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97–586 PDF 2015

S. HRG. 113–752 

PREVENTING POTENTIAL CHEMICAL THREATS 

AND IMPROVING SAFETY: OVERSIGHT OF THE 

PRESIDENT’S EXECUTIVE ORDER ON IMPROVING 

CHEMICAL FACILITY SAFETY AND SECURITY 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

MARCH 6, 2014 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

BARBARA BOXER, California, Chairman 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

TOM UDALL, New Mexico 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

DAVID VITTER, Louisiana 

JAMES M. INHOFE, Oklahoma 

JOHN BARRASSO, Wyoming 

JEFF SESSIONS, Alabama 

MIKE CRAPO, Idaho 

ROGER WICKER, Mississippi 

JOHN BOOZMAN, Arkansas 

DEB FISCHER, Nebraska 

BETTINA POIRIER, Majority Staff Director 

ZAK BAIG, Republican Staff Director 
(III) 

C O N T E N T S 

Page 

MARCH 6, 2014 

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 ................... 3 

Markey, Hon. Edward J., U.S. Senator from the State of Massachusetts .......... 4 

Barrasso, Hon. John, U.S. Senator from the State of Wyoming .......................... 5 

Vitter, Hon. David, U.S. Senator from the State of Louisiana ............................ 65 

Udall, Hon. Tom, U.S. Senator from the State of New Mexico ............................ 70 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma, prepared 

statement .............................................................................................................. 234 

WITNESSES 

Stanislaus, Hon. Mathy, Assistant Administrator for Solid Waste and Emergency Response, U.S. Environmental Protection Agency ................................. 7 

Prepared statement .......................................................................................... 9 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 25 

Senator Markey ......................................................................................... 26 

Senator Vitter ............................................................................................ 31 

Moure-Eraso, Hon. Rafael, Chairman, U.S. Chemical Safety Board .................. 38 

Prepared statement .......................................................................................... 40 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 47 

Senator Vitter ............................................................................................ 50 

Wilson, Michael P., Ph.D., MPH, Chief Scientist, Office of the Director, California Department of Industrial Relations ........................................................ 71 

Prepared statement .......................................................................................... 74 

Frederick, James S., Assistant Director of Health, Safety & Environment, 

United Steelworkers International Union ......................................................... 84 

Prepared statement .......................................................................................... 86 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 90 

Senator Vitter ............................................................................................ 93 

Hansen, Evan P., President, Downstream Strategies .......................................... 100 

Prepared statement .......................................................................................... 102 

Responses to additional questions from Senator Vitter ................................ 108 

Pirkle, Billy, Senior Director, Environment, Health and Safety, Crop Production Services ......................................................................................................... 111 

Prepared statement .......................................................................................... 113 

Response to an additional question from Senator Boxer .............................. 133 

Responses to additional questions from Senator Vitter ................................ 134 

Berger, Scott, Executive Director, Center for Chemical Process Safety, American Institute of Chemical Engineers ................................................................. 223 

Prepared statement .......................................................................................... 225 

Response to an additional question from Senator Boxer .............................. 228 

Responses to additional questions from Senator Vitter ................................ 229 

ADDITIONAL MATERIAL 

Letter from the Institute of Makers of Explosives to Senators Boxer and 

Vitter, March 18, 2014 ......................................................................................... 236 
Page

IV 

Safety and Security Guidelines for Ammonium Nitrate, from the Institute 

of Makers of Explosives and the National Stone, Sand & Gravel Association, December 13, 2013 ...................................................................................... 240 

Testimony of Peter S. Silva, Assistant Administrator for Water, U.S. Environmental Protection Agency, October 1, 2009 ....................................................... 253 
(1) 

PREVENTING POTENTIAL CHEMICAL 

THREATS AND IMPROVING SAFETY: OVERSIGHT OF THE PRESIDENT’S EXECUTIVE 

ORDER ON IMPROVING CHEMICAL FACILITY SAFETY AND SECURITY 

THURSDAY, MARCH 6, 2014 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The committee met, pursuant to notice, at 10:01 a.m. in room 

406, Dirksen Senate Office Building, Hon. Barbara Boxer (chairman of the committee) presiding. 

Present: Senators Boxer, Vitter, Carper, Udall, Markey, and 

Barrasso. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. We come to order. 

Senator Vitter is on the floor of the Senate; he will get here when 

he can. 

Today this committee continues its important oversight of efforts 

to improve the safety and security of chemical facilities across this 

Nation. The long list of chemical disasters in recent years demonstrates that we need urgent action. 

In August 2012 there was a pipe failure at a refinery in Richmond, California which formed a vapor cloud that ignited and injured six workers. Toxic smoke caused approximately 15,000 people 

to seek medical treatment. 

Then in April 2013 a massive explosion and fire in West, Texas, 

destroyed a fertilizer plant and caused widespread destruction, 

with 15 people dying and hundreds of people injured and homes, 

businesses, and three unoccupied schools damaged or destroyed. 

In June 2013, an explosion at a petrochemical refinery in Louisiana released more than 62,000 pounds of toxic chemicals, caused 

a serious fire, injured more than 100 people, and killed two workers. 

We held a full committee oversight hearing on these explosions 

in June 2013, and then I spoke with President Obama about the 

need to act, and he took a very important step forward. In August 

2013, the President issued Executive Order 13650, Improving 

Chemical Facility Safety and Security, which established a working 

group to undertake a comprehensive review of Federal chemical 
2 

safety and security programs and develop recommendations for improving these programs. 

In August 2013, EPA, OSHA, and ATF issued an advisory on the 

safe storage, handling, and management of ammonium nitrate, 

which caused the West, Texas, explosion, but much, much, much 

more remains to be done. In fact, yet another chemical facility disaster occurred in January in West Virginia, which brought to light 

an entirely new set of issues which deal with poorly maintained 

chemical storage facilities that are located adjacent to our Nation’s 

drinking water. 

An above-ground chemical storage facility near Charleston, West 

Virginia, failed, leaking thousands of gallons of toxic chemicals into 

the Elk River, a source of drinking water for over 300,000 people. 

The spill has terrible costs that continue to impact families and 

small businesses across West Virginia. 

I have written to EPA Administrator McCarthy to request that 

the failures in the system brought to light in West Virginia be specifically addressed by the President’s Working Group, and we will 

examine this issue. I am working with Senator Manchin and colleagues on both sides of the aisle on legislation to better protect our 

drinking water sources from threats posed by chemical facilities. 

I am working with Senator Vitter, and I am hopeful he will join 

us in this effort. Whether he does or he doesn’t, we are going to 

have a bill and we are going to mark up a bill. I am also working 

with a lot of the State people on this. 

We have decided, because I had a good chat with Senator Vitter 

yesterday, he asked for more time. We are giving more time and 

the markup has been changed on that Manchin bill on West Virginia from the 12th of this month to Wednesday, April 2nd, at 11 

a.m. So I hope members will make a note of that. 

The ever growing list of catastrophic failures must be a wake-up 

call for all of us, including EPA, which does have existing authorities they ought to be using. Federal safety and health officials must 

use all tools available to protect the health and safety of people 

working in and living near chemical facilities. 

We are here today to ensure that the Executive Order Working 

Group identifies ways to make real measurable improvements in 

the oversight of chemical facilities. We must act quickly for the 

good of the American people, because we don’t want to be back here 

with postmortems of what could have, should have been done. We 

have to make sure we are inspecting these facilities, we know what 

to do if an accident does occur, but, most of all, we can prevent 

these failures because we have a very smart program in effect, and 

that is my goal as the chairman of this committee. And I know that 

everyone on this committee wants to stop these explosions and 

these leaks and these serious problems, but it doesn’t happen by 

itself. People are well meaning but, frankly, we need a regimen in 

place, good practices that are followed. 

So that is the purpose of this oversight hearing. 

With that, I am very pleased to call upon my wonderful secondin-command here, Tom Carper. 
3 

OPENING STATEMENT OF HON. THOMAS R. CARPER, 

U.S. SENATOR FROM THE STATE OF DELAWARE 

Senator CARPER. Thank you, Madam Chair. I am pleased to welcome both of our witnesses here this morning, and thank you for 

your stewardship and thank you for your input. 

Also, I think it is the first time we have been in the room since 

our new Senator from Massachusetts, Ed Markey, has joined us. 

He is an old friend, and it is just great to have him on this committee. 

I wear two hats in this hearing. I am going to be in and out 

today, but I wanted to stop by and I will be back in a little bit. 

But I wear two hats today. One is I think of myself as Chairman 

Boxer’s wingman, and on a good day she thinks of me as her 

wingman, too. 

Senator BOXER. I do. 

Senator CARPER. But I also chair the Senate Committee on 

Homeland Security and Governmental Affairs, so I look at it 

through the prism of both of those glasses. It is almost like a pair 

of glasses and one eye is EPW, the other lens is Homeland Security. 

I am a native of West Virginia, and I have a lot of relatives who 

live around Charleston who didn’t have any water to drink for a 

while, so that is on my mind and it is on the minds still of a lot 

of people in West Virginia and here, too. 

But the problem that we are here to discuss and to hear from 

you about is not an easy one, but it is one that we all have to be 

concerned about resolving. Each of us, in our own States, have industries that work with dangerous chemicals. That is certainly true 

in Delaware; I know it is true in Massachusetts and California and 

other States that are represented here. Many of the substances, 

which are essential for industry, they are essential for our economy, are used for agricultural, other uses; for the most part well 

controlled, safely handled, and years can go by without any incidents. 

Sometimes decades can go by without an incident. But sometimes, unfortunately, things do go wrong, as we know, and it is our 

duty to ask whether we could have done better, what we could 

have done so as to prevent the next incident from happening and 

prevent injuries and, in some cases, death. 

That is why the President has issued his Executive Order, as you 

know, on chemical facilities, creating the Chemical Facility Safety 

and Security Working Group, and that is why we are here today 

to ask how we can do better. Everything I do I know I can do better. I think that is true of all of us. I think that is true of all of 

our governmental agencies, too, and, frankly, the private sector. 

After the tragic example at West in Texas, as chairman of the 

Homeland Security Committee, I sent the Department of Homeland 

Security a long list of questions to help us figure out what went 

wrong. And their answers provided a great deal of insight, and I 

am glad that the Department of Homeland Security is a part of 

this Working Group; I think that is important. 

I understand that along with other agencies such as EPA, which 

we are pleased to have here with us today, Working Group officials 

have already identified I think 9 or 10 sets of options that might 
4 

help us to improve our chemical facility safety and security. These 

include both mandatory and voluntary new safeguards, policies to 

encourage a shift to inherently safer technologies or the creation of 

a third-party audit system, and I am encouraged by the breadth 

and scope of the potential actions under consideration. 

As the Working Group finishes up its work, we need to evaluate 

all of these options to figure out what might work better for both 

stakeholders and for the public, and I look forward to hearing the 

testimony of the panelists. I am going to slip out of here for a few 

minutes, but I will be back shortly and maybe join in the questions. 

But we are looking forward to you helping us to better evaluate the 

recommendations of the Working Group as they arise. 

Thank you. Very nice to see you both. 

Thank you, Madam Chair. 

Senator BOXER. Senator, thank you so much. I know what it is 

like to be running back and forth; I do it many times. 

It is just a real, frankly, honor to introduce for his first time in 

public here at this committee, Ed Markey, who I just want to take 

a minute to add to what Tom Carper said and say a true leader 

in protecting the health and safety of not only the people of his 

great State, but the people of the country. I am going to be very 

honest here and say something usually you don’t hear chairmen 

say. I really asked for Ed to be put on this committee in this slot, 

and I couldn’t be more pleased. So, with that, Senator Markey. 

OPENING STATEMENT OF HON. EDWARD J. MARKEY, 

U.S. SENATOR FROM THE STATE OF MASSACHUSETTS 

Senator MARKEY. Thank you, Madam Chair, and it is my honor, 

actually, to be on this committee with you as chair and Tom Carper 

and so many other great leaders. The issues that you are working 

on and leading on are going to largely determine the relationship 

between the American people and their environment; the safety of 

it, the security of it. So I am very pleased to be here. 

The chemical sector represents the best of American technological might. Its products help to make our water safe to drink, 

make the microchips used in our iPhones and ICBMs, refine our 

oil, grow our food. But these same chemicals could also be turned 

into a weapon of mass destruction by terrorists. They could wreak 

havoc in the event of a catastrophic natural disaster. And as we 

have seen so recently in West, Texas, and West Virginia, human 

error can cause fatal accidents and massive economic and environmental damage. 

Unfortunately, this is not a new story. On December 3rd, 1984, 

an accident at a pesticide plant in Bhopal, India, now owned by 

Dow, released 42 tons of toxic MIC gas, killing thousands of people 

and injuring many more. Safer substitutes existed even at the 

time, but these were not used. Even a simple change, like using 

smaller storage tanks, would have greatly reduced the consequences of a devastating accident. 

But in the United States we didn’t learn the lessons of Bhopal. 

In 2008, a chemical tank exploded at a Bayer factory in West Virginia, sending a fireball into the sky and killing two employees. 

That facility also stored large quantities of toxic MIC gas, the same 

as Bhopal. And just like the Bhopal facility, it could easily have 
5 

been using safer processes that eliminated or greatly reduced the 

need for the toxic chemicals in the first place. 

It has been 6 years since that accident occurred, but we are still 

here hearing about accidents at chemical facilities, environmental 

damage, and the loss of human life, all of which was largely preventable. 

Four years ago, while in the House of Representatives, I worked 

with my colleagues and in close consultation with the American 

Chemistry Council to craft legislation that would have ensured that 

facilities containing toxic chemicals switch to safer processes or 

substances when it was technologically and economically feasible to 

do so. But that effort did not become law. 

The reality is that terrorists cannot blow up what is no longer 

there. Earthquakes, hurricanes, and other natural disasters can’t 

spread toxic plumes if the toxic chemicals are replaced by safer alternatives. And while human error can never fully be eliminated, 

it is our job to reduce the consequences so that there is a dramatically reduced capacity for these chemicals to cause the disasters 

which they are capable of doing. There are safer processes. There 

are safer technologies. I look forward to hearing from our witnesses 

on how the Executive Order will incorporate the use of inherently 

safer chemicals and processes into our chemical safety regulatory 

framework. 

I thank you, Madam Chair. 

Senator BOXER. Thank you, Senator. 

I am happy to say we are joined by Senator Barrasso. 

I also want to announce we have, I believe, three votes at 11:20, 

so we are going to have to move and groove, so everyone has to be 

sharp and stay within the 5-minutes. Thank you. 

Senator. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM THE STATE OF WYOMING 

Senator BARRASSO. Thank you, Madam Chairman. I am pleased 

to have this hearing today as we discuss the issues surrounding 

chemical safety. 

First, I would like to say that my home State of Wyoming is the 

largest consumer in the United States of ammonium nitrate, a 

chemical oxidizer implicated in the West, Texas, accident. Mining 

companies in Wyoming use 1.5 billion pounds of ammonium nitrate 

each year in places like the Powder River Basin, and they use it 

to extract coal. At these mining sites, ammonium nitrate is mixed 

with fuel oil and pumped or poured into a blast hole which is fitted 

with an ignition system. The subsequent explosion heaves the rock 

to get the coal or the minerals out. 

Through this process, Wyoming and other mining States can provide essential building materials, as well as affordable energy for 

families and small businesses around the country. Wyoming, West 

Virginia, Indiana, Kentucky, Nevada, Pennsylvania, Minnesota, 

Virginia, and Alabama are, in order, the leading ammonium nitrate 

explosives consuming States. 

Ammonium nitrate is also the safer alternative in mining, having 

replaced nitroglycerin as the primary ingredient in chemical explosives, and saving lives in the process. Ammonium nitrate is a sta-
6 

ble, relatively benign chemical when managed properly, and proper 

management is simple, easily understood, and accomplished. 

Now, OSHA, not EPA, has issued rules to ensure that ammonium nitrate is managed properly at ammonium nitrate manufacturing and storage sites such as West Fertilizer; and, when it is, 

workers, first responders, and the public are protected. On October 

9th, 2013, OSHA issued 24 citations to West Fertilizer. These violations alleged that the facility failed to properly store ammonium nitrate, including failing to eliminate sources of combustible materials, installing needed firewalls, and limiting bulk quantities of 

the material. The facility also did not provide proper ventilation or 

fire suppression in case of fire. 

We also know that there are a series of Federal agencies that 

regulate ammonium nitrate. These agencies include OSHA, Homeland Security, the Department of Transportation, the EPA, the Department of Labor, the Department of Justice, the U.S. Coast 

Guard, and the ATF. This also does not include industry’s own 

guidelines and best practices for managing ammonium nitrate. 

Unfortunately, there appears to have been, and still appears to 

be, a lack of oversight in communications between regulatory agencies concerning noncompliant chemical facilities such as West Fertilizer. The solution proposed by some is additional regulation to be 

imposed by the EPA, in particular under the Agency’s Risk Management Program. For reasons I have already mentioned, I believe 

there is no need for EPA to impose additional regulations on top 

of regulations that already exist but are not being properly enforced. 

In fact, as I pointed out in the October 23rd letter to EPA Assistant Administrator Mathy Stanislaus, who is testifying before us 

today, his fellow panelist who is here, Mr. Rafael Moure-Eraso, he 

stated at our last hearing on this subject that he is not aware of 

any accidental explosions of ammonium nitrate where existing 

safety regulations of OSHA were followed. 

It is my hope that we can ensure that Federal agencies work together to better achieve our goal of keeping communities safe. If 

additional regulations are required, I would hope that we consider 

those proposals through regular order. If we make a mistake and 

overregulate a needed chemical without all the facts, we could negatively impact mining and other commercial operations. The end 

result will be lost jobs for already struggling communities. 

I will note that the Dyno Nobel plant in Cheyenne, Wyoming, is 

the second largest ammonium nitrate producing plant in the 

United States, producing 455,000 tons of ammonium nitrate a year. 

It employs 206 people, with an annual payroll of over $15.2 million. 

Thank you, Madam Chairman, and I look forward to the testimony. 

Senator BOXER. Pray for the safety of that plant and all these 

plants, and I also think it is important for us to do more, because 

these explosions keep on happening. It doesn’t necessarily mean 

new laws, you are right. But it certainly means we need to enforce 

the laws we have, and tighten them up and make sure they work. 

That is really the key. 

So we are going to go to our first panel, and I hope that our EPA 

witness, Hon. Mathy Stanislaus, is going to tell us the progress 
7 

being made here by the working group. And I am looking forward 

to hearing Rafael Moure-Eraso, who has been such a strong voice 

for chemical safety. 

So please proceed, Mr. Stanislaus. 

STATEMENT OF HON. MATHY STANISLAUS, ASSISTANT ADMINISTRATOR FOR SOLID WASTE AND EMERGENCY RESPONSE, 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. STANISLAUS. Good morning, Chairman Boxer, Senator Carper, who I guess left, Senator Markey, Senator Barrasso. I am 

Mathy Stanislaus, Assistant Administrator of the U.S. Environmental Protection Agency’s Office of Solid Waste and Emergency 

Response. Thank you for this hearing and the opportunity to testify 

on behalf of the Tri-Chair agencies that lead the Federal Working 

Group established under the President’s Executive Order 13650. 

President Obama and the Federal departments and agencies that 

make up the Working Group recognize the terrible loss suffered by 

families and communities as a result of chemical accidents and releases, and we are committed to working collaboratively with facility owners and operators, State and local tribal partners, local community residents, organizations and associations with an interest 

in improving chemical facility safety and security. 

I will summarize my written testimony that describes the 

progress being made by the Federal Working Group, departments 

and agencies to implement the Executive Order. 

Chairman Boxer, I want to first thank you for your longstanding 

support of efforts to protect communities from the risks posed by 

chemical releases and spills. In the aftermath of the tragic West, 

Texas, facility and explosion, the President, in fact, issued the Executive Order improving chemical facility safety and security on 

August 1st. One of the initial actions taken at the issuance of the 

Executive Order was the development by EPA, OSHA, ATF of a 

chemical advisory that provides information to communities, workers, first responders, and commercial sectors on the hazards of ammonium nitrate storage, handling, and management, and this was 

issued on August 30th. 

Subsequently, in February 2014, the Assistant Secretary of 

Labor of OSHA sent a letter to the agricultural trade associations 

to provide more than 7,000 employees with the legal requirements 

and best practice recommendations for safely storing and handling 

ammonium nitrate. 

Another Working Group effort underway is to cross-walk whether 

there are any outliers between facilities subject to DHS’s Chemical 

Facility Anti-Terrorism Standard Top Screen data base and the 

Risk Management Plan data base. We in fact have identified a subset and have communicated to those facilities and asked them to 

provide information regarding whether those facilities are subject 

to the RMP program, and, also, DHS has done the same with the 

facilities identified under the RMP data base. 

Last, I would note that the Working Group has stood up a pilot 

in New York, New Jersey with State and local emergency response 

officials to identify best practices and innovative methods so that 

the Federal Government, State government, local responders can 
8 

act in a coordinated way to prepare, reduce risk, and respond, if 

necessary. 

I am also pleased to report that the President’s fiscal year 2015 

budget request strongly supports EPS chemical facility efforts. The 

budget requests $27.5 million, an increase of $12.5 million from fiscal year 2014, for EPA’s support for State and local prevention preparedness efforts. 

Let me also address the accident at the Freedom Industries facility in West Virginia. Chairman Boxer, you sent a letter yesterday 

to the administrator on that. EPA agrees the incident at the Freedom Industries facility that resulted in exposure of hundreds of 

thousands of people must be addressed by the Executive Order 

Working Group in a comprehensive fashion. And the comprehensive fashion, as laid out by the President, includes looking at elevated levels of Government, roles and responsibilities and expertise 

to prevent and, if necessary, plan and respond to activities. We 

identified a number of options to date and will continue to explore 

based on lessons learned from the West Virginia accident. 

It should be noted that Freedom Industries did in fact provide 

the chemical information to the local emergency planning committee, so one of the things that we are committed to do, and as 

recommended by local and State emergency planning officials, is increase the technical capacity to identify risks, for example, to water 

resources, that must be addressed up front and, in some cases, prevent and relocate certain kinds of risks. 

An excellent example of the local, State, and Federal infrastructure working is what the State of Oklahoma did upon the West Virginia incident. Based on the Federal EPCRA chemical inventory information, they work with the water utilities and the emergency 

response officials to map the locations of chemical facilities and 

water intakes within 1.2 miles of chemical facilities so that, one, 

there is a knowledge of the proximity and then, therefore, there 

can be local planning to prevent impacts to water resources. These 

are one of the best practices that we are looking to lift up and 

make a standard practice throughout the country. 

Clearly, we cannot stop there. We clearly have to look at Federal 

authorities, as well as the role of State and local governments to 

prevent incidents in the future, as well as technical assistance to 

enable those that are on the front lines, the local responders and 

local emergency response officials, to better prepare and respond to 

events like West, Texas, and West Virginia. 

I should note a vital part of the President’s effort under the Executive Order is to really hear from people on the ground; to hear 

from local responders, from local community residents, to operators 

of local community facilities, to State officials. We have held 12 listening sessions around the country. Close to 2,000 people have participated in the listening sessions, and those recommendations from 

the variety of stakeholders are going to form the foundation for the 

recommendations that we plan to present to the President. 

To highlight some key issues noted by key stakeholders—— 

Senator BOXER. Sir, unfortunately, your time has expired, so we 

are going to move on and we will get to you in the questions. 

Mr. STANISLAUS. OK, sure. Great. 

[The prepared statement of Mr. Stanislaus follows:] 
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Senator BOXER. Thank you. 

Mr. Moure-Eraso. Make sure your mic is on, sir. Thank you so 

much. 

STATEMENT OF HON. RAFAEL MOURE-ERASO, CHAIRMAN, U.S. 

CHEMICAL SAFETY BOARD 

Mr. MOURE-ERASO. Chairman Boxer, Senator Barrasso, and distinguished committee members, thank you for inviting me here 

today. I am Rafael Moure-Eraso, the Chairperson of the U.S. 

Chemical Safety Board. 

The Chevron refinery fire in California in 2012, the West, Texas, 

explosion last year, and the West Virginia water crisis in January, 

all these were preventable accidents. 

The United States is facing an industrial chemical safety crisis. 

After all these actions, we hear frustration, heartbreak; workers, 

emergency responders, and the public continue to die and suffer injuries. 

Estus Powell, a father who lost his daughter, a refinery operator, 

in the 2010 fire at the Desoto refinery in Washington State, recently told us, my life was forever changed. All I want to know is 

does anybody care. It seems we can get nobody to have any teeth 

in anything, to get anything done. That is what Mr. Powell told us. 

Our investigations have concluded that certain fundamental 

changes are needed. We have a regulatory system that sometimes 

encourages paper compliance over real risk reduction. As an interim measure, I advocate that the EPA use its existing authority 

under the Clean Air Act to encourage chemical facilities to make 

their operations inherently safer where it is feasible to do so. Then 

the EPA should follow up by adopting specific regulations with 

clear requirements. 

The goal should be to drive chemical process risk as low as reasonably practicable. In Europe, this is a cornerstone of the regulatory system. Insurance statistics tell us European chemical sites 

have an accident rate at least three times lower than in the United 

States. Time and again, as reports show, we find examples where 

companies could have used available, feasible, safer technologies to 

prevent disastrous accidents, but choose not to do so. 

I realize inherently safer technology, or IST, is a term that has 

drawn some controversy, but it is really just a well established concept developed by industry and used by industry. It focuses on 

eliminating and minimizing hazards, instead of just trying to control hazards that already exist. Many accidents could be prevented 

using off-the-shelf technologies, such as corrosion-resistant materials, or reducing the storage of hazardous materials to the minimum necessary. 

In West Virginia, applying these principles could have prevented 

or reduced the consequence of the recent spill. For example, the 

chemical storage tank could have been sited away from drinking 

water supplies and also constructed of different resistant materials. 

I commend Senator Boxer, Senator Manchin, and Senator Rockefeller for promptly introducing legislation on this and encourage 

you to pass a strong bill. 

I am also encouraged by the leadership of the White House on 

this issue, especially the Executive Order on chemical safety that 
39 

we are discussing today, and I hope that regulatory agencies respond in kind. The EPA has the authority today to require companies to apply ISTs in design, equipment, and processes. I call on 

the industry to join in support of this reform, which companies 

know will go a long way to stopping these catastrophes. 

I must add that no regulatory system will work unless regulatory 

agencies like the EPA and OSHA receive more resources for more 

highly specialized technical inspectors. 

Madam Chairman, your State of California has been leading the 

way on this. Following the Chevron fire in 2012 and a recommendation from the CSB, the legislature has moved to triple the 

number of process safety inspectors, using fees collected from the 

refinery industry. And California is going to mandate using safer 

technologies and also is looking at what is called the safety case 

model. Under the safety case model, the burden is on companies to 

prove they can operate safely by following the most up-to-date safety standards; it is a condition of operating. 

In conclusion, these major accidents don’t have to happen. They 

kill and injure workers, harm communities, and destroy productive 

business. The best companies in the U.S. and overseas know how 

to prevent these disasters, but we need a regulatory system here 

that ensures that all the companies are operating to the same high 

standards. 

That concludes my testimony. Thank you, Madam Chairman. 

[The prepared statement of Mr. Moure-Eraso follows:] 
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Senator BOXER. Thank you so very much. 

Senator Vitter. 

OPENING STATEMENT OF HON. DAVID VITTER, 

U.S. SENATOR FROM THE STATE OF LOUISIANA 

Senator VITTER. Thank you, Madam Chair. Sorry I am late; I 

had to be on the floor at 10. But I certainly wanted to participate 

in this hearing. 

I think we have a historic opportunity to come together in this 

committee on a bipartisan basis, not just on infrastructure issues, 

which, thankfully, we have a long tradition of doing, but on some 

environmental issues specifically in the chemical safety area. So I 

just want to say, in general, I am committed to that process which 

is ongoing. I am committed to continue to work with you and Senator Manchin on the Manchin bill. 

We have some serious substantive concerns that we are working 

through, but I am committed to trying to work through that and 

I appreciate your putting off the markup until April to give that 

process the time it needs. And I think we have a broader opportunity in chemical safety to move forward in a bipartisan way. It 

is a historic opportunity. It hasn’t happened on this committee on 

any major environmental issue in decades, so I really hope we take 

full advantage of that opportunity. 

I also want to thank our witnesses for your testimony. 

Mr. Moure-Eraso, I wanted to ask you, are you here representing 

yourself or CSB? Because I am specifically interested in the safety 

case scheme and your Chevron investigation, which I did not think 

had the consensus support of CSB. 

Mr. MOURE-ERASO. Well, I am presenting testimony here as the 

head of the agency, the Chemical Safety Board, and we are still 

waiting to vote on the decision on that report in which we recommended the safety case. 

Senator VITTER. OK. So far, isn’t it true that the safety case program, specific recommendations to implement that, does not have 

consensus support, at least as we speak today, of the whole board? 

Mr. MOURE-ERASO. We haven’t voted on it. We defer it to further 

study to vote to make a decision on that point, Senator. 

Senator VITTER. OK. Mr. Moure-Eraso, you mention in your testimony that inspections ‘‘are among the least effective safeguards’’ 

and ‘‘the effectiveness of inspections totally depends on the skill 

and thoroughness of the inspector.’’ Do you think EPA has inspectors with the necessary skill and thoroughness, and enough of 

them, to oversee the implementation of IST and all other Federal 

mandates that you are supporting? 

Mr. MOURE-ERASO. In my experience, I will say that I believe 

there are people with the necessary skills in EPA to look at the situations; however, my concern is that probably there might not be 

enough and that there are more resources necessary to have 

enough to cover the different places that they have to cover. 

Senator VITTER. In your opinion, should inherently safer technologies take into account factors such as risk shifting, unintended 

consequences, feasibility, and economic impacts? 

Mr. MOURE-ERASO. Absolutely. That is part of the process of 

dealing with inherently safer technologies, is to look at what are 
66 

you replacing and to be sure that what you are replacing is not 

going to cause more trouble than what you had before. So it is an 

engineering process of very carefully and systematically looking at 

what you should act, what you should change to improve and prevent negative outcomes. All the considerations of comparing what 

you are substituting for what you are proposing have to be taken 

into account. 

Senator VITTER. And you think EPA has the resources and expertise to do all of that analysis specifically with regard to risk shifting, unintended consequences, feasibility, and economic impacts? 

Mr. MOURE-ERASO. I believe so. As I said, the science and the engineering capabilities of the agency obviously are there. My only 

concern is that there might be not enough inspectors without the 

additional resources for enough inspectors to look at these issues. 

Senator VITTER. OK. Are you aware of the budget growth EPA 

has had in the last 5 years or so? 

Mr. MOURE-ERASO. Not in very much detail, no. 

Senator VITTER. OK. All right, thank you. 

Senator BOXER. Thank you, Senator. 

So, Senator, you have asked your questions, so is it OK if I ask 

mine, then we will move on to the next panel, because we have 

votes? 

Senator VITTER. Sure. 

Senator BOXER. Thanks. 

Mr. Stanislaus, I heard you say West Virginia was an accident. 

In my opinion, that leak was not an accident. Would you want to 

reconsider using that word or you still think it was an accident, the 

leak? 

Mr. STANISLAUS. Well, clearly it was a catastrophic failure. 

Based on information that we know right now, there were practices 

that should have been—— 

Senator BOXER. I mean, no truck slammed into this tank, as far 

as we know. This was a tank that was not equipped, apparently, 

to hold this chemical, which then leaked into the water. So I am 

just saying when you say it is an accident, I think you ought to reconsider that. I don’t see that as an accident; I see it as a failure, 

as you say, of the equipment to hold the chemical. 

Mr. STANISLAUS. I agree. 

Senator BOXER. Good. OK. Mr. Stanislaus, you are the co-chair 

of this Working Group and yesterday I got another report. I am 

looking for action here, not a lot of words, and so far I have seen 

a lot of words. And it is good that you updated the advisory, which 

I recommended that be done, since you hadn’t updated it since the 

1990s. That was good. But when can I expect to see actual actions 

that are recommended and taken? 

Mr. STANISLAUS. So, Chairman Boxer, as I detailed in my opening comments, we have already taken certain actions that we are 

in the midst of evaluating, for example, whether there are any 

outliers between the RMP program and the DHS’s CFATS program, meaning other facilities that should be subject to the RMP 

program that—— 

Senator BOXER. The Risk Management Program. 

Mr. STANISLAUS. I am sorry? 
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Senator BOXER. You are talking about the Risk Management 

Program? 

Mr. STANISLAUS. The Risk Management Program. We are comparing facilities that are in DHS’s CFATS program—— 

Senator BOXER. Well, don’t use these acronyms. 

Mr. STANISLAUS. OK. 

Senator BOXER. Please explain what you are talking about. 

Mr. STANISLAUS. Well, DHS’s chemical facility data base, we are 

comparing facilities under that data base to EPA’s Risk Management Planning data base to identify whether facilities that should 

have been subject to Risk Management Planning program but did 

not submit. So we are in the midst and have contacted those facility owners. But we are planning some immediate short-term, midterm, and long-term actions. 

Senator BOXER. When will I hear about that? When will we hear 

about that, this committee? 

Mr. STANISLAUS. We will report. Just yesterday we identified a 

number of actions with respect to strengthening the local response, 

capability, and capacity. One of the core things that we have heard 

from local responders, local communities, and State emergency response commissions was the need for combination of resources and 

technical assistance to the participation of all States—— 

Senator BOXER. So just tell me when will we get from the Working Group, because the President did this because he was so dismayed. He went down to West, Texas. When can we all expect to 

see specific steps that you will be taking? 

Mr. STANISLAUS. So we plan to submit a report to the President 

in the end of May. 

Senator BOXER. Thank you. 

Mr. STANISLAUS. OK. 

Senator BOXER. OK. You brought up the issue of how you classify 

different chemicals, whether they are risk-managed. And you 

haven’t done that with ammonium nitrate. Shouldn’t that be part 

of the risk management system? 

Mr. STANISLAUS. Well, clearly we are evaluating that. We are in 

the midst of public comment regarding whether ammonium nitrate 

should be regulated under the Risk Management Plan program. We 

are also looking at regulating under the Risk Management Planning program, as well as the way that it is regulated currently 

under other of our Federal agency programs. The Alcohol, Tobacco, 

and Firearms currently regulates it from an explosive perspective. 

OSHA also regulates it—— 

Senator BOXER. OK, let me cut through this, because we just 

don’t have a lot of time, sorry. The Chemical Safety Board, sitting 

next to the chairman here, has recommended that you should add 

explosive hazardous chemicals, including ammonium nitrate to 

EPA’s Risk Management Program. 

Instead, you did the advisory, which I am glad you did that, but 

I don’t know it is taking so long for you to figure this out. They 

have been on the record and I am just saying it means a lot if you 

take that type of action, and I just don’t understand why you 

wouldn’t do it, given all the deaths that we have seen. So I was 

dismayed you didn’t act on their recommendation to add explosive 

chemicals to your Risk Management Program, and I am going to 
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continue to press on that and hope that you will do so, because we 

are seeing the results of not doing it. 

So the last thing I would say is will you commit that the Working Group will look at the oversight of aboveground storage tanks 

under the Clean Water Act? 

Mr. STANISLAUS. Well, per your letter yesterday, we certainly are 

going to evaluate the utilization of existing authorities, including 

under the spill prevention containment countermeasure program. 

Senator BOXER. Thank you. 

So I see, Senator Markey, you are back. Would you have some 

questions? 

Senator MARKEY. I do. Thank you, Madam Chair. 

Senator BOXER. Please go ahead, yes. 

Senator MARKEY. I appreciate it. Thank you. 

Mr. Moure-Eraso, at times the chemical industry has said that 

inherently safer technology could result in huge expense for industry, or even the elimination of common household goods or medications. But inherently safer technology is not exclusively focused on 

substituting safer chemicals for more dangerous ones. Isn’t it true 

that the 2012 Chevron refinery accident in California that caused 

a huge fire and the 2010 explosion at the Tesero refinery in Washington State could have been prevented if aging pipes and other 

systems had been replaced by corrosion-resistant materials? 

Mr. MOURE-ERASO. It is correct that in our investigation of Chevron we found out that if inherently safer technologies will have applied in the choosing of the adequate materials for piping, the corrosion probably would not have occurred and we would not have 

the incident that happened in the Chevron refinery. 

Senator MARKEY. OK, thank you. Isn’t it true that the explosion 

at the fertilizer facility in West, Texas, that killed more than a 

dozen people and destroyed a large portion of the town could have 

been prevented or minimized if it had stored its ammonium nitrate 

more safely and kept less of it onsite? 

Mr. MOURE-ERASO. That is very true, Senator. The minimizing 

of storage of dangerous substances is an inherently safer strategy 

to avoid accidents to happen. 

Senator MARKEY. Isn’t it true that the chemical storage tank in 

West Virginia that leaked into the Elk River might not have contaminated the drinking water of 300,000 people if the tank had 

been of a safer design or if the tank had not been placed right next 

to the drinking water source in the first place? 

Mr. MOURE-ERASO. Yes, Senator. The issue of siting of this facility is an inherently safer strategy, and also the materials that are 

used that will avoid corrosion that seems to be the mechanism that 

produced the leak in the tank. 

Senator MARKEY. More than 500 drinking and wastewater facilities have replaced their toxic chlorine gas with safer alternatives. 

Isn’t it true that some chemical substitutions like this can be done 

quickly and inexpensively? 

Mr. MOURE-ERASO. Yes, Senator, that is very true. As a matter 

of fact, it has been happening and it is happening almost every day 

in the United States, to look at these types of substitutions to avoid 

risky situations. 
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Senator MARKEY. In 2009, during consideration of a chemical security bill I co-authored in the House, the Obama administration 

went through an interagency process to establish policy principles 

related to the use of inherently safer technology. The Administration policy that was presented in congressional testimony, which I 

would like to submit for the record, said that all high risk chemical 

facilities should have to assess whether inherently safer chemicals 

or processes could be utilized in their operations, and that assessment had to be submitted to the Federal Government. Do you 

think requiring companies to assess whether there exists opportunities to reduce the consequences of a potential attack or accident 

by using safer processes or chemicals makes sense? 

Mr. MOURE-ERASO. Senator, the truth of the matter is that there 

are a number of companies that are already practicing inherently 

safer technologies. What we are trying to tell people is that this 

should be expanded, that all the chemical industry be covered by 

these approaches. 

Senator MARKEY. Excellent. Thank you. 

Mr. Stanislaus, how about you? The EPA testified in support of 

a requirement to assess the potential to use inherently safer technology in 2009. Is that still EPA’s position? 

Mr. STANISLAUS. Well, clearly the President, in the Executive 

Order issued in August, called on not only EPA, but all the Federal 

agencies to look at the issue of safer alternatives and IST, and we 

are certainly examining that and providing a recommendation to 

the President regarding that. 

Senator MARKEY. So why is your answer not yes right now, Mr. 

Stanislaus? 

Mr. STANISLAUS. Well, clearly we agree that IST, as part of a 

broader process safety program, will in fact reduce risk, and it is 

part of, as the chairman noted, part of the standard practice and 

part of the code of industries. We are currently evaluating how to 

evaluate an IST. We have presented to the stakeholders a variety 

of options to implement safer alternatives and ISTs, and we are 

going to evaluate, then provide a recommendation to the President. 

Senator MARKEY. OK. Well, you know what I would like, and I 

think the chairwoman would like this as well, which is I would like 

you to be providing the committee with the documents that you are 

using if you are going to be changing your position in terms of ensuring that yes is the answer to that question, because I think our 

committee is going to be very interested in making sure that that 

ultimately becomes the policy. 

Thank you, Madam. 

Senator BOXER. Let me apologize for using this fast gavel. Here 

is where we are. I promised Senator Udall, who has not spoken yet, 

to give him 5 minutes, and then, Senator Carper, we are going to 

go to the next panel, because we have to stop. We have a series 

of votes at 11:10, and then we have eight votes in the afternoon. 

People flew here for the second panel. So if it is OK with the committee, we will hear from Senator Udall. He can use his time as 

he wishes. We will then move to the next panel. I will give up my 

chance to question and I will start with you, Senator. All right? 
70 

OPENING STATEMENT OF HON. TOM UDALL, 

U.S. SENATOR FROM THE STATE OF NEW MEXICO 

Senator UDALL. Thank you, Madam Chair, and I will try to not 

use the whole time so that we can move forward. 

Let me, first of all, thank you for holding the hearing today on 

the President’s Executive Order on improving chemical safety and 

security. This committee, I think, has shown real leadership in the 

wake of the West, Texas, fertilizer explosion almost 1 year ago and 

the more recent chemical spill into the Elk River in West Virginia, 

and I want to commend the chairman for making this a priority of 

this committee and elevating the issue in these hearings. 

Chemical facilities need to ensure the highest level of protection 

for their employees and the communities nearby. The law needs to 

ensure that we hold the industry to these standards, and I have 

a number of constituents in Albuquerque, New Mexico, and other 

parts of New Mexico who are concerned for their safety and the 

safety of those who live around these facilities. These are often people of color and people of lower income levels. 

In an earlier hearing we had on this issue, we had a witness 

from an innovative New Mexico company called Miox. They develop 

water filtration technologies that do not require toxic chemicals, 

and they can operate at any scale, offering products for individuals, 

facilities, and utilities. They are pretty successful in showing that 

their products are competitive. 

The Environmental Protection Agency is currently undergoing a 

process to implement the Executive Order, and I am encouraged 

that they have included inherently safer technologies and safer alternatives and best practices among the policy options they are 

considering. This is really the direction we need to move in. 

I want to also thank the chair for her leadership on the bill as 

far as Senator Manchin, working with that bill, and announce my 

co-sponsorship today. We need to move this legislation. I would encourage all my Republican colleagues on this committee to help us 

do so. 

I would insert the rest of my testimony in the record. 

I would like to ask the Chemical Safety Board, your testimony 

cites a number of examples where companies could have used 

available, feasible safer technologies to prevent disastrous accidents, but chose not to do so. My main question is why. From your 

investigation, can you identify why these companies choose not to 

implement these technologies? Is it a cost factor? Is it a general industry inertia? Are there other disincentives? It is just extremely 

frustrating to hear that so many of these disasters could have been 

prevented, and also deeply concerning to think about how many potential disasters we are on the cusp of that may be happening 

across the country in the future. 

So could you give me a quick answer to that? And I want you 

to just stay within the time here so that we can move on to the 

next panel. 

Mr. MOURE-ERASO. Sure. The best way to deliver this is look at 

the example of Chevron, for example. Their own engineering 

groups have told the management, the line management of the 

plant that there was a necessity to replace the pipes that were 

being corroded with different material pipes, and the line manage-
71 

ment in the plant chose to delay this for a number of years and 

said I think we can wait, I think we can take the risk for a number 

of years before some accident happens and not replace the pipes. 

So the issue that I see is an issue of safety management in the 

plant, of what is the weight that a safety recommendation, an engineering recommendation have into a plant and how these people 

are listened to when recommendations on risks are made or increasing risks are made; and that is kind of a problem that I see 

or why the choices are made, you basically are taking the risk and 

accepting the risk and hoping for the best, and sometimes the best 

just doesn’t happen. 

Senator UDALL. Well, that has been the case too many times, as 

we have seen. 

I would yield back. 

[The referenced statement was not received at time of print.] 

Senator BOXER. Senator, thank you so much and thank you for 

your sponsorship of the Manchin bill. Working with Senator Vitter, 

we both decided we are going to change the markup until April 2nd 

so we have more time to work together, because we would love a 

bipartisan bill. We are not there yet, we are working on it, and I 

know you will help me get there, so I appreciate it. 

OK, thank you very much to this panel. 

We will quickly move to Dr. Michael Wilson, Ph.D., Chief Scientist, Office of the Director, California Department of Industrial 

Relations; James Frederick, Assistant Director for Health, Safety & 

Environment, Steelworkers International Union; Evan Hansen, 

President, Downstream Strategies; Billy Pirkle, Director, Environment, Health and Safety, Crop Production Services; Scott Berger, 

Executive Director, Center for Chemical Process Safety, American 

Institute of Chemical Engineers. 

Gentlemen, thank you very, very much. I know that you will be 

staying within the 5 minutes. That will be good because then a few 

of us can get to ask questions, and, as I say, I will defer to my colleagues on this. So please let’s start with Dr. Michael Wilson from 

California. 

I am very happy to see you, sir. Please go ahead. 

STATEMENT OF MICHAEL P. WILSON, Ph.D., MPH, CHIEF SCIENTIST, OFFICE OF THE DIRECTOR, CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS 

Mr. WILSON. Thank you, Chairman Boxer, Ranking Member 

Vitter, distinguished members of the committee. Thank you for the 

opportunity to appear before you today. My name is Michael Wilson. I am the Chief Scientist in the California Department of Industrial Relations within the State’s Labor and Workforce Development Agency. Our Department is charged with protecting the 

health and safety of California’s 18 million workers. We are a core 

member of the Governor’s Interagency Refinery Task Force, whose 

views I represent today. 

As you know, on August 6, 2012, the Bay Area’s Chevron refinery, the Richmond refinery, experienced a catastrophic failure of a 

corroded pipe. The pipe emitted an explosive vapor cloud that rapidly expanded through the unit to about the size of a football field. 

It engulfed 19 workers, who avoided injury or death by escaping 
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into other areas of the plant about 90 seconds before the cloud ignited. One Chevron firefighter escaped through the ensuing fire 

wearing protective clothing. The resulting smoke plume spread well 

beyond the refinery confines and ultimately caused some 15,000 

people in nearby communities to seek medical attention for symptoms related to possible exposure to the combustion products. 

Immediately following the incident, California Governor Jerry 

Brown established an Interagency Working Group on Refinery 

Safety made up of 13 State agencies and departments, and charged 

the group with figuring out what went wrong in Richmond and 

what should be done to prevent an incident such as this from happening again. The Working Group spent the next 18 months gathering input from the public and from technical experts in industry, 

labor, the U.S. Chemical Safety Board, emergency responders, and 

regulatory agencies. 

Last month, the Working Group released the final report of its 

findings and recommendations, entitled Improving Public and 

Worker Safety at Oil Refineries. The report addresses both incident 

prevention and emergency response. Nine prevention recommendations include: improving coordination of regulatory activities; improving the flow of relevant information from refineries to agencies 

and the public; improve overall safety and security by requiring the 

adoption of inherently safer systems wherever feasible; improve incident investigations by requiring a root cause analysis; improve 

methods for detecting problems early, such as pipe corrosion, by requiring facility-wide hazard reviews; improve the safety culture by 

requiring facility-wide safety culture assessments with meaningful 

worker involvement; improve the integration of human factors; 

strengthen regulatory enforcement capacity; and improve community access to air quality monitoring data around refineries. 

Relevant to today’s hearing, the report is noteworthy because, 

like Executive Order 13650, it expands the focus of chemical safety 

from requiring industry to install protections around hazards to requiring industry to continuously evaluate and reduce those hazards 

wherever feasible. The report concludes that, in complex industrial 

operations, prevention is best achieved through the application of 

a hierarchy of controls in which inherently safer design is the primary objective. The report grounds this recommendation in the industry’s own guidance documents, as published by the Center for 

Chemical Process Safety within the American Institute of Chemical 

Engineers. 

Of course, like any industrial process, inherently safer design is 

not a perfect science. If improperly applied, it can shift risks along 

a production or process chain; it can sometimes be difficult and expensive to implement in older facilities such as California’s refineries. 

Despite these challenges, however, inherently safer design is increasingly recognized by industry leaders as the most effective and 

enduring defense against potential accidents, natural disasters, or 

acts of sabotage. Many industry leaders have adopted this approach. Perhaps most notably, for example, in their successful efforts to replace pressurized tanks of highly toxic and mobile chlorine gas with sodium hypochlorite, otherwise known as bleach. 
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The Governor’s report concludes that improving refinery safety is 

a goal strongly shared by government, industry, workers, and communities. It calls on government agencies and industry to work together to develop and implement a culture that fosters inherent 

safety, including stronger accident prevention and hazard reduction 

measures. 

We are now moving forward rapidly in our regulatory process to 

implement the report’s recommendations. We are heartened to see 

attention and action on chemical safety and security at the Federal 

level. We strongly encourage Federal OSHA, the USEPA, and the 

Department of Homeland Security to continue their collaboration 

and, wherever possible, incorporate strategies to prevent risks 

through the application of inherently safer design within the hierarchy of controls. 

The State of California offers our support to your efforts in moving these important initiatives forward. 

[The prepared statement of Mr. Wilson follows:] 
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Senator BOXER. You were very close to being perfect, but of 

course my State is absolutely perfect. 

Mr. WILSON. Thank you. 

Senator BOXER. And thank you very much for that. I am proud 

of our State and what we are doing. 

Mr. James Frederick, Assistant Director for Health, Safety & Environment, United Steelworkers International Union. Welcome. 

STATEMENT OF JAMES S. FREDERICK, ASSISTANT DIRECTOR 

OF HEALTH, SAFETY & ENVIRONMENT, UNITED STEELWORKERS INTERNATIONAL UNION 

Mr. FREDERICK. Thank you, Chairman Boxer, Ranking Member 

Vitter, and members of the committee. Thank you for the opportunity to testify today. My name is Jim Frederick, and I am here 

on behalf of the United Steelworkers International Union. We represent 850,000 workers in many sectors of the economy, including 

the majority of unionized workers in the chemical industry and 

workers in many workplaces using large quantities of industrial 

chemicals. 

The massive explosion at West Fertilizer Company highlighted 

vulnerabilities in our communities. As devastating as the West explosion was, the potential disaster is present at other facilities 

across the country. 

Our members are well aware of many of these hazards and potential for widespread damage to the communities where they work 

and live. USW members are on the front lines if a catastrophic 

event occurs in their workplace. It is for this reason that our Union 

strongly supports President Obama’s Executive Order 13650 on improving chemical facility safety and security. This testimony addresses the four goals and the implementation of the Executive 

Order. 

One, improve operational coordination with State and local partners. Federal agencies should share best practices about interacting with communities and local emergency responders. The EO’s 

pilot project in New York and New Jersey provides a unique opportunity for agencies to implement lessons learned and innovative coordination. The pilot project is an opportunity for agencies to make 

a difference on the ground facility by facility. 

Two, enhance Federal agency coordination and information sharing. Workers’ experiences demonstrate the importance of Federal 

agency coordination and information sharing. The USW strongly 

supports cross-training and joint inspections by regulators to more 

efficiently and effectively address chemical hazards at facilities. 

As EPA discussed in the last panel, DHS indicated that 3,000 facilities were identified as not complying with their responsibilities 

under CFATS after the DHS data base and EPA Risk Management 

data base were cross-referenced. The DHS has contacted those facilities, but much more work remains to be done to ensure that 

they comply with the law to minimize the risk of terror attack 

under those provisions. 

Three, modernize policies, regulations, and standards. The EO 

Working Group is currently gathering public input on policy regulation and standards modernization. We strongly recommend that 

the Working Group consider recommendations made by the CSB, 
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California’s Interagency Working Group on Refinery Safety, and 

the New Jersey DEP, who all have been leaders in preventing incidents at chemical facilities. 

The USW strongly supports the Working Group using this opportunity to develop and promote the use of safer chemical processes. 

As a member of the Coalition to Prevent Chemical Disasters, we 

petitioned the EPA to exercise its authority under Section 112(r) of 

the Clean Air Act to prevent chemical facility disasters through the 

use of safer chemical processes. We have not yet received a formal 

response to this petition. Additionally, the USW issued a report, titled A Risk Too Great, about the oil refineries to switch from deadly hydrofluoric acid to the use of safer chemicals and processes. 

The DHS, EPA, CSB have all highlighted the effectiveness of assessing and, where feasible, implementing safer alternatives at 

high risk facilities. 

Despite the effectiveness of safer chemical processes, they may 

take time to implement, so regulation and policy updates should 

take place in the meantime. For example, the agencies should look 

into harmonizing the list of chemicals that are covered under each 

agency’s policies. For example, the EPA’s Risk Management Program list of regulated toxic substances contains 77 toxic chemicals 

and 63 flammable substances; and OSHA’s Process Safety Managements lists 137 chemicals as highly hazardous, toxic, or reactive. 

Currently, too many dangerous chemicals are not listed and, therefore, not reportable under the Risk Management Program, including many explosives. 

The USW applauds OSHA’s efforts to begin the process of updating the Process Safety Management standard, and we urge EPA to 

engage in similar information gathering process and to update the 

RMP standard. The USW is also pleased to see the President’s proposed budget narrows the small business rider to allow for programmed inspections at PSM- and RMP-covered processes. This is 

a step forward on implementing the Executive Order. 

Workers who operate and maintain chemical facilities should be 

seen as assets to chemical facility safety. Workers should be involved in a meaningful way in all aspects of planning for, preventing, and responding to an accidental release or incident. When 

Federal agencies inspect facilities, representatives of those workers 

should be included in inspection to correction of any issues found. 

Finally, workers need to be protected with strong whistleblower 

language should they report problems or inadequacies that may 

contribute to the risk of chemical disaster. 

The Working Group has cited the Government shutdown. 

Senator BOXER. Unfortunately, I have to stop you at this point 

and move, because we have these votes starting in 5 minutes. 

[The prepared statement of Mr. Frederick follows:] 
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Senator BOXER. Mr. Hansen, we are very happy to see you here, 

President, Downstream Strategies. Welcome. 

STATEMENT OF EVAN P. HANSEN, PRESIDENT, DOWNSTREAM 

STRATEGIES 

Mr. HANSEN. Chairman Boxer, Ranking Member Vitter, and 

members of the committee, thank you for the opportunity to testify. 

I am President of Downstream Strategies, an environmental consulting firm in West Virginia. Since 1997, we have worked with 

Government agencies, nonprofits and others on issues related to 

energy and water, science and policy. 

On January 9th, a chemical leak was discovered one and a half 

miles upstream from the intake for West Virginia’s largest public 

water system, and the leak was occurring from Freedom Industries, 

a chemical storage facility near Charleston. Secondary containment 

failed and 10,000 gallons of chemicals reached the Elk River. These 

chemicals were drawn into the drinking water plant and contaminated the water supply for more than 300,000 people. Businesses 

were closed, schools were shut, and hundreds of people sought medical attention. 

In response, I coauthored a report, entitled The Freedom Industries Spill: Lessons Learned and Needed Reforms, which provides 

recommendations to prevent contamination of public water systems 

in the future. I then coauthored a second report, called Potential 

Significant Contaminant Sources Above West Virginian Water’s 

Charleston Intake, which documents the range of potential water 

quality risks above the intake on the Elk River. 

I would now like to address three existing Federal authorities 

with relevance to the President’s Executive Order. 

The first includes spill prevention control and countermeasure, or 

SPCC, requirements. The Freedom site was not subject to SPCC 

because these rules only apply to oil facilities. If SPCC rules had 

applied to chemical storage facilities, the risk of the Freedom leak 

occurring would have been significantly reduced. And if a leak did 

occur, specific planning and procedures would have already existed 

to respond rapidly and appropriately. New regulations using existing authorities could widen the applicability of SPCC to include not 

just oil facilities, but also other facilities that store hazardous substances. 

The second Federal authority, the Safe Drinking Water Act, provides a planning process to address risks to drinking water. Public 

water systems must create source water assessment reports which 

delineate a zone of critical concern the river corridor immediately 

upstream from the intake that warrants more detailed management, because spills in this zone would quickly reach the intake. 

These assessment reports also inventory potential significant contaminant sources within these zones. The Act, however, does not 

mandate that public water systems take the next step to develop 

source water protection plans, which build upon the assessment reports and require planning for alternative water sources, contingency planning should contamination occur, and management planning to minimize risks. 

The Chemical Safety and Drinking Water Protection Act would 

require additional oversight and inspections of chemical storage fa-
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cilities under the Safe Drinking Water Act, and it requires other 

important steps toward improving chemical safety. However, I 

would suggest that additional measures be taken to protect intakes 

against all potential risks. It should be mandatory for public water 

systems to create protection plans, and both the assessment reports 

and protection plans should be periodically updated. Finally, all facilities upstream from intakes should be required to share pollution-related plans with downstream water systems. 

Under the third Federal authority, the National Pollutant Discharge Elimination System, or NPDES, permits are typically required for operations, such as chemical facilities, with aboveground 

storage tanks. Freedom Industries held such a permit, but did not 

appear to follow the management practices the permit required. 

Nor did they immediately report the spill. In addition, the West 

Virginia Department of Environmental Protection did not inspect 

the site under NPDES, and did not review Freedom’s stormwater 

pollution prevention plan or groundwater protection plan, as required. 

I encourage the use of existing authorities to make individual 

permits mandatory for facilities within zones of critical concern 

above drinking water intakes. Individual permits must undergo 

public notice and comment, and would allow regulatory agencies to 

include site-specific conditions to protect source water. In addition, 

I encourage a requirement for annual inspections at NPDES-permitted facilities within these zones of critical concern. 

Thank you. 

[The prepared statement of Mr. Hansen follows:] 
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Senator BOXER. Thank you, sir. I put in the record a letter I sent 

to Administrator McCarthy, asking her to look at existing authorities, and we will share that information with you and, of course, 

everyone else who is interested in this issue when I get that answer back. So thank you for that. 

[The referenced letter was not received at time of print.] 

Mr. HANSEN. Thank you. 

Senator BOXER. We are now going to turn to Mr. Billy Pirkle, 

Senior Director, Environment, Health and Safety, Crop Production 

Services. Thank you very much for being here, sir. 

STATEMENT OF BILLY PIRKLE, SENIOR DIRECTOR, ENVIRONMENT, HEALTH AND SAFETY, CROP PRODUCTION SERVICES 

Mr. PIRKLE. Thank you, Chairman Boxer and Ranking Member 

Vitter, and members of the committee. I am speaking here today, 

testifying on behalf of The Fertilizer Institute, which is the representative of most of the fertilizer producers, wholesalers, retailers, and trading firms. In my role with CPS, I am the Senior Director of Environmental Health and Safety, and our office is located 

in Loveland, Colorado. 

The fertilizer industry is accountable, responsible, and committed 

to the safety of the communities in which we operate. Our employees often live and work in the same communities in which our facilities are located and have a deep understanding and a commitment to the safe operations and the impact that it has on the families and their neighbors. We are dedicated to working with the investigators and regulators to understand the cause or causes of last 

April’s West Fertilizer chemical tragedy. We have already taken 

concrete steps to prevent and, if necessary, mitigate future incidents from occurring. 

I am proud to announce today that TFI and ARA, the Agricultural Retailers Association, are creating ResponsibleAg, an independent, not-for-profit organization designed to support and enhance fertilizer retailer awareness and compliance with Federal 

safety and security regulations. A brochure is attached to my testimony for your reference. 

Under ResponsibleAg, all of the Nation’s retail fertilizer dealerships will have access to comprehensive inspections based on Federal regulatory requirements. The inspections will be carried out by 

professionally trained auditors who will have successfully completed an intensive training course based on the objectives of 

ResponsibleAg. 

While the majority of fertilizer retail businesses operate safely 

and securely, we are acting out of an abundance of caution and 

concern for the well being of the workers and the communities. 

ResponsibleAg will enhance the current regulatory scheme to verify 

compliance at more facilities. For some retailers, the myriad Federal agencies that regulate our industry can be a challenge to navigate, and we understand that the Government agencies have limited resources. We are choosing now to act more quickly to address 

these issues. 

ResponsibleAg will certify auditors who inspect and verify individual facilities’ level of compliance with applicable Federal regulations. Facilities will complete assessments and be recognized for 
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the completion, and those that have not successfully completed will 

receive an audit report with recommendations and suggested corrective actions. 

Getting ResponsibleAg up and running is a priority for TFI, and we are donating or providing $100,000 in startup capital to ensure 

a quick startup of the organization. ARA, the Agricultural Retailers 

Association, has pledged an identical financial donation, and the 

Asmark Institute will provide training programs, facilities, and administer the Web site and data base. Asmark Institute has previously worked in a cooperative manner with EPA in developing 

the myRMP Risk Management Program compliance tool for ag retailers. They also have worked with the Department of Transportation to develop an anhydrous ammonia nurse tank inspection 

program. 

Once established, ResponsibleAg will be funded by registration 

fees by participating fertilizer storage and handling inventory 

points and their suppliers. Auditor training costs will be funded by 

the tuition paid by these members seeking the auditor credentials, 

and membership in this association is not a requirement for participation by any other State or trade association. 

We support the Executive Order 13650 and have worked collectively with the Working Group and will continue to do so. TFI supports better coordination between State and Federal agencies and 

cross-reference data bases that improve coordination of inspections 

to minimize facility time and agency resources. TFI has strongly 

encouraged its members to reach out to local emergency responders, inviting them to visit and tour their facilities to clearly understand the risks and hazards of the products that we handle. 

I thank you for the time, Senator Boxer. 

[The prepared statement of Mr. Pirkle follows:] 
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Senator BOXER. Well, sir, I am just very pleased to see this and 

look forward to learning more about it, and I do encourage all of 

these players to join, because at the end of the day the costs to the 

industry are enormous and people lose faith, right? So I think it 

is a smart thing to do. 

OK, with that we call, last but not least, Mr. Scott Berger, Executive Director, Center for Chemical Process Safety, the American 

Institute of Chemical Engineers. Welcome. 

STATEMENT OF SCOTT BERGER, EXECUTIVE DIRECTOR, CENTER FOR CHEMICAL PROCESS SAFETY, AMERICAN INSTITUTE OF CHEMICAL ENGINEERS 

Mr. BERGER. Thank you, Chairman Boxer, Ranking Member 

Vitter, and distinguished committee members. Thanks for the opportunity to testify today. I am speaking today from the perspective 

of an organization which has been working very hard for the last 

29 years to provide guidance to help companies prevent these accidents from occurring. 

To this end, our organization has published more than 80 books 

addressing the technical and management skills, procedures, concepts required to prevent these fires, explosions, toxic releases, and 

spills. So my comments today are specifically directed the topic of 

inherently safer technologies, or IST. 

Our organization has much experience in this field, having published two editions of a book dedicated to IST. We have also addressed that in many of our other books. In 2010, our unique experience and expertise led the DHS to request CCPS to lead a team 

of technical experts to develop a formal definition of IST. 

IST has long been one of the important tools in the toolbox used 

by chemical engineers to design safe processes. It is so ingrained 

in our thinking that we often do not even realize that we are doing 

it. This is certainly my personal experience. I had never heard the 

term IST before the early 1990s, but once I did hear it I recognized 

that I had been learning these principles as an undergraduate in 

the 1970s and I had been using them since my first assignments 

in industry. 

A Web link to the definition report is provided in my written testimony, and I would just like to highlight a few key elements of the 

definition. 

First of all, IST is one way of many ways that we use to prevent 

fires, explosions, and toxic releases. There is no specific IST technology that can be substituted broadly. Each plant is unique and 

the IST philosophy has to be applied differently from plant to 

plant. 

There is really no clear boundary between IST and other design 

strategies. As demonstrated in the New Jersey experience, IST can 

go well beyond simple replacement of one material with another; 

it can be applied to reactor design control systems, operating instructions, even emergency response. 

A technology can be only described as inherently safer when compared to some other technology. There is no inherently safe technology. It can be safer than another technology with respect to one 

hazard, but it can actually be less safe with respect to others. And 
224 

even if the technology is inherently safer, it may not be safe 

enough. 

Last, technology that is inherently safer in one location can also 

reduce safety somewhere else, shifting the risk. The bottom line is 

that design requires tradeoffs, and IST, as part of a design, also requires tradeoffs. 

Based on the formal definition of IST, it is clear that several existing regulatory provisions within the EPA and OSHA requirements already address IST, and I have detailed those in my written testimony. 

Considering that the application of IST is so tightly integrated 

into the overall work of process safety, I believe that EPA and 

OSHA would require significant additional resources beyond those 

excellent resources they already have to really get into the details 

of designs and question all the decisions that are design decisions 

that are made. I think, as a practical matter, going into a level of 

detail beyond this would not be possible. 

So the bottom line on IST is this: it is effective to teach it, it is 

wonderful that we are talking about it today, but it is really not 

effective to regulate it. I think there clearly are things that we can 

all do to improve process safety regulations, and most prominent 

among them is to require tracking and reporting of process safety 

metrics following standards such as the API recommended practice 

754. What gets measured gets improved, and that is, after all, what 

we all want. 

Thank you for the opportunity to provide these comments. 

[The prepared statement of Mr. Berger follows:] 
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Senator BOXER. Senator Carper. 

Senator CARPER. Thank you, Madam Chair. 

Thanks to all of you for joining us today and for your testimony. 

Following the disaster at West Fertilizer, the Department of 

Homeland Security, which my committee has jurisdiction over, determined that the facility had not complied with requirements to 

submit a so-called top-down top screen under the Chemical Facility 

Antiterrorism Standards Program, CFATS. Officials were actually 

unaware that the facility even existed. CFATS program, as you 

may know, at the Department of Homeland Security is not voluntary, it is mandatory, but it relies on self-reporting to identify 

which facilities need to be assessed for possible regulation. I think 

self-reporting can be effective, but only when there is full cooperation from industry. 

My question is this. From your perspectives, how effective is selfreporting and what can be done to improve the effectiveness of 

these reporting programs to make sure that oversight agencies do 

have the information that they need? 

Dr. Wilson, would you like to go first, please? Thank you. 

Mr. WILSON. Thank you, Senator. Sure, just quickly. I think 

what we are looking at in California is the idea of required reporting with the direction moving with requiring facilities to rigorously 

evaluate a hierarchy of controls in which inherently safer design is 

the preferred outcome. The intent here is not to regulate inherently 

safer design, but to put in place a mechanism that motivates companies to do that and to invest in that, and moving companies toward good practices, standards, codes, learnings from similar incidents, documenting those, and justifying why or why they didn’t 

take action. 

And I guess, to your point, the challenge, I think, is that these 

are difficult and complex industries to operate and the process of 

reporting information, gathering that information is difficult and 

challenging in the crush of other business demands of function, 

price, and performance of getting product and services out the door. 

So we are looking at, yes, required reporting for that reason. 

Senator CARPER. Thanks. 

Others, please. Mr. Frederick. 

Mr. FREDERICK. Self-reporting is somewhat akin to a voluntary 

initiative by those facilities covered, and a voluntary initiative is 

fine as long as all of the facilities covered choose to volunteer, but 

through a couple of important pieces through education and oversight by the regulatory agency, but most importantly of enforcement to make certain that the rules are being followed, that the 

voluntary compliance is being followed, and that a lack of compliance has some enforcement behind it so that it provides a level 

playing field for all involved. 

Senator CARPER. OK, thanks. 

Mr. Hansen. 

Mr. HANSEN. In terms of the West Virginia chemical leak, the 

Freedom Industries site did self-report the types and amounts of 

chemicals it was storing onsite in accordance with the Emergency 

Planning and Community Right to Know Act, and the main issue 

there was not so much self-reporting as what did the State and 
232 

local officials and public water systems do with that information 

that was made available. 

Senator CARPER. That is a great point. Thanks. 

Mr. Pirkle. 

Mr. PIRKLE. Our industry proposed and worked with Congress in 

2005 to seek traceability regulations for ammonium nitrate, resulting in the Secure Holding of Ammonium Nitrate Act, which was 

signed into law in December 2007. There was an advanced public 

notice issued in October 2008 and a notice of final rulemaking in 

2011. That rule is not final at this date, but we feel like that is 

a regulatory and we sort of led and approached Congress with that. 

We think that would have assisted in making that facility there in 

West, Texas, more visible. 

Senator CARPER. Good. Thanks. 

Mr. Berger, you have 30 seconds. 

Mr. BERGER. On the subject of voluntary reporting with the subject of process safety metrics, which I talked about earlier, is encouraged that is voluntarily being reported by a number of the 

trade associations, by their members. I think I would also like to 

point out that, in terms of improvement of processes and greater 

safety, the RMP regulation does require companies to report every 

5 years on their plans to improve their process safety, which is a 

good program and should be more encouraged. 

Senator CARPER. Perfect. Thank you. 

Thank you all very, very much. 

Thank you, Madam Chair. 

Senator BOXER. So the votes started, but I have a little time for 

questions, and I am going to take that time. 

The problem with risk management doesn’t include ammonium 

nitrate, so that is a problem for us. 

Can I just thank all of you? You have been terrific. I know that 

it has been hard to talk in very quick sound bites. We are used to 

it, but you are not, so I know it is hard. 

Mr. Hansen, you said in West Virginia the secondary containment failed. What was the secondary containment for this particular tank? 

Mr. HANSEN. For this site, there was what I believe to be a concrete block wall that surrounded the tanks, but there were two 

issues with the secondary containment. One is that that wall was 

not properly watertight, and the second issue is that it appears 

that the fluid that spilled actually went under the wall, into the 

river. 

Senator BOXER. Wow. You know, when I heard the name Freedom Industries, I thought, yes, the freedom to pollute everybody’s 

drinking water. It is a horrible example, which leads me to Mr. 

Pirkle. I am so pleased to see this initiative. And, you know, what 

troubles me about all of this is there are so many good actors involved in this and you have a few bad actors. When something bad 

happens, it hurts everybody else and it hurts, of course, the people 

impacted, some of whom don’t live to tell the tale. 

So I am going to ask you, in this ResponsibleAg, it is a voluntary 

deal, but do you have plans to publicize the people who join? Because I would love to help you in that, and I think that is one way. 

You get the seal of approval. This is important for people to know. 
233 

When they give their business to a chemical fertilizer retail store, 

or wherever it is, that they have joined this group. So I wondered 

whether or not you intend to take your ResponsibleAg logo and 

make it prominent and be recognized, which I would love to help 

you with. What are your plans on that? 

Mr. PIRKLE. Thank you, Madam Chair. Our plan is to have a 

public Web site developed, and those facilities that are vetted 

through the program would be published. We are in the early 

stages of branding the image, and the image would be branded and 

made available to those who successfully complete the program. 

Senator BOXER. Good. Well, I can’t encourage you enough, because, a, if only a few people join, it doesn’t mean that much; b, 

if you make this a marketing tool in the private sector, this is a 

good thing. It is like the Energy Star. People look for the Energy 

Star because they know that that refrigerator is better, and I think 

we ought to build on that or the bill I wrote, Dolphin Safe Tuna. 

If that little picture on there and people will buy, rather than the 

other one. Because they are voting with their feet. So I want to encourage that. 

My staff just handed me these unbelievable photographs. This is 

the wall that Mr. Hansen talked about, which had bricks just falling out. I don’t know if you can see it, but I will leave it up here. 

If the press wants to see the condition of this. You don’t have to 

have a degree in inspection to see the sorry state of affairs with 

Freedom Industries. 

Well, Dr. Wilson, in what ways can Government motivate industry to adopt inherently safer design options? 

Mr. WILSON. I was out, a week and a half ago, at the Tesero refinery, and the State of California had the authority to shut down 

the process that splashed acid on a couple of workers there, requiring their being air-lifted to UC-Davis Medical Center. It was a near 

miss. And in abating the problems sort of associated with that 

process, we could require the plant to implement training, we could 

require procedures, personal protective equipment. We could not 

require the plant to seriously investigate inherently safer design 

options, which other refineries have put in place 10 and 20 years 

ago for this particular process. So to motivate refineries in this 

case, but I think other plants, to take a direction toward a hierarchy of controls and inherently safer design, we have to require 

reporting, transparency, and, as I was saying, learnings from what 

the CSB has reported, and adherence to well recognized standards 

and codes in the industry itself. 

Senator BOXER. So you are going to require that. 

Mr. WILSON. That is the direction that the Task Force has recommended to 13 State agencies. 

Senator BOXER. Good. 

Mr. WILSON. We are moving forward with our regulations now. 

Senator BOXER. Good. Because at the end of the day everybody 

benefits from this. 

So I am running out of time, but I have one question for you, Mr. 

Hansen. I just want to say your understated approach belies, I 

know, what you feel about this West Virginia situation. What were 

the results of the in-home tap water testing that your company 

conducted in Charleston, did you find the chemicals from the Free-
234 

dom Industries spill still in tap water, even after their plumbing 

systems were flushed? 

Mr. HANSEN. We did. We did tap water testing in dozens of 

homes at the request of homeowners, they were our clients, and for 

the first set of samples that were taken between one and a half and 

3 weeks after the all-clear was given, we continued to find polluted 

water was being delivered to people’s homes. These were homes 

that had followed the proper flushing procedures and homes in 

which our technicians further purged the lines so that we were getting water as delivered by West Virginia American Water. In the 

first 10 homes that we tested during that time period, 4 out of 

those 10, or 40 percent, were still being delivered water that had 

quantities of MCHM. 

Senator BOXER. You know, just talking to my colleagues from 

West Virginia, this has been a huge blow to that State. You just 

think about it. One company, a really bad, bad player, bad actor 

has caused untold misery. So I just want to say to all of you who 

were in Government, protecting workers, nonprofits, in the industry, I think at the end of the day it is such a win-win if we all work 

together and not fight each other on how to fix this, and that is 

what I am attempting to do with the Manchin bill; talk to the 

chemical people, talk to the State folks, talk to Senator Vitter. 

We just need to be smart about this. There are so many chemicals out there, we all know that. We don’t even know what they 

do, but the least we can do is make sure they are stored safely and 

then make sure that, because they are stored in the right way, we 

don’t face all these other questions and whether or not this is going 

to really cause lasting harm. 

So I just wanted to thank the whole panel. I felt that the tenor 

of this was terrific. I call on the Working Group to get busy. They 

are not moving as fast as I would like to see because there is more 

we can do. But this committee stands ready to assist in all areas 

regarding West Virginia and the West explosion, because we don’t 

want to see the misery that has hit too many of our families. 

Thank you. We stand adjourned. 

[Whereupon, at 11:34 a.m. the committee was adjourned.] 

[An additional statement submitted for the record follows:] 

STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA

I want to thank Chairman Boxer for holding this hearing, and I also want to note 

how deeply saddened I am by the loss of life that’s been experienced at the chemical 

plant incidents over the last year. They are tragic, and my thoughts and prayers 

are with the impacted families. 

In light of this, I think it’s important that we highlight the great work that industry has been doing to respond to these incidents to make sure the risk of future accidents is minimized. 

The Fertilizer Institute, which we’ll hear from during the second panel, has led 

the way, responding quickly and aggressively to the accident that occurred in West, 

Texas. 

Though the cause of that accident remains unknown, TFI has identified that one 

of the major areas where improvements can be made across the industry is through 

education about safety regulations and compliance with them. 

Together with the Agriculture Retailers Association, they’ve created 

ResponsibleAg, which will serve as a voluntary accountability organization that will 

provide assessments to fertilizer facilities and other agriculture retailers to ensure 

they’re up to date with regulations, particularly as they relate to the handling of 

ammonium nitrate and anhydrous ammonia. 
235 

These assessments will be done every 3 years by auditors credentialed by 

ResponsibleAg. 

This is the kind of responsible action that displays the commitment of the private 

sector to conduct their operations in a safe and efficient manner, and I applaud 

them for the work they’re doing. 

Unfortunately, there are many who would like to use these tragedies as an opportunity to force Inherently Safer Technologies (IST) into regulations, which would 

give Government agencies the ability to mandate the designs of manufacturing processes. 

It’s a goal that’s inherent to the President’s Executive Order 13650, and it’s something that the Chemical Security Board wants to implement. EPA also thinks we 

should thoroughly evaluate the idea. 

But when you stop and think, it’s actually in every industry’s interest to design 

their facilities in the safest way possible. A disaster like those we’re discussing 

today can bankrupt companies; there is no incentive to be reckless in design. In fact, 

all normal business incentives direct companies in the opposite direction. 

Because of that, there is no need for the Government to exercise the kind of power 

that would be needed to evaluate and approve the manufacturing processes of every 

chemical facility, which is what IST regulations would require. 

If the Federal Government were given the power to mandate IST, all it would do 

is limit the great potential for innovation within this industry—which would quell 

its growth. 

The United States’ chemical industry employs nearly 800,000 people with an average wage of nearly $85,000, and the industry is booming—in just the last few years, 

nearly $100 billion in new facilities and expansions have been announced. 

The last thing we want is for this trend to stop. Safety and security are mutual 

goals of industry and Government, but mandating IST is the wrong approach. Rather than encourage this manufacturing renaissance, it would cause a chilling effect 

to ripple across the entire industry and stop this major growth story in its tracks. 

[Additional material submitted for the record follows:] 
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