Chemical industries are crucial components of the national economy and the infrastructure of the United States. This $550 billion industry employs nearly 900,000 people and touches 96% of all manufactured products.

 

Congress has long been concerned about releases of hazardous chemicals from industrial facilities and has enacted several statutes to help prevent such releases and to improve preparedness and response capabilities.

 

Programs to protect the health and safety of workers, the public, and the environment by reducing the potential for accidental releases of potentially dangerous chemicals, including the consequences of worst-case releases of those chemicals, are in place as required by numerous Federal and State laws.  However the events of September 11, 2001, demonstrated the need to ensure that appropriate security measures are taken to address the threat of acts of terrorism against facilities that manufacture, use, or process potentially dangerous chemicals.

 

The Bush Administration has made a determined effort to protect our nation’s critical infrastructure against terrorists who aim to harm us.  Congress, too, has acted by enacting into law the Marine Transportation Security Act, the Bioterrorism Act, and a comprehensive nuclear security package that originated from the EPW Committee.  Congress also created the Department of Homeland Security vesting it with power and authority to protect the nation’s infrastructure.  DHS has worked diligently and quickly to address the nation’s security issues.  In the chemical sector, DHS has deployed teams of counter terrorism specialists to each identified high-risk chemical facility to work with management, local first responders and law enforcement, states and other federal agencies to assess and address security needs.  DHS has also created several tools to help all chemical facilities regardless of whether they represent high-risk locations.  These efforts all mean that chemical facilities are more protected and that we are all indeed safer.   

 

Late last year, the Congress passed the Department of Homeland Security Appropriations Act of 2007 (Public Law 109-295).  Section 550 of the conference report contained provisions requiring the Secretary of Homeland Security to issue interim final regulations by April 6, 2007, establishing risk-based performance standards for the security of chemical facilities and required vulnerability assessments and the development and implementation of site security plans for chemical facilities that present high levels of security risk.  I was pleased to support these chemical security provisions included in the DHS appropriations conference bill because I have always supported reasonable chemical security legislation without including extraneous environmental provisions or provisions designed to place mandates on how companies manufacture their products requiring facilities to switch the chemicals they use or change their operating practices.  Each time the EPW Committee attempted to move legislation, we were sidetracked by the insistence of some that any such legislation must include allowing DHS to mandate inherently safer technologies (IST).  The environmental based concept of inherently safer technologies dates back more than a decade when the extremist environmental community was seeking bans on chlorine, the chemical that is used to purify our nation’s water.  It was only after the attacks of September 11^th that these environmental organizations determined to repackage IST as a panacea to all of our security problems when in reality it is more about increased chemical regulation.

 

I am deeply troubled by efforts last week in the House to reverse the progress made last year.  Last week, the House Appropriations Committee included language in the Iraq emergency supplemental appropriations bill to significantly weaken the reasonable protections provided in last year’s DHS appropriations bill.  While the House Appropriations Committee left in a provision allowing companies to choose their own means of compliance, the House language would allow DHS to veto a security plan based on technology or chemical choices, therefore mandating IST and nullifying chemical plant compliance flexibility.   

 

The House Democrats who claim to want to protect the American public have in fact put them more at risk.  By classifying information from vulnerability assessments and site security plans as SSI, or sensitive security information, and allowing third party lawsuits for noncompliance, the House Democrats have given the terrorists permission to walk into Court and demand information that DHS believes is too sensitive to release.  Under this proposed language we will soon give the terrorists blueprints to all the nation’s chemical plants.

During consideration of the Department of Homeland Security Appropriations Act of 2007, legislative debate centered not only on the necessary components of risk-based performance standards and vulnerability assessments, it also focused on the preemptive effect to state law of the chemical security regulations required by Section 550.  On September 28, 2006, a debate among a bipartisan group of Senators, including Senators Voinovich, Pryor, Warner, and Domenici, all agreed the intent of the language in the conference report was implied preemption of any state legislation on chemical plant security.  The Senators recognized the importance of a single and integrated set of comprehensive standards, as required by Section 550, being vital to the chemical industry and vital to national security.   The newly-proposed House language explicitly removes DHS’ ability to preempt state laws in matters regarding national security.

 

It is important to note what the DHS advance notice of rulemaking says about preemption.  It simply reserves the Secretary’s ability to preempt if a request is made and the Secretary finds that a state law, administrative order or Court order would make compliance with both the State law and DHS requirements not possible or if the state law would present an obstacle to or frustrate the purposes of the final DHS rule.  It does not give the Secretary carte blanch authority to preempt any and all state security statutes. 

 

The language enacted by Congress less than six months ago provides thoughtful solutions to protect these facilities and their surrounding communities from terrorist attack, without imposing environmental standards or jeopardizing sensitive information.  DHS has just begun the process of implementing the language from the DHS appropriations bill and will publish its final interim regulation by April 6, 2007.  Given these circumstances, I believe it would be premature to enact new legislation before DHS has been able to complete the regulatory process, and before industry is able to update their security programs to reflect the will of Congress.

One final note about the importance of Section 550 is its recognition that municipally owned and operated water and wastewater facilities are different than privately and investor owned chemical facilities.  The Nation’s drinking water and wastewater systems are arms of local government, not for-profit industries. We in Congress recognized the fundamental difference between the for-profit private sector and local government entities when we passed the Unfunded Mandates Act. To have included water utilities in this language would have imposed an enormous unfunded mandate on our local partners in violation of that Act.

 

Many here in Washington assume that local governments need to be forced to protect their citizens. As a former mayor, I can tell you that is simply not true. Local water utilities have been making investments in security consistently since September 11^th and continue to do so.  I have offered a bill on wastewater facility security that provides tools, incentives and rewards, not mandates, for local governments to continue to upgrade security.  My legislation passed the EPW Committee last Congress with a bipartisan vote and a second time by voice vote.  However, each time the then-minority objected even to its consideration because they do not trust our colleagues at the local level to care as much about their constituents as we do ours.   

 

Again, this is an important topic, and I welcome the opportunity to hear from so many residents of the State of New Jersey on the importance of chemical security legislation to them.