Toxic Trains in New York State (PDF download), reproduced in full here:
Toxic Trains and Public Safety
in New York State:
The Case for Urgent Action
Citizens’ Environmental Coalition
Steve Breyman, Ph.D., and Willow Eyres co-authored this report. Thanks to Aneel Salman, James Steinhilber, Tom Ellis, Laura McCarthy, and Barbara Warren for research and editorial assistance.
The Robert Sterling Clark Foundation generously provided funding for this report. Citizens’ Environmental Coalition is solely responsible for its content, and for the views expressed herein.
About Citizens’ Environmental Coalition
Citizens’ Environmental Coalition (CEC) is a statewide non-profit membership organization advocating for pollution prevention, remediation, environmental health and justice.
In 1983, 150 community leaders battling local pollution problems organized a statewide conference and formed Toxics In Your Community Coalition to share resources and skills. We were initially sponsored by the New York Environmental Institute, and we participated in statewide campaigns to clean-up toxic waste dumps and end illegal toxic releases.
In 1990, our name changed to Citizens’ Environmental Coalition to reflect a focus expanded to include pesticides, radioactive and toxic waste, and toxic waste dumps, and pollution prevention.
CEC coordinates the work of the Alliance for a Toxic Free Future formed in 2004 to protect human health and the environment from toxic chemicals by promoting market shifts and reforming government policies. The Alliance includes 70 groups working in six taskforces to win specific policy reforms.
CEC provides professional environmental advocacy, citizen assistance on environmental issues, holds educational events, and publishes a newsletter, action alerts, and a series of reports and manuals.
Citizens’ Environmental Coalition
119 Washington Ave., 3rd Floor
Albany, NY 12210
Ph. (518) 462-5527 • Fax (518) 465-8349
We are strong backers of both cargo and passenger rail, light and heavy, rural and urban. We believe that rail infrastructure is as important as any other in contemporary America, and is overdue for serious federal investment and regulation. Railroads today transport about 42 percent of the nation’s freight and the U.S. Department of Transportation estimates that between 1998 and 2020 the amount of freight transported by rail will increase by 50 percent. Passenger and freight rail transport will grow further in importance as their carbon-emissions and efficiency advantages over other motorized transport become clearer in the years to come.
A vastly improved cargo and passenger rail network can thus be seen as an important part of the nation’s and New York’s response to the unprecedented challenge of climate change. New Yorkers already rely upon light and heavy passenger rail for their transportation needs to a far greater extent than most other Americans.
Yet, very little has been done since September 11, 2001—compared to other transportation sectors like airlines—to improve the security of the country’s railways hauling hazardous materials. These materials, including chlorine used for water disinfection and chemical production, have the potential to serve as “weapons of mass destruction” in and near New York cities and towns. These hazardous cargoes pose already unacceptable risks from routine accidents; those risks become truly frightening when factoring in the possible targeting of toxic trains by terrorists. Ultimately, if we are to provide adequately for the security of our lives and livelihoods, and those of our children, we will need to find substitutes for these dangerous chemicals.
In the meantime, common sense precautions to avoid rail-borne chemical disaster in the near term, and longer term initiatives to find substitutes for hazardous materials, are readily available. They include:
(1) Federal Chemical Policy Reform.
Congress should enact legislation requiring chemical plants to use safer chemicals or processes so that large quantities of poison gas no longer need to be shipped. That legislation (H.R. 5695) was moving in Congress last year but was blocked by the chemical industry. Similar legislation will be reconsidered this year. But we simply cannot wait for federal action here. The stakes are too high, and we are living on borrowed time.
(2) Prompt Passage of Municipal Toxic Train Re-routing Ordinances.
In the absence of state and federal action—Washington, DC and Albany have had six years since September 11, 2001—our cities and towns must require the safest routes possible for some of the most dangerous cargos imaginable. See Appendix One for the ordinance currently before the Albany Common Council.
(3) Prompt Passage of Pertinent State Legislation.
The State Legislature considered two pertinent bills last session. One, the Hazardous Materials Transport Security Act (A.1714), “requires the generators and transporters of hazardous materials to implement basic best practice security measures to protect the citizens, economy and environment of New York from misuse of hazardous materials.” Another, the A.4276/S. 5132, “requires permits for the transportation of certain hazardous materials through high threat areas.” The failure of the Bush administration to set federal standards in this area mandates prompt state action.
1. Prompt State Executive Action.
(a) The State Department of Homeland Security should delay no longer in issuing guidelines based on exisitng legal authority for the safe transit and handling of hazardous cargoes that can pose severe risks to lives and property. Where are these guidelines six years after September 11, 2001?
(b) The Governor should issue an executive order mandating research into safer substitutes and reduction planning for persistent bioaccumulative toxic chemicals (PBTs). See Appendix Three for a draft safer substitutes for PBTs executive order.
(c) The Governor should issue an executive order mandating environmentally preferable purchasing by state agencies. The State should take the lead in moving the marketplace to greener, less toxic products, improving public and environmental health, and providing opportunities for green entrepreneurs in the Innovation Economy. See Appendix Four for a draft green purchasing executive order.
(d) The Department of Environmental Conservation should issue its Request for Proposals (RFP) for the new Pollution Prevention Institute as soon as possible in order to get New York’s brightest minds to work on developing safer alternatives to dangerous substances.
The Problem and Analysis
The Problem in General
The complex of problems we face here is straightforward: trains regularly haul hazardous loads in close proximity to our homes, businesses, schools and daycare centers. But “stuff happens”: trains derail, collide, and otherwise suffer accidents leading to human casualties, evacuations, property and environmental damage caused by their hazardous loads among other factors.
Just a few weeks ago, a “flammable substance” exploded as it was loaded onto a rail car in “one of the busiest parts” of Sioux Center, Iowa, requiring the evacuation of some 2,000 people, one-third of the town’s population. Closer to home, two runaway rail cars carrying “military equipment” from Fort Drum traveled eight miles down hill in July before crashing into another train, resulting in a fire and evacuations. The Watertown Fire Chief said “it’s a miracle this wasn’t more serious.” In May, two freight trains derailed in Washington State disrupting an Amtrak train. A train carrying the Space Shuttle’s solid fuel booster rockets derailed in May in Alabama.
Par for the course during the Bush years, the Federal Railroad Administration (FRA)—the nation’s chief rail safety agency—is understaffed, overextended, and has the capacity to inspect only 0.2 percent of the nation’s railroads. The primary responsibility for rail safety is delegated to the railroad industry. And in the absence of public scrutiny and private responsibility, rail safety is being neglected—and the consequences have been deadly. We can rely on neither the federal government nor the rail industry to protect us from disaster.
Over and above “ordinary” hazardous materials rail accidents, American intelligence agencies have been aware for several years that al-Qaeda is interested in targeting U.S. railroads. In 2002, the F.B.I. found photographs of U.S. railroad engines, cars and crossings in an al-Qaeda operative’s possession. In 2006, an al-Qaeda plot to use cyanide gas on a NYC subway was uncovered.
In mid-August 2007, alledged terrorists used a homemade bomb to send a Russian express passenger train moving at 119 m.p.h. hurtling off the tracks on a run from Moscow to St. Petersburg. Sixty passengers were injured; twenty-five required hospitalization. In December 2006, a man intentionally spilled a vial of mercury on a subway platform in downtown Los Angeles.
While high speed passenger trains and subways have particular vulnerabilities, slow-moving and stationary freight trains are among the most vulnerable domestic targets to terrorist attacks. Our nation’s railways connect thousands of U.S. chemical facilities. As a result, the overwheming majority of toxic chemicals transported in this country is done so by train. One Government Accountability Office report stated that 95% of the most dangerous chemicals are shipped by rail. These poisons represent only 0.3% of the freight rail business. According to Argonne National Laboratories, chlorine gas accounts for the majority of risk. In 2003, an FBI specialist in weapons of mass destruction warned, “You’ve heard about sarin and other chemical weapons in the news. But it’s far easier to attack a rail car full of toxic industrial chemicals than it is to compromise the security of a military base and obtain these materials.” Indeed, the widespread presence of graffiti on freight trains, including markings on 90-ton railroad tank cars, shows their ready accessibility.
Insurgents in Iraq have used chlorine in multiple truck-borne attacks on US troops. This raised considerable concern here in the US about the security of chlorine stocks. Nearly 3000 water treatment facilities in the country rely on chlorine for disinfection.
In April, Arthur Dungan, president of the Chlorine Institute, the research and safety arm of the chlorine industry, sent out a warning to members that someone had stolen three full 150-pound cylinders of chlorine from a water treatment site in California in February and April 2007. In addition, he wrote, police in two other California counties had reported unsuccessful attempts to steal chlorine from municipal water treatment plants that spring. After the first theft, police had suspected the thieves may have thought they were taking a different chemical that would be useful in manufacturing drugs. But when it happened again, Dungan wrote, “concerns were heightened” because it was clear they were targeting the chemical.
“The use of chlorine by terrorists in Iraq has heightened all our concerns, and we should be vigilant in doing all we can do to minimize the possibility of unauthorized persons obtaining any type of chlorine container,” he wrote, urging operators to report any similar thefts to the FBI and to one another. The letter was later obtained by Congress.
In a phone interview last week, Dungan said the chlorine thefts remained unsolved—and that he learned of a similar theft of at least one chlorine gas cylinder from a Texas water treatment facility in June. Dungan also said he believed water treatment plants ought to be included in the Department of Homeland Security’s chemical security regulations.
“If you meet the threshold quantities—whether you’re a chemical plant, a grocery store, or whatever—you ought to be covered” by the department’s security rules, Dungan said. “There should not be a blanket exclusion.”
Secretary of Homeland Security Michael Chertoff recently urged drinking water officials to ”make sure that these dangerous chemicals they have on site are not stolen, because, unfortunately, if you look over to Iraq, you’re going to see these kinds of chemicals wind up in improvised explosive devices.” New York City’s homeland security officials, including former Bush administration official Richard Falkenrath, have instituted special inspections of chlorine trucks and facilities. Falkenrath, now NYPD Deputy Commissioner for Counter-Terrorism had this to say to the US Senate in his September 2006 testimony: “poorly guarded toxic industrial chemicals represent the most severe and widespread mass casualty vulnerability in America today.” See Appendix Two for Falkenrath’s list of eighteen terror-related events from New York City’s recent past.
The U.S. Naval Research Laboratory estimates that more than 100,000 people could be killed or injured within the first 30 minutes of a terrorist attack on one rail car of chlorine passing through a major city such as Washington, D.C., warning that “lethally exposed people can die at the rate of 100 per second.”
The concern that a hazardous train cargo might be commandeered, derailed, attacked or otherwise used as a weapon against highly vulnerable civilians is NOT far fetched.
The Problem in New York State
From 1999 through spring 2004, not a single CSXT train carrying hazardous materials had an accident in Central New York. In the following two years—since CSX began a re-routing of trains carrying hazardous material around Washington, D.C.—at least 11 CSX trains carrying toxic freight have been involved in accidents in Central New York. Neither the Federal Railroad Administration, nor CSXT, has offered any detailed explanations for the rising accident rate. Federal statistics show almost 600 freight rail accidents causing $34 million in damage in Upstate New York from 2000 through 2006, up from 391 accidents in the previous seven years. The aging rail infrastructure is widely considered one possible reason for the spate of accidents.
In March of this year, a CSXT train carrying liquefied propane gas from Buffalo to Selkirk derailed near Oneida. Ten to twelve tanker cars caught fire, forcing the evacuation of residents, and two schools. A 23 mile stretch of the NYS Thruway was closed, and Amtrak suspended service between Syracuse and Albany. The incident marked the fifth derailment involving CSXT in New York since December 2006. Jacksonville, FL-based CSXT is also rebounding from a derailment in Brooks, KY, which so far has cost the railroad $30 million.
Hazardous cargoes currently travel through New York State on routes with little if any effective security. Due to re-routing around the US Capitol in DC, CSXT now directs hazardous cargoes on a long route through Ohio then through Buffalo, Syracuse, Albany and south through the NYC metro area on the way to northern New Jersey. See Figure 1. CSXT apparently refuses to interchange cargoes onto the sensible nearby non-target route around DC, because it is a Norfolk Southern line.
[Add route map here Figure One]
Although CSXT declines to say where those cars too dangerous for Washington, DC were rerouted, train logs reported an additional 13 freight trains per day, carrying hazardous cargo, through Syracuse and Central New York. After the explosion and derailment in Oneida, about 50 freight trains pass through Central New York each day and use the rail line where the explosion took place. Derailments on CSXT properties in recent months have occurred in Kentucky, Maryland, and Ohio.
On March 27, 2007, the Federal Railroad Administration (FRA) released the results of a focused inspection on CSXT properties in each of the 23 states where the railroad operates. It found 3,518 defects and 199 potential violations, including failure to replace defective rails, and failure to make repairs. In New York alone, 60 inspections revealed 376 defects, including 13 violations.
New York can rely neither on the rail industry nor on the federal government to ensure the safety of its communities from rail-borne chemical disaster. We must take our own action, and quickly, to prevent disaster.
The Solution and Recommendations
One Congress should enact legislation requiring chemical plants to use safer chemicals or processes so that large quantities of poison gas no longer need to be shipped. That legislation (H.R. 5695) was moving in Congress last year but was blocked by the chemical industry. Similar legislation will be reconsidered this year. But we simply cannot wait for federal action here. The stakes are too high, and we are living on borrowed time.
Two Re-routing the transport of extremely hazardous cargo is one of the first and most effective steps we can take to immediately reduce opportunities for terrorists by eliminating their targets. Re-routing also lowers the probability of accidental disaster when these trains move through densely populated communities.
New York City has for twenty-five years had a Fire Code provision (Chapter 40) that requires the re-routing of the three most dangerous kinds of trucks around the city. The federal Second Circuit Court of Appeals decisively upheld this law, saying the public safety benefit far outweighed the admitted but minimal burden on commerce. The New York City precedent inspired the DC re-routing law, which has been closely imitated in bills introduced in ten other major target cities.
The recently passed federal legislation to implement the recommendations of the 9/11 Commission included an amendment regarding hazardous train re-routing. While this is welcome and overdue news, New Yorkers cannot rest easy. There is no language in the law regarding re-routing for specific, named cities. Railroads are given two years to re-route around “high-consequence targets.” We wonder whether we here in New York qualify as a “high consequence target,” and if we do, why we must wait two years for re-routing?
Toxic train re-routing laws have been proposed in ten US cities: Buffalo, Albany, Baltimore, Cleveland, Chicago, Boston, St. Louis, Philadelphia, Minneapolis and Memphis. None have been enacted. Here in the Capital of New York State, the Albany Common Council should pass and the Mayor should sign Councilman Calsolaro’s proposed “Ordinance Amending Chapter 235 (Health) Of The Code Of The City Of Albany In Relation To Hazardous Materials.”
Three The chemical and rail industries are worried about a patchwork quilt of toxic substance and train regulations. Actually, the municipal ordinances discussed above are all modeled on the Washington, DC ordinance. But the best way to avoid local regulation is to enact it at the state and/or federal level. As federal action here has been deeply inadequate, the New York State Legislature should promptly revisit and enact some strong, effective version of the Hazardous Materials Transport Security Act, and kindred legislation.
Four Governor Spitzer can take four steps now:
(a) Direct the State Department of Homeland Security to issue guidelines based on existing legal authority for the safe transit and handling of hazardous cargoes that can pose severe risks to lives and property. Where are these guidelines six years after September 11, 2001?
(b) Issue an executive order mandating research into safer substitutes and reduction planning for persistent bioaccumulative toxic chemicals (PBTs). See Appendix Three for a draft safer substitutes for PBTs executive order.
(c) Issue an executive order mandating environmentally preferable purchasing by state agencies. The State should take the lead in moving the marketplace to greener, less toxic products, improving public and environmental health, and providing opportunities for green entrepreneurs in the Innovation Economy. If we don’t need toxic chemicals, we won’t make them. If we don’t make them, we don’t need to ship them. See Appendix Four for a draft green purchasing executive order.
(d) Direct the Department of Environmental Conservation to issue its Request for Proposals for the new Pollution Prevention Institute as soon as possible in order to get New York’s brightest minds to work on developing safer alternatives to dangerous substances.
An introduction by Council Member Calsolaro
AN ORDINANCE AMENDING CHAPTER 235 (HEALTH) OF THE CODE OF THE CITY OF ALBANY IN RELATION TO HAZARDOUS MATERIALS
The City of Albany, in Common Council convened, does hereby ordain and enact:
Section 1. Article I of Chapter 235 of the Code of the City of Albany is hereby amended as follows:
ARTICLE I [(Reserved)]
Transport of Hazardous Materials
Section 223-1. [Reserved] Findings.
This Council finds and declares that every year in the United States, there are derailments of trains with hazardous cargo requiring major evacuations. This Council finds that significant amounts of hazardous materials are being transported through heavily populated areas of the City and along the riverfront. The release and/or ignition of several types of the most commonly shipped hazardous cargo could result in a toxic cloud that could spread for several miles or could result in a spill of toxic material into the Hudson River. This Council further finds that, depending on the material released, time of day and weather, the recommended distance for initial isolation and evacuation in the event of a hazardous cargo release in a serious railroad incident extends from a few hundred feet to several miles, potentially requiring the evacuation or shelter-in-place of many thousands of people in downtown Albany. This Council finds that the proximity of the hazardous materials rail transport to a heavily congested city area on one side, and to the Hudson River on the other, poses a uniquely local security and safety hazard, making it incumbent upon this Council to reduce the risk of exposure to hazardous materials to both citizens of the City and to this City’s greatest natural resource, the Hudson River.
This Council finds that an alternate rail route that traverses less populated sections of the Albany metropolitan area would dramatically reduce the consequences of a potential accidental release. Therefore, in light of its findings, in order to preserve and protect the general health, safety, security and welfare of the citizens of the City of Albany and of Albany County, and to reduce an essentially local safety and security hazard, this Council finds that it is necessary to prohibit large shipments of certain hazardous materials by rail through downtown Albany.
Section 223-2. [Reserved] Definitions.
(1) “Emergency” means an unanticipated, temporary situation that threatens the immediate safety of individuals or property, as determined by the Fire Chief.
(2) “Person” means any individual or any partnership, firm, association, corporation, or other entity of any kind.
(3) “Practical Alternative Route” means a route that lies entirely outside of the City of Albany and whose use would not make shipment of the materials in question cost-prohibitive.
Section 223-3. [Reserved] Prohibitions.
Except in cases of emergency, no person may make through-shipments by rail car of any of the following hazardous materials within the City of Albany without a permit issued pursuant this Article:
(1) explosives of Class 1, Division 1.1, or Class 1, Division 1.2 as designated in 49 CFR Section 173.2, in a quantity greater than 500 kilograms;
(2) flammable gasses of Class 2, Division 2.1, as designated in 49 CFR Section 173.2, in a quantity greater than 10,000 liters;
(3) poisonous gasses of Class 2, Division 2.3, as designated in 49 CFR Section 173.2, in a quantity greater than 500 liters and belonging to Hazard Routes A or B as defined in 49 CFR 173.116; and
(4) poisonous materials, other than gasses, of Class 6 Division 6.1, in a quantity greater than 1000 kilograms and belonging to Hazard Routes A or B as defined in 49 CFR 173.133.
Section 223-4. [Reserved] Permits.
The Fire Chief may issue a permit to authorize a through-shipment by rail car of materials listed in this Article upon demonstration that there is no practical alternative route. The Fire Chief may condition the permit on the adoption of safety measures, including, but not limited to time-of-day restrictions. The cost of said permit shall be determined by the Fire Chief and shall not exceed the cost of implementing and enforcing this section. The Fire Chief shall promulgate rules and regulations to implement and enforce the provisions of this section.
Section 223-5. [Reserved] Penalites.
Any person who violates this Chapter shall be subject to a civil penalty not to exceed $10,000 for a first offense and $25,000 for each offense thereafter.
Section 2. This ordinance shall take effect immediately.
APPROVED AS TO FORM
Richard A. Falkenrath, Deputy Commissioner For Counterterrorism, New York Police Department, Prepared Statement Of Testimony Before The Committee On Homeland Security And Governmental Affairs, United States Senate, September 12, 2006
II. The Terrorist Threat – Globally, Nationally, and to New York City
Terrorism is not an abstraction to New York City. Consider the following 18 events from the recent past:
1. NOVEMBER 5, 1990: El Sayyid Nosair shot Jewish Defense League leader Meir Kahane in front of the Marriot East Side Hotel in Manhattan. Nosair would later become a co-conspirator with the “blind sheikh,” Omar Abdul Rahman, in a plot to destroy New York City tunnels and bridges.
2. FEBRUARY 26, 1993: New York City sustained the first terrorist attack on the World Trade Center; six innocent people were killed.
3. JUNE 1993: An al-Qaeda plot to destroy the Holland Tunnel, the Lincoln Tunnel, the George Washington Bridge, and the United Nations Headquarters was uncovered, and the plotters successfully prosecuted.
4. MARCH 1, 1994: Rashid Baz, a Palestinian angered by an Orthodox Jew’s attack on a Muslim holy site, drove his livery cab to the Brooklyn Bridge where he opened fire on a van occupied by Hassidic students, killing one of them: 16-year-old Ari Halberstam.
5. FEBRUARY 23, 1997: Abu Kamel, a Palestinian residing in Florida, selected the Empire State Building to carry out his intent of “annihilating” perceived enemies. He went to the observation deck on the 86th floor and shot seven people, including a Danish tourist who was killed. Kamel then turned the gun on himself and committed suicide.
6. JULY 31, 1997: the New York Police Department stopped a plot at the last minute to bomb the subway complex at Atlantic Avenue in Brooklyn. The bombers were assembling the devices when police officers entered their apartment and shot and wounded them before they could detonate the bombs.
7. SEPTEMBER 11, 2001: The World Trade Center was destroyed by al-Qaeda with the loss of more than 2,700 lives.
8. OCTOBER 2001: In the space of a week, employees and visitors at the New York Post, NBC, CBS, and ABC News in New York City fall victim to anthrax attacks. Later the same month, a New York City woman died of inhalation anthrax because of cross-contamination of mail she handled at work with that of the targeted media.
9. JUNE 2002: Security personnel from Iran’s Mission to the United Nations were observed by NYPD videotaping landmarks and infrastructure. They were expelled from the United States by the State Department because of their suspicious activities.
10. LATE 2002 AND EARLY 2003: al-Qaeda operative Iyman Faris, on orders from his handlers overseas, twice examined the Brooklyn Bridge to evaluate the feasibility of destroying it.
11. NOVEMBER 2003: Two more security personnel assigned to Iran’s Mission to the United Nations were caught by the NYPD video taping tracks and tunnel of the Number 7 subway line as it entered the tunnel under the East River. They returned to Iran soon after the incident.
12. APRIL 10, 2004: al-Qaeda operative Mohammad Babar was arrested by NYPD detectives and FBI agents in Queens, New York, for his role in a plot to bomb pubs, restaurants, and train stations in London.
13. JUNE 2004: Once again, two more security personnel from Iran’s Mission to the United Nations were caught – this time by the FBI – videotaping sensitive locations in New York. Suspected of conducting reconnaissance of New York City landmarks and infrastructure, they were again expelled by the State Department.
14. JULY 2004: A laptop commuter of an al-Qaeda operative overseas is recovered. On it are detailed reconnaissance plans that show al-Qaeda operatives had been in New York City to plan an attack on the New York Stock Exchange, Citigroup headquarters in mid-town Manhattan, and the Prudential building across the river in Newark.
15. AUGUST 2004: A week before the Republican National Convention, two Islamic radicals from Brooklyn were arrested in a plot to bomb the Herald Square subway station. One pleaded guilty and cooperated with the investigation. The other was convicted in Federal court on May 24, 2006. He was found guilty on all four counts.
16. NOVEMBER 2005: Uzair Paracha, a Pakistani-born resident of New York City, was convicted of providing material support to al-Qaeda. While residing in New York, Paracha agreed to pose as an al-Qaeda operative, Majid Khan, in an attempt to disguise the fact that Khan had illegally left the U.S. for Pakistan. Paracha’s father, who had met Osama Bin Laden, was part owner in a Manhattan garment district business. It was suspected that the ultimate goal was to use the Paracha business’s shipping containers to smuggle weapons and explosives into New York City.
17. JUNE 2006: Syed Hashmi, a Queens resident active in the New York City chapter of a radical Islamic group known as al-Muhajiroun, was arrested in London where he was engaged in providing material support for al-Qaeda fighters in Afghanistan.
18. July 2006: A leak to the media revealed a sensitive investigation into an international terrorist plot to use suicide bombers to blow up New York City tunnels and flood lower Manhattan.
Proposed NYS Executive Order
Promoting Safer Alternatives to
Persistent, Bioaccumulative Toxic Chemicals (PBTs)
WHEREAS, Persistent, toxic chemicals, such as mercury, dioxin, poly brominated diphenyl ethers (PBDEs) and polychlorinated biphenyl (PCBs), are toxic in small amounts, remain in the environment for long periods of time, and build up in humans, fish and animals; and this group of pollutants known as Persistent Bioaccumulative Toxic chemicals (hereinafter “PBT chemicals”) can pose risks to public health and the environment through their carcinogenic and endocrine disrupting effects, immune system impairment, neurotoxicity, birth defects, and reproductive dysfunction; and
WHEREAS, Persistent, Bioaccumulative Toxic chemicals are passed from one generation to another in the womb and through breast milk; have been linked to birth defects, reproductive failure, cancer, learning and behavioral problems in young children, and other health problems; and a growing body of scientific evidence points to chemical exposures as preventable risk factors in a number of chronic diseases, disabilities and premature deaths;
WHEREAS, PBT chemicals have polluted hundreds of water bodies in New York which fail to meet water quality standards, and the state has issued nearly 100 advisories for contamination of fish and waterfowl by PBT chemicals, and expended significant resources to address hundreds of drinking water supplies, landfills and toxic sites contaminated by PBT chemicals; and more than 90% of PBT chemicals are leaving factories in products, not in waste, and are found in a wide range of consumer and industrial products including paints, pesticides, solvents, inks, dyes, solder, etc.;
WHEREAS, It is the policy of the state of New York “to reduce or eliminate the use of hazardous substances and the generation of such substances, pollution or waste at the source in order to conserve, improve and protect New York’s environment and natural resources; enhance the health, safety and welfare of its citizens; and increase the economic competitiveness of New York businesses,” pursuant to Article 28 of the Environmental Conservation Law (ECL); and to address the Environmental Protection Agency’s 1998 national PBT policy that urges states, localities and the federal government to reduce PBTs in waste by fifty percent (50%) by the year 2005.
WHEREAS, New York, a leader on environmental policy and a major trade partner with Europe, can maintain its competitiveness through innovation and leadership in the development of products and practices that protect public health and environmental quality; and development of safer alternatives to PBT chemicals has the potential to spur business growth, create jobs, improve public health, lower the costs of health care and special education, and protect the environment; and the production, use and disposal of consumer products containing PBT chemicals poses preventable risks of harm to human health and the environment in New York and elsewhere; and
WHEREAS, it is in the best interests of the people of New York to continue and expand state leadership in promoting sustainable economic development and environmental public health protection through the reduction and elimination of the use of and discharge of PBT chemicals within the next generation.
NOW THEREFORE, I, Eliot Spitzer, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and laws of the State of New York do
Hereby establish it is the policy of the state of New York to protect the health of its residents and contribute to a healthy economy by actively promoting safer alternatives to PBT chemicals used and produced in New York, and reducing the generation of PBT chemical waste by utilizing pollution prevention activities.
It is further established that it is the policy of the state of New York to take anticipatory action to prevent harm where credible evidence of a threat to human health or the environment exists from toxic substances, and to actively promote the reduction of the use of PBT chemicals that are persistent in the environment, bioaccumulative, and highly toxic based on credible scientific information that the chemical is a carcinogen, neurotoxic or a reproductive toxicant, pursuant to the state’s statutes and policies
I. Department of Environmental Conservation & Department of Health
PBT Chemical Pollution Prevention Regulatory Actions
1) The Department of Environmental Conservation (DEC) and Department of Health (DOH) shall use all existing legal authority in current state law to ensure the protection of public health and the environment from potential damage caused by PBT chemicals used in consumer products and commercial use. The agencies shall work diligently and expeditiously to develop and implement policies and procedures to maximize their use of existing authority to obtain the objectives of this Order. The agencies shall evaluate the impact of proposed programs, policies and regulations to insure that from any changes: (a) the environment, and the health and safety of citizens and workers is improved; (b) job creation is encouraged and job loss is minimized; and (c) potentially impacted employees and consumers have opportunity for direct input into proposed programs, policies and regulations.
2) Not later than December 31 of each calendar year, the DEC shall submit an annual report to the Governor on the amount and type of PBT chemicals used and generated in the state, utilizing its existing regulatory powers and data provided through existing programs and permits.
3) The DEC shall use its existing programs and authorities to reduce the use of PBT chemicals and to reduce the generation of PBT chemical waste.
The Department shall consider, without limitation:
a. enhancing the role of safer substitutes in hazardous waste reduction plans and permitting;
b. identify regulation user segments which it considers to be priorities for achieving toxics use reduction with respect to PBT chemicals. If it concludes that significant opportunities for toxics use reduction and the use of safer substitutes exist, the Department shall make recommendations for such user segments; and
c. identifying opportunities through control or abatement plans, and other guidance and regulatory programs.
The Department shall complete such review within one year of the date of this Executive Order and shall issue a report to the Governor and the Governor’s Council outlining how the Department shall amend those programs or regulations, where feasible, so as to promote PBT chemicals reduction and the substitution of safer substitutes to achieve the goals of this Order. The Department shall hold public hearings and a public comment period to obtain public comment on its report.
4) The DEC, in consultation with the Department of Health (DOH), shall implement a public education campaign to alert consumers, businesses and local governments about the health threats associated with PBT chemicals and to help educate the public about safer alternatives.
II. Governor’s Council for Safer Alternatives to PBT Chemicals & Statewide Plan
1) A Governor’s Council for Safer Alternatives to PBT Chemicals will be established to work with the DEC and DOH to develop a statewide plan and report on reducing the use of PBT chemicals and transitioning to safer alternatives.
The Departments, in consultation with the Council, will develop a statewide report for the Governor that identifies actions, including legislation, which the state can take to reduce and eliminate threats posed by PBT chemicals, and to develop and promote safer substitutes.
Such proposal will include the following:
(a) Recommendations for a comprehensive state PBT chemicals policy that requires safer substitutes to PBT chemicals in consumer goods and services, creates incentives to promote the use and development of safer alternatives, and requires the reduction of the use of PBT chemicals and the reduction of PBT chemical waste in New York so as to benefit public health, the environment and the economy;
(b) Recommendations for consumer education, retailer education and training, supply chain information and public right-to-know in order to promote markets for safer alternatives;
(c) Recommendations for submission to the Pollution Prevention Institute on research and development of safer alternatives to priority PBT chemicals in consumer products, including the possibility of developing bio-based plastics from New York-based agricultural and forest products.
The DEC, DOH and the Council shall submit an interim report to the Governor by December 2007 and a final report by April 2008. Each of these reports shall include recommendations, including proposed legislation, for PBT chemicals policy development and consumer education. The Departments and the Council will conduct a series of six public hearings and other public forums to involve the public in discussing the interim report, and hold a public comment period.
2) The additional duties of the Council are to: (a) Review plans for the DEC and DOH’s implementation of this Executive Order and provide recommendations; (b) Propose additional programs, policies or regulatory changes to the DEC and DOH to promote effective implementation of this Order; (c) annually evaluate the adequacy of the Departments budgets to effectively implement this Order and submit an annual report to the Governor with any recommendations.
3) The Council shall consist of four members, including the Council Chairperson, appointed by the governor, three members nominated by the Senate Majority Leader, three members nominated by the Speaker of the State Assembly, three members nominated by the Commissioner of DEC, two members nominated by the director of the Pollution Prevention Institute, two members nominated by the Commissioner of Health, two members nominated by Empire State Development and two members nominated by the Commissioner of Labor. Members shall include representatives of business, unions, health, science, academic, environmental and health organizations that support the goals of the Council.
III. Pollution Prevention Institute Research and Development on Safer Alternatives
The promotion of safer alternatives to PBT chemicals can contribute greatly to the improvement of the New York’s economy for consumers, firms and employees. The state of New York shall support and promote research and development of safer processes, products and chemicals through the policies and programs of agencies, and the Pollution Prevention Institute and the Green Chemistry Program, established pursuant to Executive Order #.
Based on available funds, the Institute shall conduct a national survey of safer alternatives for ten of the worst PBT chemicals found in common household products and workplaces in the state, utilizing existing government and institutional reports, programs and studies. The DEC, DOH and the Council shall recommend the priority chemicals. The Institute shall utilize existing reports from other states and regions that provide information on safer substitutes to PBT chemicals found in dry cleaning, cosmetics, building materials, toys and baby products, foam cushions, electronics, and other common household goods. The Institute will issue the PBT safer alternatives report to the Governor, DEC, DOH and the Council by October 2007. The Institute shall also provide technical assistance on request to the Departments and the Council.
This Executive Order shall take effect immediately.
Safe and Sustainable State Procurement Policy
WHEREAS, Pursuant to Section 1-0101 of the Environmental Conservation Law (ECL), it is the policy of the State of New York to improve and protect its natural resources and environment in order to “fulfill the state’s responsibility as trustee of the environment for the present and future generations; to promote and create conditions under which citizens and nature can thrive in harmony with each other; and to promote technologies which minimize adverse impacts on the environment”; and
WHEREAS, Pursuant to Article 28 of the ECL, it is the policy of the state of New York “to reduce or eliminate the use of hazardous substances and the generation of such substances, pollution or waste at the source in order to conserve, improve and protect New York’s environment and natural resources;” and
WHEREAS, Persistent, bioaccumulative toxic chemicals, such as mercury, lead, dioxin, poly brominated diphenyl ethers (PBDEs), are toxic in small amounts, remain in the environment for long periods of time, and build up to dangerous levels in humans, fish and other animals; and this group of pollutants known as persistent bioaccumulative toxic chemicals (hereinafter referred to as “PBT chemicals”) pose risks to public health and the environment through their ability to cause cancer, birth defects and endocrine disruption; and such chemicals have polluted hundreds of water bodies, fish and waterfowl; and these adverse impacts impose costs on the state and, ultimately, society as a whole in the form of disease and death; health care expenses; cleanup costs; and a degraded natural environment; and such chemicals are found in a wide range of consumer products purchased by state agencies including lighting supplies, computers and other office equipment, vehicles, medical equipment, building supplies and printing inks; and
WHEREAS, the generation and use of energy has a significant impact on the environment, contributing to emissions of sulfur dioxide, nitrogen oxides, greenhouse gases, and other pollutants, and State government is a major consumer of energy spending over $300 million per year;
WHEREAS, State government should lead by example and provide a model for local governments, businesses and private citizens by implementing practices that have a significant positive impact on the environment and the health of our state workers and the public and can result in significant cost savings for state government, such as reducing solid and hazardous waste generation, greenhouse gas emissions, and energy, water and paper consumption; and
WHEREAS, Energy savings and environmental protection gains can be achieved through changes in the purchasing patterns of State government, which wields considerable purchasing power; and the increased purchase of energy efficient, less toxic, and recycled products and services by State government is one of the best ways to bolster these markets, as well as the economic viability of New York; including bio-based products which can stimulate the State’s agricultural economy through the manufacture of plant-based materials ;
NOW THEREFORE, I, Eliot Spitzer, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and laws of the State of New York do
Hereby establish a Safe and Sustainable Procurement Policy for the State of New York with a preference for the purchase of commodities, services and technologies (hereinafter referred to as “supplies”) that minimize potential adverse impacts on public health and the environment when compared with supplies that serve the same purpose.
In carrying out this policy, the Office of General Services (OGS) and every agency and department over which the Governor has executive authority, and all public benefit corporations and public authorities the heads of which are appointed by the Governor, (hereinafter referred to as “agencies”) shall procure supplies that have a positive impact on public health and the environment during their life cycle, including reducing the wasteful use of natural resources and avoiding health-threatening toxic chemicals as identified in Section II, whenever safer and more environmentally preferable alternatives are readily available, are reasonably priced using life-cycle cost accounting, and meet the form, function and utility consistent with an agency’s needs.
I. Minimum Specifications for Safety and Sustainability
All state agencies shall procure supplies that meet or exceed the following minimum specifications. Such minimum specifications shall be met unless costs are prohibitive or alternatives meeting the state’s performance specifications are unavailable as defined in this Order.
(A) Recycled content. All copy paper and other paper supplies for which the U.S. Environmental Protection Agency (EPA) has developed recycled content recommendations shall be required to meet or exceed the EPA’s minimum post-consumer material content percentages. OGS shall also make available to all agencies, 100% post-consumer, process chlorine-free copy paper. All agencies shall print publications on recycled paper.
(B) Waste Reduction. Agencies shall seek to reduce waste in products and packaging, including at least a 30% paper reduction goal, and shall favor durability, reparability and reuse when purchasing supplies. Minimum specifications for waste reduction shall be established by OGS, consistent with this Order. All agencies shall reduce waste in the performance of their duties with double-sided copying and printings to the greatest extend practicable; agencies shall also encourage their subcontractors to submit documents utilizing double-sided copying and printing.
(C) Energy efficiency. All supplies for which the U.S. Department of Energy’s Energy Star and Federal Energy Management Program have issued energy efficiency recommendations shall be required to meet or exceed such recommendations. Agencies shall seek to achieve significant reductions in energy and petroleum consumption; adhere to Energy Star building criteria; seek out office space and real estate investments in buildings with an Energy Star rating; and follow the Public Service Commission’s Renewable Portfolio Standard to increase the purchase of renewable energy so that at least 25% of the overall annual electric energy requirements of buildings owned, leased or operated by state agencies or other affected entities will be renewable energy by 2013.
(D) Green Buildings. All future capital projects with an estimated construction cost of two million dollars or more involving (i) the construction of a new building, (ii) an addition to an existing building, or (iii) the substantial reconstruction of an existing building shall be designed and constructed to comply with green building standards not less stringent than the standards prescribed by the Leadership in Energy and Environmental Design (LEED) green building rating system published by the U. S. Green Building Council to achieve a LEED silver or higher rating, and to utilize materials which do not contain polyvinyl chloride, to the greatest extent practicable. In addition, all state-owned and operated buildings of 50,000 square feet or larger shall be operated to meet LEED for Existing Buildings to the maximum extent that is cost effective by no later than 2012.
II. Safe & Sustainable Procurement Program
Within 10 months after the effective date of this Order, all agencies when letting contracts for the procurement of supplies shall follow practices and develop solicitation specifications that meet or exceed the minimum specifications, to the greatest extent practicable. Within 6 months of the effective date of this Order, the OGS, in consultation with the Sustainable Procurement Council created in Section IV, and the Department of Health (DOH) and Department of Environmental Conservation (DEC), shall identify at least 3 product categories of supplies that will meet the Environmentally Preferable Purchasing (EPP) criteria of this Order. The OGS shall ensure a plan is established to phase in the Safe and Sustainable Procurement Policy by annually selecting at least 3 product categories that will meet the requirements of this Order, and for which Sustainable Alternatives Lists will be established. Consideration will be given to the greatest potential for environmental and health benefits, the dollar amount of the contract, ease of implementation and cost-savings. Consideration shall be given to all product categories, including but not limited to the following: electronics, electrical equipments and other hardware supplies, vehicles, printing inks, grounds maintenance products and services, building supplies, office and medical supplies and equipment; cleaning products and services, appliances, food catering and food service supplies Within 5 years, the agency will have adopted EPP criteria and developed approved lists for at least 12 product categories.
The OGS, in consultation with the aforementioned institutions, shall establish EPP criteria for the evaluation of commodities, services and technologies within such product categories. Although detailed life-cycle analysis is not required, the following factors shall be included in the development of the criteria: (i) protection of public health and the environment; (ii) pollution prevention; (iii) avoidance of priority toxic substances of concern; (iv) natural resource use, including, but not limited to, energy, water, trees and renewable resource consumption, waste prevention, recycled content, recyclability, compostability, remanufactured content, bio-based content, and the potential for long-term use through product durability, reparability and reuse; and (v) positive life-cycle attributes including the minimization of potential adverse impacts on public health and the environment associated with raw materials production, manufacturing, packaging, transportation, distribution, use, operation, maintenance and disposal.
When comparing the potential adverse health and environmental impacts among competing supplies, the following factors shall be considered when trade-offs need to be made among impacts: (i) the overriding importance of protecting human health and the environment; (ii) reversibility; and (iii) geographic scale. In addition, when assessing any product with a recycled content, preference shall be given to avoiding the purchase of any recycled material that contains a priority toxic substance of concern. Agencies shall transition to safer and more sustainable supplies in a timely manner. “Priority toxic substances of concern” shall include, but not be limited to, PBT chemicals, known and reasonably anticipated human carcinogens and other chemicals of concern as set forth in Addendum A. (“Addendum A” means the addendum to this Order which is incorporated herein by reference.) The Safe and Sustainable Procurement policy is designed to take anticipatory action to prevent harm where credible evidence of a threat to human health or the environment exists, and this includes reducing the use of chemicals that are known or reasonably anticipated to cause cancer to humans, and chemicals that are persistent in the environment, bioaccumulative and highly toxic. No supply shall contain, use, or cause the release of a priority toxic substance of concern, unless there is no supply meeting such specification that is available in the form, function and utility consistent with an agency’s needs. In circumstances where a supply that does not contain a priority toxic substance of concern is unavailable, preference shall be given to a supply that contains the least amount of these substances.
III. Sustainable Supplies Lists
For each priority product category, the OGS, in consultation with the Council, DOH and DEC shall develop bid specifications and issue contracts for specific supplies that meet the EPP criteria and minimum specifications established pursuant to this Order. Such supplies shall be added to a Sustainable Supplies List immediately after new contracts for supplies in that product category are issued. OGS shall review and revise the lists every year and shall provide an opportunity for public notice and comment in developing the bid specifications. The OGS is encouraged to avoid duplicating efforts and to pool resources by considering the adoption of environmental specifications developed by other government and non-government entities, including independent third-party certification programs (such as Environmental Choice and Green Seal) that evaluate the health and environmental attributes of supplies, test performance, award symbols, compile report cards, or verify claims made by manufacturers. OGS shall also consider utilizing bid specifications and contracts let by the federal, other state or local governments, including New York City, or purchasing consortia for products meeting the requirements of this Order. Once a Sustainable Supplies List has been approved by OGS, all agencies shall procure their supplies from the list. In addition, the lists shall also include supplies that meet the EPP criteria that are on existing state contracts, if feasible.
“Costs” as used in this Order shall be quantifiable and may include, without limitation: the price of the supply being purchased; administrative, training, storage, maintenance or other overhead; value of warranties, delivery schedules, financing costs and foregone opportunity costs; and the life span and life cycle costs which may include, but shall not be limited to, costs or savings associated with raw materials, production, manufacturing, construction, packaging, distribution, use, energy use, maintenance, operation, salvage, disposal, and any associated public health and environmental costs. Nothing in this Order shall be construed as requiring an agency to procure a supply that does not perform adequately for its intended use or purpose; is only available at a prohibitive cost or within an unreasonably long period of time. When determining and comparing costs of various supplies, agencies shall not focus exclusively on price, but shall consider cost as defined in this Order to ensure that the total cost of ownership or implementation is considered, and the best value is realized.
IV. Environmental Audits
State agencies and public authorities shall arrange for an Environmental Audit to identify inventories of products, annual purchases, operations and services, and current waste production and energy, water and paper use, and to identify opportunities for waste prevention, energy efficiency, environmentally preferable purchasing and cost savings. Each agency will develop an agency-wide plan including milestones to meet the environmental goals of this Order. Audits will assist agencies in identifying improvements and help establish a baseline from which progress can be measured in future years. Such audits shall identify opportunities for: (i) toxics use reduction and material substitution, prioritizing the list of toxic substances of concern identified in this Order; (ii) waste prevention, reduction and reuse; (iii) recycling and composting; (iv) increased energy efficiency; (v) water and natural resource conservation; (vi) other practices that reduce health or environmental impacts. The goals of such audits are to strengthen the State’s commitment to waste reduction, recycling, environmentally preferable purchasing and energy efficiency while generating savings through increased effort at all State facilities. The OGS shall coordinate the implementation of this Order, and shall be assisted by the Council and Advisory Committee. The EFC, NYSERDA and ESD shall provide technical assistance, such as securing professional services to conduct the audits.
V. Office of General Services and State Agencies Task Force
Within 2 months of the effective date of this Order, the OGS Commissioner shall create a Division Director of Safe and Sustainable Procurement (DD) position. The DD shall assist the Commissioner in carrying out the duties under this Order and shall serve as Chair of the Task Force. Within 2 months, each agency with 100 employees or more shall assign an individual to serve as their Sustainable Procurement Coordinator. The coordinators of all agencies with 500 employees or more and the New York Research & Development Authority (NYSERDA), Empire State Development (ESD) and Environmental Facilities Corporation (EFC) shall serve on a Task Force. Coordinators shall be given full management support and provided with the necessary resources to meet the goals of this Order. The Task Force shall assist the OGS with implementation of the state’s Safe and Sustainable Procurement Policy, including but not limited to: (i) identifying at least 3 priority categories of supplies every year; (ii) developing evaluation criteria; (iii) creating sustainable supplies lists; (iv) conducting environmental audits; and (v) conducting product testing as appropriate. The DEC, DOH, NYSERDA, ESD and EFC will assist the OGS in carrying out the duties of this Order.
Within 14 months after the effective date of this Order, and annually thereafter, the OGS shall submit a progress report to the Governor. The report shall include: (i) progress made toward implementing this Order by the OGS and other agencies, including for each agency a listing of issued bid specifications and contracts that contain EPPs. It will include a current list of EPPs on the Sustainable Supplies List, a list of priority category supplies that do not meet the state’s EPP criteria and the reasons for such; quantification of environmental benefits and cost savings; evaluation of whether funding is sufficient to implement this Order; and a work plan for the next year that identifies OGS’s priority product categories and the goals for each agency. Every agency shall provide all reasonable assistance and cooperation requested by OGS and the Council for the purpose of carrying out this Order. Such assistance shall include the assignment of staff and the provision of support services, including a website and annual EPP training event to facilitate the sharing of information among agencies and other state contract end-users. A new Division Director position shall be created, and resources shall be made available to OGS.
OGS shall provide opportunities for public review and comment to the extent practicable on the selection of priority categories and the Sustainable Supplies Lists, with a minimum 45 day comment period with statewide public notice, the development of a statewide contact list of concerned citizens and organizations, and public notice of all meetings of the Advisory Committee created in Section VI. OGS shall design and implement training and education program with accessible publications to ensure that all appropriate agency staff, vendors and contractors are familiar with the policy, and shall promote the policy by creating reward programs that recognize agencies, divisions, individuals, vendors or manufacturers that make exemplary efforts.
VI. Advisory Committee
There shall be a Sustainable Procurement Advisory Committee consisting of three members appointed by the governor, two members recommended by the Senate Majority Leader, two members recommended by the Speaker of the State Assembly, one member recommended by the Commissioner of DEC, one member recommended by the Commissioner of DOH and one member recommended by NYSERDA. Members shall include sustainable procurement experts and representatives of manufacturers, vendors, labor, environmental and health organizations that support the goals of this Order. The first meeting shall be held within three months of the effective date of this Order. The Committee will advise and assist the OGS in carrying out its duties, annually evaluate the program and the adequacy of its budget, and submit an annual report to the Governor with any recommendations. The members of the Committee shall serve without compensation, except that they may be reimbursed for out-of-pocket expenses incurred in the course of performing their duties as members subject to available funds.
This Executive Order shall take effect immediately.
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