able to know what to do, shelter in place, know how to
evacuate, and have emergency responders who are trained and
properly equipped. And working together with all the resources
of the region in order to address something that would be worst
case is the last measure of protection for the public to
survive such an event. Just for the public to know what they
should do in order to protect themselves like you do in a
tornado or a hurricane. What are the steps that are taken?
What we find is people just do not even know that. They do
not know and understand what the difference between shelter in
place or evacuation is, or what any of that means. That is a
basic fundamental need that we have in this country that I
think is a last line of defense in protecting our population
from the catastrophic impact of a terrorist attack where they
intend to kill millions.
Mr. Stephenson. Civil preparedness, as she is mentioning,
is a big deterrent. You want to reduce the attractiveness of
these targets, and one way to do that is by being prepared.
A big incentive to the chemical industry is not to under go
Federal regulation, so what Dr. Falkenrath is talking about,
incentives to reducing the amount of Federal regulation for
plants that are less risky, therefore you get into inherently
safer technologies and chemicals and so forth. I have to tell
you that any of these 15,000 RMP facilities celebrate when they
reduce the level of chemicals that they need to store on site
and, thus get some off the RMP list, and they therefore no
longer have to comply with that requirement. That is a huge
incentive that is monetary for their business.
Now, chemical manufacturing plants often cannot do that,
but lots of other facilities that store and use chemicals can
in fact do that.
Senator Levin. Thank you. Thank you, Madam Chairman.
Chairman Collins. I want to thank all of our witnesses for
their excellent testimony today. I think this was a very good
hearing to start off our series as we examine what is a very
complex issue. I am convinced that chemical security has not
received the attention that it deserves, given the
vulnerabilities involved, and with your help I am hopeful that
this Committee can craft an appropriate response.
I am inclined to believe, based on the testimony today,
that we do need strong Federal legislation in this area, but we
also need legislation that does not put an unreasonable burden
on the chemical industry. So we need to strike the right
balance. I am convinced that working together, and with the
benefit of your expertise, we can achieve that goal.
I do want to also thank the staff for their work on this
issue. I particularly want to thank a fellow that we have had
from the University of Maine for the past month. His name is
Wayne Honeycutt. He is a scientist with the Agricultural Lab at
the University of Maine. He is completing his month this week,
and will be returning to Maine, but we thank you very much,
Wayne, for your contributions to this effort.
The hearing record will remain open for 15 days for
additional materials for the record, and the Committee hearing
is now adjourned. I thank my colleagues.
[Whereupon, at 11:57 a.m., the Committee was adjourned.]
A P P E N D I X
----------
PREPARED STATEMENT OF SENATOR PRYOR
I thank Senators Collins and Lieberman for holding this hearing to
address the vulnerabilities of the Nation's chemical industry. All of
today's witnesses will testify to the need to better protect the
production, transportation, and storage of the chemical products that
contribute to our high standard of living. It is a dreadful possibility
that the very chemicals that we use to save lives and promote health,
could be used by our enemies against us in a potentially catastrophic
attack.
Therefore, it is incumbent upon this Committee to work with the
Department of Homeland Security and industry, to promote stronger
protection against, and greater preparedness for, a potential terrorist
attack on our chemical facilities. National standards for security of
chemical facilities need to be established. Vulnerability assessments
of facilities need to be conducted. Security and response plans need to
be implemented and monitored.
I look forward to having the opportunity to hear and question the
panels about these steps that must be undertaken to secure our chemical
industry.
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