**TESTIMONY**

**OF**

**DIRECTOR OF OPERATIONS GARY SONDERMEYER**

**NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION**

**BEFORE THE**

**UNITED STATES HOUSE OF REPRESENTATIVES**

**COMMITTEE ON HOMELAND SECURITY**

**DECEMBER 12, 2007**

Good morning Chairman Thompson, ranking member King and Members of the
House Committee on Homeland Security. My name is Gary Sondermeyer and I
serve as the Director of Operations for the New Jersey Department of
Environmental Protection (DEP). With me is Paul Baldauf, Assistant
Director of our Radiation Protection and Release Prevention Element.
Paul and I have lead responsibility for implementation of New Jersey's
homeland security program for chemical facilities under the direction of
DEP Commissioner Lisa P. Jackson and Director Richard L. Canas of our
Office of Homeland Security and Preparedness (OHSP). I would first like
to sincerely thank the Committee for the opportunity to appear before
you to discuss the Chemical Facility Anti-Terrorism Act of 2008 and
specifically the ongoing inherently safer technology and chemical sector
security initiatives within the State of New Jersey.

Chemical plant security is a subject that Governor Jon S. Corzine and
every New Jersey resident regard with urgent concern. We view our
Chemical Standards, including requirements for inherently safer
technology evaluation, as vital to providing New Jersey with an accurate
reflection of our current state of security preparedness, as I will
further outline in my testimony.

In response to the risks posed by a possible terrorist attack on New
Jersey's chemical facilities, New Jersey has taken significant steps to
strengthen the security precautions at these plants. At this point we
have four years of on the ground experience in implementing a homeland
security program for all chemical facilities operating in our State.
Best Security Practices were adopted for the Chemical Sector working
cooperatively with industry leaders on September 18, 2003. Since
November 2005, New Jersey went further and adopted enforceable plant
security practices for its chemical facilities as well as facility
security assessments to evaluate potential security threats and
vulnerabilities. The facilities that pose the most significant risks are
subject to the State's Toxic Catastrophe Prevention Act (TCPA) program,
which incorporates EPA's Risk Management Program but is stricter and
broader in scope than the 112 requirements. New Jersey's enforceable
plant security practices are vital to providing the state with an
accurate picture of the current state of preparedness within the
Chemical Sector and provide a foundation to move forward with the
appropriate actions to safeguard our citizens.

I shall begin with a brief overview of New Jersey's domestic security
preparedness activities, and then turn to the specific reasons why the
evaluation of inherently safer technologies in the chemical industry is
of vital importance.

**Overview of New Jersey's Domestic Security Preparedness Effort**

New Jersey's unique vulnerabilities have made us a leader among states
in initiating and implementing measures to counter potential terrorist
operatives, to reduce the risk of attack at critical infrastructure
facilities, and to reduce the potential impacts to public health and
safety if any such attacks should occur in the future. New Jersey
undertakes these efforts through our Domestic Security Preparedness Task
Force (Task Force), chaired by Director Richard L. Canas of our OHSP.

As Director of Operations of the Department of Environmental Protection
(DEP), I serve as the DEP Commissioner's Task Force representative and
the liaison to the pharmaceutical and biotechnology, chemical, nuclear,
petroleum, wastewater, and dam safety sectors of our critical
infrastructure. DEP shares responsibility for the water sector as well
in cooperation with the New Jersey Board of Public Utilities. Through
the Task Force and the OHSP, I also participate in New Jersey's
preparedness and response effort for other sectors.

The Task Force has undertaken a comprehensive program to reduce terror
risk, to ensure preparedness at critical infrastructure facilities, and
to test the efficacy of both public agencies and the private sector in
responding to acts of terrorism. Every Task Force agency and every
sector of our critical infrastructure has developed, through a
public-private collaboration, a series of "Best Practices" for domestic
security. Each set of Best Practices was reviewed and approved by the
Task Force and the Governor. Every Task Force agency and every sector of
our critical infrastructure has also participated in appropriate
exercises to test the strengths and limits of terror detection and
response capability.

New Jersey's current challenge is to ensure full implementation of
security "Best Practices" across all sectors, consistent with a policy
of "Zero Tolerance" for noncompliance, and to identify those additional
regulatory and other measures that are appropriate to contend with
emerging threats and challenges. Throughout this process, DEP is working
with OHSP, our State Police, the Attorney General's Office and private
companies within our sectors to reduce or eliminate specific threats
that we have identified on a case-by-case basis.

## New Jersey's Toxic Catastrophe Prevention Act (TCPA) Program

New Jersey has managed an oversight program to increase safety at
chemical plants and other facilities that store or utilize
extraordinarily hazardous materials for over 20 years. The Toxic
Catastrophe Prevention Act (TCPA) program was created in 1986 as a
result of a chemical accident in Bhopal, India that killed thousands of
nearby residents. Several chemical facilities in New Jersey had
experienced minor accidents prior to this time, clearly indicating that
a similar risk existed in New Jersey. The TCPA requires facilities that
handle extraordinarily hazardous substances above certain inventory
thresholds to prepare and implement risk management plans. The plans
must include detailed procedures for safety reviews of design and
operation, operating procedures, maintenance procedures, training
activities, emergency response, process hazard analysis with risk
assessment and self-auditing procedures. An extraordinarily hazardous
substance is defined as a substance, which if released into the
environment would result in a significant likelihood of causing death or
permanent disability.

In 1998 the program adopted USEPA's 112(r) Accidental Release Prevention
Program (40 CFR 68) by reference. This program included additional toxic
substances and highly flammable substances. It also required each
facility to complete a worst case scenario analysis. The worst case
scenario models the resultant toxic cloud to a predetermined
concentration. The USEPA end point concentrations are approximately
one-tenth of the concentration that would cause death to persons
exposed.

On August 4, 2003, the readoption of the TCPA rules added reactive
hazards substances to the list of extraordinarily hazardous substances
covered under the program. Industrial accidents in New Jersey resulting
from reactive hazards demonstrated the need to include reactives under
the TCPA program. Owners and operators having listed reactive hazard
substances in quantities that meet or exceed thresholds are required to
develop risk management plans to reduce the risk associated with these
unstable substances. In addition, and the focus of this testimony, this
readoption included a requirement that owners and operators evaluate
inherently safer technology for newly designed and constructed covered
processes.

In April, 2007 the DEP proposed amendments to the TCPA rule to require
all companies subject to the program to evaluate the potential of
incorporating inherently safer technology at their facility. This
proposal also covers many sectors such as food, water/wastewater, and
energy which are outside the chemical industry but store threshold
amounts of extraordinarily hazardous substances. The DEP is currently
evaluating comments to the April proposal and expects to issue a final
rule requiring the evaluation of inherently safer technology at all TCPA
sites in early 2008.

**Chemical Sector Best Practices Standards**

New Jersey recognizes that facilities in the Chemical Sector are diverse
in size, complexity, and potential for off site impacts to the community
and therefore a blanket approach to addressing security concerns may not
be practical. The Best Practices 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. The Chemical
Sector Best Practices were predominantly derived from the Security Code
of the American Chemistry Council's Responsible Care program.

Subsequently the Task Force determined that additional measures were
necessary to ensure that appropriate prevention and response measures
are implemented by the chemical sector to address emerging domestic
security threats. As a result, Chemical Sector Best Practices Standards
(Standards) were put in place on November 21, 2005.

The Standards require chemical sector facilities to, among other things:

-   comply with the Chemical Sector Security Best Practices;

-   conduct a terrorism-based security vulnerability assessment; and

-   develop a prevention, preparedness, and response plan to minimize
    the risk of a terrorist attack.

In addition, chemical sector facilities subject to TCPA are required to
conduct a review of the practicability and potential for adopting
inherently safer technology.

**Inherently Safer Technology**

Facilities required to conduct an inherently safer technology review
must evaluate:

-   reducing the amount of extraordinarily hazardous substances
    materials that potentially may be released;

-   substituting less hazardous materials;

-   using extraordinarily hazardous substances in the least hazardous
    process conditions or form;

-   and, designing equipment and processes to minimize the potential for
    equipment failure and human error.

I must emphasize that the inherently safer technology requirement under
the Standards represents a practicability test; it is not mandatory that
a covered facility implement IST, only that they evaluate. The results
of the evaluations are held at the facility site, and are made available
to DEP inspectors during an on-site visit.

Compliance with the Standards was required within 120 days of the
effective date, March 21, 2006. We have been extremely pleased with the
compliance levels we have seen to our standards. Compliance of the New
Jersey requirements exceeded 98 percent. The Standards applied to
facilities that are subject to either the Toxic Catastrophe Prevention
Act (TCPA) or the Discharge Prevention, Containment and Countermeasure
(DPCC) program, and report under certain Standard Industrial
Classification (SIC) or North American Industrial Classification System
(NAICS) codes. Of the total 157 facilities covered under the Standards,
45 are regulated TCPA facilities required to perform IST analysis. In
all cases, facilities required under the Standards to conduct IST review
have done so. All of these facilities have documented that they have
previously implemented IST or similar risk reduction measures. 32
percent of the facilities have provided a schedule to implement
additional IST or other risk reduction measures, and 19 percent have
identified additional IST or risk reduction measures but have not yet
scheduled their completion. The remaining 49 percent of the facilities
had no additional recommendations. It should be noted that these are
facilities that have been regulated under the TCPA program for many
years resulting in the past implementation of IST and risk reduction
measures. 80 percent of the facilities concluded that at least some of
the IST or risk reduction measures identified during their evaluation
were infeasible for their operations. I believe that our compliance
results clearly indicate that the evaluation of inherently safer
technology is not overly burdensome on industry and is an effective tool
for critically evaluating the risk reduction opportunities available at
a specific facility. It is clear to us that IST analysis is simply good
business practice for any facility storing or utilizing extraordinarily
hazardous materials from an economic, worker safety and regulatory
compliance standpoint.

But these measures alone are merely a starting point. Our knowledge of
both the threat and the appropriate response is evolving daily. As we
implement the "Best Practices" and work with facilities on site-by-site
review of security vulnerabilities, we also have begun a public process
to review what additional regulatory measures may be appropriate to
harden potential targets, to reduce risk to surrounding communities, and
to involve workers and communities in the process.

**Chemical Facility Anti-Terrorism Act of 2008**

New Jersey has expressed serious concerns on a number of occasions about
any language in federal regulations that has the potential to preempt
existing state chemical security initiatives or limit future state
actions to address unique vulnerabilities. Section 2107. Federal
Preemption, clearly allows States to retain the authority to adopt and
enforce any regulation, requirement, or standard of performance relating
to environmental protection, health, or safety. We urge Congress to be
equally clear that States retain the unqualified authority to adopt
enhanced security requirements based upon risk and consequence factors
within that State. This could be accomplished by deleting the phrase
"unless the State regulation, requirement, or standard of performance
would conflict with the purposes of this title" from Section 2107 (a).

The proposed Act would capture chemical facilities currently exempt from
the existing Chemical Facility Anti-Terrorism Standards, 6 CFR Part 27,
expand the universe of regulated sites, and require assessments of
methods to reduce the consequences of a terrorist attack at high risk
sites. Overall, the Act addresses many of the comments previously
submitted by New Jersey on 6 CFR Part 27.

We strongly recommend consideration of permissive enabling language
toward delegating oversight responsibility to State governments, along
with appropriate levels of Federal funding to support homeland security
efforts. This would include a petition process to DHS by interested
State governments and granting of delegated authority on a discretionary
basis. In the case of New Jersey, the actions taken in chemical security
preparedness since September 11 have left the State well qualified to
undertake such delegated responsibilities. State security (Office of
Homeland Security and Preparedness and New Jersey State Police) and the
chemical process safety experts (Department of Environmental Protection)
are intimately familiar with the chemical facilities in question and
have conducted multiple security and safety inspection at each site over
the last five years. Leveraging and augmenting State resources is vital
to ensuring that our chemical facilities are adequately protected from
acts of terrorism.

**Conclusion**

Although New Jersey took critical steps to address chemical facility
security well over four years ago, we recognize that most states have
not taken formal regulatory action and therefore, federal regulations to
create minimum national chemical facility security standards are
essential. At the same time, it is also important not to penalize those
pro-active states and allow the states to retain the authority to adopt
enhanced security requirements if states determine they are necessary.
No two states are alike, and the risks posed by every facility present
unique challenges based on location, population size, and other factors.
Security standards that are appropriate to safeguard a facility in a
rural area, for example, may not be sufficient for a facility located in
one of the most densely populated and heavily traveled sections of the
country. Simply put, one size does not fit all.

New Jersey's critical infrastructure concentration and high population
density may have no comparison in the United States; our state needs to
retain the ability to go beyond any Federal security baseline standard
to ensure that our preparedness is measured in line with our potential
vulnerabilities. We need federal standards, but they must be a floor
ensuring a base level of protection, not a ceiling that constrains our
ability to protect our citizens, as well as our neighbors. We must
emphasize our vehement objection to any preemption language that would
limit New Jersey's ability to maintain our current standards or if
necessary impose additional requirements in the future to protect our
citizens. Governor Corzine has gone on record previously to express his
concern for the safety of New Jersey's residents. In serving Governor
Corzine, it is our duty to protect the citizens of our State and it is
imperative that federal legislation enhances, rather than undermines New
Jersey's ability to protect our chemical sector critical infrastructure.

I once again would like to thank you Chairman Thompson, ranking member
King and Members of the House Committee on Homeland Security. On behalf
of DEP Commissioner Lisa P. Jackson and Director of Homeland Security
and Preparedness Richard L. Canas, I sincerely want to thank you for the
opportunity to share some of New Jersey's experience in implementing our
chemical security and inherent safety program since the passage of the
New Jersey Domestic Security Preparedness Act in October, 2001. We would
be happy to entertain any questions you may have and are available at
any time should additional information be valuable to the critical work
of your Committee.