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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 

( 

Available via the World Wide Web: http://www.access.gpo.gov/congress.senate 
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

JOSEPH I. LIEBERMAN, Connecticut 

THOMAS R. CARPER, Delaware 

HILLARY RODHAM CLINTON, New York 

FRANK R. LAUTENBERG, New Jersey 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

AMY KLOBUCHAR, Minnesota 

SHELDON WHITEHOUSE, Rhode Island 

JAMES M. INHOFE, Oklahoma 

JOHN W. WARNER, Virginia 

GEORGE V. VOINOVICH, Ohio 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

CRAIG L. THOMAS, Wyoming 

LARRY E. CRAIG, Idaho 

LAMAR ALEXANDER, Tennessee 

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 

AMY KLOBUCHAR, Minnesota 

SHELDON WHITEHOUSE, Vermont 

DAVID VITTER, Louisiana Ranking Member 

CHRISTOPHER S. BOND, Missouri 

GEORGE V. VOINOVICH, Ohio 
(III) 

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 

(1) 

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 
2 

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. 
3 

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 
4 

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 imagi-
5 

nation 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. 
6 

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. 
7 

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. 
8 

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 
9 

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. 
10 

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 
11 

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 wideranging threats, including a major international airport, the largest 

seaport on the east coast, proximity to the nation’s largest metropo-
12 

lis, 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. 
13 

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 Environ-
14 

mental 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. 
15 

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 re-
16 

flected 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 
17 

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. 
18 

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 
19 

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 riskbased 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. 
20 

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. 
21 

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 
22 

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. 
23 

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. 
24 

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 
25 

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 
26 

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-toKnow 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 
27 

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 
28 

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 
29 

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 
30 

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 
31 

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. 
32 

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 
33 

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. 
34 

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. 
35 

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 extendedstay 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 
36 

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 
37 

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.’’ 
38 

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. 
39 

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, 
40 

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 riskbased 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 ‘‘riskbased 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 wellbeing of a community rests at the heart of the ‘‘Emergency Response and Commu-
41 

nity 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 pro-
42 

fessor 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. 
43 

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 
44 

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 offsite 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 insepa-
45 

rable, 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 
46 

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. 
47 

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 
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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 ConocoPhillips 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 
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1Best Practice Standards At TCPA/DPCC Chemical Sector Facilities, NJ DEP and NJ Domestic Security Preparedness Task Force, November 21, 2005 2NJ DEP Administrative Order No. 2005-05, October 1, 2005. 

3Security 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. 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. 

Management (PSM) Standard violations to DEP, and consider workers’ and unions’ 

input.1

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. 

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

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]. 

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 
50 

5Related OSHA Standards, such as Hazard Communication, also help to prevent chemical accidents and exposures. 6Correspondence 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. 7The 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. 8Title 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.]. 

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

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: • 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

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 
51 

9DEP Administrative Order 2005-05. 

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. 

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. 

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 
52 

10Most 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. 

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. 

• 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. 
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[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 
54 

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 riskbased 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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