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21–435 PDF 2005

S. Hrg. 109–62

CHEMICAL ATTACK ON AMERICA: HOW

VULNERABLE ARE WE?

HEARING

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

APRIL 27, 2005

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs

(

(II)

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

LINCOLN D. CHAFEE, Rhode Island 

ROBERT F. BENNETT, Utah 

PETE V. DOMENICI, New Mexico 

JOHN W. WARNER, Virginia 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas

MICHAEL D. BOPP, Staff Director and Chief Counsel 

ALLISON J. BOYD, Counsel 

JOYCE A. RECHTSCHAFFEN, Minority Staff Director and Counsel 

HOLLY A. IDELSON, Minority Counsel 

AMY B. NEWHOUSE, Chief Clerk 

(III)

C O N T E N T S 

Opening statements: Page 

Senator Collins ................................................................................................. 1

Senator Lieberman ........................................................................................... 3

Senator Stevens ................................................................................................ 6

Senator Akaka .................................................................................................. 6

Senator Voinovich ............................................................................................. 8

Senator Lautenberg .......................................................................................... 9

Senator Levin .................................................................................................... 33

Prepared statement: 

Senator Pryor .................................................................................................... 37

WITNESSES 

WEDNESDAY, APRIL 27, 2005

Hon. Jon S. Corzine, a U.S. Senator from the State of New Jersey .................... 11

Hon. Carolyn W. Merritt, Chairman and Chief Executive Officer, U.S. Chemical Safety and Hazard Investigation Board ...................................................... 13

John B. Stephenson, Director, Natural Resources and Environment, U.S. 

Government Accountability Office ...................................................................... 16

Richard A. Falkenrath, Ph.D., Visiting Fellow, Foreign Policy Studies, The 

Brookings Institution ........................................................................................... 18

Stephen E. Flynn, Ph.D., Jeane J. Kirkpatrick Senior Fellow for National 

Security Studies, Council on Foreign Relations ................................................ 21

ALPHABETICAL LIST OF WITNESSES

Corzine, Hon. Jon S.: 

Testimony .......................................................................................................... 11

Prepared statement .......................................................................................... 47

Falkenrath, Richard A., Ph.D.: 

Testimony .......................................................................................................... 18

Prepared statement .......................................................................................... 75

Flynn, Stephen E., Ph.D.: 

Testimony .......................................................................................................... 21

Prepared statement .......................................................................................... 98

Merritt, Hon. Carolyn W.: 

Testimony .......................................................................................................... 13

Prepared statement .......................................................................................... 53

Stephenson, John S.: 

Testimony .......................................................................................................... 16

Prepared statement .......................................................................................... 59

APPENDIX

Hon. James M. Inhofe, a U.S. Senator from the State of Oklahoma, prepared 

statement .............................................................................................................. 38

Hon. Vito Fossella, a U.S. Representative from the State of New York, prepared statement ................................................................................................... 45

Questions for the Record from Senator Akaka and responses from: 

Mr. Flynn .......................................................................................................... 106

Mr. Merritt ........................................................................................................ 107

Mr. Stephenson ................................................................................................. 109

(1)

CHEMICAL ATTACK ON AMERICA: HOW 

VULNERABLE ARE WE? 

WEDNESDAY APRIL 27, 2005

U.S. SENATE, COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS

Washington, DC. 

The Committee met, pursuant to notice, at 10:02 a.m., in room 

SD–562, Dirksen Senate Office Building, Hon. Susan M. Collins, 

Chairman of the Committee, presiding. 

Present: Senators Collins, Stevens, Voinovich, Warner, Lieberman, Levin, Akaka, Lautenberg, and Pryor. 

OPENING STATEMENT OF CHAIRMAN COLLINS 

Chairman COLLINS. The Committee will come to order. Good 

morning. 

Today this Committee begins a series of hearings on the security 

of our chemical industry and its vulnerability to terrorist attack. 

Our ultimate goal is to determine whether the risk of a terrorist 

attack on the chemical industry warrants a legislative solution, and 

if so, what that solution should entail. 

One of the most sobering lessons of September 11 was that terrorists will use the productive tools of our society against us as 

weapons. There were more than 5,000 commercial airliners ready 

to fly American skies that day. The terrorists only had to commandeer four to use as missiles to murder some 3,000 people. 

The threat of a chemical attack takes two basic forms: first, causing a harmful release of chemicals from a facility, and second, the 

theft of chemicals from a facility for use at another time and place. 

According to a recent report by the Congressional Research Service, 

during the 1990’s both domestic and international terrorists attempted many times to cause the release of chemicals from manufacturing or storage facilities. 

There is evidence that the second approach has been attempted 

as well. One of the 1993 World Trade Center bombers was employed as a chemical engineer. He used company stationery to 

order the chemical ingredients to make the bomb. In addition, testimony at the bombers’ trial indicated that they had successfully 

stolen cyanide from a chemical plant and were planning to introduce it into the ventilation systems of office buildings. 

According to the EPA there are at least 15,000 facilities across 

the country that use, manufacture, or store large quantities of extremely hazardous chemicals. To us, those facilities are vital parts 

of our economy that create jobs and improve our lives. To our enVerDate 0ct 09 2002 14:54 Nov 30, 2005 Jkt 021435 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\21435.TXT SAFFAIRS PsN: PAT
2

emies, they are weapons waiting to be used against an 

unsuspecting population. And, like the airliners of September 11, 

it would take only a few, or even one, to cause a horrifying loss of 

life and enormous economic harm. 

The potential of productive chemicals to cause terrible harm was 

made clear in the early morning hours of December 3, 1984, in 

Bhopal, India. The improper filling of a water tank at a plant that 

made pesticides led to the release of a cloud of poisonous gas that 

drifted across that city of some 850,000 people. Within a few hours, 

thousands were dead, and hundreds of thousands were sickened. 

On another historical note, it was 90 years ago this month, in 

April 1915, that the first major chemical attacks were launched in 

World War I. The chemicals that caused so much death and horror 

on the battlefields of the Western Front were not the bizarre concoctions of diabolical scientists, but rather the useful tools of industry, such as chlorine and phosgene. The compound that formed 

mustard gas, the most dreaded chemical weapon of all, was being 

investigated elsewhere as a treatment for cancer. 

But we do not have to travel back nearly a century in time to 

see that terrorists have used chemicals as weapons. We know that 

Saddam Hussein used chemical weapons against both the Iranian 

people and his own citizens. It has also been reported that chemical 

trade publications have been found in al Qaeda hideouts. 

The Department of Homeland Security is assessing the potential 

for worst-case scenarios involving the release of hazardous chemicals in the United States. The findings thus far are alarming. The 

Department has identified 297 chemical facilities where a toxic release could potentially affect 50,000 or more people. The EPA, 

which uses a different methodology, has numbers that are even 

more alarming. Nothing will ever diminish the loss that we experienced on September 11, but the consequences of a chemical attack 

could be even greater, both in terms of the loss of life and the economic impact. 

A study released last month by the Government Accountability 

Office details the many challenges that remain in protecting our 

chemical infrastructure. The GAO found that there is no comprehensive Federal approach to chemical facility security. Federal 

regulations that have been enacted were done to help prevent and 

mitigate the accidental release of hazardous chemicals, but these 

were not designed to secure facilities against terrorist attacks. Hazardous chemicals raise important environmental safety issues, but 

it is time that we recognize our obligation to address the security 

implications as well. 

Today, we begin to lay the foundation for a national strategy addressing chemical security. In addition to describing what should 

be done to better protect our chemical industry from terrorism, our 

expert witnesses will provide valuable insight into how it should be 

done. 

Earlier this month, I accompanied Senator Joseph Lieberman as 

an observer of the TOPOFF 3 terrorism exercise in Connecticut. 

This test of our counterterrorism and emergency-response capabilities simulated a chemical attack at a waterfront festival in New 

London, Connecticut, while a simultaneous biological attack was 

mounted in New Jersey. 

3

It was an enlightening and an alarming experience. The attack 

itself was decidedly low-tech and low cost. A car bomb detonated 

at a fairgrounds parking garage, spewed deadly chemicals, likely 

stolen or fraudulently obtained, over fairgoers. Had it been a real 

attack, there would have been hundreds dead and thousands 

sickened. The New London waterfront would have been contaminated, and the economy of the entire region would have been devastated. 

The first responders who participated in this exercise rushed to 

the scene and were tenacious in their efforts to aid the victims. Our 

efforts in Congress, working with the private sector and with the 

Administration to prevent such a chemical attack must be the 

same. 

Senator Lieberman.

OPENING STATEMENT OF SENATOR LIEBERMAN 

Senator LIEBERMAN. Thank you, Madam Chairman, for that excellent statement, and thank you for your leadership on this issue. 

You have identified this, I think, quite correctly, as a gap in our 

homeland security defenses, and I am confident that though this is 

a complex matter, that under your leadership we are going to get 

something done to protect the American people from the risk of 

chemical accidents in this session of Congress. 

Your opening statement, not surprisingly because we spend so 

much time together, so clearly mirrors what I wanted to say that 

I am just going to draw briefly from my statement and include the 

rest of it in the record. 

The first point is that we live in a society, in a world where we 

depend on a diverse and remarkable assortment of chemicals in our 

daily lives, from cleaning compounds to life-saving medicines. 

Chemical plants, oil refineries, wastewater treatment plants and 

pharmaceutical companies all manufacture and store chemicals 

and pesticides in large quantities in thousands of places around our 

country, often near large population centers. 

The fact is, the consequences of an accident or an attack, which 

is what we are focused on here, are disastrous. I just quote briefly 

from EPA, Environmental Protection Agency, which says that there 

are at least 123 chemical facilities in the United States where an 

attack or an accident could endanger a million people. That is, at 

each of the 123 locations an attack could endanger a million people 

because they are so near concentrations of population. There are 

actually 3,000 chemical facilities in the country where an attack 

could endanger 10,000 people. These are mega disasters that could 

occur. 

The Army Surgeon General issued a report saying as many as 

2.4 million people could be killed or injured in a terrorist attack 

against a toxic chemical plant in a densely populated area. 

I always hesitate to read these numbers because one does not 

want to create panic. On the other hand, they demonstrate—from 

very independent dispassionate authorities—the risk here. I am not 

going to recite, but Senator Collins has told us we are on notice. 

There is ample evidence that terrorists have attempted to strike at 

chemical facilities and that they intend in the future to do that as 

well. 

4

The good news here, slightly encouraging, given the knowledge 

of the consequences of an attack and the intentions of terrorists to 

attempt to attack chemical facilities, is that some chemical companies are not waiting for Congress to tell them how to improve their 

security. That is the good news. I know that the Department of 

Homeland Security is working with the chemical industry on several security initiatives. In fact, the Maritime Transportation Security Act of 2002 and the Bioterrorism Act of 2002 legislated important measures to improve security at a number of chemical and 

water treatment facilities, and several States are moving toward 

better security in this area. 

But the fact remains this morning that millions and millions of 

Americans continue to be at risk from an attack on a chemical 

plant, and many facilities that use extremely hazardous chemicals 

are not covered by the patchwork of laws and regulations now in 

place. 

One of the witnesses that we are going to hear from today, Richard Falkenrath, former White House Deputy Homeland Security 

Adviser, told this Committee earlier this year that since September 

11, ‘‘We have essentially done nothing’’ in this particular area, and 

that is an unacceptable reality. 

Our first witness is Senator Jon Corzine of New Jersey. He has 

been the Senate leader in this matter in attempting to protect the 

American people from risk of an attack by terrorists on a chemical 

facility or an accident there. He has worked diligently to move legislation through the Congress and a lot of us have supported him. 

But thus far to no avail. 

The Administration has voiced general support for legislation in 

the past, but actions speak louder than words, and thus far, it has 

not provided the leadership necessary to pass the legislation necessary to protect the American people. 

I know, Madam Chairman, that at a future hearing on this subject you intend to call representatives from the Administration, 

particularly the Department of Homeland Security, and I urge the 

Administration to commit to working with this Committee on a bipartisan basis to help us pass effective legislation during this session of Congress. 

I thank you. I thank Senator Corzine. I thank the witnesses who 

I am confident this morning will help us understand better both 

the gravity of the current situation with regard to chemical plants 

and facilities in this country, and how we can urgently work to 

craft solutions that will protect the American people. 

Thank you. 

[The prepared statement of Senator Lieberman follows:]

PREPARED STATEMENT OF SENATOR LIEBERMAN 

Madam Chairman, thank you for holding this first of what we hope will be a series of hearings on a critical gap in our homeland security. Once again, you have 

demonstrated your willingness to roll up your sleeves and tackle the hard issues 

and chemical security is certainly one of the hard ones. But it is an area of such 

serious vulnerability that we can’t be deterred by its complexities. I appreciate your 

leadership and, as always, I’m pleased to work with you and the other Members of 

this Committee to try to address this gaping hole in our homeland defense as expeditiously as possible. 

No one can doubt that the vast and diverse chemical industry is central to our 

way of life and to our economy. We rely on a multitude of chemical substances in 

5

our daily lives, from cleaning compounds, to life-saving medicines, to home heating 

oil. Chemical plants, oil refineries, waste water treatment plants, and pharmaceutical companies all manufacture and store industrial chemicals and pesticides in 

large quantities in thousands of locations throughout the country, often near larger 

population centers. If released into the atmosphere, many of these chemicals could 

kill or maim hundreds of thousands of people—which makes them an all too inviting 

target for terrorists. 

The fact is, a chemical release from at least 123 plants scattered throughout the 

land could endanger more than a million people, according to the Environmental 

Protection Agency, and 3,000 facilities around the country could threaten 10,000 

people. Furthermore, the Army Surgeon General has determined that as many as 

2.4 million people could be killed or injured in a terrorist attack against a toxic 

chemical plant in a densely populated area. Even where chemical facilities are more 

remote, there is a danger terrorists could buy or steal lethal materials for use in 

strategically important or densely populated areas. 

Now, we have ample evidence that terrorists are working along these lines. The 

Congressional Research Service reports that during the 1990’s both international 

and domestic terrorists attempted to use explosives to release chemicals from manufacturing and storage facilities close to population centers. At least two of these incidents occurred in the United States. One of the 1993 World Trade Center bombers 

was employed as a chemical engineer and used company stationary to order chemicals for a bomb used in that attack. Those same terrorists stole cyanide from a 

chemical facility and were training to introduce it into the ventilation systems of 

office buildings. In a 2002 report, the Justice Department described the threat posed 

by terrorists to chemical facilities as ‘‘both real and credible’’ for the foreseeable future. And, it has been reported that U.S. troops found chemical trade publications 

in Al Qaeda camps in Afghanistan. 

It doesn’t take much imagination to picture the pain terrorists could inflict by attacking a chemical facility. Two decades later, the Bhopal horror is still fresh in our 

minds. At least 4,000 people were killed and an estimated 400,000 injured from the 

release of a toxic gas cloud from a chemical plant in central India in 1984. More 

recently, when a train recently derailed in South Carolina and ruptured a chlorine 

gas tanker car, 10 people were killed by the lethal fumes which, according to EPA, 

affected an area two miles downwind from the derailment. This was not a worstcase event since the gas release was not instantaneous, but occurred over several 

days. If that had been an intentional strike on a chlorine gas facility in a dense 

area, the death toll could have been staggering. Indeed, the experts continually tell 

us that the casualties of the September 11 attacks could pale by comparison to an 

attack on a chemical facility in a densely populated area. 

Given our knowledge of the terrorists’ desire to stage deadly chemical attacks, 

some of the more responsible companies aren’t waiting for Congress to tell them 

how to improve their security. I know the Department of Homeland Security is 

working with industry on several security initiatives. The Maritime Transportation 

Security Act of 2002 and the Bioterrorism Act of 2002 legislated important measures to improve security at a number of chemical and water treatment facilities. 

And several states are on the road to better chemical security. 

But millions more Americans continue to be at risk, and many facilities that use 

extremely hazardous chemicals are not covered by the patchwork of laws and regulations now in place. When the lives and livelihoods of so many Americans are at 

stake, relying on voluntary initiatives by the chemical industry to adequately protect us simply is not enough. 

So, how much progress has the government made to address this threat? Richard 

Falkenrath, former White House deputy homeland security adviser, whom we will 

hear from today, has told this Committee that since September 11 ‘‘we have essentially done nothing’’. That, clearly, is a standard we cannot accept. 

Senator Corzine—whose testimony I eagerly await this morning—has worked diligently to move legislation through the Congress, and I supported his efforts last session. Unfortunately, the status quo has proven unmovable so far. The Administration has voiced support for legislation in the past, but actions speak louder than 

words—and thus far, it has not provided the leadership necessary to achieve it. 

I look forward to hearing DHS’s views at a future hearing and I hope the Administration will commit to working with us to pass effective legislation. 

I’d like to thank the witnesses here today for sharing their expertise with us. You 

can help us better understand the gravity of the situation that confronts us, and 

provide guidance as we work to craft solutions. 

Thank you again, Madam Chairman, for providing your unique brand of leadership on yet another issue central to the security of millions of Americans.

6

Chairman COLLINS. Thank you. Senator Stevens.

OPENING STATEMENT OF SENATOR STEVENS 

Senator STEVENS. Madam Chairman, I am only going to be here 

a few minutes. I have another hearing I am going to chair. I 

stopped by to commend you for undertaking a very difficult and 

complicated task. 

Several years ago I monitored an international meeting in Geneva that took place for several weeks of trying to determine how to 

control the international movement of chemical and biological substances that could be used for weaponry, and those of us who work 

primarily here in the Senate on defense matters are quite concerned, as you know, about the possibility that we might face 

chemical and biological weapons used by terrorists. So I do know 

from past inquiries into the subject, it would be a very difficult 

task to get a bill passed that will do what you seek to do, but I 

intend to work with you, and I again encourage Senator Corzine 

and all of those concerned with us, to work together on a bipartisan 

basis and try to do our best to see if we can take the steps that 

is necessary to get more information about these substances that 

could be used as weaponry. Thank you. 

Chairman COLLINS. Thank you. Senator Akaka. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. Thank you very much, Madam Chairman. I 

would like to commend you for holding a hearing with distinguished witnesses on a critical topic. 

I want to welcome particularly our colleague from New Jersey, 

Jon Corzine, to this Committee, and also our distinguished witnesses. I appreciate you sharing your expertise with our Committee 

today. 

Securing the Nation’s critical infrastructure while fostering the 

free flow of commerce upon which the United States relies is a considerable challenge. In no sector is the need to attain this balance 

more pressing than in the chemical industry. 

According to the EPA there are 123 chemical plants located 

throughout the Nation that could each potentially expose more 

than a million people if a chemical release occurred. 

In 2003, the Administration produced the National Strategy for 

the Physical Protection of Critical Infrastructures and Key Assets, 

which noted that, ‘‘There is currently no clear unambiguous legal 

or regulatory authority at the Federal level to help ensure comprehensive uniform security standards for chemical facilities.’’

The strategy directed DHS and the EPA to work with Congress 

to enact legislation to require certain chemical facilities, particularly those that maintain large quantities of hazardous chemicals 

in close proximity to population centers, to undertake vulnerability 

assessments and take reasonable steps to reduce the vulnerabilities 

identified. 

To date no legislation has been enacted because Congress cannot 

reach a consensus on how strict the regulation should be. Securing 

chemicals is done mostly by industry on a voluntary basis, and the 

only statutes regulating the chemical sector are the Maritime 

Transportation Security Act, which covers facilities near ports, and 

7

the Bioterrorism Act, which covers the water sector. A large portion 

of the Nation’s chemical industry is not subject to security regulations. 

As with any industry, there is debate on how to balance commerce and security. Our intent is not to cripple industry, which 

could hurt the economy or reduce jobs, but to ensure Americans are 

adequately protected from an accidental or intentional chemical release. We must also ask how increased government regulation will 

affect industrial competitiveness. 

Some chemical facilities that adhere to the industry voluntary security code have argued that they are at a disadvantage compared 

to those facilities that do not voluntarily increase security because 

they are spending millions on this added expense. 

Madam Chairman, I welcome this opportunity to further explore 

how we can better secure the chemical industry and minimize risk 

to the American people. I look forward to the testimony of witnesses and to working on this problem in the future. I ask that my 

full statement be included in the record. 

Chairman COLLINS. Without objection. 

[The prepared statement of Senator Akaka follows:]

PREPARED STATEMENT OF SENATOR AKAKA 

Thank you Madam Chairman, I would like to commend you on holding a hearing 

on this critical topic. I welcome our distinguished witnesses and appreciate them 

sharing their expertise with our Committee today. 

Securing the Nation’s critical infrastructure while fostering the free flow of commerce upon which the United States relies is a considerable challenge. In no sector 

is the need to attain this balance more pressing than in the chemical industry. 

The accidental release of methyl isocyanate from a chemical plant in India in 

1984, and the thousands of lives lost in the process demonstrates the lethality of 

industrial chemicals. Intelligence reports tell us that this is a lesson terrorist groups 

have taken to heart. In May 1995, a Japanese cult released Sarin on five subway 

trains in downtown Tokyo. And according to a February 2004 Government Accountability Office (GAO) report, ‘‘experts agree that chemical facilities present an attractive target for terrorists intent on causing massive damage.’’ In fact, 20 of the terrorist attacks attempted over the past decade involved a chemical agent. 

Accoridng to the Environmental Protection Agency (EPA), there are 123 chemical 

plants located throughout the Nation that could each potentially expose more than 

a million people if a chemical release occurred. 

In 2003, the Administration issued ‘‘The National Strategy for the Physical Protection of Critical Infrastructures and Key Assets’’ which noted that ‘‘there is currently no clear, unambiguous legal or regulatory authority at the Federal level to 

help ensure comprehensive, uniform security standards for chemical facilities.’’ The 

Strategy directed the Department of Homeland Security (DHS) and the EPA to work 

with Congress to enact legislation to require certain chemical facilities, particularly 

those that maintain large quantities of hazardous chemicals in close proximity to 

population centers, to undertake vulnerability assessments and take reasonable 

steps to reduce the vulnerabilities identified. To date, no legislation has been enacted. 

Securing chemicals is done mostly by industry on a voluntary basis. The only statutes regulating the chemical sector are the Maritime Transportation Security Act 

(P.L. 107–295), which covers facilities near seaports, and the Bioterrorism Act (P.L. 

107–188), which covers the water sector. A large portion of the Nation’s chemical 

industry is not subject to security regulations. 

One of the issues we will discuss today is whether self-regulation of the chemical 

sector is sufficient. While the chemical industry has come together to self-regulate 

since September 11, only a little over half of the 4,000 chemical manufacturing facilities reportedly adhere to the voluntary security standards. According to a March 

2005 GAO report, the regulated chemical facilities GAO visited achieved a higher 

level of security than the unregulated facilities. 

As with any industry, there is debate on how to balance commerce and security. 

Our intent is not to cripple any single industry which could hurt the economy or 

8

reduce jobs, but to ensure Americans are adequately protected from an accidental 

or intentional chemical release. 

A good example of this debate is the legal battle the District of Columbia is currently engaged in with CSX Transportation, a rail transit company, regarding the 

District’s recent decision to ban trains carrying hazardous materials from traveling 

within 2.2 miles of the Capitol. 

We must also ask how increased government regulation will affect industrial competitiveness. Some chemical facilities that adhere to the industry voluntary security 

code have argued that they are at a disadvantage compared to those facilities that 

do not voluntarily increase security because they are spending millions on this 

added expense. 

Madam Chairman, I welcome this opportunity to further explore how we can better secure the chemical industry and minimize risk to the American people. I look 

forward to the testimony of our witnesses.

Chairman COLLINS. Thank you, Senator Akaka. Senator Voinovich. 

OPENING STATEMENT OF SENATOR VOINOVICH 

Senator VOINOVICH. Thank you, Madam Chairman, for holding 

this hearing today. 

I also want to thank each of the witnesses for joining us and 

sharing your expertise. 

Chemical security is of critical importance to our homeland security. The chemical industry is a major part of our Nation’s economic infrastructure and vitality. The chemical industry plays a 

key role in our high quality of life, whether it be crop production, 

temperature control, water chlorinization, household cleaners or 

life-saving medications. 

I would like to begin by acknowledging the work that the chemical industry has done to self-regulate in the absence of Federal 

legislation. I share the same thanks as other Members of this Committee. The American Chemistry Council has been a leader in their 

voluntary efforts to enhance security at chemical facilities. I applaud the industry’s efforts to work toward uniformity and consistency in national standards for security. 

But we must be mindful that regulation does not place the industry at a competitive disadvantage. In Ohio the chemical industry 

directly employs almost 50,000 people. Each one of these jobs creates an additional 6.2 jobs. The chemical industry is already experiencing economic hardships as a result of high natural gas costs. 

As a nation, we have gone from a net exporter of chemicals to a 

net importer. 

Though it is clear that a Federal role is necessary to meet today’s 

security concerns, any Federal action should adhere to a comprehensive cost benefit analysis. 

The issue of chemical manufacturing security has been before us 

for some time. I have been involved in this debate since early 2002 

when it was before the Environment and Public Works Committee. 

In December 2003, chemical security regulation was moved from 

the EPA and given to DHS, and it is now a matter for our Committee. Any legislation to enhance chemical facility security should 

be sharply focused on prevention and consequence management of 

a potential terrorist attack. Federal action to address chemical 

vulnerabilities must not be burdened with extraneous issues. 

Additionally, we must be attentive to requirements that would 

compromise the security of the various facilities that we are workVerDate 0ct 09 2002 14:54 Nov 30, 2005 Jkt 021435 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 C:\DOCS\21435.TXT SAFFAIRS PsN: PAT
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ing to protect. For instance, specific chemical facility vulnerabilities 

must be guarded from unnecessary public disclosure. Only responsible government authorities need to have access to such information. Most people are not aware that the Federal Government already mandates disclosure by chemical facilities of the kinds of 

chemicals they have on their premises requires that they have developed inspections to ensure that safety measures and a strategy 

to respond are in place in the event of an accident. 

I would suggest, Madam Chairman, that the Committee have a 

closed session with the chemical industry where they can share 

candidly what they are now doing in terms of security and how legislation can be enhanced to set standards to which the industry 

must adhere. 

I mention this because we addressed the security of nuclear facilities before the EPW Committee. There were all kinds of accusations being made about the level of security at our nuclear facilities. It was suggested we have a closed session. It was interesting. 

All but one of the members who had raised concerns had their concerns responded to. So it might be a good idea to consider closeddoor hearings at a later date. Thank you. 

Chairman COLLINS. Thank you. Senator Lautenberg. 

OPENING STATEMENT OF SENATOR LAUTENBERG 

Senator LAUTENBERG. Thank you, Madam Chairman, for calling 

this hearing and having the witnesses who are going to testify talk 

about the issue with their experiences. 

I am particularly pleased to see my colleague, Senator Jon 

Corzine, here. He needs no introduction, but he does need the 

thanks of the people in New Jersey for his persistence in trying to 

keep this subject alive, to try and keep those lives going in New 

Jersey where we have the most densely populated State in the 

country, and lots and lots of chemical facilities. People make their 

living working in these places and it helps our economy substantially. 

But when we look at South Kearny, New Jersey, where it is said 

that more than a million people could be killed if there was either 

an accident or an attack in that facility, and so it is throughout the 

State. 

To confirm something that took place, Madam Chairman, in an 

earlier meeting of this Committee when we discussed the risk criteria for homeland security grants—and I note there was an Associated Press report that Governor Kean and Lee Hamilton intend 

to hold hearings. They no longer have the commission, but they intend to hold hearings in June and July to give a report card to the 

structure of the intelligence program that we have that would tell 

us whether or not we are doing the right thing. 

And I had a chance meeting with Governor Kean last night when 

he insisted that the risk factor has to be the determinant about 

how grants are made. 

So, Madam Chairman, I ask that my full statement be included 

in the record, and I would hope, since I heard Senator Lieberman 

suggest that we hold hearings in the future, that we would have 

people from EPA as well as Homeland Security with us to give us 

10

1The prepared statement of Senator Inhofe appears in the Appendix on page 38. 

their insight into what the problems are and how we might solve 

them. Thank you very much, Madam Chairman. 

[The prepared statement of Senator Lautenberg follows:]

PREPARED STATEMENT OF SENATOR LAUTENBERG 

Mr. Chairman, thank you for convening this hearing on this critical topic. 

As you know, I took a brief sabbatical from the Senate several years ago. 

One of the last bills I introduced before I left was a measure to increase security 

at chemical plants in our country. 

I was concerned that our chemical plants were vulnerable to an attack by terrorists that could kill thousands of Americans. But few shared my concern at that time, 

and I wasn’t able to pass the bill. 

After I left the Senate at the beginning of 2001, my colleague Senator Corzine 

took up the cause of trying to make chemical plants less vulnerable to terrorists. 

Today, in the wake of September 11, we are all aware that chemical facilities 

present an inviting target for terrorists. 

Unfortunately, we still haven’t translated that awareness into action. 

The 9/11 Commission cautioned that we must not focus so much on the last attack 

that we miss the next attempt to strike our country. 

I’m afraid we have failed to absorb that lesson as well as we should. 

And chemical plant security is one of the most glaring examples of that failure. 

There are about 15,000 chemical facilities in the country. More than half of them 

are in locations where an attack could kill more than one thousand people. 

The most vulnerable area is around South Kearney, New Jersey. An attack on a 

chlorine facility there would have the potential to kill or injure as many as 12 million people. 

Mr. Chairman, the attacks of September 11 were devastating. My state lost 700 

of our friends, neighbors and loved ones that day. We all hope that we never see 

the like of it again. 

But the fact is, a terrorist attack on a chemical facility could be even worse. 

And by ignoring the threat, we might be inviting such an attack, because terrorism experts say our enemies like to focus on poorly security ‘‘soft’’ targets. 

In other words, we won’t win the war on terror by fighting the previous battle. 

I thank all the witnesses who are with us today, and I look forward to hearing 

their views on this crucial issue.

Chairman COLLINS. Thank you, Senator. 

I am now pleased to welcome our first witness. Before doing so, 

I want to note that Senator Inhofe, who has also worked very hard 

on this issue in the previous Congress, could not be with us today 

because he is managing the highway bill on the Senate floor. He 

has, however, submitted a written statement which will be included in the record.1

I am now very pleased to welcome our distinguished colleagues, 

Senator Corzine of New Jersey. As my colleagues have mentioned, 

he has been a leader on this issue. He came to see me at the very 

beginning of this Congress to suggest that the Committee delve 

into this now that we have our new jurisdiction. 

I also want to note that his other colleague from New Jersey has 

long been active in this area as well. 

I noticed in doing some, or my staff noticed in doing some research that Senator Lautenberg had introduced legislation back in 

the 1990’s on this issue, so I want to acknowledge his leadership 

as well. 

Senator Corzine, we are very pleased to have you here, and I 

would ask that you proceed with your statement. 

11

1The prepared statement of Senator Corzine appears in the Appendix on page 47. 

TESTIMONY OF HON. JON S. CORZINE,1 A U.S. SENATOR FROM 

THE STATE OF NEW JERSEY 

Senator CORZINE. Thank you, Madam Chairman. I want to thank 

the Ranking Member and all the Members of the Committee for 

their interest and concern about an issue that I feel passionately 

about, and it is a real issue driven by concern to represent the people that live in my State. We are the most densely populated State 

in the Nation, and chemical plants are located among those large 

areas of population. 

I failed to get a good board presentation, but yesterday’s USA 

Today had a picture of the plant that Senator Lautenberg talked 

about, who has worked on this issue so ably for a number of years. 

And you see a chlorine plant that is in the midst of what the EPA 

would say, 12 million people, would be exposed by an explosion, but 

it also is a plant that sits below a superhighway, where cars traverse over the top of it every single day. It is about a mile and a 

half from the Holland Tunnel. 

This is an example of vulnerability and a threat with large consequences, which I think require that those of us in public life 

speak out and try to protect the population that surrounds that 

area. We have 11 of these sites in New Jersey where a million people, according to the EPA statistics, and these are 123 chemical facilities, as others have noted. 

The need is real, and as many of the Members of the Committee 

have pointed out, I think it is something that is self-evident. Experts have talked to you about it. I am extremely pleased at your 

witness list that will be testifying, which have spoken out on this 

issue, Mr. Falkenrath and Steve Flynn—and this goes back to Warren Rudman and Tom Ridge who have actually identified these 

issues as ones that need to be addressed in our homeland security 

strategy. 

I do not think we, as Senators, or as public officials, will be able 

to justify the reality of any attack on these facilities because we 

have been warned. This is not something that has not caught the 

eye of experts and people who have followed the issue through 

time. So I hope that the cause is recognized by reality. 

By the way, I do believe in this balance between industry and 

protecting our people, whether it is in New Jersey or across the 

country. We have 60,000 people who work in our pharmaceutical 

industry in New Jersey, and they do a terrific job of protecting 

their plants. I think the point that Senator Akaka makes about 

some people do and some people do not, and we do not know, I 

think is a dangerous concept to be understood. 

The facts are real. Oil refinery plant in Texas in March blew up, 

killed 14 people. Train derailment in Graniteville, South Carolina, 

where in a rural area nine people were killed from a chlorine explosion. Multiple deaths in a number of incidents in New Jersey 

through time, three killed this year in Perth Amboy, and the 

Chairman spoke about Bhopal. 

This is a real and present danger and I think we would be remiss 

if we did not develop a strategy. And we need to find a bipartisan 

12

consensus, and I certainly hope to work with the Chairman and 

Ranking Member and others to try to bring this to conclusion. 

I will just mention a few of the variables that I think this legislation should include, which are included in my more lengthy statement, which reflects a lot of the work that we have done over the 

years, in the 107th, 108th, and now in the 109th Congress. Fortunately, the jurisdiction, well, not fortunately, but the reality of the 

jurisdiction is the Department of Homeland Security, appropriately 

in this Committee today. I think that is a major change from history. 

I do think we need both site regulation and consideration of alternative production approaches, not mandated, but alternative approaches to be examined, and where possible one could find ways 

to reduce risk of an attack occurred are sensible. We certainly had 

this case here in Washington where a sewage treatment plant, 

Blue Plains, moved from using chlorine and sulfur dioxide to sodium hypochlorite, and it was a very simple shift of how they operated in the facilities that made a big difference in the protection 

of all of our capital. The Committee can examine the specifics of 

that, and there are other cases around the country. This just happens to be one where chlorine could have infected the whole of our 

capital, including the White House and the Capitol. I think we 

need to look at alternative approaches. They need not be mandated 

but they need to be observed and made certain that they have been 

examined. 

We need to make sure that we assess whether industry guidelines, substantially equivalent guidelines are adequate and whether they are subject to the kind of review and monitoring that 

makes them successful, and would give the public certainty that 

real changes have been made, and they should, in my view, include 

these alternative approaches to production. 

Finally, I think it would be worthwhile, certainly worthwhile, 

that some provisions with regard to coordination to first responders 

in a local area be included in plans that are developed with regard 

to individual plants. Are there procedures put in place to respond 

to the kind of attack or accident that might occur, and are people 

prepared? Which does bring into consideration the kinds of things 

that Senator Voinovich talked about, dealing with information dissemination and making sure that we are not providing a blueprint 

for folks to attack. I think these are all important issues. 

There is another element of prioritization. My efforts on this effort have not been focused on ammonia plants in North Dakota. 

They have been focused on trying to prioritize those places where 

you have the greatest consequences if there is an explosion. So I 

think the tension that comes with that, I hope, will not set up a 

dynamic that will not allow for moving forward. 

This is an issue where I think lives are at stake. We would not 

tolerate this kind of site security oversight at our nuclear power 

plants. The public knows that. We have great concern to make sure 

there is a strong regulatory oversight function with regard to our 

maritime facilities that potentially pose risks. We should not allow 

it in these areas where literally hundreds of thousands of people 

could be exposed. 

13

1The prepared statement of Ms. Merritt appears in the Appendix on page 53. 

I once again want to compliment the Chairman and the Committee for taking on this issue. I intend to be as fully bipartisan 

and cooperative. I think this is a need that the public deserves to 

have our Congress and the Administration act on, and anything 

that can make that happen will please me, and I will be happy to 

work with the Committee going forward. 

Thank you very much. 

Chairman COLLINS. Thank you very much, Senator. I know that 

you have a hectic schedule, and so I would suggest, unless any of 

my colleagues have a burning question to ask Senator Corzine, that 

we just submit any questions for the record so that he can resume 

his schedule. 

Senator CORZINE. Thank you. 

Chairman COLLINS. Thank you. I would now like to call for our 

next panel of witnesses. The first witness that we will hear from 

today, after Senator Corzine, obviously, is Carolyn Merritt, the 

Chairman and CEO of the U.S. Chemical Safety and Hazard Investigation Board. Ms. Merritt brings an analytical chemistry background to her some 30 years of experience in process engineering 

and environmental and safety management. She has worked with 

a wide range of chemical processing and manufacturing industries, 

and we are very pleased to have her here today. 

Next we will hear from John Stephenson, the Director of Natural 

Resources and Environment Issues with the U.S. Government Accountability Office. We are very pleased to have him share his expertise with us today. 

The third panelist is Dr. Richard Falkenrath, who is a Visiting 

Fellow in Foreign Policy Studies at The Brookings Institution here 

in Washington, DC. Dr. Falkenrath was another individual who 

brought this issue to the Committee’s attention with his testimony 

earlier this year. He has served as Deputy Assistant to the President for Homeland Security, and as the Senior Director for Policy 

and Special Assistant to the President in the Office of Homeland 

Security. 

And finally we will hear from Dr. Stephen Flynn, who is the 

Jeane J. Kirkpatrick Senior Fellow for National Security Studies at 

the Council on Foreign Relations. Dr. Flynn has testified before 

this Committee on a wide variety of homeland security issues and 

it is always a pleasure to welcome him back. I would also note that 

when he was in the Coast Guard he was stationed in Maine for 2 

years, and that alone gives him great credibility with the Chairman at least. [Laughter.] 

Chairman Merritt, we are going to start with you, and we thank 

you for being here today. 

TESTIMONY OF HON. CAROLYN W. MERRITT,1 CHAIRMAN AND 

CHIEF EXECUTIVE OFFICER, U.S. CHEMICAL SAFETY AND 

HAZARD INVESTIGATION BOARD 

Ms. MERRITT. Thank you, Madam Chairman, Senator Lieberman 

and Members of the Committee. Thank you for the opportunity to 

testify this morning. I commend you for convening this hearing. 

14

Protecting the public from chemical emergencies is an important 

responsibility of the Federal Government. 

The U.S. Chemical Safety and Hazard Investigation Board, or 

the CSB, is an independent, nonregulatory, Federal agency established in 1998. We investigate major chemical accidents at fixed industrial facilities, determine root causes and make safety recommendations. The Board does not investigate transportation related chemical accidents, site security, or criminal acts. 

Madam Chairman, since the Chemical Safety Board was founded, we have learned something very troubling. Many incidents that 

the Chemical Safety Board has investigated reveal serious gaps in 

how well companies, emergency responders, government authorities and the public are prepared for a major chemical release. 

These gaps in preparedness leaves Americans vulnerable. 

In December of last year I traveled to India for the 20th anniversary of the chemical plant tragedy in Bhopal. In that accident on 

December 3, 1984, about 43 tons of toxic methyl isocyanate were 

released into the air from a U.S.-owned pesticide plant. About 

3,000 people died within a few hours, and more than 200,000 people sustained permanent injuries. 

The death toll of the Bhopal accident was extraordinary, but the 

accident itself was not. The amount of toxic material released, 43 

tons, would fit comfortably into just one rail car. Safety experts 

have concluded that the Bhopal gas release was caused by a combination of poor operating practice, poor maintenance and the deterioration of installed safety equipment. Overall the residents in the 

city of Bhopal were caught totally unprepared for this accident, 

making this incident particularly devastating. 

For example, many people who were told to evacuate ran directly 

into the toxic cloud and died in the streets, while many who stayed 

in their shanty homes survived. Better preparedness could have 

saved lives, was what the Bhopal police chief told me himself. 

We have had some major chemical releases in the United States, 

including most recently a release of about 60 tons of chlorine from 

a rail car in Graniteville, South Carolina, which took 10 lives in a 

small town. 

A similar chlorine release occurred in rural Texas last year 

where two freight trains collided, four people were killed by chlorine gas, and people 10 miles away reported symptoms of exposure. 

Fortunately, these accidents occurred in sparsely populated 

areas. A large-scale toxic gas release is quite capable of causing 

thousands of casualties if the conditions are right, the release is 

rapid and it occurs in a major city. We have seen it overseas. We 

have seen it projected in computer models, and we could see it in 

the future here in the United States as a result of a terrorist act 

or perhaps an accident. 

At many fixed industrial sites there are chemical storage tanks 

that are far larger than any rail car. When I was an industrial 

safety executive we knew of an ammonia storage tank in a major 

U.S. port that could have jeopardized nearly a million people in the 

case of total failure. 

In addition to a large storage tank, there is also a large number 

of stationary rail cars parked in chemical plants, in freight yards 

and other sites around the country. 

15

Overall we have an excellent record in this country of minimizing 

off-site fatalities from ordinary chemical releases at fixed industrial 

sites. 

But some of our success is also due to luck. Among the accident 

cases that we have investigated, a deficiency in emergency response is more often the rule than the exception. 

For example, in August 2002, a chemical repackaging facility 

near St. Louis had a release of chlorine gas from a faulty transfer 

hose connected to a rail car. The automatic shut-down system 

failed to work because it had not been properly maintained or tested. Emergency protective equipment was stored too close to the rail 

car and became immediately inaccessible. The local volunteer 

hazmat team was not prepared and it took them 3 hours to eventually shut off the leak. By then some 48,000 pounds of chlorine had 

been released. There were no warning sirens and firefighters had 

to go door to door in an effort to evacuate residents. Only some fortuitous circumstances, including the time of day and the direction 

of the wind spared local residents from what could have been a catastrophe. 

Probably the most telling incident occurred in Dalton, Georgia 

just a year ago. During the very first production batch at a local 

chemical company, a reactor overheated and began spewing toxic 

and flammable allyl alcohol into the air. There was no safety equipment in place to contain the release. The toxic vapor cloud formed 

and drifted toward a residential community. The 31,000 pounds of 

allyl alcohol at the plant was more than double the threshold allowed under EPA’s Risk Management Program rules. But company 

managers did not even know that the rule existed. They did not 

take required steps to prevent or contain a release, and they did 

not develop a required emergency response plan. 

In addition, the fire department lacked equipment or protective 

clothing for a large toxic chemical release. The community has no 

hazmat unit and no warning sirens. Unprotected police personnel 

went door to door notifying residents to leave. The evacuation exposed responders and residents to the toxic gas. An overwhelmed 

local hospital had to decontaminate 154 people, including 13 police 

officers and 3 ambulance personnel. 

Fortunately, all the residents and responders survived. A heavy 

rainstorm helped to scrub the toxic gas from the air that night, 

probably preventing a more serious consequence. 

We also learned that Georgia designated a single local emergency 

planning committee for the entire State, and jurisdictions like 

Whitfield county, where Dalton is located, are without functioning 

LEPCs. 

There are numerous other examples cited in my written testimony. But I am disturbed by what the CSB investigations have 

shown. At a minimum they point to the need for a comprehensive 

national review of emergency preparedness. Until we have effective 

safety systems and equipment at all chemical facilities, protected 

control rooms, mitigation and containment systems, and effective 

emergency preparedness in every community from coast to coast, 

our people will continue to be vulnerable and exposed to preventable risks. 

16

1The prepared statement of Mr. Stephenson appears in the Appendix on page 59. 

We all hope and pray that such a release or act of terrorism 

never occurs, but if such a disaster should happen we must be prepared to respond quickly and effectively to save every life that we 

can. The time for planning is now, not after a tragedy. And I commend you, your leadership, and this Committee for convening this 

hearing today, before a tragedy occurs. 

Thank you. 

Chairman COLLINS. Thank you for your testimony. Mr. Stephenson. 

TESTIMONY OF JOHN B. STEPHENSON,1 DIRECTOR, NATURAL 

RESOURCES AND ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE 

Mr. STEPHENSON. Thank you, Madam Chairman and Members of 

the Committee. Thank you for this opportunity to discuss our work 

on chemical security preparedness. As the events of September 11 

so vividly showed, a terrorist attack on the Nation’s critical infrastructure can cause enormous damage to our country and to our 

citizens. The President identified the Nation’s chemical facilities 

among the infrastructures and key resources that could be exploited to cause catastrophic health effects or mass casualties. Indeed, some have called chemical facilities one of the most attractive 

targets for terrorists intent on causing massive damage. We all 

know that the chemical industry is essential to our economy and 

to our way of life. Chemicals are needed to manufacture thousands 

of products such as those used in agriculture, pharmaceuticals, food 

processing, and drinking water and wastewater treatment. 

But because many chemicals are inherently hazardous, the release of chemicals at these facilities poses serious threat. In the absence of Federal legislation, the private sector currently bears the 

primary responsibility for protecting chemical facilities from deliberate acts of terrorism. However, Federal, State, and local governments have for many years worked in partnership with the private 

sector to protect facilities from accidental chemical releases. 

Since 1990, the Environment Protection Agency has regulated 

about 15,000 facilities that produce, use, or store more than threshold amounts of 140 dangerous chemicals. For this reason, EPA initially had the lead responsibility for protecting the chemical sector, 

whereas the Department of Homeland Security is now the lead 

Federal agency. 

So why do chemical facilities pose such a serious threat? You 

have heard a lot of information today already. Many facilities 

house chemicals that, if released, could become airborne and drift, 

in some cases for several miles, to surrounding communities or 

could be stolen and used to create a weapon. The Department of 

Justice has concluded that the risk of an attempt to cause an industrial chemical release in the foreseeable future is both real and 

credible. And in the February 2002 testimony, the Director of the 

CIA warned of the potential of an attack by al Qaeda on chemical 

facilities. 

All of us have referred to Bhopal, and, indeed, that incident 20 

years ago has caused legislation to be passed on community-rightVerDate 0ct 09 2002 14:54 Nov 30, 2005 Jkt 021435 PO 00000 Frm 00020 Fmt 6633 Sfmt 6601 C:\DOCS\21435.TXT SAFFAIRS PsN: PAT
17

to-know laws, etc. So it is true that Federal regulation and industry safety precautions taken since that time probably would avoid 

a repeat of such a huge disaster. It, nevertheless, vividly illustrates 

the potential consequences of a chemical release. 

A 2002 Brookings Institution report ranked an attack on toxic 

chemical plants behind only biological and atomic attacks in terms 

of possible fatalities. Despite these risks, no one has comprehensively assessed security across the Nation’s chemical facilities. 

Media exposes showing easy access to chemical tanks and computer 

centers at U.S. chemical plants have raised doubts about security. 

While DHS and EPA have visited a number of facilities to discuss 

security, the results of these visits are at this point unclear. 

While DHS is still trying to define the specific number and type 

of facilities that comprise the chemical infrastructure sector, the 

15,000 or so facilities currently under EPA’s risk management program are a useful starting point, as each of these facilities house 

large quantities of dangerous chemicals. According to EPA data on 

worst-case accidental release scenarios—and you have already 

heard these numbers—123 chemical facilities could each potentially 

put at risk more than 1 million people to a cloud of toxic gas; about 

600 could each potentially threaten from 100,000 to 1 million; and 

about 2,300 such facilities could each potentially threaten from 

10,000 to 100,000. 

DHS and EPA believe these estimates are overstated because, 

depending upon wind direction, safety precautions, rapidness of response, and other factors, the entire population in the vulnerability 

zone surrounding a plant would likely not be affected. However, because the scenarios estimate the effects of the chemical release involving the greatest amount of toxic chemical in a single vessel, not 

the entire quantity on site, an attack that breached multiple vessels could increase the consequences. Although the exact number of 

people at risk may be arguable, it is undoubtedly in the tens of millions. 

Of concern to us is that while other high-risk sectors such as 

drinking water and nuclear facilities are subject to Federal security 

requirements, no such requirements currently exist for chemical facilities. About 23 of the 15,000 RMP facilities are currently covered 

by Federal legislation in other sectors, such as the Bioterrorism Act 

for drinking water facilities or the Maritime Transportation Security Act for port facilities. But unlike these sectors, there are no 

Federal vulnerability assessment or safety and emergency response 

requirements for chemical facilities. 

Without specific authority to require chemical facilities to improve security, DHS has worked voluntarily with the chemical industry to provide financial assistance, share information about infrastructure protection, provide training and exercises and assess 

facility vulnerabilities and recommended security improvements at 

a few facilities. Chemical industry associations also have initiatives 

underway. Most notably, the American Chemistry Council requires 

its member facilities, which include about 1,000 of the 15,000 facilities, to assess vulnerabilities develop security plans, implement security measures, and undergo a third-party verification that security measures were implemented. Other industry associations also 

are imposing a number of security requirements on their members, 

18

1The prepared statement of Mr. Falkenrath appears in the Appendix on page 75. 

but the extent of participation in these initiatives or their results 

is at this point unclear. 

DHS has a number of efforts underway, including the development of a chemical security sector plan, but these programs are 

still in their infancy, and the plan is not yet final. All of these efforts are commendable, but at the end of the day, we still don’t 

know the overall extent of security preparedness in this critical sector. 

To ensure that security vulnerabilities at chemical facilities are 

addressed, we recommended 2 years ago in our 2003 report that 

EPA and DHS develop a comprehensive national chemical security 

strategy that included a legislative proposal to require facilities to 

assess their vulnerabilities and take any needed corrective actions. 

DHS and EPA, while they generally agreed with our recommendations at that time, have yet to implement them. We plan to continue to evaluate DHS’ and other efforts as part of our ongoing 

work for this Committee, including an analysis of existing and 

needed legislation. 

Madam Chairman, that concludes my statement, and I will be 

happy to answer questions as well. 

Chairman COLLINS. Thank you. Dr. Falkenrath. 

TESTIMONY OF RICHARD A. FALKENRATH, PH.D.,1 VISITING 

FELLOW, FOREIGN POLICY STUDIES, THE BROOKINGS INSTITUTION 

Mr. FALKENRATH. Thank you, Madam Chairman, for the invitation to be here. Your opening statement and the statements by the 

other members of the Committee were so good and on point that 

I am able to shorten my introductory remarks substantially. I want 

to just make five points and then turn to the proposed legislative 

solution that I made at length in my written statement. 

First, I agree entirely with what Senator Voinovich had to say 

about the need to protect this information concerning our 

vulnerabilities. I am very worried about the media exposes that 

have occurred into these plants and facilities, which are highly 

dangerous, and I regret that public meetings of this sort are necessary. I think they are at this time, but I am worried about the 

easy accessibility of what is essentially terrorist targeting information concerning our most serious civilian vulnerability. So that is 

a caveat. 

Second point: On September 11, the basic strategy of al Qaeda 

was to identify a commonplace system in our midst that we relied 

upon every day and attack in such a way that they could achieve 

catastrophic secondary effects. The security in that system—in this 

case, fully fueled civilian airliners—was quite poor. We were complacent about it. We no longer are complacent about that security, 

but it stands to reason that al Qaeda is looking for other targets 

in our midst which, if attacked, could produce catastrophic civilian 

casualties. If you were to ask me what is the most likely followon attack to September 11, it would be an attack in that model, but 

not against aircraft, against something else that was like aircraft 

on September 11. 

19

Our most important responsibility is to prevent attacks before 

they occur, primarily by identifying the perpetrators and the plotters and making it impossible for them to carry their attack out. 

That is the subject of a very energetic effort in the Executive 

Branch—counterterrorism and prevention and intelligence. A huge 

amount of energy and personnel are dedicated to that responsibility. But there is another part of our strategy that is less well developed, and that is to play in a sense strategic defense against al 

Qaeda’s most likely next tactics, to identify the sorts of targets 

which, if attacked, could cause us greatest harm and would have 

greatest likelihood of coming off successfully from the terrorist 

point of view. That is what we call critical infrastructure protection. It is a unique mission of the Department of Homeland Security. Prior to the creation of the Department of Homeland Security, 

no Federal department or agency had this responsibility comprehensively. It is one of the few genuinely new missions of DHS. 

Now, the essence of playing strategic defense is to start thinking 

like al Qaeda in reverse and think which targets, if attacked, would 

cause us the greatest harm and present the most likely probability 

of success for the terrorists, and that is massive casualties in the 

first instance. 

When you do that analysis, when you look at all of the different 

targets that could be attacked in the United States—and there are 

many—and ask yourself which ones present the greatest possibility 

of mass casualties and are the least well secured at the present 

time, one target set flies off the page, and that is chemicals—in 

particular, toxic inhalation hazard chemicals, not necessarily explosive ones; chemicals which, if inhaled, are highly damaging to 

human health. 

This is an absolutely inescapable conclusion from the analysis 

that you have to do if you are trying to play defense against al 

Qaeda’s next attack, and it is one that was very apparent to me 

in my official capacity and remains apparent to me now as a private citizen. So this is the appropriate focus for this Committee, 

and I am glad you are turning your attention to it. The chemicals 

that we are talking about today are in many cases identical to 

those used on the battlefields of World War I. They are enormously 

dangerous. They are produced in truly massive quantities, shipped 

and stored in many cases next to very dense urban populations, 

and present in my opinion the single greatest danger of a potential 

terrorist attack in our country today. 

So, fifth point, what have we done about this threat today? I 

think it is safe to say that the Federal Government has made itself 

no material reduction in the inherent vulnerability of this target 

set since September 11. It is important to separate between the 

vulnerability of chemical facilities and the vulnerability of chemical 

conveyances in the transportation area. 

In the conveyance area, the Executive Branch currently has very 

strong regulatory authorities and could, if it chose, take action to 

improve—to require the shippers of hazardous chemicals to improve the security of their conveyances. To date, the Executive 

Branch has not done so. 

On the facilities side, in my opinion the Federal Government 

does not currently have the authority to take action and require 

20

the owners of chemical facilities to improve the security of their 

complexes. Some have argued that the general duty clause of the 

Clean Air Act is sufficient legal authority. I disagree with that. 

And in any case, an economic intervention of this magnitude is the 

sort of thing which really deserves unambiguous congressional authorization. So even if legally you could make the claim that the 

general duty clause was sufficient, politically I think it is imprudent to do so. 

So I think the gist of what we have heard today is correct. There 

is a pressing need for a legislative solution to this problem and, in 

particular, a new regulatory regime for chemical security. And in 

my remaining time, I am going to outline what I think that regime 

should look like. 

First, a couple general principles. I believe the regime should be 

very strict, should impose very strong regulatory powers to the Department of Homeland Security, but that the regime should be 

risk-based and market-based, and that there is a way to do that. 

Second, again, I agree with Senator Voinovich. The regime 

should be focused tightly on the security of this target set against 

deliberate terrorist attack and should exclude extraneous issues. It 

should not be a back door for environmental regulation or safety 

regulation. Those issues should be addressed in the appropriate 

legislative process, but I would say keep them separate from the 

security regime. Keep the regime focused on improving the security 

and reducing the vulnerability of these plants. 

And the third general principle, I will just repeat what I said before. It should provide for the protection of the information related 

to this vulnerability. We should not, as a result of this legislation, 

if it is enacted, make terrorist targeting information more available 

as a result of it. That would be a bad outcome, in my judgment. 

I think the regulatory approach should have six basic parts. The 

first should be a compulsory comprehensive inventory maintained 

by the Department of Homeland Security of every chemical storage 

facility and conveyance in the country, and this should be updated 

regularly, and they should just have it. It should be highly detailed 

and should contain information about the physical security at every 

site and every transportation node and system in the country. It 

is a big task, but I think it is required. Such an inventory does not 

currently exist. There is no comprehensive picture of the size and 

nature and security of this complex. 

I will give a small anecdote which relates to Chairman Merritt’s 

anecdote. At one point the Federal Government raised the alert 

level from yellow to orange, and at that time we actually sent out 

a list of facilities that we were worried about to State and local authorities and encouraged them voluntarily to take protective action 

at those facilities. It turns out there was a chemical plant on that 

list in at least one city in the Northeast that the local chief of police did not even know existed. He did not know it was there. And 

when his squad cars pulled up after they received this, it was the 

first time he knew that there was a chlorine storage tank right 

next to an urban population in a major city. 

Second major point of the legislation: I think once the inventory 

is established, the Secretary of Homeland Security should devise 

standards for the inventory, and these should be tiered. Not all 

21

1The prepared statement of Mr. Flynn appears in the Appendix on page 98. 

chemical plants present the exact same risk. Some are far more 

dangerous than others. And I think he needs to take the inventory 

he has and break it up into select tiers and for each define very 

precisely the standards. 

Third, the owners of the chemical facilities need to certify that 

the standards have been met at some appropriate timetable. 

Fourth, the Secretary of Homeland Security needs to run a 

verification process to ensure that the certifications are correct. 

Fifth, if they are not correct, or if the company is in violation of 

the standards, he needs a compliance procedure which I think 

should include tough civil and criminal penalties for noncompliance, certainly along the lines of Sarbanes-Oxley criminal liability 

for accounting malfeasance. 

And, finally, there should be an appeal procedure so that companies have some recourse to the courts if they believe that they are 

being treated unfairly or in a capricious way by the Executive 

Branch. They deserve that. But the appeal procedure should provide for the continued protection of this information even as it enters the judicial process. 

This legislative package, I think, should proceed in concert with 

enhanced regulation of chemical transportation systems, which the 

Executive Branch could do right now, but ideally the two would be 

done together in an integrated fashion. 

Thank you very much, Madam Chairman. 

Chairman COLLINS. Thank you. Dr. Flynn. 

TESTIMONY OF STEPHEN E. FLYNN, PH.D.,1 JEANE J. KIRKPATRICK SENIOR FELLOW FOR NATIONAL SECURITY STUDIES, COUNCIL ON FOREIGN RELATIONS 

Mr. FLYNN. Thank you so much, Madam Chairman, for the opportunity to come back before this Committee and your leadership 

on this critical issue. I have been most associated with the issues 

of port and container security and supply chain because of the economic disruption consequences associated with that as well as potential loss of life, given the proximity of populations near ports, 

but this is an issue that I put up there with the bio threat, in the 

top three. With the chemical issue there is overlap with the port 

security issue. Most chemical refineries and so forth are in seaports, and this is one of the critical themes as well that I think we 

need to be mindful of: It is not just the hazardous material but its 

linkage and proximity to other critical infrastructure. 

As Senator Corzine laid out at the outset, facilities right under 

major highways, spills that happen in ports that shut them down, 

have consequences that transcend the local loss of life. It can have 

devastating economic consequences, which speaks to the issue of 

the threat. 

I would like to talk just a minute about the threat. I would like 

also to say a few words about what I think is the limit of the marketplace as an approach to dealing with that threat, thereby, outlining the rationale for why I think it is so important for this Committee to move forward with a legislative package on this issue, 

22

and then speak to some of the suggestions that I have, some which 

parallel my colleague, Dr. Falkenrath. 

In terms of the threat, we are a Nation at war, and if you think 

through this as a commander-in-chief getting a briefing of where 

weapons of mass destruction might be, and the briefing said, well, 

we have 15,000 weapons of mass destruction littered around the 

United States, we have no idea how well they are guarded or if 

they are guarded at all, you would think under those circumstances 

you would say, well, we better get a handle on those weapons of 

mass destruction. But, of course, we view this industry as a domestic industry, and the threat, we see a weapon of mass destruction 

as often viewed as an ‘‘over there’’ problem. We have this issue 

right here within our borders. As Dr. Falkenrath was talking 

about, the example of September 11 was not the importation of a 

weapon of mass destruction. It was converting a domestic airline 

into one. 

Why produce a chemical weapon, go through the very difficult 

task of smuggling it into the United States, when essentially there 

is a vast menu of prepositioned weapons in our population areas 

next to critical infrastructure? How this could be still off the list 

of priorities 31⁄2 years since September 11 is quite simply extraordinary. 

I think one of the issues that we are struggling with, though, is, 

well, if it is so easy and they are so available—and we are facing 

this increasingly, I think, with the homeland security issue across 

the board—well, why hasn’t it happened? Why haven’t we had another attack? And I would like to spend just a moment on that critical issue. 

I think one of the things that we have to do is get a real sense 

of the timeline and the challenges of the adversary of carrying out 

an attack potentially on the chemical sector. The reality is these 

more sophisticated attacks require essentially a terrorist organization to put down a footprint of typically a logistics cell, a reconnaissance cell, and ultimately an attack cell. It takes some time to do 

that. They do not start from a large footprint here in the United 

States. And though we could all look around and say willy-nilly 

there are a lot of targets they could attack, when you carry out an 

attack, you create a real forensics problem for yourself because you 

are going to leave a trail. 

And so if it took you 18 months or 2 years or more to put a cell 

operation together and you hit basically an easy target, your whole 

operation is likely to be exposed, as we found with the March 11 

attack in Madrid. Within about 96 hours, the whole network was 

pretty well cleaned up. They were on trial just this last week. 

The second critical issue here about the time and why this issue 

should be very much—thinking this large-scale attack is very much 

with us still today is that they want to outdo the last attack. Now, 

that has been very clear that they want to do that, and they are 

willing to take the time to get it right. And doing it right requires 

expertise, it requires some rehearsals and good planning, dry runs 

and so forth. And as the days move by, I am more worried increasingly of that it is the sophisticated big attack that is staring us in 

the face, not ‘‘wipe the brow,’’ maybe we somehow get them at 

arm’s length. 

23

And then, again, as we look at the list of possible inventories, the 

chemical industry absolutely screams at you as essentially a weapon of mass destruction that is in your adversary’s midst and you 

can have cascading effects. 

The problem we face here is that to date we have treated this, 

like other elements of critical infrastructure, as something that ultimately the private sector should take care of itself, that since it 

owns and operates this sector, basically it should bear the responsibility of looking at the most intelligent ways to proceed. I think 

speaking to the limits of the market in this area, particularly the 

security area, we have to be mindful of two critical things that I 

hear time and again from company executives. 

The first is that any security measure, just like any safety measure, is always about how much is enough. An executive has to 

make a decision about how much is enough vis-a-vis what I know 

to be the threat as well as what the consequences would be if the 

threat is carried out and what investment I should make accordingly. 

Now, when we talk about issues like safety, we usually have empirical data openly available upon which we can make those decisions. But when we talk about security, the information about 

threat is a public good closely held. So to ask an executive in industry to establish a baseline set of security standards when the entrylevel information about the threat they are out of the loop on, they 

have to just guess at it. And that is a problem. 

The second critical challenge that the industry has with laying 

out its own regime is, of course, the concern about the free rider. 

Good companies work hard to comply but they must worry, will everybody else play by the rules? 

The third issue is the liability issue. Given that these decisions 

are always about how much is enough, if the industry collectively 

comes together and says, well, we think this is about right even 

though we don’t know much about the threat, but the little bit we 

have been clued in on, and we think the benchmark is here, and 

then go about and implement it, and then the attack happens, the 

immediate response by the public sector would be: You got it 

wrong. You were more worried about your profits than you were 

about our safety. Exhibit A, the attack succeeded. And, therefore, 

if you are a company executive, you have a real liability issue. You 

acknowledged the threat, but you will be accused of not having 

taken sufficient action to address it. 

Ultimately, on the issue of security, the ultimate public good, we 

need the close private-public cooperation. The public sector needs 

to be saying, yes, you have got it about right, industry, based on 

our knowledge of the threat. We will make sure there are not free 

riders, that everybody is playing by the rules so that you are not 

at a competitive disadvantage for doing the right thing. And, finally, we will give you Good Samaritan protection, if you do all 

that we identify as adequate and it does not work, since we made 

the public judgment about this, we will take the heat as a public 

sector about this public good. Then the industry can get on with 

it. 

But the unwillingness of the public sector to address critical infrastructure generally and the chemical industry specifically, the 

24

absence of a back and forth conversation between the private 

andpublic sectors, and the lack of a regulatory framework, is something that has essentially left us with the exposure that we are experiencing today. 

Turning now to the recommendations that I lay out in my written testimony, and I will try to keep this fairly brief so we can get 

through them. But the very first is we need to provide the necessary resources for the Department of Homeland Security to work 

with local planning emergency committees created under the Emergency Response and Community Right to Know Act, and also I recommend using the FBI district-based INFRAGARD program to 

begin to identify minimal standards for this industry to do several 

things. 

First, establish physical security, communications capabilities, 

and access control at chemical facilities based on this tiered system 

of the quantity and lethality of the chemicals they produce and 

store within a facility, as well as its proximity to major population 

centers, and its proximity to other critical infrastructure. We 

should not have to do the same thing for everywhere. It has got to 

be based around the risk. 

Second, conduct regular exercises to test the adequacy of security 

measures to prevent intrusions. There is no substitute for these exercises in getting people to really continue to refine and stay vested 

in what they are doing. 

Third, to conduct community outreach on incidence management 

with neighbors to the facilities who would be directly affected in 

the aftermath of a successful attack. There is a real tension here 

between this issue of openness on the one hand and worries by 

some officials to not give terrorists blueprints on the other. That 

really needs to be bored down. I err on the side of openness, and 

I err on the side of openness because I know our intelligence is so 

weak right now that we cannot predict these events. I also believe 

that the threat is so open and the awareness is so high that we 

really have to make sure that we are protecting our population 

when these things happen. And I believe that honesty and openness is something we need to push versus ‘‘keep it all under the 

cone of silence’’ approach. 

Next, we need to conduct outreach for incidence management, 

and then finally test the minimal intervals for emergency response 

training. We must do red team training to test prevention measures, but you also must have response training. 

Another area that I would recommend is that there be a 

verification regime built upon the creation of bonded, third-party 

inspectors to audit compliance with these minimal standards at intervals appropriate to the risk posed by a successful attack on the 

chemical facility. There will never be enough government eyes and 

ears. It is not desirable to have exclusively government eyes and 

ears doing this. But we need a bonded process of private folks who 

go out and make sure everybody is living by the rules. Again, legitimate companies that make this investment do not want a regime that allows free riders who do not make that investment. 

Next, we need to create within the Department of Homeland Security a compliance office to essentially audit the auditors. 

25

Then we need to sponsor research and development and provide 

tax incentives which reward the adoption of less dangerous processes for making, handling, and storing the most lethal chemicals. 

The tendency is to think about this as gates, guards, and guns, and 

physical security alone. A lot of what can be done to manage an 

incident to make sure it does not result in a massive loss of life 

are good practices. Some of those require some government incentives, since it is security at stake, we have to find ways in which 

we do that. 

Next, we need to sponsor research and development on new technologies to mitigate the risk of chemical releases beyond the chemical facility. There are ways in which we can expect the worse and 

have ways to deal with that. 

We need to sponsor research and development of lower-cost, more 

user-friendly protective equipment for emergency responders. You, 

Madam Chairman, were at the TOPOFF drill. You saw how we put 

people in these moon suits that were designed for the most benign 

circumstances of working and industrial environment. They do not 

work for first responders. We must fix that problem. 

Two more. Next, to create a task force that recommends a new 

protocol for resolving the conflict over public outreach on the one 

hand and the sensitivity to public disclosure of vulnerabilities on 

the other, which I mentioned earlier. And, finally, to require risk 

assessments that are reviewed by the senior homeland security official at the State level before new non-industrial development is 

allowed in the vicinity of an existing chemical facility. 

A story that I point to to support this final recommendation is 

a case in southeastern Los Angeles, where the Los Angeles Community College District has proposed building a new campus that 

will accommodate up to 12,000 students directly next to one of the 

largest chemical facilities in the Nation. If the reverse case happened where a chemical facility asked to be located next to a large 

university, it would be a non-starter. But in this instance we are 

crowding up against a facility that manufacturers and stores highly 

hazardous chemicals without thinking of the security implications, 

is crazy. We need to find a way in which we get people sensitized 

before they do things which elevate security risks. 

Thank you so much for the opportunity to make this prepared 

statement, and I look forward to answering your questions. 

Chairman COLLINS. Thank you. Thank you all for your excellent 

statements. 

Chairman Merritt, I was struck in your testimony about how 

India and the communities in America that you cited were unprepared to deal with an accidental release of hazardous chemicals. In 

your experience, do you believe that we are prepared as a country 

to deal with a deliberate attack on a chemical facility? 

Ms. MERRITT. If you look at the events that we have investigated, 

these are really small in comparison to some of the events that 

could occur if it were a deliberate planned attack, as has been reported by the other witnesses this morning. An instantaneous 

release, though, still provides us with an opportunity, if we were 

prepared, to do some mitigation and some protection of our communities. But without any planning, we really do not have that capability. 

26

We have seen that communities, by the large proportion of those 

that we have investigated, are not ready even for a small release, 

and that they have not planned, they have not determined whether 

they would shelter in place or whether they would evacuate. They 

haven’t got notification systems that consistently work. And even 

when they do, many times communities have changed, demographics have changed, and people don’t know what to do. When 

they are told to evacuate, often they are not told where to go. And 

so large numbers of people are actually moving in the direction of 

the cloud of toxic gas. 

This is the kind of thing that needs to be determined, and we 

need to take action to try to protect our communities. 

Chairman COLLINS. I am struck by the fact that people who live 

in areas of the country that are susceptible to tornadoes know what 

to do when a tornado is approaching. But I don’t think those same 

people, if they lived near a chemical facility, would have any idea 

what to do if there were a chemical release, whether it was accidental or deliberate. 

Mr. Stephenson, I am trying to get a better sense of the numbers 

involved in this issue. The EPA, as you have testified, has identified 123 chemical facilities located across the United States where 

more than 1 million people live in the vulnerable zone in the event 

of a worst-case chemical release. As you know, DHS uses a different methodology, tries to estimate casualties, and comes up with 

smaller numbers. 

Nevertheless, the EPA data provide an estimate of the number 

of Americans who are living in areas that are potentially vulnerable to the release of a toxic chemical. 

Can you give the Committee a rough estimate of the total number of Americans who live within a worst-case scenario radius of 

the 15,000 facilities that the EPA has identified? 

Mr. STEPHENSON. As I said in my statement, it is very difficult 

to determine because, depending upon the chemical and the 

amount of chemical at the facility and the characteristics of that 

chemical once it goes airborne, the vulnerable zone can be as small 

as a mile or as large as 20-plus miles. 

Too, many chemical facilities, as you know, are collocated near 

each other, so the zones actually overlap. So you cannot discount 

those factors. And if an actual incident occurred, wind direction, 

and other factors would determine exactly what part of that vulnerable zone would be affected. 

The best we can do at this point is to say it is in the tens of millions. There are literally millions, but you can’t simply add up all 

of those 15,000-plus facilities and all those concentric circles and 

say that would be over 100 million people. I do not think that is 

a fair estimate. It is somewhere more than 10 million but less than 

100 million, probably, but it is hard to say exactly. 

Chairman COLLINS. Thank you. 

As we have heard, the industry should be commended for taking 

steps to come up with voluntary codes to try to improve security. 

For example, the American Chemistry Council has developed the 

Responsible Care Program; the National Association of Chemical 

Distributors has the Responsible Distribution Process; and these 

programs are very good, but they are also voluntary. 

27

It seems to me that we could take three different approaches to 

the problem of chemical security. First, we could work with industry to encourage broader acceptance and compliance with voluntary 

codes. Second, we could rely on state-to-state regulation. Some 

States are acting in this regard. And, third, we could provide very 

clear statutory authority and a framework for DHS to implement 

a security program and to also include a preparedness component, 

which many of you have mentioned as essential. So we could rely 

on voluntary action; we could wait and see if the States do something; or we could pass Federal legislation. 

Dr. Falkenrath, starting with you—but I would like to get everyone’s views on this—which of the three approaches do you recommend? 

Mr. FALKENRATH. Federal legislation, no question. I think the 

voluntary measures that some chemical corporations have taken 

are good. I am glad that they are doing it. The state-to-state approach, I think, is unlikely to work, primarily because the States 

that have the largest risk exposure also have the largest economic 

dependence on this industry, by and large. And I think you would 

get a sort of patchwork of protective regimes around the country 

that would not necessarily correspond to the real risk. Also, the 

States are not really who the American people think are responsible for protecting them against a catastrophic terrorist attack. 

People think the Federal Government is responsible. And I think 

that is right. 

So I am left with the need for a sort of nationwide Federal approach. I am also impressed with the arguments that have been 

made that the chemical industry deserves a level playing field and 

they need to know they have a common framework for the sort of 

expectations that our country places upon them and how to handle 

their inherently dangerous technology. 

Chairman COLLINS. Dr. Flynn. 

Mr. FLYNN. As my testimony makes clear, I guess I am for option 

three, for a couple reasons, whichI will flesh out quickly. 

One is this industry is probably one of the most fragmented industries as it relates to any of our critical infrastructure. Wide 

gaps between very big responsible players and lots of very small 

players in the system. And so the voluntary approach has huge 

challenges with both industry talking to itself, because it really is 

not a unified industry of a handful of players, it is really a very 

much tiered system with small players working on the margins, so 

it makes a voluntary approach very problematic. 

On the State issue, the biggest competitive pressure on the 

chemical industry which has made it very difficult for them to embrace new security is international competition. And so a state-bystate approach that creates a patchwork quilt of requirements 

where some States have a lower bar and, therefore, are competing 

better than other places that are setting the bar too high, clearly 

is problematic, which speaks to a broad theme with homeland security overall here: Whatever we pursue here, we should be also pursuing overseas as well. We are all vested in this industry, in this 

case because of the loss of life and so forth, but we want to try to 

make sure the level playing field extends beyond just our own jurisdiction dealing with that pressure. 

28

Chairman COLLINS. Ms. Merritt. 

Ms. MERRITT. Yes, in our investigations, we found a wide spectrum of behaviors, and there are companies, good companies that 

are out there going above and beyond what they are required to do 

in managing their chemical responsibilities. Often they are funding 

local emergency planning committees where there is no funding 

that is available through the regulations that now exist. 

But there are also companies that do just what is required and 

others who really are not doing what they are supposed to be doing 

or anything at all. And so I think it is the companies that will not 

be either safe or secure without stronger Federal oversight and enforcement that we are concerned about as well. I think Federal 

unity here and oversight is what is going to be required. 

Chairman COLLINS. Mr. Stephenson. 

Mr. STEPHENSON. As we said 2 years ago, I think the risk of this 

sector warrants heavy Federal involvement, although we do not 

think those options are necessarily mutually exclusive. For example, ACC, who has 1,000 of the 15,000 facilities, the Responsible 

Care Initiative is very good. So I would expect any Federal legislation would give them credit for that and, indeed, recognize that. I 

still think that while they do third-party verification, some Federal 

oversight of that verification is probably warranted as well, again, 

because of the high risk of this particular sector. 

Chairman COLLINS. Thank you. Senator Lieberman. 

Senator LIEBERMAN. Thanks, Madam Chairman. I apologize to 

you and the witnesses. I had to go to another event. But I was able 

to read your testimony as submitted prior to the hearing. 

Chairman Merritt, I thought your testimony was very powerful 

and your description of the alarming instances of poor operation 

and maintenance of safety equipment or procedures at chemical facilities, leading to dangerous accidents. And I heard you say that 

some of the problems that caused and exacerbated the Bhopal tragedy are, in fact, replicated in our country today. 

I wanted to ask you how you would personally explain the failure 

of these facilities, chemical facilities, to implement better safety 

precautions. 

Ms. MERRITT. Well, I think what we find in many instances is 

a lack of third-party oversight. This is one of the reasons, I think 

Federal oversight for some of these facilities is really necessary. 

Some of them do not even know what the regulations are. There 

is poor design, poor maintenance of equipment that they do have, 

and as a result, these are the ones we are investigating. 

There are good companies out there that are doing good things. 

But, OSHA has lists of companies and lists of industries that they 

investigate. And then there are others who we have found are 

never visited by an OSHA inspector. And I know that OSHA has 

resource restrictions, EPA has resource restrictions, but I think 

that in this particular matter, this is certainly something that the 

Committee should look at to see where the authority and resources 

are for oversight for the implementation of these regulations that 

are already on the books. 

Senator LIEBERMAN. That is a very good point. The next question 

I was going to ask you I believe you answered in response to Senator Collins, but just to make it clear. I presume from what you 

29

have seen that you would say that though there is clearly a role 

for voluntary measures by the chemical industry to enhance security, that is not enough, that we also need some clear government 

involvement here as well. 

Ms. MERRITT. Yes. What we have seen is even where there are 

regulations on the books that are managed by OSHA and other 

people, we constantly investigate sites where there has been little 

implementation of regulations on the books and little oversight 

from third parties, either at the State or the Federal level, that 

would assure that these facilities are safe. 

Unfortunately, those are the ones that we are investigating, so 

I do think there is a reason for a more unified oversight requirement for the implementation and management of these regulations 

to protect the public. 

Senator LIEBERMAN. You are making a very important point, I 

think, which is not just to the point that some of us feel strongly—

Senator Corzine obviously—that we need additional—we need new 

legislation to protect people from the risk of terrorist attack and accidents at these chemical facilities, but there is not adequate implementation of existing law and regulation to protect. And I take that 

seriously. 

In your testimony, you say that in some cases you found first responders who lack adequate equipment and training to respond to 

chemical accidents. What have you found generally with respect to 

the training and equipment that first responders have to deal with 

chemical accidents? In other words, you site some problems of real 

inability, but generally speaking, if you are asked what is the status of preparation of first responders in this country to deal with 

chemical accidents or terrorist attacks, what would you say? 

Ms. MERRITT. Well, I think it is a multifaceted approach like the 

group that responded in St. Louis, they had appropriate equipment 

and they had trained to respond to a chlorine release, but they had 

never trained at this facility. So when the event occurred, the allvolunteer hazmat team arrived at the site, but the equipment was 

at the other end of the site, and it took them several hours to be 

able to get together with their equipment because they had never 

practiced there. 

So there are many different things that are part of this—fire departments who have never been to facilities to know what actually 

exists there. Those are the types of reasons that I think a coordinated approach needs to be enacted. 

Senator LIEBERMAN. You may know that Senator Collins and I 

were successful in amending the budget resolution in the Senate to 

restore a considerable amount of funding, I guess about $550 million, for the coming year for first responders, and obviously we 

have to make sure the money is well spent. But you point to a very 

urgent need which will not be met unless we give the first responders money. Then once we do that, we have to help them use it for 

that purpose. I thank you. 

Mr. Falkenrath, I know that you have said that security legislation should not be a back door for safety regulation, and in this, 

as in so many areas, it is, I suppose, what is in the eye of the beholder, but also where you draw the line. I agree that we should 

not use this concern that we have about security, homeland secuVerDate 0ct 09 2002 14:54 Nov 30, 2005 Jkt 021435 PO 00000 Frm 00033 Fmt 6633 Sfmt 6601 C:\DOCS\21435.TXT SAFFAIRS PsN: PAT
30

rity, to be a back door for a lot of environmental, uniquely environmental legislation or regulation; but, on the other hand, it just 

seems to me it—isn’t it common sense to encourage the chemical 

industry to do the kinds of things that will enable them to essentially reduce the attractiveness of their facilities as a target for terrorism? In other words, if they can do something that they need to 

do in their business in a way that is less potentially catastrophic 

if an attack occurs, isn’t that worth trying to do? 

Mr. FALKENRATH. Yes, Senator, I think it is. But it is a question 

of regulatory design. And as I lay out in my written statement, I 

think that there should be a system of tiers of chemical facilities 

based on the risk they present of a deliberate terrorist attack. And 

if the facility owners decide on their own that they want to modify 

their business practices to get into a lower tier which would have 

a less onerous security requirement, they should have the opportunity to do that and apply for reclassification. 

So that is what I mean by a market-based approach to changing 

business practices and adopting less dangerous, less unsafe business practices. 

Senator LIEBERMAN. And the tier you are in would be determined 

by how serious the consequences of an attack would be. 

Mr. FALKENRATH. It would be several different things: How serious the consequences would be, what chemicals are present, what 

is the toxicity of the chemicals, what is their proximity to population density. Those are the things that you would expect the Department to design and to do so sensibly based on analytically 

sound criteria. 

Senator LIEBERMAN. So I guess my question is—and this is all 

at a general level, so we have to see the details—whether this is 

an area where the market is sufficient to encourage people in the 

industry to take the steps necessary to reduce the risk, without us 

either creating greater incentives or mandating something of that 

kind to occur. 

Mr. FALKENRATH. At the moment it appears to me, Senator, it is 

not sufficient, by and large. 

Senator LIEBERMAN. Yes. 

Mr. FALKENRATH. But I think an appropriately designed regulatory regime could create those incentives so that they would then 

voluntarily, if it made sense for them, decide to adopt safer business practices. If it is switching from gaseous chlorine to a salt 

form for water——

Senator LIEBERMAN. That is the perfect example. 

Mr. FALKENRATH. But not to give the government the power to 

order them to do that, but to set up an incentive structure that allowed them, on the basis of their own business model, to make the 

decisions if it made sense. 

Senator LIEBERMAN. Mr. Flynn, do you have an opinion on that 

one? I should say ‘‘Dr. Flynn.’’

Mr. FLYNN. Thank you, Senator. It is an honor to be with you 

here. 

Senator LIEBERMAN. Nice to be with you. 

Mr. FLYNN. On one part, safety versus security, a big message 

that I try to push on security is the way you keep people vested 

in it is if it serves another purpose. So if many of the things that 

31

you do for safety will help for security—and so you don’t want to 

get into a splitting hairs problem here. 

Senator LIEBERMAN. Right. 

Mr. FLYNN. What we are really, I think, dancing around is a notion of a 1960’s-style OSHA Federal oversight with its well deserved reputation of nitpicking regulation versus some of the 

things that Dr. Falkenrath is laying out as a regulatory framework 

but where we find incentive systems to get people to want to get 

to the desired behavior. I am an advocate of this latter approach, 

but it has to be a framework that is required. There has to be a 

compliance—an audit system, a compliance system with sanctions 

to level the playing field so folks will start to adopt the requirements. 

It is clear, 31⁄2 years out, virtually nothing is happening besides 

trying to put together best practices and model codes, and so this 

is something we need to deal with with a lot greater urgency. 

Senator LIEBERMAN. I agree with what you have said and also 

the sense of urgency. The record shows, as all of you have said, 

that not enough is being done and that there is a clear and present 

danger, and we have to do whatever we can in this session of Congress to drive much more comprehensive steps to protect people 

from the consequences of attack or accident. 

Thanks, Madam Chairman. My time is up. 

Chairman COLLINS. Thank you. Senator Lautenberg. 

Senator LAUTENBERG. Thank you, Madam Chairman. I think this 

was an exceptionally productive hearing, and I commend you for 

doing that. It was rather a chilling experience to listen to these 

people with the experience that you bring to the table and just 

sound the alarm in the way that you have. 

I was the principal driver on the right-to-know law in 1986, and 

I got that inspiration from the State of New Jersey’s own right-toknow law. And we found one thing: That despite the fact that there 

were no penalties really, because what was asked was reporting, 

and the companies, in their desire to be good citizens, had substantial reductions in toxic emissions, some as much as 90 percent. And 

that was a real lesson for me to see that given an impetus—and 

I am not one who believes only in the carrot. Sometimes a stick is 

necessary. But we are now in a situation without any harmful design by anybody, unintentionally maybe, zoning requirements, but 

we are where we are. And as has been said, the materials that are 

used are an integral part of the way we structure our living, not 

just economically but culturally, etc. 

So when we look at something like the threat posed by this 

South Kearny location, as we say, as many as 12 million people 

could be harmed, what do we do about that? Has anybody got any 

suggestions? Should the government come in and put up high 

walls? You cannot do it. What could be proposed as a way to deal 

with problems, potential problems of this magnitude? Any volunteers? 

[No response.] 

OK. Well, going on to the next question. [Laughter.] 

Shortly after the September 11 attack the Blue Plains Sewage 

Treatment Plant in D.C. switched from the use of explosive chlorine gas to harmless bleach. Now, the use of safer substitutes is 

32

also one of the provisions of Senator Corzine’s bill. Did the GAO 

assess this option? 

Mr. STEPHENSON. No. There is a lot of popular support for inherently safer chemicals, but we did not specifically assess it. I was 

actually at Blue Plains and saw the results of a chlorine gas leak. 

It destroyed a 100-year-old oak tree, so the devastation that it 

could cause is very real. But there are obviously types of chemical 

processes and chemicals that do not lend themselves to inherently 

safer alternatives without extreme investments in production costs, 

etc. 

I think the vulnerability assessment and risk mitigation and 

rapid response planning approach offer the most promise—I should 

point out since nobody answered your former question, that the 

Community Right-to-Know Act actually went a long way toward 

helping citizens prepare by knowing what chemical facilities and 

what hazardous facilities were in their area, and what they should 

do in the event of a chemical release. 

Senator LAUTENBERG. That was induced by a fire that took place 

in the city of Elizabeth, and when the firemen responded the coats 

that they were wearing, the protective gear they thought, virtually 

melted under the chemical reaction that was caused by this fire, 

and said, wow, there is something terrible out there. So we worked 

with the firemen and fire departments, and we fashioned the bill, 

and again, it was very productive in reducing the toxic emissions. 

Where can we go to remind chemical facilities to switch to safer 

chemicals when they are available? Again, trying to keep government from intruding too much in the business sense, but what is 

our obligation to say to companies that you ought to be looking at 

safer materials, can you accomplish the same objective, same pricing, etc.? 

Mr. FLYNN. Senator, I think with the fact that we are dealing 

with a core element of our security, then there is certainly legitimately a call on some Federal resources to help with this problem. 

I think there is an element of RMP that the government can sponsor and support so that we can vet what really are productive practices and get that out and about, and then clearly you can look at 

tax revenue kinds of enhancements, adopting tax credits, migrating 

towards one sort of technologies versus another, that you are confident will in fact assure greater safety and security for the people. 

There is almost a classic case study with a company, like with 

DuPont making a decision almost 50 years ago that the way they 

will maintain their competitive advantage will be that they will be 

the safest chemical company on the planet. What they discovered 

were enormous savings from reducing the cost of the amount of 

goods that they stored, the decline in accidents, and employee 

workmen’s compensation, so they ended up adopting incredibly efficient practices by basically making safety their focus. 

There is enough overlap here in many instances where security 

practices work where it is not necessarily that it will put you at 

a competitive disadvantage. What we have in this industry is a lot 

of marginal players who are operating on the fringe of modern industrial practices, and you are probably going to have to make 

some hard political decisions about whether or not they can continue to operate if they are dealing with very dangerous subVerDate 0ct 09 2002 14:54 Nov 30, 2005 Jkt 021435 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 C:\DOCS\21435.TXT SAFFAIRS PsN: PAT
33

stances. That is where it will probably get politically very tricky is 

when you get down to these very small companies who really cannot survive but by breaking the rules, and then you are talking 

about employment and other kinds of issues here. But they are, 

again, they are a sitting weapon of mass destruction. 

That is really what we have to see in a post-September 11 world. 

That is the reality and we have to figure out how we muster resources and devise incentives to get that number under control, 

just as we are trying to run around over in Russia and elsewhere 

to try to get this under control. We have our own house to get in 

order. 

Senator LAUTENBERG. Yes. You gave us a striking example of 

how to view these things when you described 15,000—let us call 

them weapons of major consequence—sitting around the country. It 

is a shocking revelation. Nevertheless it is true. And we have not 

seen it—as bad as the battleground results have been, when one 

attack on September 11 had a far higher casualty rate than anything we have seen, with thousands and the hundreds of thousands 

of people employed in the war theater. So we have to pay attention 

to these things. 

I hope, Dr. Falkenrath, that we can stimulate some activity with 

EPA. They had the authority to regulate a lot of these chemicals 

and it did not happen. The White House did not push it, as you 

said, and we have to find a way to get these things to a more urgent platform so that things do happen. 

Thank you very much, Madam Chairman. Thank you all. 

Chairman COLLINS. Thank you. Senator Levin. 

OPENING STATEMENT OF SENATOR LEVIN 

Senator LEVIN. Thank you, Madam Chairman. 

I want to just go into the incentives question a little more. If I 

missed this, forgive me. One incentive is a positive tax incentive of 

some kind, which I assume already exists, to put in safety equipment or safety measures. These deductions already exist. Are you 

suggesting there be tax credits instead of deductions? Is that a tax 

incentive which would be greater to install the safety equipment? 

Mr. FALKENRATH. I guess I am probably not in really a position 

to drill down too far on that, Senator, but obviously we are trying 

to create a marketing incentive—recognize security is a public 

good—to adopt practices that mitigate the consequence if something happens at the plant. So I would say ideally if you want to 

stimulate it quicker, it is a tax credit for doing A, B, or C. Whether 

you talk about tax deductions or not, I guess will depend on the 

facility whether that is an incentive enough for them to move forward. 

Senator LEVIN. Dr. Falkenrath, the question of the mandates 

which need to be there in order for the market to work, that is an 

unusual balance just to state it that way. You need the mandate, 

you either have to install security equipment or if you do not install security equipment, then what? 

Mr. FALKENRATH. Then you will be subject to civil or criminal 

penalties, and effectively be put out of business or thrown in jail. 

Senator LEVIN. So is that what you call market based? [Laughter.] 

34

Mr. FALKENRATH. Yes. [Laughter.] 

Chairman COLLINS. A powerful market incentive, jail. 

Mr. FALKENRATH. This is an area where I disagree with Steve. 

I do not think there should be incentives to do this. What we have 

here is an industry with a security externality, that they are not 

internalizing, and the role of the government should be to force 

them to internalize the external cost of securing their inherently 

dangerous systems, and that is what we should be doing. 

I would prefer to do that in a standard setting way that recognized differentials in risk and also had graduated security requirements as you moved up the ladder of risk, that forced companies 

to make their own cost benefit calculations of either complying with 

the standard or modifying their business practices in such a way 

that got them into a lower tier with less onerous standards. Failure 

to comply at any level in the schedule, you would have a schedule 

of civil and criminal penalties. 

Senator LEVIN. I think it is different from what we usually call 

market-based incentives around here. 

Mr. FALKENRATH. The reason I call it market-based is the companies have the opportunity to decide. If they wish to comply with the 

Secretary of Homeland Security’s standard for their level or risk, 

or modify their business practices in such a way that lowered the 

level of how onerous the security requirements were. That is why 

I think of it as market-based. 

Senator LEVIN. Well, comply or modify is one and the same thing 

because compliance means modification. 

Mr. FALKENRATH. To put it in concrete terms, and make it sim- ple, if it was a choice between spending $10 million installing a 

new access control system and background checks and fences and 

the rest, or $8 million changing your business model to a less dangerous form of chlorine, then the board would have the choice to 

make the decision. 

Senator LEVIN. But the government would mandate that you 

have got two choices. 

Mr. FALKENRATH. Right. It would follow from the schedule, the 

sort of tiers of risk. 

Senator LEVIN. Thank you. 

The only other question I have has to do with the difference between the situation where you are prioritizing risks based on probability and severity of an incident where you are dealing not with 

accident, where I think you can more traditionally look at likelihood, probabilities, and where you are dealing with an intentional 

terrorist act and the difference between assessing probabilities and 

risk under those circumstances and the kind of models that are appropriate when you are dealing with a coordinated intentional terrorist attack, seems to me very different from the usual models 

which we look at. I do not know if anyone wants to comment—

maybe you already have commented on it, in which case that would 

be fine. We will just rely on my staff and on the record. But if you 

have not commented on that difference and would like to, I could 

just start with anyone here. 

Mr. FALKENRATH. Senator, I completely agree that you cannot 

apply normal cost benefit calculations or risk management calculations to deliberate actions by a strategic thinking adversary. Their 

35

actions and their tactics are not statistically patterned like accidents are or hurricanes are or the rest. 

So the assumption you have to make is they are trying to find 

the ways to hurt us the most, and our job, it seems to me, is to 

figure that out before they do and take action in those areas. 

Mr. FLYNN. If I might add, Senator, I mean this is the biggest 

concern I have overall with the approach we have right now, which 

is to say we have a threat-based risk management approach. Fundamentally, threat-based requires the underlying intelligence to 

tell you where, when and how they are going to act, and then you 

raise your protective measures. We do not have that intelligence. 

We are not going to have it for probably 10 to 15 years. We know 

how badly things are broken on the intelligence side. 

So that forces us to have to consider what would be, if we were 

the terrorists, the most likely targets? And so I add to it not just 

generating mass casualties but also proximity to critical infrastructure. And typically in ports you get all of the above. But basically 

we are talking about would we bring down not just loss of life or 

bring down fundamental systems that run our way of life? 

Final point I would make here, I am very concerned that in fact 

one of the outcomes of what is happening in Iraq is it is becoming 

a proving ground for learning how to do critical infrastructure sabotage. In Afghanistan these folks learned how to be warriors. Afghanistan was virtually in the stone age so there was not much infrastructure to attack, but now we know the evolution of that tactic 

is to go after power grids, go after pipelines, go after transportation 

assets and so forth. That skill set is being honed. Even if things 

turn out well, these folks return back to their original countries, we 

will have problems here. 

So infrastructure best be looked at. We need requirements that 

really treat this with much more urgency than we have been dealing with it to date. 

Ms. MERRITT. I would just like to add that when all of that fails 

because you have a thinking, planning opponent, the last resort of 

protection for your public is preparedness, to be able to know what 

to do, shelter in place, know how to evacuate, and have emergency 

responders who are trained and properly equipped. And working 

together with all the resources of the region in order to address 

something that would be worst case is the last measure of protection for the public to survive such an event. Just for the public to 

know what they should do in order to protect themselves like you 

do in a tornado or a hurricane. What are the steps that are taken? 

What we find is people just do not even know that. They do not 

know and understand what the difference between shelter in place 

or evacuation is, or what any of that means. That is a basic fundamental need that we have in this country that I think is a last line 

of defense in protecting our population from the catastrophic impact of a terrorist attack where they intend to kill millions. 

Mr. STEPHENSON. Civil preparedness, as she is mentioning, is a 

big deterrent. You want to reduce the attractiveness of these targets, and one way to do that is by being prepared. 

A big incentive to the chemical industry is not to under go Federal regulation, so what Dr. Falkenrath is talking about, incentives 

to reducing the amount of Federal regulation for plants that are 

36

less risky, therefore you get into inherently safer technologies and 

chemicals and so forth. I have to tell you that any of these 15,000 

RMP facilities celebrate when they reduce the level of chemicals 

that they need to store on site and, thus get some off the RMP list, 

and they therefore no longer have to comply with that requirement. 

That is a huge incentive that is monetary for their business. 

Now, chemical manufacturing plants often cannot do that, but 

lots of other facilities that store and use chemicals can in fact do 

that. 

Senator LEVIN. Thank you. Thank you, Madam Chairman. 

Chairman COLLINS. I want to thank all of our witnesses for their 

excellent testimony today. I think this was a very good hearing to 

start off our series as we examine what is a very complex issue. 

I am convinced that chemical security has not received the attention that it deserves, given the vulnerabilities involved, and with 

your help I am hopeful that this Committee can craft an appropriate response. 

I am inclined to believe, based on the testimony today, that we 

do need strong Federal legislation in this area, but we also need 

legislation that does not put an unreasonable burden on the chemical industry. So we need to strike the right balance. I am convinced that working together, and with the benefit of your expertise, we can achieve that goal. 

I do want to also thank the staff for their work on this issue. I 

particularly want to thank a fellow that we have had from the University of Maine for the past month. His name is Wayne 

Honeycutt. He is a scientist with the Agricultural Lab at the University of Maine. He is completing his month this week, and will 

be returning to Maine, but we thank you very much, Wayne, for 

your contributions to this effort. 

The hearing record will remain open for 15 days for additional 

materials for the record, and the Committee hearing is now adjourned. I thank my colleagues. 

[Whereupon, at 11:57 a.m., the Committee was adjourned.] 

(37)

A P P E N D I X 

PREPARED STATEMENT OF SENATOR PRYOR 

I thank Senators Collins and Lieberman for holding this hearing to address the 

vulnerabilities of the Nation’s chemical industry. All of today’s witnesses will testify 

to the need to better protect the production, transportation, and storage of the 

chemical products that contribute to our high standard of living. It is a dreadful possibility that the very chemicals that we use to save lives and promote health, could 

be used by our enemies against us in a potentially catastrophic attack. 

Therefore, it is incumbent upon this Committee to work with the Department of 

Homeland Security and industry, to promote stronger protection against, and greater preparedness for, a potential terrorist attack on our chemical facilities. National 

standards for security of chemical facilities need to be established. Vulnerability assessments of facilities need to be conducted. Security and response plans need to 

be implemented and monitored. 

I look forward to having the opportunity to hear and question the panels about 

these steps that must be undertaken to secure our chemical industry.

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