Good morning Chairman Inhofe, ranking member Jeffords and Members of the Senate Committee on Environment and Public Works. I would like to thank the Committee for the opportunity to appear before you to discuss the role of inherently safer technology in United States chemical plant security legislation.

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

Our residents live in the shadow of the attacks of September 11, 2001, which claimed the lives of 674 New Jerseyans and transformed our northern waterfront into an evacuation zone. New Jersey also was the launching site for the first major bio-terror attacks on United States soil resulting in fatalities, when a still-unknown terrorist mailed anthrax-laden letters that severely contaminated the United States Postal Service facility in Hamilton, New Jersey. New Jersey’s very strengths create particular vulnerability to acts of domestic terrorism. Our chemical, petroleum and other industrial plants that support the economy of the Nation are clustered around well- developed transportation infrastructure linking the New York and Philadelphia metropolitan regions. The Port of New Jersey and New York is the entry point for more than 4 million cargo containers and 55 million tons of bulk cargo valued at over $100 billion. New Jersey is home to Newark Liberty International Airport – one of the busiest airports in the country serving more than 30 million passengers annually. My state is well-known as the center of pharmaceutical, biotechnology, and other life science industries targeted by violent and extreme animal rights activists. All of these infrastructure sites and more are potential targets for terrorists, and all lie in the most densely populated state in the Union.

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

Overview of New Jersey’s Domestic Security Preparedness Effort

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

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

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

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

New Jersey’s Toxic Catastrophe Prevention Act (TCPA) Program

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

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

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

Chemical Sector Best Practices Standards

New Jersey recognizes that facilities in the Chemical Sector are diverse in size, complexity, and potential for off site impacts to the community and therefore a blanket approach to addressing security concerns may not be practical. The Best Practices represent a risk-based approach to security consisting of a site-specific vulnerability assessment that evaluates threats to a facility’s operation, its particular vulnerabilities and likely consequences of a chemical release, and the physical and procedural security measures already in place. The Chemical Sector Best Practices were predominantly derived from the Security Code of the American Chemistry Council’s Responsible Care program.

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

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

· comply with the Chemical Sector Security Best Practices;

· conduct a terrorism-based security vulnerability assessment; and

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

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

Inherently Safer Technology

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

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

· substituting less hazardous materials;

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

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

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

Compliance with the Standards was required within 120 days of the effective date, March 21, 2006. DEP staff are on schedule to complete inspections to evaluate compliance at all the 157 facilities subject to the Standards by July 31, 2006. Of the total 157 facilities, 45 are regulated TCPA facilities required to perform IST analysis. It is important to note that with the majority of the inspections completed to date, compliance with the Standards has been excellent with a small percentage of exceptions. To date, we have inspected about 100 facilities subject to compliance with the Standards and over half the TCPA universe. In all cases, facilities required under the Standards to conduct IST review have done so. It is expected that Task Force orders will be generated to address any cases where gross non-compliance is determined. I believe that our compliance results clearly indicate that the evaluation of inherently safer technology is not overly burdensome on industry and is an effective tool for critically evaluating the risk reduction opportunities available at a specific facility.

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

While New Jersey is doing its part, we renew our call for federal standards and protections that will reinforce our work, ensure a level playing field for firms operating in New Jersey, and provide equivalent protection from facilities that operate near our borders. The Standards, including the inherently safer technology evaluations, are vital to providing New Jersey with an accurate picture of the current state of preparedness within the Chemical Sector and provide a foundation to move forward with the appropriate actions necessary to safeguard our citizens.

Conclusion

Added federal safeguards in these areas would complement New Jersey’s tradition of strict rules to ensure safety at major chemical facilities and to protect surrounding communities.

But we remain persuaded that both security and interstate fairness would be advanced significantly, and with far less economic impact, if state measures were coupled with a federal framework of regulatory protections. New Jersey is prepared to work with all members of the committee to achieve appropriate legislation to establish that framework. Finally, I must emphasize that given New Jersey’s demonstrated attractiveness as a target for terrorism our State must have the discretion to impose stricter requirements, when necessary, to adequately safeguard our citizens from potential acts of terrorism. Therefore, we strenuously oppose the prospect of Federal preemption in the area of homeland security.