SPECIAL COMMITTEE ON HOMELAND SECURITY 2005 Annual Report 1

Transcription

1 SPECIAL COMMITTEE ON HOMELAND SECURITY 2005 Annual Report 1 I. HURRICANE KATRINA Certainly the seminal event in 2005 concerning homeland security issues has to be Hurricane Katrina. The storm, which slammed into the Gulf Coast on August 29, 2006, created wide-spread devastation exasperated by levee failures in New Orleans. Katrina created massive environmental challenges in the immediate aftermath and the recovery, affecting more than sixty chemical plants, petroleum refineries, and petrochemical storage facilities in New Orleans and the surrounding parishes alone. 2 Katrina disrupted the supply of gasoline and diesel fuels nationwide by forcing refineries offline, damaging or destroying oil drilling platforms in the Gulf of Mexico, and shutting down pipelines. Katrina caused the Environmental Protection Agency (EPA) to issue waivers of the low volatility requirements for conventional and reformulated gasoline during the summer and of the 500 parts per million limitation on sulfur content in diesel fuel through September 15, In conjunction with Centers for Disease Control (CDC), Agency for Toxic Substances and Disease Registry (ATSDR), Louisiana Department of Environmental Quality (LDEQ), Louisiana Department of Health and Hospitals (LDHH), and the Federal Emergency Management Agency (FEMA), the EPA conducted extensive testing and monitoring of floodwaters, sediments and air quality in the New Orleans area. While average contamination levels of floodwaters were below levels of concern for short-term dermal contact and incidental ingestion and ambient air quality samples were below levels of health concern, fecal coliform bacteria, and petroleum hydrocarbon levels in the sediments exceeded health screening values. There were also some localized areas with levels of arsenic, polynuclear aromatic hydrocarbons, and diesel and oil range organics that exceeded both LDEQ and EPA risk criteria for long-term residential exposure. These levels prompted the EPA to issue precautions for exposure to flood water, potential hazards when returning to homes and businesses, and dealing with debris and damaged buildings. The EPA continues to monitor conditions in the Gulf Coast. 4 In addition to its environmental impact, Katrina created controversy over the Federal government s response to the storm. Much of the criticism over the delays and adequacy of the response was aimed at Michael Brown, Under Secretary for Emergency Preparedness and Response and Director of FEMA. On September 9, 2005, Brown was relieved of daily direction of the hurricane relief effort and replaced by U.S. Coast Guard Vice-Admiral Thad Allen. Mr. Brown resigned on September 12, 2005, and President 1 This report was prepared by Charles E. Wagner, Jr. at Blank Rome LLP in Washington, D.C. 2 Kim Chipman, New Orleans Environmental Nightmare Slows Gulf Coast Recovery, BLOOMBERG, Sept. 16, 2005, =ahp2kihyeka4&refer=us. 3 See, LAWRENCE KIMINS & ROBERT BAMBERGER, CONGRESSIONAL RESEARCH SERVICE, OIL AND GAS DISRUPTION FROM HURRICANE KATRINA AND RITA (2005), available at See also EPA, NATIONWIDE FUEL WAIVER ISSUED TO BOLSTER FUEL SUPPLIES (Aug. 31, 2005), available at 4 EPA, ENVIRONMENTAL ASSESSMENT SUMMARY FOR AREAS OF JEFFERSON, ORLEANS, ST. BERNARD, AND PLAQUEMINES PARISHES FLOODED AS A RESULT OF HURRICANE KATRINA (2005), available at ldeqdec9e_env_asses_sum.pdf. 364

2 Bush appointed R. David Paulison as the Acting Director. 5 Former Director Brown has testified before Congress twice since his resignation, defending his performance and blaming the Department of Homeland Security (DHS) for marginalizing FEMA and diminishing its response capability. A number of Congressional investigations into the response of the federal, states, and local governments were underway at press time. II. MAJOR GOVERNMENT CHANGES On July 13, 2005, DHS Secretary Michael Chertoff announced several organizational changes as a result of an evaluation of the department s structure, operations, and policies the so-called second stage review. The evaluation was the first such review since the DHS was created more than two years ago. The changes include: (1) designation of the assistant secretary for information analysis as chief intelligence officer; (2) creation of a central policy office led by an undersecretary for policy; (3) creation of a directorate for preparedness led by an undersecretary for preparedness; and, (4) the creation of the position of assistant secretary for cyber and telecommunications security. 6 Stephen Johnson was made Acting EPA Administrator on January 26, 2005, after former Administrator Michael Leavitt was confirmed as secretary of the Department of Health and Human Services. President Bush nominated Johnson, a career employee with more than twenty-four years service at the EPA, to fill the Administrator s position permanently. 7 However, Johnson s confirmation was delayed when Sen. Thomas Carper (D-Del.) placed his nomination on hold, because Carper was dissatisfied with Johnson s response to a request for a detailed analysis of the environmental, economic, and health impacts of the Bush administration s so-called Clear Skies Initiative 8 and competing legislation introduced by Carpers and Sen. James Jeffords (I-Vt.). Ultimately, Johnson was confirmed and sworn in as the eleventh EPA Administrator on May 2, In February 2005, the Department of Transportation (DOT) announced that the Research and Special Programs Administration (RSPA) would be replaced by the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Research and Innovative Technology Administration (RITA). The PHMSA is composed of staff from the Office of Pipeline Safety and the RSPA Office of Hazardous Materials Safety Michael FOrsythe, FEMA s Brown Resigns in Wake of Hurricane Response, BLOOMBERG, Sept. 12, 2005, =arkh7dmbf8ry&refer=top_world_news. 6 Secretary Michael Chertoff, U.S. Dept. of Homeland Security Second Stage Review Remarks (Jul. 13, 2005), available at = Stephanie Rosenbloom, Bush Elevates Acting E.P.A. Chief to Top Job on Full-Time Basis, N.Y. TIMES, Mar. 4, 2005, at 1, available at politics/04cnd-epa.html?ex= &en=7cc0aa40fb24acl5&ei=5090&partner= rssuserland. 8 Clear Skies Act, S. 131, 109th Cong. First Session (2005). 9 JAMES E. MCCARTHY & LARRY B. PARKER, CONGRESSIONAL RESEARCH SERVICE-THE LIBRARY OF CONGRESS, Costs and Benefits of Clear Skies: EPA s Analysis of Multi- Pollutant Clean Air Bills, 1 (2005), available at RL33165_ pdf. 10 Pipeline and Hazardous Materials Safety Administration, and to the Administrator, Research and Technology Administration; Establishment and Delegation of Powers and Duties, 70 Fed. Reg (Feb. 18, 2005) (codified at 49 CFR pt. 1, 49 CFR ch. I, & 49 CFR ch. XI). 365

3 Congress mandated the change in the Norman Y. Mineta Research and Special Programs Improvement Act. 11 III. HOMELAND SECURITY RELATED LEGISLATION While 2005 was marked by the absence of the enactment of any significant homeland security legislation, Congress did extend the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001(Patriot Act). 12 On December 30, 2005, President Bush signed S extending the expiration of certain Patriot Act provisions from December 31, 2005, until February 3, The Administration had sought to make fourteen expiring sections of the Patriot Act permanent and to establish a four-year sunset on sections 206 and Section 206 authorizes so-called roving wiretaps, which attach to a particular suspect rather than a particular communication device, and section 215 authorizes Federal Bureau of Investigation agents to secure third-party business records after approval by the Foreign Intelligence Surveillance Court of Review. 15 These provisions prompted civil liberties concerns, particularly among Democrats. The shortterm extension was aimed at allowing ongoing negotiations on amendments to the Patriot Act. On February 3, 2006, President Bush signed H.R. 4659, extending the expiration date again to March 10, On March 9, President Bush signed an extension of the Patriot Act after approval from both the Senate and the House. 17 Despite a Treasury Department report that continuing federal support would delay the development of private capacity to provide terrorism risk insurance, Congress also enacted the Terrorism Risk Insurance Extension Act (TRIA Extension Act) of 2005, which modified and extend the Terrorism Risk Insurance Act (TRIA) of by additional two years until the end of TRIA was passed as a temporary measure to assure that there was a terrorism insurance market in the wake of the September 11th attack on the World Trade Center. TRIA provided that the federal government would reimburse insurers for ninety percent of the insured loss above a statutory deductible. The TRIA Extension Act raises the threshold for federal support from $5 million to $50 million in losses for any act of terrorism after March 31, 2006 and to $100 million in The TRIA Extension Act also increases the insurer s statutory deductible form 15% of premiums to 17.5% in 2006 and 20 percent in Norman Y. Mineta Research and Special Programs Improvement Act, Pub. L. No , 118 Stat (2004). 12 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) of 2001, Pub. L. No , 115 Stat. 272 (2001). 13 Pub. L. No , 119 Stat (2005) (amending Pub L. No , 224(a), 115 Stat. 272, 295 (2001)). 14 Toni Locy, House Votes to Extend Patriot Act, Cements 14 Provisions, USA TODAY, July 22, 2005, available at patriot-act-extended_x.htm.. 15 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Pub. L. No , 215, 155 Stat. 272, 282, (2001). 16 Extension of Certain Provisions of the USA Patriot Act, Pub. L , 120 Stat. 3 (2006) (amending Pub. L. No , 224(a), 115 Stat. 272, 295 (2001)). 17 Press Release, President George W. Bush, President Signs USA PATRIOT Improvement and Reauthorization Act, (Mar. 9, 2006) infocus/patriotact/. 18 Terrorism Risk Insurance Act of 2002, Pub. L. No , 116 Stat (2002). 366

4 Throughout 2005, the Senate Committee on Homeland Security and Government Affairs conducted hearings on regulating security at the Nation s chemical facilities. 19 Although Congress has considered chemical security legislation in the past, two factors have heightened the likelihood that legislation will be enacted during the 109th Congress. First, on January 6, 2005, a Norfolk Southern railroad train derailed in Graniteville, South Carolina. The accident punctured a tank car releasing chlorine gas that killed nine people and forced the evacuation of more than 5,000 others. 20 The incident highlighted the risk of catastrophic releases of hazardous chemicals that might be targeted and used by terrorists as weapons of mass destruction. The other factor that might bring about federal chemical security legislation is the increase in state and local legislation enacted to regulate chemical security in the absence of a national program. Maryland became the first state to enact chemical security legislation in May In addition to Maryland, Baltimore City, the District of Columbia, Louisiana, New Jersey, New York, and Ohio have all enacted or are considering legislation regulating chemical facilities and the transportation of hazardous materials. The District of Columbia (D.C.) enacted the Terrorism Prevention in Hazardous Materials Transportation Emergency Act of 2005, 21 which prohibits rail transportation of hazardous materials through an exclusion zone surrounding the U.S. Capital building in Washington. The legislation prompted litigation and administrative proceedings resulting in a decision by the National Surface Transportation Board that the legislation was preempted by the Interstate Commerce Act 22 and a ruling by the U.S. Court of Appeals for the District of Columbia that the D.C. law was preempted by the Federal Railroad Safety Act. 23 Facing the challenge of complying with differing regulations from jurisdiction to jurisdiction, the petrochemical and transportation private sectors have now joined with labor groups, public interest groups, and others supporting national legislation for chemical security. On December 17, 2005, Sens. Susan Collins (R-Maine) and Joseph Lieberman (D-Conn.) introduced the Chemical Facility Anti-Terrorism Act of that would require chemical facilities to complete vulnerability assessments, security plans, and emergency response plans. IV. MAJOR AGENCY INITIATIVES AND RULEMAKINGS In August 2004, the DHS and the DOT requested comments on a number of possible hazardous materials transportation security enhancements including removing emergency placards from rail cars to prevent potential terrorists from identifying rail cars as targets for intentional releases. 25 After overwhelming opposition to elimination of placards by industry groups, state and local emergency response agencies, public interest groups and shippers, on April 7, 2005, Secretary Chertoff announced that use of placards 20 Some Residents Returning Home After Chlorine Leak, CNN.COM, Jan. 13, 2005, available at 21 D.C. Act 16-43, Feb. 15, 2005, 52 DCR CSX Transportation, Inc.--Petition for Declaratory Order, Surface Transportation Board, 2005 STB Lexis 134 (Mar. 14, 2005) (STB Finance Docket No. 34,662). 23 CS Trans. Inc. v. Williams, 406 F.3d 667 (D.C. Cir. 2005). 24 To Enhance Security and Protect Against Terrorist Attacks at Chemical Facilities, S. 2145, 109th Cong., 2d Session (2005). 25 Hazardous Materials: Enhancing Rail Transportation Security for Toxic Inhalation Hazardous Materials, 69 Fed. Reg. 50,988 (Aug. 16, 2004). 367

5 would continue. 26 On July 28, 2005, PHMSA published a final rule amending the Hazardous Materials Regulations (HMR) to add a definition for person who offers or offeror adopting long-standing DOT interpretations on the definition and the applicability of the HMR to offerors. 27 The rule provided that an offeror is an entity that performs any pretransportation function, there can be more than one offeror, and each offeror is responsible only for those pre-transportation functions it performs or is required to perform. On January 13, 2005, the Transportation Security Administration issued a final rule, effective January 31, 2005, establishing fees for security threat assessments for hazmat drivers. 28 The fees, which range from $83 to $103, cover collection of fingerprints and applicant information, threat assessment, and Federal Bureau of Investigation criminal history records check. On January 6, 2005, the DHS released the National Response Plan that provided an over-arching plan for the response of government agencies and organizations into a coordinated plan for incident management. The plan addressed Homeland Security Presidential Directive Number 5, issued in February 2003 that directed the development of a single comprehensive national system to manage the response to domestic incidents. On November 3, 2005, the DHS published a notice of availability of the draft National Infrastructure Protection Plan. 29 Under the plan, federal and state agencies and private sector entities critical infrastructure would set security goals, identify infrastructure assets to be protected, assess and prioritize risk, and implement protective programs. 26 Secretary Michael Chertoff, Remarks by Secretary of Homeland Security Michael Chertoff at the Congressional Fire Services Institute Dinner (Apr. 7, 2005), available at 27 Applicability of the Hazardous Materials Regulations to a Person Who Offers a Hazardous Material for Transportation in Commerce, 70 Fed. Reg. 43,638 (July 28, 2005). 28 Hazmat Fee Rule: Fees for Security Threat Assessments for Hazmat Drivers, 70 Fed. Reg (Jan. 13, 2005). 29 National Infrastructure Protection Plan, 70 Fed. Reg. 66,840 (Nov. 3, 2005). 368