<DOC>
[107 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:81719.wais]
S. Hrg. 107-664
CHEMICAL SECURITY ACT, S. 1602
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON SUPERFUND, TOXICS, RISK, AND WASTE MANAGEMENT
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
ON
A BILL TO HELP PROTECT THE PUBLIC AGAINST THE THREAT OF CHEMICAL
ATTACKS
__________
NOVEMBER 14, 2001
__________
Printed for the use of the Committee on Environment and Public Works
______
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WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred seventh congress
first session
JAMES M. JEFFORDS, Vermont, Chairman
MAX BAUCUS, Montana BOB SMITH, New Hampshire
HARRY REID, Nevada JOHN W. WARNER, Virginia
BOB GRAHAM, Florida JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut CHRISTOPHER S. BOND, Missouri
BARBARA BOXER, California GEORGE V. VOINOVICH, Ohio
RON WYDEN, Oregon MICHAEL D. CRAPO, Idaho
THOMAS R. CARPER, Delaware LINCOLN CHAFEE, Rhode Island
HILLARY RODHAM CLINTON, New York ARLEN SPECTER, Pennsylvania
JON S. CORZINE, New Jersey BEN NIGHTHORSE CAMPBELL, Colorado
Ken Connolly, Democratic Staff Director
Dave Conover, Republican Staff Director
------
Subcommittee on Superfund, Toxics, Risk, and Waste Management
BARBARA BOXER, California Chairman
MAX BAUCUS, Montana
RON WYDEN, Oregon LINCOLN CHAFEE, Rhode Island
THOMAS R. CARPER, Delaware JOHN W. WARNER, Virginia
HILLARY RODHAM CLINTON, New York JAMES M. INHOFE, Oklahoma
JON S. CORZINE, New Jersey MICHAEL D. CRAPO, Idaho
ARLEN SPECTER, Pennsylvania
C O N T E N T S
----------
Page
NOVEMBER 14, 2001
OPENING STATEMENTS
Boxer, Hon. Barbara, U.S. Senator from the State of California... 1
Carper, Hon. Thomas, R., U.S. Senator from the State of Delaware. 15
Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New
York........................................................... 9
Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey.. 3
Inhofe, Hon. Jim, U.S. Senator from the State of Oklahoma........ 8
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 40
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 11
Voinovich, Hon. George V., U.S. Senator from the State of Ohio... 8
WITNESSES
Orum, Paul, director, Working Group on Community Right-to-Know... 21
Prepared statement........................................... 54
Letter, to Attorney General Ashcroft......................... 68
Responses to additional questions from Senator Corzine....... 59
Shinn, Robert C. Jr., commissioner, New Jersey Department of
Environmental Protection....................................... 17
Prepared statement........................................... 40
Stanley, William, sourcing-regulatory manager, Deepwater
Chemicals; on
behalf of the Synthetic Organic Chemical Manufacturers
Association.................................................... 23
Prepared statement........................................... 69
Steinzor, Rena, academic fellow, National Resources Defense
Council........................................................ 25
Prepared statement........................................... 76
Responses to additional questions from Senator Corzine....... 153
Webber, Frederick L., president and chief executive officer, The
American Chemistry Council..................................... 19
Prepared statement........................................... 43
ADDITIONAL MATERIAL
Articles:
Baltimore Sun, October 17, 2001, When Chemical Safety is a
Matter of Security......................................... 91
Energy Insight Today, September 14, 2001, A Vulnerable System
Looks for Security......................................... 120
Environmental Science & Technology News, June 1, 2000,
Anatomy of a Successful Project............................ 122
Houston Chronicle, July 23, 2001, Tunnel Damage Assessed
After Derailment, Blaze.................................... 95
Los Angeles Times, January 6, 1985, Flaws Found in Emergency
Plans Near Toxic Plants.................................... 89
New York Times, January 28, 1985, The Bhopal Disaster: How it
Happened................................................... 81
Scientific American, July 1995, Toxins Abounding Despite the
Lessons of Bhopal, Chemical Accidents are on the Rise...... 118
Washington Post, November 12, 2001, Toxic Chemicals' Security
Worries Officials: Widespread Use of Industrial Materials
Makes Them Potential Target of Terrorists.................. 79
Design for Prevention, Minimum Safety and Security Standards for
EHS Facilities................................................. 66
Letters:
Design for Prevention........................................ 64-68
Greenpeace..................................................165-167
Reports:
Assessment of the Incentives Created by Public Disclosure of
Off-Site Consequence Analysis Information for Reduction in
the Risk of Accidental Releases, Department of Justice....103-117
Assessment of the Increased Risk of Terrorist or Other
Criminal Activity Associated With Posting Off-site
Consequence Analysis Information on the Internet,
Department of Justice......................................96-102
Industrial Chemicals and Terrorism: Human Health Threat
Analysis, ATSDR, Department of Health and Human Services..130-137
Statements:
American Petroleum Institute................................. 153
Canary, William, president and chief executive officer,
American Trucking Association, Inc. (ATA).................. 155
Hind, Rick, legislative director, Greenpeace Toxic Campaign.. 164
National Association of Chemical Distributors................ 168
National Propane Gas Association............................. 170
Zillinger, Everett, director, Government Relations, The
Fertilizer Institute....................................... 159
Summary, S. 1602, Chemical Security Act.......................... 161
Text of S. 1602, Chemical Security Act..........................138-152
CHEMICAL SECURITY ACT, S. 1602
----------
WEDNESDAY, NOVEMBER 14, 2001
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Superfund, Toxics,
Risk and Waste Management,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:08 p.m. in
room 406, Senate Dirksen Building, Hon. Barbara Boxer (chairman
of the subcommittee) presiding.
Present: Senators Boxer, Inhofe, Specter, Corzine, Clinton,
Carper, and Smith, ex officio.
Senator Boxer. The hearing will come to order.
I'm going to ask the people on the second panel to please
come up and sit at the table since we really only have one
person speaking on the first. Then the staff person can move
directly behind the person who is speaking. If all the people
on the second panel can come forth and take seats, I think it's
better because we want to hear from all of you.
OPENING STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM THE STATE OF CALIFORNIA
Today, the Superfund, Toxics, Risk and Waste Subcommittee
will hear about the threat proposed by toxic chemicals and the
need to assure the security of those chemicals. Specifically,
we will hear testimony on the Chemical Security Act introduced
and written by Senator Corzine and co-sponsored by Senators
Jeffords, Clinton and myself. We have had to reorder our
priorities on a number of issues, and this has taken on a new
urgency since September 11. The security of toxic chemicals
throughout the United States is very high on that list of
priorities.
Whether there is a serious threat posed by toxic chemicals
in communities throughout the country, to my mind, is not in
question. One of our witnesses today, Frederick Webber,
president of the Chemistry Council, is representing 180 major
companies including Dow and Dupont. He said it well in an
article on toxic chemical security in the Washington Post just
this week. He said, ``No one needed to convince us that we
could be and indeed would be a target at some future date. If
they are looking for a big bang, obviously you don't have to go
far in your imagination. Just think about what the
possibilities are.''
Others have taken note of the terrible threat and taken
rapid steps to address it. Since September 11, the District of
Columbia's Blue Plains Wastewater Treatment Plant quietly at
night, and under guard, removed 900 tons of liquid chlorine and
sulfur dioxide. Practically overnight they accelerated a
program to use fewer toxic chemicals like bleach, instead of
chlorine gas, for wastewater treatment. Chlorine and sulfur
dioxide are so volatile that a rupture of just one 90-ton
tanker could release a lethal cloud that could spread over a
10-mile radius, killing thousands in just a few minutes.
My State of California is near the top of the list of
States with facilities with extremely hazardous chemicals
onsite. In fact, California has over 150 facilities with over
100,000 pounds of extremely hazardous substances near 34
million people who live in California. The threat is real and
it requires immediate attention.
Senator Corzine has introduced S. 1602, the Chemical
Security Act. I believe this is just the kind of thing we need
to do. We need to get ahead of the problem and not just react
to a tragedy. The Chemical Security Act provides the
Environmental Protection Agency and the Department of Justice
with the authority to intervene and issue an order when there
is a serious threat posed by problems with chemical security.
It also requires that those agencies develop regulations that
define priority sites and assure that basic security
precautions are taken which can include limiting the chemicals
stored onsite.
Let me just say that I understand the value of chemicals in
our society. We are not here today to question whether we need
chemicals. We do. May be not quite so much of them, but we do
need chemicals. What we need to do is to protect those
chemicals, especially the hazardous ones, from terrorist
threats. Let's be careful not to mix up those two issues.
I want to hear from Senator Corzine, since he authored the
Act; and then we will go to Senator Inhofe and Senator Clinton
for opening statements.
I want to sadly note the absence of the Environmental
Protection Agency and the Department of Justice. They were both
invited to come here. They declined to come, and I have these
nameplates in case they show up. They are right here and I will
put them out if they change their minds.
Frankly, I am at a loss as to why they wouldn't choose to
comment on these issues, whether they agree with Senator
Corzine's bill or not. We really wanted to hear from them. I
don't know whether we will have to have another hearing where
we require their presence but I hope they will, of their own
accord, choose to engage with us.
We don't have the luxury of time. We need to get ahead of
these threats. We need to act. Industry frequently resists
additional regulation but I hope we can keep our eye on this
ball. All of us have a responsibility to make sure we do
everything we can to keep our country safe. Let us rise to the
challenge.
Now, I will turn it over to the author of this very
important bill, Senator Corzine. Thank you for your leadership.
[The prepared statement of Senator Boxer follows:]
Statement of Hon. Barbara Boxer,
U.S. Senator from the State of California
Today, the Superfund, Toxics, Risk Subcommittee will hear about the
threat posed by toxic chemicals and the need to assure the security of
those chemicals. Specifically, we will hear testimony on the Chemical
Security Act, introduced by Senator Corzine and co-sponsored by myself,
Senator Jeffords and Senator Clinton.
We have had to reorder our priorities since a number of issues have
taken on a new urgency since September 11. The security of toxic
chemicals throughout the United States is very high on the list.
Whether there is a serious threat posed by toxic chemicals in
communities throughout the country is not in question. In fact, one of
our witnesses today, Frederick Weber, president of the American
Chemistry Council, representing 180 major companies, including Dow and
DuPont, said it well in an article on toxic chemical security in the
Washington Post just this week.
He said, ``No one needed to convince us that we could be--and
indeed would be--a target at some future date. If they're looking for a
big bang, obviously you don't have to go far in your imagination to
think about what the possibilities are.''
Others have taken note of the terrible threat and taken rapid steps
to address it. Since September 11, the District of Columbia's Blue
Plains Waste Water Treatment Plant, quietly at night and under guard,
removed 900 tons of liquid chlorine and sulfur dioxide. Practically
overnight, they accelerated a program to use fewer toxic chemicals like
bleach instead of chlorine gas for wastewater treatment.
Chlorine and sulfur dioxide are so volatile that a rupture of just
one 90-ton tanker could release a lethal cloud that could spread over a
10-mile radius, killing thousands in just a few minutes.
My State of California is near the top of the list of States with
facilities with extremely hazardous chemicals onsite. In fact,
California has more than 150 facilities with over 100,000 pounds of
extremely hazardous substances.
The threat is real, and it requires immediate attention.
Senator Corzine has introduced S. 1602, ``the Chemical Security
Act.'' This is just the kind of thing we need to do--we need to get
ahead of the problem and not just react.
The Chemical Security Act provides the Environmental Protection
Agency and the Department of Justice with the authority to intervene
and issue an order when there is a serious threat posed by problems
with chemical security.
It also requires that those agencies develop regulations that
define priority sites and assure that basic security precautions are
taken, which can include limiting the chemicals stored onsite.
Let me just say that I understand the value of chemicals in our
society. We are not here today to question whether we need chemicals.
We do, maybe not quite so much of them, but we do need them.
What we need to do is protect those chemicals, especially the very
hazardous ones, from terrorist threats. Let's be careful not to mix up
these issues.
I also want to note the absence of EPA and DOJ. They were invited,
but declined to come. I am disappointed that they have chosen not to
comment on this issue or this legislation. We need to address this
head-on and work out our differences quickly. I certainly hope they
quickly join us in this process.
We do not have the luxury of time. We need to get ahead of these
threats. We need to act. Industry frequently resists additional
regulation, but I hope we can keep our eye on the ball. All of us have
a responsibility to make sure we do all we can to keep our country
safe. Let's rise to the challenge.
OPENING STATEMENT OF HON. JON S. CORZINE,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Corzine. Thank you, Madam Chairman. It's great to
work with you, Senator Jeffords and Senator Clinton on S. 1602,
the Chemical Security Act. Your longstanding leadership in
environmental and public health issues is a great asset to the
Senate. I certainly, like many of my colleagues, we look to you
for leadership in this area. I truly support your efforts and
appreciate your help here.
We also want to thank Senator Chafee for joining in holding
this hearing.
I think one of the fundamental facts you brought out so
clearly, is that chemical facilities are an obvious
vulnerability. As opposed to waiting until after the fact, it
occurs to many of us, including some of the witnesses today,
that we ought to be working on these obvious vulnerabilities
and get ahead of the curve. This area with regard to chemical
production processing, transportation and disposal is an
obvious area where terrorists could work.
The Justice Department called the terrorist threat to
chemical facilities real and credible. An April 18, 2000 report
goes in detail to describe where some of those vulnerabilities
might exist. It really laid down the marker for us to act with
regard to these areas, not only with stationary facilities, but
ones that are on our rail and mobile systems as well.
So I think there is a lot for us to do. Unfortunately, the
Justice Department, which was asked to bring forward a
vulnerability assessment of the nation's chemical industry, was
required in 1999 law, has not issued the assessment. We are
still waiting for it. I know Mr. Webber has spoken about this
as an important study. I think all of us should expect to have
it completed, brought forward and presented in a way so that we
can use the results.
My own view, and I think it is shared by a number of
people, is that additional regulations are necessary. We didn't
really need the Justice Department study to tell us that there
have been serious accident problems. These findings could be
translated into discoveries of more serious vulnerabilities
with regard to terrorists attacks if they had been brought on a
basis other than only accidents. We don't have to go back to
Bhopal or to recent events in France to see that there is quite
a bit of uncertainty about what causes of accidents, Lodi Dye
Company in New Jersey, where we lost life, and the Baltimore
rail tunnels.
I'm going to mention a circumstance on which I won't give
all the details, but one of the investigative reporters at one
of the New York television stations, either tonight or in the
next 2 days, will document literally walking into two chemical
and refining facilities in New Jersey along the New Jersey
Turnpike with a camera unchecked for over a hour. I think
reveals that some of the concerns one has with regard to the
security of these plants is real.
I personally think regulatory response is necessary. A
voluntary approach, in my view, while desirable, may be one
that I think the American public would not take great comfort
from. It's not unlike the kind of conversations and debate we
are having with regard to aviation security. Sometimes bottom
lines get in the way of people doing the right thing,
particularly with respect to the lowest common denominator of
some of the participants in the industry.
So I think self regulatory standards are a good concept,
but not always ones that work. I came from an industry where we
had a mixture of self-regulation and external regulation. I
think they are workable together. That is what we are trying to
do with this bill. This is a common-sense approach. We need to
prioritize chemical threats, take measures to reduce them.
We don't have to do all things, but we do need to reduce
comprehensive threats. This bill directs the EPA Administrator
to consult with the Attorney General, States and localities to
identify high-priority categories within our chemical
production, processing, transportation and disposal
infrastructure; designates those categories; allows the
Administrator to set factors, including severity of the harm
from a potential release or proximity to population centers,
threats to critical infrastructure that may surround these
issues, national security; and other things that the
Administrator may think are appropriate.
The bill directs the Administrator to consider threshold
quantities of chemicals. I think this is one thing we will hear
from one of the witnesses. We can protect small business where
there is little broad-based risk. On the other hand, it doesn't
leave out the fact that we need to act with regard to the
serious potential risks associated with explosions, non-
accidental, criminal and terrorist acts.
It gives the Administrator the ability to act quickly in
cases of severe risk that is identifiable now, but does allow
for a process to unfold over the next 2 years both in
identifying high priorities and developing the regulations over
a 2-year period. So it's not a crash program other than for
those places that, on a case-by-case basis, are particularly
threatening.
I hope people will look at my home State of New Jersey
which does have a regulatory approach, not to find an absolute
match; but one I hope Commissioner Shinn will describe that I
think has worked reasonably well. I think regulation can play a
positive role if applied properly. Again, this is not overly
proscriptive. We want to work with the EPA, the Attorney
General's Office, industry, State and localities to come up
with it.
I hope the Administration gets to work on this and we can
come up with a relatively rapid response. We should not be
acting after the fact when many times our responses might have
to be more draconian, more severe and more difficult. I think
we have before us a more pragmatic approach.
Like Chairman Boxer, I too am somewhat frustrated that we
have not had the kind of participation from EPA and the
Attorney General's Office with regard to this. It seems like we
can talk about it on CNN but not necessarily in a hearing room
of the Congress. I hope we can get to those areas quickly.
Thank you, Madam Chairman, for holding the hearing, and I
appreciate all the participants and their insights.
[The prepared statement of Senator Corzine follows:]
Statement of Hon. Jon S. Corzine,
U.S. Senator from the State of New Jersey
Thank you, Madame Chairman. I want to start by thanking you,
Senator Jeffords and Senator Clinton for working with me on S. 1602.
Madame Chairman, your long-standing leadership in environmental and
public health protection is a great asset to the Senate, and I am proud
to have you as an original co-sponsor of this bill. I also want to
thank you and Senator Chafee for holding this hearing today. I think we
need to get moving on this issue, and today's hearing gives us an
opportunity to gather information about how best to proceed.
Madame Chairman, in the wake of the attacks in New York and
Washington, it is clear that we need to look at all of our nation's
assets and people as potential terrorist targets. We need to shore up
vulnerabilities that have already been exploited, such as airline
security. But just as importantly, we need to identify other
vulnerabilities and address them proactively, before the fact.
I believe that one of our most obvious vulnerabilities is our
nation's chemical production, processing, transportation and disposal
infrastructure. Like the chairman's home State, my State of New Jersey
is the site of numerous industrial chemical facilities. These
businesses have helped to build New Jersey's economic strength, and
they produce valuable products that are essential to the nation's
economy. But the chemicals found at these businesses also pose
potentially grave risks to their workers and the communities that
surround them. Some of these chemicals are highly toxic, such as
chlorine, ammonia or hydrogen sulfide; others are highly flammable.
They can all have major impacts on our communities.
In 1995, an explosion at a facility in Lodi, New Jersey killed five
people. In June 1998, a release of cresol from a facility in Paterson,
New Jersey forced the evacuation of a nearby school, and caused nausea
and headaches in more than 50 kids, two of whom were hospitalized
overnight. These incidents are troubling, but they pale in comparison
to the most catastrophic chemical accidents that have occurred. The
release of methyl isocyanate gas from a chemical plant in Bhopal, India
in 1984 caused more than 2,000 deaths and many thousands of injuries.
And in September of this year, an explosion in a fertilizer plant in
France caused 29 deaths, thousands of injuries, and damaged thousands
of buildings.
Fortunately, we have not had such catastrophic accidents here in
the United States. But there is no question that the potential for
severe harm exists at some facilities. Some of the most compelling
evidence in this regard are the worst-case release scenarios that have
been developed by approximately 18,800 chemical facilities as part of
EPA's Risk Management Plan. One component of the worst-case scenarios
is an estimate of the number of people that could be adversely affected
by a ``worst-case'' release. An EPA analysis of the data shows that the
median number of people affected by a toxic worst-case release is
1,500. That means that the worst-case scenario at thousands of plants
has the potential to impact thousands of people. In the case of some
plants that are close to large population centers, the number of people
potentially impacted by a worst-case scenario is more than a million. I
certainly don't want to name any of those facilities in this forum, but
suffice it to say that New Jersey, with its dense population, has its
share.
Because of the potential to harm so many people by causing a
chemical release, chemical plants are attractive targets to terrorists.
This is not just my opinion, Madame Chairman. The Department of
Justice studied this matter last year and concluded in an April 18,
2000 report that there is a ``real and credible threat'' that
terrorists would try to cause an industrial chemical release in the
foreseeable future. The Department noted that attacking an existing
chemical facility, for example, presents an easier and more attractive
alternative for terrorists than constructing a weapon of mass
destruction. In addition, the Department concluded that many plants
that contain hazardous chemicals would be attractive targets for
terrorists because of the plants' proximity to densely populated areas.
Apart from this Justice Department threat assessment, the Agency
for Toxic Substances and Disease Registry, conducted a study of more
than 60 chemical plants in West Virginia, Georgia and Nevada. The
Agency found that security at those plants ranged from fair to very
poor.
Unfortunately, the Justice Department has not yet completed a
related vulnerability assessment of the nation's chemical industry that
is required by law. I want to join with the American Chemistry Council
in urging the Justice Department to complete this important study. It
is more necessary than ever.
I know that the chemical industry takes safety seriously, and has
been working hard to address security issues since September 11. The
American Chemistry Council has issued security and transportation
guidelines, and has scheduled meetings with its members to promote
them. I applaud these actions, but I don't think that they are a
substitute for regulations. I believe that most companies will do the
right thing, but I'm worried about the least common denominator. A
company that wants to cut corners is not likely to implement voluntary
guidelines. The American Chemistry Council or any other industry
association cannot and should not be put in the position of having to
self-regulate security standards. This is clearly a government role,
and one that requires new tools at the Federal level. Having said that,
I want to add that I want to work with industry on this bill, and fully
expect industry to play a key role in developing the regulations that
the bill would require, as they typically do. But I believe there
should be no dispute that new regulations are needed.
The primary reason is that there are currently no mandatory Federal
security standards for any chemical facilities. Even those in densely
populated areas. Even those with large quantities of extremely
hazardous chemicals. We do require owners and operators of such
facilities to prepare risk management plans that analyze the potential
offsite consequences of an accidental release of regulated substances.
These reports must include plans to prevent an unintended release, and
to mitigate the effects of such a release, should it occur. However, no
Federal requirements are currently in place that require specific steps
to prevent releases caused by criminal or terrorist activity.
Madame Chairman, S. 1602, the Chemical Security Act of 2001, would
give the Administration the mandate and the tools to take common sense
steps to address the highest priority threats from accidents and
attacks involving hazardous chemicals.
To enable the Federal Government to take action upon enactment to
address the most serious risks on a case-by-case basis, the bill
provides EPA and the Attorney General the authority to issue
administrative orders and secure relief through the courts to abate an
imminent and substantial endangerment from a potential accidental or
criminal release.
To reduce threats in a more comprehensive way, the bill directs the
EPA Administrator to consult with the Attorney General, States and
localities to identify ``high priority'' categories within our chemical
production, processing, transportation and disposal infrastructure. In
designating these ``high priority'' categories, the Administrator is to
consider a set of factors, including the severity of potential harm
from a release, proximity to population centers, threats to critical
infrastructure and national security, and other factors the
Administrator considers appropriate. The bill also directs the
Administrator to consider threshold quantities of chemicals in
establishing high priority categories. This is to ensure that small
businesses that pose little risk are not subject to the regulations.
The bill then directs EPA to work with the Justice Department to
develop regulations for the high priority categories that will require
them to take adequate actions to prevent, control and minimize the
potential consequences of an accident or attack.
The bill includes other provisions to enable the EPA and the
Attorney General to carry out and enforce the act, such as the
authority to obtain information that may be needed, while providing for
protection of trades secrets and national security information.
Madame Chairman, the legislation is not overly prescriptive, and
this is intentional. I believe that in the wake of September 11, it is
self-evident that the possibility of chemical attacks is something we
need to examine. So the heart of the bill is a requirement that EPA and
DOJ work with State and local agencies to ensure that the highest
priority threats from chemical
facilities are being addressed. But I don't want to tie the hands
of the Administration. I think that they should have wide latitude in
determining what types of chemicals and facilities need to implement
better security measures and take other measures to reduce risks. But I
do think they need identify the biggest risks and go after them.
Madame Chairman, strengthening security at high priority chemical
sources is an immediate and necessary step to safeguard our
communities. Over the longer term, however, I believe that our desire
to protect our communities and our environment will be best served by
reducing the use of hazardous chemicals. That's why this bill includes
provisions to require high priority chemical sources to reduce risks
where practicable by using inherently safer technology, well-maintained
secondary control equipment, robust security measures, and buffer
zones.
We have seen this type of approach work in New Jersey, where the
legislature enacted a law requiring facilities to implement alternate
processes that would reduce the risk of a release of extremely
hazardous substances. After the enactment of this law, the number of
water treatment plants using levels of chlorine at a level considered
extremely hazardous decreased from 575 in 1988 to 22 in September of
2001. Chlorine, which can cause a number of problems include burning of
the skin and eyes, nosebleeds, chest pain, and death, was replaced by
sodium hypochlorite or other much less hazardous chemicals or
processes.
Finally, Madame Chairman, I want to say that like you, I am very
disappointed that the Administration chose not to send witnesses to the
hearing today. Congress and the Administration need to work together on
chemical security, as we do on all of the post-September 11 challenges
and vulnerabilities that we face. I know that EPA has been working on
this issue, because I saw Administrator Whitman talking about it on CNN
last Friday. Even if the Administration was not prepared to provide
detailed testimony on the bill, they could have sent someone to answer
whatever questions they are prepared to answer at this point. So I want
to reiterate my call to the Administration to work with this committee
and this Congress on chemical security. If you believe, as I do, that
new Federal authorities and regulations are needed, then help us craft
a proposal. If you're opposed to new security regulations, you need to
explain that view to Congress and the American people.
Thank you Madame Chairman.
Senator Boxer. Thank you, Senator Corzine, for authoring
this bill.
Senator Inhofe, we will hear from you.
Senator Inhofe. Thank you, Madam Chairwoman.
First, I'd like to ask unanimous consent that Senator
Voinovich's statement be placed in the record at this point.
Senator Boxer. Without objection, so ordered.
[The prepared statement of Senator Voinovich follows:]
Statement of Hon. George V. Voinovich, U.S. Senator from Ohio
Thank you, Madam Chairman for calling this hearing on the Chemical
Site Security Act. While I agree with the goals of this legislation, to
safeguard our nation's chemical facilities and reduce the vulnerability
of our nation to the release of hazardous chemicals. I believe we need
to be very careful in how we go about this.
First, I believe the appropriate subcommittee to consider this Bill
is the Clean Air Subcommittee. This issue is an outgrowth of the Risk
Management Plan program under the Clean Air Act. Last Congress, the Air
Subcommittee considered S. 880, Chemical Safety Information Site
Security Act, which was enacted into law. In addition, the Chemical
Safety Board, the board this committee created to investigate chemical
accidents is also within the Clean Air Act. I will be asking Senator
Lieberman, the Chairman of the Clean Air Subcommittee to hold a hearing
on this Bill before it is considered by the full committee.
Second, I hope we don't use the urgency of September 11 to justify
fast tracking this Bill because the legislation does not address the
immediate issue of site security. Like most members of this
subcommittee, I would like to see our hazardous chemical sites better
protected, however, categorization is only required within 1 year of
passage of this legislation. Moreover, it will take 1 year to establish
all the rules to address high priority chemicals and it will take even
more time to implement those rules. Overall, we may not even see the
full effect of this bill for some 4 or 5 years, therefore there is no
urgency to rush this legislation through the process.
Third, the regulatory process is not conducive to this issue since
everything, including proprietary information, would need to be made
public. The comment period alone would likely address how to
prioritize, give locations and quantities of high priority chemicals
and in general provide great amounts of sensitive data publicly
available through the rulemaking process. Such a dissemination of
information could be a tremendous public safety risk and possibly an
even greater threat to national security. Last Congress the FBI told
this committee that the publication of the ``worst-case scenario''
plans under the Risk Management Program could be used by terrorists for
targeting of facilities.
We must be certain that the information called for by this
legislation will not create a similar risk.
Finally, the bill places a significant burden on small businesses,
even those just trying to determine whether the bill or subsequent
regulations would apply to their particular company. Because of the
unique dynamic of batch and specialty chemical production, these
businesses need operational flexibility. This bill would take away that
flexibility by mandating specific processes, hampering small companies
from reacting quickly to the marketplace. This could restrict a small
company's ability to compete globally. We must ensure that any
legislation considered by the committee will not result in releasing
trade secret information or cause a national security risk by
disclosing information which could be used by potential terrorists.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. I, first, want to welcome Mr. Bill Stanley,
the sourcing-regulatory manager of Deepwater Chemicals from
Woodward, OK. As everyone knows, Oklahomans are no strangers to
terrorism. It will be very interesting to hear Mr. Stanley's
testimony not only from the perspective of a small chemical
company, but also as a citizen and father.
Security must be our top priority, and we need to figure
out what are the potential problems and what is the best way to
address those problems. I know everyone is ready to do their
part to fight and respond to terrorism, but that is why
Congress needs to work with the President to develop a well-
thought-out strategy. As a matter of process, I am concerned
about us getting ahead of the President and Homeland Security
Director Ridge on this issue. Governor Ridge is working hard to
assess the threats and corresponding security measures to the
chemical industry as well as other potential terrorist targets.
I know Governor Ridge is working with all the agencies to
assess needs and coordinate responses. Additionally, Governor
Ridge should be working with the various sections of industry
to assess their security needs. I'm still waiting for the
Office of Homeland Security to develop proposals in order to
see what security issues we as a nation need to address.
I have some real problems S. 1602. In particular, I feel
many of the titles of this bill would do nothing to address the
terrorism threats. I hope this hearing is the beginning of a
well-thought-out process. FEMA, the EPA and other agencies have
been working hard to coordinate response efforts. When
addressing relevant legislative issues, Congress should follow
FEMA's and EPA's example so we, as lawmakers, can make our
nation proud.
Thank you, Madam Chairman.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. Jim Inhofe, U.S. Senator from Oklahoma
Thank you, Mrs. Chairwoman. I first want to welcome Mr. Bill
Stanley, the sourcing-regulatory manager of Deepwater Chemicals, from
Woodward, OK. As everyone knows, Oklahomans are no strangers to
terrorism, and it will be very interesting to hear Mr. Stanley's
testimony not only from the perspective of a small chemical company,
but also that of a citizen and father.
Security must be our top priority, but we need to figure out: what
are the potential problems; and what is the best way to address those
problems? I know everyone is ready to do their part to fight and
respond to terrorism, but, by firing before we have aimed, all Congress
could end up doing is wasting precious resources on non-existent
problems while neglecting real problems.
That is why Congress needs to work with the President to develop a
well thought out strategy. As a matter of process, I am very concerned
about us getting out ahead of the President and Homeland Security
Director Ridge on this issue--among others. Governor Ridge is working
hard to assess the threats and corresponding security measures of the
chemical industry as well as other potential terrorist targets. I know
that Governor Ridge is working with all the agencies to assess needs
and coordinate responses. Additionally, Governor Ridge should be
working with the various sects of industry to assess what their
security needs are.
While I am still waiting for the Office of Homeland Security to
develop proposals in order to see what security issues we as a nation
need to address, I have some real problems with S. 1602. In particular,
I feel like many of the titles of this bill would do nothing to address
terrorism threats.
I hope that this hearing is the beginning of a well thought-out
process. FEMA, EPA, and other agencies have been working hard to
coordinate response efforts. When addressing relevant legislative
issues, Congress should follow FEMA's and EPA's example, so we, as
lawmakers, can also make our nation proud.
Senator Boxer. Thank you so much.
I recognize Senator Clinton, who is an original co-sponsor
of this bill.
OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON,
U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Clinton. Thank you very much, Madam Chairman, and
thank you for holding this hearing.
Thank you also, Senator Corzine, for bringing attention to
this important issue. I think it is one that all of us on this
committee know needs to be addressed. We may have some
differences of opinion about timing or content, but I think
it's clear that the challenges that confront us since September
11 require a new level of alertness and preparedness and
certainly increased security has become a major focus for the
Federal Government as well as for State and local governments
and private industry.
We are taking hard looks at our nation's airports, at our
water treatment plants, at our nuclear power plants, at all of
our critical infrastructure and certainly our chemical plants
which do provide so many of the products that are important to
our quality of life and the functioning of our economy fall
into the category of important infrastructure and security
challenges.
I think it's our job to try to find out the best ways to
help provide State and local governments, as well as private
industry with the tools and resources they need to address any
challenges we confront. I'm concerned that the Justice
Department assessment has not yet been completed as required by
law. An April 2000 DOJ assessment concluded that, ``The risk of
terrorists attempting in the foreseeable future to cause an
industrial chemical release is both real and credible.''
Terrorists are likely to view the potential of a chemical
release from an industrial facility as a relatively attractive
means of achieving their goals.
Because we don't have a comprehensive assessment of this
problem and I hope we will soon, we have gone on the basis of
the information available to date including this preliminary
assessment from the Department of Justice. A number of States
as well as the chemical industry have engaged in their own
assessment and certainly the underlying need that Senator
Corzine's legislation addresses I think is without
contradiction. It is a question of how we proceed from here to
provide the maximum security that we possibly can.
Tomorrow, I will be introducing legislation, the Homeland
Security Block Grant Act of 2001, which will provide relief to
local and State governments to support them because clearly if
there is a chemical problem, either accidental or deliberate,
those who are on the front lines of emergency response are
going to be the soldiers in that battle to try to contain
whatever has occurred. Under this legislation, cities, counties
and towns across America would be able to access Federal funds
to better prepare themselves to provide additional law
enforcement, fire and emergency resources. I've been meeting
with emergency readiness experts and they tell me there is a
tremendous gap between what we require in terms of the
equipment, the uniforms, the spacesuits that are required to
encounter a lot of these dangers and what is available at the
local level.
We also have to continue to provide help to local agencies
to design, review and improve their disaster response systems,
to train our personnel and to better coordinate among all
levels of government as well as with the private sector. I
applaud our Ranking Member, Senator Smith of New Hampshire, for
his attention to the needs that FEMA under the Stafford Act has
in order to be totally up to date and well prepared.
I look forward to the witnesses testimony and to the work
we can do in this committee along with the Administration and
the chemical industry to try to make sure we are prepared and
despite the failure of the Justice Department to meet its
legally mandated, statutory deadline of August 5, 2000 for this
interim study, we will be paying close attention to the
challenges that we now know are not just imagined but real but
potential terrorist attacks.
I thank Senator Corzine for his leadership on this issue.
Senator Boxer. Thank you, Senator.
Senator Smith.
OPENING STATEMENT OF HON. BOB SMITH,
U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE
Senator Smith. Thank you, Senator Boxer, for holding this
hearing today on a topic that is very important to all of us.
Thanks to each of the witnesses for coming today to discuss
security.
Also, let me express my apologies for having to leave after
I do a brief statement because of other conflicting
obligations. I will try to come back but if I don't, it doesn't
mean I'm not interested.
The attacks that we saw on September 11 have left us all
with a certain sense of vulnerability. All of us have been
reevaluating security measures, what could be potential targets
all over the nation ever since that day. In New Hampshire, I
visited airports, water facilities, nuclear powerplants,
transportation infrastructure, manufacturing, an old air base
which is now a National Guard facility as well as a shipyard.
Like it or not, September 11 has changed us all forever. We are
now caught in the ongoing process of adjusting to the new
normal, if you will. What was normal yesterday is not normal
today.
We certainly want to get the most effective security
possible. We've all been involved in that. I've authored
legislation to deal with security matters for water
infrastructure and have joined Senator Inhofe in a bill to
address nuclear powerplant security and am pleased to be
working with Chairman Jeffords to address many other security
and terrorism response issues. Of course I would work with any
member of the committee to try to address needs we might have.
Protection of our country is not a partisan issue and I
think we all recognize that. When we talk about security, we
must realize there comes a responsibility to legislate in an
effective and efficient manner, as much as possible. We have to
base our decisions on the accurate assessment of the situation,
what the needs are and understanding of the role of the private
sector and the role and responsibility of government. We try as
best we can to base our response on facts as opposed to what
might be fear tactics or even in some cases, sensationalism.
I commend Senator Corzine for bringing this matter to the
front. I do not believe, however, that his legislation is the
right answer, respectfully, and I just want to briefly point
out why. I share his desire for our chemical infrastructure to
be safe and prepared but I would advocate a different approach,
especially as it comes to achieving security.
Security, in my view, should be a cooperative effort
between the facility we are talking about, whatever it might
be, and the local, State and Federal law enforcement. It
shouldn't be confrontational. It should be a partnership with
an open line of communication. It's only through working
together and building trust that we're ever going to be able to
deal with these issues. We can't anticipate what's going to
happen or the extent of it. Usually we can't. Sometimes we get
a heads up but unfortunately, not often enough. Cooperation,
partnership, team work, coordination are the hallmarks of
successful security, not confrontation.
With respect, I would say to the Senator from New Jersey
this bill takes a different approach. It seems to me to make an
assumption that somehow the chemical industry doesn't seem to
share the concern and must be mandated to take responsibility
to see that the protection would occur. There is a new
regulatory punitive regime that creates frankly an adversarial
relationship under S. 1602. That might not be the intent of the
author, but I think that is the result.
A strained relationship between the private sector and
government is not going to lead to increased security; it's got
to be cooperative. We've seen tremendous cooperation since the
horrible events of the past few weeks between all levels of
government and the private sector. I don't want to weaken that.
That's not how we are going to protect the public. I know it's
not the goal of the author to do that and I respect that.
There is another fundamental question the bill brings to
the forefront and that is what is the proper role of the
private sector. I think it's good you brought that forward.
What is the role of the private sector in protecting itself
against potential criminal acts or an act of war? Clearly the
acts of terrorism that we have seen are acts of war but it's a
question, not being here, that I would pose to the witnesses.
Where do you believe the line of responsibility is for
protection against criminal acts? Where does the private
sector's responsibility end and law enforcement begin? I'm not
sure how we would ever assess that. We all pay taxes that
support the military and local law enforcement. The
Constitution mandates a primary responsibility of the
government to ``provide for the common defense.'' In this bill,
that law enforcement responsibility is that of the facility, in
my view. It actually makes it a crime for not being able to
prevent and act of terrorism. I think we have to think very
carefully about this. It would be a crime under this bill to be
the victim of a criminal act that caused a release. That's a
disconcerting proposition for many small businesses around the
nation who would fall under this legislation.
I want to support measures that improve our industrial
security. I believe it is the responsibility of these private
facilities to make all reasonable measures in providing
security. You do it to protect your assets, you do it to
protect the population, you do it to protect your workers.
Certainly you don't want to provide releases into the
environment. A post-September 11 security assessment of all the
nation's infrastructure is something we need to do. I think we
all have a responsibility to do that and I think this
legislation gets that debate started but security measures by
individual facilities should not be expected to take the place
of law enforcement. I think it is very important to make that
distinction. They need to be done in concert with law
enforcement, not replacing.
I'm also very concerned that the bill might give the
Federal Government the power to determine manufacturing
processes and even changes in the physical structure of the
plant, again, maybe not the intention but certainly it could
happen. It puts the Government in the position of making
business decisions.
Finally, let me say S. 1602's role, if you really look at
it, is basically one of role reversal here. The bill would put
the Government in charge of chemical manufacturing and chemical
manufacturers in charge of fighting terrorists. It should be
the opposite. That's not what we want to happen here. That's
not the responsibility. We need to work together but it
shouldn't be one or the other.
I hope, Madam Chairman, as we move through the discussion
that we can address some of these concerns and I, in all
sincerity, commend Senator Corzine for bringing the matter to
the forefront and we will have a good debate.
[The prepared statement of Senator Smith follows:]
Statement of Hon. Bob Smith,
U.S. Senator from the State of New Hampshire
Thank you, Senator, for holding this hearing today on a topic that
is important to all of us. I want to thank our witnesses for coming
here to discuss chemical security.
The attacks of September 11 have left us all with a sense of
vulnerability. Since that day, we have been reevaluating security
measures at what are potential targets across this nation, whether it
is our airports, water facilities, nuclear power plants, transportation
infrastructure, or our manufacturing facilities. Sadly, September 11
changed us forever--we are now caught in an on-going process of
adjusting to a new ``normal.''
I continue to be a strong supporter of ensuring the most effective
security possible. I have authored legislation to deal with security
measures for our water infrastructure facilities and I have joined
Senator Inhofe in introducing a bill to address security measures at
nuclear power plants. I am pleased to be working with the chairman of
the full committee to address many other security and terrorism
response related issues. I will work with any member of this committee
to ensure that any potential security gaps are identified and properly
addressed.
The protection of our country is not a partisan issue--and I will
never treat it as such. When we talk about security, we must realize
that there comes a responsibility to legislate in the most effective
and efficient manner possible.
We must base our decisions on an accurate assessment of the
situation, needs, and clear understanding of the role of the private
sector--and the role and responsibility of the government. We cannot
base our decisions on sensationalism or in response to fear tactics B,
we must rely on the facts.
I want to commend Senator Corzine for his interest and efforts with
regard to chemical site security--but, unfortunately, I do not believe
his legislation is the right answer. I certainly share with him a
desire for our chemical infrastructure to be safe and prepared, but I
would advocate a different approach for achieving security.
Security should be a cooperative effort between the facilities and
local, State and Federal law enforcement. It should be a partnership
with a constant line of open communication. It is only through working
together and building trust that will provide for the highest level of
security against any potential attack. Cooperation, partnership,
teamwork and coordination are the hallmarks of a successful security
apparatus.
Unfortunately, this bill takes a different approach. S. 1602
establishes a new regulatory, punitive regime that will create an
adversarial relationship between industry and government. A strained
relationship between the private sector and government will not lead to
increased security, but will only serve to weaken our ability to
protect the public. And I know that is not the goal of the author of
this bill, and it is certainly not the outcome I desire.
Another fundamental question that this bill brings to the fore is:
What is the proper role of a private sector entity in protecting itself
against potential criminal acts or acts of war?
Clearly the acts of terrorism that we have seen are acts of war. It
is a question that I wish to pose to each of our witnesses: Where do
you believe the line of responsibility is for protection against
criminal acts? Where does the private sector's responsibility end and
law enforcement's begin?
We all pay taxes that support a military and local law enforcement.
The Constitution mandates a primary responsibility of the government to
``provide for the common defense.'' In this bill that law enforcement
responsibility is that of the facility.
This bill actually makes it a crime for not being able to prevent
an act of terrorism. In fact, it would be a crime to be the victim of a
criminal act that caused a release. That is a disconcerting proposition
for the many small businesses around this nation who would fall under
this legislation.
I do support measures that will improve our industrial security,
and I do believe that it is the responsibility of these private
facilities to take all reasonable measures in providing security,
preventing releases and responding if one occurs. And a post-September
11 security assessment of all this nation's infrastructure is an
absolute must.
I am disappointed that the previous Administration did not do
this--as the law did require. But any security measures by individual
facilities should not be expected to take the place of law enforcement.
They should be done in concert with law enforcement.
I am also very concerned with provisions in this bill that gives
the Federal Government the power to determine manufacturing processes
and changes in a facility's physical structure. It puts the government
in a position of making business decisions.
S. 1602 is basically one of role reversal--the bill would put the
government in charge of chemical manufacturing and chemical
manufacturers in charge of fighting terrorism. I do have a number of
other concerns with the bill--such as the redundancies with other laws,
including transportation laws, that could cause problems. But given
that I am short on time, I will stop here.
I would like to ask unanimous consent that a letter from the
Association of American Railroads expressing opposition to S. 1602 be
placed into the record. I do, again, want to commend Senator Corzine on
his efforts, and I hope to work with him to address these concerns and
the mutual desire we all share with protecting this nation from
terrorists' attacks.
Thank you.
Senator Boxer. Thank you, Senator.
I think the debate has started. I'm going to make a couple
of responses. That's what we are fighting for, isn't it--the
ability to debate these matters. I want to respond very briefly
to the comments made by my colleagues and my Republican
friends.
First, the comment that we shouldn't get in front of the
Bush Administration in taking on this issue; we should wait for
Secretary Ridge and so on. I don't agree that it's the role of
the Senate to do nothing on important issues, whether we have a
Democrat in the White House or a Republican. I have a theory
that not all wisdom resides at the White House, regardless of
who the President is. I think we have a role to play and that's
why I think this is so important.
I think more to the point is the terrorists might not wait
for Secretary Ridge to have his plan in place. That's another
reason why I think it's important to act and important to push
to do what the right thing eventually we decide will be. I
think this bill is certainly on track.
The other question Senator Smith points out, that we should
have cooperation, we shouldn't mandate, is an important issue
and I would like him to think about this. If we didn't mandate
that there were hand baggage checks at airports, would the
airlines do it? If we didn't mandate checking for bombs in the
cargo hold, would the airlines do it?
Senator Smith. Frankly, I think they would, with all due
respect, if they wanted anyone to fly.
Senator Boxer. If we didn't mandate background checks on
employees with access to planes, would the airlines do it? The
answer is, they haven't, they still aren't and today, Secretary
Mineta had to demand they do the background checks on the new
employees. So let's get real. The fact is we do work with the
business community but the other fact is there are times when
you have to pass laws and you work with the industry in passing
the laws, but there may be some good apples and some bad apples
out there, some people who do the right thing, some companies
who do the right thing and some who are so concerned about the
bottom line that they don't. That's why we need fair laws.
I think the debate we've seen so far has been a good one,
but I think it goes to the heart and soul of some deeper
issues.
I see that Senator Carper has arrived. Do you have an
opening statement before I ask Senator Corzine to respond to
the attacks on his bill and to introduce Mr. Shinn?
OPENING STATEMENT OF HON. THOMAS R. CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. The frontal attacks? He's got broad
shoulders, I'm sure he's up to it.
Let me just say the chemical industry, probably no surprise
to the folks in this room, is clearly important to our country,
and is important to Delaware as well. I think Senator Corzine
is asking a lot of the right questions. I want to make sure
with the help of the folks at the table and a lot of others
that aren't at the table, we end up with the right answers.
Senator Boxer. That's the point of this hearing really to
listen to all the comments and try to help move this process
forward. Senator Corzine, will you take some time to respond
and also to introduce Mr. Shinn. Then I'll introduce the other
four panelists we have and we will get started.
Senator Corzine. I'll be brief but I do think some response
might be in order.
First of all, I couldn't agree more that I think we were
elected by the constituents of our various States to respond to
their needs and be attentive to the kinds of risks they
associated with. So I think it would be kind of hard for
Senators to ignore the kinds of problems that potentially put
their lives at risk. I will repeat, we have an immediate
example in New Jersey where the security associated with one of
the local plants broke down. We'll find more about the
specifics of that over the next 48 hours, but a very clear
situation of a breakdown in security.
I believe this is a cooperative effort. I've tried to sit
down with some of the folks in industry, and I don't think
these regulations should be written in a vacuum. They should
take into account the kinds of perspectives that individual
businesses might bring. As a matter of fact, I think
proscriptive legislation and detail is something we've tried to
stay away from in this bill. It is giving time for the
evolution of the specific regulatory structure and prescribes
only that industry be involved in that process. I think
cooperation is the fundamental element of it. I believe that to
be the case in regulation in general.
As regards victims as criminals, which I think we will hear
more about, this bill was specifically written that people
would only have criminal liability when there was negligence
that had been identified through a regulatory process and
discussed and then criminal liability could occur if there were
an event that was concurrent or followed after there had been
an identification of an issue. It's not the first order of
penalties or incentives, but for the life of me, I don't
understand how we would be able to justify that we have a
regulatory investigation or supervision and identification of a
problem, and a recommendation of a solution, but it is ignored
and becomes a problem that threatens the public or actually
involves the public. Why wouldn't that be subject to criminal
responsibility? I think that's different than going straight to
criminal responsibility.
As far as government making decisions about the chemical
industry and turning things around and indicating the
government is running the chemical business, I think that would
fly in the face of almost every regulatory regime that we have
in the country. I came from a very strongly regulated industry
and the securities business for the SEC is very much involved
in supervising certain aspects of how the securities business
works. We are having enormous national debate with regard to
the aviation security. I think that is on its surface an
argument that has failed in the context of seeking to reach out
and work with the industry to come to these points of view.
We should have those discussions. We should have them with
all the people at the table and all the others to try to bring
an effective, cooperative program that gives the public a sense
of security as well as just only looking at the bottom line of
the industry.
It is my pleasure to introduce the commissioner of the
Department of Environmental Protection of New Jersey. He is one
of my favorites because he's bald and has a beard. That
obviously means he has great insights to these kinds of issues.
He has served under the current Director of the
Environmental Protection Agency, Governor Whitman; was
appointed in 1994 as commissioner for New Jersey's
Environmental Protection; has a very strong reputation in our
State; spent many, many years as an elected official at local,
county and State levels; a very strong record and devotion to
open space, the Pinelands, which is a special natural risk of
New Jersey, farm preservation, water supply and solid waste
management, very skilled.
It's my pleasure to welcome Commissioner Shinn to our
hearing.
Senator Boxer. Thank you, Senator, and we will hear from
him. Following Mr. Shinn, we are going to hear, in the
following order, from Mr. Webber, president and chief executive
officer, American Chemistry Council, an industry group
representing major chemical companies. The chemical industry is
certainly an important partner in chemical security and we all
hope we can work together with you as we move forward on this
bill.
Next will be Mr. Paul Orum, director, Working Group on
Community Right-to-Know, which serves among other things, as a
clearinghouse on environmental risk information. Mr. Orum has
worked for more than a decade on issues related to the
reduction of chemical hazards and on efforts to reduce toxic
pollution.
Then we will hear from Mr. Bill Stanley, the sourcing-
regulatory manager of Deepwater Chemicals in Woodward, OK. We
heard you praised by our good colleague from Oklahoma. Mr.
Stanley is here today on behalf of the Synthetic Organic
Chemical Manufacturers Association. Mr. Stanley brings a little
different perspective in that his focus is more on small
business. Assuring the security of toxic chemicals at small as
well as large facilities is important if communities are to be
adequately protected.
Our last witness is Ms. Rena Steinzor, academic fellow,
National Resources Defense Council. Ms. Steinzor is a fellow
with the Council. The Council is a national nonprofit
organization of scientists, lawyers, economists and other
environmental specialists focused on protecting the public
health and the environment. NRDC has more than half a million
members nationwide.
We will start with Mr. Shinn. We will use the clock for 5
minutes but after that, you can go for another minute or so and
when it gets really over time, I will remind you. Please
proceed.
STATEMENT OF ROBERT C. SHINN, JR., COMMISSIONER, NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Mr. Shinn. Thank you for inviting me to testify today.
I am Bob Shinn, commissioner of the New Jersey Department
of Environmental Protection. I sincerely appreciate this
opportunity to talk about chemical plants, not only containment
but security as well.
I want to take this opportunity to also commend Senator
Corzine for the leadership in addressing this issue. It is
certainly a controversial one as we've seen already. In light
of September 11, discussion on the need to ensure adequate
safeguards to protect the public from any accidental or
intentional releases of hazardous chemicals, is especially
pertinent and timely. Due to security concerns and our
nervousness in New Jersey about the sites and chemicals, my
testimony will be general and not specific. I'm sure everyone
understands that.
There are two major themes I'd like to touch upon today.
First, I'd like to give the committee the benefit of New
Jersey's experience and successes in the area of chemical
safety preparedness and response. The second point I'd like to
make is that even in a State such as New Jersey with a
successful and comprehensive chemical safety program, there are
certain areas in which augmented Federal authority would
enhance our efforts.
While New Jersey's program is focused on prevention of
accidental releases of extraordinary hazardous substances and
not those releases caused by terrorist actions, we feel the
system we have set up and the preparedness we have instituted
positions us in a good way. We are not only on guard against
such an unfortunate occurrence but we must better be able to
respond if it did occur.
In the course of nearly two decades, we have built a
coordinated, effective program that not only works to prevent
releases of hazardous chemicals but also provides us with the
information and infrastructure so that we can respond on very
short notification. The release of hazardous substances does
happen. In this way, any releases that do occur, whether
accidental or intentional, can be contained and the impact
minimized. While our program in its entirety may not be
transferable to the Federal level, I hope this committee will
be able to take components of what New Jersey has done and use
pieces of it for the national benefit.
New Jersey is the nation's most densely populated State and
there are also a large number of facilities that produce or use
highly toxic chemicals. This has compelled us to be especially
diligent in ensuring there is little possibility that the
public will be exposed to the releases of these substances. I'm
not here to imply there our level of regulation would be
appropriate for or should necessarily be imposed upon other
States that do not have New Jersey's population dynamics or the
proximity of a number of facilities to the public.
In 1986, shortly after the tragic accident in Bhopal,
India, the New Jersey Legislature passed the centerpiece of the
effort I'm discussing, the Toxic Catastrophe Prevention Act,
commonly known as TCPA. It enabled our State to develop what is
the most comprehensive program in the country to prevent
accidental releases. Before I describe some of the more salient
points regarding our regulatory process, there is one feature
of the program I would like to highlight. While it's a
regulatory program, it was designed in cooperation with the
regulated community. Cooperation has been in place since the
very beginning of the program when we created the initial rules
in the 1986-87 timeframe with a very heavy industrial
population and very heavy industrial involvement.
Professional chemical safety experts from the chemical
industry and the insurance industry helped us write the rules
in the first place. A lot of time was spent with these
professionals to make sure that the technical requirements were
valid and appropriate. A few years ago when we readopted our
TCPA, we readopt regulations on a 5-year cycle, we incorporated
the Federal Accidental Release Prevention Requirements and to
make other improvements we had again intense interaction and
discussion with the regulated community over a period of
months. We asked for and received up front input from the
regulated community. We feel this hand in hand approach has
made for a more effective regulatory concept. This cooperative
spirit has also been reflected in the implementation of our
program.
In the past an environmental inspection could often an
adversarial encounter resulting in fines, penalties and orders.
We found it very effective to use these inspections to
emphasize compliance assistance rather than solely as a
violation spotting visit. When we perform an inspection of the
TCPA regulated facility, a typical inspection will be performed
over the course of an entire week during which we will work
with the facility managers to examine alternatives and in many
cases, involving the use of pollution prevention, innovative
technologies and some process change to bring facilities into
compliance. Many facilities realize efficiencies and enhance
their profitability and reduce liability once they implement
changes to their process.
We would strongly recommend that any Federal legislation in
this regard promote a compliance assistance approach to
regulation, without sacrificing appropriate enforcement
response when necessary. I realize this is a fine line and has
to be considered what it is well worth the effort to achieve
the optimal goal.
There are several key features in New Jersey's TCPA Program
that have contributed to the success of the program which you
may wish to consider in working through the Federal program.
The main thing I would suggest is that the overall philosophy
is expressed in Section 112(r) of the Clean Air Act place a
greater emphasis on prevention and preparedness. In New Jersey
we emphasize identification of risks and the steps that should
be taken to reduce those risks. At this time, we need to be
cognizant not only of accidental releases but those that may be
intentional as well with a renewed emphasis on front end
pollution prevention and quantitative risk analysis.
In New Jersey our law requires regulated facilities to
perform comprehensive reviews and risk assessments of all
possible release scenarios that may be caused by offsite
impacts. Presently Federal regulation only requires facilities
to perform analysis of worse case scenarios and one alternative
case scenario. Furthermore, in New Jersey we realize these
facilities quantitatively assess and characterize risk going a
step beyond any other process safety management and risk
management programs in the United States. This means that
potential releases and resultant offsite impacts that may occur
after each scenario must be quantified. To date, Federal
regulation does not require that process. We'd recommend
quantification be required where it is appropriate.
Senator Boxer. Thank you very much, Mr. Shinn.
We have been joined by Senator Specter who has said he will
forego an opening statement. He is here to listen. We are very
honored he has joined us.
We will next hear from Mr. Fred Webber, president and chief
executive officer of the American Chemistry Council. Welcome.
As you see, we have the 5-minute clock and I allowed an
extra 2 minutes, so please avail yourself of that time.
STATEMENT OF FREDERICK L. WEBBER, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, AMERICAN CHEMISTRY COUNCIL
Mr. Webber. Thank you, Chairman Boxer, and good afternoon.
My name is Fred Webber; I am president and CEO of the American
Chemistry Council's 180 members here today to share their views
on the important subject of security in the chemical industry.
I believe it is very important for members of this
subcommittee and for all of the Congress to understand three
basic facts about our industry. First, as you mentioned,
Chairman Boxer, our industry is a critical and indispensable
part of the nation's infrastructure. We make significant and
sustained contributions to America's economic and national
security. We make thousands of products that make peoples'
lives better, healthier and safer products that go into making
medicines and medical equipment, the space age materials used
by the military in stealth aircraft, aviation fuel and night
vision equipment, satellite communications systems and products
that make the water we drink safe and clean. What's more, every
manufacturing industry in the United States depends on the
products of chemicals for their survival and indeed their
growth.
Second, we have a culture of safety going back many years.
The nature of our operations requires it. This culture of
safety has created what the Department of Labor data shows is
one of the safest industries in the United States and indeed
the world. Our longstanding safety culture has in the last
decade has all been a culture of security that extends beyond
our industry to those with whom we do business, with whom we
work, with whom we supply. This commitment to both safety and
security is expressed through our industry's own voluntary
safety and security initiatives and our adherence to and
support for governmental standards and research and our
longstanding and effective partnerships with local, State and
Federal Government agencies including the all important first
responders.
Third, we have an important role to play in strengthening
our national security. We are working with EPA, the Department
of Justice and other law enforcement agencies to review and
strengthen security at our manufacturing facilities and to
protect against the diversion and misuse of our products. This
work was going on long before September 11. It has been
accelerated since then. For example, we have urged President
Bush to proceed with plans to conduct a comprehensive security
assessment of the chemical industry that Congress requested a
year ago to enhance our industry's security, programs and
practices. Our industry will benefit from a comprehensive
assessment conducted by appropriate Federal law enforcement,
national security and safety experts. We are working with the
Department and its contractor to improve its methodology. Lots
of things have changed since September 11, but one thing
hasn't. Security at our nation's industrial facilities
continues to be the result of a collaborative effort between
industries and government at all levels. I know I don't need to
remind you that the first line of defense in terms of security
is law enforcement.
As the Congress begins to consider proposals that might
further strengthen safety and security at industrial
facilities, we believe it should do so by building on this
basic framework. For example, we believe Congress should
develop legislation to require the development of a formal
information sharing system between law enforcement and national
security agencies and U.S. industries. That's because planning
and actions by industries must be based in large measure on
what law enforcement and national security agencies say is the
threat of a terrorist attack. Security also requires that the
right information get to the right people at the right time.
We also believe Congress should take advantage of and build
on existing mandatory and voluntary safety and security
programs and avoid reinventing any wheels. The legislation--and
I say this, Senator Corzine, very respectfully--introduced by
you we believe should be debated and examined. Overall, we
think the goal you've sent forth is easy to support, however,
we don't believe it is the right vehicle, at least in its
current design, to take us where we think we ought to go.
I'm not saying that more can't be done to strengthen
security and safety at our industrial facilities; rather, I'm
suggesting that there are alternatives that Congress might
consider. The GAO recommended one. In recent testimony before
the Senate, the GAO recommended that any programs designed to
combat terrorism must be based on sound risk management
principles that systematically analyze threats, vulnerabilities
and the critical nature or relative importance of our national
assets. We agreed with the GAO.
Senator Corzine's bill takes a different approach than the
one recommended by the GAO. It attempts to remedy theoretical
vulnerabilities before we've assessed what and where the actual
vulnerabilities exist. In a very real sense, it seems to
prescribe a cure before any diagnosis has been made.
We believe the Environment and Public Works Committee and
this subcommittee have important roles to play in this issue.
For example, we believe there needs to be a program that
provided financial assistance and tools to local emergency
planning committees. I think this is what Senator Clinton was
referring to earlier. In addition to the partnerships I
mentioned earlier in my testimony, we believe the Department of
Justice vulnerability study must be completed. I mentioned that
earlier, that an efficient and timely intelligence and
information sharing mechanism should be established and
significant Federal funding be made available to increase
security of the entire national transportation network.
In closing, our nation and its peaceful people face a new
threat. This new threat demands that we throw off old ways of
doing things and in their place, embrace new and more creative
approaches.
Thank you.
Senator Boxer. Thank you very much.
We will next hear from Mr. Paul Orum, director, Working
Group on Community Right-to-Know.
STATEMENT OF PAUL ORUM, DIRECTOR, WORKING GROUP ON COMMUNITY
RIGHT-TO-KNOW
Mr. Orum. I'm Paul Orum, director, Working Group on
Community Right-to-Know. Thank you for the opportunity to
testify and especially for your leadership introducing S. 1602,
the Chemical Security Act.
We are here about one fundamental question: will there be a
Federal program to reduce chemical industry hazards that
endanger nearby communities, whether from criminal activity or
accidents, or not?
The terrorist attacks of September 11 show plainly how
chemical plants and refineries could suffer a worst-case fire
or toxic-gas release. No longer can the chemical industry claim
that a worst-case release is too improbable to occur as we have
heard for years. No longer can the USEPA claim that hazard
reduction is strictly a local matter with no need for a
national program as we've also heard for years.
No longer can the Department of Justice neglect its duty to
review chemical security practices and recommend ways of
reducing vulnerabilities which unfortunately we have also seen
for years.
I hope that no one would now seriously propose that a
voluntary program would be enough to fix the problem and its
source. Congress has both an opportunity and a duty to fill a
big hole in our laws by requiring chemical producing facilities
to evaluate safer alternatives and use them wherever feasible.
The Chemical Security Act truly proposes constructive steps
toward a national prevention and security program and gives
government the tools it needs to protect communities in the new
era of terrorism.
People might think the right programs are already in place
but they are not. Currently no Federal law actively regulates
the vulnerability zones that hazardous chemical industries
impose on surrounding communities, nor does any Federal law
require firms to even examine safer alternatives. As a result,
thousands of communities across the country have chemical
hazards that may be wholly unnecessary.
Current laws generally speaking are limited to clean up,
planning, response and risk management. The Chemical Security
Act would also address eliminating and reducing chemical
hazards wherever practicable as the option of first resort.
Both government reports and other incidents show serious
security problems. You've mentioned several of them. I mention
more in my testimony, so I don't need to go back over them.
We've also been trying for some time to communicate with
the Department of Justice about its security study which you
also mentioned has not been concluded. I guess I will mention
one of those vulnerabilities. I was struck by an article in
which a professor since September demonstrated that he was able
to buy all the ingredients for nerve gas. Also, there are
chemical industry websites that assure buyers they will remain
anonymous after simply registering when buying chemicals.
Chemical fires and spills occur frequently and I provide
figures in my written testimony for the record.
I want to stress that the mostly volunteer local emergency
planning committees are no substitute for urgent national
efforts to reduce chemical hazards. A recent study of 32 active
LEPCs found that most of these committees believe they do not
have the time, resources or expertise to encourage hazard
reduction. There is a role for local volunteer efforts but
those efforts are no substitute for a national program. Again,
if site security at airports were voluntary, it would not make
me feel very safe.
I believe that only major policy changes will create a
successful national effort. For example, few chemical companies
have set measurable goals and timelines to reduce the inherent
hazards they bring to communities. In fact, only four out of
more than 350 facilities and companies we contacted in two
surveys had done so. The USEPA has also not taken obvious steps
to encourage inherent safety despite hearings on this topic in
1994 and 1995.
The Chemical Security Act proposes constructive steps to
fix the problem. Among the most important, it makes it a duty
of high priority industries to identify their chemical hazards,
take steps to reduce the possibility of releases wherever
feasible and minimize the consequences of any releases that do
occur. Second, it puts prevention first, truly a new stage in
U.S. chemical safety laws. Third, it encourages technological
innovation before static add-on security measures. It provides
a consistent definition of what inherently safer technology is.
It should encourage healthy competition to produce and market
new safer technologies and it gives Government the tools to act
and ensures the Government will act to protect communities.
I'll conclude by citing a relevant poll that suggests
people support a Federal role. It's the very last thing in my
testimony. Between 81 and 88 percent of people living within
one mile of a chemical plant say they would feel safer knowing
that EPA or OSHA were providing prevention assistance to that
facility. That poll took place prior to the September attacks.
Thank you for the opportunity to come here today and I'd be
happy to answer any questions.
Senator Boxer. Thank you very much. We will put your entire
statement in the record. That goes for all of our witnesses.
Mr. Stanley, you're next. You are representing the
Synthetic Organic Chemical Manufacturers Association. We
welcome you.
STATEMENT OF BILL STANLEY, SOURCING-REGULATORY MANAGER,
DEEPWATER CHEMICALS; ON BEHALF OF THE SYNTHETIC ORGANIC
CHEMICAL MANUFACTURERS ASSOCIATION
Mr. Stanley. Chairwoman Boxer, members of the subcommittee,
my name is Bill Stanley. I am the sourcing-regulatory manager,
Deepwater Chemicals in Woodward, OK. I am appearing today on
behalf of the Synthetic Organic Chemical Manufacturers
Association. I appreciate the opportunity to speak with you on
the issue of chemical industry site security.
My company, Deepwater Chemicals, is small. It has 30
employees. We produce fine chemicals, specializing in organic
and inorganic iodine derivatives. Deepwater Chemicals uses
batch manufacturing processes, a manufacturing method typical
of many smaller chemical companies. SOCMA represents the batch
and specialty chemical manufacturing segments of the chemical
industry, a segment mainly comprised of small businesses. With
this prospective SOCMA has been actively addressing process
safety and site security issues well before the tragic events
of September 11.
I will focus my remarks today on three specific areas.
First, I will describe batch manufacturing and its role in the
chemical industry. Second, I will explain how Deepwater
Chemicals and SOCMA are addressing site security. Third, I will
provide SOCMA's perspective of how industry and government can
most effectively collaborate to address security within the
industry.
The batch and specialty sector of the U.S. chemical
industry has played an integral though less visible role in the
success of the industry. These companies make the ingredients
used in both commercial and consumer goods. In this sector,
chemicals are produced in batches one at a time using the same
equipment to meet specific needs and customer demands. By
innovatively and efficiently fluctuating chemical processes,
batch producers are able to make different products within a
short period of time. As a result, a one-size-fits-all
regulatory approach does not work for these innovative
companies. This approach holds true in addressing site
security. Ensuring the safety of our facilities, employees,
neighbors and the environment is embedded in our industry
culture.
In February, SOCMA collaborated with others in the industry
to co-author a guidance manual onsite security. In October,
this manual was made available to SOCMA members and the public
at large on our website, SOCMA.com. To reach both association
members and nonmembers, SOCMA is also co-sponsoring a series of
regional site security workshops. At the company level, SOCMA
members like Deepwater have taken proactive measures to augment
existing environmental health and safety practices. These
include conducting vulnerability and security assessments at
the facilities and/or processes; communicating with law
enforcement or emergency responders; tightening access by
contract personnel; further controlling vehicle access and
security awareness training.
In addition, Deepwater Chemicals must also comply with
nearly 30 different regulations that have a cumulative effect
on security at the facility. Furthermore, we participate in
various community level programs such as our local emergency
planning committee or LEPC. In this capacity, we provide
technical expertise in the planning process, assist with the
training of local responders in handling hazardous chemicals
and provide information about chemicals and transportation
routes. As you can tell, handling chemicals to develop
extensive plans to address potential incidents covering both
onsite and offsite consequences.
SOCMA applauds this subcommittee for recognizing the
importance of chemical industry site security in S. 1602.
However, SOCMA has a number of concerns about the proposed
approach and its likely consequences. Under the bill, any small
batch company that produces or even handles a high priority
substance may be required to adopt and use new processing
techniques. Such requirements would hinder a company's ability
to innovate and grow by removing operational flexibility. In
our industry, the ability to innovate drives the ability to
compete globally. The chemical industry is already facing
increasing competition from abroad. Our industry currently
employs over 1 million workers. Neither our industry nor our
economy can afford to have these jobs move overseas.
SOCMA is also concerned with the bill's general duty
clause. Even the most extreme criminal actions by a third party
could subject a chemical producer to sanctions. This bill makes
it a crime to be a victim. These provisions also place the
entire burden of preventing criminal and terrorist activity on
the company. SOCMA is also concerned with the bill's
presumption that security will be enhanced by mandating safer
technology. S. 1602 assumes that processes can be redesigned
and inputs substituted based on a single perspective, potential
impacts on national security. This simplistic analysis
overlooks the realities of chemical processing. Process changes
must be preceded by a comprehensive assessment of the
consequences. For examples, will emissions increase, will
emissions be more toxic, will product quality and effectiveness
suffer? S. 1602 authorizes EPA to require changes without
considering realistic factors.
In moving forward, I urge the members of this subcommittee
to keep in mind that not all chemicals and facilities are
likely targets for terrorist attacks. A small company would be
better equipped to prioritize resources for those areas that
are most vulnerable by utilizing a tiered, risk-based approach.
SOCMA envisions a six step approach that begins with
determining which chemicals, processes and facilities are
likely targets. Once these six steps are complete, it will be
easier to assess whether or not the security measures in place
are appropriate for the potential threat.
I would like to conclude by confirming that there are
plenty of incentives to ensure safety and security in all of
our processes. We do not want accidents, nor do we want to be
the victim of an attack. I work in my facility, my friends work
in the facility. My friends and neighbors are important to me.
My failure to address these issues would impact me directly. We
are all in this together, our businesses, our communities, our
government leaders. We want to continue to work together on a
cooperative basis to evaluate and to respond to potential risks
in an effective manner.
I would be glad to answer any questions at this time.
Senator Boxer. Thank you very much.
Ms. Steinzor, you are next and our final witness today. You
are representing the Natural Resources Defense Council as a
fellow with that organization. We welcome you.
STATEMENT OF RENA STEINZOR, ACADEMIC FELLOW, NATIONAL RESOURCES
DEFENSE COUNCIL
Ms. Steinzor. Thank you. I appreciate the opportunity to
appear today to testify in support of S. 1602. In the wake of
the tragedies that began on September 11, this legislation is
one of the most important, proactive steps the Federal
Government can take in response to the threat of sabotage
involving toxic chemicals which belongs on anyone's top-10 list
of national priorities.
Existing law does not address this problem effectively.
Waiting for States to erect a patchwork of inconsistent
requirements could take years and would cost excessive amounts.
The American people clearly want their government to protect
them from the risk threats and they want those activities begun
yesterday. Not incidentally, the proposal you have before you
today, like the one Congress passed in 1986 in the wake of the
Bhopal tragedy will enable our nation's brave police,
firefighters and emergency personnel to combat accidental
releases of hazardous materials with the knowledge that the
Federal Government and private industry have done everything
possible to avoid placing them in harms way. For the sake of
these brave men and women and the public at large, NRDC urges
you to move this legislation toward enactment as quickly as
possible.
As you may remember, the Bhopal tragedy occurred when
equipment at a pesticide manufacturing plant malfunctioned
causing the release of a cloud of lethal methylisocyanate gas.
People in the crowded neighborhoods around the plant saw the
plume, assumed it was a fire and ran toward the factory to help
extinguish the blaze or simply to watch the excitement. As the
plume drifted over the plant gates toward the crowd, some 3,000
people dropped dead in their tracks.
Overcoming the temptation to view Bhopal as an example of
Third World ineptitude, a congressional panel traveled to a
twin Union Carbide facility in Institute, West Virginia only to
discover that although the county had prepared an emergency
plan, the plant manager did not realize it existed. Today,
there is still a tank of methylisocyanate at that Institute
plant even though other companies have converted to a closed
loop system that avoids the need to store such large quantities
of the deadly gas. This fact speaks volumes about the potential
of volunteerism to solve this problem.
Congress responded to Bhopal and its aftermath by passing
the 1986 Emergency Response and Community Right-to-Know Act,
which was refined and expanded by the 1990 Clean Air Act
amendments. Neither law addresses the all important task of
preventing such incidents, by reducing hazards and ensuring
plant transportation system security.
Human error in operating complex machinery killed several
thousand people in Bhopal. What price will we pay for
deliberate sabotage at such a facility? Indeed, it is commonly
understood by everyone involved at the grassroots level from
firefighters, police and other municipal officials to the
companies that own and operate the factories, railroads,
pipeline and truck fleets that local emergency response
capacity, even in large cities, falls far short of either legal
requirements or safe practice. Despite the valiant efforts of
fire departments nationwide, local governments under pressure
to fund other services simply have not given firefighters,
police and emergency medical personnel what they need to do a
very difficult job.
To date there have only been two confirmed attempts to
perpetrate terrorist attacks on facilities handling toxic
chemicals both of which fortunately were prevented. However,
there have been numerous accidents involving such materials.
Fifteen accidental gas releases of greater amount and toxicity
than Bhopal occurred in the United States between 1980 and
1990. Press accounts of these incidents indicates that luck
rather than preparation is the reason we have not yet seen
widespread fatalities. These realities demonstrate beyond any
reasonable doubt the importance of the legislation before you.
Although devolution of traditional Federal functions
through the States is a popular approach to government at the
moment, the events of September 11 have reminded us why we
operate under a system of Federal environmental laws. First and
foremost, the terrorist threat is an international threat and
we traditionally rely on the Federal Government to protect our
national security. Second, we must address hazards that cross
State boundaries. Many plants that experience an accident would
affect populations living in more than one State. Third, asking
50 States and thousands of local governments to assess the
threat of sabotage to chemical plant and transportation systems
would consume enormous resources and might well result in
failure in far too many places.
As for the question of whether industry volunteerism is
enough to meet this challenge, the information released thus
far suggests that industry is focusing on physical security
with prevention by hazard reduction a distant and far lower
priority. The instinct of most companies will be to post
security guards, strengthen fences and make alarms louder all
of which may well be appropriate but are an incomplete answer
in the face of the kind of coordination and determination
displayed by the terrorists who attacked us on September 11.
We appreciate your interest in moving this legislation
quickly and we plan to do anything we can to assist you in that
effort.
Senator Boxer. Thank you very much, Ms. Steinzor, and thank
you all. I thought you all made very important points for us to
consider in our deliberations.
We are going to have 7-minute rounds by each Senator and
we'll go as long as it takes. I'll start it and then pass it to
my Republican friend and we'll go as long as people have
questions.
Mr. Webber, when I opened, I made the point I was
disappointed that EPA wasn't here. You had nothing to do with
that but I wanted to ask you this. At a White House briefing
with Tom Ridge last Friday, Administrator Whitman specifically
addressed the issue of chemical security. She indicated at that
time that chemical security is just an extension of what EPA
already does. Administrator Whitman also indicated EPA is
dealing with this issue primarily through discussions with the
American Chemistry Council, which is your organization. Have
you been involved in such discussions with her?
Mr. Webber. Yes, I have, Chairman Boxer. I've met several
times with Governor Whitman and her top staff, specifically on
the issue of security, not only to exchange information but to
try to figure out really what her expectations of the industry
were or are and they were clear.
For example, she did expect us to issue site-security
guidelines not only for our own members but for the chemical
industry at large. Mr. Stanley and I both know that there are a
lot of chemical companies not represented at this table. We are
all concerned about them. We promised Governor Whitman and the
EPA that we would work to reach out to all of them. Indeed, we
have published site security guidelines as well as distribution
guidelines.
Senator Boxer. I don't mean to cut you short except I want
to make sure I understand. You have had several meetings with
Administrator Whitman on the subject of chemical security?
Mr. Webber. Absolutely.
Senator Boxer. Mr. Stanley were you involved in any of
those meetings?
Mr. Stanley. No, I was not.
Senator Boxer. Was your organization invited and attended
some of those meetings?
Mr. Stanley. Yes, SOCMA was.
Senator Boxer. Mr. Orum, was your organization invited,
your Community Right-to-Know organization?
Mr. Orum. No.
Senator Boxer. Ms. Steinzor, was your organization
included?
Ms. Steinzor. No.
Senator Boxer. Mr. Shinn, were you invited as someone who
has an active involvement in this issue?
Mr. Shinn. No.
Senator Boxer. Is anyone here from the EPA in the audience
today? Did they send anybody at all? We were hoping they would
have sent someone. I'm not going to ask you anything. I just
want to know if you're here. I would like to say as far as the
EPA is concerned, if you're meeting with the chemical
companies, it would be really nice to meet with the people of
the country who are frightened about this and who speak up for
safety. If no one is here then I intend to write a letter to
Administrator Whitman and hope to get some signatures from my
colleagues.
[Audience member stands.]
Senator Boxer. Did you say you were from the EPA? There is
someone from the EPA.
Mr. Heimlich. I am Doug Heimlich from the EPA. I'm just
starting my job today.
[Laughter.]
Senator Boxer. Well, if I might, first of all, welcome you,
and second of all, tell you I have heard of a baptism by fire
and this is it. If you could just take a message back to the
Administrator that we're very glad she's speaking with the
chemical companies but speaking for myself as chair of the
subcommittee, I hope she would include or meet separately with
the people who advocate for public's right to know and public
safety because we have to be balanced. That's why this
committee chose to have people from all sides. We don't just
meet with one group, we meet with everyone and I think that's
something she ought to do if she hasn't done it. It's just a
friendly suggestion.
Let me say further, Mr. Stanley you made an interesting
comment. You said, we don't want to have an accident. Our
people work in these plants. You said, I work in these plants.
Do you think the airlines want to have accidents, want to have
terrorism?
Mr. Stanley. Absolutely not.
Senator Boxer. Of course not. They have beloved employees.
I'm wearing on my wrist a bracelet dedicated to one of the
pilots who was in the plane that crashed into the Pentagon. So
of course our industry are good people and none wants to have
an accident to themselves, to their employees they put so much
into. You, yourself, are working in the plant. That's
understood.
The point I hope you'll think about today--I'm not asking
you to comment on it unless you want to--is that you may take
every precaution and go far beyond even a reasonable response
to the threat that Mr. Webber described in the newspaper as
being a very real threat but your neighbor who produces a
chemical may not have that same set of values you have or even
your intelligence or expertise and may do lesser precautions.
That's one of the reasons I think Senator Corzine is onto
something here. That's why we don't let the airlines--I'm
hoping we won't--decide their own security, because if it isn't
uniform, you'll have some airlines doing a whole lot being the
greatest citizens and the best workers, best employers and
working with their employees and doing everything right, and
you may have another that is more of a risk-taking operation
that puts the bottom line ahead of public safety. You don't
know that and to have some national law in place that says
we're all going to march down together as good citizens and
work together. I hope you will consider the fact that Senator
Corzine in writing this bill and my going on as a co-sponsor,
we know everyone means the best. That's not the question, but
how can we do something together where we have some uniform
standards and can make sure as Ms. Steinzor said that we are
protecting everyone, including the heroes who came in to mop up
after an accident happened.
I have 14 seconds left so rather than continue, I'm going
to ask my good friend from Oklahoma to take his 7 minutes at
this time.
Senator Inhofe. Thank you.
Since Senator Smith was criticized for some of the
statements or perhaps questioned the accuracy in his
statements, let me bring out a couple of these that I found to
be of interest to me. One of them was this bill actually makes
it a crime for not being able to prevent an act of terrorism.
In fact it would be a crime to be the victim of a criminal act
that caused a release. That's precisely, Mr. Stanley, what you
said in your opening remarks, isn't it?
Mr. Stanley. That is correct.
Mr. Inhofe. Mr. Webber, do you believe that would be the
position you might be in, not being able to prevent an act of
terrorism, that you could in fact be committing a crime for
being a victim?
Mr. Webber. Yes, sir. The way I think we would put it is
that it would appear in reading this bill carefully that it
would be a crime to be a victim of a crime.
Mr. Inhofe. Have either of you talked to some of your legal
advisers and so forth when you assessed this bill in
preparation for coming here?
Mr. Webber. Very carefully. I'm not an attorney but I
certainly rely on their expertise and that is their
interpretation.
Mr. Inhofe. Mr. Stanley, did you do the same thing?
Mr. Stanley. I was not directly involved with those
conversations but with SOCMA, my organization, yes.
Mr. Inhofe. Another thing Senator Smith said, reading from
his statement, ``I'm also very concerned with provisions in
this bill that gives the Federal Government the power to
determine manufacturing processes and changing in a facility's
physical structure.'' I've read a bit and am reading directly
from the bill under Inclusions it says ``reduce or eliminate
storage, transportation, handling, disposal, discharge of
substance of concern.'' I think that's probably what Senator
Smith was referring to when he's concerned about the provisions
of the bill giving the Federal Government that power. Do you
share that concern? Do you feel you are as concerned as Senator
Smith, Mr. Stanley, about the powers that seem to be given the
Federal Government in the affairs of your business?
Mr. Stanley. Yes, I do.
Mr. Inhofe. Let me ask you this. Let's say you had to
change. I think it one of you who said you might have to change
your facility as a result of this, making a change. In the
event that happened and there was an increase in emissions,
could it be that would trigger a new source review? What do you
think? Have you thought about that, Mr. Webber?
Mr. Webber. Not really. I agree with the general
proposition that Mr. Stanley described.
Mr. Inhofe. I know this is mostly in refineries. We had
several hearings back when Republicans were important and I
chaired the Clean Air Committee, we held quite a number of
hearings on this. We went to Illinois where we saw the minor
changes, even if it did not affect emissions in refineries
could trigger a new source review which is a very elaborate
process whereby you have to back with an old facility and bring
everything up to the newest standards. This has application to
my understanding with you except before it would trigger that,
it would have to show that perhaps emissions were increased.
Mr. Webber.
Mr. Webber. You raise a very interesting point, Senator.
With your permission, I brought two colleagues with me, one of
whom could address this question. He is an expert in process
safety management. His name is Arthur Burke from DuPont. Would
you be willing to have him answer Senator Inhofe's statement?
Senator Boxer. Within the timeframe, if Senator Inhofe
would like, I'm delighted.
Mr. Burke. I'd like to start by acknowledging some common
ground between the Government, the American Chemical Council
and regulatory agencies, the Environmental Protection Agency in
dealing with the subject of inherently safer technology which
is the main thrust of Senator Corzine's bill. That common
ground is that we all promote and encourage the application of
inherently safer technology. Where we differ perhaps is how we
do that.
Both OSHA's safety management rule and EPA's Risk
Management Program rule require multidiscipline teams to
conduct process hazards analyses. PHA teams in conducting these
studies work to identify hazards, examine lines of defense and
make recommendations to reduce risk and strengthen those lines
of defense.
Typically, American Chemistry Council member companies
apply inherently safer technology through the conduct of these
process hazards analyses. ACC believes this is the proper
approach to applying and implementing inherently safer
technology. We believe that the Government could contribute in
a positive way to the application of ISP by giving
consideration to tax incentives to companies that implement
inherently safer technology. It's a way to go back to building
partnership relationship with the Government, industry, the
communities, working to implement inherently safer technology.
Senator Inhofe. But the specific question I'd ask is do you
think this could have the effect in the event that emissions
increased of triggering a new source review?
Mr. Burke. I'm not sure.
Senator Inhofe. I'm going to ask that you try to get me the
answer to that for the record.
Some criticized the Administration for not working with
each of these organizations. I'd like to ask both Mr. Stanley
and Mr. Webber did your organization work with Senator Corzine
in the drafting of this legislation?
Mr. Stanley. No, sir.
Mr. Webber. No, sir.
Senator Inhofe. It was contended in the opening statement
by Mr. Orum that there is not enough dialog between the
industry and the community. I'd like to ask Mr. Stanley, could
you please tell us what your company does with the local
community?
Mr. Stanley. Deepwater came to northwest Oklahoma after
being approached by the Woodward Industrial Foundation. The
town wanted to bring in more industry to develop the community
from that standpoint, so they knew up front what we did. That
began a relationship with the local community and exactly what
Deepwater does as a business. That continued on not only with
Deepwater Chemicals but several other local industries and
companies. We deal directly with the local emergency planning
commission and also with the SEPC. It's an open line of
communication and we just have developed that even further
since September 11 and we plan to keep on pursuing that also.
Senator Inhofe. I asked that question because I was doing a
talk show up Inwood when somebody came on talking about what
kind of citizen you are, who you work with, your concern for
the safety of the public and I appreciate that very much.
My time has expired but Madam Chairman, unfortunately we
have an amendment on the stimulus bill that started 5 minutes
ago.
Senator Boxer. Was it drilling in ANWR?
Senator Inhofe. No.
Senator Boxer. Because I was going to go over there.
Senator Inhofe. I would remind everyone out of 3,000 pages
in H.R. 4 dedicated to energy, only two of those pages
addressed ANWR, so the answer is no.
Senator Boxer. That's two pages too much for me.
Senator Corzine. Senator Inhofe, since you addressed a
question to Mr. Webber with regard to whether I had met with
the chemical industry, staff did actually sit down with a
number of folks if I have information correct. We didn't agree
on the direction that we were taking and there have been
several meetings from time to time in my own State with people
in the industry, specific individual companies.
Senator Inhofe. I appreciate that, Senator Corzine. I was
just asking since they are the witnesses here, if they had been
consulted.
Senator Boxer. We're going to stop the clock here. We're
going back to 7 minutes but go ahead.
Mr. Webber. I saw you frown when I gave my answer. I've
just been told by staff that indeed there had been staff
meetings and those staff meetings can best be characterized as
your staff presenting the outline of the legislation. Whether
there was room for input or not is anybody's guess but there
were those meetings and I paid a courtesy call on you
yesterday.
Senator Corzine. I wasn't speaking about the courtesy call.
Mr. Webber. I also want to acknowledge that you did meet
with representatives of our industry in New Jersey I think last
month.
Senator Corzine. I hope that once and for all, we will put
aside the view that this is a confrontational element. It is a
cooperative one. I think anyone that looks at a bill that's
going to take 2 years to make an assessment and then to write
regulations is leaving plenty of time for the evolution of this
in a cooperative sense. In a very technical area, I think it's
absolutely necessary that they be done and there is no intent.
I also find it hard to understand, I can't remember who
said there were no threat assessment facts that were underlying
this. The Department of Justice is in the midst of that. They
were supposed to have presented the threat assessment I think
it was in April 2000, if I'm not mistaken. I think a lot of us
are frustrated that hasn't been completed. The only thing we do
have from the Department of Justice says there is a clear and
present danger from these kinds of activities, terrorist
attacks applied to chemical plants. I'd like to have that
threat assessment too. I think that's a proper quantitative,
qualitative analysis that should be a part of this legislation
as we put that together. So I hope no one thinks that.
With regard to the sense that there may be differences in a
rural located plant in Oklahoma versus one on the New Jersey
Turnpike, we have been very specific, very specific that EPA
should identify high priority projects and then make different
assessments for different risk threats associated with it. I
hope when we talk about this bill we talk about it in the
context of how it is actually written.
With regard to victims as criminals, I think different
lawyers may be reading this differently because at least my
lawyers would tell me it is written that you have to have not
dealt with the substance of understanding what high priority
risk would be, followed by identified hazards and not dealing
with actions that were recommended by the EPA in the context
the regulations are written.
I am in no way trying to say that somebody that has an
airplane flying into their chemical plant is criminally liable
but if people haven't taken precautionary steps like having
security guards and high fences and other kinds of things or
high alarms even, where people can walk on plants and plant
bombs and create problems, I think there may be reason to
presume that there is some liability for those individuals that
go beyond civil. At least that is the intent of the
legislation.
I would ask Mr. Shinn that in your testimony you suggested
that sometimes when regulators work with industry, you may find
savings in new operations and new activities. I think you were
very specific about that if there is a cooperative element
about how one works together with processes and equipment.
Would you comment?
Mr. Shinn. I think we're finding more and more across our
program lines we just can't get to where we need to go alone.
We can't do it in the traditional regulatory fashion. A good
example is in this program, talking about the TCPA. In our
water treatment facilities, we had 500 pound or greater
threshold for chlorine. In less than 3 years, 375 of these
facilities had reduced the amount of chlorine on hand or below
the threshold, essentially removing them from the program. The
incentive was to have your storage below a certain threshold to
be out of the program altogether.
Senator Corzine. Was this a case where regulatory agents
were actually working with industry in a cooperative way?
Mr. Shinn. The other really valid benefit that came out of
it, 100 facilities, water treatment facilities, eliminated the
use of chlorine altogether and used other technologies,
ozonation and the list goes on but we really dramatically
reduced the storage of chemicals onsite for water treatment
facilities.
Senator Corzine. I'd ask any of the witnesses to respond to
a question I have about risk management plans that are part of
the Clean Air Act of 1990. EPA states there are 15,040 risk
management plans in place. Unfortunately, that only represents
80 percent of the facilities that are subject to them. There
are currently 18,800 facilities. That is a requirement by law.
Do we have some perspective on why these other facilities
are not meeting these risk management plans that I presume deal
with just accidental and mechanical issues? Any of the
witnesses want to comment?
Ms. Steinzor. There is virtually no enforcement of those
requirements by the agency and you point out that a large
number of the plants have not even prepared them. There is an
additional concern of their content and what they do say, and
whether they are adequate.
If things keep going the way they have, we may never get
access to them because there is even talk of pulling them out
of local reading rooms, much less off the Internet. I think
that would be the answer I'd offer, that there is not enough
enforcement.
Mr. Orum. I hope you will ask EPA that question about
enforcement. What I wanted to add is the risk management plans
were developed before the present era and do not include a
protocol or annex that would address specifically terrorism.
Likewise, the thresholds under that law were established
without terrorism in mind. So you have examples such as a one
ton tank of chlorine that can cause serious harm two miles
offsite not being included by itself in the program.
Senator Corzine. I asked that question because I have some
concerns about voluntary efforts in meeting guidelines if we
are not actually meeting the risk management plans that are now
in place with regard to the Clean Air Act.
Ms. Steinzor. It also is worth noting that it's my
understanding that DuPont was one of the companies that did a
closed loop system for methylisocyanate but the facility in
Institute, West Virginia did not take similar steps. Certainly
there are many members of the chemical industry, as Senator
Boxer said, who are very responsible and have really broken new
ground on preventing new hazards but something as simple as
that in the wake of Bhopal with all the notoriety of that
particular chemical, it's discouraging.
Senator Corzine. I think one of the reasons we feel that
legislation may be appropriate at this time is not for the
highest standards that are being executed by companies and
participants in the chemical industry, but we are fearful of
what the lowest common denominator may be doing with regard to
this.
I think the reality that not even today over a decade later
these risk management plans are in place should give people
some cause for concern.
Senator Boxer. I think that point is well taken because as
I said before, the same with any industry, there are good
actors and bad. It's refreshing if we could find some of the
good actors come out and say, we want our industry to reach the
highest standards. It's hard to find that happening. I'm not
critical here. It's just hard to find that.
I want to get to the industry mantra about this bill makes
it a crime to be a victim of a crime. Mr. Stanley, if a
terrorist blows up a chemical plant and there are lots of
casualties and the terrorist dies, he's a victim. Is he also a
criminal?
Mr. Stanley. Yes, he is.
Senator Boxer. I wanted to make sure we got that clear and
got that out of the way. We're not talking about that.
If a company knowingly fails to conduct a background check
on employees and hires a criminal and that criminal blows up a
plant or causes great damage, do you think there should be any
culpability there?
Mr. Stanley. Yes, I think there should be but I think our
industry as a whole has that viewpoint to make sure that we
have the assessments or security measures in place already. I
feel we are a safe industry. A small batch plant I think has a
little more flexibility. As far as Deepwater's own hiring
policy, we do a full background check because we are aware of
that, because of the chemicals already onsite.
Senator Boxer. The point I'm making is when you read
Senator Corzine's bill what you realize is what he's done is
allow the EPA which you are meeting with on a regular basis,
chemical companies are, to determine the regulations, and also
the Justice Department to come up with what penalty should be.
He doesn't even put any penalties in this bill. This mantra
about you're making victims criminals makes no sense at all
since this is going through the Justice Department and the EPA.
The fact is I think if a company knowingly avoids doing
criminal background checks, if this law were to pass, ignores
safety rules such as putting a dangerous chemical in the back
of a plant without a fence or a guard, you're darned right I
want to hold people responsible for that kind of irresponsible
behavior, just as I would an airline that doesn't do an engine
check and an engine blows up. Yes, you've got to make sure
people are responsible for their actions. I thought that was
what being a good citizen was about.
You have nothing to fear because you're doing the right
thing. Ninety percent of the companies, maybe more, maybe 99
have nothing to fear.
I want to ask Ms. Steinzor because she said something which
I wanted to probe a little bit. You said there were a couple
other near accidents. Could you elaborate a bit on that, in
America?
Ms. Steinzor. I think Paul has the precise number of near
misses which is a very important thing to take into
consideration.
Mr. Orum. Yes and no. No one has the total number of near
misses and no one actually has the big picture of chemical
accidents, however, 25,000 fires, spills and explosions each
year, small, medium and large is what we hear from the National
Response Center. About 1,000 of those have death, injury or
evacuation.
The point about near misses is that some analysts suggest
each time you have a catastrophic failure, you have 30 loss
time incidents, 300 recordable incidents and 30,000 near
misses. So the pattern of these many, many incidents suggests
we will have big incidents. If you count everything, even the
smallest spills, you get as many as 50,000 incidents a year.
Mr. Webber. I'd like to respond to that and get back to
background checks because we need your help on this.
First, on the National Response Center, it's important to
note that data is very limited in several important ways.
First, the data base NRC maintains includes non-chemical
related events, such as railroad crossing events. Second, the
NRC records that report incidents it is common for the Senate
to receive multiple reports of the same incident and they don't
distinguish.
Senator Boxer. What do you think the number is?
Mr. Webber. A fraction of what is reported.
Senator Boxer. Give me a number.
Mr. Webber. I can't give you a number.
Senator Boxer. A fraction of it is what?
Mr. Webber. A fraction of that which is reported.
Senator Boxer. You've got to give me a number.
Mr. Webber. I don't have it. I could do it for the record.
Senator Boxer. Would you do it for the record? Does your
assistant know?
Mr. Webber. I can find out. Case after case has
demonstrated to us there are multiple reports. We've gone to
the NRC and said, let's find out what the true rate of
incidents is involving chemicals specifically and we know it's
a fraction.
Senator Boxer. Is it more than 100?
Mr. Webber. I dare not speculate.
Senator Boxer. Nobody here from the chemical industry knows
how many incidents there are today, for the record?
Mr. Webber. We'd be pleased to respond in writing.
Ms. Steinzor. If I could add to that, first of all, there
is an opportunity if an incident is not what people thought it
was to begin with to correct the record with the National
Response Center and perhaps companies should start doing that
rather than questioning the figures the Center has.
Second, it certainly is true that railroad crossings would
be reported. Senator Corzine's bill and your bill, Senator
Boxer, cover transportation concerns.
Senator Boxer. It's a big issue.
Mr. Webber. I can give you an example and I hope this is
accurate. Last year, 170 deaths were reported in our industry,
158 were traffic accidents including railroad crossings
including the overturning of a milk truck. You have to put this
in perspective.
Senator Boxer. We're talking about incidents. What I'm
trying to get at here are the number of incidents. We were told
one number, you said it's a fraction. We'll hold open the
record. How long do you think it will take you to get me that
number?
Mr. Webber. Hopefully in a few days. We'll do it as quickly
as we can.
Senator Boxer. We will check our mail.
I'm going to have to leave. I'm proud to introduce the
President's choice for the head of the Peace Corps. That
hearing is down the hall, and I need to do that. I'm going to
give the gavel to my colleague.
Mr. Webber, if you need our help in terms of background
checks, I think that's a very legitimate point and maybe when I
leave, you can let the good Senator from New Jersey know that.
We want to be helpful and maybe he can put that in his bill if
you need that.
In closing, let me thank Senator Corzine so much. I had the
privilege of serving on this committee with Senator Lautenberg
and you have come right in. He was just unrelenting in his
desire to protect the public from toxic materials and you've
come right in and have that same fervor. I could not appreciate
it more than I do.
I want to say to the EPA individual who I believe is under
CPR in the back of the room if he could make the point to
Administrator Whitman one more time that this committee has
both sides at the table and they are distinguished people,
different perspectives, different points of view, that's what
America is. We debate things. It's important that she include
the environmentalists and the advocates for ordinary men and
women who may well be a victim of this kind of terror to the
table.
Senator Corzine did it and it isn't easy, I know, when
you're writing a bill that's going to say to an industry you've
got to do more. It isn't easy. He met with people in his State
his staff met with people here. I think that's good and I would
hope she would do the same. If you would let me know if that's
going to happen because I believe Ms. Steinzor you are ready,
willing and able to meet with Administrator Whitman, correct,
Mr. Orum?
Mr. Orum. Yes.
Senator Boxer. Then I think the Administration will come
out with a more credible proposal that we can support. If it
comes from a narrow industry that clearly has a particular
interest in terms of economics, it's not going to have the kind
of reception here that it deserves.
With that controversial statement, I will go off to the
Foreign Relations Committee. Thank you, Senator, and carry on,
please.
Senator Corzine [assuming the chair]. I appreciate it.
We have tried to put in the bill encouragement to have
safer equipment. I think we talked about how it would be easier
to accomplish if we had tax credits that made that attractive.
That in itself has embedded in it the question are there
processes we know are safer that are not being done because tax
credits aren't available with regard to either accidental or
criminal or terrorist releases of chemical processes? I
understand it as an old business hack myself, I wouldn't mind
having tax credits for investment purposes, it's a good thing,
but are there generally recognizable initiatives that because
tax credits aren't available we are not taking those steps?
Mr. Shinn. To generalize, I think going in the direction of
incentives and indicators to track the progress, I think you're
right on the money because we've tried to do a certain amount
of that. One of the things we recognize is the smaller batch
plants are harder to keep track of from a process, from a right
to know perspective, from a facility emergency response
perspective because their processes change all the time. They
may be making this batch today but next week they'll bid on a
different process.
You mentioned the lodi situation which will be embedded in
my memory a long time, a real tragic situation. Part of that
problem was the proper expertise for the batch they were
producing was not available when that batch ran away in the
chemical process.
I haven't figured out how to do it but you mentioned
credits and incentives. We think an area that has a lot of
promise is having the larger chemical companies mentor. I know
there is a lot going on through chemical organizations to do
this. We applaud that but some more incentivized way for larger
chemical companies to work with batch plants when they are in
complex issues because I think there is an expertise demand
that may not be satisfied.
Senator Corzine. You found that in some situations where
you've been able to work through a constructive and cooperative
relationship with some of the chemical processors, you've
actually saved money, people have come back after the fact and
said this was a good thing on a business basis as well as from
a regulatory perspective.
Mr. Shinn. I think when you look at the different laws we
have both Federal and State, discharge prevention, containment,
the Worker and Community Right-to-Know Act, the Emergency
Response and our TCPA Program, when you look at all those in
context, there's a lot of coordination that is needed between
those programs, and pollution prevention. If you put all those
together with a pollution prevention concept, you really get to
the ultimate goals I think everyone in this room is trying to
achieve.
When you jump to programs and have different guidelines
it's hard to get an overall concept together. I think we could
improve that process up to and including the Department of
Transportation commerce clause issues, when you get to know
what's in a box car that's unloading in your community. That is
another issue that weaves into this whole topic you engaged.
They are all part of a need for a coordinated approached that
involves many Federal agencies.
Senator Corzine. I would ask if anyone has anything they'd
like to comment on for a minute before we end.
Mr. Stanley.
Mr. Stanley. Especially batch plants, I'm not sure what Mr.
Shinn meant by mentoring some of the companies similar to
Deepwater Chemicals. We have an extensive staff as far as
technical and educated people from the standpoint of process
chemistry, chemistry and engineers. It's part of our education
when we design a process and the equipment to make sure it can
be done financially and from a safety standpoint, and the
environment.
I'm not sure where the thought goes with that. We don't
look at things like that. It's ingrained in our industry from
that standpoint. We are product specific. If we run a
chemistry, we realize there are certain routes that can work.
If you're meeting a specification of a customer, sometimes
there's very limited ways to go down there. You make the
business decision to produce that product.
It's difficult when you face a regulatory hurdle. That is
what kills the project. As a small company, we get few chances
to succeed and it becomes more difficult to compete when we
have more burden.
Mr. Orum. I want to again commend your interest in inherent
safety as the option of first resort. In my testimony, one of
the reports I cite was the recent study in Europe of four
firms, two in the Netherlands and two in Greece. They quickly
identified more than two dozen feasible, inherent safety
alternatives, the majority of which had a payback period of
less than 2 years.
To answer your previous question, I'd be very happy to put
you in touch with the authors of that and maybe in future
hearings, you can have them lay out specifics.
Tax incentives, it seems to me it runs the risk of having
to then do what this bill does not which is to designate
specific technologies you are rewarding. There can be problems
with that if you take that approach. For example water
treatment plants from chlorine gas that can drift offsite to
sodium hypochlorite, they don't have that particular risk
anymore but they still have a process that does not necessarily
have the capacity to take care of all the things a terrorist
might want to put into the water what you might have if you
went to a different process, say ultraviolet light. So it seems
if you do tax incentives, you have to set a standard rather
than pick technologies.
Mr. Shinn. As a response, I am sure the Deepwater plant is
well staffed from an expertise standpoint. I know our Deepwater
plant in New Jersey is, a different corporate person but the
plant I was talking about from our experience was the lodi
situation. I can't give you the specific chemical details but
that was a batch that was mixed and the temperature control of
the batch ran away and the chain of command to get to the
person that knew how to rectify that run away situation was not
immediately available and a whole lot of miscommunications
resulted in the explosion that ensued shortly thereafter.
I can tell you with the number of processes that go on in
New Jersey, there is a strong expertise that's present in 99
percent of the processes that go on. You only need an
underfunded, struggling company that takes a low bid to get
into a situation where it has trouble controlling its
processes. Quite frankly, I don't know the answer to that, I
don't know there is a good one but I know plants that go out
for subcontractors for low bids need to take an extra look at
the expertise in providing completion of that contract.
We have good experience with mentoring in other industries
and the chemical industry association we've had has done an
outstanding job in policing its entities. I think we have to go
further in this because we're in an atmosphere where we need to
go further.
Mr. Webber. A cornerstone of your bill calls on companies
to implement inherently safer technologies. I want to say for
the record my industry supports the use of inherently safer
technologies. It's an admirable objective and goal.
In Texas, one of our members replaced a bulk storage of raw
materials with a process that produces the same raw material at
the rate it is used. That means the company was able to
eliminate the need to store the material onsite. That's a good
example, shows initiative that Mr. Stanley doesn't want to see
diminished.
The real issue is should government mandate the use of
inherently safer technology? The Clinton Administration looked
at that hard and said, no and we think they made the right
decision. What do you do? You base it on performance. We think
the focus should be on performance. Then you would say are we
continually improving the safety and security of our
operations? Absolutely. It's not only good business, but we all
know it means better security, safer technologies, a safer
workplace.
The answer is a very, very strong yes. We follow procedures
outlined in OSHA's process safety management rule. They are
rigorous and tough. We adhere to them. Every chemical company
ought to be adhering to them and also EPA's risk management
plan rule. They are in place. That's why we worry about
redundancies, why we feel we are making progress and have safer
and more secure facilities.
I could go through the process of how we form teams and
work on all these issues, but I have to say that our approach
we think is making good use of inherently safer technology.
In terms of tax incentives, if the smaller company has a
financial barrier, our position still would be let's examine
ways to provide tax incentives so they can get there.
Ms. Steinzor. In 1999 there was a three alarm fire in
Baltimore and the reason for it was just as Commissioner Shinn
said, the day crew knew not to use steam in cleaning out a
plugged pipe, they forgot to tell the night crew and there was
an explosion. We are all human beings and we make mistakes.
That's why you are emphasizing pollution prevention.
NRDC has had a lot of experience with that. Attached to my
testimony is an article by Linda Greer, ``Anatomy of a
Successful Project,'' which talks about her work with Dow on
preventing pollution.
We have found is that when projects come to a company and
are all lined up, evaluating on the basis on the return on the
investment, very often, too often pollution prevention for
reasons that are frustrating to us do not make the cut because
we do not yet see the return on the investment will be very
much worth it in the same timeframe compared to other uses of
the money. Until we change that dynamic, we may well have a
situation where hazard reduction just doesn't take hold the way
we would like. That's one of the reasons we support your
legislation because it is a very good time to start looking at
those things again.
There was an economic analysis of airline security done a
few years ago where there was a calculation that if people had
to wait half a hour for a plane, it would cost billions of
dollars because of the price of their time. Looking at it now,
the conclusion was the benefits didn't equal the cost for
airline security. With the benefit of 20/20 hindsight, the
airline industry at stake, we would say it would have been
worth it. We always must be careful how we quantify benefits.
Senator Corzine. Thank you all for your participation and
lively discussion. I hope we can continue some of these out of
the hearing room. If there are ways we can make the victim is a
criminal language match with lawyers, I am more than happy to
work on that as long as there are real incentives to make sure
people move to correct problems. I'm not married to a
particular language if that is the sole objection.
On the other hand, I feel as strongly as I ever did that we
need to protect against lowest common denominator risk. I am
troubled by the fact that we have now laws that ask for risk
management plans that are not fully attended to, and we have a
different environment today than we had previous to September
11. I think there are enough examples in our society that would
lead one to believe there is room for improvement in this area.
There is a question basically of whether that can be done
voluntarily or whether it should be done through a regulatory
mode.
I would say in New Jersey, we don't have a perfect record
but I do think our regulatory structure has moved us down the
ball field in providing greater safety and assurance to our
public in a very densely populated State. I don't think anybody
is suffering the worse for the wear for it. Maybe we should be
a little stronger even.
I feel we have had a great discussion here. I appreciate
everyone coming and participating.
The hearing is adjourned.
[Whereupon, at 4:11 p.m., the hearing was adjourned, to
reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. James M. Jeffords,
U.S. Senator from the State of Vermont
I would like to thank Senator Boxer for her diligent work on
today's hearing. I also would like to commend Senator Corzine on his
fastidious efforts to promote chemical site security.
In the wake of September 11 and the ensuing war in Afghanistan, it
behooves us to think about the heightened threat of terrorist attacks
on our soil. No one ever imagined using a commercial airliner as a
weapon of mass destruction. No one ever thought that anthrax could seep
out of a sealed envelope and spread through the mail. No one ever
predicted that our very infrastructure, such as our water systems and
agricultural centers, would be vulnerable to terrorist threat. In fact,
such speculation seemed unlikely, almost ludicrous. Today is different.
Some say that the next level of potential targets is major chemical and
oil facilities. We can argue about whether that is the case, but it
does not hurt to be prepared. We must evaluate all potential domestic
threats now, and respond accordingly.
Two-and-a-half weeks ago, 400 pounds of methyl bromide was stolen
from a chemical storage facility in Florida. The thieves cut a hole in
the fence unnoticed by security personnel. Last week, 1,000 gallons of
ethylene diamine were spilled at a Texas chemical facility. The toxic
gas incident sent 15 to the hospital and, although believed to be an
accident, the cause of the spill is under investigation. Also last week
in Texas, a fire at a city sewage plant caused a chlorine leak. Between
100 and 200 residents were evacuated from their homes. The cause of the
fire has not been determined. These stories are chilling under any
circumstances. These days, they are particularly alarming.
It is important to note that small rural States are just as much at
risk of terrorist threat as traditional chemical producing States.
While my own State of Vermont is not a center for chemical
manufacturing, we do deal with large quantities of agricultural
chemicals as well as chlorine dioxide used to disinfect our water
supply and wastewater systems.
The Federal Government has the legislative tools it needs to clean
up, prepare for, and manage the accidental risks of chemicals. However,
we lack a mechanism to eliminate and reduce criminal behavior
associated with chemicals. While I appreciate the efforts of the
chemical industry in issuing draft security guidelines and educating
its members, the Federal Government can and should do more. The
Environmental Protection Agency and the Department of Justice must work
with our State and local governments, as well as industry, to develop
regulations addressing the most serious threats. And we need to do so
immediately.
The Environmental Protection Agency (EPA) and the Department of
Justice (DOJ) were invited to attend today's hearing. Both agencies
declined to send a representative. This concerns me. Last week, EPA
Administrator Christine Todd Whitman said that the chemical industry is
``doing as good a job as they can do right now, and [that] they're very
aware of where their vulnerabilities might be.'' I appreciate knowing
that but have not heard from EPA directly despite repeated briefing
requests. As chairman of the Senate Environment and Public Works (EPW)
Committee, it is my job to understand and oversee EPA's actions. My
goal is to work with EPA to mitigate potential threats; their role in
this extremely important and timely effort is critical.
Again, I thank my colleagues for their efforts on behalf of
chemical site security; and I look forward to moving S. 1602, the
Chemical Safety Act, through the EPW Committee.
__________
Statement of Robert C. Shinn, Jr., Commissioner,
New Jersey Department of Environmental Protection
Good afternoon. My name is Robert C. Shinn, Jr. I am commissioner
of the New Jersey Department of Environmental Protection. With me is
Allan Edwards, assistant administrator for the Office of Release
Prevention. We appreciate the opportunity to come before you today to
discuss the important topic of chemical plant safety and security. I
especially want to take this opportunity to acknowledge and thank
Senator Corzine for the leadership he is showing in this area.
In light of September 11th, a discussion on the need to ensure that
there are adequate safeguards to protect the public from any accidental
or intentional releases of hazardous chemicals is especially pertinent
and timely. I trust that you will understand that, due to security
concerns, my testimony will be general and not refer to specific
facilities or specific security measures we have implemented in New
Jersey.
There are two major themes that I would like to touch upon today.
First, I would like to give the committee the benefit of New Jersey's
experience and success in the area of chemical safety preparedness and
response. The second point I will make is that, even in a State such as
New Jersey with a successful an comprehensive chemical safety program,
there are certain areas in which augmented Federal authority would
support our effort.
While New Jersey's program has focused on prevention of accidental
releases of extraordinarily hazardous substances and not those releases
caused by terrorist actions, we feel that the system we have set up and
the preparedness we have instituted positions us in good stead. We are
not only on guard against such an unfortunate occurrence, but we must
be better able to respond if it did occur.
Over the course of nearly two decades, we have built a coordinated,
effective program that no only works to prevent releases of hazardous
chemicals but also provides us with the information and infrastructure
so that we can be ready at a moment's notice to respond if a release of
a hazardous substance does happen. In this way, any releases that
occur, whether they are accidental or intentional, can be contained and
the impacts minimized.
While our program in its entirety may not be transferable to the
Federal level, I hope that this committee will be able to take what New
Jersey has done and use it, or components of it, as a model for Federal
action where appropriate.
New Jersey is the nation's most densely populated State. It also
has a large number of facilities that produce or use highly hazardous
chemicals. This has forced us to be especially diligent in ensuring
that there is little to no possibility that the public will be exposed
to the release of these substances. I am not here to imply that our
level of regulation would be appropriate for or should necessarily be
imposed upon other States that do not have New Jersey's population or
number of facilities.
In 1986, shortly after the tragic accident in Bhopal, India, the
New Jersey State Legislature passed the centerpiece of our effort, the
Toxic Catastrophe Prevention Act, commonly known as TCPA. It has
enabled our State to develop what is still the most comprehensive
program in the country to prevent accidental releases. I may be biased,
but we think it is also the most effective.
Before I describe some of the more salient points regarding our
regulatory process, there is one feature of our program that I would
like to highlight. While it is a regulatory program, it was designed in
cooperation with the regulated community. Cooperation has been in place
since the very beginning of the program. When we created the initial
rules in 1986-87, we had very heavy industry involvement. Professional
chemical safety experts from the chemical industry and the insurance
industry helped us write the rules in the first place. A lot of time
was spent with these professionals to make sure that the technical
requirements were valid.
Then, a few years ago when we readopted our TCPA regulations to
incorporate the Federal Accidental Release Prevention requirements and
to make other improvements, we again had intense interaction and
discussions with the regulated community over a period of months. We
asked for and received up-front input from the regulated community. We
feel that this hand-in-hand approach has made for a more effective
regulatory scheme.
This cooperative spirit has also been reflected in the
implementation of our program. In the past, an environmental inspection
could often be an adversarial encounter resulting in fines, penalties
and orders. We have found it very effective to use these inspections to
emphasize compliance assistance rather than solely as violation
spotting visits. When we perform an inspection of a TCPA-regulated
facility, a typical inspection will be performed over the course of an
entire week where we work with the facility to examine alternatives--in
many cases involving the use of innovative technologies--to get the
facility into compliance.
To their surprise, many facilities realize efficiencies and
increased profits once they implement the changes to their processes
that were decided upon in this cooperative manner.
We would strongly recommend that any Federal legislation in this
regard promote a compliance assistance approach to regulation, without
sacrificing appropriate enforcement response, when necessary. I realize
that it is a fine line that has to be considered, but it is well worth
the effort.
There are several key features of New Jersey's TCPA program that
have contributed to the success of this program and which you may wish
to consider for incorporation into the Federal scheme. The main thing I
would suggest is that the overall philosophy, as expressed in section
112(r) of the Clean Air Act, place a greater emphasis on prevention and
preparedness. In New Jersey, we emphasize identification of risks and
the steps that should be taken to reduce those risks. At this time,
where we need to be cognizant not only of accidental releases but those
that may be intentional as well, an emphasis on up-front prevention and
quantitative risk analysis is called for.
In New Jersey, our law requires regulated facilities to perform
comprehensive reviews and risk assessments of all possible release
scenarios that may cause offsite impacts. Presently, Federal regulation
only requires facilities to perform analysis of worst-case scenarios
and one alternate case scenario. Furthermore, in New Jersey, we require
that facilities quantitatively assess and characterize risk, going a
step beyond any other process safety management and risk management
program regulations in the U.S. This means that the potential releases
and resultant offsite impacts that may occur under each scenario must
be quantified. To date, Federal regulation does not require
quantitative analysis of risk. We would recommend that such
quantification be required.
Our requirement that any and all release scenarios that may
possibly result in offsite impacts be analyzed and planned for has had
positive benefits not only for the public but also, in many cases, for
the facilities themselves. Because of the intense review and planning
efforts, State and local emergency response officials, as well as the
response officials for the plants themselves, have comprehensive plans
that cover a whole range of situations.
This review process has also benefited businesses, which invariably
improve their processes as they have gone through the scenario review.
Many improvements that otherwise would not have been considered come to
light. Some of the process improvements performed by the facility were
not specifically required by our regulations, but instead were inspired
by the facility itself. These are processes that make good economic
sense but would never have been done had the analysis not been
performed.
For example, the use of remote control shut off valves on chlorine
rail cars has become pretty common practice. However, this was not
always the case. It was not until facilities began to analyze scenarios
that it became obvious that in certain situations, emergency workers
would have to endanger themselves by going into what could be the
thickest part of the plume, find the switch and shut down the release.
There would also be the danger that the switch could not be reached and
the release would continue unabated. Remote switches make good business
safety and health decision sense.
As a practical matter, we would recommend the incorporation of
threshold amounts into any legislation that is considered. TCPA only
kicks in if a facility handles, uses, manufactures, stores or has the
capability to generate an extraordinarily hazardous substance at
specified threshold quantities. These thresholds have been developed
for each individual substance through scientific analysis of the
respective potential offsite impacts. The fact that there are
thresholds, and also the fact that there are fees applied based on the
amounts maintained over that threshold, provide real financial and
regulatory incentives to convince facilities that it would be in their
best interest to reduce inventories of extraordinarily hazardous
substances.
Over the life of this program, we have seen numerous facilities
either reduce the amount of the substances they keep on hand or change
their processes altogether so that they use more benign substances to
accomplish the same ends. For example, when our program first got up
and going in the fall of 1988, New Jersey had 575 TCPA-regulated water
treatment facilities meeting the then 500-pound or greater threshold
quantity of chlorine. In less than 3 years, 375 of these facilities had
reduced the amount of chlorine on hand to levels below the threshold,
removing them from the program. Another 100 facilities changed their
processes and ceased the use of chlorine altogether; instead using
alternatives that have the potential for only very limited offsite
impacts.
As I have emphasized, we are very proud of the program we have
developed in New Jersey to minimize the risk of catastrophic releases.
The TCPA program, working in conjunction with other programs such as
Discharge Prevention Containment and Countermeasures, Worker and
Community Right-to-Know and Emergency Response has established a
prevention and response system that is second to none. The DPCC
Program, for example, covers the universe of facilities whose releases
would not have the dire consequences of a TCPA release, but would still
cause adverse impact to the public and the environment. This program
has some requirements that mirror the TCPA requirements regarding
secondary containment and preparedness and prevention.
Still, however, there are areas where additional Federal regulation
would improve our efforts. Let me briefly describe those areas.
One thing that we would support is Federal promotion of the use of
inherently safer technology. It goes beyond what we feel we could
require at the State level in New Jersey, but we do believe that it
would be proper policy to promote safer technology at the Federal
level. Installation of inherently safer equipment would help to ensure
that facilities and emergency responders would have the most up-to-date
technology at their disposal in the event of a release.
It would also be helpful to New Jersey if a Federal statute allowed
for State regulation of the transportation of extraordinarily hazardous
materials. DOT regulations have historically been unclear as to when
freight is in transit and when it is not. Our TCPA program generally
regulates material once it enters onto a plant site. However, the
longer freight is in transit, the less opportunity we have to impose
regulations as a State. For example, there are some who are pushing for
railcars to be exempt from State regulation until they are completely
unloaded. Due to interstate commerce concerns, a State's jurisdiction
over the railcar and its contents is unclear while in transit.
DOT is currently taking comments on a proposal to define when a
commodity is to be considered ``in transit.'' This might be an
appropriate time for Congress to weigh in on this issue.
I thank you for this opportunity to come before you and discuss
this vital topic. We are available to answer any questions that you may
have.
__________
Statement of Frederick L. Webber, President and Chief Executive
Officer, The American Chemistry Council
Good afternoon. My name is Fred Webber. I am president and CEO of
the American Chemistry Council. I am pleased to speak today on behalf
of the Council's members on the important subject of security in the
chemical industry, a critical component of America's infrastructure.
I believe it is very important for members of this subcommittee,
and Congress as a whole, to understand three basic facts about our
industry.
First, our industry is a critical and indispensable part of the
nation's infrastructure. We make significant--and sustained--
contributions to America's economic and national security. We make
thousands of products that make people's lives better, healthier, and
safer--from medicines to medical equipment, from the space-age
materials used by the military in stealth aircraft to aviation fuel and
night vision equipment, from satellite communications systems to
ensuring that the water we drink is safe and clean. What's more, every
other manufacturing industry in the United States depends in some way
on the products of chemistry for their survival and growth.
Second, we have a culture of safety going back many years. The
nature of our operations requires it. This culture of safety has
created what Labor Department data reveals is one of the safest
industries in the United States--and the world. Our longstanding safety
culture has, in the last decade, evolved into a culture of security
that extends beyond our industry into those with whom we work. This
commitment-to both safety and security--is expressed through our
industry's own voluntary initiatives such as Responsible Care, our
adherence to and support for governmental standards and research, and
our longstanding-and effective-partnerships with local, State and
Federal Government agencies.
Third, we have an important role to play strengthening our national
security. We are working with the Department of Justice and other law
enforcement agencies to review and strengthen security at our
manufacturing facilities and to protect against the diversion and
misuse of our products. This work was going on before September 11. It
has been accelerated since then. For example, in addition to the things
we were doing either voluntarily or with others before September 11, we
have urged President Bush to proceed with plans to conduct a
comprehensive security assessment of the chemical industry that
Congress requested a year ago. We plan on conducting our own assessment
of industry security. Our industry will benefit from a comprehensive
assessment conducted by appropriate Federal law enforcement, national
security, and safety experts.
I intend to address these issues today within the structure of the
following outline. First, I will describe briefly some of the ways our
industry contributes to making our lives better, healthier, and safer--
in short, why the products of chemistry are so vital to our nation, its
people, our economy and our collective security. In doing so, I will
also describe some of the important industry programs and practices
that illustrate our industry's culture of safety--and the effect of
this in establishing and strengthening our culture of security. I will
describe the types of actions our industry has taken to enhance the
security of its facilities since the unspeakable events of September
11.
Second, I will identify many of the comprehensive and effective
laws and regulations that currently address chemical safety and
security.
Third, I will identify specific actions that we believe Congress
and the Executive Branch should take that would help our industry and
many other industries--improve security. And I will suggest some
creative ways in which the chemical industry can help Congress in
further improving our nation's overall security.
Finally, I will detail our views of the legislation currently under
consideration by this subcommittee--which has been introduced by
Senator Corzine and others--and ways in which we believe it can--and
should--be improved.
i. the chemical industry makes our lives better, healthier & safer
The chemical industry is a critical asset of our economy and our
nation's infrastructure. The science of chemistry and its benefits are
interwoven into our daily lives. The business of chemistry is essential
to the nutrients in our food, the purification of our water, the
military that defends us, the vests our police officers wear, the suits
our firefighters and pilots wear, the antibiotics so many people
recently have been forced to take, and the products that we rely upon
to heal and save lives. Chemistry not only makes life possible, it
helps make all our lives healthier, safer, and more enjoyable.
The chemical industry is committed to the highest standards to
safeguard our employees, our customers, our processes, our products,
and our communities. During the last decade, the chemical industry has
devoted significant attention and resources to improving security. Our
industry concentrated more heavily on security issues as cyber and
computer security issues began to arise. As our industry developed Risk
Management Plans under the Clean Air Act and began analyzing in greater
detail the possible offsite consequences of an accidental release, we
devoted even greater effort and attention to security.
The events of September 11 very starkly demonstrate how differently
the government and private industry must now think in order to protect
our critical assets and national infrastructure.
A. Knowledge Is Security
The cornerstone of effective security is knowledge--intelligence
about potential threats that allows the threat to be intercepted and
allows the target of the threat to be properly prepared. In fact,
knowledge is our best defense. Our industry believes it is critically
important to establish formal procedures for circulating information
about potential and, importantly, credible and specific threats to the
nation's critical infrastructure. At the same time, such a system can
provide government decisionmakers with the full range of information on
which to make their decisions.
After September 11, everyone began to revisit potential threat
scenarios. Our estimations of the probability of a worst-case scenario
have changed, and we are moving rapidly to prepare for these potential
new threats. Our preparations are most effective when we have high
quality and timely intelligence regarding threats. Our industry is
moving aggressively to establish better information-sharing mechanisms
with Federal, State, and local officials--especially with the FBI's
National Infrastructure Protection Center, the main body of government
responsible for communicating threats to the private sector. More can
be done in this area, especially with the Office of Homeland Security,
and we intend to do our part in this regard.
Security in the face of these threats is derived from planning and
executing security strategies. Our industry has an advantage in this
area because of our longstanding expertise in risk management. We have
spent many years instituting progressively more sophisticated safety
and security programs. We applaud the recent GAO testimony before
Congress calling for a more thorough risk analysis of the nation's
critical infrastructure, and the mechanisms to manage those risks.
Response is another area in which we have demonstrated expertise.
The chemical industry is one of the best-trained and equipped private
sector emergency responders in the world. We coordinate closely with
local responders and participate in joint training programs where
multiple plants are clustered.
After September 11, chemical companies across the country went on
higher alert. Many existing security procedures have been enhanced and
contacts with law enforcement officials intensified. The security
efforts at each facility vary depending upon its particular needs and
those of the local community. However, some examples of the security
measures taken by many of our companies include:
<bullet> Working closely and cooperatively with Federal, State and
local law enforcement and emergency management officials, including the
FBI, the Coast Guard, and the Federal Emergency Management Agency
(FEMA). The Coast Guard, in particular, has stepped up security at
chemical terminals and ports across the country, including escorting
vessels coming in and out of major ports.
<bullet> Increasing surveillance and the number of security guards
at sites.
<bullet> Enhancing access control measures, including restricting
access of scheduled visitors and deliveries onsite and restricting
access within the site.
<bullet> Permitting employee vehicles only on facility premises.
<bullet> Moving rail tank cars are being moved inside the fence-
line.
<bullet> Centralizing receiving operations.
<bullet> Conducting background checks on company and contract
employees.
<bullet> Requiring carriers to perform background security checks
on their drivers.
<bullet> Reassessing crisis management, response and evacuation
plans.
<bullet> Permitting cleaning crews to work only during business
hours.
<bullet> Increasing communications with plant communities.
<bullet> Reviewing distribution routes and, where possible,
reducing shipments of hazardous materials to urban centers.
<bullet> Adding second drivers to shipments of certain chemicals
and requiring direct transit so that no overnight layovers are
required.
We are intensifying our outreach to and information sharing with
our partner trade associations. The Council is hosting a weekly
security meeting of the heads of more than a dozen chemistry-related
trade associations representing manufacturing and distribution
enterprises.
B. Site Security and Distribution Guidelines
One of our more important actions since September 11 is the
publication of our Site Security Guidelines for the chemical industry.
Although we just recently published these guidelines, chemical industry
security experts have been working on them for the past year. After
September 11, these chemical security experts took a fresh look at the
guidelines in light of the terrorist attacks and revamped some of the
recommendations before publication. These guidelines are intended for
use by anyone responsible for securing chemical manufacturing
operations. They are available to anyone by visiting our website at
www.americanchemistry.com. We have asked every one of our 180 members
to distribute these guidelines broadly to their customers and their
customers' customers. We anticipate the guidelines will be useful to
anyone who is concerned about security.
We have distributed the guidelines to our 20 State chemical
industry councils. These councils, operating in the largest chemical
manufacturing States, include member companies of the American
Chemistry Council and hundreds of smaller firms.
We have distributed these guidelines to our Responsible Care
Partner Network. That network is composed of 60 chemical supply chain
related companies and trade associations. Importantly, this network
includes most of the firms responsible for transporting chemicals in
commerce. We have made the guidelines available to the 20,000 companies
registered in the Council's CHEMTREC emergency response center (which I
will discuss in more detail later in my testimony).
We have intensively publicized the availability of the guidelines
to the chemical industry trade press, public policy-related media
organizations, major dailies and periodicals, and electronic news
services. These news services deliver news and information to thousands
of local newspapers. We have also registered them on all major Internet
search engines.
We have distributed the guidelines to trade associations outside
the traditional chemical supply chain, including the National
Federation of Independent Businesses, U.S. Chamber of Commerce and
National Association of Manufacturers. We have made the Guidelines
available to many professional societies and organizations in the hope
that they will find them useful as well.
We are also asking the FBI to consider sending the guidelines to
the 27,000 private sector security professionals registered to receive
the Bureau's ANSIR alerts so that the Guidelines will reach as many
persons as possible who are in the business of protecting the critical
assets of out national infrastructure.
The guidelines are receiving attention and are being used. They are
the most frequently visited and heavily downloaded documents we have
ever posted on our website.
On November 9, 2001, the new Transportation Security Guidelines
were published. These guidelines adopt a risk-based approach to
addressing security considerations relevant to the transportation of
hazardous materials on all modes of transportation. The document
provides chemical shippers with information on conducting a risk-based
transportation security assessment, as well as examples of preventive
measures and alternatives that could be implemented to address
potential security concerns. The American Chemistry Council, The
National Association of Chemical Distributors, and The Chlorine
Institute developed the guidelines with the assistance of a number of
other associations and Responsible Care partners. These guidelines are
available on our website at www.americanchemistry.com. We intend to
disseminate them as broadly as has been done with our Site Security
Guidelines.
C. Regional Security Briefings
My staff is working with EPA, DOT, FBI and others to organize
regional security briefings around the country. Five have been
scheduled between Thanksgiving and Christmas. A similar conference held
earlier this month in New Jersey drew 225 attendees, twice the number
expected. We intend to encourage additional face-to-face discussions
between government security officials and companies throughout the
chemical supply chain. We have pledged our full support and cooperation
to work with government agencies to continuously improve the safety and
security of the chemical industry.
D. Emergency Preparedness Programs
Our 180 member companies continually evaluate their security
measures, and have increased efforts since September 11. When they
evaluate their security practices, they work closely with their Local
Emergency Planning Committees, called LEPCs. Members of LEPCs include
fire fighters, health officials, representatives from government and
the media, community groups as well as representatives from industrial
facilities. LEPCs engage in a collaborative effort with respect to
planning and responding to chemical emergencies. The member companies
of the American Chemistry Council have a long history of working as
part of the LEPC network to ensure the safety and health of plant
communities.
Our member companies work with LEPCs in many ways. They help
communities prepare for transportation related incidents, and help
LEPCs develop and test emergency plans and systems, train emergency
responders, and raise community awareness of the potential emergencies
related to our production sites. Our companies hold public meetings to
communicate worst case and worst probable scenarios to our communities
and the plans to minimize the risk.
While local emergency responders, chemical facilities and the
surrounding communities can do many things to prepare for and mitigate
the potential impact of a terrorist attack; we are not in a position by
ourselves to prevent such an attack. We must have advance intelligence
and clear communications to assist our military in its response to such
an event.
E. Chemical Industry Vulnerability Assessment
For the past year, the Council has been involved in a
congressionally established study with the Department of Justice
designed to assess the vulnerabilities of plant sites and to recommend
ways to deal with those vulnerabilities. We have consistently supported
this study and have cooperated fully with the Department of Justice and
its contractor, Sandia Laboratories. In fact, we recently wrote to
President Bush urging him to ask Congress to provide adequate
additional funding to ensure that it will be the most comprehensive
study possible.
At this stage in my remarks, I would like to briefly comment on a
report Senator Corzine referred to in his floor speech when he
introduced his legislation. The report, issued in 1999 by Agency for
Toxic Substances and Disease Registry (ATSDR), was incomplete because
it was based on a sampling of only two plant communities. It therefore
led to an inaccurate portrayal of the State of the industry's security
when it was published more than 2 years ago. It remained an inaccurate
portrayal on September 11. It continues to be an inaccurate portrayal
of the industry's security actions and efforts. We have produced an
analysis of the report and will furnish it to you and your staff.
Despite our concerns with the ASTDR report, we have already begun a
dialog with ATSDR on how we can work together to improve the security
of our industry.
I also would like to direct the subcommittee to testimony delivered
to the Senate recently by the General Accounting Office (GAO). In that
testimony, the GAO recommended to the Senate that any programs designed
to combat terrorism must be based on sound risk management principles
that systematically analyze threats, vulnerabilities and the critical
nature (or relative) importance of our national assets, such as the
chemical industry. As the GAO testified, threat assessments are an
important first step in this process--but only the first step. The
second is a vulnerability assessment--which is a way to identify
weaknesses. Finally, the third step in this process is what the GAO
calls a ``criticality assessment-which are necessary to prioritize
assets for protection.'' We agree with the GAO. We also agree that the
government's use of these risk management principles has been
inconclusive. This subcommittee could do much to further this approach.
F. Responsible Care And Other Industry Initiatives
The business of chemistry has many voluntary programs that support
efforts to improve the safe distribution of our products. The most
comprehensive is the American Chemistry Council's Responsible Care Code
of Management Practices. This Program emphasizes performance. When
first adopted in 1988, the Codes of Management Practices were designed
to help our member companies develop systems to continuously improve
the industry's responsible management of chemicals. Today, members
still must adhere to the Codes. But they also report to the American
Chemistry Council their progress toward the vision of no accidents, no
injuries, and no harm to the environment.
Under this program, chemical companies implement additional
measures to achieve safer operations. Responsible Care has received
considerable recognition by independent external organizations because
of the progress our member companies have achieved. For example, in
2000, the American Chemistry Council was awarded the Keystone Center
Leadership in Industry Award for its commitment to making a better,
healthier and safer world through chemistry.
There are 6 Codes of Management Practices in Responsible Care.
(1) The Community Awareness And Emergency Preparedness Code. The
goal of the CAER Code is to assure emergency preparedness and to foster
communities' right-to-know. It demands a commitment to openness and
community dialog. The Code has two major components. First, member
facilities that manufacture, process, use, distribute, or store
hazardous materials initiate and maintain a community outreach program
to communicate relevant, useful information responsive to the public's
questions and concerns about safety, health, and the environment.
Second, members help protect employees and communities by assuring them
that each facility has an emergency response program to respond rapidly
and effectively to emergencies. Many companies have established
community advisory panels as forums to share issues between plant sites
and their surrounding communities. More than 300 community advisory
panels are in operation around the country.
(2) The Pollution Prevention Code. This Code is designed to achieve
ongoing reductions in the amount of all contaminants and pollutants
released to the air, water, and land from member company facilities.
These reductions are intended to respond to public concerns with the
existence of such releases, and to further increase the margin of
safety for public health and the environment.
(3) The Employee Health and Safety Code. The goal of this Code is
to protect and promote the health and safety of people working at or
visiting member company work sites. To achieve this goal, the Code
provides Management Practices designed to improve work site health and
safety. These practices provide a multidisciplinary means to identify
and assess hazards, prevent unsafe acts and conditions, maintain and
improve employee health, and foster communication on health and safety
issues.
(4) The Process Safety Code. This Code is designed to improve
operations and performance to reduce the potential for fires,
explosions, and accidental chemical releases. The principal foundation
of the Practices is that facilities will be safe if they are designed
according to sound engineering practices; built, operated and
maintained properly; and periodically reviewed for conformance. The
Practices encompass process safety from the design stage through
training, operation, and maintenance, and are applicable to existing
operations as well as new facilities. The Code also requires that our
members share relevant safety knowledge and lessons learned from
incidents with industry, government and the community. Additionally,
the Code mandates programs to assure that employees in safety critical
jobs are fit for duty.
(5) The Distribution Code. The purpose of the Distribution Code is
to reduce the harm posed by the distribution of chemicals to the
general public, carriers, distributors, contractors, chemical industry
employees, and the environment. The Distribution Code of Management
Practices applies to all modes of transportation and to the shipment of
all chemicals, including chemical waste.
(6) The Product Stewardship Code. The purpose of the Product
Stewardship Code of Management Practices is to make health, safety, and
environmental protection an integral part of designing, manufacturing,
marketing, distributing, using, recycling, and disposing of our
products. The Code provides guidance, as well as a means of measuring
continuous improvement in the practice of product stewardship. The
scope of the Code covers all stages of a product's life. Successful
implementation is a shared responsibility. Everyone involved with the
product has responsibilities to address society's interest in a healthy
environment and in products that can be used safely. All employers are
responsible for providing a safe workplace, and all who use and handle
products must follow safe and environmentally sound practices.
The Council is also developing an accredited, third party audit
process that will result in ISO 14001 and Responsible Care
certificates.
Our companies are committed to improving our safety record. We are
continually working to improve our processes and eliminate accidents.
One single injury or death is too many. Each year every member of the
American Chemistry Council receives data relating to its process safety
reportable incidents and distribution incidents for the previous year.
Each company evaluates that information and takes steps to prevent
those incidents in the future.
G. CHEMTREC
Since 1971, the Council has operated, as a public service, the 24-
hour-a-day/7-day-a-week emergency communication center known as
CHEMTREC, which stands for CHEMical Transportation Emergency Center.
When an incident occurs, CHEMTREC provides emergency responders with
technical assistance from industry product safety specialists,
emergency response coordinators, toxicologists, physicians and other
industry experts to safely mitigate the incident. All calls are free of
charge to emergency responders. Additionally, CHEMTREC has agreements
in force with the U.S. Department of Transportation, the U.S. Army, and
the Department of Defense to provide information and assistance to
those organizations whenever and wherever it is needed. Shortly after
September 11, CHEMTREC and the FBI's Hazardous Materials Response Team
augmented and improved their information-sharing and coordination
activities.
Several organizations have joined together to form networks of
private sector emergency responders and response contractors to further
enhance the timely and efficient response to chemical transportation
incidents. Other programs similar to Responsible Care include the
National Association of Chemical Distributors Responsible Distribution
Program, and the American Waterways Operators Responsible Carrier
Program.
Joint initiatives between the Council, the Association of American
Railroads, and the Railway Progress Institute led to the publication of
recommendations for the safe transport of hazardous materials by rail,
addressing a range of issues from train speed and training to loading,
unloading and preparation of tank cars.
A partnership between the Council and the National Tank Truck
Carriers, Inc. led to the publication of a manual of recommendations
addressing issues including: motor carrier selection, equipment and
product handling, training, route selection, incident reporting,
shipment documentation, risk management and others.
H. TRANSCAER
A major initiative sponsored by 10 trade associations and known as
TRANSCAER, for Transportation Community Awareness and Emergency
Response, is designed to provide information directly to communities
through which hazardous materials are transported. This program
educates the community on the products that flow through the community,
provides guidance and expertise on how to develop contingency plans in
the unlikely event that an incident does occur, provides guidance on
how to test the plan, and provides training to local emergency
responders on how to deal with incidents and where to obtain
information to assist in planning and preparedness.
I. Chemical And Biological Weapons
After the September 11 attacks, interest turned toward a potential
``second wave'' of terrorist attacks. Many in the law enforcement
community have said this next wave may consist of attacks using
biological or chemical weapons.
The chemical industry has been a strong and steadfast supporter of
the Chemical Weapons Convention. In fact, President Clinton cited the
American Chemistry Council for its ``extraordinary, sustained
commitment to eliminating the threat of chemical weapons'' after the
convention became effective in 1997.
The goal of the convention is praiseworthy and it is one-of-a-kind
in its approach. Members of the CWC commit to exclude completely the
possibility of the use of chemical weapons worldwide through the
combined efforts of their respective militaries and private industry.
In practice, the convention prohibits the manufacture of any
chemical and certain specifically listed chemicals for use as a weapon,
and mandates the destruction of all chemical weapons stockpiles. It
also bans trade in certain chemical weapons agents and direct chemical
weapons precursors between members and non-members. Private industry
submits regular and detailed reports to the U.S. Government on
operations that involve chemicals that can be precursors to chemical
weapons. The convention is the first of its kind in permitting onsite
inspections of commercial facilities to verify compliance with the
spirit and letter of the convention.
Since the CWC became effective in 1997, 143 countries have
committed to the global cause of chemical weapons elimination under
these terms. In the United States, there is an additional incentive to
comply with the convention. The U.S. criminalized the failure to submit
required reports and to host onsite inspections. Failure to comply
comes at an exceedingly high price.
At the same time, the CWC is just one among a number of chemical
controls applied by American chemical companies. Chemical companies
maintain comprehensive and current systems to ``red-flag'' potential
sales of chemicals with potential for diversion and misuse in making
chemical weapons. The systems are based on a company's product line,
customer markets, and regulatory obligations, and also incorporate
extensive and informative guidance on effectively screening and
identifying your customer. Combined with the company's knowledge of
chemistry and the business of chemistry, these systems protect the
legitimate and intended use of chemicals in the vital and varied
downstream industries we supply including, electronics,
pharmaceuticals, computers and healthcare.
The CWC essentially requires government licenses on international
sales of dual-use chemicals (chemicals manufactured for commercial use,
but capable of being converted into a chemical weapon). The Convention
imposes strict government reporting requirements on manufacturers of
listed chemicals. They are required to keep records, provide access by
appropriate officials to those records, and to submit appropriate
periodic reports to the government. The treaty is also the first of its
kind to permit onsite inspection of commercial facilities.
II. A COMPREHENSIVE NETWORK OF EXISTING LAWS AND RULES ALREADY PROMOTE
SECURITY
The safety and security of America's chemical manufacturing sites
is the subject of many existing laws and regulations. These laws and
regulations complement--and in some cases were inspired by--the
Responsible Care Management Practices that I discussed previously.
A. Toxic Substances Control Act (TSCA)
TSCA gives EPA comprehensive authority to regulate any chemical
substance whose manufacture; processing, distribution in commerce; use
or disposal may present an unreasonable risk of injury to health or the
environment. Among other requirements, it mandates that chemical
companies submit premanufacture notices that provide information on
health and environmental effects for each new product and to test
existing products for these effects. It also gives EPA authority to
prohibit, limit or ban the manufacture, process, and use of chemicals.
B. Comprehensive Environmental Response Compensation and Liability Act
(CERCLA) and the Superfund Amendments Reauthorization Act
(SARA)
CERCLA and SARA provide the basic legal framework for the Federal
``Superfund'' program to clean up abandoned hazardous waste sites.
CERCLA imposes specific taxes on chemicals and petroleum to fund the
cleanup program. Title III of SARA, the Emergency Planning and
Community Right-to-Know Act, established the ``right-to-know''
standards. Since 1986, the chemical industry has been among the
thousands of manufacturing sites regulated by EPCRA. The basic
requirement of EPCRA is information sharing among manufacturers, State
and local emergency planning and response agencies, and the public.
Another important aspect of SARA is Section 313, Toxic Chemical Release
Inventory (TRI) reporting. According to 1999 figures, since 1988,
emissions have declined 65 percent.
EPCRA requires manufacturers to prepare and submit hazardous
chemical inventory form to the appropriate local emergency planning
committee, the State emergency response commission and the local fire
department. Companies are required to report the amount of chemicals
present at the facility, their location and manner of storage. The
information is automatically made public through local emergency
planning committees, and the law requires fire department access for
onsite inspections. Companies must supply more detailed information
upon request by local authorities.
EPCRA was derived largely from CAER, the Community Awareness and
Emergency Response (CAER) program developed by the American Chemistry
Council in 1985 in the immediate aftermath of Bhopal. As I discussed
earlier, CAER is the Code of Management Practices that requires
participating facilities to develop emergency response plans, and to
conduct live drills to rehearse those plans on at least an annual
basis.
C. Clean Air Act (CAA)
The CAA provides EPA the authority to regulate air pollutants from
automobiles, electric power plants, chemical plants and other
industrial sources. Its 1990 amendments set control standards for
industrial sources of 189 toxic air pollutants. Key provisions include:
<bullet> EPA's Risk Management Program (RMP) Rule. The RMP is a set
of regulations established under Section 112(r) of the Clean Air Act
that provide guidance for the prevention and detection of accidental
releases of regulated hazardous substance and preparation of facility
risk management plans. This rule requires regulated facilities to
prepare offsite consequence analyses in the event of a worst-case
accidental release or exposure. These analyses help companies plan for
effective emergency response and to take the appropriate measures to
prevent offsite consequences from occurring.
<bullet> The Chemical Safety Information, Site Security and Fuels
Regulatory Relief Act. This Act required facilities to hold a public
meeting to summarize their RMP information, prohibits offsite
consequence analyses from being posted by the government on the
Internet, and mandates the DOJ vulnerability assessment of the chemical
industry that I referred to previously.
<bullet> Clean Air Section 112(r) Act General Duty Clause directs
owners and operators of facilities producing, using, handling or
storing extremely hazardous substances (regardless of whether they are
regulated substances) to design and maintain a safe facility to prevent
accidental releases, and to minimize the consequence of any that occur.
D. Clean Water Act (CWA)
The CWA authorizes EPA to regulate effluents from sewage treatment
works, chemical plants, and other industrial sources into waters. The
CWA also requests that States identify and alleviate pollution
problems. Currently, there are proposals in Congress to reauthorize the
Act.
E. Safe Drinking Water Act (SDWA)
Establishes standards for public drinking water supplies.
F. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
FIFRA provides EPA authority to register and assess the risks of
agricultural pesticides, industrial biocides, and other non-
agricultural pesticides.
G. Federal Food, Drug and Cosmetics Act (FFDCA)
The FFDCA provides the Food and Drug Administration authority to
regulate the manufacturing of drugs and pharmaceuticals and the use of
packaging and additives in food and cosmetics.
H. Food Quality Protection Act (FQPA)
The FQPA amends FIFRA and FFDCA to provide EPA with authority to
regulate pesticides. It mandates a single, health-based standard for
all pesticides in all foods; provides special protections for infants
and children; expedites approval of safer pesticides; creates
incentives for the development and maintenance of effective crop
protection tools for American farmers; and requires periodic re-
evaluation of pesticide registrations and tolerances to ensure that the
scientific data supporting pesticide registrations will remain up-to-
date in the future.
I. Resource Conservation and Recovery Act (RCRA)
RCRA provides EPA with authority to establish standards and
regulations for handling and disposing of solid and hazardous wastes.
These requirements include access controls, secondary containment,
emergency preparedness plans and other plant security and safety
measures.
J. Occupational Safety and Health Act (OSHA)
OSHA provides the Department of Labor authority to set
comprehensive workplace safety and health standards, including
permissible exposures to chemicals in the workplace, and authority to
conduct inspections and issue citations for violations of safety and
health regulations. A key provisions is:
OSHA's Process Safety Management Standard (PSM). The PSM Standard
is intended to prevent or minimize the employee consequences of a
catastrophic release of toxic, reactive, flammable, or highly explosive
chemicals from a chemical manufacturing process. Under the standard,
regulated companies are required to conduct accident prevention
assessments, known as a process hazard analyses (PHAs). PHAs are
required for every step of a covered chemical manufacturing process.
Based on these analyses, companies are required to take appropriate
steps to prevent chemical explosions or accidental releases. The
standard also requires written operating procedures, including steps
for each operating phase and safety system, and that these and other
process safety information be made readily available to employees. The
PSM standard is designed to protect worker safety, but many of the
procedures implemented as a result of the PHAs also offer security
benefits. The PSM Standard is a complement to the RMP rule under the
Clean Air Act that I discussed previously. The RMP rule adds the
offsite consequence component to the PSM Standard that focuses on
employee safety.
K. Hazardous Material Transportation Act (HMTA)
The HMTA provides the U.S. Department of Transportation (DOT) with
the authority and responsibility to regulate the movement of hazardous
materials. DOT's comprehensive ``hazmat'' regulations cover the
packaging, labeling and movement of hazardous materials by railroad,
truck, aircraft, and ships. (DOT also regulates hazmat pipeline safety
under a separate statute, the Pipeline Safety Act.) Additional DOT
hazmat regulations require training for employees, reports of
transportation-related releases, and the provision on emergency
response information, including a 24-hour telephone number on each
hazmat shipment. Through this regulatory process, DOT provides the
American public, the chemical industry, and our transportation partners
with consistent national regulations governing the transportation of
hazardous materials to customers across the country and around the
world. In conjunction with representatives of other nations, DOT also
participates in the development of international standards for the
movement of hazardous materials. This further enhances safety and
promotes commerce by harmonizing transport standards among nations.
L. Chemical Diversion and Trafficking Act (CDTA)
The CDTA is designed to prevent the diversion of chemicals to
illegal drug producers. It gives the Drug Enforcement Agency the
authority to control exports of chemicals to designated drug source
countries.
M. Pollution Prevention Act (PPA)
The PPA makes it the national policy of the United States to reduce
or eliminate the generation of waste at the source whenever feasible
and directs EPA to undertake a multimedia program of information
collection, technology transfer, and financial assistance to the States
to implement this policy and to promote the use of source reduction
techniques.
N. Flammable Fabrics Act (FFA)
The FFA gives the Consumer Product Safety Commission (CPSC) the
authority to set flammability standards for fabrics that protect
against an unreasonable risk of the occurrence of fire.
O. Poison Packaging Prevention Act (PPPA)
The PPPA provides the CPSC the authority to set standards for the
special packaging of any household product to protect children from a
hazard.
P. State Regulations
Many State governments are increasingly active in the environmental
and safety areas. In addition to implementing Federal programs like
those described above, the States themselves are active in a range of
issues that impact the chemical industry. These include hazardous waste
and State right-to-know statutes.
In sum, thousands of pages of rules and regulations regulate the
chemical industry.
III. GOVERNMENT SECURITY ACTIONS NEEDED
Let me now identify for you the things that our industry and others
need in order to enhance our ability to secure our facilities and the
safety of this country.
1. We need to have the DOJ chemical industry vulnerability study
completed in a comprehensive manner. Currently, the only phase of the
study that has been funded by Congress is the development of a
methodology for use in the assessment. This is insufficient. In
addition to our own actions to improve security, our industry would
benefit from a comprehensive assessment conducted by law enforcement,
security and safety experts. We have asked that funding be dedicated to
complete the entire DOJ project so that the study will be completed in
the most comprehensive manner possible.
We need to work together to devise performance-based and flexible
approaches that address what needs to be accomplished, not how it is
accomplished. This type of outreach program has a far better chance of
actually reaching the broadest segment of chemical companies.
2. We need an efficient and timely intelligence and information
sharing mechanism established at the highest level and in the timeliest
manner possible. One method of facilitating this need would be for
Congress to act quickly to pass a bill that would enable critical
infrastructures and government to share information relating to
physical and cyber security. A hybrid version of H.R. 2435, sponsored
by Representatives Davis (R-VA) and Moran (D-VA), and S. 1456,
sponsored by Senators Bennett (R-UT) and Kyl (R-AZ), provides the
critical protections--such as exemptions from antitrust and freedom of
information laws--that would allow industries to share this critical
and sensitive information with one another and with government. I would
be pleased to share a copy of this hybrid bill with you if requested.
3. Significant Federal funding is necessary to increase the
security of the entire rail transportation network; the security of our
nation's critical communications, computer, and train control systems;
investment in the physical hardening of critical railroad
infrastructures; research and development of improved technology for
sealing rail cars.
4. Another action that would assist industries and communities
throughout the country would be a program that provides financial
assistance and tools to Local Emergency Planning Committees (LEPCs)
that are struggling.
LEPCs are critical to planning for emergency response and
preparedness. We need to do all we can to enhance these critically
important organizations.
IV. CHEMICAL SECURITY ACT OF 2001
As I turn now to address the Chemical Security Act of 2001, let me
first say that the American Chemistry Council supports this
subcommittee's desire to improve the security of the chemical industry
from a terrorist attack. We would like to cooperate with Senator
Corzine and this subcommittee to improve that security. However, we are
concerned about several important aspects of this bill.
<bullet> Security begins by knowing the areas in which you are
vulnerable. We should press forward with full funding and the early
completion of the DOJ vulnerability assessment. Let us devote our time
and money to the areas where the greatest risks lie.
<bullet> As we consider the best ways to enhance our nation's
safety and security, it is imperative that we understand the vital
products supplied by the business of chemistry, and thoroughly
understand the ramifications of our actions. Precipitous restrictions
on the business of chemistry can have serious unintended consequences.
For example, just last month the railroads invoked a short-term
moratorium on shipments of chlorine, presumably as a security measure.
Because they did not involve stakeholders in their decisionmaking
process, they apparently did not know what effect that decision could
have had on the safety of the nation's water supply. Chlorine-based
disinfectants are used by 98 percent of modern water purification
plants to kill bacteria and viruses. This is an essential factor in
delivering safe water to homes for drinking, cooking and bathing. But
many water utilities have only a few days' supply of these chemicals
on-hand at any given time--and sudden stoppages in our ability to
deliver those products can have dire consequences.
<bullet> Our industry currently uses safe technologies and
continually works to develop and implement safer ones. We conduct
process hazard analyses of our facilities and as a result change
processes, modify procedures and substitute materials to reduce and
manage risks. Risk management decisions are made with several
objectives in mind, including reduction of environmental impacts,
worker safety, safety of the community in the vicinity of the plant
and.
For example, low air emission standards require the use of vapor
recovery systems that create closed systems that have a greater
potential for fires and explosions. In these analyses it is important
that the facility be given flexibility to choose management options
that will reduce risk and meet existing regulatory requirements. In
some cases this will involve process and equipment changes, but more
effective choices might include modification of process controls.
Imposing regulatory requirements that focus solely on equipment and raw
materials, such as those in this bill can complicate these analyses and
lead to decisions that may not address the largest risk and risk
reduction opportunities.
We also need to keep in mind the complexity of the chemical
industry processes. There are no ``standard processes'' and thus to
expect meaningful and helpful regulatory oversight may be very
difficult and very expensive. In fact, EPA concluded in the context of
the RMP rulemaking that it would be impossible for EPA to understand
the myriad of processes that exist and thus to determine how to propose
regulations.
<bullet> The bill would duplicate existing legislative authority
and regulations in several ways. First, the transportation of hazardous
substances is already extensively regulated by the Department of
Transportation. These regulations address all aspects of the
transportation continuum, including training, packaging, loading,
transport, unloading, storage incidental to transportation, and
routing. Additionally, United Nations (UN) standards apply to
packaging, labeling and handling of hazardous materials. The business
of chemistry assists government agencies and the U.N. to develop safe
and efficient transportation standards. The Department of
Transportation should continue to have primary regulatory oversight for
transportation issues, and every effort should be made to avoid
overlapping and/or duplicative requirements.
Second, as I mentioned earlier, the Clean Air Act already contains
a general duty clause applicable to owners and operators of stationary
sources producing, processing, handling or storing any extremely
hazardous substance to prevent against accidental releases. Thus, the
bill appears simply duplicative of that authority, while at the same
time extending it in very broad and unpredictable ways.
Third, the imminent and substantial endangerment provisions of this
bill appear to overlap completely with Section 106 of CERCLA which
authorizes response and cleanup actions when there is an ``imminent and
substantial endangerment'' to the public's natural resources from an
actual or threatened release of hazardous substances. However, it
expands unnecessarily what is already sufficiently broad authority.
Section 5 also fails to preserve the President's power under CERCLA to
delegate his authorities to agencies besides EPA (e.g., the Coast
Guard).
<bullet> The scope of the bill is overly broad in several respects.
First, the substances of concern under the bill would be not just
hazardous substances under CERCLA, but also pollutants and contaminants
under that law, as well as petroleum in all its manifestations. This is
a potentially infinite range of materials, particularly since there is
no list of ``pollutants and contaminants,'' only a very inclusive
definition. Congress and Federal agencies have already identified those
highly hazardous substances that may pose the greatest threat from
accidental releases, and they are identified under EPA's Risk
Management Plan rule and OSHA's Process Safety Management standard.
Those lists were identified based upon their likely impact upon
surrounding communities. Unless there is some new information, these do
not need to identified again in a new law.
Second, many features of the bill are not limited to the ``high
priority'' combinations of substances and sources that EPA would
designate. Sections 5 (``abatement action''), 6 (``record keeping and
entry'') and 7 (``penalties'') would apply to the owner or operator of
any chemical source. That would include, for example, any person
driving an automobile.
<bullet> This bill appears to establish absolute responsibility for
any release no matter what the cause. Although it is unclear how it
would be enforced, the bill appears to make it a crime to be a victim
of a crime. Any owner or operator of a chemical facility would
potentially become criminally responsible if a terrorist or other
criminal attacked the facility. This is simply untenable and possible
unconstitutional. The General Duty Clause of the Clean Air Act already
requires industry to design and maintain a safe facility to prevent
accidental releases, and to minimize the consequence of any that does
occur. This is perfectly appropriate. But to enhance that duty to
require industry to prevent acts of crime is completely improper. We
cannot be expected to assume the role of a law enforcement authority.
This is the government's job.
<bullet> The bill presumes the public availability of ``information
relating to a potential accidental release or criminal release.'' We
have grave concerns about the unsupervised availability of this
information. The American Chemistry Council fully supports the
principles espoused in most legislation concerning the public's right
to know important information about their communities. However, we must
find a way to achieve this without offering terrorists a roadmap.
<bullet> We now have an Office of Homeland Security that is charged
with the responsibility of coordinating the multiple government
agencies that influence and affect our national security. The security
of the chemical industry is properly reserved to that office.
Thank you for the opportunity to testify regarding the very
important subject of security in the chemical industry, a critical
component of America's infrastructure. The chemical industry stands
ready to continue to work closely with Congress, EPA, law enforcement
and security experts to improve the security of our facilities.
Statement of Paul Orum, Director, Working Group on
Community Right-to-Know
Thank you for the opportunity to testify today. I am Paul Orum,
director of the Working Group on Community Right-to-Know. Since 1989 I
have worked with many non-governmental organizations in all 50 States
that are concerned with efforts to reduce chemical hazards and toxic
pollution.
We are here about one fundamental question: will there be a Federal
program to reduce chemical industry hazards that endanger communities--
whether from criminal activity or accidents--or will there not?
The terrorist attacks of September 11 show plainly that chemical
plants and refineries could suffer a worst-case fire or toxic gas
release. No longer can the chemical industry claim that a worst-case
release is too improbable to occur. No longer can the U.S.
Environmental Protection Agency claim that hazard reduction is a local
matter with no need for a national hazard reduction program. No longer
can the U.S. Department of Justice neglect its duty to review chemical
security practices and to recommend ways of reducing vulnerabilities.
No longer can the Federal Government impede public information about
dangerous industry practices while taking no obvious steps to eliminate
and reduce those dangers. No longer can anyone seriously propose that
voluntary local programs are sufficient to fix the problem.
Congress has an opportunity and a duty to fill a big hole in our
laws by requiring chemical-using facilities to evaluate safer
alternatives and use them wherever practicable. The Chemical Security
Act of 2001 (S. 1602) proposes constructive steps toward a national
prevention and chemical security program, and gives government the
tools it needs to protect communities in the new era of terrorism.
There is a Big Hole in Our Chemical Safety Laws
People might think that the right programs are already in place,
but they are not. Currently, no Federal law actively regulates the
vulnerability zones that hazardous chemical facilities impose on
surrounding communities (in terms of size, intensity, or population at
risk). Nor does any Federal law require firms to even examine safer
alternatives. Nor is terrorism a specific planning element in the Risk
Management Program established by the Clean Air Act. Nor were
regulatory thresholds under this act and other laws established with
potential terrorism in mind.\1\
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\1\ For example, a one-ton cylinder of chlorine falls below the
Risk Management Planning thresholds set by EPA, but can create levels
of chlorine gas 2 miles offsite that are considered ``immediately
dangerous to life and health.'' Department of Energy, ``Example Process
Hazard Analysis of a Department of Energy Water Chlorination Process,''
DOE/EH-0340.
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No Federal law systematically encourages inherently safer
alternatives at facilities that could suddenly release dangerous
chemical plumes into surrounding communities. As a result, thousands of
communities across the country have chemical hazards that may be wholly
unnecessary. Current laws, generally speaking, are limited to clean up,
planning, response, and risk management:
<bullet> In the early 1980s, U.S. chemical safety laws addressed
cleaning up emergencies (i.e., CERCLA).
<bullet> By the mid-1980s, U.S. chemical safety laws addressed
preparing for emergencies (i.e., EPCRA).
<bullet> From 1990, U.S. chemical safety laws addressed managing
the risks of emergencies (i.e., EPA's Risk Management Plans and the
Department of Labor's Process Safety Management of Highly Hazardous
Chemicals).
<bullet> The proposed Chemical Security Act, S. 1602, will address
eliminating and reducing chemical hazards in communities wherever
practicable as the option of first resort.
Chemical Site Security is Often Poor
Both government reports and other incidents show serious security
problems at chemical facilities. In addition, Congress should by now
have in hand an interim report from the Department of Justice (DOJ)
onsite security for chemical facilities and transportation. Congress
mandated this review in 1999 in the Chemical Safety Information, Site
Security, and Fuels Regulatory Relief Act, with an interim report and
recommendations due by August 2000. DOJ is apparently ignoring this
requirement.
Congress should make sure that DOJ produces this review and
recommendations.\2\ DOJ is preparing a voluntary self-assessment tool
for use by industrial facilities. This effort lacks a public docket. It
uses an ``acceptable risk'' methodology that does not consult people at
risk in surrounding communities. DOJ has not fulfilled a Freedom of
Information Act request of July 30, 2001 on this project. The
Department has also not directly addressed detailed concerns raised by
a dozen environmental and labor groups in a letter first sent in August
2000, despite repeated attempts (see attached letters).
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\2\ Letter to the Attorney General from Senator Harry Reid of June
14, 2001; letter to the Attorney General from Senators Frank Lautenberg
and Max Baucus of February 11, 2000; and, letter to the National
Institute of Justice from Senator James Jeffords of August 24, 2001.
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<bullet> The Agency for Toxic Substances and Disease Registry has
reported that site security at chemical plants ranges from ``fair to
very poor'' and at chemical transportation assets from ``poor to non-
existent.''\3\ The American Chemistry Council has pointedly criticized
this work, apparently to get the agency to retract or revise the
report. We do not believe that the agency should do so.
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\3\ Agency for Toxic Substances and Disease Registry, Industrial
Chemicals and Terrorism: Human Health Threat Analysis, Mitigation and
Prevention.
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<bullet> Greenpeace published photographs from inside a Dow
Chemical plant in Plaquemine, Louisiana. The photos show the inside of
an unoccupied building that controls big pumps that dump 500 million
gallons of wastewater into the Mississippi River each day. Greenpeace
reports that there were no guards at the perimeter, no security
cameras, no alarms, and the door was unlocked. (See the photographs at:
www.greenpeaceusa.org/media/press--releases/01--03--23.htm).
<bullet> In 1999, a reporter roamed about inside the Washington,
DC's Blue Plains sewage treatment facility, which at that time stored
tons of chlorine and sulfur dioxide, without being stopped or asked for
identification.\4\
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\4\ ``Much Work Remains at Blue Plains, Officials Say,'' Washington
Post, November 8, 1999.
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<bullet> A recent news article cited a professor who had confirmed
that he could purchase all the essential ingredients for nerve gas--
even after the September terrorist attacks.\5\ In addition, some
commercial web sites assure buyers that they will remain anonymous
(after simply registering) when buying chemicals.
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\5\ ``Chemical Industry Rallies to Security Needs, But Perhaps Too
Late, Experts Say,'' Newhouse News Service, 2001.
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<bullet> The Pacific Northwest National Laboratory found inadequate
security at several Department of Energy military facilities that store
hazardous chemicals.\6\
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\6\ Judith Bradbury, Environmental Technology Division, Pacific
Northwest National Laboratory, U.S. Department of Energy, 1999.
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<bullet> Under existing regulations, a terrorist organization can
set up a new trucking company in the United States or Canada, and
obtain operating authority in the United States for an 18-month period
without any Federal or State safety review or security check simply by
paying a fee. After obtaining a hazardous materials endorsement for a
commercial drivers license by merely passing a written exam, drivers
can legally drive semi-trailers carrying up to 80,000 pounds of
placarded hazardous materials on nearly all roads and through all
cities in the United States.\7\
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\7\ Testimony of Joan Claybrook, Advocates for Highway and Auto
Safety and Public Citizen, before the Senate Subcommittee on Surface
Transportation and Merchant Marine, Senate Committee on Commerce,
Science, and Transportation, October 10, 2001.
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Chemical Fires and Spills Occur Frequently
Each year, companies in the United States report more than 25,000
fires, spills, or explosions involving hazardous chemicals to the
National Response Center, a broad but incomplete Federal record of
mishaps involving oil or chemicals.\8\ At least 1,000 of these events
each year involve deaths, injuries, or evacuations. Combined data from
additional Federal sources suggest that in 1998 there were over 100
deaths, nearly 5,000 injuries, and when including small spills, almost
50,000 incidents related to ordinary industrial use of chemicals in the
United States.\9\ Some analysts suggest that for each catastrophic
chemical accident that causes a fatality, there are 30 lost-time
incidents, 300 recordable incidents, and 30,000 near misses.\10\
Serious incidents often cost jobs, and uncounted people suffer long-
term consequences from being exposed to the dangerous chemicals. One
estimate suggests costs of about $5 billion for major U.S. chemical
accidents each year.\11\
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\8\ National Response Center. The NRC is the central Federal agency
to which chemical companies and transporters report oil and chemical
spills. Reports to the NRC cover incidents small and large. Reports are
initial and subject to verification and change (www.nrc.uscg.mil/
foia.htm).
\9\ Sam Mannan, Michela Gentile, and Mike O'Connor, ``Chemical
Incident Data Mining and Application to Chemical Safety Trend
Analysis,'' Mary Kay O'Connor Process Safety Center, Texas A&M
University, 2001.
\10\ Mannan, et. al, adapted from Richard H. Squire, ``Zero Period
Process--A Description Of a Process to Zero Injuries,'' Process Safety
Progress, March 2001.
\11\ Larry Collins, Carmen D'Angelo, Craig Mattheissen, and Michael
Perron, Estimating Chemical Accident Costs in the United States: A New
Analytical Approach.
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Mostly Volunteer Local Emergency Planning Committees are No Substitute
for an Urgent National Effort to Reduce Chemical Hazards
A recent study of 32 ``active'' Local Emergency Planning Committees
(LEPC) found that ``with a few exceptions, LEPCs do not believe they
are positioned to effectively encourage facilities to reduce chemical
hazards.'' Most of these LEPCs believe they ``do not have the time,
resources or expertise to encourage hazard reduction.''\12\ Again,
these were ``active'' LEPCs. An earlier national survey found that 21
percent of LEPCs were ``inactive,'' 39 percent were ``quasi-active,''
16 percent were ``compliant,'' and 24 percent were ``proactive.'' \13\
Among many additional barriers, LEPCs lack the authority and mandate
for hazard reduction; can be hampered by dependent relations with
industry; have no formal role in implementing Risk Management Planning;
and can become discouraged by a perceived unwillingness of government
and industry to act. Many lack funding. According to one report, ``many
LEPCs exist only on paper, and many others exist, but have not
succeeded in meeting even their basic responsibilities.\14\ There is a
role for local volunteer efforts, but these efforts are no substitute
for a national chemical hazard reduction program, and indeed would
benefit from the leadership provided by an effective national program.
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\12\ National Institute for Chemical Studies (Charleston, W.V.),
``Local Emergency Planning Committees and Risk Management Plans:
Encouraging Hazard Reduction,'' prepared for U.S. EPA, Chemical
Emergency Preparedness and Prevention Office (#CX 824095), June 2001.
\13\ George Washington University, Department of Public
Administration, Nationwide LEPC Survey, 1994.
\14\ Resources for the Future, The Future of Local Emergency
Planning Committees, 1993.
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Only Major Policy Changes Will Create a Successful National Effort
We need a national response to potential terrorism, not just
voluntary self-assessment programs. If site security at airports were
voluntary, it wouldn't make Americans feel very safe. The following
examples help illustrate the problem.
<bullet> Few chemical companies have set measurable goals and
timelines to reduce inherent hazards. In a 1999 survey of 175 chemical
industry facilities we found only one facility with a measurable goal
and timeline for eliminating or reducing the size of its vulnerability
zone for a worst-case accident.\15\ In a separate 1999 survey of nearly
200 major chemical companies, only three had developed measurable goals
and timelines to reduce worst-case vulnerability zones.\16\
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\15\ U.S. Public Interest Research Group and Working Group on
Community Right-to-Know, At Risk and In the Dark: Will Companies in Our
Communities Reduce Their Chemical Disaster Zones?, June 1999.
\16\ Environmental Defense, National Environmental Trust, OMB
Watch, Sierra Club, Unison Institute, U.S. Public Interest Research
Group, and Working Group on Community Right-to-Know, Hazard Reduction
Challenge, June 1999.
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<bullet> The Environmental Protection Agency (EPA) has also side
stepped obvious opportunities to encourage inherent safety. At EPA
public hearings in 1994 and 1995, public interest groups vigorously
supported having companies review inherently safer technologies as part
of Risk Management Planning. The agency did not incorporate this
approach. As an example of what can be achieved, Blue Plains sewage
plant will complete work to replace chlorine gas in 2002, a welcome
development.\17\ However, public interest groups, whistleblowers, and
nearby facilities pushed for changes for years, and the problem has
been known since 1982.\18\ This 20-year turnaround suggests why we need
a more proactive effort. Congress should ensure that we don't have to
wait another 20 years to make high priority facilities safer on a
national scale.
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\17\ ``Toxic Chemicals' Security Worries Officials,'' Washington
Post, November 12, 2001.
\18\ Radian Corporation, Air Dispersion Model Assessment of Impacts
From a Chlorine Spill at the Blue Plains Wastewater Treatment Plant
(Final Report), December 15, 1982.
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<bullet> Several chemical industry trade associations recently
published voluntary site security guidelines for chemical
companies.\19\ However, these guidelines are voluntary and lack
standards, timelines, or measurable hazard reduction goals. They
contain no third party verification and are not enforceable. They still
dismiss worst-case scenarios and assume that mitigation will not be
disabled (e.g., by an airplane crash). They don't address the added
security risks of contract workers. They don't apply margins of safety.
They don't weigh security costs against safer design. They don't
include accounting methods to help identify theft. They don't address
Internet sales and needed knowledge of customers. In general, they are
not designed to protect public health and safety.
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\19\ American Chemistry Council, Chlorine Institute Inc., and
Synthetic Organic Chemical Manufacturers Association, Site Security
Guidelines for the U.S. Chemical Industry, October 2001.
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The Chemical Security Act, S. 1602, Proposes Constructive Steps to Fix
the Problem
The Chemical Security Act will give government the mandate and
tools it needs to ensure that hazardous chemical industries reduce
hazards and protect chemicals from theft or intrusion. The act:
<bullet> Makes it a duty of high-priority industries to identify
their chemical hazards, take steps to reduce the possibility of
releases, and minimize the consequences of any releases that do occur.
<bullet> Puts prevention first, a new stage in U.S. chemical safety
laws. The bill establishes a prevention hierarchy for accidental and
criminal releases--from prevention as the first resort, to add-on
controls, security, and buffer zones. This hierarchy is similar to the
one already used to prevent routine toxic pollution under the Pollution
Prevention Act.\20\
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\20\ The Pollution Prevention Act, 42 U.S.C.A. 13101(b), made it
``the national policy of the United States that pollution should be
prevented or reduced at the source whenever feasible'' followed by a
hierarchy of waste management options.
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<bullet> Inherently safer technologies eliminate or reduce the
possibility of a chemical release;
<bullet> Well-maintained secondary containment, control, or
mitigation options reduce the potential severity of a chemical release;
<bullet> Site security and training further reduce the likelihood
of incidents; and,
<bullet> Buffer zones keep hazards away from vulnerable populations
(and vice versa).
This approach addresses the fundamental difference between
preventing a hazard and controlling it. There may not be safer
alternatives to all chemical processes. But the Chemical Security Act
proposes a hierarchy of responses that covers all bases and in all
cases will identify feasible measures to protect lives, property, and
the environment.
<bullet> Encourages technological innovation before static, add-on
security measures. Add-on security always costs money. Innovation
sometimes saves money. This approach recognizes that choice of
technology determines safety features and site security. The bill does
not prescribe ``one-size-fits-all'' technologies.
<bullet> Provides a consistent definition of inherently safer
technologies.
<bullet> Ensures that each safer technology used ``reduces or
eliminates the threats to public health and the environment'' of a
potential chemical release. This provision guards against shifting
hazards to other environmental media or venues.
<bullet> Encourages healthy competition to produce, market, and use
inherently safer technologies.
<bullet> Provides the Administrator and the Attorney General with
necessary authorities (for abatement, record keeping, site entry, and
penalties for non-compliance).
<bullet> Helps to ensure that government acts to protect people and
communities.
There are Many Opportunities for Inherently Safer Technologies
Specific examples, recent reports, and government efforts all
suggest that there are opportunities to reduce inherent chemical safety
hazards.\21\ A few examples help to illustrate what is possible:
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\21\ General sources on inherently safer design include: Health and
Safety Executive (of the United Kingdom), Technology Division,
Designing and operating safe chemical reaction processes
(www.hse.gov.uk); and, Trevor Kletz, Process Plants: A Handbook for
Inherently Safer Design, 1998.
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<bullet> The European Union has issued guidance for its principle
chemical accident prevention directive (the ``Seveso Directive'') that
places inherent safety as a preferred approach to preventing chemical
accidents.\22\
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\22\ The Directive on the Major Accident Hazards of Certain
Industrial Activities (the ``Seveso Directive'') requires member
countries to ensure that manufacturers prove a ``competent authority''
to identify major hazards, adopt appropriate safety measures, and
inform, train, and equip employees. Directive guidance adopted in 1997
addresses inherent safety.
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<bullet> The EPA has recommended in a chemical accident prevention
site security alert that ``eliminating or attenuating to the extent
practicable any hazardous characteristic during facility or process
design is generally preferable to simply adding on safety equipment or
security measures.''\23\
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\23\ U.S. Environmental Protection Agency, Chemical Accident
Prevention: Site Security (EPA-K-550-F00-002), February 2000.
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<bullet> A recent project conducted at four European firms (two
each in the Netherlands and Greece) identified more than two-dozen
feasible inherent safety alternatives, the majority with a payback
period of less than 2 years.\24\
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\24\ Gerard I.J.M. Zwetsloot and Nicholas A. Ashford, ``The
Feasibility of Encouraging Inherently Safer Production in Industrial
Firms,'' to be published in Safety Science. Zwetsloot is a professor at
Erasmus University Rotterdam, Netherlands. Ashford is a professor at
Massachusetts Institute of Technology.
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<bullet> In Washington, DC, the city's large Blue Plains Sewage
Plant is switching from volatile chlorine gas to less volatile sodium
hypochlorite bleach, which has far less potential for airborne offsite
impact (as noted above).
<bullet> In New Jersey, hundreds of water treatment plants have
switched away from or below threshold volumes of chlorine gas as a
result of the State's Toxic Catastrophe Prevention Act--from 575 such
water treatment facilities in 1988 to just 22 in 2001.\25\
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\25\ New Jersey Department of Environmental Protection,
Communication from Reggie Baldini, September 19, 2001.
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<bullet> In Cheshire, Ohio, American Electric Power selected a
urea-based pollution control system rather than one involving large-
scale storage of ammonia that would have endangered the surrounding
community.\26\
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\26\ American Electric Power, Press Release, December 18, 2000.
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<bullet> In Cuyahoga County, Ohio, ALCOA reduced its potential
offsite impact by working with local emergency planners and ending
onsite storage of hydrofluoric acid and nitric acid.\27\
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\27\ Information provided by Stuart Greenberg, member, Cuyahoga
County (Ohio) Local Emergency Planning Committee, 1998.
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<bullet> A recent study of Local Emergency Planning Committees
identified successful examples of hazard reduction in eight
communities, involving ammonia, chlorine, toluene diisocyanate, and
cyanide.\28\
---------------------------------------------------------------------------
\28\ National Institute for Chemical Studies, Ibid.
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EPA and DOJ Could Designate ``High Priority'' Categories in Several
Ways
The Chemical Security Act does not prejudge which industries EPA
and DOJ will determine pose the highest hazard. However there are
several possible approaches, which EPA and DOJ could use in
combination. For example:
<bullet> A draft screening analysis of EPA's Accidental Release
Information Program reveals that 12 industry and chemical combinations
account for 75 percent of serious accidents. The same approach
identified 12 industry and chemical combinations that account for some
70 percent of the serious accidents reported under EPA's Risk
Management Planning program.\29\
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\29\ National Chemical Safety Program, Mary Kay O'Connor Chemical
Process Safety Center, Texas A&M University, Annual Assessment Report--
2001 (Draft Report); Neither the NCSP nor the National Chemical Safety
Roundtable have endorsed as final the figures in this draft report.
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<bullet> In a 1995 analysis, EPA selected 19 high priority
chemicals based on toxicity, volatility, production volume, accident
history, and generic vulnerable zones. All but one of these chemicals
had caused injuries or death in accidental releases. EPA then
considered the storage, production, or use of these chemicals in
conjunction with population density to identify approximately 2,000
high priority facilities in certain areas.\30\
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\30\ U.S. Environmental Protection Agency, Priority Risk Areas for
CEPP Activities, June 1995.
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<bullet> EPA's Risk Management Planning program includes some
15,000 facilities that use large amounts of extremely hazardous
substances. Some 8,000 of these facilities project worst-case
vulnerability zones in which more than 1,000 people live (not all of
whom could usually be affected at once). Over 3,000 facilities project
worst-case vulnerability zones in which more than 10,000 people live;
about 700 facilities project vulnerability zones in which more than
100,000 people live, and 125 facilities project vulnerability zones in
which more than 1,000,000 people live.\31\
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\31\ James Belke, U.S. Environmental Protection Agency, ``Chemical
accident risks in U.S. industry--A preliminary analysis of accident
risk data from U.S. hazardous facilities,'' September 25, 2000
---------------------------------------------------------------------------
<bullet> EPA and DOJ could set a minimum standard for high priority
categories so as to include any facility that could cause death or
serious injury offsite.
People Support a Federal Prevention Role
A recent survey found that between 81 percent and 88 percent of
people living within a one-mile radius of a Risk Management Plan
facility would feel safer knowing that the EPA or the Occupational
Safety and Health Administration were providing accident prevention and
hazard reduction assistance to hazardous chemical industries. This
survey predated the September attacks. The survey also found that
between 50 percent and 67 percent of these ``near neighbors'' were
unaware of the specific Risk Management Plan facility.\32\ The Chemical
Security Act will help assure people that the government is
legitimately taking steps to protect them.
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\32\ National Chemical Safety Center, Mary Kay O'Connor Chemical
Process Safety Center, Texas A&M University, Survey of Public Trust and
Community Interaction, 2001. This survey contacted over 700 people in
randomly selected households near facilities that use, manufacture, or
distribute chemicals around the United States.
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______
Responses of Paul Orum to Additional Questions from Senator Corzine
Question 1. S. 1602 requires the Administration to identify and
reduce high priority chemical risks. Your testimony identifies several
possible ways that the Administration might approach this challenge. In
fact, you note that EPA has already conducted analyses that would lend
themselves to identifying high priorities. Do you think that the
Administration could readily identify high priority risks in a sensible
way?
Response. The Administration can easily identify high-priorities
from the vulnerabilities that Risk Management Plan (RMP) facilities
pose to workers and surrounding communities. The chemical industry has
for several years proclaimed that disclosing worst-case chemical
release scenarios on the Internet would provide a ``blueprint'' or
``roadmap'' for terrorists.\1\ \2\ Proponents of this theory explicitly
claimed that a terrorist could use a data base of worst-case scenarios
to realize ``one-stop shopping'' for ``targeting quality''
information.\3\ The Department of Justice amplified this claim in
testimony and reports.\4\ The House Commerce Committee held hearings
titled ``Internet Posting of Chemical `Worst Case' Scenarios: A Roadmap
for Terrorists.'' \5\ Congress implicitly accepted the roadmap theory
in restricting public access to the worst-case scenarios in 1999.\6\
Given this history, it is perplexing that anyone would now claim that
the Administration could not identify high priority facilities for
preventing chemical site terrorism.
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\1\ American Chemistry Council (FKA Chemical Manufacturers
Association), The Terrorist Threat in America, April 1998.
\2\ Coalition for Effective Environmental Information, Government
Accountability for Environmental Information Policy, 1999.
\3\ American Chemistry Council, Part Two, p. 9.
\4\ Statement of Robert M Burnham, Federal Bureau of Investigation,
before the Senate Committee on Environment and Public Works, March 16,
1999; and, U.S., Department of Justice, Assessment of the Increased
Risk of Terrorist or Other Criminal Activity Associated With Posting
Off-Site Consequence Analysis Information on the Internet, April 18,
2000.
\5\ U.S. House of Representatives, Committee on Commerce, February
10, 1999.
\6\ Chemical Safety Information, Site Security and Fuels Regulatory
Relief Act (Public Law 106-40).
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In setting priorities, EPA and DOJ should read the blueprint and
follow the roadmap. According to one industry analysis, the roadmap
consists of bringing together three elements: chemical inventory,
worst-case assessment, and population at risk.\7\ These three elements
present EPA and DOJ a means to identify high-priority facilities for
chemical terror prevention. Indeed, the DOJ is already working with
EPA's complete data base of Risk Management Plans (RMP*Info). Congress
should ask EPA and DOJ to provide the appropriate committee(s) with the
RMP roadmap, including populations at risk. Congress needs the roadmap
from EPA and DOJ to make informed decisions. Reducing these
vulnerabilities will provide a basic measure of progress on homeland
security.
---------------------------------------------------------------------------
\7\ Arthur F. Burke, DuPont Corporation, Communication of Risk
Management Plan Information: Some ``Principles & Concerns,'' March 4,
1997.
---------------------------------------------------------------------------
At the same time, to ensure that the Administration effectively
identifies high priorities, Congress should define minimum standards in
the Chemical Security Act. Without such a default ``backstop,'' the
Administration may not set priorities that protect public safety. The
Chemical Security Act should therefore require EPA and DOJ to consider
by default as high-priority those facilities that put any person
offsite at risk of death or serious injury. Alternatively, the Act
could define as high-priority any facility that puts more than a
specified number of persons at risk. The Act could then require those
facilities to either drop below a threshold number of persons at risk
or justify why they cannot do so and apply mandatory site security
standards. Using an objective standard, such as population at risk,
would ensure that inherent safety changes (involving production) are
selected by the company and not, as industry charges, by the
government. Facilities that are unable to meet the objective population
standard, however, should meet rigorous, mandatory site security
standards established by the government to prevent chemical terrorism.
In addition, S. 1602 currently directs EPA and DOJ to address threats
to national security, critical infrastructure, and threshold quantities
of substances of concern (to which could be added worker safety, in
consultation with the Department of Labor, and environmental
protection.) This authority enables the EPA and DOJ to select
particular industry sectors and substances of concern for additional
scrutiny.
As noted in my testimony, EPA identified in 1995 some 2,000 ``high
priority/high risk facilities and areas'' for attention to prevent
chemical releases.\8\ In this analysis, EPA used a number of criteria
for selecting priority risk areas, including industrial concentration,
population density, accident history, transportation density,
environmental justice, sensitive environments, and natural disasters.
The agency also selected 19 high priority substances based on chemical
toxicity, volatility, production volume, accident history, and
vulnerability zones. To my knowledge, however, the agency has not
targeted any hazard reduction assistance to the high priority
facilities and has no plans to do so.
---------------------------------------------------------------------------
\8\ U.S. Environmental Protection Agency, Priority Risk Areas for
CEPP Activities, June 1995.
---------------------------------------------------------------------------
Unfortunately, DOJ has not produced as required a site security
review that could help identify high priority sectors and
substances.\9\ Neither has EPA promulgated required rules that would
enable an independent ``qualified researcher'' to identify
priorities.\10\ Nor has the chemical industry suggested which industry
sectors or substances may require attention for improved security
(other than the three factors noted above: chemical inventory, worst-
case assessment, and population at risk). Identifying priorities is not
the problem; getting government and industry to act is the problem.
---------------------------------------------------------------------------
\9\ 42 U.S.C. 7412(r)(7)(H)(xi).
\10\ 42 U.S.C. 7412(r)(7)(H)(vii)
Question 2. In your testimony, you state that 125 facilities
project vulnerability zones in which more than one million people live.
It seems there are really two basic elements to such worst-case
analyses--the probability of the event, and the consequences of such an
event. It seems to me that the probability of such an event is up
sharply since September 11. Would you agree, and how do you think this
affects the way in which we should view the worst-case scenario
analyses?
Response. The tragedy of September 11 made clear not only the
vulnerability of major buildings and symbolic sites, but also the
vulnerability of the nation's chemical facilities. However, there is
little reason to believe that the security agencies can accurately
assess the probability (i.e., ``risk'') of all potential terrorist
attacks on chemical facilities. Indeed, on September 11 the security
agencies once again were unable to effectively anticipate major
developments, despite major resource expenditures for security
programs. Any program to protect the public against chemical terrorism
must acknowledge that security agencies: a) cannot foresee all
potential attacks among all potential chemical targets, b) cannot warn
facilities in advance of all specific attacks, and c) cannot anticipate
the nature of all such attacks. In the new era of terrorism, it is
decidedly inappropriate to base security decisions on the ability to
predict probability (risk); to do so is to base public protection on
false assurances. Chemical security programs must therefore address the
potential consequences of industrial releases, including the potential
worst-case release in which all safety controls and active mitigation
measures fail or are disabled.
Question 3. The testimony of Fred Webber points out that there are
many existing safety requirements that apply to chemical facilities. In
your view, do the authorities and security and hazard reduction
measures contained in S. 1602 exist elsewhere in current law?
Response. Existing Federal regulations do not address terrorism
prevention to the extent envisioned in S. 1602. Existing regulations
are from a different, pre-terrorism era. These regulations did not, as
a rule, address terrorism in selecting covered substances, thresholds,
and industrial sectors. Those few security measures that are contained
in current regulations are not equivalent to those contained in S. 1602
and are plainly insufficient to prevent chemical terrorism. To be sure,
no existing Federal law regulates the scope and extent of the
vulnerability zones that chemical facilities present to surrounding
communities in terms of distance, chemical intensity, or populations at
risk. Further, current laws do not require companies to assess safer
alternatives to practices that can send toxic fumes into nearby schools
or neighborhoods. In addition, many existing chemical safety laws do
not address terrorism involving industrial chemicals (such as programs
that regulate food quality, flammable fabrics, pesticide registration,
pollution permits, and drugs and cosmetics).
The Clean Air Act (CAA) contains certain authorities that EPA could
use to address chemical terror prevention. Section 112(r) established
the Risk Management Planning (RMP) program to prevent accidents
involving extremely hazardous substances.\11\ However, EPA did not
consider chemical terror prevention when selecting the chemicals,
thresholds, and processes regulated under the RMP program. Nor did EPA
include any requirement for firms to identify safer technologies in the
RMP program, despite vigorous prompting from environmental and labor
organizations.\12\ In addition, the CAA section 112(r)(7)(a) provides
EPA authority to compel dangerous chemical facilities to reduce worst-
case chemical vulnerabilities imposed on surrounding communities.
However, the agency has never used this authority and has no plans to
do so.\13\ Congress should ask EPA to explain if the CAA 112(r)(7)(a)
is for some reason insufficient to reduce the chemical terror
vulnerabilities that hang over many communities. Alternatively, if this
authority is sufficient, Congress should ask the agency to explain when
it intends to use it. If the CAA 112(r)(7)(a) is to contribute to
chemical terror prevention, Congress will apparently have to make this
provision mandatory, not optional, and direct EPA to use it and to
include inherent safety solutions.
---------------------------------------------------------------------------
\11\ 42 U.S.C. 7412(r)
\12\ U.S. Environmental Protection Agency, Supplemental Notice of
Proposed Rulemaking, ``Accidental Release Prevention Requirements: Risk
Management Programs Under Clean Air Act Section 112(r)(7); Proposed
Rule,'' 60 Federal Register 13525, March 13, 1995; and EPA public
hearings, March 31, 1995.
\13\ Personal communication of Jim Makris, Director, Chemical
Emergency Preparedness and Prevention Office, U.S. Environmental
Protection Agency, December 17, 2001.
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The Clean Air Act's general duty clause, Section 112(r)(1), enables
EPA to bring enforcement cases if a firm fails to identify and use
available inherently safer technologies that reduce the possibility of
chemical terrorism.\14\ However, EPA has never used the general duty
clause where a firm has failed to reduce unnecessary chemical hazards.
Further, EPA's implementation of the general duty clause does not
adequately address terrorism prevention in several ways. First, EPA's
guidance does not clearly identify a structured process by which firms
should identify, document, and select inherently safer options. Second,
EPA's guidance necessarily follows ``generally accepted'' or
``recognized'' industry practices--which routinely subject communities
to extremely hazardous substances stored in large, dangerous amounts.
Third, EPA's guidance does not set forth the agency's expectations for
firms to prevent criminal releases, which may dissuade EPA from
enforcing the general duty if a firm fails to take sufficient security
precautions. These shortcomings, together with the agency's pervasive
inactivity on inherent safety, illustrate the need for much more direct
and vigorous Congressional intervention to ensure that the agency
incorporates and uses design for inherent safety and terrorism
prevention in general duty enforcement.
---------------------------------------------------------------------------
\14\ 42 U.S.C. 7412(r)(1)
---------------------------------------------------------------------------
Aside from these unused Clean Air Act authorities, Federal
environmental laws and regulations are plainly insufficient to prevent
terrorism involving extremely hazardous chemicals:
<bullet> The Resource Conservation and Recovery Act (RCRA) includes
limited security requirements for hazardous waste sites.\15\ However,
these provisions ``prevent the unknowing entry, and minimize the
possibility for the unauthorized entry, of persons or livestock.'' \16\
In other words, these RCRA security provisions keep people and
livestock from wandering onto sites that store hazardous waste and
hurting themselves or others. These provisions are neither sufficiently
robust nor intended to address determined terrorists. Further, only
some 21 percent of facilities that must prepare Risk Management Plans
for extremely hazardous substances are also covered by these limited
RCRA site security requirements.\17\
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\15\ 42 U.S.C. 6901 et seq.
\16\ 40 CFR 264.14, 265.14.
\17\ Paul R. Kleindorfer, Harold Feldman, and Robert A. Lowe,
Accident Epidemiology in the U.S. Chemical Industry: Preliminary
Results from RMP*Info, Center for Risk Management and Decision
Processes, The Wharton School, University of Pennsylvania, March 6,
2000.
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<bullet> The Toxic Substances Control Act (TSCA) Section 6 gives
EPA broad power to control any chemical that poses an ``unreasonable
risk of injury to health or the environment.'' However, this standard
has proven indisputably cumbersome in practice and was never intended
to address terror prevention across a diverse array of industries.
Nonetheless, EPA could use TSCA Section 4 authority to require chemical
companies to field-test the dispersion plumes of high-volume chemicals
that they produce and use.\18\ Congress previously directed EPA to
conduct chemical dispersion tests under the Clean Air Act, including
field tests on two chemicals each year.\19\ However, EPA has not
actually field tested any chemical under this program, citing lack of
funding, among other impediments. Given the lack of testing progress
under the Clean Air Act, Congress should direct EPA to obtain chemical
dispersion test information from manufacturers under TSCA.
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\18\ 40 CFR 766, 790-799
\19\ 42 U.S.C. 7403(f)
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<bullet> The Process Safety Management (PSM) standard of the
Occupational Safety and Health Administration (OSHA) is intended to
protect workers onsite from chemical accidents.\20\ The PSM standard
requires firms to identify hazards, but not to address how terrorists
could defeat add-on safety controls, and not how safer alternative
processes or chemicals could reduce the firm's vulnerability to
terrorism. Many serious chemical accidents involve chemicals that are
not covered by the PSM standard. For example, the U.S. Chemical Safety
Board recently examined 167 deadly reactive chemical accidents that
together killed more than 100 Americans: over half of the chemicals
involved in these deadly incidents are not currently covered by PSM or
RMP.\21\ Further, more than half of the facilities covered by the RMP
program are not covered by PSM requirements.\22\
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\20\ OSH Act, Section 6; 29 CFR 1910.119
\21\ Presentation of John Murphy, U.S. Chemical Safety and Hazard
Investigation Board, Reactive Chemicals Hazard Investigation, Draft
Work Product, November 9, 2001.
\22\ Paul R. Kleindorfer, Harold Feldman, and Robert A. Lowe,
Accident Epidemiology and the U.S. Chemical Industry: Preliminary
Results from RMP*Info, Center for Risk Management and Decision
Processes, The Wharton School, University of Pennsylvania, March 6,
2000.
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<bullet> The OSHA Hazard Communication Standard informs workers
about hazardous chemicals with which they work.\23\ OSHA notes that
these standards ``do not address the precautions necessary to prevent
large accidental releases that could result in catastrophes.'' \24\
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\23\ OSH Act, Section 6; 29 CFR 1910.1200
\24\ Occupational Safety and Health Administration, Process Safety
Management of Highly Hazardous Chemicals.
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<bullet> The Comprehensive Environmental Response Compensation and
Liability Act of 1980 (CERCLA) and Superfund Amendments and
Reauthorization Act of 1986 (SARA) address responding to spills and
emergencies and cleaning up ``superfund'' and other contaminated
sites.\25\ These cleanup programs do not require companies to
investigate safer alternatives or reduce chemical hazards that a
terrorist could use as an expedient weapon.
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\25\ 42 U.S.C., Chapter 103
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<bullet> The Emergency Planning and Community Right-to-Know Act of
1986 (EPCRA), a freestanding title of SARA, addresses preparing for
spills or emergencies, through Local Emergency Planning Committees
(LEPC) and other means, and encourages chemical hazard communication to
the public.\26\ EPCRA does not require, however, that companies assess
or implement chemical hazard reduction strategies or even prevent
releases. Further, EPA-sponsored studies show that LEPCs generally
believe they lack the resources, expertise, and mandate for hazard
reduction work with facilities.\27\ In addition, EPCRA's most
successful community right-to-know provision, the Toxics Release
Inventory, primarily addresses routine toxic pollution, not emergency
releases.
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\26\ 42 U.S.C., Chapter 116
\27\ National Institute for Chemical Studies (Charleston, W.V.),
Local Emergency Planning Committees and Risk Management Plans:
Encouraging Hazard Reduction, prepared for U.S. EPA, Chemical Emergency
Preparedness and Prevention office (#CX 824095), June 2001.
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<bullet> The Chemicals Safety Information, Site Security and Fuels
Regulatory Relief Act (CSISSFRRA) restricted public disclosure and
oversight of chemical industry hazards, including the public's ability
to readily track progress in reducing those hazards.\28\ This law also
required DOJ to conduct a review of site security at chemical plants
and to produce recommendations. However, DOJ has not apparently
conducted this review, including an interim report due in August 2000.
DOJ has not addressed substantial concerns raised by environmental and
labor groups about this review. These concerns include more than three-
dozen specific site security recommendations and a framework for
incorporating inherent safety design in improving site security.\29\
Congress should ensure that DOJ completes this statutory requirement
and responds to public concerns. However Congress should also condition
resources provided to the security agencies on completion of specific
tasks by explicit deadlines.
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\28\ 42 U.S.C. 7401 (Public Law 106-40)
\29\ Working Group on Community Right-to-Know et al, letters to the
Attorney General of August 14, 2000; April 23, 2001; June 15, 2001;
and, September 27, 2001 (www.rtknet.org/wcs).
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<bullet> The Pollution Prevention Act (PPA) makes it the national
policy of the United States to reduce toxic waste at the source
wherever feasible.\30\ The PPA also directs the EPA to consider how
agency actions affect source reduction of toxic waste. Source
reduction, broadly considered, covers both routine releases and one-
time events. However, the focus of the PPA is to prevent routine
industrial toxic pollution rather than emergencies.
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\30\ 42 U.S.C. 13101 et seq. (Public Law 101-508)
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<bullet> The Hazardous Materials Transportation Act (HMTA) governs
transportation of hazardous materials.\31\ The Department of
Transportation's (DOT) hazardous materials regulations under HMTA have
significant gaps. Railcars held on leased track (on sidings or under
``rolling'' leases), often in populated areas, pose major chemical
release hazards but may not be covered by either DOT regulations or
EPA's RMP program.\32\ Railcars may in some cases sit just outside the
fence at an RMP facility without being included in hazard assessments,
public disclosure, and risk management planning. DOT has recently noted
that the threat of continuing terrorism makes it more important to
address such regulatory gaps.\33\ Ubiquitous graffiti scrawled on
railcars also suggests weak or non-existent security.
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\31\ 42 U.S.C. 5101 et seq.
\32\ 66 Federal Register 32420
\33\ 66 Federal Register 59220
Question 4. The American Chemistry Council and SOCMA testified
about the security and transportation guidelines that they have
developed and are working to implement. What do you think of the
adequacy of the guidelines? Do you think that a voluntary approach to
implementing such guidelines would be more effective than the
regulatory approach in S. 1602?
Response. The American Chemistry Council's voluntary ``Site
Security Guidelines for the U.S. Chemical Industry,'' recently released
with SOCMA and the Chlorine Institute, are neither intended nor suited
to protect public health and safety. Voluntary chemical site security
is no more appropriate than voluntary airport security, and is no more
likely to succeed. Voluntary efforts can economically penalize industry
leaders who do a thorough job and reward laggards who don't. The ACC's
voluntary industry guidelines also suffer major deficiencies. The
guidelines:
<bullet> Have no standards;
<bullet> Have no timelines;
<bullet> Suggest no hazard reduction policies;
<bullet> Have no measurable hazard reduction goals;
<bullet> Offer no accountability to workers and communities;
<bullet> Do not address added security risks of contract or
temporary workers;
<bullet> Do not apply any safety margins;
<bullet> Neglect inherent safety options that can reduce add-on
security needs;
<bullet> Contain no cost accounting to understand total security
costs (and weigh these costs against safer design, which reduces
security needs);
<bullet> Do not account for security costs imposed on local
governments, police, and firefighters;
<bullet> Neglect to treat chemical hazards as a liability (or lack
thereof as an asset) to the firm's ``social license'' to operate;
<bullet> Contain no materials accounting to help identify theft of
bomb-making materials;
<bullet> Lack standard procedures for assessing inherently safer
technologies;
<bullet> Do not address anonymous chemical sales on the Internet
and needed knowledge of customers;
<bullet> Assume that terrorists or accidents will not disable add-
on protections (as could happen, for example, if an airplane were to
crash into a chemical plant);
<bullet> Dismiss the need to reduce potential worst-case
scenarios--still, even after September 11;
<bullet> Do not contain third party verification (``trust but
verify'');
<bullet> Are not enforceable;
<bullet> Are not intended to protect public health and safety.
As noted in my testimony, studies and case examples show that site
security measures do fail. Beyond these examples, CBS New York recently
broadcast a tape of journalists easily entering a chemical tank
farm.\34\ Other observers have noted that terrorists or drunks could
use high-powered rifles to pierce and explode chemical storage tanks
even without penetrating site security.\35\ An industry publication
points out in graphic terms the vulnerabilities to terrorism of
refineries and other facilities that use hydrofluoric acid.\36\
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\34\ CBS Channel 2 New York City, Chemical Plant Security Story,
November 26, 2001.
\35\ Violence Policy Center, Voting From the Rooftops, October
2001.
\36\ Neil C. Livingstone, et al, American Bophals (SIC), Energy
Safety Council (Washington, DC).
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Voluntary approaches are plainly insufficient. Current voluntary
efforts have not led many chemical manufacturers to reduce the size of
the danger zones that their facilities impose on surrounding
communities (in terms of vulnerable distance, population at risk, or
toxic intensity). For example, as noted in my testimony:
<bullet> In 1999, the Working Group and six other organizations
asked 192 major chemical companies to set measurable goals and
timelines to reduce the size of their worst-case vulnerability zones
for chemical fires and spills. These 192 companies were members of the
American Chemistry Council and often have multiple facilities. Some 78
companies responded. Of those, 14 stated that they were not required to
file Risk Management Plans (the basis document for the worst-case
scenarios). Among the remaining 64, only three provided measurable
goals and timelines to reduce the size and danger to the community of
their vulnerability zones. Two more asked for more time, but then
didn't set any later goals.\37\
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\37\ Environmental Defense, National Environmental Trust, OMB
Watch, Sierra Club, Unison Institute, U.S. Public Interest Research
Group, and Working Group on Community Right-to-Know, Hazard Reduction
Challenge, June 1999.
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<bullet> In 1999, the Working Group and U.S. PIRG surveyed 175
specific chemical facilities that had active community dialog efforts.
Only one facility out of 175 proved to have publicly announced a
measurable goal and timeline for reducing the zone of vulnerability in
which people could be hurt or killed in a worst-case chemical fire or
spill.\38\
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\38\ U.S. Public Interest Research Group and Working Group on
Community Right-to-Know, At Risk and In the Dark: Will Companies in Our
Communities Reduce Their Chemical Disaster Zones?, June 1999.
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In the past, chemical industry representatives have insisted that
voluntary initiatives such as Responsible Care should not be used to
oppose government actions. In the words of John Holtzman, a former
director of public affairs at the American Chemistry Council (then the
Chemical Manufacturers Association):
``We don't want anyone to say, `We don't need this regulation,
because we have Responsible Care.' We don't view the program as a
shield [against regulation.]'' \39\
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\39\ Chemical Marketing Reporter, What's in a Logo, January 6,
1992.
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__________
August 14, 2000.
Hon. Janet Reno,
Attorney General of the United States,
Department of Justice,
950 Pennsylvania Ave., NW, Room 4545,
Washington, DC.
Dear Attorney General Reno: The Department of Justice has asserted,
in response to chemical industry lobbying,\1\ that extremely hazardous
substances (EHS) at industrial facilities present attractive targets
for criminal activity.\2\ The Agency for Toxic Substances and Disease
Registry confirms that site security at chemical-using industries
ranges from fair to very poor.\3\
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\1\ Chemical Manufacturers Association, The Terrorist Threat in
America, 1998; also, Arthur F. Burk, Communication of Risk Management
Plan Information: Some Principles & Concerns, March 4, 1997; also U.S.
Environmental Protection Agency, Final Report of the Electronic
Submission Workgroup (Section 2: Access System), 1997.
\2\ Federal Register, Volume 65, p. 24833, and supporting
documents, April 27, 2000.
\3\ Agency for Toxic Substances and Disease Registry, Industrial
Chemicals and Terrorism: Human Health Threat Analysis, Mitigation and
Prevention, 1999.
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For these reasons, Congress directed the Department of Justice, in
consultation with government, industry, and the public, to report on
``actions, including the design and maintenance of safe facilities,
that are effective in detecting, preventing, and minimizing the
consequences of releases of regulated [extremely hazardous] substances
that may be caused by criminal activity.'' Congress further directed
the Department to make ``recommendations for reducing vulnerability of
covered stationary sources to criminal and terrorist activity''.
Congress directed the Department to produce an interim report by August
5, 2000.\4\ The Department did not meet this non-discretionary
deadline.
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\4\ Chemical Safety Information, Site Security and Fuels Regulatory
Relief Act of 1999, Section 3(a)(xi).
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Environmental, labor, and public health organizations have
vigorously supported a serious reduction in the potential for onsite
and offsite consequences of chemical fires and explosions at EHS
facilities. Our organizations have, in particular, championed the use
of inherently safer design to reduce and eliminate chemical hazards
that may be wholly unnecessary.
We strongly urge the Department not to limit its review and
recommendations to the reactive control of existing EHS hazards.
Rather, the Department should include, as the option of first resort,
the possibility of reducing, eliminating, or removing these hazards.
This proactive approach is consistent with the Department's new
emphasis on preventing, rather than simply responding to, terrorism and
other crimes.
The advantages of preventive design are widely acknowledged, but
seldom acted upon. For example, the ``Handbook of Loss Prevention and
Crime Prevention'' notes that:
``All too frequently insufficient consideration is given to
security factors before and during construction; security protection is
too often added as an afterthought, if at all.'' The author recommends
that ``model security codes must be established and built into all new
construction.'' \5\
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\5\ Lawrence J. Fennelly, Handbook of Loss Prevention and Crime
Prevention, Second Edition, 1989, p.35.
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Further, the Environmental Protection Agency (EPA) recently
encouraged EHS users to consider that:
``Facility and process design (including chemicals used) determine
the need for safety equipment, site security, buffer zones, and
mitigation planning. Eliminating or attenuating to the extent
practicable any hazardous characteristic during facility or process
design is generally preferable to simply adding on safety equipment or
security measures.'' \6\
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\6\ U.S. Environmental Protection Agency, Chemical Safety Alert,
Chemical Accident Prevention: Site Security, February 2000 (EPA-K-550-
002), p.3.
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We therefore respectfully urge the Department in its
recommendations to Congress to:
<bullet> Incorporate hazard reduction as a fundamental component of
terrorism and crime prevention at EHS facilities as a first resort,
and;
<bullet> Propose mandatory, uniform model safety and security
standards for hazards that cannot be reduced or eliminated.
To back up these prevention policies and security standards, we
urge the Department to: identify appropriate legal means to codify
terrorism prevention standards, including an annex to the Risk
Management Planning (RMP) program \7\; intensify compliance assistance
and enforcement at EHS facilities, including facilities covered by the
RMP program, and; encourage worker involvement in systems of safety
analysis and prevention-oriented, root cause investigations of EHS
incidents and near misses.
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\7\ Clean Air Act Amendments of 1990, Section 112(r).
---------------------------------------------------------------------------
Following a prevention hierarchy, EHS facilities first reduce or
eliminate the hazard where feasible, before using add-on secondary
containment, control, or mitigation equipment and improving site
security to address remaining vulnerabilities. As a last resort,
enhanced buffer zones separate EHS facilities from surrounding areas
and sensitive populations (such as schools, residences, or
hospitals).\8\
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\8\ Senator Frank Lautenberg, U.S. Senate, Chemical Security Act of
1999 (S. 1470).
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We do not suggest that safer design can avoid every safety and
security hazard. In fact, even the best security systems will be
breached and the best safety systems will fail. Therefore, we suggest
that safer design should be the first alternative in the hierarchy of
safety and security options: first prevent, then control, then
mitigate, and only last, buffer.
Add-on security measures (such as guards, alarms, and access
controls) frequently are costly. In contrast, inherently safer design
can help firms to simultaneously control costs and improve security and
reduce hazards. While best considered during design, existing plants
can retrofit many inherent safety features.
We recognize that the Department may not view preventive design as
within its traditional field of expertise. Certainly local police and
security consultants often know little about inherently safer design
for EHS facilities. We therefore urge the Department to actively
obtain, as needed, necessary expertise on design for inherent safety
and security, both to report to Congress and to assure sufficient long-
term access by local, state, and Federal security agencies to such
expertise.
The chemical process industry's leading expert in inherently safer
design, Trevor Kletz, has identified more than a dozen ways to reduce
hazards by improving plant design: \9\
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\9\ Trevor Kletz, Process Plants: A Handbook for Inherently Safer
Design, 1998.
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<bullet> Intensification minimizes inventories of hazardous
materials.
<bullet> Substitution replaces hazardous materials with safer
materials.
<bullet> Attenuation uses hazardous materials under the least
hazardous conditions.
<bullet> Limitation changes designs or conditions to reduce
potential effects.
<bullet> Simplification reduces complexity to reduce the
opportunity for error.
<bullet> Other means include using designs that: avoid potential
``domino'' effects; make incorrect assembly impossible; tolerate
misuse; keep controls and computer software easy to understand and use;
keep process status clear; have well-defined instructions and
procedures; employ passive safety; and minimize hazards throughout the
material's life-cycle.
While these measures target non-criminal releases, the principle
``what you don't have, can't leak'' applies equally to criminal
releases. The Department should foster facilityspecific national benign
by design standards for EHS facilities to eliminate or reduce features
that allegedly make a plant attractive to criminals or that require
costly add-on security arrangements. (Please refer to the attached list
of Minimum Safety and Security Standards for EHS Facilities.)
In addition to the concerns raised above, some observers claim that
persons outside an EHS facility could seize control electronically of
key safety systems and cause a release. The Department should evaluate
this claim and, if it is valid, ensure that EHS facilities effectively
counter such computer intrusion. In all areas, the Department should
fully and publicly document vulnerabilities, if any, and methods used
to prevent and counter specific threats.
Finally, increasing electronic commerce may raise EHS security
issues that parallel the Department's previously stated Internet
disclosure concerns. We urge you to review industry plans for a one-
stop ``e-marketplace'' that will present unmonitored purchasing
opportunities and connect the supply chain of chemicals worldwide. We
urge you to address such Internet activity in your review and
recommendations, to the same degree that the Department scrutinized
public communication of EHS hazards on the Internet, and to apply
parallel standards of disclosure.
As you are no doubt aware, we are dismayed with the Department's
role in impeding community right-to-know about chemical industry
dangers while taking no apparent steps to eliminate these hazards at
the source. We look forward to your Department's report to Congress,
now overdue, as an opportunity to recommend affirmative steps for
worker and community safety through hazard reduction and improved
security at EHS facilities.
Sincerely,
John Chelan, Center for Public Date Access; Lois
Epstein, Environmental Defense; Stuart
Greenberg, Environmental Health Watch;
Frank D. Martino, International Chemical
Workers Union Council/UFCW; Thomas Natan,
National Environmental Trust; Rick Engler,
New Jersey Work Environment Council; Boyd
Young, Paper, Allied-Industrial, Chemical,
and Energy Workers International Union;
Robert K. Musil, Physicians for Social
Responsibility; Carl Pope, Sierra Club;
Mike Wright, United Steelworkers of
America; Jeremiah Baumann, U.S. Public
Interest Research Group; Paul Orum, Working
Group on Community Right-to-Know.
__________
Minimum Safety and Security Standards for EHS Facilities *
Uniform security design codes for extremely hazardous substances
(EHS) at industrial facilities should protect workers and communities
from criminal activity that targets EHS chemicals. Such codes should
follow a prevention hierarchy and strictly regulate the design,
construction, materials, location, operation, and maintenance of EHS
facilities. If terrorism at chemical plants is a legitimate concern,
then standards should address, at a minimum, each of the following
elements:
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* These safety and security elements are derived from, among other
sources: Lawrence J. Fennelly, Handbook of Loss Prevention and Crime
Prevention, Second Edition, 1989; and Russell L. Bintliff, The Complete
Manual of Corporate and Industrial Security, 1992. Elements related to
inherent safety are derived from, among other sources: Trevor Kletz,
Process Plants. A Handbook for Inherently Safer Design, 1998.
---------------------------------------------------------------------------
<bullet> Crime Impact Forecasts determine the potential worst-case
impact from terrorism involving EHS materials, in terms of injuries,
deaths, and property damage onsite and offsite.
<bullet> Safer Design Studies weigh inherently safer alternatives
and security needs during design both prior to construction and major
reconstruction at EHS sites, and during safer redesign of existing
security risk facilities.
<bullet> Policy Statements commit companies to determine if
chemical hazards can be readily reduced or eliminated before analyzing
risks and potential consequences of these hazards, and help engage
senior managers and full corporate resources in design for safety and
security.
<bullet> Architectural Design Standards ensure that architects
incorporate safer design and security elements into new construction,
reconstruction, and redesign of EHS areas.
<bullet> Construction Materials Guidelines specify materials that
are appropriately resistant to fire, blast, and forced entry, among
other safety and security concerns.
<bullet> Materials Accounting makes evident any theft of EHS
chemicals, facilitates site safety and prevention planning, and helps
managers to keep unwanted substances out of a facility (the hazardous
materials pharmacy concept).
<bullet> Security Records Systems document security deficiencies,
malfunctions, case reports, and corrective actions in a written
retrievable format sufficient to support planning, budgeting, and
maintenance schedules.
<bullet> Administrative Controls ensure that facilities operate
within design capacity, and eliminate or reduce chemical hazards
through mandatory review of: proposed process changes; EHS purchases;
order frequency and volume; and chemical uses.
<bullet> Security Lighting provides protective illumination in all
weather, including through secure automatic auxiliary systems and power
sources (such as generators or batteries), underground circuits, and
redundant wiring.
<bullet> Intrusion Detection Systems and Alarms protect EHS
operations by detecting motion, heat, smoke, sound, or pressure at the
facility perimeter, in critical areas (such as computer centers and EHS
areas), and at all potential access points (such as doors, windows,
floors, roof hatches and skylights, gates, manholes, drains and
discharge outfalls, adjoining buildings, and air vents).
<bullet> Physical Barriers prevent unauthorized access by persons
and vehicles (including air and watercraft) through building design,
well-maintained and monitored fences, walls, truck barriers, locks,
window bars, safety glass, etc., including compartmental barriers
around EHS areas.
<bullet> Projectile Shields protect EHS tanks and vessels from
airborne and propelled explosive devices and projectiles (as well as
from blast fragments).
<bullet> Emergency Exits ensure that workers can quickly vacate
buildings and grounds through clearly marked and maintained exits.
Self-contained alarms and warning signs prevent non-emergency use.
<bullet> Blast and Fire Safe Control Rooms and Safe Rooms protect
workers and visitors from explosions and fires that originate from
criminal activity or plant design, and contain breathing devices, first
aid supplies, and secure independent external communications.
<bullet> Cyber Barriers block persons outside a facility from
electronically manipulating computers that control critical valves,
pressures, temperatures, facility access, and other safety systems
(using cyber ``firewalls,'' encryption, and electronic pass keys with
changing codes).
<bullet> Physical Computer Security safeguards critical computer
systems through: fire/water/blast safe construction; access controls;
dedicated security officers; safe distances from EHS hazards; secure
air vents safe from EHS gas leaks; fully compatible backup computers
and expertise; backup electricity and communications, and; automatic
shutdown capabilities.
<bullet> Failsafe Computer Backup Systems independently monitor
critical security and safety systems and take over to prevent
catastrophic failure.
<bullet> Closed Circuit TV maximizes intrusion-monitoring
capabilities.
<bullet> Add-on Safety Equipment contains, controls, and mitigates
releases (such as containment buildings, water spray curtains,
automatic shutoff valves, and blast mitigation barriers).
<bullet> Safe Shutdown Procedures enable operators to shut down
facilities in emergencies; they must be clearly documented, simple, and
robust enough to function in urgent situations, including clear
procedures, exercises, and authority.
<bullet> On-site Response Teams shut down or reestablish power or
water, contact outside assistance (police, fire, medical, bomb squad),
provide first aid, direct evacuations, and operate and troubleshoot
backup computer systems.
<bullet> Joint Response Planning coordinates, revises, and
exercises response plans with local emergency responders and planning
committees (LEPCs), addressing emergency notification and response,
hazmat response teams, decontamination facilities, drills, evacuation
routes, medical care and pharmaceutical stockpiles, trauma counseling,
community restoration, emergency resources, and additional elements
listed in Section 303 of the Emergency Planning and Community Right-to-
Know Act.
<bullet> Transportation Planning reduces hazards through delivery
route planning (avoiding tunnels, downtown areas, and sensitive
populations), random timing, alternate routes, driver training,
security escorts, equipment maintenance, secure valves, compatible
cargoes, and appropriate volume packaging.
<bullet> Testing and Maintenance Schedules ensure that firms
evaluate security equipment and systems, including periodic fire and
emergency drills, and daily review of grounds, fences and barriers,
utilities, backup systems (such as lighting and computers), fire and
intrusion detection systems, alarms, sprinklers, and other security
elements.
<bullet> Access Controls address personal identification and
clearance, key control, parcel inspection, metal detection, visitor
logs, escorts for outside service vendors, remote locks, and lock
change schedules (including upon changes in employees).
<bullet> Security Device Standards specify suitable materials,
hardware, construction, inspection, and maintenance of locks and
frames.
<bullet> Secure Backup Utilities ensure continuous safety and
emergency response capabilities upon loss of electricity, telephones,
water, sewers, or cyber systems, including redundant wiring (onsite and
incoming), secure electrical panels, and backup generators.
<bullet> Grounds Maintenance and Landscaping keep EHS zones and
sightlines free from obstructions, such as double fences with
vegetation-free medians.
<bullet> Guard Force Requirements ensure sufficient and well-
prepared staffing, with accurate and updated written duties and
standards for supervision, training, and performance evaluation.
<bullet> Certified Training prepares and certifies security and
other staff on safety, fire protection, weapons, bomb threats, hostage
situations, arson, access controls, security devices, first aid, self
defense, case reports and records, communications, human relations, and
special training on EHS dangers and response.
<bullet> Labor Dialogue ensures that workers are involved in
security problem solving.
<bullet> Theft Prevention Guidelines ensure that firms track and
safely store EHS materials to prevent theft, and address legal
liability for harm associated with inadequate theft and fraud
prevention.
<bullet> Financial Analysis Standards ensure that prevention
investments receive comprehensive treatment during the capital
budgeting process, including costs of EHS operations avoided through
specific projects (such as heightened security, liability, regulatory
compliance, add-on safety equipment, and remedial cleanups).
<bullet> Line Item Security Budgeting informs senior managers about
security costs for EHS operations in existing and proposed projects.
<bullet> Internal Security Audits periodically assess security
systems and safer alternatives.
<bullet> Certified Third-party Audits regularly review security
systems and propose safer alternatives.
<bullet> Buffer Zone Setback Guidelines provide land use planners
and zoning boards with guidelines for establishing sufficient
separation between EHS facilities and public receptors such as schools,
homes, day care centers, sports arenas, shopping malls, major highways,
businesses, and hospitals.
__________
September 27, 2001.
Attorney General John Ashcroft,
U.S. Department of Justice,
950 Pennsylvania Ave. NW,
Washington, DC.
Dear Attorney General Ashcroft: We are once again sending to the
Department of Justice our concerns and proposals for reducing the
vulnerability of chemical facilities to terrorist attack. For some
time, DOJ officials have warned of the vulnerability of chemical plants
to terrorism. Now it is time for the DOJ to act. Given the terrible
recent events of September 11, we hope that whatever impediments have
blocked progress on this issue can now be quickly overcome.
Our letter cites the Department's legal responsibility under P.L.
106-40, the Chemical Safety Information, Site Security and Fuels
Regulatory Relief Act, to submit to Congress a report and
recommendations for reducing the vulnerability of chemical industries
to terrorist attack. This law requires the Department to consult with
appropriate agencies, affected industries, and the public in preparing
its report and recommendations. The Department's work on a voluntary
self-assessment methodology for use by chemical industries does not
diminish the requirement to produce this report and to make suitable
recommendations by August 2002.
Our concern is straightforward: prevention must play a central role
in addressing potential terrorism and accidents. Reducing or
eliminating chemical hazards where possible is as a rule preferable to
using add-on safety equipment or security measures.
In three previous written responses, the Department first twice
referred us to other agencies, and then later referenced other laws
administered by the Department. As we have previously requested, please
provide the schedule for public consultation (including a publicly
accessible docket of all comments) by which you intend to address each
of our concerns as well as comments that may be raised by others.
Paul Orum,
Director.
Statement of William Stanley, Sourcing-Regulatory Manager,
Deepwater Chemicals
I. INTRODUCTORY COMMENTS
Chairwoman Boxer, members of the subcommittee, my name is Bill
Stanley. I am the sourcing-regulatory manager of Deepwater Chemicals in
Woodward, OK. I am appearing today on behalf of the Synthetic Organic
Chemical Manufacturers Association, known as ``SOCMA.''
I appreciate the opportunity to speak with you on the issue of site
security for the chemical industry. My goal is to provide you with
perspective on the activities of SOCMA and its members with respect to
process safety and site security, while also explaining the unique
nature of the batch and specialty chemical manufacturing sector of the
chemical industry.
Deepwater Chemicals is a small company. It has 30 employees, 16 of
which are process operators. Deepwater is a manufacturer of fine
chemicals, specializing in organic and inorganic iodine derivatives.
Our products are chemical intermediates that are key building blocks
for important products of the chemical industry, such as
pharmaceuticals, biocides, disinfectants, and heat stabilizers. I
should also note that Deepwater Chemicals uses batch-manufacturing
processes, a manufacturing method typical of many smaller chemical
companies.
A primary focus of SOCMA is representation of the batch and
specialty chemical manufacturing segments of the chemical industry,
with a particular focus on the interests of small businesses. I,serve
on SOCMA's Employee and Process Safety Committee.
This committee, along with other groups within SOCMA, had been
actively addressing process safety and site security issues well before
the tragic events of September 11.
I will focus my remarks today on three specific areas. First, I
will explain the nature of batch manufacturing, the contributions of
this industry sector, and the unique challenges that these operations
present relative to the broader chemical industry. Second, I will
provide information on how both Deepwater Chemicals and SOCMA more
generally are addressing site security and process safety. Third, I
will explain SOCMA's perspective on how industry and Federal, State and
local agencies can most effectively collaborate to address these
challenges and why S. 1602 is not an effective vehicle for
accomplishing the common goal of further improving site security within
the chemical industry.
II. THE UNIQUE NATURE AND ROLE OF THE BATCH AND SPECIALTY CHEMICAL
MANUFACTURING SECTOR
The U.S. chemical industry has long been an integral part of the
growth, development, and stability of the United States. The industry
has made significant contributions to the well-being, peace and
prosperity of our country, in areas ranging from national security to
health and safety, We have all benefited from these efforts.
When SOCMA was formed 80 years ago, the U.S. chemical industry was
playing a vital role in supplying the military with products that were
necessary during the war. Our industry's contributions to the war on
terrorism are just as essential today: SOCMA members play a key role in
the production of these materials. This is often a less visible role,
however, due to the nature of our industry. SOCMA members typically
produce intermediates, specialty chemicals or ingredients that are used
as feedstock in the manufacture of a wide range of commercial and
consumer products.
The term ``specialty chemicals'' refers to a category of chemicals
that are specially formulated to meet detailed specifications.
Specialty chemicals usually have unique, special purposes, such as to
make nylon fibers stronger, or to make an active ingredient in
medicine. Specialty chemicals are often essential ingredients in the
manufacture of another product. Making these products is an ever-
changing business, often requiring small quantities in a timely manner.
The specialized nature of SOCMA's members' products thus often calls
for batch manufacturing operations.
Batch manufacturing provides an efficient, and frequently the only,
method to make small quantities of chemicals to meet specific needs and
customer demands for specialized products. Batch processes are very
different from continuous chemical manufacturing operations that
produce commodity chemicals. A continuous chemical operation constantly
feeds the same raw material into the process. That process consistently
and constantly manufactures the same product.
By contrast, production at a batch manufacturing facility is not
continuous. Both the processes and the raw materials used can change
frequently. Products are manufactured in separate, distinct
``batches,'' by operations that start and finish within relatively
shorter periods of time. Because the products and the processes change,
the process operating conditions and even the configuration of the
equipment can change as well. A single piece of equipment can be put to
multiple uses and may well contain a range of different materials over
the course of a year. In fact, a SOCMA study found that one member
company produced a total of 566 different products over a 7-year period
at one facility.
To remain competitive in a tough global market, batch producers
must be able to respond quickly to new requirements by customers, fill
small market niches and develop new products. U.S. batch producers are
at the cutting edge of new technology and provide products often made
nowhere else in the world.
Just as batch and specialty chemical manufacturing differs from
commodity chemical manufacturing, so do the challenges faced by this
industry sector. SOCMA thus has a role to play in representing this
industry sector. SOCMA constantly advocates on behalf of its members
for regulatory flexibility. ``One size fits all programs'' for the
chemical industry often do not fit SOCMA members. This is especially
true when one considers that over 75 percent of SOCMA's active members
are small businesses.
Over the years, SOCMA and its members have identified and addressed
many areas in which standard assumptions about chemical operations
would be detrimental to SOCMA members. This is true with respect to
chemical site security as well.
III. HOW SOCMA AND ITS MEMBERS ARE ADDRESSING SITE SECURITY AND PROCESS
SAFETY
The events of September 11, 2001 have changed our nation and its
approach to security. The chemical industry is no exception. We are in
a state of heightened awareness of the risks posed by terrorist and
criminal activity. Ensuring the safety of our facilities, employees,
neighbors and the environment is embedded in our industry culture. This
culture of safe handling, manufacturing, and distribution of chemicals
has produced results. According to data compiled by the Department of
Labor, chemical manufacturing is one of the safest manufacturing
industries in the nation. Preserving and building on this dedication to
safety will continue to be a priority for our industry sector.
Since September 11, our industry has taken numerous proactive
measures to augment existing environmental, health and safety
practices. Typical security practices modified or implemented at SOCMA
member companies after September 11 include: conducting vulnerability
or security assessments of the facilities and/or processes,
communicating with law enforcement or emergency responders, tightening
access by contract personnel, further controlling vehicle Access, and
security awareness training.
On behalf of its members, SOCMA has actively participated in the
development of site security guidelines, has met frequently with
government officials, and is planning and promoting a series of site
security workshops to be conducted free of charge across the nation.
SOCMA intends to build upon and expand these efforts to advance site
security practices across the industry.
Site security at chemical plants is being, addressed in other ways
as well. SOCMA members participate in Responsible Care, a management
system, which is the chemical industry's voluntary initiative for
continuous improvement in environmental, health, and safety
performance. Under Responsible Care, there are management practices
dedicated to site security, employee health and safety, process safety,
and distribution. Site security is addressed within the Employee Health
and Safety code.
In February 2001, SOCMA formed a partnership with the American
Chemistry Council and The Chlorine Institute to proactively address
site security. Together, we coauthored a guidance manual onsite
security for the chemical industry. In October, this manual, ``Site
Security Guidelines for the U.S. Chemical Industry''', was made
available to SOCMA members and also to non-members as a public service.
It is available on our website, www.socma.com. SOCMA has reached out,
in particular to share the guidelines with other associations that
represent small business. These guidelines are not intended to provide
an all-inclusive list of security considerations for chemical
companies. They are intended to be a resource.
It was important for SOCMA to bring the unique perspective of the
specialty batch and custom chemical industry to the development of
these guidelines. Because of the many differences between these
facilities and larger operations, it is critical for a plant manager to
have the flexibility to prioritize resources and implement security
appropriate measures for that facility which would be most effective.
SOCMA has also met with the U.S. Department of Justice and its
contractor, Sandia National Laboratories, on the congressionally
mandated vulnerability assessment of chemical facilities. To date,
Sandia's assessment has been based on six, large commodity chemical
manufacturers. SOCMA members have volunteered to host a site visit by
DOJ to ``test'' the prototype vulnerability assessment methodology. It
is critical that specialty batch and custom chemical manufacturers
participate in this project to ensure that the assessment report is
balanced and accurately reflects industry diversity in plant size,
processing techniques, and production lines.
Since September 11, SOCMA has continually been in contact with
various Federal agencies including the U.S. Environmental Protection
Agency (EPA) and the Federal Bureau of Investigation (FBI) to share
information. We are also engaged in an ongoing dialog to discuss ways
that industry and government can work cooperatively together to combat
terrorism. We are planning to co-host regional workshops on security to
share information between the agencies and industry, present case
studies and practical information on developing a security plan at a
facility, and discuss best practices related to transportation security
and product stewardship. Every effort is being made to ensure that
workshops will be held in several States by the end of 2001.
B. Current Activities Underway
At the facility level at Deepwater Chemicals, safety and security
is a top priority. Our goal is to produce a quality product in a manner
that is beneficial to our customers, employees, company, community and
environment. Security is an essential part of this process. Security
measures at Deepwater include perimeter fencing, controlled access,
motion detectors in critical areas, and pre-employment hiring
screening.
We already have two-way radio communication that is constantly
monitored between plant operations and management. We are in the
process of implementing verbal confirmation for authorized entry of all
truck traffic into the plant. These measures allow management to make
informed decisions regarding site access and security.
Following the tragic events of September 11, Deepwater is in the
process of evaluating further improvements to our security measures and
conducting a vulnerability assessment of our facility. We have met with
State officials, including the Oklahoma Highway Patrol and the Oklahoma
State Bureau of Investigation, to participate in an assessment survey
of chemical plants and potential impacts on the surrounding community
in the event of catastrophic release as a result of a terrorist act.
This information will assist the State Emergency Planning Committee
(SEPC) and Local Emergency Planning Committee (LEPC) in further
developing response plans.
In addition, the manufacture, handling, and distribution of
chemicals at Deepwater is highly regulated under a range of programs--
each intended to prevent and mitigate the release of hazardous
chemicals. The Clean Air Act already has a General Duty Clause [Section
112 (r)] that states that facilities have a general duty to prevent and
mitigate accidental releases of extremely hazardous substances. At
present, Deepwater Chemicals must comply with nearly 30 different
regulations. Unless one is out in the field implementing these multiple
programs, it is easy to lose track of their cumulative effect. I think
you would be interested to know how comprehensive these programs and
our voluntary efforts are.
I would like to share with you some of our activities in this
regard.
Process Safety
For example, the Occupational Safety and Health Administration
(OSHA) Process Safety Management Standard, or PSM, [29 CFR 1910.119]
requires facilities that have a highly hazardous substance above a
certain threshold to implement measures to mitigate hazards, including
conducting process hazard analysis and maintaining the mechanical
integrity of equipment. Deepwater already conducts a process hazard
analysis on all new manufacturing processes. A process hazard analysis
is a periodic assessment of hazards associated with chemical
manufacturing operations. It also includes implementation of actions to
minimize risks.
In addition, Deepwater reviews processes if decided by management
review. Manufacturing processes are also reviewed if a new product is
under development in the R&D facility or is being transferred to plant
operations. OSHA requires revalidation and review of processes that
fall under PSM every 5 years. Deepwater has two processes that fall
under this PSM program, and these will also be reviewed according to
regulations.
Worker Training and Safety
Worked training and safety is another area critical to plant safety
and security. The OSHA PSM standard requires employers to train
employees involved in operating a process on the specific health and
safety standards, emergency operations including shutdown, and safe
work practices applicable to the employee's job tasks. Additionally,
OSHA's Hazard Communication standard requires that the hazards of all
chemicals produced or, imported are evaluated, and that information
concerning their hazards is transmitted to employers and employees.
Deepwater Chemicals has developed a comprehensive training program.
In fact, in June 2001, Deepwater hosted SOCMA's 40-hour Chemical
Process Operator Training Workshop and invited neighboring chemical
companies to also participate in the course. This was done in
collaboration with the Oklahoma Department of Career and Technology
Education that makes available funding for private industry to develop
or enhance training that is specific to their industry. This ongoing
program allows for further advancement in developing communication and
relationships between other industry and the community.
Coordination with Emergency Responders
Another important aspect of our Environmental, Regulatory, Heath
and Safety Program is involvement with local emergency response teams.
Under Title III of the Superfund Amendments and Reauthorization Act
(SARA), States are required to establish LEPCs. Each LEPC is
responsible for working with industry to develop emergency response
plans for its community that take potential risks from a chemical
related accident into account; collecting and storing information
provided by facilities; and making it available to the public.
Representatives to the LEPC include individuals from the fire
department, emergency management agencies, local health agencies and
hospitals, local officials, community groups, media, and local
businesses.
Deepwater Chemicals, in collaboration with other local companies
and industry, participates in the Woodward County LEPC by providing
technical expertise in the planning process, assisting with the
training of local responders in handling hazardous chemicals, providing
information about chemicals and transportation routes, offering inkind
assistance in the planning process and hosting regular plant tours and
emergency response drills for local responders.
Under the Emergency Planning and Community Right-to-Know Act
(EPCRA), facilities that have listed chemicals above a certain
threshold quantity are required to prepare and submit a hazardous
chemical inventory form to their local emergency planning committee,
State emergency response commission, and local fire department.
Responsible Care plays a significant role in site security, as well
as in Deepwater's interaction with local emergency responders. As part
of the Community Awareness and Emergency Response Code, or CAER code,
facilities are encouraged to communicate with plant community residents
and emergency response personnel, further enhancing safety and
emergency preparedness. As part of Responsible Care, facilities are to
implement security procedures and systems to control the entry and exit
of personnel and materials. SOCMA's guidance for the Responsible Care
Employee Health & Safety Code and the recently released industry site
security manual provides guidelines for company practices regarding
site security. The CAER Code encourages facilities to take a leadership
role in the LEPC and initiate activities that go beyond the
requirements of SARA. For example, the CAER Code provides guidelines on
participation in the community emergency response planning process to
develop and periodically test the comprehensive community emergency
response plan developed by the LEPC.
As you can tell, handling chemicals has led the industry to develop
extensive plans to address potential incidents covering both onsite and
offsite consequences. Industry is already coordinating with emergency
responders and local communities regarding these issues. This effort
has already been expanded to consider further steps in light of the
events of September 11. We are committed to continuing these efforts
for the sake of our employees and our communities.
IV. SOCMA'S PERSPECTIVE ON THE PATH FORWARD
SOCMA believes that these cooperative, government/industry efforts,
at both the national level and the facility level, are the right way to
address further improvements. to site security in the chemical
industry. SOCMA applauds Senator Corzine and this subcommittee for
recognizing the importance of this issue in S. 1602. However, SOCMA has
a number of significant concerns about the proposed approach and its
likely consequences.
A. Burdens Placed on Small Companies
One of the greatest concerns that SOCMA has with S. 1602 is its
potential impact on small batch and specialty chemical producers. As a
small business specialty chemical producer, I know first hand the
regulatory challenges already imposed on this industry sector. Due to
the broad scope of the bill, any small company that produces, mixes,
blends, modifies, or even handles a high priority substance may be
subject to the new regulatory obligations. In fact, due to the nature
of our operations, it would be burdensome even to ascertain whether and
when subsequent regulations apply.
As I discussed previously, batch manufacturing has many unique
characteristics that distinguish it from continuous commodity
production. Due to these characteristics, regulations developed in
accordance with S. 1602 would impose disparate impacts on the
industry's small businesses. Because batch and specialty producers are
customer driven, their product lines fluctuate regularly. They may be
producing one chemical for a pharmaceutical company one week, and then
making a pesticide intermediate the next.
As a result, a batch producer could handle a variety of high
priority chemicals--each requiring different regulatory standards and
mandated processes. Such requirements would eliminate a company's
operational flexibility. The ability to produce niche chemicals
efficiently is of paramount importance to compete in the batch and
specialty chemical sector. These companies spend extensive resources to
develop new ways to meet customer demands. By promulgating prescriptive
production standards under S. 1602, the government would adversely
affect a company's ability to innovate and compete.
It is no secret that the chemical industry has been facing
challenging times. With the economy in its current State and the
overvalued dollar overseas, the batch and specialty chemical industry
is facing increasing competition from abroad. The effects of this
competition are reflected in the industry's decreasing trade surplus.
Though the industry remains the largest exporting sector in the United
States, with trade surpluses for over 75 years, Department of Commerce
data show that the industry's trade surpluses have decreased from $19.1
billion in 1997 to $6.3 billion in 2000.
Limiting a U.S. company's ability to innovate and produce chemicals
impairs its ability to compete globally. Developing countries are
already increasing their production capacity to undercut and replace
U.S. specialty chemical producers. Neither our industry, nor our
economy, can afford to have jobs move overseas. The U.S. chemical
industry employs over one million workers, with 96,000 jobs in New
Jersey, 83,000 jobs in Texas, 82,000 jobs in California, and 57,000
jobs in New York. Competition in the batch and specialty chemical
sector is already high. Imposing additional constraints on this
industry section could hurt domestic competitiveness, to the benefit of
our global competitors.
B. Concerns With General Duty Clause
Under S. 1602, a general duty clause is imposed on each owner and
operator of a chemical source that is within the high priority
category. As a result, it would be the duty of every owner or operator
of a chemical source to, among other things, ensure safer design and
maintenance of a facility by taking such actions as are necessary to
prevent accidental releases and criminal releases.
The general duty clause thus potentially subjects companies to both
civil and criminal penalties if an accidental or criminal release were
to occur. As I have previously stated, the industry has a culture of
safety with numerous measures taken daily to prevent such incidents.
However, under the language of the bill, any such incident could
subject a company to penalties. Furthermore, even the most extreme
criminal actions by a third party could result in civil and criminal
sanctions being imposed on the site owner or operator. Under this
approach, the criminal act of a terrorist would serve as the basis for
imposing civil or criminal liability on the actual victim, the site
owner or operator.
Furthermore, this approach unfairly places the entire burden of
anticipating and preventing criminal and terrorist activity on the
company. For a small business, this challenge is all the more
difficult. I think that a better approach is for the government to
maintain its lead role in criminal enforcement and the war on
terrorism, while sharing critical intelligence information and working
cooperatively with a, company when a clear and present danger is
discovered. SOCMA's work with the FBI and other Federal agencies is
already based on the premise that more can be accomplished when
industry and government collaborate to work together constructively.
I am also concerned that the approach in S. 1602 seems likely to
put EPA in a command-and-control, adversarial posture with industry.
This would greatly hamper the emerging paradigm of industry partnership
and collaboration with EPA and other government agencies. It would
certainly be difficult for a site owner or operator to work
cooperatively with the FBI after a terrorist attack, when the critical
information supplied to the FBI and other Federal entities might later
be used for criminal enforcement against the site owner or operator.
C. S. 1602 Blurs Current Regulatory Jurisdiction
SOCMA also has concerns with the broad delegation of authority to
EPA to regulate chemical sources--including motor vehicle and rolling
stock. The bill is silent on whether it trumps or even preempts
existing regulatory jurisdiction. Currently, the shipment of chemical
goods is regulated by the Department of Transportation (DOT). If
enacted, EPA and the DOT would both be responsible for such regulation,
potentially leading to jurisdictional conflicts.
S. 1602 would also give EPA broad authority to ban the production
of high priority chemicals. This role would potentially conflict with
other agencies such as the Food and Drug Administration (FDA). For
example, if a pharmaceutical intermediate, or a fine chemical were
categorized as high priority, it would apparently be the EPA, not the
FDA, regulating its production.
Furthermore, the authority to ban chemical production based on
quantifiable hazards exists in other statutes. Provisions in these laws
take numerous factors in account--factors that are missing from S.
1602. For example, section 6 of the Toxic Substances Control Act
authorizes EPA to take regulatory action to protect against
unreasonable risk of injury to human health or the environment due to
the manufacture, import, processing, distribution in commerce, use or
disposal of a chemical substance or mixture. Regulatory decisions are
to be based on risk assessments, and EPA is required to regulate risks
by using the ``least burdensome'' means. Judicial interpretation of
these provisions has confirmed that, when banning a chemical, EPA must
consider and rule out other alternatives to ensure that the method
chosen is in fact the least burdensome. It is impossible to reconcile
these provisions with S. 1602.
S. 1602 also gives me pause insofar as it casts EPA in the role of
an expert with respect to both threats to national security and threats
to critical infrastructure. Not only would EPA be the purported expert,
S. 1602 would endow EPA with final decisionmaking and rulemaking
authority. The FBI, the CIA and the Homeland Defense Office need not be
consulted and need not be in agreement with EPA's assessment of these
factors.
Yet, today's world underscores the need for sophisticated, current
expertise as a critical weapon in the war on terrorism. Our nation's
management and assessment of terrorist threats must be streamlined,
focused and effective. The question is how to most effectively
coordinate the expertise within our various Federal, State and local
agencies. Creating a new dominant national security bureaucracy within
EPA is not the right response.
D. Provisions Regarding Safer Technology
The language in this bill is explicit regarding the promulgation of
rules, leading to ``safer designs'' and processes for manufacturing.
Developing and proposing such measures would require extensive
knowledge of chemical processes and formulations--many of which vary
from facility to facility. And, as we have discussed, with the batch
manufacturing sector, chemical processes, formulations and raw
materials can vary almost from week to week.
Yet, S. 1602 assumes that processes can and should be redesigned,
inputs substituted, and carriers and catalysts substituted based on a
single perspective--potential impacts on national security due to
potential releases. This simplistic analysis overlooks the real world
of chemical processing, and batch manufacturing in particular.
Any responsible chemical manufacturer will confirm that process
changes of any sort must be preceded by a comprehensive assessment of
the likely consequences of the change. A multitude of impacts must be
considered. Will emissions increase? Will emissions be more toxic?
Would the change affect the surrounding operations and areas? Will the
facility be able to get permits for changes in air, water and waste
emissions? Will product quality and effectiveness suffer? Will the
process pose more immediate hazards to workers? Will the process be
less stable or more difficult to control? Will the changes promote or
hinder waste minimization and recycling? Are the new substitutes
consistently and reliably available? What is the overall impact on
costs? Will the resulting product still be able to be manufactured to
customer specifications? A comprehensive assessment must be made of the
feasibility, benefits, costs and risks attendant upon any process
change. We absolutely agree that site security is an essential and
increasingly important part of this assessment. But it still must be a
multi-faceted assessment.
The batch manufacturing industry has substantial expertise in
evaluating the potential ramifications of process changes. We
continually strive to find innovative approaches to making certain
chemical compounds. However, it is important that this subcommittee
also understand that we are limited by the natural laws and bounds of
chemistry and physics as to how much we can do to change our processes.
For instance, when making an intermediate that will eventually be
turned into an ingredient for medicine, we may have to go through
several steps to get groups of atoms in exactly the right place to make
the product useful. To do that, we may have to use a specific type of
chemical or process, because there are no substitutes that allow us to
achieve the same result. In this case, forcing process change or input
substitution should not be considered a feasible alternative. Yet, S.
1602 seemingly would authorize EPA to require such a change.
E. Timing
As a final point, SOCMA questions the timeliness of the regulatory
program proposed in S. 1602. On its face, the regulatory program
envisioned in S. 1602 would not be fully implemented for at least 4 to
5 years. The legislation first requires EPA to designate from the
universe of regulated chemicals, certain substances and sources as
``high priorities.'' Even if completed on time, this provision is to be
conducted within 1 year. However, due to the enormity of the task,
subjecting the hazard ranking of every regulated chemical and source
through the administrative process would take significantly longer than
1 year to be done accurately.
The bill would then require EPA to promulgate rules to take
adequate actions to prevent, control, and minimize the potential
consequences of a release by one of the aforementioned high priority
combinations. Again, EPA is to complete this process within 1 year. The
bill recommends that regulations should require development and use of
safer design and maintenance of the chemical source. Like the
categorization provisions, this in and of itself would be a Herculean
task for EPA to undertake--let alone to complete in 1 year. Even if
completed on time, final rules addressing high priority chemical risks
would not be completed for 2 years.
After the rules are promulgated, additional time would be needed
for the regulated community to come into compliance with such extensive
measures. The type of process changes suggested by the language of S.
1602 could be further delayed by the need for facilities to assess the
feasibility of compliance through comprehensive assessments of the
potential ramifications of any changes. In addition, environmental
permits would have to be obtained before changes could be implemented,
or construction even begun in some cases.
As I have already stated, the industry has already been working on
the specific issue of site security. Our work, which began before
September 11, is addressing the immediate need to prevent accidental
and criminal releases. These measures are comprehensive and designed to
help companies to customize their security measures on a facility-by-
facility basis.
V. RISK-BASED APPROACH
I urge members of this subcommittee to keep in mind that not all
chemicals and facilities are likely targets for terrorist attacks. In
fact, most are not. How then, do we work together in a partnership with
government and determine the likelihood that a facility will be an
attractive target for a terrorist? And when we determine the degree to
which certain facilities can be potential targets, how do we ensure the
appropriate level of security? These are the two fundamental questions
that prompted our industry to begin developing a tiered, risk-based
approach to chemical site security. A tiered approach is nothing more
than starting with simple evaluation techniques, usually qualitative in
nature, and identifying areas in which more information would be useful
to reach a riskbased conclusion.
We envision a six-step process, which is detailed in our site
security guidance, that begins with determining which chemicals,
processes and facilities would be likely targets. Our guidance further
outlines areas that companies can consider when assessing
vulnerability, such as chemical hazards, physical and reactivity
properties, engineering, containers, physical appearance, release
mitigation, potentials for exposure, and other important factors.
Once these six steps are complete, it will be easier to assessment
whether or not the security measures in place are appropriate for the
potential threat. Companies have already begun this process because we
share a sense of immediacy about ensuring the safety of the communities
in which we live.
Interestingly, our security measures often exceed what would be
appropriate for potential terrorist threats because we also consider
other factors, such as vandalism, trespassing and theft. In fact, batch
and specialty facilities are hard to discern from other types of
businesses because most of their production processes take place
indoors. The physical appearance of our facilities very much decreases
the likelihood that they would be targets. In addition, our products
are made according to the needs of our customers, so a terrorist would
have to know the details of our production schedules to know what we
are making, and, more importantly, when.
Considering all the factors that make certain chemicals and
processes likely candidates for terrorist attacks, I think it is
reasonable to State that batch and specialty facilities require a
flexible approach to vulnerability assessment and security
countermeasures to meet potential terrorist threats. We think we have
the right approach and have already begun implementation.
IV. CONCLUSION
I would like to conclude by confirming that there are plenty of
incentives to ensure safety and security in all of our processes. We do
not want accidents, nor do we want to be the victim of an attack. I
work in my facility. My failure to address these issues would impact me
directly. We are all in this together, our businesses, our communities
and our government leaders. We want to continue to work together on a
cooperative basis, to evaluate and respond to potential risks in an
effective manner.
I would be glad to entertain any questions at this time.
__________
Statement of Rena Steinzor, Academic Fellow,
Natural Resources Defense Council
Madame Chairman, and members of the subcommittee: Thank you for the
opportunity to appear here today to testify in support of S. 1602, the
Chemical Security Act of 2001, on behalf of the Natural Resources
Defense Council (NRDC). NRDC is a national, non-profit organization of
scientists, lawyers, economists, and other environmental specialists
dedicated to protecting public health and the environment. Founded in
1970, NRDC has more than 500,000 members nationwide, and four national
offices in New York, Washington, Los Angeles, and San Francisco.
In the wake of the tragedies that began on September 11, 2001, this
legislation is one of the most important, proactive steps that the
Federal Government can take in response to this particular threat,
which belongs on the ``top ten'' of anyone's list.\1\ No reasonable
observer could dispute that the events covered by this legislation must
be a national priority: namely, terrorist attacks that result in
releases of acutely toxic chemicals at factories, petroleum storage
facilities, and hazardous materials transportation locations, as well
as the possibility that terrorists could steal chemicals from such
facilities to make their own weapons of mass destruction.
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\1\ See, for example, Eric Pianin, Toxic Chemicals' Security
Worries Officials; Widespread Use of Industrial Materials Makes Them
Potential Target of Terrorists, Washington Post, November 12, 2001, at
A14, attached as Appendix A-1.
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Existing law does not address this problem. Waiting for States to
erect a patchwork of inconsistent requirements could take years, and
would cost excessive amounts. To its credit, the American Chemistry
Council recognizes that these hazards must be an immediate priority and
has already put in motion special programs to help its members upgrade
plant security. However, the notion that we would leave industry to
implement these efforts voluntarily, without government oversight,
makes as much sense as leaving airport security to the exclusive
discretion of the world's air carriers.
The American people clearly want their government to protect them
from the worst threats, and they want those activities begun yesterday.
Not incidentally, the proposal you have before you today, like the one
that Congress passed in 1986 in the wake of the Bhopal tragedy, will
enable our nation's brave police and firefighters to combat accidental
releases of hazardous materials with the knowledge that the Federal
Government, and the chemical, petroleum, and transportation industries,
have done everything possible to avoid placing them in harm's way.
For the sake of these brave men and women, and the public at large,
NRDC urges you to move this legislation toward enactment as quickly as
possible. The remainder of my testimony will address (1) the need for
the legislation; (2) why a Federal law is necessary, as opposed to
consigning responsibility for this issue to the States or industry
volunteerism; and (3) possible ways to strengthen the legislation.
NEED FOR THE LEGISLATION
As you may remember, the Bhopal tragedy occurred when equipment at
a pesticide manufacturing plant malfunctioned, causing the release of a
cloud of lethal methyl isocyanate gas.\2\ People in the crowded
neighborhoods around the plant saw the plume, assumed it was a fire,
and ran toward the factory to help extinguish the blaze or to watch in
excitement. As the plume drifted over the plant gates toward the
crowds, some 3,000 people dropped dead in their tracks. Overcoming the
temptation to view Bhopal as an example of Third World ineptitude, a
congressional panel traveled to a twin Union Carbide facility in
Institute, West Virginia, only to discover that although the county had
prepared an emergency plan, the plant manager did not realize that it
existed.\3\
---------------------------------------------------------------------------
\2\ Diamond, Stuart, The Bhopal Disaster: How It Happened, New York
Times, January 28, 1985, at A1, attached as Appendix A-2.
\3\ Pienciak, Richard T., Flaws found in emergency plans near toxic
plants, Los Angeles Times, January 6, 1985, at 2, attached as Appendix
A-3.
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Congress responded to Bhopal and its aftermath by passing the 1986
Emergency Response and Community Right-to-Know Act (EPCRA), which was
refined and expanded by the 1990 Clean Air Act (CAA) amendments. Under
both statutes, State and local governments are responsible for dealing
with such incidents, with the Federal Government playing a very small
role in providing technical support for their efforts. Emergency
response has two distinct components in this context: first, the
containment of the explosion, fires, and toxic releases that typically
accompany such incidents and, second, the successful protection of the
affected populations near the facilities. But neither law addresses the
all-important tasks of preventing such incidents by reducing hazards
and ensuring plant and transportation system security. Human error in
operating complex machinery killed several thousand people in Bhopal.
What price would we pay for deliberate sabotage at such a facility?
In the decade-and-a-half since EPCRA went on the books, funding
shortfalls have undermined local efforts to make progress on either
containing accidents or protecting the public and, until recently, very
few cities and towns had even thought about reducing the use of toxic
chemicals or improving the technology of storage equipment. Indeed, it
is commonly understood by everyone involved at the grassroots level--
from firefighters, police, and other municipal officials to the
companies that own and operate the factories, railroads, pipelines, and
truck fleets--that local emergency response capacity, even in large
cities, falls far short of either these legal requirements or safe
practice. Despite the valiant efforts of fire departments nationwide,
local governments under pressure to fund other services simply have not
given firefighters, police, and emergency medical personnel what they
need to do a very difficult job.
As a classic example of this problem, I refer you to press accounts
of a fire caused by a train derailment in a tunnel running through the
center of Baltimore City last summer; I have attached one comprehensive
analysis of the implications of the incident to my testimony.\4\ The
short story is that it took several days to put out the fire, and
everyone involved with the response was enormously relieved that no
acutely toxic chemicals were involved because the City was
fundamentally unprepared to deal with such a catastrophe.
---------------------------------------------------------------------------
\4\ Heather Dewar, When Chemical Safety is a Matter of Security,
Baltimore Sun, October 17, 2001, at 1A, attached as Appendix A-4.
---------------------------------------------------------------------------
To understand the gravity of the situation in Baltimore and
elsewhere, consider the following realities of any emergency that
involves the release of an acutely toxic chemical. Experts agree that
there are only two possible alternatives when a toxic plume is released
near a population center: (1) shelter-in-place or (2) evacuation. They
further agree that the first of these is only as effective as the
shelter itself. In the absence of measures to seal off ventilation
systems, and plug other leaks in a building, shelter-in-place can serve
to compound chemical exposures. Evacuation therefore remains an
essential component of any emergency response plans. EPCRA recognized
this reality, explicitly requiring that ``local emergency response
committees'' include detailed evacuation scenarios in their plans.
Many cities have made little, if any, progress on these critical
tasks, again as indicated by the Baltimore incident.\5\ They have not
deployed effective warning systems; they have no contingency plan for
dealing with vulnerable populations; they have made no effort to train
the public on shelter in place techniques, and they have no idea how
they would conduct an evacuation if one was necessary. Even worse, most
cities have not yet mastered the important challenge of integrating
fire department efforts to contain fires, explosions, and releases with
police efforts to evacuate or otherwise aid the public. Police lack
equipment to protect themselves in the event of an acutely toxic
release, do not routinely train with firefighters to develop effective
coordination procedures, and have no concrete plan for controlling
traffic, much less organizing a large-scale evacuation of affected
neighborhoods.
---------------------------------------------------------------------------
\5\ Tunnel Damage Assessed After Derailment Blaze, Houston
Chronicle, July 23, 2001, at 8. See also Editorial, There When You Need
Them, Baltimore Sun, July 20, 2001, at 20A, attached as Appendix A-5.
---------------------------------------------------------------------------
To date, there have been only two confirmed attempts to perpetrate
terrorist attacks on facilities handling toxic chemicals, both of which
were prevented by the authorities.\6\ However, there have been numerous
accidents involving such materials, with several involving severe
injuries or even fatalities, primarily among the workers at such
facilities but under circumstances that could easily have posed a
threat to the public.\7\ Fifteen accidental gas releases of greater
amount and toxicity than Bhopal occurred in the United States between
1980 and 1990.\8\ A careful review of press accounts of these incidents
indicates that luck rather than preparation is the reason such
incidents have not resulted in widespread fatalities.
---------------------------------------------------------------------------
\6\ U.S. Department of Justice, 2000. Assessment of the Increased
Risk of Terrorist or Other Criminal Activity Associated with Posting
Off-Site Consequence Analysis Information on the Internet, at 27,
attached as Appendix B.
\7\ U.S. Environmental Protection Agency, Chemical Emergency
Preparedness and Prevention Office, 2000. Assessment of the Incentives
Created by Public Disclosure of Off-Site Consequence Analysis
Information for Reduction In the Risk of Accidental Releases, at 2, 11-
12, attached as Appendix C.
\8\ Mukerjee, Madhusree, Toxins Abounding, Scientific American,
July 1995, at 22, attached as Appendix D.
---------------------------------------------------------------------------
The vast majority of hazardous chemicals are stored in tanks or
other containers that require electricity to maintain the correct
temperature and pressure. Power outages of any significant duration
could have the same disastrous effects as a direct attack on such
facilities. Consequently, the facilities covered by S. 1602 are in
jeopardy from the indirect effects on attacks on the power grid, as
well as direct assaults. For further information on this too-often
overlooked aspect of the problem, I have attached a recent paper
regarding the vulnerability of the nation's power grid to terrorist
attack.\9\
---------------------------------------------------------------------------
\9\ David Wagman, A Vulnerable System Looks for Security, Energy
Insight Today (September 14, 2001).
---------------------------------------------------------------------------
These realities, partnered with the lessons of September 11,
demonstrate beyond any reasonable doubt the importance of increased
prevention of hazards and physical security, as required by the
legislation before you. Some enlightened local governments have begun
such initiatives, demonstrating that they are indeed possible. As
reported in this Monday's Washington Post, the Blue Plains sewage
treatment plant has accelerated its efforts to replace lethal chlorine
gas with a far less hazardous chemical, demonstrating the feasibility
of the requirements contained in S. 1602.\10\
---------------------------------------------------------------------------
\10\ See Eric Pianin, Toxic Chemicals' Security Worries Officials;
Widespread Use of Industrial Materials Makes Them Potential Target of
Terrorists, Washington Post, November 12, 2001, at A14, attached as
Appendix A-1.
---------------------------------------------------------------------------
WHY A FEDERAL LAW
Although devolution of traditional Federal functions to the States
is a popular approach to government at the moment, the events of
September 11 have reminded us why we operate under a system of national
environmental laws. Three major reasons were articulated by
congressional sponsors of the legislation that created the Federal
regulatory system, and by commentators on federalism ever since:
1. The need to address transboundary pollution. For example, there
are a large, albeit uncounted, number of plants that use, store, or
produce toxic chemicals in this country located in a place where an
emergency release would affect populations living in two States. Of
course, trucks and trains carrying toxic chemicals routinely cross
state lines.
2. The superior performance and economic efficiency achieved by
regulation at the national level. Asking 50 state and thousands of
local governments to assess the threat of chemical plant and
transportation system sabotage and regulate accordingly would not only
consume enormous resources but would inevitably result in failure in
far too many places. Federal expertise is needed desperately in this
endeavor, and is far more efficient economically. It is also worth
noting that a patchwork of state and local requirements would only
drive industry into your offices to beg for a uniform Federal system.
Indeed, this is exactly the scenario that occurred when states tried to
regulate hazardous materials transportation.
3. Establishing a Federal regulatory framework leaves a role for
first responders at the state and local levels. States and local
governments must be indispensable partners in this effort, as the
legislation recognizes when it directs EPA and the Department of
Justice to consult closely with their sister agencies and elected
officials.
As for the question of whether industry volunteerism is enough to
meet this challenge, the information released thus far suggests that
industry is focusing on physical security, with prevention by hazard
reduction a distant and far lower priority. NRDC's experiences over the
last decade in working with industry to encourage hazard reduction (aka
``pollution prevention'') illustrate just how very difficult it is
going to be to change corporate culture to accomplish this crucial
component of any reasonable response to the terrorist threat.\11\
Rather, the instinct of most companies will be to post security guards,
strengthen fences, and make alarms louder, all of which may well be
appropriate but are an incomplete answer in the face of the kind of
coordination and determination displayed by the terrorists who attacked
us on September 11.
---------------------------------------------------------------------------
\11\ Greer, Linda, Anatomy of a Successful Pollution Reduction
Project, 34 Environmental Science and Technology 254A (2001), attached
as Appendix E.
---------------------------------------------------------------------------
Even if increased security was an adequate agenda for the moment,
every past experience with volunteerism indicates that compliance with
such programs is spotty at best. With an economic downturn ahead of us,
we simply cannot afford to leave decisions whether to invest in complex
new systems up to senior management, no matter how well-meaning they
may be. Indeed, it is likely that the economically weakest companies
with the most neglected and therefore more vulnerable physical
infrastructures, will be the ones that never quite get around to doing
their share to satisfy their civic responsibilities.
Of course, there are other incentives to make plants, trucks, and
trains more secure, and we would be foolish to ignore them. The most
important is liability for damages if a company ignores this crucial
imperative, and we trust that the subcommittee will leave these
incentives in place no matter what the outcome of this valuable
legislative debate.
STREAMLINING THE BILL
The legislation, as drafted, is comprehensive, covering all
conceivable manifestations of the terrorist threat. It anticipates that
EPA, in consultation with the Justice Department and the states, will
prioritize facilities and chemicals in order to develop a workable list
of high priority targets for the final regulatory regime.
While we appreciate your interest in moving this legislation
quickly, and we plan to do anything we can to assist you in that
effort, we are also aware that the history of the Agency's regulatory
performance over the last decade and a half suggests that the more
broad its mandate, and the more endless the regulatory possibilities,
the more attenuated the rulemaking process becomes. Accordingly, we
offer to continue to work on developing information that will help you
target the worst threats. Of some 22,000 facilities now reporting to
the Toxics Release Inventory, approximately 200 account for over 50
percent of reported releases. (This calculation is based on Toxic
Release Inventory data, and excludes acids and bases, focusing instead
on other toxic chemicals that are not readily neutralized.) We are
confident that with some additional research, it will be possible to
focus on a significantly smaller subset of facilities posing the
greatest risk.
For example, I have attached to this testimony a report by the
Agency for Toxic Substances and Disease Registry entitled Industrial
Chemicals and Terrorism: Human Health Threat Analysis, Mitigation and
Prevention.\12\ This extraordinarily useful document suggests several
steps that could be taken to prioritize the risks in this arena, and
also proposes a 10-step procedure for upgrading emergency response
plans. The experts who produced this document, and others like them at
EPA, the Federal Emergency Management Administration, and the Federal
Bureau of Investigation, should make themselves available right now to
assist you in the effort to isolate the top priorities and get the
regulatory process moving at a fast clip.
---------------------------------------------------------------------------
\12\ U.S. Public Health Service, Agency for Toxic Substances and
Disease Registry, Industrial Chemicals and Terrorism: Human Health
Threat Analysis, Mitigation, and Prevention (1999), attached as
Appendix F.
---------------------------------------------------------------------------
Thank you for the opportunity to appear before you today. I would
be pleased to answer any questions you may have.
______
[From the Washington Post, Nov. 12, 2001]
Toxic Chemicals' Security Worries Officials; Widespread Use of
Industrial Materials Makes Them Potential Target of Terrorists
(By Eric Pianin)
Last February, environmentalists concerned about security problems
in the chemical industry made their point by scaling the fence of a
large Dow Chemical plant near Baton Rouge, La., and gaining access to
the control panel that regulates potentially dangerous discharges into
the Mississippi River.
The plant manufactures and stores large quantities of chlorine, a
highly toxic chemical that could kill many if released as a gas through
an explosion or fire. The Greenpeace activists who organized the foray
said it was a snap because there were no guards or security cameras
along the plant's lengthy perimeter and because the door to the
wastewater discharge control room was unlocked. Though some industry
officials played down the raid's significance, experts say it
underscores another serious homeland security vulnerability after the
September 11 terrorist attacks. Industry and government officials alike
are looking for ways to make. sure that, like commercial airliners,
another component of U.S. technology isn't turned into a horrific
weapon against Americans.
``No one needed to convince us that we could be--and indeed would
be--a target at some future date,'' said Frederick L. Webber, president
of the American Chemistry Council, an industry group representing 180
major companies including DuPont, Dow, and BP Chemical. ``If they're
looking for the big bang, obviously you don't have to go far in your
imagination to think about what the possibilities are.''
Industrial chemicals such as chlorine, sulfuric acid and
hydrochloric acid potentially provide terrorists with ``effective and
readily accessible materials to develop improvised explosives,
incendiaries and poisons,'' according to a 1999 study by the Federal
Agency for Toxic Substances and Disease Registry. Yet the report, which
focused on West Virginia and Nevada as a way to sample the situation
nationwide, found that security at chemical plants ``ranged from fair
to very poor.''
``Most of the security gaps were the result of complacency and lack
of awareness of the threat,'' the report stated. ``Chemical plant
security managers were very pessimistic about their ability to deter
sabotage by employees.''
Some of the chemicals used or produced in plants throughout the
country--and transported by rail through densely populated areas
including Baltimore and Washington--have the potential to match or
exceed the 1984 disaster in Bhopal, India, in which a methyl isocyanate
gas leak at a Union Carbide Corp. pesticide plant killed at least 2,000
people and injured tens of thousands.
``I think that if one had to think about what is the next level of
potential targets, you would have to think about major chemical and oil
facilities,'' said Fred Millar, a consultant on chemical accident
prevention.
Immediately after the United States began bombing Afghanistan on
October 7, the railroad industry took the precaution of imposing a 72-
hour moratorium on carrying toxic or dangerous chemicals. But the
shipments were resumed after the chemical industry argued that chlorine
was essential to the continued operations of sewage treatment plants
and that there was no evidence the shipments were being targeted by
terrorists.
Chemical industry officials say that, long before September 11,
plants had begun to tighten security and put in place safeguards
including well trained and equipped hazardous materials response crews,
vapor suppression equipment and barriers around chemical storage tanks.
Since the attacks, the industry has issued tough new site security
guidelines, and officials say they are in daily contact with the FBI
and other Federal authorities to prepare for a direct threat against a
chemical plant. So far, there hasn't been one.
Environmental Protection Agency Administrator Christine Todd
Whitman, who has met several times with industry leaders, said Friday,
``I don't know that you could get any higher awareness than we have
today on the importance of directing resources to those efforts of
securing chemicals onsite.''
``So they are doing as good a job as they can do right now, and
they're very aware of where their vulnerabilities might be,'' she
added.
But Paul Orum, director of the Working Group on Community Right-to-
Know, a national clearinghouse on hazardous risk information, said the
chemical industry ``continues to maintain excessive volumes of
extremely hazardous substances in heavily populated areas, materials
that if they get loose can cover schools, hospitals and residential
areas with toxic fumes at dangerous levels.''
``The industry has been in denial about the need to reduce those
hazards and set measurable goals and time lines,'' Orum added.
Chlorine is a telling example of the complexity of the problem.
While potentially a lethal weapon, it is also a safeguard: Among other
uses, it is a key ingredient in Cipro, an antibiotic used to treat
anthrax exposure. ``Chlorine is the first line of defense against
bioterrorism,'' said C.T. ``Kip'' Howlett Jr. of the Chlorine Chemistry
Council, as he strongly defended the widespread use and storage of the
gas.
Last year, U.S. chemical companies and related industries reported
32,435 fires, spills or explosions involving hazardous chemicals to the
National Response Center, an extensive but incomplete Federal record of
mishaps involving oil or chemicals. At least 1,000 of these events each
year involve death, injury or evacuation. Combined data from additional
Federal sources suggest that in 1998--the last year for which full data
were available--there were more than 100 deaths and nearly 5,000
injuries, according to Orum's group.
A single accident at any of the nearly 50 chemical plants operating
between Baton Rouge and New Orleans potentially could put at risk
10,000 to 1 million people, according to ``worst-case'' scenarios that
companies are required by law to file with the EPA.
Those scenarios provide an estimate of the radius of a dangerous
cloud of escaping gas and how many people it could affect. The Dow
Chemical plant targeted by Greenpeace reported as its potential ``worst
case'' the release of 800,000 pounds of hydrogen chloride, a
suffocating gas that would threaten 370,000 people. Rick Hind,
legislative director of the Greenpeace toxics campaign, said that the
ease with which his group infiltrated that plant ``shows the absolute
porous nature of these facilities'' and their vulnerability to
terrorist attacks.
Environmental and hazardous chemical experts say that serious
security problems also persist to varying degrees at chemical
manufacturing centers in Texas, New Jersey, Delaware, Philadelphia and
Baltimore.
Last July, a CSX train derailment and fire in a Baltimore tunnel
paralyzed the city for 5 days while hydrochloric acid and other toxic
chemicals contained in the tanker cars burned off or seeped into storm
drains that flowed into the Inner Harbor.
Around Washington, the D.C. Water and Sewer Authority's Blue Plains
Waste Water Treatment Plant houses one of the region's largest supplies
of toxic chemicals, including liquid chlorine and sulfur dioxide. Since
September 11, Blue Plains plant operators have stepped up security and
considered ways to disperse, shelter or eliminate the need to maintain
a stockpile of chemicals.
Sen. Jon S. Corzine (D-N.J.) and Senate Environment and Public
Works Committee Chairman James M. Jeffords (I-VT.) introduced a bill
last week that would order the EPA and the Justice Department to impose
tough new regulations to guard against the threat of a terrorist attack
at high-risk chemical facilities.
______
[From the New York Times, January 28, 1985]
The Bhopal Disaster: How It Happened
(By Stuart Diamond)
The Bhopal gas leak that killed at least 2,000 people resulted from
operating errors, design flaws, maintenance failures, training
deficiencies and economy measures that endangered safety, according to
present and former employees, company technical documents and the
Indian Government's chief scientist.
Those are among the findings of a 7-week inquiry begun by reporters
of The New York Times after the December 3 leak of toxic methyl
isocyanate gas at a Union Carbide plant in the central Indian city of
Bhopal produced history's worst industrial disaster, stunning India and
the world. Among the questions the tragedy raised were how it could
have happened and who was responsible.
The inquiry involved more than 100 interviews in Bhopal, New Delhi,
Bombay, New York, Washington, Danbury, Conn., and Institute, West
Virginia. It unearthed information not available even to the Union
Carbide Corporation, the majority owner of the plant where the leak
occurred, because the Indian authorities have denied corporate
representatives access to some documents, equipment and personnel.
EVIDENCE OF VIOLATIONS
The Times investigation produced evidence of at least 10 violations
of the standard procedures of both the parent corporation and its
Indian-run subsidiary.
Executives of Union Carbide India Ltd., which operated the plant,
are reluctant to address the question of responsibility for the
tragedy, in which about 200,000 people were injured. The plant's
manager has declined to discuss the irregularities. The managing
director of the Indian company refused to talk about details of the
accident or the conditions that produced it, although he did say that
the enforcement of safety regulations was the responsibility of
executives at the Bhopal plant.
When questioned in recent days about the shortcomings disclosed in
the inquiry by The Times, a spokesman at Union Carbide corporate
headquarters in Danbury characterized any suggestion of the accident's
causes as speculation and emphasized that Union Carbide would not
``contribute'' to that speculation.
SUMMARY OF IRREGULARITIES
A review by The Times of some company documents and interviews with
chemical experts, plant workers, company officials and former officials
disclosed these and other irregularities at Bhopal:
<bullet> When employees discovered the initial leak of methyl
isocyanate at 11:30 P.M. on Dec. 2, a supervisor--believing, he said
later, that it was a water leak--decided to deal with it only after the
next tea break, several workers said. In the next hour or more, the
reaction taking place in a storage tank went out of control. ``Internal
leaks never bothered us,'' said one employee. Indeed, workers said that
the reasons for leaks were rarely investigated. The problems were
either fixed without further examination or ignored, they said.
<bullet> Several months before the accident, plant employees say,
managers shut down a refrigeration unit designed to keep the methyl
isocyanate cool and inhibit chemical reactions. The shutdown was a
violation of plant procedures.
<bullet> The leak began, according to several employees, about two
hours after a worker whose training did not meet the plant's original
standards was ordered by a novice supervisor to wash out a pipe that
had not been properly sealed. That procedure is prohibited by plant
rules. Workers think the most likely source of the contamination that
started the reaction leading to the accident was water from this
process.
<bullet> The three main safety systems, at least two of which,
technical experts said, were built according to specifications drawn
for a Union Carbide plant at Institute, W.Va., were unable to cope with
conditions that existed on the night of the accident. Moreover, one of
the systems had been inoperable for several days, and a second had been
out of service for maintenance for several weeks.
<bullet> Plant operators failed to move some of the methyl
isocyanate in the problem tank to a spare tank as required because,
they said, the spare was not empty as it should have been. Workers said
it was a common practice to leave methyl isocyanate in the spare tank,
though standard procedures required that it be empty.
<bullet> Instruments at the plant were unreliable, according to
Shakil Qureshi, the methyl isocyanate supervisor on duty at the time of
the accident. For that reason, he said, he ignored the initial warning
of the accident, a gauge's indication that pressure in one of three
methyl isocyanate storage tanks had risen fivefold in an hour.
<bullet> The Bhopal plant does not have the computer system that
other operations, including the West Virginia plant, use to monitor
their functions and quickly alert the staff to leaks, employees said.
The management, they added, relied on workers to sense escaping methyl
isocyanate as their eyes started to water. That practice violated
specific orders in the parent corporation's technical manual, titled
``Methyl Isocyanate,'' which sets out the basic policies for the
manufacture, storage and transportation of the chemical. The manual
says: ``Although the tear gas effects of the vapor are extremely
unpleasant, this property cannot be used as a means to alert
personnel.''
<bullet> Training levels, requirements for experience and education
and maintenance levels had been sharply reduced, according to about a
dozen plant employees, who said the cutbacks were the result, at least
in part, of budget reductions. The reductions, they said, had led them
to believe that safety at the plant was endangered.
<bullet> The staff at the methyl isocyanate plant, which had little
automated equipment, was cut from 12 operators on a shift to 6 in 1983,
according to several employees. The plant ``cannot be run safely with
six people,'' said Kamal K. Pareek, a chemical engineer who began
working at the Bhopal plant in 1971 and was senior project engineer
during the building of the methyl isocyanate facility there 8 years
ago.
<bullet> There were no effective public warnings of the disaster.
The alarm that sounded on the night of the accident was similar or
identical to those sounded for various purposes, including practice
drills, about 20 times in a typical week, according to employees. No
brochures or other materials had been distributed in the area around
the plant warning of the hazards it presented, and there was no public
education program about what to do in an emergency, local officials
said.
<bullet> Most workers, according to many employees, panicked as the
gas escaped, running away to save their own lives and ignoring buses
that sat idle on the plant grounds, ready to evacuate nearby residents.
a top priority
At its headquarters in Danbury, the parent corporation said last
month: ``Union Carbide regards safety as a top priority. We take great
steps to insure that the plants of our affiliates, as well as our own
plants, are properly equipped with safeguards and that employees are
properly trained.''
Over the weekend, in response to questions from The Times, a
corporate spokesman described the managers of the Indian affiliate as
``well qualified'' and cited their ``excellent record,'' adding that
because of the possibility of litigation in India ``judicial and
ethical rules and practices inhibit them from answering questions.''
However, the spokesman said: ``Responsibility for plant
maintenance, hiring and training of employees, establishing levels of
training and determining proper staffing levels rests with plant
management.''
V.P. Gokhale, the chief operating officer of Union Carbide India
Ltd., in his first detailed interview since Dec. 3, would not comment
on specific violations or the causes of the accident, but he said the
Bhopal plant was responsible for its own safety, with little scrutiny
from outside experts.
The Indian company has one safety officer at its headquarters in
Bombay, Mr. Gokhale said, but that officer is chiefly responsible for
keeping up to date the safety manuals used at the company's plants.
Despite the Bhopal plant's autonomy on matters of safety, it was
inspected in 1982 by experts from the parent company in the United
States, and they filed a critical report.
In the interview, however, Mr. Gokhale contended that the many
problems cited in the 1982 report had been corrected. ``There were no
indications of problems,'' he said. ``We had no reason to believe there
were any grounds for such an accident.''
Mr. Gokhale, who become managing director of Union Carbide India in
December 1983 and has been with the company 25 years, added: ``There is
no way with 14 factories and 28 sales branches all over the country and
9,000 employees that I could personally supervise any plant on a week-
to-week basis.''
At perhaps a dozen points during a two-hour interview, he read his
answers into a tape recorder, saying he would inform the parent
corporation's Danbury headquarters of what he had said. He also made
notes of some of his comments and said he would send them to Danbury
for approval by Union Carbide lawyers.
RELATIONSHIP OF THE COMPANIES
The precise relationship between Union Carbide's American
headquarters and its Indian affiliate is a subject that Mr. Gokhale and
other company officials have refused to discuss in detail. But an
understanding of that relationship is a key element in pinpointing
responsibility for the disaster at Bhopal. Lawyers from both the United
States and India say it is also central to the lawsuits brought by
Bhopal residents damaged by the accident.
Although the situation remains unclear, some evidence of the
relationship between the Indian and American companies has begun to
emerge. The United States corporation has direct representation on the
Indian company's board. J.M. Rehfield, an executive vice president in
Danbury, sits on that board, Mr. Gokhale acknowledged, as do four
representatives of Union Carbide Eastern Inc., a division based in Hong
Kong. Mr. Gokhale said the board of directors reviews reports on the
Indian affiliate's operations.
Moreover, some key safety decisions affecting Bhopal were
reportedly made or reviewed at the corporate headquarters in Danbury.
Srinivasan Varadarajan, the Indian Government's chief scientist,
said his staff had been told by managers of the Bhopal plant that the
refrigeration unit designed to chill the methyl isocyanate, which he
said was very small and had never worked satisfactorily, had been
disconnected because the managers had concluded after discussions with
American headquarters that the device was not necessary.
A spokesman at corporate headquarters in Danbury, Thomas Failla,
said: ``As far as we have been able to establish, the question of
turning off the refrigeration unit was not discussed with anyone at
Union Carbide Corporation.''
The methyl isocyanate operating manual in use at Bhopal, which was
adapted by five Indian engineers from a similar document written for
the West Virginia plant, according to a former senior official at
Bhopal, says: ``Keep circulation of storage tank contents continuously
`ON' through the refrigeration unit.''
And a senior official of Union Carbide India said few if any people
would have died Dec. 3 had the unit been running because it would have
slowed the chemical reaction that took place during the accident and
increased the warning time from 2 hours to perhaps 2 days.
Workers said that when the 30-ton refrigeration unit was shut down,
electricity was saved and the Freon in the coils of the cooling unit
was pumped out to be used elsewhere in the plant.
Mr. Gokhale specifically declined to answer questions about the
refrigeration unit.
EMPLOYEES CRITICIZE MORALE
Many employees at the Bhopal plant described a factory that was
once a showpiece but that, in the face of persistent sales deficits
since 1982, had lost much of its highly trained staff, its morale and
its attention to the details that insure safe operation.
``The whole industrial culture of Union Carbide at Bhopal went down
the drain,'' said Mr. Pareek, the former project engineer. ``The plant
was losing money, and top management decided that saving money was more
important than safety. Maintenance practices became poor, and things
generally got sloppy. The plant didn't seem to have a future, and a lot
of skilled people became depressed and left as a result.''
Mr. Pareek said he resigned in December 1983 because he was
disheartened about developments at the plant and because he was offered
a better job with Goodyear India Ltd. as a divisional production
manager.
Mr. Gokhale termed the company's cost-cutting campaign simply an
effort to reduce ``avoidable and wasteful expenditures.''
The corporate spokesman in Danbury said Union Carbide has ``an
ongoing operations improvement program which involves, among other
things, a regular review of ways to reduce costs.'' He said Union
Carbide India was involved in such programs, ``but the details of those
programs at the Bhopal plant are not known to us.''
The spokesman added: ``Financial information supplied to us
indicated that the Bhopal plant was not profitable.''
In the absence of official company accounts, details of the
accident and its causes have been provided by technical experts such as
Dr. Varadarajan and Mr. Pareek and by three dozen plant workers, past
and present company officials and other people with direct knowledge of
the factory's operations. Many of them agreed to be interviewed only on
condition that they not be identified. Most of the workers knew little
English and spoke in Hindi through an interpreter.
They provided some documents but often relied upon their
recollections because many plant files and even public records have
been impounded by the Indian authorities investigating the accident.
POTENTIAL FOR SERIOUS ACCIDENT
Nearly all those interviewed contended that the company had been
neither technically nor managerially prepared for the accident. The
1982 inspection report seemed to support that view, saying the Bhopal
plant's safety problems represented ``a higher potential for a serious
accident or more serious consequences if an accident should occur.''
That report ``strongly'' recommended, among other things, the
installation of a larger system that would supplement or replace one of
the plant's main safety devices, a water spray designed to contain a
chemical leak. That change was never made, plant employees said, and on
Dec. 3 the spray was not high enough to reach the escaping gas.
The spokesman in Danbury said the corporation had been informed
that Union Carbide India had taken ``all the action it considered
necessary to respond effectively'' to the 1982 report.
Another of the safety devices, a gas scrubber or neutralizer, one
of the systems said to have been built according to the specifications
used at the West Virginia plant, was unable to cope with the accident
because it had a maximum design pressure one-quarter that of the
leaking gas, according to plant documents and employees.
The third safety system, a flare tower that is supposed to burn off
escaping gases, would theoretically have been capable of handling about
a quarter of the volume of the leaking gas were it not under such
pressure, according to Mr. Pareek. The pressure, he said, was high
enough to burst a tank through which gases must flow before being
channeled up the flare tower. The tower was the second system described
by technical experts as conforming to the specifications used in West
Virginia.
In any case, the pressure limitations of the flare tower were
immaterial because it was not operating at the time of the accident.
GUIDELINES FOR DESIGN
A former executive at the Bhopal plant said the parent corporation
had provided guidelines for the design of the scrubber, the flare tower
and the spray system. But detailed design work for those systems and
the entire plant, he said, was performed by Humphreys & Glasgow
Consultants Pvt. Ltd. of Bombay, a subsidiary of Humphreys & Glasgow
Ltd., a consulting company based in London. The London company in turn
is owned by the Enserch Corporation of Dallas.
The spokesman in Danbury said the Union Carbide Corporation had
provided its Indian affiliate with ``a process design package
containing information necessary and sufficient'' for the affiliate to
arrange the design and construction of the plant and its equipment.
The spokesman said the corporation had only incomplete information
on the scrubber, flare tower and other pieces of equipment, and he
declined to comment on their possible relationship to the accident.
It was unclear whether the limitations of the safety systems
resulted from the guidelines provided by the Union Carbide Corporation
or from the detailed designs.
Employees at the plant recalled after the accident that during the
evening of Dec. 2 they did not realize how high the pressures were in
the system. Suman Dey, the senior operator on duty, said he was in the
control room at about 1 P.M. and noticed that the pressure gauge in one
tank read 10 pounds a square inch, about five times normal. He said he
had thought nothing of it.
Mr. Qureshi, an organic chemist who had been a methyl isocyanate
supervisor at the plant for 2 years, had the same reaction half an hour
later. The readings were probably inaccurate, he thought. ``There was a
continual problem with instruments,'' he said later. ``Instruments
often didn't work.''
LEAK FOUND, BUT TEA IS FIRST
About 11:30 P.M., workers in the methyl isocyanate structure, about
100 feet from the control room, detected a leak. Their eyes started to
water.
V.N. Singh, an operator, spotted a drip of liquid about 50 feet off
the ground, and some yellowish-white gas in the same area. He said he
went to the control room about 11:45 and told Mr. Qureshi of a methyl
isocyanate leak. He quoted Mr. Qureshi as responding that he would see
to the leak after tea.
Mr. Qureshi contended in an interview that he had been told of a
water leak, not an escape of methyl isocyanate.
No one investigated the leak until after tea ended, about 12:40
A.M., according to the employees on duty.
Such inattention merely compounded an already dangerous situation,
according to Dr. Varadarajan, the Government scientist.
He is a 56-year-old organic and biological chemist who holds
doctoral degrees from Cambridge and Delhi universities and was a
visiting lecturer in biological chemistry at the Massachusetts
Institute of Technology. He heads the Council of Scientific and
Industrial Research, the Government's central research organization,
which operates 42 national laboratories.
In the 2 weeks after the accident, Dr. Varadarajan said, he and a
staff gathered from the research council questioned factory managers at
Bhopal, directed experiments conducted by the plant's research staff
and analyzed the results of those tests. Some of the experiments were
conducted on methyl isocyanate that remained at the Bhopal plant after
the accident, he said, and some were designed to measure the
reliability of testing procedures used at the factory.
Dr. Varadarajan said in a long interview that routine tests
conducted at the Bhopal factory used a faulty method, so the substance
may have been more reactive than the company believed.
For example, he said, the Bhopal staff did not adequately measure
the incidence in methyl isocyanate or the possible effects of chloride
ions, which are highly reactive in the presence of small amounts of
water. Chlorine, of which chloride is an ion, is used in the
manufacture of methyl isocyanate.
Dr. Varadarajan argued that the testing procedure used at Bhopal
assumed that all of the chloride ions present resulted from the
breakdown of phosgene and therefore the tests measured phosgene, not
chloride ions. Phosgene is used in the manufacture of methyl
isocyanate, and some of it is left in the compound to inhibit certain
chemical reactions.
When his staff secretly added chloride ions to methyl isocyanate to
be tested by the factory staff, Dr. Varadarajan said, the tests
concluded that 23 percent of the chloride was phosgene.
``As yet,'' the scientist said, ``Union Carbide has been unable to
provide an unequivocal method of distinguishing between phosgene and
chloride'' in methyl isocyanate.
TESTS ``MADE ROUTINELY''
The Union Carbide spokesman in Danbury said: ``Tests for chloride-
containing materials, including chloride ions in the tank are made
routinely.''
Dr. Varadarajan said his staff had produced its own hypotheses of
the accident's causes after Union Carbide failed to provide any, even
on request.
The spokesman in Danbury said that a team of ``exceptionally well
qualified'' chemists and engineers from Union Carbide had been studying
the accident for 7 weeks ``and still has not been able to determine the
cause.'' He added: ``Anyone who attempts to state what caused the
accident would be only speculating unless he has more facts than we
have and has done more analysis, tests and experiments than we have.
Anyone who speculates about the cause of the accident should
conspicuously label it as speculation.''
Dr. Varadarajan's analysis, along with internal Union Carbide
documents and conversations with workers, offers circumstantial
evidence for at least one explanation of what triggered the accident.
There were 45 metric tons, or about 13,000 gallons, of methyl
isocyanate in the tank that leaked, according to plant workers. That
would mean the tank was 87 percent full.
Union Carbide's spokesman in Danbury said the tank contained only
11,000 gallons of the chemical, ``hich was well below the recommended
maximum working capacity of the 15,000-gallon tank.''
However, even that lower level--73 percent of capacity--exceeds the
limit set in the Bhopal operating manual, which says: ``Do not fill MIC
storage tanks beyond 60 percent level.'' MIC is the abbreviation for
methyl isocyanate.
And the parent corporation's technical manual suggests an even
lower limit, 50 percent.
The reason for the restrictions, according to technical experts
formerly employed at the plant, was that in case of a large reaction
pressure in the storage tank would rise less quickly, allowing more
time for corrective action before a possible escape of toxic gas.
For 13,000 gallons of the chemical, the amount reported by the
plant staff, to have reacted with water, at least 1.5 tons or 420
gallons of water would have been required, according to Union Carbide
technical experts.
But those experts said that an analysis of the tank's contents had
not disclosed water-soluble urea, or biuret, the normal product of a
reaction between water and methyl isocyanate.
Furthermore, all of those interviewed agreed that it was highly
unlikely that 420 gallons of water could have entered the storage tank.
HYPOTHESIS ON THE CAUSE
Those observations led Dr. Varadarajan and his staff to suggest
that there may have been another reaction: water and phosgene.
Phosgene, which was used as a chemical weapon during World War I,
inhibits reactions between water and methyl isocyanate because water
selectively reacts first with phosgene.
But Dr. Varadarajan said his study had found that the water-
phosgene reaction produced something not suggested in the Union Carbide
technical manual: highly corrosive chloride ions, which can react with
the stainless steel walls of a tank, liberating metal corrosion
products--chiefly iron--and a great deal of heat.
The heat, the action of the chloride ions on methyl isocyanate,
which releases more heat, and the chloride ions' liberation of the
metals could combine to start a runaway reaction, he said.
``Only a very small amount of water would be needed to start a
chain reaction,'' he said, estimating the amount at between one pint
and one quart.
Beyond its routine checks for the presence of chloride, the
corporate spokesman said in Danbury, Union Carbide specifies that tanks
be built of certain types of stainless steel that do not react with
methyl isocyanate. He did not say whether the specified types of
stainless steel react with chloride ions.
Dr. Varadarajan said his hypothesis had been confirmed by
laboratory experiments in which the methyl isocyanate polymerized, or
turned into a kind of plastic, about 15 tons of which was found in the
tank that leaked.
OTHER CONTAMINANTS POSSIBLE
But that is not the only possible explanation of the disaster at
Bhopal. Although water breaks down methyl isocyanate in the open air,
it can react explosively with the liquid chemical in a closed tank. Lye
can also react with it in a closed tank, but in the gas neutralizer, or
scrubber, a solution of water and lye neutralizes escaping gas. Beyond
water and lye, methyl isocyanate reacts strongly, often violently, with
a variety of contaminants, including acids, bases and metals such as
iron.
Most of those contaminants are present at the plant under certain
conditions. Water is used for washing and condenses on pipes, tanks and
other equipment colder than the surrounding air. Lye, or sodium
hydroxide, a base, is sometimes used to clean equipment. Metals are the
corrosion products of the stainless steel tanks used to store methyl
isocyanate.
Union Carbide Corporation's technical manual on methyl isocyanate,
published in 1976, recognizes the dangers. It says that metals in
contact with methyl isocyanate can cause a ``dangerously rapid''
reaction. ``The heat evolved,'' it adds, ``can generate a reaction of
explosive violence.'' When the chemical is not refrigerated, the manual
says, its reaction with water ``rapidly increases to the point of
violent boiling.'' The presence of acids or bases, it adds, ``greatly
increases the rate of the reaction.''
SOURCES OF CONTAMINANTS
Investigators from both Union Carbide India and its parent
corporation have found evidence of at least five contaminants in the
tank that leaked, according to nuclear magnetic resonance spectrographs
that were obtained by The New York Times and analyzed by two Indian
technical experts at the request of The Times. Among the contaminants,
a senior official of the Indian company said, were water, iron and lye.
The water came from the improperly sealed pipe that had been
washed, workers speculated, or perhaps was carried into the system
after it had condensed in nitrogen that is used to replace air in tanks
and pipes to reduce the chance of fire.
In the days before the accident, workers said, they used nitrogen
in an unsuccessful attempt to pressurize the tank that leaked on Dec.
3. The nitrogen is supposed to be sampled for traces of moisture, but
``we didn't check the moisture all the time,'' said Mr. Qureshi, the
supervisor.
During the same period, the workers said, they added lye to the
scrubber, which is connected to the storage tanks by an intricate set
of pipes and valves that are supposed to be closed in normal conditions
but that workers said were sometimes open or leaking.
Dr. Varadarajan said he was particularly troubled that, in the
absence of what he considered sufficient basic research on the
stability of commercial methyl isocyanate, it was stored in such large
quantities. ``I might keep a small amount of kerosene in my room for my
stove,'' he said, ``but I don't keep a large tank in the room.''
The Union Carbide Corporation decided that it would be more
efficient to store the chemical in large quantities, former officials
of the Indian affiliate said, so that a delay in the production of
methyl isocyanate would not disrupt production of the pesticides of
which it is a component.
Many plants store methyl isocyanate in 52-gallon drums, which are
considered safer than large tanks because the quantity in each storage
vessel is smaller. The chemical was stored in drums at Bhopal when it
was imported from the United States. Tank storage began in 1980, when
Bhopal started producing its own methyl isocyanate.
The Union Carbide technical manual for methyl isocyanate suggests
that drum storage is safer. With large tank storage, it says,
contamination--and, therefore, accidents--are more likely. The drums do
not typically require refrigeration, the manual says. But it cautions
that refrigeration is necessary for bulk storage.
TRAINING WAS LIMITED
Although the storage system increased the risk of trouble at
Bhopal, the plant's operating manual for methyl isocyanate offered
little guidance in the event of a large leak.
After telling operators to dump the gas into a spare tank if a leak
in a storage tank cannot be stopped or isolated, the manual says:
``There may be other situations not covered above. The situation will
determine the appropriate action. We will learn more and more as we
gain actual experience.''
Some of the operators at the plant expressed disatisfaction with
their own understanding of the equipment for which they were
responsible.
M.K. Jain, an operator on duty on the night of the accident, said
he did not understand large parts of the plant. His 3 months of
instrument training and 2 weeks of theoretical work taught him to
operate only one of several methyl isocyanate systems, he said. ``If
there was a problem in another MIC system, I don't know how to deal
with it,'' said Mr. Jain, a high school graduate.
Rahaman Khan, the operator who washed the improperly sealed pipe a
few hours before the accident, said: ``I was trained for one particular
area and one particular job. I don't know about other jobs. During
training they just said, `These are the valves you are supposed to
turn, this is the system in which you work, here are the instruments
and what they indicate. That's it.' ''
IT WAS NOT MY JOB
As to the incident on the day of the accident, Mr. Khan said he
knew the pipe was unsealed but ``it was not my job'' to do anything
about it.
Previously, operators say, they were trained to handle all five
systems involved in the manufacture and storage of methyl isocyanate.
But at the time of the accident, they said, only a few of about 20
operators at Bhopal knew the whole methyl isocyanate plant.
The first page of the Bhopal operating manual says: ``To operate a
plant one should have an adequate knowledge of the process and the
necessary skill to carry out the different operations under any
circumstances.''
Part of the preparatory process was ``what if'' training, which is
designed to help technicians react to emergencies. C.S. Tyson, a Union
Carbide inspector from the United States who studied the Bhopal plant
in 1982, said recently that inadequate ``what if'' training was one of
the major shortcomings of that facility.
Beyond training, workers raised questions about lower employment
qualifications. Methyl isocyanate operators' jobs, which once required
college science degrees, were filled by high school graduates, they
said, and managers experienced in dealing with methyl isocyanate were
often replaced by less qualified personnel, sometimes transfers from
Union Carbide battery factories, which are less complex and potentially
dangerous than methyl isocyanate operations.
MAINTENANCE TEAM REDUCED
The workers also complained about the maintenance of the Bhopal
plant. Starting in 1984, they said, nearly all major maintenance was
performed on the day shift, and there was a backlog of jobs. This
situation was compounded, the methyl isocyanate operators said, because
since 1983 there had been 6 rather than 12 operators on a shift, so
there were fewer people to prepare equipment for maintenance.
As a result of the backlog, the flare tower, one of the plant's
major safety systems, had been out of operation for 6 days at the time
of the accident, workers said. It was awaiting the replacement of a 4-
foot pipe section, they said, a job they estimated would take 4 hours.
The vent gas scrubber, the employees said, had been down for
maintenance since October 22, although the plant procedures specify
that it be ``continously operated'' until the plant is ``free of toxic
chemicals.''
The plant procedures specify that the chiller must be operating
whenever there is methyl isocyanate in the system. The Bhopal operating
manual says the chemical must be maintained at a temperature no higher
than 5 degrees centigrade or 41 degrees Fahrenheit. It specifies that a
high temperature alarm is to sound if the methyl isocyanate reaches i 1
degrees centigrade or 52 degrees Fahrenheit.
But the chiller had been turned off, the workers said, and the
chemical was usually kept at nearly 20 degrees centigrade, or 68
degrees Fahrenheit. They said plant officials had adjusted the
temperature alarms to sound not at 11 degrees but at 20 degrees
centigrade.
That temperature, they maintained, is well on the way to methyl
isocyanate's boiling point, 39.1 degrees centigrade, or 102.4 degrees
Fahrenheit. Moreover, Union Carbide's 1976 technical manual warns
specifically that if methyl isocyanate is kept at 20 degrees centigrade
a contaminant can spur a runaway reaction. The manual says the
preferred temperature is 0 degrees centigrade, or 32 degrees
Fahrenheit.
If the refrigeration unit had been operating, a senior official of
the Indian company said, it would have taken as long as 2 days, rather
than 2 hours, for the methyl isocyanate reaction to produce the
conditions that caused the leak. This would have given plant personnel
sufficient time to deal with the mishap and prevent most, if not all,
loss of life, he said.
The methyl isocyanate operating manual directs workers unable to
contain a leak in a storage tank to dump some of the escaping gas into
a 13,000-gallon tank that was to remain empty for that purpose. But the
workers on duty said that during the accident they never opened the
valve to the spare tank, and their supervisors never ordered them to do
so. The workers said they had not tried to use the spare tank because
its level indicator said it was 22 percent full and they feared that
hot gas from the leaking tank might spark another reaction in the spare
vessel.
The level indicator, according to the operators on duty that night,
was wrong. The spare tank contained only 437 gallons of methyl
isocyanate, not the 3,300 gallons indicated by the gauge.
Nonetheless, standard procedures had been violated. The operating
manual says, ``Always keep one of the storage tanks empty. This is to
be used as dump tank during emergency.'' It provides that any tank less
than 20 percent full be emptied completely.
The spokesman in Danbury said, ``Our investigators did find some
MIC in a spare tank,'' adding: ``We do not know when and how the MIC
got into the spare tank.''
______
[From the Los Angeles Times, January 6, 1985]
Flaws Found in Emergency Plans Near Toxic Plants
(By Richard T. Pienciak)
It is known as Chemical Valley, a 20-mile stretch of poison makers
squeezed into a narrow chasm plagued by a slow breeze and frequent fog.
The region is filled with chemical giants such as Monsanto, Allied
Chemical, E.I. duPont de Nemours, Exxon, FMC and Union Carbide--members
of an industrial club that claims the world's best safety record but is
also burdened with the world's worst industrial accident.
Until a Dec. 3 leak of methyl isocyanate from a Union Carbide
facility in India killed more than 2,000 persons and left 60,000
injured, MIC also had been produced at a Carbide plant here.
Since then, many of the valley's 250,000 residents, and no doubt
millions more clustered around other U.S. chemical centers, have been
wondering how they would fare in such a crisis.
An Associated Press study of several regions with large
concentrations of chemical plants indicates that emergency plans in
those areas often lack the coordination and resources needed to make
them workable.
Emergency plans often lack the coordination and resources to make
them workable.
While emergency preparedness around nuclear plants is required and
supervised by the Federal Emergency Management Agency, no Federal
regulations require plans for areas near chemical facilities.
Frequently, there are lengthy, elaborate plans, but they do not
tell the general public where to go and what to do if an evacuation is
necessary. In West Virginia, for example, there are no provisions for
evacuating the elderly, schoolchildren, prisoners or persons without
autos.
So-called transportation plans are more like traffic plans,
detailing where police would stand to direct fleeing residents and to
block roads approaching the disaster.
The Associated Press found that participation of chemical and oil
refining companies in local emergency planning is usually voluntary,
with State and county officials rarely having the statutory ability, or
expertise, to oversee existing industry plans.
Plans for the public are not specific about possible emergency
sites or kinds of incidents. Local officials generally do not know what
kinds of chemicals are in the plants or what damage they are capable of
inflicting.
In a crisis, the decisions of if and when the public should be
informed about an explosion or leak are generally left to the
discretion of industry.
For the most part, chemical companies face no fines or other
disciplinary measures for inadequate emergency planning or for failing
to inform the public when events dictate they should.
In all, many of the communities seem to have an attitude of ``it
can't happen here.'' Nowhere are the problems with emergency
preparedness more apparent than in Chemical Valley, a region filled
with phosgene, chlorine and a variety of phenols.
Chemical Valley runs eastward through Kanawha County from Nitro, a
town named for its nitroglycerin production in World War I, past
Institute and the State capital of Charleston and on to Belle.
``POOR VENTILATION''
The wind usually runs slow and to the east, from the largest plants
toward the major population centers. The valley's ``ventilation is
historically poor,'' said Carl G. Beard III, director of the State Air
Pollution Control Commission. ``Air stagnation is frequent.'' The
valley has four general emergency plans--one each for the State police,
State emergency services, the county and the industrial emergency
council--and one for each major plant as well.
The county plan emphasizes protection from nuclear fallout after an
enemy attack. The State plan says ``the primary responsibility for
evacuation lies with local government.'' At times, the plans contradict
each other, especially on the length and type of warning sirens.
The few evacuation drills held are only for plant employees. The
general public doesn't participate.
``DIFFERENT SOUNDS''
``To refer to it as an evacuation plan is a misnomer. It's
pathetic,'' said Donald Wilson, a schoolteacher from Institute.
``You're supposed to listen to a number of different sounds, go outside
and sense the wind, and then get involved in a lot of traffic.'' Under
the plans, many emergency duties would fall on local fire departments,
the overwhelming majority of which are volunteer squads lacking the
specialized equipment needed to cope with a major chemical explosion or
fire.
One volunteer team has four gas masks for 12 men.
``You can't ask people who fund themselves on bake sales and
community suppers to finance the purchase of this type of equipment.
We're talking about very sophisticated, expensive equipment,'' Rep.
Barbara Mikulski (D-Md.) said.
In some other parts of the country, things are little better.
Two years ago officials near Taft, La.--situated along a 120-mile
stretch of the Mississippi River dubbed Chemical Row--were able to
evacuate about 17,000 persons in 2\1/2\ hours after a Union Carbide
plant exploded.
DANGER AT PLANT
But a reconstruction of the accident compiled for the owners of a
nearby nuclear plant showed that Union Carbide knew for hours that its
tank was in danger of blowing up but delayed before informing local
emergency preparedness officials.
In addition, the reconstruction showed, local Union Carbide workers
were calling home to order their families to evacuate more than 2 hours
before the first call to emergency officials.
In Texas' Golden Triangle, a dense complex of oil refineries and
petrochemical plants east of Houston, the role of coordinating agency
seems to change from crisis to crisis.
``There still is no clear delineation of who does what. It still
has not been, in my mind, ultimately resolved,'' said Michael Peters, a
regional director with the Texas Air Control Board. ``There is no real
coordinating agency in that sense. There's nothing really written down,
no formalized plan.''
Several Members of Congress got a glimpse of Chemical Valley's
emergency preparedness at a hearing last month at West Virginia State
College, which is adjacent to the Union Carbide facility.
Mikulski asked plant manager Hank J. Karawan to explain the county
plan, which she held up in her hand. ``I'm unaware of that plan. I know
about the KVIEPC plan,'' Karawan said, referring to the Kanawha Valley
Industrial Emergency Planning Council plan.
``One group thinks that this is the plan, and the other group
thinks the other one is the plan,'' Mikulski said.
In September, Union Carbide, the region's largest employer with
7,000 jobs, sent a letter telling residents near its Institute plant to
go outside and ``check wind direction'' if they hear continuing blasts
from the plant steam whistle.
``If wind is blowing from plant toward you, immediately evacuate by
going crosswind. In the case of a gas release you should be easily able
to walk far enough crosswind to get away from the fumes,'' the letter
said.
SWIMMING RIVER
But citizens point out that, if the wind is blowing in its usual
eastward direction, crosswind would mean swimming the Kanawha River or
scrambling up a mountain ridge.
At a public meeting attended by about 100 residents a week after
the leak in India, State health director Dr. L. Clark Hansbarger
suggested that residents, before going outside, put wet cloths over
their mouths. He also said: ``This area's emergency plan is a model for
the State and indeed the nation.'' The Charleston Gazette expressed its
pique in an editorial, comparing the plan to that of some
underdeveloped country that ``prepared its aspiring astronauts for the
rigors of space by requiring them to occupy metal drums and old
automobile tires and rolling them down hillsides.'' It is no surprise
that, with so many emergency plans, there is confusion over the meaning
of each plan's warning signals.
Union Carbide, for example, tells residents that in the event of an
emergency with possible offsite consequences it will sound its steam
whistle for 2 seconds every 3 seconds for a 2-minute period, followed
by 2-second blasts every 30 seconds until the emergency ends.
OTHER POSSIBILITIES
There are three other alarm possibilities, according to a copy of
the county emergency plan provided by William H. White, director of
Kanawha County Emergency Services.
First comes the nuclear attack warning signal, ``a 3-to-5 minute
wavering tone on sirens, or a series of short blasts on horns or other
devices signifying that an actual attack against the county has been
detected. This signal shall be used for no other purpose or meaning.''
However, a penned addition says the attack warning signal will also be
used for ``disaster evacuation.'' Another penned addition says the
attack-evacuation signal will be ``3 off--3 on--3 off.'' The third
possibility mentioned in the county plan is a 3-to-5 minute steady tone
signal ``to gain public attention in the event of a peacetime
emergency.'' In the midst of the congressional hearing, a loud siren
started to blow. ``What do we do now?'' Rep. Gerry Sikorski (D-Minn.)
asked.
``I think that's the campus whistle, but I'm not sure,'' said Paul
Nuchims, an art professor who was testifying at the time.
No one was timing the length of the alarm.
``Do you have sirens often?'' Rep. Henry A. Waxman (D-Los Angeles),
the subcommittee chairman asked.
``That's the point,'' said Nuchims, who lives 300 yards from the
Carbide plant. ``We hear all sorts of sirens all the time. We don't
understand which ones are which, so what happens is we do nothing.''
Fifteen minutes later, enough time for any leaking gas to have
reached the campus, it was announced that the alarm had sounded to call
members of the Institute Volunteer Fire Department to a house fire.
______
[From the Baltimore Sun, October 17, 2001]
When Chemical Safety is a Matter of Security
(By Heather Dewar)
Precautions: Steps are being taken to prevent accidents--or
attacks--at Baltimore industrial plants, which could affect the area's
residents.
When a train loaded with dangerous chemicals derailed and caught
fire in a downtown tunnel this summer, Baltimoreans were aghast at the
hellish spectacle of black smoke pouring out of sewer grates and
manhole covers. But chemical accident experts looked at the train's
chemical manifest and breathed a sigh of relief.
Thank heaven, they agreed, the accident didn't involve something
really dangerous--like a 90-ton tank car filled with potentially deadly
chlorine gas.
Since September 11, emergency planners here and across the country
face a far more unsettling concern: that factories and municipal water
and sewage plants could become targets for terrorists. Their chemical
stockpiles can be turned into weapons--and are sometimes lightly
guarded. In Baltimore, as in practically every other American city,
it's a real concern--one that counter-terrorism planners have been
dealing with ``every day since September 11,'' said Mayor Martin
O'Malley.
Five Baltimore industrial and municipal plants have 90 tons or more
of chlorine on their property at any time, according to reports the
facilities provided to the Environmental Protection Agency that were
made public last year.
Chlorine, widely used in water and wastewater treatment and in
manufacturing, was the first modern chemical weapon, used by German and
British forces to poison enemy troops en masse during World War I. It
is also often released in industrial accidents, according to the
National Response Center, which tracks oil and chemical spills.
Up to 1.7 million people--nearly two-thirds of those living in the
Baltimore metropolitan area--are theoretically within range of the
poisonous plume that could result if one of the 90-ton tanks failed,
the Baltimore companies' reports to the EPA show.
The tanks are double-walled and equipped with safety valves;
catastrophic failures are rare--but the consequences would be grave.
In the most-recent such accident, a 90-ton rail car carrying
chlorine derailed and ruptured in the small town of Alberton, Mont., in
1996. One man was killed, 350 people were treated for chlorine
inhalation and about 1,000 people were evacuated. Interstate 90 through
the town was closed for 17 days.
Public records on file at EPA headquarters in Washington show that
31 Baltimore-area plants report keeping large amounts of dangerous
chemicals. Almost half are city-owned water and wastewater treatment
facilities, which, as in almost every other community in the country,
rely on chlorine for disinfection.
Managers of 14 of the Baltimore-area facilities said a catastrophic
leak at one of their sites has the potential to injure 100,000 or more
people who live within the plants' danger zones. The Baltimore-area
companies estimated that in smaller accidents, considered more likely,
anywhere from two to 2,300 residents would be endangered.
An attack on a U.S. chemical plant probably would not cause
enormous numbers of casualties, said Eric Croddy, a senior researcher
at the Monterey Institute of International Studies. Nonetheless, he
said, such an attack could accomplish a terrorist's goal.
``It would cause a lot of terror and consternation. It wouldn't
necessarily cause a lot of deaths,'' said Croddy, who has written a
book on chemical and biological warfare that is scheduled to be
published next month.
``A terrorist could fail miserably to cause many deaths, but he
still could succeed,'' Croddy said.
Responsible officials have known that chemicals stockpiled in
American communities pose a threat to the public at least since 1984,
when a leak at a Union Carbide Corp. insecticide plant in Bhopal,
India, killed more than 2,000 people. In the wake of that accident,
Congress passed laws requiring companies to tell the public about their
chemical stockpiles and help communities reduce the risk from
accidents.
But in most places, chemical accident prevention and preparedness
was a low priority, and progress was slow.
``We haven't had our Bhopal yet in the United States,'' said Fred
Millar, an independent chemical safety consultant.
But last month, the nation experienced something even more
traumatic: Terrorists ``turned our infrastructure against us as a
weapon,'' in Millar's words. Suddenly, protecting the public from
dangerous chemicals became an urgent matter.
In the weeks since the jetliner attacks on the World Trade Center
and Pentagon, government and industry have scrambled to improve
security around hazardous chemical stockpiles. Uniformed police
officers now help guard factory entrances, and gates that previously
had been left open are padlocked.
O'Malley, who has vowed to make Baltimore a national model for
counter-terrorism, said he believes the odds of an attack on a chemical
plant are slim.
``More people are going to be killed by car accidents, cancer or
heart disease than by a chemical plume,'' he said.
Environmental lawyer Rena Steinzor, who has been pushing the city
to improve emergency preparedness, contends that until now, local
officials have been complacent about the risk of a large chemical
incident, whether accidental or deliberate.
``The city has had a series of wake-up calls over the years,''
Steinzor said, ``and lately the alarms have gotten louder. This is
major unfinished business.'' For years, Federal anti-terrorism studies
acknowledged that industrial plants are potential ``soft targets'' for
attackers.
A study in 1999 by the General Accounting Office called such an
assault somewhere in the United States ``likely''--though it noted that
uncontrollable factors like weather would probably limit the damage.
``Toxic industrial chemicals can cause mass casualties and require
little if any expertise or sophisticated methods,'' the GAO study said.
The office said the FBI should assess the likelihood of terrorist
attacks using industrial chemicals.
In 1999, Congress ordered the Justice Department to find out how
vulnerable U.S. chemical companies are to terrorist attack. They were
to report back by last August.
But despite repeated prodding from senators, the Justice Department
had not begun gathering the information before September 11, blaming a
lack of funds and confusion about the deadline. Lawmakers are still
waiting to hear from the Justice Department, said a spokesman for Sen.
James M. Jeffords, the Vermont Independent who is chairman of the
Environment and Public Works Committee.
The only existing Federal study of chemical plants' vulnerability
to terrorism was conducted in 1999 by the Department of Health & Human
Services' Agency for Toxic Substances and Disease Registry, which
specializes in the health effects of hazardous substances.
Agency staffers surveyed two unnamed communities where chemicals
are made and reported that antiterrorism measures in government
buildings were ``excellent,'' but ``security at chemical plants ranged
from fair to very poor'' and at chemical-shipping sites was ``poor to
non-existent.'' ``Most security gaps were the result of complacency and
lack of awareness of the threat,'' the agency reported.
The study found that many plants failed to take simple
precautions--for example, they were not fenced or did not do criminal
background checks of would-be workers.
Long before the prospect of terrorists turning factories into
chemical weapons surfaced, Congress required companies to go public
with ``worst-case'' accident scenarios describing what would happen if
a large amount of their most dangerous chemical escaped. Local
companies' reports, filed with the EPA and made public last year, show
that most people in the Baltimore area live within more than one
chemical plant's danger zone.
The EPA classifies 245 chemicals as ``extremely hazardous''--that
is, capable of causing injury or death. The most common threats to
Baltimore-area residents are two chemicals that practically everyone
has at home in much-diluted form: chlorine and ammonia.
Undiluted chlorine and ammonia are gases that can be stored safely
only under pressure, as liquids. When exposed to air, they vaporize and
form thick clouds that cling to the ground. Moderate doses can burn the
eyes, skin, eyes, throat and lungs. Large doses can cause permanent
lung damage or death.
In the reports, 18 of the 31 Baltimore-area facilities said the
worst accident that could occur at their plants involved chlorine.
Eight companies said their most dangerous chemical was ammonia, widely
used in industrial refrigeration.
``Chlorine and ammonia account for at least 75 percent of the
safety concerns in this region and any other region around the
country,'' said William McHale, head of chemical accident prevention
for the EPA's MidAtlantic office.
Troubling as they are, the reports don't provide a full picture of
the risks. At least 40 more plants have dangerous chemicals onsite m
large amounts--but not enough to require Federal reporting. And many
classes of chemicals, like gasoline and propane, are exempt from
reporting.
The worst-case reports were meant to teach residents about the
risks in their back yards, help emergency workers plan for the greatest
dangers and encourage companies to reduce hazards.
Safety experts say the law was beginning to accomplish those goals.
``Every company that has submitted an (accident scenario)--all of
them have changed their process in some way,'' McHale said. For
example, South Baltimore's Condea Vista Co., which makes ingredients
used in household detergents, is phasing out chlorine.
The company filed a worst-case report that said 1,560,000 people
are in the danger zone of the most lethal accident possible at the
plant. Four other companies reported a similar number of people living
in their danger zones.
Within the next few weeks, Condea Vista's process is ``going to be
a different reaction that does not use chlorine or any other hazardous
chemical,'' said Dave Mahler, the plant's environmental officer.
Another large manufacturer, Grace Davison, a Baltimore plant that
is part of chemical giant W.R. Grace & Co., has eliminated chlorine and
reduced amounts of several other chemicals, plant managers said.
Chemical executives dislike the worst-case scenarios, which they
say are unrealistic and alarmist.
The guidelines require the companies to assume a rapid, complete
spill of their most dangerous chemical, figure out how far its toxic
plume might travel, and draw a circle that includes everything in that
range.
Such an incident ``is physically impossible,'' Mahler said. Most
toxic chemicals don't vaporize that quickly, he said, and the wind
would limit the spread of a poisonous vapor cloud.
``A plume is going to go in one direction in a rather narrow path,
and you're talking about a small fraction of people in the path of the
plume,'' he said.
City firefighters agreed.
``When you look at worst-case scenarios, you're looking at a
situation that is not very credible,'' said Battalion Chief Hector L.
Torres, spokesman for the Baltimore Fire Department. In a cash-strapped
city, planning for a worst-case accident ``will have us devoting
resources in a way that just is not feasible, just not effective.''
Chemical manufacturers responded to the law by trying to limit public
access to information about plants' accident scenarios. In 1999, an
industry association urged the EPA not to post companies' worst-case
scenarios or accident histories on the Internet, citing concerns about
terrorism.
With the FBI sharing the industry's worry, the EPA compromised:
Though most of the information was available online until recently, the
public can see the worst-case scenarios only at EPA or Justice
Department reading rooms, where they are kept under tight security.
Within days of the attacks of September 11, the EPA removed
companies' chemical accident scenarios from its Web site. The American
Chemistry Association, representing 200 manufacturers, has urged the
EPA to close the reading rooms as well.
Amy Smithson, a chemical and biological weapons expert at the Henry
L. Stimson Institute, a Washington think tank, called the decision to
drop the information from the Internet ``a no-brainer.'' ``Slapping
information about these facilities up on the World Wide Web so they
could be searched by chemical and by geographic location was a very bad
idea,'' Smithson said.
But chemical-safety advocates take a different view.
``This is real head-in-the-sand-type stuff,'' Millar said. ``If we
continue to keep citizens in the dark, we're just going to add to their
anxiety. We really need to have very measurable, visible improvements
in security.'' Before September 11, neither the Federal Government nor
the chemical industry association offered chemical companies and public
utilities much guidance on counter-terrorism measures.
The industry association, which has voiced terrorism concerns since
the mid-1990s, is working on a counterterrorism manual. On the day of
the attacks, the group forwarded to its members an EPA bulletin urging
stepped-up security.
Association spokesman Jeff Van said most U.S. chemical plants added
guards and patrols, restricted visitors, and began searching packages
and shipments.
Some began running background checks on their own workers and
required their shippers to do checks on their employees as well. Others
limited cleaning crews' access. Many are in regular contact with local
FBI offices, Van said.
``We've tried to, as one security professional put it, `screw the
lid down,' '' Van said.
The EPA is 2 years behind schedule in preparing counter-terrorism
recommendations for water utilities, which could face attacks on
chemical supplies or on wells and reservoirs. The report should be
finished this winter, EPA's McHale said.
In the meantime, utility managers in the Middle Atlantic States are
calling for advice. ``And I'm saying, `monitor your reservoirs and dams
and make sure the chlorine supplies are locked up.' '' McHale said.
The Agency for Toxic Substances and Disease Registry, in its 1999
report, recommended a laundry list of security measures. They include
routine searches of people, vehicles and bags, video surveillance,
chemical leak alarms and earthen barriers around chemical tanks to
protect them and absorb an explosion or spill.
The report also recommended design changes like moving chemical
tanks away from roads and reducing or eliminating the use of hazardous
chemicals.
Some Baltimore facilities have taken those steps, though others
lack basic precautions like fences, city officials said.
``You have to recognize these plants were built in a different time
in America when these concerns didn't exist,'' said Louis R. Anemone,
the former New York police official who is the city's counter-terrorism
adviser.
Anemone, hired in the wake of the attacks, said he has recommended
security improvements to local plant managers.
``I've met with absolutely no resistance,'' he said. ``They are all
aware of the issues, and they've all been extremely cooperative.'' Some
city-owned facilities that use large amounts of chlorine, like the Back
River Wastewater Treatment Plant, have sophisticated security systems.
The plant's chlorine tank and valves are monitored by television
cameras, tested at the start of every eighthour shift and surrounded by
ultra-sensitive sensors that sound alarms if they pick up traces of
chlorine in the air, plant manager Nick Frankos said.
Similar measures are in place at drinking-water treatment plants,
city Department of Public Works officials said.
O'Malley said police officers are posted at all treatment
facilities but that more needs to be done.
``There's places where tanks may need to be moved,'' the mayor
said. ``There's other places where buildings may need to be built to
enclose some equipment. We're going to have to invest in perimeter
security, smart fences'' and other measures.
It's too soon to say how long the changes might take, how much they
might cost and where the money would come from, the mayor said.
Ralph Cullison, who is in charge of environmental services for the
department's water and wastewater plants, said the utility is
considering replacing gaseous chlorine with a less-dangerous, watered-
down version.
Many utilities are getting rid of gaseous chlorine for safety
reasons even though the substitutes are more expensive, Cullison said.
``We all feel that now that we are in a different world, it will be
easier to get the support for spending the money to convert than it
would have been'' before September 11, he said. ``We were going that
way anyway.'' To the extent that the past is a guide to the future,
accidents are far more common than assaults on chemical plants.
During the 1990s there were two publicly disclosed plots to attack
U.S. chemical plants, the General Accounting Office reported. Both
involved homegrown criminals, not international terrorists, and the FBI
foiled both before anyone was harmed.
Meanwhile, a Federal survey of 13 states reported that 36 people
died and 537 communities were evacuated because of chemical accidents
in 1998, the most recent year for which data are available.
Smithson, the chemical terrorism expert, estimated there are 60,000
chemical accidents a year in the United States. In the past few months
in Baltimore, three chemical accidents, including the train derailment,
have forced residents from their homes, closed main streets, filled
downtown with smoke and sent manhole coveflying.
``I am hoping that in our concern about terrorism we address a far
more ubiquitous threat of accidents,'' said Steinzor, the environmental
lawyer.
``From a public health point of view it doesn't matter what the
cause is,'' she said. ``It only matters what you do to protect
people.''
__________
[From the Houston Chronicle, July 23, 2001]
Tunnel Damage Assessed After Derailment, Blaze
Baltimore--Crews worked to pull the last smoldering boxcars from a
downtown tunnel Sunday, days after a train derailment and fire shut
down parts of the city and disrupted Internet service across the
country.
Above the 1\1/2\-mile tunnel, a broken 40-inch water main continued
gushing onto downtown streets and public works officials said damage to
the street and tunnel may be significant.
City crews said the leak--which has spewed at least 60,000 gallons
of water--cannot be stopped until the fire is extinguished and the
tunnel walls are declared safe. The water main break was just feet
above the 106-year-old tunnel, said public works director George
Winfield.
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Responses of Rena I. Steinzor to Additional Questions from Senator
Corzine
Question 1. The testimony of Fred Webber points out that there are
many existing safety requirements that apply to chemical facilities. In
your view, do the authorities and security and hazard reduction
measures contained in S. 1602 exist elsewhere in current law?
Response. No, they do not. S. 1602 imposes a deadline for the
issuance of comprehensive regulations by EPA that would require
chemical facilities to reduce hazards by eliminating the use of acutely
toxic chemicals as a remedy of first--not last--resort. There is no
other provision in Federal law that requires facilities to eliminate
the hazard if at all possible, as opposed to making plans to contain it
in the event of a terrorist attack, or, for that matter, a routine
accident.
Question 2. The American Chemistry Council and SOCMA testified
about the security and transportation guidelines that they have
developed and are working to implement. What do you think of the
adequacy of the guidelines? Do you think that a voluntary approach to
implementing such guidelines would be more effective than the
regulatory approach embodied in S. 1602?
Response: I have reviewed the ACC/SOCMA guidelines with great care
and was unable to find a single allusion to the possibility that the
best way to prevent grave injury in the event of a terrorist attack is
to remove the hazardous targets from a facility. It is intuitively
obvious that no amount of site security will prove as effective as
substituting chemicals that will not prove acutely toxic when released,
no matter what the cause. This obvious solution should be the primary
focus of any reevaluation of a facility's vulnerability in the wake of
the tragedies that began on September 11, 2001. The guidelines' refusal
to even mention the possibility of eliminating the hazard as an
alternative would be laughable if the underlying subject was not so
very serious.
Because the chemical industry exhibits such a blind spot with
respect to the absolutely crucial option of hazard reduction, we can
have no faith in the effectiveness of voluntary measures. It is
extraordinarily unlikely that even a majority of the hundreds of
thousands of chemical facilities will strengthen site security
voluntarily, especially given the downturn in the economy and the
relative expense of such measures. Even if the majority did implement
the guidelines, however, the omission of hazard reduction as the remedy
of first resort would squander our opportunity to act to avert another
disaster.
It is worth noting that most of the terrorist attacks launched on
American targets in the last decade or two have involved driving trucks
full of explosives up to a facility's gates and detonating these mobile
bombs. No amount of barbed wire, security guards, expensive lighting,
or warning systems can prevent such attacks. The only way to safeguard
public health is to ensure that if they do occur, the substances
targeted by the explosion are the least toxic that can be used to carry
out the facility's production needs.
__________
Statement of the American Petroleum Institute
INTRODUCTION
API is pleased to provide a statement for the record on S. 1602,
the Chemical Security Act of 2001. The American Petroleum Institute
(API) is the leading national association for the domestic U.S.
petroleum industry. API's membership includes over 400 companies
involved in all aspects of petroleum operations including exploration
and production, refining, pipeline, marine and on-road transportation
activities.
API opposes S. 1602. It will have an adverse impact on the
petroleum industry and on the American economy. It will misdirect
critical resources that should be applied to real security-risk
reduction activities and it would not improve the safety or the
security of our nation's energy supply or the welfare of our citizens.
The bill covers all petroleum facilities in the U.S. Oil and gas
production facilities, pipelines, refineries, bulk terminals and
storage facilities, service stations and all other installations that
produce, refine, process, transport, store or handle crude oil and
petroleum products or chemicals will be covered by this bill. In
addition to stationary sources, the bill covers containers, vessels,
tanks trucks, rail tank cars, and marine vessels. This overly broad
bill adds yet another unnecessary and overlapping layer of regulations
on the energy infrastructure at a time when our industry is doing all
it can to address short and long term adequacy of fuel supplies and
other petroleum products for this nation.
BACKGROUND
The petroleum industry is a critical part of our nation's energy
infrastructure and continues to make a significant contribution to
America's economic growth and national security. In addition to
manufacturing consumer fuel products such as natural gas, gasoline and
home heating fuel, our industry provides the feedstocks used to make
everything from the clothes we wear, to the military equipment that
helps protect our American way of life. We do this in a safe and
environmentally compatible manner. Over the past 10 years, the demand
for energy products has pushed capacity to record levels, while
providing the consumer with affordable products at near record low
prices. During this same time, the safety record in the industry has
improved by over 50 percent. In fact, Bureau of Labor Statistics data
show that the petroleum industry is one of the safest industries in
America.
The petroleum industry has a long history of developing effective
security practices to protect its critical infrastructure. The recent
events of September 11th have further increased the industry's
awareness of the importance of security. Along with many private
initiatives, the industry has developed a trusted partnership with
Federal, state and local safety and law enforcement authorities. The
industry has recently engaged in an increased level of cooperation with
the Federal Government to evaluate and develop effective security
practices. However, in this environment of heightened sensitivity, we
must all avoid overreacting. Any new laws or regulations should address
the right issues, focus resources, and provide real security benefit.
This statement discusses the current security initiatives our industry
is implementing and the shortcomings of S. 1602.
Since September 11th, API member companies have tightened security
practices in the United States. API members include petroleum companies
and service and supply companies with international operations. These
companies have expertise in operating in high-risk parts of the world.
U.S. facilities have benefited from that experience by incorporating
these security practices into their own operations. Some examples
include: increased perimeter security at fixed-facilities through
additional security guards and surveillance equipment; restricted
vehicle access to and from facilities; and more extensive background
checks.
API is also working with several Federal agencies to establish a
security network to streamline communications. Individual companies
have established an Energy Information Sharing and Analysis Center
(ISAC) that will enable our industry and members of the intelligence
community to share information on incidents, security practices and
near real-time credible threat information in a secure environment.
SHORTCOMINGS OF S. 1602, THE CHEMICAL SECURITY ACT OF 2001
When addressing security in the petroleum industry, security
experts from the Department of Energy, Department of Transportation,
Department of Justice and the Office of Homeland Security should be
assembled to consult with members of the petroleum industry. Following
are some of the specific shortcomings of S. 1602:
<bullet> S. 1602 reverses the roles of government and industry by
providing the EPA with the authority to dictate appropriate
manufacturing practices, while industry is mandated to prevent
terrorism. S. 1602 makes it a crime to be a victim of a terrorist
attack or criminal act.
<bullet> S. 1602 focuses on chemical hazards and not risk scenarios
posed by terrorism. September 11th taught us that terrorists select
targets based on a number of objectives, not solely on public impact.
Principally their targets have included symbols of American economic
and military strength.
<bullet> S. 1602 focuses on accidental release prevention practices
that are already addressed in existing regulations such as the EPA's
Risk Management Rule, OSHA's Process Safety Management Rule, and DOT
Hazardous Material Regulations.
<bullet> S. 1602 relies on the concept of mandated ``Inherent
Safety.'' Although ``Inherent Safety'' sounds good in theory, in
practice it is mostly impractical to apply to existing facilities.
Changes to part of a petroleum process can have unintended consequences
in other parts of the process. Risk shifting has been a common problem
of mandated Inherent Safety. For example, by mandating a reduction of
product inventory at a fixed-facility, more product deliveries are
needed. While you may reduce the risk of a release to the local
community around the facility, you may in fact increase the overall
risk by increasing the number of on-road transportation activities
required to maintain the required product feed needed for production.
<bullet> S. 1602 mandates product substitution for petroleum
products. Product substitution is not practical in our industry.
Petroleum products are capable of heating our homes and powering our
vehicles because of their flammable and combustible properties. At this
time, there are no substitutes that do not have similar chemical
properties. Mandating Inherent Safety will not change the flammable/
combustible properties of these products.
<bullet> S. 1602 could mandate the use of buffer zones to protect
against terrorist attacks. Establishing buffer zones does not prevent
terrorism. Buffer zones are a local government land use practice. In
fact, it is not practical in most cases to establish buffer zones
around existing facilities.
<bullet> S. 1602 could mandate transportation buffer zones that
virtually exclude the movement of petroleum products anywhere within
the United States. Though the bill uses the words ``to extent
practicable,'' it opens the door to local interpretation of where
gasoline transportation could take place and result in impacts to the
supply of product to gasoline stations that could be near the ``buffer
zones.''
<bullet> DOT must maintain jurisdiction over transportation safety
and security issues. Hazardous materials are moved with a high degree
of safety, which can be attributed to the uniform authority of the
Hazardous Material Regulations (HMR) across the country and the
expertise of the DOT in writing and enforcing those rules. S. 1602
would create confusion and duplicative roles for EPA and DOT regarding
transportation of hazardous materials and would disrupt the national
uniformity of current DOT regulations. The negative impact on
interstate commerce resulting from variations among state and local
regulations would significantly disturb industry operations and
complicate compliance obligations while not significantly decreasing
the threat of terrorism or criminal acts.
CONCLUSION
S. 1602 is too broad. It identifies all petroleum products as a
covered ``substance of concern'', and all modes of surface
transportation (truck and rail) and all containers (drums, pails,
plastic bottles, etc.) as ``chemical sources.'' The legislation could
extend the definition of a ``substance of concern'' to a whole new set
of petroleum products that are not currently regulated as hazardous
materials. The legislation would cover such petroleum products as
engine oils and waxes that would not be attractive as a terrorist
target. The expansive nature of this proposal unnecessarily imposes
Federal law on industry and does not improve security or public safety.
API opposes S. 1602 because it would have a significant negative
impact on the energy industry and the American economy; would misdirect
resources that should be focused at real security risk reduction; and
would not improve the safety or security of our nation's energy supply
or the health and well being of our citizens.
__________
Statement of William Canary, President and Chief Executive Officer,
American Trucking Associations, Inc. (ATA)
I. INTRODUCTION
Good morning Mr. Chairman and members of this subcommittee. My name
is William Canary and I am president and CEO of the American Trucking
Associations, Inc. (ATA), with offices located at 2200 Mill Road,
Alexandria, Virginia 22314. ATA is the national trade association of
the trucking industry. Through its affiliated state trucking
associations, affiliated conferences and other organizations, ATA
represents more than 30,000 trucking companies throughout these United
States. I sincerely appreciate the opportunity to speak to this
subcommittee today on behalf of ATA.
Mr. Chairman, in the wake of the September 11 attacks, the U.S.
trucking industry has continued to work hard to support America's goals
of keeping our country and our economy moving forward. I am very proud
of this industry's efforts to keep America moving. In fact, on the
morning of September 11, ATA staff were able to view from our
headquarters the smoke rising from the attack on the Pentagon, and from
the opposite side of the ATA building, they were able to see trucks on
the Capital beltway continuing to move America.
As members of this subcommittee know, motor carriers are a critical
component of the United States' economic strength, with 9 billion tons
of freight transported by intercity and local trucks, representing 68
percent of the total domestic tonnage shipped. The trucking industry
generates revenues of $606 billion annually, equaling almost 5 percent
of our GDP, and a figure that represents nearly 87 percent of all
revenues generated by our nation's freight transportation industry.
As in all other sectors of our country's economy, the horrific
attacks have heightened security concerns in the trucking industry, and
even more so after it was recently reported by the FBI that some
suspected terrorists had obtained commercial driver's licenses (CDLs)
to operate large trucks. It appears that motor carriers involved in
transporting hazardous materials may have been, or may be, targeted for
hijackings or theft for use in potential acts of terrorism. Obviously,
this is a major concern to our industry, and I commend you for holding
this hearing today to identify ways to address these threats.
In my testimony today, I will communicate ATA's longstanding
involvement in trucking security issues, including issues associated
with the transportation of hazardous materials and sensitive military
freight. I also will recommend several potential legislative
improvements to S. 1602, as introduced, to enhance security in the
trucking industry without compromising the efficiencies realized
through the uniform hazardous materials regulations.
II. ATA'S INVOLVEMENT IN HAZARDOUS MATERIALS TRANSPORTATION SECURITY
ATA and its members are actively involved in providing safe and
secure transportation of goods on behalf of customers and their
consumers. Since 1982, ATA has maintained a Council of members
dedicated to advancing security and loss prevention issues. The name of
this organization has undergone numerous changes since its inception,
and today is known as the Safety & Loss Prevention Management Council
(Safety Council). The Safety Council has two committees, the Security
Committee and the Claims and Loss Prevention Committee, that have
addressed many trucking security issues, including driver and vehicle
security, cargo security, and facility security. The committees consist
of security directors, many of whom are former law enforcement
personnel, from a broad array of America's leading motor carriers. The
committees publish guidelines and educational materials to assist motor
carriers to enhance the security of their operations.
Presently, the transportation of hazardous materials must comply
with the comprehensive Federal hazardous materials regulations, which
are adopted and enforced by the states. Therefore, motor carriers
involved with transportation of hazardous materials do work with the
states, and their respective permit and registration programs if
applicable, to increase transportation safety and prepare for emergency
response activities.
Certain classes of hazardous materials are more regulated than
others. For instance, high-level nuclear wastes from power plants are
closely monitored by several Federal agencies, including the Department
of Energy (DOE) and Department of Transportation (DOT). Motor carriers
involved in moving this material are pre-screened and approved by DOE.
In fact, the trucking industry played an integral role in the
development of the Commercial Vehicle Safety Alliance's (CVSA) Level VI
enhanced radioactive transporter inspection criteria, which is
specifically designed to afford a high level of driver, vehicle, and
load scrutiny prior to the truck leaving the shipper's facility.
Military shipments are another category of specific concern.
Military shipments of Security Risk Category I and II, Arms, Ammunition
and Explosives (SRC I & II, AAE), are highly regulated, as are lesser
Class I explosive shipments of the Department of Defense (DOD). Prior
to transporting these materials, motor carriers must be approved by the
DOD, and after approval, they are closely monitored. Drivers are
carefully selected and must successfully complete security background
checks. Motor carrier terminals must meet certain levels of security as
prescribed by the Military Traffic Management Command (MTMC). And,
shipments of SRC I & II AAE must be transported directly from point of
origin to destination with minimal delay.
Since October 2000, ATA has worked closely with MTMC through ATA's
Government Traffic Policy Committee (prior to October 2000, the now-
defunct Explosive Carriers Conference of the ATA performed that task)
on a number of issues regarding safety and security of DOD shipments.
Deliberations continue on MTMC's newest policies and procedures for
transportation of SRC I & II AAE, including the recently proposed
standards for motor carrier terminals. ATA has provided MTMC with
valuable information on possible security concerns and related
solutions. The trucking industry views these measures as paramount to
the safe and efficient transportation of these materials, and will
continue to work with MTMC to see that AAE shipments arrive securely at
their proper destination.
ATA also worked with Sandia Laboratories to gather information for
its Department of Justice (DOJ) study entitled the ``Chemical Plant
Vulnerability Assessment Project.'' This study, which examined the
vulnerability of chemical plants that produce chemicals of mass
destruction to terrorist attack and included the transportation chain,
was presented to the ATA Safety Council's Hazardous Materials Committee
in September 2001. ATA's Committee members provided information to
Sandia Laboratories earlier in the year concerning transportation
security issues of these types of hazardous materials and will continue
to support this important project.
The safe, efficient and secure movement of hazardous materials is
of great importance to the trucking industry. Through work with DOT,
CVSA, MTMC, Sandia Labs, and a multitude of associations whose members
produce chemicals and hazardous materials, ATA and its members have
demonstrated that secure transportation of hazardous materials is a
primary concern. ATA will continue to work with interested parties to
ensure that the transportation of hazardous materials remains one of
the safest transportation activities in the world.
III. THE TRUCKING INDUSTRY'S SUPPORT IN THE AFTERMATH OF SEPTEMBER 11TH
Assistance in Relief Efforts
In the aftermath of September 11, the trucking industry worked
around the clock to support the relief efforts in New York and
Washington by delivering critical cargo to the rescue workers. For
example, the Federal Emergency Management Agency worked closely with
the New Jersey Motor Transport Association to coordinate truck efforts
in and around New York City. Emergency responders and trucking
executives coordinating the recovery applauded trucking for its rapid
response after the attacks.
As part of their support efforts, trucking companies delivered all
types of supplies and equipment to the attack sites including medical
supplies, earth moving equipment, communications equipment, emergency
generators, mobile lighting trucks for nighttime rescue work,
respirators, coveralls, protective gloves, blankets, and thousands of
pounds of food and drinks. In addition, many dump truck drivers showed
up to volunteer their services and worked 12-hour shifts.
Additional Security Measures Taken by the Trucking Industry
Motor carriers throughout the trucking industry voluntarily took a
number of measures to increase the security of their operations
immediately following the attacks. Many motor carriers re-evaluated
their overall security procedures for pick-up and delivery, for their
service locations, terminals and loading-dock facilities, and for
dispatch operations to vehicles in cities and on the road. In addition
to requesting their personnel to report any suspicious activity to law
enforcement personnel, other examples of actions taken include:
<bullet> Initiating new background checks through systems currently
available to motor carriers;
<bullet> Designating specific drivers for specific types of loads
and studying the specific routes to be used;
<bullet> Instructing drivers not to stop or render assistance
except in the case of a clear emergency, and alerting drivers of
possible ploys to obtain vehicles for hijacking purposes;
<bullet> Emphasizing to all trucking company employees, not only
drivers, to stay alert and remain aware of their surroundings at all
times, especially when transporting hazardous materials;
<bullet> Advising drivers transporting hazardous materials to avoid
highly populated areas, whenever possible, and to use alternate routes
if feasible;
<bullet> Verifying seal integrity at each and every stop. Notifying
central dispatch immediately if a seal is compromised; and
<bullet> Advising drivers to notify supervisors/managers of any
suspicious shipments, and if deemed necessary, to contact local police
or law enforcement authorities to request inspection of shipment under
safe practices.
These are just a few of the proactive measures that trucking
companies around the country took to enhance their operational security
for not only on-the-road operations, but also at terminals and other
facilities.
ATA Work with DOT and Other Federal Agencies
In addition to the emergency relief efforts of many ATA members,
and the additional security measures taken, ATA staff has also worked
closely with Federal officials to collect information requested by the
Federal Government and to disseminate critical security-related
information to trucking companies throughout the country. For example,
in the hours and days immediately following the attacks, DOT officials
turned to ATA staff to provide information on trucking company security
programs. ATA was pleased to share the requested information with DOT
officials. Bush Administration officials also requested that ATA
provide information on diesel fuel supply and pricing throughout the
country. Once again, ATA staff delivered the information. ATA also
assisted DOT in communicating information to hazardous materials
transporters throughout the country on the agency's upcoming security
sensitivity visits. In fact, ATA established an emergency information
clearinghouse on its website, that it continues to update as additional
information becomes available. ATA continues to stand ready to assist
DOT, the FBI, and any other government agency that needs assistance in
these unprecedented times.
IV. THE TRUCKING INDUSTRY'S CONCERNS WITH S. 1602
ATA supports the laudable goal of minimizing the risk of criminal
and accidental releases of hazardous materials; however, S. 1602
imposes a new regulatory regime that likely will frustrate the safe and
efficient movement of these materials. The proposed legislation does
not adequately distinguish the risks presented by stationary chemical
storage and production facilities from the risks inherent in the
transportation of hazardous materials.
Managing the Risks from Mobile Sources
The proposed legislation does not adequately distinguish the risks
from hazardous materials storage and production from the risks of
transporting such materials. For example, while the creation of buffer
zones around chemical storage and production facilities may be an
acceptable way to reduce ancillary damage that flows from the
accidental or criminal release of substances of concern, such a
requirement is completely unworkable as applied to the transportation
of hazardous materials. It is virtually impossible to transport
hazardous materials over the road while maintaining a buffer zone
around those materials. S. 1602 should be rewritten to make clear that
the buffer zone requirement, if implemented, applies only to stationary
sources. We also note that buffer zones may be problematic for a large
number of trucking terminals that are storing petroleum products. Many
of these terminals are located in developed areas, where the additional
real estate required to create a buffer zone simply is not available.
RSPA Must be Part of the Regulatory Process
The Research and Special Programs Administration (RSPA) is the
agency within the Department of Transportation that has jurisdiction
over the transportation of hazardous materials. RSPA's regulations
already address the risks of accidental releases from the
transportation of hazardous materials, establishing among other things,
driver training requirements, container requirements, labeling
requirements, and incident reporting procedures. Rather than assigning
primary responsibility to RSPA for mandating regulations to address the
perceived additional risks from criminal releases of hazardous
materials, S. 1602, excludes RSPA from the process and instead vests
the Environmental Protection Agency with the responsibility for
controlling these risks. The EPA, however, does not have the expertise
to address the risks inherent in the transportation of hazardous
materials and may promulgate regulations that frustrate the efficient
movement of such materials in commerce. On the other hand, RSPA has
expertise in the environmental risks associated with accidental
releases, and also has the expertise in regulating the transportation
of hazardous materials. Accordingly, ATA believes that RSPA should
assume the lead role in promulgating regulations applicable to
preventing the criminal release of substances of concern while in
transportation.
The proposed legislation also requires the lead regulatory agency
to consult with local regulators responsible for responding to
accidental releases. While this requirement is appropriate for
addressing the risks from stationary sources located within the local
jurisdiction it is inappropriate for mobile sources and likely will
lead to a patchwork quilt of regulations that frustrate the efficient
transportation of hazardous materials.
Global Harmonization
Congress has repeatedly recognized that the harmonization of
regulations relating to the transportation of hazardous materials is
necessary to ensure the safe and efficient transportation of such
materials. S. 1602 has the potential to compromise the global
harmonization of the hazardous materials transportation requirements,
resulting in increased costs, increased transfer of such materials and
the increased potential for accidental releases. Each time hazardous
materials are transferred, loaded or unloaded, there is an increased
potential for an accidental release. Harmonization of the hazardous
materials transportation regulations reduces the number of transfers
between facilities, resulting in a corresponding reduction in the risk
of an accidental release.
Cost-Benefit Analysis
The proposed legislation has the potential to significantly
increase the costs of storing and transporting certain hazardous
materials. While additional regulatory requirements and the
corresponding increase in the costs of transporting hazardous materials
may be an acceptable tradeoff for increased assurance that these
materials will not be the subject of a criminal release, the proposed
legislation contains no limitation on EPA's authority to require
expensive regulatory controls, even in the face of only a marginal
decrease in the risk of a release. For this reason, we believe that the
legislation should be modified to require the implementing agency to
perform a cost-benefit analysis to ensure that the costs of additional
regulatory requirements will produce a tangible benefit, namely the
elimination or substantial reduction in the likelihood of a release to
the environment.
Recordkeeping
S. 1602 authorizes the Administrator to require any person that may
have information relating to a potential accidental or criminal release
to maintain records and potentially report such information. This
requirement as applied to the transportation of hazardous materials is
superfluous, as the hazardous materials regulations already require
incident reporting. The requirement also is potentially duplicative of
EPA's regulations issued under the Emergency Planning and Community
Right-to-Know Act. Moreover, there is no guidance provided as to the
meaning of a ``potential accidental release.''
Establishment of a General Duty Clause
One of the most troubling aspects of the proposed legislation is
its creation of a general duty clause similar to that contained in the
Occupational Safety and Health Act. This provision could make trucking
companies liable for an accidental or criminal release, even if they
have complied with all of the applicable regulations. This type of
provision is unfair as applied to trucking companies. Trucking
companies are not security experts. They should be permitted to rely on
compliance with the comprehensive set of hazardous materials
regulations to reduce the risk of a release of such materials to the
environment and not have potential liability in the event of an
accidental or criminal release.
V. CONCLUSION
Mr. Chairman, ATA members understand they are entrusted with the
secure transportation of goods that keep America moving forward. Law
enforcement has frequently been a strong ally in ATA's longstanding
efforts to ensure the security of cargo on America's highways and
across our international borders. We look forward to continued
cooperation with those authorities charged with securing our nation
against future terrorist threats. ATA understands the role trucking
must play to ensure our national security in this newly changed
landscape. The trucking industry asks that Congress ensure that new
legislative initiatives distinguish between the risks of accidental or
criminal releases from stationary sources and the risks from potential
releases from mobile sources. Legislation that is properly tailored to
address risks from mobile sources will allow the trucking industry to
better fulfill its role to safely and securely transport our nation's
freight. Broad legislation that does not distinguish between the
inherent risks from mobile and stationary sources likely will
complicate the safe and efficient movement of hazardous materials. I am
pleased that this subcommittee and the full Commerce Committee have
expressed strong interest in advancing our industry's security
proposals. As we have in the past, ATA will continue to work to enhance
security in the trucking industry.
Thank you for the opportunity to share our views with you.
__________
Statement of Everett Zillinger, Director, Government Relations,
The Fertilizer Institute
On behalf of its membership, The Fertilizer Institute submits this
statement and comments of concern regarding S. 1602, the Chemical
Security Act of 2001, which is pending before the Senate Environment
and Public Works Committee.
ABOUT THE FERTILIZER INSTITUTE
The Fertilizer Institute (TFI) represents by voluntary membership
more than 90 percent of the U.S. fertilizer industry. Producers,
manufacturers, retailers, trading firms and equipment manufacturers,
which comprise its membership, are served by a full time Washington,
DC. staff in various legislative, educational and technical areas as
well as with information and public relations programs. Together, TFI
members produce and distribute approximately 22.0 million tons per year
of commercial fertilizers to farmers. The North American fertilizer
industry has developed the production facilities and infrastructure
necessary to deliver the types and quantities of fertilizer products to
farmers within the narrow timeframes of the crop planting and growing
seasons.
WHAT IS FERTILIZER?
Fertilizer is simply, food for plants. Just like the human body
needs vitamins and minerals, plants need nutrients in order to grow.
Also like humans and animals, plants need adequate water, sufficient
food, and protection from diseases and pests to be healthy. To grow and
reproduce, plants need large amounts of three basic nutrients-nitrogen,
phosphorous, and potassium.
Nitrogen, for example, is part of every plant's proteins and is a
component of DNA and RNA, the genetic ``blueprints'' of life itself.
Taken up in larger amounts than other nutrients, nitrogen makes plants
green and is usually most responsible for increasing yields. Phosphate
helps plants use water efficiently, promotes root growth, and improves
the quality of grains. Potassium, commonly called potash, is important
because it is necessary for photosynthesis, which is the production,
transportation and accumulation of sugars in the plant. Potash makes
plants hardy and helps them to withstand the stress of drought and
helps the plant fight of disease.
Today's commercial fertilizer industry was founded on the
revolutionary scientific discovery in the last part of the 18th century
that chemical elements play a direct role in plant nutrition. This
initial concept opened the way for industrial scale manufacturing of
fertilizers of all types in the 19th century. Following World War II,
new technologies allowed for the rapid expansion of fertilizer
production. Coupled with growing food demand and the development of
higher-yielding crop varieties, fertilizer helped fuel the Green
Revolution.
FERTILIZERS PROTECT THE ENVIRONMENT
The efficient use of fertilizer also helps to conserve our natural
environment. With fertilizers and modern high-yield farming practices,
more food is produced per acre each year so land may be conserved.
Fertilizers used properly, works to maximize yields on farmland already
in production while helping to prevent the widespread loss of forests,
rainforests, and environmentally important habitat. Use of marginal
land, and habitat for ``slash and burn'' low-yield farming represents a
major global environmental threat.
FERTILIZERS IMPROVE OUR WAY OF LIFE
Fertilizers enhance many consumer products. For example, thanks to
fertilizers, fruits and vegetables are available in affordable
abundance year around in every state of the nation. Nitrogen is used to
make nitric acid, a major component in batteries, tires, lacquers and
paints. Many soda drinks contain phosphoric acid, derived from
phosphate, and many bath soaps and detergents contain potash.
Fertilizers are also at work in industry. Aside from their benefits
to agriculture, fertilizer components are central to such industrial
processes as semiconductor chip making, resin manufacture, cattle feed
production, metal finishing, the manufacture of detergents, fiberglass
insulation and even rocket fuel needed for our space, satellite and
communications industries.
FERTILIZERS FEED THE WORLD
Finally, and most importantly, fertilizers are critically necessary
in order to feed our world's growing population. As the world's
population continues to climb toward an estimated 8.5 billion in the
year 2040, experts estimate that food production must increase more
than 2 percent annually just to maintain current diets. For example,
commercial fertilizer nitrogen (N) accounts for approximately half of
all N reaching global croplands today and supplies food needs for at
least 40 percent of the population. Due to global population increase
and the expansion of global prosperity and diet quality, it is
estimated that at least 60 percent of humanity will eventually owe its
nutritional survival to N fertilizer. (Smil, V. 2001. Enriching the
Earth. MIT Press, Cambridge Mass.)
FERTILIZERS CONTRIBUTE TO THE AMERICAN WAY OF LIFE
The United States and many other developed nations are blessed with
safe, abundant and affordable food. Thanks to fertilizers, the
productivity of U.S. farmers and livestock producers and an efficient
agribusiness processing, storage and transportation system--Americans
spend less than 8 percent of their disposable income on food. This
leaves 92 percent of American's disposable income for travel,
entertainment, spacious homes, multiple cars, college tuition or a vast
array of consumer products and activities that contribute to our way of
life. Today, the abundance of food we enjoy is just one way fertilizers
help enrich the world around us.
FERTILIZERS ARE REGULATED
Commercial fertilizers are extensively regulated in the United
States both at the Federal and state levels. The industry must comply
with Federal laws regarding reporting and emission standards for air
and water quality. The industry must also comply with many other
Federal laws including but not limited to: the Resource Conservation
and Recovery Acts (RCRA), the Clean Air Act (CCA), the Clean Water Act
(CWA), the Safe Drinking Water Act (SDWA), the Coastal Zone Management
Act (CZMA), the Occupational Safety and Health Act (OSHA) and the
Community Right-to-Know Act (EPCRA).
State regulation of fertilizer products is primarily concerned with
consumer protection, labeling, the protection of human health and the
environment, and the proper handling and applications of fertilizers.
RESPONSE TO TERRORISM
TFI members have greatly increased security procedures since
September 11th, and we thank those Federal, state and local agencies
that have worked with our individual facilities to improve our security
programs. TFI and its member companies have worked closely with Federal
agencies such as the Federal Bureau of Investigation (FBI), the Coast
Guard, and the Environmental Protection Agency. In addition, we have
cooperated with numerous state and local agencies, including emergency
response personnel, to heighten security at our industry's
manufacturing sites, storage facilities, transportation infrastructure
and retail outlets.
Our industry also has worked extensively to protect against misuse
of our products, most notably through our voluntary ``Be Aware'' and
``Be Secure'' campaigns created in partnership with the U.S. Federal
Bureau of Alcohol, Tobacco and Firearms (BATF). These important efforts
have proven effective and successful in assisting our industry's retail
sector and local law enforcement to be alert and suspicious people
trying to purchase beneficial fertilizer products for potentially
criminal purposes-and to report any suspicious activity immediately to
the proper authorities. Future security efforts should buildupon these
existing working relationships.
VIEWS ON S. 1602
In light of the already extensive Federal and state regulations
addressing commercial fertilizer products and the industry's proactive
voluntary efforts noted above, TFI submits this statement of comments
regarding the advisability and purpose of S. 1602.
______
Summary of S. 1602, The Chemical Security Act of 2001
On October 31, 2001 Senators Corzine, Jeffords, Boxer and Clinton
introduced S. 1602, The Chemical Security Act of 2001. The legislation
proposes to safeguard facilities where hazardous chemicals are present
by giving EPA and the Justice Department authority to issue
administrative orders or seek court orders requiring facilities to take
immediate steps to improve security. These steps could include
improvements to personnel security, as well as changes in a facility's
physical structure or operations.
Specifically the bill:
<bullet> Requires each owner or operator of a high priority
chemical source to take actions including safer design and maintenance
to prevent, control and minimize potential accidental or criminal
releases;
<bullet> Defines ``safer design and maintenance'' as the use of
inherently safer technology, well-maintained secondary containment,
control or mitigation equipment, making a chemical source highly
resistant to intruders, improving security and employee training
including employee personnel background checks, use of buffer zones
between a chemical source and surrounding populations centers.
<bullet> Defines ``inherently safer technology'' to include input
substitution, catalyst or carrier substitution, process redesign,
product reformulation, procedure simplification and technology
modification;
<bullet> Establish a ``general duty'' requiring each owner or
operator to identify hazards that may result in an accidental or
criminal release. As a result, facilities would have the general duty
to prevent criminal activities for which they had no knowledge or
participation. If operators fail to prevent criminal releases then the
owner or operator is subject to the criminal penalties noted below;
<bullet> Requires EPA and DOJ to consider severity of harm caused
by a chemical's accidental or criminal release and a chemical's
proximity to population centers, potential threat to national security
and critical infrastructure;
<bullet> Requires EPA and DOJ to designate those chemical
manufacturers and transporters most at risk;
<bullet> Defines a chemical source as a stationary source, vessel,
motor vehicle, rolling stock or container;
<bullet> Allows EPA and DOJ to seek relief in district courts to
abate danger or threat to the public health and welfare or the
environment from an accidental or criminal release and issue such
orders as necessary to protect public health or welfare of the
environment;
<bullet> Requires record keeping, reporting and provides EPA or DOJ
the right of entry on any premises of an owner or operator of a
chemical source and copying of any records or information necessary;
<bullet> Provides for civil penalties of up to $25,000 a day and
criminal penalties of no less than $2,500 a day or no more than $25,000
a day, or imprisonment (or both) of an owner or operator of a chemical
source that violates, fails to comply with or knowing violates orders
issued or regulations promulgated as a result of this Act.
Following is a listing of specific concerns regarding S. 1602, and
the effects the legislation could have on the North American fertilizer
industry:
1. Prevention of accidental releases is very different than
prevention of terrorism acts. These should not be viewed as equivalent
activities.
<bullet> Accident prevention involves ensuring equipment
integrity, managing process parameters and emergency planning
and execution. It is a facility-specific process that focuses
on maximizing the routine of efficient, safe chemical
production.
<bullet> Terrorism prevention involves securing
infrastructure, scrutinizing all personnel and materials that
move onsite, and implementing anti-terrorism infrastructure and
programs. It is an extroverted process that focuses on the
unusual, unknown or asymmetrical.
<bullet> While there are areas of overlap, prevention of
accidental releases will not prevent terrorist threats and vice
versa.
2. The bill as proposed creates redundant accidental release
activities.
<bullet> Accidental releases at facilities are already covered
under two existing regulatory frameworks--EPA's Risk Management
Plan and OSHA's Process Safety Management programs.
<bullet> Many of the provisions in this legislation, including
definitions, general duty clauses, and activities are taken
from these existing regulations, making this legislation
redundant to existing laws.
<bullet> DOT's HM223 covers loading, transportation and
unloading of hazardous materials.
<bullet> By definition, a criminal release means that some law
was broken. Therefore, a release caused by a criminal act is
already unlawful. Existing (pre-September 11th) security
measures at most facilities are geared toward minimizing
criminal activity onsite.
3. S. 1602 may have unintended consequences for both industry and
homeland security.
<bullet> The bill is too heavily focused on chemicals rather
than overall security issues. An inflexible law (and subsequent
regulations) makes it hard for individual industries and
facilities to comply because of the narrow definition of
compliance.
<bullet> Some chemicals, such as ammonia, are both an end-
product (i.e., fertilizer) and an intermediate. There are no
substitutes for ammonia and no safer production method than
that currently used. Further, storage of ammonia in large
quantities is necessary because of the unique seasonal demands
of the product.
<bullet> Publishing a list of ``high priority combinations''
in the Federal Register is in itself a terrorist tool and
increases designated facilities' terrorism vulnerability.
<bullet> Many compliance activities would be redundant with
existing RMP and PSM provisions, and will take personnel and
resources away from true security functions.
<bullet> This designation will greatly increase insurance
premiums, increase terrorism exclusions in new policies, and
price industries out of the terrorism insurance market. Given
current state of insurance companies, they may decide to refuse
insurance to anyone on the ``high priority combinations.''
<bullet> Many provisions of this bill do not account for
possible substitution risks. For example, if domestic ammonia
production falls and the demand for imported ammonia rises,
then there would be increased risks associated with large
barges from the Middle East, FSU, Asia, and Central/South
America coming into ports around large metro areas. Likewise,
focusing on production, transportation and storage of smaller
quantities may lower the catastrophic risk, but greatly
increase the overall risk because of the addition of more
storage tanks, more individual transportation units on the
roads and in navigable waters and increases in the number of
small production facilities.
<bullet> There is no data base of ``inherently safer
technologies.'' Nor could it be easily or quickly assembled.
There are no existing criteria for designation of ``inherently
safer technologies.'' Some methodology is also needed to
balance security considerations vs. energy efficiency, quantity
and types of emissions, and other substitution risks. In fact,
most of the manufacturing and handling processes now in place
were designed with process safety in mind.
<bullet> The general duty clause combined with liability
provisions creates both ethical questions and substitution
risks. Industry has greatly increased its security since
September 11th and continues to urge Federal and state agencies
to work with our individual facilities to prevent terrorist
activities. The Federal Government should adopt a compliance
assistance model for future anti-terrorism initiatives.
<bullet> Most facilities have greatly increased security and
are working with applicable Federal, state and local agencies.
Future security efforts should buildupon these existing working
relationships.
<bullet> Successful anti-terrorist programs must involve joint
agency-industry cooperation and coordination. Because security
is facility and chemical specific, increased security is best
achieved by guidance, protocols and joint programs in which
facilities work with applicable and relevant Federal agencies
in a cooperative fashion.
<bullet> Facilities are most interested in speaking with those
Federal agencies that can provide them with specific
recommendations for surveillance, security and anti-terrorism
measures that can be implemented at their facilities.
<bullet> No facility or infrastructure system can be certified
as terrorism-proof; that is, there is no zero-risk scenario for
industry. We do urge Federal agencies to develop a means of
prioritizing of infrastructure based on real risks. Some
assessment of costs, benefits and substitution risks should
also be considered.
<bullet> We are interested in a mechanism for secure exchange
of information, data and security suggestions among Federal
agencies and industry. Facilities would like to receive
detailed information on specific or general threats. We would
also like feedback when suspicious activity or potential
incidents are reported to the proper authorities. We would
prefer to avoid situations in which Federal agencies use either
``right of entry'' or ``abatement actions'' without previous
consultation. These should be the last action taken in an anti-
terrorism effort, not the only tool in the toolbox.
<bullet> Some decision will need to be made on balancing
right-to-know considerations with security interests. Making
all information collected during a ``right of entry'' or other
visit available on the Internet is in itself a potential
terrorist tool and is in itself a major vulnerability. We feel
that access to facility-specific information should be taken
out of the public domain and limits should be placed on FOIA
requests for these data.
FOCUSING FUTURE INDUSTRY/GOVERNMENT PARTNERSHIPS
The Federal Government should adopt a compliance assistance model
for future anti-terrorism initiatives. Successful anti-terrorist
programs must involve joint agency-industry cooperation and
coordination. Because security is facility and chemical specific,
increased security is best achieved by guidance, protocols and joint
programs in which facilities work with applicable and relevant Federal
agencies in a cooperative fashion.
TFI members are most interested in speaking with those Federal
agencies that can provide them with specific recommendations for
surveillance, security and anti-terrorism measures that can be
implemented at their facilities. We are interested in a mechanism for
secure exchange of information, data and security suggestions among
Federal agencies and industry. Facilities would like to receive
detailed information on specific or general threats. We would also like
feedback when suspicious activity or potential incidents are reported
to the proper authorities.
Some decision will need to be made on balancing right-to-know
considerations with security interests. Making all information
collected during a ``right of entry'' or other visit available on the
Internet is in itself a terrorist tool and increases designated
facilities' terrorism vulnerability. We feel that access to facility-
specific information should be taken out of the public domain and
limits should be placed on FOIA requests for these data.
CONCLUSION
For the above reasons, TFI and its membership oppose S. 1602 as
written in its current form. Our members urge the Senate to build on
the existing cooperative relationships between industry and agencies
that have formed since the September attacks.
TFI looks forward to working with the authors, cosponsors, members
of the committee and U.S. Senate in addressing these and other
important chemical security concerns in a more cooperative, realistic
and effective approach to keeping our nation's vital chemical products,
including fertilizer, secure.
TFI appreciates the opportunity to make this statement.
__________
Statement of Rick Hind, Legislative Director, Greenpeace Toxic Campaign
IS THE U.S. CHEMICAL INDUSTRY OUR WEAKEST LINK AGAINST TERROR ATTACKS?
The magnitude of a terrorist attack on just one major U.S. chemical
facility could easily exceed the loss of life suffered on September 11
in New York City. We are overdue in addressing the inherent
vulnerability of this industry to terrorists and accidents. Recent
events underscore the immediacy of this threat including the two
nation-wide security alerts by the FBI and a 72-hour moratorium by the
railroad industry on carrying chemicals such as chlorine.
Even President Bush was at risk. On September 11, when Air Force
One landed in Louisiana, he joined more than a million Louisiana
residents who live in a region that is blanketed by chemical kill zones
(www.greenpeaceusa.org). These kill zones surround more than 100 petro-
chemical facilities located along the Mississippi River from Baton
Rouge to New Orleans. A regional investigation by the Agency for Toxic
Substances and Disease Registry found security against terrorists at
selected U.S. chemical facilities to be ``fair to poor.''
Thankfully, there has never been a terrorist attack on a U.S.
chemical facility. But there have been more than 13,000 accidents
involving more than 10,000 pounds of hazardous materials since 1987,
with smaller incidents occurring daily. A December 2000 study by the
Argonne National Laboratory for the Department of Transportation
concluded, ``the failure to identify and evaluate opportunities to
reduce the risks from these types of relatively rare accidents could
ultimately lead to thousands of fatalities, injuries and evacuations.''
Senator Corzine's bill (S. 1602) would finally begin the urgently
needed process of addressing this crisis. It not only requires beefed
up security it also puts prevention first, encouraging industry to
eliminate catastrophic accidents and attacks by substituting inherently
safer technologies. We applaud the Senator and his colleagues (Madame
Chairwoman Boxer and Senator Clinton) for introducing and cosponsoring
this important legislation.
More than 15,000 facilities across the U.S. are required to report
their worst case accident scenarios to the EPA. These reports contain
estimates on the distance that a deadly toxic chemical cloud could
extend over neighboring populations. Unfortunately, pressure has
recently been put on the EPA to deny public access to this basic
information. Denying access to these reports will only accomplish one
thing: it will leave the public without vital information needed to
protect themselves in the event of an attack or an accident. Hiding
basic hazards information from the public undermines the credibility of
government and industry and will lead to dedicated terrorists being the
only non-governmental people outside industry to have this information.
After using terrorism as an argument to hide potential chemical
disasters, the U.S. chemical industry has been negligent in preventing
accident and terrorist threats posed by chemical facilities, making,
using or storing ultra-hazardous chemicals such as chlorine. Earlier
this year Greenpeace exposed a significant example of this failure by
publishing photographic evidence from inside a Dow Chemical plant in
Plaquemine, Louisiana. The photos are also available on our web site
(www.greenpeaceusa.org) show the internal control panels and operating
instructions of an unguarded pump house that releases 550 million
gallons of wastewater into the Mississippi River every day.
While investigating Dow's Clean Water Act violations, Greenpeace
activists entered this facility undetected. There were no guards at the
perimeter, no security cameras and no burglar alarms. In fact, the door
to the building was unlocked. All of these are rudimentary security
measures that the EPA recommended in their February 2000 security
alert. The EPA also recommended ``design'' changes in plants that even
fewer facilities have implemented.
In Washington, DC this month, Blue Plains, the local sewage
treatment plant announced (Nov. 9th) that they were now 1 year ahead of
schedule in ending the use of the highly toxic chlorine gas. The reason
given for this accelerated action was the possibility of a terrorist
attack. The plant is only four miles from the U.S. Capitol. According
to the National Transportation Safety Board, the Coast Guard and the
chlorine industry, a major chlorine gas leak can travel two miles in
only 10 minutes and remain acutely toxic for a distance of
approximately 20 miles.
Greenpeace recommends a set of short and long-term steps to truly
eliminate these unnecessary and preventable disasters. In the short-
term these include the immediate adoption of S. 1602 by Congress. In
addition, an emergency program is needed to ensure there is a rapid
phaseout of shipping large quantities of these chemicals along with
reductions in large quantity storage to levels that eliminate current
threats posed to local communities. Other short-term actions should
include the decentralized production of these substances to eliminate
pressure for large container transport and storage.
In the long-term, virtually all of the ultra-hazardous chemicals
used in the U.S. have safer substitutes and conversion to them should
begin as soon as possible. To end toxic chemical pollution in the Great
Lakes the International Joint Commission (U.S./Canada) recommended in
1992 that industry and government begin a phaseout of the industrial
uses of chlorine. Had this recommendation been initiated in 1992, we
would have had a model program for eliminating the threats now posed by
these inherently dangerous facilities.
America needs many systems to function, such as our besieged
airline industry and the postal system. But we do not need to continue
producing obsolete and ultra-hazardous chemicals that pose enormous
risks to the public-with or without the threat of terrorist attack.
______
Greenpeace,
Washington, DC., August 10, 2001.
Secretary Norman Mineta,
Department of Transportation,
Washington, DC.
Dear Secretary Mineta: The fire in Baltimore's train tunnel,
adjacent to Camden Yards, was a wake up call to the nation. Those who
said it could never happen now must resort to claiming it will not
happen again. To prevent a more serious chemical accident than the July
18-23 Baltimore tunnel fire aboard the CSX freight train, Greenpeace
proposes that the Department of Transportation impose an immediate ban
on the shipping of hazardous materials through highly populated
communities. As you know, the transport of hazardous materials through
either of Baltimore's two highway tunnels is punishable by a year in
jail.
The heroic deeds of Baltimore and other emergency response
personnel not withstanding, this incident could easily have been
catastrophic. According to a recent report done for the Department of
Transportation (DOT) by the Argonne National Laboratory, ``the
potential exists for very serious accidents involving large numbers of
injuries and fatalities, especially for TIH [toxic-by-inhalation]
materials.''
The report further cautions:
``While review of the statistics alone might suggest that accidents
associated with the transportation of hazardous materials should not be
a major concern, these accidents can have enormous impacts when they
occur. As a result, the failure to identify and evaluate opportunities
to reduce the risks from these types of relatively rare accidents could
ultimately lead to thousands of fatalities, injuries, and
evacuations.''
As one of the leaders in Congress who led efforts to enact the
Federal right-to-know law in 1986, you know that legislation only
became an imperative after the worst industrial accident in history
occurred at the Union Carbide facility in Bhopal, India in December,
1984. A leak of methyl isocyanate (MIC) killed approximately 4,000
people and injured hundreds of thousands.
The Argonne report estimates that there are 100,000 shipments a
year of equally toxic chemicals such as chlorine. In fact, Argonne
lists chlorine and hydrochloric acid (HCL) among the top 10 materials
responsible for major injuries and evacuations and emphasizes the need
to focus on these TIH materials.
Enclosed is a map of a hypothetical release of 17,000 gallons of
chlorine from a railroad tank care accident whose toxic fumes could
reach 20 miles. According to the National Institute for Occupational
Safety and Health, chlorine gas concentrations of 10 parts per million
(PPM) are classified as ``immediately dangerous to life or health''
(IDHL). And according to modeling by the National Transportation Safety
Board and U.S. Coast Guard, a chlorine gas cloud could travel 2 miles
in just 10.5 minutes at concentrations of 100 PPM. The chemical
industry's Chlorine Institute also estimates that a chlorine cloud
could travel 20.5 miles at concentrations above 10 PPM.--Baltimore is 9
miles wide and 10.5 miles long.
Clearly, this kind of catastrophe is unacceptable. It is also
completely preventable. By prohibiting the shipment of these materials
through populated areas, you dramatically reduce the numbers of exposed
people. However, to eliminate these risks for all communities, the
Federal Government should also convene a multi-agency task force to
address these hazards. A first step would be to implement the
recommendations of the International Joint Commission which has
repeatedly advised the U.S. and Canada to ``sunset the use of chlorine
and chlorine-containing compounds [such as HCL] as industrial
feedstocks.''
Also enclosed is a copy of our letter to the EPA regarding their
agreement to conduct dioxin sampling from the Baltimore train tunnel
fire site. Because the fire aboard the CSX train involved thousands of
gallons of leaking HCL, the conditions may have been ideal for the
formation and release of dioxins. Dioxins are by-products of chlorine
compounds exposed to fire and are potent carcinogens. It is important
to determine if emergency response personnel, the community or biota in
the harbor were exposed to dioxin as well.
Thank you for your immediate attention to this matter.
Sincerely,
Rick Hind,
Legislative Director.
______
Greenpeace,
Washington, DC., August 17, 2001.
Ms. Christine Todd Whitman,
EPA Administrator,
U.S. Environmental Protection Agency,
Washington, DC.
Dear Ms. Whitman: As you may know, a number of serious incidents
involving hazardous materials and toxic chemicals have renewed concerns
that a chemical accident on the scale of the 1984 Bhopal, India
disaster could occur in a large populated area in the U.S., such as
Philadelphia or Baltimore. These and several other U.S. cities are home
to high concentrations of chemical facilities and are also heavily
traveled by trains, trucks and ships carrying ultra-hazardous cargo,
putting densely populated communities and business centers at risk.
According to a recent report done for the Department of
Transportation (DOT) by the Argonne National Laboratory, the risks in
transporting hazardous materials are potentially catastrophic. The
report cautions:
``While review of the statistics alone might suggest that accidents
associated with the transportation of hazardous materials should not be
a major concern, these accidents can have enormous impacts when they
occur. As a result, the failure to identify and evaluate opportunities
to reduce the risks from these types of relatively rare accidents could
ultimately lead to thousands of fatalities, injuries, and
evacuations.''
The enclosed map illustrates a worst case scenario submitted to the
EPA by Occidental Chemical for a chlorine tank failure of 400,000
pounds at their facility in New Castle, Delaware. They estimate that
dangerous chlorine fumes could spread 20 miles from their plant, an
area populated by 585,000 people. In addition, the map shows a similar
scenario involving a train accident involving a 90 ton chlorine tank
car with toxic chlorine also reaching 20 miles. These two scenarios
blanket populated areas in Delaware, Pennsylvania, Maryland and New
Jersey where millions of people live and work.
The DOT report estimates that there are 100,000 shipments a year of
chlorine alone. In fact, they list chlorine and hydrochloric acid (HCL)
among the top 10 materials responsible for major injuries and
evacuations. They also emphasize the need to focus on these highly
toxic-by-inhalation (TIH) substances.
According to the National Institute for Occupational Safety and
Health, chlorine gas concentrations of 10 parts per million (PPM) are
classified as ``immediately dangerous to life or health'' (IDHL).
According to the National Transportation Safety Board and U.S. Coast
Guard, a chlorine gas cloud could travel 2 miles in just 10.5 minutes
at concentrations of 100 PPM.
Two recent incidents in the Mid-Atlantic region have served as a
sobering wake up call. On July 17 the catastrophic failure of a storage
tank containing spent sulfuric acid at Motiva Enterprise's Delaware
City, DE refinery resulted in eight injuries and left one person
missing. On July 18 a CSX train derailment and tunnel fire paralyzed
Baltimore for 5 days while hydrochloric acid and other toxic chemicals
burned off and leaked into the Baltimore harbor.
Even without accidents, chemical facilities in this region pose
serious hazards to human health and the environment:
Occidental's Delaware chlorine plant uses an obsolete mercury-cell
chlor-alkali process to make chlorine that threatens the region with
contamination from fugitive emissions. It is one of 11 remaining
mercury-cell plants in the U.S., representing approximately 14 percent
of chlorine manufacturers. The others use mercury-free processes such
as diaphragm and membrane processes. According to the Agency for Toxic
Substances and Disease Registry, the largest commercial use of mercury
in the U.S. is in mercury-cell chlorine plants which account for 35
percent of all domestic consumption of mercury.
The EPA is currently engaged in a partnership with Occidental and
the other chlorine industry users of mercury that will perpetuate their
use of 80 tons of mercury a year. One EPA official admitted that this
program is a ``best of the worst'' project. This kind of sweet-heart
deal further calls into question the credibility of the Bush
Administration's proposal to delegate environmental enforcement to the
states.--``Enforcing'' unnecessary mercury use and ongoing chlorine
risks can hardly be called protecting the environment.
In contrast, European nations who are members of the Paris
Convention for the Prevention of Marine Pollution from Land-Based
Sources (PARCOM) agreed in 1990 to phaseout all mercury-cell chlor-
alkali plants by 2010.
Other chlorine users in this region include Dupont, which recently
reported that it's Edge Moor, Delaware plant was responsible for
500,000 tons of dioxin-contaminated waste. Dupont's titanium dioxide
plant uses a chlorine process which results in the generation of
dioxins and furans as waste by-products. Dioxins and furans are
chlorinated by-products of the use of chlorine in manufacturing and
disposal, such as waste incineration.
To prevent the most serious chemical accidents Greenpeace proposes
a three stage process:
(1) In an August 10 letter to the Department of Transportation we
proposed an immediate ban on the shipping of hazardous materials
through highly populated communities. For example, the transport of
hazardous materials by truck through either of Baltimore's two highway
tunnels is punishable by a year in jail but trains routinely carry
hazardous materials through the center of Baltimore. As an interim
measure, makers of TIH substances should also be urged to make batches
of these substances for local-use-only to minimize any shipping of
these materials.
(2) To eliminate these risks for all communities, we recommend that
a multi-agency task force be convened to prioritize the most hazardous
chemicals first. The next step in this process would be to implement
the recommendations of the International Joint Commission which has
repeatedly advised the United States and Canada to ``sunset the use of
chlorine and chlorine-containing compounds as industrial feedstocks.''
Likewise, the global treaty you signed in Stockholm this May
requires the phaseout of the worst persistent organic pollutants
(POPs), including the elimination of dioxin. President Bush has pledged
to seek Senate ratification of the POPs treaty this summer but the
elimination of dioxin will also require a long-term commitment to
phaseout chlorine. The major industrial uses of chlorine are PVC
plastics, solvents and bleaching paper. All of these uses have widely
available safer alternatives such as vegetable-based plastics, water-
based solvents and oxygen-based bleaching.
(3) In the meantime, the chlorine industry should at a minimum be
required to eliminate the use of all their remaining mercury-cell
processes by 2010 as the European PARCOM countries have agreed to do.
The worst industrial accident in history occurred at the Union
Carbide facility in Bhopal, India in December, 1984, when a leak of
methyl isocyanate (MIC) killed approximately 4,000 people and injured
hundreds of thousands. We in the U.S. are fortunate that an accident of
this magnitude has not yet occurred here. However, if and when a
similar disaster occurs, you will be asked why the continued
manufacture and use of ultra-toxic chemicals was allowed, especially
when safer alternatives were available.
Thank you for your immediate attention to this matter.
Sincerely,
Rick Hind,
Legislative Director.
Statement of the National Association of Chemical Distributors
BACKGROUND ON NACD
The National Association of Chemical Distributors (NACD) is the
leading association of chemical distribution companies in the United
States. Chemical distributor companies purchase and take title to
chemical products from manufacturers. Member companies process,
formulate, blend, re-package, warehouse, transport, and market these
chemical products. These companies collectively employ more than 20,000
workers and serve a customer base of approximately 750,000. The typical
NACD member company, nonetheless, is a small enterprise that maintains
lean operations in a highly competitive market. Most facilities
operated by NACD member companies employ approximately 15-25 workers
each. NACD's approximately 330 member companies have a vital interest
in transporting hazardous materials safely.
RESPONSIBLE DISTRIBUTION PROCESSS (RDP)
As a condition of membership in NACD, chemical distribution
companies are required to adhere to and be verified on the Codes of
Management Practice of the Responsible Distribution Processs (RDP). RDP
is a member-driven initiative, developed by NACD members in 1991, which
promotes continuous improvement in environmental, health, and safety
performance of all member companies. Member companies' implementation
of RDP includes a commitment to comply with relevant environmental,
health, and safety regulations as they apply to company operations. The
senior executive in each NACD member company has formally accepted
these principles.
Members of NACD are required, as a condition of membership, to
undergo independent third-party verification. RDP requires two stages
of third-party verification of a member's written policies and
procedures. Continuous improvement in environmental, health, and safety
performance is taken very seriously. In fact, NACD has terminated 12
companies for failing to comply with RDP. Many of these companies,
following their termination, realized the value of RDP to their
business, and came into compliance with RDP, to become eligible for re-
admission as an NACD member.
RDP has gained national and international recognition and
visibility. Insurance companies, for example, are recognizing the
strength of the RDP program. One major, national carrier offers a
reduction in its premium for NACD members, based on the member
company's compliance with RDP. In addition, this carrier provides a
premium credit equal to the full cost of an On-Site MSV because its
thoroughness replaces the need for the insurance carrier to send a team
onsite.
In addition, one Federal agency has recently recognized RDP as a
risk management compliance tool. The U.S. Environmental Protection
Agency (EPA), in its Risk Management Program (RMP) Guidance for
Chemical Distributors, states that companies that adhere to RDP may
have taken the necessary steps to comply with some RMP requirements.
RDP Codes similar to EPA's RMP accident prevention requirements include
Risk Management, Emergency Response and Public Preparedness, Compliance
Review and Training, Job Procedures and Training, Handling and Storage,
Corrective and Preventive Actions, and Product Stewardship. A side-by-
side comparison between RMP accident prevention and emergency response
requirements and similar RDP Codes are published in the EPA guidance.
NACD's RDP Code of Management Practice, Adjunct Policies, and
Implementation Guide details each RDP Code.
CURRENT REGULATORY REQUIREMENTS OF NACD MEMBERS
In addition to their commitment and responsibilities under RDP,
NACD members are subject to a myriad of Federal regulations (EPA, DOT,
DOL, DEA, BATF). For example, many members must comply with the U.S.
Environmental Protection Agency's (EPA) Risk Management Program (RMP),
a mandatory program to implement risk management and accident
prevention methodologies. In addition, some members are required to
comply with the Occupational Safety and Health Administration's (OSHA)
Process Safety Management (PSM) Standard, another comprehensive
regulation to prevent workplace accidents. Importantly, there are
numerous Department of Transportation requirements under the Hazardous
Materials Regulations (HMR) that NACD members must follow because
transportation of hazardous materials is a major part of their
business--chemical distribution. S. 1602 would unnecessarily duplicate
these laws and regulations.
S. 1602, THE CHEMICAL SECURITY ACT
Like Senator Corzine and the other sponsors of S. 1602, we are
deeply concerned about the safety and security of our products,
employees, friends and neighbors. Clearly, NACD members have a vested
interest in ensuring the safe handling and distribution of the
thousands of products they sell to hundreds of thousands of customers.
Unfortunately, S. 1602 will not help them reach this goal any more
effectively then they do today.
NACD companies were concerned about security and safety before the
tragic attacks of September 11, 2001; now it is a primary focus. While
we cannot at this time disclose the specific steps each member has
taken to enhance its security, NACD members have made security a top
priority by hardening their facilities and vehicles against potential
attacks. In fact, in conjunction with other industry partners,
including the American Chemistry Council (ACC), NACD has helped develop
industry site and transportation security guidelines. In addition,
these same industry partners have met on a weekly basis at the CEO
level with representatives from the FBI, DOT, EPA (including directly
with Administrator Whitman), Commerce and other Federal departments
agencies to facilitate information exchange, transfer best practices
and focus on security concerns. NACD has diligently distributed
security information from Federal agencies to our members on a weekly
and sometimes daily basis. NACD has brought in external security
consultants to its regional and annual meetings to help educate members
on how to enhance their site and transportation security.
LEGISLATION IS PREMATURE
This legislation is unnecessary and premature at best. S. 1602
attempts to remedy an alleged security problem before it has been
determined if and where vulnerabilities may exist. The Department of
Justice through Sandia National Laboratories is currently studying
chemical site security. Further studies of the security of hazardous
materials transportation are being contemplated. It makes more sense to
make these studies a top priority and then determine what course of
action to take rather than to rush in and regulate with limited
information.
There can be a steep price to pay for acting too hastily. As we saw
with the Risk Management Program regulations, NACD and many other
industry members strenuously argued for years that making that
information broadly available would unnecessarily expose chemical
companies to possible terrorist attacks. Many members of this committee
dismissed these concerns and insisted that worst-case scenarios be
posted on the Internet unrestricted. Fortunately, EPA and the DOJ came
to the realization that some protection was needed, and post September
11, EPA has since pulled much of this information off the Internet.
Unfortunately, the authors of S. 1602 seemed to have not learned this
lesson. Section 6 of the legislation provides for broad access to
information unless it can be demonstrated that release of the
information should not be disclosed for reasons of national security.
This type of information is undoubtedly in the interests of national
security and the burden of proof should be reversed: those seeking the
information should demonstrate an overriding need for it.
TRANSPORTATION ISSUES
The authors of this legislation severely underestimate the impact
it could have on the economy of our industry and staggering American
economy. For example, in Section 3 the ``buffer zones'' between
chemical sources and surrounding populations defy explanation and are
not practical in the real world. NACD members ship over 30 billion
pounds of product annually, how are they to continue these necessary
deliveries? It is not clear how these deliveries can be buffered from
public transportation routes already used without devastating
consequences for our members and the broader economy. DOT has studied
this issue extensively and controls risk through routing standards,
packaging, material segregation and separation and numerous other
requirements. It should be noted that there are over one million
shipments of hazardous materials per day, yet only an average of 11
deaths per year can be attributed to hazardous materials releases. EPA
involvement in the process is redundant and unlikely to produce any
security benefits.
Transportation is a primary area where the legislation overreaches
and overlaps existing Federal regulation. The Hazardous Materials
Transportation Act (HMTA) already heavily regulates chemical
distribution, including loading, unloading, storage, intrastate,
interstate and international commerce. However, S. 1602 inserts EPA
into this process by requiring it to assess the vulnerability of
chemical transportation and address those concerns. That is in direct
conflict with DOT's preexisting jurisdiction. How will this
relationship work?
Further, S. 1602, designates ``substances of concern'' that overlap
and conflict with the pre-existing definition of ``hazardous
materials'' already in regulation and practice. Confusion over these
definitions will place unnecessary hardship on NACD members without
enhancing security. In fact, the legislation is overly broad,
unnecessarily covering a wide range of chemicals. Many, if not most of
them are not security risks. That is another reason why it is better to
wait for the studies currently underway to determine those products and
facilities that pose legitimate concerns and then act accordingly. This
approach avoids the needless and wasteful use of limited Federal and
industry resources.
In addition, DOT already shares jurisdiction with DOL over the
training of hazardous materials employees. S. 1602 inserts EPA into
this area, needlessly complicating employee training with no
appreciable security benefit. Further, DOT already has jurisdiction for
background checks for certain persons involved in aviation or drivers
of hazardous materials. Does S. 1602 supercede these existing laws and
regulations, including the recently passed anti-terrorism legislation
(USA Patriot Act, Public Law No: 107-56)?
The HMTA already carries civil and criminal penalties for
violations that are stronger than those proposed in Section 7 of S.
1602. In its recently submitted re-authorization proposal to Congress,
DOT proposes to expand its enforcement authority. S. 1602 moves in the
opposite direction on this issue and further reveals the ignorance of
pre-existing regulations covering many of these areas of concern.
S. 1602 could also threaten DOT's preemption authority, which is a
primary factor in the industry's sterling safety record. Safety and
security depend upon uniform standards so that the millions of
hazardous materials shipments can be prepared and transported by
employees who know what the requirements for these products are. This
uniformity is equally important to local emergency response personnel.
This approach contrasts starkly with the general statutory authorities
administered by EPA which set minimum Federal standards and allow
states to exceed them. Under the HMTA, Congress has given DOT unique
authority and S. 1602 should not alter it.
OTHER ISSUES
Further, it is not at all clear how the Corzine legislation fits
with the authority of the newly formed Office of Homeland Security,
headed by Governor Ridge. The last thing the legislation ought to do is
to duplicate, or worse yet, conflict with what another agency is doing
to increase security.
NACD is particularly troubled by the General Duty Clause in S.
1602. Employers already have a general duty to their employees and
contractors under OSHA regulation to maintain safe workplaces and under
EPA regulation to identify workplace hazards, design and maintain safe
facilities, and minimize the consequences of an accidental release.
General Duty clauses are usually vague and leave a regulatory authority
and/or the courts much latitude to determine an employer's guilt or
innocence. Establishing yet another clause will do little to add more
protection for the public or add more effective measures against
terrorism.
Finally, and perhaps most notably, NACD is not aware that EPA or
DOJ or any other Federal agency has asked for the authority resembling
this legislation in any form.
CONCLUSION
NACD shares the noble of goal of the Corzine legislation. However,
that goal is more likely to be reached through partnership with
industry, not dictation to it. With numerous Federal regulations
applicable to the chemical distribution industry, as well as NACD
members' adherence to the comprehensive environmental, health, and
safety continuous improvement program--RDP--there is sufficient
availability of both regulatory and selfadministered programs currently
existing and being implemented. This legislation would merely burden
our members in an economically difficult environment without increasing
security.
__________
Statement of the National Propane Gas Association
The National Propane Gas Association (NPGA) appreciates the
opportunity to present our concerns with S. 1602, as well as safety and
security issues related to the September 11, 2001 terrorist attacks.
NPGA is the national trade association of the LP-gas (principally
propane) industry with a membership of about 3,800 companies, including
39 affiliated state and regional associations representing members in
all 50 states. Although the single largest group of NPGA members are
retail marketers of propane gas, the membership includes propane
producers, transporters and wholesalers, as well as manufacturers and
distributors of associated equipment, containers and appliances.
Propane gas is used in over 18 million installations nationwide for
home and commercial heating and cooking, in agriculture, in industrial
processing, and as a clean air alternative engine fuel for both over-
the-road vehicles and industrial lift trucks. Propane is a non-toxic
substance designated as a clean air alternative fuel in both the Clean
Air Act Amendments of 1990 and the Energy Policy Act of 1992.
It goes without saying that the September 11, 2001 terrorist
attacks completely changed America's public policy priorities and
agenda. Before that date, the debate over chemical usage by industry
centered on reducing or eliminating industrial accidents involving
toxic substances. Now the terms of the debate have changed to emphasize
the safety of the American people from deliberate attempts to cause
harm through willful and wanton destruction. Individual companies have
long sought to protect themselves, their employees, and their assets
from criminals and vandals, and while these efforts are typically
effective, they are not designed to ward off deliberate acts by
suicidal killers. NPGA believes that while it may be impossible in
every case for private sector businesses to defend themselves against
attack from secretive, intelligent, patient, and well-trained
terrorists, this does not mean that renewing one's commitment to safety
and security will not accrue benefits. Indeed, as Americans move beyond
the horror of the attacks, issues of public safety will forever be
viewed through the lens of private security.
NPGA believes that policymakers and the media need to avoid debates
that only serve to stir up uncertainty and fear in the United States.
For example, a study by Argonne National Laboratory was used to
buttress a November 12, 2001 Washington Post article entitled ``Toxic
Chemicals' Security Worries Officials.'' The Argonne data underpins a
chart showing relative numbers of deaths and injuries, but it is
important for Congress and others to know that the U.S. Department of
Transportation--the Argonne report's sponsor--has essentially disavowed
it and removed it from its website. The weaknesses of the Argonne study
were made even more stark in a study performed by Visual Risk
Technologies Inc. which concluded that ``the study results [are]
extremely suspect.''
Likewise, there are many weaknesses in S. 1602. Among other things,
this bill would set up a bureaucratic nightmare of duplicative
regulations that would overlap existing Federal departmental
jurisdictions causing the type of confusion that invariably weakens
compliance. For example, S. 1602 requires the EPA Administrator to
issue regulations within 1 year of enactment designating certain
combinations of chemical sources and substances of concern as high
priority categories based on the severity of the threat posed by an
accidental release or criminal release from the chemical sources. This
would duplicate the scope and purpose of the Risk Management Program
regulations required by Section 112(r) of the Clean Air Act Amendments
of 1990. Moreover, it would require high-level negotiations with DOT
because it specifically covers hazardous material motor vehicles,
rolling stock, and containers, all of which are subject to existing DOT
regulations.
S. 1602 would also require EPA to subsequently issue additional
regulations to require each owner/operator of a chemical source within
a high priority category to take adequate action, including safer
design and maintenance, to prevent, control, and minimize the potential
consequences of an accidental or criminal release. In the case of the
propane industry, this would require EPA to duplicate fire safety
regulations which already exist in every State based upon National Fire
Protection Association safety standard 58 (NFPA 58), Liquefied
Petroleum Gas Code, an ANSI consensus standard. NFPA 58 has been the
primary source of propane industry safety regulations for 70 years.
Congress should not seek to increase regulatory confusion in the
propane industry because confusion will only lead to less safe
operations.
Finally, S. 1602 would make all information generated in
implementing its provisions to be made available to the public except
in cases of national security or trade secrets. This field has already
been thoroughly plowed in the debate over the Fuels Regulatory Relief
Act of 1999 which severely limited EPA's ability to publish detailed
industrial worst-case scenario data on the internet for public--and
terrorist--consumption.
Propane industry participants are well-versed in the need for
product safety and stewardship, and the industry has been consistently
proactive in this regard. Industry achievements and objectives are most
visible in the debate over the Fuels Regulatory Relief Act of 1999; in
a negotiated retrofit program agreed to by industry and DOT; and a
multi-million dollar industry-funded program to inform emergency
responders on how to protect themselves.
In 1999, the industry anticipated the potential harmful uses of
sensitive data required under EPA's Risk Management Program
regulations. At NPGA's urging, Congress passed the Fuels Regulatory
Relief Act of 1999 to forbid EPA from publishing worst-case scenarios
on the internet and to require EPA to exempt from the RMP rules
flammable substances used as fuel. NPGA demonstrated that the RMP
rules, if allowed to stand, would have: (1) harmed the human health and
the environment by encouraging fuel switching to less environmentally
benign fuels; (2) reduced safety by creating incentives to demand more
small deliveries; and (3) burdened hundreds of thousands of propane
customers with substantial Federal paperwork requirements.
S. 1602 would contradict the Fuels Regulatory Relief Act of 1999
with no justification. Congress unanimously passed this law after
multiple hearings and appropriate committee consideration. Congress
heeded the concerns expressed by firefighters and other emergency
responders, large and small businesses, many sectors of the industrial
community, Federal, State, and local regulators, and others. With
regard to the propane industry, there simply is no reason to undermine
this recent congressional decision.
Also in 1999, NPGA negotiated with DOT an estimated $50 million
industry-wide retrofit of delivery vehicles to install the latest
electronic delivery control devices and make other important
operational changes that will increase safety. This program is making
an already safe industry even safer. Propane is typically delivered
from terminals to storage facilities in tractor-trailer size trucks. As
part of the negotiated rulemaking with DOT, the propane industry agreed
to retrofit these delivery vehicles on an aggressive schedule with the
most advanced technology. Under regulations implemented by the U.S.
Department of Transportation, all new vehicles of this type must have a
passive shut-down system installed, i.e. no human intervention is
needed to activate it in the event of a leak. All local delivery
vehicles (bobtails) are being retrofitted with remote shutdown devices
allowing drivers to stop the delivery of propane in the event of an
emergency. The entire fleet of trucks must be retrofitted with the
appropriate system no later than each truck's first scheduled pressure
test after July 1, 2001.
In recognition of their importance to public safety, NPGA members
are also closely tied in with emergency responders at the local level.
Storage inventory data is provided in a standardized format to local
fire departments through Emergency Planning and Community Right-to-Know
Act reporting. Moreover, the industry is most proud of its multi-
million dollar Propane Emergencies program which is the best source of
information for preventing or responding to propane emergencies. This
program has been sent free of charge by the industry to every
professional and volunteer fire department in the United States.
Developed by a team of highly qualified propane product and container
specialists from NPGA, this program is a comprehensive educational
safety program which includes a textbook, facilitator's guide, and
videotape that establishes a new level of readily accessed reference
information, along with workshops and interactive scenarios that
increase the knowledge of procedures to use in the event of a variety
of real-world emergency situations.
This award-winning program was launched as a cooperative effort
between the NPGA and the Propane Education & Research Council (PERC).
The need for the development of high quality emergency response
resources and training materials is a recognized priority within both
the propane industry and emergency services community. Funded by
industry assessments paid to PERC, the propane industry's financial
commitment has permitted the creation of a 240-page textbook covering
the physical properties of propane, design and construction features of
both bulk and non-bulk propane containers, typical emergency scenarios,
and tactical guidelines and considerations.
Safety in the propane industry is also enhanced by the rigorous
regulation at the state level through National Fire Protection
Association safety standard 58, LP-Gas Code. NFPA 58 is a comprehensive
safety consensus standard adopted either by reference or direct
incorporation into state regulations in all 50 states without
exception. Very few propane industry operations are unaffected by the
provisions of this standard.
In addition to industry initiatives to increase the safety and
security of our nation's fuel supply, the propane industry has many
other aspects that need to be borne in mind by policymakers as
decisions are made to allocate resources against potential future
terrorist attacks. Among the most obvious are:
<bullet> Odorized vs. non-odorized propane.--Propane destined for
use as a fuel is given an odorant called ethyl mercaptan to alert
people of its presence in the air as a safety feature. Odorization
serves the same purpose as a siren--it's an alert mechanism. Propane
has one of the most distinctive odors that clearly alerts people into
taking precautions. To the extent that Congress chooses to address
sectors with higher risks, Congress could address those sectors that
utilize non-odorized propane.
<bullet> No lumpers.--The propane industry does not utilize so-
called ``lumpers'' to unload its products at customer facilities.
Lumpers are individuals typically paid by a driver to unload his
vehicle in the event he is prevented from doing so by union rules.
Often, companies do not hire workers to unload the vehicle either, so
lumpers do the work. This is often found in the grocery and furniture
industries.
<bullet> There is virtually no ``walk-by'' sale of propane.--
Propane marketers store their supplies at storage facilities from which
deliveries are made via truck to tanks at customers' locations. Most
tanks at customer locations are owned by and served exclusively by a
single propane marketer. These marketers therefore maintain substantial
information about their customers, such as amounts delivered, storage
capacity, and payment history. The fact that propane supplies are
controlled by a single company for much of the delivery chain increases
security.
<bullet> Propane delivery vehicles are highly specialized and
recognizable.--Because of the unique nature of this product, propane
delivery vehicles are used almost entirely for a single commodity. They
are constructed to meet exacting DOT specifications and regulations and
are highly durable. It is a common practice for the propane container
to be reused for propane delivery multiple times on different chassis.
Virtually all of the industry's delivery trucks are owned by the
company doing the delivery, and all bear the required DOT placards and
labels.
NPGA strongly believes that these features of the propane
industry--combined with the aggressive, multi-million dollar safety
program established by industry participants--reduce the risk of
accidental or purposeful releases of propane in the United States.
Congress and appropriate executive branch agencies have a shared
responsibility to ensure the safety and security of the American
people. However, Congress and the executive branch also have the
responsibility to acknowledge the existing ongoing efforts of the
private sector to increase its own safety and security. The propane
industry is clearly in the forefront of these positive efforts.
As Congress considers legislation to increase the safety and
security of hazardous materials use and transportation in the United
States, NPGA urges Members of Congress to review the following
recommendations. First, any requirement to perform background checks on
drivers seeking to obtain or renew hazardous materials endorsements to
commercial drivers' licenses should establish a goal of moving toward
instant CDL background checks similar to the program for purchasing
firearms. Such a program would greatly reduce waiting time,
administrative burdens on the license-issuing agencies in the states,
and allow government to access the latest watchlist information.
Second, Congress should seek to set up incentives to develop and
deploy high technology to track safety and security of hazardous
materials shipments, drivers, and other assets. Providing incentives is
far preferable to mandating particular solutions because incentives
allow private industry to continually develop better performing
technologies that fit their unique needs.
Third, Congress should provide tax incentives to decentralize
storage capacity for critical winter heating fuel supplies. In the same
way that such fuel storage tax incentives help increase the
dependability of America's fuel delivery infrastructure, end users of
heating fuels will be less susceptible to disruptions due to terrorism
if the industry is given incentives to increase their decentralized
storage capacity.
Fourth, NPGA strongly opposes expanding the funding scope of the
Hazardous Materials Emergency Preparedness (HMEP) Grants program beyond
those areas currently authorized in the Hazardous Materials
Transportation Act (HMTA). There is already an insufficient level of
congressional oversight of the HMEP program, and authorizing use of
funds for terrorism will only make this problem worse. The propane
industry has spent tens of millions of dollars voluntarily for
worthwhile programs that make a real difference in safety, such as
Propane Emergencies, and NPGA believes that expanding the scope of the
HMEP program will only serve to justify extraction of additional
millions from the hazardous materials transportation industry, the bulk
of which comes from small companies.
Finally, if Congress believes that an approach such as that
proposed in S. 1602 is warranted, NPGA urges the scope of the bill to
be limited to toxic substances. This is clearly the focus of the public
debate on terrorism, along with biological and nuclear weapons, and it
would maintain consistency with Congress' debate over the Fuels
Regulatory Relief Act of 1999.
Thank you for this opportunity to present NPGA's views on S. 1602.
Should you have questions or require further information, please do not
hesitate to call.