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81–719 PDF 2003

S. HRG. 107–664

CHEMICAL SECURITY ACT, S. 1602

HEARING

BEFORE THE

SUBCOMMITTEE ON SUPERFUND, TOXICS, RISK,

AND WASTE MANAGEMENT

OF THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

ON

A BILL TO HELP PROTECT THE PUBLIC AGAINST THE THREAT OF

CHEMICAL ATTACKS

NOVEMBER 14, 2001

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

(
(II)

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

JAMES M. JEFFORDS, Vermont, Chairman

MAX BAUCUS, Montana

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

JON S. CORZINE, New Jersey

BOB SMITH, New Hampshire

JOHN W. WARNER, Virginia

JAMES M. INHOFE, Oklahoma

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

LINCOLN CHAFEE, Rhode Island

ARLEN SPECTER, Pennsylvania

BEN NIGHTHORSE CAMPBELL, Colorado

KEN CONNOLLY, Democratic Staff Director

DAVE CONOVER, Republican Staff Director

SUBCOMMITTEE ON SUPERFUND, TOXICS, RISK, AND WASTE MANAGEMENT

BARBARA BOXER, California Chairman

MAX BAUCUS, Montana

RON WYDEN, Oregon

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

JON S. CORZINE, New Jersey

LINCOLN CHAFEE, Rhode Island

JOHN W. WARNER, Virginia

JAMES M. INHOFE, Oklahoma

MICHAEL D. CRAPO, Idaho

ARLEN SPECTER, Pennsylvania
(III)

CONTENTS

Page

NOVEMBER 14, 2001

OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 1

Carper, Hon. Thomas, R., U.S. Senator from the State of Delaware .................. 15

Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New York ........ 9

Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey ...................... 3

Inhofe, Hon. Jim, U.S. Senator from the State of Oklahoma .............................. 8

Jeffords, Hon. James M., U.S. Senator from the State of Vermont .................... 40

Smith, Hon. Bob, U.S. Senator from the State of New Hampshire ..................... 11

Voinovich, Hon. George V., U.S. Senator from the State of Ohio ........................ 8

WITNESSES

Orum, Paul, director, Working Group on Community Right-to-Know ................ 21

Prepared statement .......................................................................................... 54

Letter, to Attorney General Ashcroft .............................................................. 68

Responses to additional questions from Senator Corzine ............................. 59

Shinn, Robert C. Jr., commissioner, New Jersey Department of Environmental Protection ................................................................................................. 17

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

Stanley, William, sourcing-regulatory manager, Deepwater Chemicals; on

behalf of the Synthetic Organic Chemical Manufacturers Association ........... 23

Prepared statement .......................................................................................... 69

Steinzor, Rena, academic fellow, National Resources Defense Council .............. 25

Prepared statement .......................................................................................... 76

Responses to additional questions from Senator Corzine ............................. 153

Webber, Frederick L., president and chief executive officer, The American

Chemistry Council ................................................................................................ 19

Prepared statement .......................................................................................... 43

ADDITIONAL MATERIAL

Articles:

Baltimore Sun, October 17, 2001, When Chemical Safety is a Matter

of Security ...................................................................................................... 91

Energy Insight Today, September 14, 2001, A Vulnerable System Looks

for Security .................................................................................................... 120

Environmental Science & Technology News, June 1, 2000, Anatomy of

a Successful Project ...................................................................................... 122

Houston Chronicle, July 23, 2001, Tunnel Damage Assessed After Derailment, Blaze .................................................................................................... 95

Los Angeles Times, January 6, 1985, Flaws Found in Emergency Plans

Near Toxic Plants ......................................................................................... 89

New York Times, January 28, 1985, The Bhopal Disaster: How it Happened .............................................................................................................. 81

Scientific American, July 1995, Toxins Abounding Despite the Lessons

of Bhopal, Chemical Accidents are on the Rise .......................................... 118

Washington Post, November 12, 2001, Toxic Chemicals’ Security Worries

Officials: Widespread Use of Industrial Materials Makes Them Potential Target of Terrorists ................................................................................ 79

Design for Prevention, Minimum Safety and Security Standards for EHS

Facilities ................................................................................................................ 66
Page

IV

Letters:

Design for Prevention ....................................................................................... 64–68

Greenpeace..................................................................................................... 165–167

Reports:

Assessment of the Incentives Created by Public Disclosure of Off-Site

Consequence Analysis Information for Reduction in the Risk of Accidental Releases, Department of Justice................................................... 103–117

Assessment of the Increased Risk of Terrorist or Other Criminal Activity

Associated With Posting Off-site Consequence Analysis Information on

the Internet, Department of Justice .......................................................... 96–102

Industrial Chemicals and Terrorism: Human Health Threat Analysis,

ATSDR, Department of Health and Human Services ............................ 130–137

Statements:

American Petroleum Institute ......................................................................... 153

Canary, William, president and chief executive officer, American Trucking Association, Inc. (ATA) ........................................................................... 155

Hind, Rick, legislative director, Greenpeace Toxic Campaign ...................... 164

National Association of Chemical Distributors .............................................. 168

National Propane Gas Association .................................................................. 170

Zillinger, Everett, director, Government Relations, The Fertilizer Institute ................................................................................................................. 159

Summary, S. 1602, Chemical Security Act ............................................................ 161

Text of S. 1602, Chemical Security Act .............................................................. 138–152
(1)

CHEMICAL SECURITY ACT, S. 1602

WEDNESDAY, NOVEMBER 14, 2001

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, SUBCOMMITTEE ON SUPERFUND, TOXICS, RISK AND WASTE MANAGEMENT,

Washington, DC.

The subcommittee met, pursuant to notice, at 2:08 p.m. in room

406, Senate Dirksen Building, Hon. Barbara Boxer (chairman of

the subcommittee) presiding.

Present: Senators Boxer, Inhofe, Specter, Corzine, Clinton,

Carper, and Smith, ex officio.

Senator BOXER. The hearing will come to order.

I’m going to ask the people on the second panel to please come

up and sit at the table since we really only have one person speaking on the first. Then the staff person can move directly behind the

person who is speaking. If all the people on the second panel can

come forth and take seats, I think it’s better because we want to

hear from all of you.

OPENING STATEMENT OF HON. BARBARA BOXER,

U.S. SENATOR FROM THE STATE OF CALIFORNIA

Today, the Superfund, Toxics, Risk and Waste Subcommittee will

hear about the threat proposed by toxic chemicals and the need to

assure the security of those chemicals. Specifically, we will hear

testimony on the Chemical Security Act introduced and written by

Senator Corzine and co-sponsored by Senators Jeffords, Clinton

and myself. We have had to reorder our priorities on a number of

issues, and this has taken on a new urgency since September 11.

The security of toxic chemicals throughout the United States is

very high on that list of priorities.

Whether there is a serious threat posed by toxic chemicals in

communities throughout the country, to my mind, is not in question. One of our witnesses today, Frederick Webber, president of

the Chemistry Council, is representing 180 major companies including Dow and Dupont. He said it well in an article on toxic

chemical security in the Washington Post just this week. He said, ‘‘No one needed to convince us that we could be and indeed would

be a target at some future date. If they are looking for a big bang,

obviously you don’t have to go far in your imagination. Just think

about what the possibilities are.’’

Others have taken note of the terrible threat and taken rapid

steps to address it. Since September 11, the District of Columbia’s

Blue Plains Wastewater Treatment Plant quietly at night, and
2

under guard, removed 900 tons of liquid chlorine and sulfur dioxide. Practically overnight they accelerated a program to use fewer

toxic chemicals like bleach, instead of chlorine gas, for wastewater

treatment. Chlorine and sulfur dioxide are so volatile that a rupture of just one 90-ton tanker could release a lethal cloud that

could spread over a 10-mile radius, killing thousands in just a few

minutes.

My State of California is near the top of the list of States with

facilities with extremely hazardous chemicals onsite. In fact, California has over 150 facilities with over 100,000 pounds of extremely

hazardous substances near 34 million people who live in California.

The threat is real and it requires immediate attention.

Senator Corzine has introduced S. 1602, the Chemical Security

Act. I believe this is just the kind of thing we need to do. We need

to get ahead of the problem and not just react to a tragedy. The

Chemical Security Act provides the Environmental Protection

Agency and the Department of Justice with the authority to intervene and issue an order when there is a serious threat posed by

problems with chemical security. It also requires that those agencies develop regulations that define priority sites and assure that

basic security precautions are taken which can include limiting the

chemicals stored onsite.

Let me just say that I understand the value of chemicals in our

society. We are not here today to question whether we need chemicals. We do. May be not quite so much of them, but we do need

chemicals. What we need to do is to protect those chemicals, especially the hazardous ones, from terrorist threats. Let’s be careful

not to mix up those two issues.

I want to hear from Senator Corzine, since he authored the Act;

and then we will go to Senator Inhofe and Senator Clinton for

opening statements.

I want to sadly note the absence of the Environmental Protection

Agency and the Department of Justice. They were both invited to

come here. They declined to come, and I have these nameplates in

case they show up. They are right here and I will put them out if

they change their minds.

Frankly, I am at a loss as to why they wouldn’t choose to comment on these issues, whether they agree with Senator Corzine’s

bill or not. We really wanted to hear from them. I don’t know

whether we will have to have another hearing where we require

their presence but I hope they will, of their own accord, choose to

engage with us.

We don’t have the luxury of time. We need to get ahead of these

threats. We need to act. Industry frequently resists additional regulation but I hope we can keep our eye on this ball. All of us have

a responsibility to make sure we do everything we can to keep our

country safe. Let us rise to the challenge.

Now, I will turn it over to the author of this very important bill,

Senator Corzine. Thank you for your leadership.

[The prepared statement of Senator Boxer follows:]

STATEMENT OF HON. BARBARA BOXER,

U.S. SENATOR FROM THE STATE OF CALIFORNIA

Today, the Superfund, Toxics, Risk Subcommittee will hear about the threat posed

by toxic chemicals and the need to assure the security of those chemicals. Specifi-
3

cally, we will hear testimony on the Chemical Security Act, introduced by Senator

Corzine and co-sponsored by myself, Senator Jeffords and Senator Clinton.

We have had to reorder our priorities since a number of issues have taken on a

new urgency since September 11. The security of toxic chemicals throughout the

United States is very high on the list.

Whether there is a serious threat posed by toxic chemicals in communities

throughout the country is not in question. In fact, one of our witnesses today, Frederick Weber, president of the American Chemistry Council, representing 180 major

companies, including Dow and DuPont, said it well in an article on toxic chemical

security in the Washington Post just this week.

He said, ‘‘No one needed to convince us that we could be—and indeed would be—

a target at some future date. If they’re looking for a big bang, obviously you don’t

have to go far in your imagination to think about what the possibilities are.’’

Others have taken note of the terrible threat and taken rapid steps to address

it. Since September 11, the District of Columbia’s Blue Plains Waste Water Treatment Plant, quietly at night and under guard, removed 900 tons of liquid chlorine

and sulfur dioxide. Practically overnight, they accelerated a program to use fewer

toxic chemicals like bleach instead of chlorine gas for wastewater treatment.

Chlorine and sulfur dioxide are so volatile that a rupture of just one 90-ton tanker

could release a lethal cloud that could spread over a 10-mile radius, killing thousands in just a few minutes.

My State of California is near the top of the list of States with facilities with extremely hazardous chemicals onsite. In fact, California has more than 150 facilities

with over 100,000 pounds of extremely hazardous substances.

The threat is real, and it requires immediate attention.

Senator Corzine has introduced S. 1602, ‘‘the Chemical Security Act.’’ This is just

the kind of thing we need to do—we need to get ahead of the problem and not just

react.

The Chemical Security Act provides the Environmental Protection Agency and the

Department of Justice with the authority to intervene and issue an order when

there is a serious threat posed by problems with chemical security.

It also requires that those agencies develop regulations that define priority sites

and assure that basic security precautions are taken, which can include limiting the

chemicals stored onsite.

Let me just say that I understand the value of chemicals in our society. We are

not here today to question whether we need chemicals. We do, maybe not quite so

much of them, but we do need them.

What we need to do is protect those chemicals, especially the very hazardous ones,

from terrorist threats. Let’s be careful not to mix up these issues.

I also want to note the absence of EPA and DOJ. They were invited, but declined

to come. I am disappointed that they have chosen not to comment on this issue or

this legislation. We need to address this head-on and work out our differences quickly. I certainly hope they quickly join us in this process.

We do not have the luxury of time. We need to get ahead of these threats. We

need to act. Industry frequently resists additional regulation, but I hope we can

keep our eye on the ball. All of us have a responsibility to make sure we do all we

can to keep our country safe. Let’s rise to the challenge.

OPENING STATEMENT OF HON. JON S. CORZINE,

U.S. SENATOR FROM THE STATE OF NEW JERSEY

Senator CORZINE. Thank you, Madam Chairman. It’s great to

work with you, Senator Jeffords and Senator Clinton on S. 1602,

the Chemical Security Act. Your longstanding leadership in environmental and public health issues is a great asset to the Senate.

I certainly, like many of my colleagues, we look to you for leadership in this area. I truly support your efforts and appreciate your

help here.

We also want to thank Senator Chafee for joining in holding this

hearing.

I think one of the fundamental facts you brought out so clearly,

is that chemical facilities are an obvious vulnerability. As opposed

to waiting until after the fact, it occurs to many of us, including

some of the witnesses today, that we ought to be working on these
4

obvious vulnerabilities and get ahead of the curve. This area with

regard to chemical production processing, transportation and disposal is an obvious area where terrorists could work.

The Justice Department called the terrorist threat to chemical

facilities real and credible. An April 18, 2000 report goes in detail

to describe where some of those vulnerabilities might exist. It really laid down the marker for us to act with regard to these areas,

not only with stationary facilities, but ones that are on our rail and

mobile systems as well.

So I think there is a lot for us to do. Unfortunately, the Justice

Department, which was asked to bring forward a vulnerability assessment of the nation’s chemical industry, was required in 1999

law, has not issued the assessment. We are still waiting for it. I

know Mr. Webber has spoken about this as an important study. I

think all of us should expect to have it completed, brought forward

and presented in a way so that we can use the results.

My own view, and I think it is shared by a number of people,

is that additional regulations are necessary. We didn’t really need

the Justice Department study to tell us that there have been serious accident problems. These findings could be translated into discoveries of more serious vulnerabilities with regard to terrorists attacks if they had been brought on a basis other than only accidents. We don’t have to go back to Bhopal or to recent events in

France to see that there is quite a bit of uncertainty about what

causes of accidents, Lodi Dye Company in New Jersey, where we

lost life, and the Baltimore rail tunnels.

I’m going to mention a circumstance on which I won’t give all the

details, but one of the investigative reporters at one of the New

York television stations, either tonight or in the next 2 days, will

document literally walking into two chemical and refining facilities

in New Jersey along the New Jersey Turnpike with a camera unchecked for over a hour. I think reveals that some of the concerns

one has with regard to the security of these plants is real.

I personally think regulatory response is necessary. A voluntary

approach, in my view, while desirable, may be one that I think the

American public would not take great comfort from. It’s not unlike

the kind of conversations and debate we are having with regard to

aviation security. Sometimes bottom lines get in the way of people

doing the right thing, particularly with respect to the lowest common denominator of some of the participants in the industry.

So I think self regulatory standards are a good concept, but not

always ones that work. I came from an industry where we had a

mixture of self-regulation and external regulation. I think they are

workable together. That is what we are trying to do with this bill.

This is a common-sense approach. We need to prioritize chemical

threats, take measures to reduce them.

We don’t have to do all things, but we do need to reduce comprehensive threats. This bill directs the EPA Administrator to consult with the Attorney General, States and localities to identify

high-priority categories within our chemical production, processing,

transportation and disposal infrastructure; designates those categories; allows the Administrator to set factors, including severity

of the harm from a potential release or proximity to population centers, threats to critical infrastructure that may surround these
5

issues, national security; and other things that the Administrator

may think are appropriate.

The bill directs the Administrator to consider threshold quantities of chemicals. I think this is one thing we will hear from one

of the witnesses. We can protect small business where there is little broad-based risk. On the other hand, it doesn’t leave out the

fact that we need to act with regard to the serious potential risks

associated with explosions, non-accidental, criminal and terrorist

acts.

It gives the Administrator the ability to act quickly in cases of

severe risk that is identifiable now, but does allow for a process to

unfold over the next 2 years both in identifying high priorities and

developing the regulations over a 2-year period. So it’s not a crash

program other than for those places that, on a case-by-case basis,

are particularly threatening.

I hope people will look at my home State of New Jersey which

does have a regulatory approach, not to find an absolute match; but

one I hope Commissioner Shinn will describe that I think has

worked reasonably well. I think regulation can play a positive role

if applied properly. Again, this is not overly proscriptive. We want

to work with the EPA, the Attorney General’s Office, industry,

State and localities to come up with it.

I hope the Administration gets to work on this and we can come

up with a relatively rapid response. We should not be acting after

the fact when many times our responses might have to be more

draconian, more severe and more difficult. I think we have before

us a more pragmatic approach.

Like Chairman Boxer, I too am somewhat frustrated that we

have not had the kind of participation from EPA and the Attorney

General’s Office with regard to this. It seems like we can talk

about it on CNN but not necessarily in a hearing room of the Congress. I hope we can get to those areas quickly.

Thank you, Madam Chairman, for holding the hearing, and I appreciate all the participants and their insights.

[The prepared statement of Senator Corzine follows:]

STATEMENT OF HON. JON S. CORZINE,

U.S. SENATOR FROM THE STATE OF NEW JERSEY

Thank you, Madame Chairman. I want to start by thanking you, Senator Jeffords

and Senator Clinton for working with me on S. 1602. Madame Chairman, your longstanding leadership in environmental and public health protection is a great asset

to the Senate, and I am proud to have you as an original co-sponsor of this bill.

I also want to thank you and Senator Chafee for holding this hearing today. I think

we need to get moving on this issue, and today’s hearing gives us an opportunity

to gather information about how best to proceed.

Madame Chairman, in the wake of the attacks in New York and Washington, it

is clear that we need to look at all of our nation’s assets and people as potential

terrorist targets. We need to shore up vulnerabilities that have already been exploited, such as airline security. But just as importantly, we need to identify other

vulnerabilities and address them proactively, before the fact.

I believe that one of our most obvious vulnerabilities is our nation’s chemical production, processing, transportation and disposal infrastructure. Like the chairman’s

home State, my State of New Jersey is the site of numerous industrial chemical facilities. These businesses have helped to build New Jersey’s economic strength, and

they produce valuable products that are essential to the nation’s economy. But the

chemicals found at these businesses also pose potentially grave risks to their workers and the communities that surround them. Some of these chemicals are highly
6

toxic, such as chlorine, ammonia or hydrogen sulfide; others are highly flammable.

They can all have major impacts on our communities.

In 1995, an explosion at a facility in Lodi, New Jersey killed five people. In June

1998, a release of cresol from a facility in Paterson, New Jersey forced the evacuation of a nearby school, and caused nausea and headaches in more than 50 kids,

two of whom were hospitalized overnight. These incidents are troubling, but they

pale in comparison to the most catastrophic chemical accidents that have occurred.

The release of methyl isocyanate gas from a chemical plant in Bhopal, India in 1984

caused more than 2,000 deaths and many thousands of injuries. And in September

of this year, an explosion in a fertilizer plant in France caused 29 deaths, thousands

of injuries, and damaged thousands of buildings.

Fortunately, we have not had such catastrophic accidents here in the United

States. But there is no question that the potential for severe harm exists at some

facilities. Some of the most compelling evidence in this regard are the worst-case

release scenarios that have been developed by approximately 18,800 chemical facilities as part of EPA’s Risk Management Plan. One component of the worst-case scenarios is an estimate of the number of people that could be adversely affected by

a ‘‘worst-case’’ release. An EPA analysis of the data shows that the median number

of people affected by a toxic worst-case release is 1,500. That means that the worstcase scenario at thousands of plants has the potential to impact thousands of people.

In the case of some plants that are close to large population centers, the number

of people potentially impacted by a worst-case scenario is more than a million. I certainly don’t want to name any of those facilities in this forum, but suffice it to say

that New Jersey, with its dense population, has its share.

Because of the potential to harm so many people by causing a chemical release,

chemical plants are attractive targets to terrorists.

This is not just my opinion, Madame Chairman. The Department of Justice studied this matter last year and concluded in an April 18, 2000 report that there is

a ‘‘real and credible threat’’ that terrorists would try to cause an industrial chemical

release in the foreseeable future. The Department noted that attacking an existing

chemical facility, for example, presents an easier and more attractive alternative for

terrorists than constructing a weapon of mass destruction. In addition, the Department concluded that many plants that contain hazardous chemicals would be attractive targets for terrorists because of the plants’ proximity to densely populated areas. Apart from this Justice Department threat assessment, the Agency for Toxic Substances and Disease Registry, conducted a study of more than 60 chemical plants

in West Virginia, Georgia and Nevada. The Agency found that security at those

plants ranged from fair to very poor.

Unfortunately, the Justice Department has not yet completed a related vulnerability assessment of the nation’s chemical industry that is required by law. I want

to join with the American Chemistry Council in urging the Justice Department to

complete this important study. It is more necessary than ever.

I know that the chemical industry takes safety seriously, and has been working

hard to address security issues since September 11. The American Chemistry Council has issued security and transportation guidelines, and has scheduled meetings

with its members to promote them. I applaud these actions, but I don’t think that

they are a substitute for regulations. I believe that most companies will do the right

thing, but I’m worried about the least common denominator. A company that wants

to cut corners is not likely to implement voluntary guidelines. The American Chemistry Council or any other industry association cannot and should not be put in the

position of having to self-regulate security standards. This is clearly a government

role, and one that requires new tools at the Federal level. Having said that, I want

to add that I want to work with industry on this bill, and fully expect industry to

play a key role in developing the regulations that the bill would require, as they

typically do. But I believe there should be no dispute that new regulations are needed.

The primary reason is that there are currently no mandatory Federal security

standards for any chemical facilities. Even those in densely populated areas. Even

those with large quantities of extremely hazardous chemicals. We do require owners

and operators of such facilities to prepare risk management plans that analyze the

potential offsite consequences of an accidental release of regulated substances.

These reports must include plans to prevent an unintended release, and to mitigate

the effects of such a release, should it occur. However, no Federal requirements are

currently in place that require specific steps to prevent releases caused by criminal

or terrorist activity.

Madame Chairman, S. 1602, the Chemical Security Act of 2001, would give the

Administration the mandate and the tools to take common sense steps to address
7

the highest priority threats from accidents and attacks involving hazardous chemicals.

To enable the Federal Government to take action upon enactment to address the

most serious risks on a case-by-case basis, the bill provides EPA and the Attorney

General the authority to issue administrative orders and secure relief through the

courts to abate an imminent and substantial endangerment from a potential accidental or criminal release.

To reduce threats in a more comprehensive way, the bill directs the EPA Administrator to consult with the Attorney General, States and localities to identify ‘‘high

priority’’ categories within our chemical production, processing, transportation and

disposal infrastructure. In designating these ‘‘high priority’’ categories, the Administrator is to consider a set of factors, including the severity of potential harm from

a release, proximity to population centers, threats to critical infrastructure and national security, and other factors the Administrator considers appropriate. The bill

also directs the Administrator to consider threshold quantities of chemicals in establishing high priority categories. This is to ensure that small businesses that pose

little risk are not subject to the regulations.

The bill then directs EPA to work with the Justice Department to develop regulations for the high priority categories that will require them to take adequate actions

to prevent, control and minimize the potential consequences of an accident or attack.

The bill includes other provisions to enable the EPA and the Attorney General

to carry out and enforce the act, such as the authority to obtain information that

may be needed, while providing for protection of trades secrets and national security

information.

Madame Chairman, the legislation is not overly prescriptive, and this is intentional. I believe that in the wake of September 11, it is self-evident that the possibility of chemical attacks is something we need to examine. So the heart of the bill

is a requirement that EPA and DOJ work with State and local agencies to ensure

that the highest priority threats from chemical

facilities are being addressed. But I don’t want to tie the hands of the Administration. I think that they should have wide latitude in determining what types of

chemicals and facilities need to implement better security measures and take other

measures to reduce risks. But I do think they need identify the biggest risks and

go after them.

Madame Chairman, strengthening security at high priority chemical sources is an

immediate and necessary step to safeguard our communities. Over the longer term,

however, I believe that our desire to protect our communities and our environment

will be best served by reducing the use of hazardous chemicals. That’s why this bill

includes provisions to require high priority chemical sources to reduce risks where

practicable by using inherently safer technology, well-maintained secondary control

equipment, robust security measures, and buffer zones.

We have seen this type of approach work in New Jersey, where the legislature

enacted a law requiring facilities to implement alternate processes that would reduce the risk of a release of extremely hazardous substances. After the enactment

of this law, the number of water treatment plants using levels of chlorine at a level

considered extremely hazardous decreased from 575 in 1988 to 22 in September of

2001. Chlorine, which can cause a number of problems include burning of the skin

and eyes, nosebleeds, chest pain, and death, was replaced by sodium hypochlorite

or other much less hazardous chemicals or processes.

Finally, Madame Chairman, I want to say that like you, I am very disappointed

that the Administration chose not to send witnesses to the hearing today. Congress

and the Administration need to work together on chemical security, as we do on all

of the post-September 11 challenges and vulnerabilities that we face. I know that

EPA has been working on this issue, because I saw Administrator Whitman talking

about it on CNN last Friday. Even if the Administration was not prepared to provide detailed testimony on the bill, they could have sent someone to answer whatever questions they are prepared to answer at this point. So I want to reiterate my

call to the Administration to work with this committee and this Congress on chemical security. If you believe, as I do, that new Federal authorities and regulations

are needed, then help us craft a proposal. If you’re opposed to new security regulations, you need to explain that view to Congress and the American people.

Thank you Madame Chairman.

Senator BOXER. Thank you, Senator Corzine, for authoring this

bill.

Senator Inhofe, we will hear from you.
8

Senator INHOFE. Thank you, Madam Chairwoman.

First, I’d like to ask unanimous consent that Senator Voinovich’s

statement be placed in the record at this point.

Senator BOXER. Without objection, so ordered.

[The prepared statement of Senator Voinovich follows:]

STATEMENT OF HON. GEORGE V. VOINOVICH, U.S. SENATOR FROM OHIO

Thank you, Madam Chairman for calling this hearing on the Chemical Site Security Act. While I agree with the goals of this legislation, to safeguard our nation’s chemical facilities and reduce the vulnerability of our nation to the release of hazardous chemicals. I believe we need to be very careful in how we go about this.

First, I believe the appropriate subcommittee to consider this Bill is the Clean Air

Subcommittee. This issue is an outgrowth of the Risk Management Plan program

under the Clean Air Act. Last Congress, the Air Subcommittee considered S. 880,

Chemical Safety Information Site Security Act, which was enacted into law. In addition, the Chemical Safety Board, the board this committee created to investigate

chemical accidents is also within the Clean Air Act. I will be asking Senator

Lieberman, the Chairman of the Clean Air Subcommittee to hold a hearing on this

Bill before it is considered by the full committee.

Second, I hope we don’t use the urgency of September 11 to justify fast tracking

this Bill because the legislation does not address the immediate issue of site security. Like most members of this subcommittee, I would like to see our hazardous

chemical sites better protected, however, categorization is only required within 1

year of passage of this legislation. Moreover, it will take 1 year to establish all the

rules to address high priority chemicals and it will take even more time to implement those rules. Overall, we may not even see the full effect of this bill for some

4 or 5 years, therefore there is no urgency to rush this legislation through the process.Third, the regulatory process is not conducive to this issue since everything, including proprietary information, would need to be made public. The comment period

alone would likely address how to prioritize, give locations and quantities of high

priority chemicals and in general provide great amounts of sensitive data publicly

available through the rulemaking process. Such a dissemination of information

could be a tremendous public safety risk and possibly an even greater threat to national security. Last Congress the FBI told this committee that the publication of

the ‘‘worst-case scenario’’ plans under the Risk Management Program could be used

by terrorists for targeting of facilities.

We must be certain that the information called for by this legislation will not create a similar risk.

Finally, the bill places a significant burden on small businesses, even those just

trying to determine whether the bill or subsequent regulations would apply to their

particular company. Because of the unique dynamic of batch and specialty chemical

production, these businesses need operational flexibility. This bill would take away

that flexibility by mandating specific processes, hampering small companies from reacting quickly to the marketplace. This could restrict a small company’s ability to

compete globally. We must ensure that any legislation considered by the committee

will not result in releasing trade secret information or cause a national security risk

by disclosing information which could be used by potential terrorists.

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator INHOFE. I, first, want to welcome Mr. Bill Stanley, the

sourcing-regulatory manager of Deepwater Chemicals from Woodward, OK. As everyone knows, Oklahomans are no strangers to terrorism. It will be very interesting to hear Mr. Stanley’s testimony

not only from the perspective of a small chemical company, but also

as a citizen and father.

Security must be our top priority, and we need to figure out what

are the potential problems and what is the best way to address

those problems. I know everyone is ready to do their part to fight

and respond to terrorism, but that is why Congress needs to work

with the President to develop a well-thought-out strategy. As a
9

matter of process, I am concerned about us getting ahead of the

President and Homeland Security Director Ridge on this issue.

Governor Ridge is working hard to assess the threats and corresponding security measures to the chemical industry as well as

other potential terrorist targets. I know Governor Ridge is working

with all the agencies to assess needs and coordinate responses. Additionally, Governor Ridge should be working with the various sections of industry to assess their security needs. I’m still waiting for

the Office of Homeland Security to develop proposals in order to

see what security issues we as a nation need to address.

I have some real problems S. 1602. In particular, I feel many of

the titles of this bill would do nothing to address the terrorism

threats. I hope this hearing is the beginning of a well-thought-out

process. FEMA, the EPA and other agencies have been working

hard to coordinate response efforts. When addressing relevant legislative issues, Congress should follow FEMA’s and EPA’s example

so we, as lawmakers, can make our nation proud.

Thank you, Madam Chairman.

[The prepared statement of Senator Inhofe follows:]

STATEMENT OF HON. JIM INHOFE, U.S. SENATOR FROM OKLAHOMA

Thank you, Mrs. Chairwoman. I first want to welcome Mr. Bill Stanley, the

sourcing-regulatory manager of Deepwater Chemicals, from Woodward, OK. As everyone knows, Oklahomans are no strangers to terrorism, and it will be very interesting to hear Mr. Stanley’s testimony not only from the perspective of a small

chemical company, but also that of a citizen and father.

Security must be our top priority, but we need to figure out: what are the potential problems; and what is the best way to address those problems? I know everyone

is ready to do their part to fight and respond to terrorism, but, by firing before we

have aimed, all Congress could end up doing is wasting precious resources on nonexistent problems while neglecting real problems.

That is why Congress needs to work with the President to develop a well thought

out strategy. As a matter of process, I am very concerned about us getting out ahead

of the President and Homeland Security Director Ridge on this issue—among others. Governor Ridge is working hard to assess the threats and corresponding security measures of the chemical industry as well as other potential terrorist targets.

I know that Governor Ridge is working with all the agencies to assess needs and

coordinate responses. Additionally, Governor Ridge should be working with the various sects of industry to assess what their security needs are.

While I am still waiting for the Office of Homeland Security to develop proposals

in order to see what security issues we as a nation need to address, I have some

real problems with S. 1602. In particular, I feel like many of the titles of this bill

would do nothing to address terrorism threats.

I hope that this hearing is the beginning of a well thought-out process. FEMA,

EPA, and other agencies have been working hard to coordinate response efforts.

When addressing relevant legislative issues, Congress should follow FEMA’s and

EPA’s example, so we, as lawmakers, can also make our nation proud.

Senator BOXER. Thank you so much.

I recognize Senator Clinton, who is an original co-sponsor of this

bill.

OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON,

U.S. SENATOR FROM THE STATE OF NEW YORK

Senator CLINTON. Thank you very much, Madam Chairman, and

thank you for holding this hearing.

Thank you also, Senator Corzine, for bringing attention to this

important issue. I think it is one that all of us on this committee

know needs to be addressed. We may have some differences of

opinion about timing or content, but I think it’s clear that the chal-
10

lenges that confront us since September 11 require a new level of

alertness and preparedness and certainly increased security has become a major focus for the Federal Government as well as for State

and local governments and private industry.

We are taking hard looks at our nation’s airports, at our water

treatment plants, at our nuclear power plants, at all of our critical

infrastructure and certainly our chemical plants which do provide

so many of the products that are important to our quality of life

and the functioning of our economy fall into the category of important infrastructure and security challenges.

I think it’s our job to try to find out the best ways to help provide

State and local governments, as well as private industry with the

tools and resources they need to address any challenges we confront. I’m concerned that the Justice Department assessment has

not yet been completed as required by law. An April 2000 DOJ assessment concluded that, ‘‘The risk of terrorists attempting in the

foreseeable future to cause an industrial chemical release is both

real and credible.’’ Terrorists are likely to view the potential of a

chemical release from an industrial facility as a relatively attractive means of achieving their goals.

Because we don’t have a comprehensive assessment of this problem and I hope we will soon, we have gone on the basis of the information available to date including this preliminary assessment

from the Department of Justice. A number of States as well as the

chemical industry have engaged in their own assessment and certainly the underlying need that Senator Corzine’s legislation addresses I think is without contradiction. It is a question of how we

proceed from here to provide the maximum security that we possibly can.

Tomorrow, I will be introducing legislation, the Homeland Security Block Grant Act of 2001, which will provide relief to local and

State governments to support them because clearly if there is a

chemical problem, either accidental or deliberate, those who are on

the front lines of emergency response are going to be the soldiers

in that battle to try to contain whatever has occurred. Under this

legislation, cities, counties and towns across America would be able

to access Federal funds to better prepare themselves to provide additional law enforcement, fire and emergency resources. I’ve been

meeting with emergency readiness experts and they tell me there

is a tremendous gap between what we require in terms of the

equipment, the uniforms, the spacesuits that are required to encounter a lot of these dangers and what is available at the local

level.

We also have to continue to provide help to local agencies to design, review and improve their disaster response systems, to train

our personnel and to better coordinate among all levels of government as well as with the private sector. I applaud our Ranking

Member, Senator Smith of New Hampshire, for his attention to the

needs that FEMA under the Stafford Act has in order to be totally

up to date and well prepared.

I look forward to the witnesses testimony and to the work we can

do in this committee along with the Administration and the chemical industry to try to make sure we are prepared and despite the

failure of the Justice Department to meet its legally mandated,
11

statutory deadline of August 5, 2000 for this interim study, we will

be paying close attention to the challenges that we now know are

not just imagined but real but potential terrorist attacks.

I thank Senator Corzine for his leadership on this issue.

Senator BOXER. Thank you, Senator.

Senator Smith.

OPENING STATEMENT OF HON. BOB SMITH,

U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE

Senator SMITH. Thank you, Senator Boxer, for holding this hearing today on a topic that is very important to all of us. Thanks to

each of the witnesses for coming today to discuss security.

Also, let me express my apologies for having to leave after I do

a brief statement because of other conflicting obligations. I will try

to come back but if I don’t, it doesn’t mean I’m not interested.

The attacks that we saw on September 11 have left us all with

a certain sense of vulnerability. All of us have been reevaluating

security measures, what could be potential targets all over the nation ever since that day. In New Hampshire, I visited airports,

water facilities, nuclear powerplants, transportation infrastructure,

manufacturing, an old air base which is now a National Guard facility as well as a shipyard. Like it or not, September 11 has

changed us all forever. We are now caught in the ongoing process

of adjusting to the new normal, if you will. What was normal yesterday is not normal today.

We certainly want to get the most effective security possible.

We’ve all been involved in that. I’ve authored legislation to deal

with security matters for water infrastructure and have joined Senator Inhofe in a bill to address nuclear powerplant security and am

pleased to be working with Chairman Jeffords to address many

other security and terrorism response issues. Of course I would

work with any member of the committee to try to address needs

we might have.

Protection of our country is not a partisan issue and I think we

all recognize that. When we talk about security, we must realize

there comes a responsibility to legislate in an effective and efficient

manner, as much as possible. We have to base our decisions on the

accurate assessment of the situation, what the needs are and understanding of the role of the private sector and the role and responsibility of government. We try as best we can to base our response on facts as opposed to what might be fear tactics or even

in some cases, sensationalism.

I commend Senator Corzine for bringing this matter to the front.

I do not believe, however, that his legislation is the right answer,

respectfully, and I just want to briefly point out why. I share his

desire for our chemical infrastructure to be safe and prepared but

I would advocate a different approach, especially as it comes to

achieving security.

Security, in my view, should be a cooperative effort between the

facility we are talking about, whatever it might be, and the local,

State and Federal law enforcement. It shouldn’t be confrontational.

It should be a partnership with an open line of communication. It’s

only through working together and building trust that we’re ever

going to be able to deal with these issues. We can’t anticipate
12

what’s going to happen or the extent of it. Usually we can’t. Sometimes we get a heads up but unfortunately, not often enough. Cooperation, partnership, team work, coordination are the hallmarks

of successful security, not confrontation.

With respect, I would say to the Senator from New Jersey this

bill takes a different approach. It seems to me to make an assumption that somehow the chemical industry doesn’t seem to share the

concern and must be mandated to take responsibility to see that

the protection would occur. There is a new regulatory punitive regime that creates frankly an adversarial relationship under S.

1602. That might not be the intent of the author, but I think that

is the result.

A strained relationship between the private sector and government is not going to lead to increased security; it’s got to be cooperative. We’ve seen tremendous cooperation since the horrible events

of the past few weeks between all levels of government and the private sector. I don’t want to weaken that. That’s not how we are

going to protect the public. I know it’s not the goal of the author

to do that and I respect that.

There is another fundamental question the bill brings to the forefront and that is what is the proper role of the private sector. I

think it’s good you brought that forward. What is the role of the

private sector in protecting itself against potential criminal acts or

an act of war? Clearly the acts of terrorism that we have seen are

acts of war but it’s a question, not being here, that I would pose

to the witnesses. Where do you believe the line of responsibility is

for protection against criminal acts? Where does the private sector’s responsibility end and law enforcement begin? I’m not sure

how we would ever assess that. We all pay taxes that support the

military and local law enforcement. The Constitution mandates a

primary responsibility of the government to ‘‘provide for the common defense.’’ In this bill, that law enforcement responsibility is

that of the facility, in my view. It actually makes it a crime for not

being able to prevent and act of terrorism. I think we have to think

very carefully about this. It would be a crime under this bill to be

the victim of a criminal act that caused a release. That’s a disconcerting proposition for many small businesses around the nation

who would fall under this legislation.

I want to support measures that improve our industrial security.

I believe it is the responsibility of these private facilities to make

all reasonable measures in providing security. You do it to protect

your assets, you do it to protect the population, you do it to protect

your workers. Certainly you don’t want to provide releases into the

environment. A post–September 11 security assessment of all the

nation’s infrastructure is something we need to do. I think we all

have a responsibility to do that and I think this legislation gets

that debate started but security measures by individual facilities

should not be expected to take the place of law enforcement. I

think it is very important to make that distinction. They need to

be done in concert with law enforcement, not replacing.

I’m also very concerned that the bill might give the Federal Government the power to determine manufacturing processes and even

changes in the physical structure of the plant, again, maybe not
13

the intention but certainly it could happen. It puts the Government

in the position of making business decisions.

Finally, let me say S. 1602’s role, if you really look at it, is basically one of role reversal here. The bill would put the Government

in charge of chemical manufacturing and chemical manufacturers

in charge of fighting terrorists. It should be the opposite. That’s not

what we want to happen here. That’s not the responsibility. We

need to work together but it shouldn’t be one or the other.

I hope, Madam Chairman, as we move through the discussion

that we can address some of these concerns and I, in all sincerity,

commend Senator Corzine for bringing the matter to the forefront

and we will have a good debate.

[The prepared statement of Senator Smith follows:]

STATEMENT OF HON. BOB SMITH,

U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE

Thank you, Senator, for holding this hearing today on a topic that is important

to all of us. I want to thank our witnesses for coming here to discuss chemical security.

The attacks of September 11 have left us all with a sense of vulnerability. Since

that day, we have been reevaluating security measures at what are potential targets

across this nation, whether it is our airports, water facilities, nuclear power plants,

transportation infrastructure, or our manufacturing facilities. Sadly, September 11

changed us forever—we are now caught in an on-going process of adjusting to a new

‘‘normal.’’

I continue to be a strong supporter of ensuring the most effective security possible. I have authored legislation to deal with security measures for our water infrastructure facilities and I have joined Senator Inhofe in introducing a bill to address

security measures at nuclear power plants. I am pleased to be working with the

chairman of the full committee to address many other security and terrorism response related issues. I will work with any member of this committee to ensure that

any potential security gaps are identified and properly addressed.

The protection of our country is not a partisan issue—and I will never treat it

as such. When we talk about security, we must realize that there comes a responsibility to legislate in the most effective and efficient manner possible.

We must base our decisions on an accurate assessment of the situation, needs,

and clear understanding of the role of the private sector—and the role and responsibility of the government. We cannot base our decisions on sensationalism or in response to fear tactics B, we must rely on the facts.

I want to commend Senator Corzine for his interest and efforts with regard to

chemical site security—but, unfortunately, I do not believe his legislation is the

right answer. I certainly share with him a desire for our chemical infrastructure to

be safe and prepared, but I would advocate a different approach for achieving security.

Security should be a cooperative effort between the facilities and local, State and

Federal law enforcement. It should be a partnership with a constant line of open

communication. It is only through working together and building trust that will provide for the highest level of security against any potential attack. Cooperation, partnership, teamwork and coordination are the hallmarks of a successful security apparatus.

Unfortunately, this bill takes a different approach. S. 1602 establishes a new regulatory, punitive regime that will create an adversarial relationship between industry and government. A strained relationship between the private sector and government will not lead to increased security, but will only serve to weaken our ability

to protect the public. And I know that is not the goal of the author of this bill, and

it is certainly not the outcome I desire.

Another fundamental question that this bill brings to the fore is: What is the

proper role of a private sector entity in protecting itself against potential criminal

acts or acts of war?

Clearly the acts of terrorism that we have seen are acts of war. It is a question

that I wish to pose to each of our witnesses: Where do you believe the line of responsibility is for protection against criminal acts? Where does the private sector’s responsibility end and law enforcement’s begin?
14

We all pay taxes that support a military and local law enforcement. The Constitution mandates a primary responsibility of the government to ‘‘provide for the common defense.’’ In this bill that law enforcement responsibility is that of the facility.

This bill actually makes it a crime for not being able to prevent an act of terrorism. In fact, it would be a crime to be the victim of a criminal act that caused

a release. That is a disconcerting proposition for the many small businesses around

this nation who would fall under this legislation.

I do support measures that will improve our industrial security, and I do believe

that it is the responsibility of these private facilities to take all reasonable measures

in providing security, preventing releases and responding if one occurs. And a postSeptember 11 security assessment of all this nation’s infrastructure is an absolute

must.

I am disappointed that the previous Administration did not do this—as the law

did require. But any security measures by individual facilities should not be expected to take the place of law enforcement. They should be done in concert with

law enforcement.

I am also very concerned with provisions in this bill that gives the Federal Government the power to determine manufacturing processes and changes in a facility’s physical structure. It puts the government in a position of making business decisions.

S. 1602 is basically one of role reversal—the bill would put the government in

charge of chemical manufacturing and chemical manufacturers in charge of fighting

terrorism. I do have a number of other concerns with the bill—such as the

redundancies with other laws, including transportation laws, that could cause problems. But given that I am short on time, I will stop here.

I would like to ask unanimous consent that a letter from the Association of American Railroads expressing opposition to S. 1602 be placed into the record. I do,

again, want to commend Senator Corzine on his efforts, and I hope to work with

him to address these concerns and the mutual desire we all share with protecting

this nation from terrorists’ attacks.

Thank you.

Senator BOXER. Thank you, Senator.

I think the debate has started. I’m going to make a couple of responses. That’s what we are fighting for, isn’t it—the ability to debate these matters. I want to respond very briefly to the comments

made by my colleagues and my Republican friends.

First, the comment that we shouldn’t get in front of the Bush Administration in taking on this issue; we should wait for Secretary

Ridge and so on. I don’t agree that it’s the role of the Senate to

do nothing on important issues, whether we have a Democrat in

the White House or a Republican. I have a theory that not all wisdom resides at the White House, regardless of who the President

is. I think we have a role to play and that’s why I think this is

so important.

I think more to the point is the terrorists might not wait for Secretary Ridge to have his plan in place. That’s another reason why

I think it’s important to act and important to push to do what the

right thing eventually we decide will be. I think this bill is certainly on track.

The other question Senator Smith points out, that we should

have cooperation, we shouldn’t mandate, is an important issue and

I would like him to think about this. If we didn’t mandate that

there were hand baggage checks at airports, would the airlines do

it? If we didn’t mandate checking for bombs in the cargo hold,

would the airlines do it?

Senator SMITH. Frankly, I think they would, with all due respect,

if they wanted anyone to fly.

Senator BOXER. If we didn’t mandate background checks on employees with access to planes, would the airlines do it? The answer

is, they haven’t, they still aren’t and today, Secretary Mineta had
15

to demand they do the background checks on the new employees.

So let’s get real. The fact is we do work with the business community but the other fact is there are times when you have to pass

laws and you work with the industry in passing the laws, but there

may be some good apples and some bad apples out there, some people who do the right thing, some companies who do the right thing

and some who are so concerned about the bottom line that they

don’t. That’s why we need fair laws.

I think the debate we’ve seen so far has been a good one, but I

think it goes to the heart and soul of some deeper issues.

I see that Senator Carper has arrived. Do you have an opening

statement before I ask Senator Corzine to respond to the attacks

on his bill and to introduce Mr. Shinn?

OPENING STATEMENT OF HON. THOMAS R. CARPER,

U.S. SENATOR FROM THE STATE OF DELAWARE

Senator CARPER. The frontal attacks? He’s got broad shoulders,

I’m sure he’s up to it.

Let me just say the chemical industry, probably no surprise to

the folks in this room, is clearly important to our country, and is

important to Delaware as well. I think Senator Corzine is asking

a lot of the right questions. I want to make sure with the help of

the folks at the table and a lot of others that aren’t at the table,

we end up with the right answers.

Senator BOXER. That’s the point of this hearing really to listen

to all the comments and try to help move this process forward. Senator Corzine, will you take some time to respond and also to introduce Mr. Shinn. Then I’ll introduce the other four panelists we

have and we will get started.

Senator CORZINE. I’ll be brief but I do think some response might

be in order.

First of all, I couldn’t agree more that I think we were elected

by the constituents of our various States to respond to their needs

and be attentive to the kinds of risks they associated with. So I

think it would be kind of hard for Senators to ignore the kinds of

problems that potentially put their lives at risk. I will repeat, we

have an immediate example in New Jersey where the security associated with one of the local plants broke down. We’ll find more

about the specifics of that over the next 48 hours, but a very clear

situation of a breakdown in security.

I believe this is a cooperative effort. I’ve tried to sit down with

some of the folks in industry, and I don’t think these regulations

should be written in a vacuum. They should take into account the

kinds of perspectives that individual businesses might bring. As a

matter of fact, I think proscriptive legislation and detail is something we’ve tried to stay away from in this bill. It is giving time

for the evolution of the specific regulatory structure and prescribes

only that industry be involved in that process. I think cooperation

is the fundamental element of it. I believe that to be the case in

regulation in general.

As regards victims as criminals, which I think we will hear more

about, this bill was specifically written that people would only have

criminal liability when there was negligence that had been identified through a regulatory process and discussed and then criminal
16

liability could occur if there were an event that was concurrent or

followed after there had been an identification of an issue. It’s not

the first order of penalties or incentives, but for the life of me, I

don’t understand how we would be able to justify that we have a

regulatory investigation or supervision and identification of a problem, and a recommendation of a solution, but it is ignored and becomes a problem that threatens the public or actually involves the

public. Why wouldn’t that be subject to criminal responsibility? I

think that’s different than going straight to criminal responsibility.

As far as government making decisions about the chemical industry and turning things around and indicating the government is

running the chemical business, I think that would fly in the face

of almost every regulatory regime that we have in the country. I

came from a very strongly regulated industry and the securities

business for the SEC is very much involved in supervising certain

aspects of how the securities business works. We are having enormous national debate with regard to the aviation security. I think

that is on its surface an argument that has failed in the context

of seeking to reach out and work with the industry to come to these

points of view.

We should have those discussions. We should have them with all

the people at the table and all the others to try to bring an effective, cooperative program that gives the public a sense of security

as well as just only looking at the bottom line of the industry.

It is my pleasure to introduce the commissioner of the Department of Environmental Protection of New Jersey. He is one of my

favorites because he’s bald and has a beard. That obviously means

he has great insights to these kinds of issues.

He has served under the current Director of the Environmental

Protection Agency, Governor Whitman; was appointed in 1994 as

commissioner for New Jersey’s Environmental Protection; has a

very strong reputation in our State; spent many, many years as an

elected official at local, county and State levels; a very strong

record and devotion to open space, the Pinelands, which is a special

natural risk of New Jersey, farm preservation, water supply and

solid waste management, very skilled.

It’s my pleasure to welcome Commissioner Shinn to our hearing.

Senator BOXER. Thank you, Senator, and we will hear from him.

Following Mr. Shinn, we are going to hear, in the following order,

from Mr. Webber, president and chief executive officer, American

Chemistry Council, an industry group representing major chemical

companies. The chemical industry is certainly an important partner in chemical security and we all hope we can work together with

you as we move forward on this bill.

Next will be Mr. Paul Orum, director, Working Group on Community Right-to-Know, which serves among other things, as a

clearinghouse on environmental risk information. Mr. Orum has

worked for more than a decade on issues related to the reduction

of chemical hazards and on efforts to reduce toxic pollution.

Then we will hear from Mr. Bill Stanley, the sourcing-regulatory

manager of Deepwater Chemicals in Woodward, OK. We heard you

praised by our good colleague from Oklahoma. Mr. Stanley is here

today on behalf of the Synthetic Organic Chemical Manufacturers

Association. Mr. Stanley brings a little different perspective in that
17

his focus is more on small business. Assuring the security of toxic

chemicals at small as well as large facilities is important if communities are to be adequately protected.

Our last witness is Ms. Rena Steinzor, academic fellow, National

Resources Defense Council. Ms. Steinzor is a fellow with the Council. The Council is a national nonprofit organization of scientists,

lawyers, economists and other environmental specialists focused on

protecting the public health and the environment. NRDC has more

than half a million members nationwide.

We will start with Mr. Shinn. We will use the clock for 5 minutes

but after that, you can go for another minute or so and when it

gets really over time, I will remind you. Please proceed.

STATEMENT OF ROBERT C. SHINN, JR., COMMISSIONER, NEW

JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

Mr. SHINN. Thank you for inviting me to testify today.

I am Bob Shinn, commissioner of the New Jersey Department of

Environmental Protection. I sincerely appreciate this opportunity

to talk about chemical plants, not only containment but security as

well.

I want to take this opportunity to also commend Senator Corzine

for the leadership in addressing this issue. It is certainly a controversial one as we’ve seen already. In light of September 11, discussion on the need to ensure adequate safeguards to protect the

public from any accidental or intentional releases of hazardous

chemicals, is especially pertinent and timely. Due to security concerns and our nervousness in New Jersey about the sites and

chemicals, my testimony will be general and not specific. I’m sure

everyone understands that.

There are two major themes I’d like to touch upon today. First,

I’d like to give the committee the benefit of New Jersey’s experience and successes in the area of chemical safety preparedness and

response. The second point I’d like to make is that even in a State

such as New Jersey with a successful and comprehensive chemical

safety program, there are certain areas in which augmented Federal authority would enhance our efforts.

While New Jersey’s program is focused on prevention of accidental releases of extraordinary hazardous substances and not

those releases caused by terrorist actions, we feel the system we

have set up and the preparedness we have instituted positions us

in a good way. We are not only on guard against such an unfortunate occurrence but we must better be able to respond if it did

occur.

In the course of nearly two decades, we have built a coordinated,

effective program that not only works to prevent releases of hazardous chemicals but also provides us with the information and infrastructure so that we can respond on very short notification. The

release of hazardous substances does happen. In this way, any releases that do occur, whether accidental or intentional, can be contained and the impact minimized. While our program in its entirety may not be transferable to the Federal level, I hope this committee will be able to take components of what New Jersey has

done and use pieces of it for the national benefit.
18

New Jersey is the nation’s most densely populated State and

there are also a large number of facilities that produce or use highly toxic chemicals. This has compelled us to be especially diligent

in ensuring there is little possibility that the public will be exposed

to the releases of these substances. I’m not here to imply there our

level of regulation would be appropriate for or should necessarily

be imposed upon other States that do not have New Jersey’s population dynamics or the proximity of a number of facilities to the

public.

In 1986, shortly after the tragic accident in Bhopal, India, the

New Jersey Legislature passed the centerpiece of the effort I’m discussing, the Toxic Catastrophe Prevention Act, commonly known as

TCPA. It enabled our State to develop what is the most comprehensive program in the country to prevent accidental releases. Before

I describe some of the more salient points regarding our regulatory

process, there is one feature of the program I would like to highlight. While it’s a regulatory program, it was designed in cooperation with the regulated community. Cooperation has been in place

since the very beginning of the program when we created the initial rules in the 1986–87 timeframe with a very heavy industrial

population and very heavy industrial involvement.

Professional chemical safety experts from the chemical industry

and the insurance industry helped us write the rules in the first

place. A lot of time was spent with these professionals to make

sure that the technical requirements were valid and appropriate. A

few years ago when we readopted our TCPA, we readopt regulations on a 5-year cycle, we incorporated the Federal Accidental Release Prevention Requirements and to make other improvements

we had again intense interaction and discussion with the regulated

community over a period of months. We asked for and received up

front input from the regulated community. We feel this hand in

hand approach has made for a more effective regulatory concept.

This cooperative spirit has also been reflected in the implementation of our program.

In the past an environmental inspection could often an adversarial encounter resulting in fines, penalties and orders. We found

it very effective to use these inspections to emphasize compliance

assistance rather than solely as a violation spotting visit. When we

perform an inspection of the TCPA regulated facility, a typical inspection will be performed over the course of an entire week during

which we will work with the facility managers to examine alternatives and in many cases, involving the use of pollution prevention, innovative technologies and some process change to bring facilities into compliance. Many facilities realize efficiencies and enhance their profitability and reduce liability once they implement

changes to their process.

We would strongly recommend that any Federal legislation in

this regard promote a compliance assistance approach to regulation, without sacrificing appropriate enforcement response when

necessary. I realize this is a fine line and has to be considered what

it is well worth the effort to achieve the optimal goal.

There are several key features in New Jersey’s TCPA Program

that have contributed to the success of the program which you may

wish to consider in working through the Federal program. The
19

main thing I would suggest is that the overall philosophy is expressed in Section 112(r) of the Clean Air Act place a greater emphasis on prevention and preparedness. In New Jersey we emphasize identification of risks and the steps that should be taken to reduce those risks. At this time, we need to be cognizant not only of

accidental releases but those that may be intentional as well with

a renewed emphasis on front end pollution prevention and quantitative risk analysis.

In New Jersey our law requires regulated facilities to perform

comprehensive reviews and risk assessments of all possible release

scenarios that may be caused by offsite impacts. Presently Federal

regulation only requires facilities to perform analysis of worse case

scenarios and one alternative case scenario. Furthermore, in New

Jersey we realize these facilities quantitatively assess and characterize risk going a step beyond any other process safety management and risk management programs in the United States. This

means that potential releases and resultant offsite impacts that

may occur after each scenario must be quantified. To date, Federal

regulation does not require that process. We’d recommend quantification be required where it is appropriate.

Senator BOXER. Thank you very much, Mr. Shinn.

We have been joined by Senator Specter who has said he will

forego an opening statement. He is here to listen. We are very honored he has joined us.

We will next hear from Mr. Fred Webber, president and chief executive officer of the American Chemistry Council. Welcome.

As you see, we have the 5-minute clock and I allowed an extra

2 minutes, so please avail yourself of that time.

STATEMENT OF FREDERICK L. WEBBER, PRESIDENT AND

CHIEF EXECUTIVE OFFICER, AMERICAN CHEMISTRY COUNCIL

Mr. WEBBER. Thank you, Chairman Boxer, and good afternoon.

My name is Fred Webber; I am president and CEO of the American

Chemistry Council’s 180 members here today to share their views

on the important subject of security in the chemical industry.

I believe it is very important for members of this subcommittee

and for all of the Congress to understand three basic facts about

our industry. First, as you mentioned, Chairman Boxer, our industry is a critical and indispensable part of the nation’s infrastructure. We make significant and sustained contributions to America’s

economic and national security. We make thousands of products

that make peoples’ lives better, healthier and safer products that

go into making medicines and medical equipment, the space age

materials used by the military in stealth aircraft, aviation fuel and

night vision equipment, satellite communications systems and

products that make the water we drink safe and clean. What’s

more, every manufacturing industry in the United States depends

on the products of chemicals for their survival and indeed their

growth.

Second, we have a culture of safety going back many years. The

nature of our operations requires it. This culture of safety has created what the Department of Labor data shows is one of the safest

industries in the United States and indeed the world. Our longstanding safety culture has in the last decade has all been a cul-
20

ture of security that extends beyond our industry to those with

whom we do business, with whom we work, with whom we supply.

This commitment to both safety and security is expressed through

our industry’s own voluntary safety and security initiatives and our

adherence to and support for governmental standards and research

and our longstanding and effective partnerships with local, State

and Federal Government agencies including the all important first

responders.

Third, we have an important role to play in strengthening our

national security. We are working with EPA, the Department of

Justice and other law enforcement agencies to review and strengthen security at our manufacturing facilities and to protect against

the diversion and misuse of our products. This work was going on

long before September 11. It has been accelerated since then. For

example, we have urged President Bush to proceed with plans to

conduct a comprehensive security assessment of the chemical industry that Congress requested a year ago to enhance our industry’s security, programs and practices. Our industry will benefit

from a comprehensive assessment conducted by appropriate Federal law enforcement, national security and safety experts. We are

working with the Department and its contractor to improve its

methodology. Lots of things have changed since September 11, but

one thing hasn’t. Security at our nation’s industrial facilities continues to be the result of a collaborative effort between industries

and government at all levels. I know I don’t need to remind you

that the first line of defense in terms of security is law enforcement.

As the Congress begins to consider proposals that might further

strengthen safety and security at industrial facilities, we believe it

should do so by building on this basic framework. For example, we

believe Congress should develop legislation to require the development of a formal information sharing system between law enforcement and national security agencies and U.S. industries. That’s because planning and actions by industries must be based in large

measure on what law enforcement and national security agencies

say is the threat of a terrorist attack. Security also requires that

the right information get to the right people at the right time.

We also believe Congress should take advantage of and build on

existing mandatory and voluntary safety and security programs

and avoid reinventing any wheels. The legislation—and I say this,

Senator Corzine, very respectfully—introduced by you we believe

should be debated and examined. Overall, we think the goal you’ve

sent forth is easy to support, however, we don’t believe it is the

right vehicle, at least in its current design, to take us where we

think we ought to go.

I’m not saying that more can’t be done to strengthen security and

safety at our industrial facilities; rather, I’m suggesting that there

are alternatives that Congress might consider. The GAO recommended one. In recent testimony before the Senate, the GAO

recommended that any programs designed to combat terrorism

must be based on sound risk management principles that systematically analyze threats, vulnerabilities and the critical nature or

relative importance of our national assets. We agreed with the

GAO.
21

Senator Corzine’s bill takes a different approach than the one

recommended by the GAO. It attempts to remedy theoretical

vulnerabilities before we’ve assessed what and where the actual

vulnerabilities exist. In a very real sense, it seems to prescribe a

cure before any diagnosis has been made.

We believe the Environment and Public Works Committee and

this subcommittee have important roles to play in this issue. For

example, we believe there needs to be a program that provided financial assistance and tools to local emergency planning committees. I think this is what Senator Clinton was referring to earlier.

In addition to the partnerships I mentioned earlier in my testimony, we believe the Department of Justice vulnerability study

must be completed. I mentioned that earlier, that an efficient and

timely intelligence and information sharing mechanism should be

established and significant Federal funding be made available to

increase security of the entire national transportation network.

In closing, our nation and its peaceful people face a new threat.

This new threat demands that we throw off old ways of doing

things and in their place, embrace new and more creative approaches.

Thank you.

Senator BOXER. Thank you very much.

We will next hear from Mr. Paul Orum, director, Working Group

on Community Right-to-Know.

STATEMENT OF PAUL ORUM, DIRECTOR, WORKING GROUP ON

COMMUNITY RIGHT-TO-KNOW

Mr. ORUM. I’m Paul Orum, director, Working Group on Community Right-to-Know. Thank you for the opportunity to testify and

especially for your leadership introducing S. 1602, the Chemical Security Act.

We are here about one fundamental question: will there be a

Federal program to reduce chemical industry hazards that endanger nearby communities, whether from criminal activity or accidents, or not?

The terrorist attacks of September 11 show plainly how chemical

plants and refineries could suffer a worst-case fire or toxic-gas release. No longer can the chemical industry claim that a worst-case

release is too improbable to occur as we have heard for years. No

longer can the USEPA claim that hazard reduction is strictly a

local matter with no need for a national program as we’ve also

heard for years.

No longer can the Department of Justice neglect its duty to review chemical security practices and recommend ways of reducing

vulnerabilities which unfortunately we have also seen for years.

I hope that no one would now seriously propose that a voluntary

program would be enough to fix the problem and its source. Congress has both an opportunity and a duty to fill a big hole in our

laws by requiring chemical producing facilities to evaluate safer alternatives and use them wherever feasible. The Chemical Security

Act truly proposes constructive steps toward a national prevention

and security program and gives government the tools it needs to

protect communities in the new era of terrorism.
22

People might think the right programs are already in place but

they are not. Currently no Federal law actively regulates the vulnerability zones that hazardous chemical industries impose on surrounding communities, nor does any Federal law require firms to

even examine safer alternatives. As a result, thousands of communities across the country have chemical hazards that may be wholly

unnecessary.

Current laws generally speaking are limited to clean up, planning, response and risk management. The Chemical Security Act

would also address eliminating and reducing chemical hazards

wherever practicable as the option of first resort. Both government

reports and other incidents show serious security problems. You’ve

mentioned several of them. I mention more in my testimony, so I

don’t need to go back over them.

We’ve also been trying for some time to communicate with the

Department of Justice about its security study which you also mentioned has not been concluded. I guess I will mention one of those

vulnerabilities. I was struck by an article in which a professor

since September demonstrated that he was able to buy all the ingredients for nerve gas. Also, there are chemical industry websites

that assure buyers they will remain anonymous after simply registering when buying chemicals. Chemical fires and spills occur frequently and I provide figures in my written testimony for the

record.

I want to stress that the mostly volunteer local emergency planning committees are no substitute for urgent national efforts to reduce chemical hazards. A recent study of 32 active LEPCs found

that most of these committees believe they do not have the time,

resources or expertise to encourage hazard reduction. There is a

role for local volunteer efforts but those efforts are no substitute for

a national program. Again, if site security at airports were voluntary, it would not make me feel very safe.

I believe that only major policy changes will create a successful

national effort. For example, few chemical companies have set

measurable goals and timelines to reduce the inherent hazards

they bring to communities. In fact, only four out of more than 350

facilities and companies we contacted in two surveys had done so.

The USEPA has also not taken obvious steps to encourage inherent

safety despite hearings on this topic in 1994 and 1995.

The Chemical Security Act proposes constructive steps to fix the

problem. Among the most important, it makes it a duty of high priority industries to identify their chemical hazards, take steps to reduce the possibility of releases wherever feasible and minimize the

consequences of any releases that do occur. Second, it puts prevention first, truly a new stage in U.S. chemical safety laws. Third, it

encourages technological innovation before static add-on security

measures. It provides a consistent definition of what inherently

safer technology is. It should encourage healthy competition to

produce and market new safer technologies and it gives Government the tools to act and ensures the Government will act to protect communities.

I’ll conclude by citing a relevant poll that suggests people support

a Federal role. It’s the very last thing in my testimony. Between

81 and 88 percent of people living within one mile of a chemical
23

plant say they would feel safer knowing that EPA or OSHA were

providing prevention assistance to that facility. That poll took place

prior to the September attacks.

Thank you for the opportunity to come here today and I’d be

happy to answer any questions.

Senator BOXER. Thank you very much. We will put your entire

statement in the record. That goes for all of our witnesses.

Mr. Stanley, you’re next. You are representing the Synthetic Organic Chemical Manufacturers Association. We welcome you.

STATEMENT OF BILL STANLEY, SOURCING-REGULATORY MANAGER, DEEPWATER CHEMICALS; ON BEHALF OF THE SYNTHETIC ORGANIC CHEMICAL MANUFACTURERS ASSOCIATION

Mr. STANLEY. Chairwoman Boxer, members of the subcommittee,

my name is Bill Stanley. I am the sourcing-regulatory manager,

Deepwater Chemicals in Woodward, OK. I am appearing today on

behalf of the Synthetic Organic Chemical Manufacturers Association. I appreciate the opportunity to speak with you on the issue

of chemical industry site security.

My company, Deepwater Chemicals, is small. It has 30 employees. We produce fine chemicals, specializing in organic and inorganic iodine derivatives. Deepwater Chemicals uses batch manufacturing processes, a manufacturing method typical of many smaller

chemical companies. SOCMA represents the batch and specialty

chemical manufacturing segments of the chemical industry, a segment mainly comprised of small businesses. With this prospective

SOCMA has been actively addressing process safety and site security issues well before the tragic events of September 11.

I will focus my remarks today on three specific areas. First, I will

describe batch manufacturing and its role in the chemical industry.

Second, I will explain how Deepwater Chemicals and SOCMA are

addressing site security. Third, I will provide SOCMA’s perspective

of how industry and government can most effectively collaborate to

address security within the industry.

The batch and specialty sector of the U.S. chemical industry has

played an integral though less visible role in the success of the industry. These companies make the ingredients used in both commercial and consumer goods. In this sector, chemicals are produced

in batches one at a time using the same equipment to meet specific

needs and customer demands. By innovatively and efficiently fluctuating chemical processes, batch producers are able to make different products within a short period of time. As a result, a onesize-fits-all regulatory approach does not work for these innovative

companies. This approach holds true in addressing site security.

Ensuring the safety of our facilities, employees, neighbors and the

environment is embedded in our industry culture.

In February, SOCMA collaborated with others in the industry to

co-author a guidance manual onsite security. In October, this manual was made available to SOCMA members and the public at

large on our website, SOCMA.com. To reach both association members and nonmembers, SOCMA is also co-sponsoring a series of regional site security workshops. At the company level, SOCMA

members like Deepwater have taken proactive measures to aug-
24

ment existing environmental health and safety practices. These include conducting vulnerability and security assessments at the facilities and/or processes; communicating with law enforcement or

emergency responders; tightening access by contract personnel; further controlling vehicle access and security awareness training.

In addition, Deepwater Chemicals must also comply with nearly

30 different regulations that have a cumulative effect on security

at the facility. Furthermore, we participate in various community

level programs such as our local emergency planning committee or

LEPC. In this capacity, we provide technical expertise in the planning process, assist with the training of local responders in handling hazardous chemicals and provide information about chemicals

and transportation routes. As you can tell, handling chemicals to

develop extensive plans to address potential incidents covering both

onsite and offsite consequences.

SOCMA applauds this subcommittee for recognizing the importance of chemical industry site security in S. 1602. However,

SOCMA has a number of concerns about the proposed approach

and its likely consequences. Under the bill, any small batch company that produces or even handles a high priority substance may

be required to adopt and use new processing techniques. Such requirements would hinder a company’s ability to innovate and grow

by removing operational flexibility. In our industry, the ability to

innovate drives the ability to compete globally. The chemical industry is already facing increasing competition from abroad. Our industry currently employs over 1 million workers. Neither our industry nor our economy can afford to have these jobs move overseas.

SOCMA is also concerned with the bill’s general duty clause.

Even the most extreme criminal actions by a third party could subject a chemical producer to sanctions. This bill makes it a crime to

be a victim. These provisions also place the entire burden of preventing criminal and terrorist activity on the company. SOCMA is

also concerned with the bill’s presumption that security will be enhanced by mandating safer technology. S. 1602 assumes that processes can be redesigned and inputs substituted based on a single

perspective, potential impacts on national security. This simplistic

analysis overlooks the realities of chemical processing. Process

changes must be preceded by a comprehensive assessment of the

consequences. For examples, will emissions increase, will emissions

be more toxic, will product quality and effectiveness suffer? S. 1602

authorizes EPA to require changes without considering realistic

factors.

In moving forward, I urge the members of this subcommittee to

keep in mind that not all chemicals and facilities are likely targets

for terrorist attacks. A small company would be better equipped to

prioritize resources for those areas that are most vulnerable by utilizing a tiered, risk-based approach. SOCMA envisions a six step

approach that begins with determining which chemicals, processes

and facilities are likely targets. Once these six steps are complete,

it will be easier to assess whether or not the security measures in

place are appropriate for the potential threat.

I would like to conclude by confirming that there are plenty of

incentives to ensure safety and security in all of our processes. We
25

do not want accidents, nor do we want to be the victim of an attack. I work in my facility, my friends work in the facility. My

friends and neighbors are important to me. My failure to address

these issues would impact me directly. We are all in this together,

our businesses, our communities, our government leaders. We want

to continue to work together on a cooperative basis to evaluate and

to respond to potential risks in an effective manner.

I would be glad to answer any questions at this time.

Senator BOXER. Thank you very much.

Ms. Steinzor, you are next and our final witness today. You are

representing the Natural Resources Defense Council as a fellow

with that organization. We welcome you.

STATEMENT OF RENA STEINZOR, ACADEMIC FELLOW,

NATIONAL RESOURCES DEFENSE COUNCIL

Ms. STEINZOR. Thank you. I appreciate the opportunity to appear

today to testify in support of S. 1602. In the wake of the tragedies

that began on September 11, this legislation is one of the most important, proactive steps the Federal Government can take in response to the threat of sabotage involving toxic chemicals which belongs on anyone’s top-10 list of national priorities.

Existing law does not address this problem effectively. Waiting

for States to erect a patchwork of inconsistent requirements could

take years and would cost excessive amounts. The American people

clearly want their government to protect them from the risk

threats and they want those activities begun yesterday. Not incidentally, the proposal you have before you today, like the one Congress passed in 1986 in the wake of the Bhopal tragedy will enable

our nation’s brave police, firefighters and emergency personnel to

combat accidental releases of hazardous materials with the knowledge that the Federal Government and private industry have done

everything possible to avoid placing them in harms way. For the

sake of these brave men and women and the public at large, NRDC

urges you to move this legislation toward enactment as quickly as

possible.

As you may remember, the Bhopal tragedy occurred when equipment at a pesticide manufacturing plant malfunctioned causing the

release of a cloud of lethal methylisocyanate gas. People in the

crowded neighborhoods around the plant saw the plume, assumed

it was a fire and ran toward the factory to help extinguish the

blaze or simply to watch the excitement. As the plume drifted over

the plant gates toward the crowd, some 3,000 people dropped dead

in their tracks.

Overcoming the temptation to view Bhopal as an example of

Third World ineptitude, a congressional panel traveled to a twin

Union Carbide facility in Institute, West Virginia only to discover

that although the county had prepared an emergency plan, the

plant manager did not realize it existed. Today, there is still a tank

of methylisocyanate at that Institute plant even though other companies have converted to a closed loop system that avoids the need

to store such large quantities of the deadly gas. This fact speaks

volumes about the potential of volunteerism to solve this problem.

Congress responded to Bhopal and its aftermath by passing the

1986 Emergency Response and Community Right-to-Know Act,
26

which was refined and expanded by the 1990 Clean Air Act amendments. Neither law addresses the all important task of preventing

such incidents, by reducing hazards and ensuring plant transportation system security.

Human error in operating complex machinery killed several

thousand people in Bhopal. What price will we pay for deliberate

sabotage at such a facility? Indeed, it is commonly understood by

everyone involved at the grassroots level from firefighters, police

and other municipal officials to the companies that own and operate the factories, railroads, pipeline and truck fleets that local

emergency response capacity, even in large cities, falls far short of

either legal requirements or safe practice. Despite the valiant efforts of fire departments nationwide, local governments under pressure to fund other services simply have not given firefighters, police and emergency medical personnel what they need to do a very

difficult job.

To date there have only been two confirmed attempts to perpetrate terrorist attacks on facilities handling toxic chemicals both

of which fortunately were prevented. However, there have been numerous accidents involving such materials. Fifteen accidental gas

releases of greater amount and toxicity than Bhopal occurred in the

United States between 1980 and 1990. Press accounts of these incidents indicates that luck rather than preparation is the reason we

have not yet seen widespread fatalities. These realities demonstrate beyond any reasonable doubt the importance of the legislation before you.

Although devolution of traditional Federal functions through the

States is a popular approach to government at the moment, the

events of September 11 have reminded us why we operate under

a system of Federal environmental laws. First and foremost, the

terrorist threat is an international threat and we traditionally rely

on the Federal Government to protect our national security. Second, we must address hazards that cross State boundaries. Many

plants that experience an accident would affect populations living

in more than one State. Third, asking 50 States and thousands of

local governments to assess the threat of sabotage to chemical

plant and transportation systems would consume enormous resources and might well result in failure in far too many places.

As for the question of whether industry volunteerism is enough

to meet this challenge, the information released thus far suggests

that industry is focusing on physical security with prevention by

hazard reduction a distant and far lower priority. The instinct of

most companies will be to post security guards, strengthen fences

and make alarms louder all of which may well be appropriate but

are an incomplete answer in the face of the kind of coordination

and determination displayed by the terrorists who attacked us on

September 11.

We appreciate your interest in moving this legislation quickly

and we plan to do anything we can to assist you in that effort.

Senator BOXER. Thank you very much, Ms. Steinzor, and thank

you all. I thought you all made very important points for us to consider in our deliberations.
27

We are going to have 7-minute rounds by each Senator and we’ll

go as long as it takes. I’ll start it and then pass it to my Republican

friend and we’ll go as long as people have questions.

Mr. Webber, when I opened, I made the point I was disappointed

that EPA wasn’t here. You had nothing to do with that but I wanted to ask you this. At a White House briefing with Tom Ridge last

Friday, Administrator Whitman specifically addressed the issue of

chemical security. She indicated at that time that chemical security

is just an extension of what EPA already does. Administrator Whitman also indicated EPA is dealing with this issue primarily

through discussions with the American Chemistry Council, which

is your organization. Have you been involved in such discussions

with her?

Mr. WEBBER. Yes, I have, Chairman Boxer. I’ve met several

times with Governor Whitman and her top staff, specifically on the

issue of security, not only to exchange information but to try to figure out really what her expectations of the industry were or are

and they were clear.

For example, she did expect us to issue site-security guidelines

not only for our own members but for the chemical industry at

large. Mr. Stanley and I both know that there are a lot of chemical

companies not represented at this table. We are all concerned

about them. We promised Governor Whitman and the EPA that we

would work to reach out to all of them. Indeed, we have published

site security guidelines as well as distribution guidelines.

Senator BOXER. I don’t mean to cut you short except I want to

make sure I understand. You have had several meetings with Administrator Whitman on the subject of chemical security?

Mr. WEBBER. Absolutely.

Senator BOXER. Mr. Stanley were you involved in any of those

meetings?

Mr. STANLEY. No, I was not.

Senator BOXER. Was your organization invited and attended

some of those meetings?

Mr. STANLEY. Yes, SOCMA was.

Senator BOXER. Mr. Orum, was your organization invited, your

Community Right-to-Know organization?

Mr. ORUM. No.

Senator BOXER. Ms. Steinzor, was your organization included?

Ms. STEINZOR. No.

Senator BOXER. Mr. Shinn, were you invited as someone who has

an active involvement in this issue?

Mr. SHINN. No.

Senator BOXER. Is anyone here from the EPA in the audience

today? Did they send anybody at all? We were hoping they would

have sent someone. I’m not going to ask you anything. I just want

to know if you’re here. I would like to say as far as the EPA is concerned, if you’re meeting with the chemical companies, it would be

really nice to meet with the people of the country who are frightened about this and who speak up for safety. If no one is here then

I intend to write a letter to Administrator Whitman and hope to

get some signatures from my colleagues.

[Audience member stands.]
28

Senator BOXER. Did you say you were from the EPA? There is

someone from the EPA.

Mr. HEIMLICH. I am Doug Heimlich from the EPA. I’m just starting my job today.

[Laughter.]

Senator BOXER. Well, if I might, first of all, welcome you, and

second of all, tell you I have heard of a baptism by fire and this

is it. If you could just take a message back to the Administrator

that we’re very glad she’s speaking with the chemical companies

but speaking for myself as chair of the subcommittee, I hope she

would include or meet separately with the people who advocate for

public’s right to know and public safety because we have to be balanced. That’s why this committee chose to have people from all

sides. We don’t just meet with one group, we meet with everyone

and I think that’s something she ought to do if she hasn’t done it.

It’s just a friendly suggestion.

Let me say further, Mr. Stanley you made an interesting comment. You said, we don’t want to have an accident. Our people

work in these plants. You said, I work in these plants. Do you

think the airlines want to have accidents, want to have terrorism?

Mr. STANLEY. Absolutely not.

Senator BOXER. Of course not. They have beloved employees. I’m

wearing on my wrist a bracelet dedicated to one of the pilots who

was in the plane that crashed into the Pentagon. So of course our

industry are good people and none wants to have an accident to

themselves, to their employees they put so much into. You, yourself, are working in the plant. That’s understood.

The point I hope you’ll think about today—I’m not asking you to

comment on it unless you want to—is that you may take every precaution and go far beyond even a reasonable response to the threat

that Mr. Webber described in the newspaper as being a very real

threat but your neighbor who produces a chemical may not have

that same set of values you have or even your intelligence or expertise and may do lesser precautions. That’s one of the reasons I

think Senator Corzine is onto something here. That’s why we don’t

let the airlines—I’m hoping we won’t—decide their own security,

because if it isn’t uniform, you’ll have some airlines doing a whole

lot being the greatest citizens and the best workers, best employers

and working with their employees and doing everything right, and

you may have another that is more of a risk-taking operation that

puts the bottom line ahead of public safety. You don’t know that

and to have some national law in place that says we’re all going

to march down together as good citizens and work together. I hope

you will consider the fact that Senator Corzine in writing this bill

and my going on as a co-sponsor, we know everyone means the

best. That’s not the question, but how can we do something together where we have some uniform standards and can make sure

as Ms. Steinzor said that we are protecting everyone, including the

heroes who came in to mop up after an accident happened.

I have 14 seconds left so rather than continue, I’m going to ask

my good friend from Oklahoma to take his 7 minutes at this time.

Senator INHOFE. Thank you.

Since Senator Smith was criticized for some of the statements or

perhaps questioned the accuracy in his statements, let me bring
29

out a couple of these that I found to be of interest to me. One of

them was this bill actually makes it a crime for not being able to

prevent an act of terrorism. In fact it would be a crime to be the

victim of a criminal act that caused a release. That’s precisely, Mr.

Stanley, what you said in your opening remarks, isn’t it?

Mr. STANLEY. That is correct.

Mr. INHOFE. Mr. Webber, do you believe that would be the position you might be in, not being able to prevent an act of terrorism,

that you could in fact be committing a crime for being a victim?

Mr. WEBBER. Yes, sir. The way I think we would put it is that

it would appear in reading this bill carefully that it would be a

crime to be a victim of a crime.

Mr. INHOFE. Have either of you talked to some of your legal advisers and so forth when you assessed this bill in preparation for

coming here?

Mr. WEBBER. Very carefully. I’m not an attorney but I certainly

rely on their expertise and that is their interpretation.

Mr. INHOFE. Mr. Stanley, did you do the same thing?

Mr. STANLEY. I was not directly involved with those conversations but with SOCMA, my organization, yes.

Mr. INHOFE. Another thing Senator Smith said, reading from his

statement, ‘‘I’m also very concerned with provisions in this bill that

gives the Federal Government the power to determine manufacturing processes and changing in a facility’s physical structure.’’ I’ve read a bit and am reading directly from the bill under Inclusions it says ‘‘reduce or eliminate storage, transportation, handling,

disposal, discharge of substance of concern.’’ I think that’s probably

what Senator Smith was referring to when he’s concerned about

the provisions of the bill giving the Federal Government that

power. Do you share that concern? Do you feel you are as concerned as Senator Smith, Mr. Stanley, about the powers that seem

to be given the Federal Government in the affairs of your business?

Mr. STANLEY. Yes, I do.

Mr. INHOFE. Let me ask you this. Let’s say you had to change.

I think it one of you who said you might have to change your facility as a result of this, making a change. In the event that happened and there was an increase in emissions, could it be that

would trigger a new source review? What do you think? Have you

thought about that, Mr. Webber?

Mr. WEBBER. Not really. I agree with the general proposition

that Mr. Stanley described.

Mr. INHOFE. I know this is mostly in refineries. We had several

hearings back when Republicans were important and I chaired the

Clean Air Committee, we held quite a number of hearings on this.

We went to Illinois where we saw the minor changes, even if it did

not affect emissions in refineries could trigger a new source review

which is a very elaborate process whereby you have to back with

an old facility and bring everything up to the newest standards.

This has application to my understanding with you except before

it would trigger that, it would have to show that perhaps emissions

were increased.

Mr. Webber.

Mr. WEBBER. You raise a very interesting point, Senator. With

your permission, I brought two colleagues with me, one of whom
30

could address this question. He is an expert in process safety management. His name is Arthur Burke from DuPont. Would you be

willing to have him answer Senator Inhofe’s statement?

Senator BOXER. Within the timeframe, if Senator Inhofe would

like, I’m delighted.

Mr. BURKE. I’d like to start by acknowledging some common

ground between the Government, the American Chemical Council

and regulatory agencies, the Environmental Protection Agency in

dealing with the subject of inherently safer technology which is the

main thrust of Senator Corzine’s bill. That common ground is that

we all promote and encourage the application of inherently safer

technology. Where we differ perhaps is how we do that.

Both OSHA’s safety management rule and EPA’s Risk Management Program rule require multidiscipline teams to conduct process hazards analyses. PHA teams in conducting these studies work

to identify hazards, examine lines of defense and make recommendations to reduce risk and strengthen those lines of defense.

Typically, American Chemistry Council member companies apply

inherently safer technology through the conduct of these process

hazards analyses. ACC believes this is the proper approach to applying and implementing inherently safer technology. We believe

that the Government could contribute in a positive way to the application of ISP by giving consideration to tax incentives to companies that implement inherently safer technology. It’s a way to go

back to building partnership relationship with the Government, industry, the communities, working to implement inherently safer

technology.

Senator INHOFE. But the specific question I’d ask is do you think

this could have the effect in the event that emissions increased of

triggering a new source review?

Mr. BURKE. I’m not sure.

Senator INHOFE. I’m going to ask that you try to get me the answer to that for the record.

Some criticized the Administration for not working with each of

these organizations. I’d like to ask both Mr. Stanley and Mr.

Webber did your organization work with Senator Corzine in the

drafting of this legislation?

Mr. STANLEY. No, sir.

Mr. WEBBER. No, sir.

Senator INHOFE. It was contended in the opening statement by

Mr. Orum that there is not enough dialog between the industry

and the community. I’d like to ask Mr. Stanley, could you please

tell us what your company does with the local community?

Mr. STANLEY. Deepwater came to northwest Oklahoma after

being approached by the Woodward Industrial Foundation. The

town wanted to bring in more industry to develop the community

from that standpoint, so they knew up front what we did. That

began a relationship with the local community and exactly what

Deepwater does as a business. That continued on not only with

Deepwater Chemicals but several other local industries and companies. We deal directly with the local emergency planning commission and also with the SEPC. It’s an open line of communication

and we just have developed that even further since September 11

and we plan to keep on pursuing that also.
31

Senator INHOFE. I asked that question because I was doing a talk

show up Inwood when somebody came on talking about what kind

of citizen you are, who you work with, your concern for the safety

of the public and I appreciate that very much.

My time has expired but Madam Chairman, unfortunately we

have an amendment on the stimulus bill that started 5 minutes

ago.

Senator BOXER. Was it drilling in ANWR?

Senator INHOFE. No.

Senator BOXER. Because I was going to go over there.

Senator INHOFE. I would remind everyone out of 3,000 pages in

H.R. 4 dedicated to energy, only two of those pages addressed

ANWR, so the answer is no.

Senator BOXER. That’s two pages too much for me.

Senator CORZINE. Senator Inhofe, since you addressed a question

to Mr. Webber with regard to whether I had met with the chemical

industry, staff did actually sit down with a number of folks if I

have information correct. We didn’t agree on the direction that we

were taking and there have been several meetings from time to

time in my own State with people in the industry, specific individual companies.

Senator INHOFE. I appreciate that, Senator Corzine. I was just

asking since they are the witnesses here, if they had been consulted.

Senator BOXER. We’re going to stop the clock here. We’re going

back to 7 minutes but go ahead.

Mr. WEBBER. I saw you frown when I gave my answer. I’ve just

been told by staff that indeed there had been staff meetings and

those staff meetings can best be characterized as your staff presenting the outline of the legislation. Whether there was room for

input or not is anybody’s guess but there were those meetings and

I paid a courtesy call on you yesterday.

Senator CORZINE. I wasn’t speaking about the courtesy call.

Mr. WEBBER. I also want to acknowledge that you did meet with

representatives of our industry in New Jersey I think last month.

Senator CORZINE. I hope that once and for all, we will put aside

the view that this is a confrontational element. It is a cooperative

one. I think anyone that looks at a bill that’s going to take 2 years

to make an assessment and then to write regulations is leaving

plenty of time for the evolution of this in a cooperative sense. In

a very technical area, I think it’s absolutely necessary that they be

done and there is no intent.

I also find it hard to understand, I can’t remember who said

there were no threat assessment facts that were underlying this.

The Department of Justice is in the midst of that. They were supposed to have presented the threat assessment I think it was in

April 2000, if I’m not mistaken. I think a lot of us are frustrated

that hasn’t been completed. The only thing we do have from the

Department of Justice says there is a clear and present danger

from these kinds of activities, terrorist attacks applied to chemical

plants. I’d like to have that threat assessment too. I think that’s

a proper quantitative, qualitative analysis that should be a part of

this legislation as we put that together. So I hope no one thinks

that.
32

With regard to the sense that there may be differences in a rural

located plant in Oklahoma versus one on the New Jersey Turnpike,

we have been very specific, very specific that EPA should identify

high priority projects and then make different assessments for different risk threats associated with it. I hope when we talk about

this bill we talk about it in the context of how it is actually written.

With regard to victims as criminals, I think different lawyers

may be reading this differently because at least my lawyers would

tell me it is written that you have to have not dealt with the substance of understanding what high priority risk would be, followed

by identified hazards and not dealing with actions that were recommended by the EPA in the context the regulations are written.

I am in no way trying to say that somebody that has an airplane

flying into their chemical plant is criminally liable but if people

haven’t taken precautionary steps like having security guards and

high fences and other kinds of things or high alarms even, where

people can walk on plants and plant bombs and create problems,

I think there may be reason to presume that there is some liability

for those individuals that go beyond civil. At least that is the intent

of the legislation.

I would ask Mr. Shinn that in your testimony you suggested that

sometimes when regulators work with industry, you may find savings in new operations and new activities. I think you were very

specific about that if there is a cooperative element about how one

works together with processes and equipment. Would you comment?

Mr. SHINN. I think we’re finding more and more across our program lines we just can’t get to where we need to go alone. We can’t

do it in the traditional regulatory fashion. A good example is in

this program, talking about the TCPA. In our water treatment facilities, we had 500 pound or greater threshold for chlorine. In less

than 3 years, 375 of these facilities had reduced the amount of

chlorine on hand or below the threshold, essentially removing them

from the program. The incentive was to have your storage below

a certain threshold to be out of the program altogether.

Senator CORZINE. Was this a case where regulatory agents were

actually working with industry in a cooperative way?

Mr. SHINN. The other really valid benefit that came out of it, 100

facilities, water treatment facilities, eliminated the use of chlorine

altogether and used other technologies, ozonation and the list goes

on but we really dramatically reduced the storage of chemicals onsite for water treatment facilities.

Senator CORZINE. I’d ask any of the witnesses to respond to a

question I have about risk management plans that are part of the

Clean Air Act of 1990. EPA states there are 15,040 risk management plans in place. Unfortunately, that only represents 80 percent

of the facilities that are subject to them. There are currently 18,800

facilities. That is a requirement by law.

Do we have some perspective on why these other facilities are

not meeting these risk management plans that I presume deal with

just accidental and mechanical issues? Any of the witnesses want

to comment?

Ms. STEINZOR. There is virtually no enforcement of those requirements by the agency and you point out that a large number of the
33

plants have not even prepared them. There is an additional concern of their content and what they do say, and whether they are

adequate.

If things keep going the way they have, we may never get access

to them because there is even talk of pulling them out of local reading rooms, much less off the Internet. I think that would be the answer I’d offer, that there is not enough enforcement.

Mr. ORUM. I hope you will ask EPA that question about enforcement. What I wanted to add is the risk management plans were

developed before the present era and do not include a protocol or

annex that would address specifically terrorism. Likewise, the

thresholds under that law were established without terrorism in

mind. So you have examples such as a one ton tank of chlorine that

can cause serious harm two miles offsite not being included by

itself in the program.

Senator CORZINE. I asked that question because I have some concerns about voluntary efforts in meeting guidelines if we are not

actually meeting the risk management plans that are now in place

with regard to the Clean Air Act.

Ms. STEINZOR. It also is worth noting that it’s my understanding

that DuPont was one of the companies that did a closed loop system for methylisocyanate but the facility in Institute, West Virginia did not take similar steps. Certainly there are many members

of the chemical industry, as Senator Boxer said, who are very responsible and have really broken new ground on preventing new

hazards but something as simple as that in the wake of Bhopal

with all the notoriety of that particular chemical, it’s discouraging.

Senator CORZINE. I think one of the reasons we feel that legislation may be appropriate at this time is not for the highest standards that are being executed by companies and participants in the

chemical industry, but we are fearful of what the lowest common

denominator may be doing with regard to this.

I think the reality that not even today over a decade later these

risk management plans are in place should give people some cause

for concern.

Senator BOXER. I think that point is well taken because as I said

before, the same with any industry, there are good actors and bad.

It’s refreshing if we could find some of the good actors come out

and say, we want our industry to reach the highest standards. It’s

hard to find that happening. I’m not critical here. It’s just hard to

find that.

I want to get to the industry mantra about this bill makes it a

crime to be a victim of a crime. Mr. Stanley, if a terrorist blows

up a chemical plant and there are lots of casualties and the terrorist dies, he’s a victim. Is he also a criminal?

Mr. STANLEY. Yes, he is.

Senator BOXER. I wanted to make sure we got that clear and got

that out of the way. We’re not talking about that.

If a company knowingly fails to conduct a background check on

employees and hires a criminal and that criminal blows up a plant

or causes great damage, do you think there should be any culpability there?

Mr. STANLEY. Yes, I think there should be but I think our industry as a whole has that viewpoint to make sure that we have the
34

assessments or security measures in place already. I feel we are a

safe industry. A small batch plant I think has a little more flexibility. As far as Deepwater’s own hiring policy, we do a full background check because we are aware of that, because of the chemicals already onsite.

Senator BOXER. The point I’m making is when you read Senator

Corzine’s bill what you realize is what he’s done is allow the EPA

which you are meeting with on a regular basis, chemical companies

are, to determine the regulations, and also the Justice Department

to come up with what penalty should be. He doesn’t even put any

penalties in this bill. This mantra about you’re making victims

criminals makes no sense at all since this is going through the Justice Department and the EPA.

The fact is I think if a company knowingly avoids doing criminal

background checks, if this law were to pass, ignores safety rules

such as putting a dangerous chemical in the back of a plant without a fence or a guard, you’re darned right I want to hold people

responsible for that kind of irresponsible behavior, just as I would

an airline that doesn’t do an engine check and an engine blows up.

Yes, you’ve got to make sure people are responsible for their actions. I thought that was what being a good citizen was about.

You have nothing to fear because you’re doing the right thing.

Ninety percent of the companies, maybe more, maybe 99 have

nothing to fear.

I want to ask Ms. Steinzor because she said something which I

wanted to probe a little bit. You said there were a couple other

near accidents. Could you elaborate a bit on that, in America?

Ms. STEINZOR. I think Paul has the precise number of near

misses which is a very important thing to take into consideration.

Mr. ORUM. Yes and no. No one has the total number of near

misses and no one actually has the big picture of chemical accidents, however, 25,000 fires, spills and explosions each year, small,

medium and large is what we hear from the National Response

Center. About 1,000 of those have death, injury or evacuation.

The point about near misses is that some analysts suggest each

time you have a catastrophic failure, you have 30 loss time incidents, 300 recordable incidents and 30,000 near misses. So the pattern of these many, many incidents suggests we will have big incidents. If you count everything, even the smallest spills, you get as

many as 50,000 incidents a year.

Mr. WEBBER. I’d like to respond to that and get back to background checks because we need your help on this.

First, on the National Response Center, it’s important to note

that data is very limited in several important ways. First, the data

base NRC maintains includes non-chemical related events, such as

railroad crossing events. Second, the NRC records that report incidents it is common for the Senate to receive multiple reports of the

same incident and they don’t distinguish.

Senator BOXER. What do you think the number is?

Mr. WEBBER. A fraction of what is reported.

Senator BOXER. Give me a number.

Mr. WEBBER. I can’t give you a number.

Senator BOXER. A fraction of it is what?

Mr. WEBBER. A fraction of that which is reported.
35

Senator BOXER. You’ve got to give me a number.

Mr. WEBBER. I don’t have it. I could do it for the record.

Senator BOXER. Would you do it for the record? Does your assistant know?

Mr. WEBBER. I can find out. Case after case has demonstrated

to us there are multiple reports. We’ve gone to the NRC and said,

let’s find out what the true rate of incidents is involving chemicals

specifically and we know it’s a fraction.

Senator BOXER. Is it more than 100?

Mr. WEBBER. I dare not speculate.

Senator BOXER. Nobody here from the chemical industry knows

how many incidents there are today, for the record?

Mr. WEBBER. We’d be pleased to respond in writing.

Ms. STEINZOR. If I could add to that, first of all, there is an opportunity if an incident is not what people thought it was to begin

with to correct the record with the National Response Center and

perhaps companies should start doing that rather than questioning

the figures the Center has.

Second, it certainly is true that railroad crossings would be reported. Senator Corzine’s bill and your bill, Senator Boxer, cover

transportation concerns.

Senator BOXER. It’s a big issue.

Mr. WEBBER. I can give you an example and I hope this is accurate. Last year, 170 deaths were reported in our industry, 158 were

traffic accidents including railroad crossings including the overturning of a milk truck. You have to put this in perspective.

Senator BOXER. We’re talking about incidents. What I’m trying

to get at here are the number of incidents. We were told one number, you said it’s a fraction. We’ll hold open the record. How long

do you think it will take you to get me that number?

Mr. WEBBER. Hopefully in a few days. We’ll do it as quickly as

we can.

Senator BOXER. We will check our mail.

I’m going to have to leave. I’m proud to introduce the President’s

choice for the head of the Peace Corps. That hearing is down the

hall, and I need to do that. I’m going to give the gavel to my colleague.

Mr. Webber, if you need our help in terms of background checks,

I think that’s a very legitimate point and maybe when I leave, you

can let the good Senator from New Jersey know that. We want to

be helpful and maybe he can put that in his bill if you need that.

In closing, let me thank Senator Corzine so much. I had the

privilege of serving on this committee with Senator Lautenberg and

you have come right in. He was just unrelenting in his desire to

protect the public from toxic materials and you’ve come right in

and have that same fervor. I could not appreciate it more than I

do.

I want to say to the EPA individual who I believe is under CPR

in the back of the room if he could make the point to Administrator

Whitman one more time that this committee has both sides at the

table and they are distinguished people, different perspectives, different points of view, that’s what America is. We debate things. It’s

important that she include the environmentalists and the advo-
36

cates for ordinary men and women who may well be a victim of

this kind of terror to the table.

Senator Corzine did it and it isn’t easy, I know, when you’re

writing a bill that’s going to say to an industry you’ve got to do

more. It isn’t easy. He met with people in his State his staff met

with people here. I think that’s good and I would hope she would

do the same. If you would let me know if that’s going to happen

because I believe Ms. Steinzor you are ready, willing and able to

meet with Administrator Whitman, correct, Mr. Orum?

Mr. ORUM. Yes.

Senator BOXER. Then I think the Administration will come out

with a more credible proposal that we can support. If it comes from

a narrow industry that clearly has a particular interest in terms

of economics, it’s not going to have the kind of reception here that

it deserves.

With that controversial statement, I will go off to the Foreign Relations Committee. Thank you, Senator, and carry on, please.

Senator CORZINE [assuming the chair]. I appreciate it.

We have tried to put in the bill encouragement to have safer

equipment. I think we talked about how it would be easier to accomplish if we had tax credits that made that attractive. That in

itself has embedded in it the question are there processes we know

are safer that are not being done because tax credits aren’t available with regard to either accidental or criminal or terrorist releases of chemical processes? I understand it as an old business

hack myself, I wouldn’t mind having tax credits for investment

purposes, it’s a good thing, but are there generally recognizable initiatives that because tax credits aren’t available we are not taking

those steps?

Mr. SHINN. To generalize, I think going in the direction of incentives and indicators to track the progress, I think you’re right on

the money because we’ve tried to do a certain amount of that. One

of the things we recognize is the smaller batch plants are harder

to keep track of from a process, from a right to know perspective,

from a facility emergency response perspective because their processes change all the time. They may be making this batch today

but next week they’ll bid on a different process.

You mentioned the lodi situation which will be embedded in my

memory a long time, a real tragic situation. Part of that problem

was the proper expertise for the batch they were producing was not

available when that batch ran away in the chemical process.

I haven’t figured out how to do it but you mentioned credits and

incentives. We think an area that has a lot of promise is having

the larger chemical companies mentor. I know there is a lot going

on through chemical organizations to do this. We applaud that but

some more incentivized way for larger chemical companies to work

with batch plants when they are in complex issues because I think

there is an expertise demand that may not be satisfied.

Senator CORZINE. You found that in some situations where

you’ve been able to work through a constructive and cooperative relationship with some of the chemical processors, you’ve actually

saved money, people have come back after the fact and said this

was a good thing on a business basis as well as from a regulatory

perspective.
37

Mr. SHINN. I think when you look at the different laws we have

both Federal and State, discharge prevention, containment, the

Worker and Community Right-to-Know Act, the Emergency Response and our TCPA Program, when you look at all those in context, there’s a lot of coordination that is needed between those programs, and pollution prevention. If you put all those together with

a pollution prevention concept, you really get to the ultimate goals

I think everyone in this room is trying to achieve.

When you jump to programs and have different guidelines it’s

hard to get an overall concept together. I think we could improve

that process up to and including the Department of Transportation

commerce clause issues, when you get to know what’s in a box car

that’s unloading in your community. That is another issue that

weaves into this whole topic you engaged. They are all part of a

need for a coordinated approached that involves many Federal

agencies.

Senator CORZINE. I would ask if anyone has anything they’d like

to comment on for a minute before we end.

Mr. Stanley.

Mr. STANLEY. Especially batch plants, I’m not sure what Mr.

Shinn meant by mentoring some of the companies similar to Deepwater Chemicals. We have an extensive staff as far as technical

and educated people from the standpoint of process chemistry,

chemistry and engineers. It’s part of our education when we design

a process and the equipment to make sure it can be done financially and from a safety standpoint, and the environment.

I’m not sure where the thought goes with that. We don’t look at

things like that. It’s ingrained in our industry from that standpoint. We are product specific. If we run a chemistry, we realize

there are certain routes that can work. If you’re meeting a specification of a customer, sometimes there’s very limited ways to go

down there. You make the business decision to produce that product.

It’s difficult when you face a regulatory hurdle. That is what kills

the project. As a small company, we get few chances to succeed and

it becomes more difficult to compete when we have more burden.

Mr. ORUM. I want to again commend your interest in inherent

safety as the option of first resort. In my testimony, one of the reports I cite was the recent study in Europe of four firms, two in

the Netherlands and two in Greece. They quickly identified more

than two dozen feasible, inherent safety alternatives, the majority

of which had a payback period of less than 2 years.

To answer your previous question, I’d be very happy to put you

in touch with the authors of that and maybe in future hearings,

you can have them lay out specifics.

Tax incentives, it seems to me it runs the risk of having to then

do what this bill does not which is to designate specific technologies

you are rewarding. There can be problems with that if you take

that approach. For example water treatment plants from chlorine

gas that can drift offsite to sodium hypochlorite, they don’t have

that particular risk anymore but they still have a process that does

not necessarily have the capacity to take care of all the things a

terrorist might want to put into the water what you might have if

you went to a different process, say ultraviolet light. So it seems
38

if you do tax incentives, you have to set a standard rather than

pick technologies.

Mr. SHINN. As a response, I am sure the Deepwater plant is well

staffed from an expertise standpoint. I know our Deepwater plant

in New Jersey is, a different corporate person but the plant I was

talking about from our experience was the lodi situation. I can’t

give you the specific chemical details but that was a batch that was

mixed and the temperature control of the batch ran away and the

chain of command to get to the person that knew how to rectify

that run away situation was not immediately available and a whole

lot of miscommunications resulted in the explosion that ensued

shortly thereafter.

I can tell you with the number of processes that go on in New

Jersey, there is a strong expertise that’s present in 99 percent of

the processes that go on. You only need an underfunded, struggling

company that takes a low bid to get into a situation where it has

trouble controlling its processes. Quite frankly, I don’t know the

answer to that, I don’t know there is a good one but I know plants

that go out for subcontractors for low bids need to take an extra

look at the expertise in providing completion of that contract.

We have good experience with mentoring in other industries and

the chemical industry association we’ve had has done an outstanding job in policing its entities. I think we have to go further

in this because we’re in an atmosphere where we need to go further.

Mr. WEBBER. A cornerstone of your bill calls on companies to implement inherently safer technologies. I want to say for the record

my industry supports the use of inherently safer technologies. It’s

an admirable objective and goal.

In Texas, one of our members replaced a bulk storage of raw materials with a process that produces the same raw material at the

rate it is used. That means the company was able to eliminate the

need to store the material onsite. That’s a good example, shows initiative that Mr. Stanley doesn’t want to see diminished.

The real issue is should government mandate the use of inherently safer technology? The Clinton Administration looked at that

hard and said, no and we think they made the right decision. What

do you do? You base it on performance. We think the focus should

be on performance. Then you would say are we continually improving the safety and security of our operations? Absolutely. It’s not

only good business, but we all know it means better security, safer

technologies, a safer workplace.

The answer is a very, very strong yes. We follow procedures outlined in OSHA’s process safety management rule. They are rigorous and tough. We adhere to them. Every chemical company

ought to be adhering to them and also EPA’s risk management

plan rule. They are in place. That’s why we worry about

redundancies, why we feel we are making progress and have safer

and more secure facilities.

I could go through the process of how we form teams and work

on all these issues, but I have to say that our approach we think

is making good use of inherently safer technology.
39

In terms of tax incentives, if the smaller company has a financial

barrier, our position still would be let’s examine ways to provide

tax incentives so they can get there.

Ms. STEINZOR. In 1999 there was a three alarm fire in Baltimore

and the reason for it was just as Commissioner Shinn said, the day

crew knew not to use steam in cleaning out a plugged pipe, they

forgot to tell the night crew and there was an explosion. We are

all human beings and we make mistakes. That’s why you are emphasizing pollution prevention.

NRDC has had a lot of experience with that. Attached to my testimony is an article by Linda Greer, ‘‘Anatomy of a Successful

Project,’’ which talks about her work with Dow on preventing pollution.

We have found is that when projects come to a company and are

all lined up, evaluating on the basis on the return on the investment, very often, too often pollution prevention for reasons that are

frustrating to us do not make the cut because we do not yet see

the return on the investment will be very much worth it in the

same timeframe compared to other uses of the money. Until we

change that dynamic, we may well have a situation where hazard

reduction just doesn’t take hold the way we would like. That’s one

of the reasons we support your legislation because it is a very good

time to start looking at those things again.

There was an economic analysis of airline security done a few

years ago where there was a calculation that if people had to wait

half a hour for a plane, it would cost billions of dollars because of

the price of their time. Looking at it now, the conclusion was the

benefits didn’t equal the cost for airline security. With the benefit

of 20/20 hindsight, the airline industry at stake, we would say it

would have been worth it. We always must be careful how we

quantify benefits.

Senator CORZINE. Thank you all for your participation and lively

discussion. I hope we can continue some of these out of the hearing

room. If there are ways we can make the victim is a criminal language match with lawyers, I am more than happy to work on that

as long as there are real incentives to make sure people move to

correct problems. I’m not married to a particular language if that

is the sole objection.

On the other hand, I feel as strongly as I ever did that we need

to protect against lowest common denominator risk. I am troubled

by the fact that we have now laws that ask for risk management

plans that are not fully attended to, and we have a different environment today than we had previous to September 11. I think

there are enough examples in our society that would lead one to

believe there is room for improvement in this area. There is a question basically of whether that can be done voluntarily or whether

it should be done through a regulatory mode.

I would say in New Jersey, we don’t have a perfect record but

I do think our regulatory structure has moved us down the ball

field in providing greater safety and assurance to our public in a

very densely populated State. I don’t think anybody is suffering the

worse for the wear for it. Maybe we should be a little stronger

even.
40

I feel we have had a great discussion here. I appreciate everyone

coming and participating.

The hearing is adjourned.

[Whereupon, at 4:11 p.m., the hearing was adjourned, to reconvene at the call of the chair.]

[Additional statements submitted for the record follow:]

STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM THE STATE OF VERMONT

I would like to thank Senator Boxer for her diligent work on today’s hearing. I

also would like to commend Senator Corzine on his fastidious efforts to promote

chemical site security.

In the wake of September 11 and the ensuing war in Afghanistan, it behooves us

to think about the heightened threat of terrorist attacks on our soil. No one ever

imagined using a commercial airliner as a weapon of mass destruction. No one ever

thought that anthrax could seep out of a sealed envelope and spread through the

mail. No one ever predicted that our very infrastructure, such as our water systems

and agricultural centers, would be vulnerable to terrorist threat. In fact, such speculation seemed unlikely, almost ludicrous. Today is different. Some say that the next

level of potential targets is major chemical and oil facilities. We can argue about

whether that is the case, but it does not hurt to be prepared. We must evaluate all

potential domestic threats now, and respond accordingly.

Two-and-a-half weeks ago, 400 pounds of methyl bromide was stolen from a chemical storage facility in Florida. The thieves cut a hole in the fence unnoticed by security personnel. Last week, 1,000 gallons of ethylene diamine were spilled at a Texas

chemical facility. The toxic gas incident sent 15 to the hospital and, although believed to be an accident, the cause of the spill is under investigation. Also last week

in Texas, a fire at a city sewage plant caused a chlorine leak. Between 100 and 200

residents were evacuated from their homes. The cause of the fire has not been determined. These stories are chilling under any circumstances. These days, they are

particularly alarming.

It is important to note that small rural States are just as much at risk of terrorist

threat as traditional chemical producing States. While my own State of Vermont is

not a center for chemical manufacturing, we do deal with large quantities of agricultural chemicals as well as chlorine dioxide used to disinfect our water supply and

wastewater systems.

The Federal Government has the legislative tools it needs to clean up, prepare

for, and manage the accidental risks of chemicals. However, we lack a mechanism

to eliminate and reduce criminal behavior associated with chemicals. While I appreciate the efforts of the chemical industry in issuing draft security guidelines and

educating its members, the Federal Government can and should do more. The Environmental Protection Agency and the Department of Justice must work with our

State and local governments, as well as industry, to develop regulations addressing

the most serious threats. And we need to do so immediately.

The Environmental Protection Agency (EPA) and the Department of Justice (DOJ)

were invited to attend today’s hearing. Both agencies declined to send a representative. This concerns me. Last week, EPA Administrator Christine Todd Whitman

said that the chemical industry is ‘‘doing as good a job as they can do right now,

and [that] they’re very aware of where their vulnerabilities might be.’’ I appreciate

knowing that but have not heard from EPA directly despite repeated briefing requests. As chairman of the Senate Environment and Public Works (EPW) Committee, it is my job to understand and oversee EPA’s actions. My goal is to work

with EPA to mitigate potential threats; their role in this extremely important and

timely effort is critical.

Again, I thank my colleagues for their efforts on behalf of chemical site security;

and I look forward to moving S. 1602, the Chemical Safety Act, through the EPW

Committee.

STATEMENT OF ROBERT C. SHINN, JR., COMMISSIONER,

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

Good afternoon. My name is Robert C. Shinn, Jr. I am commissioner of the New

Jersey Department of Environmental Protection. With me is Allan Edwards, assistant administrator for the Office of Release Prevention. We appreciate the opportunity to come before you today to discuss the important topic of chemical plant
41

safety and security. I especially want to take this opportunity to acknowledge and

thank Senator Corzine for the leadership he is showing in this area.

In light of September 11th, a discussion on the need to ensure that there are adequate safeguards to protect the public from any accidental or intentional releases

of hazardous chemicals is especially pertinent and timely. I trust that you will understand that, due to security concerns, my testimony will be general and not refer

to specific facilities or specific security measures we have implemented in New Jersey.

There are two major themes that I would like to touch upon today. First, I would

like to give the committee the benefit of New Jersey’s experience and success in the

area of chemical safety preparedness and response. The second point I will make

is that, even in a State such as New Jersey with a successful an comprehensive

chemical safety program, there are certain areas in which augmented Federal authority would support our effort.

While New Jersey’s program has focused on prevention of accidental releases of

extraordinarily hazardous substances and not those releases caused by terrorist actions, we feel that the system we have set up and the preparedness we have instituted positions us in good stead. We are not only on guard against such an unfortunate occurrence, but we must be better able to respond if it did occur.

Over the course of nearly two decades, we have built a coordinated, effective program that no only works to prevent releases of hazardous chemicals but also provides us with the information and infrastructure so that we can be ready at a moment’s notice to respond if a release of a hazardous substance does happen. In this

way, any releases that occur, whether they are accidental or intentional, can be contained and the impacts minimized.

While our program in its entirety may not be transferable to the Federal level,

I hope that this committee will be able to take what New Jersey has done and use

it, or components of it, as a model for Federal action where appropriate.

New Jersey is the nation’s most densely populated State. It also has a large number of facilities that produce or use highly hazardous chemicals. This has forced us

to be especially diligent in ensuring that there is little to no possibility that the public will be exposed to the release of these substances. I am not here to imply that

our level of regulation would be appropriate for or should necessarily be imposed

upon other States that do not have New Jersey’s population or number of facilities.

In 1986, shortly after the tragic accident in Bhopal, India, the New Jersey State

Legislature passed the centerpiece of our effort, the Toxic Catastrophe Prevention

Act, commonly known as TCPA. It has enabled our State to develop what is still

the most comprehensive program in the country to prevent accidental releases. I

may be biased, but we think it is also the most effective.

Before I describe some of the more salient points regarding our regulatory process,

there is one feature of our program that I would like to highlight. While it is a regulatory program, it was designed in cooperation with the regulated community. Cooperation has been in place since the very beginning of the program. When we created the initial rules in 1986–87, we had very heavy industry involvement. Professional chemical safety experts from the chemical industry and the insurance industry helped us write the rules in the first place. A lot of time was spent with these

professionals to make sure that the technical requirements were valid.

Then, a few years ago when we readopted our TCPA regulations to incorporate

the Federal Accidental Release Prevention requirements and to make other improvements, we again had intense interaction and discussions with the regulated

community over a period of months. We asked for and received up-front input from

the regulated community. We feel that this hand-in-hand approach has made for a

more effective regulatory scheme.

This cooperative spirit has also been reflected in the implementation of our program. In the past, an environmental inspection could often be an adversarial encounter resulting in fines, penalties and orders. We have found it very effective to

use these inspections to emphasize compliance assistance rather than solely as violation spotting visits. When we perform an inspection of a TCPA-regulated facility,

a typical inspection will be performed over the course of an entire week where we

work with the facility to examine alternatives—in many cases involving the use of

innovative technologies—to get the facility into compliance.

To their surprise, many facilities realize efficiencies and increased profits once

they implement the changes to their processes that were decided upon in this cooperative manner.

We would strongly recommend that any Federal legislation in this regard promote

a compliance assistance approach to regulation, without sacrificing appropriate enforcement response, when necessary. I realize that it is a fine line that has to be

considered, but it is well worth the effort.
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There are several key features of New Jersey’s TCPA program that have contributed to the success of this program and which you may wish to consider for incorporation into the Federal scheme. The main thing I would suggest is that the overall

philosophy, as expressed in section 112(r) of the Clean Air Act, place a greater emphasis on prevention and preparedness. In New Jersey, we emphasize identification

of risks and the steps that should be taken to reduce those risks. At this time,

where we need to be cognizant not only of accidental releases but those that may

be intentional as well, an emphasis on up-front prevention and quantitative risk

analysis is called for.

In New Jersey, our law requires regulated facilities to perform comprehensive reviews and risk assessments of all possible release scenarios that may cause offsite

impacts. Presently, Federal regulation only requires facilities to perform analysis of

worst-case scenarios and one alternate case scenario. Furthermore, in New Jersey,

we require that facilities quantitatively assess and characterize risk, going a step

beyond any other process safety management and risk management program regulations in the U.S. This means that the potential releases and resultant offsite impacts that may occur under each scenario must be quantified. To date, Federal regulation does not require quantitative analysis of risk. We would recommend that such

quantification be required.

Our requirement that any and all release scenarios that may possibly result in

offsite impacts be analyzed and planned for has had positive benefits not only for

the public but also, in many cases, for the facilities themselves. Because of the intense review and planning efforts, State and local emergency response officials, as

well as the response officials for the plants themselves, have comprehensive plans

that cover a whole range of situations.

This review process has also benefited businesses, which invariably improve their

processes as they have gone through the scenario review. Many improvements that

otherwise would not have been considered come to light. Some of the process improvements performed by the facility were not specifically required by our regulations, but instead were inspired by the facility itself. These are processes that make

good economic sense but would never have been done had the analysis not been performed.

For example, the use of remote control shut off valves on chlorine rail cars has

become pretty common practice. However, this was not always the case. It was not

until facilities began to analyze scenarios that it became obvious that in certain situations, emergency workers would have to endanger themselves by going into what

could be the thickest part of the plume, find the switch and shut down the release.

There would also be the danger that the switch could not be reached and the release

would continue unabated. Remote switches make good business safety and health

decision sense.

As a practical matter, we would recommend the incorporation of threshold

amounts into any legislation that is considered. TCPA only kicks in if a facility handles, uses, manufactures, stores or has the capability to generate an extraordinarily

hazardous substance at specified threshold quantities. These thresholds have been

developed for each individual substance through scientific analysis of the respective

potential offsite impacts. The fact that there are thresholds, and also the fact that

there are fees applied based on the amounts maintained over that threshold, provide

real financial and regulatory incentives to convince facilities that it would be in

their best interest to reduce inventories of extraordinarily hazardous substances.

Over the life of this program, we have seen numerous facilities either reduce the

amount of the substances they keep on hand or change their processes altogether

so that they use more benign substances to accomplish the same ends. For example,

when our program first got up and going in the fall of 1988, New Jersey had 575

TCPA-regulated water treatment facilities meeting the then 500-pound or greater

threshold quantity of chlorine. In less than 3 years, 375 of these facilities had reduced the amount of chlorine on hand to levels below the threshold, removing them

from the program. Another 100 facilities changed their processes and ceased the use

of chlorine altogether; instead using alternatives that have the potential for only

very limited offsite impacts.

As I have emphasized, we are very proud of the program we have developed in

New Jersey to minimize the risk of catastrophic releases. The TCPA program, working in conjunction with other programs such as Discharge Prevention Containment

and Countermeasures, Worker and Community Right-to-Know and Emergency Response has established a prevention and response system that is second to none.

The DPCC Program, for example, covers the universe of facilities whose releases

would not have the dire consequences of a TCPA release, but would still cause adverse impact to the public and the environment. This program has some require-
43

ments that mirror the TCPA requirements regarding secondary containment and

preparedness and prevention.

Still, however, there are areas where additional Federal regulation would improve

our efforts. Let me briefly describe those areas.

One thing that we would support is Federal promotion of the use of inherently

safer technology. It goes beyond what we feel we could require at the State level

in New Jersey, but we do believe that it would be proper policy to promote safer

technology at the Federal level. Installation of inherently safer equipment would

help to ensure that facilities and emergency responders would have the most upto-date technology at their disposal in the event of a release.

It would also be helpful to New Jersey if a Federal statute allowed for State regulation of the transportation of extraordinarily hazardous materials. DOT regulations

have historically been unclear as to when freight is in transit and when it is not.

Our TCPA program generally regulates material once it enters onto a plant site.

However, the longer freight is in transit, the less opportunity we have to impose

regulations as a State. For example, there are some who are pushing for railcars

to be exempt from State regulation until they are completely unloaded. Due to interstate commerce concerns, a State’s jurisdiction over the railcar and its contents is

unclear while in transit.

DOT is currently taking comments on a proposal to define when a commodity is

to be considered ‘‘in transit.’’ This might be an appropriate time for Congress to

weigh in on this issue.

I thank you for this opportunity to come before you and discuss this vital topic.

We are available to answer any questions that you may have.

STATEMENT OF FREDERICK L. WEBBER, PRESIDENT AND CHIEF EXECUTIVE OFFICER,

THE AMERICAN CHEMISTRY COUNCIL

Good afternoon. My name is Fred Webber. I am president and CEO of the American Chemistry Council. I am pleased to speak today on behalf of the Council’s

members on the important subject of security in the chemical industry, a critical

component of America’s infrastructure.

I believe it is very important for members of this subcommittee, and Congress as

a whole, to understand three basic facts about our industry.

First, our industry is a critical and indispensable part of the nation’s infrastructure. We make significant—and sustained—contributions to America’s economic and

national security. We make thousands of products that make people’s lives better,

healthier, and safer—from medicines to medical equipment, from the space-age materials used by the military in stealth aircraft to aviation fuel and night vision

equipment, from satellite communications systems to ensuring that the water we

drink is safe and clean. What’s more, every other manufacturing industry in the

United States depends in some way on the products of chemistry for their survival

and growth.

Second, we have a culture of safety going back many years. The nature of our operations requires it. This culture of safety has created what Labor Department data

reveals is one of the safest industries in the United States—and the world. Our

longstanding safety culture has, in the last decade, evolved into a culture of security

that extends beyond our industry into those with whom we work. This commitmentto both safety and security—is expressed through our industry’s own voluntary initiatives such as Responsible Care, our adherence to and support for governmental

standards and research, and our longstanding-and effective-partnerships with local,

State and Federal Government agencies.

Third, we have an important role to play strengthening our national security. We

are working with the Department of Justice and other law enforcement agencies to

review and strengthen security at our manufacturing facilities and to protect

against the diversion and misuse of our products. This work was going on before

September 11. It has been accelerated since then. For example, in addition to the

things we were doing either voluntarily or with others before September 11, we

have urged President Bush to proceed with plans to conduct a comprehensive security assessment of the chemical industry that Congress requested a year ago. We

plan on conducting our own assessment of industry security. Our industry will benefit from a comprehensive assessment conducted by appropriate Federal law enforcement, national security, and safety experts.

I intend to address these issues today within the structure of the following outline. First, I will describe briefly some of the ways our industry contributes to making our lives better, healthier, and safer—in short, why the products of chemistry

are so vital to our nation, its people, our economy and our collective security. In
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doing so, I will also describe some of the important industry programs and practices

that illustrate our industry’s culture of safety—and the effect of this in establishing

and strengthening our culture of security. I will describe the types of actions our

industry has taken to enhance the security of its facilities since the unspeakable

events of September 11.

Second, I will identify many of the comprehensive and effective laws and regulations that currently address chemical safety and security.

Third, I will identify specific actions that we believe Congress and the Executive

Branch should take that would help our industry and many other industries—improve security. And I will suggest some creative ways in which the chemical industry can help Congress in further improving our nation’s overall security.

Finally, I will detail our views of the legislation currently under consideration by

this subcommittee—which has been introduced by Senator Corzine and others—and

ways in which we believe it can—and should—be improved.

I. THE CHEMICAL INDUSTRY MAKES OUR LIVES BETTER, HEALTHIER & SAFER

The chemical industry is a critical asset of our economy and our nation’s infrastructure. The science of chemistry and its benefits are interwoven into our daily

lives. The business of chemistry is essential to the nutrients in our food, the purification of our water, the military that defends us, the vests our police officers wear,

the suits our firefighters and pilots wear, the antibiotics so many people recently

have been forced to take, and the products that we rely upon to heal and save lives.

Chemistry not only makes life possible, it helps make all our lives healthier, safer,

and more enjoyable.

The chemical industry is committed to the highest standards to safeguard our employees, our customers, our processes, our products, and our communities. During

the last decade, the chemical industry has devoted significant attention and resources to improving security. Our industry concentrated more heavily on security

issues as cyber and computer security issues began to arise. As our industry developed Risk Management Plans under the Clean Air Act and began analyzing in

greater detail the possible offsite consequences of an accidental release, we devoted

even greater effort and attention to security.

The events of September 11 very starkly demonstrate how differently the government and private industry must now think in order to protect our critical assets and

national infrastructure.

A. Knowledge Is Security

The cornerstone of effective security is knowledge—intelligence about potential

threats that allows the threat to be intercepted and allows the target of the threat

to be properly prepared. In fact, knowledge is our best defense. Our industry believes it is critically important to establish formal procedures for circulating information about potential and, importantly, credible and specific threats to the nation’s critical infrastructure. At the same time, such a system can provide government decisionmakers with the full range of information on which to make their decisions.

After September 11, everyone began to revisit potential threat scenarios. Our estimations of the probability of a worst-case scenario have changed, and we are moving

rapidly to prepare for these potential new threats. Our preparations are most effective when we have high quality and timely intelligence regarding threats. Our industry is moving aggressively to establish better information-sharing mechanisms

with Federal, State, and local officials—especially with the FBI’s National Infrastructure Protection Center, the main body of government responsible for communicating threats to the private sector. More can be done in this area, especially with

the Office of Homeland Security, and we intend to do our part in this regard.

Security in the face of these threats is derived from planning and executing security strategies. Our industry has an advantage in this area because of our longstanding expertise in risk management. We have spent many years instituting progressively more sophisticated safety and security programs. We applaud the recent

GAO testimony before Congress calling for a more thorough risk analysis of the nation’s critical infrastructure, and the mechanisms to manage those risks.

Response is another area in which we have demonstrated expertise. The chemical

industry is one of the best-trained and equipped private sector emergency responders in the world. We coordinate closely with local responders and participate in joint

training programs where multiple plants are clustered.

After September 11, chemical companies across the country went on higher alert.

Many existing security procedures have been enhanced and contacts with law enforcement officials intensified. The security efforts at each facility vary depending

upon its particular needs and those of the local community. However, some examples of the security measures taken by many of our companies include:
45

• Working closely and cooperatively with Federal, State and local law enforcement and emergency management officials, including the FBI, the Coast Guard, and

the Federal Emergency Management Agency (FEMA). The Coast Guard, in particular, has stepped up security at chemical terminals and ports across the country,

including escorting vessels coming in and out of major ports. • Increasing surveillance and the number of security guards at sites. • Enhancing access control measures, including restricting access of scheduled

visitors and deliveries onsite and restricting access within the site. • Permitting employee vehicles only on facility premises. • Moving rail tank cars are being moved inside the fence-line. • Centralizing receiving operations. • Conducting background checks on company and contract employees. • Requiring carriers to perform background security checks on their drivers. • Reassessing crisis management, response and evacuation plans. • Permitting cleaning crews to work only during business hours. • Increasing communications with plant communities. • Reviewing distribution routes and, where possible, reducing shipments of hazardous materials to urban centers. • Adding second drivers to shipments of certain chemicals and requiring direct

transit so that no overnight layovers are required.

We are intensifying our outreach to and information sharing with our partner

trade associations. The Council is hosting a weekly security meeting of the heads

of more than a dozen chemistry-related trade associations representing manufacturing and distribution enterprises.

B. Site Security and Distribution Guidelines

One of our more important actions since September 11 is the publication of our

Site Security Guidelines for the chemical industry. Although we just recently published these guidelines, chemical industry security experts have been working on

them for the past year. After September 11, these chemical security experts took

a fresh look at the guidelines in light of the terrorist attacks and revamped some

of the recommendations before publication. These guidelines are intended for use by

anyone responsible for securing chemical manufacturing operations. They are available to anyone by visiting our website at www.americanchemistry.com. We have

asked every one of our 180 members to distribute these guidelines broadly to their

customers and their customers’ customers. We anticipate the guidelines will be useful to anyone who is concerned about security.

We have distributed the guidelines to our 20 State chemical industry councils.

These councils, operating in the largest chemical manufacturing States, include

member companies of the American Chemistry Council and hundreds of smaller

firms.

We have distributed these guidelines to our Responsible Care Partner Network.

That network is composed of 60 chemical supply chain related companies and trade

associations. Importantly, this network includes most of the firms responsible for

transporting chemicals in commerce. We have made the guidelines available to the

20,000 companies registered in the Council’s CHEMTREC emergency response center (which I will discuss in more detail later in my testimony).

We have intensively publicized the availability of the guidelines to the chemical

industry trade press, public policy-related media organizations, major dailies and

periodicals, and electronic news services. These news services deliver news and information to thousands of local newspapers. We have also registered them on all

major Internet search engines.

We have distributed the guidelines to trade associations outside the traditional

chemical supply chain, including the National Federation of Independent Businesses, U.S. Chamber of Commerce and National Association of Manufacturers. We

have made the Guidelines available to many professional societies and organizations

in the hope that they will find them useful as well.

We are also asking the FBI to consider sending the guidelines to the 27,000 private sector security professionals registered to receive the Bureau’s ANSIR alerts

so that the Guidelines will reach as many persons as possible who are in the business of protecting the critical assets of out national infrastructure.

The guidelines are receiving attention and are being used. They are the most frequently visited and heavily downloaded documents we have ever posted on our

website.

On November 9, 2001, the new Transportation Security Guidelines were published. These guidelines adopt a risk-based approach to addressing security considerations relevant to the transportation of hazardous materials on all modes of transportation. The document provides chemical shippers with information on conducting
46

a risk-based transportation security assessment, as well as examples of preventive

measures and alternatives that could be implemented to address potential security

concerns. The American Chemistry Council, The National Association of Chemical

Distributors, and The Chlorine Institute developed the guidelines with the assistance of a number of other associations and Responsible Care partners. These guidelines are available on our website at www.americanchemistry.com. We intend to disseminate them as broadly as has been done with our Site Security Guidelines.

C. Regional Security Briefings

My staff is working with EPA, DOT, FBI and others to organize regional security

briefings around the country. Five have been scheduled between Thanksgiving and

Christmas. A similar conference held earlier this month in New Jersey drew 225

attendees, twice the number expected. We intend to encourage additional face-toface discussions between government security officials and companies throughout

the chemical supply chain. We have pledged our full support and cooperation to

work with government agencies to continuously improve the safety and security of

the chemical industry.

D. Emergency Preparedness Programs

Our 180 member companies continually evaluate their security measures, and

have increased efforts since September 11. When they evaluate their security practices, they work closely with their Local Emergency Planning Committees, called

LEPCs. Members of LEPCs include fire fighters, health officials, representatives

from government and the media, community groups as well as representatives from

industrial facilities. LEPCs engage in a collaborative effort with respect to planning

and responding to chemical emergencies. The member companies of the American

Chemistry Council have a long history of working as part of the LEPC network to

ensure the safety and health of plant communities.

Our member companies work with LEPCs in many ways. They help communities

prepare for transportation related incidents, and help LEPCs develop and test emergency plans and systems, train emergency responders, and raise community awareness of the potential emergencies related to our production sites. Our companies

hold public meetings to communicate worst case and worst probable scenarios to our

communities and the plans to minimize the risk.

While local emergency responders, chemical facilities and the surrounding communities can do many things to prepare for and mitigate the potential impact of

a terrorist attack; we are not in a position by ourselves to prevent such an attack.

We must have advance intelligence and clear communications to assist our military

in its response to such an event.

E. Chemical Industry Vulnerability Assessment

For the past year, the Council has been involved in a congressionally established

study with the Department of Justice designed to assess the vulnerabilities of plant

sites and to recommend ways to deal with those vulnerabilities. We have consistently supported this study and have cooperated fully with the Department of Justice

and its contractor, Sandia Laboratories. In fact, we recently wrote to President Bush

urging him to ask Congress to provide adequate additional funding to ensure that

it will be the most comprehensive study possible.

At this stage in my remarks, I would like to briefly comment on a report Senator

Corzine referred to in his floor speech when he introduced his legislation. The report, issued in 1999 by Agency for Toxic Substances and Disease Registry (ATSDR),

was incomplete because it was based on a sampling of only two plant communities.

It therefore led to an inaccurate portrayal of the State of the industry’s security

when it was published more than 2 years ago. It remained an inaccurate portrayal

on September 11. It continues to be an inaccurate portrayal of the industry’s secu- rity actions and efforts. We have produced an analysis of the report and will furnish

it to you and your staff.

Despite our concerns with the ASTDR report, we have already begun a dialog

with ATSDR on how we can work together to improve the security of our industry.

I also would like to direct the subcommittee to testimony delivered to the Senate

recently by the General Accounting Office (GAO). In that testimony, the GAO recommended to the Senate that any programs designed to combat terrorism must be

based on sound risk management principles that systematically analyze threats,

vulnerabilities and the critical nature (or relative) importance of our national assets,

such as the chemical industry. As the GAO testified, threat assessments are an important first step in this process—but only the first step. The second is a vulnerability assessment—which is a way to identify weaknesses. Finally, the third step

in this process is what the GAO calls a ‘‘criticality assessment-which are necessary

to prioritize assets for protection.’’ We agree with the GAO. We also agree that the
47

government’s use of these risk management principles has been inconclusive. This

subcommittee could do much to further this approach.

F. Responsible Care And Other Industry Initiatives

The business of chemistry has many voluntary programs that support efforts to

improve the safe distribution of our products. The most comprehensive is the American Chemistry Council’s Responsible Care Code of Management Practices. This Program emphasizes performance. When first adopted in 1988, the Codes of Management Practices were designed to help our member companies develop systems to

continuously improve the industry’s responsible management of chemicals. Today,

members still must adhere to the Codes. But they also report to the American

Chemistry Council their progress toward the vision of no accidents, no injuries, and

no harm to the environment.

Under this program, chemical companies implement additional measures to

achieve safer operations. Responsible Care has received considerable recognition by

independent external organizations because of the progress our member companies

have achieved. For example, in 2000, the American Chemistry Council was awarded

the Keystone Center Leadership in Industry Award for its commitment to making

a better, healthier and safer world through chemistry.

There are 6 Codes of Management Practices in Responsible Care.

(1) The Community Awareness And Emergency Preparedness Code. The goal of the

CAER Code is to assure emergency preparedness and to foster communities’ rightto-know. It demands a commitment to openness and community dialog. The Code

has two major components. First, member facilities that manufacture, process, use,

distribute, or store hazardous materials initiate and maintain a community outreach program to communicate relevant, useful information responsive to the

public’s questions and concerns about safety, health, and the environment. Second,

members help protect employees and communities by assuring them that each facility has an emergency response program to respond rapidly and effectively to emergencies. Many companies have established community advisory panels as forums to

share issues between plant sites and their surrounding communities. More than 300

community advisory panels are in operation around the country.

(2) The Pollution Prevention Code. This Code is designed to achieve ongoing reductions in the amount of all contaminants and pollutants released to the air, water,

and land from member company facilities. These reductions are intended to respond

to public concerns with the existence of such releases, and to further increase the

margin of safety for public health and the environment.

(3) The Employee Health and Safety Code. The goal of this Code is to protect and

promote the health and safety of people working at or visiting member company

work sites. To achieve this goal, the Code provides Management Practices designed

to improve work site health and safety. These practices provide a multidisciplinary

means to identify and assess hazards, prevent unsafe acts and conditions, maintain

and improve employee health, and foster communication on health and safety

issues.

(4) The Process Safety Code. This Code is designed to improve operations and performance to reduce the potential for fires, explosions, and accidental chemical releases. The principal foundation of the Practices is that facilities will be safe if they

are designed according to sound engineering practices; built, operated and maintained properly; and periodically reviewed for conformance. The Practices encompass

process safety from the design stage through training, operation, and maintenance,

and are applicable to existing operations as well as new facilities. The Code also requires that our members share relevant safety knowledge and lessons learned from

incidents with industry, government and the community. Additionally, the Code

mandates programs to assure that employees in safety critical jobs are fit for duty.

(5) The Distribution Code. The purpose of the Distribution Code is to reduce the

harm posed by the distribution of chemicals to the general public, carriers, distributors, contractors, chemical industry employees, and the environment. The Distribution Code of Management Practices applies to all modes of transportation and to the

shipment of all chemicals, including chemical waste.

(6) The Product Stewardship Code. The purpose of the Product Stewardship Code

of Management Practices is to make health, safety, and environmental protection

an integral part of designing, manufacturing, marketing, distributing, using, recycling, and disposing of our products. The Code provides guidance, as well as a

means of measuring continuous improvement in the practice of product stewardship.

The scope of the Code covers all stages of a product’s life. Successful implementation

is a shared responsibility. Everyone involved with the product has responsibilities

to address society’s interest in a healthy environment and in products that can be
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used safely. All employers are responsible for providing a safe workplace, and all

who use and handle products must follow safe and environmentally sound practices.

The Council is also developing an accredited, third party audit process that will

result in ISO 14001 and Responsible Care certificates.

Our companies are committed to improving our safety record. We are continually

working to improve our processes and eliminate accidents. One single injury or

death is too many. Each year every member of the American Chemistry Council receives data relating to its process safety reportable incidents and distribution incidents for the previous year. Each company evaluates that information and takes

steps to prevent those incidents in the future.

G. CHEMTREC

Since 1971, the Council has operated, as a public service, the 24-hour-a-day/7-daya-week emergency communication center known as CHEMTREC, which stands for

CHEMical Transportation Emergency Center. When an incident occurs,

CHEMTREC provides emergency responders with technical assistance from industry product safety specialists, emergency response coordinators, toxicologists, physicians and other industry experts to safely mitigate the incident. All calls are free

of charge to emergency responders. Additionally, CHEMTREC has agreements in

force with the U.S. Department of Transportation, the U.S. Army, and the Department of Defense to provide information and assistance to those organizations whenever and wherever it is needed. Shortly after September 11, CHEMTREC and the

FBI’s Hazardous Materials Response Team augmented and improved their information-sharing and coordination activities.

Several organizations have joined together to form networks of private sector

emergency responders and response contractors to further enhance the timely and

efficient response to chemical transportation incidents. Other programs similar to

Responsible Care include the National Association of Chemical Distributors Responsible Distribution Program, and the American Waterways Operators Responsible

Carrier Program.

Joint initiatives between the Council, the Association of American Railroads, and

the Railway Progress Institute led to the publication of recommendations for the

safe transport of hazardous materials by rail, addressing a range of issues from

train speed and training to loading, unloading and preparation of tank cars.

A partnership between the Council and the National Tank Truck Carriers, Inc.

led to the publication of a manual of recommendations addressing issues including:

motor carrier selection, equipment and product handling, training, route selection,

incident reporting, shipment documentation, risk management and others.

H. TRANSCAER

A major initiative sponsored by 10 trade associations and known as TRANSCAER,

for Transportation Community Awareness and Emergency Response, is designed to

provide information directly to communities through which hazardous materials are

transported. This program educates the community on the products that flow

through the community, provides guidance and expertise on how to develop contingency plans in the unlikely event that an incident does occur, provides guidance on

how to test the plan, and provides training to local emergency responders on how

to deal with incidents and where to obtain information to assist in planning and

preparedness.

I. Chemical And Biological Weapons

After the September 11 attacks, interest turned toward a potential ‘‘second wave’’

of terrorist attacks. Many in the law enforcement community have said this next

wave may consist of attacks using biological or chemical weapons.

The chemical industry has been a strong and steadfast supporter of the Chemical

Weapons Convention. In fact, President Clinton cited the American Chemistry

Council for its ‘‘extraordinary, sustained commitment to eliminating the threat of

chemical weapons’’ after the convention became effective in 1997.

The goal of the convention is praiseworthy and it is one-of-a-kind in its approach.

Members of the CWC commit to exclude completely the possibility of the use of

chemical weapons worldwide through the combined efforts of their respective militaries and private industry.

In practice, the convention prohibits the manufacture of any chemical and certain

specifically listed chemicals for use as a weapon, and mandates the destruction of

all chemical weapons stockpiles. It also bans trade in certain chemical weapons

agents and direct chemical weapons precursors between members and non-members. Private industry submits regular and detailed reports to the U.S. Government

on operations that involve chemicals that can be precursors to chemical weapons.
49

The convention is the first of its kind in permitting onsite inspections of commercial

facilities to verify compliance with the spirit and letter of the convention.

Since the CWC became effective in 1997, 143 countries have committed to the

global cause of chemical weapons elimination under these terms. In the United

States, there is an additional incentive to comply with the convention. The U.S.

criminalized the failure to submit required reports and to host onsite inspections.

Failure to comply comes at an exceedingly high price.

At the same time, the CWC is just one among a number of chemical controls applied by American chemical companies. Chemical companies maintain comprehensive and current systems to ‘‘red-flag’’ potential sales of chemicals with potential for

diversion and misuse in making chemical weapons. The systems are based on a company’s product line, customer markets, and regulatory obligations, and also incorporate extensive and informative guidance on effectively screening and identifying

your customer. Combined with the company’s knowledge of chemistry and the business of chemistry, these systems protect the legitimate and intended use of chemicals in the vital and varied downstream industries we supply including, electronics,

pharmaceuticals, computers and healthcare.

The CWC essentially requires government licenses on international sales of dualuse chemicals (chemicals manufactured for commercial use, but capable of being

converted into a chemical weapon). The Convention imposes strict government reporting requirements on manufacturers of listed chemicals. They are required to

keep records, provide access by appropriate officials to those records, and to submit

appropriate periodic reports to the government. The treaty is also the first of its

kind to permit onsite inspection of commercial facilities.

II. A COMPREHENSIVE NETWORK OF EXISTING LAWS AND RULES ALREADY PROMOTE

SECURITY

The safety and security of America’s chemical manufacturing sites is the subject

of many existing laws and regulations. These laws and regulations complement—

and in some cases were inspired by—the Responsible Care Management Practices

that I discussed previously.

A. Toxic Substances Control Act (TSCA)

TSCA gives EPA comprehensive authority to regulate any chemical substance

whose manufacture; processing, distribution in commerce; use or disposal may

present an unreasonable risk of injury to health or the environment. Among other

requirements, it mandates that chemical companies submit premanufacture notices

that provide information on health and environmental effects for each new product

and to test existing products for these effects. It also gives EPA authority to prohibit, limit or ban the manufacture, process, and use of chemicals.

B. Comprehensive Environmental Response Compensation and Liability Act

(CERCLA) and the Superfund Amendments Reauthorization Act (SARA)

CERCLA and SARA provide the basic legal framework for the Federal ‘‘Superfund’’ program to clean up abandoned hazardous waste sites. CERCLA imposes specific taxes on chemicals and petroleum to fund the cleanup program. Title III of

SARA, the Emergency Planning and Community Right-to-Know Act, established the

‘‘right-to-know’’ standards. Since 1986, the chemical industry has been among the

thousands of manufacturing sites regulated by EPCRA. The basic requirement of

EPCRA is information sharing among manufacturers, State and local emergency

planning and response agencies, and the public. Another important aspect of SARA

is Section 313, Toxic Chemical Release Inventory (TRI) reporting. According to 1999

figures, since 1988, emissions have declined 65 percent.

EPCRA requires manufacturers to prepare and submit hazardous chemical inventory form to the appropriate local emergency planning committee, the State emergency response commission and the local fire department. Companies are required

to report the amount of chemicals present at the facility, their location and manner

of storage. The information is automatically made public through local emergency

planning committees, and the law requires fire department access for onsite inspections. Companies must supply more detailed information upon request by local authorities.

EPCRA was derived largely from CAER, the Community Awareness and Emergency Response (CAER) program developed by the American Chemistry Council in

1985 in the immediate aftermath of Bhopal. As I discussed earlier, CAER is the

Code of Management Practices that requires participating facilities to develop emergency response plans, and to conduct live drills to rehearse those plans on at least

an annual basis.
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C. Clean Air Act (CAA)

The CAA provides EPA the authority to regulate air pollutants from automobiles,

electric power plants, chemical plants and other industrial sources. Its 1990 amendments set control standards for industrial sources of 189 toxic air pollutants. Key

provisions include:

• EPA’s Risk Management Program (RMP) Rule. The RMP is a set of regulations

established under Section 112(r) of the Clean Air Act that provide guidance for the

prevention and detection of accidental releases of regulated hazardous substance

and preparation of facility risk management plans. This rule requires regulated facilities to prepare offsite consequence analyses in the event of a worst-case accidental release or exposure. These analyses help companies plan for effective emergency response and to take the appropriate measures to prevent offsite consequences from occurring.

• The Chemical Safety Information, Site Security and Fuels Regulatory Relief

Act. This Act required facilities to hold a public meeting to summarize their RMP

information, prohibits offsite consequence analyses from being posted by the government on the Internet, and mandates the DOJ vulnerability assessment of the chemical industry that I referred to previously.

• Clean Air Section 112(r) Act General Duty Clause directs owners and operators

of facilities producing, using, handling or storing extremely hazardous substances

(regardless of whether they are regulated substances) to design and maintain a safe

facility to prevent accidental releases, and to minimize the consequence of any that

occur.

D. Clean Water Act (CWA)

The CWA authorizes EPA to regulate effluents from sewage treatment works,

chemical plants, and other industrial sources into waters. The CWA also requests

that States identify and alleviate pollution problems. Currently, there are proposals

in Congress to reauthorize the Act.

E. Safe Drinking Water Act (SDWA)

Establishes standards for public drinking water supplies.

F. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)

FIFRA provides EPA authority to register and assess the risks of agricultural pesticides, industrial biocides, and other non-agricultural pesticides.

G. Federal Food, Drug and Cosmetics Act (FFDCA)

The FFDCA provides the Food and Drug Administration authority to regulate the

manufacturing of drugs and pharmaceuticals and the use of packaging and additives

in food and cosmetics.

H. Food Quality Protection Act (FQPA)

The FQPA amends FIFRA and FFDCA to provide EPA with authority to regulate

pesticides. It mandates a single, health-based standard for all pesticides in all foods;

provides special protections for infants and children; expedites approval of safer pesticides; creates incentives for the development and maintenance of effective crop

protection tools for American farmers; and requires periodic re-evaluation of pesticide registrations and tolerances to ensure that the scientific data supporting pesticide registrations will remain up-to-date in the future.

I. Resource Conservation and Recovery Act (RCRA)

RCRA provides EPA with authority to establish standards and regulations for

handling and disposing of solid and hazardous wastes. These requirements include

access controls, secondary containment, emergency preparedness plans and other

plant security and safety measures.

J. Occupational Safety and Health Act (OSHA)

OSHA provides the Department of Labor authority to set comprehensive workplace safety and health standards, including permissible exposures to chemicals in

the workplace, and authority to conduct inspections and issue citations for violations

of safety and health regulations. A key provisions is:

OSHA’s Process Safety Management Standard (PSM). The PSM Standard is intended to prevent or minimize the employee consequences of a catastrophic release

of toxic, reactive, flammable, or highly explosive chemicals from a chemical manufacturing process. Under the standard, regulated companies are required to conduct

accident prevention assessments, known as a process hazard analyses (PHAs). PHAs

are required for every step of a covered chemical manufacturing process. Based on

these analyses, companies are required to take appropriate steps to prevent chem-
51

ical explosions or accidental releases. The standard also requires written operating

procedures, including steps for each operating phase and safety system, and that

these and other process safety information be made readily available to employees.

The PSM standard is designed to protect worker safety, but many of the procedures

implemented as a result of the PHAs also offer security benefits. The PSM Standard

is a complement to the RMP rule under the Clean Air Act that I discussed previously. The RMP rule adds the offsite consequence component to the PSM Standard

that focuses on employee safety.

K. Hazardous Material Transportation Act (HMTA)

The HMTA provides the U.S. Department of Transportation (DOT) with the authority and responsibility to regulate the movement of hazardous materials. DOT’s

comprehensive ‘‘hazmat’’ regulations cover the packaging, labeling and movement of

hazardous materials by railroad, truck, aircraft, and ships. (DOT also regulates

hazmat pipeline safety under a separate statute, the Pipeline Safety Act.) Additional

DOT hazmat regulations require training for employees, reports of transportationrelated releases, and the provision on emergency response information, including a

24-hour telephone number on each hazmat shipment. Through this regulatory process, DOT provides the American public, the chemical industry, and our transportation partners with consistent national regulations governing the transportation of

hazardous materials to customers across the country and around the world. In conjunction with representatives of other nations, DOT also participates in the development of international standards for the movement of hazardous materials. This further enhances safety and promotes commerce by harmonizing transport standards

among nations.

L. Chemical Diversion and Trafficking Act (CDTA)

The CDTA is designed to prevent the diversion of chemicals to illegal drug producers. It gives the Drug Enforcement Agency the authority to control exports of

chemicals to designated drug source countries.

M. Pollution Prevention Act (PPA)

The PPA makes it the national policy of the United States to reduce or eliminate

the generation of waste at the source whenever feasible and directs EPA to undertake a multimedia program of information collection, technology transfer, and financial assistance to the States to implement this policy and to promote the use of

source reduction techniques.

N. Flammable Fabrics Act (FFA)

The FFA gives the Consumer Product Safety Commission (CPSC) the authority

to set flammability standards for fabrics that protect against an unreasonable risk

of the occurrence of fire.

O. Poison Packaging Prevention Act (PPPA)

The PPPA provides the CPSC the authority to set standards for the special packaging of any household product to protect children from a hazard.

P. State Regulations

Many State governments are increasingly active in the environmental and safety

areas. In addition to implementing Federal programs like those described above, the

States themselves are active in a range of issues that impact the chemical industry.

These include hazardous waste and State right-to-know statutes.

In sum, thousands of pages of rules and regulations regulate the chemical industry.

III. GOVERNMENT SECURITY ACTIONS NEEDED

Let me now identify for you the things that our industry and others need in order

to enhance our ability to secure our facilities and the safety of this country.

1. We need to have the DOJ chemical industry vulnerability study completed in

a comprehensive manner. Currently, the only phase of the study that has been funded by Congress is the development of a methodology for use in the assessment. This

is insufficient. In addition to our own actions to improve security, our industry

would benefit from a comprehensive assessment conducted by law enforcement, security and safety experts. We have asked that funding be dedicated to complete the

entire DOJ project so that the study will be completed in the most comprehensive

manner possible.

We need to work together to devise performance-based and flexible approaches

that address what needs to be accomplished, not how it is accomplished. This type
52

of outreach program has a far better chance of actually reaching the broadest segment of chemical companies.

2. We need an efficient and timely intelligence and information sharing mechanism established at the highest level and in the timeliest manner possible. One

method of facilitating this need would be for Congress to act quickly to pass a bill

that would enable critical infrastructures and government to share information relating to physical and cyber security. A hybrid version of H.R. 2435, sponsored by

Representatives Davis (R-VA) and Moran (D-VA), and S. 1456, sponsored by Senators Bennett (R-UT) and Kyl (R-AZ), provides the critical protections—such as exemptions from antitrust and freedom of information laws—that would allow industries to share this critical and sensitive information with one another and with government. I would be pleased to share a copy of this hybrid bill with you if requested.

3. Significant Federal funding is necessary to increase the security of the entire

rail transportation network; the security of our nation’s critical communications,

computer, and train control systems; investment in the physical hardening of critical

railroad infrastructures; research and development of improved technology for sealing rail cars.

4. Another action that would assist industries and communities throughout the

country would be a program that provides financial assistance and tools to Local

Emergency Planning Committees (LEPCs) that are struggling.

LEPCs are critical to planning for emergency response and preparedness. We

need to do all we can to enhance these critically important organizations.

IV. CHEMICAL SECURITY ACT OF 2001

As I turn now to address the Chemical Security Act of 2001, let me first say that

the American Chemistry Council supports this subcommittee’s desire to improve the

security of the chemical industry from a terrorist attack. We would like to cooperate

with Senator Corzine and this subcommittee to improve that security. However, we

are concerned about several important aspects of this bill.

• Security begins by knowing the areas in which you are vulnerable. We should

press forward with full funding and the early completion of the DOJ vulnerability

assessment. Let us devote our time and money to the areas where the greatest risks

lie.

• As we consider the best ways to enhance our nation’s safety and security, it is

imperative that we understand the vital products supplied by the business of chemistry, and thoroughly understand the ramifications of our actions. Precipitous restrictions on the business of chemistry can have serious unintended consequences.

For example, just last month the railroads invoked a short-term moratorium on

shipments of chlorine, presumably as a security measure. Because they did not involve stakeholders in their decisionmaking process, they apparently did not know

what effect that decision could have had on the safety of the nation’s water supply.

Chlorine-based disinfectants are used by 98 percent of modern water purification

plants to kill bacteria and viruses. This is an essential factor in delivering safe

water to homes for drinking, cooking and bathing. But many water utilities have

only a few days’ supply of these chemicals on-hand at any given time—and sudden

stoppages in our ability to deliver those products can have dire consequences.

• Our industry currently uses safe technologies and continually works to develop

and implement safer ones. We conduct process hazard analyses of our facilities and

as a result change processes, modify procedures and substitute materials to reduce

and manage risks. Risk management decisions are made with several objectives in

mind, including reduction of environmental impacts, worker safety, safety of the

community in the vicinity of the plant and.

For example, low air emission standards require the use of vapor recovery systems that create closed systems that have a greater potential for fires and explosions. In these analyses it is important that the facility be given flexibility to choose

management options that will reduce risk and meet existing regulatory requirements. In some cases this will involve process and equipment changes, but more effective choices might include modification of process controls. Imposing regulatory

requirements that focus solely on equipment and raw materials, such as those in

this bill can complicate these analyses and lead to decisions that may not address

the largest risk and risk reduction opportunities.

We also need to keep in mind the complexity of the chemical industry processes.

There are no ‘‘standard processes’’ and thus to expect meaningful and helpful regulatory oversight may be very difficult and very expensive. In fact, EPA concluded

in the context of the RMP rulemaking that it would be impossible for EPA to understand the myriad of processes that exist and thus to determine how to propose regulations.
53

• The bill would duplicate existing legislative authority and regulations in several

ways. First, the transportation of hazardous substances is already extensively regulated by the Department of Transportation. These regulations address all aspects

of the transportation continuum, including training, packaging, loading, transport,

unloading, storage incidental to transportation, and routing. Additionally, United

Nations (UN) standards apply to packaging, labeling and handling of hazardous materials. The business of chemistry assists government agencies and the U.N. to develop safe and efficient transportation standards. The Department of Transportation

should continue to have primary regulatory oversight for transportation issues, and

every effort should be made to avoid overlapping and/or duplicative requirements.

Second, as I mentioned earlier, the Clean Air Act already contains a general duty

clause applicable to owners and operators of stationary sources producing, processing, handling or storing any extremely hazardous substance to prevent against

accidental releases. Thus, the bill appears simply duplicative of that authority,

while at the same time extending it in very broad and unpredictable ways.

Third, the imminent and substantial endangerment provisions of this bill appear

to overlap completely with Section 106 of CERCLA which authorizes response and

cleanup actions when there is an ‘‘imminent and substantial endangerment’’ to the

public’s natural resources from an actual or threatened release of hazardous substances. However, it expands unnecessarily what is already sufficiently broad authority. Section 5 also fails to preserve the President’s power under CERCLA to delegate his authorities to agencies besides EPA (e.g., the Coast Guard).

• The scope of the bill is overly broad in several respects. First, the substances

of concern under the bill would be not just hazardous substances under CERCLA,

but also pollutants and contaminants under that law, as well as petroleum in all

its manifestations. This is a potentially infinite range of materials, particularly

since there is no list of ‘‘pollutants and contaminants,’’ only a very inclusive definition. Congress and Federal agencies have already identified those highly hazardous

substances that may pose the greatest threat from accidental releases, and they are

identified under EPA’s Risk Management Plan rule and OSHA’s Process Safety

Management standard. Those lists were identified based upon their likely impact

upon surrounding communities. Unless there is some new information, these do not

need to identified again in a new law.

Second, many features of the bill are not limited to the ‘‘high priority’’ combinations of substances and sources that EPA would designate. Sections 5 (‘‘abatement

action’’), 6 (‘‘record keeping and entry’’) and 7 (‘‘penalties’’) would apply to the owner

or operator of any chemical source. That would include, for example, any person

driving an automobile.

• This bill appears to establish absolute responsibility for any release no matter

what the cause. Although it is unclear how it would be enforced, the bill appears

to make it a crime to be a victim of a crime. Any owner or operator of a chemical

facility would potentially become criminally responsible if a terrorist or other criminal attacked the facility. This is simply untenable and possible unconstitutional.

The General Duty Clause of the Clean Air Act already requires industry to design

and maintain a safe facility to prevent accidental releases, and to minimize the consequence of any that does occur. This is perfectly appropriate. But to enhance that

duty to require industry to prevent acts of crime is completely improper. We cannot

be expected to assume the role of a law enforcement authority. This is the government’s job.

• The bill presumes the public availability of ‘‘information relating to a potential

accidental release or criminal release.’’ We have grave concerns about the unsupervised availability of this information. The American Chemistry Council fully supports the principles espoused in most legislation concerning the public’s right to

know important information about their communities. However, we must find a way

to achieve this without offering terrorists a roadmap.

• We now have an Office of Homeland Security that is charged with the responsibility of coordinating the multiple government agencies that influence and affect our

national security. The security of the chemical industry is properly reserved to that

office.

Thank you for the opportunity to testify regarding the very important subject of

security in the chemical industry, a critical component of America’s infrastructure.

The chemical industry stands ready to continue to work closely with Congress, EPA,

law enforcement and security experts to improve the security of our facilities.
54

1For example, a one-ton cylinder of chlorine falls below the Risk Management Planning

thresholds set by EPA, but can create levels of chlorine gas 2 miles offsite that are considered

‘‘immediately dangerous to life and health.’’ Department of Energy, ‘‘Example Process Hazard

Analysis of a Department of Energy Water Chlorination Process,’’ DOE/EH-0340. 2Letter to the Attorney General from Senator Harry Reid of June 14, 2001; letter to the Attorney General from Senators Frank Lautenberg and Max Baucus of February 11, 2000; and, letter

to the National Institute of Justice from Senator James Jeffords of August 24, 2001.

STATEMENT OF PAUL ORUM, DIRECTOR, WORKING GROUP ON

COMMUNITY RIGHT-TO-KNOW

Thank you for the opportunity to testify today. I am Paul Orum, director of the

Working Group on Community Right-to-Know. Since 1989 I have worked with many

non-governmental organizations in all 50 States that are concerned with efforts to

reduce chemical hazards and toxic pollution.

We are here about one fundamental question: will there be a Federal program to

reduce chemical industry hazards that endanger communities—whether from criminal activity or accidents—or will there not?

The terrorist attacks of September 11 show plainly that chemical plants and refineries could suffer a worst-case fire or toxic gas release. No longer can the chemical

industry claim that a worst-case release is too improbable to occur. No longer can

the U.S. Environmental Protection Agency claim that hazard reduction is a local

matter with no need for a national hazard reduction program. No longer can the

U.S. Department of Justice neglect its duty to review chemical security practices

and to recommend ways of reducing vulnerabilities. No longer can the Federal Government impede public information about dangerous industry practices while taking

no obvious steps to eliminate and reduce those dangers. No longer can anyone seriously propose that voluntary local programs are sufficient to fix the problem.

Congress has an opportunity and a duty to fill a big hole in our laws by requiring

chemical-using facilities to evaluate safer alternatives and use them wherever practicable. The Chemical Security Act of 2001 (S. 1602) proposes constructive steps toward a national prevention and chemical security program, and gives government

the tools it needs to protect communities in the new era of terrorism.

There is a Big Hole in Our Chemical Safety Laws

People might think that the right programs are already in place, but they are not.

Currently, no Federal law actively regulates the vulnerability zones that hazardous

chemical facilities impose on surrounding communities (in terms of size, intensity,

or population at risk). Nor does any Federal law require firms to even examine safer

alternatives. Nor is terrorism a specific planning element in the Risk Management

Program established by the Clean Air Act. Nor were regulatory thresholds under

this act and other laws established with potential terrorism in mind.1

No Federal law systematically encourages inherently safer alternatives at facilities that could suddenly release dangerous chemical plumes into surrounding communities. As a result, thousands of communities across the country have chemical

hazards that may be wholly unnecessary. Current laws, generally speaking, are limited to clean up, planning, response, and risk management:

• In the early 1980s, U.S. chemical safety laws addressed cleaning up emergencies (i.e., CERCLA).

• By the mid-1980s, U.S. chemical safety laws addressed preparing for emergencies (i.e., EPCRA).

• From 1990, U.S. chemical safety laws addressed managing the risks of emergencies (i.e., EPA’s Risk Management Plans and the Department of Labor’s Process

Safety Management of Highly Hazardous Chemicals).

• The proposed Chemical Security Act, S. 1602, will address eliminating and reducing chemical hazards in communities wherever practicable as the option of first

resort.

Chemical Site Security is Often Poor

Both government reports and other incidents show serious security problems at

chemical facilities. In addition, Congress should by now have in hand an interim

report from the Department of Justice (DOJ) onsite security for chemical facilities

and transportation. Congress mandated this review in 1999 in the Chemical Safety

Information, Site Security, and Fuels Regulatory Relief Act, with an interim report

and recommendations due by August 2000. DOJ is apparently ignoring this requirement.

Congress should make sure that DOJ produces this review and recommendations.2 DOJ is preparing a voluntary self-assessment tool for use by industrial facilities. This effort lacks a public docket. It uses an ‘‘acceptable risk’’ methodology that
55

3 Agency for Toxic Substances and Disease Registry, Industrial Chemicals and Terrorism:

Human Health Threat Analysis, Mitigation and Prevention. 4 ‘‘Much Work Remains at Blue Plains, Officials Say,’’ Washington Post, November 8, 1999. 5 ‘‘Chemical Industry Rallies to Security Needs, But Perhaps Too Late, Experts Say,’’ Newhouse News Service, 2001. 6 Judith Bradbury, Environmental Technology Division, Pacific Northwest National Laboratory, U.S. Department of Energy, 1999. 7Testimony of Joan Claybrook, Advocates for Highway and Auto Safety and Public Citizen,

before the Senate Subcommittee on Surface Transportation and Merchant Marine, Senate Committee on Commerce, Science, and Transportation, October 10, 2001. 8 National Response Center. The NRC is the central Federal agency to which chemical companies and transporters report oil and chemical spills. Reports to the NRC cover incidents small

and large. Reports are initial and subject to verification and change (www.nrc.uscg.mil/

foia.htm). 9Sam Mannan, Michela Gentile, and Mike O’Connor, ‘‘Chemical Incident Data Mining and

Application to Chemical Safety Trend Analysis,’’ Mary Kay O’Connor Process Safety Center,

Texas A&M University, 2001. 10Mannan, et. al, adapted from Richard H. Squire, ‘‘Zero Period Process—A Description Of

a Process to Zero Injuries,’’ Process Safety Progress, March 2001. 11Larry Collins, Carmen D’Angelo, Craig Mattheissen, and Michael Perron, Estimating Chemical Accident Costs in the United States: A New Analytical Approach.

does not consult people at risk in surrounding communities. DOJ has not fulfilled

a Freedom of Information Act request of July 30, 2001 on this project. The Department has also not directly addressed detailed concerns raised by a dozen environmental and labor groups in a letter first sent in August 2000, despite repeated attempts (see attached letters).

• The Agency for Toxic Substances and Disease Registry has reported that site

security at chemical plants ranges from ‘‘fair to very poor’’ and at chemical transportation assets from ‘‘poor to non-existent.’’3 The American Chemistry Council has

pointedly criticized this work, apparently to get the agency to retract or revise the

report. We do not believe that the agency should do so.

• Greenpeace published photographs from inside a Dow Chemical plant in

Plaquemine, Louisiana. The photos show the inside of an unoccupied building that

controls big pumps that dump 500 million gallons of wastewater into the Mississippi

River each day. Greenpeace reports that there were no guards at the perimeter, no

security cameras, no alarms, and the door was unlocked. (See the photographs at:

www.greenpeaceusa.org/media/press—releases/01—03—23.htm).

• In 1999, a reporter roamed about inside the Washington, DC’s Blue Plains sewage treatment facility, which at that time stored tons of chlorine and sulfur dioxide,

without being stopped or asked for identification.4

• A recent news article cited a professor who had confirmed that he could purchase all the essential ingredients for nerve gas—even after the September terrorist

attacks.5 In addition, some commercial web sites assure buyers that they will remain anonymous (after simply registering) when buying chemicals.

• The Pacific Northwest National Laboratory found inadequate security at several

Department of Energy military facilities that store hazardous chemicals.6

• Under existing regulations, a terrorist organization can set up a new trucking

company in the United States or Canada, and obtain operating authority in the

United States for an 18-month period without any Federal or State safety review

or security check simply by paying a fee. After obtaining a hazardous materials endorsement for a commercial drivers license by merely passing a written exam, drivers can legally drive semi-trailers carrying up to 80,000 pounds of placarded hazardous materials on nearly all roads and through all cities in the United States.7

Chemical Fires and Spills Occur Frequently

Each year, companies in the United States report more than 25,000 fires, spills,

or explosions involving hazardous chemicals to the National Response Center, a

broad but incomplete Federal record of mishaps involving oil or chemicals.8 At least

1,000 of these events each year involve deaths, injuries, or evacuations. Combined

data from additional Federal sources suggest that in 1998 there were over 100

deaths, nearly 5,000 injuries, and when including small spills, almost 50,000 incidents related to ordinary industrial use of chemicals in the United States.9 Some

analysts suggest that for each catastrophic chemical accident that causes a fatality,

there are 30 lost-time incidents, 300 recordable incidents, and 30,000 near misses.10

Serious incidents often cost jobs, and uncounted people suffer long-term consequences from being exposed to the dangerous chemicals. One estimate suggests

costs of about $5 billion for major U.S. chemical accidents each year.11
56

12 National Institute for Chemical Studies (Charleston, W.V.), ‘‘Local Emergency Planning

Committees and Risk Management Plans: Encouraging Hazard Reduction,’’ prepared for U.S.

EPA, Chemical Emergency Preparedness and Prevention Office (#CX 824095), June 2001. 13George Washington University, Department of Public Administration, Nationwide LEPC

Survey, 1994. 14 Resources for the Future, The Future of Local Emergency Planning Committees, 1993. 15 U.S. Public Interest Research Group and Working Group on Community Right-to-Know, At

Risk and In the Dark: Will Companies in Our Communities Reduce Their Chemical Disaster

Zones?, June 1999. 16 Environmental Defense, National Environmental Trust, OMB Watch, Sierra Club, Unison

Institute, U.S. Public Interest Research Group, and Working Group on Community Right-toKnow, Hazard Reduction Challenge, June 1999. 17 ‘‘Toxic Chemicals’ Security Worries Officials,’’ Washington Post, November 12, 2001. 18 Radian Corporation, Air Dispersion Model Assessment of Impacts From a Chlorine Spill at

the Blue Plains Wastewater Treatment Plant (Final Report), December 15, 1982. 19 American Chemistry Council, Chlorine Institute Inc., and Synthetic Organic Chemical Manufacturers Association, Site Security Guidelines for the U.S. Chemical Industry, October 2001.

Mostly Volunteer Local Emergency Planning Committees are No Substitute for an

Urgent National Effort to Reduce Chemical Hazards

A recent study of 32 ‘‘active’’ Local Emergency Planning Committees (LEPC)

found that ‘‘with a few exceptions, LEPCs do not believe they are positioned to effectively encourage facilities to reduce chemical hazards.’’ Most of these LEPCs believe

they ‘‘do not have the time, resources or expertise to encourage hazard reduction.’’12

Again, these were ‘‘active’’ LEPCs. An earlier national survey found that 21 percent

of LEPCs were ‘‘inactive,’’ 39 percent were ‘‘quasi-active,’’ 16 percent were ‘‘compliant,’’ and 24 percent were ‘‘proactive.’’ 13 Among many additional barriers, LEPCs

lack the authority and mandate for hazard reduction; can be hampered by dependent relations with industry; have no formal role in implementing Risk Management

Planning; and can become discouraged by a perceived unwillingness of government

and industry to act. Many lack funding. According to one report, ‘‘many LEPCs exist

only on paper, and many others exist, but have not succeeded in meeting even their

basic responsibilities.14 There is a role for local volunteer efforts, but these efforts

are no substitute for a national chemical hazard reduction program, and indeed

would benefit from the leadership provided by an effective national program.

Only Major Policy Changes Will Create a Successful National Effort

We need a national response to potential terrorism, not just voluntary self-assessment programs. If site security at airports were voluntary, it wouldn’t make Americans feel very safe. The following examples help illustrate the problem.

• Few chemical companies have set measurable goals and timelines to reduce inherent hazards. In a 1999 survey of 175 chemical industry facilities we found only

one facility with a measurable goal and timeline for eliminating or reducing the size

of its vulnerability zone for a worst-case accident.15 In a separate 1999 survey of

nearly 200 major chemical companies, only three had developed measurable goals

and timelines to reduce worst-case vulnerability zones.16

• The Environmental Protection Agency (EPA) has also side stepped obvious opportunities to encourage inherent safety. At EPA public hearings in 1994 and 1995,

public interest groups vigorously supported having companies review inherently

safer technologies as part of Risk Management Planning. The agency did not incorporate this approach. As an example of what can be achieved, Blue Plains sewage

plant will complete work to replace chlorine gas in 2002, a welcome development.17

However, public interest groups, whistleblowers, and nearby facilities pushed for

changes for years, and the problem has been known since 1982.18 This 20-year turnaround suggests why we need a more proactive effort. Congress should ensure that

we don’t have to wait another 20 years to make high priority facilities safer on a

national scale.

• Several chemical industry trade associations recently published voluntary site

security guidelines for chemical companies.19 However, these guidelines are voluntary and lack standards, timelines, or measurable hazard reduction goals. They

contain no third party verification and are not enforceable. They still dismiss worstcase scenarios and assume that mitigation will not be disabled (e.g., by an airplane

crash). They don’t address the added security risks of contract workers. They don’t

apply margins of safety. They don’t weigh security costs against safer design. They

don’t include accounting methods to help identify theft. They don’t address Internet

sales and needed knowledge of customers. In general, they are not designed to protect public health and safety.
57

20The Pollution Prevention Act, 42 U.S.C.A. 13101(b), made it ‘‘the national policy of the

United States that pollution should be prevented or reduced at the source whenever feasible’’ followed by a hierarchy of waste management options. 21General sources on inherently safer design include: Health and Safety Executive (of the

United Kingdom), Technology Division, Designing and operating safe chemical reaction processes

(www.hse.gov.uk); and, Trevor Kletz, Process Plants: A Handbook for Inherently Safer Design,

1998. 22The Directive on the Major Accident Hazards of Certain Industrial Activities (the ‘‘Seveso

Directive’’) requires member countries to ensure that manufacturers prove a ‘‘competent authority’’ to identify major hazards, adopt appropriate safety measures, and inform, train, and equip

employees. Directive guidance adopted in 1997 addresses inherent safety. 23 U.S. Environmental Protection Agency, Chemical Accident Prevention: Site Security (EPAK-550-F00-002), February 2000. 24Gerard I.J.M. Zwetsloot and Nicholas A. Ashford, ‘‘The Feasibility of Encouraging Inherently Safer Production in Industrial Firms,’’ to be published in Safety Science. Zwetsloot is a

professor at Erasmus University Rotterdam, Netherlands. Ashford is a professor at Massachusetts Institute of Technology.

The Chemical Security Act, S. 1602, Proposes Constructive Steps to Fix the Problem

The Chemical Security Act will give government the mandate and tools it needs

to ensure that hazardous chemical industries reduce hazards and protect chemicals

from theft or intrusion. The act:

• Makes it a duty of high-priority industries to identify their chemical hazards,

take steps to reduce the possibility of releases, and minimize the consequences of

any releases that do occur.

• Puts prevention first, a new stage in U.S. chemical safety laws. The bill establishes a prevention hierarchy for accidental and criminal releases—from prevention

as the first resort, to add-on controls, security, and buffer zones. This hierarchy is

similar to the one already used to prevent routine toxic pollution under the Pollution Prevention Act.20

• Inherently safer technologies eliminate or reduce the possibility of a chemical

release;

• Well-maintained secondary containment, control, or mitigation options reduce

the potential severity of a chemical release;

• Site security and training further reduce the likelihood of incidents; and,

• Buffer zones keep hazards away from vulnerable populations (and vice versa).

This approach addresses the fundamental difference between preventing a hazard

and controlling it. There may not be safer alternatives to all chemical processes. But

the Chemical Security Act proposes a hierarchy of responses that covers all bases

and in all cases will identify feasible measures to protect lives, property, and the

environment.

• Encourages technological innovation before static, add-on security measures.

Add-on security always costs money. Innovation sometimes saves money. This approach recognizes that choice of technology determines safety features and site security. The bill does not prescribe ‘‘one-size-fits-all’’ technologies.

• Provides a consistent definition of inherently safer technologies.

• Ensures that each safer technology used ‘‘reduces or eliminates the threats to

public health and the environment’’ of a potential chemical release. This provision

guards against shifting hazards to other environmental media or venues.

• Encourages healthy competition to produce, market, and use inherently safer

technologies.

• Provides the Administrator and the Attorney General with necessary authorities (for abatement, record keeping, site entry, and penalties for non-compliance).

• Helps to ensure that government acts to protect people and communities.

There are Many Opportunities for Inherently Safer Technologies

Specific examples, recent reports, and government efforts all suggest that there

are opportunities to reduce inherent chemical safety hazards.21 A few examples help

to illustrate what is possible:

• The European Union has issued guidance for its principle chemical accident

prevention directive (the ‘‘Seveso Directive’’) that places inherent safety as a preferred approach to preventing chemical accidents.22

• The EPA has recommended in a chemical accident prevention site security alert

that ‘‘eliminating or attenuating to the extent practicable any hazardous characteristic during facility or process design is generally preferable to simply adding

on safety equipment or security measures.’’23

• A recent project conducted at four European firms (two each in the Netherlands

and Greece) identified more than two-dozen feasible inherent safety alternatives,

the majority with a payback period of less than 2 years.24
58

25 New Jersey Department of Environmental Protection, Communication from Reggie Baldini,

September 19, 2001. 26 American Electric Power, Press Release, December 18, 2000. 27 Information provided by Stuart Greenberg, member, Cuyahoga County (Ohio) Local Emergency Planning Committee, 1998. 28 National Institute for Chemical Studies, Ibid. 29 National Chemical Safety Program, Mary Kay O’Connor Chemical Process Safety Center,

Texas A&M University, Annual Assessment Report—2001 (Draft Report); Neither the NCSP nor

the National Chemical Safety Roundtable have endorsed as final the figures in this draft report. 30 U.S. Environmental Protection Agency, Priority Risk Areas for CEPP Activities, June 1995. 31 James Belke, U.S. Environmental Protection Agency, ‘‘Chemical accident risks in U.S. industry—A preliminary analysis of accident risk data from U.S. hazardous facilities,’’ September

25, 2000 32 National Chemical Safety Center, Mary Kay O’Connor Chemical Process Safety Center,

Texas A&M University, Survey of Public Trust and Community Interaction, 2001. This survey

contacted over 700 people in randomly selected households near facilities that use, manufacture,

or distribute chemicals around the United States.

• In Washington, DC, the city’s large Blue Plains Sewage Plant is switching from

volatile chlorine gas to less volatile sodium hypochlorite bleach, which has far less

potential for airborne offsite impact (as noted above).

• In New Jersey, hundreds of water treatment plants have switched away from

or below threshold volumes of chlorine gas as a result of the State’s Toxic Catastrophe Prevention Act—from 575 such water treatment facilities in 1988 to just 22

in 2001.25

• In Cheshire, Ohio, American Electric Power selected a urea-based pollution control system rather than one involving large-scale storage of ammonia that would

have endangered the surrounding community.26

• In Cuyahoga County, Ohio, ALCOA reduced its potential offsite impact by working with local emergency planners and ending onsite storage of hydrofluoric acid

and nitric acid.27

• A recent study of Local Emergency Planning Committees identified successful

examples of hazard reduction in eight communities, involving ammonia, chlorine,

toluene diisocyanate, and cyanide.28

EPA and DOJ Could Designate ‘‘High Priority’’ Categories in Several Ways

The Chemical Security Act does not prejudge which industries EPA and DOJ will

determine pose the highest hazard. However there are several possible approaches,

which EPA and DOJ could use in combination. For example:

• A draft screening analysis of EPA’s Accidental Release Information Program reveals that 12 industry and chemical combinations account for 75 percent of serious

accidents. The same approach identified 12 industry and chemical combinations that

account for some 70 percent of the serious accidents reported under EPA’s Risk

Management Planning program.29

• In a 1995 analysis, EPA selected 19 high priority chemicals based on toxicity,

volatility, production volume, accident history, and generic vulnerable zones. All but

one of these chemicals had caused injuries or death in accidental releases. EPA then

considered the storage, production, or use of these chemicals in conjunction with

population density to identify approximately 2,000 high priority facilities in certain

areas.30

• EPA’s Risk Management Planning program includes some 15,000 facilities that

use large amounts of extremely hazardous substances. Some 8,000 of these facilities

project worst-case vulnerability zones in which more than 1,000 people live (not all

of whom could usually be affected at once). Over 3,000 facilities project worst-case

vulnerability zones in which more than 10,000 people live; about 700 facilities

project vulnerability zones in which more than 100,000 people live, and 125 facilities

project vulnerability zones in which more than 1,000,000 people live.31

• EPA and DOJ could set a minimum standard for high priority categories so as

to include any facility that could cause death or serious injury offsite.

People Support a Federal Prevention Role

A recent survey found that between 81 percent and 88 percent of people living

within a one-mile radius of a Risk Management Plan facility would feel safer knowing that the EPA or the Occupational Safety and Health Administration were providing accident prevention and hazard reduction assistance to hazardous chemical

industries. This survey predated the September attacks. The survey also found that

between 50 percent and 67 percent of these ‘‘near neighbors’’ were unaware of the

specific Risk Management Plan facility.32 The Chemical Security Act will help assure people that the government is legitimately taking steps to protect them.
59

1 American Chemistry Council (FKA Chemical Manufacturers Association), The Terrorist

Threat in America, April 1998. 2 Coalition for Effective Environmental Information, Government Accountability for Environmental Information Policy, 1999. 3 American Chemistry Council, Part Two, p. 9.

4Statement of Robert M Burnham, Federal Bureau of Investigation, before the Senate Committee on Environment and Public Works, March 16, 1999; and, U.S., Department of Justice,

Assessment of the Increased Risk of Terrorist or Other Criminal Activity Associated With Posting

Off-Site Consequence Analysis Information on the Internet, April 18, 2000. 5 U.S. House of Representatives, Committee on Commerce, February 10, 1999.

6 Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (Public Law

106–40). 7 Arthur F. Burke, DuPont Corporation, Communication of Risk Management Plan Information: Some ‘‘Principles & Concerns,’’ March 4, 1997. 8 U.S. Environmental Protection Agency, Priority Risk Areas for CEPP Activities, June 1995.

RESPONSES OF PAUL ORUM TO ADDITIONAL QUESTIONS FROM SENATOR CORZINE

Question 1. S. 1602 requires the Administration to identify and reduce high priority chemical risks. Your testimony identifies several possible ways that the Administration might approach this challenge. In fact, you note that EPA has already

conducted analyses that would lend themselves to identifying high priorities. Do you

think that the Administration could readily identify high priority risks in a sensible

way?

Response. The Administration can easily identify high-priorities from the

vulnerabilities that Risk Management Plan (RMP) facilities pose to workers and

surrounding communities. The chemical industry has for several years proclaimed

that disclosing worst-case chemical release scenarios on the Internet would provide

a ‘‘blueprint’’ or ‘‘roadmap’’ for terrorists.1 2 Proponents of this theory explicitly

claimed that a terrorist could use a data base of worst-case scenarios to realize ‘‘one- stop shopping’’ for ‘‘targeting quality’’ information.3 The Department of Justice amplified this claim in testimony and reports.4 The House Commerce Committee held

hearings titled ‘‘Internet Posting of Chemical ‘Worst Case’ Scenarios: A Roadmap for

Terrorists.’’ 5 Congress implicitly accepted the roadmap theory in restricting public

access to the worst-case scenarios in 1999.6 Given this history, it is perplexing that

anyone would now claim that the Administration could not identify high priority facilities for preventing chemical site terrorism.

In setting priorities, EPA and DOJ should read the blueprint and follow the roadmap. According to one industry analysis, the roadmap consists of bringing together

three elements: chemical inventory, worst-case assessment, and population at risk.7

These three elements present EPA and DOJ a means to identify high-priority facilities for chemical terror prevention. Indeed, the DOJ is already working with EPA’s complete data base of Risk Management Plans (RMP*Info). Congress should ask

EPA and DOJ to provide the appropriate committee(s) with the RMP roadmap, including populations at risk. Congress needs the roadmap from EPA and DOJ to

make informed decisions. Reducing these vulnerabilities will provide a basic measure of progress on homeland security.

At the same time, to ensure that the Administration effectively identifies high priorities, Congress should define minimum standards in the Chemical Security Act.

Without such a default ‘‘backstop,’’ the Administration may not set priorities that

protect public safety. The Chemical Security Act should therefore require EPA and

DOJ to consider by default as high-priority those facilities that put any person offsite at risk of death or serious injury. Alternatively, the Act could define as highpriority any facility that puts more than a specified number of persons at risk. The

Act could then require those facilities to either drop below a threshold number of

persons at risk or justify why they cannot do so and apply mandatory site security

standards. Using an objective standard, such as population at risk, would ensure

that inherent safety changes (involving production) are selected by the company and

not, as industry charges, by the government. Facilities that are unable to meet the

objective population standard, however, should meet rigorous, mandatory site security standards established by the government to prevent chemical terrorism. In addition, S. 1602 currently directs EPA and DOJ to address threats to national security, critical infrastructure, and threshold quantities of substances of concern (to

which could be added worker safety, in consultation with the Department of Labor,

and environmental protection.) This authority enables the EPA and DOJ to select

particular industry sectors and substances of concern for additional scrutiny.

As noted in my testimony, EPA identified in 1995 some 2,000 ‘‘high priority/high

risk facilities and areas’’ for attention to prevent chemical releases.8 In this analysis, EPA used a number of criteria for selecting priority risk areas, including industrial concentration, population density, accident history, transportation density, en-
60

9 42 U.S.C. 7412(r)(7)(H)(xi).

10 42 U.S.C. 7412(r)(7)(H)(vii) 11 42 U.S.C. 7412(r) 12 U.S. Environmental Protection Agency, Supplemental Notice of Proposed Rulemaking, ‘‘Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act

Section 112(r)(7); Proposed Rule,’’ 60 Federal Register 13525, March 13, 1995; and EPA public

hearings, March 31, 1995.

vironmental justice, sensitive environments, and natural disasters. The agency also

selected 19 high priority substances based on chemical toxicity, volatility, production

volume, accident history, and vulnerability zones. To my knowledge, however, the

agency has not targeted any hazard reduction assistance to the high priority facilities and has no plans to do so.

Unfortunately, DOJ has not produced as required a site security review that could

help identify high priority sectors and substances.9 Neither has EPA promulgated

required rules that would enable an independent ‘‘qualified researcher’’ to identify

priorities.10 Nor has the chemical industry suggested which industry sectors or substances may require attention for improved security (other than the three factors

noted above: chemical inventory, worst-case assessment, and population at risk).

Identifying priorities is not the problem; getting government and industry to act is

the problem.

Question 2. In your testimony, you state that 125 facilities project vulnerability

zones in which more than one million people live. It seems there are really two basic

elements to such worst-case analyses—the probability of the event, and the consequences of such an event. It seems to me that the probability of such an event

is up sharply since September 11. Would you agree, and how do you think this affects the way in which we should view the worst-case scenario analyses?

Response. The tragedy of September 11 made clear not only the vulnerability of

major buildings and symbolic sites, but also the vulnerability of the nation’s chemical facilities. However, there is little reason to believe that the security agencies

can accurately assess the probability (i.e., ‘‘risk’’) of all potential terrorist attacks on

chemical facilities. Indeed, on September 11 the security agencies once again were

unable to effectively anticipate major developments, despite major resource expenditures for security programs. Any program to protect the public against chemical terrorism must acknowledge that security agencies: a) cannot foresee all potential attacks among all potential chemical targets, b) cannot warn facilities in advance of

all specific attacks, and c) cannot anticipate the nature of all such attacks. In the

new era of terrorism, it is decidedly inappropriate to base security decisions on the

ability to predict probability (risk); to do so is to base public protection on false assurances. Chemical security programs must therefore address the potential consequences of industrial releases, including the potential worst-case release in which

all safety controls and active mitigation measures fail or are disabled.

Question 3. The testimony of Fred Webber points out that there are many existing

safety requirements that apply to chemical facilities. In your view, do the authorities and security and hazard reduction measures contained in S. 1602 exist elsewhere in current law?

Response. Existing Federal regulations do not address terrorism prevention to the

extent envisioned in S. 1602. Existing regulations are from a different, pre-terrorism

era. These regulations did not, as a rule, address terrorism in selecting covered substances, thresholds, and industrial sectors. Those few security measures that are

contained in current regulations are not equivalent to those contained in S. 1602

and are plainly insufficient to prevent chemical terrorism. To be sure, no existing

Federal law regulates the scope and extent of the vulnerability zones that chemical

facilities present to surrounding communities in terms of distance, chemical intensity, or populations at risk. Further, current laws do not require companies to assess

safer alternatives to practices that can send toxic fumes into nearby schools or

neighborhoods. In addition, many existing chemical safety laws do not address terrorism involving industrial chemicals (such as programs that regulate food quality,

flammable fabrics, pesticide registration, pollution permits, and drugs and cosmetics).

The Clean Air Act (CAA) contains certain authorities that EPA could use to address chemical terror prevention. Section 112(r) established the Risk Management

Planning (RMP) program to prevent accidents involving extremely hazardous substances.11 However, EPA did not consider chemical terror prevention when selecting

the chemicals, thresholds, and processes regulated under the RMP program. Nor did

EPA include any requirement for firms to identify safer technologies in the RMP

program, despite vigorous prompting from environmental and labor organizations.12

In addition, the CAA section 112(r)(7)(a) provides EPA authority to compel dan-
61

13Personal communication of Jim Makris, Director, Chemical Emergency Preparedness and

Prevention Office, U.S. Environmental Protection Agency, December 17, 2001. 14 42 U.S.C. 7412(r)(1) 15 42 U.S.C. 6901 et seq. 16 40 CFR 264.14, 265.14. 17Paul R. Kleindorfer, Harold Feldman, and Robert A. Lowe, Accident Epidemiology in the

U.S. Chemical Industry: Preliminary Results from RMP*Info, Center for Risk Management and

Decision Processes, The Wharton School, University of Pennsylvania, March 6, 2000. 18 40 CFR 766, 790–799 19 42 U.S.C. 7403(f) 20OSH Act, Section 6; 29 CFR 1910.119

gerous chemical facilities to reduce worst-case chemical vulnerabilities imposed on

surrounding communities. However, the agency has never used this authority and

has no plans to do so.13 Congress should ask EPA to explain if the CAA 112(r)(7)(a)

is for some reason insufficient to reduce the chemical terror vulnerabilities that

hang over many communities. Alternatively, if this authority is sufficient, Congress

should ask the agency to explain when it intends to use it. If the CAA 112(r)(7)(a)

is to contribute to chemical terror prevention, Congress will apparently have to

make this provision mandatory, not optional, and direct EPA to use it and to include

inherent safety solutions.

The Clean Air Act’s general duty clause, Section 112(r)(1), enables EPA to bring

enforcement cases if a firm fails to identify and use available inherently safer technologies that reduce the possibility of chemical terrorism.14 However, EPA has

never used the general duty clause where a firm has failed to reduce unnecessary

chemical hazards. Further, EPA’s implementation of the general duty clause does

not adequately address terrorism prevention in several ways. First, EPA’s guidance

does not clearly identify a structured process by which firms should identify, document, and select inherently safer options. Second, EPA’s guidance necessarily follows ‘‘generally accepted’’ or ‘‘recognized’’ industry practices—which routinely subject communities to extremely hazardous substances stored in large, dangerous

amounts. Third, EPA’s guidance does not set forth the agency’s expectations for

firms to prevent criminal releases, which may dissuade EPA from enforcing the general duty if a firm fails to take sufficient security precautions. These shortcomings,

together with the agency’s pervasive inactivity on inherent safety, illustrate the

need for much more direct and vigorous Congressional intervention to ensure that

the agency incorporates and uses design for inherent safety and terrorism prevention in general duty enforcement.

Aside from these unused Clean Air Act authorities, Federal environmental laws

and regulations are plainly insufficient to prevent terrorism involving extremely

hazardous chemicals: • The Resource Conservation and Recovery Act (RCRA) includes limited security

requirements for hazardous waste sites.15 However, these provisions ‘‘prevent the

unknowing entry, and minimize the possibility for the unauthorized entry, of persons or livestock.’’ 16 In other words, these RCRA security provisions keep people

and livestock from wandering onto sites that store hazardous waste and hurting

themselves or others. These provisions are neither sufficiently robust nor intended

to address determined terrorists. Further, only some 21 percent of facilities that

must prepare Risk Management Plans for extremely hazardous substances are also

covered by these limited RCRA site security requirements.17

• The Toxic Substances Control Act (TSCA) Section 6 gives EPA broad power to

control any chemical that poses an ‘‘unreasonable risk of injury to health or the environment.’’ However, this standard has proven indisputably cumbersome in practice and was never intended to address terror prevention across a diverse array of

industries. Nonetheless, EPA could use TSCA Section 4 authority to require chemical companies to field-test the dispersion plumes of high-volume chemicals that

they produce and use.18 Congress previously directed EPA to conduct chemical dispersion tests under the Clean Air Act, including field tests on two chemicals each

year.19 However, EPA has not actually field tested any chemical under this program, citing lack of funding, among other impediments. Given the lack of testing

progress under the Clean Air Act, Congress should direct EPA to obtain chemical

dispersion test information from manufacturers under TSCA. • The Process Safety Management (PSM) standard of the Occupational Safety

and Health Administration (OSHA) is intended to protect workers onsite from chemical accidents.20 The PSM standard requires firms to identify hazards, but not to

address how terrorists could defeat add-on safety controls, and not how safer alternative processes or chemicals could reduce the firm’s vulnerability to terrorism.

Many serious chemical accidents involve chemicals that are not covered by the PSM

standard. For example, the U.S. Chemical Safety Board recently examined 167
62

21Presentation of John Murphy, U.S. Chemical Safety and Hazard Investigation Board, Reactive Chemicals Hazard Investigation, Draft Work Product, November 9, 2001. 22Paul R. Kleindorfer, Harold Feldman, and Robert A. Lowe, Accident Epidemiology and the

U.S. Chemical Industry: Preliminary Results from RMP*Info, Center for Risk Management and

Decision Processes, The Wharton School, University of Pennsylvania, March 6, 2000. 23OSH Act, Section 6; 29 CFR 1910.1200 24Occupational Safety and Health Administration, Process Safety Management of Highly Hazardous Chemicals. 25 42 U.S.C., Chapter 103 26 42 U.S.C., Chapter 116 27 National Institute for Chemical Studies (Charleston, W.V.), Local Emergency Planning Committees and Risk Management Plans: Encouraging Hazard Reduction, prepared for U.S. EPA,

Chemical Emergency Preparedness and Prevention office (#CX 824095), June 2001. 28 42 U.S.C. 7401 (Public Law 106–40) 29Working Group on Community Right-to-Know et al, letters to the Attorney General of August 14, 2000; April 23, 2001; June 15, 2001; and, September 27, 2001 (www.rtknet.org/wcs). 30 42 U.S.C. 13101 et seq. (Public Law 101-508) 31 42 U.S.C. 5101 et seq. 32 66 Federal Register 32420

deadly reactive chemical accidents that together killed more than 100 Americans:

over half of the chemicals involved in these deadly incidents are not currently covered by PSM or RMP.21 Further, more than half of the facilities covered by the RMP

program are not covered by PSM requirements.22

• The OSHA Hazard Communication Standard informs workers about hazardous

chemicals with which they work.23 OSHA notes that these standards ‘‘do not address the precautions necessary to prevent large accidental releases that could result in catastrophes.’’ 24

• The Comprehensive Environmental Response Compensation and Liability Act of

1980 (CERCLA) and Superfund Amendments and Reauthorization Act of 1986

(SARA) address responding to spills and emergencies and cleaning up ‘‘superfund’’ and other contaminated sites.25 These cleanup programs do not require companies

to investigate safer alternatives or reduce chemical hazards that a terrorist could

use as an expedient weapon. • The Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA),

a freestanding title of SARA, addresses preparing for spills or emergencies, through

Local Emergency Planning Committees (LEPC) and other means, and encourages

chemical hazard communication to the public.26 EPCRA does not require, however,

that companies assess or implement chemical hazard reduction strategies or even

prevent releases. Further, EPA-sponsored studies show that LEPCs generally believe they lack the resources, expertise, and mandate for hazard reduction work

with facilities.27 In addition, EPCRA’s most successful community right-to-know provision, the Toxics Release Inventory, primarily addresses routine toxic pollution, not

emergency releases. • The Chemicals Safety Information, Site Security and Fuels Regulatory Relief

Act (CSISSFRRA) restricted public disclosure and oversight of chemical industry

hazards, including the public’s ability to readily track progress in reducing those

hazards.28 This law also required DOJ to conduct a review of site security at chemical plants and to produce recommendations. However, DOJ has not apparently conducted this review, including an interim report due in August 2000. DOJ has not

addressed substantial concerns raised by environmental and labor groups about this

review. These concerns include more than three-dozen specific site security recommendations and a framework for incorporating inherent safety design in improving site security.29 Congress should ensure that DOJ completes this statutory requirement and responds to public concerns. However Congress should also condition

resources provided to the security agencies on completion of specific tasks by explicit

deadlines. • The Pollution Prevention Act (PPA) makes it the national policy of the United

States to reduce toxic waste at the source wherever feasible.30 The PPA also directs

the EPA to consider how agency actions affect source reduction of toxic waste.

Source reduction, broadly considered, covers both routine releases and one-time

events. However, the focus of the PPA is to prevent routine industrial toxic pollution

rather than emergencies. • The Hazardous Materials Transportation Act (HMTA) governs transportation of

hazardous materials.31 The Department of Transportation’s (DOT) hazardous materials regulations under HMTA have significant gaps. Railcars held on leased track

(on sidings or under ‘‘rolling’’ leases), often in populated areas, pose major chemical

release hazards but may not be covered by either DOT regulations or EPA’s RMP

program.32 Railcars may in some cases sit just outside the fence at an RMP facility

without being included in hazard assessments, public disclosure, and risk manage-
63

33 66 Federal Register 59220 34 CBS Channel 2 New York City, Chemical Plant Security Story, November 26, 2001. 35 Violence Policy Center, Voting From the Rooftops, October 2001. 36 Neil C. Livingstone, et al, American Bophals (SIC), Energy Safety Council (Washington,

DC).

ment planning. DOT has recently noted that the threat of continuing terrorism

makes it more important to address such regulatory gaps.33 Ubiquitous graffiti

scrawled on railcars also suggests weak or non-existent security.

Question 4. The American Chemistry Council and SOCMA testified about the security and transportation guidelines that they have developed and are working to

implement. What do you think of the adequacy of the guidelines? Do you think that

a voluntary approach to implementing such guidelines would be more effective than

the regulatory approach in S. 1602?

Response. The American Chemistry Council’s voluntary ‘‘Site Security Guidelines

for the U.S. Chemical Industry,’’ recently released with SOCMA and the Chlorine

Institute, are neither intended nor suited to protect public health and safety. Voluntary chemical site security is no more appropriate than voluntary airport security,

and is no more likely to succeed. Voluntary efforts can economically penalize industry leaders who do a thorough job and reward laggards who don’t. The ACC’s voluntary industry guidelines also suffer major deficiencies. The guidelines:

• Have no standards;

• Have no timelines;

• Suggest no hazard reduction policies;

• Have no measurable hazard reduction goals;

• Offer no accountability to workers and communities;

• Do not address added security risks of contract or temporary workers;

• Do not apply any safety margins;

• Neglect inherent safety options that can reduce add-on security needs;

• Contain no cost accounting to understand total security costs (and weigh these

costs against safer design, which reduces security needs);

• Do not account for security costs imposed on local governments, police, and firefighters;

• Neglect to treat chemical hazards as a liability (or lack thereof as an asset) to

the firm’s ‘‘social license’’ to operate;

• Contain no materials accounting to help identify theft of bomb-making materials;

• Lack standard procedures for assessing inherently safer technologies;

• Do not address anonymous chemical sales on the Internet and needed knowledge of customers;

• Assume that terrorists or accidents will not disable add-on protections (as could

happen, for example, if an airplane were to crash into a chemical plant);

• Dismiss the need to reduce potential worst-case scenarios—still, even after September 11;

• Do not contain third party verification (‘‘trust but verify’’);

• Are not enforceable;

• Are not intended to protect public health and safety.

As noted in my testimony, studies and case examples show that site security

measures do fail. Beyond these examples, CBS New York recently broadcast a tape

of journalists easily entering a chemical tank farm.34 Other observers have noted

that terrorists or drunks could use high-powered rifles to pierce and explode chemical storage tanks even without penetrating site security.35 An industry publication

points out in graphic terms the vulnerabilities to terrorism of refineries and other

facilities that use hydrofluoric acid.36

Voluntary approaches are plainly insufficient. Current voluntary efforts have not

led many chemical manufacturers to reduce the size of the danger zones that their

facilities impose on surrounding communities (in terms of vulnerable distance, population at risk, or toxic intensity). For example, as noted in my testimony:

• In 1999, the Working Group and six other organizations asked 192 major chemical companies to set measurable goals and timelines to reduce the size of their

worst-case vulnerability zones for chemical fires and spills. These 192 companies

were members of the American Chemistry Council and often have multiple facilities.

Some 78 companies responded. Of those, 14 stated that they were not required to

file Risk Management Plans (the basis document for the worst-case scenarios).

Among the remaining 64, only three provided measurable goals and timelines to re-
64

37 Environmental Defense, National Environmental Trust, OMB Watch, Sierra Club, Unison

Institute, U.S. Public Interest Research Group, and Working Group on Community Right-toKnow, Hazard Reduction Challenge, June 1999. 38 U.S. Public Interest Research Group and Working Group on Community Right-to-Know, At

Risk and In the Dark: Will Companies in Our Communities Reduce Their Chemical Disaster

Zones?, June 1999. 39 Chemical Marketing Reporter, What’s in a Logo, January 6, 1992. 1 Chemical Manufacturers Association, The Terrorist Threat in America, 1998; also, Arthur F.

Burk, Communication of Risk Management Plan Information: Some Principles & Concerns,

March 4, 1997; also U.S. Environmental Protection Agency, Final Report of the Electronic Submission Workgroup (Section 2: Access System), 1997. 2Federal Register, Volume 65, p. 24833, and supporting documents, April 27, 2000.

3 Agency for Toxic Substances and Disease Registry, Industrial Chemicals and Terrorism:

Human Health Threat Analysis, Mitigation and Prevention, 1999. 4 Chemical Safety Information, Site Security and Fuels Regulatory Relief Act of 1999, Section

3(a)(xi).

duce the size and danger to the community of their vulnerability zones. Two more

asked for more time, but then didn’t set any later goals.37

• In 1999, the Working Group and U.S. PIRG surveyed 175 specific chemical facilities that had active community dialog efforts. Only one facility out of 175 proved

to have publicly announced a measurable goal and timeline for reducing the zone

of vulnerability in which people could be hurt or killed in a worst-case chemical fire

or spill.38

In the past, chemical industry representatives have insisted that voluntary initiatives such as Responsible Care should not be used to oppose government actions.

In the words of John Holtzman, a former director of public affairs at the American

Chemistry Council (then the Chemical Manufacturers Association):

‘‘We don’t want anyone to say, ‘We don’t need this regulation, because we have

Responsible Care.’ We don’t view the program as a shield [against regulation.]’’ 39

AUGUST 14, 2000.

Hon. JANET RENO,

Attorney General of the United States,

Department of Justice,

950 Pennsylvania Ave., NW, Room 4545,

Washington, DC.

DEAR ATTORNEY GENERAL RENO: The Department of Justice has asserted, in response to chemical industry lobbying,1 that extremely hazardous substances (EHS)

at industrial facilities present attractive targets for criminal activity.2 The Agency

for Toxic Substances and Disease Registry confirms that site security at chemicalusing industries ranges from fair to very poor.3

For these reasons, Congress directed the Department of Justice, in consultation

with government, industry, and the public, to report on ‘‘actions, including the design and maintenance of safe facilities, that are effective in detecting, preventing,

and minimizing the consequences of releases of regulated [extremely hazardous]

substances that may be caused by criminal activity.’’ Congress further directed the

Department to make ‘‘recommendations for reducing vulnerability of covered stationary sources to criminal and terrorist activity’’. Congress directed the Department to produce an interim report by August 5, 2000.4 The Department did not

meet this non-discretionary deadline.

Environmental, labor, and public health organizations have vigorously supported

a serious reduction in the potential for onsite and offsite consequences of chemical

fires and explosions at EHS facilities. Our organizations have, in particular, championed the use of inherently safer design to reduce and eliminate chemical hazards

that may be wholly unnecessary.

We strongly urge the Department not to limit its review and recommendations to

the reactive control of existing EHS hazards. Rather, the Department should include, as the option of first resort, the possibility of reducing, eliminating, or removing these hazards. This proactive approach is consistent with the Department’s new

emphasis on preventing, rather than simply responding to, terrorism and other

crimes.

The advantages of preventive design are widely acknowledged, but seldom acted

upon. For example, the ‘‘Handbook of Loss Prevention and Crime Prevention’’ notes

that:

‘‘All too frequently insufficient consideration is given to security factors before and

during construction; security protection is too often added as an afterthought, if at
65

5Lawrence J. Fennelly, Handbook of Loss Prevention and Crime Prevention, Second Edition,

1989, p.35. 6 U.S. Environmental Protection Agency, Chemical Safety Alert, Chemical Accident Prevention:

Site Security, February 2000 (EPA-K–550–002), p.3. 7 Clean Air Act Amendments of 1990, Section 112(r).

8Senator Frank Lautenberg, U.S. Senate, Chemical Security Act of 1999 (S. 1470).

9Trevor Kletz, Process Plants: A Handbook for Inherently Safer Design, 1998.

all.’’ The author recommends that ‘‘model security codes must be established and

built into all new construction.’’ 5

Further, the Environmental Protection Agency (EPA) recently encouraged EHS

users to consider that:

‘‘Facility and process design (including chemicals used) determine the need for

safety equipment, site security, buffer zones, and mitigation planning. Eliminating

or attenuating to the extent practicable any hazardous characteristic during facility

or process design is generally preferable to simply adding on safety equipment or

security measures.’’ 6

We therefore respectfully urge the Department in its recommendations to Congress to:

• Incorporate hazard reduction as a fundamental component of terrorism and

crime prevention at EHS facilities as a first resort, and;

• Propose mandatory, uniform model safety and security standards for hazards

that cannot be reduced or eliminated.

To back up these prevention policies and security standards, we urge the Department to: identify appropriate legal means to codify terrorism prevention standards,

including an annex to the Risk Management Planning (RMP) program 7; intensify

compliance assistance and enforcement at EHS facilities, including facilities covered

by the RMP program, and; encourage worker involvement in systems of safety analysis and prevention-oriented, root cause investigations of EHS incidents and near

misses.

Following a prevention hierarchy, EHS facilities first reduce or eliminate the hazard where feasible, before using add-on secondary containment, control, or mitigation equipment and improving site security to address remaining vulnerabilities. As

a last resort, enhanced buffer zones separate EHS facilities from surrounding areas

and sensitive populations (such as schools, residences, or hospitals).8

We do not suggest that safer design can avoid every safety and security hazard.

In fact, even the best security systems will be breached and the best safety systems

will fail. Therefore, we suggest that safer design should be the first alternative in

the hierarchy of safety and security options: first prevent, then control, then mitigate, and only last, buffer.

Add-on security measures (such as guards, alarms, and access controls) frequently

are costly. In contrast, inherently safer design can help firms to simultaneously control costs and improve security and reduce hazards. While best considered during

design, existing plants can retrofit many inherent safety features.

We recognize that the Department may not view preventive design as within its

traditional field of expertise. Certainly local police and security consultants often

know little about inherently safer design for EHS facilities. We therefore urge the

Department to actively obtain, as needed, necessary expertise on design for inherent

safety and security, both to report to Congress and to assure sufficient long-term

access by local, state, and Federal security agencies to such expertise.

The chemical process industry’s leading expert in inherently safer design, Trevor

Kletz, has identified more than a dozen ways to reduce hazards by improving plant

design: 9

• Intensification minimizes inventories of hazardous materials.

• Substitution replaces hazardous materials with safer materials.

• Attenuation uses hazardous materials under the least hazardous conditions.

• Limitation changes designs or conditions to reduce potential effects.

• Simplification reduces complexity to reduce the opportunity for error.

• Other means include using designs that: avoid potential ‘‘domino’’ effects; make

incorrect assembly impossible; tolerate misuse; keep controls and computer software

easy to understand and use; keep process status clear; have well-defined instructions and procedures; employ passive safety; and minimize hazards throughout the

material’s life-cycle.

While these measures target non-criminal releases, the principle ‘‘what you don’t

have, can’t leak’’ applies equally to criminal releases. The Department should foster

facilityspecific national benign by design standards for EHS facilities to eliminate

or reduce features that allegedly make a plant attractive to criminals or that require
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* These safety and security elements are derived from, among other sources: Lawrence J.

Fennelly, Handbook of Loss Prevention and Crime Prevention, Second Edition, 1989; and Russell

L. Bintliff, The Complete Manual of Corporate and Industrial Security, 1992. Elements related

to inherent safety are derived from, among other sources: Trevor Kletz, Process Plants. A Handbook for Inherently Safer Design, 1998.

costly add-on security arrangements. (Please refer to the attached list of Minimum

Safety and Security Standards for EHS Facilities.)

In addition to the concerns raised above, some observers claim that persons outside an EHS facility could seize control electronically of key safety systems and

cause a release. The Department should evaluate this claim and, if it is valid, ensure that EHS facilities effectively counter such computer intrusion. In all areas,

the Department should fully and publicly document vulnerabilities, if any, and

methods used to prevent and counter specific threats.

Finally, increasing electronic commerce may raise EHS security issues that parallel the Department’s previously stated Internet disclosure concerns. We urge you

to review industry plans for a one-stop ‘‘e-marketplace’’ that will present

unmonitored purchasing opportunities and connect the supply chain of chemicals

worldwide. We urge you to address such Internet activity in your review and recommendations, to the same degree that the Department scrutinized public communication of EHS hazards on the Internet, and to apply parallel standards of disclosure.

As you are no doubt aware, we are dismayed with the Department’s role in impeding community right-to-know about chemical industry dangers while taking no apparent steps to eliminate these hazards at the source. We look forward to your Department’s report to Congress, now overdue, as an opportunity to recommend affirmative steps for worker and community safety through hazard reduction and improved security at EHS facilities.

Sincerely,

John Chelan, Center for Public Date Access; Lois Epstein, Environmental

Defense; Stuart Greenberg, Environmental Health Watch; Frank D.

Martino, International Chemical Workers Union Council/UFCW;

Thomas Natan, National Environmental Trust; Rick Engler, New

Jersey Work Environment Council; Boyd Young, Paper, Allied-Industrial, Chemical, and Energy Workers International Union; Robert K.

Musil, Physicians for Social Responsibility; Carl Pope, Sierra Club;

Mike Wright, United Steelworkers of America; Jeremiah Baumann,

U.S. Public Interest Research Group; Paul Orum, Working Group on

Community Right-to-Know.

MINIMUM SAFETY AND SECURITY STANDARDS FOR EHS FACILITIES *

Uniform security design codes for extremely hazardous substances (EHS) at industrial facilities should protect workers and communities from criminal activity

that targets EHS chemicals. Such codes should follow a prevention hierarchy and

strictly regulate the design, construction, materials, location, operation, and maintenance of EHS facilities. If terrorism at chemical plants is a legitimate concern, then

standards should address, at a minimum, each of the following elements:

• Crime Impact Forecasts determine the potential worst-case impact from terrorism involving EHS materials, in terms of injuries, deaths, and property damage

onsite and offsite.

• Safer Design Studies weigh inherently safer alternatives and security needs

during design both prior to construction and major reconstruction at EHS sites, and

during safer redesign of existing security risk facilities.

• Policy Statements commit companies to determine if chemical hazards can be

readily reduced or eliminated before analyzing risks and potential consequences of

these hazards, and help engage senior managers and full corporate resources in design for safety and security.

• Architectural Design Standards ensure that architects incorporate safer design

and security elements into new construction, reconstruction, and redesign of EHS

areas.

• Construction Materials Guidelines specify materials that are appropriately resistant to fire, blast, and forced entry, among other safety and security concerns.

• Materials Accounting makes evident any theft of EHS chemicals, facilitates site

safety and prevention planning, and helps managers to keep unwanted substances

out of a facility (the hazardous materials pharmacy concept).
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• Security Records Systems document security deficiencies, malfunctions, case reports, and corrective actions in a written retrievable format sufficient to support

planning, budgeting, and maintenance schedules. • Administrative Controls ensure that facilities operate within design capacity,

and eliminate or reduce chemical hazards through mandatory review of: proposed

process changes; EHS purchases; order frequency and volume; and chemical uses. • Security Lighting provides protective illumination in all weather, including

through secure automatic auxiliary systems and power sources (such as generators

or batteries), underground circuits, and redundant wiring. • Intrusion Detection Systems and Alarms protect EHS operations by detecting

motion, heat, smoke, sound, or pressure at the facility perimeter, in critical areas

(such as computer centers and EHS areas), and at all potential access points (such

as doors, windows, floors, roof hatches and skylights, gates, manholes, drains and

discharge outfalls, adjoining buildings, and air vents). • Physical Barriers prevent unauthorized access by persons and vehicles (including air and watercraft) through building design, well-maintained and monitored

fences, walls, truck barriers, locks, window bars, safety glass, etc., including compartmental barriers around EHS areas. • Projectile Shields protect EHS tanks and vessels from airborne and propelled

explosive devices and projectiles (as well as from blast fragments). • Emergency Exits ensure that workers can quickly vacate buildings and grounds

through clearly marked and maintained exits. Self-contained alarms and warning

signs prevent non-emergency use. • Blast and Fire Safe Control Rooms and Safe Rooms protect workers and visitors

from explosions and fires that originate from criminal activity or plant design, and

contain breathing devices, first aid supplies, and secure independent external communications. • Cyber Barriers block persons outside a facility from electronically manipulating

computers that control critical valves, pressures, temperatures, facility access, and

other safety systems (using cyber ‘‘firewalls,’’ encryption, and electronic pass keys

with changing codes). • Physical Computer Security safeguards critical computer systems through: fire/

water/blast safe construction; access controls; dedicated security officers; safe distances from EHS hazards; secure air vents safe from EHS gas leaks; fully compatible backup computers and expertise; backup electricity and communications, and;

automatic shutdown capabilities. • Failsafe Computer Backup Systems independently monitor critical security and

safety systems and take over to prevent catastrophic failure. • Closed Circuit TV maximizes intrusion-monitoring capabilities. • Add-on Safety Equipment contains, controls, and mitigates releases (such as

containment buildings, water spray curtains, automatic shutoff valves, and blast

mitigation barriers).

• Safe Shutdown Procedures enable operators to shut down facilities in emergencies; they must be clearly documented, simple, and robust enough to function in

urgent situations, including clear procedures, exercises, and authority.

• On-site Response Teams shut down or reestablish power or water, contact outside assistance (police, fire, medical, bomb squad), provide first aid, direct evacuations, and operate and troubleshoot backup computer systems.

• Joint Response Planning coordinates, revises, and exercises response plans with

local emergency responders and planning committees (LEPCs), addressing emergency notification and response, hazmat response teams, decontamination facilities,

drills, evacuation routes, medical care and pharmaceutical stockpiles, trauma counseling, community restoration, emergency resources, and additional elements listed

in Section 303 of the Emergency Planning and Community Right-to-Know Act.

• Transportation Planning reduces hazards through delivery route planning

(avoiding tunnels, downtown areas, and sensitive populations), random timing, alternate routes, driver training, security escorts, equipment maintenance, secure

valves, compatible cargoes, and appropriate volume packaging.

• Testing and Maintenance Schedules ensure that firms evaluate security equipment and systems, including periodic fire and emergency drills, and daily review of

grounds, fences and barriers, utilities, backup systems (such as lighting and computers), fire and intrusion detection systems, alarms, sprinklers, and other security

elements.

• Access Controls address personal identification and clearance, key control, parcel inspection, metal detection, visitor logs, escorts for outside service vendors, remote locks, and lock change schedules (including upon changes in employees).

• Security Device Standards specify suitable materials, hardware, construction,

inspection, and maintenance of locks and frames.
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• Secure Backup Utilities ensure continuous safety and emergency response capabilities upon loss of electricity, telephones, water, sewers, or cyber systems, including redundant wiring (onsite and incoming), secure electrical panels, and backup

generators.

• Grounds Maintenance and Landscaping keep EHS zones and sightlines free

from obstructions, such as double fences with vegetation-free medians.

• Guard Force Requirements ensure sufficient and well-prepared staffing, with

accurate and updated written duties and standards for supervision, training, and

performance evaluation.

• Certified Training prepares and certifies security and other staff on safety, fire

protection, weapons, bomb threats, hostage situations, arson, access controls, security devices, first aid, self defense, case reports and records, communications, human

relations, and special training on EHS dangers and response.

• Labor Dialogue ensures that workers are involved in security problem solving.

• Theft Prevention Guidelines ensure that firms track and safely store EHS materials to prevent theft, and address legal liability for harm associated with inadequate theft and fraud prevention.

• Financial Analysis Standards ensure that prevention investments receive comprehensive treatment during the capital budgeting process, including costs of EHS

operations avoided through specific projects (such as heightened security, liability,

regulatory compliance, add-on safety equipment, and remedial cleanups).

• Line Item Security Budgeting informs senior managers about security costs for

EHS operations in existing and proposed projects.

• Internal Security Audits periodically assess security systems and safer alternatives.

• Certified Third-party Audits regularly review security systems and propose

safer alternatives.

• Buffer Zone Setback Guidelines provide land use planners and zoning boards

with guidelines for establishing sufficient separation between EHS facilities and

public receptors such as schools, homes, day care centers, sports arenas, shopping

malls, major highways, businesses, and hospitals.

SEPTEMBER 27, 2001.

Attorney General JOHN ASHCROFT,

U.S. Department of Justice,

950 Pennsylvania Ave. NW,

Washington, DC.

DEAR ATTORNEY GENERAL ASHCROFT: We are once again sending to the Department of Justice our concerns and proposals for reducing the vulnerability of chemical facilities to terrorist attack. For some time, DOJ officials have warned of the

vulnerability of chemical plants to terrorism. Now it is time for the DOJ to act.

Given the terrible recent events of September 11, we hope that whatever impediments have blocked progress on this issue can now be quickly overcome.

Our letter cites the Department’s legal responsibility under P.L. 106–40, the

Chemical Safety Information, Site Security and Fuels Regulatory Relief Act, to submit to Congress a report and recommendations for reducing the vulnerability of

chemical industries to terrorist attack. This law requires the Department to consult

with appropriate agencies, affected industries, and the public in preparing its report

and recommendations. The Department’s work on a voluntary self-assessment methodology for use by chemical industries does not diminish the requirement to produce

this report and to make suitable recommendations by August 2002.

Our concern is straightforward: prevention must play a central role in addressing

potential terrorism and accidents. Reducing or eliminating chemical hazards where

possible is as a rule preferable to using add-on safety equipment or security measures.

In three previous written responses, the Department first twice referred us to

other agencies, and then later referenced other laws administered by the Department. As we have previously requested, please provide the schedule for public consultation (including a publicly accessible docket of all comments) by which you intend to address each of our concerns as well as comments that may be raised by

others.

PAUL ORUM,

Director.
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STATEMENT OF WILLIAM STANLEY, SOURCING-REGULATORY MANAGER, DEEPWATER CHEMICALS

I. INTRODUCTORY COMMENTS

Chairwoman Boxer, members of the subcommittee, my name is Bill Stanley. I am

the sourcing-regulatory manager of Deepwater Chemicals in Woodward, OK. I am

appearing today on behalf of the Synthetic Organic Chemical Manufacturers Association, known as ‘‘SOCMA.’’ I appreciate the opportunity to speak with you on the issue of site security for

the chemical industry. My goal is to provide you with perspective on the activities

of SOCMA and its members with respect to process safety and site security, while

also explaining the unique nature of the batch and specialty chemical manufacturing sector of the chemical industry.

Deepwater Chemicals is a small company. It has 30 employees, 16 of which are

process operators. Deepwater is a manufacturer of fine chemicals, specializing in organic and inorganic iodine derivatives. Our products are chemical intermediates

that are key building blocks for important products of the chemical industry, such

as pharmaceuticals, biocides, disinfectants, and heat stabilizers. I should also note

that Deepwater Chemicals uses batch-manufacturing processes, a manufacturing

method typical of many smaller chemical companies.

A primary focus of SOCMA is representation of the batch and specialty chemical

manufacturing segments of the chemical industry, with a particular focus on the interests of small businesses. I,serve on SOCMA’s Employee and Process Safety Committee.

This committee, along with other groups within SOCMA, had been actively addressing process safety and site security issues well before the tragic events of September 11.

I will focus my remarks today on three specific areas. First, I will explain the nature of batch manufacturing, the contributions of this industry sector, and the

unique challenges that these operations present relative to the broader chemical industry. Second, I will provide information on how both Deepwater Chemicals and

SOCMA more generally are addressing site security and process safety. Third, I will

explain SOCMA’s perspective on how industry and Federal, State and local agencies

can most effectively collaborate to address these challenges and why S. 1602 is not

an effective vehicle for accomplishing the common goal of further improving site security within the chemical industry.

II. THE UNIQUE NATURE AND ROLE OF THE BATCH AND SPECIALTY CHEMICAL

MANUFACTURING SECTOR

The U.S. chemical industry has long been an integral part of the growth, development, and stability of the United States. The industry has made significant contributions to the well-being, peace and prosperity of our country, in areas ranging

from national security to health and safety, We have all benefited from these efforts.

When SOCMA was formed 80 years ago, the U.S. chemical industry was playing

a vital role in supplying the military with products that were necessary during the

war. Our industry’s contributions to the war on terrorism are just as essential

today: SOCMA members play a key role in the production of these materials. This

is often a less visible role, however, due to the nature of our industry. SOCMA members typically produce intermediates, specialty chemicals or ingredients that are

used as feedstock in the manufacture of a wide range of commercial and consumer

products.

The term ‘‘specialty chemicals’’ refers to a category of chemicals that are specially

formulated to meet detailed specifications. Specialty chemicals usually have unique,

special purposes, such as to make nylon fibers stronger, or to make an active ingredient in medicine. Specialty chemicals are often essential ingredients in the manufacture of another product. Making these products is an ever-changing business,

often requiring small quantities in a timely manner. The specialized nature of

SOCMA’s members’ products thus often calls for batch manufacturing operations.

Batch manufacturing provides an efficient, and frequently the only, method to

make small quantities of chemicals to meet specific needs and customer demands

for specialized products. Batch processes are very different from continuous chemical manufacturing operations that produce commodity chemicals. A continuous

chemical operation constantly feeds the same raw material into the process. That

process consistently and constantly manufactures the same product.

By contrast, production at a batch manufacturing facility is not continuous. Both

the processes and the raw materials used can change frequently. Products are manufactured in separate, distinct ‘‘batches,’’ by operations that start and finish within
70

relatively shorter periods of time. Because the products and the processes change,

the process operating conditions and even the configuration of the equipment can

change as well. A single piece of equipment can be put to multiple uses and may

well contain a range of different materials over the course of a year. In fact, a

SOCMA study found that one member company produced a total of 566 different

products over a 7-year period at one facility.

To remain competitive in a tough global market, batch producers must be able

to respond quickly to new requirements by customers, fill small market niches and

develop new products. U.S. batch producers are at the cutting edge of new technology and provide products often made nowhere else in the world.

Just as batch and specialty chemical manufacturing differs from commodity chemical manufacturing, so do the challenges faced by this industry sector. SOCMA thus

has a role to play in representing this industry sector. SOCMA constantly advocates

on behalf of its members for regulatory flexibility. ‘‘One size fits all programs’’ for

the chemical industry often do not fit SOCMA members. This is especially true

when one considers that over 75 percent of SOCMA’s active members are small

businesses.

Over the years, SOCMA and its members have identified and addressed many

areas in which standard assumptions about chemical operations would be detrimental to SOCMA members. This is true with respect to chemical site security as

well.

III. HOW SOCMA AND ITS MEMBERS ARE ADDRESSING SITE SECURITY AND PROCESS

SAFETY

The events of September 11, 2001 have changed our nation and its approach to

security. The chemical industry is no exception. We are in a state of heightened

awareness of the risks posed by terrorist and criminal activity. Ensuring the safety

of our facilities, employees, neighbors and the environment is embedded in our industry culture. This culture of safe handling, manufacturing, and distribution of

chemicals has produced results. According to data compiled by the Department of

Labor, chemical manufacturing is one of the safest manufacturing industries in the

nation. Preserving and building on this dedication to safety will continue to be a

priority for our industry sector.

Since September 11, our industry has taken numerous proactive measures to augment existing environmental, health and safety practices. Typical security practices

modified or implemented at SOCMA member companies after September 11 include:

conducting vulnerability or security assessments of the facilities and/or processes,

communicating with law enforcement or emergency responders, tightening access by

contract personnel, further controlling vehicle Access, and security awareness training.

On behalf of its members, SOCMA has actively participated in the development

of site security guidelines, has met frequently with government officials, and is planning and promoting a series of site security workshops to be conducted free of

charge across the nation. SOCMA intends to build upon and expand these efforts

to advance site security practices across the industry.

Site security at chemical plants is being, addressed in other ways as well. SOCMA

members participate in Responsible Care, a management system, which is the

chemical industry’s voluntary initiative for continuous improvement in environmental, health, and safety performance. Under Responsible Care, there are management practices dedicated to site security, employee health and safety, process safety,

and distribution. Site security is addressed within the Employee Health and Safety

code.

In February 2001, SOCMA formed a partnership with the American Chemistry

Council and The Chlorine Institute to proactively address site security. Together, we

coauthored a guidance manual onsite security for the chemical industry. In October,

this manual, ‘‘Site Security Guidelines for the U.S. Chemical Industry’’’, was made

available to SOCMA members and also to non-members as a public service. It is

available on our website, www.socma.com. SOCMA has reached out, in particular

to share the guidelines with other associations that represent small business. These

guidelines are not intended to provide an all-inclusive list of security considerations

for chemical companies. They are intended to be a resource.

It was important for SOCMA to bring the unique perspective of the specialty

batch and custom chemical industry to the development of these guidelines. Because

of the many differences between these facilities and larger operations, it is critical

for a plant manager to have the flexibility to prioritize resources and implement security appropriate measures for that facility which would be most effective.
71

SOCMA has also met with the U.S. Department of Justice and its contractor,

Sandia National Laboratories, on the congressionally mandated vulnerability assessment of chemical facilities. To date, Sandia’s assessment has been based on six,

large commodity chemical manufacturers. SOCMA members have volunteered to

host a site visit by DOJ to ‘‘test’’ the prototype vulnerability assessment methodology. It is critical that specialty batch and custom chemical manufacturers participate in this project to ensure that the assessment report is balanced and accurately

reflects industry diversity in plant size, processing techniques, and production lines.

Since September 11, SOCMA has continually been in contact with various Federal

agencies including the U.S. Environmental Protection Agency (EPA) and the Federal

Bureau of Investigation (FBI) to share information. We are also engaged in an ongoing dialog to discuss ways that industry and government can work cooperatively together to combat terrorism. We are planning to co-host regional workshops on security to share information between the agencies and industry, present case studies

and practical information on developing a security plan at a facility, and discuss

best practices related to transportation security and product stewardship. Every effort is being made to ensure that workshops will be held in several States by the

end of 2001.

B. Current Activities Underway

At the facility level at Deepwater Chemicals, safety and security is a top priority.

Our goal is to produce a quality product in a manner that is beneficial to our customers, employees, company, community and environment. Security is an essential

part of this process. Security measures at Deepwater include perimeter fencing, controlled access, motion detectors in critical areas, and pre-employment hiring screening.

We already have two-way radio communication that is constantly monitored between plant operations and management. We are in the process of implementing

verbal confirmation for authorized entry of all truck traffic into the plant. These

measures allow management to make informed decisions regarding site access and

security.

Following the tragic events of September 11, Deepwater is in the process of evaluating further improvements to our security measures and conducting a vulnerability

assessment of our facility. We have met with State officials, including the Oklahoma

Highway Patrol and the Oklahoma State Bureau of Investigation, to participate in

an assessment survey of chemical plants and potential impacts on the surrounding

community in the event of catastrophic release as a result of a terrorist act. This

information will assist the State Emergency Planning Committee (SEPC) and Local

Emergency Planning Committee (LEPC) in further developing response plans.

In addition, the manufacture, handling, and distribution of chemicals at Deepwater is highly regulated under a range of programs—each intended to prevent and

mitigate the release of hazardous chemicals. The Clean Air Act already has a General Duty Clause [Section 112 (r)] that states that facilities have a general duty to

prevent and mitigate accidental releases of extremely hazardous substances. At

present, Deepwater Chemicals must comply with nearly 30 different regulations.

Unless one is out in the field implementing these multiple programs, it is easy to

lose track of their cumulative effect. I think you would be interested to know how

comprehensive these programs and our voluntary efforts are.

I would like to share with you some of our activities in this regard.

Process Safety

For example, the Occupational Safety and Health Administration (OSHA) Process

Safety Management Standard, or PSM, [29 CFR 1910.119] requires facilities that

have a highly hazardous substance above a certain threshold to implement measures to mitigate hazards, including conducting process hazard analysis and maintaining the mechanical integrity of equipment. Deepwater already conducts a process hazard analysis on all new manufacturing processes. A process hazard analysis

is a periodic assessment of hazards associated with chemical manufacturing operations. It also includes implementation of actions to minimize risks.

In addition, Deepwater reviews processes if decided by management review. Manufacturing processes are also reviewed if a new product is under development in the

R&D facility or is being transferred to plant operations. OSHA requires revalidation

and review of processes that fall under PSM every 5 years. Deepwater has two processes that fall under this PSM program, and these will also be reviewed according

to regulations.

Worker Training and Safety

Worked training and safety is another area critical to plant safety and security.

The OSHA PSM standard requires employers to train employees involved in oper-
72

ating a process on the specific health and safety standards, emergency operations

including shutdown, and safe work practices applicable to the employee’s job tasks.

Additionally, OSHA’s Hazard Communication standard requires that the hazards of

all chemicals produced or, imported are evaluated, and that information concerning

their hazards is transmitted to employers and employees.

Deepwater Chemicals has developed a comprehensive training program. In fact,

in June 2001, Deepwater hosted SOCMA’s 40-hour Chemical Process Operator

Training Workshop and invited neighboring chemical companies to also participate

in the course. This was done in collaboration with the Oklahoma Department of Career and Technology Education that makes available funding for private industry

to develop or enhance training that is specific to their industry. This ongoing program allows for further advancement in developing communication and relationships between other industry and the community.

Coordination with Emergency Responders

Another important aspect of our Environmental, Regulatory, Heath and Safety

Program is involvement with local emergency response teams.

Under Title III of the Superfund Amendments and Reauthorization Act (SARA),

States are required to establish LEPCs. Each LEPC is responsible for working with

industry to develop emergency response plans for its community that take potential

risks from a chemical related accident into account; collecting and storing information provided by facilities; and making it available to the public. Representatives to

the LEPC include individuals from the fire department, emergency management

agencies, local health agencies and hospitals, local officials, community groups,

media, and local businesses.

Deepwater Chemicals, in collaboration with other local companies and industry,

participates in the Woodward County LEPC by providing technical expertise in the

planning process, assisting with the training of local responders in handling hazardous chemicals, providing information about chemicals and transportation routes,

offering inkind assistance in the planning process and hosting regular plant tours

and emergency response drills for local responders.

Under the Emergency Planning and Community Right-to-Know Act (EPCRA), facilities that have listed chemicals above a certain threshold quantity are required

to prepare and submit a hazardous chemical inventory form to their local emergency

planning committee, State emergency response commission, and local fire department.

Responsible Care plays a significant role in site security, as well as in

Deepwater’s interaction with local emergency responders. As part of the Community

Awareness and Emergency Response Code, or CAER code, facilities are encouraged

to communicate with plant community residents and emergency response personnel,

further enhancing safety and emergency preparedness. As part of Responsible Care,

facilities are to implement security procedures and systems to control the entry and

exit of personnel and materials. SOCMA’s guidance for the Responsible Care Employee Health & Safety Code and the recently released industry site security manual provides guidelines for company practices regarding site security. The CAER

Code encourages facilities to take a leadership role in the LEPC and initiate activities that go beyond the requirements of SARA. For example, the CAER Code provides guidelines on participation in the community emergency response planning

process to develop and periodically test the comprehensive community emergency

response plan developed by the LEPC.

As you can tell, handling chemicals has led the industry to develop extensive

plans to address potential incidents covering both onsite and offsite consequences.

Industry is already coordinating with emergency responders and local communities

regarding these issues. This effort has already been expanded to consider further

steps in light of the events of September 11. We are committed to continuing these

efforts for the sake of our employees and our communities.

IV. SOCMA’S PERSPECTIVE ON THE PATH FORWARD

SOCMA believes that these cooperative, government/industry efforts, at both the

national level and the facility level, are the right way to address further improvements. to site security in the chemical industry. SOCMA applauds Senator Corzine

and this subcommittee for recognizing the importance of this issue in S. 1602. However, SOCMA has a number of significant concerns about the proposed approach

and its likely consequences.

A. Burdens Placed on Small Companies

One of the greatest concerns that SOCMA has with S. 1602 is its potential impact

on small batch and specialty chemical producers. As a small business specialty
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chemical producer, I know first hand the regulatory challenges already imposed on

this industry sector. Due to the broad scope of the bill, any small company that produces, mixes, blends, modifies, or even handles a high priority substance may be

subject to the new regulatory obligations. In fact, due to the nature of our operations, it would be burdensome even to ascertain whether and when subsequent regulations apply.

As I discussed previously, batch manufacturing has many unique characteristics

that distinguish it from continuous commodity production. Due to these characteristics, regulations developed in accordance with S. 1602 would impose disparate impacts on the industry’s small businesses. Because batch and specialty producers are

customer driven, their product lines fluctuate regularly. They may be producing one

chemical for a pharmaceutical company one week, and then making a pesticide intermediate the next.

As a result, a batch producer could handle a variety of high priority chemicals—

each requiring different regulatory standards and mandated processes. Such requirements would eliminate a company’s operational flexibility. The ability to

produce niche chemicals efficiently is of paramount importance to compete in the

batch and specialty chemical sector. These companies spend extensive resources to

develop new ways to meet customer demands. By promulgating prescriptive production standards under S. 1602, the government would adversely affect a company’s

ability to innovate and compete.

It is no secret that the chemical industry has been facing challenging times. With

the economy in its current State and the overvalued dollar overseas, the batch and

specialty chemical industry is facing increasing competition from abroad. The effects

of this competition are reflected in the industry’s decreasing trade surplus. Though

the industry remains the largest exporting sector in the United States, with trade

surpluses for over 75 years, Department of Commerce data show that the industry’s

trade surpluses have decreased from $19.1 billion in 1997 to $6.3 billion in 2000.

Limiting a U.S. company’s ability to innovate and produce chemicals impairs its

ability to compete globally. Developing countries are already increasing their production capacity to undercut and replace U.S. specialty chemical producers. Neither

our industry, nor our economy, can afford to have jobs move overseas. The U.S.

chemical industry employs over one million workers, with 96,000 jobs in New Jersey, 83,000 jobs in Texas, 82,000 jobs in California, and 57,000 jobs in New York.

Competition in the batch and specialty chemical sector is already high. Imposing additional constraints on this industry section could hurt domestic competitiveness, to

the benefit of our global competitors.

B. Concerns With General Duty Clause

Under S. 1602, a general duty clause is imposed on each owner and operator of

a chemical source that is within the high priority category. As a result, it would

be the duty of every owner or operator of a chemical source to, among other things,

ensure safer design and maintenance of a facility by taking such actions as are necessary to prevent accidental releases and criminal releases.

The general duty clause thus potentially subjects companies to both civil and

criminal penalties if an accidental or criminal release were to occur. As I have previously stated, the industry has a culture of safety with numerous measures taken

daily to prevent such incidents. However, under the language of the bill, any such

incident could subject a company to penalties. Furthermore, even the most extreme

criminal actions by a third party could result in civil and criminal sanctions being

imposed on the site owner or operator. Under this approach, the criminal act of a

terrorist would serve as the basis for imposing civil or criminal liability on the actual victim, the site owner or operator.

Furthermore, this approach unfairly places the entire burden of anticipating and

preventing criminal and terrorist activity on the company. For a small business, this

challenge is all the more difficult. I think that a better approach is for the government to maintain its lead role in criminal enforcement and the war on terrorism,

while sharing critical intelligence information and working cooperatively with a,

company when a clear and present danger is discovered. SOCMA’s work with the

FBI and other Federal agencies is already based on the premise that more can be

accomplished when industry and government collaborate to work together constructively.

I am also concerned that the approach in S. 1602 seems likely to put EPA in a

command-and-control, adversarial posture with industry. This would greatly hamper

the emerging paradigm of industry partnership and collaboration with EPA and

other government agencies. It would certainly be difficult for a site owner or operator to work cooperatively with the FBI after a terrorist attack, when the critical
74

information supplied to the FBI and other Federal entities might later be used for

criminal enforcement against the site owner or operator.

C. S. 1602 Blurs Current Regulatory Jurisdiction

SOCMA also has concerns with the broad delegation of authority to EPA to regulate chemical sources—including motor vehicle and rolling stock. The bill is silent

on whether it trumps or even preempts existing regulatory jurisdiction. Currently,

the shipment of chemical goods is regulated by the Department of Transportation

(DOT). If enacted, EPA and the DOT would both be responsible for such regulation,

potentially leading to jurisdictional conflicts.

S. 1602 would also give EPA broad authority to ban the production of high priority chemicals. This role would potentially conflict with other agencies such as the

Food and Drug Administration (FDA). For example, if a pharmaceutical intermediate, or a fine chemical were categorized as high priority, it would apparently

be the EPA, not the FDA, regulating its production.

Furthermore, the authority to ban chemical production based on quantifiable hazards exists in other statutes. Provisions in these laws take numerous factors in account—factors that are missing from S. 1602. For example, section 6 of the Toxic

Substances Control Act authorizes EPA to take regulatory action to protect against

unreasonable risk of injury to human health or the environment due to the manufacture, import, processing, distribution in commerce, use or disposal of a chemical

substance or mixture. Regulatory decisions are to be based on risk assessments, and

EPA is required to regulate risks by using the ‘‘least burdensome’’ means. Judicial

interpretation of these provisions has confirmed that, when banning a chemical,

EPA must consider and rule out other alternatives to ensure that the method chosen is in fact the least burdensome. It is impossible to reconcile these provisions

with S. 1602.

S. 1602 also gives me pause insofar as it casts EPA in the role of an expert with

respect to both threats to national security and threats to critical infrastructure. Not

only would EPA be the purported expert, S. 1602 would endow EPA with final decisionmaking and rulemaking authority. The FBI, the CIA and the Homeland Defense

Office need not be consulted and need not be in agreement with EPA’s assessment

of these factors.

Yet, today’s world underscores the need for sophisticated, current expertise as a

critical weapon in the war on terrorism. Our nation’s management and assessment

of terrorist threats must be streamlined, focused and effective. The question is how

to most effectively coordinate the expertise within our various Federal, State and

local agencies. Creating a new dominant national security bureaucracy within EPA

is not the right response.

D. Provisions Regarding Safer Technology

The language in this bill is explicit regarding the promulgation of rules, leading

to ‘‘safer designs’’ and processes for manufacturing. Developing and proposing such

measures would require extensive knowledge of chemical processes and formulations—many of which vary from facility to facility. And, as we have discussed, with

the batch manufacturing sector, chemical processes, formulations and raw materials

can vary almost from week to week.

Yet, S. 1602 assumes that processes can and should be redesigned, inputs substituted, and carriers and catalysts substituted based on a single perspective—potential impacts on national security due to potential releases. This simplistic analysis overlooks the real world of chemical processing, and batch manufacturing in

particular.

Any responsible chemical manufacturer will confirm that process changes of any

sort must be preceded by a comprehensive assessment of the likely consequences of

the change. A multitude of impacts must be considered. Will emissions increase?

Will emissions be more toxic? Would the change affect the surrounding operations

and areas? Will the facility be able to get permits for changes in air, water and

waste emissions? Will product quality and effectiveness suffer? Will the process pose

more immediate hazards to workers? Will the process be less stable or more difficult

to control? Will the changes promote or hinder waste minimization and recycling?

Are the new substitutes consistently and reliably available? What is the overall impact on costs? Will the resulting product still be able to be manufactured to customer specifications? A comprehensive assessment must be made of the feasibility,

benefits, costs and risks attendant upon any process change. We absolutely agree

that site security is an essential and increasingly important part of this assessment.

But it still must be a multi-faceted assessment.

The batch manufacturing industry has substantial expertise in evaluating the potential ramifications of process changes. We continually strive to find innovative ap-
75

proaches to making certain chemical compounds. However, it is important that this

subcommittee also understand that we are limited by the natural laws and bounds

of chemistry and physics as to how much we can do to change our processes. For

instance, when making an intermediate that will eventually be turned into an ingredient for medicine, we may have to go through several steps to get groups of atoms

in exactly the right place to make the product useful. To do that, we may have to

use a specific type of chemical or process, because there are no substitutes that

allow us to achieve the same result. In this case, forcing process change or input

substitution should not be considered a feasible alternative. Yet, S. 1602 seemingly

would authorize EPA to require such a change.

E. Timing

As a final point, SOCMA questions the timeliness of the regulatory program proposed in S. 1602. On its face, the regulatory program envisioned in S. 1602 would

not be fully implemented for at least 4 to 5 years. The legislation first requires EPA

to designate from the universe of regulated chemicals, certain substances and

sources as ‘‘high priorities.’’ Even if completed on time, this provision is to be conducted within 1 year. However, due to the enormity of the task, subjecting the hazard ranking of every regulated chemical and source through the administrative

process would take significantly longer than 1 year to be done accurately.

The bill would then require EPA to promulgate rules to take adequate actions to

prevent, control, and minimize the potential consequences of a release by one of the

aforementioned high priority combinations. Again, EPA is to complete this process

within 1 year. The bill recommends that regulations should require development

and use of safer design and maintenance of the chemical source. Like the categorization provisions, this in and of itself would be a Herculean task for EPA to undertake—let alone to complete in 1 year. Even if completed on time, final rules addressing high priority chemical risks would not be completed for 2 years.

After the rules are promulgated, additional time would be needed for the regulated community to come into compliance with such extensive measures. The type

of process changes suggested by the language of S. 1602 could be further delayed

by the need for facilities to assess the feasibility of compliance through comprehensive assessments of the potential ramifications of any changes. In addition, environmental permits would have to be obtained before changes could be implemented, or

construction even begun in some cases.

As I have already stated, the industry has already been working on the specific

issue of site security. Our work, which began before September 11, is addressing the

immediate need to prevent accidental and criminal releases. These measures are

comprehensive and designed to help companies to customize their security measures

on a facility-by-facility basis.

V. RISK-BASED APPROACH

I urge members of this subcommittee to keep in mind that not all chemicals and

facilities are likely targets for terrorist attacks. In fact, most are not. How then, do

we work together in a partnership with government and determine the likelihood

that a facility will be an attractive target for a terrorist? And when we determine

the degree to which certain facilities can be potential targets, how do we ensure the

appropriate level of security? These are the two fundamental questions that prompted our industry to begin developing a tiered, risk-based approach to chemical site

security. A tiered approach is nothing more than starting with simple evaluation

techniques, usually qualitative in nature, and identifying areas in which more information would be useful to reach a riskbased conclusion.

We envision a six-step process, which is detailed in our site security guidance,

that begins with determining which chemicals, processes and facilities would be

likely targets. Our guidance further outlines areas that companies can consider

when assessing vulnerability, such as chemical hazards, physical and reactivity

properties, engineering, containers, physical appearance, release mitigation, potentials for exposure, and other important factors.

Once these six steps are complete, it will be easier to assessment whether or not

the security measures in place are appropriate for the potential threat. Companies

have already begun this process because we share a sense of immediacy about ensuring the safety of the communities in which we live.

Interestingly, our security measures often exceed what would be appropriate for

potential terrorist threats because we also consider other factors, such as vandalism,

trespassing and theft. In fact, batch and specialty facilities are hard to discern from

other types of businesses because most of their production processes take place indoors. The physical appearance of our facilities very much decreases the likelihood

that they would be targets. In addition, our products are made according to the
76

1See, for example, Eric Pianin, Toxic Chemicals’ Security Worries Officials; Widespread Use

of Industrial Materials Makes Them Potential Target of Terrorists, Washington Post, November

12, 2001, at A14, attached as Appendix A-1. 2Diamond, Stuart, The Bhopal Disaster: How It Happened, New York Times, January 28,

1985, at A1, attached as Appendix A-2.

needs of our customers, so a terrorist would have to know the details of our production schedules to know what we are making, and, more importantly, when.

Considering all the factors that make certain chemicals and processes likely candidates for terrorist attacks, I think it is reasonable to State that batch and specialty facilities require a flexible approach to vulnerability assessment and security

countermeasures to meet potential terrorist threats. We think we have the right approach and have already begun implementation.

IV. CONCLUSION

I would like to conclude by confirming that there are plenty of incentives to ensure safety and security in all of our processes. We do not want accidents, nor do

we want to be the victim of an attack. I work in my facility. My failure to address

these issues would impact me directly. We are all in this together, our businesses,

our communities and our government leaders. We want to continue to work together

on a cooperative basis, to evaluate and respond to potential risks in an effective

manner. I would be glad to entertain any questions at this time.

STATEMENT OF RENA STEINZOR, ACADEMIC FELLOW, NATURAL RESOURCES DEFENSE COUNCIL

Madame Chairman, and members of the subcommittee: Thank you for the opportunity to appear here today to testify in support of S. 1602, the Chemical Security

Act of 2001, on behalf of the Natural Resources Defense Council (NRDC). NRDC is

a national, non-profit organization of scientists, lawyers, economists, and other environmental specialists dedicated to protecting public health and the environment.

Founded in 1970, NRDC has more than 500,000 members nationwide, and four national offices in New York, Washington, Los Angeles, and San Francisco.

In the wake of the tragedies that began on September 11, 2001, this legislation

is one of the most important, proactive steps that the Federal Government can take

in response to this particular threat, which belongs on the ‘‘top ten’’ of anyone’s list.1

No reasonable observer could dispute that the events covered by this legislation

must be a national priority: namely, terrorist attacks that result in releases of

acutely toxic chemicals at factories, petroleum storage facilities, and hazardous materials transportation locations, as well as the possibility that terrorists could steal

chemicals from such facilities to make their own weapons of mass destruction.

Existing law does not address this problem. Waiting for States to erect a patchwork of inconsistent requirements could take years, and would cost excessive

amounts. To its credit, the American Chemistry Council recognizes that these hazards must be an immediate priority and has already put in motion special programs

to help its members upgrade plant security. However, the notion that we would

leave industry to implement these efforts voluntarily, without government oversight,

makes as much sense as leaving airport security to the exclusive discretion of the

world’s air carriers.

The American people clearly want their government to protect them from the

worst threats, and they want those activities begun yesterday. Not incidentally, the

proposal you have before you today, like the one that Congress passed in 1986 in

the wake of the Bhopal tragedy, will enable our nation’s brave police and firefighters to combat accidental releases of hazardous materials with the knowledge

that the Federal Government, and the chemical, petroleum, and transportation industries, have done everything possible to avoid placing them in harm’s way.

For the sake of these brave men and women, and the public at large, NRDC urges

you to move this legislation toward enactment as quickly as possible. The remainder

of my testimony will address (1) the need for the legislation; (2) why a Federal law

is necessary, as opposed to consigning responsibility for this issue to the States or

industry volunteerism; and (3) possible ways to strengthen the legislation.

NEED FOR THE LEGISLATION

As you may remember, the Bhopal tragedy occurred when equipment at a pesticide manufacturing plant malfunctioned, causing the release of a cloud of lethal

methyl isocyanate gas.2 People in the crowded neighborhoods around the plant saw
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3Pienciak, Richard T., Flaws found in emergency plans near toxic plants, Los Angeles Times,

January 6, 1985, at 2, attached as Appendix A–3. 4 Heather Dewar, When Chemical Safety is a Matter of Security, Baltimore Sun, October 17,

2001, at 1A, attached as Appendix A-4. 5Tunnel Damage Assessed After Derailment Blaze, Houston Chronicle, July 23, 2001, at 8. See

also Editorial, There When You Need Them, Baltimore Sun, July 20, 2001, at 20A, attached as

Appendix A-5.

the plume, assumed it was a fire, and ran toward the factory to help extinguish the

blaze or to watch in excitement. As the plume drifted over the plant gates toward

the crowds, some 3,000 people dropped dead in their tracks. Overcoming the temptation to view Bhopal as an example of Third World ineptitude, a congressional panel

traveled to a twin Union Carbide facility in Institute, West Virginia, only to discover

that although the county had prepared an emergency plan, the plant manager did

not realize that it existed.3

Congress responded to Bhopal and its aftermath by passing the 1986 Emergency

Response and Community Right-to-Know Act (EPCRA), which was refined and expanded by the 1990 Clean Air Act (CAA) amendments. Under both statutes, State

and local governments are responsible for dealing with such incidents, with the Federal Government playing a very small role in providing technical support for their

efforts. Emergency response has two distinct components in this context: first, the

containment of the explosion, fires, and toxic releases that typically accompany such

incidents and, second, the successful protection of the affected populations near the

facilities. But neither law addresses the all-important tasks of preventing such incidents by reducing hazards and ensuring plant and transportation system security.

Human error in operating complex machinery killed several thousand people in

Bhopal. What price would we pay for deliberate sabotage at such a facility?

In the decade-and-a-half since EPCRA went on the books, funding shortfalls have

undermined local efforts to make progress on either containing accidents or protecting the public and, until recently, very few cities and towns had even thought

about reducing the use of toxic chemicals or improving the technology of storage

equipment. Indeed, it is commonly understood by everyone involved at the grassroots level—from firefighters, police, and other municipal officials to the companies

that own and operate the factories, railroads, pipelines, and truck fleets—that local

emergency response capacity, even in large cities, falls far short of either these legal

requirements or safe practice. Despite the valiant efforts of fire departments nationwide, local governments under pressure to fund other services simply have not given

firefighters, police, and emergency medical personnel what they need to do a very

difficult job.

As a classic example of this problem, I refer you to press accounts of a fire caused

by a train derailment in a tunnel running through the center of Baltimore City last

summer; I have attached one comprehensive analysis of the implications of the incident to my testimony.4 The short story is that it took several days to put out the

fire, and everyone involved with the response was enormously relieved that no

acutely toxic chemicals were involved because the City was fundamentally unprepared to deal with such a catastrophe.

To understand the gravity of the situation in Baltimore and elsewhere, consider

the following realities of any emergency that involves the release of an acutely toxic

chemical. Experts agree that there are only two possible alternatives when a toxic

plume is released near a population center: (1) shelter-in-place or (2) evacuation.

They further agree that the first of these is only as effective as the shelter itself.

In the absence of measures to seal off ventilation systems, and plug other leaks in

a building, shelter-in-place can serve to compound chemical exposures. Evacuation

therefore remains an essential component of any emergency response plans. EPCRA

recognized this reality, explicitly requiring that ‘‘local emergency response committees’’ include detailed evacuation scenarios in their plans.

Many cities have made little, if any, progress on these critical tasks, again as indicated by the Baltimore incident.5 They have not deployed effective warning systems;

they have no contingency plan for dealing with vulnerable populations; they have

made no effort to train the public on shelter in place techniques, and they have no

idea how they would conduct an evacuation if one was necessary. Even worse, most

cities have not yet mastered the important challenge of integrating fire department

efforts to contain fires, explosions, and releases with police efforts to evacuate or

otherwise aid the public. Police lack equipment to protect themselves in the event

of an acutely toxic release, do not routinely train with firefighters to develop effective coordination procedures, and have no concrete plan for controlling traffic, much

less organizing a large-scale evacuation of affected neighborhoods.
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6 U.S. Department of Justice, 2000. Assessment of the Increased Risk of Terrorist or Other

Criminal Activity Associated with Posting Off-Site Consequence Analysis Information on the

Internet, at 27, attached as Appendix B. 7 U.S. Environmental Protection Agency, Chemical Emergency Preparedness and Prevention

Office, 2000. Assessment of the Incentives Created by Public Disclosure of Off-Site Consequence

Analysis Information for Reduction In the Risk of Accidental Releases, at 2, 11-12, attached as

Appendix C. 8Mukerjee, Madhusree, Toxins Abounding, Scientific American, July 1995, at 22, attached as

Appendix D. 9David Wagman, A Vulnerable System Looks for Security, Energy Insight Today (September

14, 2001). 10See Eric Pianin, Toxic Chemicals’ Security Worries Officials; Widespread Use of Industrial

Materials Makes Them Potential Target of Terrorists, Washington Post, November 12, 2001, at

A14, attached as Appendix A-1.

To date, there have been only two confirmed attempts to perpetrate terrorist attacks on facilities handling toxic chemicals, both of which were prevented by the authorities.6 However, there have been numerous accidents involving such materials,

with several involving severe injuries or even fatalities, primarily among the workers at such facilities but under circumstances that could easily have posed a threat

to the public.7 Fifteen accidental gas releases of greater amount and toxicity than

Bhopal occurred in the United States between 1980 and 1990.8 A careful review of

press accounts of these incidents indicates that luck rather than preparation is the

reason such incidents have not resulted in widespread fatalities.

The vast majority of hazardous chemicals are stored in tanks or other containers

that require electricity to maintain the correct temperature and pressure. Power

outages of any significant duration could have the same disastrous effects as a direct attack on such facilities. Consequently, the facilities covered by S. 1602 are in

jeopardy from the indirect effects on attacks on the power grid, as well as direct

assaults. For further information on this too-often overlooked aspect of the problem,

I have attached a recent paper regarding the vulnerability of the nation’s power grid

to terrorist attack.9

These realities, partnered with the lessons of September 11, demonstrate beyond

any reasonable doubt the importance of increased prevention of hazards and physical security, as required by the legislation before you. Some enlightened local governments have begun such initiatives, demonstrating that they are indeed possible.

As reported in this Monday’s Washington Post, the Blue Plains sewage treatment

plant has accelerated its efforts to replace lethal chlorine gas with a far less hazardous chemical, demonstrating the feasibility of the requirements contained in S.

1602.10

WHY A FEDERAL LAW

Although devolution of traditional Federal functions to the States is a popular approach to government at the moment, the events of September 11 have reminded

us why we operate under a system of national environmental laws. Three major reasons were articulated by congressional sponsors of the legislation that created the

Federal regulatory system, and by commentators on federalism ever since:

1. The need to address transboundary pollution. For example, there are a large,

albeit uncounted, number of plants that use, store, or produce toxic chemicals in

this country located in a place where an emergency release would affect populations

living in two States. Of course, trucks and trains carrying toxic chemicals routinely

cross state lines.

2. The superior performance and economic efficiency achieved by regulation at the

national level. Asking 50 state and thousands of local governments to assess the

threat of chemical plant and transportation system sabotage and regulate accordingly would not only consume enormous resources but would inevitably result in

failure in far too many places. Federal expertise is needed desperately in this endeavor, and is far more efficient economically. It is also worth noting that a patchwork of state and local requirements would only drive industry into your offices to

beg for a uniform Federal system. Indeed, this is exactly the scenario that occurred

when states tried to regulate hazardous materials transportation.

3. Establishing a Federal regulatory framework leaves a role for first responders

at the state and local levels. States and local governments must be indispensable

partners in this effort, as the legislation recognizes when it directs EPA and the Department of Justice to consult closely with their sister agencies and elected officials.

As for the question of whether industry volunteerism is enough to meet this challenge, the information released thus far suggests that industry is focusing on physical security, with prevention by hazard reduction a distant and far lower priority.

NRDC’s experiences over the last decade in working with industry to encourage haz-
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11Greer, Linda, Anatomy of a Successful Pollution Reduction Project, 34 Environmental

Science and Technology 254A (2001), attached as Appendix E. 12 U.S. Public Health Service, Agency for Toxic Substances and Disease Registry, Industrial

Chemicals and Terrorism: Human Health Threat Analysis, Mitigation, and Prevention (1999),

attached as Appendix F.

ard reduction (aka ‘‘pollution prevention’’) illustrate just how very difficult it is

going to be to change corporate culture to accomplish this crucial component of any

reasonable response to the terrorist threat.11 Rather, the instinct of most companies

will be to post security guards, strengthen fences, and make alarms louder, all of

which may well be appropriate but are an incomplete answer in the face of the kind

of coordination and determination displayed by the terrorists who attacked us on

September 11.

Even if increased security was an adequate agenda for the moment, every past

experience with volunteerism indicates that compliance with such programs is spotty at best. With an economic downturn ahead of us, we simply cannot afford to leave

decisions whether to invest in complex new systems up to senior management, no

matter how well-meaning they may be. Indeed, it is likely that the economically

weakest companies with the most neglected and therefore more vulnerable physical

infrastructures, will be the ones that never quite get around to doing their share

to satisfy their civic responsibilities.

Of course, there are other incentives to make plants, trucks, and trains more secure, and we would be foolish to ignore them. The most important is liability for

damages if a company ignores this crucial imperative, and we trust that the subcommittee will leave these incentives in place no matter what the outcome of this

valuable legislative debate.

STREAMLINING THE BILL

The legislation, as drafted, is comprehensive, covering all conceivable manifestations of the terrorist threat. It anticipates that EPA, in consultation with the Justice

Department and the states, will prioritize facilities and chemicals in order to develop a workable list of high priority targets for the final regulatory regime.

While we appreciate your interest in moving this legislation quickly, and we plan

to do anything we can to assist you in that effort, we are also aware that the history

of the Agency’s regulatory performance over the last decade and a half suggests that

the more broad its mandate, and the more endless the regulatory possibilities, the

more attenuated the rulemaking process becomes. Accordingly, we offer to continue

to work on developing information that will help you target the worst threats. Of

some 22,000 facilities now reporting to the Toxics Release Inventory, approximately

200 account for over 50 percent of reported releases. (This calculation is based on

Toxic Release Inventory data, and excludes acids and bases, focusing instead on

other toxic chemicals that are not readily neutralized.) We are confident that with

some additional research, it will be possible to focus on a significantly smaller subset of facilities posing the greatest risk.

For example, I have attached to this testimony a report by the Agency for Toxic

Substances and Disease Registry entitled Industrial Chemicals and Terrorism:

Human Health Threat Analysis, Mitigation and Prevention.12 This extraordinarily

useful document suggests several steps that could be taken to prioritize the risks

in this arena, and also proposes a 10-step procedure for upgrading emergency response plans. The experts who produced this document, and others like them at

EPA, the Federal Emergency Management Administration, and the Federal Bureau

of Investigation, should make themselves available right now to assist you in the

effort to isolate the top priorities and get the regulatory process moving at a fast

clip.

Thank you for the opportunity to appear before you today. I would be pleased to

answer any questions you may have.

[From the Washington Post, Nov. 12, 2001]

TOXIC CHEMICALS’ SECURITY WORRIES OFFICIALS; WIDESPREAD USE OF INDUSTRIAL

MATERIALS MAKES THEM POTENTIAL TARGET OF TERRORISTS

(By Eric Pianin)

Last February, environmentalists concerned about security problems in the chemical industry made their point by scaling the fence of a large Dow Chemical plant
80

near Baton Rouge, La., and gaining access to the control panel that regulates potentially dangerous discharges into the Mississippi River.

The plant manufactures and stores large quantities of chlorine, a highly toxic

chemical that could kill many if released as a gas through an explosion or fire. The

Greenpeace activists who organized the foray said it was a snap because there were

no guards or security cameras along the plant’s lengthy perimeter and because the

door to the wastewater discharge control room was unlocked. Though some industry

officials played down the raid’s significance, experts say it underscores another serious homeland security vulnerability after the September 11 terrorist attacks. Industry and government officials alike are looking for ways to make. sure that, like commercial airliners, another component of U.S. technology isn’t turned into a horrific

weapon against Americans. ‘‘No one needed to convince us that we could be—and indeed would be—a target

at some future date,’’ said Frederick L. Webber, president of the American Chemistry Council, an industry group representing 180 major companies including DuPont, Dow, and BP Chemical. ‘‘If they’re looking for the big bang, obviously you

don’t have to go far in your imagination to think about what the possibilities are.’’ Industrial chemicals such as chlorine, sulfuric acid and hydrochloric acid potentially provide terrorists with ‘‘effective and readily accessible materials to develop

improvised explosives, incendiaries and poisons,’’ according to a 1999 study by the

Federal Agency for Toxic Substances and Disease Registry. Yet the report, which

focused on West Virginia and Nevada as a way to sample the situation nationwide,

found that security at chemical plants ‘‘ranged from fair to very poor.’’ ‘‘Most of the security gaps were the result of complacency and lack of awareness

of the threat,’’ the report stated. ‘‘Chemical plant security managers were very pessimistic about their ability to deter sabotage by employees.’’ Some of the chemicals used or produced in plants throughout the country—and

transported by rail through densely populated areas including Baltimore and Washington—have the potential to match or exceed the 1984 disaster in Bhopal, India,

in which a methyl isocyanate gas leak at a Union Carbide Corp. pesticide plant

killed at least 2,000 people and injured tens of thousands. ‘‘I think that if one had to think about what is the next level of potential targets,

you would have to think about major chemical and oil facilities,’’ said Fred Millar,

a consultant on chemical accident prevention.

Immediately after the United States began bombing Afghanistan on October 7,

the railroad industry took the precaution of imposing a 72-hour moratorium on carrying toxic or dangerous chemicals. But the shipments were resumed after the

chemical industry argued that chlorine was essential to the continued operations of

sewage treatment plants and that there was no evidence the shipments were being

targeted by terrorists.

Chemical industry officials say that, long before September 11, plants had begun

to tighten security and put in place safeguards including well trained and equipped

hazardous materials response crews, vapor suppression equipment and barriers

around chemical storage tanks. Since the attacks, the industry has issued tough

new site security guidelines, and officials say they are in daily contact with the FBI

and other Federal authorities to prepare for a direct threat against a chemical

plant. So far, there hasn’t been one.

Environmental Protection Agency Administrator Christine Todd Whitman, who

has met several times with industry leaders, said Friday, ‘‘I don’t know that you

could get any higher awareness than we have today on the importance of directing

resources to those efforts of securing chemicals onsite.’’

‘‘So they are doing as good a job as they can do right now, and they’re very aware

of where their vulnerabilities might be,’’ she added.

But Paul Orum, director of the Working Group on Community Right-to-Know, a

national clearinghouse on hazardous risk information, said the chemical industry

‘‘continues to maintain excessive volumes of extremely hazardous substances in

heavily populated areas, materials that if they get loose can cover schools, hospitals

and residential areas with toxic fumes at dangerous levels.’’

‘‘The industry has been in denial about the need to reduce those hazards and set

measurable goals and time lines,’’ Orum added.

Chlorine is a telling example of the complexity of the problem. While potentially

a lethal weapon, it is also a safeguard: Among other uses, it is a key ingredient in

Cipro, an antibiotic used to treat anthrax exposure. ‘‘Chlorine is the first line of defense against bioterrorism,’’ said C.T. ‘‘Kip’’ Howlett Jr. of the Chlorine Chemistry

Council, as he strongly defended the widespread use and storage of the gas.

Last year, U.S. chemical companies and related industries reported 32,435 fires,

spills or explosions involving hazardous chemicals to the National Response Center,

an extensive but incomplete Federal record of mishaps involving oil or chemicals.
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At least 1,000 of these events each year involve death, injury or evacuation. Combined data from additional Federal sources suggest that in 1998—the last year for

which full data were available—there were more than 100 deaths and nearly 5,000

injuries, according to Orum’s group.

A single accident at any of the nearly 50 chemical plants operating between Baton

Rouge and New Orleans potentially could put at risk 10,000 to 1 million people, according to ‘‘worst-case’’ scenarios that companies are required by law to file with the

EPA.

Those scenarios provide an estimate of the radius of a dangerous cloud of escaping

gas and how many people it could affect. The Dow Chemical plant targeted by

Greenpeace reported as its potential ‘‘worst case’’ the release of 800,000 pounds of

hydrogen chloride, a suffocating gas that would threaten 370,000 people. Rick Hind,

legislative director of the Greenpeace toxics campaign, said that the ease with which

his group infiltrated that plant ‘‘shows the absolute porous nature of these facilities’’

and their vulnerability to terrorist attacks.

Environmental and hazardous chemical experts say that serious security problems

also persist to varying degrees at chemical manufacturing centers in Texas, New

Jersey, Delaware, Philadelphia and Baltimore.

Last July, a CSX train derailment and fire in a Baltimore tunnel paralyzed the

city for 5 days while hydrochloric acid and other toxic chemicals contained in the

tanker cars burned off or seeped into storm drains that flowed into the Inner Harbor.

Around Washington, the D.C. Water and Sewer Authority’s Blue Plains Waste

Water Treatment Plant houses one of the region’s largest supplies of toxic chemicals, including liquid chlorine and sulfur dioxide. Since September 11, Blue Plains

plant operators have stepped up security and considered ways to disperse, shelter

or eliminate the need to maintain a stockpile of chemicals.

Sen. Jon S. Corzine (D-N.J.) and Senate Environment and Public Works Committee Chairman James M. Jeffords (I-VT.) introduced a bill last week that would

order the EPA and the Justice Department to impose tough new regulations to

guard against the threat of a terrorist attack at high-risk chemical facilities.

[From the New York Times, January 28, 1985]

THE BHOPAL DISASTER: HOW IT HAPPENED

(By Stuart Diamond)

The Bhopal gas leak that killed at least 2,000 people resulted from operating errors, design flaws, maintenance failures, training deficiencies and economy measures that endangered safety, according to present and former employees, company

technical documents and the Indian Government’s chief scientist.

Those are among the findings of a 7-week inquiry begun by reporters of The New

York Times after the December 3 leak of toxic methyl isocyanate gas at a Union

Carbide plant in the central Indian city of Bhopal produced history’s worst industrial disaster, stunning India and the world. Among the questions the tragedy raised

were how it could have happened and who was responsible.

The inquiry involved more than 100 interviews in Bhopal, New Delhi, Bombay,

New York, Washington, Danbury, Conn., and Institute, West Virginia. It unearthed

information not available even to the Union Carbide Corporation, the majority

owner of the plant where the leak occurred, because the Indian authorities have denied corporate representatives access to some documents, equipment and personnel.

EVIDENCE OF VIOLATIONS

The Times investigation produced evidence of at least 10 violations of the standard procedures of both the parent corporation and its Indian-run subsidiary.

Executives of Union Carbide India Ltd., which operated the plant, are reluctant

to address the question of responsibility for the tragedy, in which about 200,000 people were injured. The plant’s manager has declined to discuss the irregularities. The

managing director of the Indian company refused to talk about details of the accident or the conditions that produced it, although he did say that the enforcement

of safety regulations was the responsibility of executives at the Bhopal plant.

When questioned in recent days about the shortcomings disclosed in the inquiry

by The Times, a spokesman at Union Carbide corporate headquarters in Danbury

characterized any suggestion of the accident’s causes as speculation and emphasized

that Union Carbide would not ‘‘contribute’’ to that speculation.
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SUMMARY OF IRREGULARITIES

A review by The Times of some company documents and interviews with chemical

experts, plant workers, company officials and former officials disclosed these and

other irregularities at Bhopal:

• When employees discovered the initial leak of methyl isocyanate at 11:30 P.M.

on Dec. 2, a supervisor—believing, he said later, that it was a water leak—decided

to deal with it only after the next tea break, several workers said. In the next hour

or more, the reaction taking place in a storage tank went out of control. ‘‘Internal

leaks never bothered us,’’ said one employee. Indeed, workers said that the reasons

for leaks were rarely investigated. The problems were either fixed without further

examination or ignored, they said.

• Several months before the accident, plant employees say, managers shut down

a refrigeration unit designed to keep the methyl isocyanate cool and inhibit chemical

reactions. The shutdown was a violation of plant procedures.

• The leak began, according to several employees, about two hours after a worker

whose training did not meet the plant’s original standards was ordered by a novice

supervisor to wash out a pipe that had not been properly sealed. That procedure

is prohibited by plant rules. Workers think the most likely source of the contamination that started the reaction leading to the accident was water from this process.

• The three main safety systems, at least two of which, technical experts said,

were built according to specifications drawn for a Union Carbide plant at Institute,

W.Va., were unable to cope with conditions that existed on the night of the accident.

Moreover, one of the systems had been inoperable for several days, and a second

had been out of service for maintenance for several weeks.

• Plant operators failed to move some of the methyl isocyanate in the problem

tank to a spare tank as required because, they said, the spare was not empty as

it should have been. Workers said it was a common practice to leave methyl

isocyanate in the spare tank, though standard procedures required that it be empty.

• Instruments at the plant were unreliable, according to Shakil Qureshi, the

methyl isocyanate supervisor on duty at the time of the accident. For that reason,

he said, he ignored the initial warning of the accident, a gauge’s indication that

pressure in one of three methyl isocyanate storage tanks had risen fivefold in an

hour.

• The Bhopal plant does not have the computer system that other operations, including the West Virginia plant, use to monitor their functions and quickly alert the

staff to leaks, employees said. The management, they added, relied on workers to

sense escaping methyl isocyanate as their eyes started to water. That practice violated specific orders in the parent corporation’s technical manual, titled ‘‘Methyl

Isocyanate,’’ which sets out the basic policies for the manufacture, storage and

transportation of the chemical. The manual says: ‘‘Although the tear gas effects of

the vapor are extremely unpleasant, this property cannot be used as a means to

alert personnel.’’

• Training levels, requirements for experience and education and maintenance

levels had been sharply reduced, according to about a dozen plant employees, who

said the cutbacks were the result, at least in part, of budget reductions. The reductions, they said, had led them to believe that safety at the plant was endangered.

• The staff at the methyl isocyanate plant, which had little automated equipment,

was cut from 12 operators on a shift to 6 in 1983, according to several employees.

The plant ‘‘cannot be run safely with six people,’’ said Kamal K. Pareek, a chemical

engineer who began working at the Bhopal plant in 1971 and was senior project engineer during the building of the methyl isocyanate facility there 8 years ago.

• There were no effective public warnings of the disaster. The alarm that sounded

on the night of the accident was similar or identical to those sounded for various

purposes, including practice drills, about 20 times in a typical week, according to

employees. No brochures or other materials had been distributed in the area around

the plant warning of the hazards it presented, and there was no public education

program about what to do in an emergency, local officials said.

• Most workers, according to many employees, panicked as the gas escaped, running away to save their own lives and ignoring buses that sat idle on the plant

grounds, ready to evacuate nearby residents.

A TOP PRIORITY

At its headquarters in Danbury, the parent corporation said last month: ‘‘Union

Carbide regards safety as a top priority. We take great steps to insure that the

plants of our affiliates, as well as our own plants, are properly equipped with safeguards and that employees are properly trained.’’
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Over the weekend, in response to questions from The Times, a corporate spokesman described the managers of the Indian affiliate as ‘‘well qualified’’ and cited

their ‘‘excellent record,’’ adding that because of the possibility of litigation in India

‘‘judicial and ethical rules and practices inhibit them from answering questions.’’

However, the spokesman said: ‘‘Responsibility for plant maintenance, hiring and

training of employees, establishing levels of training and determining proper staffing levels rests with plant management.’’

V.P. Gokhale, the chief operating officer of Union Carbide India Ltd., in his first

detailed interview since Dec. 3, would not comment on specific violations or the

causes of the accident, but he said the Bhopal plant was responsible for its own

safety, with little scrutiny from outside experts.

The Indian company has one safety officer at its headquarters in Bombay, Mr.

Gokhale said, but that officer is chiefly responsible for keeping up to date the safety

manuals used at the company’s plants.

Despite the Bhopal plant’s autonomy on matters of safety, it was inspected in

1982 by experts from the parent company in the United States, and they filed a critical report.

In the interview, however, Mr. Gokhale contended that the many problems cited

in the 1982 report had been corrected. ‘‘There were no indications of problems,’’ he

said. ‘‘We had no reason to believe there were any grounds for such an accident.’’

Mr. Gokhale, who become managing director of Union Carbide India in December

1983 and has been with the company 25 years, added: ‘‘There is no way with 14

factories and 28 sales branches all over the country and 9,000 employees that I

could personally supervise any plant on a week-to-week basis.’’

At perhaps a dozen points during a two-hour interview, he read his answers into

a tape recorder, saying he would inform the parent corporation’s Danbury headquarters of what he had said. He also made notes of some of his comments and said

he would send them to Danbury for approval by Union Carbide lawyers.

RELATIONSHIP OF THE COMPANIES

The precise relationship between Union Carbide’s American headquarters and its

Indian affiliate is a subject that Mr. Gokhale and other company officials have refused to discuss in detail. But an understanding of that relationship is a key element in pinpointing responsibility for the disaster at Bhopal. Lawyers from both the

United States and India say it is also central to the lawsuits brought by Bhopal

residents damaged by the accident.

Although the situation remains unclear, some evidence of the relationship between the Indian and American companies has begun to emerge. The United States

corporation has direct representation on the Indian company’s board. J.M. Rehfield,

an executive vice president in Danbury, sits on that board, Mr. Gokhale acknowledged, as do four representatives of Union Carbide Eastern Inc., a division based

in Hong Kong. Mr. Gokhale said the board of directors reviews reports on the Indian

affiliate’s operations.

Moreover, some key safety decisions affecting Bhopal were reportedly made or reviewed at the corporate headquarters in Danbury.

Srinivasan Varadarajan, the Indian Government’s chief scientist, said his staff

had been told by managers of the Bhopal plant that the refrigeration unit designed

to chill the methyl isocyanate, which he said was very small and had never worked

satisfactorily, had been disconnected because the managers had concluded after discussions with American headquarters that the device was not necessary.

A spokesman at corporate headquarters in Danbury, Thomas Failla, said: ‘‘As far

as we have been able to establish, the question of turning off the refrigeration unit

was not discussed with anyone at Union Carbide Corporation.’’

The methyl isocyanate operating manual in use at Bhopal, which was adapted by

five Indian engineers from a similar document written for the West Virginia plant,

according to a former senior official at Bhopal, says: ‘‘Keep circulation of storage

tank contents continuously ‘ON’ through the refrigeration unit.’’

And a senior official of Union Carbide India said few if any people would have

died Dec. 3 had the unit been running because it would have slowed the chemical

reaction that took place during the accident and increased the warning time from

2 hours to perhaps 2 days.

Workers said that when the 30-ton refrigeration unit was shut down, electricity

was saved and the Freon in the coils of the cooling unit was pumped out to be used

elsewhere in the plant.

Mr. Gokhale specifically declined to answer questions about the refrigeration unit.
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EMPLOYEES CRITICIZE MORALE

Many employees at the Bhopal plant described a factory that was once a showpiece but that, in the face of persistent sales deficits since 1982, had lost much of

its highly trained staff, its morale and its attention to the details that insure safe

operation.

‘‘The whole industrial culture of Union Carbide at Bhopal went down the drain,’’

said Mr. Pareek, the former project engineer. ‘‘The plant was losing money, and top

management decided that saving money was more important than safety. Maintenance practices became poor, and things generally got sloppy. The plant didn’t seem

to have a future, and a lot of skilled people became depressed and left as a result.’’

Mr. Pareek said he resigned in December 1983 because he was disheartened

about developments at the plant and because he was offered a better job with Goodyear India Ltd. as a divisional production manager.

Mr. Gokhale termed the company’s cost-cutting campaign simply an effort to reduce ‘‘avoidable and wasteful expenditures.’’

The corporate spokesman in Danbury said Union Carbide has ‘‘an ongoing operations improvement program which involves, among other things, a regular review

of ways to reduce costs.’’ He said Union Carbide India was involved in such programs, ‘‘but the details of those programs at the Bhopal plant are not known to us.’’

The spokesman added: ‘‘Financial information supplied to us indicated that the

Bhopal plant was not profitable.’’

In the absence of official company accounts, details of the accident and its causes

have been provided by technical experts such as Dr. Varadarajan and Mr. Pareek

and by three dozen plant workers, past and present company officials and other people with direct knowledge of the factory’s operations. Many of them agreed to be

interviewed only on condition that they not be identified. Most of the workers knew

little English and spoke in Hindi through an interpreter.

They provided some documents but often relied upon their recollections because

many plant files and even public records have been impounded by the Indian authorities investigating the accident.

POTENTIAL FOR SERIOUS ACCIDENT

Nearly all those interviewed contended that the company had been neither technically nor managerially prepared for the accident. The 1982 inspection report

seemed to support that view, saying the Bhopal plant’s safety problems represented

‘‘a higher potential for a serious accident or more serious consequences if an accident should occur.’’

That report ‘‘strongly’’ recommended, among other things, the installation of a

larger system that would supplement or replace one of the plant’s main safety devices, a water spray designed to contain a chemical leak. That change was never

made, plant employees said, and on Dec. 3 the spray was not high enough to reach

the escaping gas.

The spokesman in Danbury said the corporation had been informed that Union

Carbide India had taken ‘‘all the action it considered necessary to respond effectively’’ to the 1982 report.

Another of the safety devices, a gas scrubber or neutralizer, one of the systems

said to have been built according to the specifications used at the West Virginia

plant, was unable to cope with the accident because it had a maximum design pressure one-quarter that of the leaking gas, according to plant documents and employees.

The third safety system, a flare tower that is supposed to burn off escaping gases,

would theoretically have been capable of handling about a quarter of the volume of

the leaking gas were it not under such pressure, according to Mr. Pareek. The pressure, he said, was high enough to burst a tank through which gases must flow before being channeled up the flare tower. The tower was the second system described

by technical experts as conforming to the specifications used in West Virginia.

In any case, the pressure limitations of the flare tower were immaterial because

it was not operating at the time of the accident.

GUIDELINES FOR DESIGN

A former executive at the Bhopal plant said the parent corporation had provided

guidelines for the design of the scrubber, the flare tower and the spray system. But

detailed design work for those systems and the entire plant, he said, was performed

by Humphreys & Glasgow Consultants Pvt. Ltd. of Bombay, a subsidiary of Humphreys & Glasgow Ltd., a consulting company based in London. The London company in turn is owned by the Enserch Corporation of Dallas.
85

The spokesman in Danbury said the Union Carbide Corporation had provided its

Indian affiliate with ‘‘a process design package containing information necessary

and sufficient’’ for the affiliate to arrange the design and construction of the plant

and its equipment.

The spokesman said the corporation had only incomplete information on the

scrubber, flare tower and other pieces of equipment, and he declined to comment

on their possible relationship to the accident.

It was unclear whether the limitations of the safety systems resulted from the

guidelines provided by the Union Carbide Corporation or from the detailed designs.

Employees at the plant recalled after the accident that during the evening of Dec.

2 they did not realize how high the pressures were in the system. Suman Dey, the

senior operator on duty, said he was in the control room at about 1 P.M. and noticed

that the pressure gauge in one tank read 10 pounds a square inch, about five times

normal. He said he had thought nothing of it.

Mr. Qureshi, an organic chemist who had been a methyl isocyanate supervisor at

the plant for 2 years, had the same reaction half an hour later. The readings were

probably inaccurate, he thought. ‘‘There was a continual problem with instruments,’’ he said later. ‘‘Instruments often didn’t work.’’

LEAK FOUND, BUT TEA IS FIRST

About 11:30 P.M., workers in the methyl isocyanate structure, about 100 feet from

the control room, detected a leak. Their eyes started to water.

V.N. Singh, an operator, spotted a drip of liquid about 50 feet off the ground, and

some yellowish-white gas in the same area. He said he went to the control room

about 11:45 and told Mr. Qureshi of a methyl isocyanate leak. He quoted Mr.

Qureshi as responding that he would see to the leak after tea.

Mr. Qureshi contended in an interview that he had been told of a water leak, not

an escape of methyl isocyanate.

No one investigated the leak until after tea ended, about 12:40 A.M., according

to the employees on duty.

Such inattention merely compounded an already dangerous situation, according to

Dr. Varadarajan, the Government scientist.

He is a 56-year-old organic and biological chemist who holds doctoral degrees from

Cambridge and Delhi universities and was a visiting lecturer in biological chemistry

at the Massachusetts Institute of Technology. He heads the Council of Scientific and

Industrial Research, the Government’s central research organization, which operates 42 national laboratories.

In the 2 weeks after the accident, Dr. Varadarajan said, he and a staff gathered

from the research council questioned factory managers at Bhopal, directed experiments conducted by the plant’s research staff and analyzed the results of those

tests. Some of the experiments were conducted on methyl isocyanate that remained

at the Bhopal plant after the accident, he said, and some were designed to measure

the reliability of testing procedures used at the factory.

Dr. Varadarajan said in a long interview that routine tests conducted at the Bhopal factory used a faulty method, so the substance may have been more reactive

than the company believed.

For example, he said, the Bhopal staff did not adequately measure the incidence

in methyl isocyanate or the possible effects of chloride ions, which are highly reactive in the presence of small amounts of water. Chlorine, of which chloride is an

ion, is used in the manufacture of methyl isocyanate.

Dr. Varadarajan argued that the testing procedure used at Bhopal assumed that

all of the chloride ions present resulted from the breakdown of phosgene and therefore the tests measured phosgene, not chloride ions. Phosgene is used in the manufacture of methyl isocyanate, and some of it is left in the compound to inhibit certain chemical reactions.

When his staff secretly added chloride ions to methyl isocyanate to be tested by

the factory staff, Dr. Varadarajan said, the tests concluded that 23 percent of the

chloride was phosgene.

‘‘As yet,’’ the scientist said, ‘‘Union Carbide has been unable to provide an unequivocal method of distinguishing between phosgene and chloride’’ in methyl

isocyanate.

TESTS ‘‘MADE ROUTINELY’’

The Union Carbide spokesman in Danbury said: ‘‘Tests for chloride-containing

materials, including chloride ions in the tank are made routinely.’’

Dr. Varadarajan said his staff had produced its own hypotheses of the accident’s

causes after Union Carbide failed to provide any, even on request.
86

The spokesman in Danbury said that a team of ‘‘exceptionally well qualified’’

chemists and engineers from Union Carbide had been studying the accident for 7

weeks ‘‘and still has not been able to determine the cause.’’ He added: ‘‘Anyone who

attempts to state what caused the accident would be only speculating unless he has

more facts than we have and has done more analysis, tests and experiments than

we have. Anyone who speculates about the cause of the accident should conspicuously label it as speculation.’’

Dr. Varadarajan’s analysis, along with internal Union Carbide documents and

conversations with workers, offers circumstantial evidence for at least one explanation of what triggered the accident.

There were 45 metric tons, or about 13,000 gallons, of methyl isocyanate in the

tank that leaked, according to plant workers. That would mean the tank was 87 percent full.

Union Carbide’s spokesman in Danbury said the tank contained only 11,000 gallons of the chemical, ‘‘hich was well below the recommended maximum working capacity of the 15,000-gallon tank.’’

However, even that lower level—73 percent of capacity—exceeds the limit set in

the Bhopal operating manual, which says: ‘‘Do not fill MIC storage tanks beyond

60 percent level.’’ MIC is the abbreviation for methyl isocyanate.

And the parent corporation’s technical manual suggests an even lower limit, 50

percent.

The reason for the restrictions, according to technical experts formerly employed

at the plant, was that in case of a large reaction pressure in the storage tank would

rise less quickly, allowing more time for corrective action before a possible escape

of toxic gas.

For 13,000 gallons of the chemical, the amount reported by the plant staff, to have

reacted with water, at least 1.5 tons or 420 gallons of water would have been required, according to Union Carbide technical experts.

But those experts said that an analysis of the tank’s contents had not disclosed

water-soluble urea, or biuret, the normal product of a reaction between water and

methyl isocyanate.

Furthermore, all of those interviewed agreed that it was highly unlikely that 420

gallons of water could have entered the storage tank.

HYPOTHESIS ON THE CAUSE

Those observations led Dr. Varadarajan and his staff to suggest that there may

have been another reaction: water and phosgene. Phosgene, which was used as a

chemical weapon during World War I, inhibits reactions between water and methyl

isocyanate because water selectively reacts first with phosgene.

But Dr. Varadarajan said his study had found that the water-phosgene reaction

produced something not suggested in the Union Carbide technical manual: highly

corrosive chloride ions, which can react with the stainless steel walls of a tank, liberating metal corrosion products—chiefly iron—and a great deal of heat.

The heat, the action of the chloride ions on methyl isocyanate, which releases

more heat, and the chloride ions’ liberation of the metals could combine to start a

runaway reaction, he said.

‘‘Only a very small amount of water would be needed to start a chain reaction,’’

he said, estimating the amount at between one pint and one quart.

Beyond its routine checks for the presence of chloride, the corporate spokesman

said in Danbury, Union Carbide specifies that tanks be built of certain types of

stainless steel that do not react with methyl isocyanate. He did not say whether the

specified types of stainless steel react with chloride ions.

Dr. Varadarajan said his hypothesis had been confirmed by laboratory experiments in which the methyl isocyanate polymerized, or turned into a kind of plastic,

about 15 tons of which was found in the tank that leaked.

OTHER CONTAMINANTS POSSIBLE

But that is not the only possible explanation of the disaster at Bhopal. Although

water breaks down methyl isocyanate in the open air, it can react explosively with

the liquid chemical in a closed tank. Lye can also react with it in a closed tank,

but in the gas neutralizer, or scrubber, a solution of water and lye neutralizes escaping gas. Beyond water and lye, methyl isocyanate reacts strongly, often violently,

with a variety of contaminants, including acids, bases and metals such as iron.

Most of those contaminants are present at the plant under certain conditions.

Water is used for washing and condenses on pipes, tanks and other equipment colder than the surrounding air. Lye, or sodium hydroxide, a base, is sometimes used
87

to clean equipment. Metals are the corrosion products of the stainless steel tanks

used to store methyl isocyanate.

Union Carbide Corporation’s technical manual on methyl isocyanate, published in

1976, recognizes the dangers. It says that metals in contact with methyl isocyanate

can cause a ‘‘dangerously rapid’’ reaction. ‘‘The heat evolved,’’ it adds, ‘‘can generate

a reaction of explosive violence.’’ When the chemical is not refrigerated, the manual

says, its reaction with water ‘‘rapidly increases to the point of violent boiling.’’ The

presence of acids or bases, it adds, ‘‘greatly increases the rate of the reaction.’’

SOURCES OF CONTAMINANTS

Investigators from both Union Carbide India and its parent corporation have

found evidence of at least five contaminants in the tank that leaked, according to

nuclear magnetic resonance spectrographs that were obtained by The New York

Times and analyzed by two Indian technical experts at the request of The Times.

Among the contaminants, a senior official of the Indian company said, were water,

iron and lye.

The water came from the improperly sealed pipe that had been washed, workers

speculated, or perhaps was carried into the system after it had condensed in nitrogen that is used to replace air in tanks and pipes to reduce the chance of fire.

In the days before the accident, workers said, they used nitrogen in an unsuccessful attempt to pressurize the tank that leaked on Dec. 3. The nitrogen is supposed

to be sampled for traces of moisture, but ‘‘we didn’t check the moisture all the time,’’

said Mr. Qureshi, the supervisor.

During the same period, the workers said, they added lye to the scrubber, which

is connected to the storage tanks by an intricate set of pipes and valves that are

supposed to be closed in normal conditions but that workers said were sometimes

open or leaking.

Dr. Varadarajan said he was particularly troubled that, in the absence of what

he considered sufficient basic research on the stability of commercial methyl

isocyanate, it was stored in such large quantities. ‘‘I might keep a small amount of

kerosene in my room for my stove,’’ he said, ‘‘but I don’t keep a large tank in the

room.’’

The Union Carbide Corporation decided that it would be more efficient to store

the chemical in large quantities, former officials of the Indian affiliate said, so that

a delay in the production of methyl isocyanate would not disrupt production of the

pesticides of which it is a component.

Many plants store methyl isocyanate in 52-gallon drums, which are considered

safer than large tanks because the quantity in each storage vessel is smaller. The

chemical was stored in drums at Bhopal when it was imported from the United

States. Tank storage began in 1980, when Bhopal started producing its own methyl

isocyanate.

The Union Carbide technical manual for methyl isocyanate suggests that drum

storage is safer. With large tank storage, it says, contamination—and, therefore, accidents—are more likely. The drums do not typically require refrigeration, the manual says. But it cautions that refrigeration is necessary for bulk storage.

TRAINING WAS LIMITED

Although the storage system increased the risk of trouble at Bhopal, the plant’s

operating manual for methyl isocyanate offered little guidance in the event of a

large leak.

After telling operators to dump the gas into a spare tank if a leak in a storage

tank cannot be stopped or isolated, the manual says: ‘‘There may be other situations

not covered above. The situation will determine the appropriate action. We will

learn more and more as we gain actual experience.’’

Some of the operators at the plant expressed disatisfaction with their own understanding of the equipment for which they were responsible.

M.K. Jain, an operator on duty on the night of the accident, said he did not understand large parts of the plant. His 3 months of instrument training and 2 weeks

of theoretical work taught him to operate only one of several methyl isocyanate systems, he said. ‘‘If there was a problem in another MIC system, I don’t know how

to deal with it,’’ said Mr. Jain, a high school graduate.

Rahaman Khan, the operator who washed the improperly sealed pipe a few hours

before the accident, said: ‘‘I was trained for one particular area and one particular

job. I don’t know about other jobs. During training they just said, ‘These are the

valves you are supposed to turn, this is the system in which you work, here are the

instruments and what they indicate. That’s it.’ ’’
88

IT WAS NOT MY JOB

As to the incident on the day of the accident, Mr. Khan said he knew the pipe

was unsealed but ‘‘it was not my job’’ to do anything about it.

Previously, operators say, they were trained to handle all five systems involved

in the manufacture and storage of methyl isocyanate. But at the time of the accident, they said, only a few of about 20 operators at Bhopal knew the whole methyl

isocyanate plant.

The first page of the Bhopal operating manual says: ‘‘To operate a plant one

should have an adequate knowledge of the process and the necessary skill to carry

out the different operations under any circumstances.’’ Part of the preparatory process was ‘‘what if’’ training, which is designed to help

technicians react to emergencies. C.S. Tyson, a Union Carbide inspector from the

United States who studied the Bhopal plant in 1982, said recently that inadequate

‘‘what if’’ training was one of the major shortcomings of that facility.

Beyond training, workers raised questions about lower employment qualifications.

Methyl isocyanate operators’ jobs, which once required college science degrees, were

filled by high school graduates, they said, and managers experienced in dealing with

methyl isocyanate were often replaced by less qualified personnel, sometimes transfers from Union Carbide battery factories, which are less complex and potentially

dangerous than methyl isocyanate operations.

MAINTENANCE TEAM REDUCED

The workers also complained about the maintenance of the Bhopal plant. Starting

in 1984, they said, nearly all major maintenance was performed on the day shift,

and there was a backlog of jobs. This situation was compounded, the methyl

isocyanate operators said, because since 1983 there had been 6 rather than 12 operators on a shift, so there were fewer people to prepare equipment for maintenance.

As a result of the backlog, the flare tower, one of the plant’s major safety systems,

had been out of operation for 6 days at the time of the accident, workers said. It

was awaiting the replacement of a 4-foot pipe section, they said, a job they estimated would take 4 hours.

The vent gas scrubber, the employees said, had been down for maintenance since

October 22, although the plant procedures specify that it be ‘‘continously operated’’ until the plant is ‘‘free of toxic chemicals.’’ The plant procedures specify that the chiller must be operating whenever there

is methyl isocyanate in the system. The Bhopal operating manual says the chemical

must be maintained at a temperature no higher than 5 degrees centigrade or 41 degrees Fahrenheit. It specifies that a high temperature alarm is to sound if the methyl isocyanate reaches i 1 degrees centigrade or 52 degrees Fahrenheit.

But the chiller had been turned off, the workers said, and the chemical was usually kept at nearly 20 degrees centigrade, or 68 degrees Fahrenheit. They said plant

officials had adjusted the temperature alarms to sound not at 11 degrees but at 20

degrees centigrade.

That temperature, they maintained, is well on the way to methyl isocyanate’s boiling point, 39.1 degrees centigrade, or 102.4 degrees Fahrenheit. Moreover, Union

Carbide’s 1976 technical manual warns specifically that if methyl isocyanate is kept

at 20 degrees centigrade a contaminant can spur a runaway reaction. The manual

says the preferred temperature is 0 degrees centigrade, or 32 degrees Fahrenheit.

If the refrigeration unit had been operating, a senior official of the Indian company said, it would have taken as long as 2 days, rather than 2 hours, for the methyl isocyanate reaction to produce the conditions that caused the leak. This would

have given plant personnel sufficient time to deal with the mishap and prevent

most, if not all, loss of life, he said.

The methyl isocyanate operating manual directs workers unable to contain a leak

in a storage tank to dump some of the escaping gas into a 13,000-gallon tank that

was to remain empty for that purpose. But the workers on duty said that during

the accident they never opened the valve to the spare tank, and their supervisors

never ordered them to do so. The workers said they had not tried to use the spare

tank because its level indicator said it was 22 percent full and they feared that hot

gas from the leaking tank might spark another reaction in the spare vessel.

The level indicator, according to the operators on duty that night, was wrong. The

spare tank contained only 437 gallons of methyl isocyanate, not the 3,300 gallons

indicated by the gauge.

Nonetheless, standard procedures had been violated. The operating manual says,

‘‘Always keep one of the storage tanks empty. This is to be used as dump tank during emergency.’’ It provides that any tank less than 20 percent full be emptied completely.
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The spokesman in Danbury said, ‘‘Our investigators did find some MIC in a spare

tank,’’ adding: ‘‘We do not know when and how the MIC got into the spare tank.’’

[From the Los Angeles Times, January 6, 1985]

FLAWS FOUND IN EMERGENCY PLANS NEAR TOXIC PLANTS

(By Richard T. Pienciak)

It is known as Chemical Valley, a 20-mile stretch of poison makers squeezed into

a narrow chasm plagued by a slow breeze and frequent fog.

The region is filled with chemical giants such as Monsanto, Allied Chemical, E.I.

duPont de Nemours, Exxon, FMC and Union Carbide—members of an industrial

club that claims the world’s best safety record but is also burdened with the world’s worst industrial accident.

Until a Dec. 3 leak of methyl isocyanate from a Union Carbide facility in India

killed more than 2,000 persons and left 60,000 injured, MIC also had been produced

at a Carbide plant here.

Since then, many of the valley’s 250,000 residents, and no doubt millions more

clustered around other U.S. chemical centers, have been wondering how they would

fare in such a crisis.

An Associated Press study of several regions with large concentrations of chemical

plants indicates that emergency plans in those areas often lack the coordination and

resources needed to make them workable.

Emergency plans often lack the coordination and resources to make them workable.

While emergency preparedness around nuclear plants is required and supervised

by the Federal Emergency Management Agency, no Federal regulations require

plans for areas near chemical facilities.

Frequently, there are lengthy, elaborate plans, but they do not tell the general

public where to go and what to do if an evacuation is necessary. In West Virginia,

for example, there are no provisions for evacuating the elderly, schoolchildren, prisoners or persons without autos.

So-called transportation plans are more like traffic plans, detailing where police

would stand to direct fleeing residents and to block roads approaching the disaster.

The Associated Press found that participation of chemical and oil refining companies in local emergency planning is usually voluntary, with State and county officials rarely having the statutory ability, or expertise, to oversee existing industry

plans.

Plans for the public are not specific about possible emergency sites or kinds of incidents. Local officials generally do not know what kinds of chemicals are in the

plants or what damage they are capable of inflicting.

In a crisis, the decisions of if and when the public should be informed about an

explosion or leak are generally left to the discretion of industry.

For the most part, chemical companies face no fines or other disciplinary measures for inadequate emergency planning or for failing to inform the public when

events dictate they should.

In all, many of the communities seem to have an attitude of ‘‘it can’t happen

here.’’ Nowhere are the problems with emergency preparedness more apparent than

in Chemical Valley, a region filled with phosgene, chlorine and a variety of phenols.

Chemical Valley runs eastward through Kanawha County from Nitro, a town

named for its nitroglycerin production in World War I, past Institute and the State

capital of Charleston and on to Belle.

‘‘POOR VENTILATION’’

The wind usually runs slow and to the east, from the largest plants toward the

major population centers. The valley’s ‘‘ventilation is historically poor,’’ said Carl G.

Beard III, director of the State Air Pollution Control Commission. ‘‘Air stagnation

is frequent.’’ The valley has four general emergency plans—one each for the State

police, State emergency services, the county and the industrial emergency council—

and one for each major plant as well.

The county plan emphasizes protection from nuclear fallout after an enemy attack. The State plan says ‘‘the primary responsibility for evacuation lies with local

government.’’ At times, the plans contradict each other, especially on the length and

type of warning sirens.

The few evacuation drills held are only for plant employees. The general public

doesn’t participate.
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‘‘DIFFERENT SOUNDS’’

‘‘To refer to it as an evacuation plan is a misnomer. It’s pathetic,’’ said Donald

Wilson, a schoolteacher from Institute. ‘‘You’re supposed to listen to a number of different sounds, go outside and sense the wind, and then get involved in a lot of traffic.’’ Under the plans, many emergency duties would fall on local fire departments,

the overwhelming majority of which are volunteer squads lacking the specialized

equipment needed to cope with a major chemical explosion or fire.

One volunteer team has four gas masks for 12 men.

‘‘You can’t ask people who fund themselves on bake sales and community suppers

to finance the purchase of this type of equipment. We’re talking about very sophisticated, expensive equipment,’’ Rep. Barbara Mikulski (D-Md.) said.

In some other parts of the country, things are little better.

Two years ago officials near Taft, La.—situated along a 120-mile stretch of the

Mississippi River dubbed Chemical Row—were able to evacuate about 17,000 persons in 21⁄2 hours after a Union Carbide plant exploded.

DANGER AT PLANT

But a reconstruction of the accident compiled for the owners of a nearby nuclear

plant showed that Union Carbide knew for hours that its tank was in danger of

blowing up but delayed before informing local emergency preparedness officials.

In addition, the reconstruction showed, local Union Carbide workers were calling

home to order their families to evacuate more than 2 hours before the first call to

emergency officials.

In Texas’ Golden Triangle, a dense complex of oil refineries and petrochemical

plants east of Houston, the role of coordinating agency seems to change from crisis

to crisis.

‘‘There still is no clear delineation of who does what. It still has not been, in my

mind, ultimately resolved,’’ said Michael Peters, a regional director with the Texas

Air Control Board. ‘‘There is no real coordinating agency in that sense. There’s nothing really written down, no formalized plan.’’

Several Members of Congress got a glimpse of Chemical Valley’s emergency preparedness at a hearing last month at West Virginia State College, which is adjacent

to the Union Carbide facility.

Mikulski asked plant manager Hank J. Karawan to explain the county plan,

which she held up in her hand. ‘‘I’m unaware of that plan. I know about the

KVIEPC plan,’’ Karawan said, referring to the Kanawha Valley Industrial Emergency Planning Council plan.

‘‘One group thinks that this is the plan, and the other group thinks the other one

is the plan,’’ Mikulski said.

In September, Union Carbide, the region’s largest employer with 7,000 jobs, sent

a letter telling residents near its Institute plant to go outside and ‘‘check wind direction’’ if they hear continuing blasts from the plant steam whistle.

‘‘If wind is blowing from plant toward you, immediately evacuate by going crosswind. In the case of a gas release you should be easily able to walk far enough crosswind to get away from the fumes,’’ the letter said.

SWIMMING RIVER

But citizens point out that, if the wind is blowing in its usual eastward direction,

crosswind would mean swimming the Kanawha River or scrambling up a mountain

ridge.

At a public meeting attended by about 100 residents a week after the leak in

India, State health director Dr. L. Clark Hansbarger suggested that residents, before going outside, put wet cloths over their mouths. He also said: ‘‘This area’s emergency plan is a model for the State and indeed the nation.’’ The Charleston Gazette

expressed its pique in an editorial, comparing the plan to that of some underdeveloped country that ‘‘prepared its aspiring astronauts for the rigors of space by

requiring them to occupy metal drums and old automobile tires and rolling them

down hillsides.’’ It is no surprise that, with so many emergency plans, there is confusion over the meaning of each plan’s warning signals.

Union Carbide, for example, tells residents that in the event of an emergency with

possible offsite consequences it will sound its steam whistle for 2 seconds every 3

seconds for a 2-minute period, followed by 2-second blasts every 30 seconds until

the emergency ends.
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OTHER POSSIBILITIES

There are three other alarm possibilities, according to a copy of the county emergency plan provided by William H. White, director of Kanawha County Emergency

Services.

First comes the nuclear attack warning signal, ‘‘a 3-to-5 minute wavering tone on

sirens, or a series of short blasts on horns or other devices signifying that an actual

attack against the county has been detected. This signal shall be used for no other

purpose or meaning.’’ However, a penned addition says the attack warning signal

will also be used for ‘‘disaster evacuation.’’ Another penned addition says the attackevacuation signal will be ‘‘3 off—3 on—3 off.’’ The third possibility mentioned in the

county plan is a 3-to-5 minute steady tone signal ‘‘to gain public attention in the

event of a peacetime emergency.’’ In the midst of the congressional hearing, a loud

siren started to blow. ‘‘What do we do now?’’ Rep. Gerry Sikorski (D-Minn.) asked. ‘‘I think that’s the campus whistle, but I’m not sure,’’ said Paul Nuchims, an art

professor who was testifying at the time.

No one was timing the length of the alarm.

‘‘Do you have sirens often?’’ Rep. Henry A. Waxman (D-Los Angeles), the subcommittee chairman asked. ‘‘That’s the point,’’ said Nuchims, who lives 300 yards from the Carbide plant. ‘‘We

hear all sorts of sirens all the time. We don’t understand which ones are which, so

what happens is we do nothing.’’ Fifteen minutes later, enough time for any leaking gas to have reached the campus, it was announced that the alarm had sounded to call members of the Institute

Volunteer Fire Department to a house fire.

[From the Baltimore Sun, October 17, 2001]

WHEN CHEMICAL SAFETY IS A MATTER OF SECURITY

(By Heather Dewar)

Precautions: Steps are being taken to prevent accidents—or attacks—at Baltimore

industrial plants, which could affect the area’s residents.

When a train loaded with dangerous chemicals derailed and caught fire in a

downtown tunnel this summer, Baltimoreans were aghast at the hellish spectacle

of black smoke pouring out of sewer grates and manhole covers. But chemical accident experts looked at the train’s chemical manifest and breathed a sigh of relief.

Thank heaven, they agreed, the accident didn’t involve something really dangerous—like a 90-ton tank car filled with potentially deadly chlorine gas.

Since September 11, emergency planners here and across the country face a far

more unsettling concern: that factories and municipal water and sewage plants

could become targets for terrorists. Their chemical stockpiles can be turned into

weapons—and are sometimes lightly guarded. In Baltimore, as in practically every

other American city, it’s a real concern—one that counter-terrorism planners have

been dealing with ‘‘every day since September 11,’’ said Mayor Martin O’Malley.

Five Baltimore industrial and municipal plants have 90 tons or more of chlorine

on their property at any time, according to reports the facilities provided to the Environmental Protection Agency that were made public last year.

Chlorine, widely used in water and wastewater treatment and in manufacturing,

was the first modern chemical weapon, used by German and British forces to poison

enemy troops en masse during World War I. It is also often released in industrial

accidents, according to the National Response Center, which tracks oil and chemical

spills.

Up to 1.7 million people—nearly two-thirds of those living in the Baltimore metropolitan area—are theoretically within range of the poisonous plume that could result if one of the 90-ton tanks failed, the Baltimore companies’ reports to the EPA

show.

The tanks are double-walled and equipped with safety valves; catastrophic fail- ures are rare—but the consequences would be grave.

In the most-recent such accident, a 90-ton rail car carrying chlorine derailed and

ruptured in the small town of Alberton, Mont., in 1996. One man was killed, 350

people were treated for chlorine inhalation and about 1,000 people were evacuated.

Interstate 90 through the town was closed for 17 days.

Public records on file at EPA headquarters in Washington show that 31 Baltimore-area plants report keeping large amounts of dangerous chemicals. Almost half

are city-owned water and wastewater treatment facilities, which, as in almost every

other community in the country, rely on chlorine for disinfection.
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Managers of 14 of the Baltimore-area facilities said a catastrophic leak at one of

their sites has the potential to injure 100,000 or more people who live within the

plants’ danger zones. The Baltimore-area companies estimated that in smaller accidents, considered more likely, anywhere from two to 2,300 residents would be endangered.

An attack on a U.S. chemical plant probably would not cause enormous numbers

of casualties, said Eric Croddy, a senior researcher at the Monterey Institute of

International Studies. Nonetheless, he said, such an attack could accomplish a terrorist’s goal. ‘‘It would cause a lot of terror and consternation. It wouldn’t necessarily cause a

lot of deaths,’’ said Croddy, who has written a book on chemical and biological warfare that is scheduled to be published next month. ‘‘A terrorist could fail miserably to cause many deaths, but he still could succeed,’’ Croddy said.

Responsible officials have known that chemicals stockpiled in American communities pose a threat to the public at least since 1984, when a leak at a Union Carbide Corp. insecticide plant in Bhopal, India, killed more than 2,000 people. In the

wake of that accident, Congress passed laws requiring companies to tell the public

about their chemical stockpiles and help communities reduce the risk from accidents.

But in most places, chemical accident prevention and preparedness was a low priority, and progress was slow. ‘‘We haven’t had our Bhopal yet in the United States,’’ said Fred Millar, an independent chemical safety consultant.

But last month, the nation experienced something even more traumatic: Terrorists ‘‘turned our infrastructure against us as a weapon,’’ in Millar’s words. Suddenly,

protecting the public from dangerous chemicals became an urgent matter.

In the weeks since the jetliner attacks on the World Trade Center and Pentagon,

government and industry have scrambled to improve security around hazardous

chemical stockpiles. Uniformed police officers now help guard factory entrances, and

gates that previously had been left open are padlocked.

O’Malley, who has vowed to make Baltimore a national model for counter-terrorism, said he believes the odds of an attack on a chemical plant are slim. ‘‘More people are going to be killed by car accidents, cancer or heart disease than

by a chemical plume,’’ he said.

Environmental lawyer Rena Steinzor, who has been pushing the city to improve

emergency preparedness, contends that until now, local officials have been complacent about the risk of a large chemical incident, whether accidental or deliberate. ‘‘The city has had a series of wake-up calls over the years,’’ Steinzor said, ‘‘and

lately the alarms have gotten louder. This is major unfinished business.’’ For years,

Federal anti-terrorism studies acknowledged that industrial plants are potential

‘‘soft targets’’ for attackers.

A study in 1999 by the General Accounting Office called such an assault somewhere in the United States ‘‘likely’’—though it noted that uncontrollable factors like

weather would probably limit the damage.

‘‘Toxic industrial chemicals can cause mass casualties and require little if any expertise or sophisticated methods,’’ the GAO study said. The office said the FBI

should assess the likelihood of terrorist attacks using industrial chemicals.

In 1999, Congress ordered the Justice Department to find out how vulnerable U.S.

chemical companies are to terrorist attack. They were to report back by last August.

But despite repeated prodding from senators, the Justice Department had not

begun gathering the information before September 11, blaming a lack of funds and

confusion about the deadline. Lawmakers are still waiting to hear from the Justice

Department, said a spokesman for Sen. James M. Jeffords, the Vermont Independent who is chairman of the Environment and Public Works Committee.

The only existing Federal study of chemical plants’ vulnerability to terrorism was

conducted in 1999 by the Department of Health & Human Services’ Agency for

Toxic Substances and Disease Registry, which specializes in the health effects of

hazardous substances.

Agency staffers surveyed two unnamed communities where chemicals are made

and reported that antiterrorism measures in government buildings were ‘‘excellent,’’

but ‘‘security at chemical plants ranged from fair to very poor’’ and at chemical-shipping sites was ‘‘poor to non-existent.’’ ‘‘Most security gaps were the result of complacency and lack of awareness of the threat,’’ the agency reported.

The study found that many plants failed to take simple precautions—for example,

they were not fenced or did not do criminal background checks of would-be workers.

Long before the prospect of terrorists turning factories into chemical weapons surfaced, Congress required companies to go public with ‘‘worst-case’’ accident scenarios
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describing what would happen if a large amount of their most dangerous chemical

escaped. Local companies’ reports, filed with the EPA and made public last year,

show that most people in the Baltimore area live within more than one chemical

plant’s danger zone.

The EPA classifies 245 chemicals as ‘‘extremely hazardous’’—that is, capable of

causing injury or death. The most common threats to Baltimore-area residents are

two chemicals that practically everyone has at home in much-diluted form: chlorine

and ammonia.

Undiluted chlorine and ammonia are gases that can be stored safely only under

pressure, as liquids. When exposed to air, they vaporize and form thick clouds that

cling to the ground. Moderate doses can burn the eyes, skin, eyes, throat and lungs.

Large doses can cause permanent lung damage or death.

In the reports, 18 of the 31 Baltimore-area facilities said the worst accident that

could occur at their plants involved chlorine. Eight companies said their most dangerous chemical was ammonia, widely used in industrial refrigeration. ‘‘Chlorine and ammonia account for at least 75 percent of the safety concerns in

this region and any other region around the country,’’ said William McHale, head

of chemical accident prevention for the EPA’s MidAtlantic office.

Troubling as they are, the reports don’t provide a full picture of the risks. At least

40 more plants have dangerous chemicals onsite m large amounts—but not enough

to require Federal reporting. And many classes of chemicals, like gasoline and propane, are exempt from reporting.

The worst-case reports were meant to teach residents about the risks in their

back yards, help emergency workers plan for the greatest dangers and encourage

companies to reduce hazards.

Safety experts say the law was beginning to accomplish those goals.

‘‘Every company that has submitted an (accident scenario)—all of them have

changed their process in some way,’’ McHale said. For example, South Baltimore’s Condea Vista Co., which makes ingredients used in household detergents, is phasing

out chlorine.

The company filed a worst-case report that said 1,560,000 people are in the danger zone of the most lethal accident possible at the plant. Four other companies reported a similar number of people living in their danger zones.

Within the next few weeks, Condea Vista’s process is ‘‘going to be a different reaction that does not use chlorine or any other hazardous chemical,’’ said Dave Mahler,

the plant’s environmental officer.

Another large manufacturer, Grace Davison, a Baltimore plant that is part of

chemical giant W.R. Grace & Co., has eliminated chlorine and reduced amounts of

several other chemicals, plant managers said.

Chemical executives dislike the worst-case scenarios, which they say are unrealistic and alarmist.

The guidelines require the companies to assume a rapid, complete spill of their

most dangerous chemical, figure out how far its toxic plume might travel, and draw

a circle that includes everything in that range.

Such an incident ‘‘is physically impossible,’’ Mahler said. Most toxic chemicals

don’t vaporize that quickly, he said, and the wind would limit the spread of a poisonous vapor cloud.

‘‘A plume is going to go in one direction in a rather narrow path, and you’re talking about a small fraction of people in the path of the plume,’’ he said.

City firefighters agreed.

‘‘When you look at worst-case scenarios, you’re looking at a situation that is not

very credible,’’ said Battalion Chief Hector L. Torres, spokesman for the Baltimore

Fire Department. In a cash-strapped city, planning for a worst-case accident ‘‘will

have us devoting resources in a way that just is not feasible, just not effective.’’

Chemical manufacturers responded to the law by trying to limit public access to information about plants’ accident scenarios. In 1999, an industry association urged

the EPA not to post companies’ worst-case scenarios or accident histories on the

Internet, citing concerns about terrorism.

With the FBI sharing the industry’s worry, the EPA compromised: Though most

of the information was available online until recently, the public can see the worstcase scenarios only at EPA or Justice Department reading rooms, where they are

kept under tight security.

Within days of the attacks of September 11, the EPA removed companies’ chemical accident scenarios from its Web site. The American Chemistry Association, representing 200 manufacturers, has urged the EPA to close the reading rooms as well.

Amy Smithson, a chemical and biological weapons expert at the Henry L. Stimson

Institute, a Washington think tank, called the decision to drop the information from

the Internet ‘‘a no-brainer.’’ ‘‘Slapping information about these facilities up on the
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World Wide Web so they could be searched by chemical and by geographic location

was a very bad idea,’’ Smithson said.

But chemical-safety advocates take a different view.

‘‘This is real head-in-the-sand-type stuff,’’ Millar said. ‘‘If we continue to keep citizens in the dark, we’re just going to add to their anxiety. We really need to have

very measurable, visible improvements in security.’’ Before September 11, neither

the Federal Government nor the chemical industry association offered chemical companies and public utilities much guidance on counter-terrorism measures.

The industry association, which has voiced terrorism concerns since the mid1990s, is working on a counterterrorism manual. On the day of the attacks, the

group forwarded to its members an EPA bulletin urging stepped-up security.

Association spokesman Jeff Van said most U.S. chemical plants added guards and

patrols, restricted visitors, and began searching packages and shipments.

Some began running background checks on their own workers and required their

shippers to do checks on their employees as well. Others limited cleaning crews’ access. Many are in regular contact with local FBI offices, Van said.

‘‘We’ve tried to, as one security professional put it, ‘screw the lid down,’ ’’ Van said.

The EPA is 2 years behind schedule in preparing counter-terrorism recommendations for water utilities, which could face attacks on chemical supplies or on wells

and reservoirs. The report should be finished this winter, EPA’s McHale said.

In the meantime, utility managers in the Middle Atlantic States are calling for

advice. ‘‘And I’m saying, ‘monitor your reservoirs and dams and make sure the chlorine supplies are locked up.’ ’’ McHale said.

The Agency for Toxic Substances and Disease Registry, in its 1999 report, recommended a laundry list of security measures. They include routine searches of people, vehicles and bags, video surveillance, chemical leak alarms and earthen barriers

around chemical tanks to protect them and absorb an explosion or spill.

The report also recommended design changes like moving chemical tanks away

from roads and reducing or eliminating the use of hazardous chemicals.

Some Baltimore facilities have taken those steps, though others lack basic precautions like fences, city officials said.

‘‘You have to recognize these plants were built in a different time in America

when these concerns didn’t exist,’’ said Louis R. Anemone, the former New York police official who is the city’s counter-terrorism adviser.

Anemone, hired in the wake of the attacks, said he has recommended security improvements to local plant managers.

‘‘I’ve met with absolutely no resistance,’’ he said. ‘‘They are all aware of the issues,

and they’ve all been extremely cooperative.’’ Some city-owned facilities that use

large amounts of chlorine, like the Back River Wastewater Treatment Plant, have

sophisticated security systems.

The plant’s chlorine tank and valves are monitored by television cameras, tested

at the start of every eighthour shift and surrounded by ultra-sensitive sensors that

sound alarms if they pick up traces of chlorine in the air, plant manager Nick

Frankos said.

Similar measures are in place at drinking-water treatment plants, city Department of Public Works officials said.

O’Malley said police officers are posted at all treatment facilities but that more

needs to be done.

‘‘There’s places where tanks may need to be moved,’’ the mayor said. ‘‘There’s

other places where buildings may need to be built to enclose some equipment. We’re

going to have to invest in perimeter security, smart fences’’ and other measures.

It’s too soon to say how long the changes might take, how much they might cost

and where the money would come from, the mayor said.

Ralph Cullison, who is in charge of environmental services for the department’s

water and wastewater plants, said the utility is considering replacing gaseous chlorine with a less-dangerous, watered-down version.

Many utilities are getting rid of gaseous chlorine for safety reasons even though

the substitutes are more expensive, Cullison said.

‘‘We all feel that now that we are in a different world, it will be easier to get the

support for spending the money to convert than it would have been’’ before September 11, he said. ‘‘We were going that way anyway.’’ To the extent that the past

is a guide to the future, accidents are far more common than assaults on chemical

plants.

During the 1990s there were two publicly disclosed plots to attack U.S. chemical

plants, the General Accounting Office reported. Both involved homegrown criminals,

not international terrorists, and the FBI foiled both before anyone was harmed.
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Meanwhile, a Federal survey of 13 states reported that 36 people died and 537

communities were evacuated because of chemical accidents in 1998, the most recent

year for which data are available.

Smithson, the chemical terrorism expert, estimated there are 60,000 chemical accidents a year in the United States. In the past few months in Baltimore, three

chemical accidents, including the train derailment, have forced residents from their

homes, closed main streets, filled downtown with smoke and sent manhole

coveflying.

‘‘I am hoping that in our concern about terrorism we address a far more ubiquitous threat of accidents,’’ said Steinzor, the environmental lawyer.

‘‘From a public health point of view it doesn’t matter what the cause is,’’ she said.

‘‘It only matters what you do to protect people.’’

[From the Houston Chronicle, July 23, 2001]

TUNNEL DAMAGE ASSESSED AFTER DERAILMENT, BLAZE

BALTIMORE—Crews worked to pull the last smoldering boxcars from a downtown

tunnel Sunday, days after a train derailment and fire shut down parts of the city

and disrupted Internet service across the country.

Above the 11⁄2-mile tunnel, a broken 40-inch water main continued gushing onto

downtown streets and public works officials said damage to the street and tunnel

may be significant.

City crews said the leak—which has spewed at least 60,000 gallons of water—cannot be stopped until the fire is extinguished and the tunnel walls are declared safe.

The water main break was just feet above the 106-year-old tunnel, said public works

director George Winfield.
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RESPONSES OF RENA I. STEINZOR TO ADDITIONAL QUESTIONS FROM SENATOR CORZINE

Question 1. The testimony of Fred Webber points out that there are many existing

safety requirements that apply to chemical facilities. In your view, do the authorities and security and hazard reduction measures contained in S. 1602 exist elsewhere in current law?

Response. No, they do not. S. 1602 imposes a deadline for the issuance of comprehensive regulations by EPA that would require chemical facilities to reduce hazards by eliminating the use of acutely toxic chemicals as a remedy of first—not

last—resort. There is no other provision in Federal law that requires facilities to

eliminate the hazard if at all possible, as opposed to making plans to contain it in

the event of a terrorist attack, or, for that matter, a routine accident.

Question 2. The American Chemistry Council and SOCMA testified about the security and transportation guidelines that they have developed and are working to

implement. What do you think of the adequacy of the guidelines? Do you think that

a voluntary approach to implementing such guidelines would be more effective than

the regulatory approach embodied in S. 1602?

Response: I have reviewed the ACC/SOCMA guidelines with great care and was

unable to find a single allusion to the possibility that the best way to prevent grave

injury in the event of a terrorist attack is to remove the hazardous targets from a

facility. It is intuitively obvious that no amount of site security will prove as effective as substituting chemicals that will not prove acutely toxic when released, no

matter what the cause. This obvious solution should be the primary focus of any

reevaluation of a facility’s vulnerability in the wake of the tragedies that began on

September 11, 2001. The guidelines’ refusal to even mention the possibility of eliminating the hazard as an alternative would be laughable if the underlying subject

was not so very serious.

Because the chemical industry exhibits such a blind spot with respect to the absolutely crucial option of hazard reduction, we can have no faith in the effectiveness

of voluntary measures. It is extraordinarily unlikely that even a majority of the

hundreds of thousands of chemical facilities will strengthen site security voluntarily,

especially given the downturn in the economy and the relative expense of such

measures. Even if the majority did implement the guidelines, however, the omission

of hazard reduction as the remedy of first resort would squander our opportunity

to act to avert another disaster.

It is worth noting that most of the terrorist attacks launched on American targets

in the last decade or two have involved driving trucks full of explosives up to a facility’s gates and detonating these mobile bombs. No amount of barbed wire, security guards, expensive lighting, or warning systems can prevent such attacks. The

only way to safeguard public health is to ensure that if they do occur, the substances targeted by the explosion are the least toxic that can be used to carry out

the facility’s production needs.

STATEMENT OF THE AMERICAN PETROLEUM INSTITUTE

INTRODUCTION

API is pleased to provide a statement for the record on S. 1602, the Chemical Security Act of 2001. The American Petroleum Institute (API) is the leading national

association for the domestic U.S. petroleum industry. API’s membership includes

over 400 companies involved in all aspects of petroleum operations including exploration and production, refining, pipeline, marine and on-road transportation activities.

API opposes S. 1602. It will have an adverse impact on the petroleum industry

and on the American economy. It will misdirect critical resources that should be applied to real security-risk reduction activities and it would not improve the safety

or the security of our nation’s energy supply or the welfare of our citizens.

The bill covers all petroleum facilities in the U.S. Oil and gas production facilities,

pipelines, refineries, bulk terminals and storage facilities, service stations and all

other installations that produce, refine, process, transport, store or handle crude oil

and petroleum products or chemicals will be covered by this bill. In addition to stationary sources, the bill covers containers, vessels, tanks trucks, rail tank cars, and

marine vessels. This overly broad bill adds yet another unnecessary and overlapping

layer of regulations on the energy infrastructure at a time when our industry is

doing all it can to address short and long term adequacy of fuel supplies and other

petroleum products for this nation.
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BACKGROUND

The petroleum industry is a critical part of our nation’s energy infrastructure and

continues to make a significant contribution to America’s economic growth and national security. In addition to manufacturing consumer fuel products such as natural gas, gasoline and home heating fuel, our industry provides the feedstocks used

to make everything from the clothes we wear, to the military equipment that helps

protect our American way of life. We do this in a safe and environmentally compatible manner. Over the past 10 years, the demand for energy products has pushed

capacity to record levels, while providing the consumer with affordable products at

near record low prices. During this same time, the safety record in the industry has

improved by over 50 percent. In fact, Bureau of Labor Statistics data show that the

petroleum industry is one of the safest industries in America.

The petroleum industry has a long history of developing effective security practices to protect its critical infrastructure. The recent events of September 11th have

further increased the industry’s awareness of the importance of security. Along with

many private initiatives, the industry has developed a trusted partnership with Federal, state and local safety and law enforcement authorities. The industry has recently engaged in an increased level of cooperation with the Federal Government

to evaluate and develop effective security practices. However, in this environment

of heightened sensitivity, we must all avoid overreacting. Any new laws or regulations should address the right issues, focus resources, and provide real security benefit. This statement discusses the current security initiatives our industry is implementing and the shortcomings of S. 1602.

Since September 11th, API member companies have tightened security practices

in the United States. API members include petroleum companies and service and

supply companies with international operations. These companies have expertise in

operating in high-risk parts of the world. U.S. facilities have benefited from that experience by incorporating these security practices into their own operations. Some

examples include: increased perimeter security at fixed-facilities through additional

security guards and surveillance equipment; restricted vehicle access to and from

facilities; and more extensive background checks.

API is also working with several Federal agencies to establish a security network

to streamline communications. Individual companies have established an Energy Information Sharing and Analysis Center (ISAC) that will enable our industry and

members of the intelligence community to share information on incidents, security

practices and near real-time credible threat information in a secure environment.

SHORTCOMINGS OF S. 1602, THE CHEMICAL SECURITY ACT OF 2001

When addressing security in the petroleum industry, security experts from the

Department of Energy, Department of Transportation, Department of Justice and

the Office of Homeland Security should be assembled to consult with members of

the petroleum industry. Following are some of the specific shortcomings of S. 1602:

• S. 1602 reverses the roles of government and industry by providing the EPA

with the authority to dictate appropriate manufacturing practices, while industry is

mandated to prevent terrorism. S. 1602 makes it a crime to be a victim of a terrorist

attack or criminal act.

• S. 1602 focuses on chemical hazards and not risk scenarios posed by terrorism.

September 11th taught us that terrorists select targets based on a number of objectives, not solely on public impact. Principally their targets have included symbols

of American economic and military strength.

• S. 1602 focuses on accidental release prevention practices that are already addressed in existing regulations such as the EPA’s Risk Management Rule, OSHA’s

Process Safety Management Rule, and DOT Hazardous Material Regulations.

• S. 1602 relies on the concept of mandated ‘‘Inherent Safety.’’ Although ‘‘Inherent

Safety’’ sounds good in theory, in practice it is mostly impractical to apply to existing facilities. Changes to part of a petroleum process can have unintended consequences in other parts of the process. Risk shifting has been a common problem

of mandated Inherent Safety. For example, by mandating a reduction of product inventory at a fixed-facility, more product deliveries are needed. While you may reduce the risk of a release to the local community around the facility, you may in

fact increase the overall risk by increasing the number of on-road transportation activities required to maintain the required product feed needed for production.

• S. 1602 mandates product substitution for petroleum products. Product substitution is not practical in our industry. Petroleum products are capable of heating

our homes and powering our vehicles because of their flammable and combustible

properties. At this time, there are no substitutes that do not have similar chemical
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properties. Mandating Inherent Safety will not change the flammable/combustible

properties of these products. • S. 1602 could mandate the use of buffer zones to protect against terrorist attacks. Establishing buffer zones does not prevent terrorism. Buffer zones are a local

government land use practice. In fact, it is not practical in most cases to establish

buffer zones around existing facilities. • S. 1602 could mandate transportation buffer zones that virtually exclude the

movement of petroleum products anywhere within the United States. Though the

bill uses the words ‘‘to extent practicable,’’ it opens the door to local interpretation

of where gasoline transportation could take place and result in impacts to the supply of product to gasoline stations that could be near the ‘‘buffer zones.’’ • DOT must maintain jurisdiction over transportation safety and security issues.

Hazardous materials are moved with a high degree of safety, which can be attributed to the uniform authority of the Hazardous Material Regulations (HMR) across

the country and the expertise of the DOT in writing and enforcing those rules. S.

1602 would create confusion and duplicative roles for EPA and DOT regarding

transportation of hazardous materials and would disrupt the national uniformity of

current DOT regulations. The negative impact on interstate commerce resulting

from variations among state and local regulations would significantly disturb industry operations and complicate compliance obligations while not significantly decreasing the threat of terrorism or criminal acts.

CONCLUSION

S. 1602 is too broad. It identifies all petroleum products as a covered ‘‘substance

of concern’’, and all modes of surface transportation (truck and rail) and all containers (drums, pails, plastic bottles, etc.) as ‘‘chemical sources.’’ The legislation

could extend the definition of a ‘‘substance of concern’’ to a whole new set of petroleum products that are not currently regulated as hazardous materials. The legislation would cover such petroleum products as engine oils and waxes that would not

be attractive as a terrorist target. The expansive nature of this proposal unnecessarily imposes Federal law on industry and does not improve security or public safety.

API opposes S. 1602 because it would have a significant negative impact on the

energy industry and the American economy; would misdirect resources that should

be focused at real security risk reduction; and would not improve the safety or security of our nation’s energy supply or the health and well being of our citizens.

STATEMENT OF WILLIAM CANARY, PRESIDENT AND CHIEF EXECUTIVE OFFICER,

AMERICAN TRUCKING ASSOCIATIONS, INC. (ATA)

I. INTRODUCTION

Good morning Mr. Chairman and members of this subcommittee. My name is William Canary and I am president and CEO of the American Trucking Associations,

Inc. (ATA), with offices located at 2200 Mill Road, Alexandria, Virginia 22314. ATA

is the national trade association of the trucking industry. Through its affiliated

state trucking associations, affiliated conferences and other organizations, ATA represents more than 30,000 trucking companies throughout these United States. I sincerely appreciate the opportunity to speak to this subcommittee today on behalf of

ATA.

Mr. Chairman, in the wake of the September 11 attacks, the U.S. trucking industry has continued to work hard to support America’s goals of keeping our country

and our economy moving forward. I am very proud of this industry’s efforts to keep

America moving. In fact, on the morning of September 11, ATA staff were able to

view from our headquarters the smoke rising from the attack on the Pentagon, and

from the opposite side of the ATA building, they were able to see trucks on the Capital beltway continuing to move America.

As members of this subcommittee know, motor carriers are a critical component

of the United States’ economic strength, with 9 billion tons of freight transported

by intercity and local trucks, representing 68 percent of the total domestic tonnage

shipped. The trucking industry generates revenues of $606 billion annually, equaling almost 5 percent of our GDP, and a figure that represents nearly 87 percent

of all revenues generated by our nation’s freight transportation industry.

As in all other sectors of our country’s economy, the horrific attacks have heightened security concerns in the trucking industry, and even more so after it was recently reported by the FBI that some suspected terrorists had obtained commercial

driver’s licenses (CDLs) to operate large trucks. It appears that motor carriers in-
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volved in transporting hazardous materials may have been, or may be, targeted for

hijackings or theft for use in potential acts of terrorism. Obviously, this is a major

concern to our industry, and I commend you for holding this hearing today to identify ways to address these threats.

In my testimony today, I will communicate ATA’s longstanding involvement in

trucking security issues, including issues associated with the transportation of hazardous materials and sensitive military freight. I also will recommend several potential legislative improvements to S. 1602, as introduced, to enhance security in the

trucking industry without compromising the efficiencies realized through the uniform hazardous materials regulations.

II. ATA’S INVOLVEMENT IN HAZARDOUS MATERIALS TRANSPORTATION SECURITY

ATA and its members are actively involved in providing safe and secure transportation of goods on behalf of customers and their consumers. Since 1982, ATA has

maintained a Council of members dedicated to advancing security and loss prevention issues. The name of this organization has undergone numerous changes since

its inception, and today is known as the Safety & Loss Prevention Management

Council (Safety Council). The Safety Council has two committees, the Security Committee and the Claims and Loss Prevention Committee, that have addressed many

trucking security issues, including driver and vehicle security, cargo security, and

facility security. The committees consist of security directors, many of whom are

former law enforcement personnel, from a broad array of America’s leading motor

carriers. The committees publish guidelines and educational materials to assist

motor carriers to enhance the security of their operations.

Presently, the transportation of hazardous materials must comply with the comprehensive Federal hazardous materials regulations, which are adopted and enforced by the states. Therefore, motor carriers involved with transportation of hazardous materials do work with the states, and their respective permit and registration programs if applicable, to increase transportation safety and prepare for emergency response activities.

Certain classes of hazardous materials are more regulated than others. For instance, high-level nuclear wastes from power plants are closely monitored by several

Federal agencies, including the Department of Energy (DOE) and Department of

Transportation (DOT). Motor carriers involved in moving this material are prescreened and approved by DOE. In fact, the trucking industry played an integral

role in the development of the Commercial Vehicle Safety Alliance’s (CVSA) Level

VI enhanced radioactive transporter inspection criteria, which is specifically designed to afford a high level of driver, vehicle, and load scrutiny prior to the truck

leaving the shipper’s facility.

Military shipments are another category of specific concern. Military shipments

of Security Risk Category I and II, Arms, Ammunition and Explosives (SRC I & II,

AAE), are highly regulated, as are lesser Class I explosive shipments of the Department of Defense (DOD). Prior to transporting these materials, motor carriers must

be approved by the DOD, and after approval, they are closely monitored. Drivers

are carefully selected and must successfully complete security background checks.

Motor carrier terminals must meet certain levels of security as prescribed by the

Military Traffic Management Command (MTMC). And, shipments of SRC I & II

AAE must be transported directly from point of origin to destination with minimal

delay.

Since October 2000, ATA has worked closely with MTMC through ATA’s Government Traffic Policy Committee (prior to October 2000, the now-defunct Explosive

Carriers Conference of the ATA performed that task) on a number of issues regarding safety and security of DOD shipments. Deliberations continue on MTMC’s newest policies and procedures for transportation of SRC I & II AAE, including the recently proposed standards for motor carrier terminals. ATA has provided MTMC

with valuable information on possible security concerns and related solutions. The

trucking industry views these measures as paramount to the safe and efficient

transportation of these materials, and will continue to work with MTMC to see that

AAE shipments arrive securely at their proper destination.

ATA also worked with Sandia Laboratories to gather information for its Department of Justice (DOJ) study entitled the ‘‘Chemical Plant Vulnerability Assessment

Project.’’ This study, which examined the vulnerability of chemical plants that

produce chemicals of mass destruction to terrorist attack and included the transportation chain, was presented to the ATA Safety Council’s Hazardous Materials Committee in September 2001. ATA’s Committee members provided information to

Sandia Laboratories earlier in the year concerning transportation security issues of
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these types of hazardous materials and will continue to support this important

project.

The safe, efficient and secure movement of hazardous materials is of great importance to the trucking industry. Through work with DOT, CVSA, MTMC, Sandia

Labs, and a multitude of associations whose members produce chemicals and hazardous materials, ATA and its members have demonstrated that secure transportation of hazardous materials is a primary concern. ATA will continue to work with

interested parties to ensure that the transportation of hazardous materials remains

one of the safest transportation activities in the world.

III. THE TRUCKING INDUSTRY’S SUPPORT IN THE AFTERMATH OF SEPTEMBER 11TH

Assistance in Relief Efforts

In the aftermath of September 11, the trucking industry worked around the clock

to support the relief efforts in New York and Washington by delivering critical cargo

to the rescue workers. For example, the Federal Emergency Management Agency

worked closely with the New Jersey Motor Transport Association to coordinate truck

efforts in and around New York City. Emergency responders and trucking executives coordinating the recovery applauded trucking for its rapid response after the

attacks.

As part of their support efforts, trucking companies delivered all types of supplies

and equipment to the attack sites including medical supplies, earth moving equipment, communications equipment, emergency generators, mobile lighting trucks for

nighttime rescue work, respirators, coveralls, protective gloves, blankets, and thousands of pounds of food and drinks. In addition, many dump truck drivers showed

up to volunteer their services and worked 12-hour shifts.

Additional Security Measures Taken by the Trucking Industry

Motor carriers throughout the trucking industry voluntarily took a number of

measures to increase the security of their operations immediately following the attacks. Many motor carriers re-evaluated their overall security procedures for pickup and delivery, for their service locations, terminals and loading-dock facilities, and

for dispatch operations to vehicles in cities and on the road. In addition to requesting their personnel to report any suspicious activity to law enforcement personnel,

other examples of actions taken include: • Initiating new background checks through systems currently available to motor

carriers; • Designating specific drivers for specific types of loads and studying the specific

routes to be used; • Instructing drivers not to stop or render assistance except in the case of a clear

emergency, and alerting drivers of possible ploys to obtain vehicles for hijacking

purposes; • Emphasizing to all trucking company employees, not only drivers, to stay alert

and remain aware of their surroundings at all times, especially when transporting

hazardous materials; • Advising drivers transporting hazardous materials to avoid highly populated

areas, whenever possible, and to use alternate routes if feasible; • Verifying seal integrity at each and every stop. Notifying central dispatch immediately if a seal is compromised; and • Advising drivers to notify supervisors/managers of any suspicious shipments,

and if deemed necessary, to contact local police or law enforcement authorities to

request inspection of shipment under safe practices.

These are just a few of the proactive measures that trucking companies around

the country took to enhance their operational security for not only on-the-road operations, but also at terminals and other facilities.

ATA Work with DOT and Other Federal Agencies

In addition to the emergency relief efforts of many ATA members, and the additional security measures taken, ATA staff has also worked closely with Federal officials to collect information requested by the Federal Government and to disseminate

critical security-related information to trucking companies throughout the country.

For example, in the hours and days immediately following the attacks, DOT officials

turned to ATA staff to provide information on trucking company security programs.

ATA was pleased to share the requested information with DOT officials. Bush Administration officials also requested that ATA provide information on diesel fuel

supply and pricing throughout the country. Once again, ATA staff delivered the information. ATA also assisted DOT in communicating information to hazardous materials transporters throughout the country on the agency’s upcoming security sensitivity visits. In fact, ATA established an emergency information clearinghouse on its
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website, that it continues to update as additional information becomes available.

ATA continues to stand ready to assist DOT, the FBI, and any other government

agency that needs assistance in these unprecedented times.

IV. THE TRUCKING INDUSTRY’S CONCERNS WITH S. 1602

ATA supports the laudable goal of minimizing the risk of criminal and accidental

releases of hazardous materials; however, S. 1602 imposes a new regulatory regime

that likely will frustrate the safe and efficient movement of these materials. The

proposed legislation does not adequately distinguish the risks presented by stationary chemical storage and production facilities from the risks inherent in the

transportation of hazardous materials.

Managing the Risks from Mobile Sources

The proposed legislation does not adequately distinguish the risks from hazardous

materials storage and production from the risks of transporting such materials. For

example, while the creation of buffer zones around chemical storage and production

facilities may be an acceptable way to reduce ancillary damage that flows from the

accidental or criminal release of substances of concern, such a requirement is completely unworkable as applied to the transportation of hazardous materials. It is virtually impossible to transport hazardous materials over the road while maintaining

a buffer zone around those materials. S. 1602 should be rewritten to make clear

that the buffer zone requirement, if implemented, applies only to stationary sources.

We also note that buffer zones may be problematic for a large number of trucking

terminals that are storing petroleum products. Many of these terminals are located

in developed areas, where the additional real estate required to create a buffer zone

simply is not available.

RSPA Must be Part of the Regulatory Process

The Research and Special Programs Administration (RSPA) is the agency within

the Department of Transportation that has jurisdiction over the transportation of

hazardous materials. RSPA’s regulations already address the risks of accidental releases from the transportation of hazardous materials, establishing among other

things, driver training requirements, container requirements, labeling requirements,

and incident reporting procedures. Rather than assigning primary responsibility to

RSPA for mandating regulations to address the perceived additional risks from

criminal releases of hazardous materials, S. 1602, excludes RSPA from the process

and instead vests the Environmental Protection Agency with the responsibility for

controlling these risks. The EPA, however, does not have the expertise to address

the risks inherent in the transportation of hazardous materials and may promulgate

regulations that frustrate the efficient movement of such materials in commerce. On

the other hand, RSPA has expertise in the environmental risks associated with accidental releases, and also has the expertise in regulating the transportation of hazardous materials. Accordingly, ATA believes that RSPA should assume the lead role

in promulgating regulations applicable to preventing the criminal release of substances of concern while in transportation.

The proposed legislation also requires the lead regulatory agency to consult with

local regulators responsible for responding to accidental releases. While this requirement is appropriate for addressing the risks from stationary sources located within

the local jurisdiction it is inappropriate for mobile sources and likely will lead to

a patchwork quilt of regulations that frustrate the efficient transportation of hazardous materials.

Global Harmonization

Congress has repeatedly recognized that the harmonization of regulations relating

to the transportation of hazardous materials is necessary to ensure the safe and efficient transportation of such materials. S. 1602 has the potential to compromise the

global harmonization of the hazardous materials transportation requirements, resulting in increased costs, increased transfer of such materials and the increased potential for accidental releases. Each time hazardous materials are transferred, loaded or unloaded, there is an increased potential for an accidental release. Harmonization of the hazardous materials transportation regulations reduces the number of

transfers between facilities, resulting in a corresponding reduction in the risk of an

accidental release.

Cost-Benefit Analysis

The proposed legislation has the potential to significantly increase the costs of

storing and transporting certain hazardous materials. While additional regulatory

requirements and the corresponding increase in the costs of transporting hazardous
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materials may be an acceptable tradeoff for increased assurance that these materials will not be the subject of a criminal release, the proposed legislation contains

no limitation on EPA’s authority to require expensive regulatory controls, even in

the face of only a marginal decrease in the risk of a release. For this reason, we

believe that the legislation should be modified to require the implementing agency

to perform a cost-benefit analysis to ensure that the costs of additional regulatory

requirements will produce a tangible benefit, namely the elimination or substantial

reduction in the likelihood of a release to the environment.

Recordkeeping

S. 1602 authorizes the Administrator to require any person that may have information relating to a potential accidental or criminal release to maintain records and

potentially report such information. This requirement as applied to the transportation of hazardous materials is superfluous, as the hazardous materials regulations

already require incident reporting. The requirement also is potentially duplicative

of EPA’s regulations issued under the Emergency Planning and Community Rightto-Know Act. Moreover, there is no guidance provided as to the meaning of a ‘‘potential accidental release.’’

Establishment of a General Duty Clause

One of the most troubling aspects of the proposed legislation is its creation of a

general duty clause similar to that contained in the Occupational Safety and Health

Act. This provision could make trucking companies liable for an accidental or criminal release, even if they have complied with all of the applicable regulations. This

type of provision is unfair as applied to trucking companies. Trucking companies are

not security experts. They should be permitted to rely on compliance with the comprehensive set of hazardous materials regulations to reduce the risk of a release of

such materials to the environment and not have potential liability in the event of

an accidental or criminal release.

V. CONCLUSION

Mr. Chairman, ATA members understand they are entrusted with the secure

transportation of goods that keep America moving forward. Law enforcement has

frequently been a strong ally in ATA’s longstanding efforts to ensure the security

of cargo on America’s highways and across our international borders. We look forward to continued cooperation with those authorities charged with securing our nation against future terrorist threats. ATA understands the role trucking must play

to ensure our national security in this newly changed landscape. The trucking industry asks that Congress ensure that new legislative initiatives distinguish between the risks of accidental or criminal releases from stationary sources and the

risks from potential releases from mobile sources. Legislation that is properly tailored to address risks from mobile sources will allow the trucking industry to better

fulfill its role to safely and securely transport our nation’s freight. Broad legislation

that does not distinguish between the inherent risks from mobile and stationary

sources likely will complicate the safe and efficient movement of hazardous materials. I am pleased that this subcommittee and the full Commerce Committee have

expressed strong interest in advancing our industry’s security proposals. As we have

in the past, ATA will continue to work to enhance security in the trucking industry.

Thank you for the opportunity to share our views with you.

STATEMENT OF EVERETT ZILLINGER, DIRECTOR, GOVERNMENT RELATIONS,

THE FERTILIZER INSTITUTE

On behalf of its membership, The Fertilizer Institute submits this statement and

comments of concern regarding S. 1602, the Chemical Security Act of 2001, which

is pending before the Senate Environment and Public Works Committee.

ABOUT THE FERTILIZER INSTITUTE

The Fertilizer Institute (TFI) represents by voluntary membership more than 90

percent of the U.S. fertilizer industry. Producers, manufacturers, retailers, trading

firms and equipment manufacturers, which comprise its membership, are served by

a full time Washington, DC. staff in various legislative, educational and technical

areas as well as with information and public relations programs. Together, TFI

members produce and distribute approximately 22.0 million tons per year of commercial fertilizers to farmers. The North American fertilizer industry has developed

the production facilities and infrastructure necessary to deliver the types and quan-
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tities of fertilizer products to farmers within the narrow timeframes of the crop

planting and growing seasons.

WHAT IS FERTILIZER?

Fertilizer is simply, food for plants. Just like the human body needs vitamins and

minerals, plants need nutrients in order to grow. Also like humans and animals,

plants need adequate water, sufficient food, and protection from diseases and pests

to be healthy. To grow and reproduce, plants need large amounts of three basic nutrients-nitrogen, phosphorous, and potassium.

Nitrogen, for example, is part of every plant’s proteins and is a component of DNA

and RNA, the genetic ‘‘blueprints’’ of life itself. Taken up in larger amounts than

other nutrients, nitrogen makes plants green and is usually most responsible for increasing yields. Phosphate helps plants use water efficiently, promotes root growth,

and improves the quality of grains. Potassium, commonly called potash, is important

because it is necessary for photosynthesis, which is the production, transportation

and accumulation of sugars in the plant. Potash makes plants hardy and helps them

to withstand the stress of drought and helps the plant fight of disease.

Today’s commercial fertilizer industry was founded on the revolutionary scientific

discovery in the last part of the 18th century that chemical elements play a direct

role in plant nutrition. This initial concept opened the way for industrial scale manufacturing of fertilizers of all types in the 19th century. Following World War II,

new technologies allowed for the rapid expansion of fertilizer production. Coupled

with growing food demand and the development of higher-yielding crop varieties,

fertilizer helped fuel the Green Revolution.

FERTILIZERS PROTECT THE ENVIRONMENT

The efficient use of fertilizer also helps to conserve our natural environment. With

fertilizers and modern high-yield farming practices, more food is produced per acre

each year so land may be conserved. Fertilizers used properly, works to maximize

yields on farmland already in production while helping to prevent the widespread

loss of forests, rainforests, and environmentally important habitat. Use of marginal

land, and habitat for ‘‘slash and burn’’ low-yield farming represents a major global

environmental threat.

FERTILIZERS IMPROVE OUR WAY OF LIFE

Fertilizers enhance many consumer products. For example, thanks to fertilizers,

fruits and vegetables are available in affordable abundance year around in every

state of the nation. Nitrogen is used to make nitric acid, a major component in batteries, tires, lacquers and paints. Many soda drinks contain phosphoric acid, derived

from phosphate, and many bath soaps and detergents contain potash.

Fertilizers are also at work in industry. Aside from their benefits to agriculture,

fertilizer components are central to such industrial processes as semiconductor chip

making, resin manufacture, cattle feed production, metal finishing, the manufacture

of detergents, fiberglass insulation and even rocket fuel needed for our space, satellite and communications industries.

FERTILIZERS FEED THE WORLD

Finally, and most importantly, fertilizers are critically necessary in order to feed

our world’s growing population. As the world’s population continues to climb toward

an estimated 8.5 billion in the year 2040, experts estimate that food production

must increase more than 2 percent annually just to maintain current diets. For example, commercial fertilizer nitrogen (N) accounts for approximately half of all N

reaching global croplands today and supplies food needs for at least 40 percent of

the population. Due to global population increase and the expansion of global prosperity and diet quality, it is estimated that at least 60 percent of humanity will

eventually owe its nutritional survival to N fertilizer. (Smil, V. 2001. Enriching the

Earth. MIT Press, Cambridge Mass.)

FERTILIZERS CONTRIBUTE TO THE AMERICAN WAY OF LIFE

The United States and many other developed nations are blessed with safe, abundant and affordable food. Thanks to fertilizers, the productivity of U.S. farmers and

livestock producers and an efficient agribusiness processing, storage and transportation system—Americans spend less than 8 percent of their disposable income on

food. This leaves 92 percent of American’s disposable income for travel, entertainment, spacious homes, multiple cars, college tuition or a vast array of consumer
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products and activities that contribute to our way of life. Today, the abundance of

food we enjoy is just one way fertilizers help enrich the world around us.

FERTILIZERS ARE REGULATED

Commercial fertilizers are extensively regulated in the United States both at the

Federal and state levels. The industry must comply with Federal laws regarding reporting and emission standards for air and water quality. The industry must also

comply with many other Federal laws including but not limited to: the Resource

Conservation and Recovery Acts (RCRA), the Clean Air Act (CCA), the Clean Water

Act (CWA), the Safe Drinking Water Act (SDWA), the Coastal Zone Management

Act (CZMA), the Occupational Safety and Health Act (OSHA) and the Community

Right-to-Know Act (EPCRA).

State regulation of fertilizer products is primarily concerned with consumer protection, labeling, the protection of human health and the environment, and the proper handling and applications of fertilizers.

RESPONSE TO TERRORISM

TFI members have greatly increased security procedures since September 11th,

and we thank those Federal, state and local agencies that have worked with our

individual facilities to improve our security programs. TFI and its member companies have worked closely with Federal agencies such as the Federal Bureau of Investigation (FBI), the Coast Guard, and the Environmental Protection Agency. In addition, we have cooperated with numerous state and local agencies, including emergency response personnel, to heighten security at our industry’s manufacturing

sites, storage facilities, transportation infrastructure and retail outlets.

Our industry also has worked extensively to protect against misuse of our products, most notably through our voluntary ‘‘Be Aware’’ and ‘‘Be Secure’’ campaigns

created in partnership with the U.S. Federal Bureau of Alcohol, Tobacco and Firearms (BATF). These important efforts have proven effective and successful in assisting our industry’s retail sector and local law enforcement to be alert and suspicious

people trying to purchase beneficial fertilizer products for potentially criminal purposes-and to report any suspicious activity immediately to the proper authorities.

Future security efforts should buildupon these existing working relationships.

VIEWS ON S. 1602

In light of the already extensive Federal and state regulations addressing commercial fertilizer products and the industry’s proactive voluntary efforts noted

above, TFI submits this statement of comments regarding the advisability and purpose of S. 1602.

SUMMARY OF S. 1602, THE CHEMICAL SECURITY ACT OF 2001

On October 31, 2001 Senators Corzine, Jeffords, Boxer and Clinton introduced S.

1602, The Chemical Security Act of 2001. The legislation proposes to safeguard facilities where hazardous chemicals are present by giving EPA and the Justice Department authority to issue administrative orders or seek court orders requiring facilities to take immediate steps to improve security. These steps could include improvements to personnel security, as well as changes in a facility’s physical structure or operations.

Specifically the bill:

• Requires each owner or operator of a high priority chemical source to take actions including safer design and maintenance to prevent, control and minimize potential accidental or criminal releases;

• Defines ‘‘safer design and maintenance’’ as the use of inherently safer technology, well-maintained secondary containment, control or mitigation equipment,

making a chemical source highly resistant to intruders, improving security and employee training including employee personnel background checks, use of buffer zones

between a chemical source and surrounding populations centers.

• Defines ‘‘inherently safer technology’’ to include input substitution, catalyst or

carrier substitution, process redesign, product reformulation, procedure simplification and technology modification;

• Establish a ‘‘general duty’’ requiring each owner or operator to identify hazards

that may result in an accidental or criminal release. As a result, facilities would

have the general duty to prevent criminal activities for which they had no knowledge or participation. If operators fail to prevent criminal releases then the owner

or operator is subject to the criminal penalties noted below;
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• Requires EPA and DOJ to consider severity of harm caused by a chemical’s ac- cidental or criminal release and a chemical’s proximity to population centers, potential threat to national security and critical infrastructure; • Requires EPA and DOJ to designate those chemical manufacturers and transporters most at risk; • Defines a chemical source as a stationary source, vessel, motor vehicle, rolling

stock or container; • Allows EPA and DOJ to seek relief in district courts to abate danger or threat

to the public health and welfare or the environment from an accidental or criminal

release and issue such orders as necessary to protect public health or welfare of the

environment; • Requires record keeping, reporting and provides EPA or DOJ the right of entry

on any premises of an owner or operator of a chemical source and copying of any

records or information necessary; • Provides for civil penalties of up to $25,000 a day and criminal penalties of no less than $2,500 a day or no more than $25,000 a day, or imprisonment (or both)

of an owner or operator of a chemical source that violates, fails to comply with or

knowing violates orders issued or regulations promulgated as a result of this Act.

Following is a listing of specific concerns regarding S. 1602, and the effects the

legislation could have on the North American fertilizer industry:

1. Prevention of accidental releases is very different than prevention of terrorism

acts. These should not be viewed as equivalent activities.

• Accident prevention involves ensuring equipment integrity, managing process parameters and emergency planning and execution. It is a facility-specific

process that focuses on maximizing the routine of efficient, safe chemical production.

• Terrorism prevention involves securing infrastructure, scrutinizing all personnel and materials that move onsite, and implementing anti-terrorism infrastructure and programs. It is an extroverted process that focuses on the unusual, unknown or asymmetrical.

• While there are areas of overlap, prevention of accidental releases will not

prevent terrorist threats and vice versa.

2. The bill as proposed creates redundant accidental release activities.

• Accidental releases at facilities are already covered under two existing regulatory frameworks—EPA’s Risk Management Plan and OSHA’s Process Safety

Management programs.

• Many of the provisions in this legislation, including definitions, general duty

clauses, and activities are taken from these existing regulations, making this

legislation redundant to existing laws.

• DOT’s HM223 covers loading, transportation and unloading of hazardous

materials.

• By definition, a criminal release means that some law was broken. Therefore, a release caused by a criminal act is already unlawful. Existing (pre-September 11th) security measures at most facilities are geared toward minimizing

criminal activity onsite.

3. S. 1602 may have unintended consequences for both industry and homeland security.

• The bill is too heavily focused on chemicals rather than overall security

issues. An inflexible law (and subsequent regulations) makes it hard for individual industries and facilities to comply because of the narrow definition of

compliance.

• Some chemicals, such as ammonia, are both an end-product (i.e., fertilizer)

and an intermediate. There are no substitutes for ammonia and no safer production method than that currently used. Further, storage of ammonia in large

quantities is necessary because of the unique seasonal demands of the product.

• Publishing a list of ‘‘high priority combinations’’ in the Federal Register is

in itself a terrorist tool and increases designated facilities’ terrorism vulnerability.

• Many compliance activities would be redundant with existing RMP and PSM

provisions, and will take personnel and resources away from true security functions.

• This designation will greatly increase insurance premiums, increase terrorism exclusions in new policies, and price industries out of the terrorism insurance market. Given current state of insurance companies, they may decide

to refuse insurance to anyone on the ‘‘high priority combinations.’’

• Many provisions of this bill do not account for possible substitution risks.

For example, if domestic ammonia production falls and the demand for im-
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ported ammonia rises, then there would be increased risks associated with large

barges from the Middle East, FSU, Asia, and Central/South America coming

into ports around large metro areas. Likewise, focusing on production, transportation and storage of smaller quantities may lower the catastrophic risk, but

greatly increase the overall risk because of the addition of more storage tanks,

more individual transportation units on the roads and in navigable waters and

increases in the number of small production facilities.

• There is no data base of ‘‘inherently safer technologies.’’ Nor could it be easily or quickly assembled. There are no existing criteria for designation of ‘‘inherently safer technologies.’’ Some methodology is also needed to balance security

considerations vs. energy efficiency, quantity and types of emissions, and other

substitution risks. In fact, most of the manufacturing and handling processes

now in place were designed with process safety in mind.

• The general duty clause combined with liability provisions creates both ethical questions and substitution risks. Industry has greatly increased its security

since September 11th and continues to urge Federal and state agencies to work

with our individual facilities to prevent terrorist activities. The Federal Government should adopt a compliance assistance model for future anti-terrorism initiatives.

• Most facilities have greatly increased security and are working with applicable Federal, state and local agencies. Future security efforts should buildupon

these existing working relationships.

• Successful anti-terrorist programs must involve joint agency-industry cooperation and coordination. Because security is facility and chemical specific, increased security is best achieved by guidance, protocols and joint programs in

which facilities work with applicable and relevant Federal agencies in a cooperative fashion.

• Facilities are most interested in speaking with those Federal agencies that

can provide them with specific recommendations for surveillance, security and

anti-terrorism measures that can be implemented at their facilities.

• No facility or infrastructure system can be certified as terrorism-proof; that

is, there is no zero-risk scenario for industry. We do urge Federal agencies to

develop a means of prioritizing of infrastructure based on real risks. Some assessment of costs, benefits and substitution risks should also be considered.

• We are interested in a mechanism for secure exchange of information, data

and security suggestions among Federal agencies and industry. Facilities would

like to receive detailed information on specific or general threats. We would also

like feedback when suspicious activity or potential incidents are reported to the

proper authorities. We would prefer to avoid situations in which Federal agencies use either ‘‘right of entry’’ or ‘‘abatement actions’’ without previous consultation. These should be the last action taken in an anti-terrorism effort, not

the only tool in the toolbox.

• Some decision will need to be made on balancing right-to-know considerations with security interests. Making all information collected during a ‘‘right

of entry’’ or other visit available on the Internet is in itself a potential terrorist

tool and is in itself a major vulnerability. We feel that access to facility-specific

information should be taken out of the public domain and limits should be

placed on FOIA requests for these data.

FOCUSING FUTURE INDUSTRY/GOVERNMENT PARTNERSHIPS

The Federal Government should adopt a compliance assistance model for future

anti-terrorism initiatives. Successful anti-terrorist programs must involve joint

agency-industry cooperation and coordination. Because security is facility and chemical specific, increased security is best achieved by guidance, protocols and joint programs in which facilities work with applicable and relevant Federal agencies in a

cooperative fashion.

TFI members are most interested in speaking with those Federal agencies that

can provide them with specific recommendations for surveillance, security and antiterrorism measures that can be implemented at their facilities. We are interested

in a mechanism for secure exchange of information, data and security suggestions

among Federal agencies and industry. Facilities would like to receive detailed information on specific or general threats. We would also like feedback when suspicious

activity or potential incidents are reported to the proper authorities.

Some decision will need to be made on balancing right-to-know considerations

with security interests. Making all information collected during a ‘‘right of entry’’

or other visit available on the Internet is in itself a terrorist tool and increases designated facilities’ terrorism vulnerability. We feel that access to facility-specific in-
164

formation should be taken out of the public domain and limits should be placed on

FOIA requests for these data.

CONCLUSION

For the above reasons, TFI and its membership oppose S. 1602 as written in its

current form. Our members urge the Senate to build on the existing cooperative relationships between industry and agencies that have formed since the September attacks.

TFI looks forward to working with the authors, cosponsors, members of the committee and U.S. Senate in addressing these and other important chemical security

concerns in a more cooperative, realistic and effective approach to keeping our nation’s vital chemical products, including fertilizer, secure.

TFI appreciates the opportunity to make this statement.

STATEMENT OF RICK HIND, LEGISLATIVE DIRECTOR, GREENPEACE TOXIC CAMPAIGN

IS THE U.S. CHEMICAL INDUSTRY OUR WEAKEST LINK AGAINST TERROR ATTACKS?

The magnitude of a terrorist attack on just one major U.S. chemical facility could

easily exceed the loss of life suffered on September 11 in New York City. We are

overdue in addressing the inherent vulnerability of this industry to terrorists and

accidents. Recent events underscore the immediacy of this threat including the two

nation-wide security alerts by the FBI and a 72-hour moratorium by the railroad

industry on carrying chemicals such as chlorine.

Even President Bush was at risk. On September 11, when Air Force One landed

in Louisiana, he joined more than a million Louisiana residents who live in a region

that is blanketed by chemical kill zones (www.greenpeaceusa.org). These kill zones

surround more than 100 petro-chemical facilities located along the Mississippi River

from Baton Rouge to New Orleans. A regional investigation by the Agency for Toxic

Substances and Disease Registry found security against terrorists at selected U.S.

chemical facilities to be ‘‘fair to poor.’’

Thankfully, there has never been a terrorist attack on a U.S. chemical facility.

But there have been more than 13,000 accidents involving more than 10,000 pounds

of hazardous materials since 1987, with smaller incidents occurring daily. A December 2000 study by the Argonne National Laboratory for the Department of Transportation concluded, ‘‘the failure to identify and evaluate opportunities to reduce the

risks from these types of relatively rare accidents could ultimately lead to thousands

of fatalities, injuries and evacuations.’’

Senator Corzine’s bill (S. 1602) would finally begin the urgently needed process

of addressing this crisis. It not only requires beefed up security it also puts prevention first, encouraging industry to eliminate catastrophic accidents and attacks by

substituting inherently safer technologies. We applaud the Senator and his colleagues (Madame Chairwoman Boxer and Senator Clinton) for introducing and cosponsoring this important legislation.

More than 15,000 facilities across the U.S. are required to report their worst case

accident scenarios to the EPA. These reports contain estimates on the distance that

a deadly toxic chemical cloud could extend over neighboring populations. Unfortunately, pressure has recently been put on the EPA to deny public access to this basic

information. Denying access to these reports will only accomplish one thing: it will

leave the public without vital information needed to protect themselves in the event

of an attack or an accident. Hiding basic hazards information from the public undermines the credibility of government and industry and will lead to dedicated terrorists being the only non-governmental people outside industry to have this information.

After using terrorism as an argument to hide potential chemical disasters, the

U.S. chemical industry has been negligent in preventing accident and terrorist

threats posed by chemical facilities, making, using or storing ultra-hazardous chemicals such as chlorine. Earlier this year Greenpeace exposed a significant example

of this failure by publishing photographic evidence from inside a Dow Chemical

plant in Plaquemine, Louisiana. The photos are also available on our web site

(www.greenpeaceusa.org) show the internal control panels and operating instructions of an unguarded pump house that releases 550 million gallons of wastewater

into the Mississippi River every day.

While investigating Dow’s Clean Water Act violations, Greenpeace activists entered this facility undetected. There were no guards at the perimeter, no security

cameras and no burglar alarms. In fact, the door to the building was unlocked. All

of these are rudimentary security measures that the EPA recommended in their
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February 2000 security alert. The EPA also recommended ‘‘design’’ changes in

plants that even fewer facilities have implemented.

In Washington, DC this month, Blue Plains, the local sewage treatment plant announced (Nov. 9th) that they were now 1 year ahead of schedule in ending the use

of the highly toxic chlorine gas. The reason given for this accelerated action was the

possibility of a terrorist attack. The plant is only four miles from the U.S. Capitol.

According to the National Transportation Safety Board, the Coast Guard and the

chlorine industry, a major chlorine gas leak can travel two miles in only 10 minutes

and remain acutely toxic for a distance of approximately 20 miles.

Greenpeace recommends a set of short and long-term steps to truly eliminate

these unnecessary and preventable disasters. In the short-term these include the

immediate adoption of S. 1602 by Congress. In addition, an emergency program is

needed to ensure there is a rapid phaseout of shipping large quantities of these

chemicals along with reductions in large quantity storage to levels that eliminate

current threats posed to local communities. Other short-term actions should include

the decentralized production of these substances to eliminate pressure for large container transport and storage.

In the long-term, virtually all of the ultra-hazardous chemicals used in the U.S.

have safer substitutes and conversion to them should begin as soon as possible. To

end toxic chemical pollution in the Great Lakes the International Joint Commission

(U.S./Canada) recommended in 1992 that industry and government begin a phaseout of the industrial uses of chlorine. Had this recommendation been initiated in

1992, we would have had a model program for eliminating the threats now posed

by these inherently dangerous facilities.

America needs many systems to function, such as our besieged airline industry

and the postal system. But we do not need to continue producing obsolete and ultrahazardous chemicals that pose enormous risks to the public-with or without the

threat of terrorist attack.

GREENPEACE,

Washington, DC., August 10, 2001.

Secretary NORMAN MINETA,

Department of Transportation,

Washington, DC.

DEAR SECRETARY MINETA: The fire in Baltimore’s train tunnel, adjacent to Camden Yards, was a wake up call to the nation. Those who said it could never happen

now must resort to claiming it will not happen again. To prevent a more serious

chemical accident than the July 18–23 Baltimore tunnel fire aboard the CSX freight

train, Greenpeace proposes that the Department of Transportation impose an immediate ban on the shipping of hazardous materials through highly populated communities. As you know, the transport of hazardous materials through either of Baltimore’s two highway tunnels is punishable by a year in jail.

The heroic deeds of Baltimore and other emergency response personnel not withstanding, this incident could easily have been catastrophic. According to a recent report done for the Department of Transportation (DOT) by the Argonne National

Laboratory, ‘‘the potential exists for very serious accidents involving large numbers

of injuries and fatalities, especially for TIH [toxic-by-inhalation] materials.’’

The report further cautions:

‘‘While review of the statistics alone might suggest that accidents associated with

the transportation of hazardous materials should not be a major concern, these accidents can have enormous impacts when they occur. As a result, the failure to identify and evaluate opportunities to reduce the risks from these types of relatively

rare accidents could ultimately lead to thousands of fatalities, injuries, and evacuations.’’

As one of the leaders in Congress who led efforts to enact the Federal right-toknow law in 1986, you know that legislation only became an imperative after the

worst industrial accident in history occurred at the Union Carbide facility in Bhopal,

India in December, 1984. A leak of methyl isocyanate (MIC) killed approximately

4,000 people and injured hundreds of thousands.

The Argonne report estimates that there are 100,000 shipments a year of equally

toxic chemicals such as chlorine. In fact, Argonne lists chlorine and hydrochloric

acid (HCL) among the top 10 materials responsible for major injuries and evacuations and emphasizes the need to focus on these TIH materials.

Enclosed is a map of a hypothetical release of 17,000 gallons of chlorine from a

railroad tank care accident whose toxic fumes could reach 20 miles. According to the

National Institute for Occupational Safety and Health, chlorine gas concentrations
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of 10 parts per million (PPM) are classified as ‘‘immediately dangerous to life or

health’’ (IDHL). And according to modeling by the National Transportation Safety

Board and U.S. Coast Guard, a chlorine gas cloud could travel 2 miles in just 10.5

minutes at concentrations of 100 PPM. The chemical industry’s Chlorine Institute

also estimates that a chlorine cloud could travel 20.5 miles at concentrations above

10 PPM.—Baltimore is 9 miles wide and 10.5 miles long.

Clearly, this kind of catastrophe is unacceptable. It is also completely preventable.

By prohibiting the shipment of these materials through populated areas, you dramatically reduce the numbers of exposed people. However, to eliminate these risks

for all communities, the Federal Government should also convene a multi-agency

task force to address these hazards. A first step would be to implement the recommendations of the International Joint Commission which has repeatedly advised

the U.S. and Canada to ‘‘sunset the use of chlorine and chlorine-containing compounds [such as HCL] as industrial feedstocks.’’

Also enclosed is a copy of our letter to the EPA regarding their agreement to conduct dioxin sampling from the Baltimore train tunnel fire site. Because the fire

aboard the CSX train involved thousands of gallons of leaking HCL, the conditions

may have been ideal for the formation and release of dioxins. Dioxins are by-products of chlorine compounds exposed to fire and are potent carcinogens. It is important to determine if emergency response personnel, the community or biota in the

harbor were exposed to dioxin as well.

Thank you for your immediate attention to this matter.

Sincerely,

RICK HIND,

Legislative Director.

GREENPEACE,

Washington, DC., August 17, 2001.

Ms. CHRISTINE TODD WHITMAN,

EPA Administrator,

U.S. Environmental Protection Agency,

Washington, DC.

Dear MS. WHITMAN: As you may know, a number of serious incidents involving

hazardous materials and toxic chemicals have renewed concerns that a chemical accident on the scale of the 1984 Bhopal, India disaster could occur in a large populated area in the U.S., such as Philadelphia or Baltimore. These and several other

U.S. cities are home to high concentrations of chemical facilities and are also heavily

traveled by trains, trucks and ships carrying ultra-hazardous cargo, putting densely

populated communities and business centers at risk.

According to a recent report done for the Department of Transportation (DOT) by

the Argonne National Laboratory, the risks in transporting hazardous materials are

potentially catastrophic. The report cautions:

‘‘While review of the statistics alone might suggest that accidents associated with

the transportation of hazardous materials should not be a major concern, these accidents can have enormous impacts when they occur. As a result, the failure to identify and evaluate opportunities to reduce the risks from these types of relatively

rare accidents could ultimately lead to thousands of fatalities, injuries, and evacuations.’’

The enclosed map illustrates a worst case scenario submitted to the EPA by Occidental Chemical for a chlorine tank failure of 400,000 pounds at their facility in

New Castle, Delaware. They estimate that dangerous chlorine fumes could spread

20 miles from their plant, an area populated by 585,000 people. In addition, the

map shows a similar scenario involving a train accident involving a 90 ton chlorine

tank car with toxic chlorine also reaching 20 miles. These two scenarios blanket

populated areas in Delaware, Pennsylvania, Maryland and New Jersey where millions of people live and work.

The DOT report estimates that there are 100,000 shipments a year of chlorine

alone. In fact, they list chlorine and hydrochloric acid (HCL) among the top 10 materials responsible for major injuries and evacuations. They also emphasize the need

to focus on these highly toxic-by-inhalation (TIH) substances.

According to the National Institute for Occupational Safety and Health, chlorine

gas concentrations of 10 parts per million (PPM) are classified as ‘‘immediately dangerous to life or health’’ (IDHL). According to the National Transportation Safety

Board and U.S. Coast Guard, a chlorine gas cloud could travel 2 miles in just 10.5

minutes at concentrations of 100 PPM.
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Two recent incidents in the Mid-Atlantic region have served as a sobering wake

up call. On July 17 the catastrophic failure of a storage tank containing spent sulfuric acid at Motiva Enterprise’s Delaware City, DE refinery resulted in eight injuries and left one person missing. On July 18 a CSX train derailment and tunnel

fire paralyzed Baltimore for 5 days while hydrochloric acid and other toxic chemicals

burned off and leaked into the Baltimore harbor.

Even without accidents, chemical facilities in this region pose serious hazards to

human health and the environment:

Occidental’s Delaware chlorine plant uses an obsolete mercury-cell chlor-alkali

process to make chlorine that threatens the region with contamination from fugitive

emissions. It is one of 11 remaining mercury-cell plants in the U.S., representing

approximately 14 percent of chlorine manufacturers. The others use mercury-free

processes such as diaphragm and membrane processes. According to the Agency for

Toxic Substances and Disease Registry, the largest commercial use of mercury in

the U.S. is in mercury-cell chlorine plants which account for 35 percent of all domestic consumption of mercury.

The EPA is currently engaged in a partnership with Occidental and the other

chlorine industry users of mercury that will perpetuate their use of 80 tons of mercury a year. One EPA official admitted that this program is a ‘‘best of the worst’’ project. This kind of sweet-heart deal further calls into question the credibility of

the Bush Administration’s proposal to delegate environmental enforcement to the

states.—‘‘Enforcing’’ unnecessary mercury use and ongoing chlorine risks can hardly

be called protecting the environment.

In contrast, European nations who are members of the Paris Convention for the

Prevention of Marine Pollution from Land-Based Sources (PARCOM) agreed in 1990

to phaseout all mercury-cell chlor-alkali plants by 2010.

Other chlorine users in this region include Dupont, which recently reported that

it’s Edge Moor, Delaware plant was responsible for 500,000 tons of dioxin-contaminated waste. Dupont’s titanium dioxide plant uses a chlorine process which results

in the generation of dioxins and furans as waste by-products. Dioxins and furans

are chlorinated by-products of the use of chlorine in manufacturing and disposal,

such as waste incineration.

To prevent the most serious chemical accidents Greenpeace proposes a three stage

process:

(1) In an August 10 letter to the Department of Transportation we proposed an

immediate ban on the shipping of hazardous materials through highly populated

communities. For example, the transport of hazardous materials by truck through

either of Baltimore’s two highway tunnels is punishable by a year in jail but trains

routinely carry hazardous materials through the center of Baltimore. As an interim

measure, makers of TIH substances should also be urged to make batches of these

substances for local-use-only to minimize any shipping of these materials.

(2) To eliminate these risks for all communities, we recommend that a multi-agency task force be convened to prioritize the most hazardous chemicals first. The next

step in this process would be to implement the recommendations of the International Joint Commission which has repeatedly advised the United States and

Canada to ‘‘sunset the use of chlorine and chlorine-containing compounds as industrial feedstocks.’’

Likewise, the global treaty you signed in Stockholm this May requires the phaseout of the worst persistent organic pollutants (POPs), including the elimination of

dioxin. President Bush has pledged to seek Senate ratification of the POPs treaty

this summer but the elimination of dioxin will also require a long-term commitment

to phaseout chlorine. The major industrial uses of chlorine are PVC plastics, solvents and bleaching paper. All of these uses have widely available safer alternatives

such as vegetable-based plastics, water-based solvents and oxygen-based bleaching.

(3) In the meantime, the chlorine industry should at a minimum be required to

eliminate the use of all their remaining mercury-cell processes by 2010 as the European PARCOM countries have agreed to do.

The worst industrial accident in history occurred at the Union Carbide facility in

Bhopal, India in December, 1984, when a leak of methyl isocyanate (MIC) killed approximately 4,000 people and injured hundreds of thousands. We in the U.S. are fortunate that an accident of this magnitude has not yet occurred here. However, if

and when a similar disaster occurs, you will be asked why the continued manufacture and use of ultra-toxic chemicals was allowed, especially when safer alternatives

were available.

Thank you for your immediate attention to this matter.

Sincerely,

RICK HIND,

Legislative Director.
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STATEMENT OF THE NATIONAL ASSOCIATION OF CHEMICAL DISTRIBUTORS

BACKGROUND ON NACD

The National Association of Chemical Distributors (NACD) is the leading association of chemical distribution companies in the United States. Chemical distributor

companies purchase and take title to chemical products from manufacturers. Member companies process, formulate, blend, re-package, warehouse, transport, and

market these chemical products. These companies collectively employ more than

20,000 workers and serve a customer base of approximately 750,000. The typical

NACD member company, nonetheless, is a small enterprise that maintains lean operations in a highly competitive market. Most facilities operated by NACD member

companies employ approximately 15–25 workers each. NACD’s approximately 330

member companies have a vital interest in transporting hazardous materials safely.

RESPONSIBLE DISTRIBUTION PROCESSS (RDP)

As a condition of membership in NACD, chemical distribution companies are required to adhere to and be verified on the Codes of Management Practice of the Responsible Distribution Processs (RDP). RDP is a member-driven initiative, developed

by NACD members in 1991, which promotes continuous improvement in environmental, health, and safety performance of all member companies. Member companies’ implementation of RDP includes a commitment to comply with relevant environmental, health, and safety regulations as they apply to company operations. The

senior executive in each NACD member company has formally accepted these principles.

Members of NACD are required, as a condition of membership, to undergo independent third-party verification. RDP requires two stages of third-party verification

of a member’s written policies and procedures. Continuous improvement in environmental, health, and safety performance is taken very seriously. In fact, NACD has

terminated 12 companies for failing to comply with RDP. Many of these companies,

following their termination, realized the value of RDP to their business, and came

into compliance with RDP, to become eligible for re-admission as an NACD member.

RDP has gained national and international recognition and visibility. Insurance

companies, for example, are recognizing the strength of the RDP program. One

major, national carrier offers a reduction in its premium for NACD members, based

on the member company’s compliance with RDP. In addition, this carrier provides

a premium credit equal to the full cost of an On-Site MSV because its thoroughness

replaces the need for the insurance carrier to send a team onsite.

In addition, one Federal agency has recently recognized RDP as a risk management compliance tool. The U.S. Environmental Protection Agency (EPA), in its Risk

Management Program (RMP) Guidance for Chemical Distributors, states that companies that adhere to RDP may have taken the necessary steps to comply with some

RMP requirements. RDP Codes similar to EPA’s RMP accident prevention requirements include Risk Management, Emergency Response and Public Preparedness,

Compliance Review and Training, Job Procedures and Training, Handling and Storage, Corrective and Preventive Actions, and Product Stewardship. A side-by-side

comparison between RMP accident prevention and emergency response requirements and similar RDP Codes are published in the EPA guidance. NACD’s RDP

Code of Management Practice, Adjunct Policies, and Implementation Guide details

each RDP Code.

CURRENT REGULATORY REQUIREMENTS OF NACD MEMBERS

In addition to their commitment and responsibilities under RDP, NACD members

are subject to a myriad of Federal regulations (EPA, DOT, DOL, DEA, BATF). For

example, many members must comply with the U.S. Environmental Protection

Agency’s (EPA) Risk Management Program (RMP), a mandatory program to implement risk management and accident prevention methodologies. In addition, some

members are required to comply with the Occupational Safety and Health Administration’s (OSHA) Process Safety Management (PSM) Standard, another comprehensive regulation to prevent workplace accidents. Importantly, there are numerous Department of Transportation requirements under the Hazardous Materials Regulations (HMR) that NACD members must follow because transportation of hazardous

materials is a major part of their business—chemical distribution. S. 1602 would unnecessarily duplicate these laws and regulations.
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S. 1602, THE CHEMICAL SECURITY ACT

Like Senator Corzine and the other sponsors of S. 1602, we are deeply concerned

about the safety and security of our products, employees, friends and neighbors.

Clearly, NACD members have a vested interest in ensuring the safe handling and

distribution of the thousands of products they sell to hundreds of thousands of customers. Unfortunately, S. 1602 will not help them reach this goal any more effectively then they do today.

NACD companies were concerned about security and safety before the tragic attacks of September 11, 2001; now it is a primary focus. While we cannot at this time

disclose the specific steps each member has taken to enhance its security, NACD

members have made security a top priority by hardening their facilities and vehicles

against potential attacks. In fact, in conjunction with other industry partners, including the American Chemistry Council (ACC), NACD has helped develop industry

site and transportation security guidelines. In addition, these same industry partners have met on a weekly basis at the CEO level with representatives from the

FBI, DOT, EPA (including directly with Administrator Whitman), Commerce and

other Federal departments agencies to facilitate information exchange, transfer best

practices and focus on security concerns. NACD has diligently distributed security

information from Federal agencies to our members on a weekly and sometimes daily

basis. NACD has brought in external security consultants to its regional and annual

meetings to help educate members on how to enhance their site and transportation

security.

LEGISLATION IS PREMATURE

This legislation is unnecessary and premature at best. S. 1602 attempts to remedy

an alleged security problem before it has been determined if and where

vulnerabilities may exist. The Department of Justice through Sandia National Laboratories is currently studying chemical site security. Further studies of the security

of hazardous materials transportation are being contemplated. It makes more sense

to make these studies a top priority and then determine what course of action to

take rather than to rush in and regulate with limited information.

There can be a steep price to pay for acting too hastily. As we saw with the Risk

Management Program regulations, NACD and many other industry members strenuously argued for years that making that information broadly available would unnecessarily expose chemical companies to possible terrorist attacks. Many members

of this committee dismissed these concerns and insisted that worst-case scenarios

be posted on the Internet unrestricted. Fortunately, EPA and the DOJ came to the

realization that some protection was needed, and post September 11, EPA has since

pulled much of this information off the Internet. Unfortunately, the authors of S.

1602 seemed to have not learned this lesson. Section 6 of the legislation provides

for broad access to information unless it can be demonstrated that release of the

information should not be disclosed for reasons of national security. This type of information is undoubtedly in the interests of national security and the burden of

proof should be reversed: those seeking the information should demonstrate an overriding need for it.

TRANSPORTATION ISSUES

The authors of this legislation severely underestimate the impact it could have

on the economy of our industry and staggering American economy. For example, in

Section 3 the ‘‘buffer zones’’ between chemical sources and surrounding populations

defy explanation and are not practical in the real world. NACD members ship over

30 billion pounds of product annually, how are they to continue these necessary deliveries? It is not clear how these deliveries can be buffered from public transportation routes already used without devastating consequences for our members and

the broader economy. DOT has studied this issue extensively and controls risk

through routing standards, packaging, material segregation and separation and numerous other requirements. It should be noted that there are over one million shipments of hazardous materials per day, yet only an average of 11 deaths per year

can be attributed to hazardous materials releases. EPA involvement in the process

is redundant and unlikely to produce any security benefits.

Transportation is a primary area where the legislation overreaches and overlaps

existing Federal regulation. The Hazardous Materials Transportation Act (HMTA)

already heavily regulates chemical distribution, including loading, unloading, storage, intrastate, interstate and international commerce. However, S. 1602 inserts

EPA into this process by requiring it to assess the vulnerability of chemical trans-
170

portation and address those concerns. That is in direct conflict with DOT’s preexisting jurisdiction. How will this relationship work?

Further, S. 1602, designates ‘‘substances of concern’’ that overlap and conflict with

the pre-existing definition of ‘‘hazardous materials’’ already in regulation and practice. Confusion over these definitions will place unnecessary hardship on NACD

members without enhancing security. In fact, the legislation is overly broad, unnecessarily covering a wide range of chemicals. Many, if not most of them are not security risks. That is another reason why it is better to wait for the studies currently

underway to determine those products and facilities that pose legitimate concerns

and then act accordingly. This approach avoids the needless and wasteful use of limited Federal and industry resources.

In addition, DOT already shares jurisdiction with DOL over the training of hazardous materials employees. S. 1602 inserts EPA into this area, needlessly complicating employee training with no appreciable security benefit. Further, DOT already

has jurisdiction for background checks for certain persons involved in aviation or

drivers of hazardous materials. Does S. 1602 supercede these existing laws and regulations, including the recently passed anti-terrorism legislation (USA Patriot Act,

Public Law No: 107–56)?

The HMTA already carries civil and criminal penalties for violations that are

stronger than those proposed in Section 7 of S. 1602. In its recently submitted reauthorization proposal to Congress, DOT proposes to expand its enforcement authority. S. 1602 moves in the opposite direction on this issue and further reveals the

ignorance of pre-existing regulations covering many of these areas of concern.

S. 1602 could also threaten DOT’s preemption authority, which is a primary factor

in the industry’s sterling safety record. Safety and security depend upon uniform

standards so that the millions of hazardous materials shipments can be prepared

and transported by employees who know what the requirements for these products

are. This uniformity is equally important to local emergency response personnel.

This approach contrasts starkly with the general statutory authorities administered

by EPA which set minimum Federal standards and allow states to exceed them.

Under the HMTA, Congress has given DOT unique authority and S. 1602 should

not alter it.

OTHER ISSUES

Further, it is not at all clear how the Corzine legislation fits with the authority

of the newly formed Office of Homeland Security, headed by Governor Ridge. The

last thing the legislation ought to do is to duplicate, or worse yet, conflict with what

another agency is doing to increase security.

NACD is particularly troubled by the General Duty Clause in S. 1602. Employers

already have a general duty to their employees and contractors under OSHA regulation to maintain safe workplaces and under EPA regulation to identify workplace

hazards, design and maintain safe facilities, and minimize the consequences of an

accidental release. General Duty clauses are usually vague and leave a regulatory

authority and/or the courts much latitude to determine an employer’s guilt or innocence. Establishing yet another clause will do little to add more protection for the

public or add more effective measures against terrorism.

Finally, and perhaps most notably, NACD is not aware that EPA or DOJ or any

other Federal agency has asked for the authority resembling this legislation in any

form.

CONCLUSION

NACD shares the noble of goal of the Corzine legislation. However, that goal is

more likely to be reached through partnership with industry, not dictation to it.

With numerous Federal regulations applicable to the chemical distribution industry,

as well as NACD members’ adherence to the comprehensive environmental, health,

and safety continuous improvement program—RDP—there is sufficient availability

of both regulatory and selfadministered programs currently existing and being implemented. This legislation would merely burden our members in an economically

difficult environment without increasing security.

STATEMENT OF THE NATIONAL PROPANE GAS ASSOCIATION

The National Propane Gas Association (NPGA) appreciates the opportunity to

present our concerns with S. 1602, as well as safety and security issues related to

the September 11, 2001 terrorist attacks.
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NPGA is the national trade association of the LP-gas (principally propane) industry with a membership of about 3,800 companies, including 39 affiliated state and

regional associations representing members in all 50 states. Although the single

largest group of NPGA members are retail marketers of propane gas, the membership includes propane producers, transporters and wholesalers, as well as manufacturers and distributors of associated equipment, containers and appliances.

Propane gas is used in over 18 million installations nationwide for home and commercial heating and cooking, in agriculture, in industrial processing, and as a clean

air alternative engine fuel for both over-the-road vehicles and industrial lift trucks.

Propane is a non-toxic substance designated as a clean air alternative fuel in both

the Clean Air Act Amendments of 1990 and the Energy Policy Act of 1992.

It goes without saying that the September 11, 2001 terrorist attacks completely

changed America’s public policy priorities and agenda. Before that date, the debate

over chemical usage by industry centered on reducing or eliminating industrial accidents involving toxic substances. Now the terms of the debate have changed to emphasize the safety of the American people from deliberate attempts to cause harm

through willful and wanton destruction. Individual companies have long sought to

protect themselves, their employees, and their assets from criminals and vandals,

and while these efforts are typically effective, they are not designed to ward off deliberate acts by suicidal killers. NPGA believes that while it may be impossible in

every case for private sector businesses to defend themselves against attack from

secretive, intelligent, patient, and well-trained terrorists, this does not mean that

renewing one’s commitment to safety and security will not accrue benefits. Indeed,

as Americans move beyond the horror of the attacks, issues of public safety will forever be viewed through the lens of private security.

NPGA believes that policymakers and the media need to avoid debates that only

serve to stir up uncertainty and fear in the United States. For example, a study

by Argonne National Laboratory was used to buttress a November 12, 2001 Washington Post article entitled ‘‘Toxic Chemicals’ Security Worries Officials.’’ The Argonne data underpins a chart showing relative numbers of deaths and injuries, but

it is important for Congress and others to know that the U.S. Department of Transportation—the Argonne report’s sponsor—has essentially disavowed it and removed

it from its website. The weaknesses of the Argonne study were made even more

stark in a study performed by Visual Risk Technologies Inc. which concluded that

‘‘the study results [are] extremely suspect.’’

Likewise, there are many weaknesses in S. 1602. Among other things, this bill

would set up a bureaucratic nightmare of duplicative regulations that would overlap

existing Federal departmental jurisdictions causing the type of confusion that invariably weakens compliance. For example, S. 1602 requires the EPA Administrator

to issue regulations within 1 year of enactment designating certain combinations of

chemical sources and substances of concern as high priority categories based on the

severity of the threat posed by an accidental release or criminal release from the

chemical sources. This would duplicate the scope and purpose of the Risk Management Program regulations required by Section 112(r) of the Clean Air Act Amendments of 1990. Moreover, it would require high-level negotiations with DOT because

it specifically covers hazardous material motor vehicles, rolling stock, and containers, all of which are subject to existing DOT regulations.

S. 1602 would also require EPA to subsequently issue additional regulations to

require each owner/operator of a chemical source within a high priority category to

take adequate action, including safer design and maintenance, to prevent, control,

and minimize the potential consequences of an accidental or criminal release. In the

case of the propane industry, this would require EPA to duplicate fire safety regulations which already exist in every State based upon National Fire Protection Association safety standard 58 (NFPA 58), Liquefied Petroleum Gas Code, an ANSI consensus standard. NFPA 58 has been the primary source of propane industry safety

regulations for 70 years. Congress should not seek to increase regulatory confusion

in the propane industry because confusion will only lead to less safe operations.

Finally, S. 1602 would make all information generated in implementing its provisions to be made available to the public except in cases of national security or trade

secrets. This field has already been thoroughly plowed in the debate over the Fuels

Regulatory Relief Act of 1999 which severely limited EPA’s ability to publish detailed industrial worst-case scenario data on the internet for public—and terrorist—

consumption.

Propane industry participants are well-versed in the need for product safety and

stewardship, and the industry has been consistently proactive in this regard. Industry achievements and objectives are most visible in the debate over the Fuels Regulatory Relief Act of 1999; in a negotiated retrofit program agreed to by industry and
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DOT; and a multi-million dollar industry-funded program to inform emergency responders on how to protect themselves.

In 1999, the industry anticipated the potential harmful uses of sensitive data required under EPA’s Risk Management Program regulations. At NPGA’s urging,

Congress passed the Fuels Regulatory Relief Act of 1999 to forbid EPA from publishing worst-case scenarios on the internet and to require EPA to exempt from the

RMP rules flammable substances used as fuel. NPGA demonstrated that the RMP

rules, if allowed to stand, would have: (1) harmed the human health and the environment by encouraging fuel switching to less environmentally benign fuels; (2) reduced safety by creating incentives to demand more small deliveries; and (3) burdened hundreds of thousands of propane customers with substantial Federal paperwork requirements.

S. 1602 would contradict the Fuels Regulatory Relief Act of 1999 with no justification. Congress unanimously passed this law after multiple hearings and appropriate

committee consideration. Congress heeded the concerns expressed by firefighters

and other emergency responders, large and small businesses, many sectors of the

industrial community, Federal, State, and local regulators, and others. With regard

to the propane industry, there simply is no reason to undermine this recent congressional decision.

Also in 1999, NPGA negotiated with DOT an estimated $50 million industry-wide

retrofit of delivery vehicles to install the latest electronic delivery control devices

and make other important operational changes that will increase safety. This program is making an already safe industry even safer. Propane is typically delivered

from terminals to storage facilities in tractor-trailer size trucks. As part of the negotiated rulemaking with DOT, the propane industry agreed to retrofit these delivery

vehicles on an aggressive schedule with the most advanced technology. Under regulations implemented by the U.S. Department of Transportation, all new vehicles of

this type must have a passive shut-down system installed, i.e. no human intervention is needed to activate it in the event of a leak. All local delivery vehicles (bobtails) are being retrofitted with remote shutdown devices allowing drivers to stop

the delivery of propane in the event of an emergency. The entire fleet of trucks must

be retrofitted with the appropriate system no later than each truck’s first scheduled

pressure test after July 1, 2001.

In recognition of their importance to public safety, NPGA members are also closely tied in with emergency responders at the local level. Storage inventory data is

provided in a standardized format to local fire departments through Emergency

Planning and Community Right-to-Know Act reporting. Moreover, the industry is

most proud of its multi-million dollar Propane Emergencies program which is the

best source of information for preventing or responding to propane emergencies.

This program has been sent free of charge by the industry to every professional and

volunteer fire department in the United States. Developed by a team of highly qualified propane product and container specialists from NPGA, this program is a comprehensive educational safety program which includes a textbook, facilitator’s guide,

and videotape that establishes a new level of readily accessed reference information,

along with workshops and interactive scenarios that increase the knowledge of procedures to use in the event of a variety of real-world emergency situations.

This award-winning program was launched as a cooperative effort between the

NPGA and the Propane Education & Research Council (PERC). The need for the

development of high quality emergency response resources and training materials

is a recognized priority within both the propane industry and emergency services

community. Funded by industry assessments paid to PERC, the propane industry’s

financial commitment has permitted the creation of a 240-page textbook covering

the physical properties of propane, design and construction features of both bulk

and non-bulk propane containers, typical emergency scenarios, and tactical guidelines and considerations.

Safety in the propane industry is also enhanced by the rigorous regulation at the

state level through National Fire Protection Association safety standard 58, LP-Gas

Code. NFPA 58 is a comprehensive safety consensus standard adopted either by reference or direct incorporation into state regulations in all 50 states without exception. Very few propane industry operations are unaffected by the provisions of this

standard.

In addition to industry initiatives to increase the safety and security of our nation’s fuel supply, the propane industry has many other aspects that need to be

borne in mind by policymakers as decisions are made to allocate resources against

potential future terrorist attacks. Among the most obvious are:

• Odorized vs. non-odorized propane.—Propane destined for use as a fuel is given

an odorant called ethyl mercaptan to alert people of its presence in the air as a safety feature. Odorization serves the same purpose as a siren—it’s an alert mechanism.
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Propane has one of the most distinctive odors that clearly alerts people into taking

precautions. To the extent that Congress chooses to address sectors with higher

risks, Congress could address those sectors that utilize non-odorized propane.

• No lumpers.—The propane industry does not utilize so-called ‘‘lumpers’’ to unload its products at customer facilities. Lumpers are individuals typically paid by

a driver to unload his vehicle in the event he is prevented from doing so by union

rules. Often, companies do not hire workers to unload the vehicle either, so lumpers

do the work. This is often found in the grocery and furniture industries.

• There is virtually no ‘‘walk-by’’ sale of propane.—Propane marketers store their

supplies at storage facilities from which deliveries are made via truck to tanks at

customers’ locations. Most tanks at customer locations are owned by and served exclusively by a single propane marketer. These marketers therefore maintain substantial information about their customers, such as amounts delivered, storage capacity, and payment history. The fact that propane supplies are controlled by a single company for much of the delivery chain increases security.

• Propane delivery vehicles are highly specialized and recognizable.—Because of

the unique nature of this product, propane delivery vehicles are used almost entirely

for a single commodity. They are constructed to meet exacting DOT specifications

and regulations and are highly durable. It is a common practice for the propane container to be reused for propane delivery multiple times on different chassis. Virtually all of the industry’s delivery trucks are owned by the company doing the delivery, and all bear the required DOT placards and labels.

NPGA strongly believes that these features of the propane industry—combined

with the aggressive, multi-million dollar safety program established by industry participants—reduce the risk of accidental or purposeful releases of propane in the

United States.

Congress and appropriate executive branch agencies have a shared responsibility

to ensure the safety and security of the American people. However, Congress and

the executive branch also have the responsibility to acknowledge the existing ongoing efforts of the private sector to increase its own safety and security. The propane

industry is clearly in the forefront of these positive efforts.

As Congress considers legislation to increase the safety and security of hazardous

materials use and transportation in the United States, NPGA urges Members of

Congress to review the following recommendations. First, any requirement to perform background checks on drivers seeking to obtain or renew hazardous materials

endorsements to commercial drivers’ licenses should establish a goal of moving toward instant CDL background checks similar to the program for purchasing firearms. Such a program would greatly reduce waiting time, administrative burdens

on the license-issuing agencies in the states, and allow government to access the latest watchlist information.

Second, Congress should seek to set up incentives to develop and deploy high

technology to track safety and security of hazardous materials shipments, drivers,

and other assets. Providing incentives is far preferable to mandating particular solutions because incentives allow private industry to continually develop better performing technologies that fit their unique needs.

Third, Congress should provide tax incentives to decentralize storage capacity for

critical winter heating fuel supplies. In the same way that such fuel storage tax incentives help increase the dependability of America’s fuel delivery infrastructure,

end users of heating fuels will be less susceptible to disruptions due to terrorism

if the industry is given incentives to increase their decentralized storage capacity.

Fourth, NPGA strongly opposes expanding the funding scope of the Hazardous

Materials Emergency Preparedness (HMEP) Grants program beyond those areas

currently authorized in the Hazardous Materials Transportation Act (HMTA). There

is already an insufficient level of congressional oversight of the HMEP program, and

authorizing use of funds for terrorism will only make this problem worse. The propane industry has spent tens of millions of dollars voluntarily for worthwhile programs that make a real difference in safety, such as Propane Emergencies, and

NPGA believes that expanding the scope of the HMEP program will only serve to

justify extraction of additional millions from the hazardous materials transportation

industry, the bulk of which comes from small companies.
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Finally, if Congress believes that an approach such as that proposed in S. 1602

is warranted, NPGA urges the scope of the bill to be limited to toxic substances.

This is clearly the focus of the public debate on terrorism, along with biological and

nuclear weapons, and it would maintain consistency with Congress’ debate over the

Fuels Regulatory Relief Act of 1999.

Thank you for this opportunity to present NPGA’s views on S. 1602. Should you

have questions or require further information, please do not hesitate to call.

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