**TESTIMONY OF GERRY SETLEY\
VICE PRESIDENT,**

**INTERNATIONAL CHEMICAL WORKERS UNION COUNCIL**

**UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION\
**

**Hearing on H.R. \_\_\_\_ , the "Chemical Facility Anti-Terrorism Act
of 2008" before the**\
**HOUSE COMMITTEE ON HOMELAND SECURITY**

December 12, 2007

**TESTIMONY OF GERRY SETLEY\
VICE PRESIDENT,**

**INTERNATIONAL CHEMICAL WORKERS UNION COUNCIL**

**UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION\
**

**Before a Hearing of the**\
**HOUSE COMMITTEE ON HOMELAND SECURITY**

December 12, 2007

Thank you Chairman Thompson, Ranking Member King, and Members of the
Committee for holding this important hearing and for the opportunity to
testify. I am here today representing members of the International
Chemical Workers Union Council of the United Food and Commercial Workers
Union. The ICWUC, which was founded in 1944, represents more than 20,000
chemical workers in 32 states. In 1996, we merged with the UFCW and this
mutually beneficial partnership continues to serve our members well.

We strongly support improving chemical plant security policy that makes
solid and substantial improvements in the security of the nation's
chemical plants. UFCW chemical workers work in many different
manufacturing industries including petroleum and coal products,
fertilizers, pharmaceuticals, pesticides and other agricultural
chemicals in smelters and refineries as well as natural gas distribution
and power plants. Every day, in these facilities, our members work with
extremely hazardous substances and are crucially interested in their
safe production both for their own health as well as for the neighboring
communities. Despite our small size, we have been active in a variety of
health and safety issues for over 30 years.

We have supported effective standards and laws to protect both our
members and the public. We believe strongly that we bring to the table
the meaningful involvement of the people who have significant experience
and are the most endangered in a plant -- the workers. Workers have the
institutional expertise and resources on occupational health and safety
and need to be formally involved in developing vulnerability assessments
and security plans.

It is therefore an honor for me to appear before you to address this
national security concern on behalf of our members who work in chemical
plants. In 1974, I was hired as a Research and Development Technician at
Kawecki-Berylco Industries in Pennsylvania, which is now Cabot
Corporation. I worked as an analytical technician for Cabot Corporation
for 31 years and served the local union in various elected positions. In
2005, I was hired by the union as a General Organizer/ Representative
and was elected Vice President in October 2007. At Cabot Corporation, we
handled large quantities of many of the substances that this Committee
has focused on in your discussions on chemical security. I have also
toured many facilities that face the same potential dangers. I have seen
situations where these hazards are well addressed and many where they
are not.

I think we can all agree that chemical plants in the United States have
a great potential to be terrorists' targets. This potentially threatens
the safety of workers in the plants as well as people living in the
surrounding communities. Security experts and numerous federal agencies,
including the Department of Homeland Security (DHS) and the U.S. Army
Surgeon General, have repeatedly warned of the terrorist vulnerability
of U.S. chemical facilities and a Federal Interagency Task Force
continues to meet on the dangers of Toxic Industrial Chemicals.

An accident or terrorist attack on a facility using hazardous chemicals
would endanger thousands of lives. Workers and the public would face
short and long term health threats as a result of such a disaster. A
chemical disaster would also severely pollute our air and water sources.
A 2001 U.S. Army Surgeon General study estimated that 900,000 to 2.4
million people could be killed or injured in a terrorist attack on a
U.S. chemical plant in a densely populated area. The Environmental
Protection Agency (EPA) calculated that at least 100 chemical plants
threaten a million or more people. Clearly, we are talking about the
potential of an enormous disaster.

This Committee has taken some important steps to improve chemical
security and I would like to thank you for your work on this issue.
Comprehensive chemical security legislation is the next step in bringing
better control to a complex problem. It is also a necessary step to fix
the significant and large problems associated with current DHS rules. We
have serious concerns with the current DHS regulations and believe they
will do little to enhance the security of chemical facilities or the
safety of workers and the public.

The interim chemical security program enacted over your objections last
year is woefully inadequate. April's final Department of Homeland
Security regulations failed to improve upon the underlying flaws of last
year's rider and were a large step backwards from legislation that was
being considered by Congress. Current regulations pre-empt stronger,
more protective state regulations; do not clearly define chemical worker
involvement or consultation in the facility process, including
inspections or their safety committees; and contain no whistleblower
protections. In addition, there is growing evidence that some employers
are using DHS' regulations to illegally limit union staff's entry into
plants and to harass or fire members. Finally, there is no requirement
to evaluate how safer and more secure technologies might reduce the risk
from an attack. My testimony today will concentrate on these last five
issues -- denial of staff entry into chemical facilities, workers'
contractual rights to due process, involvement of workers in security
plans, strong whistleblower protection, and use of safer technology.

**[Denial of Staff Entry to Facilities]{.underline}**

The Chemical Workers Council believes that companies can easily abuse
the DHS regulations to deny our union staff legitimate and legal entry
into chemical facilities. Currently, under the National Labor Relations
Act (NLRA), union officials have access to union members at plants. Yet,
under the new rule, companies can deny access based on a 'perceived"
security threat. The Subcommittee on Emerging Threats, Cybersecurity,
Science and Technology has heard from labor representatives who were
denied entry to investigate a worker killed on the job. While we have
been fortunate that none of our employers have ever denied the union
access when investigating a fatality, we have not had any occupational
fatalities in the last year since the regulation came out. We do
believe, however, that it is imperative that we consider what might
happen if we are denied access, and we must ensure that any new security
regulations protect labor union's rights if some employers take unlawful
action in the name of security.

Given the NLRA and employers' requirement to provide union access to
members, we ask, "What would be the harm in clearly stating that right
in the legislation?" After all, ICWUC has witnessed management denying
federal health officials their rights at a facility where there may be a
potential health hazard. Current U.S. law clearly states that these
public health officials have these rights yet they are denied. Although
this is not due to the current rules, the reality is that some companies
view their facilities as theirs and theirs alone and will find any
excuse they can to deny health officials or labor representatives their
rights. We simply cannot give these unscrupulous companies opportunity
to deny access from union representatives. We must keep the doors open
for legally recognized union visits in order to not hinder any
investigation of plant hazards or other problems.

**[Workers' Contractual Rights to Due Process]{.underline}**

We are also very concerned about the harassment and firing of workers
under the guise of "homeland security." As a union representative, I
have spent many hours fighting for our members' jobs and for due
process. Recently one of our companies' claimed that due to the Patriot
Act, they had the right to fire ten workers who had not fully explained
past criminal convictions. The company argued that the Patriot Act
required a clean record and therefore they were required to re-examine
all workers' original application forms and ask for current arrests and
convictions. While we do not advocate criminal activity or hiring
workers with criminal records, this company went well beyond the
regulations on felony convictions to fire workers with misdemeanors
regardless of their job performances. The union grieved the firings and
was pleased to win three members their jobs back. Yet, they should never
have been fired or have to fight for their jobs. There is no reason for
companies to claim "their hands are tied" under the Patriot Act or
Homeland Security regulations as hardworking Americans lose their jobs.

Clearly, there are other ways the government can handle true threats to
our country and our national security -- rather than weed out workers
who made a mistake early in their lives and have since led lawful lives.
Again, we are not saying that a criminal record should not be considered
in hiring, but using the Patriot Act or DHS regulation to fire workers
who pose no national risk is outrageous. Good chemical worker jobs are
not easy to come by and we do not believe companies, in the name of
national security, should be allowed to arbitrarily fire hard working
wage earners. Workers rights and job security should be an important
part of any future chemical security legislation.

In cooperation with other labor unions, including the International
Association of Machinists, the United Automobile Workers of America and
United Steel Workers, ICWUC sent a letter to the Department of Homeland
Security in August asking for clarification of the application of these
recent regulations with long established labor rights. We asked DHS to
issue a statement that their current rules do not conflict or take
precedence over the rights of workers or their bargaining
representatives under the National Labor Relations Act. Despite the
letter being sent months ago, we have yet to receive a response. We
believe it is imperative that future legislation includes a clear
statement to this affect.

**[Involvement of Workers in Security Plans]{.underline}**

In the control of occupational hazards, it has been long recognized that
workers have the direct and current knowledge and experience of plant
operations. This knowledge is invaluable in solving problems in the
plant's operations. Certainly, chemical workers have unique
institutional expertise and resources on occupational health, safety,
and training that must be formally involved in developing any new
security plans. It is simply illogical that workers' expertise -- the
same expertise that keeps the plants running everyday -- would not be
utilized on this critical security responsibility at chemical plants.
ICWUC feels strongly that including chemical workers in this process
will enhance security and protect against terrorist attacks at chemical
facilities. That is why employee consultation is so crucial.

After all, who better to know facilities' weaknesses than the workers
who work in the plant? If you want to know if security guards are doing
their job, ask the workers who go through the gates every day. If you
want to know the exact location where hazardous materials are stored and
how to protect them, ask the worker who loaded the chemicals. If you
want to know if training is really effective, ask our members who had
the training. And, if you want to know if backup systems will work in an
emergency, just check with the chemical workers.

Chemical workers are responsible for all the raw materials coming into
the plant as well as the final product that leave the plant. We are
responsible for hooking up the rail cars to off-load the chemicals,
transfer them in the plants and then work near the chemicals in the
plants. These responsibilities make chemical workers the first line of
defense. That is why any legislation must establish employee involvement
in the drafting of each site's chemical security plan. Legislation must
require companies to consult with employees on the plan and ensure that
employees can join facility inspections. It should also allow
appropriate chemical workers to be consulted in the course of such
inspections and audits.

Workers and their unions can be vital participants in plant safety and
security. Leaving workers and their representatives out of these
discussions will make security plans less effective and leave our
country more vulnerable. Legislation must not be silent on this subject
and must include a requirement for worker and union involvement in all
facets of the operations, including the security plans, top screen
process, safe operations and emergency shutdowns.

**[Strong Whistleblower Protection]{.underline}**

Hand in hand with the involvement of site workers is the defense of
their jobs if they face disciplinary procedures for reporting any
significant security weaknesses at their facility. Fear is a fact of
life at all too many workplaces and jeopardizing one's job by blowing
the whistle is a risky thing to do. As mentioned earlier, the defense of
members' jobs is regrettably a common activity unions are forced by
necessity to do. Workers can find their jobs on the line as they try to
protect their facility from potential attacks by reporting security
problems.

Workers who bravely come forward to protect themselves, their
co-workers, and communities around the plant, should not fear losing
their jobs when they speak out. Whistleblower protection must be
included to protect the free exchange of ideas, to improve and enhance
security and to ensure that measures that are proposed on paper are
actually implemented. We urge this Committee to include strong
whistleblower protection in any legislation in order to protect our
first line of defense -- the workers. It is the only way any new law
will be truly effective.

**[Use of Safer Technology]{.underline}**

Requiring the use of safer technology in high risk facilities, as in
H.R. 5695, is especially important to chemical workers for a number of
critical reasons. We understand that no system of plant perimeter
security and background checks will ever assure complete plant security
or end the possibility of a terrorist attack. To assume that security
checks, cyclone fences and registering toxic chemicals will deter
attacks, 100% of the time is unrealistic.

While we must do everything we can to build chemical plant security,
considering safer technology - be it substituting less dangerous
formulations, stronger or smaller containers, or various engineering
steps - can minimize the consequences of an accident or attack at a
chemical plant. The use of safer technology is a vital step to
significantly reduce the risk of a catastrophic release of chemicals
from intentional attacks or unintentional disasters.

The temporary chemical security statue, the "Department of Homeland
Security Appropriations Act of 2007" actually prohibits the DHS from
requiring any "particular security measure" such as IST. As a result,
the DHS current rules do not require any technological evaluation. We
understand that safer processes may not be feasible in all
circumstances, either technologically or economically, but we believe
that safer technology should always be considered in any security plan
for all high risk facilities regardless. We know that safer solvents or
formulations can be substituted for more dangerous ones. The quantities
of these hazardous chemicals can be reduced, stronger containers may be
used, vulnerable sections can be reinforced and maintenance schedules
can be reviewed. It just does not make sense for a chemical security
rule not to include an inherently safer technology component.

We believe that all high risk facilities should be required to include
an analysis in their vulnerability assessment including substitution,
engineering controls and administrative measures. The Department should
have the power to implement those measures that it deems to be feasible
and cost effective as required in H.R. 5695. These measures are critical
to minimize the release of toxic substances and mitigate the
catastrophic consequences.

We must not forget that we are not only addressing the prospect of a
terrorist attack when discussing the use of safer technology. Every week
chemicals are released in a wide range of accidental situations and
natural disasters. As you address chemical security, Congress must take
this opportunity to mandate steps that will simultaneously minimize the
national threat of not only attacks, but releases which are not
hypothetical but a reality that chemical workers and the public living
around plants experience frequently. President George W. Bush stated in
his 2003 Homeland Security Presidential Directive \# 8 on National
Preparedness, that we must "strengthen the preparedness of the United
States to prevent and respond to threatened or actual domestic terrorist
attacks, major disasters, and other emergencies by requiring a national
domestic all-hazards preparedness goal." Your work can take a large step
in fulfilling all of this Directive's elements.

Although I understand that this Committee's mandate is solely the
protection of our facilities from terrorist attack, the measures that
will minimize a hazardous release from an intentional attack will also
minimize the release that is a direct result of a hurricane, earthquake,
tornado or accident. The dangers we face in a chemical release come from
a variety of directions, but the use of safer technology will minimize
all these risks.

The International Chemical Workers Union Council believes this Committee
must act now to ensure the safety of our chemical workers and all
Americans. DHS's Regulations are flawed and it is imperative that
Congress moves forward on true chemical security reform. We strongly
support passage of legislation (H.R. 5695) that is similar to
legislation that passed out of this Committee last year. We urge the
Committee to act now, preemptively, to protect America from a terrorist
attack by passing legislation that includes provisions to protect the
rights of workers, site investigations, whistleblower protections, and
the use of safer technology.

The ICWUC looks forward to working with every Member of this Committee
and the House of Representatives to address this crucial problem. Again,
I thank you for your time and would be pleased to answer any questions
that you may have.