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First in the Nation

New Jersey mandates chemical plant security measures to guard against terrorist attacks

by Lois R. Ember
December 12, 2005 | A version of this story appeared in Volume 83, Issue 50

Four years have passed since the Sept. 11, 2001, terrorist attacks, and the nation still has no national security standards for chemical plants, considered by the Department of Homeland Security to be prime terrorist targets.

To fill the void, New Jersey-home to a booming chemical industry-has taken unilateral action. On Nov. 29, Acting Gov. Richard J. Codey announced that his state would become the first in the nation to adopt mandatory security measures that 140 chemical facilities within the state must implement. He pledged to work with industry "to ensure that this initiative improves security and emergency response plans at each chemical facility."

New Jersey has been moving incrementally to this point since 9/11, with much consultation with industry but-until now-with little input from union and environmental groups. Less than a month after the attack, the state created the Domestic Security Preparedness Task Force, a policy and coordinating body of relevant state agencies that functions as the state's homeland security agency.

In 2003, that task force approved a set of security best practices for industry that have no force of law and could, if a chemical facility chose, be ignored. Although they didn't have to implement these mainly industry-crafted guidelines, most of the state's major chemical facilities have elected to do so.

Credit: Courtesy of Hal Bozarth
Credit: Courtesy of Hal Bozarth

As Hal Bozarth, executive director of the Chemistry Council of New Jersey (CCNJ), told C&EN before Codey's Nov. 29 order: "We support the best practices." And, he stressed, CCNJ's 72-member companies backed making them requirements if the state believes that is necessary. Although, he added, "we consider them mandates now."

To the contrary, environmental and public health organizations, as well as chemical unions that were excluded from the process that developed the best practices, view them as unenforceable voluntary measures. These divergent interpretations of the best practices prompted the security task force to take steps to make the process of developing best security practices more open and to make them prescriptive.

As Bradley M. Campbell, New Jersey's commissioner of environmental protection, explains, as a first move the state "is taking the legal steps to establish the security practices as regulatory requirements rather than merely recommendations." First, on Oct. 6, the task force approved making the best practices enforceable standards. As required by law, the standards were then signed by Attorney General Peter C. Harvey and by the Department of Environmental Protection's (DEP) Campbell and sent to Acting Gov. Codey for his approval, which he gave the week of Nov. 21.

Codey's announcement of his order on Nov. 29 started the clock ticking. Within 120 days, management at all 140 chemical facilities must provide DEP with a site-specific security assessment of possible vulnerabilities, any hazards that could be exploited by terrorists, and the likely consequences of a terrorist attack.

Credit: Courtesy of Bradley Campbell
Credit: Courtesy of Bradley Campbell

As might be expected, the standards have not been universally praised. The New Jersey Work Environment Council (NJWEC)-an alliance of 70 labor, community, and environmental organizations-"commended" the issuance of the mandatory measures as "an important first step." The industry group CCNJ, however, contended that "the prescriptive order [adds] requirements that have little to do with security" and, according to CCNJ's Bozarth, tacitly dismisses the security measures that industry has already put in place.

Gov.-Elect Jon S. Corzine, New Jersey's current Democratic senator, also applauded the order as "an important step forward." Corzine has pledged as governor to take additional steps to strengthen the mandatory measures. He is especially concerned that seven of New Jersey's chemical facilities are located near densely populated areas and that a terrorist-caused catastrophic chemical release from any one of these could endanger more than 1 million people.

Codey's order roughly parallels chemical plant security legislation that Corzine has been trying over industry opposition to get Congress to adopt for the past five years. The best that Corzine has been able to achieve is the insertion of language endorsing mandatory security requirements at chemical facilities and calling for enforceable standards into the 2006 Department of Homeland Security appropriations bill, which Congress passed.

Undeterred, Corzine is now working with Sens. Susan M. Collins (R-Maine) and Joseph I. Lieberman (D-Conn.), respectively chair and ranking member of the Senate Homeland Security & Governmental Affairs Committee, to draft legislation that would mandate security standards at chemical facilities.

From the state's perspective, Codey's order implements measures that the New Jersey Senate has tried but failed to pass.

Codey's order requires plant management to develop and share with Campbell's DEP an assessment of facility vulnerabilities and hazards that terrorists might exploit. To be included in this assessment is a prevention, preparedness, and response plan that charts, among other things, a facility's progress in implementing the best practices.

Since September 2003, New Jersey has had several hundreds of pages of state-approved, but largely industry-crafted, plant security guidelines dubbed best practices. These security practices "are loosely based" on the American Chemistry Council's (ACC) Responsible Care security code, says CCNJ's Bozarth. DEP's Campbell acknowledges that the Responsible Care security code "provided the essential building block for our first round of best practices."

Another of the order's prescriptive requirements calls for greater worker and union input into identifying plant security risks and proposing prevention measures, says NJWEC Director Rick Engler. Workers and union representatives will now also be involved in the development of mandated response plans that are part of the assessments, he adds.

Perhaps the order's most controversial measure concerns requirements for the use of inherently safer technology. As part of their vulnerability assessments, 43 of the 140 facilities that are covered by New Jersey's 1986 Toxic Catastrophe Prevention Act must review the potential of adopting inherently safer technology. Among the steps that these facilities must assess is the feasibility of reducing the amount of toxic material that could be released in a catastrophic attack, the possible substitution of less hazardous materials, and process changes to minimize potential equipment failure and human error.

Campbell explains that the state believed that the latter two issues-worker participation and evaluation of inherently safer technology-were "actually required under the best practices." But, he says, "not enough has been done" in those areas by industry, so they were included in the order as "explicit requirements."

Unrelenting criticism by groups such as Engler's that the best practices-which formed the basis for the standards-were developed behind closed doors and with only chemical industry participation prodded Campbell to open the process to public scrutiny.

To that end, Campbell held a public hearing on Dec. 1, seeking comment on how the best practices could be strengthened and on "what additional security requirements should be in place at chemical facilities." Campbell tells C&EN that his department was particularly interested in following up on the requirement that 43 facilities evaluate inherently safer technology by soliciting comments "on whether and to what extent New Jersey should adopt inherently safer technology" for chemical plants.

Credit: Courtesy of Rick Engler
Credit: Courtesy of Rick Engler

Before the hearing, NJWEC's Engler told C&EN that he would comment on the complex and redundant nature of the best practices, which he describes "as industry gobbledygook." He said he would stress his group's support for the adoption of inherently safer technology. And, he would also stress the need for even more "meaningful worker and union participation and public accountability" than Codey's order calls for.

Bozarth told C&EN that he would testify to the importance of the best practices and to industry's support for them. And he said he would make the point that facilities such as paint manufacturing companies that are listed as chemical companies under a Standard Industrial Classification (SIC) code should not be covered by prescriptive security standards. "Chemical plant security should not be mandated for companies that clearly are not terrorist threats," he explained.

The main issue that Bozarth expected to discuss at the hearing was industry's strong opposition to the imposition of inherently safer technology. "We don't think that's a security-related issue. We think that's an old environmental issue," he said.

"I guess the rhetorical question for inherently safer technology is, 'For whom?'" Bozarth said. "We don't believe the state gains from recommending or mandating that companies change their raw materials or how the raw materials arrive at a site, for example. That just shifts the risk burden from one population set to another."

The chemical industry believes that it would be unworkable and counterproductive for government to mandate the types of feedstocks, inputs, and processes that facilities must use. It would also be redundant because ACC member companies are required under the Responsible Care security code to consider inherently safer approaches when evaluating security.

Industry faces an uphill battle in New Jersey on the issue of inherently safer technology. Gov.-Elect Corzine strongly supports such approaches, and he committed during his election campaign to developing comprehensive mandatory safety and security measures for the chemical industry.


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