[Senate Hearing 110-1046]
[From the U.S. Government Publishing Office]
S. Hrg. 110-1046
IMPORTANCE OF STATE AND LOCAL AUTHORITIES IN ENSURING CHEMICAL PLANT
SECURITY
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON TRANSPORTATION SAFETY,
INFRUSTRUCTURE SECURITY, AND WATER QUALITY
of the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MARCH 19, 2007--NEWARK, NJ
__________
Printed for the use of the Committee on Environment and Public Works
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congress.senate
__________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland CRAIG L. THOMAS, Wyoming
BERNARD SANDERS, Vermont LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island CHRISTOPHER S. BOND, Missouri
Bettina Poirier, Majority Staff Director and Chief Counsel
Andrew Wheeler, Minority Staff Director
------
Subcommittee on Transportation Safety, Infrustructure Security, and
Water Quality
FRANK R. LAUTENBERG, New Jersey, Chairman
BENJAMIN L. CARDIN, Maryland DAVID VITTER, Louisiana Ranking
AMY KLOBUCHAR, Minnesota Member
SHELDON WHITEHOUSE, Vermont CHRISTOPHER S. BOND, Missouri
GEORGE V. VOINOVICH, Ohio
C O N T E N T S
----------
Page
MARCH 19, 2007
OPENING STATEMENTS
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 1
WITNESSES
Payne, Hon. Donald M., U.S. Congressman from the State of New
Jersey......................................................... 3
Prepared statement........................................... 5
Pallone, Hon. Frank, Jr., U.S. Congressman from the State of New
Jersey......................................................... 6
Prepared statement........................................... 9
Menendez, Hon. Robert, U.S. Senator from the State of New Jersey. 10
Prepared statement........................................... 14
Stanton, Lawrence, U.S. Department of Homeland Security.......... 15
Prepared statement........................................... 16
Bodine, Susan, Assistant Administrator, U.S. Environmental
Protection Agency.............................................. 19
Prepared statement........................................... 26
Corzine, Jon S., Governor from the State of New Jersey........... 28
Prepared statement........................................... 30
Bollwage, J. Christian, Mayor, Elizabeth, New Jersey............. 32
Prepared statement........................................... 34
Flynn, Stephen E., Council on Foreign Relations, New York, New
York........................................................... 36
Prepared statement........................................... 39
Engler, Rick, Director, New Jersey Work Environmental Council,
Trenton, New Jersey............................................ 42
Prepared statement........................................... 47
ADDITIONAL MATERIAL
Prepared statement of Hon. James M. Inhofe, U.S. Senator from the
State of Oklahoma.............................................. 53
Letters:.........................................................
To Mr. Dennis Deziel, Department of Homeland Security, from
John P. Alexander, United Steelworkers..................... 55
To Patrick K. Clark, Regional Administrator Occupational
Safety and Health Administration U.S. Department of Labor,
from John Pajak and Rick Engler, Work Environmental Council 66
IMPORTANCE OF STATE AND LOCAL
AUTHORITIES IN ENSURING CHEMICAL PLANT SECURITY
----------
MONDAY, MARCH 19, 2007
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Transportation Safety, Infrustructure
Security, and Water Quality
Newark, New Jersey.
The committee met, pursuant to notice, at 10:30 a.m. in
room 125, Rutgers School of Law, Baker Trial Courtroom, Center
for Law and Justice, the Hon. Frank R. Lautenberg (chairman of
the committee) presiding.
Present: Senator Lautenberg.
OPENING STATEMENT OF THE HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. At first, I think we have to say thank
you to Rutgers for providing this facility. The only better
place this Field Hearing might have been conducted was at the
courthouse a few blocks down, but I think this is excellent. We
are grateful to Rutgers for providing this facility to us. I
think that this kind of a critical time to get going on
protecting our citizens more. I want to be able to see my
colleagues, so we wanted to talk about the problem that we see
here at the same time that Governor Corzine and the New Jersey
Legislature are working on improving the strength and the
surveillance of the chemical industry in order to protect our
citizens.
So I want to welcome our witnesses and guests to this
hearing of the Subcommittee on Transportation Safety,
Infrastructure Security and Water Quality of the United States
Environment and Public Works Committee. This hearing is a
unique opportunity to bring an official Senate Hearing to New
Jersey and the timing, as I said, could not be better for a
concerted effort between the State of New Jersey and the
Federal Government. Now I'll begin with my statement, and then
I'm going to invite my friends and colleagues from the Congress
who are here, Representatives Payne and Pallone to testify.
On September 11th, the year 2001, our country was attacked.
Terrorists used airplanes as weapons and killed more than 3,000
people, including 700 from the State of New Jersey. Later, we
learned that, as a result of the work of the 9/11 Commission
and others, that many warnings were ignored that might actually
have prevented the 9/11 tragedy. And yet we're now being warned
of another deadly catastrophe that is waiting to happen. That
threat is the possibility of a terrorist attack on a facility
storing large quantities of deadly chemicals.
Intelligence and law enforcement agencies have identified
the Nation's chemical facilities as the next target for
terrorists. In December 2001, it was reported that chemical
training publications had been discovered not used by Osama bin
Laden. And just this month the U.S. Military reported finding a
bomb-making facility in Bagdad used to develop chlorine bombs.
Six such bombs have been detonated in Iraq since January, and
three of them used just this week.
There is a reason for us to be especially vigilant here in
New Jersey and the surrounding region. We know that the 2-mile
stretch between Port Newark and Newark Liberty International
Airport is known as the most dangerous 2 miles in America for
terrorism. According to the FBI, there are 15,000 chemical
facilities across the country. An attack on just one of them
could break down critical infrastructures of a community, kill
tens of thousands of people, and damage the city, local, State
and regional economies.
Given these facts, both the State of New Jersey and the
Bush administration should be doing everything in their power
to secure our chemical facilities to protect the public. New
Jersey is doing its part. Since 2003, our State has adopted a
series of measures to protect New Jersey's community. One of
the most critical steps the State is taking is the requirement
that the highest risk chemical facilities in New Jersey
consider using Inherently Safer Technologies. What this means
is that companies should look to replace the most dangerous
chemicals with safer ones, still accomplishing their need to
produce product. We want to reduce the threat, the consequence
of a terrorist attack. And we've got to look at replacing these
chemicals if it's possible.
On Friday, Governor Corzine proposed strengthening New
Jersey's chemical security laws and expanding the number of
facilities that must consider adopting Inherently Safer
Technologies. But the Governor is not alone in working to
protect New Jersey's nearly 9 million residents. The chemical
industry has worked with the State to develop a set of Best
Practice standards that are mandatory at 150 facilities. And
laborers, including the New Jersey AFL-CIO and Steelworkers
Union, they're working with the industry to improve worker
training on chemical security procedures.
These efforts, combined with strong State Law, create an
environment that best protects the people of New Jersey. But it
is the Federal Government, and particularly the Bush
administration, that's failing us. The Bush administration has
proposed a Federal Regulation that could wipe out New Jersey's
Chemical Security protections.
In fact, the Administration knowing that the maneuver was
so reckless, that they tried to burry their proposal on the
Friday afternoon just before the Christmas break. So while most
Americans were enjoying the holidays, the Administration was
working to strike down New Jersey's Chemical Security Law and
prevent the states from taking steps necessary to protect their
residents.
So how did the United States Department of Homeland
Security defend this proposal to preempt our State law? Their
answer, in summary, was that New Jersey could respond to
disasters but do nothing to prevent them. We can't let this
happen. Our friends, neighbors and fellow residents in New
Jersey are entitled to better protection than that. Chemical
plant security has always been important, even before 9/11. In
fact, I introduced the first Chemical Security Bill in Congress
in 1999.
Now, I called this hearing today to shed light on how our
State is increasing its level of chemical security and how
damaging this Federal Department of Homeland Security proposal
would be. And I want to say it loudly and clearly: I'm going to
do everything in my power to reverse this Administration's
underhanded maneuver. As a member of this Committee, and the
Senate's Appropriations Committee, I'm going to work with my
colleagues, those seated here now. We'll do whatever we can to
maintain New Jersey's right to enact laws to protect the people
of our State.
Now, we've got four panels of witnesses here today, and I
am grateful for those who will be testifying. I'm particularly
pleased to welcome two of my good friends and colleagues from
the House of Representatives on this issue, Congressman Donald
Payne and Frank Pallone. I want to thank them each for being
here, for working with me in Washington, to protect New Jersey
and to protect the rights of every state to defend their
residents from harm. So we thank all of you for being here
today. Senator Menendez is running a little bit late, and he
will testify a little bit later.
So now, since we are in Congressman Payne's District, a
District that houses not only the chemical facilities that
we're talking about, but people who are living in close
quarters with one another where an attack could be jeopardize
lots and lots of lives of people, Congressman Payne.
STATEMENT OF HON. DONALD M. PAYNE,
U.S. CONGRESSMAN FROM THE STATE OF NEW JERSEY
Mr. Payne. Thank you very much, Senator Lautenberg, for
calling this very important U.S. Senate Committee on
Environment and Public Works' Transportation Safety,
Infrastructure Security and Water Quality. And it's so
important that you decided to hold this very vital Field
Hearing on security of our chemical facilities right here in
this District.
We appreciate all the work that you've done for so many
years in the U.S. Senate, and are very pleased that you now
will be chairing this very important subcommittee. And to also
my colleague, Congressman Pallone, who has done so many great
things on healthcare. And for us to be at this great law
school. We worked so closely with the Newark Community and the
entire State, and the opportunity also to have the students
from this great law school here in addition to others.
Let me say that September 11, 2001 reminded us of the many
security vulnerabilities our country faced and, unfortunately,
still had. That tragedy also affected so many people in my
District right here, but also statewide because, as you know,
many of the workers of the Twin Towers lived in New Jersey. And
many of the courageous first responders hailed from our State.
And many of the first responders from Newark and Jersey City
went across the Hudson to work there at the World Trade Center.
So we were very close in touch because, as you know, 5
minutes from here you have the Path train, which took thousands
of people, and still do, each day to the World Trade Center
District. And so it's been a very personal and traumatic
situation for us here in the 10th Congressional District.
The issue of chemical facility security is not a new one.
Dating back even before 9/11, the Nation's 15,000 chemical
facilities, including over 350 State industrial, petroleum, and
chemical storage and transfer facilities, have actually been
sitting ducks--defenseless if a terrorist attack ever happened
again. As the face and tactics of terrorists continue to
change, we must be mindful and vigilant about any and all
vulnerabilities.
The New York Times, in February 2005, frankly stated that
``Washington has caved to pressure from interest groups, like
the chemical industry, that have fought increased security
measures.'' So it must be asked, ``Why would we leave the
security of our State and our citizens to an Administration
that so easily kowtows to our Nation's securities and keeps our
Nation's security at risk?
In the silence of the Federal Government, New Jersey,
taking its security into its own hands, created State
regulations which are among the strongest in the Nation.
Unfortunately, though, the Department of Homeland Security
misguidedly wants to have their weaker Federal regulations
trump our State's guidelines. This is wrong. The plan the
Congress handed in late 2006 to DHS would undue the hard work
of our State regulators. While congress did not explicitly give
Homeland Security the right to preemption, they are unwisely
proposing it and therefore are rightfully receiving much
criticism.
We are currently holding this hearing here in my District,
which is near what is considered by the FBI as the ``most
dangerous 2 miles in America.'' It is nonsensical to allow lax
security guidelines to rule over an area with such a
connotation, especially when stronger regulations exist that
are on the books. It is also illogical to favor softer security
provisions especially in New Jersey, the densest spaced
population in the Nation, when a terrorist attack would be
detrimental to so many people because of that density in
population.
According to the New Jersey Work Environmental Council,
over 20 facilities, some of which are in Hudson, Middlesex,
Passaic and Union Counties, exist where in the event of a
worst-case release of toxic chemicals, millions of people
extending even beyond New Jersey's borders would be at risk.
In fact, Kuehne Chemical Company in South Kearny borders
Newark. If an intentional or accidental chemical release
happened to occur, an estimated 12 million people extending
into New York City and its boroughs could be harmed. Toxic
chemicals such as chlorine, hydrochloric acid, ammonia and
other chemicals can just simply waft as highly hazardous toxic
clouds in the air leaving entire neighborhoods, including
schools, hospitals and other public areas victim to chemicals
that can prove to be fatal. Being that New Jersey is a major
transportation corridor for the Northeast and the Eastern
seaboard, it does not take far leaps of one's imagination to
find the possible damage a chemical facility attack could have.
There is a saying, ``If you want something done right, then
you have to do it yourself.'' In regard to chemical facility
safety, that saying holds great value for our State of New
Jersey. We know, after much analysis, what is at stake and
therefore what our State needs. We are, especially because of
our acute risk, one of the strongest states in the nation on
the issue of chemical safety, as I've mentioned.
New Jersey has made great strides to protect our State's
critical infrastructure. In fact, in the fall of 2005, the
Department of Environmental Protection introduced, along with
then Governor Richard Codey and the Domestic Security
Preparedness Task Force, Best Practice Standards--the firs in
the nation. In another maverick move, New Jersey has allowed,
through an Administrative Order, workers and Union
representatives to be vocal on the issue. They are, many times,
our eyes and ears and therefore would be the best to inform us
legislators of vulnerabilities in our security standards. It
fares well for no one if the Federal Government weakens these
types of regulations. While a great deal has been done, we must
move beyond analysis into action. While provisions such as the
Inherently Safe Technologies have been introduced, we must do
more. Let us use what we have learned to galvanize new
initiatives such as built-in in security provisions that will
make millions of New Jerseyans as well as inhabitants of other
states safer.
Once again, let me thank you, Senator Lautenberg, for
calling this very important hearing and thank you for the
opportunity for me to speak.
Senator Lautenberg. Thank you, Congressman Payne, for that
statement. When it's that close to home, you feel the heat, and
that's what we're feeling in this State of ours. Thank you very
much. Congressman Pallone, you and I have worked on lots of
things affecting the environment, but none of the issues that
we've worked on compares to the risk that we are facing here
now. And in your Congressional District, there's a lot of
activity to make the air safer and make the water cleaner, etc.
And a perfect addition to that is to make sure that we protect
all of our residents, those of your constituency, as well as
Congressman Payne. And we've worked together in the past, and I
look forward to us working together in the future.
Now, please, Representative Pallone, thank you.
______
Statement of Hon. Donald M. Payne,
U.S. Senator from the State of New Jersey
Let me thank Senator Lautenberg for arranging for the Senate
Committee on Environment and Public Works' Transportation Safety,
Infrastructure Security and Water Quality Subcommittee to come to New
Jersey to hold this vital field hearing on the security of our chemical
facilities. Residents of New Jersey have a great champion in Senator
Lautenberg, and we are fortunate that he is serving on a Committee with
such important jurisdiction over public health and safety.
September 11, 2001 reminded us of the many security vulnerabilities
our country faced. Unfortunately, while we have taken measures to
protect against another attack, many vulnerabilities remain. The
massive tragedy of 9/11 forever changed the lives of thousands of
people both in my Congressional district and statewide. As you know,
many of the workers of the Twin Towers lived in New Jersey and many of
the courageous first responders hailed from our State.
The issue of chemical facility security is not a new one. Dating
back even before 9/11, the nation's 15,000 chemical facilities,
including over 350 State industrial, petroleum, and chemical storage
and transfer facilities, have been sitting ducks--defenseless if a
terrorist attack ever happened again. As the face and tactics of
terrorists continue to change, we must be mindful and vigilant about
any and all vulnerabilities. The New York Times, in February 2005,
frankly stated that ``Washington has caved to pressure from interest
groups, like the chemical industry, that have fought increased security
measures.'' So it must be asked, ``Why would we leave the security of
our State and our citizens to an administration that so easily kowtows
to industry when our Nation's security is at risk?'' In the silence of
the Federal Government, New Jersey, taking its security into its own
hands, created State regulations which are among the strongest in the
nation. Unfortunately, the Department of Homeland Security misguidedly
wants to have their weaker Federal regulations trump our State's
guidelines. While Congress did not explicitly give Homeland Security
the right of preemption, they are unwisely proposing it and therefore
are rightfully receiving much criticism. It is outrageous that the
Department of Homeland Security is threatening to undo the hard work of
our State regulators.
We are currently holding this hearing in my district which is near
what is considered by the FBI as the ``most dangerous two miles in
America''. It is nonsensical to allow lax security guidelines to rule
over an area with such a designation, especially when stronger
regulations exist and are on the books. It is also illogical to favor
softer security provisions especially in New Jersey, the densest State
in the nation, when another terrorist attack would be absolutely
devastating and would impact countless lives.
According to the New Jersey Work Environment Council, over 20
facilities, some of which are in Hudson, Middlesex, Passaic and Union
Counties, exist where in the event of a worst-case release of toxic
chemicals, millions of people extending even beyond New Jersey's
borders would be at risk.
In fact, Kuehne Chemical Company in South Kearny borders Newark. If
an intentional or accidental chemical release happened to occur, an
estimated 12 million people extending into New York City and its
boroughs could be harmed. Toxic chemicals such as chlorine,
hydrochloric acid and anhydrous ammonia can just simply waft as highly
hazardous toxic clouds in the air leaving entire neighborhoods
including schools, hospitals and other public areas victim to chemicals
that can prove to be fatal. Being that New Jersey is a major
transportation corridor for the Northeast and the Eastern seaboard, it
does not take far leaps of one's imagination to see the possible damage
a chemical facility attack could have.
There is a saying, ``If you want something done right, then you
have to do it yourself.'' In regards to chemical facility security,
that saying holds great value for our State. We know, after much
analysis, what is at stake and therefore what our State needs. We are,
especially because of our acute risk, one of the strongest States in
the nation on the issue of chemical facility security--and I am proud
of the fact that Senator Lautenberg and I have two of the strongest
pro-safety and pro-environmental records in the entire U.S. Congress.
New Jersey has made great strides to protect our State's critical
infrastructure. In fact, in the fall of 2005, the Department of
Environmental Protection introduced, along with then Governor Richard
Codey and the Domestic Security Preparedness Task Force, Best Practice
Standards--the first in the nation. In another maverick move, New
Jersey has allowed, through an Administrative Order, workers and union
representatives to be vocal on this issue. They are, many times, our
eyes and ears and therefore would be the best to inform legislators of
vulnerabilities in our security standards. It fares well for no one if
the Federal Government weakens these types of regulations.
While a great deal has been done, we must move beyond analysis into
action. While provisions such as the consideration of Inherently Safer
Technologies have been introduced, we must do more. Let us use what we
have learned to galvanize new initiatives such as built-in security
provisions that will make millions of New Jerseyans as well as
inhabitants of other States safer. I look forward to working with
Senator Lautenberg and our other colleagues to achieve this goal, and
again, I thank the Senator for convening today's hearing.
STATEMENT OF HON. FRANK PALLONE, JR.,
U.S. CONGRESSMAN FROM THE STATE OF NEW JERSEY
Mr. Pallone. Thank you, Senator Lautenberg. And thank you
for what you said. You really have been the leader on this
issue in the Senate.
First of all, I don't want to reference you as Chairman,
because we're very happy with the fact that, not only are you
in the majority, but the Chairman of this subcommittee, and so
many others that deal with this issue, because it means that
you can make a difference, as you always have, on this and so
many environmental issues. So I want to thank you for having
the hearing here and inviting myself and Don Payne to be here.
I should also mention, it's very nice to be at Rutgers Law
School. I know about the fact that this institution, for many
years, has been sort of the progressive voice, if you will, and
has many clinical programs on environment. So I think it's
particularly appropriate that you had this hearing here today
at Rutgers Law School in Newark.
I just wanted a reference back initially to what you said
earlier in your opening statement about New Jersey and the
reason, I think you stated very clearly, why it is so important
that the Federal Government not preempt New Jersey laws with
regard to chemical security is because New Jersey----
and I suppose you can make this argument about any State--
--
but I think particularly our state, because of the history
of having so many chemical facilities, we know best what to do.
And the notion of preempting Governor Corzine and the State
DEP and the others who have made decisions with the legislature
on how to proceed in what I consider a much stricter and more
protective of the public safety way. And to have that preempted
on the Federal level is a mistake.
You talk about how the Governor on Friday is expanding the
number of facilities looking into safer technologies. I would
argue that the Federal Government should have stricter
standards, too. But in the absence of that, for the Federal
Government to step in and say that New Jersey can't impact and
have tougher standards, when the people in New Jersey are on
the grounds and the Governor and other officials are on the
ground and know what needs to be done here is a mistake.
The whole notion of the Federal preemption and the way it
makes it more difficult for states with stricter standards to
operate just goes against the grain because the State people
know what's best. They're on the ground. They deal with these
facilities. They know the dangers. They know that using safer
technologies would be a better way to go. So I just wanted to
point that out, because I know that you stressed it in your
opening statement.
And I have to be honest, for years we've been working with
not only the State Government, but also the constituent groups,
the AFL-CIO. I don't know how many times Charlie Perkanick
(phn) has mentioned this to me. This goes back to previous
Administrations with Brad Campbell and Lisa Jackson, working
with the AFL and labor groups, including the Work Environmental
Group, to try to come up with these standards and training and
the mechanism that we use. So it is such a shame, just from a
good government point of view, to have that all wiped out
because the Federal Government decides they want to do
something different.
Now, the other thing I wanted to stress today is that what
I consider incredible arrogance on the part of the U.S.
Department of Homeland Security in willfully disregarding the
intents of the U.S. Congress by preempting state and local laws
on chemical security, because I believe, and I was there
listening to this, and I know the parties involved, it was not
the intent when we passed this Appropriations bill last year,
and that language was put in the last of the minute. It was not
the intent to preempt the State laws.
There was a clear exchange on the floor of the House of
Representatives between the Chairman of the Homeland Security
Committee, a friend of mine, and the Ranking Member of the
Homeland Security Appropriations Subcommittee, during which
they agreed that the temporary chemical security provision
included in an Appropriations Bill last year was not intended
to preempt the rights of States like New Jersey. They
essentially said that.
Unfortunately, what the Department of Homeland Security
decided to do was to ignore those clear directions and,
instead, they cite a quote from the Chairman, then Chairman,
Republican Chairman of my Committee, the Energy and Commerce
Committee Chairman Joe Barton of Texas, saying the opposite.
And you have to understand--and I know this is kind of
bureaucratic, Senator, and maybe I shouldn't get into it--but I
had tried many times to get that bill considered in my
committee, the Energy and Commerce Committee. And Joe Barton
then and continued to say that they were not going to exercise
jurisdiction.
So for the Department of Homeland Security, rather than
referencing the exchange on the floor, which was with the
Committee in jurisdiction, the Homeland Security Committee, and
their clear intent that said this was not supposed to preempt
state law and, rather, go to the other committee, my committee,
which decided not to exercise jurisdiction, and to say that
this was intended to preempt the State law, is totally contrary
to what actually happened.
And I know it sounds very bureaucratic, but I just have to
stress that, because a lot of times I think that these
exchanges and the intent needs to be brought out. So, in my
opinion, the Department of Homeland Security is disregarding
the will of Congress in saying that State Law has been
preempted.
Now, you know that we're in the process now of putting
together and introducing legislation again in both the Senate
and the House that would make it clear that there is no Federal
preemption of stronger standards. That would also make it so
that, on a Federal level, there would be a mandate to use the
safer technology.
There's other things in the legislation, as well, but I
think that the most important development right now on the
House side is that, in the Supplemental Appropriations Bill,
the Supplemental Bill, which was reported out of the
Appropriations Committee last Thursday but is expected to come
for a vote in the House this Thursday, we do once again have
language in it that makes it clear that the State Law is not
preempted, and also makes it clear that there was no intention
to prohibit the Federal Government from moving ahead with safer
technologies, as well.
So if that legislation passes the House, and ultimately
survives conference--and I know we're going to work together to
make sure that it does--then once again we would send to the
president legislation language that would make it clear that
this preemption doesn't exist and States like New Jersey can
move ahead and cover more plants and have better Right-to-Know
provisions and also move to safer technologies.
But in the absence of that, obviously, you and I will still
try to move ahead with our legislation, which I think is a good
thing in any case.
The one thing that I just wanted to stress again is that
our State put together this Comprehensive Plan to improve
security and provide for greater worker safety, working with
the AFL, working with all the different departments. And the
reason that they moved ahead with this before the Federal
Government adopted any language was because they felt it was
necessary because of what Congressman Payne said, that we have
this situation here where we have so many chemical plants that
we needed to take action.
And I think that it should be understood, at every level,
either with the current law or through any legislation that we
pass in the supplemental or through our efforts, that any State
that takes, moves ahead with higher standards, should have the
flexibility to accomplish that goal, and that nothing should be
done to preclude States like New Jersey, who have this problem
and who know what to do, from being able to move forward with
their own program.
And with that I'll just end and thank you again for all
you've done on this issue. I really think it's crucial. And
it's not just because of the response to 9/11, but because of
perceived threats, as you mentioned, that we may also have in
the future. So thank you again.
Senator Lautenberg. Thanks very much, Congressman Pallone
and Congressman Payne. I appreciate the fact that the both of
you have found the time to be here with us and indicate how
closely we're working to try and deal with this problem. And I
appreciate the fact that you mentioned the fascinations that
were going on in the Congress to try and burry what was not at
all an acceptable inclusion, that we would give the Federal
Government the right to override New Jersey law, a strong
environmental protection law, one designed to keep our citizens
secure in an area that far too frequently is a tempting target
for terrorist activity.
And we're pleased now to have been joined by our good
friend and colleague, Senator Menendez. Senator Menendez and I
have worked together on environmental protection actions in his
earlier days when he was a member of the House of
Representatives. And, by the way, a very high-ranking member of
the House of Representatives, and in a very short period of
time has become a very senior member of the United States
Senate. Well-respected. His opinions are secure and his work is
notable.
So I'm pleased to see Mr. Menendez in this position. And
just one quick last reminder, he's my junior. Senator, please
feel free to say all the good things.
______
Statement of Hon. Frank Pallone, Jr.,
U.S. Congressman from the State of New Jersey
Chairman Lautenberg, thank you for holding this hearing and for
inviting me to testify before you today. You and I have worked together
numerous times on efforts to secure chemical facilities in New Jersey
and around the country, and I salute your leadership and hard work on
this issue.
I want to take this opportunity to express my extreme displeasure
at the incredible arrogance of the U.S. Department of Homeland
Security, which has chosen to willfully disregard the intent of the
United States Congress by preempting State and local laws and
regulations on chemical security.
There was a very clear exchange on the floor of the U.S. House of
Representatives between the Chairman of the Homeland Security Committee
and the Ranking Member of the Homeland Security Appropriations
Subcommittee, during which they agreed that the temporary chemical
security provision included in an appropriations bill last year was not
intended to preempt the rights of States like New Jersey.
Unfortunately, DHS chose to ignore those very clear directions and
instead cite a quote from Energy and Commerce Committee Chairman Joe
Barton, whose committee did not exercise jurisdiction over chemical
security during the 109th Congress.
These may seem like bureaucratic legal details of congressional
intent, but they are critical. The Bush administration has once again
glibly disregarded the will of Congress, and they are apparently
uninterested in providing for the safety and security of New Jerseyans.
The Republican Congress gave this kind of behavior a free pass, but
it's time for that to stop.
That's why Chairman Lautenberg and I are working to take away any
ability of DHS to preempt State or local regulations that are stronger
than Federal ones. I'm pleased that the House will take up a
supplemental spending bill this week that includes chemical security
language I supported. Our intent is to ensure that DHS can't undo New
Jersey's chemical security regulations, which were intended to protect
the State's citizens in the face of Federal inaction.
Chairman Lautenberg and I had hoped last year that we would be able
to pass a bill to create a comprehensive security regime for chemical
facilities across the country. But under pressure from industry, the
Republican Congress refused to take action and the Bush administration
dragged its feet for years, even after 9/11 exposed serious weaknesses
in our national security. Expert after expert called for us to pay
serious attention to the need to secure chemical facilities--including
ones in New Jersey that could potentially threaten the lives of
millions of people.
Finally, at the last minute, the Republican Congress last year
passed weak, industry-friendly language providing temporary
authorization for chemical security regulations. From there, DHS
stepped much further in the direction of helping the industry by
attempting to wipe away New Jersey's first-in-the-nation State chemical
security rules.
The fact is that New Jersey had to step up when the Federal
Government fell down on the job. Our State reached out to industry and
plant workers to develop a comprehensive plan to improve security and
provide for greater worker safety. That's too much for this
Administration, apparently. They jumped at a chance to override New
Jersey's regulations--even if they had to use imaginary authority to do
so.
But as Governor Corzine can tell us, New Jersey has stepped up and
worked in innovative ways to protect its citizens from threats that
could come from facilities located within the staff. They've done so
because they know the State, the facilities here, and our
vulnerabilities much better than bureaucrats in Washington. And they've
done so because the Federal Government did nothing.
Federal legislation and regulations concerning chemical security
should allow States to set higher standards that the Federal
Government. We have the unfortunate combination of both a large number
of facilities and a high population density, so the consequences of
insufficient security are too great in our State. New Jersey's rights
must be preserved.
Again, Mr. Chairman, thank you for holding this hearing. I look
forward to continuing to work with you.
STATEMENT OF HON. ROBERT MENENDEZ,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Menendez. Well, your Honor--I mean, Mr. Chairman--
let me just say, at age 53, Mr. Chairman, it's good to be
Junior all over again. So let me thank you for holding this
hearing here in New Jersey, which I believe with your
leadership--I appreciate the fact that your chairmanship of
this subcommittee creates an opportunity to rivet attention on
an issue that we care about deeply in New Jersey, but I think
has national impact. And, once again, your long history in the
Senate has been at the forefront of a whole host of issues that
have national impact, Superfund, the whole question of cleaning
up the air in our airlines, as we have dealt with smoking
issues. On so much you've been at the forefront of it. And once
again today's hearing shows your leadership in a critical
issue. And I'm pleased to be joined by my close colleagues from
the House, who will have a tremendous opportunity to help us
collectively have a strong response from our delegation to what
the Department of Homeland Security wants to do, which I
fundamentally believe----
Senator Lautenberg. Let's see if we can do anything to
prevent the echo. (Pause in the proceedings)
Senator Menendez. Let me just say, Senator Lautenberg,
what you did today is incredibly important. We're not far away
from the area that many of us in New Jersey know has been
deemed the ``most dangerous two miles'' in America by the FBI.
Here, at Rutgers Law School in Newark, we sit within 5 miles of
the Kuehne chlorine plant in southern Kearny, in a range that
would without question, if devastated by an attack, would have
an enormous consequence to millions of people not just in New
Jersey, but millions of people throughout the region.
And as we speak, as this hearing goes on, the Kearny Police
Department has informed us that the Department of Homeland
Security wants to take away the surveillance cameras and the
electronic monitoring systems that have been put in place at
that location because of issues of funding.
Now, this is a prime example of how we cannot delegate to
the Department of Homeland Security the question of what
standards that we set, that New Jersey chooses to set in the
protection of its own citizens, which are greater than that
which the Federal Government has chosen.
And this is a perfect example of how we cannot, at least at
this stage in time, depend on the Department of Homeland
Security to do the right thing. Now, I hope we'll turn that
reality around, but it shouldn't even be a question. A chemical
plant that has the potential to kill millions of people within
the New York/New Jersey region should not be the subject of a
lower standard or a greater risk, but the subject of a higher
standard and a more secure set of circumstances.
Now, for those of us here, who have worked long to improve
the security of critical infrastructure in our state, these are
the scenarios we have worked furiously to avoid. For residents
of New Jersey, many of whom have grown up in the shadows of
chemical plants, down the road from port container shipyards,
or in the backyards of railroad lines that transport hazardous
materials, these are the types of threats we've had to grapple
with on a daily basis.
In New Jersey, we are acutely aware of the risks we face.
Not only did we experience the horror and the impact of
September 11th, not only do we live across the river from a
site that is a daily reminder, we have our own risks that are
unique to New Jersey and to those states similarly situated
that have other chemical industries located in their states.
Nowhere else in the country are densely populated areas
sandwiched between a multitude of wide-ranging threats,
including a major international airport, the largest seaport on
the east coast, proximity to the nation's largest metropolis,
and all within a tight cluster of chemical plants known as the
chemical coastway. So, when it comes to our security, the
bottom line is, no one knows what we need better than our
State.
And that is the key distinction over which we are currently
locked in a battle of the Department of Homeland Security. The
Department's assumption that it can and should preempt chemical
security measures at the State level should be, at a minimum,
alarming to New Jerseyans. The Department's proposed
regulations would not just jeopardize the progress we are
making here in New Jersey to make sure our communities are safe
- it would take us backwards. The proposed laws would fail to
cover many dangerous chemical facilities unique to the State.
They wouldn't push chemical makers to switch to less dangerous
technology or materials that are available within the
marketplace, that can still create a product that would be
profitable to the industry, but at the same time create greater
protection for all of our citizens, something New Jersey has
already been doing.
The fact is, we are the only State that has acted to enact
such strict provisions and provide enforceable standards. So,
instead of working to come up with regulations that could
supercede the progress we have made and preempt future attempts
to tighten our regulations, I would hope they would use New
Jersey as an example, and build off the steps we have taken.
More than 5 years after September 11th, the fact that the
Federal Government has not led the way to secure our chemical
plants is nothing short of a failure. Instead, our local police
departments, our state legislatures, and communities, are
leading the charge. If there is anything we learned from
September 11th, Mr. Chairman, it was that we will not always be
able to preconceive the nature of an attack or imagine what
could be used as a weapon against us. What was once
inconceivable--a simple letter laced with Anthrax becomes a
deadly weapon, a commercial airplane used every day for
commerce and tourism becomes deadly weapons of mass
destruction. These and other realities changed our world
forever. Yet, we refuse to come to terms with a stark reality:
The terrorists are creative and they work every day to find a
new vulnerability to exploit. At a minimum, we have to be at
least as creative as they are, and certainly as it relates to
the chemical industry and the nature of the industry. The
creativity doesn't have to be so expansive. It's pretty
obvious.
Meanwhile, we have yet to see any innovative approach from
the Department of Homeland Security on chemical security. This
latest development from the Department is concerning not just
because it calls into question the future of New Jersey's
chemical security, but because it signals the Department is on
the wrong track. Instead of looking ahead to develop creative
ways to secure our plants, the Department has put forward
proposal that threatens to undermine our own protections.
Mr. Chairman, I know with your leadership and working with
our colleagues we will not, and should not, be at the whim of
an agency that has yet to prove it grasps the gravity and the
urgency of securing our chemical plants. New Jersey needs the
flexibility to enforce its own, tougher standards.
I'm sure that the Chairman recalls the days where our
colleagues, when they had the majority, would say, ``The states
know best, the states know best.'' We should delegate to the
States all of these block grants. We should delegate to the
States all of this authority. And yet we do not hear one voice,
in this most critical issue on security, say, the State knows
best. On the contrary, the State does not know the best in
terms of the Department of Homeland Security.
I think I speak for all of us on the panel that will work
to ensure that New Jersey's right is upheld and that our
security is not compromised. The stakes are simply too high.
And I look forward to working with you, Senator Lautenberg, to
make sure our rights are preserved in this regard and we are
not preempted.
Senator Lautenberg. Well said, Senator. Is there an
intimation in what you've said that there could be, perhaps,
other voices trying to communicate with the Department of
Homeland Security, which might have a greater influence in the
stakes themselves?
Senator Menendez. Well, obviously, clearly, the suggestion
that the fundamental principle we heard from our colleagues,
that the states know best, in this particular case, seems to be
undermined. And so one would have to ask, Well, what makes the
states less knowledgeable about its own securities and its own
unique perspective as it relates to this industry, which the
FBI has cited as part of the equation as ``the most dangerous
two miles in America.''
You got to ask, Well, who is creating the pressure points
to subvert the State standards to a lesser Federal standard?
Senator Lautenberg. Thanks very much, Senator Menendez,
Councilman Pallone. For those of you within earshot, we are
determined to change the course that has been laid out by the
Department of Homeland Security. To put it in a term in the
vernacular, ``They just don't get it.'' And we're going to
change that. Thank you.
Senator Menendez. Thank you.
Senator Lautenberg. Now I'd like to call our second panel
of witnesses to the table. The second panel consists of Mr.
Larry Stanton from DHS, Susan Bodine from EPA. And Ms. Bodine
will be joined at the witness table, I understand, by Deborah
Dietrich. She's the Director of the Emergency Management at
EPA. And we welcome all of you here.
At the outset, I must make say a couple of things here. I
had hoped that the United States Department of Homeland
Security Secretary Michael Chertoff, who is himself a native of
Elizabeth, New Jersey, or other more senior-level--and we
welcome you, Mr. Stanton, but we had extended an invitation to
DHS to bring in the highest level of persons at the Department.
However, they declined to attend.
And, again, it's troubling that the top officials at the
Department of Homeland Security refuse to come here to defend
their decision to preempt New Jersey's chemical Security Law.
And I mean no disrespect to Mr. Stanton, the DHS witness who's
here with us today, and I appreciate the fact that you've
traveled this distance to New Jersey to discuss this important
issue.
Our country depends on capable and hard-working Federal
employees like those before us from the Department of Homeland
Security and the Environmental Protection Agency. The
Environmental Protection Agency currently plays a secondary
role to DHS in the area of chemical security, but it retains an
enormous amount of the Federal Government's skills and
expertise about the safe and secure operation of chemical
facilities.
Now, EPA also has experience in working with state and
local governments on safety and security related matters. And
the witnesses with us today, Larry Stanton, Deputy Director of
the Risk Management Division of the U.S. Department of Homeland
Security; Susan Bodine, Assistant Administrator for the
Environmental Protection Agency's Office of Solid Waste and
Emergency Response, and Ms. Dietrich, who I mentioned earlier.
We're pleased to have all of you here, and we'll start by
asking Mr. Stanton to begin. Now, what I've asked for is a 5-
minute summary of your statement. The detailed statement that
you've prepared will be considered, entered into the record,
but I would ask you, please, to try to adhere to the time
frame. I'll give you a general reminder if you go over a little
bit. If you go over a lot, it won't be so gentle, but we thank
you very much.
Mr. Stanton, please.
______
Statement of Hon. Robert Menendez,
U.S. Senator from the State of New Jersey
Mr. Chairman, Thank you for the invitation to appear before you
today on this critical issue. I am pleased that we have a strong
commitment from our New Jersey congressional delegation to address
serious concerns facing our state's ability to regulate chemical
security, and that our senior senator has made this such a forefront
issue. I have been proud to join you in your efforts on chemical
security and I thank you for holding this hearing.
Today, we are not far from the area that many of us from New Jersey
know has been deemed the ``most two dangerous miles'' in America by the
FBI. Here, at Rutgers Law School in Newark, we sit within 5 miles of
the Kuehne plant in South Kearny, in a range that would without
question be devastated by an attack at that facility. This is not a new
reality. For those of us here, who have long worked to improve the
security of the critical infrastructure in our state, these are the
scenarios we have worked furiously to avoid. For residents of New
Jersey, many who have grown up in the shadows of chemical plants, down
the road from port container shipyards, or in the backyards of railroad
lines that transport hazardous materials, these are the type of threats
have had to grapple with on a daily basis.
In New Jersey, we are acutely aware of the risks we face. Not only
did we experience the horror and the impact of September 11th, not only
do we live across the river from a site that is a constant reminder of
what we are up against, but we have are own risks that are unique to
New Jersey. Nowhere else in the country are densely populated areas
sandwiched between a multitude of wide-ranging threats, including a
major international airport, the largest seaport on the east coast,
proximity to the nation's largest metropolis, and all within a tight
cluster of chemical plants. So, when it comes to our security, the
bottom line is, no one knows what we need better than our state.
And that is the key distinction over which we are currently locked
in a battle with the Department of Homeland Security. The Department's
assumption that it can and should pre-empt chemical security measures
at the state level should be, at a minimum, alarming to New Jerseyans.
The Department's proposed regulations would not just jeopardize the
progress we are making here in New Jersey to ensure our plants are
secure and our communities are safe--it would take us backwards. The
proposed rules would fail to cover many dangerous chemical facilities
unique to the state. They wouldn't push chemical makers to switch to
less dangerous technology or materials, something New Jersey has
already been doing. The fact is, we are the only state that has acted
to enact such strict protections and provide enforceable standards. So,
instead of working to come up with regulations that could supersede the
progress we have made and pre-empt future attempts to tighten our
regulations, I would hope they would use New Jersey as an example, and
build off the steps we have taken.
More than 5 years after September 11th, the fact that the Federal
Government has not led the way to secure our chemical plants is nothing
short of a failure. Instead, our local police departments, our state
legislatures, and communities, are leading the charge. If there was
anything we learned from September 11th, it was that we will not always
be able to pre-conceive the nature of an attack or imagine what could
be used as a weapon against us. What was once inconceivable--that
commercial planes we use every day could become deadly weapons of mass
destruction--changed our world forever. Yet, we refuse to come to terms
with a stark reality: the terrorists are creative and are working every
day to find a new vulnerability to exploit. At a minimum, we have to be
at least as creative as they are.
Meanwhile, we have yet to see any innovative approach from DHS on
chemical security. This latest development from the Department is
concerning not just because it calls into question the future of New
Jersey's chemical security, but because it signals the Department is on
the wrong track. Instead of looking ahead to develop creative ways to
secure our plants, the Department has put forward a proposal that
threatens to undermine our own protections.
We will not, and should not, be at the whim of an agency that has
yet to prove it grasps the gravity and the urgency of securing our
chemical plants. New Jersey needs the flexibility to enforce its own,
tougher standards. I think I speak for all of us on this panel that we
will not give up until we ensure that New Jersey's right is upheld and
that our security will not be compromised. The stakes are simply too
high.
STATEMENT OF LAWRENCE STANTON, DEPARTMENT OF HOMELAND SECURITY
Mr. Stanton. Thank you, Senator. Thank you for the
opportunity to be here today, sir. The Department does
recognize the importance of the partnership with state and
local authorities in ensuring chemical plant security. We
believe that an open partnership, an open dialogue, among the
partners, the state and local authorities, private sector,
owner/operators operators, and the Federal Government is
critical to providing for a secure chemical facility
infrastructure for the nation. We believe that success in this
area involves effective dialogue between all of the various
levels of government, and we are dedicated to that principle.
The DHS vision for security of the chemical infrastructure,
sir, includes an infrastructure that is economically viable, is
employing effective and appropriate risk analysis tools, has
attained a sustainable security posture, and is addressing its
vulnerabilities and consequences of attack.
We have noted, sir, that the number of bills that have been
presented since 9/11 addressing chemical security have all been
centered around the concept of risk reduction to the chemical
sector. The recent enactment by Congress of legislation in this
area has provided DHS with the opportunity to regulate the
chemical sector, and we will be announcing an Interim Final
Regulation on April 4th of this year.
The intent, sir, of the Department, when we released the
Advance Notice of intent to regulate, the ANRM, was to solicit
comments. And I think it is important to note at this hearing
that, and especially here in New Jersey, that our intent with
the ANRM was exactly as was purported, that our intent was to
state a position, and to solicit comments on that position.
We received hundreds of comments on the ANRM. As you can
well imagine, sir, some of those comments were from members of
the Congress and the Governor of this great State. All of those
comments were read by us, considered very carefully, and have
been weighed very carefully, and are reflective and have been
reflected in the Interim Final Regulation. That's not to say
that, in every case, every comment was accepted, or that there
have been sweeping changes to the Interim Final Regulation from
the ANRM, but there are substantial changes in the Interim
Final Regulation from the Advance Notice.
That Interim Final Regulation, which will be released in
just 2 weeks, we believe, is the appropriate start to the
Federal regulatory effort in securing the chemical sector. We
would like very much to have the opportunity to implement that
regulation and to show what that regulation does on the ground.
DHS has a number of voluntary programs with the chemical
sector, and I've elaborated on these in my written statement,
sir. I would just note very quickly that our hallmarks, the
Office of Infrastructure Protection's hallmark, has been an
effective engagement. The protection planning process depends
heavily on effective partnering between our Federal officials
and the local and state officials that are responsible for
response to and protection of plants in their communities.
The Comprehensive Review Program we have launched
throughout the Nation, specifically aimed at the chemical
sector, relies entirely on effective partnership between local
and State authorities, local and State responders, and the
variety of Federal capabilities that can be brought to bear in
both planning and response around the risk issues inherent in a
chemical facility.
We have in the Office of Infrastructure Protection a long
track record of success in partnering effectively with our
State and local colleagues, especially here in New Jersey,
which, as has been pointed out by the previous panel, certainly
has one of the most robust chemical infrastructures in the
nation. We are keenly aware of that and we look forward to a
continued effective partnership with our local and state
partners in New Jersey.
Thank you, sir.
Senator Lautenberg. Thank you very much.
Ms. Bodine.
______
Statement of Lawrence Stanton, Department of Homeland Security
Thank you Chairman Lautenberg, Ranking Member Vitter, and Members
of the Committee. It is a pleasure to appear before you today to
discuss ``the Importance of State and Local Authorities in Ensuring
Chemical Plant Security.'' Open dialogue between security partners is a
key element in advancing the security of our nation, and I appreciate
this opportunity to address you. Securing the Chemical Sector is a
large job that will extend beyond the reaches of the Federal
Government. It must be a national program that includes all levels of
Government, industry and even the public. Integrated and effective
partnerships among all partners, Federal, state, local, and private are
essential to some of the most critical infrastructures in our country,
chemical facilities.
DHS' vision for the chemical sector is to have an economically
competitive industry that has achieved a sustainable security posture,
by effectively reducing vulnerabilities and consequences of attack to
acceptable levels, using risk-based assessments, industry best
practices, and a comprehensive information sharing environment between
industry and Government.
Before discussing some of the Departments work and achievements in
the chemical sector, I pause to make a few notes concerning the
legislation authorizing DHS to regulate facilities within the chemical
sector. Since 9/11, there have been several congressional hearings and
legislation introduced on chemical security, and then late last fall,
the Department was pleased to have Congress enact legislation in this
area. Even before we have an opportunity to implement this law,
however, there are already threats of having the program delayed yet
again.
I am referring to a provision that is currently in the House
Emergency Supplemental Appropriations bill. Among other problems, the
provision imposes new requirements that would delay the implementation
of this important regulatory program at a time when the Administration
is scheduled to issue an interim final rule within weeks. The provision
would also weaken the Department's ability to protect from disclosure
information transmitted to the Department for regulatory purposes--
information that would, if in our enemies' hands, provide information
about how to attack chemical facilities and foil existing defenses.
Furthermore, the provision removes the restriction that the Department
has the sole ability to enforce the provision, potentially resulting in
lawsuits that might even further delay this important program. Finally,
the provision would force DHS to reject any site security plan that
does not meet State and local standards, which could put the Department
in the position of imposing Federal fines on a facility that does not
meet State and local regulatory standards. We urge Congress to remove
the problematic provisions from the House Emergency Supplemental
Appropriations bill.
This hearing comes at an important moment for chemical security.
This is not just because of the new federal regulations for chemical
facility security which we will soon promulgate, but because voluntary
cooperative efforts between the public and private sectors are
beginning to bear fruit. Let me give you some examples of these
voluntary efforts. One of the more important efforts we have been
working on is the National Infrastructure Protection Plan (NIPP) which
was issued in June 2006. The NIPP improves protection of Critical
Infrastructure and Key Resources (CI/KR) by setting forth the risk
management framework guiding national CI/KR protection activities
across all sectors. Improving protection in the most cost effective
manner requires cooperation between the owners and all levels of
Government, and the NIPP clearly defines roles and responsibilities
among all partners.
Under the NIPP, each sector has developed a Sector-Specific Plan,
or SSP, which details how the NIPP will be implemented in that specific
sector. The Chemical SSP is a great example of the public/private
partnership we are trying to foster working together to improve
security at chemical facilities. It establishes goals, objectives, and
metrics that address the full spectrum of protection activities
including awareness, prevention, protection, response, and recovery. As
with the other SSPs, the plan is in final clearance. We look forward to
the chemical sector continuing to set a strong example in implementing
cooperative strategies that cost effectively use Government and
industry resources to ensure all of our CI/KR continue to operate
economically and safely.
The Chemical SSP describes many of the programs in which the
chemical sector is voluntarily cooperating with DHS to protect and
ensure the resiliency of its assets and manufacturing capabilities. In
many cases, industry, through the Chemical Sector Coordinating Council
(SCC), has actually partnered with DHS to develop these initiatives.
Some examples of these voluntary efforts are:
Site Assistance Visits (SAVs) are designed to facilitate
vulnerability identification and discussion between the Federal
Government and owners/operators of CI/KR in the field. 41 SAVs have
been conducted in the chemical sector.The Comprehensive Review (CR)
program, a non-regulatory exploration of potential threats in the
terrorist environment, brings together a Federal interagency team,
facility owner/operators, industry representatives, and community
emergency services organizations. The first Chemical Sector CR was
conducted in Detroit in February 2006. By August 2007, CRs will be
conducted in five additional regions including Chicago, Houston, Los
Angeles, Northern New Jersey, and Lower Delaware River. CRs have
identified many improvements--many of them low- or no-cost--that can be
implemented by CI/KR owners/operators, as well as longer term
strategies and potential improvements that can be implemented with a
mix of Government and private sector resources.
The Buffer Zone Protection Program (BZPP) is a targeted grant
program designed to assist local law enforcement in enhancing CI/KR
protection across the country. In FY 2006, grant funding was increased
from $50,000 per site to $189,000 per site for 185 sites in all
sectors. For FY 2004/2005 248 BZPP reports for chemical facilities were
submitted to DHS, which are eligible for a total of $12,600,000. For FY
2006, three chemical reports have been submitted out of a total of 46
eligible chemical facilities which are eligible for a total of
$10,316,000. For FY 2007 a total of 100 chemical sites are eligible for
BZPP funding of $19,865,000. To date, 394 chemical facilities have been
eligible for a total of $42,781,000 under the BZP Program. Additionally
in FY 06, there was a $25 million dollar Chemical BZPP to enhance state
and local jurisdiction's ability to protect and secure identified
Chemical Sector CI/KR regions. The Chemical BZPP program is a sector-
specific effort designed to be a companion to the Chemical Sector CR
initiative.
The Homeland Security Threat and Risk Analysis Center (HITRAC) is
working hard to ensure the timeliness and content of the threat
information provided to this sector. HITRAC works to provide valuable
threat information themselves or via other invited members of the
Intelligence Community through written products and periodic classified
threat briefings to cleared industry representatives in the chemical
sector. In addition, HITRAC provides scheduled unclassified
teleconference briefings on threat information based on private-sector
reporting, as well as law enforcement and other sources.
The Homeland Security Information Network (HSIN) is providing an
increasing amount of timely information to users in a secure online
format. Recent information that we have posted on HSIN includes
information on the January 17th train derailment and fire involving
chemicals in Kentucky, reports on recent incidents in Iraq involving
chlorine, and Quarterly Suspicious Activity Analyses which provide
information on incidents and threats of concern to the private sector.
These Quarterly reports are based primarily on private-sector reports,
and represent the value of public-private cooperation.
As I mentioned earlier, the Fiscal Year 2007 Homeland Security
Appropriations Act directed DHS to develop and implement a regulatory
framework for high risk chemical facilities. Section 550 of the Act
gave DHS authority to require high-risk chemical facilities to complete
vulnerability assessments, develop site security plans, and implement
protective measures necessary to meet DHS-defined performance
standards. The Act gives us six months from the date the President
signed the Bill, or until April 4, 2007, to promulgate interim final
regulations implementing this authority.
In December 2006, DHS released an Advanced Notice of Rulemaking
(ANRM) on the Chemical Facility Anti-terrorism Standards, containing
draft regulations and seeking public comment on those regulations and
some of the central issues surrounding them. Comments were due to DHS
by February 7, 2007.
Through the comment period, DHS received over 1300 pages of
comments from over 106 separate submitters, which I am sure includes
some of you. DHS is reviewing and considering these comments as the
text of the interim final regulation is refined and finalized. A
cursory review of these comments shows preemption, information
protection, adjudications, and inherently safer technology as issues
upon which numerous comments have been provided. We really appreciated
all of the input and perspectives offered by Members of Congress, State
and local jurisdictions, and industry. As the interim final rule is
still being drafted, I can speak to some of the main principal and
aspects of the program that we outlined in the Notice.
First, let me stress that this will be a security focused
regulatory regime that takes into consideration other existing
authorities, such as the Environmental Protection Agency's Risk
Management Program, the Department of Transportation's Hazardous
Materials Lists, the Chemical Weapons Convention, and others. Looking
at these other authorities, DHS has identified five security issues to
be addressed as part of its program. Those are:
Release--quantities of toxic, flammable or explosive chemicals or
materials the DHS believes have the potential for significant adverse
consequences for human life or health if released from a facility.
Theft or Diversion--chemicals or materials DHS believes have the
potential, if stolen or diverted during shipment, to be used as weapons
or easily converted into weapons using simple chemistry, equipment or
techniques in order to create significant adverse consequences for
human life or health.
Sabotage or Contamination--chemicals or materials which produce
large amounts of toxic by inhalation gas when spilled in water and that
DHS believes, if sabotaged or contaminated, have the potential to
create significant adverse consequences for human life or health during
transit or at a appoint of destination.
Government Mission Criticality--chemicals materials, or facilities,
the loss of which DHS believes could create significant adverse
consequences for national security or the ability of the Government to
deliver essential services.
Economic Criticality--chemicals, materials or facilities the loss
of which DHS believes could create significant adverse consequences for
the national or a regional economy.
To implement the regulations, DHS must define the regulated
community, or determine which facilities are ``high risk''. To
facilitate this, DHS has developed a screening tool called the Chemical
Security Assessment Tool (CSAT). The CSAT employs an easy-to-use,
online consequence-based Top Screen tool. CSAT builds upon the
foundational assessment tool developed with industry referred to as the
Risk Analysis and Management for Critical Asset Protection, or RAMCAP.
Under the DHS proposal, those facilities that are initially designated
high-risk must complete the online CSAT Security Vulnerability
Assessment (SVA) which will factor into a final determination of a
facility's risk level for purposes of the regulatory regime.
Using the results of the CSAT tools, all high risk facilities will
be placed into risk-based tiers. While all high-risk facilities will be
required to develop site security plans addressing their
vulnerabilities, the security measures needed to meet the performance
standards, as well as its inspection cycle and other regulatory
requirements will be based upon each facility's tier level. The
performance standards are intended to address the facility's
relationships with local jurisdictions, the ability to delay an
adversary until a response by local authorities, response capabilities
in the community, and emergency planning with local authorities. Thus,
the performance standards take into consideration, and are intended to
validate, the essential role that local authorities play in facility
and community security.
The higher a facility's risk tier, the more robust the security
measures they will need to incorporate, and the more frequent and
rigorous their inspections will be. Inspections will both validate the
adequacy of a facility's site security plan, as well as verify the
implementation of the measures identified therein.
Training of the inspectors is taking place this month in
Louisville, Kentucky. A large component of this training is being
conducted on site at chemical facilities that have volunteered to
participate. DHS is also finalizing the IT tools, guidance documents,
procedure manuals, and other materials necessary to be ready for the
launch of the regulatory program on April 4, 2007. Presently, the CSAT
Top Screen has been developed and is going through final preparation..
DHS will be using a phased approach in implementing the regulations,
with implementation at the highest risk facilities beginning in an
expedited manner, and implementation at lower-risk facilities occurring
in a sequential fashion.
For our initial operating capability carrying through the end of
this calendar year, we have identified a number of facilities that we
believe will land clearly in the highest risk tier. Once the Interim
Final Rule is published, we intend to begin working with those
facilities in a partnership to perform the initial screening and
vulnerability assessment, provide assistance in the drafting of the
Site Security Plan, and conduct an initial inspection. We intend this
to be a learning experience for us, our Inspectors in particular, and
for industry, and what we learn will shape further implementation of
the program, and help us ensure consistency in our approach across the
Nation.
Finally, let me just note that Chemical regulatory authority is an
issue that has been worked on for a long time, and was the subject of
several hearings and bills introduced by the 109th Congress. The
Department had reached the conclusion that the existing patchwork of
authorities did not permit us to regulate the industry effectively and
ensure the security of these facilities. Finally, late last fall, the
Fiscal Year 2007 Homeland Security Appropriations Act gave the
Department the authority to regulate the security of high risk chemical
plants nationwide. As we have said all along, and have incorporated
into the proposed interim final rule, the following core principles
must guide and regulatory approach:
First, we recognize that not all facilities present the same level
of risk, and that the most scrutiny should be focused on those that, if
attacked, could endanger the greatest number of lives, have the
greatest economic impact or present other very significant risks. There
are certainly many chemical facilities in the country that pose
relatively low risk.
Second, facility security should be based on reasonable, clear, and
equitable performance standards. The Department is developing
enforceable performance standards based on the types and severity of
potential risks posed by terrorists and natural disasters, and
facilities should have the flexibility to select among appropriate
site-specific security measures that will effectively address those
risks.
Third, we recognize the progress many responsible companies have
made to date. Many companies have made significant capital investments
in security since 9/11 and we should build on that progress. We will do
that through implementation of the regulations, and by continuing all
of the voluntary efforts.
Thank you for your attention and I would be happy to answer any
questions you may have at this time.
STATEMENT OF SUSAN BODINE, ASSISTANT ADMINISTRATOR, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Ms. Bodine. Thank you, Chairman Lautenberg. I'm pleased to
be here to discuss EPA's authority to promote the safety of our
nation's chemical facilities.
The Office of Solid Waste and Emergency Response manages
EPA's response to environmental emergencies. EPA's national
planning and preparedness functions, and development and
implementation of Federal regulations to prevent hazardous
chemical accidents and oil spills.
In carrying out our emergency response functions, we work
closely with EPA's ten regional offices, our Federal agency
partners, and state and local authorities to respond to major
environmental emergencies and to conduct emergency removal
actions at oil spill and hazardous waste sites.
Of the regulations administered by my office, two in
particular form the basis of our Chemical Accident Prevention
and Prepared Program. Specifically, these are regulations for
hazardous chemical inventory reporting under the Emergency
Planning and Community Right-To-Know Act (EPCRA), and
regulations for accident prevention and mitigation under
Section 112(r) of the Clean Air Act.
Now, EPCRA was enacted in 1986 as part of the Superfund
amendments in response to the Bhopal, India chemical disaster
of December 1984. And under EPCRA, states are directed to form
State Emergency Response Commissions and local communities are
to form Local Emergency Planning Committees.
Now, the primary function of the Local Emergency Planning
Committee is to prepare community emergency response plans for
chemical accidents. EPCRA also requires chemical facilities to
provide the Local Emergency Planning Committees with
information necessary for emergency planning, and chemical
facilities also submit annual chemical inventory reports and
information about the facility's hazardous chemicals. They
submit those both to the state commissions, local committees,
and to the local fire departments.
In 1990, as part of the 1990 amendments to the Clean Air
Act, Congress added Section 112(r). In response to chemical
accidents that occurred in the late 1980s. Section 112(r) of
the Clean Air Act establishes general duties on all stationary
facilities that handle extremely hazardous chemicals to prevent
and mitigate accidental releases of those chemicals into the
air. It also directs EPA to promulgate risk management
requirements for facilities that have large quantities of the
most dangerous chemicals, facilities that store quantities
above a threshold. They have to conduct a hazardous assessment
and, develop and implement an accident prevention and emergency
response program. These facilities, also have to analyze the
potential consequences of both a worst-case scenario release,
as well as an alternative release scenario. And, again, they
need to write a summary report. And all of that goes into a
Risk Management Plan, which we call a RMP. There are
approximately 14,000 facilities in the states that are subject
to these RMP requirements.
In addition to providing the address and physical location
of a facility, these RMPs, the Risk Management Plans, report
the identity and quantity of the regulated chemicals on site
and information about measures taken by the facility to prevent
accidental releases, facility emergency planning information,
the history of significant accidents at the facility over the
last 5 years, as well as the facility's Offsite Consequence
Analysis information.
Neither EPCRA nor the Clean Air Act contain any chemical
plant security requirements, but they do contribute to facility
safety and emergency preparedness by reducing the vulnerability
of the facilities and communities to releases from whatever
source and, therefore, to the consequence of those releases.
I do want to mention that in 1999 Congress did change some
of the Section 112(r) Risk Management Plan requirements in the
Chemical Safety Information Site Security and Fuels Regulatory
Relief Act. That change was to ask EPA to conduct a study of
the Offsite Consequence Analysis information, and determine
whether public release could increase terrorist risks.
In 2000, EPA promulgated a change to the Offsite
Consequence Analysis information as a result of its finding
that making that information public did propose an increased
risk.
In addition, in 2004, EPA amended its regulations again for
the Risk Management Program to remove the requirement that
there be any information on Offsite Consequence Analysis in the
summaries of the RMPs, which are publicly available.
Now, after the creation of the Department of Homeland
Security in 2002, the Homeland Security Presidential Directive
7 established DHS as the lead agency for coordinating the
overall national effort to enhance the protection of critical
infrastructure and key resources of the United States,
including the chemical sector. EPA supports DHS by providing
information and support and we work together with them when we
provide them assistance as requested.
Senator Lautenberg. Thank you.
Ms. Bodine, I didn't see any reference to IST. You're
familiar with what the acronym means?
Ms. IBodine. Yes.
Senator Lautenberg. As I take it, your contribution to
preventing, and I look at your testimony here, establishing the
Chemical Accident Prevention Program, but you don't include IST
in your commentary.
Is that not a factor in your evaluation?
Ms. IBodine. What the chemical facilities are required to
do is a safety review. They are required to identify hazards,
look at their process controls, look at their mitigation
systems, look at their monitoring and detection systems, look
at training, compliance, and incident investigations.
And as part of the process, hazard analysis, the facilities
need to look at what would happen if there was a failure in the
process, what would happen if there was a leak.
Senator Lautenberg. So you're talking about what might
happen in supplying information. You're not taking an active
role in prescribing ways to prevent these things. What you're
doing is providing information. I take it you're a data
resource for DHS.
Ms. IBodine. Well, no, the EPA's programs are, again, to
deal with chemical safety and to require facilities to have
both evaluation of the Offsite Consequence Analysis, which----
Senator Lautenberg. Consequence management. You mean a
medical or therapeutic arrangement. We'd like to start earlier,
as you can imagine.
Ms. IBodine. Right. That's what the Risk Management
Program looks at, both at the analysis of what the risks are
associated with the facility and the processes up front. And if
an accident does occur, then you need to have, of course, in
place the planning and procedures to respond.
Senator Lautenberg. So you don't look at IST as a means of
helping to reduce the risk of a major accident happening.
Ms. IBodine. Our program doesn't have a requirement.
Senator Lautenberg. Thank you.
I find it, I must tell you, shocking, to believe that EPA,
with its responsibilities for making sure that the air is
clean, the water is clean, the Superfund sites are cleaned up,
doesn't think that, in their development of information for DHS
to act upon, which is, as I take it, its principal role here,
that it would not be suggested by your department that they
look at alternative ways to do what they have to with easier
materials than those that are used now. Easier, in the fact
that they might not have the same disastrous consequence.
Ms. IBodine. But it's not always clear what is Inherently
Safer. There are always going to be risk trade-offs when
looking at different materials. You have to remember, we
started using MTBE in our gasoline in 1979 for octane purposes.
And then later in 1992 we started using it to meet the 1990
Clean Air Act amendments for oxygenated fuels. There could be
unintended consequences.
Senator Lautenberg. The question is whether or not EPA has
the responsibility to be more aggressive in terms of making
recommendations that will help prevent the accidents. We look
at EPA as an agency that would help prevent health dangers to
children, to people in communities, that by having cleaner air,
et cetera. That's what EPA's job is.
Yeah, they have a secondary phase, they do clean up
afterwards. We don't want to clean up afterwards, Ms. Bodine.
We would like to get on with this and make sure that the
protections that we propose have a direct effect on the
exposure to danger.
Thank you.
Mr. Stanton, is it the view of DHS that preempting the
rights of states or local governments to adopt strong chemical
security protection increases our homeland security?
Mr. Stanton. That's not my understanding of DHS's
position, no, sir.
Senator Lautenberg. So then what is the value of
preemption here? I don't quite understand. If you don't think
that preempting would endanger people more, rather, States
rights would protect people more rigidly, what
is the purpose of preemption as you see it?
Mr. Stanton. The purpose of preemption, sir, would be to
enable DHS to address a situation where a state law or,
perhaps, a local law or ordinance was interfering with DHS's
ability to reduce risk, improve security, reduce
consequentiality of or vulnerability of a chemical plant.
Senator Lautenberg. Now, you have to forgive me, I don't
get it, because what you're saying is that stronger laws would
prevent DHS from being more effective in terms of preventing a
catastrophe.
Mr. Stanton. I'm sorry, sir, I didn't understand the
question.
Senator Lautenberg. The suggestion is that it would
inhibit your ability to help prevent accidents resulting from
chemical exposure of an attack.
Mr. Stanton. No, sir.
Senator Lautenberg. Well, would preemption protect our
citizens more strongly.
Mr. Stanton. I'm not sure if you're asking the question in
general, sir, or in the context of the New Jersey chemical
regulation.
Senator Lautenberg. Well, it applies to all states, Mr.
Stanton.
Mr. Stanton. Yes, sir. I understand that the Department's
position------
Senator Lautenberg. Let me be clear.
Would you say that preempting States' programs to prevent
chemical accidents from occurring in any way would improve the
safety of the people who reside there?
Does the preemption, being an earlier intervention, would
help people be more safe as a result of that, of taking down
themore rigid requirements that a state has?
Mr. Stanton. Sir, it is not my understanding that DHS
intends to preempt State laws that do not frustrate our goal of
reducing risk to the communities, to the nation, to the
infrastructure itself.
Our intent is to make a case for preemption, as is our
place to do, in a situation where a state law is frustrating or
interfering with our ability to accomplish risk reduction and
improve security, reduction of consequentiality, reduction of
vulnerability.
Senator Lautenberg. So the State exercising its right to
protect its citizens to the best of its ability, that might be
more requiring than DHS's, might frustrate DHS's ability to
conduct their programs on a weaker standard?
Mr. Stanton. No, sir. Sir, that's not our proposition at
all.
Senator Lautenberg. Well, what does preemption do? I'm not
getting it. I don't know when the people, who either see this
or hear it, will understand why it's better to have, not to
frustrate, your words, frustrate DHS from carrying on its
mission, when it's mission is less.
Would they use a shorter ladder fighting a fire, I mean, in
making people feel safer? It doesn't make sense, Mr. Stanton.
And I don't mean to be picking on you, but I would tell you
that there is nothing that I've heard from your statement, nor
that I've seen from DHS, that suggests they are more concerned
about taking care of the people who are exposed to these
facilities by permitting states, who have tougher standards, to
exercise those tougher standards.
Mr. Stanton. And I don't think that the language that we
are intending to post on April 4th will necessarily----
Senator Lautenberg. Well, can I say that DHS would salute
more rigid standards in the states, and let them do whatever
they can that is more requiring than DHS to protect their
residents?
Mr. Stanton. I think, sir, that the role of the Federal
Government is to address national risk, to bring a national
perspective to the table. When we look at the risks of a
chemical facility, I think that what is risk reduction to one
level of government may not always be risk reduction to every
level of government.
And so I think that it is entirely possible that, on a
case-by-case basis, there will be differences of opinion
between the Federal Government and the state, not only in New
Jersey, but in other places, as well. And I think the intent of
DHS----
Senator Lautenberg. This isn't a court of law, but I think
that the case that you're making on behalf of DHS doesn't
really do the job, Mr. Stanton. And convey it to Mr. Chertoff,
to the Secretary of the Department of Homeland Security, that
Senator Lautenberg does not understand why preemptions of rigid
state law would be a better way to protect people with a lesser
standard; that chlorine trucks have been recently used, Mr.
Stanton, as bombs to kill people in Iraq.
Does DHS view a terrorist attack on a chemical facility in
the United States as a potential threat to the American public.
Mr. Stanton. Certainly, sir.
Senator Lautenberg. If so, why is the Administration
proposing to preempt States from protecting their residents?
Mr. Stanton. I'm not sure that we are, sir. We're
releasing an Interim Final Regulation in two weeks. The Interim
Final Regulation will state DHS's position post-incorporation
of comments. As I said in my opening statement, the Advance
Notice that was released was exactly what it purported to be,
it was a solicitation of comments on the subject. We received
many comments on the subject of preemption, and those comments
have figured heavily into our thinking of the language of the
Final Regulation.
Senator Lautenberg. The situation that we have here with
chlorine now being used as a weapon, as I noted, in Iraq, and
it conforms to a statement made by Mr. Richard Falkenrath, the
Homeland Security Policy Advisor, to President Bush from 2001
to 2003. He said something, ``When you look at all of the
different targets that could be attacked in the United States
and ask yourself which presents the greatest possibility of
mass casualties and are the least well secured at the present
time, one target flies off the page, and it's chemicals, in
particular toxic inhalation hazardous chemicals, not
necessarily explosive chemicals, which, if inhaled, might be
damaging to human health.''
And if we can find Inherently Safer Technologies to deal
with these things, I don't understand why we can't go ahead and
do that without having the Department of Homeland Security
saying, no, you're going to frustrate our means to work with
these problems.
As you can tell, it's really hard to imagine how
circumventing our more rigid structure is going to give our
people any protection, any comfort.
The 2007 DHS Appropriations bill gave your Agency the task
of writing Federal Rules on chemical security and was silent on
the issue of preemption. What kinds of security analysis did
DHS use in its decision to preempt the states?
Mr. Stanton. Sir, no decision has been made to preempt
states.
Senator Lautenberg. No, you keep saying that, Mr. Stanton.
Is there any objection to us reinserting in the law that was
passed in the House, the Bill that was passed in the House of
Representatives, why suddenly was there an effort to take out
that right, the right of the states to write their own rules,
that would send over to the Senate a Bill that strikes out the
inability of DHS to preempt States' rights.
Mr. Stanton. This is in reference to the amendments to the
Iraq Funding bill, sir.
Senator Lautenberg. Right.
Mr. Stanton. The Department is concerned that those
amendments will significantly delay the implementation of a
security regulation, sir. We've been requesting authority to
regulate the chemical industry for several years. The
authorization to do so was finally granted on September 29th of
last year. We were given six months to write a rule. We put out
a request for comment on December 28th. We received those
comments. We read those comments. We studied those comments.
We've redrafted the Interim Final Rule in recognition of those
comments.
Senator Lautenberg. Is there a proposal to preempt states
from using their own standards?
Mr. Stanton. Sir, the Interim Final Rule is going to be
released in two weeks. It will lay out very specifically what
DHS's understanding of its preemption authorities prerogatives
are.
Senator Lautenberg. Okay.
Mr. Stanton. Under existing Federal law.
Senator Lautenberg. I hear you. I'll close with this: In
2006, Government Accountability Office issued a report
encouraging DHS to work more closely with EPA and consider
Inherently Safer Technologies as part of the chemical security
policy. DHS rejected that suggestion because of concern over
how DHS's interaction with EPA might be perceived among DHS's
private sector partners. Now, that's a quote, how DHS's
interaction with EPA might be perceived among DHS's private
sector partners.
Should DHS's relationship with the chemical industry be a
factor in its decisions about Homeland Security Regulations?
Mr. Stanton. I'm sorry, sir, could you repeat the
question.
Senator Lautenberg. I asked, should DHS's relationship
with the chemical industry be a significant factor in its
decisions about how they write Homeland Security regulations?
Mr. Stanton. DHS believes that, in order to effectively
regulate, in order to effectively reduce risk, in order to
effectively reduce vulnerabilities and consequences in the
chemical sector, the most beneficial way to do that is in
partnership with our local and state partners in Government,
with our partners in the public sector, and with our partners
in the private sector, its infrastructures, owners and
operators. We think that a positive relationship with all of
those stakeholders helps us to achieve our end more quickly,
more efficiently, and more effectively.
Senator Lautenberg. Do the private partners, to your use
your expression, do they recommend a preemption for the
Department of Homeland Security?
Mr. Stanton. You're referring to the private sector.
Senator Lautenberg. No.
Mr. Stanton. The owners and operators, sir?
Senator Lautenberg. Yes.
Mr. Stanton. It is my understanding that preemption is a
preferred outcome. However, the concept of preemption in the
private sector would appear to be very broad, and it's my
understanding that that is not the Department's interpretation
of our preemption capabilities.
Senator Lautenberg. I thank you very much. We're going to
keep this record open. We'll submit questions in writing to
give prompt attention in responding to us. Thank you very much,
all of you, for appearing here.
I'm pleased to note the presence of our distinguished
Governor, former Senator, someone always concerned about the
protection of the people in the state of New Jersey, working
very hard during his time as the United States Senator, working
on chemical security.
And we will ask the indulgence of those who appear on the
next panel; that would be Mayor Bollwage, Dr. Flynn and Rick
Engler,to please indulge us while we hear from the Governor,
whose schedule, as you can imagine, is one that demands his
attention so immediately.
So, Governor, thanks. Welcome here. We look forward to
hearing your testimony.
______
Statement of Susan Bodine, Assistant Administrator, U.S. Environmental
Protection Agency
Good morning, Chairman Lautenberg, and Members of the Subcommittee,
I am Susan Parker Bodine, Assistant Administrator of the Office of
Solid Waste and Emergency Response (OSWER), U.S. Environmental
Protection Agency (EPA). I am pleased to be here to discuss EPA's
authorities for promoting the safety of our nation's chemical
facilities.
introduction
EPA's OSWER manages EPA's response to environmental emergencies,
EPA's national planning and preparedness functions, and development and
implementation of Federal regulations to prevent hazardous chemical
accidents and oil spills.
In carrying out our emergency response functions, we work closely
with EPA's 10 regional offices, our Federal agency partners, and state
and local authorities to respond to major environmental emergencies and
to conduct emergency removal actions at oil spill and hazardous waste
sites. In this capacity, we respond to several hundred major oil spills
and hazardous chemical releases each year. The events EPA responds to
cover a wide range of emergencies, from train derailments and fires at
chemical plants to incidents of national significance such as the
collapse of the World Trade Center and the Hurricane Katrina recovery
effort. In all of our response activities, EPA maintains close working
relationships with state and local authorities in order to carry out
our responsibilities.
In the area of national planning, EPA has partnered with the
Department of Homeland Security and other Federal agencies in
development and implementation of the National Response Plan, the
National Incident Management System, and the National Infrastructure
Protection Plan (NIPP). Together, these plans form a cohesive structure
that integrates the incident management, protection activities, and
emergency response capabilities and resources of Federal, State, and
local governments into a national framework for domestic incident
management.
In addition to managing our field emergency response and national
planning functions, OSWER is also responsible for the development and
implementation of several important Federal regulations. These include
regulations for hazardous chemical inventory reporting under the
Emergency Planning and Community Right-to-Know Act (EPCRA), emergency
release reporting requirements contained in the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), oil
spill prevention and response planning requirements under the Clean
Water Act and the Oil Pollution Act (OPA), and regulations for chemical
accident prevention and mitigation under the Clean Air Act (CAA).
epcra and the caa risk management program
In response to the December 1984 toxic chemical disaster in Bhopal,
India, and subsequent chemical accidents that occurred in the United
States in the mid to late 1 980s, Congress passed both EPCRA and CAA
section 112(r), establishing the chemical accident prevention program.
EPCRA calls on states to create State Emergency Response Commissions
(SERCs) and local communities to form Local Emergency Planning
Committees (LEPCs) to prepare community emergency response plans for
chemical accidents. EPCRA also requires chemical facilities to provide
LEPCs with information necessary for emergency planning, and to submit
annual chemical inventory reports and information about the facility's
hazardous chemicals to SERCs, LEPCs and local fire departments.
As its name suggests, EPCRA promotes the sharing of hazard
information and emergency planning. However, EPCRA does not require
facilities to take actions to prevent chemical accidents from
occurring. After major chemical accidents continued to occur in the
U.S. throughout the late 1980s, Congress added section 112(r) to the
Clean Air Act (CAA) in 1990 which imposes a ``general duty'' on all
stationary facilities handling extremely hazardous chemicals to prevent
and mitigate accidental releases of those chemicals into the air. It
also directs EPA to promulgate risk management requirements for those
facilities having large quantities of the most dangerous chemicals.
In accordance with Congress' direction in CAA 112 (r), EPA listed
140 chemicals and their threshold quantities based on potential harm to
human health and the environment in the event of an air release.
Facilities having a listed chemical present in more than a threshold
quantity must conduct a hazard assessment, develop and implement an
accident prevention and emergency response program, analyze the
potential consequences of worst-case and alternative (less severe)
release scenarios, and provide a summary report--called a Risk
Management Plan, or RMP--to EPA. Approximately 14,000 chemical
facilities are currently subject to theserequirements.
RMPs contain valuable information about a chemical facility and its
hazards. In addition to providing the address and physical location of
the facility, RMPs report the identity and quantity of each regulated
chemical on site, information about the measures taken by the facility
to prevent accidental releases, facility emergency planning
information, the history of significant accidents at the facility over
the last 5 years, and the facility's Offsite Consequence Analysis (OCA)
information, which provides the facility's analytical estimate of the
potential consequences of hypothetical worst-case and alternative
release scenarios. EPA maintains a national electronic database of
RMPs, known as RMP Info, which is currently the most comprehensive
database of chemical facility hazard information in existence.
While neither EPCRA nor CAA section 112 (r) contain any chemical
plant security requirements, both contribute to facility safety and
emergency preparedness and as a result help reduce the vulnerability of
certain facilities and their communities to terrorist attacks. EPCRA's
reporting requirements ensure that communities are made aware of
hazardous chemicals located in their area, and SERCs and LEPCs
established under the law help prepare communities to respond to any
catastrophic releases of those chemicals. The CAA requirement for
facilities to assess and address their potential chemical hazards
reduces the risk that any unanticipated release will seriously threaten
public health and the environment. The CAA requirement that facilities
have emergency response plans in place also helps lessen the potential
consequences of any unanticipated release, however caused. In addition,
the national RMP database created under the CAA has proven to be one of
the Federal government's most important sources of information on the
risks associated with U.S. hazardous chemical facilities.
coordination with dhs
After the creation of the Department of Homeland Security (DHS) in
2002, Homeland Security Presidential Directive 7 established DHS as the
lead agency for coordinating the overall national effort to enhance the
protection of the critical infrastructure and key resources of the
United States, including the chemical sector. While DHS is the lead
Federal agency for chemical sector security, EPA serves in a supporting
role by providing information and analytical support, and by
maintaining involvement in the Department's ongoing chemical security
initiatives as requested. For example, EPA participates in the
Department's Chemical Comprehensive Review program, where DHS involves
Federal, State, and local Government authorities, as well as private
sector representatives, to evaluate the security vulnerabilities and
emergency response capabilities of selected major metropolitan areas,
and provides grants to assist states in obtaining resources necessary
to address area security vulnerabilities.
The 2007 Homeland Security Appropriations Act now provides DHS with
explicit interim authority to publish security regulations for high-
risk chemical sites and conduct regulatory enforcement activities. This
authority reinforces DHS as the Federal lead for chemical site security
and significantly improves the Department's ability to carry out that
role.
As DHS continues its efforts to develop and implement the
regulations and other programs related to chemical sector security, EPA
stands ready to support them in those initiatives, as needed.
conclusion
Thank you for the opportunity to testify. I would be pleased to
answer any questions.
STATEMENT OF HON. JON S. CORZINE, GOVERNOR FROM THE STATE OF
NEW JERSEY
Mr. Corzine. Mr. Chairman, it's nice to use that language
when I am addressing you.
Senator Lautenberg. I like it.
Mr. Corzine. Brings back old days. It's good to be back in
front of then Senate Environment and Public Works Committee,
which I was fortunate enough to serve on in my first 2 years
when I was in the Congress.
Senator Lautenberg. Could everybody hear the Governor
okay.
Mr. Corzine. And the good work that both that Committee
and you, who preceded me there, have done with regard to
chemical plant safety and security, the topic that is on the
table today. And I'm very pleased to have a chance to testify
to the view, that we should be able to, at a state and local
level, to address the risks and vulnerabilities that we see, so
that we can take on the responsibility that I think all of us
in public life believe is our number one responsibility, which
is to protect the citizens we serve.
I have a formal statement for the record, which if you are
having trouble sleeping, I urge you to read tonight, but I want
to be passionate about the subject of chemical plant security.
As you know in the State of New Jersey, we have had a
number of instances before. We have had explosions, toxic
chemical releases that have threatened our public. Most
recently an explosion at the Napp Technologies facility in Lodi
killed five workers in 1995. There are a number of other
instances through time.
None of us have to conjure up too long a memory to
recognize the catastrophe that occurred around Valero, and you
can go through a litany of these examples.
By the way, last week alone, three people were injured in a
small blaze in Colorado at a chemical plant. Workers were
hospitalized in Florida from a chemical spill in an asphalt
plant that caught fire in Pennsylvania. This is sort of the
everyday elements of environment and public safety exposure
that exist. And, as you noted, some of the experts that have
reviewed the vulnerabilities that we have in the post-9/11
world report efforts to use our infrastructure as weapons
against the public.
Nothing seems more central or close to the top of the list
of those items than chemical plants. And we have taken very
strong steps here in New Jersey, both from an environmental
safety and public safety standpoint, but also with regard to
security. There's a series of complex legislative and
regulatory steps that we have taken that identify plants that
are vulnerable, those that expose the public in large degree,
and we have asked them to take specific steps, both on a
security basis, but also to look at what is called Inherently
Safer Technology in that process.
And just last week we expanded the number of plants that
would be required, not only for new activities at those plants,
but for their broad elements, to examine Inherently Safer
Technology. And we're trying to put it into regulatory format,
not just in what is the equivalent of what is an Executive
Order. We think these are strong steps, important steps, ones
that have been engineered in conjunction with ongoing dialogue
with the private sector, but recognizing the tremendous dangers
that our public, in a dense, the most densly-populated State in
the nation, would incur.
We're proud of our chemical industry. We're not trying to
run the chemical and petroleum industry out of the state. In
fact, we want to be welcome to it, but it needs to be done in
the context of public safety and security. This is an issue
that I've worked on in Congress. It's an issue that I believe
we need to be ever attentive to here in the State of New
Jersey.
The one thing that is very disturbing, from the discussion
that I just heard of the previous panelists and in the initial
proposal of rules that follow the September 29th regulations
that were put forth in last year's Appropriations bill, is the
fact there is the potential that much of the good work that we
have put in place could be diminished, could be reduced.
Almost everybody agrees, we ought to have vulnerability
assessments and risk-based analysis of where a plant stands,
but substituting ammonia or chloride hydrolyte for chlorine is
not something that would be mandated under those kinds of
contexts. Looking for substitutions, looking for reduction of
the storage of chemicals on site, changes in process, those are
not generally required around the country.
We think they're important ingredients. And if we wrote
chemical plant security regulations or law that I thought met
those standards at the national level, we wouldn't need to take
those steps at the state level, but that hasn't occurred. And
we need to make sure that we're not preempted from doing those
things that we think would protect the public.
This is a big deal for our communities. You know I get
different counts, someplace between 109 and 111 plants that
would impact a million people or more if there were a release
of toxic chemicals. Some of the most dangerous plants in the
country identified by EPA are here in New Jersey. And it's not
because we want to close these plants, it's because we want to
protect the public on a best probability basis that we can,
that we have worked so hard here.
Federal preemption, the basis that one set of rules works
everywhere, I think would be a big mistake. And the State of
New Jersey will take those actions, aside from the kinds of
testimony we give today, to try to protect our position to be
able to protect the public of the State of New Jersey. So I
think I'll stop there, Mr. Chairman.
Senator Lautenberg. Thank you very much, Governor. I have
to tip my hat to you, because you haven't been waiting to see
what could happen if there is less attention paid to these
problems by expanding the number of sites that you think ought
to be reviewed. And here again, I draw not only on your Senate
experience, but your business experience, and that is, I
understand, that you've got people from industry working with
you, and that's as it should be.
And we're not looking at incapacitating these companies.
They provide valuable material for public use and they're
important facilitators for better crops, for better protection
against all kinds of things. And so we want to encourage them
to do their business. And it's most surprising to me, having
been in New Jersey all of my life, having come out of the
corporate world, to see these companies stepping up and saying,
okay, look, we don't want things to be tougher, but we do want
them to be safer. And so it's an excellent relationship.
You've got labor behind you, Governor, by way of the New
Jersey AFL-CIO making their announcement to be of help. And so
I think what you've done is the thing I know you best for, and
that is your leadership quality, Governor. And the old Frank
and Jon alliance is still alive and well. So thanks very much.
Mr. Corzine. Appreciate it. And I want to concur and
underscore that this has been a collaborative effort, business,
labor, and the public sector, which it should be. But that is
not an excuse for our Federal partners to preempt what is the
good work of a lot of people here, not just my Administration,
but previous Administration.
Senator Lautenberg. If there is one lingering polity here
is how DHS could make a case for not permitting states, that
are willing to deal with it, having their industry deal with
it, to go ahead and have a more requiring standard. But we
heard that they don't, that it frustrates them. And the last
thing we want to do is frustrate them. Thanks very much.
Mr. Corzine. Thanks, Senator.
Senator Lautenberg. We'll take a 5-minute break, please,
and I'll call the next witness to the table, Mayor Bollwage,
Council on Foreign Relations; Dr. Flynn, Council on Foreign
Relations; Rick Engler of New Jersey Work Environmental
Council.
(Recess is taken at 11:45 a.m.)
Senator Lautenberg. Mayor Bollwage.
______
Statement of Jon S. Corzine, Governor from the State of New Jersey
Chairman Lautenberg--I like the way that sounds. . . Chairman
Lautenberg, Ranking Member Vitter, Senators Cardin, Klobuchar and
Whitehouse, Senator Menendez, Congressman Pallone, Congressman Payne,
fellow witnesses, I am pleased to appear before the Senate Environment
and Public Works Subcommittee on Transportation Safety, Infrastructure
Security and Water Quality. I am especially pleased to do so here in
New Jersey and I welcome the Subcommittee to our Great State. I
appreciate you accommodating my schedule today, so that I can be here
to talk about an issue about which I care deeply--the importance of
state and local authorities in ensuring chemical plant safety and
security.
I have long fought to ensure the public safety by addressing the
security of our nation's chemical facilities. As you know, as Senator,
I championed Federal legislation on this issue, and I am pleased that
the once and again Senior Senator from New Jersey has continued that
effort.
We know how dangerous these places can be because of the terrible
accidents that occur at them. In September 2001, an accident at a
chemical plant in France caused 300 tons of nitrates to explode,
killing 29, injuring thousands, and damaging 10,000 houses. And we have
certainly had our share of these problems right here in New Jersey. In
1995, an explosion at the Napp Technologies facility in Lodi resulted
in the death of five workers. In addition, al-queda affiliated
insurgent groups in Iraq have targeted chemical facilities to enhance
the lethality of their attacks. Today, a plausible threat remains that
a successful attack against chemical facilities has the potential to
meet terrorist goals.
As you know, last October Federal legislation addressing this
important issue was signed into law as part of the Homeland Security
Appropriations Act. However, that legislation did not go as far as I
would have liked, and I am particularly concerned about DHS' claim of
preemption authority in the proposed regulations despite no clear grant
of authority from Congress. We have, and will continue to, forcefully
oppose any claim of preemption which impacts New Jersey's ability to
protect its citizens.
Since becoming Governor, my Administration has been committed to
ensuring that New Jersey's pioneering chemical security, public safety,
and environmental protection laws are successfully implemented; and to
identifying any gaps that the state must address.
September 11th shocked us into the realization that our assets can
be turned against us by terrorists. New Jersey's critical
infrastructure concentration and high population density may have no
comparison in the United States. Our robust chemical industry also
presents us with unique advantages and challenges.
According to EPA data, there are a number of plants here in New
Jersey where a worst case release of toxic chemicals--accidental or
otherwise--could threaten more than a million people. You'd better
believe this is an issue we take seriously here.
Since January 1986, New Jersey has had in place the Toxic
Catastrophe Prevention Act (TCPA), an environmental statute that
requires facilities that handle extraordinarily hazardous substances
(EHS) above certain thresholds to prepare and implement risk management
plans to prevent potentially catastrophic releases. And in 2003, the
TCPA rules were updated to specifically require that owners and
operators evaluate inherently safer technology (IST) for newly designed
and constructed covered processes.
Since 1990, New Jersey has also had the Discharge Prevention,
Containment and Countermeasures (DPCC) program, which regulates
facilities storing petroleum and/or hazardous substances to protect
from accidental discharges to the environment.
In September 2003, New Jersey adopted Best Practices for the
Chemical Sector. These represent a risk-based approach to security
consisting of a site-specific vulnerability assessment that evaluates
threats to a facility's operation, its particular vulnerabilities and
likely consequences of a chemical release, and the physical and
procedural security measures already in place and those which should be
taken to remediate vulnerabilities.
And since November 2005, Best Practices Standards have been in
place, clarifying that Best Security Practices are ``mandatory'' for
TCPA/DPCC chemical sites. They:
Require the development of ``prevention, preparedness, and
response plans''
Require facilities management to afford employees a ``reasonable
opportunity'' to identify issues that should be addressed in the
security assessment and plans, including emergency response plans;
Require covered TCPA facilities to produce a review report
regarding the adoption of ``Inherently Safer Technology (IST);''
Define IST as: 1) reducing the amount of material that could be
released; 2) substituting less hazardous materials; 3) using hazardous
materials in the least dangerous process condition or form; 4)
designing equipment and processes to minimize equipment or human error.
Just this Friday, we announced proposed changes to our TCPA rules
to more than double the number of facilities affected by IST
requirements--all 94 TCPA facilities will now have to review the
possibility of making materials substitution or equipment or process
changes for the sake of public safety.
To date, as a result of our TCPA requirements there are many New
Jersey IST success stories:
Over 20 wastewater treatment facilities have switched from using
chlorine to sodium hypochlorite for disinfection of their treated
wastewater.
Four electric generation and cogeneration plants substituted
anhydrous ammonia with aqueous ammonia for use in their air pollution
control systems.
One facility switched from chlorine to bromochlorohydantoin for
use as an algicide in treating cooling water.
One facility switched from bulk storage of liquid sulfur trioxide
to on-site generation of gaseous sulfur trioxide for direct consumption
into the process.
One facility switched from bulk storage of chlorine to on-site
generation of ozone for disinfection of potable water.
Another facility is proposing to switch from bulk storage of
chlorine to on-site generation of chlorine dioxide for bleaching paper.
As we implement these policies and work with facilities on site-by-
site review of security vulnerabilities, we have seen positive
compliance with the Best Practices Standards, which have now been in
place over a year. Overall, 62 percent of the facilities demonstrated
compliance with the Standards. Facilities were given 30 days to
satisfactorily resolve any outstanding compliance issues. Our
Department of Environmental Protection anticipates compliance with the
all of the above requirements to exceed 98 percent.
We are proud of the work that we have done in New Jersey. I want to
recognize that most of this work has been done cooperatively with the
chemical industries. To date, the chemical industry in New Jersey has
invested hundreds of millions of dollars to improve safety and security
at their plants. We appreciate these efforts and will continue to work
cooperatively whenever we can.
For example, New Jersey has invested in developing a worker-
training curriculum based on extensive collaboration between industry
leaders, workers and their advocates, academia, and homeland security
and safety experts. AFL-CIO, Rutgers University, the Steelworkers, the
Teamsters, the chemical industry and others played a key role in
developing and promoting our ``train the trainer'' program to ensure
workers and managers at chemical plants are prepared to make their
workplaces the safest places possible. We recently reached out to the
chemical industry to ensure timely implementation and look forward to
making progress with them on this issue.
While New Jersey has taken major steps, this is far from a New
Jersey-only issue. I have long argued that Federal standards are
necessary to protect all of our citizens from the potential dangers of
an attack on, or accident at, a chemical plant, and to ensure a level
playing field for security throughout the nation This need must be
balanced with the flexibility for states to take action beyond the
Federal standards to address unique state circumstances.
I have been very vocal about my opposition to Federal preemption of
state chemical security laws. As Senator, I proposed legislation that
was deferential to state's efforts to go beyond Federal standards to
protect their citizens. And last month, I sent a letter to Secretary
Chertoff expressing my opposition, and asked New Jersey's Director of
Homeland Security and Preparedness Richard Canas and Department of
Environmental Protection Commissioner Lisa Jackson to submit detailed
formal comments to the Department of Homeland Security expressing these
sentiments as part of the public comment period.
Our citizens will be most secure when all levels of Government work
closely together to ensure their safety. It would be a terrible mistake
to undermine the great work that New Jersey has done, or the future
flexibility to implement additional security measures. Thank you for
your time today.
STATEMENT OF J. CHRISTIAN BOLLWAGE, MAYOR, ELIZABETH, NEW
JERSEY
Mr. Bollwage. As the fourth largest municipality in New
Jersey and the Union County Seat, Elizabeth is centrally
located to the entire tri-state area. In addition to its
position within the region, located within the City of
Elizabeth are Port Elizabeth/Newark, the CSX Facility, the
North East Corridor, Goethals Bridge, Route 278, Routes 1&9 and
the New Jersey Turnpike. In addition, the Chemical Coast Line,
which transports chemicals by rail through the City of
Elizabeth, poses potential high life hazards in the event of an
emergency or potential terrorist attack. As a transportation
hub and vital destination, Elizabeth's growing need for
homeland and chemical security is evident.
Furthermore, Elizabeth borders municipalities such as
Linden, Newark and State of New York City, which due to the
location and the presence of petrochemical plants, pose
potential fire hazards, as well as potential terrorist targets.
We continue to operate at an Elevated Alert Level, and High
Threat Level for the Aviation Sector. Our efforts on September
11th, while vital in New York City and surrounding
municipalities, we required unprecedented manpower, in addition
to equipment utilization disbursements. Commuters stranded on
major roadways such as the Goethals Bridge, were provided
shelters in our city. Police officers were assigned for
security purposes. Our firefighters went to New York, as well
as the surrounding Boroughs, to provide coverage at their local
firehouses.
We're expanding with the growth of the Jersey Gardens Mall,
IKEA, Union County College, and Trinitas Hospital. In recent
years, the AMC Theater, in addition to five hotels.
Furthermore, the city anticipates incorporation of a ferry
service departing from the Elizabeth Seaport to New York City.
We've been identified within the most dangerous two miles
in the country. Located in close proximity to the Infineum
Corporation and Conocco Phillips Oil Refinery, the City of
Elizabeth is at an even higher risk for potential terrorist
activity. And with 15,000 chemical facilities throughout the
nation, it's imperative that local chemical security procedures
are enacted.
In November 2005, New Jersey implemented state-based
chemical security protection procedures. And those requirements
indicated that the State's highest risk chemical facilities
would have to conduct an analysis to determine whether
Inherently Safer Technologies, safer chemical or materials,
could be used to reduce the risk of a hazardous material
emergency or terrorist attack. Due to its location in the
region, the City of Elizabeth is beginning to apply safe
planning policies to reduce the risk of an emergency. In order
to efficiently continue implementing these strategies, state
and local municipalities need to have the ability to apply a
plan that will most effectively enable prevention and targeted
response in the event of an emergency.
In September, Congress gave the Department of Homeland
Security the authority to adopt interim regulations for
security at chemical facilities. However, that measure was
silent on the issue of preemption. Within their proposed
regulation, DHS asserted that based upon Congress' silence on
this issue, it had the authority and would preempt state and
local laws that went further than the Department's regulations.
Under these regulations, the City of Elizabeth would be unable
to create policies that could assist in reducing the risk of a
catastrophic emergency.
The EPA is responsible for handling environmental impacts
of all 15,000 chemical facilities in the nation. Federal
chemical security measures, such as the proposed DHS
regulations, will not be sufficient to ensure the safety of
local municipalities such as ours.
Even before 9/11, the nation's chemical facilities were
vulnerable to chemicals attacks involving hazardous materials.
In 1980, Senator, as you know, an explosion and fire at
Chemical Control, a chemical storage facility in Elizabeth,
burned for 15 hours and literally rocked neighborhoods for
miles. Approximately 14,000 residents within one mile of the
site and one residence located within 200 feet. Not to mention
the dozens of densely populated neighborhoods located across
the Elizabeth River. Over 400 firefighters, policy and
emergency workers labored in thick smoke; less than half had
air packs. Runoff stained the Elizabeth River red; smoke
shrouded Staten Island. Within 18 months, many firefighters
reported respiratory trouble and others developed health
problems ranging from cancer to chronic skin rashes.
This tragic event spawned the birth of Hazardous Material
Response Awareness. Since then Federal, State and local
Governments have worked together to ensure the safety of our
first responders. The interoperability among Government
agencies continues to protect the men and women who without
hesitation risk their lives to protect our residents. And now
more than ever we must work together to develop guidelines that
can be realistically applied to safeguard our residents.
Twenty-seven years later, we should not be waiting for
another chemical disaster to figure out what the best plan of
action should be to protect the lives of our citizens. A
blanket Federal security measure will not adequately safeguard
all chemical facilities throughout the nation and the residents
in surrounding neighborhoods. In the event of a hazardous
chemical emergency or terrorist attack, the City of Elizabeth
needs to act, and will not be able to wait for the Federal
Government to implement immediate emergency assistance.
It is imperative that State and local Government agencies
be allowed, with the assistance of the Federal Government, to
develop and implement strategies that will ultimately result in
lowering the risk and consequences of a terrorist attack and
make chemical facilities more secure.
If you ask New Jersey officials how to better secure our
chemical facilities, we can respond. If you ask the New Jersey
officials how to better secure a chemical facility in Baton
Rouge, LS we could not respond adequately. Each facility is
unique and, therefore, needs specific security measures. Having
one standard model of security, which would preempt state and
local law, for the 15,000 facilities nationwide is a recipe for
disaster.
In order to protect the health, safety and well-being of
the residents within the City of Elizabeth, it is imperative
that state and local municipalities have the authority and
resources to secure our hometowns.
Regardless of the outcome, the City of Elizabeth is
equipping, training and preparing our first responders to deal
with any emergency situation. The only question now is whether
Federal, State and local Governments can come together and
collectively ensure the safety of our residents.
Mr. Chairman, thank you for this opportunity.
Senator Lautenberg. Thanks very much, Mayor.
Dr. Flynn, we welcome you here. And I note that your
contact with Foreign Affairs is kind of an interesting platform
for your interests from your position in the Council on Foreign
Relations, and we invite you to give your testimony.
______
Statement of J. Christian Bollwage, Mayor, Elizabeth, New Jersey
As the fourth largest municipality in New Jersey and the Union
County Seat, Elizabeth is centrally located to the entire tri-state
area. In addition to its position within the region, located within the
City of Elizabeth are Port Elizabeth/Newark, the CSX Facility, the
North East Corridor, Goethals Bridge, Route 278, Routes 1&9 and the NJ
Turnpike. In addition, the Chemical Coast Line, which transports
chemicals by rail through the City of Elizabeth, poses potential high
life hazards in the event of an emergency or potential terrorist
attack. As a transportation hub and vital destination, Elizabeth's
growing need for homeland and chemical security is evident.
Furthermore, Elizabeth borders municipalities such as Linden,
Newark, as well as NYC, which due to location and the presence of
petrochemical plants, pose potential fire hazards and potential
terrorist targets.
In New Jersey, we continue to operate at an Elevated Alert Level,
and a High Threat Level for the Aviation Sector. Elizabeth's efforts on
September 11th, while vital in New York City and surrounding
municipalities, required unprecedented manpower, in addition to
equipment utilization and disbursement. Commuters stranded on major
roadways such as the Goethals Bridge, were provided shelter at a local
Recreation Center and other sites throughout the City. City police
officers were also assigned for security purposes. Elizabeth's
firefighters were sent to New York City, as well as the surrounding
Boroughs, to provide coverage at the local firehouses.
The City of Elizabeth is expanding, with economic development and
growth taking the forefront. Home to Jersey Gardens Mall, IKEA, Union
County College, and Trinitas Hospital, in recent years Elizabeth has
welcomed the AMC Theater and numerous restaurants and shops. With the
addition of five hotels, including extended-stay facilities, there is
an immense increase in high-life hazard locations. Furthermore, the
City of Elizabeth anticipates the incorporation of a ferry service
departing from the Elizabeth Seaport, thus increasing the number of
visitors and commuters traveling to and from Elizabeth on a daily
basis.
The City of Elizabeth has been identified within the most dangerous
two miles in the country. Located in close proximity to the Infineum
Corporation and the Conoco Phillips oil refinery, the City of Elizabeth
is at an even higher risk for potential terrorist activity. With 15,000
chemical facilities throughout the nation, it is imperative that local
chemical security procedures be enacted.
In November 2005, New Jersey implemented state-based chemical
security protection procedures. These requirements indicated that the
State's highest risk chemical facilities would have to conduct an
analysis to determine whether Inherently Safer Technologies (IST),
safer chemical or materials, can be used to reduce the risk of a
hazardous material emergency or terrorist attack. Due to its location
in the region, the City of Elizabeth is beginning to apply safe
planning policies to reduce the risk of an emergency. In order to
efficiently continue implementing these strategies, State and local
municipalities need to have the ability to apply a plan that will most
effectively enable prevention and targeted response in the event of an
emergency.
In September, Congress gave the Department of Homeland Security
(DHS) the authority to adopt interim regulations for security at
chemical facilities. However, that measure was silent on the issue of
preemption. Within their proposed regulation, DHS asserted that based
upon Congress's silence on the issue, it had the authority and would
preempt State and local laws that went further than the department's
regulations. Under these regulations, the City of Elizabeth would be
unable to create policies that can assist in reducing the risk of a
catastrophic emergency.
The Environmental Protection Agency (EPA) is responsible for
handling environmental impacts of all 15,000 chemical facilities in the
nation. Federal chemical security measures, such as the proposed DHS
regulations, will not be sufficient to ensure the safety of local
municipalities such as the City of Elizabeth.
Even before 9-11, the nation's chemical facilities were vulnerable
to terrorist attacks and incidents involving hazardous materials.
In 1980, an explosion and fire at Chemical Control, a chemical
storage facility in Elizabeth, burned for 15 hours and literally rocked
neighborhoods for miles. There were approximately 14,250 residents
within 1 mile of the site and one residence located within 200 feet.
Not to mention the dozens of densely populated neighborhoods located
across the Elizabeth River. Over 400 firefighters, police and emergency
workers labored in thick smoke; less than half had air packs. Runoff
stained the Elizabeth River red; smoke shrouded Staten Island. Within
18 months, many firefighters had reported respiratory trouble. Others
developed health problems ranging from cancer to chronic skin rashes.
This tragic event spawned the birth of Hazardous Material Response
and Awareness. Since then Federal, State, and local Governments have
worked together to ensure the safety of our first responders. The
interoperability among Government agencies continues to protect the men
and women who without hesitation risk their lives to protect our
residents.
Now more than ever, we must work together to develop guidelines
that can be realistically applied to safeguard our residents.
Twenty-seven years later, we should not be waiting for another
chemical disaster to figure out what the best plan of action should be
to protect the lives of our residents. A blanket Federal security
measure will not adequately safeguard all chemicals facilities
throughout the nation and the residents in surrounding neighborhoods.
In the event of a hazardous chemical emergency or terrorist attack, the
City of Elizabeth needs to act, and will not be able to wait for the
Federal Government to implement immediate emergency assistance.
It is imperative that State and local Government agencies be
allowed, with the assistance of the Federal Government, to develop and
implement strategies that will ultimately result in lowering the risk
and consequences of a terrorist attack and make chemical facilities
more secure.
If you ask New Jersey officials how to better secure our chemical
facilities we can respond. If you ask New Jersey officials how to
better secure the chemical facility in Baton Rouge, LA we could not
respond adequately. Each facility is unique and therefore needs
specific security measures. Having one standard model of security,
which would preempt State and local law, for the 15,000 facilities
nationwide is a recipe for disaster.
In order to protect the health, safety, and well being of the
residents within the City of Elizabeth, it is imperative that State and
local municipalities have the authority and resources to secure our
hometowns.
Regardless of the outcome, the City of Elizabeth is equipping,
training, and preparing our first responders to deal with any emergency
situation. The only question now is whether Federal, State, and local
Government can come together and collectively ensure the safety of all
our residents.
STATEMENT OF STEPHEN E. FLYNN, COUNCIL ON
FOREIGN RELATIONS, NEW YORK, NEW YORK
Mr. Flynn. Thank you very much, Senator. It's an honor to
appear before you today. And I'm also a retired Coast Guard
officer and spent 24 years in that service and have been
working in Homeland Security for a bit of time, and had the
good fortune to appear and honor to appear before you on a
number of these Committee Hearings before.
I wanted to appear before you today to address the vital
issue of chemical facility security. At the outset, Mr.
Chairman, I want to thank you for the exceptional leadership
you have been providing in both raising the profile and
advancing practical approaches to this complex challenge. You
have been hard at work I know long before the attacks of
September 11th.
Recognizing that communities may be jeopardized by
accidents, such as the tragic one that took place in the
pesticide plant in Bhopal, India, in December 1983, you have
played an instrumental role in advancing prudent safety
measures such as the Emergency Response and Community Right-to-
Know Act, to reduce the potential peril chemical facilities can
pose to citizens who neighbor them.
As I had previously testified before the Senate Homeland
Security and Governmental Affairs Committee, what you said,
almost two years ago, April 27, 2005, there are hundreds of
chemical facilities within the United States that represent the
military equivalent of a poorly-guarded arsenal of weapons of
mass destruction.
At that panel, in fact, I said to the panels of Senators
that are were there, I said, ``Imagine you are receiving a
briefing from the Director, from the presidential morning daily
brief, Mr. President, we just made ourselves aware there are
weapons of mass destruction positioned around the United States
next to some of the most densly-populated areas, next to some
of the most critical infrastructures. We rely on things like
seaports and airports and refineries and, Mr. President, we
have no idea what the stance of these weapons are, and we would
like the authority to go in and check out the plants.''
You would think, as a Nation that has expanded so much
blood and treasure looking for weapons of mass destruction
overseas, that their Commander and Chief that received that
briefing would be poised for action. That was almost 2 years
ago. And Americans should be flummoxed of the fact that it has
taken to September 2006 for the Federal Government to be given
the authority to begin the process of looking at security of
chemical facilities. This is a real problem in part because the
threat is such.
I mean, one basic lesson we should surely have pulled away
from the events of 9/11 was Al Qaeda did not import weapons of
mass destruction; they converted four domestic airliners into
them. Our own infrastructure could be used against us, and yet
here we are this far down the pike and we're still carrying on
fairly preliminary conversations about how to secure these
facilities.
What also makes us such a starking lapse is that the
skillset of taking on the chemical industry and the petroleum
refinery infrastructure is being developed in Iraq and in Saudi
Arabia. And this expertise of insurgents and those who are
involved in this war that we are poised against, eventually
these insurgents are going to go home with the experience back
to them or some will realistically tap into chat rooms and pick
up the keys of how one does this. And so we simply must be
operating on a recognition that we're on borrowed time; that we
have these facilities and we need to think about securing them.
Now, against this backup, of course, we have what would
seem an insufficiency in 2006 when the Department of Homeland
Security and the American Chemistry Council acknowledged that
voluntarily measures are not working and they, therefore,
authorized language in Fiscal 2007's Homeland Security spending
law to provide a response.
But I would argue it's ineffective for five critical
reasons: First, the Department of Homeland Security simply has
too few resources to do this job. They are receiving this year
a possible $15 million on top of $10 million. They had to carry
out and build the capacity to police an industry that has
15,000 plus facilities around this country.
To put that number into context, the Nuclear Regulatory
Commission receives over $50 million to provide oversight for
the 140 facilities within its purview. Now, that is every year
giving them $50 million to provide oversight for security of
nuclear facilities, and yet the Department of Homeland Security
if going to receive this year $25 million. By the way, the
extra 15 million has to come out of hide of the existing
infrastructure budget because the budget asked for no
additional funding for the Environmental Protection Office to
do this critical issue.
So you're asking the Department of Homeland Security now to
take on this responsibility, overriding the State's ability to
do this, and not providing the resources or the trained
manpower to do it. That's a real limitation.
The second issue is simply the authority that DHS has, it
just simply lacks any teeth. The legislation says, ``That the
Secretary may not disapprove a site security plan submitted
under the section based on the presence or absence of a
particular security measure, but the Secretary may disapprove a
site security plan if the plan fails to satisfy the risk-based
performance standards established by this section.''
If that sounds like a bit of goodly guck to most people, I
think it will be a legal nightmare for a Secretary to try to go
in and say, I think these are limits and should be pushed back
and there are other risk-based things you should take into
account.
The bottom line is, if the Secretary tries to enforce this
rule, I think this will be a real limitation. The limited
resources and limited authorities is what DHS is bringing to
the table and providing Federal oversight of this critical
issue. Larry Stanton, who we heard from today, who have been
working long and hard at these issues without any resources and
without adequate authority.
The third issue is one I think you should be very sensitive
to, Mr. Chairman, and this is the Right-to-Know Act, the need
to know by communities. With other national disasters like
tornados or hurricanes, we get warned and communities know what
to do. People who are adjacent to these facilities don't know
what's going on in them. And I worry the language is treated as
if it were classified information, which puts you in a whole
rubric of security claims process that's going to cut out state
and local people from knowing what's being done in their own
backyards.
I would add as a fourth issue here, so we have this problem
of limited authority, limited resources, things being done on a
code of silence. Then we basically ask the DHS to preempt the
State's ability to carry out and move this all further, and
this is simply outrageous.
The final ones I would highlight here is that the public
law purposely exclude the situation of Inherently Safer
Technology as an element of risk-based standards that DHS is
called upon to assess.
So the very thing the State has moved forward on, that we
have to look at, at safer ways of doing this, is something they
have stepped back down in. I can tell you, at many of these
facilities around, where I've been, I can't provide a physical
security plan that will make the community safe. They're just
where they are and what they do. We're talking about suicide
truck bombs. This is what played out this past weekend with
chlorine trucks. When that plays out here, the physical
security measures in place are not going to be up to par.
Then we deal with release of chemicals that could kill
potentially tens of thousands of people. You have to look at
the way they do business and change the way they're doing
business, if they're going to be located in the most congested
state in the union.
Now, I ask people to consider particularly the issue of
anhydrous hydrogen fluoride, which is used in the refinement of
gasoline. During an industry-sponsored test conducted in a
Nevada desert in 1986, a small accident was simulated by
releasing one thousand gallons of the chemical into the
atmosphere for 2 minutes. The plume is heavier than air, so it
hugs the ground. The test found there were lethal
concentrations of this gas five miles away and up to seven-and-
a-half miles away. If you were exposed to it for 30 minutes,
you would die, too.
Now, of course, evacuation, people caught in the traffic.
They are going to be 7.5 miles away. They are going to go into
their cars and they're going to perish. This is one of the most
painful ways to die. It basically vaporizes at 68 degrees and
then spreads out and a plume downstream.
The acid begins by burning the eyelids of the victims. Then
they experience a dry, hacking cough. Breathing becomes
increasing labored and painful as they gasp in more of the
chemical. Their lungs become inflamed and congested, depriving
them of oxygen and leading them to seizures. Ultimately, most
people fall into a coma. And without medical attention,
everybody caught in the toxic plume is dead within ten hours.
Refineries near major urban areas could use an alternatives
to hydrofluoric acid. We need to consider IST. We need to
recognize that the Department of Homeland Security, while well
intends people in the Departments trying to move forward, has
not been given the legislative authority to. Governor Corzine
is on track where we should go.
And I'll finish by simply saying that one of the things
that I most lament, in being involved with this issue well
before 9/11 and being an essential part of the U.S. Commission
on National Security and making the warning saying, we're going
to have an attack on U.S. soil, and people not paying
attention. I don't want to live with the angst again of this
foreseeable threat we have not taken action here at home to
address.
I applaud you, Mr. Chairman, for moving this conversation
forward.
Senator Lautenberg. Thanks very much for your testimony,
Dr. Flynn.
We'll hear now from Rick Engler of the New Jersey Work
Environment Council, and invite you toproceed.
______
Statement of Stephen E. Flynn, Council of Foreign Relations, New York,
New York
Chairman Lautenberg, and distinguished members of the Subcommittee
on Transportation Safety, Infrastructure Security and Water Quality. I
am honored to appear before you this morning to discuss the vital issue
of chemical facility security. At the outset, Mr. Chairman, I want to
thank you for the exceptional leadership you have been providing in
both raising the profile and advancing practical approaches to this
complex challenge. You have been hard at work on this issue long before
the attacks of September 11, 2001 exposed how vulnerable America is to
catastrophic terrorist attacks on U.S. soil. Recognizing that
communities may be jeopardized by accidents such as the tragic one that
took place in a pesticide plant in Bhopal, India, in December 1984, you
have played an instrumental role in advancing prudent safety measures
such at the Emergency Response and Community Right to Know Act (EPCRA)
to reduce the potential peril chemical facilities can pose to citizens
who neighbor them.
As I have previously testified before the Senate Homeland Security
and Governmental Affairs Committee on April 27, 2005, there are
hundreds of chemical facilities within the United States that represent
the military equivalent of a poorly guarded arsenal of weapons of mass
destruction. Deadly chemicals including chlorine, anhydrous ammonia,
hydrogen fluoride, boron triflouride, cyanide, and nitrates are often
stored in large quantities in densely populated areas adjacent to
important infrastructures, such as water treatment plants, bridges,
energy facilities, and transportation hubs. It is perplexing that a
nation that has expended so much blood and treasure searching for
weapons of mass destruction in Iraq, would allow what could become
their equivalent to sit largely overlooked on U.S. soil. It is prudent
to recall, that on 9/11, Al Qaeda did not import weapons of mass
destruction; they converted four domestic airliners into them.
Like many students of terrorism, I believe that Al Qaeda or one of
its growing number of radical jihadist imitators will attempt to carry
out a major terrorist attack on the United States within the next five
years. At the top of the list of likely targets is the chemical
industry. Al Qaeda has been acquiring experience in these kinds of
attacks in Iraq and Saudi Arabia. Between January 2004 and March 2006,
insurgents carried out attacks on oil and gas facilities and pipelines
that cost Iraq more than $16 billion in lost oil revenues. The details
of their tactics are shared in Internet chat rooms. Further, many of
the foreign insurgents have returned or will return to their native
countries with the experience and practical skills of successfully
targeting these kinds of facilities.
The effort to advance the security of chemical facilities in the
United States is long overdue. Americans should be flummoxed that it
took more than five years after September 11, 2001 for Congress to
provide Federal officials with the authority to regulate security for
many of the nation's highest risk chemical facilities. They should be
even more baffled by the anemic legislative authority contained in the
2007 Department of Homeland Security Appropriations Act and the
recently released interim rule-making language issued by the Department
of Homeland Security in February 2007. I am deeply concerned that the
recent actions of Congress and the Department of Homeland Security will
actually serve as a barrier to progress on chemical security. I
strongly urge that new legislation be drafted and enacted as soon as
possible to address the critical shortcomings of these actions
The explanation for the lack of progress on this serious issue
rests in part with the longstanding distrust by the chemical and
petroleum industries of Government efforts to regulate them. This can
be traced to the adversarial relationship that has long marked
relations between the Environmental Protection Agency and chemical
firms. The industry also has had a generally strong safety record which
it believes should translate into a more hands-off approach by
Government to how it does business. Additionally, some chemical
producers are facing mounting global competition that has eroded their
profit margins, making them understandably anxious about new
requirements that raise their costs and place them at a competitive
disadvantage.
On its face it would appear that 2006 was a watershed year for the
chemical security agenda. Both the American Chemistry Council and the
Department of Homeland Security publicly acknowledged that voluntary
measures were not working. However, the authorizing language of the
fiscal 2007 Homeland Security spending law (PL109-295) is proving to be
an ineffective response for five critical reasons.
First, the Department of Homeland Security is provided with too few
resources to become an effective partner in working with the chemical
industry so as to provide reasonable oversight. The Department is
receiving only $15 million in new funding in FY08. This will be added
to the paltry $10 million budget it has had for the oversight for an
industry that that has thousands of facilities producing extremely
hazardous chemicals. To put that number into context, the Nuclear
Regulatory Commission receives over $50 million to provide security for
the nation's 140 nuclear power facilities. Another way to view that
number is that the United States has been spending an average of $250
million each day on the war in Iraq since the spring of 2003. Thus the
total expenditure for safeguarding some of the nation's most hazardous
facilities amounts to what we spend every 150 minutes in Iraq. Further,
President Bush's FY 2008 budget asked for no additional overall funding
for DHS's Infrastructure Protection Office which has been assigned the
lead of implementing this new DHS responsibility. In other words, the
$15 million in new funding that is being applied towards building the
Department's new capacity to oversee the chemical industry will come at
the cost of other infrastructure protection programs managed by that
office.
Second, the authority provided to the Secretary of Homeland
Security to sanction a facility for failing to invest adequately in
security is unworkable. Specifically, the legislation says:
That the Secretary may not disapprove a site security plan
submitted under this section based on the presence or absence of a
particular security measure, but the Secretary may disapprove a site
security plan if the plan fails to satisfy the risk-based performance
standards established by this section.
As a practical matter, even if DHS was receiving the resources to
hire the personnel to conduct a comprehensive site assessment (and it
is not) it would embark on a legal nightmare trying to disapprove a
facility plan--which could potentially lead to the termination of
operations at a facility--based on an assessment of ``risk-based
performance standards.'' This is because such an assessment would be
open to competing interpretations that would inevitably get bogged down
in the Federal court system. The end result is that the Secretary has
been given a sanctioning authority in name only. DHS will not be able
to execute that authority except when there are blatantly egregious
circumtances.
Third, the new legislative language works against one of the most
important imperatives in addressing chemical facility safety: the
involvement of the community. The need for public disclosure of
information that could affect the safety and well-being of a community
rests at the heart of the ``Emergency Response and Community Right to
Know Act (EPCRA).'' While communities generally receive adequate
warning and direction on what to do when it comes to natural events
like hurricanes and tornados, historically, neighbors to dangerous
chemical facilities have lived largely in the blind when it comes to
the hazards they may be exposed to and are often unaware of the steps
they should take to protect themselves in the event of a chemical
release. While there is legitimate reason to treat some security
information as sensitive, the act goes too far by requiring DHS to
treat vulnerability or security information under this section, ``as if
the information were classified material'' and stipulating that this
information be provided only to ``State and local Government officials
possessing the necessary security clearances, including law enforcement
officials and first responders.'' This onerous requirement effectively
places the overwhelming majority of State and local officials and
emergency responders out of the loop when it comes to the security of
plants nestled within their own communities. Few officials hold these
clearances and there is already an extensive backlog in providing them.
As a consequence, the vast majority of emergency planners who are
responsible for putting together the local response to disasters will
have to make these plans without an understanding of the
vulnerabilities and the existing security protocols that are in place
at a facility. Further, local communities will have little to no
ability to make informed zoning decisions in areas adjacent to these
facilities.
The excessive new protections of vulnerability and security-related
information reinforces one of the most serious shortcomings of the act
which is its failure to allow State Governments to enact stronger
security requirements than those adopted at the Federal level when
those States determine such requirements are appropriate to
safeguarding their populations. This has led DHS to interpret the act
in its proposed interim final regulation in such as way that the
Federal Government may actually preempt a State chemical security
measure that it determines will interfere with its risk-based
performance standards. The net result is that while DHS possesses
little in the way of expertise and is not being provided adequate
resources to provide effective oversight of the chemical industry and
has been given an anemic--at best--sanction authority, it is taking the
position that has the right of preemption over States who have stronger
and more enforceable State standards such as those enacted in New
Jersey. This is Federalism turned on its head. While States and locals
are responsible for dealing with the aftermath of a disaster associated
with a chemical plant about which it has historically possessed more
intimate knowledge than the Federal Government, the Federal Government
is now maintaining that it alone has the authority to set the rules
governing the security of these facilities.
Finally, the gravest shortcoming of the chemical security authority
provided to DHS under PL-109-295 is that it purposely excluded the
consideration of inherently safer technology (IST) as an element of the
risk-based standards that DHS is called upon to assess. The problem
with this is that it fails to acknowledge that there will always be
inherent limits to physical security measures for a facility that is
proximate to a major population center, especially in the face of a
terrorist attack involving a suicide bomber. Should there be an attack
on a chemical facility on U.S. soil involving truck bombs like those
that have been taking place with growing frequency in Iraq and such as
the February 24, 2006 attack on the Abqaig Oil Processing Facility in
Saudi Arabia, the likely result will be the release of deadly chemicals
endangering the lives of tens of thousands of people downwind from that
facility.
Consider the case of anhydrous hydrogen fluoride which is used in
the refinement of gasoline. During an industry-sponsored test conducted
in a Nevada desert in 1986, a small accident was simulated by releasing
one thousand gallons of the chemical into the atmosphere for two
minutes. The plume is heavier than air, so it hugs the ground. The test
found lethal concentrations of hydrofluoric acid aerosol were present
up to 5 miles away. At 7.5 miles there were still concentrations of the
vapor at levels immediately dangerous to life and health for people who
breath it in over a thirty-minute period.
There are few more painful ways to die then by exposure to
hydrofluoric acid. The acid begins by burning the eyes and eyelids of
its victims. Then they experience a dry, hacking cough. Breathing
becomes increasingly labored and painful as they gasp in more of the
chemical. Their lungs become inflamed and congested, depriving them of
oxygen and leading to seizures. Ultimately, many people fall into a
coma. Without immediate medical attention, everyone caught in the toxic
plume will die within 10 hours.
Refineries near major urban areas could use an alternative to
hydrofluoric acid that poses less of a danger to the surrounding
community. In fact two-thirds of the refineries in the United States do
just that. My colleague, Lawrence Wein, a professor of management
science at the Stanford University Business School, has determined that
for a conversion cost of $20 million to $30 million per refinery,
sulfuric acid could replace hydrofluoric acid in the alkylation process
used to manufacture high-octane gasoline. Sulfuric acid can pose
dangers as well, and the refinery would need to use larger quantities
of it than anhydrous hydrogen fluoride. However sulfuric acid does not
need to be stored under pressure, nor does it form a dense cloud when
it is released. As a consequence, a terrorist attack on a refinery
using sulfuric acid would create a nasty chemical spill that would have
to be cleaned up within the facility, but the neighboring population
would not be seriously endangered.
Quite simply, the consideration of IST must be a part of any
reasonable effort to address the security risk associated with the
chemical industry within the United States. I applaud Governor Jon
Corzine and the State of New Jersey for embracing this approach. I am
particularly gratified by Governor Corzine's announcement on Friday
March 16th, to enact new rules that would require 94 industrial
facilities including chemical plants, oil refineries, industrial food
processors and water treatment plants to find safer ways to handle the
lethal chemicals they use or use less dangerous chemicals altogether.
New Jersey's citizens face the gravest risk from this threat and to the
State's credit, it has chosen to lead the nation in developing a
pragmatic strategy for confronting this risk. It would be travesty if
the new and long-overdue Federal legislation, ostensively advanced to
improve the security of chemical facilities around the nation, had the
end result of actually eroding that security in a State where the
public safety stakes are enormous and where the requisite political
leadership to tackle the challenge has been most forthcoming.
While I was completing the preparation of my written testimony, CNN
released a news report of an attack by suicide bombers who detonated
three chlorine-filled trucks in Anbar province on Friday, March 16,
2007. Accordingly to U.S. military forces, the attacks killed two
police officers and sickened about 350 Iraqis and six coalition force
members. As someone who was monitoring the Al Qaeda threat in the 1990s
and their attacks on U.S. barracks in Saudi Arabia, U.S. embassies in
East Africa, and the USS Cole, one of my greatest frustrations prior to
9/11 was that Americans seemed to believe that what was happening
beyond our shores would never happen here. I had the privilege of
serving in support of the U.S. Commission of National Security (Hart-
Rudman Commission) that warned in their final report released in
January 2001 of the growing risk of a catastrophic terrorist attack on
U.S. soil. I have since had to live with the angst of seeing that
warning unheeded in advance of the attacks of 9/11. I do not want to
live with that angst again when it comes to the terrorist risk posed to
our chemical and petroleum facilities.
I strongly urge that Congress and the Bush Administration work
together to redraft the legislative language on chemical security
enacted into law last October to address the shortcomings I have
outlined here today.
Thank you and I look forward to responding to your questions.
STATEMENT OF RICK ENGLER, DIRECTOR, NEW JERSEY WORK
ENVIRONMENTAL COUNCIL
Mr. Engler. Thank you very much. The New Jersey Work
Environment Council is an alliance of labor, community, and
environmental organizations that advocates for safe, secure
jobs and a healthy, sustainable environment. Our 70-member
organization includes many unions, such as affiliates of the
United Steelworkers and Teamsters, which directly represent
workers employed by industries that use highly hazardous
chemicals, the State's largest environmental groups, and
community groups whose members live within the vulnerability
zones of industrial facilities.
Ensuring chemical safety and hometown security for New
Jersey's workers and communities has been a major priority for
WEC over the last 5 years. We have developed and advocated for
new policies and offered training and educational programs to
workers and the public. We have a formal partnership with the
United Steelworkers, our state's largest industrial union,
which represents thousands of workers across this state to help
provide training focusing on chemical safety and security.
Most of today's testimony has been focused on DHS. But
lurking behind this agency is the chemical industry, who
virtually directed the Bush-Chaney Administration to adopt
these rules. It is our understanding that chemical industry
representatives were invited to this hearing. Frankly, given
the gravity of this issue, it is a moral outrage that they
decided not to participate today to explain their position, to
explain whether they would take steps to challenge New Jersey
or other state action on this matter. And it's one of grave
concern to us. They can run, but they cannot hide. We
appreciate you holding this hearing, and we will follow up to
ensure that their position on this issue is made as well-known
as the DHS position has been made well-known by today's
hearing. We again thank the subcommittee for holding this
hearing.
Senator Lautenberg, you have been a leader on this issue
and a consistent champion for the public's right to know and
right to prevent toxic exposure. We share the concerns of many
unions, environmental organizations, Governor Corzine, and our
Congressional delegation, that the proposed Department of
Homeland Security rules are fundamentally flawed. DHS, EPA and
the Occupational Safety and Health Administration or OSHA
should address this matter through an integrated approach that
encourages State initiative and that does not give DHS power to
derail state action.
Our testimony has five points, and I'll summarize them: New
Jersey has taken precedent setting action to ensure the
inseparable goals of chemical safety and security. The proposed
DHS rules could conceivably harm, rather than protect, the
people of New Jersey and other States.
The chemical industry lobby--and I want to emphasize this--
or any one of its individual member companies--could use DHS
preemption rules to challenge New Jersey policies. So, for
example, if our State trade association says, well, we can work
this out, we can figure this out, we hope there's a compromise.
The fact is, they don't represent all of the chemical companies
in this state. And anyone of them, even their member companies,
could pose a challenge through the way the DHS rules are
constructed at present.
OSHA, who is not represented here today, a subject for
another day, have absolutely failed to enforce laws that could
address chemical incident prevention and responses that are
directly related to this challenge.
In summary of New Jersey efforts. We talked a little bit
about the approach on Inherently Safer Technology. And we
applaud Governor Corzine for his action in this area. I would
like to emphasize worker participation and union involvement as
being extremely important, perhaps equally important, as
inherently safer technology. Who knows better than front-line
workers, not me in this suit, but people who work day in and
day out on the front-lines in our facilities across our states,
what the hazards and vulnerabilities are. There's no one
better.
And I'm pleased that New Jersey has taken action to
authorize workers and local union representatives to accompany
DEP inspectors to point out potential workplace environmental
security dangers under the Toxic Catastrophe Prevention Act
(TCPA). This right for workers and their unions to help protect
public safety of the environment and security applies at the 94
facilities covered by TCPA.
And just last Friday DEP issued a new Administrative Order
that worker and Union representatives could participate in
agency inspections at 330 facilities covered by the Spill Act
regulations to help point out risks related to hazardous
chemicals.
The third accomplishment of the State of New Jersey, is our
training requirements. Our training requirements are that
chemical plants train worker-trainers and their entire
workforce about chemical safety and security. The required
curriculum for this program was developed by the New Jersey
State AFL-CIO and the United Steelworkers. The New Jersey
Office of Homeland Security required training through a July
2006 mandate for 154 chemical plants employing more than 38,000
workers. This is a serious effort. It's not perfect. It needs
additional fine-tuning, as might be expected to address a
problem of this scale. But it is very important that the State
be able to maintain these kinds of policies. WEC and our
organization is pleased to help make all of these policies
happen.
There is nothing in the proposed DHS rules that address the
need for Inherently Safer Technology, nor is there any
requirement for worker and union participation to help prevent
hazards. In fact, the only reference to workers by the DHS
proposal focuses on criminal background checks of long-term
employees.
Our belief and view is that such background checks won't
identify terrorists. After all, none of the 9/11 high-jackers
had criminal records. And criminal background checks of long-
term, dedicated employees will be used to retaliate against
them and their union leaders, who speak out for safety,
environmental, and security safeguards.
I did a computer kind of search through the DHS rule using
words like ``worker, employee, union,'' and what jumped out is
that there was only a request to unions to comment on the
employee background checks, but nothing about a positive role
for employees who, again, are on the frontlines.
We believe that corporate executives and their lobbyists,
along with their DHS allies, must not be allowed to place even
higher profits ahead of worker and public safety and private
security. We support the efforts of the subcommittee to block
preemption.
We would also like to comment briefly on OSHA's role on
this, which hasn't been------
Senator Lautenberg. Be brief.
Mr. Engler. We have an existing OSHA standard, the Process
Safety Management Standard. It hasn't been adequately enforced.
Earlier, there was testimony about Kuehne Chemical plant in
South Kearny. That facility, which has the greatest potential
off-site consequence of any facility in New Jersey, hasn't been
inspected by OSHA since September 12, 1997.
Under the Process Safety Management Standards, we've urged
OSHA to develop a plan to enforce that standard in New Jersey.
They said they'll consider it and we're waiting to hear back.
Just to finally emphasize the question of worker
participation. And since safety, including workers' safety and
security are inseparable, we think that there are continuing
problems, despite the spin of the industry.
I'll give you a couple of quick examples of the exclusion
of workers from safety and security policy. At a major chemical
plant in South Jersey, in fact, the largest chemical plant in
South Jersey, the railcars that store highly-hazardous
substances were stored on the periphery of the plant.
Suddenly, those railcars are moved into the center of the
plant. Not commenting on what's safer, what's not safer, but
the workers there and the local union felt this was an outrage.
They have a Safety Committee. They try to participate. The
United Steelworkers tries to protect not only their members,
but the community. And not to have any process of consultation
about moving railcars into the very center of this huge
chemical plant is something that was severely demoralizing to
the workforce and not something that encouraged them to help
play an active role in protecting themselves and their
neighbors.
Senator Lautenberg. Mr. Engler, in fairness to the others
and the press.
Mr. Engler. I'll conclude by saying, thank you.
Senator Lautenberg. And we invite you to submit any
further testimony. We have copies of your written testimony,
and each of you offered a particular insight into this problem.
And I'm reminded, Mayor Bollwage, that the Chemical Control
facility, that we talked about, was kind of an inspiration
supported by both to take a law that New Jersey had, to release
inventory, and make it Federal Law, because it was more rigid
than anything that the Federal Government had. And it passed.
And it reduced substantially the toxic emissions that came out
of companies in the area. And it was largely a voluntary
program. The only penalty was exposure for the public to see
which companies were putting more poisons in the air or
unacceptable levels of toxic emissions. So it was very helpful.
And so I remember vividly the explosion and the fire at
Chemical Control, as you described it. Many of the firefighters
later suffered health effects. And we see that also in the
aftermath of the 9/11 attack, that people were made ill, and it
wasn't recognized until a substantially later period. And, by
the way, we see injuries today coming from Iraq, that people
are showing signs of deteriorating functionality.
And so we have to look at this in its broadest context. And
why on earth they are insisting, as you heard, that what is
going to help in some way to have this national standard,
that's weaker than ours and weaker than many other states
across the country, why it's going to be better for us. And so
we this hearing today I think will have accomplished a lot.
Mayor Bollwage, we have to protect those who are called on
at first to do their job, and we have to make sure that we at
least give those first responders enough of a cautionary
structure that says, look, you've got to be aware of what it is
that you may face.
One of the things, I think, Mayor Bollwage, there was an
incident, I don't know whether it was Chemical Control, but the
uniforms that the firefighters wore actually deteriorated with
the exposure to the chemical release that came about. And so
shouldn't we be protecting our first responders as national
security priority at all levels of Government.
Mr. Bollwage. Mr. Chairman, absolutely. And I was
horrified to hear Dr. Flynn speak of these vaporized things.
And Chemical Control, while it was not that severe, the 400
firefighters that fought it, 19, even to this day, 27 years
later, we hear of firefighters who were there contracting
certain diseases in direct relation or correlation to their
exposure to chemicals at that Chemical Control fire in 1980.
And some died in the late 1980S, as well, due to the chemical
plume that basically twisted over Elizabeth and Staten Island.
At that point, Mr. Chairman, the plume and the wind
direction was important to recognize, because it was blown in
the direction of Staten Island over the Arctic Hull, where
there was less inhabitables. But if that wind was blowing the
other way, over the City of Elizabeth, with 125,000 people in
the surrounding community, it would have affected a lot more
people than it eventually did.
And we need the ability to regulate these facilities and do
our own necessary security, as opposed to relying on a ``one
fits all'' type of purpose for the entire nation.
Senator Lautenberg. I agree.
Dr. Flynn, your very articulate presentation of what
constitutes weapons of mass destruction, is that in front of
us. And we know that information was ignored before 9/11 that
should have put us on a much more defensive position than we
were, and the consequences are impossible to calculate. And so
here we are now we're facing this.
One of the things that you mentioned, and it is a little
oblique from here, is that I'm very active in trying to get
Amtrack as an item more available, more efficient, because if
there is an evacuation called for and we have to have all means
available--I mean, heaven forbid that we should be trying to
evacuate a facility fire and explosion and having to go
exclusively to the main routes, to the Turnpikes, et cetera, to
the airports. There is no way we can handle it. And so we have
to be more aggressive in our preparation to deal with these
things. And giving DHS the right to preempt I think is really a
step that's way back.
For instance, do the chemical security rules proposed by
the Administration, do they fill all the gaps that exist, or
should we call on the states to do their best to establish
their own levels of protection?
Mr. Flynn. I think, clearly, it's a case, just as you
outlined at the outset, Mr. Chairman, of taking a Best Practice
at the State level and moving it to the Federal level. That's
what we have potential for with what's happening here in New
Jersey. Not surprising, the State that has the most at risk,
the greatest stakes, but has a level of cooperation between
local officials in the industry and the labor. This is a
capability that doesn't exist in the proper Homeland Security.
It may well be they're not adequately resourced. We've been
spending 250 million every day since the spring of 2003 on the
war in Iraq. So we've been spending, on this issue, this year,
we'll be spending 150 minutes of the war in Iraq.
Now, it just doesn't make any sense, given the scale of
this threat and vulnerability of our own citizens. We should be
making this environment--I'll just reinforce your intra with
Amtrack. President Eisenhower was probably the last president
who looked at our infrastructure as national security. But, of
course, our highway system was built around the Interstate
Highway and defensibility to basically immobile, but also to
evaluate that the cold war got hot. Somehow, we're fighting
this war on terrorism entirely disconnected from the reality
that our infrastructure is essential to protecting our
citizens. And, ultimately, we, the people, must be involved to
a far greater extent.
It seems unbelievable to me, having spent 5 1/2 years of
frustration trying to get Homeland Security issues dealt with
in a real serious way, and getting pushed back, that really
this is a state and local responsibility, private sector
responsibility, because the job of the Federal Government is
national defense under, beyond our borders.
And then, finally, the most critical infrastructure in
terms of vulnerability that we get the insertion, where it's a
federal government that knows best in the states and locals
should be cut out of the loop.
Senator Lautenberg. You know what, Dr. Flynn, I think
they're hearing voices, and they're not the voices that we want
to most listen to. The voices are there. And once again, we
know that the industry provides us with all kinds of wonderful
resources and so forth, but they shouldn't be allowed to
prescribe law that protects their interests ahead of the
peoples' interests. And we find things like that going on
throughout government now, whether it's the oil industry or the
defense industry or what have you.
So we'll take all of your comments to heart and see if we
can do something about ensuring the fact that we in New Jersey
know best what's happening for us and what we have to do to
protect our citizens. And we're going to work very hard at it.
And we invite all three of you to continue to monitor the
situation and let my office know if you see anything we ought
to be doing.
Thank you all very much and thanks everybody for
participating in this hearing. I have a statement that I'm
going to put in the record from the Steelworkers. And I want to
note, Mr. Engler, there is a bunch of comments submitted by the
United Steelworks concerning the Department of Homeland
Security's Proposed Rule establishing Chemical Facility Anti-
Terrorism Standards.
And, Mr. Engler, one of the things that has to happen in
all of these calculations is to make sure that those people who
are working there, who are the first to be exposed, who are
first to suffer the injury, are protected. And if we can
protect them, then we have a surefire better chance of
protecting our citizens who are a further distance away.
Thank you all for your good work. I appreciate it. This
hearing is concluded.
______
Statement of Rick Engler, Director, New Jersey Work Environment Council
Good morning and thank you for your invitation to the New Jersey
Work Environment Council to present testimony today. My name is Rick
Engler. I am Director of the New Jersey Work Environment Council or
``WEC.'' WEC is an alliance of labor, community, and environmental
organizations that advocates for safe, secure jobs and a healthy,
sustainable environment. Our 70 member organization includes many
unions, such as affiliates of the United Steelworkers and Teamsters,
which directly represent workers employed by industries that use highly
hazardous chemicals, the State's largest environmental organizations,
and community groups whose members live within the vulnerability zones
of industrial facilities.
Ensuring chemical safety and hometown security for New Jersey's
workers and the public is a WEC priority. For the last five years, WEC
has worked to achieve this goal through developing and advocating for
new State policies and by offering educational programs to workers and
the public. We have a formal partnership with the United Steelworkers,
our State's largest industrial union, which represents thousands of
chemical and oil workers, to provide training about chemical safety and
security through their Tony Mazzocchi Center for Health, Safety, and
Environmental Education. Our President, John Pajak, a rank and file
worker at the Conoco-Phillips oil refinery in Linden and a member of
Teamsters Local 877, was proud to stand with you and Senator Menendez
last year when you, despite vociferous industry opposition, announced
introduction of the Chemical Safety and Security Act of 2006.
WEC thanks you for holding this important hearing focusing on the
value of State and local policies to ensure chemical safety and
security. Senator, you have been a leader on this issue and a
consistent champion for the public's right to know about and right to
prevent exposure to toxic chemicals, dating back to your sponsorship of
the Emergency Planning and Community Right to Know Act in 1986.
We share the concerns of many unions, environmental organizations,
Governor Corzine and our Congressional representatives, that the
proposed Department of Homeland Security (DHS) rules are severely
flawed.
The major points of my testimony are:
1) The proposed rules on preemption far exceed Congressional
intent. If DHS adopts them in their current form and they are upheld by
the Courts, these rules will harm, not protect, the people of New
Jersey and other States that act to address the new threats of a
terrorist attack.
2) While DHS proposes to derail State protections, other Federal
agencies fail to enforce existing laws that promote chemical safety and
security.
3) There are three underlying principles for policy that can
effectively address chemical safety and security--safe operation,
maintenance and design of facilities, meaningful worker and union
participation, and cooperation between Government agencies that address
those issues.
4) There are at least thirteen key elements for a minimally
effective State or national policy to ensure chemical safety and
hometown security. These points are summarized in this testimony.
new jersey is the national leader for chemical safety and security
policy
New Jersey has taken some important actions to ensure both safety
and security. Historically, these steps have included:
Enactment of the 1984 Worker and Community Right to Know Act,
which along with subsequent Federal laws, allows workers, plant
neighbors, and emergency responders to learn about chemical hazards;
and
Enactment of the 1984 Toxic Catastrophe Prevention Act (TCPA),
after Union Carbide's Bhopal, India disaster, which requires facilities
that use extraordinarily hazardous chemicals to implement risk
management plans. Because of this law, more than 300 water and sewage
treatment plants no longer use large quantities of chlorine. The law
served as a model for amendments to the Federal Clean Air Act (CAA).
Under the Administrations of Governors Codey and Corzine, New
Jersey has adopted three significant and precedent-setting new
policies:
1) In November 2005, New Jersey became the first State in the
nation to require that approximately 42 chemical sector facilities
evaluate whether they can adopt ``built-in'' safety measures, a
strategy to promote use of ``inherently safer technology'' by issuing
Best Practice Standards for the chemical industry. Just last Friday, at
the direction of Governor Corzine, the Department of Environmental
Protection (DEP) issued a rule proposal to expand this requirement to
cover 94 facilities, including oil refineries, paper mills, and water
and sewage treatment operations. Other provisions in the Best Practice
Standards require management of 154 facilities using highly hazardous
substances to conduct vulnerability assessments, forward the
Occupational Safety and Health Administration's (OSHA) Process Safety
Management (PSM) Standard violations to DEP, and consider workers' and
unions' input.\1\
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\1\Best Practice Standards At TCPA/DPCC Chemical Sector Facilities,
NJ DEP and NJ Domestic Security Preparedness Task Force, November 21,
2005
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2) In October 2005, New Jersey became the first State in the nation
to allow and encourage workers and their union representatives to point
out hazards while accompanying DEP staff on inspections at 94 of New
Jersey's most hazardous facilities, those covered by the State's Toxic
Catastrophe Prevention Act. These facilities include chemical plants,
oil refineries, paper mills, food processing plants and water treatment
and sewage operations.\2\ Also, on March 14, 2007, the DEP issued a new
Administrative Order ensuring that workers and union representatives
can participate in inspections conducted under the Discharge,
Prevention, Containment and Control (DPCC) program.
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\2\NJ DEP Administrative Order No. 2005-05, October 1, 2005.
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3) In July 2006, New Jersey became the first State in the nation to
issue a requirement that 154 New Jersey chemical plants employing more
than 38,000 workers train worker-trainers and their entire workforce
about chemical safety and security. The required curriculum, developed
by the United Steelworkers and the New Jersey AFL-CIO, covers mapping
risks to workers and surrounding communities and underlying systems of
safety.\3\
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\3\Security Awareness and Preparedness Program for the NJ Chemical
and Petroleum Sectors. A WEC fact sheet on this requirement can be
found at www.njwec.org.
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These three policies are significant accomplishments. WEC and our
allies are pleased to have helped make them all happen. The chemical
lobby claims that they will not challenge these policies ``as currently
implemented''\4\ [our emphasis].
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\4\``ACC does not believe that the New Jersey, New York, Maryland
or Baltimore programs--as currently implemented--frustrate that
flexibility.'' Source: American Chemistry Council (ACC) Comments on
DHS--2006--0073, February 7, 2007, pages 4 and 24.
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However, Governor Corzine has pledged further initiatives for
chemical safety and security. The chemical lobby--or just one of its
individual member companies--could use DHS preemption rules to
challenge New Jersey's existing and/or new initiatives.
To put it simply, if the chemical industry wins by stopping New
Jersey from taking strong action to meet the particular needs of our
State, workers and the public lose. Corporate executives and their
lobbyists, along with their friends at DHS, must not be allowed to put
even higher profits ahead of worker and public safety and security. New
Jersey and other States must be free to require industries that use
hazardous chemicals to operate safely and securely.
In addition to the industry developed preemption language, the
proposed DHS rules:
Do not encourage facilities to adopt inherently safer and more
secure approaches that minimize catastrophic risks and reduce the
attractiveness of facilities as terrorist targets.
Fail to engage workers and their unions when requiring plant
management to assess risks or as part of ongoing consideration of
safety and security concerns.
Attempt to cover-up knowledge of toxic dangers through
potentially gutting the worker and public ``right to know provisions''
of existing Federal and State laws, including the Occupational Safety
and Health Act and the Emergency Planning and Community Right to Know
Act.
Undermine Government accountability through excessive secrecy.
People will not be able to find out if DHS is requiring a facility to
improve security or not.
Include provisions for criminal background checks of long-term
employees that won't identify terrorists but will likely be used to
retaliate against workers and their union leaders who speak out for
safety, environmental, and security safeguards.
WEC urges Congress to promptly pass comprehensive chemical safety
and security legislation along the lines of your Chemical Safety and
Security Act of 2006.
Such legislation should supersede the proposed DHS regulations and
charge the Environmental Protection Agency (EPA) and OSHA, as well as
DHS, with greater authority to prevent and respond to chemical
incidents, whether they are caused by a terrorist attack or a
``routine'' accident.
An underlying principle of such legislation--in stark contrast to
the current DHS proposal--would be that worker and public safety are
inseparable from security. The industry's focus on perimeter hardening,
in other words, more gates, barriers, lights, and guards, is not in
itself a bad thing. No one wants unauthorized individuals, whether they
are terrorists or vandals, entering potentially hazardous operations.
However, the approach that needs support from industry, instead of
their misleading and misplaced opposition, is one that would emphasize
making changes to the underlying systems of safety and ensuring that
inherently safer approaches are adopted.
while dhs proposes to derail state protections, other federal agencies
don't enforce existing laws
Ironically, the Federal Government has had important regulatory
tools to promote safety and security since well before September 11,
2001--but has chosen not to utilize them.
OSHA's Process Safety Management Standard is the agency's most
important rule for preventing catastrophic events at facilities with
highly hazardous chemicals. Issued in 1992, it requires covered
employers to conduct a ``Process Hazards Analysis'' to review what
could go wrong and what safeguards must be taken to prevent releases of
highly hazardous chemicals. The standard mandates written operating
procedures, employee training and participation, pre-startup safety
reviews, evaluation of mechanical integrity of critical equipment,
contractor requirements, and written procedures for managing change. It
also requires a permit system for ``hot'' work, incident investigation,
emergency action plans, and employer internal audits at least every 3
years.\5\
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\5\Related OSHA Standards, such as Hazard Communication, also help
to prevent chemical accidents and exposures.
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However, a WEC review of OSHA's enforcement record of private
sector facilities in New Jersey has found that the agency has conducted
few PSM inspections of PSM covered facilities since 9/11.\6\ Of the 21
facilities in New Jersey that could each potentially harm up to 15,000
people or more--all of which are covered by the PSM standard:
---------------------------------------------------------------------------
\6\Correspondence to Rick Engler, WEC Director, from Patricia K.
Clark, Regional Administrator, OSHA, February 8, 2007 in response to a
WEC Freedom of Information Act Request.
---------------------------------------------------------------------------
Only eight have received an OSHA inspection since September 11,
2001.
Six have never even had one PSM OSHA inspection. These include
facilities which could potentially endanger between 20,000 and 500,000
people.
Seven were inspected before September 11, 2001, but have not been
inspected since. These include facilities which could potentially
endanger between 34,104 and 12 million people. For a notable example,
OSHA has not inspected the Kuehne Chemical plant in South Kearny since
September 12, 1997.
Please see the attached table listing facilities and OSHA
inspection data.\7\
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\7\The data in this table is from US EPA Risk Management Plans and
the OSHA compliance database online at www.osha.gov. Last OSHA
inspection dates were also confirmed by OSHA Area Office Directors.
---------------------------------------------------------------------------
When OSHA has conducted PSM inspections, the agency has found
violations of this standard. For example:
On January 21, 2005, a violent explosion from the ignition of
acetylene at the Acetylene Service Company in Perth Amboy, New Jersey
killed three workers. OSHA subsequently found many serious and willful
violations, including violations of the PSM standard, and penalized the
company $ 176,790.
On March 29 and April 19, 2005, a chemical explosion and leak,
respectively, at the Siegfried, USA pharmaceutical plant in Pennsville,
New Jersey injured a number of workers. OSHA subsequently found serious
PSM and other violations and penalized the company $ 4,500.
Since 9/11, OSHA inspections have also resulted in PSM citations
and fines for Ashland Chemical in Totowa ($3,465), DuPont in Deepwater
($4,250), and ConocoPhillips in Linden ($23,060).
WEC has urged OSHA to promptly develop a comprehensive plan to
enforce the PSM standard in New Jersey. They are currently considering
our request. We ask that Congress direct OSHA to strengthen the PSM
standard and to systematically inspect high risk facilities.
The U.S. EPA, like OSHA, has also chosen not to use their full
authority to prevent chemical accidents. For example, Section 112(r) of
the CAA, enacted in 1990, says that workers and union representatives
have a right to participate in EPA inspections, which would include the
right to accompany EPA inspectors during risk management plan (RMP)
compliance inspections and accident investigations.\8\ Governor Corzine
has said, ``Who knows more about a plant than the workers who work
there?'' Workers are on the front lines. Because of their experience
and skills, they are intimately familiar with their work environment.
Workers can point out hazards, risks, and vulnerabilities that may not
be readily apparent to even a skilled inspector who is infrequently on-
site.
---------------------------------------------------------------------------
\8\Title 42, Chapter 85, Subchapter 1, Part A, Section 7412. The
relevant language (in the section on the duties of the Chemical Safety
Board) reads ``Whenever the Administrator [this refers to the EPA
Administrator and State agencies which have assumed delegation] or the
Board conducts an inspection of a facility pursuant to this subsection,
employees and their representatives shall have the same rights to
participate in such inspections as provided in the Occupational Safety
and Health Act [29 U.S.C. 651 et seq.].
---------------------------------------------------------------------------
Unfortunately, WEC does not believe that EPA has ever encouraged
workers or their union representatives to participate during their
agency's inspections. At the urging of WEC, the DEP, which has
delegated EPA enforcement authority under CAA 112(r), adopted a TCPA
Administrative Order in October 2005, allowing and encouraging workers
and their union representatives to participate in DEP RMP
inspections.\9\ This program has proven successful, with a high
percentage of inspections involving local union representatives. We ask
Congress to ask EPA to issue a directive to its field staff and the
other States with delegated enforcement instructing them to immediately
engage workers and local union leaders during RMP inspections.
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\9\DEP Administrative Order 2005-05.
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These two examples again demonstrate why safety and security are
inseparable and why DHS, EPA, and OSHA should address this vital matter
through an integrated approach, not rules that give DHS inappropriate
power and responsibility.
principles for chemical safety and security policy
In WEC's view, there are three underlying principles for policy
that can effectively address chemical safety and security.
First, facilities must be designed, operated, and maintained
safely. No matter how many guards, gates, and surveillance cameras are
in place, a determined terrorist who flies an airplane into a chemical
processing unit or storage tank can kill workers and thousands of
neighbors. The most practical way to address this threat is to prevent
hazards in the first place--and to minimize the consequences of an
incident if one does occur. For example, it is inexcusable that the
Valero petroleum refinery in Gloucester County still uses a particular
processing method involving hydrofluoric acid to make gasoline when
their executives know that there are safer alternatives to this
process. Oil companies are not poor. They should have to adopt safer
methods, or at the very least, seriously consider their adoption. If
they can't take real steps for safety, they should have to justify why
they can't--and smaller profits is no excuse.
Second, there must be meaningful worker and union participation.
For example, plants must have labor-management site safety and security
committees. These committees would meet regularly to discuss potential
safety and security risks and ways to prevent them. These committees
would be able to regularly inspect the workplace to identify potential
vulnerabilities that could be exploited by terrorists or that could
lead to a toxic exposure, explosion, spill, or fire. Requiring these
committees is just common sense. Many joint labor/management safety
committees already exist and help prevent hazards to both workers and
the community.
Third, as noted earlier, since safety and security are inseparable,
Government agencies responsible for worker safety, environmental
protection, and security must take an integrated and coordinated
approach.
thirteen key elements for effective chemical safety and security policy
WEC believes there are at least thirteen key elements for a
minimally effective State or national policy to ensure chemical safety
and hometown security. We believe that these policy components should
be incorporated in Federal legislation, with the right of States to
adopt more effective protections to address local needs, such as
population density or the presence of particular industries.
These elements include:
First, regulating the appropriate scope of facilities. All
facilities that are required to submit EPA Risk Management Plans
because they use or process extremely hazardous chemicals should have
comprehensive protections and States should be able to regulate
additional facilities based on particular circumstances.
Second, facilities must conduct a thorough vulnerability
assessment to consider risks of both unintentional accidents and
deliberate attacks on workers, surrounding communities, and the
environment. Such assessments should include the potential toxic impact
of multiple and cascading process failures.
Third, facilities must assess perimeter protections such as
lighting, barriers, and perimeter security.
Fourth, facilities must, at a minimum, analyze options for their
potential to adopt inherently safer approaches and overall systems of
safety. Such approaches include input chemical substitution, process
redesign, product reformulation, reducing hazardous pressures and/or
temperatures, and improving chemical use efficiency and inventory
control. Such analysis must include a review of available approaches
within the facility, including where they operate in other countries,
and within the industry overall. If a facility claims that they cannot
financially afford to adopt measures for inherent safety, they should
have to document the financial and other costs to workers, the public,
and the environment of failing to take such approaches.
Fifth, facility management must specify in writing the
appropriate number of staff for safe operation, effective preventive
maintenance, perimeter security, and emergency response. Many
facilities, particularly in the chemical industry, have ``downsized''
and are running with fewer experienced staff even as their production
output has stayed the same or increased. Needed maintenance, necessary
for safety, is too often deferred. Management must specify safe
staffing levels during all hours of operation.
Sixth, facilities must establish joint employee/employer site
Safety, Security and
Environment Committees with real authority to help prevent,
monitor, and respond to toxic releases. Safety Committees established
by labor/management collective bargaining agreements already cover most
manufacturing facilities. The function of such committees should be
expanded to include security concerns. These committees should have the
right to make recommendations to management, survey the workplace for
risks, assist in accident and release investigations, and help develop
safety and security assessments and plans. According to National Labor
Relations Board decisions, in unionized facilities, the union must
select its own representatives to committees dealing with safety and
health, which would obviously include the prevention of catastrophic
accidents.
Seventh, all employees potentially exposed to hazardous chemicals
should receive six hours of annual chemical safety and security
training, in addition to training already required by OSHA standards.
Such training should focus on understanding of inherently safer
approaches and worker rights and responsibilities.
Eighth, workers and union representatives must be able to
participate in all aspects of Government enforcement of chemical safety
and security rules. This includes the right to participate in all
stages of DEP and DHS workplace inspections, including the
accompaniment of Government inspectors to help point out potential
hazards and vulnerabilities.
Ninth, there must be strong whistle-blower protection that
encourages employees in union and non-union facilities to confidently
point out potential dangers without fear of reprisal. (The existing
anti-discrimination provisions of OSHA are weak. New Jersey has
relatively strong whistle-blower protections in its Conscientious
Employees Protection Act).
Tenth, there must be meaningful opportunities for community
involvement. Facility management, upon request by an environmental
agency, a Local Emergency Planning Committee, or 25 or more residents
and/or employees, shall convene a community meeting to discuss its risk
management program, including off-site consequence analysis, inherent
safety options analysis, and emergency response plan. There must be
adequate notice to the community about such a meeting and all parties,
including employees and their union, shall be invited to participate in
this dialogue.
Eleventh, facilities must have stronger emergency response plans.
Plans should include specific explanations of what actions neighbors
should take in the event of a catastrophic release and should describe
steps management has taken to inform neighbors.\10\ Low income and
people of color communities, where these facilities are often located,
face language and transportation barriers. Plans must address these
factors.
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\10\Most communities in New Jersey appear unprepared for a chemical
disaster. A WEC neighborhood survey in 2004 in Linden revealed that few
residents had any idea of steps to take if there was a toxic release
from a nearby industrial facility. A WEC survey of emergency responders
and health professionals in 2005 revealed that 63 % of them did not
even know if there was a TCPA facility in their municipality.
---------------------------------------------------------------------------
Twelfth, there must be sufficient enforcement authority,
financial penalties, inspection staffing and other resources for
Government agencies to ensure compliance.
Finally, we believe that there should be no rollback in either
worker or public ``right to know'' protections. Weakening right to know
laws would do little or nothing to stop terrorists but would endanger
workers, emergency responders, and community members.
Thank you again for the opportunity to testify and we look forward
to supporting your efforts to ensure chemical safety and security in
the days ahead.
[Whereupon, at 12:30 p.m., the committee was adjourned.]
[Additional statements submitted for the record follow:]
Statement of Senator James M. Inhofe, U.S. Senator from
the State of Oklahoma
Senator Lautenberg, thank you for holding this hearing today.
During my Chairmanship of this Committee, we made a lot of progress on
chemical security. I have made national security my top priority and
consistently supported reasonable chemical security legislation that
provides DHS with the authority it needs to protect chemical facilities
from terrorists without extraneous environmental mandates. During my
Chairmanship of the Senate Environment and Public Works Committee, the
EPW Committee has twice passed chemical security legislation in
Committee and I was pleased to be part of group that forged a
compromise that was finally enacted into law last year. Chemical
industries are crucial components of the national economy and the
infrastructure of the United States. Congress has long been concerned
about releases of hazardous chemicals from industrial facilities and
has enacted several statutes to help prevent such releases and to
improve preparedness and response capabilities. Programs to protect the
health and safety of workers, the public, and the environment by
reducing the potential for accidental releases of potentially dangerous
chemicals, including the consequences of worst-case releases of those
chemicals, are in place as required by numerous Federal and State laws.
However the events of September 11, 2001, demonstrated the need to
ensure that appropriate security measures are taken to address the
threat of acts of terrorism against facilities that manufacture, use,
or process potentially dangerous chemicals.
In the wake of September 11, 2001, there was a realization that
chemical facilities could be targets for terrorism. Since then, the
Bush administration has made a determined effort to protect our
nation's critical infrastructure against terrorists who aim to harm us.
Congress, too, has acted by enacting into law the Marine Transportation
Security Act, the Bioterrorism Act, and a comprehensive nuclear
security package that originated from the Environment and Public Works
Committee. Congress has also created the Department of Homeland
Security vesting it with power and authority to protect the nation's
infrastructure. DHS has worked diligently and quickly to address the
nation's security issues. In the chemical sector, DHS has deployed
teams of counter terrorism specialists to each identified high-risk
chemical facility to work with management, local first responders and
law enforcement, States and other Federal agencies to assess and
address the security needs. DHS has also created several tools to help
all chemical facilities regardless of whether they represent high-risk
locations. These efforts all mean that chemical facilities are more
protected and that we are all indeed safer.
Late last year, the Congress passed the Department of Homeland
Security Appropriations Act of 2007 (Public Law 109-295). Section 550
of the conference report contained provisions requiring the Secretary
of Homeland Security to issue interim final regulations by April 6,
2007, establishing risk-based performance standards for security of
chemical facilities and requiring vulnerability assessments and the
development and implementation of site security plans for chemical
facilities that present high levels of security risk. I was pleased to
support these chemical security provisions included in the DHS
appropriations conference bill because I have always supported
reasonable chemical security legislation that provides DHS with the
authority it needs to protect chemical facilities from terrorists
without including extraneous environmental provisions or provisions
designed to place mandates on how companies manufacture their products
requiring facilities to switch the chemicals they use or change their
operating practices. During my tenure as Chairman of the Environment
and Public Works Committee, we tried twice to move legislation to
require certain chemical plants to upgrade their security against
terrorist acts. Each time, we were sidetracked by the insistence of
some that any such legislation must include allowing DHS to mandate
inherently safer technologies. The environmental based concept of
inherently safer technologies dates back more than a decade when the
extremist environmental community were seeking bans on chlorine, the
chemical that is used to purify our nation's water. It was only after
the attacks of September 11, that these environmental organizations
determined to repackage IST as a panacea to all of our security
problems when in reality it is more about increased chemical
regulation.
I was pleased to support the chemical facility security provision
in the conference report because it did not include these extraneous
environmental mandates but instead properly focused efforts on
security. The language explicitly clarified that the new regulatory
authorities given to the Department of Homeland Security do not include
any authorities to regulate the manufacture, distribution, use, sale,
treatment or disposal of chemicals. These authorities have been
properly provided to the US Environmental Protection Agency and other
agencies and departments under numerous environmental and workplace
safety laws, such as the Clean Air Act, the Clean Water Act, the Toxic
Substances Control Act, the Occupational Safety and Health Act and a
host of others.
During consideration of the Department of Homeland Security
Appropriations Act of 2007, legislative debate centered not only on the
necessary components of risk-based performance standards and
vulnerability assessments but also focused on the preemptive effect to
State law of the chemical security regulations required by Section 550
of the conference report. On September 28, 2006, a debate among a
bipartisan group of Senators including Senators Voinovich, Pryor,
Warner, and Domenici all agreed the intent of the language in the
conference report was to impliedly preempt any State legislation on
chemical plant security. The Senators recognized the importance of a
single and integrated set of comprehensive standards as required by
Section 550 being vital to the chemical industry and vital to national
security.
One final note about the importance of Section 550 is its
recognition that municipally owned and operated water and wastewater
facilities are different than privately and investor owned chemical
facilities. The Nation's drinking water and wastewater systems are arms
of local Government, not for-profit industries. We in Congress
recognized the fundamental difference between the for-profit private
sector and local Government entities when we passed the Unfunded
Mandates Act. To have included water utilities in this language would
have imposed an enormous unfunded mandate on our local partners in
violation of that Act.
Many here in Washington assume that local Governments need to be
forced to protect their citizens. As a former mayor, I can tell you
that is simply not true. Local water utilities have been making
investments in security consistently since 9/11 and continue to do so.
I have offered a bill on wastewater facility security that provides
tools, incentives and rewards, not mandates, for local Governments to
continue to upgrade security. My legislation passed the Environment and
Public Works last Congress with a bipartisan vote and again this
Congress by voice vote. However, each time the then-minority objected
even to its consideration because they do not trust our colleagues at
the local level to care as much about their constituents as we do ours.
Again, this is an important topic and I welcome the opportunity to
hear from so many residents of the State of New Jersey on the
importance of chemical security legislation to them.
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